Florida prison, left, Tom Brooks, right

In a couple of weeks, Judge Kevin Carroll of the 2nd Judicial Circuit Court is expected to determine whether nurses and other state employees may proceed with their present lawsuit against the Florida Department of Corrections (DOC), or whether they will need to file an entirely new one in their long-ranging battle against privatization of prison health services.

Whatever course the dispute takes, officials at the DOC will find themselves tackling an allegation so far unreported: that the proposal to privatize prison health services is unlawful because neither of the corporations the DOC is attempting to contract with, Wexford Health Sources and Corizon Inc., is a “licensed health care provider.”

In dispute is the proper interpretation of Section 945.6033 of the Florida Statutes, which reads:

“The Department of Corrections may enter into continuing contracts with licensed health care providers, including hospitals and health maintenance organizations, for the provision of inmate health care services which the department is unable to provide in its facilities.”

Attorney Tom Brooks, one of the lawyers representing the American Federation of State, County, and Municipal Employees in the suit, tells Sunshine State News that statutory language prevents the DOC from contracting with Wexford and Corizon.

“[They are] private, for-profit businesses that supply health care providers to others. ... They agree to manage the provision of health care by hiring licensed health care providers and assigning them to work for the entity contracted with. They are not themselves licensed providers,” he says.

Sunshine State News contacted the Florida attorney general’s office, whose spokesman John Lucas did not contradict Brooks’ characterization, but insisted that the DOC was operating under an entirely different section of the Florida Statutes, 20.315.  That section allows the DOC to “contract for the provision of services by counties, municipalities, nonprofit corporations, and other entities capable of providing needed services, if services so provided are more cost-efficient, cost-effective, or timely than those provided by the department or available to it under existing law.” DOC maintains that the words “other entities” allow it to contract with for-profit corporations.

Asked why the language in Section 945 did not prevent contracting with unlicensed corporations, Lucas replied that the section applies only when the DOC “is unable to provide those [contracted] services in its facilities.” In those circumstances when the Department is able to provide the services, but merely elects not to, the section is inapplicable.

Brooks denies that the distinction he is making between licensed providers and corporations, which provide licensed providers, is meaningless.

“The state is constitutionally required to provide adequate health care to inmates no matter who is actually delivering the medical services, and that is more likely to occur when the direct, day-to-day management of those services is being done by a state-licensed entity, not just some for-profit business not regulated by the state,” he says. “It gives the state more control and is probably less risky.”

Reach Eric Giunta at egiunta@sunshinestatenews.com or at (850) 727-0859.