House Bill No. 83

Introduced By bergsagel

By Request of the Department of Corrections

A Bill for an Act entitled: An Act allowing and providing for the regulation of private correctional facilities; specifying the department of corrections duties and responsibilities; specifying the duties not delegable to a contractor; specifying the requirements of requests for proposals; specifying certain requirements of contracts; specifying contractor responsibility for certain costs; providing for licensure of facilities; specifying action by the department for contractor failure to comply with law or to renew contract; and providing an immediate effective date and an applicability date.

STATEMENT OF INTENT

A statement of intent is required for this bill to provide guidance to the department of corrections in adopting rules under [section 4]. It is the intent of the legislature that rules adopted by the department ensure public participation in the siting of a private correctional facility, ensure that the design and construction of a private correctional facility be reviewed and approved by the department of administration, and provide that the management and operation of a private correctional facility substantially conform with recognized correctional standards, such as the American correctional association standards and national commission on correctional health care standards.

Be it enacted by the Legislature of the State of Montana:

Section 1. Policy. It is the policy of the state of Montana to encourage innovative methods to provide the correctional resources necessary to confine persons convicted of crimes. The state recognizes that there may be benefits to confining convicted persons in private correctional facilities operated consistently with public policy.

Section 2. Definitions. As used in [sections 1 through 11], the following definitions apply:

(1) "Department" means the department of corrections provided for in 2-15-2301.

(2) (a) "Private correctional facility" means a correctional facility that is either privately operated or privately owned and operated. The term includes a regional correctional facility, as defined in 53-30-503, if privately operated or privately owned and operated.

(b) The term does not include a private detention center or a regional jail governed by Title 7, chapter 32, part 22.

Section 3. Private correctional facilities -- confinable persons. (1) An individual, corporation, partnership, association, or other private organization or entity may not construct or operate a private correctional facility unless licensed by the department. A license is nontransferable.

(2) A person convicted in another state may not be confined in the portion of a private correctional facility in this state that is used for the incarceration of convicted felons for a term of over 1 year unless the confinement is under and governed by Title 46, chapter 19, part 3 or 4.

Section 4. Department duties and responsibilities -- rulemaking authority. (1) (a) The department shall adopt administrative rules that include the minimum applicable standards for the siting, construction, operation, and physical condition of a private correctional facility and for the security, safety, health, treatment, and discipline of persons confined in a private correctional facility.

(b) The administrative rules must require that a private correctional facility conform to applicable American correctional association and national commission on correctional health care standards for the facility and achieve accreditation from the American correctional association and national commission on correctional health care within 3 years from the date the facility begins operation.

(c) The administrative rules must provide for review and approval of facility design and construction by the department of administration.

(2) Within 90 days of [the effective date of this act] and on a biennial basis, the department shall publish a description of the long-range correctional needs, objectives, and goals of the department and the state.

(3) The department shall at least annually inspect each private correctional facility to determine compliance with [sections 1 through 11], applicable American correctional association and national commission on correctional health care standards, department rules, and contract requirements.

(4) The department shall present a biennial report of compliance inspections to the legislature.

Section 5. Requirements of request for proposals. (1) Prior to contracting for services with a private correctional facility, the department shall publish a request for proposals. The request for proposals must include a description of the long-range correctional needs, objectives, and goals of the department and the state.

(2) The request for proposals must include and identify the services requested and required and other information, including but not limited to:

(a) the physical plant, facility, and perimeter, including:

(i) the facility capacity and inmate population, including classification levels accepted;

(ii) inmate housing; and

(iii) security, safety, and emergency procedures;

(b) who is responsible for transportation of inmates:

(i) among facilities;

(ii) upon an inmate's release, including discharge or parole;

(iii) for court and administrative proceedings such as parole hearings and inmate participation as a witness;

(iv) for medical transportation; and

(v) for security;

(i) the organizational structure and staffing; and

(ii) a policy and procedures manual addressing:

(A) inmate discipline;

(B) incident reporting;

(D) searches;

(E) drug testing;

(F) monitoring of facility standards; and

(G) the retention and maintenance of inmate and facility records by the private correctional facility;

(d) staffing issues regarding:

(i) management;

(ii) security;

(iii) administrative personnel;

(iv) qualifications and requirements;

(v) training; and

(vi) staff-to-inmate ratios;

(e) inmate needs such as food, clothing, sanitation, hygiene, and laundry;

(f) programs and services to be required such as vocational and educational training, religious services or customs, counseling, recreation, and canteen;

(g) medical, dental, optical, pharmaceutical, psychological, and other medical-related care;

(h) insurance requirements;

(i) indemnification;

(j) a performance bond that is sufficient to protect the state from damages upon default or nonperformance and that may not exceed the biennial amount of the compensation to be paid to the contractor;

(k) a requirement that proposers provide evidence or documentation demonstrating an ability to provide the services, to comply with acceptable services, and to comply with the rules, regulations, and contract requirements;

(l) a requirement that proposers provide documentation of financial stability or security; and

(m) monitoring of facility operations.

(3) The department may release separate requests for proposals or contracts for specific services such as transportation of inmates and medical, dental, vision, and sick call services. Each contract must include a detailed explanation of the services that must be provided.

(4) The department shall maintain a list of qualified applicants and all proposal responses. The department shall retain all records related to the evaluation process and the awarding of a contract.

Section 6. License -- inspection. (1) The department shall grant a license to a private correctional facility determined by the department to conform to [sections 1 through 11] and department rules.

(2) The department may grant a temporary license for 1 year to a facility that loses accreditation if the department determines that the facility is making satisfactory progress toward substantial conformity with [sections 1 through 11], applicable American correctional association and national commission on correctional health care standards, as determined by the department by administrative rule, department rules, and contract requirements and that the interests and well-being of the residents of the state and of the persons to be confined in the facility are protected. A temporary license may not be renewed.

(3) Except as provided in subsection (2), the department may not grant a license unless the contractor conforms to all state and federal statutes, applicable American correctional association and national commission on correctional health care standards, as determined by the department by administrative rule, department rules, and other requirements as defined in administrative rule. During the initial 3-year period of a contract, a private correctional facility is not required to be accredited by the American correctional association or the national commission on correctional health care in order to be granted a license by the department.

(4) The department may not grant a license to a private correctional facility unless the department determines that the facility conforms to the long-range correctional needs, objectives, and goals of the department and state.

(5) The department may not grant a license to a private correctional facility until the owner or operator of the facility has provided the department with proof of indemnity insurance that appropriately indemnifies the state and that is acceptable to the department.

(6) The department may not grant a license to a private correctional facility unless the facility is constructed in accordance with American correctional association facility construction requirements. In addition, the private correctional facility shall comply with any other applicable local, state, or federal laws or regulations.

(7) The department may not grant a license to a private correctional facility unless the facility has promulgated a policy to provide reasonable access to the facility by representatives of the public media.

(8) The department may not grant a license to a private correctional facility unless the facility has entered into an agreement with local and state law enforcement authorities. The private correctional facility shall demonstrate an adequate response for the mutual aid, assistance, and notification in the event of an escape, riot or disturbance, natural or human-caused event, or other act that may potentially affect public safety.

(9) The department may not grant a license to a private correctional facility unless the legislature has appropriated funds for the housing of state inmates in private correctional facilities.

(10) The department shall at least annually inspect each private correctional facility to determine compliance with [sections 1 through 11] and department rules.

Section 7. Licensure limitations -- siting of private correctional facilities. (1) The department may not grant a license to a private correctional facility located within 1 mile of a public or nonpublic school, not including a home school. However, if a public or nonpublic school is established after a facility has been approved, the department may not prevent the private correctional facility from operating because of this subsection (1).

(2) The department may not grant a license to a private correctional facility unless there has been a public hearing in the county in which the private correctional facility is to be located and unless the county commissioners approve the location of the private correctional facility by a majority vote. If the proposed facility is to be located within the limits of a municipality, the department may not grant a license to a private correctional facility unless there has been a public hearing in the municipality and the local governing body approves the location of the private correctional facility by a majority vote.

(3) If the siting of a private correctional facility is proposed within 7 1/2 miles of an adjacent county or if the department determines that there are reasonable expectations that the siting may have a significant impact on an adjacent county, the department may not grant a license to a private correctional facility unless there has been a public hearing in the adjacent county and unless the concerns of the adjacent county have been considered.

Section 8. Contracts with owners or operators of private correctional facilities. (1) Upon request of the legislative audit committee, the legislative audit division shall review the procedures by which a contract was awarded and shall review each contract prior to execution to determine if the contract includes the requirements provided in [sections 1 through 11].

(2) A contract with an owner or operator of a private correctional facility must be awarded to the contractor who best meets the needs of the state and the department and demonstrates the capability of providing services requested.

(3) A contract must specify the type and level of services to be provided by the contractor. The contract must provide that a private contractor may not:

(a) choose the correctional facility to which an inmate is initially or subsequently assigned. A contractor may request the department to transfer an inmate to a state facility or to another private correctional facility.

(b) develop or adopt disciplinary rules that differ from the disciplinary rules, penalties, and policies of the department;

(d) make recommendations to the board of pardons and parole with respect to the denial or granting of parole or release, except to submit reports to the board of pardons and parole and to respond to requests by the department or the board of pardons and parole;

(e) develop or implement requirements that inmates engage in any type of work, except to the extent that those requirements are accepted by the department;

(f) determine inmate eligibility for any form of release from a correctional facility; or

(g) use an inmate classification system unless it is approved by the department.

(4) Contracts may not exceed a term of 30 years and must contain provisions for renegotiation after 30 years. The provisions of 18-3-104 and 18-4-313 that limit the term of a contract do not apply to a contract authorized by this section.

(5) The contract must specify that the private correctional facility shall grant access to the legislative audit division or a person contracting with the legislative audit division for compliance auditing. The contractor shall provide access to all areas of the facility and to all records maintained onsite or offsite that pertain to all aspects of the facility, including but not limited to operation, financial, and inmate records.

Section 9. Contractor costs responsibility. (1) The contractor is responsible for costs incurred by the state or any political subdivision of the state for legal costs relating to escapes, riots or disturbances, or other natural or human-caused events that occur at the facility because of the contractor's negligence, errors, omissions, intentional acts, or failure to comply with the terms of the contract.

(2) The contractor is responsible for all reasonable costs and expenses incurred by the state or a political subdivision of the state for defense of causes of action brought by or on behalf of an inmate that accrue while an inmate is incarcerated at a private correctional facility.

(3) The provisions of [sections 1 through 11] are not intended to create a private or public cause of action for any person, partnership, corporation, or other entity, including any inmate housed within any private correctional facility or any inmate housed within the state of Montana.

Section 10. Restrictions on inmate movements. An inmate may not leave the secure premises of a private correctional facility except to comply with a court order, to receive medical care that is not available at the private correctional facility, or as part of a work program without the express written approval of the department. Any movement of an inmate outside of the secure premises of the private correctional facility must be in compliance with approved policies and procedures established by the department.

Section 11. Failure to comply with law -- action by department. (1) A contractor shall remain in strict compliance with [sections 1 through 11], established applicable American correctional association and national commission on correctional health care standards, as determined by the department by administrative rule, department rules, and contract requirements.

(2) If the department determines at any time that a private correctional facility does not conform to [sections 1 through 11], applicable American correctional association and national commission on correctional health care standards, department rules, and contract requirements, the department shall notify the chief executive officer and the owner or operator, or both, of the private correctional facility. The notice must state the deficiencies and order that they be remedied within a specified period of time not to exceed 1 year. If the deficiencies are not remedied within that time, the department may hold a contested case hearing under Title 2, chapter 4, and if the department finds that suspension or revocation is warranted by nonconformance with [sections 1 through 11], applicable American correctional association and national commission on correctional health care standards, department rules, and contract requirements, the department may suspend or revoke the facility's license.

(3) If a private correctional facility fails to comply with [sections 1 through 11], applicable American correctional association and national commission on correctional health care standards, department rules, or contract requirements within the specified time period, the state may assume control of the facility for the purpose of protecting the inmates, facility staff, or the public. If the state assumes control of the facility, the department shall suspend payment for any services, and the department assumes the costs of assuming control.

(4) The department may assume emergency control of a private correctional facility if substantial violations exist that affect the life, health, or safety of the inmates, facility employees, or the public or that otherwise substantially impact the security of the private correctional facility.

(5) In the event that a contractor fails to comply with [sections 1 through 11], applicable American correctional association and national commission on correctional health care standards, department rules, or contract requirements, the state may retain the option of purchasing or leasing the facility.

(6) If either the state or the contractor fails to renew a contract, the state may retain the option of purchasing or leasing the facility.

(7) If the state retains the option of purchasing or leasing the facility under subsections (5) and (6) of this section, because it requires the creation of state debt, the appropriation bill that funds the purchase of services from the facility must be treated in the same manner as a bill creating state debt and requires a vote of two-thirds of the members of each house of the legislature for passage.

Section 12. Codification instruction. [Sections 1 through 11] are intended to be codified as a new part in Title 53, chapter 30.

Section 13. Applicability. (1) [This act] applies to proceedings begun or contracts renewed on or after [the effective date of this act].

(2) [Section 7] does not apply to a private correctional facility that has been established prior to [the effective date of this act].

Section 14. Effective date. [This act] is effective on passage and approval.

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