Opioid crisis and juvenile justice

Two issues poised to dominate 110th General Assembly

Friday, December 29, 2017, Vol. 41, No. 52
By Sam Stockard

With the state’s budget projected to be tight and lawmakers lining up to run for re-election in 2018, the coming legislative session isn’t expected to yield many surprises.

But the 110th General Assembly still has a long row to hoe as the session starts Jan. 9 with new legislative offices and committee rooms in the renovated Cordell Hull Building in downtown Nashville.

“This session we have a lot of work to do on a number of fronts where we have been proposing action, from addressing the health crisis surrounding opiates to prison oversight and ensuring the money we’re dedicating to prisons is well utilized in lowering the recidivism rate to making the system of juvenile justice more responsive to the needs of communities and results in greater safety to our citizens,” says state Sen. Jeff Yarbro, a Nashville Democrat.

Yarbro, who chairs the Senate Minority Caucus, says Democrats have been trying to “work across the aisle” on these matters for years, and he adds he hopes to see “good bipartisan legislation” emerge from the session.

Indeed, legislation is expected to come out of opioid and juvenile justice task forces appointed by House Speaker Beth Harwell.

“It has been almost a year since I first convened the opioid task force, which did a phenomenal job of delving deep into this subject matter,” Harwell says.

“The force’s recommendations are the result of input from many different groups, experts and individuals who have been affected by this crisis. I believe the work of this task force will be an asset as we craft policy in the upcoming session and in the future.”

Dealing with drugs

With more than 6,000 Tennesseans succumbing to opioid abuse over the last five years, the state Legislature is set to attack the problem head-on through a wide range of measures.

“It’s devastated our communities. We’ve got a task force that’s got to report back to us. We’ve got a governor that’s very fixated on it. So, I think we’ll spend a lot of time on how we address this opioid plague that’s destroying our communities?” says House Majority Leader Glen Casada, a Franklin Republican.

Gov. Bill Haslam’s office confirmed battling the opioid epidemic will be one of his initiatives for the year when he makes his State of the State address Jan. 22.

Harwell’s office is preparing legislation after the task force went through an exhaustive review of the crisis and put together a multi-pronged set of recommendations.

The plan focuses on treatment, prevention and policy, its first recommendation advising the governor to put more money in the next budget for addicted Tennesseans to receive help from non-profit, faith-based or local government services for screening and assessment, detoxification, family intervention, residential rehabilitation, recovery houses, day treatment and outpatient services.

In addition, it calls for creation of a recovery school in each of the state’s three grand divisions, possibly using vacant state property, as well as the expansion of recovery courts. Greater use of Naxolone, a medication designed to reverse opioid overdoses, is proposed, too, through law enforcement in high-risk areas and county jails.

Prevention proposals include development of a public awareness campaign on the dangers of opioid use and how to cope with it, alternatives for pain management, creation of modern pain-management curriculum for health-care professionals, and limits on emergency room prescriptions for pain medication.

Policy changes could add 25 Tennessee Bureau of Investigation agents to combat the epidemic along with an increase in funding to stiffen penalties for opioid offenses, including fentanyl, a powerful pain medication that can kill people with one dose.

Other proposals call for encouraging electronic submission of prescriptions of schedule II controlled substances and prohibiting pain clinics from treating walk-ins.

Even before the task force finished its plan, state Rep. Bryan Terry and Sen. Steve Dickerson, both anesthesiologists, started planning legislation to give the state a new method for fighting illicit opioid use by increasing the penalties for sales, manufacturing, distribution and intent to traffic.

Lawmakers have passed prescription safety measures while providing $1.3 million for drug recovery court and $6 million this year for safety net treatment services.

But House Minority Leader Craig Fitzhugh isn’t satisfied, and even though the task force’s recommendations are comprehensive, the question remains on how much will make it into legislation.

“Tennessee … is quite a bit behind other states. And we made some baby steps last time. But what we did was just put some things in place, so we do have a long way to go there,” says Fitzhugh, a Ripley Democrat running for governor. “I expect there will be some legislation that will move that forward a bit, but I don’t think enough.”

K-12 testing

After two years of disasters with TNReady, look for legislative action to “slow walk” the state’s standardized testing policies and their impact on teachers and students.

Some 9,400 TNReady tests had inaccurate scores in 2017, just one year after the online rollout of the test flopped, forcing the state to go back to pencil and paper and then canceling tests for younger children because the former vendor didn’t have enough copies of the test.

The Department of Education shifted to Questar this year, giving it a $60 million, two-year contract. But clearly that wasn’t fool-proof.

During a recent Government Operations Committee hearing, legislators asked Department of Education Commissioner Candice McQueen to go through a full testing cycle without mistakes before making it count on teacher evaluations and student grade-point averages.

Principals and teachers acknowledge the test gives them important information for figuring out how to place teachers in classrooms and where children need to improve. But they want consistency after years of change, and they want the test to work.

Questar CEO Stephen Lazer told lawmakers the company found the problems and corrected them. “I’m confident we have steps in place to stop a recurrence of this,” he says.

Yet Legislators such as Rep. Jeremy Faison, a Cosby Republican from East Tennessee, are a little more demanding than teachers and principals.

In fact, during the recent hearing he told McQueen, the Department of Education would receive a score of 1 on communication with school districts, testing implementation and Questar’s inability to handle problems. Teachers are evaluated on a scale of 1-5, with 5 being the best, based on student performance, principal evaluations and other factors.

Because of uncertainty and inconsistency surrounding TNReady, teachers are “scared to death, dry-heaving at home” over their jobs, Faison adds.

Laying the matter out in what he termed “hillbilly language,” Faison says the state appears to be trying to move too quickly toward the “valley” of educational success.

“What I hear is we drove the car over the damn cliff to get to the valley,” Faison points out. “… There’s casualties.”

Faison is planning legislation for the coming year prohibiting the state from attaching the results of TNReady, or its equivalent, to teachers’ overall evaluation score or to the GPA of a student. TNReady counts for 15 percent of a student’s grade-point average.

Look for the Education Department to stand its ground, though, on the start of another testing cycle.

McQueen contends the state has gone through one full cycle of TNReady with grades 3-8 and high school students and is still in “transition” as far as how much it counts on teachers’ evaluations.

Legislators didn’t exactly give her a definition, either, for slowing down with TNReady, she said, adding, “So, I’m not 100 percent sure what that means or what the intent there would be. But I’m happy to have the conversations with the legislators.”

McQueen says she believes TNReady and students’ score “really do influence instruction,” making principals and teachers think about where they need to put more emphasis in the classroom.

Online test-taking remains in transition, as well, with this the first year for all high schools taking tests via the internet and next year grades 5-8 going online.

In response to Faison’s criticisms, McQueen notes, “I would say on communication we’re much stronger than where we were three years ago. But we can always get better in that area.”

Vouchers without sponsors

The use of public dollars to send low-income children in the state’s poorest performing schools to private schools appears to be on life support – unless it can find a new Senate sponsor.

State Sen. Brian Kelsey, a longtime proponent of “opportunity scholarships,” doesn’t plan to renew his push in 2018.

“I care passionately about helping children and parents find the right schools for them,” the Germantown Republican explains. “I listened to my community, and there is not enough support for opportunity scholarships at this time. Next year, I want to concentrate on helping public schools have the resources they need to succeed.”

The decision is quite an about-face for Kelsey, who has made this a priority the last few years. Gov. Bill Haslam pushed in recent years for vouchers, as well, primarily with a pilot program in the state’s worst-performing schools, a plan that would have affected Memphis City Schools more than any other system.

In response to Kelsey’s decision, Rep. Harry Brooks, a Knoxville Republican sponsoring the House version of the bill, says he probably won’t bring the bill in 2018. He points out it has less interest in the House than in the Senate.

“You’ve got to have both (bills) in tandem,” adds Brooks, who chairs a House education committee. “If it’s not going to be brought up in the Senate, there’s no need to bring it up in the House.”

Lawmakers who oppose vouchers aren’t assured, though, it will be dead for the coming year.

Rep. Antonio Parkinson, a Memphis Democrat opposed to voucher legislation, is cautiously optimistic.

“I wouldn’t be surprised if there was a trick up somebody’s sleeve. (Kelsey) said he’s not doing it, but that doesn’t mean somebody else is not doing it,” Parkinson points out.

Rep. Bill Dunn, a Knoxville Republican who previously sponsored voucher legislation, is disappointed. He adds he keeps hoping students who are “trapped” in failing schools will be given a better option.

“The adults keep winning and the kids keep losing,” he says.

Juvenile justice reform

Proposals from a juvenile justice task force convened over the summer are designed to reduce the number of youths, 1,100, in Department of Children’s Services custody by 36 percent and save $36 million over five years.

The task force is recommending all of that money be reinvested in in-home and community-based services to keep youths out of DCS custody, which costs the state about $230,000 per youth each year.

In addition, it calls for making a $4.5 million investment in fiscal 2019 to back proposals designed to reach children earlier, focus on high-risk youths and sustain services for kids who get into trouble for longer periods to ensure they don’t have problems again.

State Rep. William Lamberth, a Portland Republican who served on the task force, wants to make sure rural parts of Tennessee have the same resources as urban areas to handle juveniles, ranging from diagnosing mental health issues to assisting with drug addiction.

Lamberth, chairman of the House Criminal Justice Committee, says he believes the state also needs to delve into the root of children’s problems.

“Almost in every single circumstance, there’s a family in crisis there. It’s not just that that kid chose to go wrong, so to speak. It’s that they’re in a home where the family unit has broken down or is in crisis, with parents that are suffering from mental health or drug abuse issues or incarcerated or embroiled in criminal activity themselves,” Lamberth says.

That could mean removing the child from the home or finding remedies for the problem that could help the child stay there, he adds.

“Those are tough calls the judges will make. But we want to make sure that at least that judge has every single resource at their fingertips to address not only the child but what’s going on with the family,” Lamberth continues.

The task force found several important findings before making its recommendations.

Kids charged with misdemeanors and unruly offenses make up the majority of the juvenile justice population, and almost half of youths put in out-of-home facilities are put there for non-felony offenses.

Youths are staying under state supervision longer and have more out-of-home placements than five years ago.

Community-based intervention designed to reduce recidivism and keep families together isn’t available statewide, mainly in rural areas. In addition, statewide guidance is lacking for courts to be consistent.

Data collection and information sharing are insufficient and inconsistent, causing poor accountability and an inability to figure out how well the system is working.

Rep. Karen Camper, a Memphis Democrat who served on the task force, calls the recommendations an “internal” look that could change children’s lives because once a child enters the justice system they have few ways to escape it.

“I think it’s a chance to really put some wraparound services around our kids who are dealing with so much in their day-to-day life that we just don’t think about,” Camper points out.

She says she hopes to grapple with the “school-to-prison pipeline mind-set” that keeps children trapped in the system with technical violations.

And while some judges might feel as if the Legislature is “overreaching,” Camper adds she hopes to find compromise for a better way to handle juvenile justice.

Regardless of where children live in Tennessee, she says, “black children are disproportionately impacted. So, there’s something there, and this is a chance to move us past that.”

Private prisons on notice

A State Comptroller audit gave a poor review in late 2017 for prisons run by private vendor CoreCivic, and state lawmakers are ready to take action.

The performance audit found Trousdale Turner Correctional Center and Whiteville Correctional Facility operated with fewer correctional staff than approved, failed to follow staffing patterns and left critical posts unstaffed, possibly limiting their ability to effectively manage inmates.

CoreCivic reports for Trousdale Turner and Hardeman County Correctional Center also contained numerous errors, making information about hires, terminations and vacancies unreliable.

Trousdale Turner’s failure to meet contract requirements and state policies after two years “challenges” the Department of Correction’s ability to monitor the private prison, the audit states.

Lawmakers hammered Department of Correction and CoreCivic leaders during Government Operations Committee meetings after the audit came out, questioning whether they were doing enough to stop gang activity at Trousdale Turner or keep inmates from returning to prison after release.

Department of Correction Commissioner Tony Parker says the department responded by adding monitors at all CoreCivic prisons and an executive level of oversight “to ensure compliance” with the state contract.

Parker contends the department was trying to work with CoreCivic as it was having a difficult time filling positions. “And we may not have taken action when we should have in some cases. But, again, going forward it’s clear that they have a contractual obligation to follow and the department is committed to ensure that they meet those obligations. If they fail to meet those obligations, we’ll follow the rule in the contract to seek liquidated damages,” he explains.

Trousdale Turner’s base budget is $58.7 million compared to expenses last year of $52.4 million, with its pay based on the number of inmate days an offender stays at Trousdale, according to a Department of Correction spokeswoman.

Trousdale Turner had an operating capacity of 2,501 beds in November assigned to 2,481 inmates, putting it at 99.2 percent of capacity and 92.9 percent of the facilities total active beds, according to state figures.

Despite assurances the Department of Correction is cleaning up CoreCivic’s problems, state lawmakers are increasingly uncomfortable with privatization of Tennessee services.

Rep. Faison raised concerns during a Government Operations Committee hearing about a provision in CoreCivic’s contract guaranteeing the company a 90 percent occupancy in their cells.

“That’s crazy for a private, for-profit outfit to be guaranteed 90 percent 365 days a year. Even if we didn’t have the prisoners … we would still have to pay. There’s no private, for-profit business that gets that … I would love to have that,” Faison says.

Faison adds he might not be able to change the state’s existing contract with CoreCivic, but he is working on legislation for future contracts to prohibit those types of guarantees.

Meanwhile, amended legislation sponsored by Sen. Janice Bowling giving the Legislature more oversight on state vendor contracts will move forward even though outsourcing of parks appears to be dead for now. Gov. Haslam’s administration dropped the matter earlier this year.

Problems within the Department of Correction and its privately-run prison vendor “demonstrated a need” for more legislative involvement, notes Bowling, a Tullahoma Republican.

“We just need to tighten up some of the rules and some of the accountability and the transparency up front,” she acknowledges.

The budget

State revenues are coming in closer to projections this fiscal year after the Legislature passed the governor’s IMPROVE Act, a package of food and business tax reductions coupled with fuel tax increases designed to expedite the Department of Transportation’s road and bridge-building list.

Total tax collections are up $162 million, 3.91 percent, and the general fund is up $21.7 million, .64 percent, in mid-December for the state’s $37 billion budget. Compared to $205 million in excess last year, 5.2 percent for total taxes, and $176 million in the general fund, up 5.46 percent, the budget will be a lot tighter heading into the legislative session.

State Sen. Mark Norris, who sponsored and rewrote the IMPROVE Act to “reallocate resources” says the lower revenues are “by design.”

“That’s because we let the Tennessee taxpayers keep their money,” continues Norris, who could be leaving in the midst of the session to take an appointment as a U.S. District Court judge in Memphis (He has been confirmed the by the U.S. Senate Judiciary Committee).

“It’s a drastic reduction. It’s not that the economy is slow. It’s that we let them keep their money, and I emphasized that, and I will continue to re-emphasize it because everybody got hung up on the surplus last year.”

The state had a $1 billion surplus in recurring funds last year and another $1 billion in one-time funds. Lt. Gov. Randy McNally, who calls the budget “the elephant in the room,” acknowledges the budget for the coming year will be “fairly tight.”

Projections are for growth of 2.7 percent to 3.2 percent, according to the Department of Revenue. As a result, legislators won’t be knocking on his door looking for big-spending items.

“Sometimes, as chairman of finance, I found out it’s a little easier if you have to cut things in the budget than if you have excess revenues,” says McNally, who ran that committee before elevating to lieutenant governor a year ago.

ACT uproar

The lieutenant governor recently requested a comptroller investigation into ACT Inc., following the invalidation of college entrance exam test scores at Bearden High School in Knoxville and Alvin C. York Institute in Jamestown. The testing organization refused to release the scores for college admissions after the high schools gave the tests on the wrong date.

In a letter to the Comptroller Justin Wilson, McNally wrote he wants the state to look into the organization’s nonprofit status as well as how much its executives are paid and whether it sells information about students who take the test.

“The organization’s refusal to even entertain the release of these important college admissions scores has led me and other state officials to question the integrity of the organization,” McNally’s letter stated.

The University of Tennessee agreed to accept scores from the Oct. 17 mis-administered tests. But in a late November letter to McNally, the ACT said this type of situation could lead to the “possibility of information sharing about specific test questions and answers that may enable some students to have an unfair advantage.”

“An invalid test cannot be translated into a college reportable score, leaving ACT with the difficult but necessary decision to notify students about the situation that occurred through no fault of their own,” the statement says.

ACT received registrations from 294 students affected by the mistake to take the test again in December.

Asked whether Tennessee would switch to the SAT from ACT scores for college admissions, a McNally spokesman referred to McNally’s comment after he failed to make headway with ACT for release of the scores:

“After today, it is fair to say there has been a loss of confidence in the integrity of the ACT in Tennessee. We cannot have a college admission benchmark that refused to deliver scores. I am committed to making sure Tennessee students have a college admissions test they can trust.”

Sam Stockard is a Nashville-based reporter covering the Legislature for the Nashville Ledger, Memphis Daily News, Knoxville Ledger and Hamilton County Herald. He can be reached at [email protected].