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Communications Workers of America, AFL-CIO v. Clymer

February 7, 1996

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, CAROLYN WADE, PRESIDENT CWA LOCAL 1040, SANDRA ELIAS, JUDITH FRANKEL, JOHN STEWARD, AND ANDREW SAVICKY, PLAINTIFFS,
v.
BRIAN W. CLYMER, STATE TREASURER OF THE STATE OF NEW JERSEY, AND WILLIAM H. FAUVER, COMMISSIONER, STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS, DEFENDANTS, AND CORRECTIONAL MEDICAL SERVICES, INC., AND ST. FRANCIS MEDICAL CENTER, DEFENDANT-INTERVENORS



Carchman, A.j.s.c.

The opinion of the court was delivered by: Carchman

Civil Action

CARCHMAN, A.J.S.C.

The Department of Corrections (DOC), through the Division of Purchasing and Property (Division) issued a Request for Proposal (RFP) inviting bids from private contractors to provide health care services, including psychological services, to inmates in state correctional institutions and facilities. Initially the RFP, as part of the bid specifications, required that all psychologists be licensed. Some months later, the Division amended the RFP, eliminated the licensure requirement and stated, "the psychological services to be provided under the proposed contractual arrangement will be the same as those currently being provided by the MA degree individuals now providing the same services within the State correctional facilities."

Plaintiffs, the Communication Workers of America, AFL-CIO and individual psychologists now employed by the DOC brought this action challenging the RFP and asserting that it violates the State Public Contracts Law (SPCL), N.J.S.A. 52:34-12, and the New Jersey Practicing Psychology Licensing Act (PPA), N.J.S.A. 45:14B-1 to -46 because it permits the use of non-licensed psychologists to perform psychological services.

The issue presented is whether the statutory exemption permitting unlicensed individuals to provide psychological services as part of their duties as employees of the State, N.J.S.A. 45:14B-6(a)(1), extends to employees of private contractors who perform services pursuant to a contract awarded by the State. For the reasons set forth below, this court concludes that the statutory exemption does not extend to independent contractors and their employees. Thus, the RFP violates the PPA.

A.

The DOC is responsible for the custody and care of persons committed to State correctional institutions. The State maintains twelve adult correctional, two juvenile and seven satellite institutions and is required to provide medical and mental health services for approximately 26,000 inmates annually.

The scope of the mental health services provided in the State's institutions is extensive. All inmates receive a psychological screening upon intake into the system. Subsequently, inmates must be psychologically screened for work-detail suitability. Pre-parole evaluations must be performed by psychologists and assessments must be made to determine reduced custody settings. In addition, DOC provides both regular and occasional individual counseling sessions as well as case management for mentally ill inmates. Treatment is also provided for inmates who are emotionally unstable or having problems adjusting to incarceration.

Currently, psychological services are provided primarily by unlicensed psychologists by virtue of a governmental exemption from the licensing requirements found at N.J.S.A. 45:14B-6(a)(1). Absent an applicable exemption or waiver, one is prohibited from holding oneself out as a psychologist and practicing psychology without meeting the licensing requirements of the New Jersey Board of Psychological Examiners. The requirements include a PhD degree.

In July 1995, the DOC, through the Division, issued an RFP seeking to award a contract to a private vendor for the provision of all inmate medical services, including mental health services. The RFP states that any successful bidder will not be an employee of the State, but will have the status of a contractor. RFP § IV at p.2.

The RFP required the use of New Jersey licensed psychologists to provide a wide range of mental health services. In this respect, the RFP was initially fully consistent with the State's licensing requirements. The psychological services to be provided by a contractor include:

a. psychological screening for classification of all new arrivals in coordination with the comprehensive health appraisal done on intake at the reception center;

b. special psychological evaluations at the request of the New Jersey State Parole Board;

c. evaluations of work detail suitability;

d. case management for mentally ill inmates consisting of activities designed to facilitate necessary care and to monitor its impact;

e. regular and/or individual counseling sessions;

f. evaluations of inmates that are self-referred and/or having difficulty coping with ...


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