Gov. Rick Scott’s Drug Testing Policy Stirs Suspicion

One of the more popular services at Solantic, the urgent care chain co-founded by Florida Gov. Rick Scott, is drug testing, according to Solantic CEO Karen Bowling.

Given Solantic’s role in that marketplace, critics are again asking whether Scott’s policy initiatives — this time, requiring drug testing of state employees and welfare recipients — are designed to benefit Scott’s bottom line.

The Palm Beach Post reported in an exclusive story two weeks ago that while Scott divested his interest in Solantic in January, the controlling shares went to a trust in his wife’s name.

This raised a groundswell of concern and questions about his health policy initiatives, especially his push to move Medicaid into private HMOs. Solantic does not take Medicaid but does business with private Medicaid HMOs. The questions are growing louder with Scott’s executive order on drug testing.

Solantic charges $35 for drug tests. The main customers? People who want advance reassurance they will pass an upcoming drug test for work or parole, and worried parents who bring in wayward teens, Bowling said. Customers can have results sent confidentially to their homes, without involving their employer or insurer.

“The wellness tests have really grown. People want to come in and find out, and then never see us again,” Bowling said in an interview last month.

‘Elephant in the room’

Scott surprised state employees Tuesday by issuing his executive order for mandatory drug testing of all prospective hires, and random drug testing of current employees, in agencies whose directors he appoints.

In the same announcement, he praised the Florida Legislature for its plans to require all welfare applicants to undergo drug testing as well.

Taken together, the initiatives could affect hundreds of thousands of Floridians, forcing them to submit to drug tests or risk losing their public jobs or benefits.

“Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace,” Scott said in a statement. “Just as it is appropriate to screen those seeking taxpayer assistance, it is also appropriate to screen government employees.”

Until last week, Scott’s communications office in Tallahassee had ignored repeated requests for comment on the potential for a conflict of interest. On Friday, as national media began to call as well, the office issued this response:

Any perception that the governor’s business interests pose a conflict of interest with his health policies are “baseless and incorrect,” said Scott’s deputy communications director, Brian Hughes.

Privately, one Scott official acknowledged that every time the governor discusses health policy, his urgent care business would be “the elephant in the room.”

Shortly before he was inaugurated, Scott’s lawyers met with attorneys at the Florida Commission on Ethics. Subsequently, they moved his Solantic holdings into a revocable trust in his wife’s name, making her the controlling investor in the privately held company. No public records were created from the ethics meeting.

During the election campaign, he had estimated the worth of his Solantic holdings at $62 million. Jacksonville-based Solantic has 32 clinics statewide, including two in Palm Beach County, and plans rapid growth and an eventual initial public offering, according to company documents.

Suffolk University Law Professor Marc Rodwin, author of several books on conflicts of interest in medicine, said the movement of Scott’s ownership to his wife’s trust was insufficient to eliminate the ethical issues.

“He owned the company and transferred it into his wife’s name,” Rodwin said. “It’s a conflict of interest.”

But while it may rise to the level of impropriety, Florida legal experts said, it likely does not rise to the level of illegality.

Advice for the governor

Scott would be wise to specify that Solantic be left out of any government drug testing contracts, advised Bruce Rogow, a Nova Southeastern law professor who has defended elected officials accused of public corruption. So far, that hasn’t happened.

“If I were the governor and I wanted there to be drug testing, and I owned a company that did a lot of drug testing, I would tell agencies to leave out my company,” Rogow said.

He said he does not think it’s illegal. “It’s just a question of propriety.”

Former federal prosecutor and current Palm Beach County Ethics Commissioner Bruce Rein-hart agreed. He added that recent case law involving former Enron CEO Jeffrey Skilling and former Hollinger International Chairman Conrad Black had significantly weakened the federal honest services fraud law that was used to convict ex-Palm Beach County Commissioners Tony Masilotti, Warren Newell and Mary McCarty.

The ex-commissioners were found guilty of clandestinely using their public position for personal financial benefit. After the Supreme Court decided last summer that proof of “palpable conduct” such as bribery or kickbacks is required for an honest services fraud conviction, such cases are harder to prove.

“There’s a lot of things that someone in the public might perceive as improper, sleazy, corrupt, whatever adjective you want to throw on it, but they are not criminal,” said Reinhart, now a criminal defense attorney.

“The remedy is political. If the governor is doing things that are 100 percent legal but the citizens of Florida think it’s unseemly, they have the absolute right not to vote for him in the future.”

Hughes, Scott’s deputy communications director, had few details on how the drug testing policy will be carried out. He said the executive order is simply a policy guidance document, and more specifics will come as agencies develop detailed testing plans.

How much will it cost?

Agencies have 60 days to write their policies. Testing then starts immediately for prospective hires. Random testing of employees starts 60 days after they’re notified of the policies.

While welfare recipients will have to pay for their drug tests out of their pockets to receive state aid under the bill Scott supports, his executive order is silent on the subject of cost.

Hughes said it’s not yet known precisely how many employees are affected, what tests will be used or how much they will cost. Though Scott campaigned on reducing government spending, the costs of conducting the drug tests, even if they reach $2 million or $3 million a year, are worth it for the peace of mind they will give taxpayers, Hughes said.

But threats of litigation are likely to push the cost to taxpayers even higher.

Discussions about cost are starting, Hughes said.

“It’s simply a policy guidance starting point,” he said. “The governor believes that it is in the best interest of Florida’s taxpayers to have a healthy and productive state workforce.”

– Article originally from The Boston Herald.