Last night, on Thursday, January 14th, President-elect Biden released a $1.9 trillion dollar relief package.  This policy proposal is called the "American Rescue Plan." This is a legislative package intended to change the course of the COVID-19 pandemic, advance economic recovery and invest in racial justice. 

Below are some key features as highlighted by the Partnership for Quality Home Healthcare: 

Vaccines

• $20 billion for a national vaccination program in partnership with states, localities, Tribes, and territories
• Expand FMAP to 100% for vaccine administration

Testing

• $50 billion to expand COVID-19 testing (purchase of rapid tests, investments to expand lab capacity, support for schools and local governments to implement regular testing protocols)

Public Health Response

• Fund 100,000 public health workers for vaccine outreach and contact tracing

Health Disparities

• Address health disparities (fund health services for underserved populations, expand Community Health Centers, invest in tribal health services)

Protect Vulnerable Populations in Congregate Settings

• Funding for states to deploy strike teams to long-term care facilities and to conduct infection control oversight
• Fund COVID-19 mitigation strategies, safe re-entry for formerly incarcerated, and vaccination in prisons, jails, and detention centers

Identify and Address New COVID-19 Strains

• Fund sequencing, surveillance, and outbreak analytics capacity

Emergency Relief and Critical Supplies

• $30 billion for the Disaster Relief Fund for supplies and protective gear
• 100% federal reimbursement for critical emergency response resources to states, local governments, and Tribes, including deploying the National Guard
• $10 billion to expand domestic manufacturing for pandemic supplies

Invest in COVID-19 Treatments

• Support development, manufacturing, and purchase of therapies
• Invest in studies of long-term health impacts of COVID-19 and potential therapies

Expanding Health Coverage and Health Services

• Subsidize COBRA through 9/30/2021
• Expand and increase the value of the Premium Tax Credit to eliminate premiums and ensure enrollees pay no more than 8.5% of income for coverage
• $4 billion to SAMHSA to expand access to behavioral health services
• $20 billion to the Veterans Health Administration

 Child Care

• $25 billion for hard-hit child care providers, including family child care homes
• $15 billion for Child Care and Development Block Grant program
• Increase childcare tax credits and child tax credits
• Expand Earned Income Tax Credit for childless adults

Support for Schools

• $170 billion, supplemented by additional state and local relief resources, for K-12 schools and higher education institutions

Protect and Support Workers

• Authorize OSHA to issue a COVID-19 Protection Standard and provide additional funding for OSHA enforcement and grant funding
• $350 billion in emergency funding for state, local, and territorial governments to support first responders and other essential workers

Emergency Paid Leave

• Reinstitute requirements and eliminate exemptions for employers to provide paid leave; this also would apply to healthcare workers and first responders
• Provide over 14 weeks of paid sick and family and medical leave
• Expand emergency paid leave to include federal workers
• Provide $1,400 per week paid leave benefit for individuals earning up to $73,000 annually
• Extend refundable tax credit to reimburse employers with less than 500 employees to cover 100% of the cost of paid leave
• Reimburse state and local government for cost of paid leave
• Extend emergency paid leave measures until 9/30/2021

Direct Relief to Families - $1 trillion

• Additional $1,400 per person checks (to supplement $600 payments in December)
• $400 per week unemployment insurance supplement and extend programs through 9/30/2021
• Extend eviction and foreclosure moratoriums and continue applications for federally-guaranteed mortgage forbearance until 9/30/2021
• $30 billion in rental and critical energy and water assistance
• $5 billion in emergency assistance to combat homelessness
• Extend 15% SNAP increase and temporarily cut state match
• $3 billion for WIC program
• $1 billion in nutrition assistance for US Territories
• Increase minimum wage to $15/hr
• Call on employers to provide frontline essential workers back hazard pay
• $1 billion for TANF

International Health and Humanitarian Response Support

• Mitigate pandemic’s impact on global health, food security, and gender-based violence
• Support international efforts to develop and distribute medical countermeasures
• Build capacity to fight COVID-19, its variants, and emerging biological threats

Support for Struggling Communities - $440 billion

• $15 billion in grants to hardest hit small businesses
• Leverage $35 billion in state, local, tribal, and non-profit small business financing programs into $175 billion low-interest loans and venture capital to help entrepreneurs

This information was provided by the Partnership for Quality Home Healthcare.

Yesterday, Tennessee’s three constitutional officers were elected in a joint session of the House and Senate.  As expected, Treasurer David Lillard and Secretary of State Tre Hargett were re-elected.  Former house member Jason Mumpower became the newest constitutional officer as he succeeded retiring Comptroller of the Treasury Justin P. Wilson.

Next, both chambers of the 112^th General Assembly convened and announced committee appointments.  While the Senate committees saw few changes to their makeup, the House committee rosters include several new chairmen and significant shuffle. The House will also have fewer total committees and subcommittees than the 111^th General Assembly, with Speaker Cameron Sexton making changes to streamline committee work.  House and Senate committees and their membership are attached.

After announcing committees, the chambers quickly completed the organizational session, and the General Assembly hit the ground running by introducing and debating SJR 25/HJR 18.  These resolutions will authorize Governor Lee to implement the TennCare III demonstration waiver, often referred to as the “Medicaid Block Grant.”  In 2019, the State of Tennessee requested that federal Medicaid funds be received in the form of a block grant.  Just last week, the federal government approved this request.  The plan must be approved by the legislature, and Republican lawmakers are aiming to gain approval before President Trump leaves office next week.  It is anticipated that the resolution will pass in both chambers today.

Looking to next week, the legislature will be convened for a Special Session called by Governor Lee to take up K-12 education legislation in response to COVID-19.

Thus far, approximately 200 bills have been filed, and we are reviewing each one to assess its application to you.  We will provide a report with the bills filed today starting next week. If you have any questions or would like to discuss the beginning of session further, please reach out to any member of the Butler Snow team.

112th House Committees

112th Senate Committees

Tuesday was the first day of the 112^th Tennessee General Assembly.

12 new state legislators were sworn in and the speakers of both chambers were formally elected. Lieutenant Governor and Speaker of the Senate Randy McNally and Speaker of the House Cameron Sexton were both reelected to lead their chambers. Republican nominee Pat Marsh of Bedford County was elected to serve as Speaker Pro Tempore of the House. In their remarks, each speaker reflected on the difficult events of the past year and challenged Tennessee to lead the nation in good governance and civility. The opening day of the 2021 session was noticeably quiet as COVID-19 restrictions led to fewer legislative guests and onlookers present in the Capitol.

Later this week, the legislature will elect the three constitutional officers -- Comptroller of the Treasury, Secretary of State, and Treasurer. Jason Mumpower, who is currently the Deputy Comptroller, is widely believed to be the frontrunner to succeed retiring Comptroller Justin P. Wilson. Secretary of State Tre Hargett and Treasurer David Lillard are likely to remain at their posts. Legislative committees, their membership, and their chairmen will also be announced later this week. While there are likely to be some changes to every legislative committee due to retirements, all eyes are on the House as Speaker Sexton is rumored to announce more significant restructuring of the House committees.

Next week, the Tennessee General Assembly will meet for a special session called by Governor Lee to pass K-12 education legislation. Hot topics for this special session are likely to include: COVID-19 related learning loss, school funding, literacy, and teacher evaluations.

Hoping to stop a surge on top of a surge, Governor Lee pleaded with Tennesseans to wear masks, limit holiday gatherings to one’s household, work from home where possible, and to limit public gatherings to 10 people.  Governor Lee commended local officials for implementing mask requirements, stating that 70% percent of Tennesseans are under mask requirements now; however, Governor Lee stopped short of mandating a state-wide mask requirement under Executive Order No. 70. Executive Order No. 70 will mandate new limits on indoor public gatherings to 10 people.

In summary, Executive Order 70:

1. Encourages Tennesseans to work from home where possible: Employers are “strongly urged to take steps to the greatest extent practicable to equip, encourage, allow, or require employees to work remotely.”

2. Social Distancing and social gatherings: Persons “shall not in any event be in a group of ten (10) or more persons in an indoor public place for the purposes of social gatherings, activities, or events; provided, that this limitation does not necessarily prohibit ten(10) or more total persons from gatherings in a single place or venue for an activity or event if they are in a separate otherwise permissible smaller groups that substantially maintain six feet or more of separation from other persons or separate groups.”  Places of worship are not considered social gatherings.

3. Spectator Sports and Athletic activities: Local education agencies and schools shall have authority to permit but aren’t required to permit sponsored sporting events, as long as those events are conducted in a manner consistent with TSSAA guidance and rules. Also, puts new spectator limits in place for sporting events.

Effective until Jan. 19^th, 2021

The full text of Executive Order No. 53 can be found at 

https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee70.pdf

Background

On Friday, September 11^th, the US Department of Labor issued new regulations interpreting the Families First Coronavirus Response Act (FFCRA).  You will recall that the FFCRA—the first piece of federal legislation related to the COVID-19 public health emergency—was passed on April 1^st, 2020.  The federal law, among other things, established a new paid medical leave requirement for certain individuals as well as expanded FMLA provisions.  More specifically, the law’s:  

• Expanded family and medical leave provisions established up to 12 weeks of job-protected FMLA leave paid at 2/3 of the higher of their regular rate of pay or the applicable state or Federal minimum wage when an eligible employee is unable to work due to the closure of their minor child’s school, nursery or daycare center.  
• Emergency paid sick leave (EPSL) provisions established up to 10 days (80 hours) of paid sick leave at an eligible employee’s regular rate of pay (up to $511 daily and $5,110 total) for any one of the following qualifying COVID-19-related reasons:  
• Emergency paid sick leave (EPSL) provisions established up to 10 days (80 hours) of paid sick leave at an eligible employee’s regular rate of pay (up to $200 daily and $2,000 total) for any one of the following qualifying COVID-19-related reasons:  

After the FFCRA was signed into law in early April, the US Department of Labor (DOL) was tasked with implementing regulations implementing the statute, namely defining “health care providers.”  Following NAHC’s lead, TAHC sent a letter to the Department of Labor urging that agency to include all individuals providing home health, hospice and home care services in its definition of “health care providers.” 

Soon after, the DOL issued additional guidance specifying the following: 

Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?

For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. 

This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.

The National Association for Home Care and Hospice (NAHC) reported that the DOL’s interpretation probably, but not definitively, included most home care providers. 

"...the reference to “any similar institution, employer, or entity” combined with longstanding DOL classification of individuals providing personal care service in the home as health care workers results in the conclusion that home health agencies, personal care services companies, private duty nursing employers, and hospices are all within DOL’s exemption of a “home health care provider.” 

For example, the Department of Labor has long maintained within a health care worker category 31-1011 Home Health Aides:

Provide routine individualized healthcare such as changing bandages and dressing wounds, and applying topical medications to the elderly, convalescents, or persons with disabilities at the patient's home or in a care facility. Monitor or report changes in health status. May also provide personal care such as bathing, dressing, and grooming of patient.

Further support is found in the reference to a “retirement facility” distinct from a “nursing facility.” At most, a retirement facility provides personal care.

Finally, note also that the exemption goes beyond direct service employees and “includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities institutions to provide services or to maintain the operation of the facility.”

The state of New York challenged several provisions in the rule, including the DOL’s definition of “health care provider.”  Specifically, NY took issue with the DOL’s focus on health care employers rather than individual employees’ responsibilities.  Ultimately, the federal district court in New York agreed with the state and vacated the definition of “health care provider.”  The revised rules that were released on Friday, September 11^th were issued in response to the district court’s ruling.

How long will the FFCRA be in effect?

The FFCRA is set to “sunset” or expire on December 31, 2020.  It could be extended, but we don’t really expect that it will be.

Does the FFCRA apply to me? 

The FFCRA generally applies to private employees with fewer than 500 employees (as well as certain public employers).  Almost everyone you employ (i.e., even employees on leave and temporary employees) counts as an employee except independent contractors.

Additionally, there is a small business exception that says employers with fewer than 50 employees don’t have to provide FFCRA leave if doing so would jeopardize their sustainability.  In order to properly utilize the small business exception, the employer must be able to demonstrate one of the following:

1. The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;

1. The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or

1. There are no sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Do all of my employees qualify for FFCRA leave?

No, there are exceptions for each type of leave:

• For EPSL, all employees are eligible for the leave except health care providers or emergency responders.
• For Expanded FMLA leave, all employees that have been employed by the employer for at least 30 calendar days are eligible for leave unless they are health care providers or emergency responders.

What is the definition of health care provider?

The current definition of health care provider is:

Employees who are health care providers under 29 CFR 825.102 and 825.125,3 and other employees who are employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care.  See section 3 of DOL’s revised guidelines.

According to 29 CFR 825.102(2), a “healthcare provider” means:

(i) Podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the  State  and performing within the scope of their practice as defined under State  law;

(ii) Nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice under State  law and who are performing within the scope of their practice as defined under State  law;

(iii) Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts. Where an employee  or family member is receiving treatment from a Christian Science practitioner, an employee  may not object to any requirement from an employer  that the employee  or family member submit to examination (though not treatment) to obtain a second or third certification from a health care provider  other than a Christian Science practitioner except as otherwise provided under applicable State  or local law or collective bargaining agreement.

(iv) Any health care provider  from whom an employer  or the employer 's group health plan 's benefits manager will accept certification of the existence of a serious health condition  to substantiate a claim  for benefits; and

(v) A health care provider  listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.

(3) The phrase “authorized to practice in the State” as used in this section means that the provider must be authorized to diagnose and treat physical or mental health conditions.

Littler Law (a leading labor and employment law firm) is reporting that the following types of employees have been specifically identified as properly excludable from the FFCRA paid leave:

1. Nurses, nurse assistants, medical technicians and others directly providing diagnostic, preventive, treatment or other integrated services;
2. Employees providing such services “under the supervision, order, or direction of, or providing direct assistance to” a health care provider; and
3. Employees who are "otherwise integrated into and necessary to the provision of health care services," such as laboratory technicians who process test results necessary to diagnoses and treatment.

Before the DOL issued the revised regulation above, the applicable definition was that of the original FMLA language.  Because the federal court in NY invalidated the DOL’s original definition of “health care provider” which was provided in their first set of regulations implementing the FFCRA, the law treats such invalidation as if the regulation had never occurred, which means that from April 1^st through September 16^th, the applicable definition would have been the definition from 29 CFR 825.102(2) set out above.   

Which services fit the definition of diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care?

According to the DOL’s revised guidelines:

Diagnostic services include, for example, taking or processing samples, performing or assisting in the performance of x-rays or other diagnostic tests or procedures, and interpreting test or procedure results. These services are integrated and necessary because without their provision, patient diagnosis would be undermined and individuals would not get the needed care. To illustrate, a technician or nurse who physically performs an x-ray is providing a diagnostic service and therefore is a health care provider.

Preventive services include, for example, screenings, check-ups, and counseling to prevent illnesses, disease, or other health problems. As with diagnostic services, preventative services are integrated and necessary because they are an essential component of health care. For example, a nurse providing counseling on diabetes prevention or on managing stress would be providing preventative services and therefore would be a health care provider.

Treatment services include, for example, performing surgery or other invasive or physical interventions, administering or providing prescribed medication, and providing or assisting in breathing treatments.

Services which are integrated with and necessary to the provision of patient care, include, for example, bathing, dressing, hand feeding, taking vital signs, setting up medical equipment for procedures, and transporting patients and samples. These tasks must be integrated and necessary to the provision of patient care, which significantly limits this category.

What if I denied an employee FFCRA leave because I was relying on the DOL’s first set of regulations which defined “health care providers” more expansively than the FMLA?

Agencies that can prove they were acting upon legal advice and/or guidance in excluding certain workers as health care providers may have some protection.  You should consult with your attorney to determine your options.

What else should I know?

The Department of Labor’s Wage and Hour Division has released a poster that many legal experts are recommending employers should post now.  You can access the poster here .

Can I choose to provide the leave even if an impacted employee is a health care provider?

Yes.  And in some situations, it may be advisable that you do.  Please consult your personal attorney for agency-specific guidance.

What else do the new rules say?

• The rules reaffirm that EPSLA and EFMLEA leave may be taken only if the employer has work available from which an employee can take leave.
• The rules confirm that intermittent leave can only be taken with employer approval.
• The rules clarify a timeline for when an employee must provide notice of the need for leave and supporting documentation.

• Facilities located in a county with a positivity rate over less than 5% can test staff once a month.
• Facilities located in a county with a positivity rate greater than 5% and less than 10% can test staff once a week.
• Facilities located in a county with a positivity rate greater than 10% can test staff twice a week.

Last week, in an interim final rule, CMS announced that all Medicare-certified nursing homes would have to perform weekly testing of all staff and residents.  Although Tennessee already had a weekly testing requirement, there are differences between the CMS rule and Tennessee’s existing rule.  For example, in the QSO to the interim rule, CMS defined “facility staff” to include  employees, consultants, contractors, volunteers, and caregivers who provide care and services to residents on behalf of the facility, and even students in the facility’s nurse aide training program.  The Tennessee emergency rule, however, has been interpreted to exclude contracted providers, like hospice and home health staff.

In a call with the Tennessee Department of Health yesterday, September 2^nd, TDH confirmed that for now, until the CMS rule is successfully and fully implemented, nursing homes should comply with the Tennessee emergency rule.  TDH also assured TAHC that while TDH leadership is developing its implementation plan, there will be opportunities for collaboration and clarification on this rule. If you find, in your agency/organization’s review of the interim rule, that you have concerns or questions, please let us know so that we can notify TDH.

Yesterday, we received a notice of emergency rulemaking from TDH, and it appears from the agenda that the TDH is planning to waive the emergency rule establishing Tennessee’s testing program.  TAHC will be attending the meeting and making comments to the rulemaking as appropriate.  The meeting will occur by Webex on Tuesday, September 7^th.

On August 12, during a special session called by Governor Bill Lee, the state legislature passed SB 8003 / HB 8002 which requires health insurance entities to cover medically necessary telehealth and telemedicine services and to reimburse providers for those services with no distinction from an in-person visit.

While virtual meetings have been on a steady rise throughout all industries in the past few years, the response to the COVID-19 crisis brought telehealth and telemedicine to the forefront of agendas for many policymakers.

A bill with similar language failed to pass during the regular legislative session when the House of Representatives and Senate failed to agree on differing versions. Governor Lee announced that telemedicine was one of three issues to be considered in the June special session when he made the call amidst the backdrop of the COVID-19 pandemic.

Governor Lee issued an executive order in March urging insurance carriers to cover telemedicine, but it has since expired. On August 20, the bill became effective as Governor Lee signed it into law.

Telehealth: Payment Parity and Originating Site Fees

Prior to the passage of this legislation, insurance entities were already mandated to cover telehealth services in Tennessee. The bill amends current law and contains two key changes to the provider and payer relationship when patients engage in telehealth services.

First, health insurance entities are now required to “provide reimbursement for healthcare services provided during a telehealth encounter in a manner that is consistent with what the health insurance policy or contract provides for in-person encounters for the same service”.

Coverage and reimbursement are required if the telehealth services are “medically necessary” and are not simply emails or faxes.

The law requires that telehealth and in office visits be paid the same, or in other words, the law requires payment parity.  However, the bill contains a clause that repeals the reimbursement parity section on April 1, 2022. It is presumed the General Assembly will evaluate the success of the reimbursement model and address the end date during future legislative sessions in the next two years.

The second key change is a new mandate that health insurance entities reimburse an originating site hosting the patient as part of a telehealth encounter with an originating site fee.

The fee shall be in accordance with the federal centers for Medicare and Medicaid services telehealth services rule 42 C.F.R. § 410.78 and at an amount established prior to the effective date of this act by the federal centers for Medicare and Medicaid services.

Provider-Based Telemedicine

Another component of the legislation is the addition of the term “provider-based telemedicine” to the Tennessee code in a newly created section, T.C.A. § 56-7-1003.

Distinguished from telehealth, provider-based telemedicine allows patients to receive healthcare at any location “the patient deems appropriate to receive the healthcare service”. This provision puts into law what many patients are already doing -- engaging with providers through a personal computer, tablet, or phone from wherever is convenient.

Under the statute, health insurance entities must cover and reimburse providers for provider-based telemedicine services and pay at parity with an in-person visit. Provider-based telemedicine does not include audio-only conversations, emails, texts, faxes or remote patient monitoring. The law requires the provider to be at a qualified site other than the site where the patient is located and have access to the relevant medical record for that patient.

A qualified site is defined as “the primary or satellite office of a healthcare services provider, a hospital licensed under title 68, a facility recognized as a rural health clinic under federal medicare regulations, a federally qualified health center, a facility licensed under title 33, or any other location deemed acceptable by the health insurance entity”. The same definition is used for qualified site under the telehealth statute.

A pre-existing provider-patient relationship is required for coverage and reimbursement parity under the provider-based telemedicine statute. Providers must submit evidence to payers of an in-person encounter between the healthcare service provider, the healthcare services provider's practice group, or the healthcare system and the patient within sixteen (16) months prior to the interactive visit.

The bill also stipulates that the reimbursement parity of provider-based telemedicine is also repealed on April 1, 2022.

Broadening the Definition of “Healthcare Provider”

While most of the bill focused on changes to Title 56, one significant change was made to Title 63. In T.C.A. § 63-1-155 the definition of “healthcare provider” was expanded to now include any “individual acting within the scope of a valid license issued” under Title 63, as well as, “any alcohol and drug abuse counselor licensed under title 68, chapter 24, part 6”.

While the addition of alcohol and drug counselors is straight forward, many provider types benefited from a nuanced change in the code.

Previously the healthcare provider distinction was limited to those licensed in Title 63 who are authorized to diagnose and treat humans. The change to any “individual acting within the scope of a valid license” allows practitioners such as physical therapists, occupational therapists, speech therapists and others to engage in telehealth and telemedicine under the Tennessee code and affords them the reimbursement parity set forth in Title 56.

However, providers should take note that the new additions will be repealed from the “healthcare provider” definition in Title 63 on April 1, 2022.

What Services are Medically Necessary?

Health insurance entities must cover both telehealth and telemedicine services that are medically necessary and would be covered by the applicable health insurance policy if the same service had been delivered in-person.

For Medicaid patients, “medically necessary” is governed by TennCare’s standard found in T.C.A § 71-5- 144. TennCare recently announced that their MCO’s will be extending all current telehealth coverage policies through December 31, 2020.

For all other services, “medically necessary” means healthcare services that a healthcare professional would provide that are in accordance with accepted standards of practice, clinically appropriate, and not more costly that an alternative service as least as likely to produce equivalent results.

Conclusion

Virtual healthcare interactions are on the rise and have accelerated as patients and providers navigate the realities of the COVID-19 crisis. The new telehealth and telemedicine laws passed in Tennessee provide a framework for practitioners to operate in this new normal.

Providers should note that the coverage mandate for telehealth and telemedicine as well as the reimbursement parity only applies to commercial fully insured plans and cannot apply to ERISA plans. The Tennessee General Assembly will be observing the real-world application of these new laws as the reimbursement parity provisions have repeal dates in 2022.

EO 60 extends through September 30 provisions that allow for electronic government meetings; meaning, governing bodies, including boards, commissions, etc. may conduct their essential business by electronic means.

EO 61 permits through September 30 remote notarization and remote witnessing under certain conditions.

EO 59, the most robust of the three orders, extends Tennessee’s State of Emergency related to the COVID-19 crisis until September 30, 2020. This order facilitates ongoing regulatory flexibility to respond to COVID-19 and extends many health-care related provisions from previous Executive Orders until September 30, 2020. EO 59 does the following:

Social Distancing
• Employers shall not require or allow employees with COVID-19 to work.
• Persons are urged to wear face coverings in public place.
• Elderly-citizen and care-related facilities remain closed to visitors in most cases.

To-go and Delivery Alcohol Extended
• To encourage take-out and delivery dining, bars and restaurants can exclusively offer drive-thru, take-out, or delivery options. These establishments may sell alcohol by take-out or delivery (with the purchase of food) in closed containers to those who are age 21 and up.

Out-Of-State Health Care Providers
• Out-of-state health care providers may continue to practice in Tennessee if assisting in the medical response to COVID-19, including treating routine or other medical conditions. (Section 2)

Retired Medical Professionals
• Retired medical professionals who have been out of practice may continue to practice without the usual requirements. (Section 7.3)

Suspension of Continuing Education Requirements
• In-person and live continuing education requirements are suspended for health care professionals. (Section 7.4)

Laboratories
• Laboratory inspections are suspended to allow for immediate COVID-19 testing. (Section 7.5)
• Inspections of health care facilities are suspended. (Section 7.9)
• Inspections of medical laboratories are suspended. (Section 7.10)
• Degree holders in science fields may work as laboratory personnel under supervision. (Section 9)

Medical Laboratories
• Medical laboratory directors may monitor facilities remotely. (Section 9.1)
• Medical laboratory personnel may work remotely. (Section 9.3)
• Testing for COVID-19 may occur at more medical laboratories. (Section 11)

Dentistry
• Live human examinations are suspended for dentistry applicants. (Section 7.13)
Nursing Graduates
• Nursing graduates may practice under supervision without examination. (Section 7.16)

Pharmacists
• Pharmacists may process prescriptions remotely. (Section 8)
• Each pharmacist may supervise additional pharmacy technicians. (Section 8.1)

Telehealth Services
• The continued expansion of telemedicine access. (Section 38)
• Telehealth services may continue to be provided by any provider licensed under Title 63, regardless of the provider’s authority to diagnose. (Section 38.1)
• Licensed alcohol and drug abuse counselors may practice telemedicine. (Section 38.2)
• Pre-license, post-degree mental or behavioral health professionals may provide mental telehealth services under supervision. (Section 9.2)

Quarantine and Isolation Facilities
• Temporary quarantine and isolation facilities may be constructed. (Section 12)

Hospital Beds
• The number of hospital beds may be increased for COVID-19 patients without a certificate of need. (Section 10)
Mental Health and Substance Abuse Facilities
• Inspection of mental health and substance abuse facilities and services are suspended. (Section 33)

TennCare
• TennCare policies are adjusted to prevent coverage disruptions. (Section 34)
• TennCare may designate and reimburse certain nursing facilities, or units within certain nursing facilities, as “COVID-19 Skilled Nursing Facilities/Units”. (Section 34.1)
• TennCare may implement additional acuity-based payments for Medicaid members in nursing facilities designated as “COVID-19 Skilled Nursing Facilities/Units”. (Section 34.2)

Unless expressly stated in this Executive Order No. 59, all other provisions of Executive Order No. 36 are presumed to have expired. We will continue to monitor this issue for updates.

The full text of Executive Order 59 can be found at: https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee59.pdf 

On August 17, 2020, Governor Bill Lee signed into law the Tennessee COVID-19 Recovery Act, limiting the types of legal claims arising from COVID-19 that may be asserted and raising pleading standards for those claims that are permitted. The state legislature had passed this bill six days earlier during a special session called by Governor Lee.

The Act broadly protects “persons”—individuals and legal entities, including businesses, hospitals, schools, non-profits, and religious institutions—from claims “arising from COVID-19” unless the claimant can prove by clear and convincing evidence the defendant-person’s gross negligence or willful misconduct.

The original bill failed to pass during the 111th General Assembly this past June, primarily due to disagreement in the House over a retroactivity clause that would have applied these limitations to claims beginning on March 6, 2020. The retroactivity provision was amended in the final version passed this week, along with other changes but ultimately providing protections for entities and persons from simple negligence COVID lawsuits.

When Do Limitations on Claims Begin (and End)?
The Act applies to all claims arising from COVID-19 without any express time limitations, except where any of the following occurred “on or before August 3, 2020”: (1) where a complaint or civil warrant had already been filed; (2) for claims under the Tennessee Claims Commission Act where the required pre-suit notice of the claim had already been given; and (3) for claims under the Tennessee Health Care Liability Act where the pre-suit notice requirements had already been satisfied. The significance of August 3, 2020 is that the date in which Governor Lee publicly called for a special session and announced the intent of the state to pass legislation to limit claims arising from COVID-19.

Moreover, the Act only runs until July 1, 2022, but continues to apply to any loss, illness, injury, or death occurring before then to which none of the above three exceptions apply. Put another way, if the virus is still here after July 1, 2022, and a claim “arises from COVID-19,” that claim would not fall under the Act. Of course, practically speaking, future legislation could extend the period of the Act’s applicability.

Notably, while the bill initially failed due to its proposed retroactivity dating back to March 2020, the final version of the Act removed all-time limitations whatsoever, except for the three specific instances listed above (so long as they occurred on or before August 3, 2020). Given that the statute’s language does not explicitly bar retroactive application of the Act, there is the possibility that plaintiffs may challenge the Act’s constitutionality, and future litigants should be mindful of these potential retroactivity considerations.

Which Types of Claims Are Permitted?
The central provision of the Act provides that “notwithstanding any law to the contrary, there is no claim against any person for loss, damage, injury, or death arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.” Tenn. Code Ann. 29-34-802(b).

This clause eliminates plaintiffs’ ability to assert basic negligence claims arising from COVID-19 and only permits claims in situations of “gross negligence or willful misconduct.”
Furthermore, the Act expressly provides that it does not (1) create a cause of action; (2) eliminate a required element of any existing cause of action; (3) affect workers' compensation claims; or (4) amend, repeal, alter, or affect any immunity, defense, limitation of liability, or procedure available or required under law or contract.

The Act also applies to broad range of claims, explicitly any “arising from COVID-19.” As discussed below, the Act includes a heightened pleading standard for claims “based on exposure to or contraction of COVID-19,” which means that the Act covers claims that include those not specifically arising from exposure to the virus. Such claims could include, for example, where a hospital changes protocols (say, pre-operation procedures) based upon COVID-19 and that change results in injury to a patient.

Heightened Pleading Standards
For all claims under the Act, “the claimant must file a verified complaint pleading specific facts with particularity.” These pleading requirements are stricter than those for ordinary negligence claims in two fundamental ways:

(1) by requiring that the complaint be verified (in other words, sworn) and

(2) by implementing a heightened pleading standard, analogous to the “particularity” required of pleadings for fraud claims in accordance with Tennessee Rule of Civil Procedure 9.02.

In contrast, basic negligence claims do not require a verified complaint and only need a “short and plain statement of the claim” under Rule 8.01.

Furthermore, for claims “arising from COVID-19” that are specifically “based on exposure to or contraction of COVID-19,” the claimant must additionally file a certificate of good faith stating as follows:
1. The claimant or claimant's counsel has consulted with a physician duly licensed to practice in the state or a contiguous bordering state;
2. The physician has provided a signed written statement that the physician is competent to express an opinion on exposure to or contraction of COVID-19; and
3. Upon information and belief, the physician believes that the alleged loss, damage, injury, or death was caused by an alleged act or omission of the defendant(s).

Failure to comply with these heightened pleading requirements comes with a hefty price tag. A claimant’s failure to satisfy any of these mandates subjects his or her legal action to dismissal with prejudice.

While numerous COVID-19 lawsuits have already been and continue to be filed, no one can predict to what degree the Tennessee COVID-19 Recovery Act will prevent future suits from being brought, particularly given the rapidly evolving nature of the pandemic and businesses’ and individuals’ responses to it. However, would-be litigants would be wise to follow future cases filed under the Act and courts’ interpretations of it.

Governor Lee’s proclamation allows for only three issues to be addressed by the General Assembly when they convene on August 10^th. The General Assembly is permitted to consider legislation that:

Please see attached the press release issued by the Lee Administration and the Special Session Proclamation.

This content provided by our Butler Snow lobbying team. 

On July 1, 2020, Governor Bill Lee issued Executive Order 53 which provides limited COVID-related liability protection for health care providers. Executive Order 53 is effective as of July 2, 2020 and will remain in effect until July 31, 2020 unless extended.

In summary, Executive Order 53:

• Grants limited liability protection to all health care providers licensed, certified, or authorized under titles 33, 63, or 68 of the Tennessee Code.

• Such health care providers will not be held liable for any illness, injury, death or damages related to the contraction of, or suspected contraction of COVID-19 alleged to have been caused within the limits of the provider’s license, certification, registration, or authorization.

• Limited liability protection includes but is not limited to acts or omissions resulting from lack of resources attributable to or arising out of the provider’s response to COVID-19 that renders the health care provider unable to provide the level of care or services that would otherwise be required in the absence of the COVID-19 pandemic.

• This protection does not include any act or omission caused by gross negligence or willful misconduct.

The full text of Executive Order No. 53 can be found at https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee53.pdf.

After weeks of discussion and deliberation, the Department of Health has agreed to reimburse the cost of testing home health and hospice providers that enter nursing home facilities to provide care to residents. 

TAHC made the request following implementation of an emergency rule that requires nursing homes to test all staff and residents by July 1st, 2020 and then weekly thereafter.  The Department of Health had previously agreed to reimburse nursing homes for testing of its staff and residents, then, by emergency rule, the Department defined "staff" to include contracted providers. 

After some nursing homes declined to test contracted providers because of the possibility that the free testing had value which was violative of the anti-kickback statutes, TAHC brought this issue to the Department's attention along with two possible solutions for consideration: 1) clarify that home health and hospice providers were nursing home staff for the purposes of the emergency rule and should be included in nursing homes' testing of staff and residents; or 2) provide independent testing of providers. 

After several weeks of deliberation, the Department of Health clarified via updates to their LTCF FAQ, that the emergency rule requiring weekly testing was not intended to apply to contracted providers employed by other entities (for example, nurses who are employed by a hospice organization).  While nursing homes have the option to require their contracted providers to test their employees weekly, the emergency rule does not require it.  However, because the Department strongly encourages weekly testing of all providers entering a nursing home facility to provide care to residents, they have agreed to reimburse contracted home health and hospice providers for weekly testing. 

In section 7 of the Revised LTCF Testing FAQ, the Department clarified: 

Tenn. Comp. R. & Regs. 1200-08-06-.06(j)(3) defines “Staff” or “Staff member” means an employee or any individual who contracts with the nursing home to provide resident care. The purpose of the rule is to ensure that reasonable measures are put in place to ensure testing of individuals providing direct care to residents, but the intent was not to require nursing homes to exercise control over the agents of other entities. The phrase “any individual who contracts with the facility to provide resident care” is interpreted to refer to those persons who are serving in the role of a full-time employee of the facility, but are doing so through a contractual relationship, rather than through actually being employed by the nursing home. One example of this includes, but is not limited to, agency staff and therapists.

However, the rule is not interpreted to extend to every individual providing direct care to a resident. A person must be tested every seven days if they are: 1) an employee, or 2) a contractor who is functioning in the capacity of a full-time employee. While the purpose of the rule is to ensure that reasonable measures are put in place to require testing of individuals providing direct care to residents, the intent was not to require nursing homes to exercise control over the agents of other entities, or to be obligated to test another entity’s employees. Therefore, if an individual provides services to residents, but is employed by another entity, they are not within the scope of individuals required to be tested every seven days. This would include, for example, home health agency employees, hospice employees, podiatrists, dentists, x-ray technicians, respiratory therapists, patient transport, EMTs, and contracted housekeeping personnel.

It is strongly recommended that all individuals providing care to nursing home residents are tested regularly, however. A nursing home can require those individuals or their employers to arrange for testing, rather than having the facility do it. To facilitate testing that is as comprehensive as possible, the Department will reimburse the cost of testing of an individual who is contracted with the facility when that testing is done through an approved laboratory provider. The reimbursement process is the same as it is reimbursed for the nursing home. Any individual can also be tested at community testing sites.

In discussions with the Department, it was further clarified that weekly testing is required, not proof of a negative test result each week.  The Department is aware that testing capacity may be strained and some delays already exist.  Sections 9 and 10 of the FAQ address testing specifics.  

In order to be reimbursed, providers must use a state approved laboratory for testing.  The Department has provided TAHC with two lists of test sites.  These lists should be consolidated soon. 

Test sites 1 (registered in Edison)

Test sites 2 (public-facing document)