ON APRIL 17, 2024, THE SENATE ADOPTED AMENDMENT #2 AND PASSED SENATE BILL 2022, AS AMENDED.
AMENDMENT #2 rewrites the bill as follows:
PERSONAL INFORMATION OF HEALTH FACILITIES COMMISSION PERSONNEL
(1) Establishes that the home addresses, telephone numbers, dates of birth, and photographs of current or former personnel of the health facilities commission ("commission") or board for licensing healthcare facilities ("board") whose duties include the investigation of complaints filed against healthcare facilities, or the inspection of healthcare facilities licensed or certified by the health facilities commission or the board for licensing healthcare facilities, as well as the names, home addresses, telephone numbers, dates of birth, and places of employment of the spouses and children of such personnel, including the names and locations of schools and day care facilities attended by the children of such personnel are not a public record open to inspection and are exempt from public disclosure pursuant to state public records law;
CONTESTED CASES
(2) Requires that contested cases in which a facility or licensee is subject to suspension of admissions by the executive director of the commission ("executive director") be conducted according to the Uniform Administrative Procedures Act and heard within 30 calendar days of the commission's filing of a notice of hearing, unless otherwise agreed to by both parties;
(3) Requires that an order in all cases contesting a suspension of admissions be issued within 20 working days after the receipt of the trial transcript and proposed findings of fact and conclusions of law, regardless of whether the hearing is conducted before the board or an administrative judge. The order must determine whether the suspension of admissions was initially valid and whether conditions at the facility or licensee continue to be detrimental to the health, safety, or welfare of a patient or resident to justify the continuation of the suspension of admissions if not previously lifted;
DEFICIENT NURSING HOMES
(4) Removes a state law provision relative to filing of documents, dismissal, and reinstatement of proceedings for deficient nursing homes;
(5) Within 10 working days after the nursing home's actual receipt of either the commission's detailed statement of the type of penalty required state law, or the executive director's order suspending admissions to the nursing home and assessing a type A penalty, requires the nursing home to either pay the penalty assessed or file with the commission an answer, demanding a contested case hearing;
(6) Should the nursing home fail to answer or to demand a hearing within five working days of its actual receipt of the commission's notice, requires that it be deemed to have waived its right to a hearing, and the civil penalty assessed must then be due and payable;
(7) If a contested case is demanded after a nursing home is assessed a civil penalty, requires the commission to file a notice of hearing with the administrative procedures division of the office of the secretary of state within seven working days of the nursing home's demand. All documents assessing civil penalties that have been appealed by the facility as a part of the contested case must be filed with the notice of hearing;
(8) Requires the hearing to be conducted within 30 calendar days of the commission's filing of a notice of hearing, unless otherwise agreed to by both parties;
(9) Requires the hearing to be conducted within 30 calendar days of the commission's filing of a notice of hearing, unless otherwise agreed to by both parties. If an initial order is to be drafted by an administrative law judge sitting alone, the initial order must be issued within 20 working days after the receipt of the trial transcript and proposed findings of fact and conclusions of law;
(10) Upon agreement of the nursing home and the commission, authorizes the challenge to a suspension of admission or civil penalty imposed by the commission to be submitted to a screening panel. The decision to participate in a screening panel does not affect another challenge filed by the nursing home, or preclude the nursing home from filing such appeal if done timely under the relevant law;
(11) Within five working days after concluding the inspection or investigation, authorizes the executive director to initiate type A civil penalty proceedings by mailing a notice to the facility, stating the executive director's decision to suspend the admissions of new patients;
(12) Within 10 working days after concluding the inspection or investigation, requires the commission to mail to the nursing home the executive director's order, which must detail the alleged facts and pertinent law with particularity, and must also inform the nursing home of its right to contest the action;
(13) If any nursing home exercises its right to a hearing in contest of both the assessment of a type A civil penalty and the suspension of admissions, requires that the matters be consolidated for hearing before an administrative judge;
DUTIES OF EXECUTIVE DIRECTOR
(14) Requires the executive director to promulgate rules;
POWERS AND DUTIES OF COMMISSION - ACTIONS
(15) Requires the commission to direct the executive director to promulgate rules and policies for fulfillment of its duties and responsibilities under the Tennessee Health Services and Planning Act of 2021;
(16) Establishes that an action of the commission is not effective unless the action is concurred in by a majority of commission members present and voting;
(17) Establishes that for purposes of contested case hearings and disciplinary matters other than a suspension or revocation, five or more members constitute a quorum, and the commission chairperson is authorized, when it is deemed necessary, to split the commission into panels of five or more members each to conduct contested case hearings or disciplinary matters. A majority vote of the members present on a duly constituted disciplinary panel is required to authorize commission action in disciplinary matters and contested case hearings;
(18) Requires that any matter where summary suspension of a license is sought be heard by a panel of seven or more members. A majority vote of the members present is required to authorize the summary suspension of a license;
(19) Requires that a license revocation be heard by a majority of appointed members of the commission, not including vacant positions. A majority vote of the members present is required to authorize the revocation of a license;
(20) Establishes that the decision of a disciplinary panel is a final order;
(21) Authorizes either party to a contested case hearing or disciplinary matter heard by a disciplinary panel to appeal the panel's decision consistent with the Uniform Administrative Procedures Act;
(22) Authorizes a disciplinary panel to be convened electronically;
BOARD OF EXAMINERS FOR NURSING HOME ADMINISTRATORS
(23) Requires that one member of the board be the executive director of the commission; and
(24) Requires that one member of the board be the commissioner of health, or the commissioner's designee, who must serve as the executive officer of the board;
(25) Removes present law requiring that the commissioner of health or the commissioner's designated representative serve as an ex officio member and as the executive officer of the board;
QUALIFICATIONS FOR EMPLOYMENT OF SURGICAL TECHNOLOGISTS
(26) Requires an individual employed as a surgical technologist to meet one or more of the following requirements:
(A) Successfully completed a nationally accredited surgical technology program, and holds and maintains certification as a surgical technologist from a national certifying body that certifies surgical technologists and is recognized by the commission;
(B) Successfully completed an accredited surgical technologist program;
(C) Has not, as of the date of hire, obtained certification as a surgical technologist from a national certifying body that certifies surgical technologists and is recognized by the commission;
(D) Obtains such certification no later than 18 months after completion of the program;
(E) Performed surgical technology services as a surgical technologist in a healthcare facility on or before May 21, 2007, and has been designated by the healthcare facility as being competent to perform surgical technology services based on prior experience or specialized training validated by competency in current practice. The healthcare facility employing or retaining such person as a surgical technologist under this (E) obtains proof of such person's prior experience, specialized training, and current continuing competency as a surgical technologist and makes the proof available to the health facilities commission upon request of the commission; or
(F) Successfully completed a training program for surgical technology in the armed forces of the United States, the national guard, or the United States public health service.
(27) Establishes that the provisions under this heading do not prohibit a person from performing surgical technology services if the person is acting within the scope of the person's license, certification, registration, permit, or designation, or is a student or intern under the direct supervision of a healthcare provider;
(28) Establishes that a student who completed a surgical technology program that was in the process of becoming accredited on July 1, 2006, is considered a graduate of the accredited program;
(29) Requires a person qualified to be employed as a surgical technologist to complete 15 hours of continuing education or contact hours annually to remain qualified for employment and to submit verification of having completed such continuing education or contact hours requirements to the person's employer. The submission of current certification recognized by the health facilities commission satisfies the requirements of this (22);
(30) Establishes that qualifications listed under this heading and alternative qualifications listed in state law do not constitute a requirement to be assessed during an inspection under state law relative to regulation of health and related facilities;
(31) Authorizes the commission to promulgate rules, including emergency rules, to effectuate the provisions under this heading;
(32) In adopting rules, authorizes the commission to, in the commission's discretion, adopt in whole or in part by reference, nationally or regionally accredited surgical technology programs. The commission must maintain a list of approved accredited surgical technology programs;
LICENSING AND REGULATION OF HEALTH FACILITIES BY COMMISSION
(33) Prohibits fees collected under state law relative to health facility licensing and regulation from reverting to the general fund on any June 30, but must remain available for expenditure in subsequent fiscal years. These funds may be expended for operating expenses of the commission as authorized in the annual appropriations act;
INDEPENDENT INFORMAL DISPUTE RESOLUTION (IIDR) PROGRAM
(34) Requires the commission to establish an IIDR program that conforms to the requirements described under this heading;
(35) If a nursing home is entitled to an informal dispute under federal regulations, or pursuant to state law if cited for a licensure deficiency, authorizes the nursing home to request an opportunity for IIDR;
(36) Requires the IIDR program to contain, at a minimum, the following elements:
(A) The commission must contract with an independent review organization to conduct the IIDR process for nursing homes; and
(B) Any independent review organization contracted with must (i) have an understanding of medicare and medicaid program requirements; (ii) have no conflict of interest; and (iii) be acceptable to the federal centers for medicare and medicaid services (CMS) and meet the requirements of any federal rules regarding IIDR entities;
(37) Requires the IIDR process to consist of the following steps:
(A) A statement of deficiencies issued by the commission that must include or be accompanied by notification of the availability of and an explanation of the IIDR process;
(B) Within 10 working days of the notification of civil monetary penalties imposed by CMS that will be placed in a CMS escrow account, or the notification of the imposition of any other remedy for which IIDR is provided under federal or state law or rule, the nursing home may request in writing an IIDR conference;
(C) The commission may only require that the nursing home's request:
(i) Be in writing and transmitted either by U.S. mail, common carrier, or by electronic means;
(ii) Identify the deficiencies that are being contested through IIDR;
(iii) Explain why the nursing home believes the deficiencies are not correctly cited;
(iv) Identify any involved resident and that resident's representative, if any; and
(v) Explain the manner in which the nursing home wishes to conduct the IIDR conference, which is limited to (a) a desk review of written information submitted by the nursing home; (b) a telephonic conference; or (c) an internet-facilitated meeting or videoconference, if the nursing home can facilitate the availability of technology for such meeting;
(D) Within five working days of receipt of the written request for the IIDR process made by a nursing home, the commission must refer the request to the independent review organization contracted with the commission;
(E) The commission must acknowledge in writing to the nursing home that the request for independent review has been received and forwarded to the independent review organization for review. The notice must include the name, address, and contact information of the independent review organization;
(F) The nursing home may submit any additional nursing home records, information, exhibits, or other documentation to support its argument without a page limitation. All documentation must be received by the independent review organization no later than two working days prior to the IIDR conference, and may be transmitted in electronic format;
(G) The independent review organization must hold an IIDR conference no later than 15)working days after receipt of the written request for the IIDR process made by a nursing home, unless the nursing home requests additional time to schedule the conference;
(H) If the independent review organization determines the need for additional information, clarification, or discussion after conclusion of the IIDR conference, then the nursing home must present the requested information as soon as possible, but no later than five working days of receipt of the request;
(I) Within 10 calendar days of the IIDR conference, the independent review organization must provide and make an IIDR recommendation, based upon the facts and information presented, and must transmit a written decision to the commission;
(J) If additional information was requested and submitted after conclusion of the IIDR conference, the independent review organization has an additional five calendar days to make a determination; and
(K) The IIDR recommendation must include, at a minimum: (i) a list of each disputed deficiency or survey finding; (ii) a summary of the IIDR recommendation for each deficiency or finding and the rationale for the recommendation; (iii) any documents submitted by the nursing home; and (iv) any comments submitted;
(38) Requires the commission to provide a final decision to the facility as soon as practicable, but no later than 10 calendar days after its receipt of the written record. The final IIDR decision to the facility must contain the result for each deficiency challenged and a brief summary of the rationale for that result;
(39) If the independent review organization or the commission upon review of a written decision, determines that the original statement of deficiencies should be changed as a result of the IIDR process, requires the commission to transmit a revised statement of deficiencies to the nursing home within 10 calendar days of the independent review organization's determination. The nursing home must have an additional 10 calendar days from the receipt of the revised statement of deficiencies to submit a revised plan to correct any remaining deficiencies;
(40) Establishes that use of the IIDR process by a nursing home does not waive the nursing home's right to any formal hearing or other appeal process afforded by law or rule. The IIDR is not a formal evidentiary proceeding;
(41) No later than December 1st of each year, requires the commission to submit a report on the IIDR process to the chair of the health and welfare committee of the senate, the health committee of the house of representatives, and the legislative librarian, and publish the report on its website in a manner accessible to the public. The report must contain, at a minimum: (i) the number of IIDR conferences requested and conducted; (ii) the number of deficiencies contested through the IIDR process; (iii) the number of deficiencies sustained in IIDR conferences; (iv) the number of deficiencies overturned in IIDR conferences; (v) the number of deficiencies modified or changed in IIDR conferences; and (vi) to the extent possible, the number of civil monetary penalties reduced by IIDR results where the facility overturned one or more deficiencies;
ASSISTED-CARE LIVING TRUST FUND ("ALCF")
(42) Requires the executive director to establish and maintain an assisted-care living facility trust fund known as the ACLF quality improvement fund. The ACLF quality improvement fund must be created by the deposit of all civil monetary penalties collected from assisted-care living facilities under this part. Funds deposited in the ACLF quality improvement fund must be used solely for the support of assisted-care living facility residents;
(43) Establishes that the ACLF quality improvement fund is administered by a panel of at least seven and no more than 11 individuals;
(44) Requires that at least 75 percent of the panel be employees of an assisted-care living facility or an entity affiliated with an assisted-care living facility;
(45) Requires the executive director to select and nominate individuals for the panel in consultation with the Tennessee center for assisted living, LeadingAge Tennessee, and Argentum;
(46) Requires that panel members nominated by the executive director be ratified by the commission at the next scheduled commission meeting;
(47) Requires the executive director and the panel to jointly create a formal process to allow licensed assisted-care living facilities and providers of services to assisted-care living facility residents to apply for funds from the ACLF quality improvement fund for one-time projects designed to improve care to residents of such facilities;
(48) Requires a project recommended for funding by the panel to be approved by the commission at the next scheduled commission meeting.
(49) Requires the executive director to