Under the Tennessee Price-Gouging Act of 2002, a person is prohibited from charging a price for goods and services enumerated in items (1)-(8) that is grossly in excess of the price generally charged for the same or similar goods or services in the usual course of business upon the declaration of an abnormal economic disruption by the governor by proclamation or executive order, and continuing for a maximum of 15 days, unless extended by a subsequent declaration in any county or municipality covered by the abnormal economic disruption.
(1) Consumer food items;
(2) Repair or construction services;
(3) Emergency supplies;
(4) Medical supplies;
(5) Building materials;
(7) Transportation, freight, and storage services; or
This bill amends items (1)-(8) by prohibiting temporary healthcare staffing agencies from charging healthcare facilities a price for temporary healthcare staffing that is grossly in excess of the price generally charged for the same or similar services in the usual course of business upon the declaration of an abnormal economic disruption by the governor by proclamation or executive order, and continuing for a maximum of 15 days, unless extended by a subsequent declaration in any county or municipality covered by the abnormal economic disruption. This prohibition does not apply to an individual who only engages, on the individual’s own, to provide that individual’s services on a temporary basis to healthcare facilities as an employee or contractor.
ON APRIL 18, 2023, THE SENATE ADOPTED AMENDMENT #2 AND PASSED SENATE BILL 702, AS AMENDED.
AMENDMENT #2 rewrites this bill to place requirements for registration of a temporary healthcare staffing agency, as described below.
REQUIREMENT FOR REGISTRATION
For purposes of this bill, a "temporary healthcare staffing agency" ("agency") means a person, or other business entity engaged in whole or in part in the business of providing or procuring temporary employment in healthcare facilities for direct care staff, any individual who contracts with or is employed by an agency to provide direct care services to residents or patients in a healthcare facility; or that operates a digital website or digital smartphone application that facilitates the provision of the engagement of direct care staff and accepts requests from healthcare facilities for direct care staff through its digital website or digital smartphone application. However, this amendment clarifies that the term does not include an individual who engages, only on the individual’s own behalf, to provide the individual’s services on a temporary basis to a healthcare facility without the use or involvement of an agency; or an agency operated by a hospital, assisted-care living facility, or nursing home as those terms by this amendment, or an affiliate of a hospital, assisted-care living facility, or nursing home, if the purpose of the agency is solely procuring, furnishing, or referring temporary or permanent direct care staff employment at that healthcare provider, or any affiliates under common ownership.
For the purposes of this bill, "direct care staff" covers an individual who is a medication aide, medication technician, certified nursing assistant, licensed practical nurse, or registered nurse and contracts with or is employed by a temporary healthcare staffing agency to provide direct care services to residents or patients in a healthcare facility. However, this does not include an individual who is engaged in the practice of medicine and surgery or osteopathic medicine and surgery and who is licensed statutorily; or the practice of nursing by a certified nurse practitioner or an advanced practice registered nurse certified or registered.
This amendment provides that an agency must not be operated, maintained, or advertised in this state without registering with the health facilities commission ("commission"). Each separate location of an agency is required to register and obtain a separate registration.
In addition, each application to operate an agency must be made on forms adopted by the commission. The commission is required to promulgate rules to establish the application process for agency registration. The application must include the following:
(1) The names and addresses of any controlling person;
(2) The names and addresses of any owner who does not meet the definition of a controlling person. If the owner is a corporation, then the application must include copies of the corporation’s articles of incorporation and current bylaws, and the names and addresses of its officers and directors;
(3) The names and addresses of the person or people under whose management or supervision the temporary healthcare staffing agency will be operated;
(4) Satisfactory proof that the temporary healthcare staffing agency will maintain compliance with this bill;
(5) A policy and procedure that describes how the temporary healthcare staffing agency’s records will be immediately available to the commission upon request; and
(6) Any other relevant information that the commission determines is necessary to properly evaluate an application for registration.
The commission may establish a registration fee in an amount sufficient to fund the projected costs of administering registration of agencies, but in no case may such fee exceed $5,000. The commission must deny any application for an agency registration for failure to provide the information required by this bill. A registration issued by the commission to an agency is effective for a period of one year from the date of its issuance unless the registration is revoked for noncompliance with this bill. If a controlling person changes, the agency is sold, or management is transferred, then the registration of the agency is voided and the new controlling person, owner, or manager may apply for a new registration.
MINIMUM REQUIREMENTS AND RECORD RETENTION
The amendment requires an agency to do the following:
(1) Retain documentation that each direct care staff contracted with or employed by the agency meets all licensing, certification, training, and continuing education standards for the position in which the direct care staff will be working, in compliance with any federal, state, or local requirements;
(2) In response to a request by a healthcare facility to whom direct care staff are supplied to work, provide documentation that each direct care staff meets the requirements in (1);
(3) Comply with all pertinent requirements relating to the health and other qualifications of personnel employed in a healthcare facility;
(4) Carry an employee dishonesty bond in an amount of no less than $10,000 per occurrence;
(5) Maintain coverage for workers' compensation for all direct care staff; and
(6) Retain all records for five calendar years and make all records immediately available to the commission upon request.
This amendment also provides that an agency must provide any records, unless otherwise privileged, pertinent to an investigation conducted by a representative of adult protective services actively involved in the conduct of an investigation; the department of health or its representatives, designees, or employees under this bill, in the same manner that a healthcare provider must make records available; the health facilities commission if related to a violation of this bill or any law or regulation of the board for licensing healthcare facilities relating to a healthcare facility with which the agency contracts; and any law enforcement agency conducting a criminal investigation including, but not limited to, the Medicaid fraud control unit.
This amendment also clarifies that no later than December 31, 2023, an agency presently doing business in Tennessee must provide notice to the health facilities commission identifying its business entity and any controlling person.
PROHIBITED CONTRACTUAL PROVISIONS
This amendment prohibits an agency from doing the following:
(1) Restricting in any manner the employment opportunities of any direct care staff that is contracted with or employed by the agency;
(2) Requiring the payment of liquidated damages, employment fees, or other compensation in any contract with direct care staff or a healthcare facility, if the direct care staff is hired as a permanent employee of the healthcare facility; or
(3) Soliciting or recruiting the current staff of a healthcare facility, or require, as a condition of employment, assignment, or referral, that the agency direct care staff recruit new employees for the agency from among the current employees of the healthcare facility to which the agency direct care staff are employed, assigned, or referred.
In addition, this amendment clarifies that any provision of a contract between an agency and either direct care staff or a healthcare facility that violates this bill is void.
This amendment prohibits a person from charging any other person a price for goods or services that is grossly in excess of the price generally charged for the same or similar goods or services in the usual course of business of temporary healthcare staffing provided by an agency as defined above, during a governor’s declaration or executive order of abnormal economic disruption and continuing for a maximum of 15 calendar days.
This amendment further requires that the commission to promulgate rules to establish requirements for temporary healthcare staffing agencies to submit biannual reports, which must include, but are not limited to the following:
(1) The name, professional licensure or certification, and assigned healthcare facility for each direct care staff;
(2) The length of time the direct care staff has been assigned to each healthcare facility and the total hours worked;
(3) A detailed listing of the average amount charged during each reporting period to a healthcare facility for each category of direct care staff providing services to the healthcare facility;
(4) A detailed listing of the average amount paid during each reporting period to direct care staff for their services for each category of direct care staff providing services to the healthcare facility;
(5) The agency's certification that each direct care staff contracted to a healthcare facility during the reporting period had a current, unrestricted license or certification in good standing and met the training and continuing education standards for the position with the healthcare facility throughout the entirety of the reporting period; and
(6) The agency's certification that each direct care staff contracted to a healthcare facility had successfully completed all background and abuse registry checks required by federal and state law and rule relating to the position and healthcare facility in which the direct care staff was placed or assigned during the reporting period.
The biannual reports are considered proprietary information that is confidential and not subject to public inspections. However, the commission must annually prepare reports of aggregate data that does not identify any data specific to an agency.
This amendment requires the commission to revoke the registration of an agency that knowingly provides to a healthcare facility a direct care staff with an illegally or fraudulently obtained or issued diploma, registration, license, certificate, criminal records check, or other item required for employment by a healthcare facility. The commission must also immediately notify the agency that its registration will be revoked in 30 days.
This amendment also prohibits the commission from issuing or renewing an agency registration if a controlling person’s registration has been revoked due to noncompliance with requirements in this bill within five years from the date of nonrenewal or revocation.
If an agency fails to comply with the reporting requirements enumerated above, then the commission must assess a penalty of $100.00 for each day such agency is not in compliance. The commission is permitted to waive, in whole or in part, any penalty upon a determination that there is good cause for such a waiver. In addition, the commission may suspend or revoke the registration of, or impose a fine not to exceed $5,000 per violation, against any temporary healthcare staffing agency that fails to comply with this bill or the commission's rules.
An agency may request a contested case hearing to appeal a denial of an appeal a denial of an application for registration, revocation of registration, or an imposed monetary penalty. This amendment specifies that the contested case hearing initiated pursuant to this bill must be heard by an administrative law judge sitting alone. Petitions for contested cases received by the commission must be forwarded immediately to the administrative division of the secretary of state’s office for assignment to an administrative law judge. Under this amendment, judicial review of the executive director’s final order in a contested case is as provided by law.
DISCIPLINARY PROCEEDINGS, PAYMENT OF INVESTIGATION AND PROSECUTION COSTS
This amendment provides that, if the commission imposes sanctions on an agency following a disciplinary proceeding, then the commission may require the agency to pay the actual and reasonable costs of the investigation and prosecution of the disciplinary proceeding. However, this amendment clarifies that the commission must include in any order in which the payment of costs has been assessed, an amount that is the maximum amount owed by the agency at the time the order is entered. Prior to the expiration of 60 days from the effective date of the order, the commission must send to the agency, by certified mail, return receipt requested, and by regular United States mail, a final costs assessment that does not exceed the maximum amount in the order. All fines, costs, and registration fees paid to the commission under this bill remain with the commission, and must be used to fund the projected costs of administering the registration of temporary healthcare staffing agencies.
The executive director of the health facilities commission is authorized under this amendment to promulgate rules to effectuate this bill no later than September 1, 2023.
This amendment's provisions regarding the requirements for registration, the biannual reports, penalties, and disciplinary proceedings take effect July 1, 2024. However, the provisions concerning rulemaking and all other provisions take effect upon this bill becoming a law.Statutes affected:
Introduced: 47-18-5102, 47-18-5103(a)(1), 47-18-5103
Amended with SA0455 -- 04/18/2023: 47-18-5102, 47-18-5103(a)(1), 47-18-5103