ON APRIL 3, 2023, THE SENATE ADOPTED AMENDMENTS #2 AND #1 AND PASSED SENATE BILL 858, AS AMENDED.
AMENDMENT #2 removes the provisions of amendment 1 that revised present law concerning the powers and authority granted generally to the health facilities commission and, instead, adds that:
(1) The commission may license, for purposes of providing acute care services, a facility that is additionally licensed by the department of mental health and substance abuse services;
(2) The commission may promulgate rules to govern the process of licensing, for purposes of providing acute care services, a facility that is or may become additionally licensed by the department of mental health and substance abuse services and that is not otherwise exempt from licensing under the laws of this state or federal law;
(3) The commission must consult with the department of mental health and substance abuse services when promulgating rules described in (2) above;
(4) (1)-(3) above do not alter or preclude the requirement that a facility, not otherwise exempt, obtain licensure from the department of mental health and substance abuse services; and
(5) The board for licensing health care facilities is authorized to promulgate rules governing the designation of rural emergency hospitals in a manner consistent with the federal regulations of the federal centers for medicare and medicaid services.
AMENDMENT #1 rewrites this bill to establish regulations regarding the licensing and regulating of certain medically related facilities.
HEALTH FACILIITIES COMMISSION
Present law provides that the commission is empowered to license and regulate hospitals, recuperation centers, nursing homes, homes for the aged, residential HIV supportive living facilities, assisted-care facilities, home care organizations, residential hospices, birthing centers, prescribed child care centers, renal dialysis clinics, ambulatory surgical treatment centers, outpatient diagnostic centers, adult care homes, and traumatic brain injury residential homes. This amendment expands the authority of the health facilities commission to include the licensing and regulating of assisted-care facility administrators.
BOARD OF LICENSING HEALTH CARE FACILITIES
Under present law, until the board adopts building and fire safety rules pursuant to this section, the codes and rules in effect on July 1, 1981, apply to those facilities licensed under this part. A facility that complies with the required applicable building and fire safety regulations at the time the board adopts new codes or rules is, as long as compliance is maintained, either with or without waivers of specific provisions, considered to be in compliance with the new codes or rules.
This amendment removes these provisions in their entirety and instead provides that a majority of members, not including vacant positions on the board, constitutes a quorum for the transaction of all business. This amendment further clarifies that for the purposes of contested base hearings and disciplinary matters, three or more members constitute a necessary quorum, and the board chairperson is authorized, when it is deemed necessary, to split the board into panels of three or more members each to conduct contested case hearings or disciplinary matters. A majority vote of the members present on a duly constituted panel is required to authorize board action in disciplinary matters and contested case hearings. The board chairperson has the authority to appoint board members to serve, as necessary, on the panels regardless of the professional category from which the appointed member was chosen or the member’s status as a physician, administrator, or citizen member. The existence of a non-physician or non-administrator board member creates no rights in any individual concerning the composition of a panel in any disciplinary matter or contested case hearing. However, the unavailability of a member of a panel before rendition of a final order must not require the substitution of another member unless the unavailability results in there being less than the quorum required by statute for contested case hearings or disciplinary matters. A substitute must use any existing record and may conduct further proceedings as is necessary in the interest of justice. In addition, this amendment removes the provision that requires that two members of the commission must be ex officio members.
PENALTIES FOR A FACILITY’S OR INVIDIVIUAL’S NONCOMPLIANCE
This amendment provides that an action to recover or collect a civil monetary penalty owed pursuant to this amendment by a noncomplying facility or individual must not be taken until the facility or individual has waived the right to a contested case hearing; the time allowed for the facility or individual to demand a contested case hearing has expired without a demand being made or a denial filed; or a final administrative order has been entered pursuant to statute.
If the full amount of the civil monetary penalty owed has not been received in full within 60 days from the occurrence of an event described in law or received by the due date specified by order, then the executive director of the health care facilities commission must immediately proceed to recover such amount, plus interest computed at the applicable formula rate approved by statute, retroactive to the earliest data of occurrence of a noncomplying event by one or more of following means: directing the reduction of the amount owed from any balance otherwise due from the state to the facility and directing a remittance of the amount to the health facilities commission; adding such amounts to the licensing fee, with renewal of the license contingent upon the prior payment of such costs; or bringing an action in circuit or chancery court to recover such amounts.
PROBATIONARY PERIOD
This amendment authorizes the executive director to, by written order, extend the probationary period beyond the standard 12 months for a facility to come into compliance.
HEARINGS BEFORE BOARD
Present law generally provides that any licensee, or applicant for license, aggrieved by a decision or action of the commission or board, may request a hearing before the board. This amendment removes this provision and, instead, provides, that the commission and each board, committee, or council under the authority of this amendment that does not already have authority to utilize screening panels may utilize one or more screening panels in its investigative and disciplinary process to assure that complaints filed and investigations conducted are meritorious and appropriate.
In addition, this amendment specifies that the activities of a screening panel and any mediation or arbitration sessions must not be construed as an open meeting of an agency and remain confidential. The members of a screening panel, mediators, and arbitrators have a deliberative privilege and the same immunity as provided by law for the boards and are not subject to deposition or subpoena to testify regarding any matter or issue raised in any contested case, criminal prosecution, or civil lawsuit that may result from or that is incident to cases processed before the panel. A screening panel has the authority to administer an oath to witnesses. Any documents or records produced at the screening panel are exempt from disclosure as a public record until there is a filing of a notice of charges and such documents or records form the basis for the filing of a notice of charges.
This amendment also provides that members of a screening panel may be drawn from among the membership of the relevant board, and members may be appointed by the relevant board. Non-board members must meet the requirements of membership for the relevant board and may include a consumer member. However, a board member serving on a panel is prohibited from participating in a contested case involving any matter heard by the panel.
Each screening panel is required to be instructed as to the statutes, rules, and philosophies of the relevant board as it pertains to disciplinary action and procedures that must be followed by the panel. Each screening panel must be provided a copy of Tennessee Supreme Court Rule 31 for review by members of the screening panel for general guidance as to the principles of mediation and alternative dispute resolution.
Furthermore, a board is also prohibited from compelling any party to participate in a screening panel, and no prejudice is incurred if a party chooses not to participate in a screening panel or to accept the offer of a screening panel.
In addition, on or after July 1, 2024, a licensee or applicant for a license aggrieved by a decision or action of the commission pursuant to this bill may request a hearing before the commission. The amendment goes on further to clarify that the chair of the health facilities commission may appoint a five-member ad hoc litigation committee composed of members of the commission when deemed necessary by the chair or the commission.
INJUNCTIONS AND PENALTIES
Currently, based upon a complaint that a home for the aged, assisted-care living facility, adult care home or traumatic brain injury residential home, subject to licensure under this part may be operating without a license, the commission, with consent of an owner, operator, manager, or person who participates in the operation, or patient or resident, or the guardian of the patient or resident, may enter the facility in order to investigate or inspect the complaint for the necessity of or compliance with licensure under law.
However, this amendment removes these provisions entirely and instead, specifies that within five working days after concluding an inspection or investigation, the executive director may 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. However, within 10 working days after concluding an inspection or investigation, the health facilities commission must mail to the nursing home the executive director’s order, which must also inform the nursing home of its right to contest the action.
INITIATION OF TYPE B OR C PENALTY HEARING FOR DEFICIENT NURSING HOMES
Within three working days after concluding the inspection or investigation, the health facilities commission may initiate type B or type C civil penalty proceedings by mailing to the nursing home a written statement citing the relevant provisions that the health facilities commission alleges to have been violated, stating the amount of the penalty being assessed, and informing the facility of its right to contest the penalty. In addition, the present law also provides that within eight working days after concluding the inspection or investigation, the health facilities commission is required to mail to the nursing home a more detailed statement describing the findings with particularity and citing the law with specificity. This amendment increases the number of days the health facilities commission has to initiate the civil proceedings from 3 to 5 working days; and increases the number of days the health facilities commission has to mail to the nursing home a more detailed statement from 8 to 10 working days.
TRANSFERABILITY OF CERTIFICATE OF NEED
Present law does not prohibit a change of control, if the commission determines, upon petition of the prospective owner or owners of the entity, that the prospective owner or owners demonstrate that they meet the criteria of economic feasibility, contribution of orderly development, and the relevant considerations mandated by statue. This amendment revises the evidence the new owners must demonstrate to the commission before the change of control is permitted. The prospective owners must demonstrate the owner or owners will provide health care that meets appropriate quality standards, and that the transfer would not reduce access to consumers, particularly those in underserved communities; those who are uninsured or underinsured; women and racial and ethnic minorities; TennCare or Medicaid recipients; and low-income groups.
REPORT ON NURSING HOME INSPECTION AND ENFORCEMENT ACTIVITIES
Under current law, the commissioner is required to submit a report by not later than February 1 of each year to the governor and to each house of the general assembly regarding the department's nursing home inspection and enforcement activities during the previous year. The report must analyze trends in compliance with nursing home standards and residents' rights by nursing homes in the state, and must be limited to identifying those trends through aggregate and quantitative data only. In preparing the report, the commissioner may utilize quantitative data compiled by nursing homes pursuant to federal or state regulations. In addition, the commissioner must ensure that the report is promptly made available to the public by dissemination via the internet and that the report is available for members of the public to copy.
This amendment removes these provisions and, instead, requires that the executive director of the health facilities commission submit a report no later than February 1 of each year to the governor, the chief clerk of the house of representatives, and the chief clerk of the senate, regarding the commission's nursing home inspection and enforcement activities during the previous year. The executive director must also ensure that the report is promptly made available to the public by dissemination via the internet and that the report is available for members of the public to copy.
FIRE SAFETY
This amendment shifts the duties and responsibilities regarding the fire safety in assisted living facilities and in licensed homes for the aged from the department of health to the health facilities commission.
RECORDS REQUIRED TO BE KEPT BY LICENSEES AND PERMITTEES
Present law provides that:
(1) Notwithstanding any other provision of law to the contrary, an ambulance service provider must furnish to a patient or a patient's authorized representative a copy of such patient's run record or records within five business days upon request in writing by the patient or such representative; and
(2) Except as otherwise provided by law, such patient's run record or records must not constitute a public record, and nothing contained in this part will be deemed to impair any privilege of confidentiality conferred by law on patients, their personal representatives or heirs. Nothing in this (2) will impair or abridge the right of the patient or the patient's authorized representative to obtain copies of the patient's hospital records in the manner provided in statute. Nothing in (2) should be construed as prohibiting a patient's run record or records from being subpoenaed by a court of competent jurisdiction. As used in (1)-(2), “run record” includes any list of patients that is compiled or maintained by or for such patient's ambulance service provider, but shall not include the dispatch log.
This amendment revises (1) by also requiring that an ambulance service provider must furnish a copy of a patient’s run record or records to a surveyor employed by the health facilities commission within five business days upon request in writing by the surveyor or health facilities commission staff.
This amendment revises (2) by providing that (2) does not prohibit a health facilities commission surveyor investigating an incident in a certified or licensed healthcare facility from obtaining a copy of this record without a subpoena incident to a health facility investigation.
STATE PALLIATIVE CARE AND QUALITY OF LIFE COUNCIL MEMBERSHIP
Present law provides that the council membership must be appointed by the executive director, after consulting with Tennessee Hospice Association, Tennessee Hospital Association, Tennessee Medical Association, Tennessee Nursing Association, Tennessee Health Care Association, Tennessee Association of Home Care, and the Tennessee Chapter of American Cancer Society, and shall include interdisciplinary palliative care medical, nursing, social work, pharmacy, and spiritual professional expertise; patient and family caregiver advocate representation; and any other relevant appointees the executive director determines appropriate. The council must also consist of no more than 11 members. The executive director must also consider the racial, geographic, urban/rural, and economic diversity of the state when appointing members. Membership shall specifically include health professionals having palliative care work experience or expertise in palliative care delivery models in a variety of inpatient, outpatient, and community settings such as acute care, long-term care, and hospice, and with a variety of populations, including pediatric, youth, and adult. At least one council member must be a board-certified hospice and palliative medicine physician; at least one council member is required to be a licensed certified registered nurse practitioner with expertise in palliative care; and one council member must be from the department of health. Council members must also be appointed for a term of three years. The members must elect a chair and vice chair, whose duties shall be established by the council. The council must fix a time and place for regular meetings that meet no less than twice yearly.
This amendment increases the number of members from 11 to 12 and further adds that one of the council members must be the executive director of the health facilities commission or the executive director’s designated representative.
ALZHEIMER’S DISEASE AND RELATED DEMENTIA ADVISORY COUNCIL
The current law provides that the council must be composed of no less than 11 members but must not exceed 16 members. This amendment raises the maximum number of members from 16 to 17, which must include the executive direct of the Tennessee health facilities commission.
REGULATION OF HEALTH AND RELATED FACILITIES
This amendment shifts the duties and responsibilities of licensing and regulating adult care facilities; adult care home providers, including resident managers; assisted-care living facilities; a home care organization qualified to provide home health services, home medical equipment or hospice services; residential homes for the aged; hospitals that provide certain services; recuperation center; and residential hospice from the board of licensing health care facilities to the health facilities commission. This amendment also shifts the duties and responsibilities of reviewing facilities, construction planned by facilities, standards regulating accessibility by disabled, branch offices of home care organizations, the use of endoscopy technicians, and other radiological staff at ambulatory surgical treatment centers, and other related provisions from the board of licensing health care facilities to the health facilities commission.
In addition, this amendment removes the present law that requires the commission to accomplish licensing and regulation through the board for licensing healthcare facilities to be created in a manner provided by statute and other employees as are provided for in statute.
This amendment also provides that the definitions of board and department for the purposes of health facilities and resources statutes no longer apply and adds for the purpose of reporting incidents of abuse, n