Senator Joey Hensley, MD: Tennessee 28th District Capitol Hill Week in Review

General Assembly passes major legislation during Extraordinary Session to aid in state’s recovery from COVID-19

The Tennessee General Assembly met on August 10th in an Extraordinary Session passing two major bills to aid in the state’s recovery from the effects of the pandemic. One bill provides reasonable liability protections against frivolous COVID-19 lawsuits on businesses, proprietors, non-profits, health care providers, schools, day care providers, religious organizations and other entities so they can resume operations with legal clarity and actively participate in Tennessee’s economic recovery. The other bill requires coverage of telehealth and telemedicine services, giving patients in Tennessee the option to receive medically necessary care at home and prevent the spread of the virus. The Extraordinary Session was the 61st special session in the history of the state.

The Tennessee COVID-19 Recovery Act preserves legal remedies in COVID-19 lawsuits against bad actors who commit gross negligence or willful misconduct. The legislation establishes procedural protections to weed out frivolous lawsuits, including heightened pleading standards and requiring pre-suit certification by a physician in connection with claims alleging contraction of or exposure to the coronavirus. It also extends immunity under the Tennessee Governmental Tort Liability Act for governmental entities in connection with any injuries arising from COVID-19 unless the claimant proves by clear and convincing evidence that the injury was caused by gross negligence.

In addition, the legislation provides for retroactive application of the legal protections, except that it does not affect lawsuits or claims already filed or noticed on or before August 3. This is the date Governor Lee called for a special session for consideration of a liability protection bill. The measure is set for repeal on July 1, 2022. The bill expanding access to telehealth requires a health insurance company to reimburse an originating site fee at a rate that has been established by the Center for Medicare and Medicaid Services (CMS) prior to the effective date of the legislation. An originating site is simply the location where the patient is located, such as a doctor’s office, for the purposes of telehealth. The patient must have been seen in person by the physician or health service provider’s practice group within 16 months of the telemedicine visit to be covered under the measure.

The legislation also gives health insurance companies the ability to consider remote patient monitoring services as a covered medical service if covered by Medicare. Remote patient monitoring is the ability to share a patient’s health information to a healthcare service provider via electronic means. All medical providers with the exception of pain management clinics, chronic nonmalignant treatment and veterinarians are included under the legislation. The licensing boards for medical professionals will promulgate rules regarding the abilities to practice telehealth and telemedicine. Alcohol and drug counselors are also included.

General Assembly approves legislation to protect law enforcement, property and public safety from violent riots

In the wake of violent and destructive riots that have erupted this summer throughout the country and in Nashville, the General Assembly passed legislation during the special session increasing penalties for those who engage in violent and lawless riots, vandalism, assault or criminal trespassing. Senate Bill 8005 aims to protect law enforcement, first responders, private property, and uphold public safety. In May, a rally in downtown Nashville took a violent turn leading to arson and vandalism at the Davidson County Courthouse, broken windows of a police cruiser, rocks and bottles thrown at officers, a statue outside the Capital torn down, looting of businesses and vandalism of state properties.

The legislation addresses some of these issues and creates new offenses of assault and aggravated assault against a first responder. Assault against a first responder, which is committed by knowingly causing bodily injury to a first responder or other physical contact such as throwing human waste onto a first responder, would be a Class A misdemeanor with a 30 day minimum sentence and a mandatory $5,000 fine. Aggravated assault against a first responder, which includes an assault that results in serious bodily injury or death, would be a Class C felony subject to a $15,000 mandatory fine and 90-day mandatory minimum sentence. The measure adds state property to places a person can commit aggravated criminal trespass and expands the offense to a Class E felony offense. It also creates a Class E felony offense of obstruction in circumstances such as preventing an emergency vehicle from passing through the roadway, preventing a first responder to responding to an emergency or preventing access to an emergency exit.

The legislation clarifies that vandalism on state or local government property, whether temporary or permanent, and valued at an amount less than $2,500, is considered a Class A misdemeanor. If the property vandalized is designated as a historic landmark, it is considered a Class E felony.

In addition, the bill enhances penalties for camping on state property knowing that the area is not specifically designated for use as a camping area. Under the bill, those who violate this law are subject to a Class E felony, following a warning from law enforcement. The measure also requires the District Attorneys General Conference to file a report of the crimes and offenses outlined in this bill and the outcome of the depositions associated with those charges, with the Speakers of each house as well as the Chairs of the Judiciary Committees on or before January 1 of 2022.

Another bill which sponsored, SB8001, approved during the special session prohibits a mayor, chief executive, governing board or governmental entity from prohibiting law enforcement or fire and rescue services from accessing a specific area within their jurisdiction during a public demonstration which they have intentionally decided not to protect. This legislation does not apply to tactical decisions made by law enforcement or fire and rescue services personnel based on the risks to or safety of personnel or the public. Violators of the act may be held liable for damages, injury, or death proximately caused in such cases.

“We have all seen news reports from across the country where rioting and crowds were uncontrolled, causing harm to citizens and massive damage to property due to the intentional decision by some governmental authority or entity not to protect a certain area. They should be providing protections for citizens and property and when they choose not to do that intentionally and willfully, this bill would hold them accountable and liable.”