71-1-101. Short title.

This part may be cited as the “Welfare Organization Law of 1937.”

Acts 1937, ch. 48, § 15; C. Supp. 1950, § 4765.1 (Williams, § 4765.15); T.C.A. (orig. ed.), §§ 14-101, 14-1-101.

Cross-References. Department of human services responsibilities regarding child sexual abuse, title 37, ch. 1, part 6.

Revocation or denial for child support enforcement, title 36, ch. 5, pt. 7.

Law Reviews.

Family Support and Supporting Families, 68 Vand. L. Rev. En Banc 153   (2015).

Attorney General Opinions. Relationship between social security disability claims and unemployment insurance benefits.  OAG 10-106, 2010 Tenn. AG LEXIS 112 (10/27/10).

71-1-102. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Commissioner” means the commissioner of human services;
2. “Department” means the department of human services;
3. “Director” means the director of a division within the department;
4. “Division” means one (1) of the divisions created within the department of human services for the purposes of administration;
5. “Region” means one (1) or more counties grouped for the purpose of local administration; and
6. “Regional director” means the director of a region.

Acts 1937, ch. 48, § 14; 1939, ch. 95, § 8; C. Supp. 1950, § 4765.3 (Williams, § 4765.1); impl. am. Acts 1975, ch. 219, §§ 1 (a, b), 2 (a, b); T.C.A. (orig. ed.), §§ 14-102, 14-1-102.

71-1-103. Department created.

There is created a department of state government, which shall be known and designated as the department of human services.

Acts 1937, ch. 48, § 1; 1939, ch. 95, § 2; C. Supp. 1950, § 4765.3 (Williams, § 4765.1); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-103, 14-1-103.

Cross-References. Department of human services responsibilities regarding child sexual abuse, title 37, ch. 1, parts 4 and 6.

Establishment of department, § 4-3-101.

71-1-104. Succession to previous agencies — Workshop for blind.

1. The department shall in all respects be the legal successor to the corporate powers, duties, and responsibilities of the commission for the blind, and any other state welfare commissions other than those that may be excepted by § 71-1-105(a)(1). The department shall succeed to all the rights and obligations of these agencies; provided, that the workshops for the blind located at Nashville and Memphis shall, through this department or by contract with a nonprofit organization or organizations, continue to be operated for the employment of blind persons.
2. Notwithstanding § 12-2-112 or § 12-2-403, the department has the authority, subject to the approval of the state building commission, to convey ownership of the workshops to any such contractor without financial consideration, including real and personal property, inventory of materials, and stores for resale. The instrument of conveyance to such nonprofit contractor shall provide that the real property and production equipment conveyed, or sufficient remuneration for the real property and production equipment, shall revert to the state at any time the contractor or its successor shall cease operating a workshop for the benefit of the blind, unless the state finds in its sole discretion that it is in the state's best interest to allow such real property and production equipment to be sold to such contractor or contractor's successor at such time as the contractor or contractor's successor shall cease operating a workshop for the benefit of the blind. If the state deems it appropriate to convey such real property and production equipment to the contractor, then the amount of remuneration to be paid by the contractor or its successor to the state shall be determined at the time the real property and production equipment is originally conveyed to the contractor, to be based upon the appraised value of the real property and production equipment at the time of the original conveyance to the contractor.

Acts 1937, ch. 48, § 2; 1939, ch. 95, § 3; 1943, ch. 154, § 1; mod. C. Supp. 1950, § 4765.4 (Williams, §§ 4765.2, 4765.3a); modified; T.C.A. (orig. ed.), § 14-140; Acts 1982, ch. 863, § 1; 1986, ch. 829, § 1; T.C.A., § 14-1-104; Acts 2003, ch. 355, § 56.

Compiler's Notes. Acts 2003, ch. 355, § 66 provided that no expenditure of public funds pursuant to the act shall be made in violation of the provisions of Title VI of the Civil Rights Act of 1964, as codified in 42 U.S.C. § 2000d.

Cross-References. Administration of workshops for blind, § 71-4-203.

71-1-105. Powers and duties.

1. The department is charged with the administration or supervision of all of the public welfare activities of the state as provided in this section. The department shall:
   1. Administer or supervise all functions of the federal Social Security Act (42 U.S.C.), established or to be established in Tennessee that may be assigned to it by law, regulation or executive order;
   2. Cooperate with the federal government or its agencies or instrumentalities, in establishing, extending, strengthening or reforming services to assist persons and families in need of such services from this state;
   3. Promote the unified development of the institutional and noninstitutional agencies subject to its jurisdiction, including the determination of all matters of general policy and the control of the administration of each of the institutional or noninstitutional agencies in the department, so that each institutional or noninstitutional agency shall perform its function as an integral part of the general system;
   4. Establish and enforce reasonable rules and regulations governing the custody, use and preservation of the records, papers, files and communications of the department. The use of such records, papers, files and communications by any other agency or department of the government to which they may be furnished shall be limited to the purpose for which they are furnished and by the law by which they may be furnished;
   5. 1. License or approve, and supervise, adult day care centers and child care agencies as defined in chapter 2, part 4, and chapter 3, part 5 of this title, and to promulgate any regulations it deems necessary to carry out the licensing laws;
      2. Establish criteria for the approval of persons or entities who receive any state or federal funds for the provision of care for adults or children whether those persons or entities are licensed or approved as provided in chapter 2, part 4 or chapter 3, part 5, of this title, or whether they are otherwise unlicensed, and, if determined by the department to be necessary, provide for such criteria in regulations promulgated pursuant to the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, part 2; and
      3. Utilize any state, federal, local or private funding to provide for any child care or adult day care services or training that it deems necessary to promote the welfare of children and adults or that is required or permitted by state or federal law or regulations, and to provide such services or training directly or by contract with any public or private entities;
   6. Promote and employ the use of such measures as are designed to restore persons receiving assistance or services from the department to a condition of self-support in the community and pursue the preventive aspects of its work, including providing, to the extent possible, foster care for adults who are unable to maintain an independent living arrangement, and such other services to those liable to become destitute or handicapped as will prevent their becoming or remaining public charges;
   7. Study the causes of economic dependency or rehabilitative service requirements for persons in need of economic support or rehabilitative services in Tennessee and promote efficient methods for assisting persons in need of such support or services;
   8. Cooperate with the commissioner of social security, and with any other agency or instrumentality of the federal government in any reasonable manner that may be necessary to qualify for federal aid for assistance to persons who are entitled to assistance under the Social Security Act, except as otherwise provided by subdivision (a)(1), and in conformity with this part, including the making of such reports, in such form and containing such information as the commissioner of social security or any other agency or instrumentality of the federal government may, from time to time, require and comply with such requirements as such commissioner, agency, or instrumentality may, from time to time, find necessary to assure the correctness and verification of such reports;
   9. Receive and expend as provided by law any public and private donations, not provided for by § 71-1-113, and the department may expend a reasonable proportion of any such donation for administrative purposes;
   10. Assist and cooperate with other departments, agencies, instrumentalities, and institutions of the state and federal governments, when so requested, in performing services in conformity with the purposes of this part;
   11. Act in cooperation with the federal government in welfare matters of mutual concern in conformity with this part and in the administration of any federal funds granted to this state or any state appropriations to aid in the furtherance of any such functions of the state government, including relief and assistance of needy citizens;
   12. Make such rules and regulations and take such action as may be deemed necessary or desirable to carry out this part and that are not inconsistent with this part;
   13. Administer such additional public welfare functions as are hereby or may be vested in it by law pursuant to this part;
   14. Be authorized to license blind persons to operate vending stands in state and county buildings; provided, that, in the opinion of the director of vocational rehabilitation and the custodian of such building or buildings, a suitable place may be found for the location of such stand or stands to be operated in accordance with the Randolph-Sheppard Vending Stand Act of June 20, 1936, chapter 638, 49 Stat. 1559 (20 U.S.C. § 107 et seq.), or amendments to that act;
   15. Enforce the provisions of Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), relative  to child and spousal support and establishment of paternity and to contract with public or private entities to provide any services necessary to carry out such provisions;
   16. Conduct investigations, which shall include, but not be limited to, investigation into the existence of:
       1. Trafficking in, or fraud involving, the food assistance program administered by the department pursuant to chapter 5, part 3 of this title;
       2. Fraud, abuse, theft, misappropriation, or misuse of property, funds, or services by any person or entity in any program administered by the department; and
       3. Misconduct by any employee, contractor, or agent of the department concerning or related to the operation of any department program or any laws, regulations or policies governing the department's operations; and
   17. When conducting any investigation pursuant to subdivision (a)(16)(A) or (a)(16)(B):
       1. Have the power to issue subpoenas to compel the attendance of witnesses, the examination of witnesses under oath, and the production of books, accounts, papers, records, and documents relating to an investigation; provided, that:
          1. The materials to be produced are relevant to the investigation;
          2. The materials to be produced are specified with reasonable particularity; and
          3. The subpoenas command production of the materials covering only a reasonable period of time;
       2. Have the power to compel the production of employment records during an investigation. For purposes of this subdivision (a)(17)(B), “employment records” includes records of future, past, or present employees who are applying for or have received a form of public assistance or are members of the household of a person who is applying for or has received a form of public assistance from this state or another state;
       3. Have the authority to refer any matter to the appropriate enforcement authority for criminal prosecution;
       4. Have the authority to refer any matter to the appropriate enforcement authorities for civil proceedings, including, but not limited to, referral to the attorney general and reporter for civil recovery;
       5. Have the authority to cooperate with other state agencies to investigate fraud and abuse in programs administered by the department;
       6. Have the authority to furnish information to educate the public about the fraud and abuse laws pertaining to programs administered by the department; and
       7. Have the authority to contract with entities as necessary to carry out the required duties of subdivisions (a)(17)(C)-(F).
2. Notwithstanding any state law or regulation to the contrary, the department may provide low-income energy assistance at any percentage of the federal income poverty level that is permitted by federal law.

Acts 1937, ch. 48, § 3; 1937, ch. 299, § 1; 1939, ch. 95, §§ 4-6; impl. am. Acts 1943, ch. 154, § 1; C. Supp. 1950, § 4765.5 (Williams, §§ 371.3, 4765.3); impl. am. Acts 1955, ch. 102, § 1; modified; Acts 1972, ch. 624, § 2; 1973, ch. 337, § 1; impl. am. Acts 1975, ch. 219, § 1 (a), (b); 1975, ch. 279, § 1; modified; T.C.A. (orig. ed.), § 14-105; Acts 1984, ch. 789, § 3; T.C.A., § 14-1-105; Acts 1993, ch. 284, § 1; 1996, ch. 1079, § 153; 1998, ch. 1098, § 64; 2000, ch. 981, §§ 14, 51; 2010, ch. 626, § 1; 2013, ch. 402, § 1; 2018, ch. 789, § 1.

Compiler's Notes. For transfer of USDA donated commodity distribution programs administered by the department of human services to the department of agriculture, see Executive Order No. 55 (October 26, 1983).

For transfer of certain powers and duties to the office of children's services administration in the department of finance and administration, see Executive Order No. 58 (June 29, 1994).

Acts 1996, ch. 1079, § 184 provided:

“Any provision of this act, or the application thereof, which is inconsistent with federal law, rule or regulation shall be deemed to be construed as being consistent with federal law, rule or regulation.”

Cross-References. Council on pensions and insurance, § 3-9-101.

Employment Security Law, title 50, ch. 7.

Family violence shelter and child abuse prevention services, title 71, ch. 6, part 2.

Functions in general, § 4-3-1203.

Guardianship of the person of a minor, title 34, ch. 1.

Interstate Compact on Adoption and Medical Assistance, title 36, ch. 1, part 2.

Rules and regulations for conduct of subsidized receiving homes for children, § 37-2-304.

Services for children with physical disabilities, title 68, ch. 12.

Subsidized receiving homes for children, inspection, §§ 37-2-305, 37-2-317.

Subsidized receiving homes for children, state aid, § 37-2-303.

Vocational rehabilitation, title 49, ch. 11, parts 6-8.

Attorney General Opinions. Subject to any regulations or restrictions related to state contracts, the department of human services' services for the blind program may contract with a private vending machine management company to arrange for third party vending and to collect commissions from the operation of vending machines on its behalf, OAG 04-166, 2004 Tenn. AG LEXIS 177 (11/19/04).

If the department of human services elects to contract with third parties for the provision of vending services at unassigned vending facilities on public property, both parties' authority, including the authority to set the prices of products to be vended, would be determined by reference to the relevant contract, OAG 04-166, 2004 Tenn. AG LEXIS 177 (11/19/04).

71-1-106. Appointment of chief officer and personnel.

The chief administrative and executive officer of the department shall be appointed by the governor solely on a basis of merit as measured by education, ability, and experience in the administration of public welfare activities and without regard to residence or political affiliation. Such officer shall serve at the pleasure of the governor. Such officer shall have general charge and supervision of the department and shall appoint the heads of such divisions as may be created. The choice of personnel shall be made on the basis of merit as measured by experience and training in each particular field. Vacancies in superior positions shall be filled so far as practicable by promotion based on meritorious service.

Acts 1937, ch. 48, § 8; C. Supp. 1950, § 4765.11 (Williams, § 4765.8); T.C.A. (orig. ed.), §§ 14-106, 14-1-106.

Cross-References. Commissioner, appointment, § 4-3-112.

71-1-107. Duties of commissioner.

As chief executive officer of the department, the commissioner shall be charged with the supervision and administration of all welfare activities subject to its jurisdiction. The commissioner at all times has the power, which the commissioner may also delegate to officers and employees of the department, of visitation, inspection and administration of local governmental welfare agencies subject to the commissioner's supervision and the books, records and accounts of each institution or agency shall be open to the commissioner's inspection. In the supervision and administration of local welfare activities, the commissioner shall advise with local authorities, and may provide such specialized services as may be necessary to the end that the laws shall be faithfully executed and that the various welfare agencies of the local government shall function effectively in relationship to one another and to the department.

Acts 1937, ch. 48, § 9; C. Supp. 1950, § 4765.12 (Williams, § 4765.9); T.C.A. (orig. ed.), §§ 14-107, 14-1-107.

Cross-References. Duties of commissioner, § 4-3-1204.

Attorney General Opinions. Subject to any regulations or restrictions related to state contracts, the department of human services' services for the blind program may contract with a private vending machine management company to arrange for third party vending and to collect commissions from the operation of vending machines on its behalf, OAG 04-166, 2004 Tenn. AG LEXIS 177 (11/19/04).

If the department of human services elects to contract with third parties for the provision of vending services at unassigned vending facilities on public property, both parties' authority, including the authority to set the prices of products to be vended, would be determined by reference to the relevant contract, OAG 04-166, 2004 Tenn. AG LEXIS 177 (11/19/04).

71-1-108. Authority over personnel.

The commissioner has the power, having regard to the efficient performance of the department's functions, to create positions in the department and in any division, region, agency, institution or service of the department for the accomplishment of the purposes of this part and to abolish these positions and the existing positions of officers and employees who by this part are transferred to the department. The positions in the department shall be classified by the commissioner according to the nature of the duties to be performed and the minimum qualifications for appointment, and such appointments shall be made on a merit basis. The commissioner, having regard to the nature of the services to be performed and the salaries paid for similar work elsewhere, shall establish a salary range for each class of position and within such salary range shall provide by rule for recognition of efficiency of service and length of service. All matters relating to personnel of the department shall be handled in accordance with, and under rules and regulations promulgated pursuant to authority of, title 8, chapter 30, parts 2 and 3.

Acts 1937, ch. 48, § 10; C. Supp. 1950, § 4765.13 (Williams, § 4765.10); T.C.A. (orig. ed.), §§ 14-108, 14-1-108.

71-1-109. Legal assistance — Property — Rules.

The attorney general and reporter shall, when requested, advise the department on matters of law. The department may acquire, hold, and alienate property necessary or desirable for the performance of the functions vested in it by law. It shall have all powers necessary and proper for the carrying out of its functions, including the power to adopt and promulgate rules binding upon itself, and all persons subject to its control.

Acts 1937, ch. 48, § 6; 1949, ch. 114, § 1; C. Supp. 1950, § 4765.9 (Williams, § 4765.6); Acts 1979, ch. 422, § 27; T.C.A. (orig. ed.), §§ 14-109, 14-1-109.

71-1-110. Advisory committees — Multi-disciplinary protective services advisory teams.

1. The commissioner has the authority to appoint, with the consent and approval of the governor, a committee or committees of citizens to act in an advisory capacity on any matter within the jurisdiction of the department, and to reimburse such members for their actual expenses in attending meetings of such committee or committees called at the commissioner's discretion from time to time. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
2. The commissioner shall establish in each service region at least one (1) multi-disciplinary adult protective services evaluation team for review of protective services cases. All reimbursement for travel expenses shall be in accordance with  the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1937, ch. 48, § 13; 1949, ch. 113, § 1; C. Supp. 1950, § 4765.16 (Williams, § 4765.13); Acts 1976, ch. 806, § 1 (142); 1977, ch. 482, § 12; T.C.A. (orig. ed.), §§ 14-110, 14-1-110; Acts 1996, ch. 1079, § 154.

71-1-111. Hearings — Evidence.

The commissioner has the power to conduct or cause to be conducted hearings relating to the fact determination that the department is authorized or required to make; provided, that the commissioner, and any officer or employee of the department upon written authorization from the commissioner, has the power to administer oaths and affirmations, take depositions, issue subpoenas, and require the production of any books and records that may be necessary.

Acts 1937, ch. 48, § 12; C. Supp. 1950, § 4765.15 (Williams, § 4765.12); T.C.A. (orig. ed.), §§ 14-111, 14-1-111.

Law Reviews.

An Examination of The Tennessee Law of Administrative Procedure (George Street Boone), 1 Vand. L. Rev. 339.

71-1-112. Divisions and regions — Division of housing and emergency shelter.

1. For the efficient and economical performance of the powers and functions vested in the department:
   1. The commissioner may establish within the department such divisions as may be necessary for the effective administration of the department. These divisions shall be charged with such duties and responsibilities as may be delegated to them by the commissioner, and the commissioner shall have the power to allocate and reallocate functions among such divisions. Each division shall be administered by a director who shall be appointed by the commissioner solely on a basis of merit as measured by training, ability and experience;
   2. There shall be established, for the purposes of local administration throughout the state, regions comprised of one (1) or more counties. Each such region shall be administered or supervised by a regional director, who shall be appointed by the commissioner solely on a basis of merit as measured by training, ability, and experience. The regional director, or such employees as the regional director may delegate, shall have the power of visitation and report of all charitable and relief institutions within the region that rightly come under the department as set out in this part, and such other powers as may be delegated by the commissioner. The regional director shall foster cooperation and intelligent coordination of work between all public and private charitable and social agencies in the region to the end that public resources and charitable donations may be efficiently managed and the needs of the region adequately cared for; and
   3. The commissioner has the power to create such subordinate divisions and such departmental agencies within the department as may be necessary to carry out the purposes of this part.
2. 1. There is created within the department a division of housing and emergency shelter. The commissioner shall appoint a director of housing and emergency shelter as provided in this subsection (b). The commissioner shall employ all consultants or staff assigned or performing duties for the division.
   2. The director has the power, duty and responsibility to:
      1. Coordinate consultant or staff assignments and administrative functions and activities of the division;
      2. Assign personnel to staff the various offices designated to carry out the purposes of this subsection (b) that assures the most efficient use of personnel; and
      3. Coordinate the efforts of the division of housing and emergency shelter with all other individuals, agencies and organizations providing similar or equivalent services.
   3. The division shall cooperate and integrate its services with local agencies, local homeless coalitions, local and state housing authorities, and other local and state agencies, and shall engage in such activities as well as promote a high level of communication among the many individuals, entities and organizations concerned with homelessness issues. The division shall actively participate, subject to funds specifically appropriated in the general appropriations act, in the weatherization, rehabilitation and renovation of housing that qualifies for appropriate programs as determined by the division. The division shall work directly with the departments of mental health and substance abuse services and intellectual and developmental disabilities to ensure that adequate and appropriate institutional and community-based services and shelter are provided to persons in need of them.
   4. The division shall develop and implement a plan for providing rental units on a sliding fee scale. In so doing, emphasis shall be given to locating rental units at a cost to the individual of less than one hundred fifty dollars ($150) per month. The division shall also develop and implement a plan for providing emergency shelter for individuals who are unable to pay rent. In carrying out its duties and responsibilities, the division shall maximize all federal and private funds and grants and block funding, as well as create a mechanism for providing rental and other deposits and subsidy payments for eligible individuals. The division shall actively be involved in new programs designed to relieve the housing shortage for eligible individuals as determined by the division and shall initiate and implement any such programs as they become available and feasible.
   5. The offices of the division shall be located in areas that are easily accessible to those who require the services of the division. Office space for such offices may be located in conjunction with any present agency of state government or an appropriate agency of local government that serves the population sought to be served by this subsection (b). Personnel from such agencies may be utilized by the division where appropriate. Such offices shall also serve as a coordinating center to provide information and referral services for crisis intervention, counseling, case management, job placement services, day shelter, transportation services and access to other agencies that serve the population in which such individuals are included.
   6. The division is authorized to promulgate necessary and appropriate rules and regulations to implement the effect and intent of this subsection (b). Such rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
   7. The funding for the division, created by this subsection (b), shall be subject to funds specifically appropriated for such purpose in the general appropriations act.

Acts 1937, ch. 48, § 11; 1939, ch. 95, § 7; C. Supp. 1950, § 4765.14 (Williams, § 4765.11); Acts 1955, ch. 25, § 1; T.C.A. (orig. ed.), §§ 14-112, 14-1-112; Acts 1990, ch. 1070, §§ 1-7; 2000, ch. 947, § 6; 2010, ch. 1100, § 131; 2012, ch. 575, § 1.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Rules for local agencies, § 4-3-1204.

71-1-113. Expenditure of funds.

The department shall administer and expend funds appropriated to it by the general assembly or available from allotments by the federal government to the state or from contributions from the counties, cities, or other local units of government, or from other sources, in carrying out the duties imposed upon it by § 71-1-105, including the special training of personnel required to carry out such duties, and including grants to public or other nonprofit institutions of higher learning for training personnel employed or preparing for employment in a public welfare program, and for such other purposes as may be specified by law or delegated to it by the governor, including the publication of reports and the dissemination of information as to the cause and treatment of social ill-being and the prevention of maladjustment and delinquency.

Acts 1937, ch. 48, § 4; C. Supp. 1950, § 4765.6 (Williams, § 4765.4); Acts 1953, ch. 10, § 1; 1957, ch. 99, § 1; T.C.A. (orig. ed.), §§ 14-113, 14-1-113.

Compiler's Notes. For transfer of certain powers and duties to the office of children's services administration in the department of finance and administration, see Executive Order No. 58 (June 29, 1994).

71-1-114. Compliance with federal requirements authorized.

In the event that the federal government increases the percentages of funds to be furnished by it that may be matched by the state and used in connection with chapters 2-4 of this title, providing assistance to aged persons, aid to dependent children, or any successor program, and aid to the needy blind, the department is authorized to conform to the provisions of federal acts relating to the matching of administrative expense in a higher ratio than provided in such acts and to conform to the provisions for a higher ratio of matching of funds for assistance purposes. The department is further authorized to use any funds granted by the federal government in connection with such programs for the purpose for which they are granted and subject to the limitations or conditions contained in such grants.

Acts 1937, ch. 48, § 4(b), as added by Acts 1941, ch. 40, § 1; C. Supp. 1950, § 4765.7 (Williams, § 4765.4); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-114, 14-1-114; Acts 1996, ch. 950, § 22.

71-1-115. Conditions imposed on local governments.

Whenever the department has discretion to expend funds appropriated for the purposes either through the officers and employees of the department or in the form of grants-in-aid to local governmental authorities, it shall decide with reference to the use of grants-in-aid according to the availability and adequacy of the facilities under the control of the local governmental authorities, as compared with the facilities of the department for furnishing the services required to be rendered; such funds shall be made available according to uniform rules to all local authorities performing similar functions. In formulating such rules, the department has the power to:

1. Fix minimum standards of service and efficiency to be required of the local governmental authorities in carrying out the functions reposed in them by law;
2. Provide for the termination of any grant-in-aid to any such authority whenever the department shall find that such minimum standards are not being complied with; and
3. Require that as a condition of receiving grants-in-aid the local units of government shall bear specific proportions of the total expense of performing the designated functions.

Acts 1937, ch. 48, § 7; C. Supp. 1950, § 4765.10 (Williams, § 4765.7); T.C.A. (orig. ed.), §§ 14-115, 14-1-115.

71-1-116. Judicial enforcement of subpoena — Notice — Inspection of employment records and credit bureau reports.

1. 1. If a person, firm, or corporation subpoenaed pursuant to authority granted pursuant to § 71-1-105(a)(17)(A) fails to comply with the subpoena, after reasonable notice to the person, firm, or corporation, the department may seek judicial enforcement of the subpoena by filing, through the attorney general and reporter, a petition with the circuit or chancery court of Davidson County or of the judicial district in which such person, firm, or corporation resides.
   2. A petition filed pursuant to subdivision (a)(1) must incorporate or be accompanied by a certification regarding the notice given and the failure of such person, firm, or corporation to attend or produce the items requested.
   3. Upon the filing of a petition pursuant to subdivision (a)(1) in the proper form, the court shall order the person, firm, or corporation named in the petition to appear and show cause why the person, firm, or corporation should not be required to comply with the subpoena or be held in contempt for failure to comply. The court may employ all judicial power provided by law to compel compliance with a subpoena requested pursuant to subdivision (a)(1), including the powers granted in §§ 29-9-103 — 29-9-106. The court is authorized to impose costs and sanctions against any person, firm, or corporation against whom a petition is filed pursuant to subdivision (a)(1) in the same manner and on the same bases as may be imposed for failure to comply with judicially issued subpoenas under the Tennessee Rules of Civil Procedure. The court may order the person, firm, or corporation to comply with the subpoena and may punish each day of noncompliance with the order as a separate contempt of court.
   4. The subpoena enforcement remedies set forth in subdivision (a)(3) are cumulative and not exclusive of any other remedies provided by law.
2. Employment records, as defined in § 71-1-105(a)(17)(B), shall be open to inspection and copying by a department representative at any reasonable time and as often as may be necessary.
3. The department shall also have the right to compare information reported to the department by applicants or recipients with data maintained by the credit bureaus.

Acts 2018, ch. 789, § 2.

71-1-117. Public inspection of welfare lists.

The commissioner is authorized and instructed to make public to any citizen of Tennessee through the office of the commissioner or county human services offices the names of all recipients of public welfare grants and the amount of each grant per month, each list to be broken down by counties. Only the list containing the recipients resident in a particular county is to be available for inspection in that county. The lists of all counties are to be available for inspection in the office of the commissioner.

Acts 1953, ch. 29, § 1 (Williams, § 4765.13a); impl. am. Acts 1975, ch. 219, §§ 1 (a, b), 2 (a, b); T.C.A. (orig. ed.), §§ 14-117, 14-1-117.

Cross-References. Improper disclosure of information pertaining to recipients, §§ 71-2-214, 71-3-119, 71-4-115.

71-1-118. Restrictions on use of welfare list.

1. The welfare lists referred to in § 71-1-117 cannot be used for political or commercial purposes and no one will be permitted to copy such a list.
2. A violation of this section is a Class C misdemeanor.

Acts 1953, ch. 29, § 2 (Williams, § 4765.13a); T.C.A. (orig. ed.), §§ 14-118, 14-1-118; Acts 1989, ch. 591, § 113.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class C misdemeanor, § 40-35-111.

71-1-119. Utilization of senior citizens' services.

The department may establish a program utilizing senior citizens as volunteers and, to the extent funds are available, as employees in programs that provide services for children, persons with disabilities and other senior citizens. The department may utilize such federal funds as are available for these purposes.

Acts 1974, ch. 706, § 1; impl. am. Acts 1975, ch. 219, § 1; T.C.A., §§ 14-119, 14-1-119; Acts 2011, ch. 47, § 96.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

71-1-120. Federal funds — Administrative economy.

This section shall be construed, insofar as is practicable, so as to be consistent with Title XX of the Social Security Act (42 U.S.C. §§ 1397 et seq.),  and regulations issued under the authority of that act. The commissioner shall take reasonable steps to assure that the cost of administering, monitoring, and overseeing services performed by public providers and private providers shall be accomplished as economically as practicable. In the event that such expenditures are estimated to exceed six percent (6%) of the total estimated expenditures for services provided by public providers and private providers, the commissioner shall include in the annual service plan a statement to that effect, accompanied with an explanation of the reasons why such expenditures cannot be held to or below six percent (6%) of the estimated cost of services provided by public and private providers.

Acts 1976, ch. 687, §§ 1, 2; T.C.A., §§ 14-120, 14-1-120.

71-1-121. Access to public assistance records by authorized counsel.

Notwithstanding any other law to the contrary, the department shall grant access to all public assistance records, reports, documents, case files or other similar documents about a person who has applied for or is receiving or has received public assistance, including, but not limited to, temporary assistance for needy families (TANF), or any successor program, food assistance pursuant to chapter 5, part 3 of this title, medicaid and Title XX services (42 U.S.C. §§ 1397 et seq.), to authorized counsel for the person.

Acts 1981, ch. 355, § 1; T.C.A., § 14-1-121; Acts 1996, ch. 950, § 23.

Code Commission Notes.

Former references to “aid to families with dependent children (AFDC)” were deleted as obsolete by the code commission and were changed to “temporary assistance for needy families (TANF)” in 2004.

71-1-122. Review of human services advisory committees.

The human services advisory committees appointed by the commissioner shall periodically be subject to review pursuant to the governmental entity review law, compiled in title 4, chapter 29, simultaneously with, and as an adjunct to, the department.

Acts 1985, ch. 127, § 3; T.C.A., § 14-1-122.

Cross-References. Governmental entity review law, title 4, ch. 29.

71-1-123. Recovery by state of certain benefits incorrectly paid or for which recipient is reimbursed.

1. 1. Any benefits paid to, or on behalf of, any recipient cannot be recovered from such a beneficiary unless such assistance has been incorrectly paid, or unless the recipient or beneficiary recovers or is entitled to recover from a third-party reimbursement for all or part of the costs of care or treatment for an injury or illness for which the assistance is paid.
   2. To the extent of payments of assistance, the state shall be subrogated to all rights of recovery, for the cost of care or treatment for an injury or illness for which assistance is provided, contractual or otherwise, of the recipients against any person.
   3. Payments to a provider of services shall not be withdrawn or reduced to recover funds obtained by the recipient from third parties for services rendered by such provider if these funds were obtained without the knowledge or direct assistance of the provider of assistance.
   4. When the state asserts its right to subrogation, the state shall notify the recipient, in language understandable to all recipients, of such recipient's rights of recovery against third parties and that such recipient should seek the advice of an attorney regarding those rights of recovery to which such recipient may be entitled.
   5. If, while receiving assistance, the recipient becomes possessed of any resource or income in excess of the amount stated in the application for the assistance provided, it is the duty of the recipient immediately to notify the agency designated to determine eligibility for the assistance of the receipt or possession of such resource or income.
   6. When it is found that any person has failed to so notify the agency that such person is or was possessed of any resource or income in excess of the amount allowed, or when it is found that within three (3) years prior to the date of that person's application, or as otherwise provided by policy or state plan, a recipient made an assignment or transfer of property for the purpose of rendering the recipient eligible for assistance as provided in this part, any amount of assistance paid in excess of the amount to which the recipient was entitled shall constitute benefits incorrectly paid. Any benefits incorrectly paid shall be recoverable from the recipient, while living, as a debt due to the state and, upon the recipient's death, as a claim classified with taxes having preference under the laws of this state.
2. 1. Upon accepting assistance from the programs designated in this part, the recipient shall be deemed to have made an assignment to the state of the right to third-party insurance benefits to which the recipient may be entitled.
   2. Failure of the recipient to reimburse the state for the assistance received from any third-party insurance benefits received as a result of an illness or injury for which the assistance was paid may be grounds for removing the recipient from future participation in the benefits available under these programs as provided by policy or state plan; provided, that:
      1. Any removal from participation shall be after appropriate advance notice to the recipient;
      2. The provider of service shall not be prevented from receiving payment from the state for assistance services previously furnished the recipient; and
      3. Nothing in this subsection (b) shall require an insurer to pay benefits to the state that have already been paid to the recipient.
3. 1. The right of subrogation by the state to the recipient's right to recovery shall be subject to ordinary and reasonable attorney fees.
   2. Where a recipient has retained an attorney, the attorney shall not be considered liable unless the attorney has notice from the state of the state's claim of subrogation prior to disbursement of the funds to the recipient.
4. This section shall apply to all programs provided by the department pursuant to the Social Security Act (42 U.S.C.), as amended, and the federal Rehabilitation Act (29 U.S.C § 701 et seq.), as amended, and as provided in the Vocational Rehabilitation Law of Tennessee, compiled in title 49, chapter 11, part 6.

Acts 1990, ch. 609, § 1.

71-1-124, 71-1-125. [Reserved.]

The commissioner of finance and administration is hereby directed to begin the process of reviewing, for the purposes of reforming, the state's medicaid program. Such review shall include reviewing managed care programs and applying for needed federal waivers as well as the development of plans for consideration by the governor and the general assembly outlining options the state has under federal law concerning, but not limited to, eligibility, scope and duration of services, optional services, and rate structures. The governor is hereby authorized to appoint committees, as the governor deems appropriate, to assist in the overall review of the medicaid program, it being the legislative intent that the state of Tennessee develop a medicaid program that can continue to provide the necessary health care services to those appropriately in need at a cost that can be supported within existing sources of revenue.

Acts 1992, ch. 913, § 19; 2010, ch. 1030, § 18; 2013, ch. 236, § 62; 2016, ch. 797, §§ 6, 7.

71-1-127, 71-1-128. [Reserved.]

Acting in consultation with the departments of education, health, mental health and substance abuse services, and intellectual and developmental disabilities, through a system of competitive grants and technical assistance, the department of human services shall establish and implement “parents as first teachers” pilot projects in one (1) or more counties of the state. On or before January 1, 1998, the department shall report to the governor and to the general assembly concerning pilot project findings and recommendations.

Acts 1995, ch. 483, § 1; 2010, ch. 1100, § 132; 2012, ch. 575, § 1.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

71-1-130. Day care services — Rate of reimbursement — Market rate study.

1. The department shall perform a market rate study of day care rates annually.
2. In compliance with federal law and regulations and from the market rate study, the department shall annually determine an amount to be paid as reimbursement on behalf of low-income families, for the provision of child or infant care by a day care center, family day care home, or group day care home.
3. The commissioner shall report to the governor and the general assembly, no later than October 1 of each year, the results of the market rate study and the annual rate that has been requested by the department in its budget.
4. The average rate to be paid by the department for day care services in fiscal year 1990-1991 shall be forty-six dollars ($46.00) per week. An additional two dollars ($2.00) per day may be paid for transportation in “as-needed” day care, if it is furnished by the day care provider.
5. The amounts to be paid by the department for day care services and transportation under this section shall be subject to the availability of funding each year in the general appropriations act.
6. In any case where the department terminates a certificate for an eligible child for child care services with a child care provider, the department shall promptly, but in any event within forty-eight (48) hours, inform the provider that the child's certificate is or will no longer be in effect.
7. 1. A parent or other caretaker of an eligible child who receives a subsidy certificate from the department shall be solely responsible for payment to the provider of child care services any required copayments or other payments required pursuant to any contractual agreement with the provider of child care services.
   2. Unless extenuating circumstances or other good cause applies as determined by the department, upon removal of a child from a provider of child care services, no subsidy certificate shall be issued or any payments made by the department on behalf of the child to any subsequent provider of child care services, unless the parent or other caretaker of the eligible child has made all required copayments to, or has reached an agreement regarding outstanding copayments with, the previous provider of child care services.
   3. For purposes of this subsection (g), “copayment” means the department-imposed fee required to be paid by the parent or caretaker on behalf of the eligible child to the provider of child care services as a condition for the receipt of a subsidy certificate.
   4. Nothing in this subsection (g) shall be construed to require the department to resolve or mediate any dispute between the parent or caretaker of any eligible child and the provider of child care services relative to outstanding copayments.

Acts 1990, ch. 1072, § 1; T.C.A. (orig. ed.), § 71-3-129; Acts 1996, ch. 950, § 21; 2006, ch. 747, § 1.

71-1-131. Confidentiality of records.

1. 1. 1. The records of the department, its contractors or agents concerning the provision of Title IV-D child or spousal support services shall be confidential and information in such records shall not be subject to public inspection by any person or entity and the records shall not be used in judicial, administrative or legislative proceedings or for law enforcement activities, except as otherwise provided in this section.
      2. Any information provided to the department, its contractors or agents by any other state or federal agencies or other entities, that is required by federal or state law or regulations to be provided to the department as part of the department's Title IV-D responsibilities to establish, enforce or modify child or spousal support, but which information is otherwise protected as confidential by the laws or regulations of the United States or by any state's, territory's or other government's law or regulations, shall also be confidential, and shall be held by the department in a confidential manner. Such information shall also not be subject to public inspection by any person or entity and shall not be used in judicial, administrative or legislative proceedings or for law enforcement activities, except as otherwise provided in this section.
      3. Except as limited by subdivision (a)(2), the department, its contractors or agents may disclose any information in the records of the Title IV-D child or spousal support records for purposes directly connected with the establishment of paternity or the establishment, modification, or enforcement of child or spousal support in any judicial or administrative proceeding or for the administration of any part of the child support program.
   2. Except where information in the child or spousal support record provided to the department pursuant to any federal or state law or regulation for purposes related to the establishment, enforcement or modification of child or spousal support under the Title IV-D child support program is otherwise specifically protected from further disclosure or further use by any other federal, state, territorial or other government law or regulation, the department is specifically authorized to further utilize or further disclose any information from the Title IV-D child or spousal support records for any purposes that it determines in its sole discretion are directly connected with:
      1. The administration of the plan or program approved under Parts A, B, D, or E of Title IV of the Social Security Act or under Titles I, XIV, XIX, or XX of the Social Security Act, or the supplemental security income program (SSI) established under Title XVI of the Social Security Act;
      2. Any investigations, prosecutions, or civil, criminal or administrative proceeding conducted in connection with the administration of any such plan or program under subdivision (a)(2)(A);
      3. The administration of any other federal or federally assisted program that provides assistance, in cash or in kind, or services, directly to individuals on the basis of need;
      4. Reporting to an appropriate agency or official, information on known or suspected instances of physical or mental injury, sexual abuse or exploitation, or negligent treatment or maltreatment of a child who is the subject of a child enforcement activity under circumstances that indicate that the child's health or welfare is threatened by such treatment;
      5. A response to a request for child support payment records of a child support obligor; and
      6. Inquiries from legislative representatives of an obligor or obligee concerning child support payment records or child support legal and administrative procedures utilized to attempt recovery of support payments involved in individual cases under a support order upon a release for that person authorized in any suitable manner as determined by the department or its contractors by the affected person. An inquiry and release by one party under this subdivision (a)(2)(F) does not authorize release of information involving the other party other than the child support payment record and child support legal or administrative procedures utilized to attempt recovery of support payments from the other party. Nothing in this subdivision (a)(2)(F) shall be construed to authorize release of any information that is otherwise protected as confidential pursuant to this section.
   3. 1. Notwithstanding the foregoing provisions of this section and any other law to the contrary, no information shall be disclosed by the department pursuant to this section from Title IV-D records maintained by the department, its contractors or agents when:
         1. A protective order has been entered against one party and the release of information from such record would disclose the whereabouts of the party or the child for whose benefit the protective order was entered; or
         2. The department, its contractors or agents have reason to believe that the release of information concerning the whereabouts of one party or the child to another person may result in physical or emotional harm to the party or the child.
      2. In situations in which the prohibitions of subdivisions (a)(3)(A)(i) and (ii) arise, the department shall notify the secretary of health and human services if it determines that there exists reasonable evidence of domestic violence or child abuse against a party or the child and that the disclosure of such information could be harmful to the party or the child.
      3. When a disclosure of information is made from the United States department of health and human services' federal parent locator service (FPLS) to a court of this state or an agent of the court of this state, and the court is notified that FPLS has reasonable evidence to show that domestic violence or child abuse has occurred, the court shall determine whether disclosure to any other person of information received from FPLS could be harmful to the parent or child and, if the court determines that disclosure to any other person could be harmful, the court and its agents shall not make such disclosure.
   4. Notwithstanding any law to the contrary, when any information regarding a consumer report, as defined in 15 U.S.C. § 1681a, from a consumer reporting agency is obtained by the department, its contractors or agents, such information will be kept confidential and will be used solely for the purposes of establishing an individual's capacity to make child or spousal support payments or in determining the appropriate level of such payments, and such report shall be confidential and will not be available by subpoena or court order for any civil, criminal, or administrative proceeding, law enforcement activity or for any other purpose, except for the purpose of the establishment, enforcement and modification of child or spousal support obligations by the department, or by any federal, state, territorial, or foreign child or spousal support enforcement agency, or by their contractors or agents.
   5. Notwithstanding any law to the contrary, any financial information obtained from a financial institution by the department, its contractors or agents regarding an individual shall be confidential and will not be available by subpoena or court order for any civil, criminal or administrative proceeding, law enforcement activity or for any other purpose, and shall be disclosed only for the purpose of and to the extent necessary for the establishment, enforcement and modification of child or spousal support obligations by the department, its contractors or agents or by any federal, state, territorial, or foreign child support enforcement agency or their contractors or agents.
   6. Notwithstanding any law to the contrary, any information that is required to be given to the department of human services, its contractors or agents by any requirement of federal or state law or regulations as part of the department's responsibilities to enforce child or spousal support, but that is otherwise not subject to subdivisions (a)(4) and (a)(5), and that is otherwise ordinarily protected by federal or state law or regulations from disclosure or use because it is protected as confidential information, shall be confidential and shall not be available by subpoena or court order for any civil, criminal, administrative proceeding, law enforcement activity, or for any other purpose. Such information shall be disclosed only to the extent permitted by such federal or state laws or regulations, or only for the purpose of and to the extent necessary for the establishment, enforcement and modification of child support obligations by the department, its contractors or agents or by any federal, state, territorial, or foreign child support enforcement agency or their contractors or agents.
   7. 1. 1. Except as released pursuant to subdivision (a)(2) by the department, its contractors or agents, and except as prohibited by subdivisions (a)(3) — (a)(6), the records or portions of records or testimony of current or former employees, agents or contractors of the department concerning the Title IV-D child support program may be released only pursuant to a written order for their disclosure issued by a judicial or administrative tribunal and served personally upon the commissioner of human services or the commissioner's designee at least five (5) business days prior to the date designated for disclosure. A subpoena shall not be sufficient to obtain the disclosure of Title IV-D child support records. Unless waived by the department, any order for disclosure not properly served shall be void and of no effect whatsoever.
         2. Except as necessary for use in a judicial proceeding or an administrative proceeding concerning a Title IV-D child or spousal support matter in which such records must be disclosed, and for any appeal from the proceeding, any records of the Title IV-D child support program that may be ordered disclosed pursuant to this subdivision (a)(7)(A) for use in any other civil or criminal judicial or other administrative proceeding must also have a written protective order issued by the court or administrative law judge or hearing officer and served upon the commissioner of human services prior to the release of the records pursuant to this subdivision (a)(7)(A). The protective order shall state that there will be no further disclosure beyond the necessary use by the tribunal and the parties for the conduct of those proceedings. The department shall not be required to disclose any records until the receipt of the protective order by the department or its designee.
      2. The department may comply with a properly served order issued by a state or local judicial or administrative tribunal pursuant to this subdivision (a)(7) by sending copies of pertinent portions of the record requested, or by sending an abstract of the pertinent information from its computer records or other records, in a sealed envelope addressed to the court or administrative body or the person taking a deposition, together with an affidavit of an authorized agent of the department attesting to the authenticity of the record, unless the court or administrative body, for good cause shown, enters an order in the record requiring the attendance of a department, contractor or agent employee at the proceeding.
      3. The department, its contractors or agents may file a motion to quash or modify any subpoena or order for disclosure issued by any judicial or administrative tribunal or by any legislative entity, and no records shall be disclosed pursuant to any subpoena or order until the conclusion, including appeal, of the proceedings seeking to quash or modify the subpoena or order.
   8. A knowing violation of the provisions restricting the disclosure of information pursuant to this section shall be a Class B misdemeanor.
2. Notwithstanding any other provisions of this section, information that is required to be provided to the department of human services, its contractors or agents by the department of labor and workforce development shall not be further disclosed or utilized except to the extent permitted and for the purposes allowable pursuant to § 50-7-701 or under applicable federal or state law or regulations.

Acts 1997, ch. 551, § 10; 1998, ch. 1098, §§ 65-67; 1999, ch. 520, § 47.

Compiler's Notes. Title I of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 301 et seq.

Title IV-A of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 601 et seq.

Title IV-B of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 620 et seq.

Title IV-D of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 651 et seq.

Title IV-E of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 670 et seq.

Title XIV of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 1351 et seq.

Title XVI of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 1381 et seq.

Title XIX of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 1396 et seq.

Title XX of the Social Security Act, referred to in this section, is compiled in 42 U.S.C. § 1397 et seq.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class B misdemeanor, § 40-35-111.

Attorney General Opinions. Title IV-D child support enforcement: welfare eligibility, custody and privilege issues, OAG 00-027, 2000 Tenn. AG LEXIS 31 (2/18/00).

Records of the department of human services do not lose their character as agency records simply because they have been included in the record of a trial court proceeding and, therefore, such records remain confidential, OAG 00-128, 2000 Tenn. AG LEXIS 129 (8/10/00).

71-1-132. Rule making authority — Compliance with federal law — Notice of rulemaking.

1. 1. The department shall have rulemaking authority to establish any rules necessary for the administration of the child support program operated pursuant to Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), and shall have rulemaking authority to establish any rules to carry out the requirements of any title or part of any title that the department administers and that are necessary to implement the Title IV-D child support program and to effectuate any federal legislative or regulatory changes.
   2. Notwithstanding any law to the contrary, the department shall have authority after July 1, 1997, to promulgate any emergency rules, following approval by the attorney general and reporter pursuant to § 4-5-208, to implement chapter 551 of the Acts of 1997 or of any title or part of any title that the department administers and that may be necessary to implement chapter 551 of the Acts of 1997, which emergency rules shall become effective upon the effective date of any provisions of Acts 1997, ch. 551, if the implementation period of any provisions of chapter 551 of the Acts of 1997, occurs before July 1, 1998; provided, however, that the department shall promulgate permanent rules to implement chapter 551 of the Acts of 1997, pursuant to a rulemaking hearing as required by the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Nothing in this subsection (a) shall be construed to abrogate the ability of the department at any time to utilize the provisions for implementing emergency rules as otherwise permitted by the Uniform Administrative Procedures Act.
2. Notwithstanding any other state law to the contrary, the department shall have the authority to immediately implement any federal legislative or regulatory changes by emergency rules following approval by the attorney general and reporter pursuant to § 4-5-208 if such federal legislative or regulatory changes occur before July 1, 1998; provided, however, that permanent rules shall be promulgated pursuant to the Uniform Administrative Procedures Act. Nothing in this subsection (b) shall be construed to abrogate the ability of the department at any time to utilize the provisions for implementing emergency rules as otherwise permitted by the Uniform Administrative Procedures Act.
3. Notwithstanding any other law to the contrary, any forms mandated by the secretary of health and human services that are required to be utilized by the department of human services in any aspect of the Title IV-D child support program administered by the department shall be implemented immediately by emergency rule of the department following approval by the attorney general and reporter pursuant to § 4-5-208, and shall, in all respects, immediately supersede any forms in use at the time the department implements the use of such federal forms by emergency rule. Any requirements of the laws or regulations of this state that are inconsistent with the language or procedures established by such federal forms shall be subordinate to the requirements imposed by such federal forms.
4. Prior to the filing of a notice of rulemaking for permanent rules pursuant to this section, the rules shall be sent by the department for review by an advisory group composed of two (2) representatives of the state court clerks' conference appointed by the president of the state court clerks' association, two (2) representatives of the judges of courts who have child support responsibilities, one of whom will be appointed by the chief justice of the supreme court and one of whom will be appointed by the president of the council of juvenile and family court judges, a representative of the administrative office of the courts, and two (2) representatives of the department of human services designated by the commissioner. Nothing contained in this section shall be construed to prevent the department from filing any notice of rulemaking prior to or at the time the proposed permanent rules are sent to the advisory group where the department determines that immediate filing of the notice without prior review by the advisory group is necessary to meet any requirements relative to the potential expiration of emergency rules or to comply with any federal statutory or regulatory requirements or any federal policy directives, nor shall the requirement of this subsection (d) be construed to supersede any requirements of subsection (c).

Acts 1997, ch. 551, § 68; 2009, ch. 566, §  12.

Compiler's Notes. Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

Acts 1997, ch. 551, referred to in this section, enacted and amended numerous sections relative to child support, primarily in title 36, chapter 5. For full treatment, see the Session Laws Disposition Table in Volume 13.

71-1-133. Child care services fraud — Restitution — Civil recovery of overpayments.

1. 1. Whoever knowingly obtains, or attempts to obtain, or aids or abets any person or entity to obtain or attempt to obtain, by means of a willfully false statement or representation or by impersonation, or by any fraudulent scheme, any child care services, or payments for child care services, that are provided under any program by the department of human services or by or through any of the department's grantees or contractors, to which such person or entity is not entitled, or of a value greater than that to which such person or entity is entitled, the value of which is, or would be, one hundred ($100) or more, commits a Class E felony. Upon conviction, such person shall be sentenced for such offense as provided by law, or shall be fined not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000), or both.
   2. If the value of child care services or the payment for such services obtained in the manner described in subdivision (a)(1) is, or would be, less than one hundred dollars ($100), such person commits a Class A misdemeanor and shall be sentenced for such offense, or shall be fined, or both, as provided by law.
2. In addition to any of the penalties pursuant to subsection (a), any person convicted of any offense specified in subsection (a) shall be ordered to make restitution in the total amount found to be the value of the child care services that form the basis for the conviction. In the event any person ordered to make restitution pursuant to this section is found to be indigent and, therefore, unable to make restitution in full at the time of conviction, the court shall order a periodic payment plan consistent with the person's financial ability.
3. Notwithstanding any other law to the contrary, prosecutions for any of the offenses specified in subsection (a) shall be commenced within four (4) years next after the commission of the offense. For purposes of this subsection (c), any such offense that is based upon a willful failure to report information as required by law or by any program requirements relating to eligibility for child care services is considered a continuing offense until such information is reported.
4. The department may recover by civil action in any appropriate court the value of child care services that have been incorrectly paid to or received by any person or any entity and the costs of the proceeding and reasonable attorneys fees necessary for collection.
5. 1. For purposes of this section, “child care” means the supervision, protection, and provision for the basic physical, developmental or emotional needs of a child, or evidence of any effort to provide for, or any apparent or stated intent to provide for, the supervision, protection, and basic physical, developmental or emotional needs of a child by any person or entity outside the child's own home or by a person who comes to the child's home, whether or not the person or entity is licensed to provide such care or is unregulated.
   2. For purposes of this section “services” means the payment for, or provision by, the department, its grantees or its contractors of:
      1. Any costs of, or any fees for, child care provided by any person or entity;
      2. Any transportation costs or any transportation fees for the child to obtain child care or any related child care services; or
      3. Any food supplement or meal assistance programs, excluding the food stamp or food assistance program under chapter 5, part 3 of this title, for a child who is receiving child care.

Acts 2000, ch. 923, § 1.

Cross-References. Penalty for Class E felony, § 40-35-111.

Penalty for Class A misdemeanor, § 40-35-111.

71-1-134. License, certification or registration — Notifications — Prerequisites — Website — Electronic notifications.

1. The department and each board, commission, agency or other governmental entity created pursuant to this title shall notify each applicant for a professional or occupational license, certification or registration from the department, board, commission, agency or other governmental entity where to obtain a copy of any statutes, rules, guidelines, and policies setting forth the prerequisites for the license, certification or registration and shall, upon request, make available to the applicant a copy of the statutes, rules, guidelines, and policies.
2. The department and each board, commission, agency or other governmental entity created pursuant to this title shall notify each holder of a professional or occupational license, certification or registration from the board, commission, agency or other governmental entity of changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies, and guidelines, upon the issuance and upon each renewal of a holder's license, certification or registration.
3. The department and each board, commission, agency or other governmental entity created pursuant to this title shall establish and maintain a link or links on the entity's website to the statutes, rules, policies, and guidelines that are implemented or enforced by the entity and that impact an applicant for, or a holder of, a professional or occupational license, certification, or registration from the entity.
4. 1. The department and each board, commission, agency, or other governmental entity created pursuant to this title shall allow each holder of a professional or occupational license, certification or registration from the department, board, commission, agency or other governmental entity to have the option of being notified by electronic mail of:
      1. Renewals of the holder's license, certification or registration;
      2. Any fee increases;
      3. Any changes in state law that impact the holder and are implemented or enforced by the entity, including newly promulgated or amended statutes, rules, policies and guidelines; and
      4. Any meeting where changes in rules or fees are on the agenda. For purposes of this subdivision (d)(1)(D), the electronic notice shall be at least forty-five (45) days in advance of the meeting, unless it is an emergency meeting then the notice shall be sent as soon as is practicable.
   2. The department and each board, commission, agency or other governmental entity created pursuant to this title shall notify each holder of a license, certification or registration of the availability of receiving electronic notices pursuant to subdivision (d)(1) upon issuance or renewal of the holder's license, certification or registration.

Acts 2008, ch. 1070, § 12; 2012, ch. 952, § 9.

Compiler's Notes. Acts 2008, ch. 1070, § 13 provided that each entity subject to the act shall promulgate rules to effectuate the purposes of the act. The rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

71-1-135. Victims of human trafficking.

1. The commissioner of human services shall establish a plan for the delivery of services to victims of human trafficking after consultation with the following departments:
   1. Department of children's services;
   2. Department of health;
   3. Department of intellectual and developmental disabilities;
   4. Department of mental health and substance abuse services; and
   5. Tennessee bureau of investigation.
2. The plan developed under subsection (a) shall include, but not be limited to, provisions to:
   1. Identify victims of human trafficking in this state;
   2. Identify community-based services for victims of human trafficking;
   3. Assist victims of human trafficking through the provision of information regarding access to benefits and services to which those victims may be entitled;
   4. Coordinate delivery of services and information concerning health care, mental health care, legal services, housing, job training, education and victim's compensation funds;
   5. Prepare and disseminate educational materials and provide training programs to increase awareness of human trafficking and the services available to victims; and
   6. Assist victims of human trafficking with family reunification.
3. In addition to the requirements of subsection (b), the plan shall include a timeline for which the department anticipates the state would be capable of implementing the plan, along with anticipated rates of assistance to victims of human trafficking, cost of implementation, an itemized rationale for both, and any other factor that the department opines will significantly contribute to or detract from the success of implementing the plan.
4. By July 1, 2013, the department of human services shall transmit a copy of the plan and issue a report to the chair of the judiciary committee of the senate and the chair of the judiciary committee of the house of representatives.

Acts 2012, ch. 575, § 1; 2012, ch. 963, § 1; 2013, ch. 236, § 33; 2019, ch. 345, § 132.

Amendments. The 2019 amendment substituted “chair of the judiciary committee of the house of representatives” for “chair of the criminal justice committee of the house of representatives” at the end of (d).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Part 2
Advances to Social Services Contractors

71-2-101. Short title.

This part may be cited and shall be known as the “Tennessee Commission on Aging and Disability Act of 2001.”

Acts 1981, ch. 428, § 2; 1982, ch. 834, § 2; T.C.A., § 14-6-101; Acts 2001, ch. 397, § 2.

Compiler's Notes. The former chapter (title 14, ch. 6) (Acts 1963, ch. 233, §§ 1-9; 1967, ch. 231, §§ 1, 2; 1975, ch. 30, § 1; 1976, ch. 806, § 1(4); 1977, ch. 378, § 1; T.C.A. 14-1701 — 14-1710), concerning the commission on aging, was repealed by Acts 1981, ch. 428, § 1.

Law Reviews.

Senior Moments: Protecting Older Adults From Financial Exploitation: Proposed Federal Laws and Regulations, 52 Tenn. B.J. 26 (2016).

71-2-102. Purposes of part.

The purposes of this part are to provide a comprehensive and coordinated service system for the state's aging population, giving high priority to those persons in greatest need, to conduct studies and research into the needs and problems of the aging, and to provide a system of home and community based long-term care services that is responsive to the needs of all Tennesseans regardless of age, disability, or economic status.

Acts 1981, ch. 428, § 3; 1982, ch. 834, § 3; T.C.A., § 14-6-102; Acts 2001, ch. 397, § 3.

71-2-103. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Area agency on aging” means any agency that has been designated by the commission to plan for and provide services to the elderly and disabled within a defined geographic area;
2. “Commission” means the commission on aging and disability;
3. “Home and community based long term care” means supportive services, including, but not limited to, personal assistance, homemaker and chore services, adult day services, assistive technology, home delivered meals, assisted transportation and mobility services, respite and hospice care, and rehabilitative care, that are provided to older persons and individuals with disabilities to remain independent and avoid inappropriate institutionalization and that help individuals maintain physical, social, and spiritual independence in the least restrictive environment;
4. “Older Americans Act” means the Older Americans Act of 1965, as amended (42 U.S.C. § 3001 et seq.); and
5. “Planning and service area” means a geographical division of the state that serves as an administrative unit for the purpose of planning and delivering services to older persons.

Acts 1981, ch. 428, § 4; 1982, ch. 834, § 4; T.C.A., § 14-6-103; Acts 2001, ch. 397, § 4.

71-2-104. Creation and composition of commission — Terms of office.

1. There is hereby created a commission known as the Tennessee commission on aging and disability, which shall plan, develop, and administer projects, programs, services and state and federal funds designated for, and relating to, disabled adults and older persons in this state, including those sponsored by the federal government, when such projects, programs and services are not the specific responsibility of another state agency pursuant to some other federal or state law. The commission shall be designated as the sole state agency to plan and administer all state activities related to and authorized under the Older Americans Act (42 U.S.C. § 3001 et seq.), except for Title V activities under the Older Americans Act (42 U.S.C. § 3056 et seq.), which shall be administered by the department of labor and workforce development.
2. The commission shall consist of twenty-two (22) members, who shall be persons who provide leadership in programs for the elderly and disabled in the state. Nineteen (19) of the members shall be appointed by the governor, in accordance with this part. Members may come from such diverse areas as housing, recreation, employment, medicine, nursing, social service, business, adult education, long-term care, religion, research and advocacy. It is desirable that the commission membership reflect the geographic diversity of the state, and include minorities and women at least in proportion to their presence in the state's population and that at least one half (½) of the membership be representative of the population served. Staff members of programs funded wholly or in part by the commission shall be ineligible to serve as commission members.
3. 1. Members of the commission shall be appointed as follows:
      1. One (1) person shall be appointed by the governor from each of the nine (9) planning and service areas, in consultation with each of the nine (9) advisory councils to the nine (9) area agencies on aging. The governor may appoint such persons from a list of two (2) persons nominated by each advisory council to the nine (9) area agencies on aging. In making these appointments, the governor shall strive to achieve adequate representation from both rural and urban areas. Nothing shall preclude members of the advisory councils from being appointed as commission members;
      2. One (1) member of the governor's personal staff, who shall be appointed by the governor;
      3. One (1) person who is an active member of a chartered, statewide organization that advocates exclusively for older persons shall be appointed by the governor. Each such organization may submit two (2) nominations for consideration by the governor;
      4. One (1) person who is an active member of a federally chartered organization with statewide membership and chapters chartered in this state, that advocates exclusively for older persons, shall be appointed by the governor. Each such organization may submit two (2) nominations for consideration by the governor;
      5. One (1) person who is an active member of a chartered, statewide organization that advocates exclusively for disabled persons shall be appointed by the governor. Each such organization may submit two (2) nominations for consideration by the governor;
      6. The commissioners of human services, health, veterans services, mental health and substance abuse services, and intellectual and developmental disabilities, and the director of TennCare or their designees;
      7. The executive director of the council on developmental disabilities; and
      8. The speaker of the senate and the speaker of the house of representatives each shall name one (1) legislator from such speaker's respective house to serve on the commission as ex officio members without voting power to attend and sit with the commission in open meetings, in order to report back to the general assembly on actions being taken or considered by the commission.
   2. The governor may ask the nominating body in any case for additional nominees.
4. As vacancies occur on the commission, persons shall be appointed to fill the vacancy for the unexpired term, in accordance with the original nomination process.
5. 1. Members appointed to serve on the commission pursuant to this section shall be appointed in accordance with the criteria established in this section. Members of the commission as it existed prior to October 1, 2012, may be eligible for nomination and appointment pursuant to the criteria established in this section.
   2. The terms of office for members of the commission shall be six (6) years, except for members of the governor's personal staff and cabinet whose terms shall be coterminous with that of the appointing governor, and except for the legislators appointed pursuant to subdivision (c)(1)(H) whose terms shall be coterminous with the terms for which they have been elected to the general assembly. Vacancies shall be filled by appointment pursuant to the criteria in this section only for the remainder of the unexpired term.
   3. A two-year absence from commission membership qualifies any member for reappointment following the criteria of this section.

Acts 1981, ch. 428, § 5; 1982, ch. 834, § 5; 1984, ch. 943, § 2; T.C.A., § 14-6-104; Acts 2001, ch. 397, § 5; 2003, ch. 311, § 1; 2010, ch. 1100, §§  133, 134; 2012, ch. 575, § 2; 2012, ch. 986, §§ 12-14; 2015, ch. 24, § 7.

Compiler's Notes. The Tennessee commission on aging and disability, created by this section, terminates June 30, 2026. See §§ 4-29-112, 4-29-247.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

Acts 2015, ch. 24,  § 7 provided that the Tennessee Code Commission is requested to change references in Tennessee Code Annotated, as volumes are replaced and supplements are issued, from “veterans’ affairs” and “veterans affairs” to “veterans services” wherever the language appears in reference to the name or commissioner of the Tennessee department of veterans services.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

Attorney General Opinions. Legislative authority to limit commission's discretion, OAG 98-102, 199 Tenn. AG LEXIS 102 (5/27/98).

71-2-105. Powers and duties of commission.

1. The commission shall:
   1. Meet as necessary to transact business; provided, that meetings shall be held at least quarterly;
   2. Promulgate bylaws to provide for the election of officers, establishment of committees, meetings, and other matters relating to commission functions;
   3. Elect a chair, a vice chair, and three (3) representatives, one (1) from each of the three (3) grand divisions, who shall comprise the executive committee to function between quarterly meetings;
   4. Allocate funds for projects and programs for older persons and disabled adults, subject to the limits of the appropriation by the general assembly and funds available or received from the federal government for such projects and programs. The commission is authorized to accept funds from the federal government and private sources and to administer such funds to achieve its purposes pursuant to § 71-2-104(a);
   5. Serve as an advocate within government and in the community for older persons and disabled adults in Tennessee;
   6. Designate planning and service areas and area agencies on aging in accordance with the Older Americans Act (42 U.S.C. § 3001 et seq.), and federal regulations promulgated under the Older Americans Act. The commission shall review the boundaries of the planning and service areas from time to time and shall change them as necessary to comply with the Older Americans Act or to reflect changes in governmental boundaries or major changes in population distribution;
   7. Adopt the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for the purpose of administrative hearings and rulemaking as required under this part;
   8. Receive the cooperation of other state departments and agencies in carrying out the policies and objectives of this part;
   9. Enter into such contracts and make such grants within the limits of appropriated funds, as are necessary or appropriate under this part, and in a manner consistent with state or federal law;
   10. Make available to older persons information concerning the nutritional benefits of eating garden produce to promote participation by older persons in community gardens, as defined in § 43-24-102; and
   11. Provide to the general assembly, no later than January 15 of each year, an updated report and analysis of the waiting list for the state options program.
2. In addition to the powers, responsibilities or duties granted to the commission elsewhere in this part, the commission may:
   1. Promulgate, amend, revise, and rescind such rules as are necessary and appropriate to carry out the purposes of this part in accordance with the Uniform Administrative Procedures Act, including rules necessary for the proper management and oversight of the home and community based options program;
   2. Notwithstanding § 71-5-1419(c), promulgate rules and regulations allocating resources between urban and rural areas to program components that provide services to elderly and disabled individuals in need of assistance who do not qualify for long-term care services under the Medical Assistance Act of 1968, compiled in chapter 5, part 1 of this title;
   3. Create subcommittees to undertake such special studies as it shall authorize and include in such subcommittees persons qualified in any field of activity relating to aging or disability, or both;
   4. Advise the governor and the heads of state departments and agencies regarding policies, programs, services, allocation of funds, and the needs of older persons and disabled adults in Tennessee and make recommendations for legislative action to the governor and to the general assembly;
   5. Hold hearings, conduct research and other appropriate activities to determine the needs of older persons and disabled adults in the state, including particularly, but not limited to, their needs for health and social services, and to determine the existing services and facilities, private and public, available to meet those needs;
   6. Develop and conduct, alone or in coordination with other agencies, research and demonstration projects and programs that provide training, education, and services to advance the interests of older persons and disabled adults;
   7. Stimulate more effective use of existing resources and services for older persons and disabled adults and develop programs, opportunities and services that are not otherwise provided for older persons and disabled adults, with the aim of developing a comprehensive and coordinated system for the delivery of health and social services; and
   8. Conduct, develop, and implement, alone or in coordination with other agencies, research, pilot projects, and programs designed to promote and encourage healthy aging.
3. 1. In addition to the powers, responsibilities, and duties granted to the commission, the commission shall operate an outreach and counseling program through the state health insurance assistance program (SHIP) to provide state residents with information, education, and counseling relative to:
      1. Medicare;
      2. TennCare;
      3. Medicare supplement insurance;
      4. Enrollment in the medicare prescription drug plan (Part D), and the accompanying low-income subsidy;
      5. Finding help with the cost of prescription drugs during coverage gaps and access to drugs not covered under Part D;
      6. Medicare advantage options;
      7. Long-term care planning and insurance;
      8. Claims and billing problem resolution, information, and referral on public benefit programs;
      9. Employer and retiree health insurance options for those with medicare and veterans benefits; and
      10. Other military health insurance for those with medicare.
   2. Minimally, such outreach shall include:
      1. A program to assist medicare-eligible persons in processing the necessary documents in order to participate in the programs in subdivision (c)(1);
      2. A toll-free number staffed during business hours to provide information regarding the programs in subdivision (c)(1);
      3. A website or referral to website links that provide information regarding the programs in subdivision (c)(1); and
      4. Presentations to senior groups regarding the availability of the programs in subdivision (c)(1).
   3. The commission shall implement the outreach program within the commission's available resources.
   4. The commission may delegate any or all such responsibilities to a private or public contractor.
   5. The commission is authorized to make application for grants to fund programs set forth in subdivision (c)(1).
   6. The commission may adopt rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to implement this subsection (c).
4. Nothing in this part or the Long-Term Care Community Choices Act of 2008, compiled in chapter 5, part 14 of this title, shall authorize the commission to exercise any control or authority over any aspect of the administration of programs for home and community-based long-term care services that were operating on the basis of federal waivers in effect on June 19, 2001.

Acts 1981, ch. 428, § 6; 1982, ch. 834, § 6; 1984, ch. 943, § 3; T.C.A., § 14-6-105; Acts 2001, ch. 397, § 6; 2002, ch. 703, § 1; 2012, ch. 986, § 15; 2013, ch. 236, § 58; 2014, ch. 556, § 5; 2015, ch. 461, § 1; 2016, ch. 690, §§ 1-4.

Compiler's Notes. Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Review of administrative plans and rules by commission on aging, § 4-3-123.

71-2-106. Reimbursement for expenses of commission members.

Members of the commission shall receive no compensation for their services other than a reimbursement for traveling and other expense incurred in the attendance of meetings required by this part or other meetings authorized by the commission. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 1981, ch. 428, § 7; 1982, ch. 834, § 7; 1984, ch. 943, § 4; T.C.A., § 14-6-106; Acts 2001, ch. 397, § 7.

71-2-107. Executive director.

1. The governor shall appoint the executive director. The executive director shall be the chief administrative officer of the commission. The director shall be a full-time employee of the commission and shall have such education as deemed necessary by the governor, with a minimum of five (5) years' experience in the fields of aging or disability or administrative experience necessary to properly operate and manage the programs under this part. The executive director shall have the authority to conduct ordinary and necessary business in the name of the commission in accordance with this part and as determined by the commission from time to time.
2. The executive director shall:
   1. Be available to serve or be represented on state level committees or bodies where the purpose of that state body or committee is concerned with the general health, education or welfare of the citizens of Tennessee when older persons or disabled adults are affected by the decisions of that body;
   2. Develop, as required under the Older Americans Act (42 U.S.C. §§ 3001 et seq.), a plan for state programs, services and activities for older persons, to be updated periodically;
   3. Supervise the expenditure of funds and be responsible for complying with all applicable provisions of state and federal law in the receipt of and disbursement of funds;
   4. Serve as an advocate within government and in the community for older persons and disabled adults in Tennessee;
   5. Recommend to the commission such rules as are necessary and appropriate to carry out the purposes of this part;
   6. Employ or contract for the services of experts and technical consultants as may be necessary to carry out the purposes of this part;
   7. Conduct evaluations and prepare reports in accordance with the terms of the Older Americans Act and other state and federal laws;
   8. Within the limits of appropriated funds, employ such personnel as may be required to carry out this part. The executive director shall appoint and may remove all such personnel in accordance with the state service system; and
   9. Provide staff support to the commission.

Acts 1981, ch. 428, § 8; 1982 ch. 834, § 8; 1984, ch. 943, § 5; T.C.A., § 14-6-107; Acts 2001, ch. 397, § 8; 2012, ch. 800, § 49; 2012, ch. 986, § 16.

Compiler's Notes. Acts 2012, ch. 800, § 1 provided that the act, which amended subdivision (b)(8), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

71-2-108. Direct or conflicting interests.

If any matter before the commission involves a project, transaction, or relationship in which a member or a member's associated institution, business or agency has a direct or a conflicting interest, the member shall make known to the commission that interest and shall be excused from the proceedings.

Acts 1981, ch. 428, § 10; 1982, ch. 834, § 11; 1984, ch. 943, § 6; T.C.A., §§ 14-6-109, 71-2-109; Acts 2001, ch. 397, § 9.

Compiler's Notes. Former § 71-2-108, formerly § 14-6-108 (Acts 1981 ch. 428, § 9; 1982, ch. 834, § 9), concerning the governor's advisory council on aging, was repealed by Acts 1984, ch. 943, § 1.

71-2-109. Long-term care ombudsman — State office — Personnel.

1. Within the commission there shall be an established office of the state long-term care ombudsman, referred to as “the office” in this section, which shall carry out those functions delineated in § 307(a)(12) of the Older Americans Act (42 U.S.C. § 3027(a)(12)).
2. The office shall designate and contract with, either directly or through the area agency on aging, a local grantee to establish and operate a local ombudsman program in each of the designated planning and service areas. Each local ombudsman program shall carry out the duties of the office in each area through paid staff and trained volunteers. For the purposes of carrying out those duties, and only to the extent required by § 307(a)(12)(H)(vi) of the Older Americans Act (former 42 U.S.C. § 3027(a)(12)(H)(vi) [repealed]), each local program unit will be considered to be a “subdivision” of the office; provided, that this shall have no effect upon the character of local government or private agencies or corporations, and they shall not be considered to be agencies of this state.
3. Paid staff and volunteers shall be trained as required by and under the supervision of the office, which shall certify those persons who have been properly trained as “representatives” of the office; provided, that local program employees and volunteers shall not be considered to be employees of this state. The office shall maintain a current listing of certified representatives. Certified representatives shall be immune from liability for acts or omissions committed within the scope of their assigned duties, except for willful, malicious, or criminal acts or omissions or for acts or omissions done for personal gain.

Acts 1989, ch. 353, § 1; T.C.A., § 71-2-111; Acts 2001, ch. 397, § 10.

Compiler's Notes. Former § 71-2-109, concerning conflicts of interest, was transferred to § 71-2-108 in 2001.

71-2-110. Congregate meal sites.

The standards and procedures developed by the commission relative to the nutrition program for older persons operated in accordance with the Older Americans Act of 1965 (42 U.S.C. § 3001 et seq.), shall establish a threshold of an annual average of ten (10) congregate and home-delivered meals a day for any nutrition sites.

Acts 1997, ch. 436, § 1; T.C.A., § 71-2-112; Acts 2001, ch. 397, § 11; 2015, ch. 461, § 2.

Compiler's Notes. Former § 71-2-110, formerly § 14-6-110 (Acts 1977, ch. 378, § 1; T.C.A. § 14-1710), concerning senior citizens' center, was repealed by Acts 1981, ch. 428, § 1, and thus was not transferred to title 71 with the rest of this part in 1987.

Attorney General Opinions. This section not in conflict with state or federal law, OAG 98-102, 199 Tenn. AG LEXIS 102 (5/27/98).

Legislative authority to limit commission's discretion, OAG 98-102, 199 Tenn. AG LEXIS 102 (5/27/98).

71-2-111. Verification of individual background information and performance of criminal history background check of employees and volunteers.

1. The commission shall require its contractors, grantees, and subcontractors to verify individual background information for newly hired employees and volunteers who provide direct care for, have direct contact with, or have direct responsibility for the safety and care of disabled or elderly persons in their homes.
2. The commission shall promulgate rules that develop standard procedures specifying minimum requirements applicable to verifying individual background information or performing a criminal history background check of all paid or volunteer in-home care providers for vulnerable elderly and disabled persons. The commission is expressly authorized to promulgate such rules as emergency rules pursuant to § 4-5-208(a)(4) to provide an immediate effective date.
3. If the criminal history background check is conducted by the Tennessee bureau of investigation or the federal bureau of investigation, it shall be conducted by the submission of fingerprint cards to the Tennessee bureau of investigation or the federal bureau of investigation. Any cost incurred by the Tennessee bureau of investigation or the federal bureau of investigation shall be paid by the organization requesting such investigation and information. If a criminal history background check is conducted by the Tennessee bureau of investigation or the federal bureau of investigation, the payment of such costs shall be made in the amounts established by § 38-6-103.

Acts 2001, ch. 397, § 12; 2009, ch. 566, § 12.

Compiler's Notes. Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

Former § 71-2-111, concerning the long-term care ombudsman office, was transferred to § 71-2-109 in 2001.

71-2-112. Working group to provide draft of field guide for law enforcement — Statutes and resources related to assisting in prevention, investigation, and prosecution of abuse.

The executive director of the commission shall establish a working group that is led by the commission and includes the division of adult protective services of the department of human services, the department of health, the district attorneys general conference, members of local law enforcement, and other state departments and agencies as may be needed. The working group shall draft and develop a field guide to provide law enforcement in this state with the specific statutes and other resources related to assisting in the prevention, investigation, and prosecution of abuse under chapter 6, part 1 of this title.

Acts 2016, ch. 1044, § 5.

71-2-113. Establishment of collaborative coalition.

The executive director of the commission shall establish and lead a multidisciplinary collaborative coalition of state agencies and departments involved in the prevention, investigation, and prosecution of elder and vulnerable adult abuse, neglect, and exploitation. In an effort to reduce this abuse, neglect, and exploitation, the coalition shall develop and undertake strategies to increase communication with the public and state agencies, propose educational outreach, and promote the sharing of existing resources and information.

Acts 2016, ch. 1044, § 6.

71-2-114. Tennessee vulnerable adult coalition (TVAC).

There is established the Tennessee vulnerable adult coalition (TVAC) as an advisory entity. The coalition shall be administratively attached to the commission on aging and disability. This coalition shall be convened by the executive director of the commission. The executive director shall invite appropriate entities to participate on a volunteer basis. The coalition shall bring public and private entities in this state together to promote the collaboration necessary to prevent the abuse, neglect, and financial exploitation of elder and vulnerable adults.

Acts 2016, ch. 1044, § 7.

71-2-115. Inventory of funding sources — Report — Updates.

1. The commission shall design and oversee a resource mapping of all federal and state funding sources and funding streams as well as resources for nonprofit and other nongovernmental entities that support the health, safety, and welfare of older adults in this state who are sixty (60) years of age or older. The resource mapping shall include, but not be limited to:
   1. An inventory of all federal and state funding sources that support these older adults in this state;
   2. An inventory of all state, federal, or government subsidized services and programs offered to these older adults in this state, set out by program, target population, geographical region, agency, or any other grouping that would assist the general assembly in determining whether there are overlapping programs that lead to duplication within the state, gaps in service delivery, and any administrative inefficiencies generally;
   3. A description of the manner in which the funds are being used within the agencies or organizations, the performance measures in place to assess the use of such funding, and the intended outcomes of the programs and services;
   4. Government mandates for the use of the funds, if any; and
   5. An inventory of the funds for which the state may be eligible, but is currently not receiving or using, and the reasons why the funds are not being used.
2. The commission shall update the report each year and shall subsequently assure that the resource map is periodically and timely updated, so as to maintain a current resource map of the funds used to support these older adults in the state.
3. The comptroller of the treasury and each department of state government or agency in this state shall provide assistance upon request to the commission in effectuating the purpose of this section.
4. On or before January 15, 2019, the commission shall provide a preliminary report to the health and welfare committee of the senate and the health committee of the house of representatives. On or before December 15, 2020, and each successive year thereafter, the commission shall provide a full report to the health and welfare committee of the senate and the health committee of the house of representatives. The full report shall include, but not be limited to, the resource map and any recommendations, including proposed legislation, for improving the efficiency and effectiveness of programs offered to older adults who are sixty (60) years of age or older in this state.

Acts 2018, ch. 548, § 1.

71-2-116. State palliative care and quality of life council.

1. As used in this section:
   1. “Commission” means the Tennessee commission on aging and disability;
   2. “Council” means the state palliative care and quality of life council;
   3. “Executive director” shall mean the executive director of the Tennessee commission on aging and disability; and
   4. “Palliative care” means an approach that improves the quality of life of patients and their families facing the problems associated with chronic life- threatening illness, through the prevention and relief of suffering by means of early identification and assessment and treatment of pain and other problems, physical, psychosocial, and spiritual. Palliative care includes, but is not limited to:
      1. Discussions involving a patient's goals for treatment;
      2. Discussions involving treatment options that are appropriate to the patient, including, where appropriate, hospice care; and
      3. Comprehensive pain and symptom management.
2. The state palliative care and quality of life council is established.
3. The purpose of the council is to continually assess the current status of palliative care in the state and to review the barriers that exist that prevent such care from being obtained and utilized by the people who could benefit from such care. The council shall provide recommendations to the governor and to the general assembly on issues related to its work.
4. The council membership shall 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 shall consist of no more than eleven (11) members. The executive director shall 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 (1) council member shall be a board-certified hospice and palliative medicine physician, at least one (1) council member shall be a licensed certified registered nurse practitioner with expertise in palliative care, and one (1) council member shall be from the department of health. Council members shall be appointed for a term of three (3) years. The members shall elect a chair and vice chair, whose duties shall be established by the council. The council shall fix a time and place for regular meetings and shall meet no less than twice yearly.
5. Council members shall receive no compensation for their services or travel reimbursement for attending meetings.
6. The council shall consult with and advise the executive director on matters related to the establishment, maintenance, and operation of palliative care initiatives in this state.
7. The commission shall provide administrative support to the council.
8. By January 15 of 2020, and by January 15 of each subsequent year, the council shall submit a report to the general assembly that addresses barriers to palliative care access, analyzes service utilization data, and provides recommendations and best practices to address gaps in service.

Acts 2018, ch. 955, § 2; 2020, ch. 561, § 3.

Code Commission Notes.

Acts 2018, ch. 955, § 2 purported to enact § 71-2-115.  Section 71-2-115 was previously enacted by Acts 2018, ch. 548, § 1; therefore, the enactment by Acts 2018, ch. 955, § 2 was designated as § 71-2-116 by the code commission.

Compiler's Notes. The state palliative care and quality of life council, created by this section, terminates June 30, 2027. See §§ 4-29-112, 4-29-248.

Amendments. The 2020 amendment deleted “advisory” preceding “council” throughout the section.

Effective Dates. Acts 2020, ch. 561, § 4. March 19, 2020.

71-2-117. Alzheimer's disease and related dementia advisory council.

1. As used in this section:
   1. “Alzheimer's disease” means a progressive degenerative disease of the brain that leads to dementia, and is characterized by the finding of unusual helical protein filaments in nerve cells of the brain; and
   2. “Executive director” means the executive director of the Tennessee commission on aging and disability.
2. There is created the state Alzheimer's disease and related dementia advisory council, referred to in this section as the “council.”
3. 1. The council shall be composed of no less than eleven (11) and no more than sixteen (16) members, which include:
      1. One (1) member of the health and welfare committee of the senate, to be appointed by the speaker of the senate;
      2. One (1) member of the health committee of the house of representatives, to be appointed by the speaker of the house of representatives;
      3. The commissioner of health, or the commissioner's designee, who serves as an ex officio voting member;
      4. One (1) person to be appointed by the governor;
      5. One (1) licensed medical professional with experience in Alzheimer's disease and related dementia care, to be appointed by the executive director;
      6. One (1) person diagnosed with Alzheimer's disease or related dementia, to be appointed by the executive director;
      7. A representative of Alzheimer's Tennessee, Inc., to be appointed by the executive director;
      8. A representative of the Alzheimer's Association, to be appointed by the executive director;
      9. A representative of the bureau of TennCare, to be appointed by the executive director;
      10. A representative of the Tennessee Health Care Association, to be appointed by the executive director;
      11. A representative of LeadingAge Tennessee, to be appointed by the executive director;
      12. A representative of the Tennessee Nurses Association, to be appointed by the executive director;
      13. A representative of the department of mental health and substance abuse services, to be appointed by the executive director;
      14. The executive director of the Tennessee commission on aging and disability; and
      15. Any other person possessing relevant experience with Alzheimer's disease and related dementia care, to be appointed by the executive director.
   2. 1. The members listed in subdivisions (c)(1)(E)-(M) may be appointed by the executive director from lists of qualified nominees submitted by groups involved in the study of Alzheimer's disease and related dementia, including, but not limited to, the Alzheimer's Association, Alzheimer's Tennessee, the department of health, the department of mental health and substance abuse services, the bureau of TennCare, the Tennessee Health Care Association, the Tennessee Association for Home Care, and the Tennessee Nurses Association.
      2. The executive director shall consult with the interested groups listed in subdivision (c)(2)(A) to determine qualified persons to fill the positions as provided in this subsection (c).
4. 1. The persons appointed under subdivisions (c)(1)(A) and (B) are nonvoting members of the council. They serve only so long as they remain members of the general assembly. Any legislative vacancy on the council shall be filled by the respective speaker, for the purpose of serving out the remainder of the unexpired term.
   2. The members appointed under subdivisions (c)(1)(D)-(N) are voting members and are eligible for reappointment to the council. Any vacancy among the private citizen members shall be filled by the respective appointing authority to serve for the remainder of the unexpired term.
5. Except as provided in subsection (f) for initial appointments, the terms of the members of the council are for three (3) years.
6. 1. In order to stagger the terms of the newly appointed council members, initial appointments shall be made as follows:
      1. The persons appointed under subdivisions (c)(1)(D)-(F) serve an initial term of one (1) year, which expires on June 30, 2020;
      2. The persons appointed under subdivisions (c)(1)(G)-(I) serve an initial term of two (2) years, which expires on June 30, 2021; and
      3. The persons appointed under subdivisions (c)(1)(J) and (K) serve an initial term of three (3) years, which expires on June 30, 2022.
   2. Following the expiration of members' initial terms as prescribed in subdivision (f)(1), all three-year terms begin on July 1 and terminate on June 30, three (3) years later.
7. The members shall elect a chair and a vice chair, whose duties are established by the council.
8. In making the appointments under subsection (c), the executive director shall strive to ensure that the council is composed of persons who are diverse in professional or educational background, ethnicity, race, sex, geographic residency, heritage, perspective, and experience.
9. The council shall fix a time and place for regular meetings and shall meet no less than twice yearly to review the state plan and all related metrics and outcomes. The executive director shall call the first meeting of the council. All other meetings of the council shall be at the call of the chair.
10. A majority of the voting members of the council constitutes a quorum, and all official action of the council requires a quorum.
11. The respective appointing authority may remove a private citizen member of the council for misconduct, incapacity, or neglect of duty.
12. 1. The legislative members of the council shall be reimbursed as members of the general assembly are paid for attending legislative meetings as provided in § 3-1-106.
    2. The private citizen members of the council do not receive travel expenses or compensation for their service.
13. The purpose of the council is to:
    1. Continually assess the current status of Alzheimer's disease and related dementia in this state and to assess the current and future impact of Alzheimer's disease and dementia on Tennessee residents;
    2. Examine the existing industries, services, and resources addressing the needs of persons, families, and caregivers affected by Alzheimer's disease and related dementia;
    3. Develop a strategy to mobilize a state response to matters regarding Alzheimer's disease and related dementia; and
    4. Provide recommendations to the governor and to the general assembly on issues related to its work.
14. The council is administratively attached to the commission on aging and disability. The council shall consult and advise the executive director on matters related to the establishment, maintenance, and operation of state initiatives related to Alzheimer's disease and related dementia.
15. The commission and council shall make best efforts to engage the community at large in making its assessments and recommendations regarding Alzheimer's disease and related dementia.
16. No later than January 15, 2020, the council shall develop and submit an Alzheimer's disease state plan to the chair of the government operations committee of the senate, the chair of the government operations committee of the house of representatives, the chair of the health and welfare committee of the senate, and the chair of the health committee of the house of representatives that identifies barriers to Alzheimer's disease care, analyzes service utilization data, and includes recommendations, metrics, and best practices to address gaps in service. The council shall update the plan and report to the chairs of such legislative committees on its progress no later than January 15 of each year.

Acts 2019, ch. 364, § 2; 2020, ch. 526, §§ 1-4.

Compiler's Notes. The state Alzheimer's disease and related dementia advisory council, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Amendments. The 2020 amendment substituted “sixteen (16) members” for “thirteen (13) members” in the introductory language of (c)(1); added present (c)(1)(L)-(N), and redesignated former (c)(1)(L) as present (c)(1)(O); in (c)(2)(A), deleted “private citizen” preceding “members listed”, substituted “(M)” for “(K)”, and inserted “department of mental health and substance abuse services, the”; and in the first sentence of (d)(2), deleted “private citizen” preceding “members” and substituted “(N)” for “(K)”.

Effective Dates. Acts 2019, ch. 364, § 3. May 10, 2019.

Acts 2020, ch. 526, § 5. March 6, 2020.

Part 2
Old Age Assistance

71-3-101. Short title.

This may be cited as the “Families First Act of 1996.”

Acts 1996, ch. 950, § 2; T.C.A., § 71-3-151.

Code Commission Notes.

Former § 71-3-151 was transferred to § 71-3-101 by the code commission in 2012.

Attorney General Opinions. Families first relative caregiver project, OAG 99-176, 1999 Tenn. AG LEXIS 132 (9/10/99).

71-3-102. Program subject to availability of federal funds.

Continuation of the families first program is subject to, and limited by, the availability of federal funds that may be made available to the state of Tennessee by congress and the United States department of health and human services, or its successor agency.

Acts 1996, ch. 950, § 3; T.C.A., § 71-3-152.

Code Commission Notes.

Former § 71-3-152 was transferred to § 71-3-102 by the code commission in 2012.

71-3-103. Part definitions.

1. As used in this part, unless the context otherwise requires:
   1. “Assistance” means, unless otherwise required by the context, temporary assistance;
   2. “Caretaker relative” means the father, mother, grandfather or grandmother of any degree, brother or sister of the whole or half-blood, stepfather, stepmother, stepbrother, stepsister, aunt or uncle of any degree, first cousin, nephew or niece, the relatives by adoption within the previously named classes of persons, and the biological relatives within the previous degrees of relationship, and the legal spouses of persons within the previously named classes of persons, even if the marriage has been terminated by death or divorce, with whom a child is living;
   3. “Child” or “children” means:
      1. A person or persons under eighteen (18) years of age; or
      2. A person who has not attained nineteen (19) years of age and who is a full-time student in a secondary school or the equivalent and who is expected to graduate by the nineteenth birthday;
   4. “Department” means the department of human services;
   5. “Dependent child” means, except as otherwise stated in this part, a child living with a caretaker relative if the child is deprived of parental support due to death of a parent, continued absence of a parent from the home, physical or mental incapacity of a parent, or unemployment or underemployment of either or both parents and if the child's legally responsible relatives are not able to provide adequate care and support of such child without temporary assistance;
   6. “Family” means the eligible unit of children and parent or parents or caretaker relative or relatives residing in a common residence; and
   7. “Temporary assistance” means the program to provide economic support and other support services to families that is provided by the state utilizing funds made available by congress and the secretary of health and human services to the state pursuant to the Social Security Act (42 U.S.C. § 301 et seq.), and any state funds that may be appropriated by the general assembly designated to support the temporary assistance program. If at any time, federal funds are not available to provide the continuation of the temporary assistance program, the state shall not be obligated to continue the program by using only state funds.
2. It is the intent of the general assembly that any welfare program administered by the state shall be in compliance with Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.), and regulations promulgated pursuant to that act, and all other applicable federal civil rights legislation.

Acts 1996, ch. 950, § 4; T.C.A., § 71-3-153.

Code Commission Notes.

Former § 71-3-153 was transferred to § 71-3-103 by the code commission in 2012.

71-3-104. Eligibility for temporary assistance.

1. A family shall be eligible for temporary assistance pursuant to this part if:
   1. A dependent child resides in this state with a caretaker relative in that family, or an individual who applies for temporary assistance is pregnant, or as otherwise defined by the department;
   2. The family meets income standards based upon the standard of need for a family based upon its size and income and based upon resource limits as determined by the department in its rules;
   3. The family members are engaged in work activities as set forth in subsection (g), except as exempted by this part or by rule of the department;
   4. The caretaker relative has agreed to and complies with a personal responsibility plan as developed by the department in accordance with subsection (h); and
   5. The family or individual of the family is otherwise eligible pursuant to federal or state laws or regulations.
2. 1. A caretaker relative who becomes ineligible for any reason other than a failure to comply with work requirements or to cooperate with child support obligations shall be eligible for transitional childcare assistance for a period specified by the department while the caretaker relative is employed, in school, or in employment training. Childcare assistance terminated due to failure to comply with work requirements shall be reinstated upon verification by the department that the work requirements were, in fact, being met immediately preceding such ineligibility. Childcare assistance shall be paid, on a sliding fee scale based upon the family's income for so long as federal funding or any related waiver is in effect.
   2. Food stamp assistance shall continue to be available to these families as prescribed by federal or state law or regulations.
   3. 1. A family that becomes financially ineligible for temporary assistance due to an increase in a caretaker relative's earned income, but continues to meet all other eligibility criteria, including compliance with the program's work requirements, shall be eligible for transitional temporary assistance for no more than six (6) months.
      2. The amount of the transitional temporary assistance shall be based upon the family's income and household size.
      3. Receipt of transitional temporary assistance shall count toward the recipient's maximum time limit under subsection (d).
      4. The department is authorized to promulgate rules to effectuate this subdivision (b)(3) in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
3. Persons who are recipients of temporary assistance and who marry while receiving such assistance may disregard the new spouse in determining eligibility for three (3) months after the date of marriage.
4. 1. Except as provided in this part or as otherwise required by federal law, no family shall receive assistance if that family includes an adult who has received temporary assistance from this program or the program of any other state or territory for a total of sixty (60) months, whether or not consecutive, unless an exemption is granted pursuant to this part.
   2. As to a child who was not the head of a household or who was not married to the head of a household, the sixty (60) month time limit stated in subdivision (d)(1) shall not begin to run during the time that the child was a member of a family receiving assistance under this part.
   3. A family shall be eligible for temporary assistance beyond the sixty-month time limit stated in subdivision (d)(1) if:
      1. The family does not contain an adult;
      2. The caretaker relative is sixty-five (65) years of age or older;
      3. The caretaker relative is caring for a disabled or incapacitated child relative or disabled adult relative, based upon criteria set forth in the department's rules;
      4. The caretaker relative is disabled, based upon criteria set forth in the department's rules; or
      5. As otherwise required by federal and state laws or regulations.
   4. The exemptions in subdivision (d)(3) are subject to the limitations for the percentages of individuals allowed to receive temporary assistance beyond sixty (60) months.
5. 1. No payment of assistance shall be made for an individual who is not the head of a household, who has not reached eighteen (18) years of age, who has a child who is at least sixteen (16) weeks of age in the person's care, and who has not successfully completed a high school education or its equivalent, unless the individual participates in educational activities directed toward the attainment of a high school diploma or its equivalent.
   2. No payment of assistance shall be made to an individual who is head of a household, who has not reached twenty (20) years of age, who has a child who is at least sixteen (16) weeks of age in the person's care, and who has not successfully completed a high school education or its equivalent unless the individual participates in:
      1. Educational activities directed toward the attainment of a high school diploma or its equivalent; or
      2. Thirty (30) hours of countable work activities as delineated in subsection (g).
6. 1. Except as provided in subdivision (f)(2), if a person applying for assistance under this chapter is under eighteen (18) years of age, has never married, and is either pregnant or has the applicant's child in the applicant's care, the applicant is not eligible for assistance if:
      1. The applicant and the applicant's child or children do not live in a place maintained by the applicant's parent, legal guardian, or other adult relative as such person's own home or other suitable living arrangement as otherwise defined by rule of the department; and
      2. The department determines after investigation that the physical or emotional health or safety of the person applying for assistance or the dependent child or children would not be jeopardized if the applicant and the dependent child or children were required to live in one of the situations described in subdivision (f)(1)(A).
   2. Subdivision (f)(1) does not apply if:
      1. The person applying for assistance has no parent, legal guardian or other adult relative whose whereabouts are known;
      2. No parent, legal guardian or other adult relative of the person applying for assistance allows the person to live in the home of that parent, legal guardian or other adult relative as determined by the department's verification; or
      3. The department otherwise determines that there is good cause not to apply subdivision (f)(1).
7. All family members who are not otherwise exempt pursuant to rules of the department and who receive temporary assistance pursuant to this part shall engage in work, training or educational activities. The department shall define the types of activities by rule. These activities may include, but shall not be limited to, the following:
   1. Employment;
   2. Work experience activities;
   3. On-the-job training;
   4. Job search and job readiness assistance;
   5. Community service programs;
   6. Vocational educational training;
   7. Job skills and educational training related directly to employment;
   8. Education directly related to employment, in the case of a recipient who has not received a high school diploma or a certificate of high school equivalency; and
   9. Satisfactory attendance at a secondary school, in the case of a recipient who:
      1. Has not completed secondary school; and
      2. Is a dependent child or a head of a household who is nineteen (19) years of age or younger.
8. 1. As a condition of eligibility, an applicant for or a recipient of temporary assistance must agree to a personal responsibility plan developed by the department in direct consultation with the applicant or recipient. For all applicants or recipients who are not exempt from the work requirements established by this part, an individualized career plan shall be developed establishing goal-oriented work activities designed to provide the applicant or recipient with an opportunity to move toward self-sufficiency. Supportive services determined essential to successful engagement in the work activities shall be provided. At least once each twelve (12) months throughout the period of continuous temporary assistance provided pursuant to this part, the department shall monitor and evaluate the personal responsibility plan to promote the recipient's success in gaining self-sufficiency.
   2. 1. The personal responsibility plan shall require participation in personal responsibility activities as set forth in subsection (g). The department may provide either a parent education training class for parents or caretakers of children in pre-kindergarten through third grade (pre-K-3) or a program of volunteer service in school in which a parent or caretaker relative who is a recipient of temporary assistance under this part may agree to participate.
      2. The personal responsibility plan shall also require the parent or other caretaker relative, regardless of age or disabling status, to enter a plan that requires, but is not limited to, the following:
9. The children in the family attend school;
10. No payment of temporary assistance shall be made to an individual for ten (10) years from the date of conviction, guilty plea or plea of nolo contendere of that individual in a federal or state court for having made a fraudulent statement or representation with respect to the place of residence of the individual in order to receive assistance simultaneously from two (2) or more states under the temporary assistance program under this part, TennCare or any program of medical services under Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.), the Food Stamp Act of 1977 (7 U.S.C. § 2011 et seq.), or under the supplemental security income program under Title XVI of the Social Security Act (42 U.S.C. § 1381 et seq.).
11. 1. No payment of assistance shall be made to an individual who is fleeing to avoid prosecution or custody or confinement after conviction under the laws of the place from which the individual flees, for a crime, or an attempt to commit a crime, that is a felony under the laws of the place from which an individual flees, or that, in the case of the state of New Jersey, is a high misdemeanor under the laws of such state, or who is violating a condition of probation or parole imposed by federal or state law.
    2. 1. Pursuant to the option granted the state by 21 U.S.C. § 862a(d), an individual convicted on or before June 30, 2011, under federal or state law of a felony involving possession, use or distribution of a controlled substance shall be exempt from the prohibition contained in 21 U.S.C. § 862a(a) against eligibility for families first program benefits for such convictions, if such person, as determined by the department:
          1. (a)  Is currently participating in a substance abuse treatment program approved by the department of human services;
             1. (i)  (a)  Is currently participating in a substance abuse treatment program approved by the department of human services;
             2. Is currently enrolled in a substance abuse treatment program approved by the department of human services, but is subject to a waiting list to receive available treatment, and the individual remains enrolled in the treatment program and enters the treatment program at the first available opportunity;
             3. Has satisfactorily completed a substance abuse treatment program approved by the department of human services; or
             4. Is determined by a treatment provider licensed by the department of mental health and substance abuse services not to need substance abuse treatment according to TennCare guidelines; and
          2. Is complying with, or has already complied with, all obligations imposed by the criminal court, including any substance abuse treatment obligations.
       2. Eligibility based upon the factors in subdivision (k)(2)(A) must be based upon documentary or other evidence satisfactory to the department, and the applicant must meet all other factors of program eligibility, including, specifically, being accountable for the requirements of the personal responsibility plan required by this part.
       3. Notwithstanding subdivision (k)(2)(A) or (k)(2)(B) to the contrary, no person convicted of a Class A felony for violating a provision of title 39, chapter 17, part 4 shall be eligible for the exemptions provided by subdivision (k)(2)(A) or (k)(2)(B).
       4. Pursuant to the option granted the state by 21 U.S.C. § 862a(d), an individual convicted on or after July 1, 2011, under federal or state law of a felony involving possession, use or distribution of a controlled substance shall be exempt from the prohibition contained in 21 U.S.C. § 862a(a) against eligibility for families first program benefits for such convictions, if such person meets the following requirements:
          1. Requirements contained in subdivision (k)(2)(A) or (k)(2)(B) and (C);
          2. If treatment was prescribed according to the requirements in subdivision (k)(2)(A) or (k)(2)(B), successful completion of a substance abuse program must occur within three (3) attempts. If such person does not complete the originally prescribed treatment program within three (3) attempts, the individual shall be ineligible for a period of three (3) years.
       5. Pursuant to the option granted the state by 21 U.S.C. § 862a(d), an individual convicted of a second drug felony under federal or state law of a felony involving possession, use or distribution of a controlled substance on or after July 1, 2011, shall not be eligible for families first program benefits for a period of three (3) years from the date of conviction.
12. No payment of assistance pursuant to this part shall be made for an illegal alien in a family.

The children in the family receive immunizations and health checks; and

The parent or caretaker relative cooperate in the establishment and enforcement of child support, including, but not limited to, the naming of the father of a child for purposes of paternity establishment, unless good cause not to cooperate exists, as defined by the department.

The personal responsibility plan shall include requirements, if the need is identified relative to the child, that:

The parent or a suitable adult or guardian shall attend two (2) or more conferences within a year with the child's teacher to review the child's status in school;

Attend at least eight (8) hours of parenting classes; or

The parent shall participate in such support services that the child may need as determined by the department to overcome any school, family, or other barriers that may interfere with the child's and the family's ability to be successful.

(i)  Unless exempt, refusal or failure to engage in full-time employment, part-time employment or other training or other work preparation activities as set forth in subsection (g), without good cause, or the failure to cooperate in the establishment or enforcement of child support without good cause, shall result in denial of eligibility for, or termination of, temporary assistance for the entire family unit.

Failure to comply with the personal responsibility plan as required under subdivisions (h)(2)(B)(i) and (ii), without good cause, shall result in a percentage reduction with regard to the temporary assistance payment in the amount of twenty percent (20%) until such time as compliance occurs.

The personal responsibility plan may provide transportation assistance, if needed to participate in required activities; provided, that the department shall first utilize available community transportation resources before providing such assistance from department funds. The department shall provide childcare services for those individuals who are receiving benefits, participating in work activities delineated in subsection (g), and not exempt from work activities pursuant to this part.

The work requirements shall be excused for:

A parent or caretaker relative who proves to the satisfaction of the department the existence of the person's temporary incapacity or permanent disability;

A parent or caretaker relative who proves to the satisfaction of the department that the person must provide personal care for a disabled relative child or adult relative living in the home;

A single parent with a child under sixteen (16) weeks of age;

A person who is sixty-five (65) years of age or older;

A nonparental caretaker relative who chooses not to be included in the assistance group; and

Other exemptions that may be required by federal law or regulation, as well as other exemptions that may be established by rule of the department in order to promote the purposes of this part.

If, without good cause, a recipient of temporary assistance fails to comply with a child support or work plan requirement imposed by this part or prescribed within the personal responsibility plan, then the family shall be subject to appropriate sanction by the department, which may include termination of assistance for a period to be determined by the department.

The maximum payment standard for a family shall not be increased for a child who is born to a caretaker relative of a temporary assistance unit who, as determined by the statement of a physician, becomes pregnant while receiving temporary assistance, or as otherwise defined by regulation of the department; provided, that if the family loses eligibility for any reason other than a failure to cooperate with the department or a failure to comply with the personal responsibility plan and if the family subsequently becomes eligible again for temporary assistance, then the department shall base the maximum payment standard on the actual size of the family unit including such child.

Acts 1996, ch. 950, § 5; 1999, ch. 520, § 47; 2000, ch. 981, § 76; 2002, ch. 715, § 1; 2007, ch. 31, §§ 1-8; 2009, ch. 186, § 38; 2010, ch. 1056, § 1; 2010, ch. 1100, § 135; 2011, ch. 221, § 1; T.C.A., § 71-3-154; Acts 2012, ch. 575, § 1; 2012, ch. 912, §§ 1-3; 2014, ch. 960, § 1; 2018, ch. 789, § 3.

Code Commission Notes.

Former § 71-3-154 was transferred to § 71-3-104 by the code commission in 2012.

Compiler's Notes. Acts 2007, ch. 31, § 11 provided that the department shall have the authority to implement the provisions of the act by public necessity rules (now emergency rules) to become effective July 1, 2007; provided, that permanent rules shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled at Tennessee Code Annotated, title 4, chapter 5.

Acts 2007, ch. 31, § 12 provided that the act shall not affect right and duties that matured, penalties that were incurred, or proceedings that were begun before July 1, 2007.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2014, ch. 960, § 2 provided that the commissioner of human services is authorized to promulgate rules to effectuate the purposes of the act. All rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Penalty for Class A felony, § 40-35-111.

71-3-105. Rules and regulations — Deductions — Reports to governor and general assembly — Miscellaneous provisions.

1. In determining eligibility under § 71-3-104 for, and amounts of, grants under the temporary assistance program, the department of human services shall adopt rules and regulations establishing a standard of need that reflects the true cost of the following, less any discounts for other sources of assistance provided for in subsection (b):
   1. Safe, healthful housing;
   2. Minimum clothing for health and decency;
   3. A low cost adequate food budget as recommended by the United States department of agriculture's thrifty food plan (7 U.S.C. § 2012(u));
   4. An allowance for essential medical care; and
   5. Other necessary items including, but not limited to, transportation, personal care and educational expenses.
2. The department shall deduct from the costs determined in subsection (a) the value of the following:
   1. Housing assistance programs;
   2. Food coupons or food stamps or food assistance under chapter 5, part 3 of this title; and
   3. TennCare or medicaid.
3. The commissioner shall report to the governor and the general assembly no later than October 1 of each year regarding projected annual adjustments to the standard of need necessitated by changes in the costs and benefits described in subsections (a) and (b). The report of the commissioner shall also contain:
   1. An estimate of the percentage of the adjusted standard of need that could be paid if the appropriation for the next fiscal year were to remain constant;
   2. An estimate of the cost of paying the same percentage of the standard of need considering necessary adjustments in such standard of need;
   3. The recommendation of the commissioner as to the percentage of the adjusted standard of need that should be paid in the next fiscal year and the cost of that adjusted standard of need; and
   4. Any other relevant information that would be helpful to the governor and the general assembly in making decisions concerning the temporary assistance program.
4. Any amount of earned income in an aid-to-the-blind case, as provided in § 71-4-105, and any other income required by federal statutes to be exempt in determining need, shall be exempt and shall not be considered as a resource in determining the amount of assistance to be paid to any person under this part.
5. The standard of need for each fiscal year shall be established by rule on July 1 of each year in accordance with subsections (a) and (b).
6. 1. The department of human services shall conduct a temporary assistance client characteristics study at least once every three (3) years. The study shall be conducted either by contract or within the department and shall be completed prior to any review, required by federal regulation, of the temporary assistance standard of need and temporary assistance grant payments.
   2. 1. Notwithstanding subdivision (f)(2)(B), the maximum grants for the temporary assistance program, expressed as a percentage of the standard of need, may be raised if approved as a line item in the annual appropriations act. An increase in the maximum grants for the temporary assistance program shall not be approved by rules.
      2. The maximum standard grant for the temporary assistance program shall be determined as follows:
         1. For an assistance group size of one (1) person, the maximum standard grant shall be twenty-two percent (22%) of the fiscal year 2018-2019 standard of need for an assistance group size of one (1) person; and
         2. For each additional member added to an assistance group, an additional two percent (2%) shall be added to twenty-two percent (22%), and the maximum standard grant for each respective assistance group size shall be the resulting percentage of the fiscal year 2018-2019 standard of need for that assistance group size.
      3. The department is authorized to promulgate rules to effectuate this subsection (f) in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
7. In determining eligibility under § 71-3-104, the department shall adopt rules that use the standard of need less any exemption provided by subsection (d) to determine eligibility for amounts of grants. Such rules shall be adopted in a manner in which the maximum amount of child support and other income may be provided to the family and children without loss of grant and medicaid benefits.

Acts 1996, ch. 950, § 6; 2010, ch. 1030, § 19; T.C.A., § 71-3-155; Acts 2018, ch. 789, § 4.

Code Commission Notes.

Former § 71-3-155 was transferred to § 71-3-105 by the code commission in 2012.

71-3-106. [Reserved.]

1. The department shall administer the families first program established by this part.
2. The commissioner has the authority to organize the department in any manner necessary as permitted by law, to establish any necessary county or district or regional offices and to appoint area and district managers and directors in those offices or in the department's state office, and to establish any necessary internal policies and procedures for the proper administration of the families first program and for the provision of temporary assistance, child support, jobs programs and other related support services.
3. From time to time, the commissioner may appoint committees composed of representatives from the public or private sectors, or both, for such purpose and duration as may be deemed appropriate or required. Members of such committees shall be reimbursed for their actual expenses for attending meetings of their respective committees. All reimbursement for travel expenses shall be in accordance with the comprehensive travel regulations as promulgated by the department of finance and administration and approved by the attorney general and reporter.
4. The department shall administer the program of economic assistance to families under Titles IV-A (42 U.S.C. § 601 et seq.), IV-D (42 U.S.C. § 651 et seq.), and IV-F (repealed) of the Social Security Act or related federal laws or regulations as they may continue to exist pursuant to federal statutes and regulations on or after September 1, 1996, and as such program statutes and regulations may be amended, or pursuant to any waivers that are granted by the federal government from those regulations as a result of the enactment of this legislation.
5. Acting in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the department shall have rulemaking authority to establish any necessary rules for the administration of this part and shall have rulemaking authority to establish any rules to carry out the requirements of any title or part of any title that the department administers and that are necessary to immediately implement this part to effect any federal legislative changes.
6. The department shall establish by rule the procedures for provision of notice of the eligibility determination to the applicant or recipient as well as the grievance and appeal procedures that are applicable to meet due process. It is the intent of this section that grievance and appeals procedures available pursuant to this part, and of chapter 5, part 12 of this title shall not be more narrow than such procedures available to recipients of assistance upon August 31, 1996. The department shall also establish by rule, administrative procedures through which a recipient shall be granted an extension of temporary assistance, beyond the maximum eighteen-month period and the maximum sixty-month period set forth in § 71-3-104(d), for “good cause” or based upon the failure of the state to timely provide essential child care, transportation, education or job training services prescribed within the recipient's personal responsibility plan.
7. All other agencies of the state shall cooperate with the department in any manner necessary for the administration of this part.
8. Each governmental entity of the state, directly affected by any permanent rule promulgated by the department of human services to implement this part and of chapter 5, part 12 of this title, shall review such permanent rule not later than fourteen (14) calendar days after the rule is filed with the secretary of state. Prior to such deadline, the affected governmental entity shall submit written comments to the secretary of state for filing with the applicable rule and for distribution to the chair of the government operations committee of the senate and to the chair of the government operations committee of the house of representatives. Such written comments shall include, but not be limited to, a description of the impact of such permanent rule upon the existing rules, policies or procedures of the affected governmental entity.
9. The commissioner of human services shall develop a written plan or statement providing for interagency coordination of services provided under this part and chapter 5, part 12 of this title, which shall include services provided by the departments of human services, education, labor and workforce development, and transportation.

Acts 1996, ch. 950, § 8; 1999, ch. 520, § 47; 2000, ch. 981, § 68; 2009, ch. 103, § 2; T.C.A., § 71-3-157.

Code Commission Notes.

Former § 71-3-157 was transferred to § 71-3-107 by the code commission in 2012.Former subdivision (e)(2) was deleted by the code commission in 2004. Subdivision (e)(2) read: “In order to comply with this section's September 1, 1996, effective date, the department may implement its rulemaking authority through promulgation of public necessity rules (now emergency rules) in accordance with § 4-5-209 (now § 4-5-208). Upon delivering a draft of any such public necessity rules (now emergency rules) to the attorney general and reporter for approval as required by such section, the department shall simultaneously deliver a copy of such draft public necessity rules (now emergency rules) to the chair of the government operations committee of the senate and to the chair of the government operations committee of the house of representatives.”

Compiler's Notes. Former title IV-F of the Social Security Act, referred to in this section, formerly compiled in 42 U.S.C. § 681 et seq, was repealed effective July 1, 1997.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

71-3-108. Modifications to program — Federal waivers.

1. The commissioner of human services is authorized, pursuant to the requirements of subsections (b) and (c), to immediately implement changes necessary as a result of federal legislation designed to reform welfare programs that are, or may be in the future, administered by the department of human services or other appropriate state agencies.
2. It is the intent of the general assembly that any modifications to the state's welfare programs be implemented that are required by federal law or that are necessary to ensure or enhance federal funding of the state's welfare programs or that are necessary for the implementation of such changes. Acting in accordance with § 4-5-108, the department shall have authority to immediately implement any federal legislative changes by emergency rules; provided, that permanent rules shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
3. For purposes of this section, “welfare program” is defined as any federal or state means-tested program administered by the department of human services, or any child support enforcement program administered by the department of human services pursuant to Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), the Carl D. Perkins Vocational and Applied Technology Act authorized by P.L. 101-392 [repealed], and the Adult Education Act, authorized by P.L. 100-297 [repealed], as amended by the National Literacy Act of 1991, P.L. 102-73 [repealed].
4. 1. The commissioner of human services is authorized to seek and to implement waivers to carry out this part and chapter 5, part 12 of this title to the extent permitted by federal authorities.
   2. 1. If waivers that are necessary to implement any or all of the provisions of this part, chapter 3, parts 9 and 10 and chapter 5, part 12 of this title cannot be obtained, or in those counties for which the continued operation of the existing welfare program may be required by the federal authorities for the evaluation of any waivers granted by the federal government, the department shall continue to administer, pursuant to the requirements of federal statutes and regulations, the federally funded programs of economic or welfare assistance to families and children under Titles IV-A and IV-D of the Social Security Act (42 U.S.C. § 601 et seq. and 42 U.S.C. § 651 et seq.), respectively, as they may continue to exist on or after September 1, 1996, until such time as such programs may be terminated or modified by the congress of the United States, the United States department of health and human services or its successor, or the general assembly.
      2. 1. If at any time:
            1. The congress of the United States terminates or modifies the Title IV-A block grant program for federally funded economic or welfare assistance to families and children to the states under the temporary assistance to needy families program (TANF) as provided in Public Law 104-193 (1996) (42 U.S.C. § 601 et seq.), as amended;
            2. The congress of the United States, or the United States department of health and human services or its successor terminates, or modifies, Tennessee's Section 1115 waiver obtained pursuant to subdivision (d)(1) on July 26, 1996, that resulted in the creation of the families first program; or
            3. In the future, action by congress, or by the United States department of health and human services or its successor, terminates or modifies any subsequent federally funded economic or welfare assistance program or any waiver that may be obtained for the operation of such a program for families and children, or a waiver that may be obtained for a welfare program demonstration project;
         2. Then, in that circumstance, the department shall continue to administer, pursuant to the requirements of federal statutes and regulations existing at that time or subsequently enacted, the programs of economic or welfare assistance to families and children under Titles IV-A and IV-D of the Social Security Act (42 U.S.C. § 601 et seq. and 42 U.S.C. § 651 et seq.), respectively, as they may continue to exist on or after the date of such termination or modification or until the granting of a new waiver, and this part, chapter 3, parts 9 and 10 and chapter 5, part 12 of this title shall be superseded to the extent:
            1. Those provisions are inconsistent with any federal requirements for which no waiver exists; or
            2. No further federal funding is available, unless the general assembly specifically authorizes and funds the continuation of such provisions that do not otherwise conflict with federal law, regulation or waiver requirements.
      3. The termination or modification of any federally funded programs for the economic assistance to families and children shall not result in any entitlement to funding by the state of Tennessee for such programs pursuant to this part, chapter 3, parts, 9 and 10 and chapter 5, part 12 of this title, or otherwise, unless appropriations are made in the appropriations act specifically for such purpose.
      4. Notwithstanding any law to the contrary, the department shall have authority to implement any rules, by emergency rule, that are necessary to:
         1. Maintain compliance with such terminations or modifications;
         2. Maintain federal funding;
         3. Comply with any federal regulation that has not been waived; or
         4. Comply with any waiver requirements;

         provided, however, that the department shall promulgate permanent rules pursuant to a rulemaking hearing as required by the Uniform Administrative Procedures Act.

5. Child support received by the department with respect to recipients of temporary assistance shall be passed on to the recipient in the same manner as was the practice of the department prior to July 1, 1996, with respect to recipients of aid to families with dependent children (AFDC). However, the department shall not be required to pass through any portion of child support that by federal law must be paid to the federal government. The department shall seek any available waiver from a requirement that any portion of child support must be paid to the federal government, and, if a waiver is granted, pass the support through to the recipient of temporary assistance as required in this subsection (e).

Acts 1996, ch. 950, § 9; 2003, ch. 119, § 1; 2009, ch. 566, § 12; T.C.A., § 71-3-158.

Code Commission Notes.

Former § 71-3-158 was transferred to § 71-3-108 by the code commission in 2012.

Compiler's Notes. Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

The Adult Education Act, referred to in this section, formerly compiled in 20 U.S.C. § 1201 et seq., was repealed effective August 7, 1998. The National Literacy Act of 1991, referred to in this section, was repealed August 7, 1998.

The Section 1115 waiver, referred to in this section, refers to Section 1115 of the Social Security Act, codified in 42 U.S.C. § 1315.

The Carl D. Perkins Vocational and Applied Technology Act, referred to in this section, formerly compiled in 20 U.S.C. § 2301 et seq., was replaced by general amendment.

Attorney General Opinions. The Department of Human Services may not promulgate public necessity rules (now emergency rules) to revise and/or update existing Families First program regulations as part of a general program re-design necessary to maintain federal funding, OAG 07-09, 2007 Tenn. AG LEXIS 9 (1/25/07).

71-3-109. Diversion grants.

1. Except for a child-only grant for temporary assistance, the department shall evaluate appropriate cases to determine if a diversion grant would be effective in meeting a family's immediate and compelling need and prevent the family from going on temporary assistance or to assist the family in leaving temporary assistance. The diversion grant shall be awarded pursuant to the requirements in subsections (b) and (c) and the rules of the department.
2. The diversion grant:
   1. Shall meet immediate needs so that an applicant or recipient can avoid temporary cash assistance;
   2. May be granted as the department considers appropriate;
   3. May not cover the same type of immediate need met by a previous diversion grant unless the department determines that the current immediate need is a new and verified emergency;
   4. May range from one (1) to twelve (12) months of temporary cash assistance, dependent upon the department's determination that there is a compelling need for a diversion grant;
   5. Shall be calculated based upon the amount of temporary cash assistance an applicant is eligible to receive under the Temporary Assistance for Needy Families/Families First program; and
   6. May not duplicate periods of temporary cash assistance.
3. The applicant's temporary assistance eligibility period will be reduced by the number of months the applicant receives a diversion grant.

Acts 2014, ch. 787, § 1.

Compiler's Notes. Acts 2014, ch. 787, § 2 provided that the commissioner of human services is authorized to promulgate rules to implement the diversion grant program in accord with title 4, chapter 5.

71-3-110. Distribution system.

The commissioner of human services has the authority to establish a system for distribution of any benefits provided by this part, or under the continued provisions of federal law and regulations as provided under § 71-3-108, by means of electronic benefits transfer system and to contract with public or private entities to provide any services necessary to carry out such provision as the commissioner shall determine is appropriate.

Acts 1996, ch. 950, § 11; T.C.A., § 71-3-160; Acts 2013, ch. 402, § 3.

Code Commission Notes.

Former § 71-3-160 was transferred to § 71-3-110 by the code commission in 2012.

71-3-111. Training and supervision.

1. The department shall appropriately train and supervise all employees and other persons who are responsible for developing, evaluating and managing personal responsibility plans for recipients of temporary assistance. Such training and supervision shall include, but not be limited to, a competency based case management program to measure the effectiveness of each plan and to provide appropriate oversight and implementation.
2. Any necessary part-time or temporary job counseling and job placement personnel shall be employed as provided by law.
3. Any additional full-time positions required by the various departments involved in the implementation of this part and of chapter 5, part 12 of this title shall be employed as provided by law.

Acts 1996, ch. 950, § 29; T.C.A., § 71-3-161.

Code Commission Notes.

Former § 71-3-161 was transferred to § 71-3-111 by the code commission in 2012.

71-3-112 — 71-3-114. [Reserved.]

Any individual development accounts or other such accounts established for the benefit of recipients under this part or related programs shall be administered as approved by the state treasurer, who shall prescribe investment procedures for the corpus of such funds in a manner that the state treasurer determines in consultation with the commissioners of human services and finance and administration; provided, that the interest accruing from such accounts shall remain in those accounts and shall be distributed to the recipients, on an equitable basis, in the manner determined by the state treasurer in consultation with the commissioners.

Acts 1996, ch. 950, § 34; T.C.A., § 71-3-165.

Code Commission Notes.

Former § 71-3-165 was transferred to § 71-3-115 by the code commission in 2012.

71-3-116. Veterans education benefits.

Notwithstanding any other provision of this chapter, to the extent permitted by federal law, the value of federal veterans education benefits received by an applicant shall not be included as any form of income when making eligibility determinations for assistance under this part.

Acts 2003, ch. 239, § 1; T.C.A., § 71-3-166.

Code Commission Notes.

Former § 71-3-166 was transferred to § 71-3-116 by the code commission in 2012.

Compiler's Notes. Provisions concerning federal veteran's educational benefits are codified in 38 U.S.C. § 3101.

71-3-117. Amendment of provisions.

All assistance granted under this part shall be deemed to be granted and to be held subject to any amending or repealing statute that may hereafter be passed, and no recipient shall have any claim for compensation, or otherwise, by reason of such recipient's assistance being affected in any way by any amending or repealing statute.

Acts 1937, ch. 50, § 16; C. Supp. 1950, § 4765.54 (Williams, § 4765.53); T.C.A. (orig. ed.), §§ 14-317, 14-8-117.

71-3-118. Charging for assistance to applicants unlawful.

1. It is unlawful for any person, firm, or corporation either to charge or to receive, directly or indirectly, anything of value for assisting any person in making application to the proper authorities of this state, or any of them, for relief or assistance under any statutes of this state providing for financial assistance to dependent children.
2. A violation of this section is a Class C misdemeanor.

Acts 1937, ch. 118, § 1; 1941, ch. 41, § 1; mod. C. Supp. 1950, § 4765.56 (Williams, § 4765.37); T.C.A. (orig. ed.), §§ 14-318, 14-8-118; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

71-3-119. Use of lists of recipients.

1. Except as permitted by §§ 71-1-117 and 71-1-118, it is unlawful for any person, except for purposes directly connected with the administration of this part, to solicit, disclose, receive, make use of, authorize or knowingly permit, participate in, or acquiesce in the use of any list or names of, or any information concerning, persons applying for or receiving aid and services to needy families with children, directly or indirectly derived from the records, papers, files, or communications of the department or divisions of the department, or acquired in the course of the performance of official duties.
2. A violation of this section is a Class C misdemeanor.

Acts 1941, ch. 148, § 1; C. Supp. 1950, § 4765.56 (Williams, § 11412.7); impl. am. Acts 1953, ch. 29, §§ 1, 2; Acts 1963, ch. 129, § 1; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-319, 14-8-119; Acts 1989, ch. 591, § 113.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class C misdemeanor, § 40-35-111.

71-3-120. Fraudulent receipt of temporary assistance — Penalties — Statute of limitations.

1. A person commits an offense who, knowingly, obtains, or attempts to obtain, or aids, or abets any person to obtain, by means of a willfully false statement, representation, or impersonation, or by any other fraudulent means or in any manner not authorized by this part, or by the regulations or procedures issued or implemented by the department of human services pursuant to this part, temporary assistance for a dependent child as provided pursuant to this part, either by check or by an electronic benefits transfer process, or any assistance provided pursuant to this part by any other means as determined by the department, to which such child is not entitled or in an amount greater than that to which such child is entitled.
2. A person commits an offense who, knowingly, in any manner not authorized by this part or the regulations or procedures implemented by the department of human services pursuant to this part, presents for payment, or causes to be presented for payment, transfers, exchanges, sells, or otherwise uses, or aids or abets any person to present for payment, transfer, exchange, sell, or otherwise use any temporary assistance check, or any electronic benefits card, authorization or personal identification number, device or other thing or means issued or utilized for the purpose of providing temporary assistance benefits pursuant to this part electronically or otherwise.
3. A person who receives a temporary assistance check or any electronic benefits card, authorization or personal identification number, device or other thing or means issued or utilized for the purpose of providing temporary assistance benefits electronically or otherwise, knowing them to have been presented for payment, transferred, exchanged, sold or otherwise used in any manner not authorized by this part or the regulations or procedures implemented by the department of human services pursuant to this part, commits an offense.
4. An offense under this section is a Class E felony if the value of such temporary assistance sought to be obtained, or that is obtained, is one hundred dollars ($100) or more, and upon conviction of the offense, such person shall be sentenced for such offense as provided by law, or shall be fined not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000), or both; and, if such temporary assistance sought to be obtained, or that is obtained, is of a value less than one hundred dollars ($100), such person commits a Class A misdemeanor and shall be sentenced or fined, or both, as provided by law.
5. In addition to or in lieu of any of the penalties in subsection (d), the court may order that such person be disqualified from participation in the temporary assistance program for twelve (12) months for the first offense, twenty-four (24) months for the second offense, and permanently for the third offense. Disqualification pursuant to this section of any person from eligibility for assistance under this part shall not operate to disqualify or suspend the eligibility of an innocent adult or child of the disqualified person's family.
6. The department shall enclose a copy of the penalties provided in this section one (1) time, in notice form, to each recipient of assistance pursuant to this part and post a notice to such effect in noticeable places in each of its assistance offices.
7. In addition to any of the penalties in subsection (d), any person convicted of any offense specified in subsection (a), (b) or (c) shall be ordered to make restitution in the total amount found to be the value of the temporary assistance that forms the basis for the conviction. In the event any person ordered to make restitution pursuant to this section is found to be indigent and, therefore, unable to make restitution in full at the time of conviction, the court shall order a periodic payment plan consistent with the person's financial ability.
8. Notwithstanding any other law to the contrary, prosecutions for any of the offenses specified in subsection (a), (b) or (c) shall be commenced within four (4) years next after the commission of the offense. For purposes of this subsection (h), any such offense that is based upon a willful failure to report information as required by law is considered a continuing offense until such information is reported.

Acts 1937, ch. 50, § 15; C. Supp. 1950, § 4765.53 (Williams, § 4765.52); Acts 1955, ch. 28, § 1; T.C.A. (orig. ed.), §§ 14-320, 14-8-120; Acts 1989, ch. 591, § 104; 1999, ch. 248, § 1.

Cross-References. Fraudulent receipt of food assistance, penalties and statute of limitations, § 71-5-314.

Penalty for Class E felony, § 40-35-111.

Penalty for Class A misdemeanor, § 40-35-111.

71-3-121. Transfer of benefits — Exemption.

Assistance granted under this part shall not be transferable or assignable at law or in equity, and none of the money paid or payable under this part shall be subject to execution, levy, attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency law.

Acts 1937, ch. 50, § 16-a, as added by Acts 1941, ch. 37, § 1; C. Supp. 1950, § 4765.55 (Williams, § 4765.53a); T.C.A. (orig. ed.), §§ 14-321, 14-8-121.

Law Reviews.

A Comparison of Classification and Treatment of Family Support Obligations and Student Loans: A Case Analysis (William Houston Brown and Katherine L. Evans), 24 Mem. St. U.L. Rev. 623 (1994).

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

71-3-122. Prosecution of deserting spouse or parent.

Whenever any dependent spouse or dependent child shall make an application to the county office of the department for an aid and services to needy families with children grant, and an investigation of the circumstances of the applicant reveals that the applicant was put in such needy circumstances by reason of the fact that the dependent spouse was deserted or abandoned by that spouse's or the child's parent, then it shall be the duty of the county office to notify the chief counsel of the department, whose duty it shall be to certify such fact to the prosecuting attorney of the county, who shall institute the necessary criminal proceedings against the spouse or parent who has deserted the dependent spouse or family.

Acts 1951, ch. 257, § 1 (Williams, § 4765.53b); 1963, ch. 129, § 1; 1976, ch. 754, § 1; T.C.A. (orig. ed.), §§ 14-322, 14-8-122.

Cross-References. Failure to provide for child, misdemeanor, § 39-15-101.

Failure to support disabled spouse, misdemeanor, § 39-15-101.

Law Reviews.

The Tennessee Court Systems — Prosecution, 8 Mem. St. U.L. Rev. 477.

71-3-123. Civil action against deserting spouse or parent.

1. All payments made by the department to such spouse or dependent child shall be recoverable against the deserting spouse or parents by the state as a debt due to the state, and such recovered payments shall be deposited by the state treasurer to the credit of the aid and services to needy families with children fund.
2. In the event the deserting spouse or parent has left the state, then the secretary of state shall be the lawful attorney or agent for such spouse or parent and service of process shall be made by serving a copy of the process on the secretary of state, and such service shall be sufficient service upon the spouse or parent; provided, that notice of such service and a copy of the process are forthwith sent by registered mail by the prosecuting attorney to the last known out-of-state address of the spouse or parent.
3. The property of the spouse or parent within the state shall be subject to execution for payment of any judgment taken against such spouse or parent.

Acts 1951, ch. 257, § 2 (Williams, § 4765.53c); 1963, ch. 129, § 1; 1976, ch. 754, § 2; T.C.A. (orig. ed.), §§ 14-323, 14-8-123.

Cross-References. Certified mail in lieu of registered mail, § 1-3-111.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451.

71-3-124. Assignment of support rights to state — Enforcement and collection of rights — Collection service fee — Attorneys — Caretaker relative eligibility — Standing to petition.

1. 1. Each applicant or recipient who receives or authorizes payment of public or temporary assistance pursuant to Title IV-A or IV-E of the Social Security Act (42 U.S.C. § 601 et seq. and 42 U.S.C. § 670 et seq.), respectively, or any successor program providing temporary assistance or foster care or adoption assistance shall be deemed to have assigned to the state any rights to support from any other person such applicant or recipient may have:
      1. In the applicant's own behalf or in behalf of any other family member for whom the applicant is applying for or receiving aid; and
      2. That have accrued at the time such assignment is executed.
   2. Each payment shall constitute “receipt” for purposes of determining when the assignment is executed.
   3. During the terms of such assignment, the department shall be subrogated to the rights of the child or children or the person having custody to collect and receive all child support payments.
   4. The department has the right to initiate any support action in its own name or in the name of the recipient under existing laws of this state and to recover any payments ordered by the courts of this or any other state.
   5. In the exercise of its subrogation rights, the department shall give the person having custody prior notice of any action taken to enforce or modify support and shall inform the custodian of the right to intervene to protect any future interest; provided, that failure to provide such notice shall not be a defense to the obligor in any proceeding.
   6. 1. Notwithstanding any law to the contrary, neither the department of human services, nor any Title IV-D child support contractor of the department, nor any recipient of public assistance in this or any other state or territory, shall be required to demonstrate to a court or administrative tribunal in this state that the caretaker of the child for whom child support is sought is vested with any more than physical custody of the child or children in order to have standing to petition for child support from the legal parent of the child or children for whom support is sought, or to seek enforcement or modification of any existing orders involving such child or children.
      2. Legal custody of a child to whom a child support obligation is owed shall not be a prerequisite to the initiation of any support action or to the enforcement or modification of any support obligation, whether or not the obligation has been assigned to this state or any other state or territory by operation of law.
2. The department shall certify to the clerks of the appropriate state courts that an assignment of any and all rights, title and interest in support rights has been made to this state by a public assistance or temporary assistance recipient of this state. The department may also, in its discretion, certify to the clerk of the appropriate court in this state that a recipient of public assistance or temporary assistance in another state has assigned support rights to that state pursuant to federal law. Upon receipt of this certification, the clerks of the appropriate state courts shall transmit support payments that they receive on behalf of such public assistance or temporary assistance recipient. The clerk shall transmit the amount directly to the agency specified by the department in accordance with § 36-5-101. The clerks are to identify these payments by the names of the parties involved in the cause of action and by the docket number of the cause of action. These support payments shall be transmitted to the department or the specified agency continuously until the department notifies the clerks of the appropriate state courts that it is no longer necessary to do so. The department shall send to each recipient notice of payments received in such recipient's behalf quarterly.
3. 1. Upon the filing of an application by an individual not otherwise eligible for support services under this section, the department may initiate support actions for an individual, in accordance with Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.), as amended.
   2. The department or any entity, public or private, that contracts with the department to establish paternity or to establish, modify or enforce child or spousal support pursuant to Title IV-D of the Social Security Act shall have authority and standing to file any legal actions to establish paternity or to establish, modify or enforce child or spousal support in any judicial or administrative proceeding on behalf of the department and the state for persons who have assigned rights of support to the department pursuant to this section, or who have otherwise applied for child or spousal support services pursuant to subdivision (c)(1) or Title IV-D of the Social Security Act. The department or its contractors may file such legal actions without the necessity of intervening in an existing action or naming the state as a party to the action. The department or its contractors shall not be required to provide proof that the obligor, the obligee or the child has applied for or is receiving Title IV-D child support services in order to meet the requirements for conducting Title IV-D child support judicial or administrative actions.
4. The provision of services under a child support enforcement program that includes services by an attorney or an attorney's representative employed by, under contract to, or representing the department shall not create an attorney-client relationship with any party other than the state. Attorneys employed by or under contract to the department shall have an affirmative duty to notify individuals applying for child support services or temporary assistance for needy families (TANF) recipients or recipients of any successor program providing temporary assistance whose rights to support have been assigned, who contact or are contacted by the attorney or other child support enforcement program staff that any legal services provided by the child support enforcement program are solely on behalf of the state, and that no incidents of the lawyer-client relationship, including the confidentiality of lawyer-client communications, exist between the attorney and the applicant or recipient. No such duty shall exist when the applicant for services is another governmental agency acting on behalf of an individual and there is no direct contact between the child support enforcement program and the individual seeking support.
5. 1. As a condition of eligibility for consideration of the caretaker relative in the request for assistance under the TANF program or any successor program providing temporary assistance, each applicant for or recipient of benefits under this program shall cooperate, unless good cause not to cooperate is shown to exist in accordance with 45 Code of Federal Regulations, Sections 232.40 through 232.49 as they may be amended, with the department and its Title IV-D contractors in:
      1. Identifying and locating the parent of a child for whom aid is claimed;
      2. Establishing the paternity of a child born out of wedlock for whom aid is claimed;
      3. Obtaining support payments for the applicant or recipient and for a child for whom aid is claimed; and
      4. Obtaining any other payments or property due the applicant or recipient of the child.
   2. Cooperation with the department and its Title IV-D contractors shall be defined by the department in rules that are consistent with federal regulations.
   3. If a caretaker relative fails to cooperate with the department or its Title IV-D contractors under subdivision (e)(1), the department shall, consistent with federal regulations, deny assistance to that caretaker relative of a child or children who are otherwise eligible for TANF or any successor program providing temporary assistance and it shall, consistent with federal regulations, provide assistance to the eligible child in the form of a protective payment, but such assistance will be determined without regard to the needs of the caretaker relative.
   4. The commissioner shall promulgate rules to carry out this section.

Acts 1977, ch. 110, § 1; T.C.A., § 14-324; Acts 1982, ch. 764, § 1; 1985, ch. 477, §§ 9, 10; 1986, ch. 890, § 15; T.C.A., § 14-8-124; Acts 1988, ch. 938, § 3; 1994, ch. 987, § 16; 1996, ch. 950, § 28; 1998, ch. 1098, § 68; 2000, ch. 922, § 38.

Code Commission Notes.

Former references to “aid to families with dependent children (AFDC)” were deleted as obsolete by the code commission and were changed to “temporary assistance for needy families (TANF)” in 2004.

Attorney General Opinions. Authority to issue income assignment orders against child support obligors, OAG 99-008, 1999 Tenn. AG LEXIS 6 (1/25/99).

Title IV-D child support enforcement: welfare eligibility, custody and privilege issues, OAG 00-027, 2000 Tenn. AG LEXIS 31 (2/18/00).

An indigent defendant in an action to enforce a child support obligation through contempt of court proceedings has a right to counsel if the defendant is in jeopardy of incarceration, OAG 04-142, 2004 Tenn. AG LEXIS 158 (9/01/04).

Neither the Department of Human Services or its contractors that provide child support enforcement services have an attorney-client relationship with the individuals who apply for or who receive such services, OAG 07-149, 2007 Tenn. AG LEXIS 149 (11/1/07).

71-3-125. Child support enforcement by district attorneys general.

1. The district attorneys general have the authority, within budgetary limitations, to establish child support enforcement programs within their judicial districts.
2. Such authority includes:
   1. The hiring of clerical and professional staffs;
   2. The entering into contracts with other agencies; and
   3. Such other authority as may be necessary to carry out the requirements of the child support enforcement programs under Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.).
3. Any legal services furnished under the authority of this section shall be solely on behalf of the state, and shall not create an attorney-client relationship with any party other than the state.

Acts 1977, ch. 235, § 1; T.C.A., §§ 14-325, 14-8-125; Acts 1988, ch. 938, § 4.

Cross-References. Legal support in child support enforcement programs, § 71-3-124.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, V. Children (Neil P. Cohen), 45 Tenn. L. Rev. 451.

71-3-126. Restrictions on use of electronic benefits transfer cards by TANF recipients — Reimbursement — Violations and penalties — System for review — Right to hearing — Rules and regulations — Revenues and fines deposited in general fund.

1. For the purposes of this section, the term “public assistance benefits” means money or property provided directly or indirectly to eligible persons through the temporary assistance to needy families program.
2. 1. A recipient of public assistance benefits shall not knowingly use an electronic benefits transfer card in:
      1. A liquor store as defined in 42 U.S.C. § 608(a)(12)(B)(i);
      2. A casino, gambling casino, or gaming establishment as defined in 42 U.S.C. § 608(a)(12)(B)(ii);
      3. An adult cabaret as defined in § 7-51-1102; or
      4. A retail store licensed to do business in this state that derives its largest category of sales from the sale of loose tobacco, cigars, cigarettes, pipes, and other smoking accessories.
   2. To the extent permitted by federal law, any person who violates this subsection (b) shall reimburse the department for the purchase.
   3. The department shall notify all recipients of electronic benefit cards of the prohibitions set forth in subdivision (b)(1) and the penalties under current law for knowingly using an EBT card in any prohibited business location.
3. 1. A person or business entity, or any agent or employee of the person or business entity shall not knowingly accept public assistance benefits from an electronic benefits transfer card for the purchase of any goods or services in:
      1. A liquor store as defined in 42 U.S.C. § 608(a)(12)(B)(i);
      2. A casino, gambling casino, or gaming establishment as defined in 42 U.S.C. § 608(a)(12)(B)(ii);
      3. An adult cabaret as defined in § 7-51-1102; or
      4. A retail store licensed to do business in this state that derives its largest category of sales from the sale of loose tobacco, cigars, cigarettes, pipes, and other smoking accessories.
   2. Any person or business entity who knowingly violates this subsection (c) shall be subject to the following civil penalties:
      1. One thousand dollars ($1,000) for the first violation;
      2. Two thousand five hundred dollars ($2,500) for the second violation within five (5) years;
      3. Five thousand dollars ($5,000) for a third or a subsequent violation within five (5) years. The district attorney general may bring an action to suspend the business licenses and permits of the person or business entity for one (1) year for any violation under this subsection (c). The department is authorized to bring an action to enforce any civil penalty under this subsection (c) in a complaint filed in the chancery court of the county where the merchant is located.
4. 1. A recipient of public assistance benefits shall not knowingly use an electronic benefit transfer card in an automated teller machine or point-of-sale device located in:
      1. A liquor store as defined in 42 U.S.C. § 608(a)(12)(B)(i);
      2. A casino, gambling casino, or gaming establishment as defined in 42 U.S.C. § 608(a)(12)(B)(ii); or
      3. An adult cabaret as defined in § 7-51-1102.
   2. Any person who knowingly violates this subsection (d) shall reimburse the department for the amount withdrawn and used subject to any prohibition in federal law. Upon a third or subsequent violation, if permitted by federal law, the person shall be permanently disqualified from receiving public assistance benefits by means of direct cash payment or an electronic benefits transfer access card.
5. The department of human services shall establish a system for reviewing electronic benefit transactions of recipients pursuant to this section on such basis as the commissioner may determine, but not less than on a quarterly basis.
6. A person or entity subject to a penalty or sanction under this section shall have the right to a hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
7. 1. The commissioner of human services is authorized to promulgate rules and regulations, including emergency rules, to effectuate the purposes of this section. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act.
   2. The department shall add by rule to the prohibited use of an electronic benefits transfer card other purchases to the fullest extent later permitted by federal law.
8. Any revenues deposited or civil fines collected pursuant to subsection (c) shall be deposited into the general fund.

Acts 2013, ch. 312, § 1; 2015, ch. 392, §§ 1-3.

Part 2
[Reserved]

71-4-101. Short title.

This part may be cited as the “Aid to the Blind Law.”

Acts 1937, ch. 51, § 21; C. Supp. 1950, § 4765.57 (Williams, § 4765.75); T.C.A. (orig. ed.), §§ 14-501, 14-13-101.

71-4-102. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Assistance” means money payments made to or in behalf of blind persons in need, or medical care, or both, including hospitalization, outpatient care and treatment, nursing home care, drugs or any other type of remedial care recognized under state law in behalf of blind persons in need, but does not include subdivisions (1)(A)-(1)(D) unless the Social Security Act (42 U.S.C.), is amended to include one (1) or more of the following:
   1. Any such payments to or care in behalf of any individual who is an inmate of a public institution, except as a patient in a medical institution, or any individual who is a patient in an institution for tuberculosis or mental diseases;
   2. Any such payments to any individual who has been diagnosed as having tuberculosis or psychosis and is a patient in a medical institution as a result of having tuberculosis or psychosis;
   3. Any such care in behalf of any individual, who is a patient in a medical institution as a result of a diagnosis that such person has tuberculosis or psychosis, with respect to any period after the individual has been a patient in such an institution as a result of such diagnosis, for forty-two (42) days; or
   4. Is not an inmate of any private institution except such private institution as has been approved by the department at the time of receiving assistance;
2. “Department” means the department of human services;
3. “Ophthalmologist” means a physician licensed to practice medicine in this state and who is actively engaged in the treatment of diseases of the human eye;
4. “Optometrist” means any person licensed to practice optometry in this state and holding a current certificate of registration;
5. “Recipient” means a person who was receiving aid to the blind benefits during the month of December, 1973, and is now qualified under Public Law 93-66 to continue to receive a state money payment as a supplement to the federally provided supplemental security income benefits; and
6. “Regional director” means the director of a region under chapter 1, part 1 of this title.

Acts 1937, ch. 51, § 1; 1939, ch. 166, § 1; C. Supp. 1950, § 4765.58 (Williams, § 4765.57); Acts 1951, ch. 194, § 1; 1957, ch. 117, § 21; 1965, ch. 16, § 1; 1973, ch. 337, § 4; 1974, ch. 628, § 13; impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), §§ 14-502, 14-13-102.

Compiler's Notes. Public Law 93-66, referred to in this section, may be found in 26 U.S.C. §§ 1402, 3121-3125, 6413, 6654 and in 42 U.S.C. §§ 402-415, 430, 1320, 1382, 1383, 1396A and 1396B and notes.

71-4-103. Blindness defined.

1. A person shall be considered “blind” for the purposes of this part whose vision, with correcting glasses, is so defective as to prevent the performance of activities for which eyesight is essential.
2. The department shall promulgate rules and regulations stating, in terms of ophthalmic measurements, the amount of visual acuity that a recipient may have and still be eligible for assistance under this part.

Acts 1937, ch. 51, § 2; C. Supp. 1950, § 4765.59 (Williams, § 4765.58); Acts 1974, ch. 628, § 14; T.C.A. (orig. ed.), §§ 14-503, 14-13-103.

71-4-104. Eligibility for assistance.

Assistance shall be granted under this part to any blind person who:

1. Is living within this state voluntarily and not for a temporary purpose, that is, with no intention of presently removing from the state; provided, that temporary absence from the state, with subsequent returns to the state or intent to return when the purposes of the absence have been accomplished, shall not, for the purpose of this part, interrupt continuity of residence;
2. Has not sufficient income or other resources to provide a reasonable subsistence compatible with decency and health, and whose spouse is not able to meet the person's needs as determined by the department's standards;
3. Is not an inmate of any public institution at the time of receiving assistance, nor of any private institution at the time of receiving assistance, except such private institution as has been approved by the department. An inmate of any institution may, however, make application for such assistance;
4. Within five (5) years immediately preceding application or during receipt of assistance, has not in order to evade any provision of this part made an assignment or transfer of property, the proceeds from which at the fair market value, irrespective of the actual consideration received, would under the state standards of need still be available to meet the needs of the individual. Any transfer of property to a husband, wife, son, daughter, son-in-law, daughter-in-law, brother, sister, brother-in-law, sister-in-law, nephew or niece, within the period above mentioned, shall be prima facie evidence that the transfer was made with the intent to evade the provisions of this part;
5. Is not receiving at the same time old-age assistance;
6. Shall not during the period of assistance refuse treatment if the examining ophthalmologist certifies that such treatment will restore, or partially restore, eyesight; or
7. Was receiving aid to the blind benefits during the month of December, 1973, and is now qualified under Public Law 93-66 to continue to receive a state money payment as a supplement to the federally-provided supplemental security income benefits.

Acts 1937, ch. 51, § 3; 1939, ch. 166, § 2; 1949, ch. 134, § 1; 1949, ch. 171, § 1; C. Supp. 1950, § 4765.60 (Williams, § 4765.59); Acts 1951, ch. 233, § 1; 1955, ch. 32, § 1; 1955, ch. 168, § 1; 1957, ch. 81, § 4; 1957, ch. 116, § 3; 1965, ch. 16, § 2; 1967, ch. 63, §§ 1, 2; 1970, ch. 370, § 1; 1972, ch. 506, § 3; 1974, ch. 628, § 15; T.C.A. (orig. ed.), §§ 14-504, 14-13-104.

Compiler's Notes. Public Law 93-66, referred to in this section, may be found in 26 U.S.C. §§ 1402, 3121-3125, 6413, 6654 and in 42 U.S.C. §§ 402-415, 430, 1320, 1382, 1383, 1396A and 1396B and notes.

71-4-105. Determination of amount of assistance.

The amount of assistance that any person shall receive in the form of supplementary payments shall be determined by an application of 212 (a) of Public Law 93-66, and rules and regulations made by the department establishing standards of need and allowable resources to the recipient's present personal and economic circumstances.

Acts 1937, ch. 51, § 4; 1945, ch. 186, § 1; C. Supp. 1950, § 4765.61 (Williams, § 4765.60); Acts 1951, ch. 79, § 1; 1953, ch. 9, § 1; 1957, ch. 117, § 22; 1961, ch. 29, § 1; 1965, ch. 16, § 3; 1967, ch. 63, § 3; 1973, ch. 303, § 24; 1974, ch. 628, § 16; T.C.A. (orig. ed.), §§ 14-505, 14-13-105.

Compiler's Notes. Section 212(a) of Public Law 93-66, referred to in this section, may be found in the notes following 42 U.S.C. § 1382.

71-4-106. Duties of department.

The department shall:

1. Supervise the administration of assistance to the needy blind under this part by the regional directors;
2. Make such rules and regulations and take such action as may be necessary or desirable for carrying out this part. All rules and regulations made by the department shall be binding on the counties and shall be complied with by the respective regional directors;
3. Establish standards for personnel employed by the department in the administration of this part and make necessary rules and regulations to maintain such standards;
4. Compile and supply to the regional director such forms as it may deem necessary and advisable;
5. Cooperate with the commissioner of social security, or any federal officer or agency made successor to the commissioner of social security, in any reasonable manner as may be necessary to qualify for federal aid for assistance to the needy blind and in conformity with this part, including the making of such reports in such forms and containing such information as the commissioner of social security may from time to time require, and comply with such provisions as such commissioner may from time to time find necessary to assure the correctness and verification of such reports;
6. Publish an annual report and such interim reports as may be necessary;
7. Designate a suitable number of ophthalmologists, duly licensed to practice medicine in Tennessee and actively engaged in the treatment of diseases of the human eye, or who are licensed, registered optometrists actively engaged in the practice of optometry in Tennessee, to examine recipients of assistance to the blind;
8. Fix the fees to be paid to ophthalmologists and optometrists for such examinations, such fees to be paid out of funds allocated to the department; and
9. Designate a suitable number of optometrists duly licensed to practice optometry in this state and holding a current certificate of registration to examine recipients of assistance to the blind; provided, that nothing in this part shall at any time be construed by any state or local agency as conferring upon the optometrist any rights or privileges with regard to the practice of optometry not specifically authorized under title 63, chapter 8.

Acts 1937, ch. 51, § 5; 1943, ch. 152, § 1; C. Supp. 1950, § 4765.62 (Williams, § 4765.61); Acts 1951, ch. 194, §§ 2-6; modified; Acts 1973, ch. 303, § 25; 1974, ch. 628, § 17; T.C.A. (orig. ed.), §§ 14-507, 14-13-106.

71-4-107. Duties of regional directors.

The regional directors shall administer this part in the counties of their regions, subject to the rules and regulations prescribed by the department, and shall report to the department at such times and in such manner as it may direct.

Acts 1937, ch. 51, § 6; C. Supp. 1950, § 4765.63 (Williams, § 4765.62); T.C.A. (orig. ed.), §§ 14-508, 14-13-107.

71-4-108. Appeal to department.

1. If any award of assistance is modified or cancelled under any provision of this part, the recipient may appeal to the department in the manner and form prescribed by it.
2. The department shall, upon receipt of such an appeal, give the recipient reasonable notice and opportunity for a hearing.

Acts 1937, ch. 51, § 10; 1945, ch. 186, § 1; C. Supp. 1950, § 4765.67 (Williams, § 4765.66); Acts 1973, ch. 303, § 27; 1974, ch. 628, § 18; T.C.A. (orig. ed.), §§ 14-514, 14-13-108.

71-4-109. Finality of department decisions.

All decisions of the department shall be final and shall be binding upon the county involved and shall be complied with by the regional director or a designated agent.

Acts 1937, ch. 51, § 10; 1945, ch. 186, § 1; C. Supp. 1950, § 4765.67 (Williams, § 4765.66); T.C.A. (orig. ed.), §§ 14-516, 14-13-109.

71-4-110. Reinvestigation of awards.

1. 1. All assistance grants in the form of money payments made under this part shall be reconsidered by the regional director or a designated agent as frequently as may be required by the rules of the department.
   2. After such further investigation as the regional director or a designated agent may deem necessary or the department may require, the amount of assistance in the form of money payments may be changed or assistance may be entirely withdrawn if the recipient's circumstances have altered to warrant such action.
2. A recipient shall submit to a reexamination as to eyesight when required to do so by the regional director or a designated agent or the department. Such recipient shall also furnish any information required by the regional director or a designated agent or by the department.

Acts 1937, ch. 51, § 11; 1945, ch. 186, § 1; C. Supp. 1950, § 4765.68 (Williams, § 4765.67); Acts 1957, ch. 117, § 25; T.C.A. (orig. ed.), §§ 14-517, 14-13-110.

71-4-111. Change in property or income of recipient.

1. If, at any time during the continuance of assistance, the recipient becomes possessed of any property or income in excess of the amount stated in the application, it shall be the duty of the recipient immediately to notify the regional director or a designated agent of the receipt or possession of such property or income.
2. The regional director or a designated agent may, after investigation, either cancel the assistance or alter the amount of the money payment in accordance with the circumstances.
3. Any assistance paid after the recipient has come into possession of such property or income and in excess of the recipient's need as determined by the department's standards shall be recoverable in a suit by the state as a debt due to the state.

Acts 1937, ch. 51, § 12; 1945, ch. 186, § 1; C. Supp. 1950, § 4765.69 (Williams, § 4765.68); Acts 1957, ch. 117, § 26; 1961, ch. 11, § 1; 1974, ch. 628, § 19; T.C.A. (orig. ed.), §§ 14-518, 14-13-111.

71-4-112. Removal of recipient from county.

Any recipient who moves to another county in this state shall be entitled, with the approval of the department, to receive assistance in the county to which the recipient has moved, and the regional director or a designated agent of the county from which the recipient has moved shall transfer all necessary records relating to the recipient to the regional director or a designated agent of the county to which the recipient has moved.

Acts 1937, ch. 51, § 14; 1945, ch. 186, § 1; C. Supp. 1950, § 4765.71 (Williams, § 4765.70); Acts 1951, ch. 162, § 1; T.C.A. (orig. ed.), §§ 14-519, 14-13-112.

71-4-113. Amendment of law.

All assistance granted under this part shall be deemed to be granted and to be held subject to any amending or repealing statute that may hereafter be passed, and no recipient shall have any claim for compensation, or otherwise, by reason of the recipient's assistance being affected in any way by any amending or repealing statute.

Acts 1937, ch. 51, § 20; C. Supp. 1950, § 4765.77 (Williams, § 4765.74); T.C.A. (orig. ed.), §§ 14-520, 14-13-113.

71-4-114. Charging for assistance to applicants.

1. It is unlawful for any person, firm, or corporation to directly or indirectly either charge or receive anything of value for assisting any person in making application to the proper authorities of this state, or any of them, for relief or assistance under any statutes of this state providing for financial assistance to the needy blind.
2. A violation of this section is a Class C misdemeanor.

Acts 1937, ch. 118, § 1; 1941, ch. 41, § 1; mod. C. Supp. 1950, § 4765.78 (Williams, § 4765.37); T.C.A. (orig. ed.), §§ 14-521, 14-13-114; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

71-4-115. Unlawful use of lists.

1. Except as permitted by §§ 71-1-117 and 71-1-118, it is unlawful for any person, except for purposes directly connected with the administration of this part, to solicit, disclose, receive, make use of, authorize or knowingly permit, participate in, or acquiesce in the use of, any list or names of, or any information concerning, persons applying for or receiving aid to the blind, directly or indirectly derived from the records, papers, files, or communications of the department or divisions of the department, or indirectly derived from the records, papers, files, or communications of the department or divisions of the department, or acquired in the course of the performance of official duties.
2. A violation of this section is a Class C misdemeanor.

Acts 1941, ch. 148, § 1; C. Supp. 1950, § 4765.78 (Williams, § 11412.7); impl. am. Acts 1953, ch. 29, §§ 1, 2; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-522, 14-13-115; Acts 1989, ch. 591, § 113.

Cross-References. Confidentiality of public records, § 10-7-504.

Penalty for Class C misdemeanor, § 40-35-111.

71-4-116. Fraudulent devices.

A person who knowingly obtains, or attempts to obtain, or aids, or abets any person to obtain by means of a willfully false statement or representation or by impersonation, or other fraudulent device, assistance to which such person is not entitled or assistance greater than that to which such person is justly entitled, or whoever with intent to defraud aids or abets in buying or in any way disposing of the property, either personal or real, of a recipient of assistance without the consent of the department, commits a Class E felony.

Acts 1937, ch. 51, § 19; C. Supp. 1950, § 4765.76 (Williams, § 4765.73); Acts 1955, ch. 23, §§ 1, 2; T.C.A. (orig. ed.), §§ 14-523, 14-13-116; Acts 1989, ch. 591, § 105.

Cross-References. Penalty for Class E felony, § 40-35-111.

71-4-117. Assignment of benefits — Exemption.

Assistance granted under this part shall not be transferable or assignable, at law or in equity, and none of the money paid or payable under this part shall be subject to execution, levy, attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency law.

Acts 1937, ch. 51, § 9; 1937, ch. 51, § 20-a, as added by Acts 1941, ch. 38, § 1; C. Supp. 1950, § 4765.66 (Williams, §§ 4765.65, 4765.74a); T.C.A. (orig. ed.), §§ 14-524, 14-13-117.

Law Reviews.

Exempt Property in Tennessee under the Bankruptcy Code (Thomas E. Ray), 18 No. 2 Tenn. B.J. 7 (1982).

71-4-118. Veterans education benefits.

Notwithstanding any other provision of this chapter, to the extent permitted by federal law, the value of federal veterans education benefits received by an applicant shall not be included as any form of income when making eligibility determinations for assistance under this part.

Acts 2003, ch. 239, § 5.

Compiler's Notes. Provisions concerning federal veteran's educational benefits are codified in 38 U.S.C. § 3101.

Part 2
Vocational Services to the Blind — General Provisions

71-5-101. Short title.

This part may be cited as and shall be known as the “Medical Assistance Act of 1968.”

Acts 1968, ch. 551, § 1; T.C.A., §§ 14-1901, 14-23-101.

Compiler's Notes. For transfer of certain TennCare-related functions from the department of finance and administration to the department of health, see Executive Order No. 11 (January 3, 1997).

For transfer of the TennCare program and its related functions and administrative support from the department of health to the department of finance and administration, see Executive Order No. 23 (October 19, 1999).

Cross-References. Community grant agencies, title 8, ch. 4, part 4.

Health Maintenance Organizations, title 56, ch. 32.

Interstate Compact on Adoption and Medical Assistance, title 36, ch. 1, part 2.

Physician assistants, §§ 63-19-106, 63-19-107.

Law Reviews.

Constitutional Issues Raised by States' Exclusion of Fertility Drugs from Medicaid Coverage in Light of Mandated Coverage of Viagra, 54 Vand. L. Rev. 359 (2001).

Health Care Reform Through Medicaid Managed Care: Tennessee (TennCare) as a Case Study and a Paradigm, 53 Vand. L. Rev. 125 (2000).

Medicaid Managed Care and Disability Discrimination Issues (Mary Crossley), 65 Tenn. L. Rev. 419 (1998).

Attorney General Opinions. TennCare/House Bill 2002, OAG 00-016, 2000 Tenn. AG LEXIS 16 (2/2/00).

Permissibility of modifications to the TennCare Program.  OAG 12-106, 2012 Tenn. AG LEXIS 110 (11/26/12).

71-5-102. Purpose.

1. The purpose of this part is to make possible medical assistance to those recipients determined to be eligible under this chapter to receive medical assistance that conforms to the requirements of Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.), and the regulations promulgated pursuant to Title XIX. Medical assistance pursuant to this part may also be provided pursuant to any federal waiver received by the state that waives any or all of the provisions of Title XIX or pursuant to any other applicable federal law to the extent adopted by means of an amendment to the required Title XIX state plan.
2. 1. Except as may be required by federal law or regulation, it is hereby declared to be the public policy of the state of Tennessee that participation in the TennCare program, or its successor programs, is not an entitlement and is conditional upon, among other things, specific appropriations for the program.
   2. Not less than annually, the governor shall recommend and the general assembly may, through provisions of the general appropriations act, prioritize the funding for the TennCare program in a manner that specifies that funds are available to:
      1. Continue coverage for enrollees currently in the program;
      2. Extend coverage to potential new enrollees, or categories of new enrollees, at current, higher or lower income levels;
      3. Withdraw coverage from all enrollees not eligible for medicaid; or
      4. Reimburse medical care providers for costs unreimbursed by managed care organizations out of state funds appropriated for that purpose or such federal funds as would be permitted to be used for that purpose under the terms of the TennCare waiver.
3. Continuation, extension and withdrawal of coverage for enrollees in the TennCare program shall be determined in accordance with such priorities, if any, established by the general assembly in the general appropriations act.
4. The bureau of TennCare shall have the authority to develop and implement initiatives or program modifications to control the costs of the TennCare program to the extent permitted under federal law and the TennCare waiver. Such cost-saving measures may include, but are not limited to, the elimination of covered benefits or limitations on the scope, intensity, or duration of such benefits; implementation of cost sharing requirements for enrollees, including the medicaid population; increases in cost sharing requirements for the expansion population; enforcement of cost sharing requirements through denial of service for failure to meet co-payment requirements with alternative access to medically necessary care through established safety net providers; enforcement of collection of required co-payments by providers; reassignment of enrollees into different eligibility categories; restrictions on eligibility for non-mandatory medicaid or waiver expansion categories; and the elimination from TennCare eligibility of some or all of the non-mandatory medicaid or waiver expansion categories. The bureau of TennCare may implement a premium-assistance initiative for persons disenrolled from TennCare. The bureau of TennCare shall also be authorized, in establishing or modifying benefits or cost sharing requirements, to define, through rules and regulations, categories of eligible enrollees who may be exempted from some or all benefit limits or cost sharing requirements, along with any requirements that must be met by such enrollees to prove or maintain exempted status. The bureau of TennCare shall have all such authority to control costs notwithstanding any other state law to the contrary.

Acts 1968, ch. 551, § 2; 1973, ch. 276, § 1; T.C.A., § 14-1902; Acts 1982, ch. 730, § 1; T.C.A., § 14-23-102; Acts 1993, ch. 358, § 1; 2002, ch. 880, § 3; 2004, ch. 673, § 1.

Code Commission Notes.

The provisions of this section may be affected by the agreement between the federal and state governments that created the TennCare program.

Compiler's Notes. Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Physician assistants, §§ 63-19-106, 63-19-107.

Rules and regulations, finding medical assistance, § 71-5-134.

Tennessee Medicaid False Claims Act, §§ 71-5-181 — 71-5-185.

71-5-103. Part definitions.

As used in this part, unless the context otherwise requires:

1. “Adult behavioral health services for the seriously and persistently mentally ill” means behavioral health services for individuals nineteen (19) years of age and older, including, but not limited to, assessment, evaluation, diagnostic, therapeutic intervention, case management, psychiatric medication management, labs related to medication management and pharmacy assistance and coordination;
2. “Adult emergency dental services” means dental services for individuals twenty-one (21) years of age and older to treat a dental condition that manifests itself by symptoms of sufficient severity, including severe pain, infection or trauma, that:
   1. A prudent layperson who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate dental attention to potentially result in:
      1. Placing the person's, or with respect to a pregnant woman, her unborn child's, health in jeopardy;
      2. Serious impairment of bodily functions;
      3. Serious dysfunction of any bodily organ or part; or
   2. Includes treatment of dental condition necessary for an individual to receive essential medical treatment, including, but not limited to, extraction of abscessed or periodontally involved teeth prior to an individual receiving a prosthetic heart valve, a donor organ, other replacement prosthetic devices or head and neck radiation therapy;
3. “Applicant” means any person who has applied for benefits under this part;
4. “County office” means the county office of the state department of human services in the county wherein the applicant resides;
5. “Department” means the department of health;
6. “Home-based and community-based services” means any of the following supportive services and systems, as approved by the health care financing administration (HCFA), that are provided to older persons and individuals with disabilities to remain independent and avoid inappropriate institutionalization and that help individuals maintain physical, social, and spiritual independence in the least restrictive environment:
   1. Living environments and supportive services, e.g., assisted care living facilities, homes for the aged and assistive technology;
   2. Personal care, homemaker and chore services;
   3. Adult day services;
   4. Congregate and home delivered meals;
   5. Home care organizations;
   6. Rehabilitative care;
   7. Assisted transportation or mobility services; and
   8. Support services to caregivers, including hospice and respite care;
7. “Medical assistance” means payment of the cost of care, services and supplies necessary to prevent, diagnose, correct or cure conditions in the person that cause acute suffering, endanger life, result in illness or infirmity, interfere with the person's capacity for normal activity, or threaten some significant handicap and that are furnished an eligible person in accordance with this part and the rules and regulations of the department. Such care, services and supplies include services of qualified practitioners licensed under the laws of this state;
8. “Medically needy” means a class or classes of persons whose present income and financial assets are not sufficient to meet their present liabilities for health costs; provided, that the department of health or the department of human services, as may be designated by the governor, may through regulation establish an income limitation as well as other criteria, such as cash, savings, intangible assets and real and personal property for the determination of “medically needy.” To the extent of any federal waiver received by the state that waives any or all of the provisions of Title XIX (42 U.S.C. § 1396 et seq.), or pursuant to any other federal law as adopted by amendment to the required Title XIX state plan, “medically needy” means those persons whose income and assets are insufficient to purchase health insurance and those persons who are uninsurable as a result of an existing or prior medical condition;
9. “Mobile dental services” means an intact comprehensive dental services unit operated on-site at a long-term care facility, interfacing with the facility's common electrical and water sources;
10. “Recipient” means any person who has been determined eligible to receive benefits under this part and who has received such benefits;
11. “Resident” means any individual who is living within the state, with the intent that such person's permanent home be within the state, and not temporarily. Temporary absences from the state shall not cause a person to lose residential status;
12. “Responsible parties” means the following representatives and relatives of recipients of medical assistance pursuant to this part who are not financially eligible to receive benefits under this part: parents, spouses, children, and guardians;
13. “Title XIX” means Title XIX of the Social Security Act as amended (P.L. 89-97) (42 U.S.C. § 1396 et seq.), administered by the United States department of health and human services or its successor in office and including amendments of Title XIX and other federal social security laws replacing that title in whole or in part; and
14. “Vendor” means any person, institution, agency, or business concern providing medical care services or goods authorized under this part, holding, where applicable, a current valid license to provide such services or to dispense such goods; or any health maintenance organization, as defined in title 56, chapter 32, with which the state has entered into a contract based on a per capita rate of payment for services provided under this part.

Acts 1968, ch. 551, § 3; 1973, ch. 276, § 2; impl. am. Acts 1975, ch. 219, § 1 (a, b); Acts 1979, ch. 177, § 2; T.C.A., § 14-1903; Acts 1981, ch. 286, § 1; 1982, ch. 730, §§ 2, 3; T.C.A., § 14-23-103; Acts 1993, ch. 358, § 2; 1998, ch. 1093, § 3; 2002, ch. 717, § 1; 2008, ch. 1064, § 1; 2009, ch. 95, § 1.

Code Commission Notes.

The provisions of this section may be affected by the agreement between the federal and state governments that created the TennCare program.

Compiler's Notes. For the transfer of TennCare from the department of finance and administration to the department of health, See Executive Orders Nos. 1 (January 26, 1995) and 11 (January 7, 1997).

For transfer of the TennCare program and its related functions and administrative support from the department of health to the department of finance and administration, see Executive Order No. 23 (October 19, 1999).

For the Preamble to the act regarding the behavioral health safety net of Tennessee, please refer to Acts 2009, ch. 95.

Cross-References. Rules and regulations, finding medical assistance, § 71-5-134.

Tennessee Medicaid False Claims Act, §§ 71-5-181 — 71-5-185.

71-5-104. Administration by department.

1. The department of health is hereby designated as the department to administer this part as provided in Title XIX or as provided by any federal waiver received by the state that waives any or all of the provisions of Title XIX or pursuant to any other federal law as adopted by amendment to the required Title XIX state plan.
2. The bureau of TennCare shall notify each member of the general assembly via electronic mail or other type of electronic communication when it:
   1. Proposes a change in services or reimbursement that affects more than two thousand five hundred (2,500) beneficiaries; or
   2. Proposes a change that will affect current or future appropriations made by the general assembly in any amount that is greater than ten million dollars ($10,000,000).
3. The bureau of TennCare shall report at least quarterly to members of the Tennessee general assembly via electronic mail or other type of electronic communication on the following:
   1. Status of TennCare reform and improvements;
   2. Number of recipients on TennCare and costs to the state;
   3. Viability of MCOs and providers in the TennCare program; and
   4. Success of fraud detection and prevention.
4. The bureau of TennCare shall concurrently transmit to members of the general assembly via electronic mail or other type of electronic communication TennCare's annual budget proposal when presented in a public forum.

Acts 1968, ch. 551, § 4; 1973, ch. 276, § 3; impl. am. Acts 1975, ch. 219, § 1 (a), (b); T.C.A., § 14-1904; Acts 1982, ch. 730, § 4; T.C.A., § 14-23-104; Acts 1993, ch. 358, § 3; 2010, ch. 1079, § 3.

Compiler's Notes. For the transfer of TennCare from the department of finance and administration to the department of health, See Executive Orders Nos. 1 (January 26, 1995) and 11 (January 7, 1997).

For transfer of the TennCare program and its related functions and administrative support from the department of health to the department of finance and administration, see Executive Order No. 23 (October 19, 1999).

Cross-References. Rules and regulations, finding medical assistance, § 71-5-134.

Tennessee Medicaid False Claims Act, §§ 71-5-181 — 71-5-185.

71-5-105. Powers and duties of department — Total number of ICF/MR beds — Certificate of need exemption for DIDD public ICF/MR non-facility beds established pursuant to federal litigation.

1. The department shall:
   1. Supervise the administration of medical assistance for eligible recipients;
   2. Make uniform rules and regulations, not inconsistent with the law, for implementing, administering and enforcing this part in an efficient, economical and impartial manner;
   3. 1. Establish, in consultation with the comptroller of the treasury, rules and regulations for the determination of payment for hospitals, and other health care providers who contract with the department for the care of persons eligible for assistance pursuant to this part;
      2. Establish, in consultation with the comptroller of the treasury and the Tennessee Health Care Association (THCA), rules for an acuity and quality-based reimbursement methodology for nursing facility services paid for by the bureau of TennCare under the rules of the department and as designated and certified by the department. Payment determination components shall include acuity adjusted direct care, non-acuity adjusted direct care, quality, administration, fair market value capital, a cost-based component, and an inflation index factor. The inflation index factor that shall be the most recent Skilled Nursing Facility without Capital Market Basket Index as published by IHS Global Insight (IHS Economics) or other index as may be agreed to by the bureau of TennCare and the comptroller of the treasury, in consultation with THCA, should this index cease to be produced. The commissioner may establish the maximum amount to be paid to nursing facilities, consistent with the requirements of federal law and § 71-5-124(b);
   4. Cooperate with the appropriate federal department in any reasonable manner as may be necessary to qualify for federal aid in connection with the medical assistance program;
   5. Within sixty (60) days after the close of each fiscal year, prepare and print an annual report, which shall be submitted to the governor and members of the general assembly. This report shall include a full account of the operations and the expenditures of all funds under this part, adequate and complete statistics divided by counties about all medical assistance within the state, rules and regulations of the department promulgated to carry out this part, and such other information as it may deem advisable;
   6. Prepare or have prepared and release a summary statement monthly showing by counties the amount paid under this part and the total number of persons assisted;
   7. Establish and enforce safeguards to prevent unauthorized disclosures or improper use of the information contained in applications, reports of investigations and medical examinations, and correspondence in the individual case records of recipients of medical assistance;
   8. Furnish information to acquaint needy persons and the public generally with the plan for medical assistance of this state;
   9. Cooperate with agencies in other states in establishing reciprocal agreements to provide for payment of medical assistance to recipients who have moved to another state, consistent with this part and of Title XIX as amended;
   10. Contract, to the extent feasible, with one (1) or more contractors or fiscal intermediaries, or both, to provide or arrange services under this part. All such contracts shall be procured in accordance with the requirements of title 12, chapter 4, part 1; provided, that the department shall be required to solicit competitive proposals for contracts with fiscal intermediaries;
   11. Increase the coverage under medicaid for inpatient hospital days from fourteen (14) days to twenty (20) days, as provided for in the public health regulations of the United States department of health and human services, health care financing administration (HCFA). Coverage for inpatient hospital days shall be unlimited for any infant under the age of one (1) year to the extent required by federal law or regulations. The commissioner is further directed to promulgate a rule establishing a system of prospective reimbursement, targeted reimbursement, diagnosis-related groups, other method of reimbursement related to diagnosis, or other method of reimbursement pursuant to any federal waiver that waives any or all of the provisions of Title XIX that the state may receive or pursuant to any other federal law as adopted by amendment to the required Title XIX state plan, at which time such mechanism shall be used to determine the number of inpatient hospital days instead of the twenty-day limitation provided in this subdivision (a)(11); and
   12. Notwithstanding any law to the contrary, assist the council on children's mental health care in developing a plan that will establish demonstration sites in certain geographic areas where children's mental health care is child-centered, family-driven, and culturally and linguistically competent and that provides a coordinated system of care for children's mental health needs in this state.
2. 1. The total number of beds in private for-profit and private not-for-profit intermediate care facilities for persons with mental retardation (ICF/MR) facilities shall not exceed a total maximum number of six hundred sixty-eight (668). In compliance with the certificate of need process, private for-profit and private not-for-profit ICF/MR beds may be transferred from one location to another but the total number of such beds shall not exceed six hundred sixty-eight (668).
   2. Beginning July 1, 2006, the total number of beds in ICF/MR facilities shall increase by forty (40) beds per year for the next four (4) years, resulting in a maximum of eight hundred twenty-eight (828) beds by July 1, 2009. Only providers that have been providing services to persons with developmental disabilities under contract with the state for at least five (5) years shall be eligible to apply for these new beds. These new beds shall be initially filled by persons exiting the developmental centers, and upon the death or discharge of the person who exited the developmental center, the bed may be filled by individuals currently enrolled in one of the home and community based services (HCBS) waivers for individuals with intellectual disabilities or the waiting list for individuals with intellectual disabilities, subject to the individual's freedom of choice and pursuant to a process established and administered by the department of intellectual and developmental disabilities (DIDD) in order to ensure that such placement is the most integrated and cost-effective setting appropriate. Providers may refuse persons based on needs compatibility with the total mix of persons in the facility. If fewer than four (4) persons transitioning from a developmental center as part of the developmental center closure have selected a provider, the remaining beds necessary to establish the four-person home may be filled by individuals currently enrolled in one of the HCBS waivers for individuals with intellectual disabilities or the waiting list for individuals with intellectual disabilities, subject to the individual's freedom of choice and pursuant to a process established and administered by DIDD in order to ensure that such placement is the most integrated and cost-effective setting appropriate. DIDD shall do everything possible to provide referrals for these new beds. DIDD shall demonstrate a commitment to ensuring the individual's freedom of choice and ensure that every eligible service recipient is fully informed of all services available to them, including community ICF/MR facilities and the specialized services they provide.
   3. DIDD is to appoint a nine-person taskforce to review oversight, utilization, and future need for ICF/MR services and make recommendations to the general assembly and governor by June 30, 2007. Three (3) of the members of the taskforce shall be appointed by the DIDD from a list of persons provided by Tennessee Community Organizations (TNCO), and three (3) of the members shall be appointed by DIDD from a list of persons provided by ARC of Tennessee. The remaining three (3) members shall be employees of DIDD or other state agencies. DIDD shall designate one (1) of the members as chair of the taskforce.
3. Notwithstanding any authority to the contrary, DIDD public ICF/MR non-facility beds established pursuant to federal litigation settlements or orders arising out of the cases United States v. State of Tennessee , 798 F. Supp. 483; 1992 U.S. Dist. LEXIS 14004 (W.D. Tenn. 1992), or People First of Tennessee, et al., v. Clover Bottom Developmental Center, et al. , NO. 00-5342 (Docket) (C.A.6 Mar. 22, 2000), shall be exempt from all requirements and processes for the application and granting of certificates of need as set forth in § 68-11-1607. The establishment of all private ICF/MR non-facility beds remains subject to certificate of need requirements and processes.

Acts 1968, ch. 551, § 5; T.C.A., § 14-1905; Acts 1982, ch. 730, § 5; 1984, ch. 787, § 9; 1986, ch. 831, § 1; 1986, ch. 884, § 1; T.C.A., § 14-23-105; Acts 1989, ch. 45, § 1; 1989, ch. 296, § 1; 1992, ch. 903, § 1; 1993, ch. 358, § 4; 1997, ch. 478, § 3; 2006, ch. 761, § 1; 2007, ch. 307, § 1; 2008, ch. 1062, § 11; 2008, ch. 1190, § 19; 2009, ch. 458, § 1; 2009, ch. 477, § 1; 2010, ch. 1100, § 139; 2013, ch. 239, § 1; 2016, ch. 630, § 1; 2018, ch. 836, § 1.

Code Commission Notes.

The provisions of this section may be affected by the agreement between the federal and state governments that created the TennCare program.

Compiler's Notes. Acts 1984, ch. 787, § 14, provided “Rules and regulations of the comptroller and other departments of state government affected by this act shall remain in effect until subsequently repealed. Rules and regulations promulgated hereunder may be initially promulgated as public necessity rules (now emergency rules) pursuant to Tennessee Code Annotated, § 4-5-209 (now § 4-5-208).”

For the transfer of TennCare from the department of finance and administration to the department of health, See Executive Orders Nos. 1 (January 26, 1995) and 11 (January 7, 1997).

For transfer of the TennCare program and its related functions and administrative support from the department of health to the department of finance and administration, see Executive Order No. 23 (October 19, 1999).

Acts 2002, ch. 844, §§ 1-3 provided that:

“The fiscal review committee is directed to study: (1) The need for placement of additional beds at private community-based, not-for-profit ICF/MR facilities; (2) Current rates for payment of costs in ICFs/MR and whether current methodology and procedures to establish such rates are appropriate and adequate to insure the lowest and most cost-effective services; 3) Administrative oversight of ICFs/MR facilities to assess adequacy of control to insure cost-effective service delivery and appropriate programmatic quality control; and (4) The role of ICFs/MR in the overall system of services and supports, including admissions and discharges; and to make appropriate legislative proposals to implement any recommendations the committee determines to be beneficial to the state of Tennessee and its citizens. The committee shall specifically consider the necessity of adding beds to certain facilities in light of the costs of such additions. The committee shall also study whether additional capacity should be added to other forms of housing such as supported living and the effects of changes on developmental disability centers.

“The departments of health and mental health and developmental disabilities and the division of mental retardation services shall provide assistance to the fiscal review committee upon request of the chair.

“The fiscal review committee shall timely report its findings and recommendations, including any proposed legislation or interim reports, to the One Hundred Third General Assembly no later than February 15, 2003.”

For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Acts 2008, ch. 1190, § 20 provided that, except as otherwise specified, the commissioner is authorized to promulgate rules and regulations to effectuate the purposes of the act. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

For the Preamble to the act regarding long-term care, please refer to Acts 2008, ch. 1190.

Acts 2009, ch. 477, § 1, directed the code commission to change all references from “division of mental retardation services” to “division of intellectual disabilities services” and to include the changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Annual list of medicaid options, duty to furnish, § 68-1-110.

Certificate of need for health facilities, § 68-11-1607.

Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

Rules and regulations, funding medical assistance, § 71-5-134.

Tennessee Medicaid False Claims Act, §§ 71-5-181 — 71-5-185.

“Title XIX” defined, § 71-5-103.

Attorney General Opinions. Health Insurance Portability and Accountability Act/TennCare/Medicaid interplay, OAG 07-165, 2007 Tenn. AG LEXIS 165 (12/14/07).

71-5-106. Determination of eligibility for medical assistance.

1. 1. The departments of health and human services, as may be designated by the governor, shall make the determination of eligibility under this part, subject to approval of the finance, ways and means, and the health and welfare committees of the senate, the health committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare. Such determination of eligibility may be accomplished through contractual agreement with agencies of the federal government. Eligibility for assistance shall be determined in a manner that will ensure that medical assistance is provided, within the limits of available resources subject to federal financial participation, to all persons who, although ineligible for supplementary security income (SSI), complied under Title XVI of the Social Security Act (42 U.S.C. § 1381 et seq.), or are medically needy.
   2. 1. A notice that awards medicaid benefits shall include the following statement:

         “A person with both medicare and medicaid does not usually need other health insurance. Did you buy a medicare supplement policy after November 4, 1991? If so, you can have the insurance company put your policy and your payments on hold. The insurance company can do this for up to twenty-four (24) months while you are on medicaid. If you lose medicaid during the twenty-four-month period, you can get your policy back.

         “To put your policy on hold, contact your insurance company within ninety (90) days of when you get medicaid. To get your policy back, you must tell your insurance company within ninety (90) days after you lose medicaid.”

      2. A notice that terminates medicaid benefits shall include the following statement:

         “Did you have medicare supplement insurance that you put on hold while you had medicaid? You may be able to get your policy back if you have put it on hold less than two (2) years ago. Contact your insurance company within ninety (90) days after you lose medicaid. Tell the insurance company that you want your policy reinstated.”

2. In determining the eligibility of an individual for benefits under this chapter, resources that have been previously owned and transferred by the individual, or such individual's spouse, shall be treated in a manner consistent with Title XIX of the Social Security Act.
3. Any transaction described in subsection (b) shall be presumed to have been for the purpose of establishing eligibility for benefits or assistance under this part, unless such individual or eligible spouse furnishes convincing evidence to establish that the transaction was exclusively for some other purpose.
4. For purposes of subsection (b), the value of such a resource or interest shall be the fair market value of such resource or interest at the time it was sold or given away, less the amount of compensation received for such resource or interest, if any.
5. In the event that any resource, or interest in any resource, is given away or sold for less than fair market value by a person holding a power of attorney by the owner of the resource or interest, such resource or interest shall not be counted as a resource to the owner of the property pursuant to subsections (b)-(d) under the following circumstances:
   1. The power of attorney was not executed for the purpose of establishing or continuing medicaid eligibility;
   2. The owner of the property has, at the time of the transfer, neither actual nor constructive knowledge of the transfer or is unable because of mental or physical incapacity to take reasonable and necessary steps to prevent such sale or transfer.
6. If any resource or interest in any resource is given away or sold for less than fair market value by a person holding a power of attorney by the owner of such resource, the sale or gift shall be set aside by a court of competent jurisdiction as being in defraud of the state upon motion of the state of Tennessee or of any party representing the owner of the resource, unless the person holding the power of attorney proves by a preponderance of the evidence that the sale or gift was exclusively for some other purpose than the establishment or continuance of medicaid eligibility.
7. In addition to the requirements of subsection (f), the person exercising the power of attorney and the person to whom the resource is given or sold for less than fair market value shall be jointly and severally liable to the state of Tennessee for any costs incurred by it in providing medicaid benefits to the owner of the resource, until such time as the conveyance is set aside, for any costs, including attorney fees, court costs, and any other related expenses, incurred by it in having the conveyance set aside, and for any losses incurred as a result of any damage, destruction, expenditure, waste, transfer of the resources or other act of the persons involved that diminishes the value of the resource. Such liability shall be limited to the actual value of the resource.
8. In the event that a person otherwise eligible for medicaid has filed an action in court to set aside a transfer for less than value because of fraud, duress, trick or otherwise, such person shall be or shall remain eligible, or both, and the state of Tennessee shall have recourse under subsections (f) and (g) to set aside the transfer and recover.
9. In addition to the other categories of eligibility under this section, there shall be a category of medical assistance eligibility for those children who:
   1. 1. Were born after September 30, 1967;
      2. Are eighteen (18) years of age or younger; and
      3. Are in intact families that meet the TANF income and resource requirements; or
   2. As provided in Title IV of the Social Security Act (42 U.S.C. § 601 et seq.), have been determined to be a child with special needs, for whom there is in effect an adoption assistance agreement between the department of children's services and an adoptive parent or parents, and who the department of children's services has determined cannot be placed with an adoptive parent or parents without medical assistance because such child has special needs for medical, mental health, or rehabilitative care.
10. Subsections (b)-(j) shall not limit the ability of the state to extend medical assistance to persons who are medically needy pursuant to any federal waiver received by the state that waives any or all of the provisions of Title XIX or pursuant to any other federal law as adopted by amendment to the required Title XIX state plan.
11. Effective January 1, 1998, if the actual enrollment of non-previously enrolled children under eighteen (18) years of age that began on April 1, 1997, has not reached seventy-five percent (75%) of anticipated enrollment level of fifty thousand (50,000) children, the commissioner of health shall offer enrollment in the Title XIX waiver program, TennCare, to children under eighteen (18) years of age whose family income is below two hundred percent (200%) of the federal poverty level schedule in effect for calculation of TennCare premiums. Such offer of enrollment in the TennCare program shall be made in accordance with TennCare promulgated rules and regulations. It is the legislative intent that this section be implemented only to the extent that it is determined to be consistent with the terms, conditions and eligibility criteria of the TennCare waiver as approved by the United States department of health and human services and that state and federal funding is available for such purpose.
12. Beginning January 1, 2003, the bureau of TennCare or its designee shall determine eligibility for TennCare on an annual basis as follows:
    1. All non-medicaid eligible TennCare enrollees will have the responsibility to complete an eligibility process each year; in the absence of reapplication and completion of the process, coverage will expire;
    2. Upon notification by the bureau of TennCare, the enrollee must submit application for continuation of eligibility within ninety (90) days; once an application has been timely submitted, the enrollee must provide all required documentation to verify continued eligibility in accordance with TennCare rules and regulations;
    3. Notification to the enrollee is presumed when a notice is mailed to the last known address;
    4. Lack of receipt of the notification does not excuse the responsibility of the enrollee to submit an application and provide documentation for continuation of eligibility as required by TennCare rules and regulations if the enrollee has changed addresses and failed to notify the bureau of TennCare or its designee; and
    5. Failure of the enrollee to contact the bureau of TennCare or its designee concerning a change in address relieves the bureau of responsibility for contacting the enrollee.
13. To the extent permitted by federal law, the state may impose a reasonable fee for costs of eligibility determinations for applicants applying for medical assistance as part of the medically eligible expansion population under the TennCare waiver.
14. In the TennCare waiver expansion population, except for persons medically eligible as uninsurable persons, enrollment shall not be permitted for individuals from households with incomes of greater than two hundred fifty percent (250%) of federal poverty levels.
15. Except as may be required by federal law or the TennCare waiver, no person shall be eligible to receive TennCare benefits, except employee health insurance subsidy payments, as part of the TennCare waiver expansion population if such person is enrolled in a health insurance plan as such coverage is defined in TennCare rules and regulations, or if such person is eligible for participation in medicare or group health insurance offered through an employer or family member's employer, or COBRA coverage.
16. All determinations of eligibility for persons medically eligible as uninsurable in the TennCare waiver's expansion population shall be made on the basis of health conditions that prevent the person from obtaining health insurance. Such a determination will be based upon a review of medical records and information in accordance with TennCare rules and regulations.
17. To the extent permitted by the terms of relevant court orders and decrees, any applicable federal waiver under Title XIX of the federal Social Security Act or any other federal law, the bureau of TennCare may not remove persons from eligibility for or participation in medical assistance provided pursuant to this chapter for reasons relating to restricting eligibility or enrollment for fiscal or other reasons that are not required by federal law until the bureau has complied with both of the following:
    1. The bureau has verified at the time of application the validity of the social security number of every person enrolled in the medical assistance program provided pursuant to this chapter with appropriate federal databases in order to determine whether persons who are not lawful residents of the United States are present in the program, or are otherwise fraudulent applicants; and
    2. Removed from the program all such ineligible persons who are current recipients in the program but are not lawful residents of the United States, or are otherwise fraudulent applicants.
18. 1. An individual who is an inmate of a public institution shall have eligibility for medical assistance suspended but not terminated during periods of actual incarceration.
    2. An individual who is an inmate of a public institution shall be eligible for temporary reinstatement of medical assistance for care received outside of a jail or correctional facility in a hospital or other health care facility for more than twenty-four (24) hours.
    3. A public institution may make efforts to establish eligibility for or renew assistance for such individuals prior to their release from the public institution.

Acts 1968, ch. 551, § 6; 1973, ch. 276, § 4; 1974, ch. 440, § 1; T.C.A., § 14-1906; Acts 1981, ch. 315, §§ 1-3; 1981, ch. 476, § 1; 1982, ch. 714, § 1; 1985, ch. 430, § 2; 1986, ch. 845, § 1; T.C.A., § 14-23-106; Acts 1987, ch. 332, § 1; 1989, ch. 143, § 1; 1991, ch. 406, § 1; 1992, ch. 799, § 1; 1993, ch. 358, §§ 5, 6; 1997, ch. 495, § 1; 1998, ch. 1097, § 29; 2002, ch. 880, § 2; 2004, ch. 673, §§ 4-8; 2009, ch. 429, § 1; 2013, ch. 236, § 86; 2014, ch. 926, § 1; 2019, ch. 345, § 134.

Code Commission Notes.

Former references to “aid to families with dependent children (AFDC)” were deleted as obsolete by the code commission and were changed to “temporary assistance for needy families (TANF).”The provisions of this section may be affected by the agreement between the federal and state governments that created the TennCare program.

Compiler's Notes. Section 2 of Acts 1982, ch. 714 provides “that nothing contained in this Act shall be construed to invalidate any eligibility determination made on or after July 1, 1981, in accordance with Public Chapter 315 of the Public Acts of 1981 and the regulations promulgated pursuant thereto.”

This section may be affected by § 9-1-116, concerning entitlement to funds, absent appropriation.

The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), P.L. 99-272, § 9401, referred to in this section, is codified in 42 U.S.C. §§ 1396a and 1396b.

For the transfer of TennCare from the department of finance and administration to the department of health, See Executive Orders Nos. 1 (January 26, 1995) and 11 (January 7, 1997).

For transfer of the TennCare program and its related functions and administrative support from the department of health to the department of finance and administration, see Executive Order No. 23 (October 19, 1999).

Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and re-verifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided: that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Amendments. The 2019 amendment substituted “the finance, ways and means, and the health and welfare committees of the senate, the health committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare” for “the finance, ways and means committees of the senate and the house of representatives and the health and welfare committee of the senate and the health committee of the house of representatives” in the first sentence of (a)(1).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Licensing of nurses, title 63, ch. 7.

Rules and regulations, funding medical assistance, § 71-5-134.

Tennessee Medicaid False Claims Act, §§ 71-5-181 — 71-5-185.

“Title XIX” defined, § 71-5-103.

Law Reviews.

Constitutional Issues Raised by States' Exclusion of Fertility Drugs from Medicaid Coverage in Light of Mandated Coverage of Viagra, 54 Vand. L. Rev. 359 (2001).

Attorney General Opinions. Medical expenses of inmates, OAG 97-010, 1997 Tenn. AG LEXIS 22 (2/4/97).

71-5-107. Kinds of medical services.

1. Medical assistance, including demonstration projects and programs designed to enhance the efficient and economic operation of the medicaid program, shall be provided to those classes of individuals determined to be eligible under § 71-5-106. This medical assistance, in the amount, scope, and duration determined by the commissioner of health and to the extent permitted by federal law, may include:
   1. Inpatient hospital services, other than services in an institution for tuberculosis or mental diseases;
   2. Outpatient hospital services;
   3. Other laboratory and X-ray services;
   4. Skilled nursing home services, other than services in an institution for tuberculosis or mental diseases;
   5. Physicians' services, whether furnished in the office, the patient's home, a hospital, a skilled nursing home, or elsewhere;
   6. Drugs;
   7. Inpatient hospital services for individuals sixty-five (65) years of age or over in an institution for tuberculosis or mental diseases, and inpatient hospital services for individuals under twenty-one (21) years of age in institutions for mental diseases, or in case of an individual who was receiving such inpatient services for mental disease in the period immediately preceding the date on which such individual becomes twenty-one (21) years of age:
      1. The date on which such individual no longer requires the services; or
      2. If earlier, the date such individual becomes twenty-two (22) years of age;
   8. Nonmedical nursing care shall be rendered in accordance with the tenets and practice of a recognized church or religious denomination to any indigent person otherwise qualified for assistance under this part who depends upon healing by prayer or spiritual means alone in accordance with the tenets and practice of such church or religious denomination;
   9. Skilled nursing home services for individuals sixty-five (65) years of age or over in institutions for tuberculosis or mental diseases;
   10. Medical screening, diagnostic and treatment services for eligible categorically connected individuals under twenty-one (21) years of age;
   11. Psychiatric clinic services in approved facilities;
   12. 1. Home health care services provided in the recipient's home. The services may follow the recipient into the community subject to subdivision (a)(12)(B);
       2. Home health nurses or aides may accompany a recipient outside the home during the course of delivery of prior approved home health nurse or home health aide services if all of the following criteria are met:
          1. The home health nurse or home health aide shall not transport the recipient;
          2. The home health agency shall have discretion as to whether or not to accompany a recipient outside the home. The circumstance under which a home health agency may exercise such discretion shall include, without limitation, when the home health agency has concern regarding any of the following:
             1. The scheduling or safety of the transportation;
             2. The health or safety of their employee or the recipient;
             3. The ability to safely and effectively deliver services in the alternative setting; and
             4. The additional expense that would be required to accompany a patient outside the home;
          3. Additional visits or hours of care will not be approved for coverage for the purpose of accompanying a recipient outside the home. Services will be limited to services to which the recipient would be entitled if the services were provided exclusively at the recipient's place of residence; and
          4. No additional reimbursement shall be paid to the home health agency in association with the decision of a home health agency to accompany a patient outside the home;
       3. Nothing in this subdivision (a)(12) is intended to create an entitlement to services outside the home;
       4. A home health agency shall not be subject to any claims or cause of action as result of exercising its discretion under this subdivision (a)(12);
   13. Transportation for approved emergency medical examination or treatment, or both;
   14. Intellectual disability and rehabilitation services;
   15. Intermediate care facilities services;
   16. Medical services rendered by community or neighborhood health organizations or clinics, including organizations or clinics where some or all of the medical services are provided by medical students presently enrolled in a medical school accredited by the Association of American Medical Colleges or licensed registered nurses, or both, and where such students or licensed registered nurses are under the direction of a licensed physician or physicians;
   17. Family planning services and supplies;
   18. Basic dental care services;
   19. Medical and surgical services rendered by ambulatory surgical treatment centers;
   20. Services rendered by rural health clinics;
   21. Medical assistance and home- and community-based services to those eligible being served through a health care financing administration (HCFA) approved waiver designed to provide more efficient and economical alternatives to institutional care;
   22. Services by nurse anesthetists who are registered by the Tennessee board of nursing, who have completed an advance course in anesthesia, and who hold a current certification from the American Association of Nurse Anesthetists as a nurse anesthetist;
   23. Nurse midwife services performed by a person who is licensed by the Tennessee board of nursing as a registered nurse under the authority of the Nursing Practice Act, compiled in title 63, chapter 7, and certified by the American College of Nurse Midwives as a certified nurse midwife;
   24. Services provided by certified pediatric nurse practitioners and certified family nurse practitioners as required by federal law;
   25. 1. Sickle cell disease management services and public education campaign activities specifically related to sickle cell disease, as authorized by 42 U.S.C. § 1396d(a)(27) and (x), with reimbursement in accordance with any applicable state plan amendment;
       2. Any contract between a managed care organization (MCO) and the bureau of TennCare to provide medical assistance pursuant to this part shall be appropriately revised or amended in order to comply with the implementation of subdivision (a)(25)(A); and
   26. Language interpreter services, which may include:
       1. Sign language interpreter services when such services are necessary to help recipients who are deaf or hard of hearing obtain covered services; and
       2. Spoken language interpreter services to all recipients with limited English proficiency.
2. With respect to recipients determined to be “medically needy,” all or a part of the medical services outlined in subsection (a) may be provided, and may, within applicable federal legislation and regulations, be of lesser amounts, duration and scope than medical services provided other medicaid recipients in order to ensure that an expenditure of state funds shall not exceed the amount provided for the operation of the medicaid program.
3. When the amount, duration, and scope of medical services is lessened so as to no longer include intermediate care facility services, the commissioner of health, with approval of the commissioner of human services, may continue to provide intermediate care facility services to those recipients who have been determined to be medically indigent and placed in a medicaid certified intermediate care facility bed at the time such change in the amount, duration, and scope of medical services is made.
4. The department shall assist in the development of a demonstration project, which would provide cost effective alternatives to long-term care under the Omnibus Budget Reconciliation Act of 1981, to the extent permissible under the federal law, for institutional and residential homes that provide domiciliary care for the aged and mentally disabled, which project would include the Foster-Group Care Home Association. The development of such demonstration project shall begin on July 1, 1982.
5. The bureau of TennCare shall have the authority to implement a comprehensive disease management program for certain enrollees of the TennCare program to the extent permitted under federal law and the TennCare waiver. The bureau, through its authority to promulgate rules and regulations, may identify enrollees eligible to participate and the disease categories to be included in the comprehensive disease management program. The bureau, also through its authority to promulgate rules and regulations, may put in place requirements regarding the continued participation of enrollees in the program.
6. Subject to the availability of funding earmarked for such programs in the general appropriations act and to the extent permitted under federal law and the TennCare waiver, the bureau of TennCare shall have the authority to create in whole or in part and administer a program to be named “The TennCare safety net” which will provide two different components to assist eligible TennCare enrollees:
   1. Certain medical providers in Tennessee shall provide non-emergency health care services without co-payment requirements to certain specified TennCare enrollees. Such services are intended to include only services that are both medically necessary and within the scope of TennCare benefits for the particular enrollee but for which the enrollee cannot meet the co-payment requirements. Through its authority to promulgate rules and regulations, the bureau of TennCare will identify the parameters of this component of the TennCare safety net program, including which enrollees are eligible to participate in this program, allowable benefits under the program, designation of both urban and rural providers who participate in this program, and a funding methodology pursuant to which such providers shall be compensated;
   2. 1. A TennCare foundation will be established that will accept and review applications for medical assistance submitted on behalf of certain specified TennCare enrollees. The members of the foundation shall be appointed by the governor, who shall determine the size and composition of the foundation's membership. The governor should strive to ensure that the membership is representative of the state's geographic and demographic composition with appropriate attention to the representation of women and minorities. Terms for the members will be staggered and the length of terms will be detailed by the governor in making initial or subsequent appointments. The governor shall appoint the chair and vice-chair. For the purposes of administration and availability of records, the TennCare foundation shall be located within the bureau of TennCare; staff assistance shall be provided by the bureau of TennCare or by another entity, should the governor so determine. At the discretion of the governor, the foundation may be placed within another appropriate agency, may create or be reconstituted as a nonprofit entity, or may be terminated at any time; and
      2. Applications for medical assistance from the foundation are not intended, and should not be used, as a means to circumvent or avoid the benefit limits established by the bureau of TennCare. It is expected that these applications will be submitted to address special, unforeseen, or exceptional circumstances. Such applications must be submitted by a licensed medical provider who is treating the enrollee and shall request the provision of medically necessary health care services recommended or prescribed by the enrollee's treating provider that are beyond the scope of benefits provided through the TennCare program benefit package for which the enrollee is eligible. For the purposes of this subsection (f), “beyond the scope of benefits” means a benefit that is covered within limits by TennCare but for which the enrollee has exceeded the covered limits of that benefit. It does not include benefits that are not covered to any extent under TennCare for the applicant. The foundation will not consider matters of eligibility for the TennCare program. Through its authority to promulgate rules and regulations, the bureau of TennCare will identify the parameters of this component of the TennCare safety net program, including the process for making application to this foundation, which enrollees are eligible to apply, and a mechanism for determining which applications will be reviewed by the foundation. The foundation will not have rule-making authority;
      3. 1. Notwithstanding the availability of assistance from the foundation, no enrollee has an expectation of or an entitlement to assistance from the foundation;
         2. There exists no right of appeal regarding an application for assistance; and
         3. Because the level of funding provided to the foundation is limited, the foundation may not be able to fully or partially fund all applications. The decisions of which applications to fund will be solely within the discretion of the foundation;
      4. Nothing in this subsection (f) shall be construed to require a contested case hearing as set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, nor shall any determinations made by the foundation be considered final orders from which appeals can be taken. The consideration of applications provided for by this subdivision (f)(2)(D) shall not constitute hearings as set forth in the Uniform Administrative Procedures Act;
      5. The foundation shall consider applications and determine in its sole discretion and without requirement for written findings whether the application should be granted in whole or in part. The foundation's determination on an enrollee's application shall have no binding precedential effect on the consideration of any other enrollees' applications;
      6. In the event that a matter being considered by the foundation presents a real or apparent conflict of interest for any staff or member, such staff or member shall disclose the conflict to the chair and be recused from any official action taken on the matter;
      7. Notwithstanding the open meetings law, compiled in title 8, chapter 44 or any other law to the contrary, any and all meetings of the TennCare foundation are to be considered confidential and closed to the public. Members and staff shall maintain strict standards of confidentiality in the handling of all matters before the foundation. In addition, all relevant federal and state laws regarding patient privacy and confidentiality will be adhered to. All material and information, regardless of form, medium, or method of communication, provided to or acquired by a foundation member or staff in the course of the foundation's work, shall be regarded as confidential information, shall not be disclosed, and are not public records. In addition, all material and information, regardless of form, medium, or method of communication, made or generated by a member or foundation staff in the course of the foundation's work, shall be regarded as confidential information and shall not be disclosed and are deemed not to be a public record. All necessary steps shall be taken by members and staff to safeguard the confidentiality of such material or information in conformance with federal and state law;
      8. Every October 1, the foundation shall report in writing to the governor, the health and welfare committee and commerce and labor committee of the senate, the health committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare regarding how funds allocated to the foundation were spent during the previous fiscal year. Such report shall contain the following information:
         1. How many applications were received;
         2. How many applications the foundation granted;
         3. The type of services and items that were funded; and
         4. Statistical information, by gender, race, and division of the state, on who applied for and who received the funds;
      9. Whether members shall receive reasonable compensation for their service on the TennCare foundation will be determined at the discretion of the governor; members may be reimbursed for those expenses allowed by the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter;
      10. If any federal or state court or other tribunal with jurisdiction:
          1. Determines that any aspect of subdivision (f)(2)(A), (f)(2)(B), (f)(2)(C), (f)(2)(D), (f)(2)(E), or (f)(2)(G) violates federal law, state law, or any existing court order or consent decree, and
          2. Makes effective an order enjoining compliance with any aspect of these provisions or requiring non-trivial changes in the terms or applications of these provisions,the challenged provisions may not be severed from the remainder of this subdivision (f)(2). In this event, all provisions of this subdivision (f)(2) will terminate and have no further effect. Such termination shall occur no later than ninety (90) days after the effective date of the order unless such order is stayed by the issuing court or the reviewing court pending disposition of an appeal of the order. The decision whether or not to appeal any such order will be at the sole discretion of the bureau of TennCare. This nonseverability provision shall be self-executing. If this subdivision (f)(2) is terminated while appropriated funds remain, the unused funds shall revert back to the general fund. Any payments for services or items which have been approved but not yet disbursed as of the date of termination shall be paid, but no further applications for payments shall be considered or granted after the date of termination. In the event of termination under this subsection (f), the foundation may be reinstated only by new legislative action and a new appropriation by the general assembly.
7. The bureau of TennCare shall have the authority, in collaboration with one or more medical schools located in Tennessee, to establish an evidence-based medicine initiative for the purpose of developing medical protocols and integrating standards of best practices within the delivery of TennCare services. To the extent that evidence-based medical protocols are authorized by the bureau of TennCare, such protocols shall satisfy the standard of medical necessity as set forth in § 71-5-144. The bureau of TennCare, through its authority to promulgate rules and regulations, shall establish the parameters for the initiative, including who can participate and how the initiative is to be implemented.

Acts 1968, ch. 551, § 7; 1969, ch. 326, §§ 1, 2; 1972, ch. 596, § 1; 1973, ch. 73, §§ 1, 3, 4; 1973, ch. 262, § 1; 1973, ch. 276, § 5; 1974, ch. 802, § 2; 1976, ch. 572, § 1; 1978, ch. 875, § 1; modified; T.C.A., § 14-1907; Acts 1981, ch. 225, §§ 1-4; 1981, ch. 476, § 2; 1982, ch. 740, §§ 6-8, 19; T.C.A., § 14-23-107; Acts 1987, ch. 310, §§ 1, 2; 1988, ch. 510, §§ 1, 2; 1993, ch. 183, § 1; 1998, ch. 1093, § 2; 2004, ch. 673, § 2; 2009, ch. 471, § 1; 2011, ch. 197, § 2; 2011, ch. 410, § 6(b); 2013, ch. 236, § 77; 2015, ch. 122, § 1; 2017, ch. 243, § 1; 2019, ch. 329, § 6; 2019, ch. 345, § 135.

Compiler's Notes. The Omnibus Budget Reconciliation Act of 1981, referred to in this section, was passed as P.L. 97-35, P.L. 97-115 and P.L. 97-123 and is codified throughout the United States Code.

Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2011, ch. 197, § 3 provided that for purposes of each provision amended by the act, which amended subdivision (a)(14), a reference to intellectual disability shall be considered to refer to mental retardation, as defined by that provision on the day before May 12, 2011.

Acts 2011, ch. 197, § 4 provided that nothing in the act, which amended subdivision (a)(14), shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before May 12, 2011.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Acts 2019, ch. 329, § 8 provided that the use of the term “deaf or hard of hearing” in the act, which amended this section, shall not be construed to infringe on any right or protection, or absolve any entity of its obligations under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), or any other relevant law.

Amendments. The 2019 amendment by ch. 329 substituted “recipients who are deaf or hard of hearing” for “hearing impaired recipients” in (a)(26)(A).

The 2019 amendment by ch. 345 substituted “the health and welfare committee and commerce and labor committee of the senate, the health committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare” for “the health and welfare committee and commerce and labor committee of the senate and the health committee and insurance and banking committee of the house of representatives” in the introductory language of (f)(2)(H).

Effective Dates. Acts 2019, ch. 329, § 9. May 8, 2019.

Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

Law Reviews.

Constitutional Issues Raised by States' Exclusion of Fertility Drugs from Medicaid Coverage in Light of Mandated Coverage of Viagra, 54 Vand. L. Rev. 359 (2001).

Attorney General Opinions. Constitutionality of residence requirement for organ transplant coverage, OAG 98-075, 1998 Tenn. AG LEXIS 75 (4/1/98).

Preemption of requirements for transplant coverage of uninsurable TennCare enrollees, OAG 98-075, 1998 Tenn. AG LEXIS 75 (4/1/98).

71-5-108. Payment methodology for medicaid enrollees not enrolled in medicare.

The TennCare bureau is directed to submit a state plan amendment to the centers for medicare and medicaid services that sets out a payment methodology for medicaid enrollees who are not also enrolled in medicare, consistent with provisions in § 6085 of the federal Deficit Reduction Act of 2005, regarding emergency services furnished by noncontract providers for managed care enrollees. The payment amount shall be the average contract rate that would apply under the state plan for general acute care hospitals. A tiered grouping of hospitals by size or services may be utilized to administer these payments. The payment methodology developed pursuant to this section shall be budget neutral for the state fiscal year 2007-2008 when compared to the actual experience for emergency services furnished by non-contract providers for medicaid managed care enrollees prior to January 1, 2007. It is the intent that this section only applies to the emergency services furnished by noncontract providers for medicaid managed care enrollees.

Acts 2007, ch. 409, § 1.

Compiler's Notes. Former 71-5-108 (Acts 1968, ch. 551, § 8; 1969, ch. 326, § 3; T.C.A., § 14-1908; Acts 1981, ch. 476, § 3; 1982, ch. 730, § 9; 1983, ch. 151, § 1; T.C.A., § 14-23-108), concerning the notification of price changes or coverage changes for additions to or deletions from the drug formulary, was repealed by Acts 2004, ch. 673, § 19, effective May 17, 2004.

The federal Deficit Reduction Act of 2005, referred to in this section, was enacted by Public Law 109-171.

71-5-109. Expenditures not to exceed appropriation.

1. In no event shall the services paid for by the state including assistance from the United States government require expenditure of state funds in excess of the amount appropriated for such purpose.
2. The commissioner may by rule and regulation fix the maximum level of services as are deemed necessary to ensure that an expenditure of state funds shall not exceed the amount provided for those purposes, as approved by the commissioner of finance and administration.

Acts 1968, ch. 551, § 9; T.C.A., §§ 14-1909, 14-23-109.

71-5-110. Application for medical assistance — Application for TennCare enrollment — Notice of change in application information.

1. An applicant for medical assistance under this part, or a person acting in the applicant's behalf, shall file the application in a place and manner as may be designated by the department of health or the department of human services as may be designated by the governor.
2. Any application for TennCare enrollment shall include the applicant's legal place of residence in addition to the applicant's address, if the address is different from the applicant's legal place of residence or is or contains a post office box number, and a telephone number. The inability to provide a legal place of residence or telephone number due to homelessness shall not, in itself, preclude eligibility. To the extent permitted by federal law, the application of a self-employed individual for medical assistance as a part of the TennCare program shall include a copy of the individual's most recent federal income tax return or, if the individual's business is newly established, documentation deemed sufficient by the bureau of TennCare or the department of human services to project self-employment earnings pending completion of the upcoming year's income tax return.
3. 1. Unless expressly exempted by rule of the department from reporting under this section, each enrollee in and applicant for TennCare uninsured or uninsurable coverage, including a person who applies on behalf of a family member, shall notify the bureau of any material change affecting any information given to the bureau or the bureau's designee on or with the person's TennCare application. The enrollee or applicant shall be responsible for mailing documentation of any such change within thirty (30) days of any change. The bureau shall update the person's file to reflect such changes. An enrollee or applicant, including a person who applies on behalf of a family member, commits the offense of theft of services under title 39, chapter 14, who intentionally fails to so notify the bureau of any material change that would, if properly reported, result in ineligibility or an increase in the amount of any premium or cost sharing.
   2. The department shall ensure that application forms for TennCare uninsured or uninsurable coverage under this part used after July 1, 2000, apprise applicants of the requirements of this chapter.

Acts 1968, ch. 551, § 10; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., § 14-1910; Acts 1982, ch. 730, § 10; T.C.A., § 14-23-110; Acts 1999, ch. 139, § 1; 2000, ch. 853, § 3; 2002, ch. 880, §§ 6, 15; 2004, ch. 673, § 9.

Compiler's Notes. Acts 2000, ch. 853, § 4, provided that the amendment by the act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before July 1, 2000.

Acts 2000, ch. 853, § 5, provided:

“No later than October 1, 2000, the department shall report to the TennCare oversight committee recommendations for establishing duties of medicaid applicants and enrollees to report material changes affecting eligibility. Such recommendations shall identify any categories of persons for whom, based upon program requirements, reporting should not be required; shall specify procedures for reporting; shall identify to whom such reporting should occur; and shall recommend criminal sanctions for noncompliance that constitutes theft of services.”

Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as emergency rules pursuant to § 4-5-209(now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

71-5-111. Investigation — Determination of eligibility.

When an application for medical assistance under this part is filed with the agency designated to determine eligibility under this part, the agency shall promptly make or cause to be made such investigation as it may deem necessary. The object of such investigation shall be to ascertain the fact supporting the application and such other information as may be required.

Acts 1968, ch. 551, § 11; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., § 14-1911; Acts 1982, ch. 730, § 11; T.C.A., § 14-23-111.

71-5-112. Hearing concerning eligibility.

Whenever a hearing concerning eligibility determinations is required by state or federal law or constitutional provision, the agency designated to determine eligibility shall hear such hearings before a hearing officer or administrative judge designated by the agency. The hearing shall be held in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1968, ch. 551, § 12; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., § 14-1912; Acts 1982, ch. 730, § 12; T.C.A., § 14-23-112.

71-5-113. Hearing concerning matters other than eligibility.

1. Except as required in § 71-5-112, whenever a hearing is required by state or federal law or constitutional provision, the department shall provide such hearings before the commissioner or the commissioner's designee.
2. Such hearing shall be held in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, except that the commissioner may adopt rules that establish procedures not necessarily in accordance with the Uniform Administrative Procedures Act for the review of appeals from denials of claims for payment for medical assistance under this part where the amount of the claim is less than five hundred dollars ($500).
3. The procedures shall include the opportunity for an informal hearing before the commissioner or the commissioner's designee, who shall not be a medicaid employee.

Acts 1968, ch. 551, § 13; T.C.A., § 14-1913; Acts 1982, ch. 730, § 13; 1984, ch. 607, § 1; T.C.A., § 14-23-113.

71-5-114. Subpoena and examination of witnesses.

1. The appropriate departments have the power to subpoena witnesses, to compel their attendance and the production of papers and writings.
2. The officers and employees designated by the appropriate department may administer oaths and examine witnesses under oath in connection with any application or proceedings under this part.

Acts 1968, ch. 551, § 14; T.C.A., §§ 14-1914, 14-23-114.

71-5-115. Financial responsibility of relative — When may be considered — Reimbursement from responsible parties.

To the extent permitted by federal law, the department may require or permit that responsible parties of a recipient of medical assistance supplement or reimburse for any benefit or benefits rendered to the recipient pursuant to this part.

Acts 1968, ch. 551, § 15; 1979, ch. 177, § 1; T.C.A., § 14-1915; Acts 1982, ch. 730, § 14; T.C.A., § 14-23-115.

Cross-References. Definition of “responsible parties,” § 71-5-103.

71-5-116. Lien on real estate — Claim against estate — Restrictions.

1. No applicant shall be required to execute an agreement for a lien on real property occupied as the applicant's residence on account of medical assistance paid or to be paid on the applicant's behalf pursuant to this part.
2. No lien may be imposed against the real property of any recipient prior to the individual's death, on account of medical assistance paid or to be paid on the recipient's behalf pursuant to this part, except pursuant to a court judgment for recovery of benefits incorrectly paid on behalf of the recipient.
3. 1. There shall be no adjustment or recovery of any payment for medical assistance correctly paid on behalf of any recipient pursuant to this part from the recipient's estate, except in the case of a recipient who was fifty-five (55) years of age or older at the time the recipient received medical assistance or services pursuant to this part. In that case, adjustment or recovery from the recipient's estate may be pursued only after the death of the individual's surviving spouse, if any, and only at a time when the individual has no surviving child who is under eighteen (18) years of age or no surviving child, as defined in § 1614 of the Social Security Act, who is blind or permanently and totally disabled, or a child who became blind or permanently and totally disabled after reaching majority, if the TennCare bureau and the personal representative agree, or, in the event of a disagreement, the court, after de novo review, finds that repayment would constitute an undue hardship to the blind or disabled child.
   2. Before any probate estate may be closed pursuant to title 30, with respect to a decedent who, at the time of death, was enrolled in the TennCare program, the personal representative of the estate shall file with the clerk of the court exercising probate jurisdiction a release from the bureau of TennCare evidencing either:
      1. Payment of all medical assistance benefits, premiums, or other costs due from the estate under law;
      2. Waiver of the bureau's claims; or
      3. A statement from the bureau that no amount is due.
4. 1. To facilitate and enhance compliance with subsection (c), the following notices shall be provided:
      1. Within thirty (30) days of receipt of notice of a person's death, the department of health shall notify the bureau of TennCare, in a format to be specified by the bureau, of the death of any individual fifty-five (55) years of age or older. Each notification shall include the decedent's name, date of birth and social security number;
      2. Within sixty (60) days of the date of issuance of either letters of administration or letters testamentary, the personal representatives of decedents shall provide notice of the death of any individual fifty-five (55) years of age or older to the bureau of TennCare, in a format to be specified by the bureau, shall state whether the decedent was a TennCare recipient and shall request a release from the bureau of TennCare pursuant to subdivision (c)(2), and an affidavit confirming notice shall be filed pursuant to § 30-2-301(b)(3);
      3. Personal representatives of decedents shall provide notice to the court concerning whether or not the decedent was a TennCare recipient pursuant to § 30-1-117; and
      4. Personal representatives of decedents shall provide the notice to creditors specified in § 30-2-306 to the bureau of TennCare, if the decedent was a TennCare recipient. If a notice to creditors is provided to the bureau, the bureau shall file a claim for recovery in accordance with the requirements of title 30, chapter 2, part 3.
   2. It is the legislative intent of subdivision (d)(1) that, after the date of death, the bureau of TennCare strive vigorously to recoup any TennCare funds expended for a decedent during the decedent's lifetime.
5. The bureau of TennCare shall publish a form of notice to be used pursuant to subdivisions (d)(1)(A) and (B), with instructions for use of the form written in plain language. The form and instructions shall be available at the office of any clerk of court exercising probate jurisdiction, as well as available on the bureau's website. Notice shall be provided via certified mail or in any other manner designated by the bureau.
6. Recoveries pursuant to this section shall be prorated among the federal government, the state, and the county involved, if any, in proportion to the amounts that each contributed to the assistance and services.

Acts 1968, ch. 551, § 16; impl. am. Acts 1971, ch. 162, § 3; T.C.A., §§ 14-1916, 14-23-116; Acts 1994, ch. 682, § 1; 2002, ch. 880, § 9; 2006, ch. 639, § 3.

Compiler's Notes. Acts 2002, ch. 880, § 1, provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

Acts 2006, ch. 639, § 4 provided that the amendment to this section take effect January 1, 2007. Prior to January 1, 2007, this section reads as set out in the amendment note. On and after January 1, 2007, the section reads as set out above.

Section 1614 of the Social Security Act, referred to in this section, is codified in 42 U.S.C. § 1382c.

Law Reviews.

TennCare: Expanded Estate Recovery - Recover at ALL Cost, 45 U. Mem. L. Rev. 711 (2015).

What to Tell Your Clients About TennCare Medicaid Estate Recovery (Tim Takacs & David McGuffey), 43 Tenn. B.J. 16 (2007).

71-5-117. Recovery of benefits — State's right of subrogation — Assignment of insurance benefit rights — Commissioner authorized to require certain information identifying persons covered by third parties — State's right of action — Determination of subrogation interest — Attorney's fees — Remittance of net subrogation interest — Subrogation interest hearing — Legislative intent.

1. Medical assistance paid to, or on behalf of, any recipient cannot be recovered from a beneficiary unless such assistance has been incorrectly paid, or, unless the recipient or beneficiary recovers or is entitled to recover from a third party reimbursement for all or part of the costs of care or treatment for the injury or illness for which the medical assistance is paid. To the extent of payments of medical assistance, the state shall be subrogated to all rights of recovery, for the cost of care or treatment for the injury or illness for which medical assistance is provided, contractual or otherwise, of the recipients against any person. Medicaid payments to the provider of the medical services shall not be withdrawn or reduced to recover funds obtained by the recipient from third parties for medical services rendered by the provider if these funds were obtained without the knowledge or direct assistance of the provider of medical assistance. When the state asserts its right to subrogation, the state shall notify the recipients in language understandable to all recipients, of recipient's rights of recovery against third parties and that recipient should seek the advice of an attorney regarding those rights of recovery to which recipient may be entitled. If, while receiving assistance, the recipient becomes possessed of any resource or income in excess of the amount stated in the application provided for in this part, it shall be the duty of the recipient immediately to notify the agency designated to determine eligibility under this part of the receipt or possession of such resource or income. When it is found that any person has failed to so notify the agency that such person is or was possessed of any resource or income in excess of the amount allowed or when it is found that, within five (5) years prior to the date of recipient's application, a recipient made an assignment or transfer of property for the purpose of rendering the recipient eligible for assistance under this part, any amount of assistance paid in excess of the amount to which the recipient was entitled shall constitute benefits incorrectly paid. Any benefits incorrectly paid shall be recoverable from the recipient, while living, as a debt due to the state and, upon the recipient's death, as a claim classified with taxes having preference under the laws of this state.
2. Upon accepting medical assistance, the recipient shall be deemed to have made an assignment to the state of the right of third party insurance benefits to which the recipient may be entitled. Failure of the recipient to reimburse the state for medical assistance received from any third party insurance benefits received as a result of the illness or injury from which the medical assistance was paid may be grounds for removing the recipient from future participation in the benefits available under this part; provided, that any removal from participation shall be after appropriate advance notice to the recipient and that the provider of service shall not be prevented from receiving payment from the state for medical assistance services previously furnished the recipient, and that nothing in this subsection (b) shall require an insurer to pay benefits to the state that have already been paid to the recipient.
3. 1. For purposes of this subsection (c), “third party for medical services” or “third parties” includes, but is not limited to, a health and liability insurer, an administrator of an ERISA plan, an employee welfare benefit plan, a workers' compensation plan, CHAMPUS, medicare, and other parties that are by statute, contract, or agreement, legally responsible for payment of a claim for a health care item or service.
   2. 1. The commissioner of finance and administration, the director of the bureau of TennCare, and individual managed care organizations under contract with the state are authorized to require certain information identifying persons covered by third parties for medical services. As a condition of doing business in the state or providing coverage to residents of this state, and subject to subdivision (c)(3), a third party for medical services shall, upon request from the commissioner, the director, or a managed care organization, but no less frequently than monthly, electronically provide full eligibility files that contain information to determine the period that the recipient, the recipient's spouse, or the recipient's dependents may be or may have been covered by the third party. The eligibility files shall also include the nature of the coverage that is or was provided by the third party, the name, address, date of birth, social security number, group number, identifying number of the plan, and effective and termination dates.
      2. No third party shall be liable to a policyholder for proper release of this information to the commissioner, the director, or managed care organization.
      3. The information shall be provided pursuant to a written request from the commissioner, the director, or managed care organization, with each third party establishing confidentiality requirements.
   3. Third parties shall respond to any inquiry by the state regarding a claim for payment for any health care item or service that is submitted not later than three (3) years after the date of the provision of such health care item or service.
   4. Third parties shall agree to respond to the request for payment, by providing payment on the claim, written request for additional information with which to process the claim, or written reason for denial of the claim, within ninety (90) working days after receipt of written proof of loss or claim for payment for health care services provided to a recipient of medical assistance who is covered by the entity. Notwithstanding title 56, a failure to pay or deny a claim within one hundred forty (140) days after receipt of the claim constitutes a waiver of any objection to the claim and an obligation to pay the claim.
   5. A payment made by a third party to the bureau or managed care organization under contract with the state shall be considered final thirty (30) months after payment is made. After that date, the amount of the payment is not subject to adjustment.
   6. A third party shall treat a managed care organization as the bureau, for the purposes of providing the managed care organization with access to third-party eligibility and claims data authorized under subdivision (c)(2); complying with the assignment to the managed care organization of a TennCare beneficiary's right to payment; and refraining from denying reimbursement to the managed care organization, for a claim in which both of the following apply:
      1. The beneficiary who is the subject of the claim received a medical item or service through a managed care organization that has entered into a contract with the bureau; and
      2. The bureau has delegated third party responsibilities to the managed care organization.
4. 1. To the extent necessary to reimburse the department for expenditures for its costs for services provided for any child eligible for medical services under Title XIX of the federal Social Security Act, the department shall have a right of action against, and shall be permitted to garnish the wages, salary, or other employment income of, any person who:
      1. Is required by a court or administrative order to provide coverage of the costs of health services to a child who is eligible for medical assistance under Title XIX of the federal Social Security Act;
      2. Has received payment from a third party for the costs of such services provided to such child; and
      3. Has not used such payments from the third party to reimburse, as appropriate, either the other parent or guardian of such child or the provider of such services.
   2. The claims by the department for the costs of such services shall be subordinate to any claims for current or past-due child support.
5. The state's right of action under this section shall be authorized as part of the contractual functions of the individual managed care organization or organizations that incurred the medical expenses on behalf of a TennCare recipient where the TennCare program deems appropriate. The bureau of TennCare shall maintain an easily accessible and clearly identified internet web page, updated at least bi-annually, that identifies the individual managed care organization or organizations having authorization to pursue the state's right of action under this section and such internet web page, at the minimum, shall provide the appropriate manner, method and form for contacting the managed care organization or organizations. The form made accessible through such internet web page shall be consistent with the requirements of subsection (f).
6. Before the entry of the judgment or settlement in a personal injury case, the plaintiff's attorney shall notify and contact in writing by facsimile or certified mail return receipt requested any entity acting pursuant to and identified in accordance with subsection (e), in order to determine if the state or managed care organization or organizations have a subrogation interest. Notice by the plaintiff's attorney, at the minimum, shall provide the following information: the full name of the plaintiff's client; the client's date of birth; the client's social security number, if known; the client's TennCare or managed care organization identification number; and the date the client's claim arose. Notice by the plaintiff's attorney shall be consistent with the foregoing in order to be considered valid. Within sixty (60) days of receipt of the above-referenced notice, the entities having a subrogation interest shall respond to the plaintiff's attorney in writing via facsimile or certified mail return receipt requested with either the amount of the subrogation interest or advise the plaintiff's attorney that additional time is necessary in order to determine the amount of the subrogation interest, but in no event shall a response containing the amount of the subrogation interest exceed one hundred twenty (120) days. The plaintiff's attorney shall then inform the court regarding the results of such attorney's notice, if any. Should no specific number be claimed within the period specified herein, the subrogation shall be extinguished and disbursements may be made without recourse upon the plaintiff or the plaintiff's attorney. If the plaintiff's attorney received a timely response from the entities acting pursuant to subsection (e), but the amount of the subrogation interest remains in disagreement, then the trial judge may hold a hearing in accordance with subsection (i). After trial and at the time of the entry of the judgment or settlement in a case in which the state or any entity acting pursuant to subsection (e) has a subrogation interest under this section, it is the responsibility of the trial judge to calculate the amount of the subrogation interest and incorporate the court's findings concerning the subrogation interest in the final judgment or settlement. The gross amount of the subrogation interest shall be based upon the findings of the jury concerning medical expenses and evidence introduced after the trial about the total sum of moneys paid by the state or any entity acting pursuant to subsection (e) for medical expenses for injuries arising from the incident that is the basis of the action. The gross amount of the subrogation interest shall be reduced by one (1) or more of the following factors, as applicable:
   1. To the extent that the plaintiff is partially at fault in the incident giving rise to the litigation, the subrogation interest is reduced by the percentage of fault assessed against the plaintiff;
   2. To the extent that the finder of fact allocated fault to a person who was immune from suit, the subrogation interest is reduced by the percentage of fault assessed against the immune person;
   3. To the extent that the finder of fact allocates fault to a governmental entity that has its liability limited under state law and the fault of the entity, when multiplied by the total dollar value of the damages found by the finder of fact, exceeds the amount of judgment that can be awarded against the entity, the subrogation interest is reduced proportionately by a percentage derived by dividing the uncollectable portion of the judgment against the governmental entity by the total damages awarded; or
   4. To the extent that the finder of fact allocated fault to a person that the plaintiff did not sue, the subrogation interest is reduced by the percentage of fault assessed against the nonparty.
7. After these calculations are performed, the judge should further reduce the subrogation interest pro rata by the amount of reasonable attorneys' fees and litigation costs incurred by the plaintiff in obtaining the recovery as required in former subsection (c) [repealed].
8. The amount determined after performance of the calculations in subsections (f) and (g) is the net subrogation interest. If the plaintiff or plaintiff's attorney collects the judgment, each has the obligation to promptly remit the net subrogation interest, and attorneys' fees and costs to any counsel employed by the state or its assignee, as required by the final judgment. In the event that the plaintiff and such plaintiff's attorney collect only a portion of the final judgment, each has the obligation to promptly remit a pro rata share of the net subrogation interest, and attorneys' fees and costs to any counsel employed by the state or its assignee, as required by the final judgment. In the event that plaintiff or plaintiff's attorney later collect additional moneys against the judgment, there is a continuing obligation on both of them to remit a pro rata share of the moneys collected as required by the final judgment.
9. In the event that the case between the plaintiff and the defendant is settled before trial but after a lawsuit is filed and the parties and the state or its assignee are unable to reach an agreement on the amount of the subrogation interest, the trial judge shall hold a hearing to determine the gross and net subrogation interests, taking into account the criteria listed in subsections (f) and (g) and the likelihood of collecting any judgment against parties determined to be at fault. Any aggrieved party may appeal the court's decision.
10. It is the intention of the general assembly that subsections (f) through (i) be used in lieu of application of the “made whole” doctrine for any recovery authorized under this section. Subsections (f) through (i), inclusive, shall also apply to cases that have been settled when no lawsuit has been filed.

Acts 1968, ch. 551, § 17; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., § 14-1917; Acts 1980, ch. 535, §§ 1-3; 1982, ch. 730, § 15; T.C.A., § 14-23-117; Acts 1992, ch. 967, § 1; 1994, ch. 987, § 17; 1997, ch. 102, § 1; 2000, ch. 807, § 1; 2003, ch. 337, §§ 1-4; 2007, ch. 233, §§ 1, 2; 2010, ch. 776, §§ 1-3; 2017, ch. 26, § 1.

Compiler's Notes. Former subsection (c), referred to in this section, was deleted by 2010, ch. 776, effective January 1, 2011.

Provisions concerning the Civilian Health and Medical Programs of the Uniformed Service (CHAMPUS), referred to in this section, are compiled in 10 U.S.C. § 1071 et seq.

Provisions concerning the Employee Retirement Income Security Act (ERISA), referred to in this section, is compiled at 29 U.S.C. § 1001, et seq.

Cross-References. Confidentiality of public records, § 10-7-504.

Law Reviews.

Tenncare subrogation changes again (John A. Day), 36 No. 10 Tenn. B.J. 16 (2000).

71-5-118. Contracts with vendors — Sanctions against vendors — Grounds for actions against providers — Administrative remedy to recover benefits from applicant — Collection activity report — Applicant warning — Prompt process of hospital presumptive eligibility applications.

1. The commissioner of finance and administration has the authority to enter into contracts with qualified vendors to provide to eligible recipients medical assistance allowed under § 71-5-107. The commissioner has the authority to terminate or suspend existing contracts with providers, to refuse to enter into contracts with providers, and to recover any payments incorrectly paid if the commissioner finds that such actions will further the purpose of this section. Any action against such provider shall be treated as a contested case in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. If a hearing is requested by the provider, it shall be held prior to the imposition of any of the sanctions of this subsection (a), except that upon a finding by the commissioner that the public health, safety, or welfare imperatively requires emergency action, these sanctions may be imposed pending an opportunity for the provider to request a prompt hearing. Furthermore, the commissioner has the right to set off any money incorrectly paid against any claim for money submitted by the provider pending an opportunity for a hearing. Grounds for action against providers under this subsection (a) include, but are not limited to, the following:
   1. Violation of the terms of the contract;
   2. Violation of any provision of this part or the rules promulgated pursuant to this part;
   3. Billing for medical assistance that was not delivered;
   4. Provision of medical assistance that is not medically necessary or justified;
   5. Provision of medical assistance of a quality that is below professionally recognized standards;
   6. Revocation or suspension of a provider's professional license or other disciplinary action by the agency regulating the profession of the provider; and
   7. Failure to produce records, upon request, by authorized representatives of the commissioner as necessary to substantiate the medical assistance for which claims have been submitted.
2. Without regard to any other civil or criminal liability that might attach, by operation of this section or any other law, to an enrollee or applicant's action in obtaining medical assistance or any assistance under this part, to which such person is not entitled, the bureau of TennCare shall have an administrative remedy for the recovery of the amount of any medical assistance benefits or payments improperly paid as a result of any misrepresentation made by such person, to the extent that such amount has not otherwise been recovered by the bureau. The bureau shall also have a right to recover in such administrative proceedings its reasonable costs and attorneys' fees, as well as interest on the amount owed by the person, calculated from the date that medical assistance was improperly paid. Any action against such person shall be treated as a contested case in accordance with the Uniform Administrative Procedures Act. In an administrative action under this subsection (b), the bureau shall show that the amount sought to be recovered was paid in the form of medical assistance as a result of material misrepresentation by the person against whom recovery is sought, but the bureau need not show that such misrepresentation was intentional or fraudulent.
3. The bureau of TennCare shall report annually in writing to the judiciary committee of the senate, the judiciary committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare regarding its collection activities of the estate recovery provisions of this chapter.
4. All applicants for medical assistance under this part, and all applicants for reverification of eligibility to receive such assistance, shall receive a warning, in easily readable language, regarding the state recovery provisions, as well as the administrative, civil and criminal liability provisions of this chapter.
5. The participating provider shall strive to process hospital presumptive eligibility applications within the first twenty-four (24) hours of the date of admission, when practicable. To the extent a participating provider fails to adhere to this standard, the bureau of TennCare may take remedial steps as allowed by federal law.

Acts 1968, ch. 551, § 18; 1973, ch. 73, § 2; 1978, ch. 539, § 1; T.C.A., § 14-1918; Acts 1982, ch. 730, § 16; T.C.A., § 14-23-118; Acts 1987, ch. 420, § 1; 1989, ch. 591, § 107; 1991, ch. 406, § 2; 1993, ch. 428, § 1; 2000, ch. 853, § 1; 2002, ch. 702, § 1; 2002, ch. 880, §§ 7, 10-13; 2004, ch. 673, § 10; 2013, ch. 236, § 43; 2019, ch. 345, § 136; 2020, ch. 775, § 1.

Compiler's Notes. For transfer of responsibility for investigating fraud in the medicaid program from the department of health and environment (now health) to the Tennessee Bureau of Investigation, see Executive Order No. 47 (February 11, 1983).

Acts 2000, ch. 853, § 4, provided:

“This act shall not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before July 1, 2000.”

Acts 2000, ch. 853, § 5, provided:

“No later than October 1, 2000, the department shall report to the TennCare oversight committee recommendations for establishing duties of medicaid applicants and enrollees to report material changes affecting eligibility. Such recommendations shall identify any categories of persons for whom, based upon program requirements, reporting should not be required; shall specify procedures for reporting; shall identify to whom such reporting should occur; and shall recommend criminal sanctions for noncompliance that constitutes theft of services.”

Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2020, ch. 775, § 2 provided that the act, which amended this section, shall be known and may be cited as “Cooper's Law.”

Acts 2020, ch. 775, § 3 provided that the act, which amended this section, applies to agreements entered into or renewed on or after July 15, 2020.

Amendments. The 2019 amendment substituted “the judiciary committee of the senate, the judiciary committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare” for “"the criminal justice committee of the house of representatives and the judiciary committee of the senate” in (c).

The 2020 amendment added (e).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Acts 2020, ch. 775, § 3. July 15, 2020.

Cross-References. Penalties for Class B, Class C, Class D, and Class E felonies, § 40-35-111.

71-5-119. Discrimination prohibited.

1. No discrimination shall be practiced or asserted against any applicant for or recipient of medical assistance under this chapter on the basis of race, color or national origin.
2. The furnishing of care and services under this part to any applicant or recipient of medical assistance shall not be delayed or denied on the basis of race, color or national origin.

Acts 1968, ch. 551, § 19; T.C.A., § 14-1919; Acts 1982, ch. 730, § 17; T.C.A., § 14-23-119.

71-5-120. Residency requirement — Determination — Appeal.

1. No period of residence in this state shall be required as a condition for eligibility for medical assistance under this chapter, but an individual who does not reside in this state shall not be eligible.
2. The bureau of TennCare shall adopt rules for determining whether an applicant is a resident of this state subject to the requirements of federal law. The rules shall require that state residency is not established unless the applicant does both of the following:
   1. The applicant produces one (1) of the following:
      1. A current Tennessee rent or mortgage receipt or utility bill in the adult applicant's name;
      2. A current Tennessee motor vehicle driver's license or identification card issued by the Tennessee department of safety in the adult applicant's name;
      3. A current Tennessee motor vehicle registration in the adult applicant's name;
      4. A document showing that the adult applicant is employed in this state;
      5. A document showing that the adult applicant has registered with a public or private employment service in this state;
      6. Evidence that the adult applicant has enrolled the applicant's children in a school in this state;
      7. Evidence that the adult applicant is receiving public assistance in this state;
      8. Evidence of registration to vote in this state; or
      9. Other evidence deemed sufficient to the bureau or the department of human services, or both, as proof of residency in this state; and
   2. The adult applicant declares, under penalty of perjury, that all of the following apply:
      1. The adult applicant does not own or lease a principal residence outside of this state; and
      2. The adult applicant is not receiving public assistance outside of this state. As used in this subdivision (b)(2)(B), “public assistance” does not include unemployment insurance benefits.
3. Residency for minors shall be determined as otherwise permitted under state and federal law. A minor for the purposes of this subsection (c) is a person younger than nineteen (19) years of age.
4. A denial of determination of residency may be appealed in the same manner as any other denial of eligibility. A determination of residency shall not be granted unless a preponderance of the credible evidence supports the adult applicant's intent to remain indefinitely in this state. In making determinations or verifications of residency, subject to the requirements of subsection (b), the department of human services shall apply the same policies and procedures as are applied in the determination of residency for other programs administered by the department to the extent permitted under or by federal law.

Acts 2002, ch. 880, § 14.

Compiler's Notes. Former § 71-5-120 (Acts 1968, ch. 551, § 21; 1976, ch. 806, § 1(52); T.C.A., §§ 14-1921, 14-23-120), concerning the medical care advisory committee, was repealed by Acts 1997, ch. 15, § 3. Acts 1997, ch. 15, § 2 provided that, notwithstanding the provisions of § 4-29-112, or any other law to the contrary, the medical care advisory committee, terminated and ceased all activities on July 1, 1997.

Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

71-5-121. Transfer of income or resources.

In all actions for the transfer of income or resources from an institutionalized spouse for the support of the community spouse, the court shall apply the standards utilized to determine medicaid eligibility in this state, regardless of any state laws relating to community property or the division of marital property.

Acts 2002, ch. 880, § 16.

Compiler's Notes. This section, formerly § 14-23-121 (Acts 1968, ch. 551, § 22; T.C.A., § 14-1922), concerning approval of the department of health, education and welfare, was repealed by Acts 1981, ch. 476, § 4. For new law, see §§ 71-5-106, 71-5-107, 71-5-132.

Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare, shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

71-5-122. Statement of interest of vendors or suppliers holding equity interest in hospitals, apothecaries or nursing homes.

1. Any individual or corporate vendor or provider participating under this part who holds an equity interest in any hospital, apothecary, nursing home, or other vendor or provider participating under this part shall submit annually to the department of finance and administration information disclosing their interest in these vendors or providers.
2. Any such party who fails to file the information required by this section shall not be entitled to participate in the program.

Acts 1969, ch. 326, § 4; T.C.A., §§ 14-1923, 14-23-122.

71-5-123. Statement of public officials as to interest in vendors or providers.

Any department head, deputy, assistant, or director of any state department, including, but not limited to, any person who certificates eligibles or who makes payments to vendors or providers participating under this part, and who holds any equity interest in any hospital, apothecary, nursing home, or other vendors or providers participating under this part, shall submit annually to the department of finance and administration information disclosing their interest in these vendors or providers.

Acts 1969, ch. 326, § 5; T.C.A., §§ 14-1924, 14-23-123.

71-5-124. Duties of department of finance and administration.

1. The department of finance and administration shall supervise and assist the department of health, which shall be the single state agency as defined in the federal Medicaid Law, Title XIX with respect to all financial matters in the planning and establishment of the medical assistance program as set forth in §§ 71-5-101 — 71-5-120, and after the program is established on July 1, 1969, the department of finance and administration shall perform those functions with respect to such medical assistance programs as are set forth in title 9, chapter 4, part 51.
2. In addition, the commissioner of finance and administration and the comptroller of the treasury have the duty and authority to review and audit such expenditure of funds as may be made under this part either directly or indirectly by any fiscal intermediary, and nothing in this section shall limit the authority of the commissioner of finance and administration to ensure that program expenditures are maintained within legislative appropriations.

Acts 1969, ch. 326, § 6; T.C.A., §§ 14-1925, 14-23-124.

71-5-125. Duties of fiscal review committee.

The fiscal review committee is directed to obtain the following information from the single state agency in charge of medicaid and the department of human services and report quarterly to the membership of the general assembly, except that if an item on the report has not changed from one (1) quarter to the next, there shall be no necessity to repeat this information in the subsequent report:

1. All expenditures under the medicaid program in the preceding quarter;
2. The quarterly allotment for the next quarter;
3. Any requests for additional funds;
4. The classifications set up for the staffing of the medicaid personnel;
5. The names, salary, position and previous work experience of staff hired;
6. Caseloads, increases and decreases;
7. Dollar expenditures and utilization of the separate programs under medicaid; and
8. Copies of all regulations issued to implement the medicaid program.

Acts 1969, ch. 326, § 7; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-1926, 14-23-125; Acts 2002, ch. 880, § 19; 2012, ch. 673, § 4.

Compiler's Notes. Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

71-5-126. Medicaid expansion under federal Patient Protection and Affordable Care Act prohibited without joint resolution of General Assembly.

The governor shall not make any decision or obligate the state of Tennessee in any way with regard to the expansion of optional enrollment in the medical assistance program, also known as the medicaid program, pursuant to the Patient Protection and Affordable Care Act, Public Law 111-148, as interpreted by the United States Supreme Court in National Federation of Independent Business v. Sebelius to be unconstitutional when applied to states as a mandatory expansion, unless authorized by joint resolution of the general assembly.

Acts 2014, ch. 662, § 1.

Compiler's Notes. The federal Patient Protection and Affordable Care Act, Public Law 111-148, referred to in this section is compiled primarily throughout U.S.C. Title 42. The case cited above may be found at the following citation:  National Federation of Independent Business v. Sebelius , 132 S. Ct. 2566, 183 L. Ed. 2d 450, 2012 U.S. LEXIS 4876 (2012).

Law Reviews.

Eat Your Broccoli: The Affordable Care Act Is a Valid Exercise of Congress's War Power, 43 U. Mem. L. Rev. 639 (2013).

Obamacare as a Window on Judicial Strategy, 80 Tenn. L. Rev. 763 (2013).

Thou Shalt Opt Out: Reforming the Religious Conscience Exemption from Social Security and the Affordable Care Act Based on State Experience, 43 U. Mem. L. Rev. 659 (2013).

Attorney General Opinions. Proposed Insure Tennessee pilot program; use of annual coverage assessment of hospitals to fund program when federal match rate declines. OAG 15-06, 2015 Tenn. AG LEXIS 8 (1/26/15).

The process established by T.C.A. § 71-5-126 does not contravene the separation of powers provision of the Tennessee Constitution. The absence of a joint resolution passed pursuant to T.C.A. § 71-5-126 would not prohibit the governor from negotiating an agreement with the federal government to expand Medicaid; it would, however, prohibit the governor from making a final decision to bind the State of Tennessee to that agreement or to implement that agreement. OAG 15-66, 2015 Tenn. AG LEXIS 67 (9/14/15).

71-5-127. Conflict with federal law — Single state agency.

If it is found that any of the provisions of this part are in conflict with the single state agency requirements of the federal Medicaid Law, Title XIX, then, and in that event, the department of finance and administration shall become the single state agency.

Acts 1969, ch. 326, § 9; T.C.A., §§ 14-1928, 14-23-127.

71-5-128. Contracts with health maintenance organizations — Requirements.

Notwithstanding any other law to the contrary, the department of health shall follow, as nearly as is practicable, the requirements of 42 U.S.C. § 1395mm, as amended, together with any federal rules and regulations promulgated pursuant to such law, with respect to a health maintenance organization with which the state has entered into a contract for the provision of services under this part.

Acts 1981, ch. 286, § 2; T.C.A., § 14-23-128.

71-5-129. Charges for services of physician assistants.

Charges to be reimbursed for physician assistants from medicaid funds shall not exceed sixty percent (60%) of the charges provided for licensed physicians under the medicaid program or fees charged by licensed physicians that are reasonable in the locality where the services are provided.

Acts 1983, ch. 168, § 12; T.C.A., § 14-23-129.

Cross-References. Physician Assistant Act, title 63, ch. 19.

71-5-130. Determination of payments to vendors — Audits.

1. With regard to the payments to vendors pursuant to this part:
   1. The payment for all vendors providing health care that receive payment pursuant to this part shall be determined by the comptroller of the treasury, in accordance with rules and regulations established by the department, pursuant to § 71-5-105, and shall be paid by the department;
   2. In order that payment can be determined for all vendors providing health care that receive payment pursuant to this part, the department shall require such vendors to submit to the comptroller of the treasury, cost data, statistical data, and other information, as may be necessary, on such forms as are approved or formulated by the department, in consultation with the comptroller of the treasury and the Tennessee Hospital Association. The comptroller of the treasury, in consultation with the department, may require that such cost data and other information, in order to be acceptable, be certified by the administrator of the vendor and by a licensed public accountant or certified public accountant; and all such data shall be subject to audit by the comptroller of the treasury, or agency or organization designated by the comptroller of the treasury;
   3. 1. To be eligible to receive payment, contracting hospitals shall use uniform hospital statistics and classification of accounts as published by the American Hospital Association for all accounting records, or any other acceptable accounting methods approved by the department in consultation with the comptroller of the treasury and the Tennessee Hospital Association;
      2. In consultation with the comptroller of the treasury, the department may also require other vendors to use uniform statistics and classification of accounts;
   4. 1. Any contracting hospital that does not adopt the uniform classification of accounts, as it shall be established by the department, or that does not submit certified statements when required by the department, shall be assessed a penalty of ten dollars ($10.00) for each day the hospital is not in compliance with this subsection (a);
      2. Any nursing home that does not adopt a uniform classification of accounts, or does not submit certified statements, or does not submit cost data and other information, as required by the department, shall be assessed the penalty provided by subdivision (a)(4)(A);
      3. Any other vendor providing health care pursuant to this part that does not adopt a uniform classification of accounts, or does not submit certified statements, or does not submit cost data and other information, as required by the department, shall be assessed the penalty provided by subdivision (a)(4)(A);
   5. 1. The comptroller of the treasury in carrying out responsibilities under this part, with regard to the determination of payments for particular vendors, and the auditing of data submitted, is hereby authorized to enter into contracts and agreements, and to make such arrangements as are necessary with other state departments and agencies, and with organizations or firms providing such services. The final authority for the determination and certification of payment to the department shall be the comptroller of the treasury;
      2. The departments of human services and health may enter into agreements with the comptroller of the treasury with regard to services performed in payment determination and auditing, and are hereby authorized to reimburse the comptroller of the treasury for the performance of such services out of funds available to the department; and
   6. All legal aids granted to the comptroller of the treasury by any other law are expressly reserved to the comptroller of the treasury in auditing any contracting vendor for the purpose of verifying the cost data and other information submitted by the vendor.
2. Nothing contained in this part shall be construed as obligating the state during any fiscal year for any payment exceeding the amount appropriated by the general assembly for this purpose, and budgeted by the department or departments administering these programs.

Acts 1984, ch. 787, § 10; T.C.A., § 14-23-130; Acts 1988, ch. 779, §§ 3-5.

Cross-References. Reimbursement of health care provider costs, title 12, ch. 4, part 3.

71-5-131. Contributed funds.

1. For the purposes of this part, political subdivisions may appropriate funds directly to the department, other public agencies and private sources may transfer funds to the department, and the department may accept unconditional and unrestricted donations of such funds.
2. Contributed funds shall be subject to the department's administrative control and allocated as provided in the general appropriations act, except such contributions shall not reduce state general revenue funding.
3. At the end of any fiscal year, the unobligated balance of any such funds shall not revert to the general fund, but shall be reappropriated for these purposes in the next fiscal year.

Acts 1987, ch. 71, § 1.

71-5-132. Medicaid providers — Responsibilities — Changes in ownership or controlling interest.

1. No change of ownership or controlling interest of an existing medicaid provider, including, but not limited to, hospitals, nursing home facilities, home health agencies, and pharmacies, can occur until provision is made for moneys owed to medicaid. The purchaser shall notify medicaid of the purchase at the time of ownership change and is financially liable for the outstanding liabilities to medicaid for one (1) year from the date of purchase or for one (1) year following medicaid's receipt of the provider's medicare final notice of program reimbursement, whichever is later. The purchaser shall be entitled to utilize any means available to it by law to secure and recoup these funds from the selling entity. In addition, purchasers of nursing facilities are responsible for obtaining an accurate accounting and transfer of funds held in trust for medicaid residents at the time of the change of ownership or controlling interest.
2. If the division of medicaid has not reimbursed a business for medicaid services provided under the medicaid program at the time the business is sold, when such an amount is determined the division of medicaid shall be required to reimburse the person owning the business; provided, that such sale included the sale of such assets.

Acts 1992, ch. 933, §§ 2, 3.

71-5-133. Provision of information concerning Norplant and other contraceptives.

1. The department of human services shall provide written information concerning the availability through the medicaid program of the Norplant contraceptive implant, and other functionally equivalent contraceptives that provide similar long-lasting pregnancy prevention, to all temporary assistance for needy families (TANF) recipients or to recipients of any successor program when such persons apply for benefits or are recertified. The department shall provide information concerning the availability of birth control and contraceptive implants to all males whose incomes are below the federal poverty level and who are receiving any other state or federal government subsidies, including, but not limited to, food assistance pursuant to part 3 of this chapter, if such males also qualify for medicaid and are able to impregnate females. Such information shall also be supplied to other women of child-bearing age whose income is below the federal poverty level and are receiving any other state or federal government subsidies, including, but not limited to, food assistance pursuant to chapter 5, part 3 of this title, if such persons also qualify for medicaid. The information provided shall clearly state that qualified health care providers are available to discuss the contraceptive in more detail upon request.
2. Together with the information concerning availability required to be provided pursuant to subsection (a), the department shall also provide to each eligible recipient information regarding any risks involved in having such contraceptive implanted, as well as information on the use of all types of contraceptives, including abstinence, and the moral benefits of abstinence until marriage, and the health and other benefits of abstinence, which shall be disseminated in a manner that is reasonably calculated to make the information easily accessible to all recipients under the TANF program or to recipients of any successor program, as well as to other women of child-bearing age whose incomes are below the federal poverty level and who are receiving any other state or federal government subsidies, including, but not limited to, food assistance pursuant to chapter 5, part 3 of this title, if such persons also qualify for medicaid. The department's case workers will assist in making the appointment with the appropriate county health department.

Acts 1993, ch. 255, § 1; 1996, ch. 950, § 17.

Code Commission Notes.

Former references to “aid to families with dependent children (AFDC)” were deleted as obsolete by the code commission and were changed to “temporary assistance for needy families (TANF)” in 2004.

71-5-134. Rules and regulations — Funding medical assistance.

The commissioner of finance and administration is authorized to promulgate rules and regulations to effectuate the purposes of the amendments to §§ 71-5-102 — 71-5-106 by Acts 1993, ch. 358. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1993, ch. 358, § 7; 2007, ch. 505, §§ 1, 2.

Code Commission Notes.

The provisions of this section may be affected by the agreement between the federal and state governments that created the TennCare program.

Cross-References. TennCare enabling bill (Acts 1993, ch. 358), compiled in §§ 71-5-102 — 71-5-106.

Tennessee Medicaid False Claims Act, §§ 71-5-181 — 71-5-185.

71-5-135. State unemployment health care benefits — Scope — Conditions.

If a person who previously had health insurance through their employer becomes uninsured due to bona fide closure of the employer's business or plant, such person, and the person's dependents shall automatically be eligible to enroll in the TennCare program at the expiration of the eighteen-month period authorized for continuing insurance coverage under COBRA. The department shall accept the application of such person prior to the expiration of the eighteen-month period so that health insurance through TennCare will begin immediately upon expiration of COBRA coverage and such person and the person's dependents will at no time be without health care coverage. However, nothing in this section shall be construed or interpreted to provide TennCare coverage in situations where a business or plant declares bankruptcy or otherwise declares it is going out of business when the purpose, primary or otherwise, of such declaration is to establish TennCare coverage for its employees and the business or plant intends to reopen under the same or another identity with essentially the same ownership or management, or both. Reopening of a business with the same or another identity and essentially the same ownership or management, or both, shall be considered refutable evidence that the earlier closure was for the purpose of establishing TennCare eligibility for the business's employees. It is the legislative intent that this section be implemented only to the extent that it is determined to be consistent with the terms, conditions and eligibility criteria of the TennCare waiver as approved by the United States department of health and human services.

Acts 1994, ch. 857, § 1.

Compiler's Notes. Provisions concerning the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), referred to in this section, are codified in 29 U.S.C. § 1166 or 42 U.S.C. § 300bb-6.

Attorney General Opinions. The TennCare waiver that took effect on July 1, 2002, is not inconsistent with the provisions of T.C.A. § 71-5-135 concerning the eligibility of dislocated workers for enrollment in the TennCare program, OAG 02-124, 2002 Tenn. AG LEXIS 129 (11/18/02).

71-5-136. Hold harmless requirements prohibited.

No health insurer, prepaid group health plan, health maintenance organization, preferred provider organization or similar entity licensed under this part that provides or administers health insurance under the TennCare Program, shall require, by contract or otherwise, any title 63 or 68 licensee to indemnify or hold harmless such TennCare managed care organization or title 56 licensee for tort or patent or copyright infringement liability that such TennCare managed care organization or title 56 licensee incurs, experiences, or causes by act or omission, or by act or omission of the title 63 or 68 provider to the extent the act or omission was pursuant to a directive of the title 56 licensee.

Acts 1997, ch. 376, § 2.

Attorney General Opinions. TennCare/House Bill 2002, OAG 00-016, 2000 Tenn. AG LEXIS 16 (2/2/00).

71-5-137. Disclosures required of persons associated with managed care organizations.

1. The following persons associated with a managed care organization that participates in the TennCare program shall make disclosures required in § 8-50-502:
   1. Officers and directors of the managed care organization;
   2. Any person who is the legal or beneficial owner of five percent (5%) or more of the stock or other ownership interest in the managed care organization; and
   3. Any person who controls, is controlled by or is under common control with, the managed care organization and who has entered into a management agreement, service contract, cost-sharing agreement or reinsurance contract with a managed care organization. For purposes of this subdivision (a)(3), “control” has the same meaning as set forth in § 56-11-101(b).
2. An official in the legislative branch, or an official in the executive branch and their immediate families, as such terms are defined in § 3-6-301, shall disclose any ownership interest or other connection as an officer, employee or director that such person may have in any managed care organization that participates in the TennCare program.
3. The compensation from the managed care organization of all persons required to make disclosure under subsection (a) shall be disclosed in addition to the disclosure required under subsection (a).
4. Disclosures required by this section shall be made to the bureau of TennCare and shall be made by March 1 of each year for the previous calendar year.

Acts 1999, ch. 379, § 1; 2013, ch. 89, § 4.

71-5-138. Compliance with provisions regarding authorizations for pharmacy services.

Any managed care organization participating in the TennCare program shall comply with the provisions of § 56-32-138 concerning authorizations given to a pharmacy services provider for care to be delivered to an enrollee receiving TennCare benefits.

Acts 2001, ch. 340, § 3.

Compiler's Notes. Acts 2001, ch. 340, § 4, provided that the act shall not apply to health plans preempted from state regulation by the Employee Retirement Income Security Act of 1974 (“ERISA”) (P.L. 93-406, which is compiled in 29 U.S.C. § 1001 et seq.).

71-5-139. Protection of TennCare patients' federal and court ordered rights by health care providers receiving TennCare funds.

1. In order to protect TennCare patients and ensure the state's compliance with applicable federal regulations or court order, managed care organizations, behavioral health organizations and certain health care providers that receive TennCare funds shall comply with the following requirements:
   1. Whenever a TennCare enrollee is entitled under applicable federal regulations or court order to notice and an opportunity to appeal a provider initiated reduction, termination or suspension of inpatient hospital care, where the service being provided to the enrollee is to treat an enrollee's chronic condition across a continuum of services when the next appropriate level of medical service is not immediately available, it shall be the duty of the hospital where the patient is receiving care to timely notify the patient's managed care organization of that fact. The hospital shall also have a duty to cooperate with the managed care organization in the provision to the patient of timely notice of the patient's rights under such applicable federal regulations or court order. In the event that a TennCare enrollee continues to receive inpatient care, as authorized by such applicable federal regulations or court order, because the next level of care prescribed for the patient is not immediately available, the managed care organization shall reimburse the hospital for such additional care. Nothing in this subdivision (a)(1) relieves the managed care organization of its ultimate responsibility for ensuring compliance with applicable federal regulations or court order, with respect to the provision of notice and services to the patient;
   2. Whenever a TennCare enrollee is entitled under applicable federal regulations or court order to notice and an opportunity to appeal a provider initiated reduction, termination or suspension of home health services, it shall be the duty of the home care organization that has been caring for the patient to timely notify the patient's managed care organization of the proposed change. The home care organization shall cooperate with the managed care organization in the provision to the patient of timely notice of the patient's rights under such applicable federal regulations or court order. In the event that a TennCare enrollee continues to receive home health services, as authorized by such applicable federal regulations or court order, the managed care organization shall reimburse the home care organization for such additional services. Nothing in this subdivision (a)(2) relieves the managed care organization of its ultimate responsibility for ensuring compliance with applicable federal regulations or court order, with respect to the provision of notice and services to the patient;
   3. Whenever a TennCare enrollee is entitled under applicable federal regulations or court order to notice and an opportunity to appeal a provider initiated reduction, termination or suspension of inpatient psychiatric or residential service, it shall be the duty of the facility where the patient is receiving care to timely notify the patient's behavioral health organization of the proposed change. The facility shall also have a duty to cooperate with the behavioral health organization in the provision to the patient of timely notice of the patient's rights under such applicable federal regulations or court order. In the event that a TennCare enrollee continues to receive inpatient or residential care, as authorized by such applicable federal regulations or court order, the behavioral health organization shall reimburse the facility for such additional care. Nothing in this subdivision (a)(3) relieves the behavioral health organization of its ultimate responsibility for ensuring compliance with applicable federal regulations or court order, with respect to the provision of notice and services to the patient; and
   4. Whenever a TennCare enrollee who is classified as severely and persistently mentally ill, or severely emotionally disturbed, is entitled under applicable federal regulations or court order to notice and an opportunity to appeal a provider initiated reduction, termination or suspension of behavioral health service, it shall be the duty of the health care provider who is caring for the patient to timely notify the patient's behavioral health organization of the proposed change. The provider shall also have a duty to cooperate with the behavioral health organization in the provision to the patient of timely notice of the patient's rights under such applicable federal regulations or court order. In the event that a TennCare enrollee continues to receive such behavioral health service, as authorized by such applicable federal regulations or court order, the behavioral health organization shall reimburse the provider for that additional care. Nothing in this subdivision (a)(4) relieves the behavioral health organization of its ultimate responsibility for ensuring compliance with applicable federal regulations or court order, with respect to the provision of notice and services to the patient.
2. The commissioner of finance and administration is authorized to promulgate emergency rules pursuant to § 4-5-208 as necessary to implement this section.

Acts 2001, ch. 346, § 1; 2009, ch. 566, § 12.

Compiler's Notes. Acts 2009, ch. 566, § 12 provided that the Tennessee code commission is directed to change all references to public necessity rules, wherever such references appear in this code, to emergency rules, as sections are amended and volumes are replaced.

71-5-140. Deductions for dental services paid by eligible individuals in long-term care facilities.

1. In addition to the deductions from the total income available for the cost of long-term nursing home care authorized pursuant to the rules and regulations of the department of human services, division of medical services, for an eligible individual confined to a long-term care facility, a deduction shall also be authorized and made from such total income available for the costs for dental services paid by the eligible individual.
2. Deductions for such dental services shall be made for those services whether such services are provided at a dental office, on-site at the long-term care facility, or through a mobile dental services provider that contracts with the long-term care facility.
3. A mobile dental services provider providing such dental services shall meet and comply with the following requirements:
   1. The requirements of § 63-5-121;
   2. The mobile dental services provider shall obtain a consent for dental services either from the resident or from the resident's responsible party, which consent shall remain valid and in force for the entire length of stay of the resident unless otherwise revoked by the resident or the responsible party;
   3. The mobile dental services provider shall contract with dentists licensed in this state who have a medicare/medicaid number;
   4. The mobile dental services provider may provide routine and emergency dental services as consented to under subdivision (c)(2) or subsection (e). Services related to the provision of dentures shall be deemed medically necessary, in writing, by the facility's medical director or the patient's attending physician prior to the delivery of such services. The facility shall not be directly liable to the provider for dental services; and
   5. The mobile dental services provider shall maintain records of services provided on standard American Dental Association (ADA) claim forms using appropriate CDT-3 codes for services delivered. Records shall be maintained by the provider of services for five (5) years following the date of service. Records maintained by the mobile dental services provider shall be subject to audit by TennCare, comptroller of the treasury's office or any government regulatory agency at least annually.
4. Upon the submission of a request by the dental services provider for a deduction under this section to the respective county office of the department of human services, the department staff shall process the request within thirty (30) days of receipt. Such office shall report the approval or disapproval of such deduction directly to the long-term care facility, and the responsible party, if any.
5. If the responsible party has not signed or refuses to sign the consent required pursuant to subdivision (c)(2), nor notifies the long-term care facility of an arrangement for alternative dental care, the long-term care facility may choose to authorize the provision of dental services on behalf of the resident for the immediate dental care required. However, under no circumstances shall such an authorization for consent to treatment make the facility liable for payment for services beyond those funds received by the facility from the patient's responsible party, if any.
6. If the facility is the representative payee for the resident's social security income, the dental services provider shall not be required to bill the responsible party, but may be paid from the resident's financial resources received by the long-term care facility. The long-term care facility shall pay the dental services provider within thirty (30) days of receipt of such funds, to the extent such payment is authorized as a deduction by the department of human services.
7. If the facility is not the representative payee for the resident's social security income, the dental services provider shall bill the responsible party unless the facility agrees to pay the dental services provider from the resident's financial resources received by the facility. The dental services provider shall have the right to bill the responsible party for the authorized deduction in the event such funds are not forwarded to the facility by the responsible party. However, the facility, under either subsection (f) or this subsection (g), shall not be directly liable to the provider for dental services.

Acts 2002, ch. 717, § 2.

Compiler's Notes. The CDT-3, referred to in this section, is the American Dental Association's official source for dental procedure codes.

71-5-141. Eligibility of aliens for medical assistance.

1. Aliens shall be eligible for medical assistance, including participation in the TennCare program, only to the same extent as permitted under federal law and regulations for receipt of federal financial participation under Title XIX of the federal Social Security Act, except as otherwise provided in this section.
2. In accordance with Section 1903(v)(1) of the federal Social Security Act, an alien shall only be eligible for the full scope of medical assistance benefits, if the alien has been lawfully admitted for permanent residence, or is otherwise permanently residing in the United States under color of law.
3. For purposes of this section, aliens “permanently residing in the United States under color of law” shall be interpreted to include all aliens residing in the United States with the knowledge and permission of the United States immigration and naturalization service and whose departure the United States immigration and naturalization service does not contemplate enforcing and with respect to whom federal financial participation is available under Title XIX of the federal Social Security Act.

Acts 2002, ch. 880, § 17.

Compiler's Notes. Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

71-5-142. Confidentiality and disclosure of proprietary information.

1. All proprietary information, including but not limited to, provider reimbursement information provided either to the Tennessee department of commerce and insurance or to the TennCare bureau, or any successor entity operated by the state of Tennessee for the purpose of administering the TennCare program, or any successor program shall be deemed confidential and not subject to disclosure under the Tennessee Public Records Act, compiled in title 10, chapter 7. Nothing contained in this section shall be construed to conflict with or obviate §§ 56-9-202(b) and 56-9-504(f).
2. This section shall not apply to disclosures to the medicaid fraud unit of the Tennessee bureau of investigation for law enforcement activities authorized by federal or state law.
3. Nothing in this section shall be construed to limit access to, or use of, these records by governmental agencies performing official functions.

Acts 2002, ch. 880, § 18.

Compiler's Notes. Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

Cross-References. Confidentiality of public records, § 10-7-504.

71-5-143. TennCare advisory commission — Composition — Purpose — Expert assistance — Confidentiality — Conflict — Compensation.

1. There is established in the department of finance and administration a TennCare advisory commission. The advisory commission will be separate and distinct from the bureau of TennCare but will be allowed access to all data concerning the operations, management, and program functions of the TennCare program, including information relevant to the TennCare program held or maintained by other state agencies. In accordance with 45 CFR 160.101 et seq., members of the advisory commission will provide nonpaid consulting services to the bureau of TennCare and may have access to protected health information to the extent necessary to perform their advisory function.
2. The advisory commission shall be appointed by the governor and will be composed of  thirteen (13) members who should reflect the broad impact that the TennCare program has on this state. The membership of the advisory commission shall include one (1) representative of the advocacy community; the chair of the health committee of the house of representatives, or the chair's designee; the chair of the health and welfare committee of the senate, or the chair's designee; two (2) representatives from the Tennessee business community; and three (3) representatives from the provider community. In addition, the membership of the advisory commission shall include one (1) person chosen by the governor from a list of three (3) persons nominated by the speaker of the house of representatives, and one (1) person chosen by the governor from a list of three (3) persons nominated by the speaker of the senate. If the governor does not choose a commissioner member from the initial list of three (3) persons nominated by each speaker, the appropriate speaker shall submit another list of three (3) persons for the governor's consideration. In making the appointments, the governor shall strive to ensure that the advisory commission's membership is representative of the state's geographic and demographic composition with appropriate attention to the representation of women and minorities. In making the initial appointments, the governor will designate three (3) initial appointees to serve until December 31, 2005, four (4) initial appointees to serve until December 31, 2006, and four (4) initial appointees to serve until December 31, 2007. Except for initial appointments, members shall be appointed to three-year terms. At the time of the initial appointments of the advisory commission, the governor shall appoint a chair and vice-chair of the commission from the membership of the commission who shall serve until December 31, 2005. The governor shall thereafter appoint a chair and vice-chair to one-year terms from the membership of the commission.
3. The purpose of the commission is to review annually the health care operations including, but not limited to, cost-management analysis, benefits, enrollment, eligibility, costs, and performance of the TennCare program and to make recommendations to the governor regarding cost-containment strategies and cost-effective program improvements. Such recommendations by the commission will include an assessment of the effectiveness of the existing TennCare program, specific steps that could be taken to reduce program costs, and an evaluation of whether the program is optimizing its use of resources to best meet the needs of TennCare enrollees. Proposed modifications submitted by the commission that may result in increased program expenditures should be accompanied by recommendations to achieve commensurate savings in other program areas in order to achieve overall management of program costs. The commission shall present its recommendations in writing to the governor no later than November 10 of each year.
4. Subject to an appropriation set forth in the general appropriations act, the commission will have the power to engage expert assistance in accordance with the state procurement processes. The department of finance and administration will provide the commission with appropriate staff and assistance.
5. Members of the advisory commission shall maintain strict standards of confidentiality in the handling of all matters before the commission in accordance with federal and state law. All material and information, regardless of form, medium, or method of communication, provided to or acquired by a member or the commission staff in the course of the commission's work, shall be regarded as confidential information and shall not be disclosed and are deemed not to be a public record. In addition, all material and information, regardless of form, medium, or method of communication, made or generated by a member or the commission staff in the course of the commission's work, shall be regarded as confidential information and shall not be disclosed and are not public records. All necessary steps shall be taken by members and staff to safeguard the confidentiality of such material or information in conformance with federal and state law.
6. Items or matters discussed by the commission may from time to time present real or apparent conflicts for members of the commission. Due to the importance of the commission's work and the advisory nature of its recommendations, in the event that a matter being considered by the commission presents a real or apparent conflict of interest, the affected member of the commission shall disclose the conflict to the chair but shall be allowed to discuss and take official action on the particular matter. The professional backgrounds of each member of the advisory commission as well as any conflicts disclosed by a member to the chair during a given year shall be reported in the commission's recommendations as set forth in subsection (c) of this section.
7. Members shall receive no compensation for their services on the commission but may be reimbursed for those expenses allowed by the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general and reporter.

Acts 2004, ch. 673, § 3; 2016, ch. 1079, §§ 5, 6.

Compiler's Notes. Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2016, ch. 1079, § 1 provided that the act shall be known and may be cited as the “TennCare Omnibus Act of 2016”.

Cross-References. Confidentiality of public records, § 10-7-504.

71-5-144. Medically necessary items and services.

1. Enrollees under the TennCare program are eligible to receive, and TennCare shall provide payment for, only those medical items and services that are:
   1. Within the scope of defined benefits for which the enrollee is eligible under the TennCare program; and
   2. Determined by the TennCare program to be medically necessary.
2. To be determined to be medically necessary, a medical item or service must be recommended by a physician who is treating the enrollee or other licensed healthcare provider practicing within the scope of the physician's license who is treating the enrollee and must satisfy each of the following criteria:
   1. It must be required in order to diagnose or treat an enrollee's medical condition. The convenience of an enrollee, the enrollee's family, or a provider, shall not be a factor or justification in determining that a medical item or service is medically necessary;
   2. It must be safe and effective. To qualify as safe and effective, the type and level of medical item or service must be consistent with the symptoms or diagnosis and treatment of the particular medical condition, and the reasonably anticipated medical benefits of the item or service must outweigh the reasonably anticipated medical risks based on the enrollee's condition and scientifically supported evidence;
   3. It must be the least costly alternative course of diagnosis or treatment that is adequate for the medical condition of the enrollee. When applied to medical items or services delivered in an inpatient setting, it further means that the medical item or service cannot be safely provided for the same or lesser cost to the person in an outpatient setting. Where there are less costly alternative courses of diagnosis or treatment, including less costly alternative settings, that are adequate for the medical condition of the enrollee, more costly alternative courses of diagnosis or treatment are not medically necessary. An alternative course of diagnosis or treatment may include observation, lifestyle or behavioral changes or, where appropriate, no treatment at all; and
   4. 1. It must not be experimental or investigational. A medical item or service is experimental or investigational if there is inadequate empirically-based objective clinical scientific evidence of its safety and effectiveness for the particular use in question. This standard is not satisfied by a provider's subjective clinical judgment on the safety and effectiveness of a medical item or service or by a reasonable medical or clinical hypothesis based on an extrapolation from use in another setting or from use in diagnosing or treating another condition;
      2. Use of a drug or biological product that has not been approved under a new drug application for marketing by the United States Food and Drug Administration (FDA) is deemed experimental;
      3. Use of a drug or biological product that has been approved for marketing by the FDA but is proposed to be used for other than the FDA-approved purpose will not be deemed medically necessary unless the use can be shown to be widespread, to be generally accepted by the professional medical community as an effective and proven treatment in the setting and for the condition for which it is used, and to satisfy the requirements of subdivisions (b)(1)-(3).
3. It is the responsibility of the bureau of TennCare ultimately to determine what medical items and services are medically necessary for the TennCare program. The fact that a provider has prescribed, recommended or approved a medical item or service does not, in itself, make such item or service medically necessary.
4. The medical necessity standard set forth in this section shall govern the delivery of all services and items to all enrollees or classes of beneficiaries in the TennCare program. The bureau of TennCare is authorized to make limited special provisions for particular items or services, such as long-term care, or such as may be required for compliance with federal law.
5. Medical protocols developed using evidence-based medicine that are authorized by the bureau of TennCare pursuant to § 71-5-107 shall satisfy the standard of medical necessity. Such protocols shall be appropriately published to all TennCare providers and managed care organizations.
6. The bureau of TennCare is authorized to promulgate such rules and regulations as may be necessary to implement this section.

Acts 2004, ch. 673, § 22.

Compiler's Notes. Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

71-5-145. Cost effectiveness of providers.

1. Notwithstanding any law to the contrary, any initiative, program or measure operated by the bureau of TennCare, including, but not limited to, disease management programs, may require enrollees to obtain prescription drugs, durable medical equipment, or medical supplies in such manner as the bureau of TennCare determines to be the most cost-effective.
2. The bureau of TennCare shall consult with Tennessee pharmacists who are providers actively participating in the TennCare pharmacy program in making a determination of cost effectiveness of any proposed pharmacy program.

Acts 2004, ch. 673, § 23.

Compiler's Notes. Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

71-5-146. Pharmacy lock-in program.

On and after July 1, 2004, the bureau of TennCare, through its authority to promulgate rules and regulations, may implement and maintain a pharmacy lock-in program designed to address member abuse, over utilization and quality of care concerns for TennCare enrollees.

Acts 2004, ch. 673, § 28.

Compiler's Notes. Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

71-5-147. Personal needs allowance — Protecting nursing home residents from diversion of allowance.

1. In determining the amount of an eligible individual's income available for the cost of long-term nursing home care authorized under this part on or after January 1, 2010, a deduction shall be made from the person's total income in the amount of fifty dollars ($50.00) per month to be treated as a personal needs allowance within the meaning of applicable federal regulations.
2. 1. The department of health is directed to review, and revise as necessary, recommendations previously developed to protect nursing home residents from vendors and others who would seek to provide inappropriate or unneeded goods and services, or otherwise divert personal needs allowance funds for uses other than those meeting residents' personal needs.
   2. The recommendations shall be provided to the general welfare, health and human resources committee of the senate and to the health and human resources committee of the house of representatives not later than the second Tuesday in January, 2010.

Acts 2004, ch. 851, §§ 1, 2; 2009, ch. 592, § 1.

71-5-148. Health care safety net for uninsured.

1. To the extent that funds are specifically appropriated by the general appropriations act, including, but not limited to, any such funds that may be available from the bureau of TennCare's reserve funds, the department of finance and administration, in coordination with the department of health and the department of mental health and substance abuse services, is authorized to facilitate the expansion and augmentation of a health care safety net in this state. The health care safety net provides medical assistance and dental assistance to individuals in need of medical care and dental care to adults in need of adult emergency dental services who are uninsured and who lack financial resources to secure medical and dental care. It is the legislative intent that priority should be given to efforts pursuant to this section that benefit the greatest number of such individuals. Such efforts may include, but not be limited to:
   1. Improvement and expansion of the provision of medical assistance, both medical services and pharmacy, in the county health departments, with specific emphasis placed in providing assistance in those counties with the largest number of uninsured individuals; such support could include funding for additional staffing needs and facility expansion;
   2. Support for community-based health care facilities and practices, including not-for-profit clinics, faith-based facilities, community mental health agencies, and federally qualified health centers, for the provision of health care services to the uninsured;
   3. Incentive-based measures to encourage and promote physician involvement and treatment of the uninsured population, including specific steps taken to assist in providing for continuity of care, including specialty care, for such individuals, as well as targeted efforts at comprehensive disease management;
   4. Creation and implementation of a twenty-four-hour, seven-day a week health care safety net hotline designed to assist and direct individuals in need of medical care and services to available resources in their areas;
   5. Creation of a donated care referral system that can be easily accessed by individuals in need of medical care;
   6. Collaborative work with agencies and entities across the state to encourage citizens to volunteer their time, effort, and resources in creative efforts to assist in the overall care and well-being of uninsured individuals in this state; and
   7. Support for community-based providers of behavioral health services to seriously and persistently mentally ill adults who are uninsured and who lack financial resources to secure behavioral health care.
2. Nothing established or supported pursuant to this section shall in any way be construed or determined to be an entitlement by any individual or entity to any medical assistance, medical services, or any pharmacy services, or, if such assistance or services are provided, to any continuing assistance or services by the state or by any other entity or person.

Acts 2005, ch. 474, § 1; 2008, ch. 1064, § 2; 2009, ch. 95, § 2; 2010, ch. 1100, § 140; 2012, ch. 575, § 1.

Compiler's Notes. For the Preamble to the act regarding the behavioral health safety net of Tennessee, please refer to Acts 2009, ch. 95.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health, the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

71-5-149. Disease management program.

The bureau of TennCare shall adopt a state disease management program, which may include contracting with a vendor that specializes in the provision of disease management services. The disease management program shall be designed to improve care to and reduce overall expenditures for TennCare beneficiaries with chronic illnesses. The disease management program may include the development of evidence-based medical practice guidelines, support services to assist physicians in monitoring their patients, more closely managed patient care, including management of the proper use of prescription drugs by patients, and the development of individual patient treatment plans that may include recommendations for improved medication compliance and improved lifestyle and behavioral compliance. The adoption of a disease management program is not an agency action and does not require rulemaking.

Acts 2006, ch. 931, § 1.

71-5-150. Reimbursement for TennCare crossover payments.

The bureau of TennCare shall reimburse pharmacies for covered products and services provided for full benefit dual eligibles as TennCare crossover claims at one hundred percent (100%) of the federal medicare program's allowable charge for participating providers.

Acts 2009, ch. 607, § 1.

71-5-151. Report on use of technical assistance groups of healthcare providers in developing episode of care.

1. In developing or implementing any payment reform initiative involving the use of episodes of care with respect to medical assistance provided under this chapter by the bureau of TennCare or the health care finance and administration (HCFA) of the department of finance and administration, the bureau and HCFA shall report on the use of technical assistance groups of healthcare providers in developing any episode of care. The reports shall include all recommendations made by technical assistance groups throughout the period of implementation of any episode of care. In addition to any other information required in the quarterly report to the general assembly pursuant to § 71-5-104(c), the bureau of TennCare shall summarize in quarterly reports the recommendations of any technical assistance group concerning the payment reform initiative and identify any action taken by the bureau or HCFA to address those recommendations. The bureau and HCFA shall report to the health and welfare committee of the senate, the health committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare by July 1 each year, beginning in 2016, specifically concerning the use of technical assistance groups, on each recommendation made by those groups, and the response by the bureau or HCFA to each recommendation. This section shall apply to any payment reform initiative utilizing episodes of care, including any initiative receiving a state innovation model initiative grant from the federal centers for medicare and medicaid services.
2. In developing or implementing any payment reform initiative involving the use of episodes of care with respect to medical assistance provided under this chapter by the bureau of TennCare or the HCFA of the department of finance and administration, the bureau and HCFA shall not impose a fine or penalty on any provider. The bureau and HCFA may impose withholds in order to recover some portion of costs that exceeds a cost threshold for an episode developed by the initiative. A withhold may not be called a fine or a penalty.
3. 1. The bureau of TennCare and the HCFA shall study the means of fair and just implementation of the episodes of care initiatives, especially with respect to costs associated with:
      1. A healthcare facility located in an area that lacks an alternative healthcare facility within a thirty-minute drive;
      2. Lack of more than a single provider of healthcare services for, including, but not limited to, radiology, anesthesia, pathology, or physical therapy; and
      3. Contractual arrangements between the bureau of TennCare, managed care organizations, and other participating providers or healthcare facilities associated with the particular episode of care if such contracts are the cause of increased costs.
   2. No later than January 31, 2019, the bureau of TennCare and HCFA shall report the results of the study conducted pursuant to this subsection (c) to the health and welfare committee of the senate, the health committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare.
4. 1. In developing or implementing any payment reform initiative involving the use of episodes of care with respect to medical assistance provided under this chapter by the bureau of TennCare, a healthcare provider shall not be required to pay the portion of the risk sharing payment that is attributable to the increased cost of pain relief services if the following conditions are met:
      1. The healthcare provider is required to make an episodes of care risk-sharing payment to a managed care organization;
      2. Some portion of the episode costs were due to pain relief services;
      3. The pain relief services provided to the patient were more expensive than an alternative pain relief service; and
      4. The provider can demonstrate that the pain relief services provided to the patient had the effect of reducing opioid use by the patient relative to an alternative pain relief service routinely used by other providers in the episode.
   2. The bureau of TennCare is authorized to promulgate rules, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, as may be necessary to implement this section.
5. On and after July 1, 2018, in developing or implementing any payment reform initiative involving the use of episodes of care with respect to medical assistance provided under this chapter by the bureau of TennCare or the HCFA of the department of finance and administration, the bureau and the HCFA shall exclude anxiety episodes and non-emergent depression episodes from the initiative. This subsection (e) shall apply to any initiative receiving a state innovation model initiative grant from the federal centers for medicare and medicaid services.

Acts 2016, ch. 1079, § 2; 2018, ch. 766, § 1; 2018, ch. 843, § 1; 2018, ch. 1016, § 1; 2019, ch. 345, § 137.

Compiler's Notes. Acts 2016, ch. 1079, § 1 provided that the act shall be known and may be cited as the “TennCare Omnibus Act of 2016”.

Amendments. The 2019 amendment substituted “the health and welfare committee of the senate, the health committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare” for “the health committee of the house of representatives and the health and welfare committee of the senate” in the next to last sentence of (a); and substituted “the health and welfare committee of the senate, the health committee of the house of representatives, and the committee of the house of representatives having oversight over TennCare” for “the health and welfare committee of the senate and the health committee of the house of representatives” at the end of (c)(2).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

71-5-152. Procedure to obtain data sets derived from all payer claims database — Use of data — Annual report.

1. Pursuant to § 56-2-125(d)(2)(B), and no later than October 1, 2016, the deputy commissioner of finance and administration responsible for the TennCare program shall establish a procedure permitting the following to obtain data sets derived from the all payer claims database through the department authorized to access the database for the purposes authorized in § 56-2-125(b)(1) within available resources of the bureau of TennCare:
   1. The department of finance and administration;
   2. The department of health;
   3. The department of mental health and substance abuse services;
   4. The department of intellectual and developmental disabilities; and
   5. Other departments of this state.
2. Any data retrieved from the database or the managing vendor may only be used for internal purposes of the department. The data shall be confidential and shall not be a public record for the purposes of title 10, chapter 7. If any department seeks to produce reports based upon the data as public documents, then the department shall submit a request for approval of that use of the data to the Tennessee health information committee.
3. The bureau of TennCare shall submit an annual report to the chairs of the health and welfare committee of the senate, health committee of the house of representatives, and committee of the house of representatives having oversight over TennCare that shall describe the nature and purpose of any requests to utilize data from the all payer claims database submitted to the bureau or the health information committee. Any request for data from departments that cannot be provided within existing resources of the bureau shall be identified in this report. The report shall also describe the disposition made by the Tennessee health information committee of each request to utilize the data and shall detail how each member of the committee voted on each request. The bureau shall submit the report by January 15 each year.

Acts 2016, ch. 1079, § 4; 2019, ch. 345, § 138.

Compiler's Notes. Acts 2016, ch. 1079, § 1 provided that the act shall be known and may be cited as the “TennCare Omnibus Act of 2016”.

Amendments. The 2019 amendment substituted “the chairs of the health and welfare committee of the senate, health committee of the house of representatives, and committee of the house of representatives having oversight over TennCare” for “the chairs of the health committee of the house of representatives and the health and welfare committee of the senate” in the first sentence of (c).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Confidentiality of public records, § 10-7-504.

71-5-153. Verification of information.

1. Prior to awarding assistance, and on a quarterly basis thereafter, the bureau of TennCare shall verify identity information for each respective applicant and enrollee against the following:
   1. Wage and income information maintained by state and federal sources;
   2. Immigration status information maintained by federal citizenship and immigration services; and
   3. Information maintained by the department of health, office of vital records.
2. Subsection (a) shall not take effect until the last day of the first full quarter following implementation of an automated, electronic eligibility system by the bureau of TennCare. The bureau of TennCare shall notify the executive secretary of the code commission upon implementation of an automated, electronic eligibility system.

Acts 2017, ch. 191, § 4.

Compiler's Notes. Acts 2017, ch. 191, § 1 provided that the act, which enacted this section, shall be known and may be cited as the “Program lntegrity Act of 2017.”

71-5-154. Annual report relating to coverage of mental health treatment.

1. Every managed care organization that participates in the TennCare program shall submit an annual report to the bureau of TennCare on or before March 1 of each year that contains the following information for enrollees in the TennCare program:
   1. The frequency with which the managed care organization required prior authorization for all prescribed procedures, services, or medications for mental health and alcoholism or drug dependence benefits during the previous calendar year and the frequency with which the managed care organization required prior authorization for all prescribed procedures, services, or medications for medical and surgical benefits during the previous calendar year. Managed care organizations must submit this information separately for inpatient benefits, outpatient benefits, emergency care benefits, and prescription drug benefits. Frequency shall be expressed as a percentage, with total prescribed procedures, services, or medications within each classification of benefits as the denominator and the overall number of times prior authorization was required for any prescribed procedures, services, or medications within each corresponding classification of benefits as the numerator;
   2. A description of the process used to develop or select the medical necessity criteria for mental health and alcoholism or drug dependence benefits and the process used to develop or select the medical necessity criteria for medical and surgical benefits;
   3. Identification of all non-quantitative treatment limitations (NQTLs) that are applied to both mental health and alcoholism or drug dependence benefits and medical and surgical benefits. There may be no separate NQTLs that apply to mental health and alcohol or drug dependence benefits but do not apply to medical and surgical benefits within any classification of benefits;
   4. The results of an analysis that demonstrates that for the medical necessity criteria described in subdivision (a)(2) and for each NQTL identified in subdivision (a)(3), as written and in operation, the processes, strategies, evidentiary standards, or other factors used to apply the medical necessity criteria and each NQTL to mental health and alcoholism or drug dependence benefits are comparable to, and are applied no more stringently than the processes, strategies, evidentiary standards, or other factors used to apply the medical necessity criteria and each NQTL, as written and in operation, to medical and surgical benefits. At a minimum, the results of the analysis shall:
      1. Identify the factors used to determine that an NQTL will apply to a benefit, including factors that were considered but rejected;
      2. Identify and define the specific evidentiary standards used to define the factors and any other evidentiary standards relied upon in designing each NQTL;
      3. Identify and describe methods and analyses used, including the results of the analyses, to determine that the processes and strategies used to design each NQTL as written for mental health and alcoholism or drug dependence benefits are comparable to and no more stringent than the processes and strategies used to design each NQTL as written for medical and surgical benefits;
      4. Identify and describe the methods and analyses used, including the results of the analyses, to determine that processes and strategies used to apply each NQTL in operation for mental health and alcoholism or drug dependence benefits are comparable to and no more stringent than the processes or strategies used to apply each NQTL in operation for medical and surgical benefits; and
      5. Disclose the specific findings and conclusions reached by the managed care organization demonstrating that the results of the analyses required by this subdivision (a)(4) indicate that the insurer or entity is in compliance with this section and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (Pub. L. No. 110-343) and its implementing regulations, which include 42 CFR 438.900, 42 CFR 438.905, 42 CFR 438.910, 42 CFR 438.915, 42 CFR 438.920, and 42 CFR 438.930 and any other relevant current or future rules;
   5. The rates of and reasons for denial of claims for inpatient, outpatient, prescription drugs, and emergency mental health and alcoholism or drug dependence services during the previous calendar year compared to the rates of, and reasons for, denial of claims in those same classifications of benefits for medical and surgical services during the previous calendar year; and
   6. A certification signed by the managed care organization's chief executive officer and chief medical officer that affirms that the managed care organization has completed a comprehensive review of its administrative practices for the prior calendar year for compliance with this section and the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (Pub. L. No. 110-343).
2. The bureau of TennCare shall monitor managed care organization claims denials for mental health and alcoholism or drug dependence benefits on the grounds of medical necessity within each classification of benefits among inpatient benefits, outpatient benefits, prescription drugs, and emergency care. The bureau of TennCare shall study and compare denial rates among each managed care organization and shall request additional data if significant discrepancies in denial rates are found.

Acts 2017, ch. 221, § 1.

71-5-155. Medication therapy management pilot program. [Effective until June 30, 2020.]

1. As used in this section, unless the context otherwise requires:
   1. “Bureau” means the bureau of TennCare;
   2. “Collaborative pharmacy practice agreement” has the same meaning as defined in § 63-10-204;
   3. “Medication therapy management pilot program” means the test program established by the bureau of TennCare meeting the definition of the term “medication therapy management program” in § 63-10-204; and
   4. “Medication therapy management services” means the provision of direct patient care services by a pharmacist licensed under title 63, chapter 10 practicing in this state, to optimize the therapeutic outcomes of the patient's medications. Medication therapy management encompasses a broad range of professional activities and responsibilities within the licensed pharmacist's scope of practice. Medication therapy management services are independent of, but can occur in conjunction with, the provision of a medication product.
2. 1. The bureau shall develop and implement a medication therapy management pilot program that seeks to provide high quality, cost-effective services in support of initiatives administered by the bureau to ensure optimal health outcomes for TennCare beneficiaries.
   2. Any managed care organization or pharmacy benefit manager that participates in the TennCare medication therapy management pilot program, as determined by the bureau, shall administer a medication therapy management pilot program that meets the program standards and eligibility criteria as established by the bureau.
3. 1. The bureau shall establish program standards and eligibility criteria for the medication therapy management pilot program. Eligibility criteria may include use of specific medications, use of classes of medications, disease states, health conditions, mental health conditions, complex medical and drug-related needs, and other clinical factors, as determined by the bureau.
   2. Medication therapy management services shall be delivered by a participating qualified Tennessee-licensed pharmacist, as determined by the bureau, acting under a collaborative pharmacy practice agreement meeting the requirements of § 63-10-217 and within the routine scope of the practice of pharmacy, as defined in § 63-10-204, and in consultation with patients, caregivers, prescribers, and other healthcare providers, as appropriate. Technical responsibilities related to medication therapy management services, other than the delivery of direct patient care services, such as obtaining accurate medication histories and records, scheduling visits, documentation, and billing for services, may be delegated to pharmacy technicians and other pharmacy personnel at the discretion of the pharmacist responsible for delivering the service.
   3. Nothing in this section shall expand or modify the scope of the practice of pharmacy as defined in title 63, chapter 10, part 2.
4. 1. The bureau shall establish reimbursement rates for medication therapy management services provided by pharmacists under a collaborative pharmacy practice agreement within the medication therapy management pilot program.
   2. For purposes of reimbursement for medication therapy management services, the bureau, or its managed care organizations, may enroll individual pharmacists as providers under their medicaid provider program. The bureau may also establish contract requirements necessary to implement the pilot program.
5. Any cost savings realized by the bureau through administration of the medication therapy management pilot program shall be prioritized for use in expanding the administration of the medication therapy management pilot program. Any expansion of the pilot program shall be determined by the bureau upon conclusion of the pilot program and after evaluation of the pilot program to determine overall impact to the program in terms of cost-effectiveness and medical outcomes.
6. As part of the pilot program, the bureau may seek input from pharmacists, primary care providers, or other key stakeholders to provide technical assistance in the development and implementation of the bureau's medication therapy management pilot program.
7. The medication therapy management pilot program shall terminate on June 30, 2020.

Acts 2017, ch. 363, § 1.

Cross-References. Reporting of costs and patient outcomes, § 63-10-222.

71-5-156. Development of policy regarding births involving neonatal abstinence syndrome and opiod use by women of childbearing age.

1. As used in this section:
   1. “Bureau” means the bureau of TennCare; and
   2. “Managed care organization” or “MCO” means a health maintenance organization, behavioral health organization, or managed health insurance issuer that participates in the TennCare program.
2. The general assembly finds that issues raised by births of children with neonatal abstinence syndrome and the use of opioids by women of childbearing age constitute a critical problem for enrollees in the TennCare program, healthcare providers, the TennCare program, public health, and the fiscal well-being of the state.
3. In order to address issues raised by births of children with neonatal abstinence syndrome and the use of opioids by women of childbearing age in the TennCare program, the bureau is directed to promptly fully review these issues and to develop an appropriate and accountable policy response that includes both primary prevention and secondary prevention.
4. On or before September 1, 2017, the bureau shall issue appropriate requests for information for program initiatives aimed at primary prevention and secondary prevention of births involving neonatal abstinence syndrome and the use of opioids by women of childbearing age enrolled in the TennCare program.
5. 1. Each MCO that participates in the TennCare program shall provide the overall medical loss ratio for the MCO with respect to the TennCare program. The MCO shall also calculate a medical loss ratio with respect to expenditures associated with neonatal abstinence syndrome and the use of opioids by women of childbearing age enrolled in the TennCare program.
   2. For purposes of this subsection (e), “medical loss ratio” means the ratio of medical claims and quality improvement activities to the total funds received by the MCO from the bureau pursuant to its contractor risk agreement.
6. Nothing in this section shall affect contracts in effect on June 6, 2017, with the managed care organizations for program services related to opioid use by women of childbearing age enrolled in the TennCare program.
7. The bureau shall report concerning the progress and implementation of the program authorized by this section to the speaker of the house of representatives, the speaker of the senate, the comptroller of the treasury, the chair of the health committee of the house of representatives, and the chair of the health and welfare committee of the senate beginning on September 1, 2017, and thereafter on a quarterly basis.
8. The bureau shall recommend to the general assembly any legislation necessary to implement initiatives selected under subsection (g) on or before January 15, 2018.
9. If the commissioner of finance and administration, in consultation with the bureau, determines that a federal waiver or an amendment to an existing federal waiver is necessary in order to implement initiatives under this section, the commissioner shall promptly apply for an appropriate waiver or waiver amendment to the United States department of health and human services.

Acts 2017, ch. 483, § 3.

71-5-157. Establishment of state policy to avoid use of state funds for elective abortions.

1. It is the policy of the state to favor childbirth as integral to the health and welfare of the citizens of the state and therefore to favor family planning services that do not include elective abortions or the promotion of elective abortions within the continuum of care or services offered by the provider and to avoid the direct or indirect use of state funds to promote or support elective abortions.
2. In furtherance of this state policy, a waiver amendment to the existing TennCare II waiver that requires elective abortion providers be excluded from participation as providers in the TennCare program shall be submitted to the federal centers for medicare and medicaid services for approval. The waiver amendment shall be implemented within ten (10) business days of approval.
3. For purposes of this section, an “elective abortion provider” means any entity that performed, or operated or maintained a facility that performed, more than fifty (50) abortions in the previous year, or any affiliate of such an entity.
4. This section does not affect compliance with § 9-4-5116.

Acts 2018, ch. 682, § 1.

71-5-158. Amendment to TennCare ll waiver relating to work and community engagement requirements for certain adult enrollees.

An amendment to the existing TennCare II waiver shall be submitted to the federal centers for medicare and medicaid services (CMS) authorizing the bureau of TennCare to create reasonable work and community engagement requirements for able-bodied working age adult enrollees without dependent children under the age of six (6). The waiver shall be consistent with the most recent guidance to state medicaid directors provided by CMS concerning opportunities to promote work and community engagement in demonstration projects authorized under § 1115 of the federal social security act (42 U.S.C. § 1315). The state shall seek the necessary approval from the United States department of health and human services to utilize funds from the temporary assistance to needy families (TANF) program under the Families First Act of 1996, compiled in chapter 3, part 1 of this title, for eligible expenditures related to the waiver. Implementation of the waiver shall be contingent upon the available use of TANF funds or other federal appropriations to meet the requirements of the waiver.

Acts 2018, ch. 869, § 1.

71-5-159. Complex rehabilitation technology.

1. As used in this section, “complex rehabilitation technology”:
   1. Means items classified within medicare as group 3, group 4, or group 5 power wheelchairs and manual wheelchairs with the HCPCS billing codes K0005 and E1161; and
   2. Includes options and accessories related to any of such items.
2. The commissioner of finance and administration, or the commissioner's designee, shall recognize complex rehabilitation technology as a separate covered service from other items considered to be durable medical equipment within medicare, and must list complex rehabilitation technology benefits separately on any proposed budget document or other financial publication made available to the public if the budget document or other financial publication establishes a change in reimbursement for complex rehabilitation technology.

Acts 2019, ch. 96, § 1.

Effective Dates. Acts 2019, ch. 96, § 2. March 28, 2019.

71-5-160. Maintenance of coverage trust fund.

1. There is continued and revived, if necessary, a segregated account within the state treasury that shall be known as the maintenance of coverage trust fund created by Chapter 909 of the Public Acts of 2010. The fund shall not be used to replace any moneys otherwise appropriated to the TennCare program by the general assembly or to replace any moneys appropriated outside of the TennCare program.
2. The maintenance of coverage trust fund shall consist of:
   1. All annual coverage assessments received by the bureau; and
   2. Investment earnings credited to the assets of the maintenance of coverage trust fund.
3. Monies credited or deposited to the maintenance of coverage trust fund together with all federal matching funds shall be available to and used by the bureau only for expenditures in the TennCare program and shall include the purposes authorized in the annual coverage assessment act enacted by the general assembly and codified in this title.

Acts 2010, ch. 909, § 1; 2012, ch. 645, § 2; T.C.A. § 71-5-1005; Acts 2014, ch. 877, § 2.

Code Commission Notes.

Acts 2013, ch. 250, § 2 purported to add subsection (e) to this section, effective July 1, 2013; however, those provisions were added as § 71-5-706 [repealed] by authority of the code commission.

Compiler's Notes. Acts 2012, ch. 645, § 2 provided that the Tennessee code commission is directed to continue former § 71-5-1005 and transfer former § 71-5-1005 to § 71-5-160, in accord with the clear legislative intent of Acts 2010, ch. 909 and Acts 2011, ch. 189.

Former title 71, ch. 5, part 10 concerned the Annual Coverage Assessment Act of 2010, which was enacted by Acts 2010, ch. 909, § 1, and was amended by Acts 2011, ch. 410, § 6(e), (f). Section 71-5-1006 of the Annual Coverage Assessment Act of 2010 provided: “This act shall expire on June 30, 2011; provided, however, the following rights and obligations shall survive expiration of this act:

“(1) The authority of the bureau to impose late payment penalties and to collect unpaid annual coverage assessments and required refunds;

“(2) The rights of a covered hospital or an association of covered hospitals to file a petition for declaratory order to determine whether the annual coverage assessment has been validly imposed; and

“(3) The obligation of the bureau to use and apply the assets of the maintenance coverage trust fund.”

71-5-161. Hospital payment rate corridors.

1. This section continues the hospital payment rate corridors applicable to payments by managed care organizations to hospitals for services provided to TennCare enrollees established by § 71-5-703(b)(3), as enacted by Chapter 276 of the Public Acts of 2015.
2. Hospital payment rate variation corridors shall be established by the state's actuary and approved by the bureau of TennCare for payments by managed care organizations to hospitals for services provided to TennCare enrollees as follows:
   1. As required by § 71-5-703(b)(3), as enacted by Chapter 276 of the Public Acts of 2015, the bureau shall implement provisions in its contractor risk agreements (CRAs) with all managed care organizations requiring payment rates for each hospital in the aggregate from all managed care organizations with which the hospital has network contracts to be no less than the minimum levels or more than the maximum levels set forth in subsections (c) and (d); and
   2. Compliance with these standards shall be determined on the basis of the totality of all rates for the hospital by all managed care organizations in the aggregate with which it has a network contract, rather than on the basis of rates for a hospital under a network contract with an individual managed care organization. Managed care organizations shall not enter into or maintain a single case agreement or contract with any hospital that authorizes or requires rates for the hospital that do not conform to the hospital payment variability standards set forth in this section.
3. The minimum and maximum levels for aggregate rates to hospitals for services to TennCare enrollees shall be based on the percentages of each hospital's federal fiscal year (FFY) 2011 medicare reimbursement set forth in subsection (d). Compliance with these minimum and maximum payment rates shall be determined on the basis of the totality of payments to a hospital for services to TennCare enrollees from all managed care organizations with which the hospital has a network contract. The variation corridors established by this subsection (c) are for the purpose of limiting the amount of variation in the rates paid by TennCare managed care organizations to hospitals, and this subsection (c) shall not create a right by a hospital to receive any actual amount of reimbursement in the aggregate from all TennCare managed care organizations.
4. 1. For routine, nonspecialized inpatient services, the minimum level is fifty-three and eight-tenths percent (53.8%), and the maximum level is eighty percent (80%);
   2. For outpatient services, the minimum level is ninety-three and two-tenths percent (93.2%), and the maximum level is one hundred and four percent (104%);
   3. For cardiac surgery services, the minimum level is thirty-two percent (32%), and the maximum level is eighty-three percent (83%);
   4. For specialized neonatal services, the minimum level is four percent (4%), and the maximum level is one hundred seventy-four percent (174%); and
   5. For other specialized services, the minimum level is forty-nine percent (49%), and the maximum level is one hundred sixty-four percent (164%).
5. The bureau shall publish the list of MS-DRGs included in each service category on its website, and the bureau shall update the list annually to reflect any changes as necessary.
6. The bureau shall maintain rules implementing the requirements of this section. All rules promulgated by the commissioner of finance and administration or the bureau prior to and in effect on July 1, 2016, concerning the annual coverage assessment under this part or Chapter 276 of the Public Acts of 2015, shall remain in force and effect and shall be administered and enforced by the bureau until these rules are modified.

Acts 2016, ch. 854, § 1.

Compiler's Notes. Section 71-7-703, referred to in this section, expired effective June 30, 2016.

71-5-162. Identification of child enrollees eligible for federal supplemental security income upon reaching 18 years of age — Counseling — Enrollment assistance.

The bureau of TennCare shall establish a program that:

1. Identifies child enrollees in TennCare who, by reason of a disability, are likely to be eligible for federal supplemental security income upon reaching eighteen (18) years of age;
2. In the year prior to each eligible child enrollee's eighteenth birthday, counsels the child and the child's parent or guardian on the benefits available from and enrollment requirements for the federal supplemental security income program; and
3. Provides enrollment assistance to the child prior to the child's eighteenth birthday in a manner that the bureau determines is most likely to ensure that there will be no gap in TennCare eligibility or coverage due to the child reaching eighteen (18) years of age.

Acts 2019, ch. 310, § 1.

Effective Dates. Acts 2019, ch. 310, § 2. May 8, 2019.

71-5-163. Submission of waiver in order to provide medical assistance to TennCare ll waiver population by means of block grant.

1. The governor, acting through the commissioner of finance and administration, is directed to submit to the federal centers for medicare and medicaid services a waiver amendment to the existing TennCare II waiver, or to submit a new waiver, in order to provide medical assistance to the TennCare II waiver population by means of a block grant in accordance with this section no later than one hundred eighty (180) days after May 24, 2019. The block grant authorized by this section may convert the federal share of all medical assistance funding for this state into an allotment that is tailored to meet the needs of this state and that:
   1. When determining the base amount for the block grant, factors the current inaccurate reflection of the state's labor costs in the state's Medicare Wage Index and the index's negative impact on healthcare delivery in this state;
   2. Is indexed for population growth;
   3. Is indexed for inflation and other costs;
   4. Excludes from the block grant financing amount any expenses that are not included in the state's existing 1115 demonstration waiver;
   5. Excludes administrative costs from the block grant financing amount and permits the state to continue to draw federal matching funds for administrative costs;
   6. Provides the state with maximum flexibility with regard to existing federal mandates and regulations and with implementing cost controls as determined appropriate by the state, and either exempts the state from the requirements of any new mandates, regulations, or federal court orders during the period of block grant financing or increases the amount of block grant financing to offset any cost increases to the state from such mandates, regulations, or federal court orders;
   7. Provides the state with maximum flexibility regarding pharmacy benefits including fluctuation of prescription drug costs, diabetic testing supplies, and over-the-counter medications;
   8. Provides the state with maximum flexibility to serve other needy populations with distinct financial or healthcare needs; and
   9. Remains at the level set according to the block grant without any decrease in the federal share of all medical assistance funding for this state based on deflation or a reduction in population.
2. A waiver amendment to the existing TennCare II waiver requested pursuant to subsection (a), if approved by the federal government and the commissioner of finance and administration, does not take effect unless subsequently authorized by joint resolution of the general assembly.

Acts 2019, ch. 481, § 1.

Effective Dates. Acts 2019, ch. 481, § 2. May 24, 2019.

71-5-164. Waiver for purpose of establishing Katie Beckett program.

1. The commissioner of finance and administration is directed to submit, no later than one hundred twenty (120) days after May 24, 2019, to the federal centers for medicare and medicaid services a waiver or waivers pursuant to Section 1115 of the Social Security Act for the purpose of establishing a distinct Katie Beckett program. The Katie Beckett program must be designed in consultation with the commissioner of intellectual and developmental disabilities and must be administered in accordance with this section. It is the intent of the general assembly, that subject to approval by the centers for medicare and medicaid services, the Katie Beckett program be composed of two (2) parts as described in subsections (b) and (c); provided, however, that if the centers for medicare and medicaid services only approves one (1) part of the program, either Part A or Part B as described in subsections (b) and (c) respectively, then the approved part may be administered without the other part.
2. Part A of the Katie Beckett program:
   1. Must be designed to provide a pathway to eligibility for medicaid services and essential wraparound home- and community-based services by waiving the deeming of the parents' income and resources as applicable to a child who is under eighteen (18) years of age and:
      1. Has medical needs that:
         1. Result in severe functional limitations that meet criteria established specifically for children;
         2. Would qualify the child for institutionalization in an acute care hospital, nursing facility, or intermediate care facility for individuals with intellectual disabilities; and
         3. Are likely to last at least twelve (12) months or result in death;
      2. Is not receiving long-term services from any alternative waiver program established under this title;
      3. Would otherwise qualify for supplemental security income due to the child's disability but for the income or resources of their parent;
      4. For whom a licensed physician has certified that in-home care is an appropriate way to meet the child's needs; and
      5. For whom the cost of care outside of the institution does not exceed the estimated medicaid cost of appropriate institutional care;
   2. Must offer an integrated program that:
      1. As funding permits, provides children meeting the criteria in subdivision (b)(1) with treatment and support, including, but not limited to:
         1. Respite care;
         2. Care coordination; and
         3. Medically necessary medical care and supportive services;
      2. Accepts applications for the program during periods of open enrollment;
      3. Prioritizes for enrollment into the program children with the most significant disabilities or complex medical needs;
      4. Delivers medically necessary care and essential wraparound services and supports in the most integrated setting appropriate and cost-effective way possible in order to utilize available funding to serve as many children as possible; and
      5. If approved by the federal centers for medicare and medicaid services:
         1. Requires periodic reevaluations of an enrolled child's eligibility based upon eligibility criteria for all open categories of TennCare coverage; and
         2. At the time of reevaluation, allows the bureau of TennCare to disenroll a child who no longer meets the eligibility criteria for any open category of TennCare coverage;
   3. Must provide children applying for or enrolled in Part A of the program with the same appeal rights accorded all other TennCare applicants and enrollees; and
   4. May require parents of children enrolled in Part A of the program to purchase and maintain available private or employer-sponsored insurance that offers coverage for the child, and establish buy-in or premium requirements, using a sliding fee scale based on parent income, to help offset state costs and ensure program sustainability. Any premiums must take into account any amounts paid by a family for private insurance also provided for the child.
3. Part B of the Katie Beckett program:
   1. Must be administered by the department of intellectual and developmental disabilities;
   2. Must be designed as a medicaid diversion plan and offer a capped package of essential wraparound services and supports as well as premium assistance, using a sliding fee scale based on parent income, for a child who is under eighteen (18) years of age and:
      1. Has medical needs that:
         1. Meet the level of care criteria established specifically for children;
         2. Would qualify the child for institutionalization in an acute care hospital, nursing facility, or intermediate care facility for individuals with intellectual disabilities or place the child at risk of institutionalization; and
         3. Are likely to last at least twelve (12) months or result in death; and
      2. Is not medicaid eligible and is not receiving long-term services from any alternative waiver program established under this title;
   3. Must provide services in the most integrated setting appropriate and cost-effective way possible in order to utilize available funding to assist as many children and families as possible; support and sustain child health; utilize, support, and sustain family caregiving; plan and prepare the child for transition to employment and community living with as much independence as possible; and delay the need for medicaid eligibility and services;
   4. Must determine eligibility for services based solely upon medical necessity; and
   5. Must provide children applying for or enrolled in Part B of the program with the same appeal rights accorded all other TennCare and department of intellectual and developmental disabilities applicants and enrollees.
4. If the bureau of TennCare finds it cost-effective and all necessary federal waivers are obtained, then parents or guardians of a child meeting the criteria in subsection (b) or (c) may be authorized to hire and manage care providers for specified wraparound services using a consumer direction model.
5. Beginning February 1, 2020, and no later than February 1 of each year thereafter, the bureau of TennCare and the department of intellectual and developmental disabilities shall issue an annual joint report to the insurance committee of the house of representatives and the health and welfare committee of the senate on the status of the Katie Beckett program that includes, but is not limited to, the following information:
   1. Total spent on program funding, including state and federal funds;
   2. The amount of administrative costs to operate the program;
   3. The costs of Part A and Part B, individually;
   4. The number of children served through the program;
   5. The services provided by and through the program; and
   6. The income range of the parents of children participating in the program.
6. The bureau of TennCare and the department of intellectual and developmental disabilities are authorized, as necessary, to promulgate rules to effectuate the purposes of this section. Rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
7. This section does not create an entitlement to services through the provisions of a Katie Beckett program, and the services provided and the number of individuals served are subject to appropriations made for that purpose.

Acts 2019, ch. 494, § 1.

Compiler's Notes. For the Preamble to the act concerning healthcare for disabled children, see Acts 2019, ch. 494.

Effective Dates. Acts 2019, ch. 494, § 2. May 24, 2019.

71-5-165. Reimbursement of ambulance service provider that provides covered service to TennCare recipient.

1. The bureau of TennCare shall reimburse an ambulance service provider that provides a covered service to a TennCare recipient at a rate not less than sixty-seven and one-half percent (67.5%) of the federal medicare program's allowable charge for participating providers. For purposes of this section, “ambulance service provider” means a public or private ground-based ambulance service that bills for transports and has a base of operations in this state.
2. This section does not affect the Ground Ambulance Service Provider Assessment Act, compiled under part 15 of this chapter. Funds described under this section and part 15 of this chapter may not be used to fund the other.
3. The bureau of TennCare shall seek an intergovernmental transfer of funds, in consultation with, and subject to approval of, the commissioner of finance and administration for the sole purpose of increasing the rate of reimbursement to ambulance service providers that provide covered services to TennCare recipients at a rate greater than the rate described under subsection (a).

Acts 2020, ch. 658, §§ 1, 2.

Code Commission Notes.

Acts 2020, ch. 658, § 2 was codified as subsection (c) of this section by authority of the code commission.

Effective Dates. Acts 2020, ch. 658, § 3. April 3, 2020.

71-5-166 — 71-5-180. [Reserved.]

1. The title of this section and §§ 71-5-182 — 71-5-185 is and may be cited as the “Tennessee Medicaid False Claims Act.”
2. “Medicaid program” as used in §§ 71-5-182 — 71-5-185 includes the TennCare program and any successor program to the medicaid program.

Acts 1993, ch. 364, § 1.

Attorney General Opinions. TennCare/House Bill 2002, OAG 00-016, 2000 Tenn. AG LEXIS 16 (2/2/00).

71-5-182. Violations — Damages — Definitions.

1. Subject to subdivision (a)(2), any person who:
   1. 1. Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval under the medicaid program;
      2. Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim under the medicaid program;
      3. Conspires to commit a violation of subdivision (a)(1)(A), (a)(1)((B), or (a)(1)((D); or
      4. Knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money, or property to the state, or knowingly conceals, or knowingly and improperly, avoids, or decreases an obligation to pay or transmit money or property to the state, relative to the medicaid program;

         is liable to the state for a civil penalty of not less than five thousand dollars ($5,000) and not more than twenty-five thousand dollars ($25,000), adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. § 2461 note); Public Law 101-410, plus three (3) times the amount of damages which the state sustains because of the act of that person.

   2. However, if the court finds that:
      1. The person committing the violation of this subsection (a) furnished officials of the state responsible for investigating false claims violations with all information known to such person about the violation within thirty (30) days after the date on which the defendant first obtained the information;
      2. The person fully cooperated with any state investigation of such violation; and
      3. At the time such person furnished the state with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced under §§ 71-5-181 — 71-5-186 with respect to the violation, and the person did not have actual knowledge of the existence of an investigation into the violation;

         the court may assess not less than two (2) times the amount of damages which the state sustains because of the act of the person.

   3. A person violating this subsection (a) shall also be liable for the costs of a civil action brought to recover any such penalty or damages.
2. For purposes of this section, “knowing” and “knowingly” mean that a person, with respect to information:
   1. Has actual knowledge of the information;
   2. Acts in deliberate ignorance of the truth or falsity of the information; or
   3. Acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.
3. “Claim” means any request or demand, whether under a contract or otherwise, for money or property and whether or not the state has title to the money or property, that is presented to any employee, officer, or agent of the state, or is made to any contractor, grantee, or other recipient, if the money or property is to be spent or used on the state's behalf or to advance a state program or interest, and if the state provides or has provided any portion of the money or property requested or demanded; or if the state will reimburse such contractor, grantee, or other recipient for any portion of the money or property which is requested or demanded; and does not include requests or demands for money or property that the state has paid to an individual as compensation for state employment or as an income subsidy with no restrictions on that individual's use of the money or property.
4. “Obligation” means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.
5. “Material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.
6. Any person who engages, has engaged or proposes to engage in any act described by subsection (a) may be enjoined in any court of competent jurisdiction in an action brought by the attorney general and reporter. The action shall be brought in the name of the state and shall be granted if it is clearly shown that the state’s rights are being violated by such person or entity and the state will suffer immediate and irreparable injury, loss or damage pending a final judgment in the action, or that the acts or omissions of such person or entity will tend to render such final judgment ineffectual. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent any act described by subsection (a) by any person or entity, or as may be necessary to restore to the medicaid program any money or property, real or personal, which may have been acquired by means of such act.

Acts 1993, ch. 364, § 2; 2004, ch. 784, § 2; 2012, ch. 806, §§ 1-5; 2013, ch. 99, § 1.

Compiler's Notes. Acts 2004, ch. 784, § 3 provided that the commissioner of the department of finance and administration, or the commissioner's designee, shall appear before and report in writing on fraud and abuse in the TennCare program to the TennCare oversight committee, the senate general welfare, health and human resources committee and the house health and human resources committee on at least an annual basis. Such report shall include commentary concerning implementation, rules and regulations concerning senate bill 3394 / house bill 3512 (this act) and senate bill 3392 / house bill 3513 (chapter 673) if such bills become law. This act became effective May 28, 2004, and Acts 2004, ch. 673 became effective May 17, 2004.

71-5-183. Civil actions — Employee remedies.

1. If the attorney general and reporter finds that a person has violated or is violating § 71-5-182, the attorney general and reporter may bring a civil action under this section against the person.
2. 1. A person may bring a civil action for a violation of § 71-5-182 for the person and for the state. The action shall be brought in the name of the state of Tennessee. The action may be dismissed only if the court and the attorney general and reporter or district attorney general give written consent to the dismissal and their reasons for consenting.
   2. A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the state. The complaint shall be filed in camera, shall remain under seal for at least sixty (60) days, and shall not be served on the defendant until the court so orders. The state may elect to intervene and proceed with the action within sixty (60) days after it receives both the complaint and the material evidence and information.
   3. The state may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal under subdivision (b)(2). Any such motions may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any complaint filed under this section until twenty (20) days after the complaint is unsealed and served upon the defendant.
   4. Before the expiration of the sixty-day period or any extensions obtained under subdivision (b)(3), the state shall:
      1. Proceed with the action, in which case the action shall be conducted by the state; or
      2. Notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to conduct the action.
   5. When a person brings an action under this subsection (b), no person other than the state may intervene or bring a related action based on the facts underlying the pending action.
3. 1. If the state proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations set forth in subdivision (c)(2).
   2. 1. The state may dismiss the action notwithstanding the objections of the person initiating the action, if the person has been notified by the state of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.
      2. The state may settle the action with the defendant notwithstanding the objections of the person initiating the action, if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera.
      3. Upon a showing by the state that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the state's prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person's participation, such as:
         1. Limiting the number of witnesses the person may call;
         2. Limiting the length of the testimony of such witnesses;
         3. Limiting the person's cross-examination of witnesses; or
         4. Otherwise limiting the participation by the person in the litigation.
      4. Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
   3. If the state elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the state so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts, at the state's expense. When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the state to intervene at a later date upon a showing of good cause.
   4. Whether or not the state proceeds with the action, upon a showing by the state that certain actions of discovery by the person initiating the action would interfere with the state's investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than sixty (60) days. Such a showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the state has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
   5. Notwithstanding subsection (b), the state may elect to pursue its claim through any alternate remedy available to the state, including any administrative proceeding to determine a civil monetary penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceedings as such person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this section. For purposes of this subdivision (c)(5), a finding or conclusion is final if it has been finally determined on appeal to the appropriate court of jurisdiction, if all time for filing such an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.
4. 1. 1. If the state proceeds with an action brought by a person under subsection (a), a person shall, subject to subdivision (d)(1)(B), receive at least fifteen percent (15%) but not more than twenty-five percent (25%) of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action.
      2. Where the action is one that the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing, report, audit, investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than ten percent (10%) of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation.
      3. Any payment to a person under subdivisions (d)(1)(A) and (d)(1)(B) shall be made from the proceeds. Any such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
   2. If the state does not proceed with an action under this section, the person bringing the action or settling the claim shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five percent (25%) and not more than thirty percent (30%) of the proceeds of the action or settlement and shall be paid out of such proceeds. Such person shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
   3. Whether or not the state proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of § 71-5-182 upon which the action was brought, then the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action that the person would otherwise receive under subdivision (d)(1) or (d)(2), taking into account the role of that person in advancing the case to litigation and any relevant circumstances pertaining to the violation. If the person bringing the action is convicted of criminal conduct arising from such person's role in the violation of § 71-5-181, that person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the state to continue the action.
   4. If the state does not proceed with the action and the person bringing the action conducts the action, the court shall award to the defendant its reasonable attorneys' fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
5. 1. In no event may a person bring an action under subsection (b) that is based upon allegations or transactions that are the subject of a civil suit or an administrative civil monetary penalty proceeding in which the state is already a party.
   2. 1. The court shall dismiss an action or claim under this section, unless opposed by the state, if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a criminal, civil, or administrative hearing in which the state or its agent is a party; in a state legislative, state comptroller, or other state report, hearing, audit, or investigation; or from the news media, unless the action is brought by the attorney general and reporter or district attorney general or the person bringing the action is an original source of the information.
      2. For purpose of this subdivision (e)(2), “original source” means an individual who either prior to a public disclosure under subdivision (e)(2)(A) has voluntarily disclosed to the state the information on which allegations or transactions in a claim are based; or who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the state before filing an action under this section.
6. The state is not liable for expenses that a person incurs in bringing an action under this section.
7. Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this section or other efforts to stop one (1) or more violations of §§ 71-5-181 — 71-5-185. The relief shall include reinstatement with the same seniority status the employee, contractor, or agent would have had but for the discrimination, two (2) times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees. An action under this subsection (g) may be brought in the appropriate court for the relief provided in this subsection (g), but may not be brought more than three (3) years after the date when the retaliation occurred.
8. 1. Upon written request of the attorney general and reporter, the bureau of TennCare may bring an action as an administrative proceeding on behalf of the state for recovery under § 71-5-182 against any person specified by the attorney general and reporter other than an enrollee, recipient or applicant, subject to the conditions set forth in this subsection (h).
   2. The amount of actual damages that the state may seek in such administrative proceeding shall not exceed twenty-five thousand dollars ($25,000). This limit shall not apply to any civil penalties or costs that the state is eligible to recover under § 71-5-182 or to § 71-5-182 related to double or treble damages.
   3. Notwithstanding § 71-5-182, the civil penalty for each violation of § 71-5-182 in such administrative proceeding shall be not less than one thousand dollars ($1,000) and not more than five thousand dollars ($5,000).
   4. Any administrative action brought pursuant to this subsection (h) shall be subject to § 71-5-184.
   5. Any administrative action brought pursuant to this subsection (h) shall be initiated as a contested case in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
   6. The bureau of TennCare shall have authority to promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, as are necessary to implement this subsection (h). For purposes of rendering a final order pursuant to the Uniform Administrative Procedures Act, the bureau of TennCare is designated as the agency to review initial orders and issue final agency decisions. Orders issued by the bureau of TennCare shall have the effect of a final order pursuant to the Uniform Administrative Procedures Act.
   7. 1. Whenever an order issued by the bureau of TennCare pursuant to this part has become final, a notarized copy of the order may be filed in the office of the clerk of the chancery court of Davidson County.
      2. When filed in accordance with this subsection (h), a final order shall be considered as a judgment by consent of the parties on the same terms and conditions as those recited in the order. The judgment shall be promptly entered by the court. Except as otherwise provided in this subsection (h), the procedure for entry of judgment and the effect of the judgment shall be the same as provided in title 26, chapter 6.
      3. A judgment entered pursuant to this subsection (h) shall become final on the date of entry.
      4. A final judgment under this subsection (h) has the same effect, is subject to the same procedures and may be enforced or satisfied in the same manner as any other judgment of a court of record of this state.
   8. Any recovery under this subsection (h) in excess of the amounts paid to reimburse the bureau of TennCare for damages and costs and to other interested parties shall be paid to the attorney general and reporter to be used to investigate and prosecute health care fraud in the TennCare program.
   9. This subsection (h) is declared to be remedial in nature and shall be liberally construed to effectuate its purposes.

Acts 1993, ch. 364, § 3; 2005, ch. 474, § 15; 2009, ch. 528, §§ 1, 2; 2012, ch. 806, §§ 6, 7, 9; 2013, ch. 99, § 2.

71-5-184. Service — Limitations.

1. A subpoena requiring the attendance of a witness at a trial or hearing conducted under § 71-5-183 may be served at any place in the United States.
2. A civil action under § 71-5-183 may not be brought:
   1. More than six (6) years after the date on which the violation of § 71-5-182 is committed; or
   2. More than three (3) years after the date when facts material to the right of action are known or reasonably should have been known by the official of the state charged with responsibility to act in the circumstances, but in no event more than ten (10) years after the date on which the violation is committed, whichever occurs last.
3. If the state elects to intervene and proceed with an action brought under § 71-5-183(b), the state may file its own complaint or amend the complaint of a person who has brought an action under § 71-5-183(b) to clarify or add detail to the claims in which the state is intervening and to add any additional claims with respect to which the state contends it is entitled to relief. For statute of limitations purposes, any such state pleading shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the state arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in the prior complaint of that person.
4. In any action brought under § 71-5-183, the state shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.
5. Notwithstanding any other law, the Tennessee Rules of Criminal Procedure, or the Tennessee Rules of Evidence, a final judgment rendered in favor of the state in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall stop the defendant from denying the essential elements of the offense in any action that involves the same transaction as in the criminal proceeding and that is brought under subsection (a) or (b) or § 71-5-183.

Acts 1993, ch. 364, § 4; 2012, ch. 806, § 8.

71-5-185. Venue.

Any action under § 71-5-183 may be brought in any judicial district in which the defendant or, in the case of multiple defendants, any one (1) defendant can be found, resides, transacts business, or in which any act proscribed by § 71-5-182 occurred. A summons as required by the Rules of Civil Procedure shall be issued by the appropriate district court and served at any place within or outside the United States.

Acts 1993, ch. 364, § 5.

71-5-186, 71-5-187. [Reserved.]

1. The comptroller of the treasury may conduct an annual actuarial study of the medical assistance program and any participating managed care organizations. The final study, and the oral and written comments, shall be reported to the finance, ways and means committees  of the senate and the house of representatives, the committee of the house of representatives having oversight over TennCare, the office of legislative budget analysis and the fiscal review committee of the general assembly on or before April 15 of each year.
2. The study will include the state's assessment of the rates paid to its contracted managed care organizations and behavioral health organizations each year. Included in the analysis will be a review of payments for hospital providers for similar services for comparable populations in other state medicaid programs. The review will be considered in determining reasonable payment rates for hospital providers, including safety net hospitals providing essential and unduplicated services and sole community provider hospitals.
3. In addition, the study shall include an analysis of actual provider costs. This analysis will be used to determine reasonable costs for comparison with the provider assumptions used in the study. Information used to compile this study shall be public information.
4. Before reporting the final study to the committees of the general assembly, the comptroller of the treasury shall release a copy of the draft study to interested parties and hold a public hearing within thirty (30) days of release, in order to afford all interested persons or their representatives an opportunity to present facts, views or arguments relative to the draft study under consideration. The agency shall afford each interested person an opportunity to present facts, views or arguments in writing, whether or not the person had an opportunity to present them orally.

Acts 1999, ch. 370, § 1; 2000, ch. 913, § 1; 2003, ch. 389, § 1; 2006, ch. 820, §§ 1-3; 2010, ch. 1030, § 20; 2011, ch. 410, § 6(c); 2019, ch. 345, § 139.

Compiler's Notes. Acts 1999, ch. 370, § 2 provided that any costs associated with implementing the provisions of this section shall be paid for with funds that have been appropriated for purposes of administering the TennCare program.

For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment inserted “the committee of the house of representatives having oversight over TennCare,” in (a).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

Cross-References. Reporting requirements satisfied by notice to general assembly members of publication of report, § 3-1-114.

71-5-189. Accounting of TennCare funds.

The bureau of TennCare shall provide to the comptroller of the treasury on a quarterly basis an accounting of funds involved in the pharmacy rebate program, including a summary of bills and receipts.

Acts 1999, ch. 531, § 1.

71-5-190. TennCare prescription drug utilization review committee.

1. In order to provide oversight of prescription drug utilization under the TennCare program, there is hereby created a TennCare prescription drug utilization review committee. The committee shall consist of: one (1) member of the house of representatives appointed by the speaker of the house; one (1) member of the senate appointed by the speaker of the senate; and two (2) pharmacists, two (2) physicians, two (2) representatives of managed care organizations, two (2) representatives of pharmaceutical companies and two (2) consumers, all of whom shall be appointed by the comptroller of the treasury. The TennCare bureau shall provide to the committee such information as the committee deems appropriate concerning the prescriptions made to TennCare enrollees who receive more than seven (7) prescriptions. The committee shall review such information and make recommendations to the health and welfare committee of the senate, the health committee of the house of representatives, the committee of the house of representatives having oversight over TennCare, and the TennCare bureau concerning potential drug interactions, abuse of prescription drugs or other appropriate matters.
2. 1. Non-legislative members of the committee shall serve without compensation, but they shall be entitled to reimbursement for all necessary expenses incurred in the performance of their duties, in accordance with the comprehensive state travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
   2. Legislative members of the committee shall not receive from the state an expense allowance or mileage allowance paid solely in consideration for serving on or attending meetings of the committee; provided, that this subdivision (b)(2) shall at no time preclude a legislative member from receiving an expense allowance or mileage allowance otherwise payable to such member in connection with attending the general assembly.

Acts 1999, ch. 536, § 1; 2000, ch. 796, § 1; 2011, ch. 410, § 6(d); 2013, ch. 236, § 53; 2019, ch. 345, § 140.

Compiler's Notes. For the Preamble to the act concerning the prohibition against establishment of a special committee if there is a standing committee on the same subject, please refer to Acts 2011, ch. 410.

Amendments. The 2019 amendment inserted “, the committee of the house of representatives having oversight over TennCare” in the last sentence of (a).

Effective Dates. Acts 2019, ch. 345, § 148. May 10, 2019.

71-5-191. Uniform TennCare claims process.

1. 1. Not later than January 1, 2002, the commissioner of commerce and insurance, in consultation with the commissioner of health, shall develop and promulgate by rule a uniform TennCare claims process that contains standardized instructions for completing the form and creates standardized responses to questions and other information required on the form, for providers and managed care organizations participating in the TennCare program to use in the submission of claims by providers seeking payment. Each managed care organization, or its designee that participates in the TennCare program may participate in the development of such uniform claims process. The commissioner of commerce and insurance shall notify all such managed care organizations no less than ten (10) days prior to any and all meetings concerning the development of such claims process to enable such organizations to provide input on the development of such claims process. The uniform process shall require that managed care organizations participating in the TennCare program shall not deviate from the uniform process established by rule pursuant to this section, unless such deviation is specifically approved in writing by TennCare prior to any change being implemented that might result in a claim being rejected for payment. TennCare shall not approve any changes to standardized instructions that do not relate to using alternative codes to facilitate payment for delivered services. Compliance with this section shall be added as a component of the comptroller's annual audit. In addition, such managed care organizations shall be required to develop and implement procedures to ensure that health care providers are regularly informed and educated by the managed care organization regarding billing and claims processing procedures.
   2. Any managed care organization that fails to comply with this section shall be subject to the penalties set forth in § 56-32-116 or, in the alternative, § 56-32-120.
   3. Such rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
2. If this section conflicts with any applicable federal waiver concerning medical assistance services delivered pursuant to chapter 5, part 1 of this title, then the commissioner of health is directed to seek an appropriate modification or amendment to such waiver to permit the implementation of this section.
3. This section shall be construed so as to be consistent with the terms of any applicable federal waiver for the provision of medical assistance.

Acts 2001, ch. 209, § 1.

71-5-192. Information management system.

On or before January 1, 2004, a comprehensive, integrated information management system will be operational for the bureau of TennCare. Not less frequently than quarterly, the division of strategic technology solutions in the department of finance and administration shall provide progress assessments concerning such system to the information systems council (ISC) and the fiscal review committee.

Acts 2002, ch. 880, § 4; 2020, ch. 690, § 20.

Compiler's Notes. Acts 2002, ch. 880, § 1 provided that the act is, and may be cited as, “The TennCare Reform Act of 2002”.

Acts 2002, ch. 880, § 5 provided that any costs associated with the implementation of that act, except as to the costs of the medicaid fraud control unit of the Tennessee bureau of investigation, shall be paid from existing funds appropriated to the TennCare program.

Acts 2002, ch. 880, § 8 provided that:

“(a)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall study the feasibility of outsourcing eligibility determinations and reverifications for the TennCare expansion population, including requesting information from potential contractors. It is the legislative intent that information from interested potential contractors be received by October 15, 2002.

“(b)  The fiscal review committee, in consultation with the bureau of TennCare and the select oversight committee on TennCare (repealed), shall evaluate the responses from potential contractors and shall, no later than January 1, 2003, report its findings to the general assembly, the commissioner of finance and administration, the comptroller of the treasury and the governor, relative to whether eligibility and re-verification services should be contracted and procured through competitive proposals.”

Acts 2002, ch. 880, § 20 provided that the provisions of that act shall only apply so long as the state operates the TennCare program as a statewide waiver with an expansion population of uninsureds and uninsurables under Section 1115 of the federal Social Security Act [42 U.S.C. § 1315]. If at any time the state ceases to operate under such a waiver, then the provisions of the act shall not be applied and enforcement of such provisions shall be terminated.

Amendments. The 2020 amendment substituted “division of strategic technology solutions” for “office of information resources”.

Effective Dates. Acts 2020, ch. 690, § 22. June 11, 2020.

71-5-193. Children's mental health care — Development of interagency projects and programs.

The department shall involve the council in the development of interagency projects and programs, whether state or federally funded, related to children's mental health care, except where otherwise prohibited by state or federal law.

Acts 2008, ch. 1062, § 12.

Compiler's Notes. Former § 71-5-193 (Acts 2002, ch. 880, § 4), concerning the establishment of a TennCare advisory board, was repealed by Acts 2003, ch. 410, § 1, effective June 23, 2003.

For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

71-5-194. Spend down eligibility for medical assistance.

On or before July 1, 2003, the department of human services shall make available on the department of human services' web page all rules, operating procedures and any other similar material relative to determining an individual's spend down eligibility for medical assistance under this chapter and the operating procedures and any other similar material necessary for a pharmacy to determine which prescriptions used to qualify the patient for TennCare through the spend down eligibility criteria are eligible to be billed to the TennCare program based on the effective date of eligibility for medical assistance.

Acts 2003, ch. 131, § 1.

71-5-195. Study on use of prescription drugs in nursing homes.

The comptroller of the treasury, in conjunction with any appropriate TennCare drug utilization review committees, shall study the use of prescription drugs in nursing homes and the costs of those prescription drugs for residents of nursing homes. The study shall examine prescription use overall, and shall focus on any practices that would improve the quality of resident care while reducing costs to the TennCare program. By January 1, 2005, the comptroller of the treasury shall deliver its report to the speakers of the respective houses of the general assembly.

Acts 2003, ch. 169, § 8.

Compiler's Notes. Acts 2003, ch. 169, § 1 provided that the act shall be known and may be cited as the “Nursing Home Compassion, Accountability, Respect and Enforcement Reform Act”.

71-5-196. Veterans education benefits.

Notwithstanding any other provision of this chapter, to the extent permitted by federal law, the value of federal veterans education benefits received by an applicant shall not be included as any form of income when making eligibility determinations for assistance under this part.

Acts 2003, ch. 239, § 6.

Compiler's Notes. Provisions concerning federal veteran's educational benefits are codified in 38 U.S.C. § 3101.

71-5-197. Authority over TennCare pharmacy purchases — Confidential information — Exemption from open meeting laws.

1. The bureau of TennCare is authorized to remove pharmacy services from managed care organization (MCO) contracts and assume direct responsibility for all TennCare pharmacy purchases.
2. The bureau of TennCare is authorized to implement, either independently or in combination with a state preferred drug list (PDL), cost saving measures for pharmaceutical services, including, but not limited to, tiered co-payments, reference pricing, prior authorization and step therapy requirements; provided, however, that any prior approval process shall, at a minimum, comply with 42 U.S.C. § 1396r-8(d)(5), which requires a response to a request for prior authorization within twenty-four (24) hours and further requires at least a seventy-two (72) hour supply of a covered outpatient drug in an emergency situation.
3. The bureau of TennCare, through a state pharmacy benefit manager (PBM) or on its own, is authorized to negotiate supplemental manufacturer rebates for TennCare prescription drug purchases; provided, however, that when conducting such negotiations, the bureau or PBM, or both, shall utilize the average manufacturer's price (AMP) as defined in 42 U.S.C. § 1396r-8(k)(1) or any other recognized acceptable basis for negotiating rebates as the cost basis for the product.
4. Notwithstanding any other law to the contrary, all information and documents containing trade secrets, proprietary information, rebate amounts for individual drugs or individual manufacturers, percent of rebate for individual drugs or individual manufacturers, and manufacturer's pricing that are contained in records of the TennCare bureau, the state of Tennessee and its agents shall be confidential and shall not be a public record for the purposes of title 10, chapter 7, part 5. Nothing in this subsection (d) shall be construed to prohibit the TennCare bureau and the state of Tennessee from disclosing the information covered by this subsection (d) to members of the state TennCare pharmacy advisory committee, who shall be deemed agents of the state of Tennessee for purposes of this subsection (d).
5. Notwithstanding any other law to the contrary, those portions of meetings of the state TennCare pharmacy advisory committee at which information described in subsection (d) is disclosed for discussion are exempt from title 8, chapter 44.
6. 1. The bureau of TennCare shall promulgate rules to promote the safe and responsible coverage of opioids for TennCare members who have the TennCare pharmacy benefit. The rules must, at a minimum, address prior authorization requirements for opioid prescriptions, as determined by the bureau, to reduce the development of opioid dependency and addiction. For women of child-bearing age, when prior authorization is required for an opioid prescription, the rules must require the provider to submit information regarding pregnancy status, contraceptive use, and the provision of counseling regarding the risks of becoming pregnant while receiving opioid medication. The information regarding pregnancy status and contraceptive use may, when appropriate, be based on self-reporting by the patient.
   2. The rules required by this subsection (f) shall be promulgated pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. On or before January 1, 2019, the bureau shall report to both the health and welfare committee of the senate and the health committee of the house of representatives regarding the status of the rules required by this subsection (f).

Acts 2003, ch. 350, § 3; 2004, ch. 673, §§ 12, 13; 2018, ch. 864, § 1.

Compiler's Notes. Acts 2003, ch. 350, § 6 provided that if a court of competent jurisdiction enjoins, restrains or stays programs authorized by this part, then the department of finance and administration or the bureau of TennCare as appropriate is authorized to proceed to implement as appropriate those portions of this part that have not been lawfully enjoined, restrained or stayed.

Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Authority of the bureau of TennCare to negotiate supplemental manufacturer rebates for TennCare prescription drug purchases, OAG 05-001, 2005 Tenn. AG LEXIS 1 (1/05/05).

71-5-198. Prescription drug program waiver.

1. If necessary, the bureau of TennCare is authorized to seek a research and demonstration waiver under Section 1115 of the federal Social Security Act from the United States department of health and human services to create a TennCare prescription program, subject to funding by the general assembly and the terms and conditions imposed by the waiver.
2. To the extent and only to the extent permitted by federal law or the terms of the waiver, the TennCare prescription program may provide a prescription benefit to individuals lacking prescription drug insurance coverage who meet criteria established by the bureau of TennCare and the general assembly in its annual appropriation bill.
3. To the extent permitted by federal law and the TennCare waiver, the bureau of TennCare may implement, either independently or in combination with a state preferred drug list (PDL), cost saving measures for pharmaceutical services including, but not limited to, tiered co-payments, reference pricing, prior authorization, step therapy requirements, exclusion from coverage of drugs or classes of drugs, mandating the use of generic drugs, and mandating the use of therapeutic equivalent drugs.
4. To the extent permitted by federal law or the terms of the waiver, the bureau of TennCare, through a state pharmacy benefit manager (PBM) or on its own, may negotiate manufacturer rebates for TennCare prescription drug purchases. The bureau of TennCare shall retain ultimate authority to negotiate or contract directly with a pharmaceutical manufacturer, in the interest of implementing rebates or other cost saving measures and for other purposes permitted by this section. Notwithstanding anything under Tennessee law to the contrary, the bureau's designation of a negotiating agent shall not infringe upon the state's ability to negotiate and contract directly with pharmaceutical manufacturers.
5. To the extent permitted by federal law or the terms of the waiver, the bureau of TennCare may establish an open enrollment period based on appropriations from the general assembly.
6. To the extent permitted by federal law or the terms of the waiver, the bureau of TennCare may contract with another department or a private entity to conduct an eligibility determination. The bureau or a contracted entity may implement an eligibility determination process to ensure participants comply with eligibility standards set by the bureau and the general assembly.
7. As permitted by the waiver or federal law, program participants may purchase prescription drugs through pharmacies participating in the state network.
8. To the extent permitted by federal law or the terms of the waiver, the bureau of TennCare may establish an enrollment fee to defray administrative expenses associated with the program.

Acts 2003, ch. 350, § 4; 2004, ch. 673, § 14; 2005, ch. 442, § 1.

Compiler's Notes. The Section 1115 waiver, referred to this section, refers to Section 1115 of the federal Social Security Act, and is codified in 42 U.S.C. 1315.

Acts 2003, ch. 350, § 6 provided that if a court of competent jurisdiction enjoins, restrains or stays programs authorized by this part, then the department of finance and administration or the bureau of TennCare as appropriate is authorized to proceed to implement as appropriate those portions of this part that have not been lawfully enjoined, restrained or stayed.

Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

71-5-199. State preferred drug list.

The bureau of TennCare may, in its sole discretion, adopt or amend a state preferred drug list (PDL). The adoption or amendment of a PDL, and the recommendations of the TennCare pharmacy advisory committee to the bureau are not agency actions and do not require rulemaking.

Acts 2004, ch. 673, § 15.

Compiler's Notes. Acts 2004, ch. 673, § 29 provided that to effectuate the provisions of the act, the commissioner of finance and administration shall have the authority to promulgate any necessary rules and regulations not otherwise provided for in this act. All rules and regulations provided for in this act are authorized to be promulgated as public necessity rules (now emergency rules) pursuant to § 4-5-209 (now § 4-5-208). All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Part 2
Community Clinics