Chapter 1
Administration

Part 1
Department of Human Services

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;
      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;
    5. 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;
    6. 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;
    7. 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;
    8. 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;
    9. 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;
    10. 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;
    11. 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;
    12. Administer such additional public welfare functions as are hereby or may be vested in it by law pursuant to this part;
    13. 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;
    14. 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;
    15. 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
    16. 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.
    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. 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.
  1. 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.
  2. 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. 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.
    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.
    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.
  1. 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.
    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. 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.
    1. 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.
      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.
    2. 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.
    3. 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.
    4. 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.
        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.
      1. 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.
      2. 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.
    5. A knowing violation of the provisions restricting the disclosure of information pursuant to this section shall be a Class B misdemeanor.
  1. 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. 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.
  1. 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.
  2. 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.
  3. 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.

NOTES TO DECISIONS

1. Construction.

Tennessee general assembly did not violate the separation of powers doctrine by delegating to the Tennessee department of human services the authority to promulgate the Tennessee department of human services child support guidelines. Gallaher v. Elam, 104 S.W.3d 455, 2003 Tenn. LEXIS 337 (Tenn. 2003).

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

    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.
  1. 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.
  2. 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.
  3. 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.
    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.
    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

71-1-201. Advance payment.

Organizations, businesses, or institutions engaged in contracts with the state to provide social services to third parties, including Title XX (42 U.S.C. §§ 1397 et seq.), weatherization, low income energy assistance and other community services administered or funded by the department of human services, that are partially funded by federal grants provided on a cost reimbursement basis, may request advance payment from the state.

Acts 1976, ch. 454, § 1; T.C.A., § 14-2401; Acts 1984, ch. 789, § 1; T.C.A., § 14-32-101.

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

71-1-202. Application to state agency or department.

Organizations or businesses having state contracts to provide services may make application to the state agency or department having jurisdiction over the contractor for advance payment. No funds shall be released to the contractor until the third party contractor has demonstrated that state matching fund requirements have been met.

Acts 1976, ch. 454, § 2; T.C.A., §§ 14-2402, 14-32-102.

71-1-203. Approval — Procedure.

Upon approving an application for funds, the state agency or department with jurisdiction over the contractor shall forward the application to the director of accounts for payment.

Acts 1976, ch. 454, § 3; T.C.A., §§ 14-2403, 14-32-103.

71-1-204. Limitation on use of funds.

Funds provided under this part shall only be used to cover costs incurred by third party social service contractors to cover necessary capital expenditures, to provide cash flow, or for other proper purposes where payment is required in cash and cost reimbursement is unacceptable.

Acts 1976, ch. 454, § 4; T.C.A., §§ 14-2404, 14-32-104.

71-1-205. Procedures for advance payments — Limitation — Appropriation.

  1. The commissioner of finance and administration is directed to establish procedures to provide for the advance payments authorized in § 71-1-201. At the termination of the contract or upon termination of provision of contracted social service by the agency, the department of human services shall withhold any outstanding advance from funds otherwise payable to the agency under the contract with the department.
  2. The advance payments shall not exceed an amount appropriated for the advance payments in the general appropriations act for each fiscal year.

Acts 1976, ch. 454, § 5; 1978, ch. 887, § 1; T.C.A., § 14-2405; Acts 1984, ch. 789, § 2; T.C.A., § 14-32-105.

71-1-126. Review of state medicaid program.

71-1-129. “Parents as first teachers” pilot projects.

Chapter 2
Programs and Services for Elderly Persons

Part 1
Commission on Aging and Disability

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.
    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.
  3. 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.
    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.
    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).
  3. 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.”
    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.
      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).
    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.
  3. Except as provided in subsection (f) for initial appointments, the terms of the members of the council are for three (3) years.
    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.
  4. The members shall elect a chair and a vice chair, whose duties are established by the council.
  5. 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.
  6. 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.
  7. A majority of the voting members of the council constitutes a quorum, and all official action of the council requires a quorum.
  8. The respective appointing authority may remove a private citizen member of the council for misconduct, incapacity, or neglect of duty.
    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.
  9. 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.
  10. 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.
  11. 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.
  12. 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

71-2-201. Short title.

This part may be cited as the “Old-Age Assistance Law.”

Acts 1937, ch. 49, § 20; C. Supp. 1950, § 4765.17 (Williams, § 4765.34); T.C.A. (orig. ed.), §§ 14-201, 14-2-101.

71-2-202. Part definitions.

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

  1. “Assistance” means either money payments made to or in behalf of aged persons in need, or medical care and treatment, nursing home care, drugs including hospitalization, and outpatient care or any other type of remedial care recognized under state law in behalf of aged persons in need, or any of these, but does not include subdivisions (1)(A)-(1)(D) unless the federal 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 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 individual 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. “Recipient” means a person who was receiving old age assistance benefits during the month of December 1973, and is now qualified under the provisions of Public Law 93-66 to continue to receive a state money payment as a supplement to the federally-provided supplemental security income benefits; and
  4. “Regional director” means the director of a region under chapter 1, part 1 of this title.

Acts 1937, ch. 49, § 1; 1939, ch. 134, § 1; C. Supp. 1950, § 4765.18 (Williams, § 4765.17); Acts 1957, ch. 117, § 1; 1965, ch. 14, § 1; 1973, ch. 337, § 2; 1974, ch. 628, § 1; impl. am. Acts 1975, ch. 219, § 1; T.C.A. (orig. ed.), §§ 14-202, 14-2-102.

Compiler's Notes. Provisions for supplemental security income benefits, referred to in this section, is compiled in 42 U.S.C. § 1381 et seq.

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.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), § 5.19.

71-2-203. Eligibility for assistance.

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

    1. Is sixty-five (65) years of age or older;
    2. 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;
    3. 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 such person's needs as determined by the department's standards; and
    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, nephew or niece, within the period above mentioned, shall be prima facie evidence that the transfer was made with the intent to evade this part; or
  1. Was receiving old age assistance 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. 49, § 2; 1949, ch. 85, § 1; 1949, ch. 135, § 1; C. Supp. 1950, § 4765.19 (Williams, § 4765.18); Acts 1951, ch. 104, § 1; 1951, ch. 223, § 1; 1955, ch. 24, § 1; 1955, ch. 169, § 1; 1957, ch. 81, § 1; 1957, ch. 116, § 1; 1965, ch. 14, § 2; 1967, ch. 64, §§ 1, 2; 1970, ch. 369, § 1; 1974, ch. 628, § 2; T.C.A. (orig. ed.), §§ 14-203, 14-2-103.

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.

Provisions for supplemental security income benefits, referred to in this section, is compiled in 42 U.S.C. § 1381 et seq.

71-2-204. Determination of amount of assistance.

The amount of assistance that any person shall receive in the form of supplementary money 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. 49, § 3; 1945, ch. 187, § 1; C. Supp. 1950, § 4765.20 (Williams, § 4765.19); Acts 1953, ch. 8, § 1; modified; 1957, ch. 22, § 3; 1957, ch. 117, § 2; 1961, ch. 24, § 1; 1965, ch. 14, § 3; 1967, ch. 64, § 3; 1973, ch. 303, § 12; 1974, ch. 628, § 3; T.C.A. (orig. ed.), §§ 14-204, 14-2-104.

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.

71-2-205. Duties of department.

The department shall:

  1. Supervise the administration of assistance to the needy aged 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. Prepare and supply to the regional directors 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 aged 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; and
  6. Publish an annual report and such interim reports as may be necessary.

Acts 1937, ch. 49, § 4; C. Supp. 1950, § 4765.21 (Williams, § 4765.20); modified; Acts 1973, ch. 303, § 13; T.C.A. (orig. ed.), §§ 14-206, 14-2-105.

71-2-206. Duty 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 time and in such manner as it may direct.

Acts 1937, ch. 49, § 5; C. Supp. 1950, § 4765.22 (Williams, § 4765.21); T.C.A. (orig. ed.), §§ 14-207, 14-2-106.

71-2-207. Appeal to department.

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. The department shall, upon receipt of such an appeal, give the recipient reasonable notice and opportunity for a hearing.

Acts 1937, ch. 49, § 9; 1945, ch. 187, § 1; C. Supp. 1950, § 4765.26 (Williams, § 4765.25); Acts 1973, ch. 303, § 15; 1974, ch. 628, § 5; T.C.A. (orig. ed.), §§ 14-212, 14-2-107.

71-2-208. Finality of departmental decision.

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. 49, § 9; 1945, ch. 187, § 1; C. Supp. 1950, § 4765.26 (Williams, § 4765.25); T.C.A. (orig. ed.), §§ 14-214, 14-2-108.

71-2-209. Periodical reinvestigation of grants.

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. After such further investigation as the regional director or a designated agent may deem necessary or the department may require, the amount of assistance may be changed or assistance may be entirely withdrawn if the recipient's circumstances have altered to warrant such action.

Acts 1937, ch. 49, § 10; 1945, ch. 187, § 1; C. Supp. 1950, § 4765.27 (Williams, § 4765.26); Acts 1957, ch. 117, § 5; 1973, ch. 303, § 17; T.C.A. (orig. ed.), §§ 14-215, 14-2-109.

71-2-210. Change in circumstances of recipient.

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. 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. 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. 49, § 11; 1945, ch. 187, § 1; C. Supp. 1950, § 4765.28 (Williams, § 4765.27); Acts 1957, ch. 117, § 6; 1961, ch. 13, § 1; 1974, ch. 628, § 6; T.C.A. (orig. ed.), §§ 14-216, 14-2-110.

71-2-211. 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. 49, § 13; 1945, ch. 187, § 1; C. Supp. 1950, § 4765.30 (Williams, § 4765.29); Acts 1951, ch. 161, § 1; T.C.A. (orig. ed.), §§ 14-217, 14-2-111.

71-2-212. Amendment of part.

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 amendment or repealing statute.

Acts 1937, ch. 49, § 19; C. Supp. 1950, § 4765.36 (Williams, § 4765.33); T.C.A. (orig. ed.), §§ 14-218, 14-2-112.

71-2-213. Charging for assistance to applicants unlawful.

  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 persons over sixty-five (65) years of age.
  2. A violation of this section is a Class C misdemeanor.

Acts 1937, ch. 118, § 1; C. Supp. 1950, § 4765.37; T.C.A. (orig. ed.), §§ 14-219, 14-2-113; Acts 1989, ch. 591, § 113.

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

71-2-214. Unlawful 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 old-age assistance, 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, § 4765.37 (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.), §§ 14-220, 14-2-114; Acts 1989, ch. 591, § 113.

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

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

71-2-215. Penalty for fraudulent acts.

Whoever:

  1. Knowingly obtains, or attempts to obtain, or aids, or abets any persons 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
  2. 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. 49, § 18; 1943, ch. 42, § 2; C. Supp. 1950, § 4765.35 (Williams, § 4765.32); Acts 1955, ch. 26, §§ 1, 2; T.C.A. (orig. ed.), §§ 14-221, 14-2-115; Acts 1989, ch. 591, § 102.

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

71-2-216. Assistance not assignable — Exemption from execution.

Assistance granted under this part is not 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. 49, § 8; C. Supp. 1950, § 4765.25 (Williams, § 4765.24); T.C.A. (orig. ed.), §§ 14-222, 14-2-116.

Part 3
Medical Care for the Aged

71-2-301. Part definitions.

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

  1. “Applicant” means a person requesting medical assistance under this part;
  2. “Department” means the department of human services;
  3. “Medical assistance” means vendor payments or other payments for drugs in behalf of any person in need of this form of medical assistance as determined by department standards; and
  4. “Recipient” means a person receiving medical assistance under the terms of this part.

Acts 1961, ch. 96, § 1; 1971, ch. 43, § 1; impl. am. Acts 1975, ch. 219, § 1(a, b); T.C.A., §§ 14-1601, 14-3-101.

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

Cross-References. Comprehensive health insurance pool for uninsurable and underinsured, title 56, ch. 7, part 23.

71-2-302. Determination of amount of medical assistance.

The amount of medical assistance that any person shall receive in the form of drugs under this part shall be determined by measuring the income and resources of such person against the statewide standards provided in § 71-2-303(3) and shall be approved by the regional director or a designated agent and the county mayor of the county in which such person resides.

Acts 1961, ch. 96, § 3; 1971, ch. 43, § 3; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A., §§ 14-1603, 14-3-102; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

71-2-303. Duties of department.

The department shall:

  1. Supervise the administration of medical assistance;
  2. Make such rules and regulations and take such action as may be necessary or desirable for carrying out of this part, to the end that equitable treatment shall be afforded to individuals in similar circumstances. 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 statewide standards for determining the amount of medical assistance that any person shall receive;
  4. Employ personnel for the administration of this part in conformity with title 8, chapter 30, and the rules and regulations of the department of human resources; and
  5. Publish an annual report and such interim reports as may be necessary.

Acts 1961, ch. 96, § 4; 1971, ch. 43, § 4; T.C.A., §§ 14-1604, 14-3-103; Acts 2012, ch. 800, § 49.

Compiler's Notes. Acts 2012, ch. 800, § 1 provided that the act, which amended subdivision (4), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

71-2-304. Appeal to department by applicant or recipient.

If an application is not acted upon by the regional director, or a designated agent, and the county mayor within a reasonable time after the filing of the application, or is denied in whole or in part, or if any award of medical assistance is modified or cancelled under any provision of this part, the applicant or recipient may appeal to the department in the manner and form prescribed by the department, and shall be afforded a reasonable notice and opportunity for a fair hearing by the department. Written notice of a right to a fair hearing shall be given by the county office to each applicant and recipient at such time as the county office takes any action concerning the amount awarded to the individual or the action on the application of the individual.

Acts 1961, ch. 96, § 5; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A., §§ 14-1605, 14-3-104; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

71-2-305. Review on motion of department — Notice to applicants or recipients — Hearing — Decision final.

The department may also, upon its own motion, review any decision of a regional director, or a designated agent, and county mayor, and may consider any application upon which a decision has not been made by the regional director, or a designated agent, within a reasonable time. The department may make such additional investigation as it may deem necessary, and shall make such decision on such application as in its opinion is justified and in conformity with this part. Applicants or recipients affected by such decisions of the department shall be notified of such decision in writing, and shall, upon request, be given reasonable notice and opportunity for a fair hearing by the department. 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 1961, ch. 96, § 6; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A., §§ 14-1606, 14-3-105; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

71-2-306. Recipient receiving property or income — Notice required — Recovery — Fraudulently obtaining aid or disposing of property — Penalty.

  1. If, at any time during the certification for medical assistance, the recipient becomes possessed of any property, real or personal, or income in excess of the amount stated in such recipient's application for medical assistance or transfers any of such recipient's property, real or personal, it shall be the duty of the recipient to immediately notify the local county office of the department. Any medical assistance paid after the recipient has come into possession of property, real or personal, or income, or has transferred any of such recipient's property, real or personal, that renders the recipient ineligible to receive medical assistance under the rules and regulations of the department, shall be recoverable in a suit by the state as a debt due the state.
  2. Whoever:
    1. 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, medical assistance to which such person is not entitled or medical assistance greater than that to which such person is justly entitled; or
    2. 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 medical assistance, without the consent of the department;

      commits a Class E felony and is punishable accordingly, except such acts shall be punished as Class A misdemeanors where the amount involved is less than five hundred dollars ($500).

Acts 1961, ch. 96, § 12; 1965, ch. 13, § 1; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-1612, 14-3-106; Acts 1989, ch. 591, §§ 1, 6, 103.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

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

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

Law Reviews.

Criminal Law and Procedure (Robert E. Kendrick), 14 Vand. L. Rev. 1220.

71-2-307. Charge for assistance in obtaining aid — Misdemeanor.

  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 for medical assistance under this part.
  2. A violation of this section is a Class C misdemeanor.

Acts 1961, ch. 96, § 13; T.C.A., §§ 14-1613, 14-3-107; Acts 1989, ch. 591, § 113.

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

71-2-308. Improper use of names of recipients — Penalty.

  1. It is unlawful for any person, except for purposes directly connected with the administration of this chapter, 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 medical assistance, 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 1961, ch. 96, § 14; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-1614, 14-3-108; Acts 1989, ch. 591, § 113.

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

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

Part 4
Adult Day Care

71-2-401. Part definitions.

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

  1. “Adult day care” means services provided to five (5) or more adult recipients, for more than three (3) hours per day, by a provider of such services who is not related to such adult, pursuant to an individualized plan of care designed to maintain or restore each adult's optimal capacity for self care through medical or social services;
  2. “Adult day care center” means a facility that provides adult day care services;
  3. “Commissioner” means the commissioner of human services;
  4. “Department” means the department of human services; and
  5. “Related” means, for purposes of this part, a person who is related to the adult day care services recipient as a legal or biological parent, spouse, child, sibling, aunt, uncle, nephew or niece of any degree, grandparent or grandchild of any degree, or cousin to the third degree, or a step parent, or a step grandparent of any degree.

Acts 1996, ch. 1058, § 2; 1997, ch. 449, § 1; 2017, ch. 276, § 1.

71-2-402. Licensing requirements — Exemption for limited respite care services program.

  1. No person or any entity of any kind, public or private, shall provide adult day care in this state without first obtaining a license as provided in this part.
  2. If any person or entity appears to be subject to the licensing requirements of this part and is currently licensed by any other agency of state government, the commissioner shall consult with the head of such other state agency, and, if after such consultation, the commissioner determines that the services to adults that are provided by the person or entity are adequately regulated by the licensing requirements of that other state agency, then the commissioner may determine that no licensing of such person or entity by the department pursuant to this part shall be necessary.
    1. A limited respite care services program is exempt from licensure under this part.
    2. For purposes of this subsection (c), “limited respite care services program” means a program that has as its sole purpose to provide primary caregivers of appropriate adults with relief from normal caregiving duties and responsibilities and:
      1. Is operated by a religious institution or religious organization that provides custodial care for aging adults and adults with limitations on activities of daily living:
        1. Who can function in a group setting;
        2. Who can feed and perform toilet functions without the assistance of a personal aide accompanying them; and
        3. Who attend no more than three (3) days each calendar week, no more than twelve (12) hours in any one (1) week, and no more than six (6) hours in any one (1) day;
      2. Is registered with the department pursuant to rule promulgated by the commissioner under § 71-2-412;
      3. Maintains records that include, at a minimum, dates and times of each adult's attendance;
      4. Provides care services for less than fifteen (15) adults at the same time; and
      5. Does not administer medications to adults while under the program's care.
    3. For purposes of this subsection (c), “religious institution” or “religious organization” means an entity exempt from registration as a bona fide religious institution under § 48-101-502.
    4. The department is authorized to make site visits to a program in order to ensure compliance with the terms of the exemption permitted under this subsection (c).

Acts 1996, ch. 1058, § 3; 2018, ch. 607, § 1.

71-2-403. Review of records and registries — Verification — Exclusion from access to adults.

  1. A review of the records and registries set forth in subdivisions (a)(1)-(6) shall be conducted for all new employees or for volunteers who are counted in the staff/adult participant ratio and those volunteers who have unsupervised access to the adult participants in adult day care centers, and for all new department licensing staff who regulate the adult day care licensing program and all new counselors and supervisors providing services in the adult protective services program:
    1. Criminal background history;
    2. Juvenile records history available to the Tennessee bureau of investigation (TBI);
    3. Any available juvenile court records, if determined necessary by the department;
    4. Vulnerable persons registry pursuant to title 68, chapter 11, part 10;
    5. State's sex offender registry; and
    6. Records of indicated perpetrators of abuse or neglect of children or adults maintained by the department of children's services and the department of human services.
    1. Except as otherwise provided in this subdivision (b)(1) and in subsections (c) and (e), and except where the context or intent would otherwise render the language inapplicable to the persons having access to adults in an adult day care center, the procedures, requirements and any other statutory provisions involving the requirements for disclosure forms, the methodology for obtaining and reporting the fingerprint-based criminal and available juvenile histories of a person, the exclusions of persons with a prohibited records history, the appeals processes, the department's authority to allow by rule of the department for exemptions from a verified prohibited history, permissive review procedures and any other consistent procedures, shall be the same for persons subject to this section as those provided in § 71-3-507 for persons having access to children in childcare agencies licensed by the department of human services pursuant to chapter 3, part 5 of this title; provided, that the adult day care center, and not the department, shall be responsible for all of the costs of the fingerprint background checks conducted by the TBI and the federal bureau of investigation for its employees or volunteers subject to this section.
    2. With respect to volunteers, this section applies only to those volunteers who serve as volunteers for more than thirty-six (36) hours in any one (1) calendar year.
  2. The adult day care center may require that the costs of the background check be a part of the application process by a prospective employee or volunteer, or it may pay the costs and recover the costs of the fingerprint-based background checks from the prospective employee following employment. The department shall pay all costs required for its employees subject to the required background reviews.
  3. The TBI shall make any reports of positive matches pursuant to this section in the same manner as provided for any of the processes authorized by § 71-3-507.
  4. Conviction by a criminal court or adjudication by the juvenile court for an offense or a lesser included offense involving the physical, sexual or emotional abuse, neglect, financial exploitation or misuse of funds or theft from any person, or that constitutes conviction or adjudication for an offense involving violence against any person, or conviction of an offense involving the manufacture, sale, possession or distribution of any drug, or a no-contest plea to such offenses, and any pending warrants, indictments, presentments or petitions for such offenses, or the identification of any person on the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, on the state's sex offender registry or identification as a perpetrator of abuse or neglect of children or adults in the records of the department of children's services or department of human services as provided in § 71-3-515 shall disqualify such person from employment with, or from having any access whatsoever to adults in, an adult day care center as defined by this part, and from employment with the department as regulatory staff in the department's adult day care licensing program and service staff in the adult protective services program.

Acts 1996, ch. 1058, § 4; 1997, ch. 449, § 2; 2000, ch. 981, § 69; 2009, ch. 410, § 1; 2013, ch. 101, § 1.

71-2-404. Profits — Application requirements.

If an adult day care center is operated only by a municipality or county or by a nonprofit corporation, no part of the net earnings may lawfully inure to the benefit of any private shareholder or individual. An applicant for initial licensure as an adult day care center shall file with the department, pursuant to its regulations, an application on forms furnished by the department, which shall include, but not be limited to, the following:

  1. Evidence satisfactory to the department that the applicant, its directors and officers, if the applicant is a nonprofit corporation, and the person designated to manage the day to day affairs of the proposed adult day care center are of reputable and responsible character;
  2. Evidence satisfactory to the department of the ability of the applicant to comply with this part and of rules and regulations adopted pursuant to this part by the department;
  3. Such other information as may be required by the department for the proper administration and enforcement of this part.

Acts 1996, ch. 1058, § 5.

71-2-405. Licensing procedures — Fees — Biennial licenses — Transfers of licenses.

    1. An application for a license shall be submitted to the department in such manner as the department may require.
    2. An application for a license shall be accompanied by the appropriate fee for the license and shall be received by the department not less than thirty (30) days prior to the expiration date of the existing license. Failure to timely submit a renewal application for a license shall result in expiration of the existing license.
    3. Each application submitted to the department for a new license or for the renewal of a license shall be accompanied by the fee required for the license.
    4. The commissioner may approve applications for renewal of a license as a biennial or triennial licensee if the commissioner determines that the applicant's methods of care and history of compliance clearly demonstrate that a biennial or triennial license is warranted.
    5. The fees for adult day care centers shall be:
      1. Annual Fee $ 125Biennial Fee  $ 175Triennial Fee  $ 200

        Annual Fee $ 200Biennial Fee  $ 250Triennial Fee  $ 300

        1. Centers caring for less than twenty (20) participants:
        2. Centers caring for twenty (20) to one hundred (100) participants:
        3. Centers caring for more than one hundred (100) participants:

        Annual Fee $ 400Biennial Fee  $ 450Triennial Fee  $ 500

      2. The fees shall be earmarked and dedicated to the department for the improvement of the quality of adult services in this state.
      3. If the department issues a temporary license after the application fee is paid, no further fee shall be required until the adult day care center applies again for an annual license or for renewal of the regular annual, biennial or triennial license.
      4. Any adult day care center that is operated by a public, nonprofit agency or local municipality operating under a grant from the department and that pays an administrative fee as part of the monitoring requirements of such grant shall be exempt from the licensing fee.
    1. If the department determines that the applicant for annual license does not meet all of the requirements for such license, but has presented satisfactory evidence that the facility that is proposed for the care of adults has received fire safety, environmental safety and any necessary food establishment approval, that the applicant and the personnel who will care for the adults are capable in substantially all respects to care for the adults and that the applicant has the ability and intent to comply with the licensing law and regulations, the department may issue a temporary license to the applicant.
    2. The purpose of the temporary license is to permit the license applicant to demonstrate to the department that the applicant has complied with all licensing laws and regulations applicable prior to the issuance of an initial annual license.
    3. Within six (6) months of the issuance of the temporary license, the department shall determine if the applicant has complied with all regulations governing the adult day care centers. The department may extend the period of the temporary license for an additional six (6) months if the department determines that the applicant has made substantial progress in meeting the requirements of the law and regulations for an initial annual license.
      1. If the department determines that the applicant for any license complies with all licensing laws and regulations for adult day care centers, the department shall issue an annual, biennial or triennial license. The department may issue a restricted license as provided in § 71-2-407 if circumstances warrant. If the applicant has not complied with such laws or regulations or if circumstances do not warrant the issuance of a restricted license, the application shall be denied.
      2. A biennial or triennial license may not be granted as the first license immediately following any temporary license. If a biennial or triennial license is granted, the commissioner may limit the biennial or triennial license to an annual or biennial or triennial license at the next renewal period, or may at any time reduce the biennial or triennial licensure period to a shorter period. Such reduction in the licensing period may be appealed pursuant to the procedures for appeal of license denials or revocations.
      3. The annual, biennial or triennial license shall expire, respectively, twelve (12), twenty-four (24) or thirty-six (36) months from the date of its issuance unless the licensee has made timely reapplication for renewal and the department has not determined the status of the application, in which case the existing license shall continue in effect, unless suspended, until such determination is made and until a timely filed appeal is resolved by entry of a final order regarding the license application pursuant to § 4-5-314.
    1. Each license issued or renewed pursuant to this part shall not be transferable to any other person or entity, and the sale, or transfer of the adult day care facility by any means, from the person or entity that is named as the licensee to any other person or entity shall void the existing license or any pending appeal of the denial or revocation of the existing license, and shall require an application by the transferee for an annual license and the payment of the required licensing fee. The adult day care center, the ownership or control of which has been transferred by the existing licensee, may not continue operation until a temporary or annual license is granted to the transferee. The new licensee in such circumstances may not be the transferor or any person or entity acting on behalf of the transferor.
    2. If, however, the department determines that any person or entity has transferred nominal control of a center to any persons or entities who are determined by the department to be acting on behalf of the purported transferor in order to circumvent a history of violations of the licensing law or regulations or to otherwise attempt to circumvent the licensing law or regulations or any prior licensing actions instituted by the department, the department may deny the issuance of any license to the applicant. The denial of the license may be appealed as provided in § 71-2-408.
      1. The license of any center shall not be voided nor shall any pending appeal be voided pursuant to this subsection (c) solely for the reason that the center is subject to judicial orders directing the transfer of control or management of an adult day care center or its license to any receiver, trustee, administrator or executor of an estate, or any similarly situated person or entity.
      2. If the current licensee dies, and provided that no licensing violations require the suspension, denial or revocation of the agency's license, the department may grant family members of the licensee, or administrators or executors of the licensee, a temporary license to continue operation for a period of six (6) months. At the end of such period, the department shall determine whether an annual or extended license should be granted to a new licensee as otherwise provided in this section.
      3. Nothing in this subsection (c) shall be construed to prevent the department from taking any regulatory or judicial action as may be required pursuant to the licensing laws and regulations that may be necessary to protect the adults in the care of such center.

Acts 1996, ch. 1058, § 6; 1997, ch. 449, §§ 4, 5; 2000, ch. 981, § 70.

71-2-406. Revocation of license.

  1. If, during the period of any license issued by the department, it determines that the license issued to the adult day care center should be revoked because of a failure to comply with the standards of this part or the regulations adopted pursuant to this part for the operation of such a center, the department may, after notice and an opportunity to show compliance with all lawful requirements for retention of the license, revoke such license upon sixty (60) days' notice to the licensee or other person responsible for the day to day operation of the adult day care center.
    1. A license may be summarily suspended by the department if, pursuant to § 4-5-320, the department finds in its summary suspension order that the public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, and that the order states what action must be taken by the licensee to immediately effect compliance with the licensing standards.
    2. The summary suspension order shall be reviewed by a hearing officer appointed by the commissioner within five (5) working days of the suspension order, excluding Saturdays, Sundays and legal holidays, who shall make a written determination of whether probable cause exists for continuance of the suspension order after opportunity for response and an informal hearing before such officer by the licensee.
    3. The department shall adopt such other rules as may be necessary to provide due process procedures involving the licensing of adult day care centers that are consistent with law, and to accomplish the revocation, denial and suspension of license procedures as may be required by this part.

Acts 1996, ch. 1058, § 7.

71-2-407. Restricted licenses.

  1. In determining whether to deny, revoke or suspend a license, or in granting any license, the department may choose to deny, revoke or suspend or grant only certain authority of the licensee to operate and may permit the licensee to continue operation, but may restrict or modify the licensee's authority to provide certain services or perform certain functions, including, but not limited to: transportation or food service, enrollment of adult participants at the center, the center's hours of operation, the center's use of certain parts of the center's physical facilities or any other function of the adult day care center that the department determines should be restricted or modified to protect the health, safety or welfare of the adult participants. The actions authorized by this subdivision (a) may be appealed as otherwise provided in this part for any denial or revocation.
  2. At any hearing on a denial, revocation or suspension, the administrative law judge or hearing officer may, as part of the decision regarding the status of the applicant's or licensee's license, direct that the adult day care center be allowed to operate on a probationary or conditional status, or may allow the license to remain in effect with any restrictions or conditions on the center's authority to provide care.

Acts 1996, ch. 1058, § 8; 2000, ch. 981, § 71.

71-2-408. Notification of denial — Hearings.

Immediately upon the denial of any application for issuance or renewal of a license or upon the revocation of any license, the department shall notify the applicant in writing. Not later than ten (10) days after the department mails the notice, the applicant may submit a written petition for a hearing to the department. Upon receipt by the department of the petition in proper form, such petition shall be set for hearing. The hearing shall be held within sixty (60) days of receipt of the petition. The proceedings shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, with the department having all the powers granted in the Uniform Administrative Procedures Act to ensure:

  1. Compliance with regulations adopted pursuant to this chapter;
  2. Continued demonstrated community need;
  3. Conformity of the program to individual participants' assessed and reassessed needs and interests with particular attention to visual, auditory and equipment needs;
  4. Suitability of program changes to the community and participants served; and
  5. Compliance with any requirements of law or regulations pertaining to fire and safety.

Acts 1996, ch. 1058, § 11; T.C.A., § 71-2-410; Acts 2000, ch. 981, § 72.

Compiler's Notes. Former § 71-2-408 (Acts 1996, ch. 1058, § 9; 1997, ch. 449, § 6), concerning application and administrative fees, was repealed by Acts 2000, ch. 981, § 72.

Former § 7-2-410 was transferred to this location, and reenacted without change, in 2000.

71-2-409. Inspections — Refusal — Probation.

  1. The department may conduct inspections of every licensed facility or suspected adult day care center. The evaluation method adopted by the department shall be published and distributed to each licensed adult day care center and any other interested person.
  2. Any duly authorized officer, employee or agent of the department may, upon presentation of proper identification, enter and inspect any place providing adult day care at any time, with or without advance notice, to secure compliance with, or to prevent a violation of, any provision of this part or any regulation adopted under this part. If refused entrance for inspection of a licensed or suspected adult day care center, the chancery or circuit court of the county where the licensed or suspected adult day care center is located may issue an immediate ex parte order permitting the department's inspection upon a showing of probable cause and the court may direct any law enforcement officer to aid the department in executing such order and inspection. Refusal to obey such order may be punished as contempt.
    1. If, during the licensing period, the department determines that an adult day care center is not in compliance with the laws or regulations governing its operation, the department may place the adult day care center on probation for a definite period of not less than thirty (30) days nor more than sixty (60) days as determined by the department, and the department shall require the posting by the center of the notice of probation. The department shall provide the center a written basis describing the violation of the licensing rules that support the basis for the probationary status.
      1. If placed on probation, the center shall immediately post a copy of the probation notice, together with a list provided by the department of the violations that were the basis for the probation, in a conspicuous place as directed by the department and with the center's license, and the center shall immediately notify in writing the responsible adult day care participant and the responsible relative or caretaker of each of the adults in its care of the center's status, the basis for the probation and of the center's right to an informal review of the probationary status.
      2. If the center requests an informal review within two (2) business days of the imposition of probation, either verbally or in writing to the department's licensing staff that imposed the probation, the department shall informally review the probationary status by a departmental staff person who was not involved in the decision to impose the probation. The center may submit any written or oral statements as argument to the departmental staff person within five (5) business days of the imposition of the probation. Written and oral statements may be received by any available electronic means. The departmental staff person shall render a decision in writing upholding, modifying or lifting the probationary status within ten (10) business days of the imposition of the probation.
    2. If the departmental staff person does not lift the probation under subdivision (c)(2)(B), the center may also appeal such action in writing to the commissioner within five (5) business days of the receipt of the notice of the departmental staff person's decision regarding the center's probationary status as determined in subdivision (c)(2)(B). If timely appealed, the department shall conduct an administrative hearing pursuant to the contested case provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, concerning the department's action within fifteen (15) business days of receipt of the appeal and shall render a decision in writing within seven (7) business days following conclusion of the hearing. The hearing officer may uphold, modify or lift the probation.
    3. This subsection (c) shall be discretionary with the department, and shall not be a prerequisite to any licensing action, to suspend, deny or revoke a license of an adult day care center.
  3. The department shall make available to all interested persons a list of all licensed adult day care centers and the services that each facility provides. Reports on the results of each inspection, evaluation or consultation performed pursuant to this section shall be kept on file in the department, and all inspection reports, consultation reports, lists of deficiencies and plans of correction shall be open to public inspection during regular business hours.

Acts 1996, ch. 1058, § 12; T.C.A., § 71-2-411; Acts 2000, ch. 981, § 72; 2001, ch. 453, § 23.

Compiler's Notes. Former § 71-2-409 (Acts 1996, ch. 1058, § 10), concerning the transfer and renewal of a license, was repealed by Acts 2000, ch. 981, § 72.

Former § 71-2-411 was transferred with amendments to subsection (c) to this location in 2000.

71-2-410. Governing boards.

The department shall require each adult day care center operated by a municipality or county or by a nonprofit corporation and caring for ten (10) or more persons to have a governing board. The governing board of an adult day care center, having final authority and responsibility for conduct of the center, shall be comprised of four (4) or more persons. The governing board may include members who may be recipients of the services of the adult day care center, relatives of such recipients, or representatives of community organizations with particular interest in programs for the elderly. No member of the governing board, nor any member of the immediate family of a member of the governing board, shall have any direct or indirect interest in any contract for supplying services to the adult day care center.

Acts 1996, ch. 1058, § 13; 1997, ch. 449, § 3; T.C.A. § 71-2-412; Acts 2000, ch. 981, § 72.

Compiler's Notes. Former § 71-2-410 was transferred to § 71-2-408 in 2000.

Former § 71-2-412 was transferred to this location, and reenacted without change, in 2000.

71-2-411. Compliance.

Each adult day care center that files an affidavit with the department as of January 1, 1997, certifying that such facility is in existence and in operation shall have two (2) years to fully comply with this part.

Acts 1996, ch. 1058, § 14; T.C.A., § 71-2-413; Acts 2000, ch. 981, § 72.

Compiler's Notes. Former § 71-2-411 was transferred to § 71-2-409 in 2000.

Former § 71-2-413 was transferred to this location, and reenacted without change, in 2000.

71-2-412. Rules and regulations.

  1. The commissioner is authorized to promulgate rules and regulations to effectuate the purposes of this part. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. All rules and regulations promulgated to effectuate the purposes of this part shall also be reviewed by the health and welfare committee of the senate and the health committee of the house of representatives.
  3. Notwithstanding any law to the contrary, the commissioner shall have the authority to amend the rules for licensure of adult day care by entities contracted to provide medicaid-reimbursed home- and community-based services pursuant to chapter 5, part 14 of this title, as needed to be consistent with the home- and community-based settings final rule, published in the Federal Register at 79 FR 2947 (January 16, 2014), including the authority to differentiate licensure requirements for any entity contracted to provide medicaid-reimbursed home- and community-based services pursuant to chapter 5, part 14 of this title, in order to allow the facility or entity to comply with the federal rule and continue to receive medicaid reimbursement for home- and community-based services. Rules adopted by the department under this subsection (c) shall be developed with input from stakeholders and promulgated in accordance with the Uniform Administrative Procedures Act; provided, however, that the department shall not promulgate emergency rules under this subsection (c) as defined in § 4-5-208. Licensure survey and enforcement shall be conducted in a manner consistent with any rule issued under this subsection (c).

Acts 1996, ch. 1058, § 15; T.C.A., § 71-2-414; Acts 2000, ch. 981, § 72; 2013, ch. 236, § 59; 2015, ch. 153, § 3.

Compiler's Notes. Former § 71-2-412 was transferred to § 71-2-410 in 2000.

Former § 71-2-414 was transferred to this location, and reenacted without change, in 2000.

71-2-413. Advisory committee.

There is hereby established an advisory committee consisting of not less than seven (7) members appointed by the commissioner. The advisory committee shall assist the commissioner in implementing this part. The advisory committee shall reflect the diversity of this state with respect to urban and rural areas, the three (3) grand divisions and the various ethnic groups of this state.

Acts 1996, ch. 1058, § 16; T.C.A., § 71-2-415; Acts 2000, ch. 981, § 72.

Compiler's Notes. Former § 71-2-413 was transferred to § 71-2-411 in 2000.

Former § 71-2-415 was transferred to this location, and reenacted without change, in 2000.

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

71-2-414. Implementation.

It is the intent of the general assembly that this part, with the exception of the employment of one (1) employee to assist in the implementation of this part, be implemented within the existing resources of the department.

Acts 1996, ch. 1058, § 20; T.C.A., § 71-2-416; Acts 2000, ch. 981, § 72.

Compiler's Notes. Former § 71-2-414 was transferred to § 71-2-412 in 2000.

Former § 71-2-416 was transferred to this location, and reenacted without change, in 2000.

71-2-415. Construction.

This part is declared to be remedial in nature and this part shall be liberally construed to effectuate its purposes.

Acts 1996, ch. 1058, § 19; T.C.A. § 71-2-417; Acts 2000, ch. 981, § 72.

Compiler's Notes. Former § 71-2-415 was transferred to § 71-2-413 in 2000.

Former § 71-2-417 was transferred to this location, and reenacted without change, in 2000.

71-2-416. Adult day care and senior centers as model programs.

  1. The department of finance and administration shall designate up to five (5) publicly or privately supported adult day care centers or senior centers within the state as model programs worthy of emulation with respect to one (1) or more of the following activities:
    1. Comprehensive health education programs;
    2. Nutrition assessment and screening;
    3. Nutrition counseling; or
    4. Health or nutrition referral services.
  2. The selected model programs shall be programs that are designed to enhance the dignity and wellness of senior citizens and to encourage the independence and involvement of senior citizens in the community. The selected model programs must also be designed to achieve a tangible impact in areas that are traditionally socially and economically underserved.
  3. Prior to designating the model programs, nominations shall be solicited from across the state. In selecting model programs, due consideration shall be given to the level of community acceptance and support for the programs and to the techniques by which the acceptance and support have been achieved.
  4. Subject to the availability of funding for such purposes as contained within the fiscal year 2007-08 budget of the department of finance and administration, state grants shall be awarded to the model programs selected pursuant to this section. The dollar amount of each grant awarded shall be determined by the commissioner of finance and administration. Payment of any grant to any model program shall be conditional upon the willingness of the chief administrative officer of the program to provide informational and consultative assistance to those agencies of state or local government that may desire to emulate, in whole or in part, the model program. Any grant so received by a publicly supported agency shall be in addition to all other public funds that may be otherwise appropriated to the agency and it is not intended to supplant any other funding resource. Any funds not paid to a model program by June 30, 2008, shall revert to the general fund.
  5. The commissioner of finance and administration shall undertake appropriate activities to publicize the department of finance and administration's activities in implementing this section and to publicize the activities and achievements of the model programs.

Acts 2007, ch. 573, § 1.

Compiler's Notes. Subsection (d) provides that state grants shall be awarded to the model programs selected pursuant to this section subject to the availability of funding being provided in the general appropriations act. Funding was provided by Acts 2007, ch. 603, § 12, item 7.

Former § 71-2-416, concerning implementation, was transferred to § 71-2-414 in 2000.

Part 5
Prescription Drug Programs

71-2-501. Legislative intent — Enrollment in prescription drug discount card program and transitional assistance program benefits — Automatic enrollment.

  1. It is the intent of the legislature that the state of Tennessee, through the bureau of TennCare, be designated as the authorized representative for elderly and disabled enrollees, who are eligible medicare beneficiaries, but have lost or may lose eligibility for TennCare benefits due to changes in the TennCare program, for the purpose of facilitating and effectuating enrollment in a medicare-approved prescription drug discount card program or programs, and for applying for transitional assistance program medicare drug benefits, pursuant to 42 U.S.C. § 1395 et seq. As the eligible enrollee's legally authorized representative for this purpose, TennCare may designate or select one (1) or more programs as preferred plans, for purposes of automatically enrolling such medicare beneficiaries, to expedite access to prescription drug discounts and secure related transitional assistance payments for those medicare enrollees eligible for such assistance.
  2. To expedite and assure enrollment of individuals into a program, TennCare may enroll a medicare-eligible beneficiary in a program or programs, and apply for available transitional assistance on the enrollees' behalf, in the absence of any action or application of the individual beneficiary seeking such enrollment or assistance; provided, that each individual so enrolled shall be informed of the following:
    1. In advance of enrollment in a program, the state's intent to enroll the individual in a program, unless the individual informs TennCare, within ten (10) days of receipt of such notice, that the individual does not want to be so enrolled;
    2. The procedures by which the individual may disenroll from the preferred sponsor's program;
    3. The existence of alternative medicare-approved prescription drug discount card sponsors in the region in which the individual resides; and
    4. The means through which the individual may change the individual's enrollment to an alternative sponsor or may obtain assistance in doing so.
  3. TennCare shall determine the procedures for automatic enrollment in a preferred sponsor's program and application for transitional assistance, where applicable.

Acts 2005, ch. 474, § 4.

71-2-502. Facilitation of automatic enrollment.

In facilitating automatic enrollment, TennCare may do one (1) or all of the following:

  1. Enter into a contract that has been competitively procured, pursuant to title 12, with one (1) or more program sponsors, to facilitate automatic enrollment, which contracts shall be subject to comment by the fiscal review committee, pursuant to the procedures found under title 3, chapter 7;
  2. Identify those medicare eligible enrollees who meet the federal income criteria for transitional assistance;
  3. Preliminarily enroll the beneficiary into a preferred sponsor's program;
  4. Apply for medicare transitional assistance program benefits through the medicare transitional assistance program on behalf of an eligible enrollee; and
  5. Preliminarily enroll beneficiaries into a preferred program, with an opt-out provision for the individual.

Acts 2005, ch. 474, § 4.

71-2-503. Entitlement not created by program.

The program established in this part is not, nor does it in any way create, an entitlement.

Acts 2005, ch. 474, § 4.

Chapter 3
Programs and Services for Children

Part 1
Temporary 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.
    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.
      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.
  2. 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.
    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.
    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).
    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).
  3. 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.
    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.
      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:
  4. The children in the family attend school;
  5. 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.).
    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.
      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.
  6. 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).
    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.
      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.
  6. 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].
    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.
      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.
        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.
      2. 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.
      3. 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.

  4. 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. 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.
      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.
  1. 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.
    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.
  2. 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.
    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).

NOTES TO DECISIONS

1. Jurisdiction.

Tennessee court found that it had jurisdiction over a father living in Colorado because the mother was receiving public assistance in Tennessee at the time that the mother filed a petition for custody and requested the court to set support. Thus, Tennessee had a vested interest in assisting the mother to receive child support from the father because, upon receipt of public assistance, the mother was deemed to have assigned the mother's rights to recover child support to the State of Tennessee. In re Conner F., — S.W.3d —, 2017 Tenn. App. LEXIS 505 (Tenn. Ct. App. July 26, 2017).

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.
    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.
    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.
    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.
  2. 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.
  3. 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.
    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.
  4. 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]

Part 3
Custody and Care of Dependent Children

71-3-301. County legislative body binding out as apprentices.

The county legislative body may bind out as apprentices suitable orphan children, or the children of any person unable to provide for their support, until the age of eighteen (18) years.

Code 1858, § 1622 (deriv. Acts 1762, ch. 5, § 19; 1825, ch. 46, § 1); Shan., § 2706; mod. Code 1932, § 4822; impl. am. Acts 1971, ch. 162, § 3; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), §§ 14-1501, 14-9-101.

NOTES TO DECISIONS

1. Requisite Procedure.

An order of court is not conclusive upon orphan or his mother when entered without notice to either, and the court having determined none of the facts necessary to make its action proper. Norris v. Stephens, 68 Tenn. 433, 1877 Tenn. LEXIS 41 (1877).

71-3-302. Illegitimate children as apprentices.

The county legislative body may bind out illegitimate children in the same way as orphans, upon its satisfactorily appearing that the mother of such illegitimate children disregards their moral and mental culture, and either keeps or lives in a house of ill fame, and upon its further appearing that the condition of such children would be thereby bettered, although the mother may provide ordinary food and clothing for the mother's children.

Code 1858, § 1625; Shan., § 2708; Code 1932, § 4918; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), §§ 14-1502, 14-9-102.

Law Reviews.

Child Support Enforcement Act of 1985 (Sarah Elizabeth Jones), 22 No. 1 Tenn. B.J. 19 (1986).

NOTES TO DECISIONS

1. Legitimized Bastard — Right to Custody.

The mother of an illegitimate child, if able to support it, is entitled to its custody, and the county court [now county legislative body] has no power, without her consent or against her will, to place it under the control of the reputed father, after it has been upon his application, legitimated, and made his heir, except where it is palpably against the interest of the child to remain in its mother's custody. Lawson v. Scott, 9 Tenn. 92, 1825 Tenn. LEXIS 12 (1825); Baskette v. Streight, 106 Tenn. 549, 62 S.W. 142, 1900 Tenn. LEXIS 192 (1900).

71-3-303. Reimbursement for county support of illegitimates.

For the purpose of indemnifying the county against charges for the maintenance of illegitimate children, the father, if the father can be ascertained, is liable to proceedings as provided in title 36, chapter 2.

Code 1858, § 1623; Shan., § 2707; Code 1932, § 4917; T.C.A. (orig. ed.), §§ 14-1503, 14-9-103.

71-3-304. Procedure for taking child from institution.

  1. When any child has been placed in any institution organized for the purpose of maintaining, supporting, and educating orphans or destitute children, with the consent of its parents, guardian, or custodian, no parent, guardian, or other person shall have the right to take the child from the institution against the consent of the institution or those in charge of the institution, except by habeas corpus proceedings, in which it shall appear that it is in the best interest of the child to take it from the institution.
  2. This section shall apply to all institutions, whether corporations or mere voluntary societies or associations.
  3. Any person taking or attempting to take any child from any institution, in violation of this section, commits a Class A misdemeanor, and shall be fined or imprisoned or both, in the discretion of the court.

Acts 1911, ch. 2, §§ 1-3; Shan., §§ 4433a81-4433a83; Code 1932, §§ 4709-4711; T.C.A. (orig. ed.), §§ 14-1504; Acts 1989, ch. 591, §§ 1, 6; T.C.A., § 14-9-104.

Code Commission Notes.

The misdemeanor in this section has been designated as a Class A misdemeanor by authority of § 40-35-110, which provides that an offense designated a misdemeanor without specification as to category is a Class A misdemeanor. See also § 39-11-114.

Cross-References. Habeas corpus, title 29, ch. 21.

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

NOTES TO DECISIONS

1. Habeas Corpus or Adoption Procedures.

Where mother of illegitimate child prior to marriage with father and legitimation of child surrendered and released child to child-placing agency the consent was irrevocable after 30-day period, hence petition for writ of habeas corpus by parents after 30-day period was properly denied by chancellor, but petition could be amended at discretion of chancellor so as to pray for adoption of child at which time the chancellor could consider the best interests of the child in determining whether child should be placed with parents or placed with others. State ex rel. “A” v. A Licensed or Chartered Child-Placing Agency, 194 Tenn. 400, 250 S.W.2d 776, 1952 Tenn. LEXIS 394 (1952).

Part 4
[Reserved]

Part 5
Child Care Agencies

71-3-501. Part definitions.

As used in this part, unless otherwise exempted pursuant to § 71-3-503, and unless the context otherwise requires:

  1. “Care giver,” “care givers,” “care provider” or “care providers,” means the person or persons or entity or entities directly responsible for providing for the supervision, protection, and basic needs of the child;
  2. “Child” or “children” means a person or persons under eighteen (18) years of age;
  3. “Child care” means the provision of supervision and protection, and, at a minimum, meeting the basic needs, of a child or children for less than twenty-four (24) hours a day;
  4. “Child care agency” or “agency” means and only where the context requires in any other provision of law, a place or facility, regardless of whether it is currently licensed, that is operated as a family child care home, a group child care home, a child care center, or a drop-in center, as those terms are defined in this part, or that provides child care for five (5) or more children who are not related to the primary caregiver for three (3) or more hours per day;
  5. “Child care center” means any place or facility operated by any person or entity that provides child care for three (3) or more hours per day for at least thirteen (13) children who are not related to the primary caregiver; provided, that a child care agency shall not be classified as a “child care center” that operates as a “group child care home” and keeps three (3) additional school-age children as permitted in subdivision (10); provided, further, that all children, related or unrelated shall be counted in the adult-to-child supervision ratios and group sizes applicable to child care centers; with the exception, that if the child care center is operated in the occupied residence of the primary caregiver, children nine (9) years of age or older who are related to the primary caregiver will not be counted in determining the adult-to-child supervision ratios or group sizes applicable to child care centers if such children are provided a separate space from that occupied by the child care center. The department may permit children in the separate space to interact with the children in the licensed child care center in such manner as it may determine is appropriate;
  6. “Commissioner” means the chief administrative officer in charge of the department of human services;
  7. “Department” means the department of human services;
  8. “Drop-in center” means a place or facility operated by any person or entity providing child care, at the same time, for fifteen (15) or more children, who are not related to the primary caregiver, for short periods of time, not to exceed fourteen (14) hours per week and for not more than seven (7) hours per day for any individual child during regular working hours, Monday through Friday six o'clock a.m. (6:00 a.m.) to six o'clock p.m. (6:00 p.m.); provided, however, that a drop-in center may provide such child care during evenings after six o'clock p.m. (6:00 p.m.) and weekends, Friday, six o'clock p.m (6:00 p.m.) through Sunday, ten o'clock p.m. (10:00 p.m.), so long as the drop-in center provides no more than a total of twenty (20) hours per week, exclusive of snow days, defined as days when the school of the affected child is closed; provided, further, that drop-in centers may provide such care during snow days; provided, however, that, notwithstanding any other requirements of this part, training requirements for the staff of this class of child care agency shall be limited to basic health and safety precautions and the detection and reporting of child abuse and neglect for children in care; provided, further, that, notwithstanding any other provision of this chapter to the contrary, drop-in centers that provide child care for no more than two (2) hours per day with a maximum of ten (10) hours per week without compensation, while the parent or other custodian is engaged in short-term activities on the premises of the organization, shall register as providing casual care and shall not be deemed to be a drop-in center or regulated as a drop-in center;
  9. “Family child care home” means any place or facility that is operated by any person or entity that provides child care for three (3) or more hours per day for at least five (5) children but not more than seven (7) children who are not related to the primary caregiver; provided, that the maximum number of children present in the family child care home, including related children of the primary caregiver shall not exceed twelve (12), with the exception that, if the family child care home is operated in the occupied residence of the primary caregiver, children related to the primary caregiver nine (9) years of age or older will not be counted in determining the maximum number of children permitted to be present in a “family child care home” if those children are provided a separate space from that occupied by the family child care home. The department may permit children in the separate space to interact with the children in the licensed family child care home in such manner as it may determine is appropriate;
  10. “Group child care home” means any place or facility operated by any person or entity that provides child care for three (3) or more hours per day for at least eight (8) children who are not related to the primary caregiver; provided, however, that the maximum number of children present in a group child care home, including those related to the primary caregiver, shall not exceed twelve (12) children, with the exception that, if the group child care home is operated in the occupied residence of the primary caregiver, children related to the primary caregiver nine (9) years of age or older will not be counted in determining the maximum number of children permitted to be present in a group child care home, if those children are provided a separate space from that occupied by the group child care home; and, provided, further, that up to three (3) additional school age children, related or unrelated to the primary caregiver, may be received for child care before and after school, on school holidays, on school snow days and during summer vacation. The department may permit children in the separate space to interact with the children in the licensed group child care home in such manner as it may determine is appropriate; and
  11. “Related” means the children, step-children, grandchildren, step-grandchildren, siblings of the whole or half-blood, step-siblings, nieces, nephews or foster children of the primary caregiver.

Acts 2000, ch. 981, § 2; 2001, ch. 453, §§ 1, 2; 2005, ch. 93, § 1; 2005, ch. 151, § 1; 2015, ch. 271, § 1.

Compiler's Notes. Acts 1992, ch. 1030, § 2 provided:

“The general assembly hereby takes official notice of the fact that alternatives currently available to families with medically and/or technology-dependent children are difficult, if not intolerable. Too often, limited alternatives dictate that medically and/or technology-dependent children remain hospitalized for extended periods at great financial and emotional cost to parents and children. Too often, limited alternatives dictate that such children be maintained at home using extensive, private duty nursing services at great financial as well as emotional cost to parents and children who endure the long-term effects of isolation. Too often, limited alternatives dictate that single working parents, and families who must rely on two (2) incomes for economic survival, permanently leave their medically and/or technology-dependent children in institutional settings and suffer grave financial and emotional consequences. Prescribed child care centers offer the potential of providing a much needed alternative for these families. While assisting in the containment of health care costs, prescribed child care centers also offer medically and/or technology-dependent children and their families a comprehensive, developmentally appropriate nonresidential environment of coordinated medical, developmental, and parental training services. Through this enactment, it is the intent of the general assembly to encourage and support the increased availability and affordability of prescribed child care centers of quality.”

Former § 71-3-501 (Acts 1953, ch. 228, § 1 (Williams, § 4765.138); Acts 1959, ch. 167, §§ 1-3; 1965, ch. 333, § 1; 1971, ch. 214, § 1; 1971, ch. 303, § 1; impl. am. Acts 1975, ch. 219, § 1 (a, b); Acts 1978, ch. 729, §§ 1, 2; T.C.A. (orig. ed.), § 14-1401; Acts 1983, ch. 322, §§ 1, 2; T.C.A., § 14-10-101; Acts 1987, ch. 283, §§ 1, 2; 1987, ch. 297, §§ 1, 2; 1992, ch. 1030, §§ 3, 4; 1995, ch. 532, § 18; 1996, ch. 1079, §§ 158-162), concerning definitions, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see this section.

Cross-References. Building regulations, enforcement, § 68-120-106.

Child care facilities loan guarantee program, title 4, ch. 37.

Child sexual abuse, title 37, ch. 1, part 6.

Smoke detectors required in foster care dwellings, § 37-2-412.

Law Reviews.

State Regulation of Child Adoptions, 17 Tenn. L. Rev. 937.

NOTES TO DECISIONS

1. Constitutionality.

Where general assembly empowers department of public welfare [now department of human services] to issue license to child-caring institutions upon six statutory criteria, with administrative hearing and judicial review afforded, the act merely delegates ministerial functions and is not an unconstitutional delegation of legislative power. Department of Public Welfare v. National Help "U" Ass'n, 197 Tenn. 8, 270 S.W.2d 337, 1954 Tenn. LEXIS 444 (1954).

71-3-502. Violations of licensing regulations — Probation, suspension, denial and revocation of licenses — Appeal procedures — Personal safety curriculum.

    1. All persons or entities operating a child care agency as defined in this part, unless exempt as provided in § 71-3-503, must be licensed by the department as a child care agency.
      1. The department has the authority to issue regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 2, for the licensing of any persons or entities subject to any provisions of this part and for enforcement of appropriate standards for the health, safety and welfare of children in their care.
      2. To the extent they are not inconsistent with the statutory provisions of this part, the regulations of the department that are in effect July 1, 2000, shall remain in force and effect until modified by regulatory action of the department.
    2. The department's regulations of child care agencies shall be developed based upon consideration of the criteria in subdivisions (a)(3)(A)-(F). In determining whether to initially grant a license or whether to take any licensing action involving a licensed child care agency, the statutory criteria in subdivisions (a)(3)(A)-(F) may be cited and considered by the department and by the child care agency board of review as the basis for such action in addition to the regulations:
      1. The safety, welfare and best interests of the children in the care of the agency;
      2. The capability, training and character of the persons providing or supervising the care of the children;
      3. Evidence that the expected performance of the caregivers, supervisors or management of the child care agency seeking initial licensure or renewal of licensure will be such as to protect children in care from injury, harm or the threat of injury or harm; or, during licensure, that the actual performance of any of the duties of caregivers, supervisors or management of a licensed child care agency demonstrates or has demonstrated a level of judgment that a reasonable person would exercise or would have exercised, under existing or under reasonably foreseeable circumstances, that would prevent or would have prevented injury, harm, or the threat of injury or harm, to any child in care;
      4. The quality of the methods of care and instruction provided for the children;
      5. The suitability of the facilities provided for the care of the children; and
      6. The adequacy of the methods of administration and the management of the child care agency, the agency's personnel policies, and the financing of the agency.
    3. The department shall promulgate regulations that address the following areas:
      1. Training for directors and care givers as follows:
        1. Preemployment training for directors, including, but not limited to, training in interviewing and evaluating care givers for service in an agency;
        2. Training for caregivers that includes, but is not limited to, preservice orientation as well as additional training within the first six (6) months of employment as provided by rule; and
        3. The department of human services shall promulgate rules that consider the prior education and experience of a registered nurse who is seeking approval under the department's rules as a director of a child care agency that operates as part of a facility licensed under title 68 as a nursing home;
      2. Liability and accident insurance coverage, including minimum amounts of coverage based upon insurance industry standards, for both facilities and vehicles owned, leased or contracted for by the child care agency; provided, that this requirement shall not apply to a child care agency that is under the direct management of a self-insured administrative department of the state, a county, a municipality or any combination of those three (3); and
        1. Education of the parents of children in day care regarding the benefits of immunizing their children against influenza.
        2. The department of human services shall work to increase immunization awareness and participation among parents of children in child care agencies by working with the department of health in publishing on the department's website information about the benefits of annual immunization against influenza for children six (6) months of age to five (5) years of age;
        3. The department shall work with child care agencies and providers to ensure that the information is annually distributed to parents in August or September.
    4. The department shall enact these regulations by emergency rule to be effective July 1, 2000; provided, however, permanent rules shall be promulgated pursuant to the Uniform Administrative Procedures Act.
      1. The department of human services licensure rules for child care centers serving preschool children contained in Tenn. Comp. R. & Regs. 1240-4-3-.07(4)(e), and licensure rules for child care centers serving school-age children contained in Tenn. Comp. R. & Regs. 1240-4-6-.07(4)(f), and in any other portions of those rules, that were part of the amendments filed as permanent rules for each rule on September 29, 2000, enacted on December 13, 2000, and effective on July 1, 2001, and that define or reference the age groups for “infants” as being comprised of children who are six (6) weeks to twelve (12) months of age, and the age groups for “toddlers” as being comprised of children who are thirteen (13) months to twenty-three (23) months of age, shall expire on July 19, 2001.
      2. “Infant” and “toddler” categories of children in the care of a child care agency licensed pursuant to this part shall be defined as follows, until otherwise modified by rule of the department:
        1. “Infants” shall be comprised of children six (6) weeks to fifteen (15) months of age; and
        2. “Toddlers” shall be comprised of children twelve (12) months to thirty (30) months of age.
      3. All other department rules not specifically designated to expire by subdivision (a)(6)(A), or affected by the definitions in subdivision (a)(6)(B), including, but not limited to, the definitions or references to the age range for the “2 year old” category in the care of a child care agency, descriptions or definitions of any other age groups of children, adult to child ratios, and, except as modified by ch. 436 of the Public Acts of 2001, and the effective dates of the rules, shall remain in full force and effect or shall become effective in accordance with the department's regulations.
      4. The department of human services shall have authority to immediately implement emergency rules effective on July 19, 2001, or as soon thereafter as possible, to define the age groups for “infants” and “toddlers” as defined by subdivision (a)(6)(B) and to make any conforming rule changes in the text or in the adult to child supervision charts contained in Tenn. Comp. R. & Regs. 1240-4-3 or 1240-4-6 or in any other rule of the department that may be necessary to implement the changes made by this section relative to the age range definition for the “infant” and “toddler” groups. Permanent rules shall be implemented as otherwise provided by the Uniform Administrative Procedures Act.
    1. The department shall assist applicants or licensees in meeting the child care standards of the department unless the circumstances demonstrate that further assistance is not compatible with the continued safety, health or welfare of the children in the agency's care and that regulatory action affecting the agency's license is warranted. All costs and expenses arising from or related to meeting the child care standards of the department shall be borne entirely by the applicant or licensee; provided, the department may, in its discretion, provide from available funds for technical assistance to child care agencies, and the training of child care givers.
    2. If a licensee is denied the renewal of a license, if a license is revoked, or if any applicant for a license cannot meet the standards, then the department shall offer reasonable assistance to the parent, guardian or custodian of the child in planning for the placement of such children in licensed child care agencies or other suitable care.
  1. Application for a license to operate a child care agency shall be made in writing to the department in such manner as the department determines and shall be accompanied by the appropriate fee set forth in the fee schedule in subsection (g).
    1. A person or entity that does not have an existing license may apply for either a restricted or unrestricted temporary license. The purpose of the temporary license is to permit the license applicant to begin the operation of a child care agency after meeting certain minimum requirements and to demonstrate during the temporary licensing period that it has the ability to attain and maintain compliance with all licensing laws and regulations.
    2. An applicant shall receive a temporary license upon the presentation of satisfactory evidence that:
      1. The facility that is proposed for the care of children has received fire safety and environmental safety approval, and that, after appropriate inspection, the department has determined that the site does not endanger the safety or welfare of children;
      2. The applicant and the personnel who will care for the children are capable in all substantial respects of caring for the children;
      3. The applicant has the ability to attain and maintain compliance with the licensing laws and regulations, both during the temporary and the annual license period;
      4. The applicant, owner, director or an employee of the agency has not previously been associated in an ownership or management capacity with any child care agency that has been cited by the department for violations of this part or the department's regulations, including the agency for which the application is pending, unless the department determines that a reasonable basis exists to conclude that such individual is otherwise qualified to provide child care; and
      5. The criteria in subdivision (a)(3) support the issuance of a restricted or unrestricted license.
    3. If the department determines that any of the criteria in subdivision (d)(2) has not been, or cannot be met, then it may deny the application for a temporary license; or, if the department determines that the conditions of the applicant's facility, its methods of care or other circumstances warrant, it may issue a restricted temporary license that permits operation of a child care agency, but limits the agency's authority in one (1) or more areas of operation.
      1. Within one hundred twenty (120) days of the issuance of the temporary license, the department shall determine whether an annual or restricted annual license shall be issued to the applicant. If the department determines that the applicant has fully complied with all provisions of subdivision (d)(2) and with all other laws and regulations governing the specific classification of child care agency for which the application was made, and that the child care agency has demonstrated the ability to maintain compliance with all licensing regulations during the annual license period, and that it has a reasonable likelihood of maintaining annual licensure, the department shall issue an annual license; or, if the department determines that the conditions of the applicant's facility, its methods of care or other circumstances warrant, it may issue a restricted annual license that permits operation of a child care agency, but limits the agency's authority in one (1) or more areas of operation.
      2. If the applicant has not satisfactorily demonstrated compliance with the requirements for licensing as determined by the department, the annual license may be denied by the department.
    4. The licensee shall post the license in a clearly visible location as determined by the department so that parents or other persons visiting the agency can readily view the license and all the information on the license.
        1. The license shall describe the ownership of the child care agency, the person who is charged with the day-to-day management of the child care agency, and, if the agency is owned by a person other than the director, or if the agency is under the ownership or direction or control of any person or entity who is not also the on-site director or manager of the agency, the license shall also state the corporate or other name of the controlling person or entity, its address and telephone number where the parents, guardians or custodians may have contact regarding the agency's operations.
        2. If the child care agency is operated by a public or private nonprofit entity and is subject to the control or direction of a board of directors or other oversight authority, the license shall list the name, address and telephone number of the chair of the board or other executive head of such controlling body.
      1. In order for a child care agency to offer before or after-school services under this part, the department must issue a license bearing a notation that the agency is authorized to provide before or after-school care services. An agency may not offer such services unless its license bears such notation.
      1. In granting any license, the department may limit the total number of children who may be enrolled in the agency regardless of the agency's physical capacity or the size of its staff.
      2. Adult/child ratios and group sizes in group child care homes and child care centers may exceed requirements set by rule of the department of human services by up to ten percent (10%), rounded to the nearest whole number, for no more frequently than three (3) days per week; provided, however, infant and toddler groups may never exceed the required ratios and group sizes. The department may terminate the variance from the rule in individual cases under the provisions for issuance of a restricted license pursuant to § 71-3-502.
        1. The department may promulgate rules, under the Uniform Administrative Procedure Act, to provide for the amounts of liability coverage for any personal vehicles that are not owned, operated by, or contracted by the child care agency for the transportation of children enrolled in the agency, but which are utilized by parents, staff or volunteers only for occasional field trips for children enrolled at the agency.
        2. Such rules must provide that any vehicles not owned, operated by, or contracted for by the agency for any transportation of children enrolled at the agency, and which are utilized only as described in subdivision (d)(7)(C)(i) for field trips must provide evidence of currently effective liability coverage for such nonagency vehicles in amounts sufficient to provide adequate coverage for children being transported by such vehicles.
        3. The department shall also promulgate rules providing that, on and after May 1, 2005, all vehicles used by or on behalf of a child care center to provide transportation of children, that are designed to transport six (6) or more passengers, shall be equipped with a child safety monitoring device that shall prompt staff to inspect the vehicle for children before an alarm sounds. In order to facilitate the affordability of such devices for centers, the department is authorized to establish a grant program to subsidize a portion or all of the cost of such devices for centers; provided, however, that the department may only use private donations that it receives for such purpose to fund the grants. Only devices approved by the department are authorized for use on such a vehicle. This subdivision (d)(7)(C)(iii) shall not apply:
          1. When all children in a vehicle are five (5) years of age and in kindergarten, or older than five (5) years of age, except that if any one (1) of such children is developmentally or physically disabled or nonambulatory then this subdivision (d)(7)(C)(iii) shall apply; or
          2. To vehicles used exclusively for the provision of occasional field trips.
        4. Vehicles used by a licensed child care agency for the transportation of children shall be subject only to color and marking requirements promulgated by the department and shall be exempt from any other such requirements that may be set forth in state law or local ordinance. Color and marking requirements shall be issued by the department, in consultation with the department of safety, as deemed appropriate for the safe operation, proper identification, or registration of the vehicle.
        5. Such rules shall prohibit a newly hired employee or existing employee who is full-time or part-time, or, as defined by the department, a substitute employee of a child care agency, or a contractor or other persons or entities providing any form of transportation services for compensation to a child care agency, from engaging in any form of driving services involving children in a child care agency until the employee or substitute employee has undergone a drug test and the results are negative for illegal drug use. The rules shall provide exceptions for emergency transportation requirements in limited circumstances, as deemed appropriate by the department.
    5. If the department fails to issue or deny an annual license within one hundred twenty (120) days of the granting of the temporary license, the temporary license shall continue in effect, unless suspended, as provided in § 71-3-509, until such determination is made. If an annual license is denied following the issuance of a temporary license, and if a timely appeal is made of the denial of the annual license, the temporary license shall remain in effect, unless suspended, until the board of review renders a decision regarding the denial of the annual license.
    6. If a temporary or annual license is denied, or an annual license is restricted, the applicant may appeal the denial or restriction as provided in § 71-3-509.
    1. Except as provided in this subsection (e), no license for a child care agency shall be transferable, and the transfer by sale or lease, or in any other manner, of the operation of the agency to any other person or entity shall void the existing license immediately and any pending appeal involving the status of the license, and the agency shall be required to close immediately. If the transferee has made application for, and is granted, a temporary license, the agency may continue operation under the direction of the new licensee. The new licensee in such circumstances may not be the transferor or any person or entity acting on behalf of the transferor.
    2. If the department determines that any person or entity has transferred nominal control of an agency to any persons or entities who are determined by the department to be acting on behalf of the purported transferor in order to circumvent a history of violations of the licensing law or regulations or to otherwise attempt to circumvent the licensing law or regulations or any prior licensing actions instituted by the department, the department may deny the issuance of any license to the applicant. The denial of the license may be appealed as provided in § 71-3-509.
      1. The license of any agency shall not be voided nor shall any pending appeal be voided pursuant to this subsection (e) solely for the reason that the agency is subject to judicial orders directing the transfer of control or management of a child care agency or its license to any receiver, trustee, administrator or executor of an estate, or any similarly situated person or entity.
      2. If the current licensee dies, and provided that no licensing violations require the suspension, denial or revocation of the agency's license, the department may grant family members of the licensee, or administrators or executors of the licensee, a new temporary license to continue operation for a period of one hundred and twenty (120) days. At the end of such period, the department shall determine whether an annual or extended license should be granted to a new licensee as otherwise provided in this section.
      3. Nothing in this subsection (e) shall be construed to prevent the department from taking any regulatory or judicial action as may be required pursuant to the licensing laws and regulations that may be necessary to protect the children in the care of such agency.
    1. Following the expiration of a least one (1) annual license, the department may issue an extended license to a licensee who seeks renewal of an existing license if the department determines that the licensee has demonstrated that its methods of child care and its adherence to licensing laws and regulations are clearly appropriate to justify an extended licensing period. An extended license may not be granted as the first license immediately following any temporary license.
    2. The department may by rule establish any criteria for the issuance of an extended license; provided, no extended license shall exceed three (3) years in duration.
    3. At the time renewal of the license is sought, or at any other time during the licensing period, the department may reduce the period of the extended license to a shorter period if it determines that the licensee has failed to demonstrate continued adherence to the requirements for the issuance of the extended license. The licensee may appeal such action as provided in § 71-3-509.
    4. The issuance of an extended license shall not be construed in any manner to prevent the department from suspending or revoking the license, placing an agency on probation, or imposing a civil penalty, if it determines that such action is appropriate.
    1. Prior to January 1, 2001, the licensing fees as they existed for child care agencies on June 30, 2000, shall apply. On and after January 1, 2001, the following licensing fees shall apply to applications for licenses for child care agencies licensed pursuant to this part:
      1. Family child care homes Annual fee $100 Biennial fee $150 Triennial fee $175 (B) Group child care homes Annual fee $125 Biennial fee $175 Triennial fee $200 (C) Child care centers (Less than 100 children) Annual fee $200 Biennial fee $250 Triennial fee $300 (D) Child care centers (100-250 children) Annual fee $400 Biennial fee $450 Triennial fee $500 (E) Child care centers (More than 250 children) Annual fee $500 Biennial fee $550 Triennial fee $600 (F) Drop-in centers Annual fee $200 Biennial fee $250 Triennial fee $300

        Click to view table.

    2. Notwithstanding any other law to the contrary, in order to address the need for and encourage the development of extended child care for parents working at nights or on weekends, or for any other nontraditional child care needs for which the department determines that available child care is inadequate or unavailable in all or any part of the state, the department may promulgate rules pursuant to the Uniform Administrative Procedures Act, providing for alternative fee schedules in order to recognize and encourage the development of care to meet such needs.
  2. All licensure application and renewal fees collected by the department from family child care homes, group child care homes, child care centers and drop-in centers shall be paid into the general fund, but shall be earmarked for, and dedicated to, the department. Such earmarked fees shall be used by the department exclusively to improve child care quality in this state by funding activities that include child care provider training activities, but excluding any costs associated with conducting criminal background checks. Increased fees shall be used solely for a variety of training options, which can be accessed by agencies, organizations and individuals for grants for workshops, conferences and scholarships that improve the quality of child care in this state.
  3. Notwithstanding any provisions of title 13, chapter 7, to the contrary, upon adoption of a resolution by a two-thirds (2/3) vote of the county legislative body, any zoning authority, in determining the suitability of a request for any use of property for the establishment or alteration of any child care agency, may consider the criminal background of the person or persons making a request to such board, or may consider the criminal background of any person or persons who will manage or operate such child care agency. The board may require the person to submit a fingerprint sample and a criminal history disclosure form and may submit the fingerprint sample for comparison by the Tennessee bureau of investigation pursuant to § 38-6-109, or it may conduct the background check by other means as it deems appropriate. The zoning authority shall be responsible for all costs associated with obtaining such criminal background information.
      1. No later than August 1, 2001, the department of human services, in consultation with the Tennessee commission on children and youth, shall establish and implement a mandatory child care agency report card system in conformity with subdivision (j)(2), and a separate and voluntary child care agency rated licensing system in conformity with subdivision (j)(3).
      2. The report card system and the rated licensing system shall be used for the purpose of evaluating, individually and collectively, all child care agencies licensed or approved by the department pursuant to this part so that parents or other caretakers of children enrolled, or being considered for enrollment, at a child care agency, may make more informed decisions regarding the care of their children by comparing the quality of services offered by child care agencies, and to encourage the improvement of out-of-home child care for Tennessee's children. It is the legislative intent that the report card and rated licensing process established pursuant to subdivisions (j)(2) and (3) shall be developed in a manner to be easily usable by parents or guardians of children to make informed choices related to childcare.
      3. For purposes of subdivisions (j)(1)-(4), the term “child care agencies” shall include child care centers, group child care homes and family child care homes as defined by this part.
      1. The mandatory report card system shall become effective August 1, 2001. Each child care agency shall receive a report card evaluation during the first licensing cycle of the child care agency that begins after October 1, 2001, and annually thereafter. The mandatory report card shall include an annual evaluation of the child care agency by the department that shall be required for each child care agency. The report card shall reflect key indicators of performance comparison among all Tennessee child care agencies. Key indicators shall include, but not be limited to, the following:
        1. Health and safety;
        2. Training, education, certification, and credentials of all supervisory staff, including the director or licensee;
        3. Staffing ratios;
        4. Child development and enrichment;
        5. Accreditation status; and
        6. Adequacy of physical facilities.
      2. The department shall not fail to recognize the credentials of any accrediting agency based solely upon the religious affiliation or ethnicity of the organization granting accreditation to a child care agency.
      3. The report card shall not include an overall numeric or alpha score, grade or rating of the child care agency.
        1. The annual mandatory report card shall reflect the child care agency's performance under the key indicators in subdivision (j)(2)(A).
        2. Upon completion, the report card shall be clearly marked and conspicuously posted at each child care agency for review by the parents of children enrolled, or being considered for enrollment, at the child care agency.
        1. During the first licensing cycle of each child care agency that begins October 1, 2001, the mandatory report card evaluation shall also include, as determined by the department, an evaluation of the child care agency, based upon the use of a valid and reliable program assessment instrument for evaluating the quality of child care programs through direct observation of the agency's child care program.
        2. During the first licensing cycle of each child care agency that begins October 1, 2001, the program assessment instrument scores shall not be included either on the report card or as an overall separate numeric or alpha score, grade or rating on the license or as an attachment to the license, and the department shall only provide to the child care agency a separate document with the results of the child care agency's program assessment instrument evaluation.
        3. Beginning October 1, 2002, the mandatory annual report card shall include, in addition to the agency's performance under the key indicators established pursuant to subdivision (j)(2)(A), and, notwithstanding any other provisions of subdivisions (j)(1)-(3) to the contrary, the agency's overall program assessment instrument score and any accompanying explanatory text related to the instrument.
      4. The department, and the advisory council created by subdivision (j)(5), are urged to review the key indicators for the report card and the rated licensing system created by this subsection (j) to determine if questions regarding those key indicators should be revised.
      1. The rated licensing system shall become effective on August 1, 2001. The rated licensing system shall include an evaluation of the key indicators described in subdivision (j)(2)(A), including the results of a program assessment instrument as described in subdivision (j)(2)(E)(i). A child care agency may qualify for the rated licensing system by demonstrating, through evaluation of the key indicators and the program assessment instrument, that the child care agency exceeds basic licensing standards as outlined in the rated licensing criteria determined by the department.
      2. Participation in the rated licensing system shall be voluntary for each qualified child care agency. Qualified child care agencies that volunteer to participate in the rated licensing system must apply in writing to the department following receipt of the report card issued pursuant to subdivision (j)(2) in such manner as the department may prescribe.
      3. Qualified child care agencies that volunteer to participate in the rated licensing system shall receive a child care quality rating. The participating agency may voluntarily post the rating prior to October 1, 2002. On and after October 1, 2002, the child care agency shall be required to post the rating. The rating shall be posted by the agency with its license in a conspicuous place for review by the parents or other caretakers of a child enrolled, or being considered for enrollment, at the child care agency.
      4. Beginning August 1, 2001, any qualified child care agency that agrees to voluntarily participate in the rated licensing system established by this subdivision (j)(3) and that accepts the department's child care assistance subsidy payments, may receive higher subsidy payments, as determined by the department, based upon the child care quality rating and subject to available funding in the department's budget.
      5. A child care agency may at any time voluntarily withdraw from the rated licensing system by submitting a notice in writing to the department in such manner as the department prescribes. The department may also determine at any time, in such manner as the department may prescribe, that the child care agency no longer meets the rated license criteria for the agency's rating. In either event, the child care agency shall no longer be eligible to display that rating or to use it in any informational materials related to the agency, nor shall it continue to receive increased child care subsidy payments, if any, based upon that rating. The rating shall be immediately removed from display at the agency. The department shall have standing to seek appropriate regulatory action under its rules, or to seek injunctive relief, to enforce this subdivision (j)(3)(E).
      1. Effective August 1, 2001, there is created a twelve-member advisory council to be appointed by the governor. The sole purpose of the advisory council shall be to provide recommendations to the department regarding the report card and the rated licensing system established pursuant to subdivisions (j)(1)-(3).
      2. The council shall be composed of six (6) representatives of child care centers, three (3) representatives of group child care homes, and three (3) representatives of family child care homes. There shall be two (2) representatives of child care centers from each grand division. There shall be one (1) representative from each grand division for group child care homes and one (1) representative from each grand division for family child care homes. Members shall serve two-year terms, and may be reappointed. Any vacancy shall be filled by the governor from the same grand division and class of child care agency. The members shall serve without compensation. Members shall be subject to removal by the governor for good cause. Members shall, to the extent possible, be appointed so as to represent a cross section of private-pay and subsidized child care providers and the ethnic populations represented in the child care industry.
      3. The advisory council shall elect from among its membership a chair, vice-chair and such other officers as the council deems necessary.
      4. The advisory council shall meet at least once each year, and shall meet more frequently as the business of the council may require. The council may be called to meet by the commissioner of human services at any time it becomes necessary between regular meetings to provide timely reviews of the department's proposed changes to the report card process or the rated licensing system.
      5. Consultation by the department with the council shall be mandatory; provided, however, that failure of the council to meet and deliver to the department its responses or recommendations regarding the department's proposed changes within a reasonable period of time following written notice to the council chair by the department of the need for a review of the department's proposed changes shall negate any further mandatory consultation requirement established by this paragraph.
      6. The advisory council recommendations shall be applicable only for any proposed changes to the annual report card or rated licensing system established by this subsection (j) that are proposed by the department after August 1, 2001. Consultation with the advisory council shall not be required for any plans developed by the department for the design or implementation of the annual report card or rated licensing system prior to August 1, 2001.
    1. The commissioner and the comptroller of the treasury may, in their discretion, conduct audits of the records of any child care providers as they may determine are necessary to verify that the expenditures by a child care provider of state or federal child care subsidy funds are being made according to state or federal requirements.
    2. Any child care agency that knowingly provides false information or that fails to provide any information to the department, the comptroller, or their agents or designees:
      1. That is required or necessary to perform any of the provisions of this title or to enforce state or federal law or regulations, or child care subsidy or licensing requirements;
      2. That fails to allow entrance by any person designated by the department to perform the report card or rated licensing evaluation required by subdivisions (j)(1)-(3); or
      3. That continues to display expired or revoked licensing ratings in violation of subdivision (j)(3)(E) after written notice by the department;

        shall be subject to denial or revocation of its license by the department, and may also be subject to a civil penalty of five hundred dollars ($500) imposed by the department.

  4. The department is authorized to review possible dangers to children and workers in child care facilities from carbon monoxide gas and to issue such rules and regulations as it may deem necessary.
    1. The department of human services shall make available to child care providers licensed by the department a curriculum guideline in any suitable format addressing personal safety containing a component related to the prevention of child sexual abuse and shall allow child care providers licensed by the department to choose terminology and instructional methods that accomplish the goal of providing clear, effective and appropriate instruction in personal safety. The department is encouraged to distribute a sample curriculum that is developmentally-appropriate and age-appropriate, child-friendly and family-friendly, and designed to be acceptable to a broad range of providers, parents and legal guardians.
    2. The personal safety curriculum that will be implemented by the child care provider must be made available so parents and legal guardians have the opportunity to review it and so parents and legal guardians will be aware of this component of the child care provider's curriculum. The department shall develop a standard notification form to be provided to the parents or legal guardians by the child care agency. The notification form shall contain the following information:
      1. The method of instruction and sample terminology used in the personal safety/child sexual abuse curriculum;
      2. The availability of the instructional materials for review by the parents or legal guardians; and
      3. A place for the parents or legal guardians to sign acknowledging they have been provided an opportunity to review the personal safety curriculum, have been notified of the child sexual abuse/personal safety curriculum for their child and the individual record for each child shall include a copy of the signed notification form.
    3. If a parent has questions regarding the personal safety component of the quality early childhood education curriculum, then the provider or a representative of the provider shall meet with the parent and discuss the personal safety component of the curriculum.
    4. The department of human services is expressly authorized and directed to implement by emergency rules, effective October 1, 2008, a rule regarding implementation of this requirement for the personal safety curriculum; provided, that any permanent rules shall be promulgated pursuant to the Uniform Administrative Procedures Act.

Acts 2000, ch. 981, § 3; 2001, ch. 453, §§ 3-6, 24, 25; 2003, ch. 170, § 2; 2004, ch. 696, § 1; 2005, ch. 151, §§ 2-7; 2005, ch. 453, §§ 1, 2; 2006, ch. 906, § 1; 2008, ch. 687, § 1; 2008, ch. 1032, § 1; 2009, ch. 566, § 12; 2010, ch. 789, §§ 1-3; 2010, ch. 1132, § 1; 2011, ch. 410, § 3(ii); 2016, ch. 839, § 13.

Code Commission Notes.

Former subdivision (j)(4), concerning the January 15, 2003, deadline for submitting a report regarding the implementation and status of the mandatory child care agency report card and rated licensing systems, was deleted by the code commission in 2012.

Compiler's Notes. Former § 71-3-502 (Acts 1953, ch. 228, § 2 (Williams, § 4765.139); T.C.A. (orig. ed.), §§ 14-1402, 14-10-102), concerning the approval of a charter or amendment, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see this section.

Acts 2001, ch. 453, § 26 provided that § 6 of that act, which amended subdivisions (j)(1) and (2) and added subdivisions (j)(3) through (5) (now (j)(3) though (4)), shall become void and cease to be of effect on the last day of the fiscal year following the fiscal year during which federal funding is terminated and not available to fund the positions and operations that were initially funded with federal funds and that are required by the provisions of § 6 for the operation of the annual report card and the rated licensing system. Section 26 further provided:

“Nothing herein shall prevent the general assembly from the continuation of the report card and rated licensing system by use of state funds for all or a portion of those programs, and, if this is done by any appropriations act passed prior to the date upon which the provisions of § 71-3-502(j)(1)-(5) would otherwise become void pursuant to this section, such provisions shall remain in effect.”

Acts 2004, ch. 713, § 1 purported to amend this section; however, the clerk of the house of representatives found that the act did not pass the house and the senate in the same form and was not given effect. Acts 2005, ch. 453, § 2 repealed Acts 2004, ch. 713, effective July 1, 2005.

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.

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.

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

71-3-503. Program and facilities exempt from licensing.

  1. A program or activity that falls within the definition of a child care agency shall be exempt from the licensing requirements of this part upon demonstration of clear and convincing evidence that it meets one (1) of the following exemptions in subdivisions (a)(1)-(11), or, if no specific exemption exists in subdivisions (a)(1)-(11), there is clear and convincing evidence demonstrating that the program or activity meets the criteria of subsection (c):
    1. Entities or persons licensed or otherwise regulated by other agencies of the state or federal government providing health, psychiatric or psychological care or treatment or mental health care or counseling for children while the entity or person is engaged in such licensed or regulated activity;
    2. Preschool or school age child care programs, a Title I program, a school-administered head start or an even start program, and all state-approved Montessori school programs, that are subject to regulation by the department of education or other departments of state government;
    3. Private or parochial kindergartens for five-year-old children if such kindergartens operate on the public school kindergarten schedule;
    4. Child care centers operated by church-related schools, as defined by § 49-50-801, which shall be subject to regulation by the department of education pursuant to title 49, chapter 1, part 11;
    5. Educational programs. To qualify for an educational program exemption, a child care agency must meet the following criteria:
      1. That the sole or primary purpose of the program is:
        1. To prepare children for advancement to the next educational level through a prescribed course of study or curriculum that is not typically available in a department-regulated child care setting;
        2. To provide specialized tutoring services to assist children with the passage of mandatory educational proficiency examinations; or
        3. To provide education-only services to special needs children; and
      2. That the program time scheduled to be dedicated to the educational activity is reasonably age appropriate for the type of activity and the ages served;
      1. “Parents' Day Out” or similar programs operated by a religious institution or religious organization that provide custodial care and services for children of less than school age, with no child attending more than two (2) days in each calendar week for not more than six (6) hours each day;
      2. Existing and all future programs shall register with the department their intent to operate a Parents' Day Out program prior to offering the service, and, as evidence of their exempt status, these programs shall maintain records that include, at a minimum, dates and times of each child's attendance;
      3. The records and forms shall be made available during regular business hours to the commissioner or commissioner's designee;
      4. Each separate location or campus of a religious institution or religious organization shall be considered a separate religious institution or religious organization for the purpose of Parents' Day Out or any similar program;
    6. Recreational programs. To qualify for a recreational program exemption, a child care agency must meet the following criteria:
      1. That the sole or primary purpose of the program or activity is to provide recreational services, e.g., organized sports or crafts activities;
      2. That the sole or primary purpose of the program or activity is dedicated to recreational activities for a substantial portion of the hours of operation;
      3. That the majority of program staff responsible for the direct delivery of services possesses specialized qualifications that are directly related to the recreational services being offered;
      4. That at least seventy-five percent (75%) of any individual child's program time is spent engaging in the recreational activities that are reasonably age appropriate for the type of activity and the ages served;
      5. That the supervision or care of children, or other types of child care-related services, is incidental to its overall purpose; and
      6. That no individual child could participate in the program or activity:
        1. For more than seven (7) hours per day; or
        2. If a child participates for more than seven (7) hours per day, that such child could not continue to participate for more than seven (7) consecutive weeks and for no more than one hundred twenty (120) days per calendar year;
    7. Camp programs. To qualify for a camp program exemption, a child care agency must meet the following criteria:
      1. That the primary purpose of the program or activity is to provide intensive recreational, religious, outdoor or other activities that are not routinely available in full-time child care;
      2. That the program or activity operates exclusively during the summer months and less than ninety (90) days in any calendar year; and
      3. That the enrollment periods for participation in the program or activity clearly define the duration of the program or activity and exclude drop-in child care;
      1. “Casual care” operations consisting of places or facilities operated by any person or entity that provides child care, at the same time, for a minimum of five (5) children, but less than fifteen (15) children, who are not related to the primary caregiver, during short periods of time that do not exceed ten (10) hours per week or six (6) hours per day for any individual child while the parents or other custodians of the children are engaged in short-term activities, not including employment of the parent or other custodian of the child;
      2. These operations shall register with the department their intent to conduct casual care of children, and, as evidence of their exempt status, these operations shall maintain records that include, at a minimum, the children's names, ages, addresses, dates and times of attendance, the parents' or custodians' names, addresses, and intended whereabouts while the children are in care, and the telephone numbers of persons to contact in the event of an emergency. All records shall be made available at any time to any authorized representative of the department;
      3. Failure to comply with the requirements of this subdivision shall subject the violator to a civil penalty by the department not to exceed five hundred dollars ($500) for the first violation and not to exceed one thousand dollars ($1,000) for subsequent violations, and the department may seek injunctive relief in the chancery or circuit court of the county where the place or facility is located to prevent further operation of the place or facility or to obtain entry to conduct any inspection of the operation;
      1. Any program or facility operated by, or in affiliation with, any Boys and Girls Club that provides care for school-aged children and that holds membership in good standing with Boys and Girls Clubs of America and that is certified as being in compliance with the purposes, procedures, voluntary standards and mandatory requirements of Boys and Girls Clubs of America;
      2. Any such Boys and Girls Club that applies to participate in state or federally funded programs that require child care licensing by the state as a term of eligibility may elect to apply to the department for child care licensing and regulation. Upon meeting departmental standards, the Boys and Girls Club may be licensed as a child care center/provider;
      3. The department is hereby authorized to grant a waiver from any rule concerning grouping of children and adult/child ratios for child care centers to any Boys and Girls Club that falls within both subdivisions (a)(11)(A) and (a)(10)(A) and (B), and that is providing after-school child care to mixed groups of school-aged children; and
    8. Nurseries, babysitting services and other children's activities that are not ordinarily operated on a daily basis, but are associated with religious services or related activities of churches or other houses of worship. Such services or activities may include limited special events that shall not exceed fourteen (14) days in any calendar year.
    1. Exempt programs under subdivisions (a)(3), (6) and (9) shall post a sign stating, “This facility is not required to be licensed by the state as a child care agency.”
    2. When a parent, custodian or guardian initially registers a child with an exempt program under subdivisions (a)(3), (6) and (9), which is required to post a sign pursuant to this subsection (b), the parent, custodian or guardian shall sign a form indicating that the parent, custodian or guardian has been advised and understands that the program is not licensed and is not required to be licensed by the state as a child care agency. The same language that is required to be placed on the sign shall be printed on such form at least in 16-point type with a signature line for the parent, custodian or guardian immediately following such language. The signed form shall be maintained with the records of the exempt entity.
  2. In analyzing whether the program or activity is exempt pursuant to this section, unless the department determines upon clear and convincing evidence that the program or activity qualifies for an exemption based upon the criteria set forth in subdivisions (a)(1)-(11), the department shall consider the following nonexclusive criteria to determine if the program or activity is clearly distinguishable from child care services typically regulated by the department and otherwise qualifies for exemption from licensing:
    1. The sole or primary purpose of the program or activity is to provide specialized opportunities for the child's educational, social, cultural, religious or athletic development, or to provide the child with mental or physical health services;
    2. The time period in which the program or activity provides these opportunities is consistent with a reasonable time period for the completion of the program or activity, considering the age of each child served and the nature of the program;
    3. The primary purpose of the program or activity is not routinely available or could not be made routinely available in the typical child care settings regulated by the department;
    4. Parents could reasonably be expected to choose the program or activity because of the unique nature of what it offers, rather than as a substitute for full-time, before or after school, holiday or weather-related child care; and
    5. If the program or activity is regulated by any other federal, state or local agency, it is required by such other agency to comply with standards that substantially meet or exceed department licensing regulations.
    1. The department shall not be required to grant exemptions to programs or activities that offer otherwise exempt opportunities or services as a mere component of a program or activity that the department determines primarily constitutes substitute child care.
    2. No program or activity shall be exempt from licensing solely for the reason that the care and supervision of children that constitutes child care is offered only on a part-time or periodic basis.
    3. Exemption from licensure does not exempt the program or activity from compliance with any other local, state or federal requirements.
  3. A child care agency claiming an exemption pursuant to this section may submit to the department's licensing director, or designee, a sworn, written request for exemption in such manner and form as the department may require. The request shall provide a detailed description of the operation of the program or activity, the program's or activity's purpose and the applicant's basis for claiming an exemption. The department shall provide a written response to the exemption request stating the reasons the exemption was granted or denied.

Acts 2000, ch. 981, § 4; 2001, ch. 453, § 7; 2005, ch. 151, §§ 8-12; 2013, ch. 72, §§ 1, 2.

Compiler's Notes. Former § 71-3-503 (Acts 1953, ch. 228, § 3 (Williams, § 4765.140); T.C.A. (orig. ed.), §§ 14-1403, 14-10-103), concerning preexisting agencies, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see this section.

Title I, referred to in this section, is compiled in 20 U.S.C. § 6301 et seq.

Attorney General Opinions. Licensing exemption for parents' day out programs.  OAG 12-48, 2012 Tenn. AG LEXIS 48 (4/25/12).

71-3-504. Injunctions against unlicensed operations.

  1. The department may, in accordance with the laws of this state governing injunctions, maintain an action in the name of the state of Tennessee to enjoin any person, partnership, association, corporation or other entity from establishing, conducting, managing or operating any place or facility providing services to children without having a license as required by law, or from continuing to operate any such place or facility following suspension of a license or following the effective date of the denial or revocation of a license.
  2. In charging any defendant in a complaint for such injunction, it shall be sufficient to charge that such defendant did, upon a certain day and in a certain county, establish, conduct, manage or operate a place, home or facility of any kind that is a child care agency, as defined in this part or to charge that the defendant is about to do so without having in effect a license as required by law, or that the defendant continues to operate any such place or facility following suspension of a license, or following the effective date of the denial or revocation of a license, without averring any further or more particular facts concerning the case.

Acts 2000, ch. 981, § 5; 2001, ch. 453, § 8.

Code Commission Notes.

Acts 2000, ch. 843, which purported to amend this section, is codified in of § 71-3-511(e)(2).

Compiler's Notes. For transfer of the licensing required by this section for before- and after-school day care centers authorized by Acts 1988, ch. 659 and operated by local boards of education from the department of human services to the department of education, see Executive Order No. 24 (November 11, 1988).

Former § 71-3-504 (Acts 1953, ch. 228, § 4 (Williams, § 4765.141); 1965, ch. 333, § 2; 1971, ch. 214, § 2; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-1404, 14-10-104; Acts 1988, ch. 1013, § 74; 1992, ch. 1030, §§ 5, 6; 1996, ch. 1053, § 1; 1996, ch. 1079, §§ 158, 163-165; 2000, ch. 843, § 2), concerning standards for the annual license, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see § 71-3-502.

71-3-505. Criminal violations.

  1. Any person or entity operating a child care agency, as defined in § 71-3-501, without being licensed by the department or who continues to operate such agency while a suspension of the license is in effect, or who operates a child care agency following the effective date of a denial or revocation of a license, commits a Class A misdemeanor.
  2. Each day of operation without an effective license constitutes a separate offense.
    1. It is unlawful for any person who is an operator, licensee or employee of a child care agency to make any statement, whether written or verbal, knowing such statement is false, including, but not limited to, statements regarding:
      1. The number of children in the child care agency;
      2. The area of the child care agency used for child care; or
      3. The credentials, licensure or qualification of any care giver, employee, substitute or volunteer of the child care agency, when such statement is made to a parent or guardian of a child in the care of such agency, to any state or local official having jurisdiction over such agencies, or to any law enforcement officer.
    2. In order for subdivision (c)(1) to apply, the falsity of the statement must place at risk the health or safety of a child in the care of the child care agency.
    3. A violation of subdivision (c)(1) is a Class A misdemeanor.
    4. This subsection (c) includes statements made in any child care agency license application that misrepresents or conceals a material fact that would have resulted in the license being denied.
    5. In addition to any punishment authorized under this subsection (c), the department may also take any licensure action authorized under this part.

Acts 2000, ch. 981, § 6.

Compiler's Notes. Former § 71-3-505 (Acts 1953, ch. 228, § 5 (Williams, § 4765.142); T.C.A. (orig. ed.), §§ 14-1405, 14-10-105), concerning assistance in meeting standards or placing children, was repealed by Acts 2000, ch. 981, § 1.

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

71-3-506. Public agencies — Inspection and report.

Any child care agency, as defined in this part, that is under the direct management or control of an administrative department of the state, a county, municipality, or development district, or any combination of these, shall be subject to licensure pursuant to this part; provided, however, that the requirements for audits set forth in former § 71-3-502(j)(6)(C) and (D) [repealed] shall be satisfied by audits that are conducted by the comptroller of the treasury or other public agency auditors.

Acts 2000, ch. 981, § 7; 2005, ch. 151, § 13.

Compiler's Notes. Former § 71-3-506 (Acts 1953, ch. 228, § 4 (Williams, § 4765.141); T.C.A. (orig. ed.), § 14-1406; Acts 1986, ch. 536, § 1; T.C.A., § 14-10-106; Acts 1987, ch. 297, § 3; 1992, ch. 1030, § 7; 1996, ch. 1079, § 167; 1998, ch. 638, § 1), concerning licenses, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see § 71-3-502.

Former § 71-3-502(j)(6)(C) and (D), referred to in this section, was repealed by Acts 2010, ch. 789, § 1, effective April 19, 2010.

Cross-References. License and filing fees, § 8-21-201.

71-3-507. Criminal history violation information required of persons having access to children — Review of records and registries — Verification — Exclusion from access to adults.

    1. The following shall complete a disclosure form in a manner approved by the department disclosing criminal records, juvenile records histories and the status of such person on the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, the state's sex offender registry and status as an indicated perpetrator of abuse or neglect in the records of the department of children's services and the department of human services, or in any jurisdiction, and shall agree to release all such records to the childcare agency and to the department to verify the accuracy of the information contained on the disclosure form:
      1. A person applying to work with children as a paid employee, director or manager with a childcare agency as defined in § 71-3-501, with any detention center or temporary holding resource as described in § 37-5-109, or with the department in any position in which any significant contact with children is likely in the course of the person's employment; or who applies for any license, that is not the renewal of an existing license or otherwise seeks to be an operator, as defined by the rules of the department, of a childcare agency as defined in § 71-3-501 and who has significant contact with children in the course of such role and is not otherwise exempted from the application of this section by rules of the department;
      2. A person who is a new substitute staff person, paid or unpaid, and who is to be used by the childcare agency to meet childcare standards and who serves as a substitute for more than thirty-six (36) hours in any one (1) calendar year; or
      3. A person fifteen (15) years of age or older who resides in a childcare agency that is being licensed initially or who moves into a childcare agency following initial licensure.
      1. Persons subject to the requirements of subdivision (a)(1) shall also supply a fingerprint sample in a manner prescribed by the department and by the Tennessee bureau of investigation (TBI), and shall submit to a fingerprint-based background review of criminal history records, and juvenile records that are available to the TBI, to be conducted by the TBI, and shall submit to a review of the person's status on the department of health's vulnerable persons registry under title 68, chapter 11, part 10, and on the state sex offender registry, and, pursuant to § 71-3-515, a review of the person's status in the department of children's services and the department of human services records of indicated perpetrators of abuse or neglect of children or adults, as well as equivalent administrative registries in any jurisdiction in which the person has resided in the past five (5) years and a review of any available juvenile records in juvenile court.
      2. All persons subject to the requirements of subdivision (a)(1), and all persons applying to work with the department in any position in which any significant contact with children is likely in the course of the person's employment with the department, shall have the fingerprint-based background review, including juvenile records available to the TBI, and the registry and perpetrator records and juvenile records reviews required by subdivision (a)(2)(A) completed as required by this section prior to assuming any role described in subdivision (a)(1) or prior to employment with the department; and if the person is fifteen (15) years of age or older and:
        1. The person is a resident of a childcare agency, the person must have the fingerprint-based background review, including juvenile records available to the TBI, and the registry and perpetrator records reviews, and if determined necessary by the department juvenile court records reviews, required by subdivision (a)(2)(A) completed prior to the granting of any license that is not the renewal of an existing license to the childcare agency in which the person resides at the time of initial application; or
        2. If the person is to become a resident of the childcare agency, the person must have the reviews required by subdivision (a)(2)(B)(i) completed prior to the person's becoming a resident of the childcare agency.
      3. The person or entity with which a person subject to subdivision (a)(1) will be or is associated shall be responsible for obtaining and submitting the fingerprint sample, as directed by the department, and any information necessary to process the fingerprint-based background reviews and reviews required by this section prior to the person's assumption of any role described in subdivision (a)(1). If the person is not employed directly by a licensed child care agency but is employed by a substitute pool or staffing agency and assigned to work as a substitute employee at a licensed child care agency, then the substitute pool or staffing agency is responsible for obtaining and submitting the fingerprint sample, as directed by the department, and any information necessary to process the fingerprint-based background reviews and reviews required by this section prior to the person's assumption of any role described in subdivision (a)(1) at a licensed child care agency.
    2. The disclosure forms shall include at a minimum the following information:
      1. The social security number of the applicant, substitute or resident;
      2. The complete name of the applicant, substitute or resident;
      3. Disclosure of information relative to any violations of the law, including pending criminal or juvenile charges of any kind, and any conviction or juvenile adjudication involving a sentence or suspended or reduced sentence, and a release by the person of all records involving the person's criminal and juvenile background history and records relative to the person's status on the department of health's vulnerable persons registry maintained pursuant to title 68, chapter 11, part 10, on the state's sex offender registry and the status of the person as an indicated perpetrator of abuse or neglect of a child or adult as determined by any agency of this state or any other jurisdiction;
      4. A space for the person to state any circumstances that should be considered in determining whether to allow the person who has a criminal, juvenile, registry or abuse or neglect records history to be employed or to provide substitute services or to remain as a resident in the agency; and
      5. A listing of the residences of the applicant, substitute, or resident for the past five (5) years.
    3. The form shall notify the person that falsification of required information may subject the person to criminal prosecution, and that the person's employment, licensing, or other status or circumstances in the child care agency or the department is dependent upon the person's criminal and available juvenile records history status, the person's status on the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, and on the state's sex offender registry, and, pursuant to § 71-3-515, the person's status as an indicated perpetrator of abuse or neglect of children or adults as contained in the records of the department of children's services and the department of human services, or in the equivalent administrative registries in any jurisdiction in which the person has resided in the past five (5) years.
    4. A copy of the disclosure form shall be maintained in the childcare agency's records for review by the department, and the department shall maintain a copy of the disclosure form in the records of the applicant for a license or as operator or for employment with the department.
    5. The child care agency, substitute pool, or staffing agency shall notify the department within thirty (30) days of an employee leaving employment.
    1. The disclosure form and information contained on the form obtained pursuant to this section, together with the fingerprints of the person, shall be submitted by the child care agency for its applicants, licensees, operators, substitutes, or residents, and by the department for its applicants, to the appropriate department staff or state contractors providing fingerprinting services, in the format required by the department and the TBI. The child care agency shall attest on the disclosure form that the person is required to undergo a criminal background check or state registry review, and is either a resident or has been selected by the child care agency to fill a position as an employee or substitute who will work directly with children. A substitute pool or staffing agency assigning persons to work as substitute employees at a licensed child care agency shall submit the disclosure form for such persons and shall also attest on the disclosure form that the person is required to undergo the criminal background check or state registry review, and has been selected by the substitute pool or staffing agency to fill a position as an employee or substitute who will work directly with children. The department or contractor shall transmit the necessary information to the TBI for completion of the fingerprint-based background review of criminal records and juvenile records that are available to the TBI.
    2. The TBI shall compare the information and the fingerprint sample received with the computer criminal history files maintained by the bureau and, to the extent permitted by federal law, with federal criminal databases and shall conduct the fingerprint and criminal history background check for the person pursuant to § 38-6-109. It shall report the existence of any criminal or juvenile history involving the person to the department, which shall inform the childcare agency and the person regarding the person's ability to assume a position for which a background review is required by this section.
    3. The results of the inquiry to the TBI shall be documented in the records of the childcare agency for the person for whom the background check is sought, and the department shall also maintain a record of the results of all persons for whom a criminal background history is received.
    4. The department shall notify in writing the appropriate district attorney general of any falsification of the information on the disclosure form.
      1. The department shall pay to the TBI or state contractors providing fingerprinting services the cost of obtaining, handling, and processing the criminal history background fingerprint check requested by the agency or by the department as set forth in § 38-6-109. Payment of the costs is to be made in accordance with §§ 38-6-103 and 38-6-109.
      2. The department shall only be responsible for payment of one (1) processing fee that is required by the TBI. If the fingerprint sample is rejected and if any further costs are required to process the fingerprint, the child care agency is responsible for any further costs, regardless of the number of efforts required to obtain a valid fingerprint sample. The child care agency, substitute pool, or staffing agency will be responsible for repayment to the department for any processing fees if it submits a person's discussion form more than one (1) time for the criminal history background check within a thirty (30) day period, or if it submits a person for a criminal history background check who is not a resident or a person who has been selected by the child care agency, substitute pool, or staffing agency to fill a position as an employee, or substitute who will work directly with children.
    1. All persons subject to subsection (a), and employees of the department's licensing division, shall also be subject to a review by the department of their status on the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, and on the state's sex offender registry and a review conducted pursuant to § 71-3-515, of their status in the department of children's services and the department of human services records of indicated perpetrators of abuse or neglect of children or adults or in the equivalent administrative registries in any jurisdiction in which the person has resided in the past five (5) years and a review of any available juvenile records in juvenile court.
    2. The department shall conduct the review for license applicants and operators.
    3. The results of the inquiry to the registries and the departments' records shall be maintained in the person's records at the agency and with the department.
    1. The child care agency or the department shall not permit a person to assume any role described in subdivision (a)(1) prior to the completion of a review of the criminal history and juvenile records available to the TBI and the juvenile court, including the fingerprint-based background review, review of the department of health's vulnerable persons registry and the state's sex offender registry, and, pursuant to § 71-3-515, a review of the department of children's services and the department of human services records of indicated perpetrators of abuse or neglect of children or adults, or in the equivalent administrative registries in any jurisdiction in which the person has resided in the past five (5) years, and juvenile court records reviews. The reviews must demonstrate that the person is not subject to a criminal history, a juvenile history, or a history on the registries or in the records of the department of children's services or the department of human services or the equivalent administrative registries in any jurisdiction in which the person has resided in the past five (5) years that would, as described in this part, disqualify or otherwise exclude the person from any role described in subdivision (a)(1).
    2. The criminal history, juvenile records, and administrative registry review provided for in subdivision (d)(1) shall additionally be completed at least once every five (5) years.
        1. Whether obtained by use of the procedures established in this section or whether information is obtained by any other means, no person shall be employed with, be a licensee or operator of, provide substitute services to, or have any access whatsoever to children in a childcare agency as defined by this part, nor shall the person be employed with the department in a position having significant contact with children, whose criminal or available juvenile background records, registry or perpetrator records demonstrate that the person has been convicted of, pled guilty or no contest to an offense or lesser included offense, is the subject of a juvenile petition or finding that would constitute an offense or lesser included offense, or whose criminal or juvenile background history report or other information demonstrates the existence of a pending warrant, indictment, presentment or petition, involving:
          1. The physical, sexual or emotional abuse or neglect of a child;
          2. A crime of violence against a child or any person;
          3. Any offense determined by the department, pursuant to properly promulgated rules, to present a threat to the health, safety or welfare of children;
          4. The identification of the person on the department of health's vulnerable persons registry pursuant to title 68, chapter 11, part 10, or on the state's sex offender registry, or, whose status, pursuant to a review under § 71-3-515, of the department of children's services and the department of human services records of indicated perpetrators of abuse or neglect of children or adults, reviews of equivalent administrative registries in any jurisdiction in which the person has resided in the past five (5) years, or reviews of available juvenile court records, demonstrate a history that would require the person's exclusion under this part.
        2. No person who is currently charged with or who has been convicted of or pled guilty to a violation of § 39-13-213, § 55-10-101, § 55-10-102 or § 55-10-401, or any felony involving use of a motor vehicle while under the influence of any intoxicant, may, for a period of five (5) years after the date of the conviction or felony plea, be employed as or serve as a driver transporting children for a childcare agency.
        1. Upon receipt from the department of the criminal and juvenile fingerprint-based background report or other information regarding the criminal, juvenile, vulnerable persons, sex offender or perpetrator records histories of a person about whom this information was obtained, the department shall notify the childcare agency and the person of the person's clearance to assume a position with the childcare agency or that the person must be excluded from positions or circumstances with the agency described in subdivision (a)(1) or from any access to children.
        2. The childcare agency, and the department for its employees, shall immediately exclude any person from employment, from substitute services or from any access whatsoever to children in the childcare agency or, if a resident of a childcare agency, the agency shall exclude the resident from access to children in the childcare agency, if the criminal, juvenile, registry, perpetrator records history or other information regarding the person place the person within the prohibited categories established in subdivision (e)(1)(A). The department shall deny the license or operator status of any such person. If an exemption from the exclusion is provided for by rule of the department pursuant to subsection (f), the person shall remain excluded or that person's license or operator status shall be denied until it is determined by the department that there is a basis for an exception from the exclusion.
        3. The failure of a childcare agency to exclude a person with a prohibited criminal, juvenile, vulnerable persons or sex offender registry or perpetrator records history at a childcare agency from employment with the agency, or from the provision of substitute services to children in the agency, or the failure, as determined by the department, to adequately restrict the access of a resident or any other person in a childcare agency to children being cared for by the agency, shall subject the childcare agency to immediate suspension of the agency's license by the department.
      1. The child care agency, substitute pool, or staffing agency shall immediately notify the department on the same business day of an arrest, pending indictment, or other information regarding a person who is an employee, substitute, volunteer, or resident which places the person within the prohibited categories established in subdivision (e)(1)(A) if the child care agency, substitute pool, or staffing agency knows or reasonably should know of such arrest, pending indictment, or other information. The child care agency, substitute pool, or staffing agency shall immediately exclude the person if the person must be excluded from positions or circumstances described in subdivision (a)(1) or from any access to children.
    1. Any person who is excluded pursuant to this section or whose license or operator status is denied or revoked based upon the results of a disclosure form statement, fingerprint-based background, criminal or juvenile records history, registry or perpetrator history review pursuant to this part, or other records review, may appeal the exclusion to the department within ten (10) days of the mailing date of the notice of such exclusion to the subject person.
    2. If timely appealed, the department shall provide an administrative hearing pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, in which the appellant may challenge the accuracy of the determination.
    3. The appellant may not collaterally attack the factual basis of an underlying exclusionary record except to show that the appellant is not the person identified on the record. Further, except to show that the appellant is not the person identified on the record, the appellant may not collaterally attack or litigate the facts that are the basis of a reported pending criminal or juvenile charge except to show that the charge was, or since the report was generated, has been dismissed, nolled, has resulted in an acquittal or has been expunged.
    1. The department may by rule provide for a review process that utilizes an advisory group of law enforcement personnel, persons experienced in child protective services, persons experienced in child development issues and childcare providers, or other persons it determines are appropriate, to consider and, if appropriate, recommend to the department exemptions from the exclusions established by this section, or for any other exclusions of persons established pursuant to the department's rules, that are based on the person's criminal background or juvenile background history or from the records of the person maintained in the vulnerable persons or sex offender registries or contained in the indicated perpetrator records of the departments of children's services or human services.
    2. Any exemption granted must be based upon extenuating circumstances that would clearly warrant the exemption, and this determination shall be made in writing in the record of the department and of the childcare agency and shall be open to public inspection.
    3. If an exemption rule is promulgated by the department under this part or by any state agencies utilizing the methods authorized by subsection (g) or (h), the person who is not granted an exemption from the exclusion upon review of the person's criminal, juvenile, registry or other records history pursuant to this part may have this issue considered in an administrative appeal as provided by subsection (e).
      1. A child care agency as defined in § 37-5-501 or § 71-3-501, a child care program as defined in § 49-1-1102, the department of children's services, the department of education, the department of human services, the department of mental health and substance abuse services, the department of intellectual and developmental disabilities and any other state agency or any person or entity that contracts with the state may require the persons set forth in subdivisions (g)(1)(A)(i)-(iii) to undergo a background or records review of any kind, to complete a disclosure form stating the person's criminal and juvenile records history and agree to release all records involving the person relating to the criminal, juvenile and perpetrator records history of the person to the entities described in this subdivision (g)(1)(A), and, if further required by the requesting entity, to supply a fingerprint sample and submit to a fingerprint-based review of criminal and juvenile records available to the TBI to be conducted by the TBI. The person may also be required to submit to a review of the person's status on the department of health's vulnerable persons registry under title 68, chapter 11, part 10, and on the state's sex offender registry, and pursuant to § 71-3-515, a review of the department of children's services and the department of human services records of indicated perpetrators of abuse or neglect of children or adults, and, if determined necessary by the agency, department or contractor, a review of any available juvenile records in juvenile court. The results of these inquiries shall be maintained in the person's records. Failure or refusal of a person to submit to or complete the disclosures, background and records reviews required by the entities in this subdivision (g)(1)(A) shall result in the immediate exclusion of the person from any position or status for which these reviews are required by this section:
        1. A person applying to work or substitute, or currently working, in any capacity as a paid employee, licensee or operator, substitute or volunteering, with children with the entities in subdivision (g)(1)(A) or who otherwise has access to children in those entities;
        2. An applicant for a foster parent position or an applicant to be an adoptive parent, or a current foster parent or a current prospective adoptive parent with the department of children's services; or
        3. A person fifteen (15) years of age or older who resides in a childcare agency licensed pursuant to this part or title 37, chapter 5, part 5, and who is not otherwise required by subdivision (a)(1), or who is not otherwise required by any other law.
      2. Nothing in this subsection (g) shall be construed to mean that any other law that mandates that fingerprint-based background, registry or any records review be conducted on applicants for employment, licensee, operator, substitute, volunteer or agency resident status is made voluntary, repealed or superseded in any manner by this subsection (g), and this section is supplementary to, and is not in lieu of, any mandatory provisions for such other statutorily required background, registry or records checks.
    1. The disclosure form shall contain the information described in subdivisions (a)(3) and (4).
    2. A copy of the disclosure form shall be maintained in the requesting entity's records of the persons for whom the background check is sought.
      1. The fingerprints of the person shall be submitted by the entity authorized by this subsection (g) to do so, to the TBI in the format required by the bureau.
      2. The TBI shall compare the information received and the fingerprints of the person with the computer criminal history files, and juvenile history files available to and maintained by the bureau and, to the extent permitted by federal law, with federal criminal databases to verify the accuracy of the criminal or juvenile violation information pursuant to § 38-6-109, and shall report the existence of any criminal or juvenile history involving the person to the requesting entity; and if the report was made to an entity that is licensed by any state agency, the bureau shall also send a copy of the report showing the criminal or juvenile history to the state agency.
        1. For a person who was not subject to a fingerprint-based or other records screening prior to assuming a role described in subdivision (g)(1)(A), that person's existing status in the role shall be conditional upon the satisfactory outcome of any requested fingerprint-based background review, criminal, and available juvenile records review, and upon vulnerable persons and sex offender registries and department of children's services and department of human services perpetrator records, reviews, and, if determined necessary by the entity, a review of any available juvenile records in juvenile court, that may be conducted pursuant to this section; provided, however, that if a person is initially applying to assume any type of role described in subdivision (g)(1)(A), and an entity described in subdivision (g)(1)(A) utilizes this subsection (g) as a preemployment screening procedure, the person shall not assume the role until satisfactory completion of the reviews.
        2. In either circumstance in subdivision (g)(4)(C)(i), the criminal and available juvenile history and fingerprint-based background review, the vulnerable persons and sex offender registry review and any review of the perpetrator records of the departments of children's services and human services must demonstrate that the person is not subject to a criminal or juvenile history or a history on these registries or in such records that would, as described in this part, disqualify or otherwise exclude that person from any role described in subdivision (g)(1)(A). If the fingerprint-based background or records review, or any other information from any other source confirms that subsection (e) is applicable, that person shall not be permitted to have further contact with children in such role, except as otherwise permitted by this section.
        3. A person's employment or contract status shall not remain in a conditional status for a position with any state agency for which federal law or regulations do not permit the state agency to license or approve the position until all necessary licensing requirements are met, unless specifically authorized by state or federal law or regulation to the contrary.
        4. The employment status of persons for whom a post-employment fingerprint-based background, registry or record review was conducted, or the status of existing licensees or operators, substitutes, volunteers or residents of a childcare agency for whom these reviews were conducted after license approval, and who were not otherwise subject to prestatus applicant or access reviews and to the exclusionary provisions provided in this section, shall be governed by any regulations that may govern their status in a regulated entity or by applicable employment law.
      3. The results of the inquiry to the TBI or other registry or records review shall be documented in the records of the entity requesting the reviews. If the entity is regulated by, or is a contractor to, this state, the entity shall immediately report exclusionary results of the criminal and juvenile history background, registry or perpetrator records reviews to its regulatory or contracting state agency.
      4. If the information submitted on the disclosure form appears to have been falsified, the entity requesting the background check, or if the entity is regulated by or has a contract with this state, the regulatory or contracting agency shall notify the district attorney general of the falsification in writing.
      5. Any costs incurred by the TBI in conducting the investigations of the applicants shall be paid by the entity that requests the investigation and information. Payment of the costs is to be made in accordance with §§ 38-6-103 and 38-6-109.
      1. As a supplemental method of criminal and juvenile background history review for any applicants for employment, for license or operator status, or for substitute or volunteer status with childcare agencies or childcare programs, or with the state agencies or their contractors, as listed in subdivision (g)(1) or with the entities that the state agencies may regulate, or for residents of new childcare agencies, or for current employees, licensees, operators, substitutes or volunteers of childcare agencies or for current residents of childcare agencies, those entities listed in subdivision (g)(1) that have an agreement for access to the TBI's criminal and available juvenile history database may require such persons to submit a disclosure form as set forth in subdivisions (a)(3) and (a)(4), a copy of which shall be maintained with the requesting entity's records, and agree to release all records involving the person relating to the criminal and available juvenile history of the person.
      2. Those entities with the agreement in subdivision (h)(1)(A) may then access directly the TBI's Tennessee crime information computer (TCIC) system and conduct a name search of Tennessee criminal and available juvenile history records by using only the information contained on the disclosure form completed pursuant to subdivision (h)(1)(A), or by using any other information available to the searching entity.
    1. If information obtained by this method indicates that there exists, or may exist, a criminal or juvenile record on the person, the entity conducting the search may further review the criminal and juvenile record history with the person and, as appropriate, with the entity with whom the person who is the subject of the review is associated, to obtain further verification. The requesting entity, at its own cost, may also request fingerprint samples as otherwise authorized by this section and submit the fingerprints for a complete Tennessee and federal criminal and available juvenile history background review pursuant to this section and § 38-6-109.
    2. The results of the search shall be maintained in the records of the person about whom the search was made and shall be subject to review by the regulating entities.
    3. Nothing in this subsection (h) shall be construed to mean that any other law that mandates that criminal and juvenile background reviews be conducted on applicants for employment, for license or operator status, for substitute or volunteer service positions or for resident status is made voluntary, repealed or superseded in any manner by this subsection (h), and this subsection (h) is supplementary to, and is not in lieu of, any mandatory provisions for such other statutorily required criminal and juvenile background reviews.
  1. Subsections (e) and (f), including, but not limited to, the exclusion of persons from providing care or being licensed for the care of children or having access to children upon determination of the criminal, available juvenile, registry or perpetrator records background of such persons, the suspension of operations of or the denial or regulation of any license, certification or approval of any entities that fail to exclude persons with an exclusionary history, and the exemptions from the exclusionary provisions shall be applicable to those persons having exclusionary backgrounds or histories determined by the processes established by subsections (g) and (h) or by any other means.
  2. Any person disqualified by a state agency from care for or access to children based upon the results of any fingerprint-based, criminal, juvenile, registry, perpetrator records or other records review conducted under subsections (g) and (h), or by any other means may, as provided in subdivisions (e)(2)-(4), appeal that determination to a state agency that has made the request.
  3. Nothing in this section shall be construed to prevent the exclusion of any person from providing care for, from being licensed or certified or approved for the care of children pursuant to this part or from having access to a child in a child caring situation if a criminal or juvenile proceeding background history or other record that would require the person's exclusion under this part is discovered and verified in any other manner other than through a procedure established pursuant to this section. All procedures, rules and appeal processes established pursuant to this section for the protection of children and the due process rights of excluded persons shall also be applicable to those persons.
  4. It is unlawful for any person to falsify any information required on the disclosure form required by this section. A person who knowingly fails to disclose on the disclosure form required information or who knowingly discloses false information or who knowingly assists another to do so commits a Class A misdemeanor.

Acts 2000, ch. 981, § 8; 2001, ch. 453, §§ 9-14; 2006, ch. 808, § 1; 2008, ch. 922, §§ 1-3; 2009, ch. 410, § 2; 2010, ch. 1100, § 136; 2012, ch. 575, § 1; 2013, ch. 101, § 2; 2015, ch. 22, §§ 1, 2; 2016, ch. 839, §§ 1-12.

Compiler's Notes. This section, formerly § 14-10-107 (Acts 1953, ch. 228, § 4 (Williams, § 4765.141); T.C.A. (orig. ed.), § 14-1407), concerning temporary licenses issued to child welfare agencies, was repealed by Acts 1987, ch. 297, § 4. As to temporary licenses, see § 71-3-502.

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. Criminal history violation information required of persons having access to children and review of vulnerable persons registry, § 37-5-511.

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

71-3-508. Inspection of entities providing child care.

  1. It is the duty of the department, through its duly authorized agents, to inspect at regular intervals, without previous notice, all child care agencies or suspected child care agencies, as defined in § 71-3-501.
    1. The department is given the right of entrance, privilege of inspection, access to accounts, records, and information regarding the whereabouts of children under care for the purpose of determining the kind and quality of the care provided to the children and to obtain a proper basis for its decisions and recommendations.
    2. If refused entrance for inspection of a licensed, approved or suspected child care agency, the chancery or circuit court of the county where the licensed, approved or suspected child care agency may be located may issue an immediate ex parte order permitting the department's inspection upon a showing of probable cause, and the court may direct any law enforcement officer to aid the department in executing such order and inspection. Refusal to obey the inspection order may be punished as contempt.
    3. Except where court orders prohibit or otherwise limit access, parents or other care takers of children in the care of a child care agency licensed pursuant to this part shall be permitted to visit and inspect the facilities and observe the methods for the care of their children at any time during which the children are in the care of the agency and, except those records of other children in the care of the agency and their parents or caretakers, shall further be permitted to inspect any records of the agency that are not privileged, or are not otherwise confidential, as provided by law or regulation, and the parents' or caretakers' access for these purposes shall not be purposely denied by the agency.
    1. In the conduct of any investigations of any child care agency, the department, if it determines such to be necessary, may require the child care agency to enter into a plan for the safety of children in the agency's care pending the outcome of any investigation by the departments of human services or children's services, or by any law enforcement or regulatory agency.
      1. Such plan may require, but is not limited to:
        1. The exclusion or restriction of any individuals from access to the children in care;
        2. The closure or restricted use of any part or parts of the agency's facilities;
        3. The reinspection of any of the agency's facilities by any other health, fire or safety agency;
        4. The modification or elimination of any service provided, or of any procedures utilized or any program conducted by the agency; or
        5. The receipt of further training by the agency's management, staff or volunteers.
      2. The plan may be based upon any preliminary or upon any final findings by the department. The plan may be established in coordination with:
        1. The conduct of any child abuse or neglect investigation by the department of children's services;
        2. Any criminal investigation by a law enforcement agency;
        3. Any investigation of the child care agency by any other regulatory agency; or
        4. In any combination of these investigations,

        and may be based upon any preliminary or final findings of such departments or agencies. The plan may also incorporate any recommendations of such departments or agencies based upon their preliminary or final findings.

    2. The department may enforce the provisions of the safety plan by civil penalty not to exceed five hundred dollars ($500), by suspension of the agency's license if appropriate, by issuance of a restricted license to the child care agency, by denial or revocation of the child care agency's license, or by any combination of these penalties.
    3. Any plan that exceeds ninety (90) days when proposed or that continues for more than ninety (90) days may be appealed to the child care agency board of review.
  2. Any violation of the inspection rights established in this section is a Class A misdemeanor.

Acts 2000, ch. 981, § 9; 2001, ch. 453, § 15.

Compiler's Notes. Former § 71-3-508 (Acts 1953, ch. 228, § 5 (Williams, § 4765.142); T.C.A. (orig. ed.), § 14-1408; Acts 1986, ch. 536, § 2; T.C.A., § 14-10-108), concerning a hearing on denial of application, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see § 71-3-510.

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

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

Punishment for contempt, § 29-9-103.

71-3-509. Violations of licensing regulations — Probation — Civil penalties — Suspension, denial and revocation of licenses — Appeal procedures.

  1. If any complaint is made to the department concerning any alleged violation of the laws or regulations governing a child care agency, the department shall investigate such complaint and shall take such action as it deems necessary to protect the children in the care of such agency.
    1. If, during the licensing period, the department determines that a child care agency is not in compliance with the laws and regulations governing its operation, the department may place the agency on probation for a definite period of not less than thirty (30) days nor more than sixty (60) days, as determined by the department. Upon a determination by the department to place an agency on probation, the department shall serve written notice to the agency by personal delivery describing the violations of the licensing laws or rules that support the basis for the probationary status and the procedures for appeal of the probationary status. Ten (10) business days after the service of the probation notice on the agency, the department shall require the agency to post the notice of probation as directed by the department.
      1. If placed on probation, the agency shall immediately post a copy of the probation notice, together with a list provided by the department of the violations that were the basis for the probation, in a conspicuous place as directed by the department and with the agency's license, and the agency shall immediately notify in writing the custodians of each of the children in its care of the agency's status, the basis for the probation and of the agency's right to an informal review of the probationary status.
      2. If the agency requests an informal review within two (2) business days of the imposition of probation, either verbally or in writing to the department's licensing staff that imposed the probation, the department shall informally review the probationary status by a licensing supervisor or other designee who was not involved in the decision to impose the probation. The agency may submit any written or oral statements as argument to the licensing supervisor or designee within five (5) business days of the imposition of the probation. Written and oral statements may be received by any available electronic means. The licensing supervisor or designee shall render a decision in writing upholding, modifying or lifting the probationary status within seven (7) business days of the imposition of the probation.
    2. If the licensing supervisor or designee does not lift the probation under subdivision (b)(2)(B), the agency may also appeal such action in writing to the commissioner within five (5) business days of the receipt of the notice of the licensing supervisor or designee's decision regarding the agency's probationary status as determined in subdivision (b)(2)(B). If timely appealed, the department shall conduct an administrative hearing pursuant to the contested case, provisions of the Uniform Administrative Procedures Act, compiled at title 4, chapter 5, part 3, concerning the department's action within fifteen (15) business days of receipt of the appeal, and shall render a decision in writing within seven (7) business days following conclusion of the hearing. The hearing officer may uphold, modify or lift the probation.
    3. This subsection (b) shall be discretionary with the department, and shall not be a prerequisite to any licensing action, to impose a civil penalty or to suspend, deny or revoke a license of a child care agency.
    1. If the department determines that there exists any violation with respect to any person or entity required to be licensed pursuant to this part, the department may assess a civil penalty against such person or entity for each separate violation of a statute, rule or order pertaining to such person or entity in an amount ranging from fifty dollars ($50.00) for minor violations up to a maximum of one thousand dollars ($1,000) for major violations or violations resulting in death or injury to a child as defined in the rules of the department. Each day of continued violation constitutes a separate violation.
    2. The department shall by rule establish a graduated schedule of civil penalties designating the minimum and maximum civil penalties that may be assessed pursuant to this subsection (c). In developing the graduated civil penalty procedure, the following factors may be considered:
      1. Whether the amount imposed will be a substantial economic deterrent to the violator;
      2. The circumstances leading to the violation and the agency's history of violations;
        1. The extent of deviation from the statutes, rules or orders governing the operation of the child care agency;
        2. The severity of the violation, including specifically the level of risk of harm to the children in care of the person or entity caused by the violation; and
        3. The penalty may be further classified based upon whether the violation resulted in the issuance of an order of summary suspension, denial or revocation of the license of the agency and whether death or injury of a child occurred as a result of violation;
      3. The economic benefits gained by the violator as a result of noncompliance;
      4. The agency's efforts to comply with the licensing requirements; and
      5. The interest of the public.
    3. The department shall assess the civil penalty in an order that states the reasons for the assessment of the civil penalty, the factors used to determine its assessment and the amount of the penalty.
    4. The order may be served on the licensee personally by an authorized agent of the department who shall complete an affidavit of service, or the order may be served by certified mail, return receipt requested.
    5. The licensee may appeal the penalty to the board of review by filing a request for an appeal in writing with the commissioner within ten (10) days of the service of the order.
      1. Civil penalties assessed pursuant to this subsection (c) shall become final ten (10) days after the date an order of assessment is served if not timely appealed, or, if timely appealed, within seven (7) days following entry of the board's order unless the board's order is stayed.
      2. If the violator fails to pay an assessment when it becomes final, the department may apply to the chancery court for a judgment and seek execution of such judgment.
      3. Jurisdiction for recovery of such penalties shall be in the chancery court of Davidson County.
    6. All sums recovered pursuant to this subsection (c) shall be paid into the state treasury, but shall be earmarked to be used by the department exclusively to improve child care quality in this state by funding activities that include, but are not limited to, child care provider training activities, but excluding any costs associated with conducting criminal background checks.
    7. This subsection (c) relative to civil penalties shall be discretionary with the department, and shall not be a prerequisite to any licensing action to suspend, deny or revoke a license of a child care agency. Civil penalties may also be imposed in conjunction with the probation, suspension, denial or revocation of a license.
    1. If the department determines that any applicant for a temporary license or for the renewal of an existing license has failed to attain, or an existing licensee has failed to maintain, compliance with licensing laws or regulations after reasonable notice of such failure and a reasonable opportunity to demonstrate compliance with licensing laws or regulations, the department may deny the application for the new or renewed license or may revoke the existing license; provided, that the department at any time may deny a temporary license if the applicant fails to meet the initial requirements for its issuance; and, provided, further, that if the department determines that repeated or serious violations of licensing laws or regulations warrant the denial or revocation of the license, then, notwithstanding any provisions of § 4-5-320 or this subsection (d) to the contrary, the department may seek denial or revocation of the license regardless of the licensee's demonstration of compliance either before or after the notice of denial of the application or before or after notice of the revocation.
    2. Notwithstanding § 4-5-320, the notice of denial or revocation may be served personally by an authorized representative of the department who shall verify service of the notice by affidavit, or the notice may be served by certified mail, return receipt requested.
    3. If application for the temporary, annual, or extended license is denied or if an existing license is revoked, the applicant may appeal the denial or revocation by requesting in writing to the department a hearing before the child care agency board of review within ten (10) days of the personal delivery or mailing date of the notice of denial or revocation. Failure to timely appeal shall result in the expiration of any existing license immediately upon the expiration of the time for appeal.
    4. The hearing upon the denial or revocation shall be heard by the board of review within thirty (30) days of the date of service of the notice of denial or revocation; provided, that, for good cause as stated in an order entered on the record, the board or the administrative law judge may continue the hearing. In order to protect the children in the care of the agency from any risk to their health, safety and welfare, the board or administrative law judge shall reset the hearing at the earliest date that circumstances permit.
      1. If timely appeal is made, pending the hearing upon the denial or revocation, the child care agency may continue to operate pending the decision of the board of review unless the license is summarily suspended as provided in subsection (e).
      2. The board, as part of its decision regarding the status of the applicant's application for a license or the licensee's license, may direct that the child care agency be allowed to operate on a probationary or conditional status, or may grant or continue the license with any restrictions or conditions on the agency's authority to provide care.
    1. Subject to this subsection (e), if the department determines at any time that the health, safety or welfare of the children in care of the child care agency imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of the license may be ordered by the department pending any further proceedings for revocation, denial or other action. If the department determines that revocation or denial of the license is warranted following suspension, those proceedings shall be promptly instituted and determined as authorized by this part.
    2. The department shall set forth with specificity in its order the legal and factual basis for its decision, stating in the order the specific laws or regulations that were violated by the agency, and shall state with specificity in the order the reasons that the issuance of the order of summary suspension is necessary to adequately protect the health, safety or welfare of children in the care of the child care agency. Summary suspension may be ordered in circumstances that have resulted in death, injury or harm to a child or that have posed or threatened to pose a serious and immediate threat of harm or injury to a child based upon the intentional or negligent failure to comply with licensing laws or regulations.
    3. In issuing an order of summary suspension of a license, the department shall use, at a minimum, the following procedures:
      1. The department shall proceed with the summary suspension of the agency's license and shall notify the licensee of the opportunity for an informal hearing within three (3) business days of the issuance of the order of summary suspension;
      2. The notice provided to the licensee may be provided by any reasonable means and, consistent with subdivision (e)(2), shall inform the licensee of the reasons for the action or intended action by the department and of the opportunity for an informal hearing as permitted by subdivision (e)(3)(C);
        1. The informal hearing described by this subdivision (e)(3) shall not be required to be held under the contested case provisions of the Uniform Administrative Procedures Act;
        2. The hearing is intended to provide an informal, reasonable opportunity for the licensee to present to the hearing official the licensee's version of the circumstances leading to the suspension order;
        3. The sole issues to be considered are:
          1. Whether the public health, safety or welfare imperatively require emergency action by the department;
          2. What, if any, corrective measures have been taken by the child care agency following the violation of licensing laws or regulations and prior to the issuance of the summary suspension order that eliminate the threat to the public health, safety or welfare of the children in the care of the agency; and
          3. Whether the agency demonstrates a reasonable ability to maintain or continue compliance with all relevant licensing laws and regulations; and
        4. The hearing official may lift, modify or continue the order of summary suspension;
      3. Subsequent to the hearing on the summary suspension, the department may proceed with revocation or denial of the license or other action as authorized by this part, regardless of the decision concerning summary suspension of the license.
    4. The department shall by rule establish any further necessary criteria that it determines are required for the determination of circumstances that warrant imposition of the summary suspension order and any other necessary procedures for implementation of the summary suspension process.
    5. If the conditions existing in the child care agency present an immediate threat to the health, safety or welfare of the children in care, the department may also seek a temporary restraining order from the chancery or circuit court of the county in which the child care agency is located, seeking immediate closure of the agency to prevent further harm or threat of harm to the children in care, or immediate restraint against any violations of the licensing laws or regulations that are harming or that threaten harm to the children in care. The department may seek any further injunctive relief as permitted by law in order to protect children from the violations, or threatened violations of the licensing laws or regulations. The use of injunctive relief as provided by this subdivision (e)(5) may be used as an alternative, or supplementary measure, to the issuance of an order of summary suspension or any other administrative proceedings.
    1. In determining whether to deny, revoke or summarily suspend a license, the department may choose to deny, revoke or suspend only certain authority of the licensee to operate and may permit the licensee to continue operation, but may restrict or modify the licensee's authority to provide certain services or perform certain functions, including, but not limited to, transportation or food service, enrollment of children at the agency, the agency's hours of operation, the agency's use of certain parts of the agency's physical facilities or any other function of the child care agency that the department determines should be restricted or modified to protect the health, safety or welfare of the children. The board of review, in considering the actions to be taken regarding the license, may likewise restrict a license or place whatever conditions on the license and the licensee it deems appropriate for the protection of children in the care of the agency.
    2. The actions by the department or the board authorized by this subsection (f) may be appealed as otherwise provided in this part for any denial, revocation or suspension.
    1. When an application for a license has been denied, or a license has been revoked, on one (1) occasion, the child care agency may not reapply for a license for a period of one (1) year from the effective date of the denial or revocation order if not appealed, or, if appealed, from the effective date of the board's or reviewing court's order.
    2. If application for a license has been denied, or a license has been revoked, on two (2) occasions, the child care agency may not reapply for a license for a period of two (2) years from the effective date of the denial or revocation if not appealed, or, if appealed, from the effective date of the board's or reviewing court's order.
    3. If an application for a license has been denied, or a license has been revoked, on three (3) occasions, the agency shall not receive another license for the care of children.
    4. No person who served as full or part owner or as director or as a member of the management of a child care agency shall receive a license to operate a child care agency if that person participated in such capacity in a child care agency that has been denied a license, or that had a license revoked, on three (3) occasions.
      1. The time restrictions of subdivisions (g)(1) and (2) may be waived by the board of review in the hearing in which the denial or revocation is sustained, or, if requested by the former licensee in writing to the commissioner, in a separate subsequent hearing before the board of review or, in the discretion of the commissioner, upon review by the commissioner.
      2. The agency must show to the board's or the commissioner's satisfaction that the agency has corrected the deficiencies that led to the denial or revocation, and that the child care agency can demonstrate that it has the present and future ability, and is willing, to maintain compliance with licensing laws or regulations. The decision of the board or the commissioner shall be reduced to an order, which shall be a final order pursuant to the Uniform Administrative Procedures Act, and may be appealed pursuant to § 4-5-322.
      3. No waiver may be granted for any permanent restriction that has been imposed pursuant to subdivision (g)(3).
    1. In conducting hearings of the appeal of a denial or revocation of a license before the board of review or for review of summary suspension orders, it is the legislative intent that such hearings be promptly determined consistent with the safety of the children in the care of the child care agency appealing the department's licensing action and with the due process rights of the license applicants or licensees.
    2. If, however, the administrative procedures division of the office of the secretary of state certifies by letter to the recording secretary of the board of review that the division's contested case docket prevents the scheduling of a hearing on the appeal of the denial or revocation of a license before the board of review within the initial time frames set forth in this part, then the department shall have the authority to obtain an attorney who shall act as the administrative law judge to conduct the proceedings before the board. The substitute administrative law judge may be obtained by contract with a private attorney or by contract or agreement with another state agency. The substitute administrative law judge shall have all authority as an administrative law judge of the department of state. The hearing may be continued by order of the board for the purpose of obtaining a substitute judge.
    3. Hearings on summary suspension orders shall be heard by an administrative law judge from the administrative procedures division of the secretary of state's office, if the administrative law judge is available within the time frames for a summary suspension hearing. If the administrative procedures division of the secretary of state's office informs the department that an administrative law judge is unavailable, the department may obtain an administrative law judge or hearing officer who is not an employee of the department who may be obtained by the department by contract with a private attorney or by contract or agreement with another state agency. The administrative law judge or hearing officer shall have authority, as otherwise permitted in this section, to enter orders binding on the department resulting from show cause hearings involving summary suspension orders. If the administrative procedures division of the office of the secretary of state informs the department that the division's contested case docket prevents the scheduling of a hearing on the issuance of a summary suspension order within the initial time frames set forth in this part, and if the department is unable to obtain a private or state agency administrative law judge or hearing officer to hear the show cause hearing on the summary suspension order within the time frames set forth in this part, the department may utilize a hearing officer from the department's administrative review section.
  2. By July 1, 2000, any initial rules to implement this section shall be by emergency rules of the department; provided, however, that any permanent rules shall be promulgated pursuant to the Uniform Administrative Procedures Act.

Acts 2000, ch. 981, § 10; 2001, ch. 453, §§ 16-19; 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 § 71-3-509 (Acts 1953, ch. 228, § 5 (Williams, § 4765.142); T.C.A. (orig. ed.), § 14-1409; Acts 1986, ch. 536, § 3; T.C.A., § 14-10-109), concerning a revocation of a license, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see this section.

71-3-510. Board of review — Composition.

    1. A child care agency licensing board of review shall review:
      1. Actions initiated by the departments of human services and children's services to deny or revoke or to otherwise limit any license except for summary suspension of, or probation involving, a license;
      2. Actions to review any civil penalties imposed by the department of human services; or
      3. Any safety plan implemented by the department of human services that will be, or has been in effect ninety (90) days or more.
      1. In reviewing any licensing action pursuant to this part or pursuant to title 37, chapter 5, part 5, the board of review shall consist of nine (9) persons. Five (5) members of the board shall include the commissioners of health and education or their designees, the executive director of the commission on children and youth or designee, and a member from one (1) current or previous standards committee from the departments of human services and children's services. Four (4) persons shall be selected from a pool of up to twelve (12) representatives at-large to be selected by the five (5) stated board members, as follows:
        1. Four (4) shall be selected to serve for one (1) year;
        2. Four (4) shall be selected to serve for two (2) years; and
        3. Four (4) shall be selected to serve for three (3) years.
      2. Thereafter, each at-large representative shall be selected to serve for terms of three (3) years or until such representative's successor is selected.
  1. A quorum of the board shall consist of five (5) persons.
  2. In establishing a quorum for the board to conduct its review of the licensing actions of the departments, the chair shall randomly select the names of the at-large members of the board for the board's current licensing review action from the pool of twelve (12) persons selected pursuant to subsection (a) until the nine-member composition is reached or, if that is not possible, until a quorum is reached.
  3. The commissioner of education or the commissioner's designee shall serve as the chair of the board until a chair is selected by the board. The board shall elect a vice chair who shall serve in the absence of the chair. If the chair resigns, is unable to perform the duties of the chair or is removed, or the chair's term on the board expires, the commissioner of education shall appoint a new chair until the board can elect a chair. The vice chair shall have authority to sign all orders of the board in the absence of the chair and for actions of the panels under subsection (f).
  4. The recording secretary for the board shall be a member of the professional staff of the department of human services based upon an inter-agency agreement for the services of the recording secretary as the commissioners of children's services and human services may deem appropriate, and any person selected by the agreement of the departments shall serve as recording secretary for the board. The recording secretary shall be responsible for scheduling the board's meetings and arranging for the facilities to conduct the hearings of the board for both departments and such other duties as may be necessary to accommodate the business of the board. The recording secretary shall serve without additional compensation from the department.
  5. In order to complete the work of the board, the chair may appoint one (1) or more panels of the board with a quorum of five (5) members, at least two (2) of whom shall be randomly selected at-large members selected by the chair. The chair of the board shall appoint the chair of the panel. The panel shall have complete authority to hear any case under the board's jurisdiction and shall have complete authority to enter any necessary orders concerning licensing actions conducted before the board of review. Any orders of the panel shall be signed by the chair of the panel, or by the board chair or vice chair.
  6. Any necessary regulations governing the board's procedure shall be promulgated by the department of human services, in consultation with the department of children's services, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 2.
  7. Any applicant or licensee may petition the chancery court of Davidson County pursuant to § 4-5-322 for judicial review of the board's decision.
    1. All members of the review board shall serve without pay.
    2. The four (4) members at-large who are selected to serve on the board and the members from the standards committees of the departments shall receive reimbursement in conformity with law and regulations for their expenses incurred in the performance of their official duties pursuant to this part. Such expenses for the representatives from the standards committees from the respective department shall be paid from the funds appropriated to the departments.
    3. The expenses for the at-large members shall be shared equally by the departments of children's services and human services.
    4. All reimbursement for travel expenses shall be in accordance with the comprehensive state travel regulations applicable to state employees.

Acts 2000, ch. 981, § 11; 2001, ch. 453, §§ 20-22.

Compiler's Notes. The child care agency licensing board of review, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

Former § 71-3-510 (Acts 1953, ch. 228, § 5 (Williams, § 4765.142); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-1410, 14-10-110; Acts 1996, ch. 1079, § 168), concerning the board of review, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see this section.

Cross-References. Licensing standards committees, § 37-5-516.

71-3-511. Licensing standards committees.

  1. The commissioner of human services shall appoint a standards committee composed of twelve (12) citizens, three (3) from each grand division of the state, and three (3) at-large for the purpose of developing or reviewing standards and regulations for each class of child care agency defined in this part. The classes of child care regulated by the department shall be represented by members of the standards committee.
  2. For any new class of child care agency as defined in this part, the standards committee shall develop and recommend to the commissioner the standards and regulations for that new class of child care agency. The standards and regulations of each existing class of child care agency shall be reviewed by a standards committee beginning every four (4) years following the date of submission of its last recommendations or more frequently as the commissioner may direct.
  3. The standards committee shall act in an advisory capacity to the commissioner in recommending any initial standards or regulations for any new class of child care agency or any changes to the existing standards or regulations of any class of child care agency.
  4. The committee shall cease to exist upon submitting its recommendations to the commissioner, but may be reestablished by the commissioner at any time to further review its recommendations or to consider additional standards or regulations or to consider revisions to the standards or regulations.
    1. In making appointments to the committee, the commissioner shall strive to ensure that at least one (1) person serving on the committee is sixty (60) years of age or older and that at least one (1) person serving on the committee is a member of a racial minority.
    2. Except as otherwise provided in this section, in making appointments to the standards committees, the departments shall strive to ensure that the membership of the standards committees includes a balance of representatives of the regulated industry and persons whose expertise would be of assistance to the departments. The departments shall appoint child advocates, social workers, attorneys, and other such persons with knowledge and expertise in the specified area, as well as citizen members to the committees.
  5. The members of the committee shall not receive any compensation for their services but shall be reimbursed for their travel to and from the committee meetings and for their meals and lodging in accordance with the state travel procedures and regulations.

Acts 2000, ch. 843, § 2; 2000, ch. 981, § 12; 2011, ch. 282, § 3.

Compiler's Notes. Former § 71-3-511 (Acts 1953, ch. 228, § 5 (Williams, § 4765.142); 1976, ch. 806, § 1(141); T.C.A. (orig. ed.), §§ 14-1411, 14-10-111; Acts 1996, ch. 1079, § 169), concerning reimbursement of the board of review, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see this section.

The standards committee, department of human services, created by this section, terminates June 30, 2025. See §§ 4-29-112, 4-29-246.

Acts 2000, ch. 843, § 2 was compiled as subdivision (e)(2), because this section, as added by Acts 2000, ch. 981, was closer in subject matter than former § 71-3-504.

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

Licensing standards committees, § 37-5-516.

71-3-512. Five-year-olds attending day care institutions lacking kindergarten status.

  1. A family child care home, group child care home or child care center that lacks approved kindergarten status for purposes of § 49-6-201 shall not enroll or continue to enroll any child five (5) years of age during the period of the local education agency's regular school year, without first obtaining from the child's parents or legal guardians a signed acknowledgment of the fact that the child's attendance at the family child care home, group child care home or child care center does not satisfy the mandatory kindergarten prerequisite for the child's enrollment in the first grade.
  2. Any such signed acknowledgment shall be retained by the family child care home, group child care home or child care center for a period of two (2) years. Failure to comply with the requirements of this section may subject the family child care home, group child care home, or child care center to probation, denial or revocation of the child care agency license, or to civil penalty, by the department.

Acts 2000, ch. 981, § 13.

Compiler's Notes. This section may be affected by Rule 4 (a) of the Rules of Appellate Procedure.

Former § 71-3-512 (Acts 1953, ch. 228, § 5 (Williams, § 4765.142); T.C.A. (orig. ed.), § 14-1412; Acts 1981, ch. 449, § 2; 1983, ch. 322, § 4; T.C.A., § 14-10-112), concerning appeals from the board of review, was repealed by Acts 2000, ch. 981, § 1. For current provisions, see this section.

Law Reviews.

The Theoretical Foundations of the Proposed Tennessee Rules of Appellate Procedure, III. Some Noteworthy Features of the Rules (John L. Sobieski, Jr.), 45 Tenn. L. Rev. 180.

71-3-513. Public records — Exceptions.

The records of any entity entering into a contract or grant with the state for child care broker services relating to such grant or contract shall be public records open for public inspection in accordance with § 10-7-503. Nothing in this section shall be construed to allow a social security number or residential address of any person to be considered a public record.

Acts 2000, ch. 981, § 79.

Compiler's Notes. Former § 71-3-513 (Acts 1953, ch. 228, § 4 (Williams, § 4765.141); T.C.A. (orig. ed.), §§ 14-1413, 14-10-113; Acts 1989, ch. 591, § 112; 1996, ch. 1079, § 170), concerning injunctions against unlicensed operations, was repealed by Acts 2000, ch. 981, § 1. For present law, see § 71-3-504.

71-3-514. Establishment of drug testing policy.

    1. All persons or entities operating a child care agency as defined in this part, unless exempt as provided in § 71-3-503, shall establish a drug testing policy for employees, directors, licensees and operators of child care agencies and for other persons providing services under contract or for remuneration for the agency, who have direct contact, as defined by the department, with a child in the care of the agency.
    2. The policy shall specify how testing should be completed by the child care agency and provide for immediate and effective enforcement action involving such persons by the child care agency in the event of a positive drug test.
    3. The policy shall be provided by the child care agency to persons employed or engaged for contract or remunerative services prior to July 1, 2009, and to all such persons upon initial employment or initial engagement in contract or remunerative services for the agency.
    4. The policy established pursuant to this section shall not supersede the requirements of § 71-3-502(d)(7)(C)(v) that all persons described in § 71-3-502(d)(7)(C)(v) satisfactorily complete a drug test prior to engaging in transportation services for children in a child care agency.
    1. The policy shall require drug testing based upon reasonable suspicion that employees, directors, licensees, or operators of a child care agency, or other persons providing services under contract or for remuneration for the agency are engaged in the use of illegal drugs.
    2. The policy shall require persons employed or engaged for contract or remunerative services prior to July 1, 2009, to have a drug test based upon reasonable suspicion that the persons are engaged in the use of illegal drugs.
    3. Events that may give rise to reasonable suspicion for purposes of requiring a drug test include, but are not limited to:
      1. Deterioration in job performance or changes in personal traits or characteristics;
      2. Appearance in a specific incident or observation which indicates that an individual is under the present influence of drugs;
      3. Changes in personal behavior not attributable to other factors;
      4. Involvement in or contribution to an accident where the use of drugs is reasonably suspected, regardless of whether the accident involves actual injury; or
      5. Alleged violation of or conviction of criminal drug law statutes involving the use of illegal drugs or prescription drugs.
  1. A child care agency shall, at no expense to the state, maintain for five (5) years and immediately make available to the department upon request a copy of drug testing results for an individual who is employed as a caregiver, director, licensee or operator at the child care agency, or for other persons providing services under contract or for remuneration for the agency, who have direct contact with children in the care of the agency.
  2. It shall be the responsibility of the individual who is to be tested to pay the appropriate fees necessary to obtain a drug test pursuant to the policy established by a child care agency. Drug testing results obtained under this section are confidential and may be disclosed only for purposes of enforcing this part.
  3. Notwithstanding subsection (a), a licensee or operator of a family child care home who has direct contact with children in the care of the family child care home shall submit to a drug test at the expense of the licensee or operator, when the department has reasonable suspicion to believe that the licensee or operator is engaged in the use of illegal drugs.
  4. A child care agency that does not comply with this section is subject to the department:
    1. Denying the application for a license;
    2. Denying the application for a license renewal; or
    3. Suspending or revoking a license issued.

Acts 2008, ch. 1068, § 1.

Compiler's Notes. Acts 2008, ch. 1068, § 2 provided that the department of human services is authorized to promulgate rules and regulations to effectuate the purposes of this section. The rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Former §§ 71-3-51471-3-523 (Acts 1953, ch. 228, § 6-15 (Williams, § 4765.143—4765.152); T.C.A. (orig. ed.), §§ 14-1414 — 14-1423, §§ 14-10-11414-10-123), were repealed by Acts 2000, ch. 981, § 1, effective July 1, 2000.

71-3-515. Development of procedure for submitting names and other identifying information to determine if persons have perpetrated abuse or neglect of a child or adult — Due process rights.

  1. The department of children's services and the department of human services shall develop a procedure whereby the names and other identifying information for all potential employees of the department of human services in that department's licensing division and adult protective services program and any persons who are subject to § 71-2-403 or § 71-3-507, and who, under those sections, may have contact with children in a childcare agency or with adults in an adult day care agency licensed by the department of human services, shall be submitted to the department of children's services and the department of human services adult protective services program to determine if the potential employees or other persons subject to those provisions were found by the department of children's services or the department of human services adult protective services program to have perpetrated abuse or neglect of a child or adult.
  2. No person shall be reported as an indicated perpetrator of abuse or neglect for purposes of this part or chapter 2, part 4 of this title, by either the department of children's services or the department of human services adult protective services program unless it is determined that the due process rights of the person were either offered, but not accepted, or were fully concluded pursuant to the rules of the department of children's services or the department of human services and applicable state and federal law.

Acts 2009, ch. 410, § 3; 2013, ch. 101, § 3.

Compiler's Notes. Former §§ 71-3-51571-3-523 (Acts 1953, ch. 228, § 6-15 (Williams, § 4765.143—4765.152); T.C.A. (orig. ed.), §§ 14-1414 — 14-1423, §§ 14-10-11414-10-123), were repealed by Acts 2000, ch. 981, § 1, effective July 1, 2000.

71-3-516. Restrictions on license for drop-in center regarding care of school-age children on snow days.

Any license for a drop-in center issued under this part shall specify whether the center is appropriate for handling school-age children on snow days. A drop-in center may not accept any school-age child for care unless the department determines that center is an appropriate and safe location for such children on snow days. The department shall determine whether the center has adequate space for school-age children and shall set a limit on the number of such children that a center may accept on any one day. No child thirteen (13) years of age or older may be cared for by a drop-in center on a snow day. The center shall also provide to the department a list of trained care givers and other staff who are available for emergency calling and shall annually update such list.

Acts 2005, ch. 93, § 2; T.C.A., § 71-3-534.

Code Commission Notes.

Former § 71-3-534 was transferred to § 71-3-516 by the code commission in 2012.

71-3-517. Development of a written multi-hazard plan to protect children in emergencies.

  1. All persons or entities operating a child care agency as defined in this part, excluding drop-in child care centers and those programs and facilities exempt from licensing as provided in § 71-3-503, shall, in consultation with appropriate local authorities and local emergency management, develop a written multi-hazard plan to protect children in the event of emergencies, including, but not limited to, fires, tornados, earthquakes, chemical spills, and floods. Such persons or entities shall also inform parents and guardians of children attending the child care agency of the plan.
  2. The written plan required pursuant to this section shall include:
    1. Procedures for child care agency staff to notify parents in an emergency;
    2. The development of designated relocation sites and evacuation routes to those sites;
    3. Reunification plans for children and families; and
    4. Written individualized plans for accommodating a child's special needs in an emergency situation.
  3. The child care agency shall maintain documentation that the emergency plan is reviewed monthly.
  4. All child care agency staff persons shall be trained on the plan annually.
  5. The child care agency shall implement these emergency procedures through timely practice drills to meet local regulations and local emergency services plans and shall maintain documentation of drills for one (1) year. Such drills shall involve the following:
    1. At least one (1) fire drill shall be conducted monthly;
    2. Child care agencies shall alternate drills each month to cover each shift while children are present, including extended care hours;
    3. At least one (1) drill other than fire shall be conducted every six (6) months; and
    4. All drills shall be conducted in such a way as to simulate, as closely as is practical, conditions of a real emergency, with alarms to be utilized and evacuation plans to be practiced.
    1. Emergency telephone numbers for the following entities shall be posted next to all child care agency telephones and shall be readily available to all child care agency staff members:
      1. Fire department;
      2. Police department and sheriff's office;
      3. Nearest hospital emergency room;
      4. Department of children's services child abuse hotline;
      5. Local emergency management agency;
      6. Ambulance or rescue squad;
      7. Poison control center; and
      8. Department of human services child care complaint hotline.
    2. If a generic emergency number, including, but not limited to, 911 service, is operable in the community, it shall also be posted in the manner prescribed in this subsection (f).
  6. All contact information for parents, guardians, and emergency personnel shall be readily available to all child care agency staff, including work, home and cell phone numbers.

Acts 2013, ch. 216, § 1.

71-3-518. Priority on wait list of children with parent or guardian serving on active duty in armed forces.

  1. Unless otherwise prohibited by federal or state law, no child care agency licensed under this part shall place a dependent child on a wait list behind a child without a parent or legal guardian serving on active duty in the armed services of the United States, if the dependent child:
    1. Has a parent or legal guardian that is an active-duty member of the armed services of the United States; or
    2. Has a parent who was killed, died as a direct result of injuries received or has been officially reported as being either a prisoner of war or missing in action while serving honorably as a member of the United States armed forces during a qualifying period of armed conflict or was formerly a prisoner of war or missing in action under such circumstances.
  2. To be eligible under subdivision (a)(2), the dependent child or the legal guardian of the dependent child shall:
    1. Present official certification from the United States government that the parent veteran was killed or died as a direct result of injuries received while serving honorably as a member of the United States armed forces during a qualifying period of armed conflict; or
    2. Present official certification from the United States government that the parent veteran has been officially reported as being a prisoner of war or missing in action while serving honorably as a member of the United States armed forces during a qualifying period of armed conflict or was formerly a prisoner of war or missing in action under such circumstances as appropriate within one hundred and eighty (180) days prior to applying for child care services.
  3. As used in this section, “dependent child”, “qualifying period of armed conflict”, and “serving honorably” have the same meanings as in § 49-7-102.

Acts 2013, ch. 291, § 1; 2014, ch. 972, § 2.

Part 6
Orphan Asylums

71-3-601. Governing board.

All orphan asylums or houses for destitute children, incorporated under the laws of the state, shall be governed by boards of managers, trustees, or directors, which shall consist of twelve (12) or more persons, five (5) or more of whom shall constitute a quorum.

Acts 1885, ch. 92, § 1; Shan., § 4343; Code 1932, § 4573; T.C.A. (orig. ed.), §§ 14-1201, 14-11-101.

Cross-References. Regulation of child welfare agencies generally, title 71, ch. 3, part 5.

Law Reviews.

The Tennessee Court System (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 189.

71-3-602. Powers over property.

The corporations enumerated in § 71-3-601 may own and hold real and personal property necessary for building, cultivation, and to rent out to raise means to assist in the support of such corporations.

Acts 1885, ch. 92, § 8; Shan., § 4351; Code 1932, § 4580; T.C.A. (orig. ed.), §§ 14-1202, 14-11-102.

71-3-603. Admission of children.

All such asylums or houses at the option of its board may receive or take charge of any destitute orphan or indigent child of either sex, or children of indigent parents, under eighteen (18) years of age, from any part of the state.

Acts 1885, ch. 92, § 3; Shan., § 4345; mod. Code 1932, § 4574; T.C.A. (orig. ed.), § 14-1203; Acts 1984, ch. 663, § 1; T.C.A. (orig. ed.), § 14-11-103.

71-3-604. Control of indigent children.

The children referred to in § 71-3-603 shall be under the exclusive jurisdiction and control of the board until they become eighteen (18) years of age. The board may, in its discretion, require the parents of such indigent children to surrender all right and claim to the control of them, and to consent for the asylum to provide homes for them, by adoption by proper and suitable parties, for the purpose of caring for and educating them, teaching them trades and household duties generally.

Acts 1885, ch. 92, § 3; Shan., § 4346; Code 1932, § 4575; T.C.A. (orig. ed.), §§ 14-1204, 14-11-104.

71-3-605. [Reserved.]

No child shall be received into the asylum, or detained in the asylum, except that the welfare of the child may be thereby promoted, nor shall any child be indentured or given in adoption, except that the best interest of the child shall be thereby secured.

Acts 1885, ch. 92, § 4; Shan., § 4347; Code 1932, § 4576; T.C.A. (orig. ed.), §§ 14-1206, 14-11-106.

Law Reviews.

The Tennessee Law of Adoption, 3 Vand. L. Rev. 627.

71-3-607. Control of orphans and foundlings.

In all cases in which orphans or foundling children are placed in any of the orphan homes, whether voluntarily by their parent or parents or guardian or by the order of some competent court or other authority, or whether they come into the care and custody of any such institution as foundlings, the managing board shall have the right to retain the custody of such children until the children are eighteen (18) years of age; provided, that § 71-3-609 applies; and provided further, that such institutions may, within such homes or asylums, provide for such children, or may so provide for them in homes of suitable families outside of such institutions.

Acts 1891, ch. 117, § 1; Shan., § 4353; Code 1932, § 4582; T.C.A. (orig. ed.), §§ 14-1207, 14-11-107.

71-3-608. Penalty for interference with children.

It is a Class B misdemeanor for any person to interfere in any way with any of such children in the control and custody of such homes while they are there or at the homes provided for them by such institutions.

Acts 1891, ch. 117, § 2; Shan., § 4354; Code 1932, § 4583; T.C.A. (orig. ed.), §§ 14-1208, 14-11-108; Acts 1989, ch. 591, § 112.

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

71-3-609. Petition to take child from home.

At any time after the assumption of control by any of such homes, if the parent or other person, in whom the legal custody of such child would otherwise be, believes such parent or other person entitled to the custody of the child, such person may file a petition in the chancery court of the county in which the home is situated, and set out the facts upon which action is sought, and notice thereof shall be given to such institution, and proof may be taken and the application decided as the chancellor, in the chancellor's sound judgment, may determine, both as to the merits and the adjudication of costs. For this purpose jurisdiction is conferred upon the chancery courts, with the right of appeal.

Acts 1891, ch. 117, § 3; Shan., § 4355; Code 1932, § 4584; T.C.A. (orig. ed.), §§ 14-1209, 14-11-109.

Law Reviews.

The Tennessee Court System — Chancery Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 281.

71-3-610. Education of children.

The board shall cause all children over six (6) years of age in such asylum to be instructed in such branches of useful knowledge as may be suited to their years and capabilities, and cause the girls to be taught domestic vocations, such as sewing, mending, knitting, and housekeeping in all its departments. The boys shall be taught such useful trades as the board may direct. All children in such asylums, of sufficient age, shall be taught according to the course of the common schools.

Acts 1885, ch. 92, § 5; Shan., § 4348; Code 1932, § 4577; T.C.A. (orig. ed.), §§ 14-1210, 14-11-110.

71-3-611. Expenses paid by parent or guardian.

Any of such asylums may, at discretion, receive any child placed in its care and keeping by such child's parents or guardian, or those having the child in charge, and may keep and care for the child until the child is eighteen (18) years of age, unless sooner taken away by the request of such child's parent or parents, or those having guardianship or control of the child. The asylum shall not receive any child under this section until its parent or parents, or guardian, or person having the child in charge, shall agree with the officers of the asylum to supply sufficient funds, or such portion of the funds as the board of managers may agree upon, for the maintenance of the child in the asylum during such child's stay, and shall further agree to abide by all rules, bylaws, and requirements of the asylum. Should a child be admitted having a guardian lawfully appointed and qualified, who has money or property of such child under such guardian's control, such guardian shall be required to pay to the asylum such portion of the child's funds as the guardian may lawfully use, or the guardian may be authorized to use, for the child's support.

Acts 1885, ch. 92, § 7; Shan., § 4350; Code 1932, § 4579; T.C.A. (orig. ed.), §§ 14-1211, 14-11-111.

71-3-612. County contributions to expenses.

The expenses of such asylum shall be met as follows, to wit: at the end of each fiscal year, each of the boards of managers shall make a statement of the financial condition of the asylum under its control, which shall especially show how much the necessary expenses of the asylum exceeded its income, and this excess shall be paid by the several counties that had a child or children in the asylum for any part of the fiscal year; each county shall pay so much per capita according to the number of children from that county in the asylum and the length of time that they were there. Of all these particulars, strict, accurate, and systematic accounts shall be kept by the officers of the board, and when the pro rata of any county shall be thus ascertained and a statement of the pro rata has been brought to the notice of the county mayor or financial agent of any such county, it shall be that person's duty forthwith to draw that person's warrant on the county trustee of the county in payment of the same. No county shall be liable to pay at a greater rate than fifty dollars ($50.00) per capita per annum for each child it had in the asylum, and no county shall pay any expenses of any children of that county unless the child or children be apprenticed to or sent to the asylum by the proper authorities, and by proper orders of the county legislative body.

Acts 1885, ch. 92, § 6; Shan., § 4349; Code 1932, § 4578; impl. am. Acts 1978, ch. 934, §§ 7, 16, 36; T.C.A. (orig. ed.), §§ 14-1212, 14-11-112; Acts 2003, ch. 90, § 2.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

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

Part 7
Project RAP

71-3-701. Project RAP — Creation — Services.

  1. There is created within the department of children's services the responsible adolescent parenting project (also known as “Project RAP”).
  2. The project shall include information, programs, counseling, and services:
    1. For teens who are pregnant with, or who have recently had, their first child; and
    2. For foster care teens.
  3. Project RAP may also include information, programs, counseling and services for other teens at high risk of pregnancy. In administering the project, the department shall strive to improve the parenting skills of those Project RAP clients who are pregnant or who are recent first time parents. The department shall also strive to prevent unintended future pregnancies among the total Project RAP client population and to encourage all project participants to pursue and complete educational and vocational opportunities.

Acts 1989, ch. 293, § 1; 1996, ch. 1079, § 182.

Cross-References. Teenage pregnancy, title 37, ch. 3, part 5.

71-3-702. Current operation — Expansion.

During fiscal year 1989-1990, the department shall continue to operate Project RAP in Memphis as a model program, as it has since 1986. Beginning July 1, 1990, if and only if funds are specifically allocated in the general appropriations act for the purpose of expanding Project RAP, then the department shall geographically expand Project RAP into additional areas of the state in which there are significant concentrations of first time teen mothers, foster care teens, and other teens at high risk of pregnancy. In implementing such expansion, priority shall be given to establishing Project RAP in each of the state's three (3) grand divisions within those areas in which the project can exercise maximum impact both upon the state's pregnancy rate, among females seventeen (17) years of age and under, and upon taxpayer expenditures for temporary assistance for needy families (TANF), other types of public assistance, and medicaid.

Acts 1989, ch. 293, § 2.

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

Part 8
[Reserved]

Part 9
TANF — Self-Employment Project Exemption

71-3-901. Purpose of part.

The purpose of this part is to invest in the self-sufficiency of temporary assistance for needy families (TANF) recipients, or successor program.

Acts 1996, ch. 886, § 1.

71-3-902. “Low-income entrepreneur” defined.

For the purpose of this part, unless the context otherwise requires, a low-income entrepreneur is one who is starting or expanding a business and who meets the eligibility criteria for receipt of temporary assistance for needy families (TANF), or successor program.

Acts 1996, ch. 886, § 2.

71-3-903. Self-employment profits not counted against public assistance benefits.

Low-income entrepreneurs will be allowed to escrow profits from their business enterprise that are not reinvested into their business into an account, which will be placed in a micro-lending intermediary program and not be counted against their public assistance benefits until they accumulate five thousand dollars ($5,000) for the period they are eligible for the temporary assistance for needy families (TANF) or successor program. Under this provision, participating entrepreneurs, who are otherwise eligible for TANF, or successor program, will not have their benefits reduced and will not lose the supplemental benefits extended to them as TANF, or successor program, recipients for the life of the escrow account as defined in this section. Participants must notify the department of human services in advance of their decision to elect this option.

Acts 1996, ch. 886, § 3.

71-3-904. Reapplication for exemption.

The exemption in § 71-3-903 can be reapplied for whenever the participant is eligible for temporary assistance for needy families (TANF), or successor program.

Acts 1996, ch. 886, § 4.

71-3-905. Eligibility for exemption.

Under this section, self-employment will be considered the same as a job component, if the individual's income, divided by the minimum wage, equals at a minimum twenty (20) hours per week. To receive the self-employment exemption outlined in this part, low-income entrepreneurs must be enrolled in the job component of the temporary assistance for needy families (TANF) or successor program, and must be enrolled in a micro-lending program providing entrepreneurship training, technical assistance and peer support.

Acts 1996, ch. 886, § 5.

71-3-906. Micro-lending program.

A micro-lending program is one that provides training, technical assistance and loan funds to low-income entrepreneurs to start or expand a business venture.

Acts 1996, ch. 886, § 6.

71-3-907. Program dependent on federal waivers.

The program is dependent on the availability of appropriate waivers from the federal departments of health and human services and agriculture, for which the department of human services is authorized to make application.

Acts 1996, ch. 886, § 7.

Part 10
Individual Development Account Demonstration Projects

71-3-1001. Purpose of part.

The purpose of this part is to create an opportunity for temporary assistance for needy families (TANF), or successor program, recipients to build assets as a transition to self-sufficiency, to encourage TANF program, or successor program, recipients to secure and maintain employment and to provide the support necessary for TANF program, or successor program, recipients to make the transition from welfare to work.

Acts 1996, ch. 989, § 1.

71-3-1002. Individual development account demonstration projects.

Six (6) urban and six (6) rural communities in Tennessee, two (2) of each in each grand division, will participate in an individual development account (IDA) demonstration project.

Acts 1996, ch. 989, § 2.

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

71-3-1003. Individual development accounts.

In the selected communities, temporary assistance for needy families (TANF) or successor program, recipients may deposit up to five thousand dollars ($5,000) in special savings accounts for career development goals for post-secondary education of themselves or their children, small business development, home ownership purposes or transportation needs. For the period the participant is eligible for the TANF program, or successor program, the individual development account (IDA) shall not be considered when computing the asset limit of the participant when determining the participant's eligibility for the TANF program, or successor program, or food stamps, as permitted by waiver from the federal departments of health and human services and agriculture.

Acts 1996, ch. 989, § 3.

71-3-1004. Matching funds.

  1. The temporary assistance for needy families (TANF), or successor program, recipients who are not employed will not be eligible to receive matching fund donations into their individual development accounts (IDAs).
  2. For those TANF program, or successor program, recipients who secure employment while participating in this project, their IDAs may begin to be matched immediately.
  3. Matching funds may be secured from public and private funds.
  4. For the purposes of this part, public funds utilized to provide such matching funds shall not include state funds.

Acts 1996, ch. 989, § 4; 2000, ch. 894, § 1.

71-3-1005. Eligibility of demonstration project participants.

To be eligible, demonstration project participants must be a member of a group that meets twice a month to make contributions into their individual development accounts (IDAs) and receive support, training and technical assistance to ensure they secure and maintain employment while building their IDA, and must notify the department of human services in advance of establishing such an account.

Acts 1996, ch. 989, § 5.

Part 11
CoverKids Act of 2006 [Effective until June 30, 2025.]

71-3-1101. Short title. [Effective until June 30, 2025.]

This part shall be known and may be cited as the “CoverKids Act of 2006.”

Acts 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 11, 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 United States Code § 2000d.

Acts 2006, ch. 867, § 13 provided that the provisions of the act shall be reviewed annually by the senate commerce, labor and agriculture committee and the house  commerce committee and the committees shall recommend necessary changes to the governor and the general assembly.

Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1102. Part definitions. [Effective until June 30, 2025.]

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

  1. “Department” means the department of finance and administration;
  2. “Enrollee” means an individual who is eligible and enrolled in the program;
  3. “Program” means any program established to provide health coverage to children pursuant to this part;
  4. “Tennessee medicaid program” means the federal- and state-financed, state-run program of medical assistance established pursuant to Title XIX (42 U.S.C. § 1396 et seq.), including any waivers thereof;
  5. “Title XIX” means Title XIX of the Social Security Act, Subchapter XIX, Chapter 7 of Title 42, United States Code (42 U.S.C. § 1396 et seq.), providing grants to states for medical assistance programs; and
  6. “Title XXI” means Title XXI of the Social Security Act, Subchapter XXI, Chapter 7 of Title 42, United States Code (42 U.S.C. §§ 1397aa, et seq.), establishing the State Children's Health Insurance Program.

Acts 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1103. Purpose. [Effective until June 30, 2025.]

The purpose of this part is to create a program to provide health care coverage for uninsured children who are not eligible for health care services under any part of Tennessee's medicaid program, either pursuant to the medicaid state plan or pursuant to any medicaid waivers secured by the bureau of TennCare. It is the intent of the legislature to create and fund a program separate from the Tennessee medicaid program and Title XIX (42 U.S.C. § 1396 et seq.), and not subject to any consent decrees or judicial orders applicable to the Tennessee medicaid program.

Acts 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1104. Department authority — Not an entitlement program — Benefits subject to appropriations. [Effective until June 30, 2025.]

The department is authorized to establish, administer, and monitor a program to provide health care coverage to uninsured children pursuant to Title XXI (42 U.S.C. § 1397aa et seq.). The department may not use money appropriated for this program to expand eligibility criteria for the Tennessee medicaid program or any other program operated under this title. The program shall not constitute an entitlement to coverage for eligible individuals, and the availability of program benefits is subject to appropriations.

Acts 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1105. Federal approval. [Effective until June 30, 2025.]

The department is authorized to seek federal approval for the program, pursuant to Title XXI (42 U.S.C. § 1397aa et seq.), through a state plan, state plan amendment or request for federal waivers.

Acts 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1106. Rules and regulations regarding eligibility — Cap on enrollment — Development of an option for those who are ineligible. [Effective until June 30, 2025.]

  1. The department shall adopt rules and regulations to establish eligibility criteria for the program, which shall limit eligibility to an individual who:
    1. Is eighteen (18) years of age or younger;
    2. Has a combined family income at a level to be determined by the department;
    3. Is not already covered by private insurance that offers creditable coverage, as defined in 42 U.S.C. § 300gg-3(c);
    4. Is not eligible for coverage under the Tennessee medicaid program;
    5. Is a United States citizen or qualified alien, as defined in 8 U.S.C. § 1641(b); and
    6. Is a Tennessee resident.
  2. The department may establish additional eligibility criteria as appropriate.
  3. The department may establish a cap on the number of individuals who may be enrolled in the program.
  4. The department may establish an option for individuals who do not meet eligibility criteria necessary to obtain Title XXI (42 U.S.C. § 1397aa et seq.), funding to purchase coverage through the program.

Acts 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1107. Coverage for pregnant women regardless of age. [Effective until June 30, 2025.]

The department is authorized to provide health care coverage for pregnant women and may provide the coverage consistent with this part, except that no age-related eligibility restrictions shall apply to pregnant women.

Acts 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1108. Program administration — Reporting and audit requirements. [Effective until June 30, 2025.]

  1. The department may administer the program directly or contract with insurance companies, managed care plans or other entities to provide services to enrollees. Payments for services to contracted entities may require the contractor to assume full or partial risk for the cost of services provided under the contract.
  2. The department may contract directly with health care providers to provide services to enrollees and establish appropriate rates of payments for services.
  3. The department may enter into contracts or interagency agreements with an outside entity or other state agency to assist in the administration of the program, including performing eligibility determinations and appeals.
  4. The department shall establish periodic reporting requirements and audit requirements for contractors. Contractors and subcontractors shall maintain complete and detailed records as specified by the department regarding the operation of the plan, and shall provide the department and the comptroller of the treasury's office with access to records under the terms defined by the department.

Acts 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1109. Duty and authority to review and audit expenditures. [Effective until June 30, 2025.]

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. 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 2006, ch. 867, § 7.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

71-3-1110. Additional rules and regulations. [Effective until June 30, 2025.]

  1. The department may adopt additional rules and regulations governing the program, including, but not limited to, any rules or regulations necessary to comply with or to implement any federal requirement, federal waiver or state plan governing the program. The department is authorized to promulgate emergency rules pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. All rules and regulations governing the program shall be promulgated in accordance with the Uniform Administrative Procedures Act.
  2. The rules may include, as necessary, but need not be limited to:
    1. The application, enrollment and disenrollment processes for the program;
    2. The benefit package to be provided through the program;
    3. Provisions for participant cost sharing, if any, including, at the department's discretion:
      1. The establishment of enrollment fees, premiums, deductibles and copayments; and
      2. The process for setting the amounts of enrollment fees, premiums, deductibles, and copayments, taking into account a participant's family income;
    4. The type of professionals or other provider entities who may deliver services or direct the delivery of services and the qualifications required of those professionals or entities; and
    5. Provisions regarding the sharing of health information under this part.
  3. In adopting rules, the department shall consider the federal requirements on which the receipt of Title XXI (42 U.S.C. § 1397aa et seq.), funding is contingent and shall not establish any program criteria or requirements that will disqualify the program from that funding. Rules adopted by the department must, when appropriate, take into account the availability of appropriated funds.

Acts 2006, ch. 867, § 7; 2009, ch. 566, § 12.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

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.

Cross-References. Repealer, § 71-3-1113.

71-3-1111. Annual report. [Effective until June 30, 2025.]

This part shall be reviewed annually by the commerce and labor committee of the senate, the insurance committee of the house of representatives, the finance, ways and means committee of the senate and the finance, ways and means committee of the house of representatives, and these committees shall recommend necessary changes to the governor and the general assembly.

Acts 2006, ch. 867, § 10; 2013, ch. 236, § 17; 2019, ch. 345, § 133.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Amendments. The 2019 amendment substituted “the insurance committee of the house of representatives” for “the insurance and banking committee of the house of representatives”.

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

Cross-References. Repealer, § 71-3-1113.

71-3-1112. [Obsolete.]

Compiler's Notes. Former § 71-3-1112 (Acts 2006, ch. 867, § 14(b)) concerning the creation of special joint committee, was deleted as obsolete.

71-3-1113. Repealer. [Effective until June 30, 2025.]

This part shall be repealed on June 30, 2025.

Acts 2006, ch. 867, § 14(a); 2010, ch. 872, § 6; 2015, ch. 343, § 1; 2020, ch. 582, § 1.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Amendments. The 2020 amendment substituted “June 30, 2025” for “June 30, 2020”.

Effective Dates. Acts 2020, ch. 582, § 2. March 19, 2020.

71-3-1114. Email notice that enrollee must redetermine eligibility. [Effective until June 30, 2025.]

As a part of the process for redetermining an enrollee's eligibility for the program, the department shall establish a procedure that sends an email notice to the enrollee, or the parent or guardian of the enrollee, that the enrollee must redetermine eligibility for the program. The email notice is required only when the department has an email address for the enrollee or the parent or guardian of the enrollee.

Acts 2018, ch. 943, § 1.

Compiler's Notes. Acts 2006, ch. 867, § 14(a), as amended by Acts 2010, ch. 872, § 6, and further amended by Acts 2015, ch. 343, § 1, and further amended by Acts 2020, ch. 582, § 1  provided that the act, which enacted this part, shall be repealed on June 30, 2025.

Cross-References. Repealer, § 71-3-1113.

Part 12
Drug Testing

71-3-1201. Part definitions.

For the purposes of this part:

  1. “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;
  2. “Chain of custody” means the methodology of tracking specified materials or substances for the purpose of maintaining control and accountability from initial collection to final disposition for all such materials or substances, and providing for accountability at each stage in handling, testing and storing specimens and reporting test results;
  3. “Confirmation test,” “confirmed test” or “confirmed drug test” means a second analytical procedure used to identify the presence of a specific drug or metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity and quantitative accuracy;
  4. “Drug” means marijuana, cocaine, methamphetamine, amphetamine, and opiates such as morphine. The commissioner of human services may add additional drugs by rule;
  5. “Drug test” or “test” means any chemical, biological or physical instrumental analysis administered by a drug testing agency authorized to do so pursuant to this part, for the purpose of determining the presence or absence of a drug or its metabolites pursuant to regulations adopted by rule by the commissioner of human services;
  6. “Drug testing agency” means an entity that has the required credentials as established by regulatory or certification authorities to administer tests using a person's urine, blood or DNA that will detect and validate the presence of drugs in such person's body;
  7. “Drug treatment program” means a service provider that provides confidential, timely and expert identification, assessment and resolution of drug or alcohol abuse problems affecting persons;
  8. “Five panel test” means a test for marijuana, cocaine, methamphetamine, amphetamine, and opiates such as morphine;
  9. “Initial drug test” means a procedure that qualifies as a “screening test” or “initial test” pursuant to regulations governing drug testing approved by rule by the commissioner of human services;
  10. “Legal guardian” means a person or entity that has the legal authority to provide for the care, supervision or control of a minor child as established by law or court order;
  11. “Protective payee” means a caretaker relative or a legal guardian of the child; provided, however, that person defined as a caretaker relative or guardian who is the applicant of TANF benefits who tests positive for the use of a drug as defined in this part shall be excepted from this definition; and
  12. “Specimen” means tissue, fluid or a product of the human body capable of revealing the presence of drugs or their metabolites.

Acts 2012, ch. 1079, § 2.

Compiler's Notes. For the preamble to the act requiring applicants for TANF benefits to undergo a drug test before receiving such benefits, please refer to Acts 2012, ch. 1079.

71-3-1202. Implementation of program of suspicion-based drug testing for applicants to TANF.

  1. The department of human services shall develop a plan to implement a program of suspicion-based drug testing for each applicant who is otherwise eligible for temporary assistance for needy families (TANF), or its successor program.
    1. Dependent children under eighteen (18) years of age are exempt from the drug testing requirement pursuant to this part; provided, however, that any minor parent who is an applicant for TANF benefits who does not live with a parent, legal guardian, or other adult caretaker relative must comply with the drug testing requirements of this part.
    2. In a two-parent household, only one (1) parent shall be required to undergo a drug test.
  2. The implementation shall occur in phases over a two-year period. The department shall report on the status of the implementation to the health and welfare committee of the senate and the health committee of the house of representatives. The status reports shall be sent to the chairs of each committee quarterly beginning October 1, 2012, during the implementation period.
    1. The department shall consult with substance abuse treatment experts, as determined by the commissioner of human services, and shall develop appropriate screening techniques and processes that will establish reasonable cause that an applicant for TANF is using a drug as defined by this part and that can be used to establish the necessary criteria to permit the department to require the applicant to undergo a urine-based five (5) panel drug test to be conducted by a drug testing agency.
    2. The applicant may inform the drug testing agency administering the test of any prescription or over-the-counter medication the person is taking. No drug for which an applicant has a current valid prescription shall be a basis for denial of TANF benefits pursuant to this part.
    3. Following an initial positive drug test, the applicant shall undergo a confirmation test using the same urine sample from the initial positive test prior to determination of TANF eligibility. The results of the confirmation test shall be used to determine final eligibility for TANF benefits.
  3. The department shall identify and select a screening tool such as the substance abuse subtle screening inventory (SASSI) or such other screening techniques as part of the development of the screening technique that will be employed for this program.
    1. The department shall develop a plan for funding of the costs of the screening process, the urine-based drug testing process, any personnel and information systems modification costs, and any other costs associated with the development and implementation of the testing process.
    2. The plan shall provide for funding from existing TANF or other funding available to the department, from appropriations requested by the department or from any combination of sources.
  4. The department shall develop a plan for any modification of its information systems necessary to properly track and report on the status of applicants who are screened and who must undergo testing as required by this part, including a detailed analysis of costs for systems analysis, programming and testing of modifications and implementation dates for completion of the modifications.
  5. The drug testing plan shall require, at a minimum, the following:
    1. That the department shall establish a referral process for any applicant who tests positive to be referred to an appropriate treatment resource for drug abuse treatment or other resource by the department for an appropriate treatment period as determined by the department. The plan shall require evidence of ongoing compliance during the treatment period. If the applicant is otherwise eligible during the treatment period, the applicant shall receive TANF benefits during the treatment period no longer than six (6) months;
    2. That refusal of an applicant who tests positive to enter a treatment plan or failure to complete the treatment plan shall result in ineligibility for TANF benefits for six (6) months;
    3. That at the conclusion of the treatment period the applicant shall be tested again using the urine-based five (5) panel drug test, and the plan shall require that upon retesting, if the applicant tests positive for the use of drugs that is validated by a confirmation test, the applicant shall be ineligible for TANF benefits for six (6) months;
    4. That if the person tests positive for drugs in a subsequent drug test after the six (6) months disqualification period that person shall be ineligible to receive TANF benefits for one (1) year from the date of the positive confirmation drug test;
    5. That if a caretaker relative is deemed ineligible for TANF benefits as a result of failing a drug test, the dependent child's eligibility for TANF benefits is not affected, and an appropriate protective payee shall be designated to receive TANF benefits on behalf of the child who is under sixteen (16) years of age.

Acts 2012, ch. 1079, § 3; 2013, ch. 236, § 60.

Compiler's Notes. For the preamble to the act requiring applicants for TANF benefits to undergo a drug test before receiving such benefits, please refer to Acts 2012, ch. 1079.

Attorney General Opinions. Limitations on drug testing as a condition of receiving public assistance.  OAG 12-41, 2012 Tenn. AG LEXIS 40 (3/20/12).

Limitations on drug testing as a condition of receiving public assistance.  OAG 12-45, 2012 Tenn. AG LEXIS 45 (4/3/12).

71-3-1203. Submission of final plan and proposed rules.

The department shall submit to the health and welfare committee of the senate and the health committee of the house of representatives its final plan and proposed rules for administration of the drug testing program for TANF applicants by January 15, 2014, and shall implement the drug testing program beginning July 1, 2014, based on the plan submitted, unless otherwise directed by law.

Acts 2012, ch. 1079, § 4; 2013, ch. 236, § 60.

Compiler's Notes. For the preamble to the act requiring applicants for TANF benefits to undergo a drug test before receiving such benefits, please refer to Acts 2012, ch. 1079.

71-3-1204. Confidentiality.

  1. All information, interviews, reports, statements, memoranda and drug test results, written or otherwise, received by the department as part of the drug testing program established by this part shall be confidential and not subject to disclosure, and may not be used or received in evidence, obtained in discovery or disclosed in any public or private proceedings, except in accordance with the administration of this part or the TANF or successor program, or in proceedings conducted pursuant to title 37 concerning the protection or permanency of children or in adjudicating any claims or actions arising from the administration of this part, unless the person tested provides written consent permitting disclosure.
  2. Information regarding drug test results for tests administered pursuant to this part shall not be released to law enforcement authorities or used in any criminal proceeding against the applicant. Information released contrary to this section is inadmissible as evidence in a criminal proceeding.
  3. This section does not prohibit the department or a drug testing agency conducting a drug test from having access to an adult applicant's drug test information or using the information when consulting with legal counsel in connection with actions brought under or related to this section, or when the information is relevant to its defense in a civil or administrative matter.
  4. This section does not prohibit the reporting of child abuse, child sexual abuse, or neglect of child pursuant to title 37, chapter 1, part 4 or 6.

Acts 2012, ch. 1079, § 5.

Compiler's Notes. For the preamble to the act requiring applicants for TANF benefits to undergo a drug test before receiving such benefits, please refer to Acts 2012, ch. 1079.

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

71-3-1205. Rules.

  1. The commissioner of human services is authorized to adopt rules, pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, necessary for the administration of this part, and shall have rulemaking authority to promulgate 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 or related titles or parts.
  2. In promulgating rules, the commissioner shall consider, at a minimum:
    1. Testing procedures established by the United States departments of health and human services and transportation;
    2. Screening procedures established by substance abuse experts to determine that a person exhibits the criteria to determine that there is reasonable cause to suspect that a person is likely to use drugs as defined in this part;
    3. Body specimens and minimum specimen amounts that are appropriate for drug testing;
    4. Methods of analysis and procedures to ensure reliable drug testing results, including standards for initial tests and confirmation tests;
    5. Minimum cut-off detection levels for each drug or metabolites of the drug for the purposes of determining a positive test result;
    6. Chain-of-custody procedures to ensure proper identification, labeling and handling of specimens tested; and
    7. Retention, storage and transportation procedures to ensure reliable results of drug tests used in the administration of this part.

Acts 2012, ch. 1079, § 6.

Compiler's Notes. For the preamble to the act requiring applicants for TANF benefits to undergo a drug test before receiving such benefits, please refer to Acts 2012, ch. 1079.

71-3-1206. Confirmed positive drug test does not deem applicant handicapped or disabled.

An applicant whose drug test result is confirmed as positive in accordance with this part shall not, because of that result alone, be deemed to have a handicap or disability as defined under federal, state or local handicap and disability discrimination laws.

Acts 2012, ch. 1079, § 7.

Compiler's Notes. For the preamble to the act requiring applicants for TANF benefits to undergo a drug test before receiving such benefits, please refer to Acts 2012, ch. 1079.

71-3-107. Administration and organization — Rulemaking — Notice — Cooperation and review of rules by state entities.

71-3-115. Investment of funds in individual development or other accounts.

71-3-606. Welfare of child controlling.

Chapter 4
Programs and Services for Persons With Disabilities

Part 1
Aid to the Blind

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. 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.
  1. 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

71-4-201. Policy of state.

It is the policy of the state to encourage and enable persons who are blind or visually impaired to participate fully in the social and economic life of this state and to engage in remunerative employment.

Acts 1972, ch. 480, § 1; T.C.A., §§ 14-638, 14-14-101; Acts 2011, ch. 47, § 97.

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 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.

71-4-202. Employment by public agencies.

It is the further policy of this state that totally blind or partially blind persons and persons otherwise disabled shall be employed in the state service, the service of the political subdivisions of the state, in the public schools and in all other employment supported in whole or part by public funds on the same terms and conditions as the able-bodied, unless it is shown that the particular disability prevents the performance of the work involved in such employment.

Acts 1972, ch. 480, § 2; T.C.A., §§ 14-639, 14-14-102.

71-4-203. Division of services for the blind created.

  1. The department of human services shall create a division of services for the blind to develop measures for the prevention of blindness, the restoration of sight, and the vocational adjustment of blind persons, including employment in regular industries, independent business, workshops for the blind, or home industries, rehabilitation training and the instruction of adult blind in their homes; provided, that nothing in this section shall be construed to interfere with vending stands already located in state buildings and operated by blind persons.
  2. All state service regulations now in force and effect in other divisions of the department shall apply in carrying out this section; provided, that this subsection (b) does not apply to employees in the workshops for the blind paid on a piecework or hourly basis.

Acts 1953, ch. 13, §§ 1, 2 (Williams, §§ 4765.3b, 4765.3c); modified; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-601, 14-14-103; Acts 2012, ch. 800, § 49.

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

Cross-References. State service, title 8, ch. 30.

71-4-204. Purchases made by the state, governing subdivisions of the state, or public institutions.

All purchases made by any agency of the state, whether or not through the purchasing division of the department of general services, or by any county, municipality, or other governing subdivision of the state, or by any public institution, shall be made from an agency of the state or a nonprofit workshop for the blind in Tennessee, operating under the approval of the department of human services and the division of services for the blind. This requirement shall not apply if these products are not available within the time period provided in § 71-4-205, or in any case where products or services are available for procurement from any agency of this state and procurement from any agency of this state is required under any provisions of any law in effect on July 1, 1977.

Acts 1973, ch. 316, § 1; modified; 1977, ch. 283, § 2; T.C.A., §§ 14-646, 14-14-104.

71-4-205. Blind-made products — Conformity to standards — Prices.

Materials purchased from approved or state-operated workshops for the blind in Tennessee must conform to applicable federal standards and specifications for such products and be priced in accordance with prices provided by such standards. Workshops are to be given sixty (60) days from the date of receipt of the order to fill and deliver the order, in order to allow for procurement of materials and manufacture of the goods.

Acts 1973, ch. 316, § 1; modified; 1977, ch. 283, § 3; T.C.A., §§ 14-647, 14-14-105.

Part 3
Vocational Services to the Blind — Home Industries Program

71-4-301. Use of appropriation for home industries.

  1. The appropriation heretofore made by chapter 119 of the Public Acts of 1945 for the use and benefit of the department of human services shall be expended by the department for the purchase of raw materials and supplies to be used by blind persons in this state in home industries.
  2. The director of services for the blind of the department has jurisdiction, under the supervision of the commissioner of human services, of the expenditure and repayment of such funds.
  3. Despite any law to the contrary, purchases of such material by the director of services for the blind may be made without the necessity of taking bids for the purchases, advertisement for such bids or other restrictions now governing the purchases of materials generally on behalf of the state.

Acts 1945, ch. 119, § 1; mod. C. Supp. 1950, § 4765.79 (Williams, § 4765.78); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-614, 14-14-201.

71-4-302. Bond of director — Liability.

  1. The director of services for the blind shall be required to execute bond for the faithful accounting for and distribution of the funds coming into the director's hands under this part. The bond shall be in such sum as may be fixed by the commissioner of human services, with the approval of the governor, the payments for the bond to be made from such revolving fund.
  2. Any person having a claim against the director for an alleged mispayment or nonpayment of the proceeds of sale under this part shall have a right of action against such director under the bond required by subsection (a).

Acts 1945, ch. 119, § 2; C. Supp. 1950, § 4765.79 (Williams, § 4765.78); impl. am. Acts 1975, ch. 219, § 2 (a, b); T.C.A. (orig. ed.), §§ 14-615, 14-14-202.

71-4-303. Application for purchase of materials.

  1. Any blind person desiring that materials and supplies for home industries be purchased for such person's benefit shall make application to the director of services for the blind stating the materials desired, the finished product that it is proposed to make and form, the probable cost of the finished product, and the probable sale price of the finished product to be fabricated from such materials.
  2. Each such application shall likewise contain an express covenant on the part of such person to repay to the fund the amount furnished by it for the purchase of materials and supplies for the person's benefit, and also shall contain an express covenant on the person's part to deliver to the director all the finished products so made from such materials or so much of such materials and supplies furnished and not used.

Acts 1945, ch. 119, § 2; C. Supp. 1950, § 4765.79 (Williams, § 4765.78); T.C.A. (orig. ed.), §§ 14-616, 14-14-203.

71-4-304. Denial of application for materials.

The director of services for the blind may, at the director's discretion, decline to purchase material and supplies for any blind person under this part, whenever and if information available to such director indicates that there is a probability that the amount of such purchase will not be repaid to the state, that the blind person in question possesses sufficient financial ability to purchase such raw materials, that through intermingling of goods the raw materials and supplies purchased with advances from this fund or the finished product may not be satisfactorily identified to such an extent that a contract repayment may be enforced by identifying the finished product.

Acts 1945, ch. 119, § 2; C. Supp. 1950, § 4765.79 (Williams, § 4765.78); T.C.A. (orig. ed.), §§ 14-617, 14-14-204.

71-4-305. Sale of products — Distribution of proceeds.

  1. All finished products made from raw material and supplies purchased with the proceeds of advances under this part shall be detailed to the director of services for the blind at such times and places as the director may designate.
  2. Upon receipt of such finished articles, the director, with the approval of the commissioner, shall proceed to sell them in such manner and in such method, either singly or collectively, as will net the highest price. In case of a collective sale, the proceeds shall be ratably apportioned, when several blind persons contributed finished products, in proportion to the amount of such finished products made by each.
  3. Out of the proceeds of the sale of any finished product made by any blind person, the director of services for the blind shall repay to the revolving fund the amount of the advances made from it to the maker of such finished products and shall pay the remainder of the proceeds of such sale to such blind person.
  4. The director shall not be permitted to make or deduct any charges for the director's services in negotiating such sale.

Acts 1945, ch. 119, § 2; C. Supp. 1950, § 4765.79 (Williams, § 4765.78); T.C.A. (orig. ed.), §§ 14-618, 14-14-205.

Part 4
Vocational Services to the Blind — Business Enterprise Program

71-4-401. Program established — Purpose.

  1. The vocational rehabilitation service of the department of human services is authorized to establish and supervise a business enterprise program for the blind.
  2. The purpose of this program shall be to promote the vocational rehabilitation of blind individuals and to assist them in becoming self-supporting.

Acts 1949, ch. 99, § 1; C. Supp. 1950, § 4765.92 (Williams, § 4765.78a); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-619, 14-14-301; Acts 1994, ch. 723, § 1.

Cross-References. Vending stands, title 71, ch. 4, part 5.

71-4-402. [Reserved.]

Despite any provisions to the contrary, purchases of materials, equipment, stock and merchandise for use in a business enterprise program for the blind may be made by the director of services for the blind without the necessity of taking bids for the purchases, advertisement for such bids or other restrictions governing the purchase of materials generally on behalf of the state.

Acts 1949, ch. 99, § 3; C. Supp. 1950, § 4765.92 (Williams, § 4765.78c); T.C.A. (orig. ed.), §§ 14-621, 14-14-303.

71-4-404. Certification of disbursements and repayments.

Disbursements from and repayments to the revolving fund shall be made on the certification of the director of services for the blind.

Acts 1949, ch. 99, § 4; C. Supp. 1950, § 4765.92 (Williams, § 4765.78d); impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed.), §§ 14-622, 14-14-304.

71-4-405. Rules governing disbursements — Liability for losses.

Disbursements from the revolving fund shall be made in accordance with rules and regulations recommended by the director approved by the commissioner; provided, that the director shall not be accountable for losses incurred in the making and obtaining of repayment of such advance except for losses due to the director's willful misconduct.

Acts 1949, ch. 99, § 5; C. Supp. 1950, § 4765.92 (Williams, § 4765.78e); T.C.A. (orig. ed.), §§ 14-623, 14-14-305.

Part 5
Vocational Services to the Blind — Vending Stands

71-4-501. Legislative intent — Construction.

It is the intent of the general assembly to grant to blind individuals a priority in the establishment and operation of vending facilities on public property in this state. To that end, this part shall be liberally construed to give the blind individuals who are eligible for such priority the greatest possible opportunities to operate such vending facilities so that they may become self-supporting.

Acts 1994, ch. 723, § 2.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

Cross-References. Business enterprise program, title 71, ch. 4, part 4.

Attorney General Opinions. Property owned or leased by a local municipality, including jails and correctional centers, is subject to the provisions of T.C.A. §§ 71-4-501 through 71-4-508, which require a municipality to give preference to blind vendors in operating vending facilities, OAG 01-128, 2001 Tenn. AG LEXIS 119 (8/17/01).

Blind vendor contract, OAG 04-083, 2004 Tenn. AG LEXIS 88 (4/30/04).

Applicability of the blind vendors program to fire stations, OAG 04-083, 2006 Tenn. AG LEXIS 32 (4/30/04).

Applicability of the blind vendors program to the county sheriff's office, OAG 07-91, 2007 Tenn. AG LEXIS 91 (2/21/06).

Applicability of blind vendors program to municipal property.  OAG 11-39, 2011 Tenn. AG LEXIS 41 (4/28/11).

71-4-502. Part definitions.

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

  1. “Blind individual” means any person who meets the requirements for services through the business enterprise program for the blind under part 4 of this chapter and who has been trained and licensed by the department to operate a vending facility under the program's requirements;
  2. “Department” means the department of human services or its successor that has been designated under the Randolph-Sheppard Act (20 U.S.C. §§ 107-107f), as the state licensing agency;
  3. “Priority” means the right of the department to establish on any public property a vending facility to be operated by a blind individual. This priority means that when the department has surveyed a public property and determined that such property is suitable for the location of a vending facility, it shall have the right of first refusal and the exclusive right to the operation of any and all vending facilities on any public property that it determines are capable of being operated by a blind individual that it licenses, or by an individual who may be operating the facility as a temporary manager until a licensed blind individual can assume the operation of the vending facility. Except as provided in subdivision (4) and §§ 71-4-504 — 71-4-506, the priority shall apply to all existing, altered, or new buildings, facilities, or grounds. This priority shall be exercised exclusively by the department in its sole discretion on behalf of legally blind individuals who are qualified and licensed as vending facility managers by the department and who are deemed capable of providing the type of service required by the management of the public property;
  4. “Public property” means all property owned or leased by the state of Tennessee, any county, municipality, or any other entity that is created by act of the general assembly to perform any public function; provided, that primary and secondary schools, and entities created under title 42, and their operations, are specially excluded from this definition; and provided further, that institutions that are governed by the University of Tennessee system or the state university and community college system and their operations are also specifically excluded from this definition, except that the vending facilities presently in operation at such institutions on April 29, 1996, shall continue to operate at their present locations or, if necessary, at a location comparable in terms of potential patronage, with the priority established by this part. Moreover, the existing priority shall extend to any new structures on any of the campuses governed by the University of Tennessee or the state university and community college system and the priority shall also extend to the establishment of at least one (1) vending facility on any new campus that is developed either by the University of Tennessee system or the state university and community college system. Nothing in this part shall limit the ability of an institution that is governed by the University of Tennessee or the state university and community college system to contract for food services (cafeterias, restaurants, food courts and catering services) in new buildings or on new campuses; provided, that a site suitable to the institution, after consultation with the department, is also made available for a blind vendor to manage and operate automated vending machines and/or a counter service as jointly agreed to by the institution and department in the new building or on the new campus; and
  5. “Vending facility” means a location or structure or space that may sell foods, beverages, confections, newspapers, periodicals, tobacco products, and other articles and services that are dispensed automatically by a machine or manually by sales personnel or attendants and that may be prepared on or off the premises in accordance with applicable health laws. A “vending facility” may consist, exclusively or in appropriate combination as determined by the department, of automatic vending machines, cafeterias, snack bars, catering services, food concession vehicles, cart services, shelters, counters, and any appropriate equipment necessary for the sale of articles or services described in this subdivision (5). A “vending facility” may encompass more than one (1) building on a public property.

Acts 1994, ch. 723, § 2; 1996, ch. 829, § 1; 2012, ch. 976, § 1.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

Acts 2012, ch. 976, which amended the definition of “public property”, shall be known and may be cited as the “Scott Young Blind Vendors Act.”

Attorney General Opinions. Entities encompassed within the statutory definition of “public property” are subject to the priority found at subsection (3) of this section and must provide the department of human services notice and an opportunity to exercise its right of first refusal or, with regard to cafeterias, to submit a proposal for the operation of the proposed cafeteria, OAG 04-166, 2004 Tenn. AG LEXIS 177 (11/19/04).

There are no specific statutory remedies for a public property's failure to recognize the priority established under subsection (3) of this section; instead, a dispute resolution mechanism for disputes that may arise between the department of human services and the management of public property “concerning any matter contained in this part” is provided pursuant to T.C.A. § 71-4-507, OAG 04-166, 2004 Tenn. AG LEXIS 177 (11/19/04).

Interpretation of T.C.A. § 71-4-502(4), OAG 06-155, 2006 Tenn. AG LEXIS 175 (10/9/06).

The statutory definition of the term “vending facility” gives the department of human services the discretion to determine the services that it will, or will not, perform while still retaining the statutory priority to other vending facility services under T.C.A. §§ 71-4-502(5) and 503, OAG 06-156, 2006 Tenn. AG LEXIS 176 (10/9/06).

71-4-503. Vending facilities on public property — Priority — Establishment.

  1. Whenever any new buildings or other facilities are to be constructed by the state or on any other public property or when any existing contracts expire or are changed in any way, the department shall be notified and it shall promptly make an investigation and survey of the public property to determine if, in its judgment, the location is suitable for one (1) or more vending facilities. If, in the department's judgment, the location is suitable for a vending facility, the department may exercise its priority to establish such a vending facility.
  2. If the department exercises the priority under this part, it shall have the right to establish such a vending facility, and it shall provide the necessary alterations, plumbing and electrical services, the necessary equipment, merchandise, a licensed or temporary manager, and the appropriate supervision of the manager. The public property management shall cooperate with the department in whatever manner necessary in order for it to carry out this part. The space for the vending facilities and utilities shall be provided at no cost; provided, that the cost of telephone service shall not be the responsibility of the public property management. In cafeteria operations, the licensed or temporary manager may be required to pay a percentage of sales to the public property management in accordance with agreements negotiated between the department and the public property management.

Acts 1994, ch. 723, § 2.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

Attorney General Opinions. The statutory definition of the term “vending facility” gives the department of human services the discretion to determine the services that it will, or will not, perform while still retaining the statutory priority to other vending facility services under T.C.A. §§ 71-4-502(5) and 503, OAG 06-156, 2006 Tenn. AG LEXIS 176 (10/9/06).

Applicability of blind vendors program to municipal property.  OAG 11-39, 2011 Tenn. AG LEXIS 41 (4/28/11).

71-4-504. Vending machines in lieu of on-site manager.

  1. If, after conducting a survey, the department determines that there is not sufficient population to support an on-site manager but the public property management desires vending machine services, the department shall have the right to place vending machines on the property and to make the necessary arrangements to ensure that vending machine services are provided and that the vending machines are properly maintained.
  2. The income generated from the vending machines placed under the provisions of this section shall accrue to the unassigned funds held by the department for its blind vendors.

Acts 1994, ch. 723, § 2.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

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).

71-4-505. Cafeterias.

  1. The priority established by this part applies to cafeterias, as defined by the department, as limited by this section.
  2. If a new cafeteria is to be constructed on public property or any existing cafeteria contracts on public properties expire, or both, the department shall receive notification pursuant to § 71-4-503 and shall be afforded the opportunity to submit a proposal for the operation of the proposed cafeteria. If the department's proposal, when considered with all other proposals, is found to be competitive in terms of quality of service, pricing of merchandise, and the rate of commission or the rental to be paid, then a priority shall be granted to the department and the cafeteria operation shall be awarded to the department. The department's proposal will not be considered competitive if its proposed payment of annual commissions, rental fees, or a combination of annual commission and rental fees, is not within two percent (2%) of that submitted by an organization that would otherwise be awarded the cafeteria operation. Nothing in this section shall be construed to allow the property management to take any action regarding an existing facility to defeat an already existing priority.
  3. If the department's proposal is rejected and there is disagreement as to whether the department's proposal is competitive, the dispute shall be resolved in accordance with § 71-4-507.

Acts 1994, ch. 723, § 2.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

71-4-506. Effect of part.

Nothing in this part shall supersede any cooperative agreements that are in effect between the department and public property management on July 1, 1994, regarding the current operation of vending facilities on public properties, nor shall anything in this part preclude the department from entering into future agreements that may be less restrictive than this part, if, in the department's judgment, such agreements are in the best interest of the program.

Acts 1994, ch. 723, § 2.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

71-4-507. Dispute resolution.

  1. Except as stated in subsection (b), if a dispute arises between the management of public property and the department concerning any matter contained in this part, then either party may file a complaint setting forth the dispute with the secretary of state. Within ten (10) days of the filing of the complaint, the secretary of state shall appoint an administrative law judge from the administrative procedures division of the secretary of state's office who shall set an administrative hearing to be held under the Uniform Administrative Procedure Act, compiled in title 4, chapter 5, part 3, within thirty (30) days of the appointment, unless for good cause shown a later time is deemed necessary. Notwithstanding other provisions of the law to the contrary, the secretary of state or the secretary of state's designee has the authority to render a final order following entry of an initial order by the administrative law judge. Such order shall be appealable as provided by § 4-5-322.
  2. The secretary of state shall be without jurisdiction to hear any complaint concerning the qualifications or status of a licensed or temporary manager who is operating under a license or agreement of the department, and shall be without jurisdiction to hear or establish any damage award for or against any person, any officer or employee of the state, or any public property's governing body or its officers or employees.
  3. The case may be heard and decided entirely upon stipulations and briefs of all parties without the presentation of oral or other written evidence, it being the intent of the general assembly to allow for an early resolution to the disputes arising under this part.

Acts 1994, ch. 723, § 2.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

Attorney General Opinions. There are no specific statutory remedies for a public property's failure to recognize the priority established under T.C.A. § 71-4-502(3); instead, a dispute resolution mechanism for disputes that may arise between the department of human services and the management of public property “concerning any matter contained in this part” is provided pursuant to this section, OAG 04-166, 2004 Tenn. AG LEXIS 177 (11/19/04).

There are no specific statutory remedies for a public property's failure to recognize the priority established under T.C.A. § 71-4-502(3); instead, a dispute resolution mechanism for disputes that may arise between the department of human services and the management of public property “concerning any matter contained in this part” is provided pursuant to this section, OAG 04-166, 2004 Tenn. AG LEXIS 177 (11/19/04).

71-4-508. Administrative review or evidentiary hearing.

  1. The department has exclusive jurisdiction to provide an opportunity for an administrative review or evidentiary hearing to a blind individual under this part who is dissatisfied with any action arising from the operation or administration of the vending facility program.
  2. The aggrieved blind individual licensed by the department shall submit a written request to the director of services for the blind for an administrative review or a full evidentiary hearing pursuant to the rules and regulations promulgated by the department, which shall be provided by the department to the blind individual. If the blind individual is dissatisfied with any action taken or decision rendered as a result of such hearing, that individual may file a complaint with the United States secretary of education for an arbitration hearing as provided by federal law and regulations.
  3. Nothing in this part shall be construed as a waiver of the state's sovereign immunity under the Eleventh Amendment of the Constitution of the United States or under the Constitution of Tennessee.

Acts 1994, ch. 723, § 2.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

71-4-509. Proceeds set aside for blind vendors.

  1. After considering the recommendation from the committee of blind vendors, the department shall set aside or cause to be set aside a percentage of the net proceeds of the vending facilities in a reasonable amount not to exceed fifteen percent (15%) of their net income and pursuant to a schedule approved by the United States secretary of education. Such funds shall be expended on behalf of blind vendors only for purposes specified by regulations promulgated in accordance with the Randolph-Sheppard Act (20 U.S.C. §§ 107-107f).
  2. All funds set aside pursuant to subsection (a) and funds in the account for unassigned funds established for the blind vendors program, and all other revenue, except funds appropriated by the state or matching federal funds, shall be invested by the state treasurer pursuant to § 9-4-603, for the benefit of those funds.

Acts 1994, ch. 723, § 2.

Compiler's Notes. Former part 5, §§ 71-4-501—71-4-509 (Acts 1967, ch. 46, § 1; 1967, ch. 349, § 1; 1973, ch. 372, §§ 1-6; 1975, ch. 176, § 1; 1978, ch. 658, § 658; T.C.A., §§ 14-636, 14-637, 14-640—14-645; Acts 1983, ch. 473, § 1; 1985, ch. 240, § 1; T.C.A., §§ 14-14-501—14-14-508), concerning vocational services to the blind and vending stands, was repealed by Acts 1994, ch. 723, § 2, effective July 1, 1994. For present provisions, see this part.

Part 6
Vocational Rehabilitation of the Blind

71-4-601. Short title.

This part may be cited as the “Vocational Rehabilitation of the Blind Law.”

Acts 1955, ch. 243, § 1; T.C.A., §§ 14-625, 14-14-401.

71-4-602. Part definitions.

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

  1. “Blind individual” means any person whose visual acuity with maximum correction does not exceed 20/200 in the better eye, except that in those instances in which the visual acuity exceeds 20/200 but is accompanied by a limitation in the fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees (20°), visual acuity is not a factor limiting eligibility. Those clients with serious eye disabilities not covered by this subdivision (1) will be accepted for services when referred to the division by the division of vocational rehabilitation, in the department of education; provided, that such referrals are supported by appropriate justification, and that the client is otherwise eligible. Likewise, when it is determined through careful evaluation of all factors that a client who is eligible under this subdivision (1) for services of the division can more adequately be served by the division of vocational rehabilitation, such client will be referred to that agency for services and will be accepted; provided, that the referral is justified by supporting evidence and the client is otherwise eligible for the services of that agency;
  2. “Blind individual with an employment barrier” means a person who is blind, and whose blindness constitutes a substantial barrier to employment;
  3. “Commissioner” means the commissioner of human services;
  4. “Department” means the department of human services;
  5. “Director” means the director of the division of services for the blind;
  6. “Division” means the division of services for the blind in the department of human services;
  7. “Eligible individual with employment barriers” when used with respect to diagnostic and related services, training guidance and placement, means any blind individual with a disability who is a citizen of this state, whose vocational rehabilitation is determined feasible by the division of vocational rehabilitation, and when used with respect to other vocational rehabilitation services, means an individual meeting the requirements of this subdivision (7) who is also found by the division to require financial assistance with respect to vocational rehabilitation services, after full consideration of the person's eligibility for any similar benefit by the way of pension, compensation and insurance;
  8. “Establishment of a workshop or rehabilitation facility” means:
    1. In the case of a workshop, the construction of a new building or the expansion, remodeling, or alteration of existing buildings, necessary to adapt such buildings to workshop purposes or to increase the employment opportunities in workshops, and the acquisition of initial equipment necessary for new workshops or to increase the employment opportunities in workshops; and
    2. In the case of a rehabilitation facility, the construction of a new building or the expansion, remodeling, or alteration of existing buildings, and initial equipment of such buildings, necessary to adapt such buildings to rehabilitation facility purposes or to increase their effectiveness for such purposes and initial staffing;
  9. “Maintenance” means the provision of money on behalf of a blind individual with employment barriers to cover the necessary living expenses, and health and maintenance essential to achieving the individual's vocational rehabilitation;
  10. “Nonprofit,” when used with respect to a rehabilitation facility or a workshop, means a rehabilitation facility and a workshop, respectively, owned and operated by a corporation or association, no part of the net earnings of which inures, or may lawfully inure, to the benefit of any private shareholder or individual and the income of which is exempt from taxation under § 101(6) of the Internal Revenue Code (26 U.S.C. § 101(6));
  11. “Physical restoration” includes:
    1. Corrective surgery or therapeutic treatment necessary to correct or substantially modify a physical or mental condition that is stable or slowly progressive and that constitutes a substantial barrier to employment, or that necessitates institutional care or attendant care, but that is of such a nature that such correction or modification may reasonably be expected to eliminate or substantially reduce such barrier within a reasonable length of time, and includes psychiatric treatment, dentistry, physical therapy, occupational therapy, speech or hearing therapy, treatment of medical complications and emergencies that are associated with or arise out of physical restoration services or are inherent in the conditions under treatment, and other medical services related to rehabilitation;
    2. Necessary hospitalization, either inpatient or outpatient, nursing or rest home care, in connection with surgery or treatment specified in subdivision (11)(A);
    3. Prosthetic devices essential to obtaining or retaining employment, or to achieving such ability of independent living as to dispense with the need for expensive institutional care or dispense with or largely dispense with the need of an attendant at home;
  12. “Prosthetic appliance” means any appliance designed to support or take the place of a part of the body, or to increase the acuity of a sensory organ;
  13. “Rehabilitation facility” means a facility operated for the primary purpose of assisting in the rehabilitation of physically handicapped individuals:
    1. That provides one (1) or more of the following types of services:
      1. Testing, fitting, or training in the use of prosthetic devices;
      2. Prevocational or conditioning therapy;
      3. Physical or occupational therapy;
      4. Adjustment training; or
      5. Evaluation or control of special disabilities; or
    2. Through which is provided an integrated program of medical, psychological, social, and vocational evaluation and services under competent professional supervision;
  14. “Remunerative occupation” includes employment as an employee or self-employed, practice of a profession, homemaking or farm and family work for which payment is in kind rather than cash, sheltered employment, and home industry or other homebound work of a remunerative nature;
  15. “Vocational rehabilitation” means making an individual able, or increasing an individual's ability to:
    1. Engage in a remunerative occupation; or
    2. Dispense with or largely dispense with the need of an attendant at home or expensive institutional care, through providing the individual needed vocational rehabilitation services;
  16. “Vocational rehabilitation services” means:
    1. Diagnostic and related services, including transportation, incidental to the determination of whether an individual is a blind individual with employment barriers, and if so, the individual's eligibility for, and the nature and scope of other vocational rehabilitation services to be provided; and
    2. The following services provided eligible blind individuals with employment barriers needing such services:
      1. Training;
      2. Guidance;
      3. Placement;
      4. Maintenance, not exceeding the estimated costs of subsistence during vocational rehabilitation;
      5. Occupational licenses, tools, equipment, initial stocks, including livestock, and supplies, including equipment and initial stocks and supplies for vending stands, books, and training materials to any or all of which the state may retain title;
      6. Transportation, other than provided as diagnostic and related services; and
      7. Physical restoration; and
  17. “Workshop” means a place where any manufacture or handiwork is carried on and that is operated for the primary purpose of providing remunerative employment to individuals with severe disabilities who cannot be readily absorbed in the competitive labor market.

Acts 1955, ch. 243, § 3; 1957, ch. 79, § 1; 1959, ch. 174, § 1; impl. am. Acts 1975, ch. 219, §§ 1 (a, b), 2 (a, b); Acts 1977, ch. 19, § 1; T.C.A., §§ 14-626, 14-14-402; Acts 2011, ch. 47, §§ 98-103.

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.

Cross-References. Division of vocational rehabilitation of the blind, § 71-4-604.

71-4-603. Declaration of policy — Plan.

  1. It is hereby declared to be the policy of this state to provide rehabilitation services, to the extent needed and feasible, to eligible blind individuals with employment barriers  throughout the state to the end that they may engage in useful and remunerative occupations to the extent of their capabilities, thereby increasing their social and economic well-being and that of their families, and the productive capacity of this state and of the nation, and also thereby reducing the burden of dependency on families and taxpayers.
  2. Pursuant to such policy, the vocational rehabilitation services shall be provided under this part to blind citizens throughout the state, and the vocational rehabilitation plan adopted pursuant to this part shall be in effect in all political subdivisions of the state.

Acts 1955, ch. 243, § 2; T.C.A., §§ 14-627, 14-14-403; Acts 2011, ch. 47, § 104.

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.

71-4-604. Creation of division of vocational rehabilitation of the blind — Director — Appointment — Regulations and state plan.

    1. The division of vocational rehabilitation of the blind, called “the division” in this part, and the office of director of rehabilitation of the blind, the incumbent of which is called the “director,” in this part are hereby established in the department of human services.
    2. The director shall be appointed, in accordance with established personnel standards, on the basis of training, experience and demonstrated ability in the field of vocational rehabilitation, or related fields, with the approval of the commissioner, and shall be the head of the division.
  1. Except as may be otherwise provided with respect to the blind, the division shall be the sole state agency to supervise and administer vocational rehabilitation services authorized by this part, under the state plan formulated and administered pursuant to this part, except such part or parts of the vocational rehabilitation services as may be administered in a political subdivision or subdivision of this state by a sole local agency of the subdivision, and the division shall be the sole agency to supervise such local agency or agencies in the administration of such part or parts of the vocational rehabilitation services.
  2. The director shall prepare, conformable to this part, the proposed regulations and a proposed state plan of vocational rehabilitation, and from time to time prepare such proposed changes as shall appear to be necessary or desirable. Upon approval of the proposed regulations and proposed state plan by the commissioner, such approved proposals shall constitute the state regulations and state plan.

Acts 1955, ch. 243, § 4; 1972, ch. 506, § 4; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-628, 14-14-404.

Cross-References. Division of services for the blind, § 71-4-602.

71-4-605. Types of services — Workshops — Federal funds — Gifts.

  1. All rehabilitation services, as defined in this part, may be provided under this part to eligible blind handicapped individuals, and in any event, such services shall include training, maintenance, placement, guidance and physical restoration services.
  2. Within such limits and under such conditions as may be specified in appropriations for rehabilitation facilities and workshops for the blind, the department may establish rehabilitation facilities and workshops for the blind.
    1. Appropriations, federal grants and donations for vocational rehabilitation services for the blind, unless otherwise restricted, shall be available for all vocational rehabilitation services for the blind provided under the state plan for the blind, and for the acquisition of vending stands or other equipment and initial stocks, including livestock, and supplies for use by blind individuals in any type of small business, the operation of which will be improved through management and supervision by the division.
    2. State appropriations and donations for vocational rehabilitation of the blind shall likewise be available for the purpose, whenever federal funds are made available to the state under § 3 of the federal vocational rehabilitation of the blind amendments of 1954, for initiating projects for the extension and improvement of vocational rehabilitation services for the blind, or under § 4 of such act for projects for research, demonstrations, training and traineeships, and for planning for an initiating expansion of vocational rehabilitation services for the blind under the state plan for the blind.
    3. The general assembly shall appropriate for vocational rehabilitation of the blind such sums as are necessary, along with available federal and other funds, to carry out the purposes of this part. The acceptance of such federal and other funds, and their use for vocational rehabilitation of the blind, subject to such restrictions as may be imposed by the donor and are not inconsistent with this part, is hereby authorized.
  3. The state treasurer is hereby designated as the custodian of all funds received from the federal government for the purpose of carrying out any federal statutes pertaining to the vocational rehabilitation of the blind.
  4. The director is hereby authorized and empowered with the approval of the commissioner to accept and use gifts made unconditionally by will or otherwise for carrying out the purposes of this part. Gifts made under such conditions, as in the judgment of the commissioner are proper and consistent with this part, may be so accepted and shall be held, invested, reinvested, and used in accordance with the conditions of the gift.

Acts 1955, ch. 243, § 5; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-629, 14-14-405.

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

The federal act referred to in this section (Act Aug. 3, 1954, ch. 655, §§ 3, 4; 68 Stat. 662) is compiled in 20 U.S.C. §§ 107-107f.

71-4-606. Federal employees included.

Rehabilitation services provided under the state plan for the blind shall be available to any blind civil employee of the United States disabled while in the performance of the blind civil employee's duty, on the same terms and conditions as apply to other persons.

Acts 1955, ch. 243, § 6; T.C.A., §§ 14-630, 14-14-406.

71-4-607. Administration — Personnel — Rules and regulations.

  1. The department is hereby authorized to adopt and promulgate rules and regulations with respect to methods of administration, use of medical and other records of individuals who have been provided vocational rehabilitation services for the blind, and the establishment and maintenance of personnel standards, including provisions relating to the tenure, appointment and qualification of personnel, which shall govern with respect to such matters notwithstanding any other law; provided, that such activities must conform with any applicable rules and regulations of the department of human resources.
  2. The department of human services is also authorized and directed to adopt and promulgate rules and regulations respecting:
    1. The establishment and maintenance of minimum standards governing the facilities and personnel utilized in the provision of vocational rehabilitation services for the blind; and
    2. The order to be followed in selecting those to whom vocational rehabilitation services are to be provided in situations where such services cannot be provided to all eligible blind people.

Acts 1955, ch. 243, § 7; impl. am. Acts 1959, ch. 9, § 4; impl. am. Acts 1961, ch. 97, § 4; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., §§ 14-631, 14-14-407.

71-4-608. Cooperation and utilization of other agencies.

Pursuant to the general policies of the department, the director and the division are authorized to:

  1. Cooperate with and utilize the services of the state agency or agencies administering the state's public assistance program, the federal bureau of old-age and survivors insurance under the United States department of health and human services, and other federal, state and local public agencies providing services relating to vocational rehabilitation, and with the state system of public employment offices in the state, and shall make maximum feasible utilization of the job placement and employment counseling services and other services and facilities of such offices;
  2. Cooperate with political subdivisions, other public and nonprofit organizations and agencies, in their establishment of workshops and rehabilitation facilities, and, to the extent feasible in providing vocational rehabilitation services, shall utilize all such facilities meeting the standards established by the department;
  3. Enter into contractual arrangements with the federal bureau of old-age and survivors insurance under the United States department of health and human services, with respect to certifications of disability and performance of other services, and with other authorized public agencies for performance of services related to vocational rehabilitation, for such agencies;
  4. Contract with schools, hospitals, and other agencies, and with doctors, nurses, technicians and other persons, for training, physical restoration, transportation, and other vocational rehabilitation services; and
    1. Contract with a nonprofit organization or organizations for the management and operation of workshops for the blind located at Nashville and Memphis and, in fulfillment of the terms of such contract or contracts, lease the present workshop facilities to the organization or organizations for the period of time as specified in the contract; provided, that any contract entered into for this purpose shall not be effective until approved by the governor, attorney general and reporter, and comptroller of the treasury. Such contract shall also be governed by former § 12-4-109 [See the Compiler’s Notes] and the regulations promulgated pursuant to former § 12-4-109. A contractor that manages and operates a workshop under this subdivision (5) shall not be bound by enactments of the general assembly that govern:
      1. The administration of personnel, including title 8, chapter 30;
      2. The purchase of goods and services, including title 12, chapter 3 [see the Compiler’s Notes] and former §§ 12-4-109 and 12-4-110 [see the Compiler's Notes]; and
      3. The administration, disposition, and inventory of property and surplus property, including title 12, chapter 2 and § 4-3-1105.
    2. However, a contractor may purchase, inventory, and dispose of goods, property, and surplus property under these laws, with the approval of and under conditions set by the procurement commission. The department of general services may, upon request, purchase supplies and equipment for a contractor to manage and operate a facility. The purchases shall be made on the same terms and rules that govern the purchase of supplies and equipment by such department. The contractor shall pay for all such purchases. Any contractor operating a workshop under this subdivision (5) shall pay the minimum wage, unless a certificate of exemption is granted under the federal Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.), as amended, and shall also comply with all other state and federal laws applying to employment in the private sector.

Acts 1955, ch. 243, § 8; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., § 14-632; Acts 1982, ch. 863, § 2; T.C.A., § 14-14-408; Acts 2011, ch. 295, § 19.

Compiler's Notes. Former title 12, ch. 3 was amended and reorganized by Acts 2013, ch. 403, §§ 8-70, effective July 1, 2013.

Former §§ 12-4-109 and 12-4-110, referred to in this section, were recodified by Acts 2013, ch, 403, effective July 1, 2013.  Provisions similar to former § 12-4-109 were transferred to other sections within title 12, ch. 3, parts 1 and 3. Provisions similar to former § 12-4-110 were transferred to § 12-3-303.

Provisions concerned old-age and survivors insurance, referred to in this section, are compiled in 42 U.S.C. § 401 et seq.

71-4-609. Maintenance not transferable — Exempt from creditors.

The right of a blind individual to maintenance under this part shall not be transferable or assignable at law or in equity, and shall be exempt from the claims of creditors.

Acts 1955, ch. 243, § 9; T.C.A., §§ 14-633, 14-14-409.

71-4-610. Hearing on grievances.

Any blind individual applying for or receiving vocational rehabilitation who is aggrieved by any action of the vocational rehabilitation service for the blind shall be entitled in accordance with regulations promulgated by the commissioner to a fair hearing, and the decision so made after such hearing shall be final.

Acts 1955, ch. 243, § 10; T.C.A., §§ 14-634, 14-14-410.

71-4-611. Illegal use of lists — Penalty.

  1. It is unlawful, except for purposes directly connected with the administration of the vocational rehabilitation program, and in accordance with regulations, for any person or persons to solicit, disclose, receive, or make use of, or authorize, knowingly permit, participate in, or acquiesce in the use of any list of, or names of, or any information concerning persons applying for or receiving vocational rehabilitation, directly or indirectly derived from the records, papers, files, or communications of the state or subdivisions or agencies of the state, or acquired in the course of the performance of official duties.
  2. A violation of this section is a Class C misdemeanor.

Acts 1955, ch. 243, § 11; T.C.A., §§ 14-635, 14-14-411; Acts 1989, ch. 591, § 113.

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

71-4-612. 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, § 4.

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

Part 7
Purchase of Goods and Services from Persons with Disabilities

71-4-701. Purpose — Applicability.

  1. The purpose of this part is to further the policy of the state to encourage and assist individuals with severe disabilities to achieve maximum personal independence through useful, productive, and gainful employment by assuring expanded competitive integrated employment opportunities, thereby enhancing their dignity and capacity for self-support and realizing independence and self-sufficiency.
  2. This part applies to all governmental entities that are supported in whole or in part by the general assembly.

Acts 1991, ch. 499, § 1; 1996, ch. 827, § 1; 2020, ch. 782, § 1.

Amendments. The 2020 amendment, in (a), substituted “individuals with” for “individuals who are blind or have other”, “expanded competitive integrated employment opportunities” for “an expanded and constant market for their commodities and services” and “realizing independence and self-sufficiency.” for “minimizing their dependence on welfare and need for costly institutionalization.”; and rewrote former (b) which read: “This part covers any political subdivision of the state having its own purchasing agency and includes governmental divisions of the state, counties, municipalities, school districts or any other public bodies supported in whole or in part by the general assembly. This part and participation under this program are optional for approved, nonprofit workshops for the blind in Tennessee and such workshops may proceed under part 2 of this chapter or under this part when seeking the purchase of their commodities and services. Participation under either program does not preclude approved, nonprofit workshops for the blind in Tennessee from participating in an alternative program at any time.”

Effective Dates. Acts 2020, ch. 782, § 3. July 15, 2020.

71-4-702. Part definitions.

As used in this part:

  1. “Central nonprofit agency” means the agency designated by the committee to facilitate, by subcontract or other means, the fulfillment of orders from governmental entities for commodities and services and to assist the committee in administering the program described under this part;
  2. “Certified commodities or services” means:
    1. Commodities and services that have been recommended by the central nonprofit agency as suitable for procurement by any state governmental entity or as suitable for statewide contracts and that are certified pursuant to procedures approved by the state procurement commission as to quality, availability, and fair market price; and
    2. Commodities and services that have been recommended by the central nonprofit agency as suitable for procurement by political subdivisions and that are certified by the chief financial officer of the political subdivisions as to quality, availability, and fair market price;
  3. “Committee” means the advisory committee for providing competitive integrated employment for individuals with severe disabilities, created by § 71-4-703;
  4. “Competitive integrated employment” means employment available to individuals with severe disabilities or a customized employment available to individuals with severe disabilities, at a setting typically found in the community, at minimum wage or greater with the same benefits as nondisabled employees receive, in which eligible individuals interact with nondisabled individuals, other than nondisabled individuals who are providing services to those eligible individuals, to the same extent that nondisabled individuals in comparable positions interact with other persons;
  5. “Governmental entity” means a state governmental entity or a political subdivision;
  6. “Individuals with severe disabilities” means individuals who have a physical or mental impairment that substantially limits major life activities;
  7. “Political subdivision” means any local governmental entity, including, but not limited to, any city, town, municipality, metropolitan government, county, utility district, school district, public building authority, housing authority, emergency communications district, and development district created and existing pursuant to the laws of this state, or any instrumentality of government created by any one (1) or more local governmental entities;
  8. “Production of commodities” means packaging, assembly, distribution, or other manufacturing processes; and
  9. “State governmental entity” means any agency, authority, board, commission, department, or office within the executive, legislative, or judicial branches of state government, or any autonomous state agency, authority, board, commission, council, department, office, or institution of higher education.

Acts 1991, ch. 499, § 1; 1996, ch. 827, §§ 2-6, 13; 2002, ch. 526, § 7; 2011, ch. 295, §§ 16, 19; 2014, ch. 739, § 1; 2020, ch. 782, § 1.

Compiler's Notes. Provisions concerning occupational safety and health, referred to in this section, are compiled in 29 U.S.C. § 651 et seq.

Amendments. The 2020 amendment rewrote the section which read: “As used in this part, unless the context otherwise requires: “(1)  ‘Blind' means an individual or class of individuals whose central visual acuity does not exceed 20/200 in the better eye with correcting lenses or whose visual acuity, if better than 20/200, is accompanied by a limit to the field of vision in the better eye to such a degree that its widest diameter subtends an angle no greater than twenty degrees (20°); “(2)  ‘Central nonprofit agency' means the agency designated by the committee to facilitate the distribution, by direct allocation, subcontract or any other means, of orders from state government for commodities and services on the procurement list among the work centers for the blind, agencies serving individuals with severe disabilities, and other entities, and to assist the committee in administering the program described under this part; “(3)  ‘Certified commodities or services' means: “(A)  The commodities produced with ‘value added' through manufacturing, repackaging or assembly processes; “(B)  The services provided with ‘value added'; and “(C)  Commodities and services that have been recommended by the central nonprofit agency as suitable for procurement by any entity of state government pursuant to this part and that are certified pursuant to procedures approved by the state procurement commission as to quality, availability and fair market price; “(4)  ‘Committee' means the advisory committee for purchase from the blind and other severely disabled, created by § 71-4-703; “(5)  ‘Individuals with severe disabilities' means an individual or class of individuals with a physical or mental disability other than blindness, which, according to criteria established by rules approved by the committee for purchase from the blind and other severely disabled, after consultation with appropriate entities of the state and taking into account the views of nongovernmental entities representing the disabled, constitutes a substantial impediment to employment and is of such a nature to prevent the individual with such a disability from currently engaging in regular competitive employment; “(6)  ‘Integrated settings' means a setting typically found in the community in which applicants or eligible individuals interact with nondisabled individuals, other than nondisabled individuals who are providing services to those applicants or eligible individuals, to the same extent that nondisabled individuals in comparable positions interact with other persons; “(7)  ‘Other entities' mean entities other than work centers for the blind and agencies serving individuals with severe disabilities that: “(A)  Comply with all laws including any applicable occupational safety and health standard prescribed by the secretary of labor of the United States; “(B)  In the production of commodities and in the provision of services pursuant to this part, during the fiscal year utilize blind or other individuals with severe disabilities for a minimum of fifty-one percent (51%) of the man-hours of direct labor required for the production or provision of the commodities or services; and “(C)  Work with agencies serving individuals with severe disabilities to identify blind or other individuals with severe disabilities for the man-hours of direct labor required for the production or provision of the commodities or services, and to provide supports necessary for their safe, productive and integrated employment; “(8)  ‘Qualified agency serving individuals with severe disabilities', referred to as 'agency serving individuals with severe disabilities' in this part, means an agency that: “(A)  Is organized under the laws of the United States or of this state and operated in the interest of individuals with severe disabilities who are not blind; “(B)  Complies with all laws including any applicable occupational safety and health standard prescribed by the secretary of labor of the United States; and “(C)  In the production of commodities and in the provision of services pursuant to this part, during the fiscal year employs blind or other individuals with severe disabilities for a minimum of fifty-one percent (51%) of the man-hours of direct labor required for the production or provision of the commodities or services; and “(9)  ‘Qualified nonprofit work center for the blind', referred to as 'work center for the blind' in this part, means an agency that: “(A)  Is organized under the laws of the state, operated in the interest of blind individuals, and the net income of which does not inure in whole or in part to the benefit of any shareholder or other individual; “(B)  Complies with the applicable occupational health and safety standards prescribed by the secretary of labor of the United States; “(C)  In the production of commodities and the provision of services, whether or not the commodities or services are procured as provided in this part, during the fiscal year employs blind individuals for a minimum of seventy-five percent (75%), or in accordance with the percentage of direct labor required under the terms and conditions of the Javits-Wagoner-O'Day Act, P.L. 92-28 (41 U.S.C. § 8502), or whichever is lesser, of the man-hours of direct labor required for the production or provision of commodities or services; and “(D)  Meets the criteria for determining nonprofit status under title 48, chapter 51, part 1, and is registered in good standing with the office of the secretary of state.”

Effective Dates. Acts 2020, ch. 782, § 3. July 15, 2020.

71-4-703. Advisory committee — Responsibilities — Purchasing requirements for governmental entities — Applicability of part.

    1. There is created the committee for providing competitive integrated employment for individuals with severe disabilities, and composed of the following:
      1. The commissioner of general services or the commissioner's designee;
      2. The commissioner of finance and administration or the commissioner's designee;
      3. The commissioner of human services or the commissioner's designee;
      4. The commissioner of mental health and substance abuse services or the commissioner's designee;
      5. The commissioner of intellectual and developmental disabilities or the commissioner's designee;
      6. The commissioner of transportation or the commissioner's designee;
      7. One (1) member who is a private citizen and parent of a child with disabilities, or an individual with disabilities;
      8. One (1) member who is a private citizen and represents agencies serving people who are blind;
      9. One (1) member who is a private citizen and represents entities serving people with disabilities; and
      10. One (1) member who is a private citizen and represents the business community.
    2. The governor shall appoint the private citizen members described in subdivisions (a)(1)(G)-(J) to three-year terms.
    3. The members of the committee shall organize and appoint a chair and determine their operating procedures. A majority of the members of the committee constitutes a quorum, and all official action of the committee requires a quorum.
    4. Members serve without compensation and do not receive travel expenses.
  1. The committee shall provide oversight to the central nonprofit agency in developing and implementing a state and political subdivision procurement program of commodities and services and in employing individuals with severe disabilities.
  2. The committee shall:
    1. Meet quarterly;
    2. Designate a central nonprofit agency for fulfillment of government orders for commodities or services;
    3. Require the central nonprofit agency to develop measures for evaluating its effectiveness; and
    4. Evaluate the activities of the central nonprofit agency to assure effective and efficient administration of this part.
  3. Every governmental entity that is supported in whole or in part by the general assembly may purchase all services or commodities required by the governmental entity from the central nonprofit agency as long as commodities or services purchased by state governmental entities are certified pursuant to procedures approved by the procurement commission and are available, and commodities or services purchased by political subdivisions are certified by the chief financial officer of the political subdivision.
  4. This part has precedence over any law requiring governmental entity procurement of commodities or services, except laws that require purchases from nonprofit organizations operating under §§ 71-4-204 and 71-4-205; laws establishing preference for blind vendors operating under chapter 4, part 5 of this title; and laws requiring purchases under §§ 41-22-118 — 41-22-124.
  5. This part does not apply in any case:
    1. In which commodities or services are available from any state governmental entity;
    2. Where the procurement commission determines that the commodities or services do not meet the reasonable requirements of a state governmental entity; or
    3. Where the chief financial officer determines that the commodities or services do not meet the reasonable requirements of the political subdivision.

Acts 1991, ch. 499, § 1; 1996, ch. 827, §§ 7-10; 2002, ch. 526, §§ 8, 9; 2010, ch. 1100, § 137; 2011, ch. 295, §§ 16, 19; 2012, ch. 575, § 2; 2014, ch. 739, § 2; 2020, ch. 782, § 1.

Compiler's Notes. The committee for purchase from the blind and other severely disabled, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

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.

Amendments. The 2020 amendment rewrote the section which read: “(a) There is created the committee for purchase from the blind and other severely disabled, which shall be composed of the following commissioners or their designees: the commissioners of general services, finance and administration, human services, mental health and substance abuse services, and intellectual and developmental disabilities. Additionally, there shall be three (3) members appointed by the governor for three-year terms who are private citizens. One (1) of these members shall represent nonprofit work centers for the blind, and one (1) shall represent nonprofit agencies serving individuals with severe disabilities. One (1) member shall represent the business community. The members of the committee shall organize and appoint a chair and determine their operating procedures. Members will serve without compensation, but shall be reimbursed for all necessary expenses incurred in the performance of their duties. “(b)  The committee shall provide oversight to the central nonprofit agency in developing and implementing a state procurement program of selected commodities and services from qualified work centers serving blind individuals, agencies serving individuals with severe disabilities, and other entities; shall have authority to select a central nonprofit agency to implement the procurement program; and shall recommend fair market price for commodities and services submitted to the procurement commission for certification pursuant to procedures approved by the procurement commission. “(c)  It is the committee's responsibility to: “(1)  Designate a central nonprofit agency to facilitate the distribution, among the work centers for the blind, agencies serving individuals with severe disabilities, and other entities, of orders of the government for commodities or services appearing on the procurement list, by direct allocation, subcontract or any other means; “(2)  Review those rules and regulations that will be proposed by the central nonprofit agency and to promulgate such rules that will effectively implement this part; “(3)  Conduct an annual evaluation of the activities of the central nonprofit agency under this part for the purpose of assuring effective and efficient administration of this part; and “(4)  Evaluate pricing proposed by the central nonprofit agency to determine fair market price, which recovers the cost projected to produce or provide such commodities or services. “(d)  All departments, institutions, agencies, and political subdivisions of this state supported in whole or in part by the general assembly shall purchase all services or commodities required by such departments, institutions, agencies or political subdivisions of this state from the central nonprofit agency; provided, that the articles or services are certified pursuant to procedures approved by the procurement commission and are available. This part has precedence over any law requiring state agency procurement of commodities or services, except laws that require purchases from nonprofit organizations operating under §§ 71-4-204 and 71-4-205, laws establishing preference for blind vendors operating under chapter 4, part 5 of this title, and laws requiring purchases under §§ 41-22-11841-22-124. “(e)  This part shall not apply in any case in which commodities or services are available from any agency of the state, or where the procurement commission determines that the commodities or services do not meet the reasonable requirements of a department, institution, agency, or political subdivision of this state.”

Effective Dates. Acts 2020, ch. 782, § 3. July 15, 2020.

71-4-704. Central nonprofit agency — Designation — Functions and operations — Fee.

  1. The functions and operations of the designated central nonprofit agency include, but are not limited to, the following:
    1. Ensure that the priorities for orders from governmental entities are maintained under this part and that opportunities are provided to individuals with severe disabilities to pursue competitive integrated employment;
    2. Evaluate the qualifications and capabilities of entities for production of commodities or performing services. The central nonprofit agency must assure that individuals with severe disabilities are receiving competitive integrated employment in the production of commodities or performance of services. At a minimum, fifty percent (50%) of the hours worked on the production of commodities or performing services in the program are required to be provided by individuals with severe disabilities. Hours worked by supervisors with severe disabilities are to be included in the determination;
    3. Recommend with appropriate justification, including recommended prices, suitable commodities or services for procurement and, as market conditions change, recommend price changes or revisions;
    4. Fulfill or distribute and allocate, by subcontract or any other means, orders from governmental entities; and
    5. Maintain the necessary records and monitor data on the entities to ensure compliance in the production of commodities and performance of services.
  2. The central nonprofit agency shall charge a fee for fulfilling the orders. This fee must not exceed rates approved by the committee. The fee must be factored as an administrative expense into the overall cost.

Acts 1991, ch. 499, § 1; 1996, ch. 827, §§ 11, 12; 2002, ch. 526, § 10; 2011, ch. 295, §§ 16, 19; 2014, ch. 739, § 3; 2020, ch. 782, § 1.

Amendments. The 2020 amendment rewrote the section which read: “(a) Under § 71-4-703, the state, through the committee, may designate a central nonprofit agency. “(b)  The functions and operations of the designated central nonprofit agency shall include, but not be limited to, the following: “(1)  Submit proposed rules and regulations necessary to implement this part. Such rules are to be submitted to, and approved by, the committee prior to promulgation; “(2)  Ensure that the priorities for the production of commodities and services are maintained under this part and that individuals with severe disabilities are placed in integrated settings; “(3)  Evaluate the qualifications and capabilities of the work centers for the blind, agencies serving individuals with severe disabilities, and other entities, to manufacture commodities or perform services and represent them to the committee under this part. In evaluating products, the central nonprofit agency must assure that the work centers for the blind, agencies serving individuals with severe disabilities, and other entities are contributing a ‘value added' to commodities or services that are being recommended under this program; “(4)  Recommend pursuant to procedures approved by the procurement commission, with appropriate justification, including recommended prices, suitable commodities or services for procurement from the work centers for the blind, agencies serving individuals with severe disabilities, and other entities and as market conditions change, recommend price changes or revisions or the reassignment of commodities and services to and from the certified products list; “(5)  Distribute and allocate, by direct allocation, subcontract or any other means, orders from governmental entities. The central nonprofit agency shall give a preference to work centers for the blind and agencies serving individuals with severe disabilities over other entities when initiating contracts to fulfill orders from government entities and when replacing the entity fulfilling the orders; “(6)  Contract with agencies serving individuals with severe disabilities to work with other entities to identify blind or other individuals with severe disabilities for the man-hours of direct labor required for the production or provision of the commodities or services, and to provide supports necessary for their safe, productive and integrated employment. Other entities shall pay a fee to cover the cost of the services provided by the agencies serving individuals with severe disabilities and may factor this fee as an administrative expense into its overall cost; “(7)  Maintain the necessary records and monitor data on the work centers for the blind, agencies serving individuals with severe disabilities, and other entities to ensure compliance in the production of a commodity or performance of a service; “(8)  When authorized by the committee, enter into contracts with the state procurement system for the furnishing of commodities or services provided by the work centers for the blind, agencies serving individuals with severe disabilities, and other entities; and “(9)  When distributing and allocating orders for commodities, priority shall be given to participating nonprofit work centers for the blind. “(c)  The central nonprofit agency shall charge a fee to participating work centers for the blind, agencies serving individuals with severe disabilities, and other entities for facilitating participation by their work centers under this part. This fee shall not exceed rates approved by the committee. The work centers for the blind, agencies serving individuals with severe disabilities, and other entities may factor this fee as an administrative expense into its overall cost.”

Effective Dates. Acts 2020, ch. 782, § 3. July 15, 2020.

71-4-705. Cooperation between committee and governmental entities — Annual report of committee.

  1. In furtherance of the purposes of this part and in order to contribute to the economy of state government, it is the intent of the general assembly that there be close cooperation between the committee and any state governmental entity from which procurement of commodities or services is required under the law currently in effect. The central nonprofit agency may enter into cooperative agreements, contracts, or other arrangements as may be determined to be necessary for the effective coordination and efficient realization of the objectives of this part.
  2. The committee shall annually report, on or before December 31, to the governor and to each member of the general assembly concerning the number of governmental entities participating in the program, the total dollar amount of purchases, and any other information the committee deems appropriate.

Acts 1991, ch. 499, § 1; 2014, ch. 739, § 4; 2020, ch. 782, § 1.

Amendments. The 2020 amendment, in (a), substituted “and any state governmental entity” for “and any agency of the state” and “agency may enter” for “agency is authorized to enter”; in (b), substituted “governmental entities” for “work centers for the blind, agencies serving individuals with severe disabilities, and other entities” and deleted “made from the participating work centers for the blind, agencies serving individuals with severe disabilities, and other entities by state agencies” following “dollar amount of purchases”; and deleted former (c) which read: “When any state governmental unit is out of compliance with the rules and regulations set forth by the committee under the terms and conditions specified in this part, a work center may seek to recover damages in accordance with the terms and conditions specified in title 9, chapter 8.”

Effective Dates. Acts 2020, ch. 782, § 3. July 15, 2020.

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

Part 8
Achieving a Better Life Experience (ABLE) Act

71-4-801. Short title.

This part shall be known and may be cited as “The Achieving a Better Life Experience (ABLE) Act.”

Acts 2015, ch. 470, § 1.

71-4-802. Purpose of part.

The purpose of this part is to authorize the establishment of a qualified ABLE program as an agency or instrumentality of the state to assist an eligible individual in saving money to meet the eligible individual's qualified disability expenses. The intent of the program is to encourage and assist individuals and families to save private funds for the purpose of supporting individuals with disabilities to maintain health, independence, and quality of life.

Acts 2015, ch. 470, § 2.

71-4-803. Part definitions.

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

  1. “Account” means an account established by; owned by; and for the benefit of an eligible individual, who is also the designated beneficiary on the account, and maintained under a qualified ABLE program for payment of the eligible individual's qualified disability expenses, as provided in this part;
  2. “Code” means § 529A of the Internal Revenue Code of 1986 (26 U.S.C. § 529A), as amended, and all rules, regulations, notices, and interpretations released by the United States treasury, including the internal revenue service;
  3. “Contracting state” means a state without a qualified ABLE program that has entered into a contract with a state with a qualified ABLE program to provide residents of the contracting state access to a qualified ABLE program;
  4. “Designated beneficiary” means the eligible individual who has established and owns an ABLE account, and for whose benefit the account has been established;
  5. “Disability certification” means a certification acceptable to the United States department of treasury made by the eligible individual or the eligible individual's parent or guardian certifying that the eligible individual has a medically determinable physical or mental impairment that results in marked and severe functional limitations and that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve (12) months, or is blind within the meaning of § 1614(a)(2) of the Social Security Act (42 U.S.C. §  1382c(a)(2)); and such blindness or disability occurred before the individual attained the age of twenty-six (26); and including a copy of the eligible individual's diagnosis relating to the individual's relevant impairment or impairments, signed by a physician meeting the criteria of § 1861(r)(1) of the Social Security Act (42 U.S.C. §  1395x(r)(1));
  6. “Eligible individual” means an individual who is entitled to benefits based on blindness or disability under title II or XVI of the Social Security Act (42 U.S.C. §§ 401-425 and 42 U.S.C. § 1381 et  seq.), and such blindness or disability occurred before the individual attained age twenty-six (26), or a disability certification for the individual was filed with the United States department of the treasury. The eligible individual is the account owner and the designated beneficiary on the account;
  7. “Legal representative” means an individual who or entity that can act on behalf of an eligible individual for the purpose of establishing, maintaining, transacting, and terminating an account, including, but not limited to, a parent, conservator, guardian, custodian, fiduciary, trustee, or individual or entity with a power of attorney;
  8. “Person” means an individual, association, corporation, trust, charitable organization, or other such entity;
  9. “Qualified ABLE program” or “program” means the ABLE program that is a qualified program pursuant to and in compliance with the code, and that is created pursuant to this part;
  10. “Qualified disability expenses” means any expenses related to the eligible individual's blindness or disability that are made for the benefit of an eligible individual who is the designated beneficiary. Qualified disability expenses include the following: education; housing; transportation; employment training and support; assistive technology and personal support services; health; prevention and wellness; financial management and administrative services; legal fees; expenses for oversight and monitoring; funeral and burial expenses; and other expenses approved by federal rules and regulations; and
  11. “State” means the state of Tennessee.

Acts 2015, ch. 470, § 3; 2016, ch. 793, § 4.

71-4-804. Trustees of qualified ABLE program — State treasurer authorized to establish qualified ABLE program — Program revenues.

  1. The commissioner of finance and administration, the chair of the finance, ways and means committee of the senate, the chair of the finance, ways and means committee of the house of representatives, and the state treasurer shall serve as trustees for a qualified ABLE program that may be established pursuant to this part.
  2. The state treasurer is authorized to establish a qualified ABLE program. If the state treasurer establishes a qualified ABLE program, the state treasurer shall develop a plan that shall include provisions for the implementation, administration, operation, marketing, investment options, customer service, and investment management services for the plan, which shall be approved by the remaining trustees. The state treasurer may modify the terms of the plan with the concurrence of the commissioner of finance and administration.
  3. All revenues collected by the program shall remain with the program. To the extent that the program has unused revenues during a given fiscal year, the unused revenues shall not revert to the general fund, but shall be carried forward to the next succeeding fiscal year or years, and shall be used to fund the program. For the purposes of this subsection (c), “revenues” include, but are not limited to, state appropriated funds, monetary gifts, grants, or any other monetary aids received by the program from public or private sources; however, “revenues” do not include the contributions and earnings in an ABLE account.

Acts 2015, ch. 470, § 4; 2016, ch. 793, § 5.

71-4-805. Authority of state treasurer.

The state treasurer has the following powers and authorities necessary and convenient to carry out the purposes and provisions of this part, the purposes and objectives of the program and the trustees' plan, and the powers delegated by any other law of this state and the code, including, but not limited to, the following express powers:

  1. Provide investment options or investment products for eligible individuals who have established an ABLE account;
  2. Purchase insurance from insurers licensed to do business in this state providing for coverage against any loss in connection with the program's property, assets, or activities;
  3. Make, execute, and deliver contracts, conveyances, and other instruments necessary and proper for the implementation of the program;
  4. Contract for the provision of all or any part of the services necessary for the administration, implementation, operation, or management of the program;
  5. Enter into a contract with another state that has a qualified ABLE program as a contracting state in order to provide similar benefits to Tennessee residents, or allow residents of other states to participate in a Tennessee qualified ABLE program;
  6. Contract with financial consultants, actuaries, auditors, investment managers, and other consultants and professionals as necessary to carry out the duties and responsibilities under this part and the plan established by the trustees. These services may be procured in a manner prescribed by the trustees without regard to the requirements of former § 12-4-109, if the trustees determine that the services are necessary or desirable for the efficient administration of this part. All expenses and fees incidental to the procurement of services shall be charged to and paid from participant accounts;
  7. Administer or operate the program at the direction of the trustees' plan;
  8. Promote, advertise, market, and publicize the program;
  9. Solicit and accept monetary gifts made by will, trust, or other disposition, grants, loans, and other monetary aids from any personal source or participate in any other way in any federal, state, or local governmental programs in carrying out the purpose of this part;
  10. Establish and impose reasonable residency requirements for designated beneficiaries that must be met by the designated beneficiary prior to establishing an account;
  11. Establish and impose reasonable limits on the number of accounts;
  12. Establish and impose limits on contributions that may be made by or on behalf of a designated beneficiary;
  13. Provide adequate safeguards to prevent aggregate contributions on behalf of a designated beneficiary in excess of the contribution limitations established by the trustees;
  14. Establish and impose restrictions for a change in or substitution of designated beneficiaries;
  15. Establish and impose limitations on distributions and rollovers from the account used for qualified disability expenses;
  16. Establish and impose restrictions or conditions on the transfer of account ownership;
  17. Establish and impose restrictions on the investment direction of deposits in an account and the interest earned thereon;
  18. Determine the disposition of an account upon the designated beneficiary's death or the abandonment of an account;
  19. Enter into memoranda of understanding with appropriate state agencies to develop, implement, and market educational programs and related informational materials to inform individuals with disabilities and their legal representatives about the ABLE program;
  20. Impose and collect application fees and other administrative fees and charges in connection with any transaction under this part;
  21. Promulgate reasonable rules as are necessary to carry out the purpose and intent of this part, and to ensure that the program is in compliance with the code and other applicable provisions of federal or state laws or rules. All such rules shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5;
  22. Enter into participation agreements with eligible individuals or an eligible individual's legal representative;
  23. Define the terms and conditions under which payments may be withdrawn from the program and impose reasonable charges for withdrawal;
  24. Enter into agreements with any public or private employer under which an employee may agree to have a designated amount deducted in each payroll period from the wages or salary due the employee for the purpose of making contributions to an account pursuant to a participation agreement. The agreement shall be subject to the approval of the trustees and in conformity with such terms and conditions as determined by the trustees. In the event the agreement is approved by the trustees, the employer shall be responsible for submitting to the trustees such information and for performing the duties prescribed by the trustees to implement its employee contributions to an account by payroll deduction. All costs and expenses incidental to implementing and administering a payroll deduction program shall be borne by the respective employer;
  25. Operate and provide for the operation of the program in a manner that qualifies the program under the code and takes any and all necessary action to maintain such qualification; provided, that the account owner's rights to fund the respective accounts shall not be limited or impaired;
  26. Seek rulings from the secretary of the United States department of the treasury and the internal revenue service relating to the program; and
  27. Make changes to the program that are required for eligible individuals to obtain federal income tax benefits or treatment provided by the code.

Acts 2015, ch. 470, § 5.

71-4-806. Accounts established for eligible individuals — Notice to United States treasury department — Monthly electronic statements to social security administration.

  1. The qualified ABLE program that is established and maintained by the state as an agency or instrumentality thereof shall comply with all requirements of the code and shall:
    1. Allow one (1) or more persons to make contributions for a taxable year into an account for the benefit of an eligible individual who is also the designated beneficiary during the taxable year. The designated beneficiary shall be an eligible individual at the time the account is established, at the time of any contribution to the account, and at the time of a distribution from an account for qualified disability expenses; and
    2. Limit one (1) eligible individual or designated beneficiary to one (1) account.
  2. The state treasurer shall submit a notice to the secretary of the United States department of the treasury at the time that an account is established. The notice shall contain the name and state of residence of the designated beneficiary and such other and further information as the secretary of the United States department of the treasury may require.
  3. On a monthly basis, the qualified ABLE program shall submit electronic statements to the commissioner of the social security administration containing distributions and account balances from all accounts.
  4. Contributions from a student's individualized education account to an achieving a better life experience account for the benefit of the student along with the earnings in the achieving a better life experience account may only be expended for the student's education expenses in accordance with this part, and the rules promulgated pursuant thereto, and the code.

Acts 2015, ch. 470, § 6; 2016, ch. 793, §§ 2, 3.

71-4-807. Administration of program by state treasurer.

The state treasurer shall carry out the day-to-day operations and responsibilities of the program. The state treasurer shall exercise such powers, duties, and responsibilities contained in this part to implement the purpose of this part; may assign any duties and responsibilities to the state treasurer's staff or private vendors and contractors, as the state treasurer deems necessary and proper; and may consult with professionals as necessary about the administration of the program. The state treasurer may also establish policies, guidelines, and operating procedures in accordance with this part.

Acts 2015, ch. 470, § 7.

71-4-808. Authority to offer investment options to participants.

Notwithstanding any other law to the contrary, the trustees shall be authorized to offer investment options to eligible individuals participating in the qualified ABLE program.

Acts 2015, ch. 470, § 8.

71-4-809. Authority of state treasurer to request assistance from and exchange data with other departments and agencies.

In conjunction with the state treasurer's authority contained in this part, the state treasurer has the authority to request assistance from, and exchange data with, other departments and agencies of the state in carrying out the purpose and intent of this part and the requirements contained in the code, including, but not limited to, the office of vital records. Notwithstanding any other law to the contrary, the office of vital records shall provide the state treasurer with vital records information without charge.

Acts 2015, ch. 470, § 9.

71-4-810. Assets, income and distributions exempt from taxation, garnishment, attachment or assignment.

Notwithstanding any other law to the contrary, all assets, income, and distributions of qualified ABLE programs as defined by the code, this part, or the laws of another state are exempt from any state, county, or municipal tax and shall not be subject to execution, attachment, or garnishment, nor shall any assignment thereof be enforceable in any court. This exemption shall include a qualified ABLE program defined in § 529A of the Internal Revenue Code (26 U.S.C. § 529A), and shall include any properly authorized payments made to or by such funds.

Acts 2015, ch. 470, § 10.

71-4-811. Suspension or termination of program.

If the trustees determine that the program is financially infeasible or is not beneficial to the citizens of this state or the state itself, the trustees may suspend or terminate the program immediately.

Acts 2015, ch. 470, § 11.

71-4-812. Disclosure of personal information prohibited — Exceptions.

  1. Notwithstanding any other law to the contrary, the state shall not disclose personal information about any person obtained in connection with an account established under this part, except under the following circumstances:
    1. To any individual or entity authorized by the eligible individual or the eligible individual's legal representative;
    2. In compliance with a subpoena or a court order;
    3. To the comptroller of the treasury or the comptroller's designees for the purpose of an audit;
    4. To the internal revenue service, the United States department of the treasury, or the social security administration for the purpose of filing notices, reports, statements, or any other required documentation; or
    5. In any administrative proceeding or court action involving the state, the department of the treasury, the state treasurer, or the remaining trustees relative to an account established under this part.
  2. For the purposes of this section, “personal information” shall include, but not be limited to, social security number; bank account numbers; transit routing numbers; credit card numbers; debit card numbers; business or residential addresses; telephone or cell phone numbers; e-mail addresses; disability certifications or determinations; and medical records.

Acts 2015, ch. 470, § 12.

71-4-1101. Short title.

This part may be cited as the “Aid to the Disabled Act.”

Acts 1953, ch. 16, § 18 (Williams, § 4765.170); T.C.A. (orig. ed.), §§ 14-401, 14-16-101.

Cross-References. Rental termination rights for the person with a physical disability, § 66-7-110.

Statewide early intervention program for handicapped infants, toddlers, and their families, § 49-10-702.

Law Reviews.

The Credibility Trap: Notes on a VA Evidentiary Standard, 45 U. Mem. L. Rev. 887  (2015).

71-4-1102. Part definitions.

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

  1. “Assistance” means money payments made to or in behalf of totally disabled 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 permanently and totally disabled persons in need, but does not include subdivisions (1)(A)-(1)(D) unless the federal 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. “Permanently and totally disabled” means that the individual has been determined to have a permanent physical or mental impairment, disease or loss that substantially precludes the individual from engaging in useful occupations within the individual's competence, such as holding a job or homemaking. Such determinations shall be made in accordance with standards that shall be established by the department in consultation with an advisory committee, which committee shall include physicians nominated by the state medical society, and after review of the medical findings by a reviewing physician or physicians;
  4. “Recipient” means a person who was receiving aid to the permanently and totally disabled 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
  5. “Regional director” means the director of a region, or a designated agent in a county office, under chapter 1, part 1, of this title.

Acts 1953, ch. 16, § 1 (Williams, § 4765.153); Acts 1957, ch. 117, § 15; 1965, ch. 9, § 1; 1973, ch. 337, § 3; 1974, ch. 628, § 7; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A. (orig. ed), § 14-402; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-102.

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.

Cross-References. Rental termination rights for the person with a physical disability, § 66-7-110.

71-4-1103. Eligibility for assistance.

Assistance shall be granted under this part to any permanently and totally disabled person who:

  1. Is eighteen (18) years of age or older;
  2. 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;
  3. 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;
    1. Is not an inmate of a public institution and:
      1. Is not a patient in an institution for tuberculosis or mental diseases; or
      2. Is not a patient in a medical institution as a result of a diagnosis of tuberculosis or psychosis;
    2. An inmate of any public institution ineligible under subdivision (4)(A) may, however, make application for such assistance, but the assistance, if granted, shall not begin until after such person ceases to be an inmate;
  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 for the same month old-age assistance, aid to the blind, or aid to dependent children;
  6. Was receiving aid to the permanently and totally disabled 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 1953, ch. 16, § 2 (Williams, § 4765.154); Acts 1955, ch. 30, § 1; 1955, ch. 125, § 1; 1957, ch. 81, § 3; 1957, ch. 116, § 2; 1965, ch. 9, § 2; 1967, ch. 51, §§ 1, 2; 1970, ch. 487, § 1; 1974, ch. 628, § 8; T.C.A. (orig. ed.), § 14-403; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-103.

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.

71-4-1104. 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 1953, ch. 16, § 3 (Williams, § 4765.155); modified; Acts 1957, ch. 22, § 5; 1957, ch. 117, § 16; 1961, ch. 27, § 1; 1965, ch. 9, § 3; 1967, ch. 51, § 3; 1973, ch. 303, § 18; 1974, ch. 628, § 9; T.C.A. (orig. ed.), §§ 14-404, 14-16-104.

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.

71-4-1105. Duties of department.

The department shall:

  1. Supervise the administration of assistance to the permanently and totally disabled under this part;
  2. Make such rules and regulations and take such action as may be necessary or desirable for carrying out this part to the end that equitable treatment shall be afforded to individuals in similar circumstances. 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 criteria for determining who is permanently and totally disabled within the meaning of § 71-4-1102;
  4. Establish standards for the determination of need of the individual including:
    1. Statewide requirements essential to maintaining a minimum standard of economic security based on studies of current living costs;
    2. Methods and procedures for measuring income and resources against such statewide requirements;
    3. Property reserves that will not preclude eligibility for assistance under this part;
  5. Employ personnel for the administration of this part in conformity with title 8, chapter 30, and the rules and regulations of the department of human resources;
  6. Prescribe the form of and supply to the regional directors such forms as it may deem necessary and desirable;
  7. 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 permanently and totally disabled 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 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; and
  8. Publish an annual report and such interim reports as may be necessary.

Acts 1953, ch. 16, § 4 (Williams, § 4765.156); modified; Acts 1973, ch. 303, § 19; 1974, ch. 628, § 10; T.C.A. (orig. ed.), § 14-405; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-105; Acts 2012, ch. 800, § 49.

Compiler's Notes. Acts 2012, ch. 800, § 1 provided that the act, which amended subdivision (5), shall be known and cited as the “Tennessee Excellence, Accountability, and Management (T.E.A.M.) Act of 2012.”

71-4-1106. 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 pursuant to this part, and shall report to the department at such times and in such manner as the department may direct.

Acts 1953, ch. 16, § 5 (Williams, § 4765.157); T.C.A. (orig. ed.), § 14-406; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-106.

71-4-1107. 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 1953, ch. 16, § 9 (Williams, § 4765.161); Acts 1973, ch. 303, § 21; 1974, ch. 628, § 11; T.C.A. (orig. ed.), § 14-411; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-107.

71-4-1108. Reconsideration of awards.

  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 and regulations 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.
    1. A recipient shall submit to a reexamination as to such recipient's permanent and total disability when required to do so by the regional director, or a designated agent, or the department.
    2. A recipient shall also furnish any information bearing on such recipient's eligibility required by the regional director, or a designated agent, or by the department.

Acts 1953, ch. 16, § 10 (Williams, § 4765.162); Acts 1957, ch. 117, § 19; 1973, ch. 303, § 23; T.C.A. (orig. ed.), § 14-413; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-108.

71-4-1109. Notice of change of status by 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 county office 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 payments 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 such 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 1953, ch. 16, § 11 (Williams, § 4765.163); Acts 1957, ch. 117, § 20; 1961, ch. 17, § 1; 1974, ch. 628, § 12; T.C.A. (orig. ed.), §§ 14-414, 14-16-109.

71-4-1110. 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 1953, ch. 16, § 12 (Williams, § 4765.164); T.C.A. (orig. ed.), §§ 14-415, 14-16-110.

71-4-1111. Amendment of law.

All assistance granted under this part shall be deemed to be granted to be held subject to any amending or repealing act 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 act.

Acts 1953, ch. 16, § 17 (Williams, § 4765.169); T.C.A. (orig. ed.), § 14-416; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-111.

71-4-1112. Assignment of benefits prohibited — Exemption from legal process.

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 1953, ch. 16, § 8 (Williams, § 4765.160); T.C.A. (orig. ed.), § 14-417; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-112.

Law Reviews.

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

71-4-1113. Fraudulent devices — Penalty.

A person who:

  1. Knowingly obtains, or attempts to obtain, or aids or abets any persons 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
  2. 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 1955, ch. 30, § 2; T.C.A., §§ 14-431, 14-16-113; Acts 1989, ch. 591, § 106.

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

71-4-1114. Charging disabled to file application — Illegal use of lists — Penalty.

  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 this part.
  2. 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 of names of, or any information concerning, persons applying for or receiving aid to the permanently and totally disabled, 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, except as provided by §§ 71-1-117 and 71-1-118.
  3. A person violating this section commits a Class C misdemeanor.

Acts 1955, ch. 30, § 3; impl. am. Acts 1975, ch. 219, § 1 (a, b); T.C.A., § 14-432; Acts 1986, ch. 905, § 2; T.C.A., § 14-16-114; Acts 1989, ch. 591, § 113.

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

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

71-4-1115. 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, § 3.

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

Part 12
Aid to Disabled Persons — Personal Care Service Subsidies

71-4-1201. Part definitions.

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

  1. “Division” means the division of vocational rehabilitation of the department of human services;
  2. “Employed” means engaged in activity of thirty (30) or more hours per week for which the individual receives remuneration at a rate not less than the federal minimum wage;
  3. “Family member” means an individual's parent, grandparent, sibling, child, spouse, spouse's parent, spouse's grandparent, spouse's sibling or spouse's child;
  4. “Personal care assistance services” means services rendered at least five (5) days a week at the times of day that are required by an individual with a severe physical disability to become physically independent in connection with actual employment. These services include, but are not limited to, any or all of following:
    1. Routine bodily functions, such as bowel or bladder care;
    2. Dressing;
    3. Preparation and consumption of food;
    4. Moving into, out of, or turning in bed;
    5. Routine bathing;
    6. Ambulation; or
    7. Any other similar activity of daily living as determined appropriate by the division; and
  5. “Severe physical disability” means a functional loss of both arms and both legs, when it is anticipated that the loss will be permanent.

Acts 1986, ch. 905, § 3; T.C.A., § 14-16-201.

71-4-1202. Authorized.

The division shall subsidize personal care assistance services pursuant to this part for an individual eligible under § 71-4-1205. Such subsidy for any individual shall not exceed forty (40) hours per week.

Acts 1986, ch. 905, § 4; T.C.A., § 14-16-202.

71-4-1203. Eligibility.

An individual is eligible for a personal care assistance services subsidy under this part if such individual:

  1. Is eighteen (18) years of age or older;
  2. Has a severe physical disability;
  3. Is receiving or has received vocational rehabilitation services from the division;
  4. Is employed or ready for employment;
  5. Has a need documented under § 71-4-1205 for not less than fourteen (14) hours a week of personal care assistance service provided by a person other than a family member, which services are necessary to enable the individual to be employed;
  6. Is not otherwise eligible for personal care assistance services under other state or federal programs;
  7. Agrees to a periodic reevaluation of such individual's need for personal care assistance services and of the extent of that need;
  8. Has no or insufficient personal income or other support from public services, family members or neighbors;
  9. Agrees to recruit, hire, fire, and supervise the person who provides personal care assistance services to such individual; and
  10. Qualifies under § 71-4-1206.

Acts 1986, ch. 905, § 5; T.C.A., § 14-16-203.

71-4-1204. Amount.

  1. The division shall determine the amount of subsidy provided under § 71-4-1202 by the following formula:
    1. Individual's annual gross income, including social security disability income (SSDI), supplemental security income (SSI) and disability pensions;
    2. Subtract federal and state income taxes paid from the amount in subdivision (a)(1);
    3. Subtract standard federal personal and state income tax exemptions from the remainder in subdivision (a)(2);
    4. Subtract F.I.C.A. or mandatory pension contributions from the remainder in subdivision (a)(3);
    5. Subtract impairment related work expenses that are incurred by the individual in order to function on a job and that are not reimbursed by a third party from the remainder in subdivision (a)(4);
    6. Divide the remainder in subdivision (a)(5) by two (2); and
    7. Subtract four thousand eight hundred dollars ($4,800) from the quotient in subdivision (a)(6).
  2. If there is no income remaining after application of the formula in subsection (a), the division shall subsidize full cost for personal care assistance services provided to that individual.
  3. If there is income remaining after application of formula in subsection (a), the cost to the division for personal care services provided to that individual shall be reduced by the amount of that income.
  4. This program may supplement any other program for which the individual is eligible.

Acts 1986, ch. 905, § 6; T.C.A., § 14-16-204.

Compiler's Notes. Provisions regarding the F.I.C.A. (Federal Insurance Contributions Act) referred to in this section, are compiled in 26 U.S.C. §§ 3101-3126.

Provisions regarding social security disability income, referred to in this section, are codified in 42 U.S.C. § 423.

Provisions regarding social security income, referred to in this section, are compiled in 42 U.S.C. § 1381 et seq.

71-4-1205. Eligibility evaluation teams.

  1. The director of the division shall designate one (1) or more evaluation teams, which shall consist of at least two (2) persons, one (1) of whom shall be a licensed medical professional and one (1) of whom shall be a licensed occupational therapist or physical therapist.
  2. Each individual who applies to the division for a personal care assistance services subsidy shall be evaluated by an evaluation team, which shall determine the need of that individual for personal care assistance service and the extent of that need.
  3. An individual receiving a personal care assistance services subsidy pursuant to this part shall be periodically reevaluated by an evaluation team to determine such individual's continuing need for personal care assistance services and the extent of that need.

Acts 1986, ch. 905, § 7; T.C.A., § 14-16-205.

71-4-1206. Rules and regulations — Establishment of hourly rate.

  1. The commissioner of human services shall promulgate, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, such rules as shall be necessary to ensure that this part is implemented in an efficient and effective manner.
  2. The commissioner is authorized to establish the hourly rate for the subsidy for personal care assistance services. Funding for the subsidy provided by this part shall be from year to year as such funds are specifically appropriated in the general appropriations act pursuant to title 9, chapter 4, part 51.

Acts 1986, ch. 905, § 8; T.C.A., § 14-16-206.

71-4-1207. Funds.

  1. In addition to any state funds appropriated to provide services under this part, the department of human services may apply for and use any federal or private funds, grants, and other support that is available to carry out the personal care assistance program.
  2. Expenditures under this part shall be subject to the approval of the commissioner of finance and administration.

Acts 1986, ch. 905, §§ 11, 13; T.C.A., § 14-16-207.

71-4-1208. Annual reports — Register of individuals.

The department of human services shall annually report to the governor and the general assembly on the progress made in the personal care assistance program and shall maintain a register of individuals served and individuals eligible for the program but unserved.

Acts 1986, ch. 905, § 9; T.C.A., § 14-16-208.

71-4-1209. [Reserved.]

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, § 2.

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

71-4-2101. Part definitions.

  1. A “deaf-blind person” means the same as an “individual who is deaf-blind” and both mean any individual:
      1. Who has a central visual acuity of 20/200 or less in the better eye with corrective lenses, or a field defect such that the peripheral diameter of visual field subtends an angular distance no greater than twenty degrees (20°), or a progressive visual loss having a prognosis leading to one (1) or both these conditions;
      2. Who has chronic hearing loss so severe that most speech cannot be understood with optimum amplification, or a progressive hearing loss having a prognosis leading to this condition; and
      3. For whom the combination of vision and hearing loss described in subdivisions (1)(A)(i) and (ii) cause extreme difficulty in attaining independence in daily life activities, achieving psychosocial adjustment, or obtaining a vocation;
    1. Who despite the inability to be measured accurately for hearing and vision loss due to cognitive or behavioral constraints, or both, can be determined through functional and performance assessment to have severe hearing and visual disabilities that cause extreme difficulty in attaining independence in daily life activities, achieving psychosocial adjustment, or obtaining vocational objectives; or
    2. Meets such other requirements as the secretary may prescribe by regulation;
  2. A “deaf person” means a person whose hearing loss is total or whose hearing loss, with or without amplification, is so significant that the primary means of receiving spoken language is through visual input, including, but not limited to, speechreading, sign language, finger spelling, or writing; and
  3. “Secretary” means the United States secretary of education.

Acts 1978, ch. 889, § 1; T.C.A., § 14-2501; Acts 1983, ch. 48, § 1; T.C.A., § 14-18-101; Acts 2013, ch. 455, § 1; 2019, ch. 329, §§ 3-5.

Compiler's Notes. 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. S 12101 et seq.), or any other relevant law.

Amendments. The 2019 amendment, in the definition of “deaf-blind person”, substituted “chronic hearing loss” for “a chronic hearing impairment” in (1)(A)(ii), and substituted “vision and hearing loss” for “impairments” in (1)(A)(iii); and rewrote the definition of  “deaf person” which read: “A “deaf person” is defined as one whose hearing is totally impaired or one whose hearing, with or without amplification, is so seriously impaired that the primary means of receiving spoken language is through visual input such as, but not limited to, speechreading, sign language, finger spelling, or writing; and”.

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

71-4-2102. Creation of the Tennessee council for the deaf, deaf-blind and hard of hearing.

Effective July 1, 2013, there is hereby created the Tennessee council for the deaf, deaf-blind, and hard of hearing, which has the duty to:

  1. Advocate services affecting people who are deaf, deaf-blind, and hard of hearing in the areas of public services, health care, education, vocational training, employment opportunity, emergency services, resource sharing and communication;
  2. Act as a bureau of information for people who are deaf, deaf-blind, and hard of hearing to state agencies and public institutions providing health care, employment, vocational, educational services, resource sharing, and emergency services to the deaf, deaf-blind, and hard of hearing, and to local agencies and programs;
  3. Collect facts and statistics and other special studies of conditions affecting the health and welfare of people who are deaf, deaf-blind, and hard of hearing in this state;
  4. Provide for a mutual exchange of ideas and information on the national, state, and local levels;
  5. Encourage and assist local governments and agencies in the development of programs for people who are deaf, deaf-blind, and hard of hearing;
  6. Cooperate with public and private agencies and units of local, state, and federal governments in promoting coordination in programs for the deaf, deaf-blind, and hard of hearing;
  7. Authorize the executive director to prepare an annual report and needs assessment to the council that reviews the status of state services for the deaf, deaf-blind, and hard of hearing. The council shall submit the approved report and needs assessment to the governor, lieutenant governor, and speaker of the house of representatives and make this report available to organizations serving the deaf, deaf-blind, and hard of hearing; and
  8. Make recommendations for needed improvements and to serve as an advisory body in regard to new legislation affecting the deaf, deaf-blind, and hard of hearing.

Acts 1978, ch. 889, § 2; T.C.A., §§ 14-2502, 14-18-102; Acts 2001, ch. 174, § 14; 2013, ch. 455, § 1.

Compiler's Notes. The Tennessee council for the deaf, deaf-blind and hard of hearing, created by this section, terminates June 30, 2027. See §§ 4-29-112, 4-29-248.

For transfer of the council for the hearing impaired from the department of education to the department of human services, see Executive Order No. 43 (February 11, 1983).

71-4-2103. Members — Terms — Meetings — Reimbursement for expenses.

  1. The council for the deaf, deaf-blind, and hard of hearing shall consist of eighteen (18) members and shall be composed as follows: the commissioners of education, human services, health, mental health and substance abuse, and safety or their designees, the assistant commissioner of rehabilitation services or the assistant commissioner's designee, a representative of the Tennessee public utility commission, a representative of the Tennessee Emergency Management Agency, the president of the Tennessee Association of the Deaf, two (2) deaf consumer representatives appointed by the governor, one (1) president of a Hearing Loss Association of America chapter, two (2) hard of hearing consumer representatives appointed by the governor, the president of the Tennessee Registry of Interpreters for the Deaf, the president of the Tennessee Hands & Voices, one (1) deaf-blind representative who may be appointed by the governor from lists of qualified persons submitted by interested deaf-blind groups including, but not limited to, the Tennessee Organization of the Deaf-Blind and the Tennessee Deaf-Blind Association, and one (1) minority representative who may be appointed by the governor from lists of qualified persons submitted by interested minority deaf advocate groups including, but not limited to, chapters of the Tennessee Black Deaf Advocates. In appointing the deaf-blind representative and the minority representative to the council as provided in this subsection (a), the governor shall consult with interested deaf-blind and minority deaf advocate groups to determine qualified persons to fill the positions.
  2. The deaf, deaf-blind and hard of hearing representatives shall serve terms of three (3) years, except that to ensure staggered terms, the governor shall designate that two (2) of the six (6) members initially appointed to serve a one-year term, two (2) to serve two-year terms, and two (2) to serve three-year terms. Any position that becomes vacant prior to the expiration of a full term shall be filled only for the period of the unexpired term. In making appointments to the council for the deaf, deaf-blind, and hard of hearing, the governor shall strive to ensure that at least one (1) person appointed to serve on the council is sixty (60) years of age or older.
    1. The commissioner of education shall call the first meeting of the council, at which time, and annually thereafter, the members shall elect a chair. Thereafter, the council shall meet at the call of the chair, but at least quarterly.
      1. Council members shall attend at least fifty percent (50%) of the required quarterly meetings.
      2. Any council member who fails to attend meetings as required in subdivision (c)(2)(A) shall be removed as a member by the appointing authority.
  3. Members of the council shall receive no compensation for their services other than reimbursement for traveling and other expenses incurred in the performance of their official duties. 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 1978, ch. 889, § 3; 1979, ch. 106, § 1; T.C.A., §§ 14-2503, 14-18-103; Acts 1987, ch. 6, § 4; 1988, ch. 1013, § 75; 2001, ch. 174, § 15; 2010, ch. 1100, § 138; 2013, ch. 455, § 1; 2015, ch. 36, § 3; 2017, ch. 94, § 76.

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.

71-4-2104. Executive director — Duties — Qualifications.

  1. The council for the deaf, deaf-blind, and hard of hearing shall recommend to the governor an executive director and shall fix the executive director's duties and responsibilities. The executive director shall serve as executive officer and secretary to the council and shall be a full-time employee of the council. Compensation for the executive director shall be established by the council with the approval of the commissioner of human resources. 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 executive director, with the advice and consent of the council, may, to the extent of available funds, plan and oversee the establishment of service centers for the deaf, deaf-blind, and hard of hearing, as well as, or in addition to, support and coordinate the activities of the existing centers in cooperation with the local board of directors.
  3. The executive director, with the advice and consent of the council, shall:
    1. Promote accessibility of all governmental services to deaf, deaf-blind, and hard of hearing citizens in Tennessee;
    2. Identify agencies, both public and private that provide community services, evaluate the extent to which they make services available to deaf, deaf-blind, and hard of hearing people, and cooperate with the agencies in coordinating and extending these services;
    3. Encourage the mutual exchange of ideas and information on services for deaf, deaf-blind, and hard of hearing people between federal, state and local governmental agencies, and private organizations and individuals;
    4. Survey the needs of people who are deaf, deaf-blind, and hard of hearing in Tennessee, and assist the council in the preparation of its report to the governor, lieutenant governor, and speaker of the house of representatives;
    5. Develop a strategy to create minimum standards for all sign language interpreters in Tennessee and make recommendations on how to implement these strategies to appropriate state departments, the governor, lieutenant governor, speaker of the house of representatives and general assembly; (6)  Promote the training of interpreters for the deaf, deaf-blind, and hard of hearing; and (7)  Perform such other duties as may be required by law.
  4. In selecting an executive director, the council shall select an individual who is fluent in the American sign language of the deaf and otherwise qualified.
  5. The executive director is authorized to arrange for such clerical or other assistance as may be required and as approved by the council.

Acts 1978, ch. 889, § 4; T.C.A., §§ 14-2504, 14-18-104; Acts 1987, ch. 6, § 3; 2001, ch. 174, § 16; 2013, ch. 455, § 1.

71-4-2105. Data supplied by state agencies and political subdivisions.

The council for the deaf, deaf-blind, and hard of hearing may request and shall receive from any department, division, board, bureau, commission, or agency of the state or of any political subdivision of the state such data as might be needed to enable it to properly carry out its activities under this part.

Acts 1978, ch. 889, § 5; T.C.A., §§ 14-2505, 14-18-105; Acts 2001, ch. 174, § 17; 2013, ch. 455, § 1.

71-4-2106. Plans for implementing community services for the deaf or hard of hearing.

The council shall ensure that long range planning is conducted, which shall include a description of the locations and geographic service areas for community service centers, as well as a determination of personnel needs and strategies for coordinating service providers at state and local levels.

Acts 1978, ch. 889, § 6; T.C.A., §§ 14-2506, 14-18-106; Acts 2013, ch. 455, § 1.

Code Commission Notes.

Former subsection (a), concerning a short-range plan to be developed during the 1978-1980 biennium, has been deleted as obsolete.

71-4-2107. Purposes of community service centers.

The purposes of community service centers for the deaf, deaf-blind and hard of hearing shall be to:

  1. Inform deaf, deaf-blind, and hard of hearing persons and their families of their rights to services offered locally and to coordinate their referral to the appropriate organization;
  2. Coordinate communication between deaf, deaf-blind, and hard of hearing persons and the desired agency or organization, and promote the accessibility of community services to deaf, deaf-blind, and hard of hearing persons;
  3. Coordinate the provision of instruction in sign language to persons in community agencies;
  4. Inform interested staff of community and professional organizations about the nature of deafness, deaf-blindness and hearing loss and the capabilities of people experiencing it;
  5. Provide services as outlined by this part to employers of deaf, deaf-blind, and hard of hearing persons and related members of the family that may be involved;
  6. Provide the specified services to the deaf, deaf-blind, and hard of hearing persons qualified under this part without cost;
  7. Serve as an advocate for the rights and needs of people who are deaf, deaf-blind, and hard of hearing; and
  8. Help deaf, deaf-blind, and hard of hearing citizens to become self-sufficient in meeting their needs in the community.

Acts 1978, ch. 889, § 7; T.C.A., §§ 14-2507, 14-18-107; Acts 2001, ch. 174, § 18; 2013, ch. 455, § 1.

71-4-2108. Source of funds.

The council for the deaf, deaf-blind, and hard of hearing is authorized to pursue and receive moneys from any source, including appropriate federal funds, gifts, grants, and bequests, which shall be expended for the purposes designated in this part.

Acts 1978, ch. 889, § 8; T.C.A., §§ 14-2508, 14-18-108; Acts 2001, ch. 174, § 19; 2013, ch. 455, § 1.

71-4-2109. Authorization for other agencies to supply services.

The governor is authorized to designate existing departments of state government, or divisions of state government, to provide statewide services to the deaf, deaf-blind, and hard of hearing as specified in this part.

Acts 1978, ch. 889, § 9; T.C.A., §§ 14-2509, 14-18-109; Acts 2001, ch. 174, § 20; 2013, ch. 455, § 1.

Part 22
Services to Families of Preschool Children with Disabilities

71-4-2201. Development of incentives.

To the extent that federal funds are not jeopardized and in accordance with responsibilities required to be performed by the interagency coordinating council created pursuant to 20 U.S.C. § 1482, the council shall advise and assist the lead agency appointed pursuant to 20 U.S.C. § 1476 [repealed] in developing incentives that will encourage programs serving young children with disabilities to provide or improve services to families of preschool children with disabilities. The development of the incentives may include, but is not limited to:

  1. Identifying and publicizing model programs with parent involvement components or model practices for services to parents;
  2. Assuring that training opportunities are provided to educate program staff in current best practices for serving families; and
  3. Identifying and coordinating all available resources within the state from federal, state, local and private sources for existing programs and for future programs to hire staff to provide training and support services to parents.

Acts 1988, ch. 625, § 1; 2011, ch. 47, § 105.

Compiler's Notes. Former 20 U.S.C. § 1476, concerning requirements for a statewide system providing early intervention services to all infants and toddlers with disabilities and their families, was repealed, effective July 1, 1998.

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.

Cross-References. Preschools generally, § 49-6-101.

Special education, title 49, ch. 10.

Statewide early intervention program for handicapped infants, toddlers, and their families, § 49-10-702.

71-4-403. Purchase of materials without formal procedures.

71-4-1210. Veterans education benefits.

Chapter 5
Programs and Services for Poor Persons

Part 1
Medical Assistance Act

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).

NOTES TO DECISIONS

1. Federal Laws and Regulations.

The state of Tennessee's practice of allowing nursing homes in Tennessee to certify less than all of their beds as available to medicaid patients is in violation of Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

The objective of the nursing home survey and certification process established by 42 U.S.C. § 1396a(a)(33) is the protection of nursing home patients and enforcement of their statutory entitlement to high-quality care. Tennessee's limited bed certification policy subverts the accomplishment of this statutory purpose and transforms the survey and certification process into an instrument for denying patients' access to the medically necessary care to which they are entitled. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

The Social Security Act authorizes the expenditure of federal funds to enable states to furnish medical assistance to indigent individuals who are aged, blind, disabled, or members of families with dependent children. The state of Tennessee participates in Title XIX of the Social Security Act, 42 U.S.C. § 1396, for the purpose of operating its medicaid program pursuant to this chapter. Linton ex rel. Arnold v. Commissioner of Health & Env't, 973 F.2d 1311, 1992 U.S. App. LEXIS 20766 (6th Cir. 1992).

2. Disparate Impact.

The Tennessee limited bed certification policy has had a disparate adverse impact on black medicaid recipients in Tennessee. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

3. Limited Bed Certification.

Tennessee's policy of limiting the number of beds certified in qualified facilities constitutes precisely the type of interference proscribed by 42 U.S.C. § 1396. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

Provider agreements that permit providers to serve medicaid patients in only a limited number of their available beds are invalid under medicaid regulations codified in 42 C.F.R. § 442.12(d)(2). Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

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.
    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.
  2. 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.
  3. 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, §§ 71-5-18171-5-185.

NOTES TO DECISIONS

1. Federal Laws and Regulations.

The state of Tennessee's practice of allowing nursing homes in Tennessee to certify less than all of their beds as available to medicaid patients is in violation of Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

The objective of the nursing home survey and certification process established by 42 U.S.C. § 1396a(a)(33) is the protection of nursing home patients and enforcement of their statutory entitlement to high-quality care. Tennessee's limited bed certification policy subverts the accomplishment of this statutory purpose and transforms the survey and certification process into an instrument for denying patients' access to the medically necessary care to which they are entitled. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

2. Disparate Impact.

The Tennessee limited bed certification policy has had a disparate adverse impact on black medicaid recipients in Tennessee. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

3. Limited Bed Certification.

Tennessee's policy of limiting the number of beds certified in qualified facilities constitutes precisely the type of interference proscribed by 42 U.S.C. § 1396. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

Provider agreements that permit providers to serve medicaid patients in only a limited number of their available beds are invalid under medicaid regulations codified in 42 C.F.R. § 442.12(d)(2). Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

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, §§ 71-5-18171-5-185.

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, §§ 71-5-18171-5-185.

NOTES TO DECISIONS

1. Federal Laws and Regulations.

The state of Tennessee's practice of allowing nursing homes in Tennessee to certify less than all of their beds as available to medicaid patients is in violation of Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

The objective of the nursing home survey and certification process established by 42 U.S.C. § 1396a(a)(33) is the protection of nursing home patients and enforcement of their statutory entitlement to high-quality care. Tennessee's limited bed certification policy subverts the accomplishment of this statutory purpose and transforms the survey and certification process into an instrument for denying patients' access to the medically necessary care to which they are entitled. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

2. Disparate Impact.

The Tennessee limited bed certification policy has had a disparate adverse impact on black medicaid recipients in Tennessee. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

3. Limited Bed Certification.

Tennessee's policy of limiting the number of beds certified in qualified facilities constitutes precisely the type of interference proscribed by 42 U.S.C. § 1396. Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

Provider agreements that permit providers to serve medicaid patients in only a limited number of their available beds are invalid under medicaid regulations codified at 42 C.F.R. § 442.12(d)(2). Linton ex rel. Arnold v. Carney ex rel. Kimble, 779 F. Supp. 925, 1990 U.S. Dist. LEXIS 19443 (M.D. Tenn. 1990), aff'd, Linton by Arnold v. Commissioner of Health & Env't, 65 F.3d 508, 1995 U.S. App. LEXIS 26006.

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;
      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);
    3. 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;
    4. 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;
    5. 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;
    6. 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;
    7. Furnish information to acquaint needy persons and the public generally with the plan for medical assistance of this state;
    8. 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;
    9. 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;
    10. 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
    11. 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.
    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.
  2. 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, §§ 71-5-18171-5-185.

“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. 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.
      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.”

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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. 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
    1. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
    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, §§ 71-5-18171-5-185.

“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;