The second special session of the 111th General Assembly concluded around 7:00 pm Wednesday, having been called by Governor Bill Lee to reconsider civil liability protection from COVID-19 related actions, among other issues. The Tennessean has a rundown of the action happening both inside and outside the Capitol over the three-day legislative session, which included approval of a bill to enhance penalties for vandalism and unapproved camping on state property. In a show of bipartisanship, the legislature overwhelmingly approved a bill to require and regulate reimbursement for telehealth services by health plans.

Tennessee COVID-19 Recovery Act

As approved, SB 8002 enhances liability protection for defendants from coronavirus-related suits by requiring plaintiffs to prove, by clear and convincing evidence, a defendant acted with gross negligence or willful misconduct. The act also requires a claimant in any action alleging injury arising from COVID-19 to file a verified complaint (“pleading specific facts with particularity from which a trier could reasonably conclude that the injury was caused by the defendant’s gross negligence or willful misconduct”), including a certificate of good faith and signed, written expert medical opinion supporting the claim. Failure to comply with the pleading requirements subjects a claim to dismissal with prejudice.

The liability protections broadly extend to any “person,” defined by the act as “an individual, healthcare provider, sole proprietorship, corporation, limited liability company, partnership, trust, religious organization, association, nonprofit organization described in § 501(c) of the Internal Revenue Code that is exempt from federal income taxation under § 501(a) of the Internal Revenue Code, 26 U.S.C. § 501(a), or any other legal entity whether formed as a for-profit or not-for-profit entity.”

It also revises the Government Tort Liability Act to extend liability protections to government entities and employees against COVID-19 claims absent gross negligence or willful misconduct and applies the same pleading requirements above.

The act explicitly states that it does not create a cause of action, eliminate a required element of any existing cause of action, affect workers’ compensation claims, or amend, repeal, alter, or affect any immunity or limitation of liability available under current law or contract.

The legislation is expected to be signed by the governor and will be effective upon his signature, but it does have a retroactive element. As the bill states, the act “applies to all claims…except those which, on or before August 3, 2020” were filed or in which notice was satisfied under the Tennessee Healthcare Liability Act. In short, any claim filed after August 3, 2020, is subject to the act.

Telehealth Coverage

SB 8003, approved overwhelmingly by both chambers, will make various changes to the requirements of health insurance policies for the coverage and reimbursement of “electronic delivery of health care,” or telehealth. The legislation follows a May announcement by BlueCross BlueShield of Tennessee, that the state’s largest carrier was enhancing telehealth coverage across its policies in response to COVID-19. SB 8003 would extend similar coverage and reimbursement policies to all carriers.

Present law requires a health insurance entity to provide coverage for healthcare services provided during a telehealth encounter in a manner that is consistent with what the health insurance policy or contract provides for in-person encounters for the same service and to reimburse for healthcare services provided during a telehealth encounter without distinction or consideration of the geographic location, or any federal, state, or local designation or classification of the geographic area where the patient is located.

Following the governor’s signature, the new law will require health plans to reimburse for telehealth services “in a manner consistent with…in-person encounters for the same service.” This “payment parity” provision will remain effective until April 1, 2022, absent further action by the legislature.

Barring a third special session, the legislature will reconvene in January for the 112th General Assembly.

As always, the Bass, Berry & Sims’ Government Advocacy & Public Policy Practice Group stands ready to assist you in matters where business and government intersect.