April 29, 2011

On April 29, 2011, in News from Nashville 2011, by Mark Norris

April 29, 2011

From Mark’s desk 

As you’ll read below, it has been another extremely busy week in your General Assembly.  

The increasingly hectic pace of legislating as we enter the “home stretch” was punctuated by tragedy, however, with Mother Nature’s reminder of the fragility of life.  

I met early Wednesday morning with Governor Haslam to discuss the State’s emergency preparedness. He had already declared a state of emergency in anticipation of flooding. Disaster declarations will be facilitated by his proactivity. 

Contact with elected officials and constituents along the Mississippi has also demonstrated that everyone learned a lot from last year’s flooding. Manpower and equipment has been moved into place in advance of the rising flood waters, and levees have been manipulated to divert and alleviate flooding wherever possible.   

A Chairman of the 15 state Southern Legislative Conference, Thursday brought more bad news from neighboring states with the devastation in Alabama and Mississippi. I have been in touch with our colleagues in these states, and it will be a long time to recovery. I travelled to our SLC offices and met with staff in Atlanta late Thursday, and we’ll do all we can to provide support and assistance.  

Please keep those less fortunate in your thoughts and prayers during the difficult days ahead, and don’t hesitate to contact our office if we can assist you in any way.   

Mark

Storms, Jobs, Workers’ Compensation, Civil Justice Headline Capitol Hill Week

Tennessee One of Several Southeast States Hit by Worst Tornado Outbreak in Recent U.S. History 

Jobs continued to headline debate on Capitol Hill this week as members of the Senate Commerce, Labor and Agriculture Committee and the Senate Judiciary Committee voted to approve two key bills designed to draw new businesses to Tennessee.  This week’s action, however, was overshadowed by reports of massive storm damage as the Volunteer State was one of several states in the Southeast which were hit by the worst tornado outbreak in recent U.S. history on Wednesday.   

As of Thursday, there were 202 reported fatalities in six states as a result of the storms with the count expected to increase.  State officials have estimated 30 deaths have occurred in Tennessee due to the storms, but the total is expected to climb with three persons reported as missing. 

Prayers for those devastated by the tornadoes were lifted in the chamber of the State Senate on Thursday led by Senator Mike Faulk (R-Church Hill).  Senators remembered the families and communities which must now work to rebuild in the aftermath of the storms.  The Senate also remembered those who could be impacted by flooding in West Tennessee.  Flood levels are expected to rise to levels unseen since 1937.  

“The destruction of these storms is unbelievable,” said Senator Steve Southerland (R-Morristown) whose district was hit by a tornado, a rare occurrence in the mountainous East Tennessee terrain.  “Our thoughts and prayers are with the families and loved ones of those that lost their lives in the storms.”  

“Our hearts and prayers go out to those who have lost family members due to the storms,” added Senator Mike Bell (R-Riceville) whose district also experienced multiple fatalities due to the storms.  “This has truly been one of the worst disasters to hit our area and we will work with the governor and others to help those who have suffered losses as we rebuild our communities.” 

Lawmakers are working with Governor Bill Haslam and Tennessee’s emergency agencies as the state assesses damages, which is the first step taken before federal assistance is requested to recover from storm damage.  A federal disaster declaration would make emergency funds available for the repair and replacement of property damaged by the storms. 

Workers’ Compensation Reform 

The Senate Commerce, Labor and Agriculture Committee passed legislation which makes changes to the state’s workers’ compensation system.  The measure aims to put Tennessee in a better competitive situation with neighboring states in regards to the costs of doing business. 

“Tennessee is consistently a higher-cost state in which to do business regarding workers’ compensation,” said Senate Majority Leader Mark Norris (R-Collierville), sponsor of the bill.  “This legislation builds on the reform measure passed in 2005 by adopting best practices from states with more effective systems to make us more competitive in bringing new jobs to the state and growing existing business in Tennessee.” 

Review of worker compensation cost data from four companies that have similar facilities in Tennessee and other states show the cost here was 5, 7 and 11 times higher.  In a state-to-state comparison of like claims in carpal tunnel syndrome, Tennessee is 100 percent higher than its sister states.  The study also shows that state indemnity costs for workers’ compensation rates have risen over the last ten years by 30 percent for permanent partial disability and 45 percent for temporary total disability as compared to a 19.4 percent increase in the consumer price index.  

Factors contributing to the higher cost include Tennessee’s complicated and unpredictable workers’ compensation system.  Currently, the system is open to interpretation which encourages litigation.  It also entails a longer wait time for injured workers to reach a conclusion regarding claims. 

Senate Bill 932 would return the state’s workers’ compensation to the system in which it was originally intended by calling for a “no-fault” system.  The purpose is to replace lost wages when injured employees are medically unable to work and pay for health services and physicians charges due to work-related injuries.   

The proposal would reduce lengthy court cases and result in more timely payments to employees.  It removes unnecessary and illogical restrictions from the parties’ ability to resolve and settle future medical benefits.   

Another key element of the bill is to provide a clear definition of injury in workers’ compensation cases, an important point not addressed in the 2005 reform law.  Under the bill, an injury would be “accidental” only if it is caused by a specific incident (or incidents) arising out of and in the course of employment and is “identifiable by time and place of occurrence.”  Diseases would be excluded, except when they arise “naturally and is unavoidable” due to the worker’s employment.  The opinion of a selected physician from the employer’s designated panel would be presumed correct regarding the cause of an injury unless the contrary is proved by a preponderance of the evidence.   

“The bill is a logical next step to the 2005 workers’ compensation reform law so we have a standardized system which is consistent across the state and provides quicker and more predictable results,” concluded Norris. 

Civil Justice Reform 

A cornerstone of Governor Bill Haslam’s legislative agenda is the Civil Justice Act of 2011 which was approved by the Senate Judiciary Committee on Tuesday.  That legislation is also designed to provide certainty and predictability for businesses, while ensuring that injured plaintiffs receive all of the economic, quantifiable damages that they suffer.  The proposal, Senate Bill 1522, is sponsored by Senate Majority Leader Mark Norris (R-Collierville) and Senator Brian Kelsey (R-Germantown).   

“This is another step toward making Tennessee’s civil justice system competitive within the Southeast,” said Senator Norris.  “Tennessee is the only state in the Southeast that has no limits on punitive damages.  We must be aggressive in bringing new jobs to our state in a very competitive environment with our neighboring states, while protecting those who are injured.  This bill accomplishes all of these goals.”  

Key provisions of the bill include:

  • The bill limits the maximum appeal bond amount from $75 million to $25 million or 125 percent of the judgment amount.
  • It defines two components of compensatory damages: economic and non-economic damages.
    • The measure places a cap on non-economic damages, which are subjective damages like pain and suffering, at $750,000 per injured plaintiff for both healthcare liability action and other personal injury actions. However, if the harm suffered is intentional, the caps would not apply. 
    • As amended, the bill raises the cap to $1.0 million if the plaintiff becomes a paraplegic or quadriplegic because of spinal cord injury, sustains third degree burns over 40 percent or more of his or her body or face, has an amputation of a hand or foot, or wrongfully dies leaving one or more minor children.
    • There is no cap, under the measure, on economic damages and any damages that can be objectively quantified may be recovered.
  • Caps punitive damages, which must be proved by clear and convincing evidence, at two times compensatory damage or $500,000, whichever is greater unless the defendant intended to injure the plaintiff, was under the influence of drugs or alcohol, or intentionally falsified records to avoid liability.
  • Prevents punitive damages in products liability actions, unless the seller had substantial control over the design or manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold.

“This bill provides certainty and predictability for businesses, while ensuring that injured plaintiffs receive 100 percent of the economic, quantifiable damages they suffer,” added Senator Kelsey.  “I am very pleased it has been approved.  This was a key committee vote, and I look forward to the next legislative step, which is approval by the full Senate on final consideration.” 

If approved by the full House and Senate, the bill would take effect October 1, 2011, and apply to all liability actions for injuries after that date. 

Legislation to curb meth production passes full Senate

Bill stiffens penalties for making the illegal drug in the presence of a child 

The full Senate 31 to 0 to approve major legislation to stiffen penalties for making methamphetamines in the presence of a child and implement a statewide electronic tracking system to curb meth production in the state.  The system, called NPLEx (National Precursor Log Exchange), would monitor and block illegal purchases of over-the-counter cold and allergy medicines containing pseudoephedrine (PSE), a key ingredient in methamphetamine production. 

“There is currently no mechanism in place in Tennessee to block illegal PSE sales in real time, as many pharmacies and retailers rely on handwritten, paper logbooks to track purchases,” said Senator Mae Beavers (R-Mt. Juliet).  “As a result, criminals have learned to circumvent the current system.  This bill would prevent the sale of meth precursors to those who manufacture the illegal drug, as well as stiffening penalties against those who expose children to the dangerous effects of cooking methamphetamines.”  

Senate Bill 1265 requires that as of January 1, 2012, all pharmacies must use NPLEx, which would export the data to law enforcement.   The NPLEx system will be at no cost to pharmacies or the state.  NPLEx must have a stop sale mechanism in place by that time for potential purchasers over the allowable purchase limit and anyone on the meth offender registry.  The proposal also calls for a pharmacist or pharmacy intern to counsel the potential purchaser of a product containing pseudoephedrine before the transaction takes place and may decline the sale if it is deemed not to be for a legitimate medical purpose.   

The bill also sets amounts of pseudoephedrine that can be purchased.  A buyer cannot purchase more than 3.6 grams of a pseudoephedrine product per day or more than 9 grams per 30-day period unless they have a valid prescription or face a Class A misdemeanor penalty.  Doctor or pharmacy shopping to obtain more than that limit, often referred to as “smurfing,” would become a Class A misdemeanor subject to a fine of $1,000 for the first offense and $2,000 for second and subsequent offenses.  The bill also changes the amount of pseudoephedrine in a person’s possession necessary to establish intent to manufacture meth from 20 grams to 15 grams.  Fines assessed under the proposal will be used for cleanup of meth labs. 

The provision stiffening penalties against making meth in the presence of a child would take place on July 1, 2011.  The bill would make the crime aggravated child endangerment which is punishable as a Class A felony if the child is eight years old or younger and a Class B felony if the child is over the age of eight. 

In addition, the bill calls for the Comptroller to conduct a thorough study of meth and the availability of pseudoephedrine as a factor in the manufacture of meth, with the results of the study to be released no later than January 1, 2013.  

“I appreciate Chairman Beavers’ work and diligence on a very serious issue that affects a number or our counties,” added Senator Randy McNally (R-Oak Ridge), a pharmacist who also worked on the bill.  “Meth is tearing apart a number of counties in our state and putting a tremendous cost on local governments and state government.  This bill goes a long way in addressing those problems, while providing safeguards to the consumers of nasal decongestant products so they will still be available to them and easily accessible.”   

Legislation passed by Tennessee Senate prohibits drug felons who do not seek treatment from receiving welfare benefits 

The Tennessee Senate has approved legislation that prohibits an individual convicted of a felony for possession, use, or distribution of a controlled substance from being eligible to receive Families First program benefits.  Senate Bill 96, sponsored by Senator Jim Tracy (R-Shelbyville), would apply to welfare recipients convicted on or after July 1, 2011 and would extend for a period of three years unless the individual receives treatment for substance abuse. 

Families First is Tennessee’s welfare reform program, which began in September 1996 under a federal waiver, and which replaced the Aid to Families with Dependent Children (AFDC) program.  Benefits to children would not be affected under provisions of the bill. 

“It is not fair for hardworking taxpayers to subsidize welfare payments for those who have been convicted of felony drug charges,” said Senator Tracy.  “This bill gives these individuals notice that our charity is extended as long as they enroll and successfully complete treatment.  The bill, however, puts a stop to endless payments to those who continue to ignore our drug laws and who continue to abuse the system for public assistance.”

Jobs plan announced 

Jobs, education and finding government efficiencies continue to be the focus on Capitol Hill, both in the legislature and the governor’s office, as Governor Bill Haslam announced his Jobs4TN Plan.  The plan was developed over a 45-day period and involved interviews with more than 300 stakeholders, community leaders, and national experts as well as through seven roundtables across the state.  

The Jobs4TN plan focuses on prioritizing the strategic recruitment of target industries; assisting existing Tennessee businesses in expansions and remaining competitive; supporting regional and rural economic development strategies; as well as investing in innovation and reducing business regulation.  The plan regionalizes job creation strategies by focusing on industry clusters where Tennessee already has a competitive advantage.  

Tennessee will concentrate its recruitment efforts on six target clusters in which the state has a clear competitive advantage: automotive; chemicals and plastics; transportation, logistics and distribution services; business services; healthcare; advanced manufacturing; and, energy technologies.  In addition, the Department of Economic and Community Development will fundamentally restructure its field staff to recognize efficiencies and maximize its resources.  The plan includes establishing a “jobs base camp” in each of nine regions across the state. Each base camp will work with local partners to develop and/or revise a regional economic develop plan. 

The goal is to make Tennessee the number one location in the Southeast for high-quality jobs by creating the right business climate.  Legislation considered in the Senate this week focusing on education, tort reform and lessening burdensome regulations on businesses are an important part of that effort.  

Norris Appointed to Economic Development Consortium on Nuclear Energy

Focus on safe, economical energy 

Tennessee Senate Majority Leader Mark Norris (R-Collierville) has been named to serve as one of 12 members on the Communications, Policy and Economic Development Council of the U.S. Department of Energy’s program tasked with modeling and simulation of nuclear reactors. 

Known as “CASL” (Consortium for Advanced Simulation of Light Water Reactors, www.casl.gov, the program includes Oak Ridge National Laboratory, Tennessee Valley Authority, and leading research universities in Tennessee, Texas, North Carolina, Florida and elsewhere.  The new headquarters facility at Oak Ridge, Tennessee will be dedicated next Tuesday, May 3, at 1:00 P.M. EST. 

CASL has received a five-year, federal grant to design and develop computer models simulating “virtual reactors” to increase safety and reliability, reduce waste and extend the life of the existing U.S. reactor fleet. “It’s the Manhattan Project of the new millennium,” said Norris following an initial meeting in Atlanta on April 28. 

The Council consists of representatives from the public and private sector committed to recognizing the importance of safe and reliable nuclear energy in economic development. 

“Post Fukujima, there is renewed interest in nuclear safety. It’s a tremendous opportunity for progress,” said Norris. 

“Reducing risk reduces costs which strengthens opportunity for future economic development,” according to Norris who also serves on the Southern States Energy Board and Tennessee Technology Development Corporation. 

Norris chairs the Southern Legislative Conference of the Council of State Governments which includes 15 southern states, many of which are also involved.     

In Brief… 

Presidential Preference Primary Date — The full Senate gave final approval to Senate Bill 599 to change Tennessee’s presidential preference primary date to the first Tuesday in March.  The measure, sponsored by Senate Majority Leader Mark Norris (R-Collierville), was moved as a result of actions taken by the governing bodies of both national political parties. Failure to move the primary would preclude Tennessee delegates from having full delegate representation at Republican and Democrat national conventions. 

Children / Hearing Devices — Legislation requiring private insurance plans to include coverage of hearing aids for children was approved by the Senate Finance Committee on Tuesday.  Senate Bill 607, sponsored by Senator Doug Overbey (R-Maryville), requires that certain health insurance policies provide coverage of up to $1,000 per individual hearing aid per ear, every three years, for every child covered as a dependent by the policy holder. 

Secret Ballot Protection Act — Legislation designed to protect the rights of employees to vote on whether or not they want to unionize by a secret ballot was approved in the Senate Commerce and Labor Committee this week.  The legislation is a counter measure to dangerous federal card check legislation that has been proposed in Congress.  That proposal would subject employees to intimidation by allowing unions to organize simply by persuading a majority of employees to sign a union representation card.  Senate Bill 1745 defines the denial of secret-ballot elections as an unfair labor practice.  Sponsors say the bill is consistent with our state’s Constitution and court decisions that provide that all elections in Tennessee shall be by a method guaranteeing ballot secrecy.  

911 Calls — The full Senate voted this week to approve legislation requiring permission from the person whose voice is recorded on a 911 before the transmission can be broadcast to the public.  Senate Bill 1665, as amended, clarifies that all calls and tapes will remain public record.  The bill just requires that any broadcast or publication of a call is prohibited without written consent of the caller whose voice is recorded, or their designated representative or legal guardian.  The bill does not apply to court orders or subpoenas regarding 911 calls. 

Hospitals Senate Bill 483 was approved on final consideration by the full Senate.  The bill would continue the hospital assessment adopted last year to prevent potentially catastrophic cuts to Tennessee hospitals.   The hospitals asked the General Assembly to enact the coverage assessment for another year in order to raise $450 million in state funds to draw down $870.5 million in matching federal funds.  The assessment is used to draw down federal funds available through a Medicaid match program approved by the Centers for Medicare and Medicaid Services (CMS).  It will continue to provide the critical dollars necessary to provide hospitals a portion of their unreimbursed TennCare costs.  A few examples of programs, in addition to the reduction in payments to hospitals and health professionals that would be affected without the assessment are: critical access hospitals; the Graduate Medical Education program; 8-visit limit imposed on outpatient services, x-rays, and physician office procedures; various therapies; and, the enrollment cap for the medically needy.   

Curbing prescription drug abuse — Legislation designed to curb the abuse of prescription drugs at pain clinics in Tennessee received final approval this week.  Senate Bill 1258 would require all pain clinics in Tennessee to obtain a certificate by the Department of Health.  The Commissioner of Health, in consultation with the Boards of Medical Examiners, Osteopathic Examination, Nursing, and the Committee on Physician’s Assistants, would promulgate rules necessary to operate these clinics.  They would also have the authority to examine pain clinics, their staff and patient records, to ensure compliance with those rules.  This includes the ability to investigate complaints or violations.  Under the bill, the respective boards would be authorized to take action against violators.  Tennessee ranks second in the nation in regard to the overutilization of prescription pain medications, having exceeded the national average for controlled substance use for many years.

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