As has been said an infinite number of times from an infinite number of pundits, the pandemic made things weird, and Tennessee’s 112th General Assembly was no exception. In the early days, masks came out, plexiglass dividers went up and visitor access to the Capitol was strictly limited. There was great speculation that there could be some massive cuts to the budget as a result of the pandemic-fueled economic downturn, including across the board 2% cuts to each department (there was a $1 billion+ surplus instead). There was even a brief hubbub about the choice to move Governor Lee’s State of the State address from the Capitol (where the state constitution requires it be) to War Memorial Auditorium (which has more seating for social distancing). Ultimately, however, the session proceeded as it always does; pundits opined, advocates advocated, bills were proposed, debated and voted upon, and the Governor wielded his magic pen.
Special Session
Before the session even began, Governor Lee called for a special session to address education. One of the primary purposes of the special session was to tackle pandemic-related learning loss, but the debate plowed a wide berth, from standardized testing to school funding and teacher pay to the “reading wars”. The special session lasted only 4 extremely long days, but culminated in the passage of three major policy bills and one big ol’ budget bill. Here is an overview of some of the items that passed in the special session education bills:
- After-school and summer literacy camps
- Starting summer 2021, state school districts must offer a 6-week literacy camp will begin for grades K-8 students, and a 4 week Learning Loss Bridge Camp for students 6-8, who students who choose to enroll.
- After-school STREAM programs will begin Fall 2021.
- This one is interesting, because it requires that districts offer these services for multiple years, which is not typical of a lot of TN General Assembly legislation.
- Tennessee Accelerated Literacy and Learning Corps
- Governor Lee proposes to build a cadre of college students, paraprofessionals and teachers to provide supplementary (after-school, summer, etc.) tutoring services to students.
- 3rd grade retention law strengthened
- This legislation builds on a 2011 law that creates a pathway for 3rd graders to be held back and repeat the grade if they are struggling by requiring that students scoring below a certain level in reading either retake the test (and score higher), enroll in supplementary support program (summer literacy camp, etc.) or be held back.
- A last-minute amendment added an appeal process for parents.
- Building Better Readers with Phonics
- This law requires districts use phonics-based literacy instruction in grades K-3.
- The debate over the “right way” to teach reading in the education world resembles a giant Hegelian pendulum, swinging to and fro between different models of literacy instruction. This is the just the latest (and likely not last) swing.
- Accountability to Inform
- This law requires that districts still engage standardized testing of students during the 2021-2022 school year, but does not enact any negative consequences on districts, schools and teachers for low scores on those tests.
- Teacher pay raises
- Teachers got a 2% bump, BUT, the way that the state’s education funding mechanism works, it is possible that many teachers don’t see that full raise, or may see no raise at all.
- Districts are provided funding for specific spending items in one big pot – it’s possible that districts choose to use this “teacher pay” pot to hire more teachers, instead of raise the salaries of their existing teachers.
The Rest of Session
Education wasn’t the only thing on the table (of course). Early in the session and following a midnight approval from the outgoing Trump administration of the proposed waiver, the General Assembly passed a bill that established the state’s Medicaid “block grant” system. The “modified block grant” provides a lump sum of money for the state to use to pay for Medicaid services for those enrolled in the program. Typically, states and the federal government share the costs of providing these services on the basis of Medicaid participation rate and average cost per Medicaid recipient. Instead, TennCare, the state’s Medicaid administrator, now has a big pot of money to spend on this population, but also have fewer federal regulations and restrictions (read: protections for Medicaid participants) to worry about. The biggest reason for the change is that if they don't spend as much as they are allocated, TennCare and the state are able to keep a portion of the savings. And they'd really like to underspend (which we're worried might shortchange Tennesseans in need). If the state only spends $400 billion of the $500 billion block they are allocated, they get to split the savings with the federal government and spend it on whatever their hearts so desire.
There were a number of other highly-charged issues that worked their way through the Tennessee General Assembly. Several of these efforts received national attention, and sort of focused the spotlight away from a lot of the less dramatic legislative aspects of governing. That’s all well and good for us, because it allowed us to focus on some very important legislation. Here’s a roundup of TDC’s priority bills from the 2021 Legislative Session:
TDC Priority Legislation
The 112th General Assembly was the first year of a two-year legislative session. That means that there are a few outcomes that proposed bills can endure: they can pass into law (Cinderella), they can fail (Pumpkin) or they can try again next year (Glass Slipper). Bills that have failed can be introduced as a new/different bill in the second-year session, while bills that have been assigned to Summer Study or deferred on the calendar can be reintroduced.
The Cinderellas (they passed!)
- ID Death Penalty Bill – this bill modernizes the definition of intellectual disability in the state’s criminal code and creates a pathway for individuals on death row to be evaluated under this new definition.
- Our Board voted for us to work this bill and because of the life and death stakes we spent a lot of time and energy supporting its passage.
- After rolling for several weeks down the legislative agenda, it moved with a fury through several committees.
- Our fearless leader, the inimitable Carol Westlake, provided testimony in the House Civil Justice subcommittee, to great acclaim.
- The bill moved through subsequent committees in subsequent weeks, culminating in a single day showdown in both the House and Senate chambers.
- Ultimately, with little opposition, the bill passed both chambers easily, with only 5 dissenters between the two.
- The bill provides a likely avenue for Pervis Payne, the Memphis man on death row who has an intellectual disability, an avenue to avoid his would-be unconstitutional execution by the state.
- DSP Wage Increase – the original bill called for increasing reimbursement rates to DSP agencies in order to raise the wage of Direct Support Professionals to $15 per hour – an amendment to the bill reduced the wage increase to $12 per hour
- In order to get the legislation passed, the bill’s sponsors had to compromise in order to reduce the fiscal note (cost of the potential law) – hence, $12.50/hr instead of $15/hr. It’ll be interesting to see if the limited bill puts a dent in the DSP crisis.
- Disability Discrimination in Child Custody – this legislation prohibits judges from making child custody decisions based exclusively on one parent’s disability
- This was a fantastic bill that is now a fantastic law – outlawing outright discrimination, especially when it comes to parent custody, is important and necessary
- Transplant Discrimination Prohibition – this legislation prohibits doctors and insurance companies from denying an organ transplant or anatomical gift, or placement on a transplant waiting list, because of an individual’s disability
- Again, banning outright discrimination is a good thing, and ensuring that individuals with disabilities have access to life-saving treatments is vital
- PBM Reform – this legislation prohibits a number of different practices enacted by Pharmacy Benefit Managers that capture savings intended for patients and consumers.
- This is a big, comprehensive and complex bill, that deals with a complex subject. Overall, savings that are intended for those who need medication should go to those people, and not the middle man.
The Pumpkins (not ideal)
- Teacher’s Discipline Act – this bill requires districts to create and enact policies that permit a teacher to quickly, easily and frequently remove a “disruptive” child from their class, potentially permanently.
- This bill, frankly, is awful. We are very concerned about its impact for kids with disabilities who have not been identified and evaluated and thus, don’t have protections that they deserve from an IEP.
- We’re also concerned that this gives teachers license and impunity to remove kids with disabilities from their class, despite the protections they may have from IDEA and their IEP’s.
- These punitive policies rarely work as intended when put into practice, and have the potential to cost districts millions in litigation.
- Sub-Minimum Wage Prohibition – this bill would have prohibited the use of federal waivers permitting businesses to pay individuals with disabilities below minimum wage.
- This bill may have been a casualty of partisanship, because there was genuine discussion and inquiry in committee, there’s a broader national movement on the issue, and it’s the right thing to do.
- However, Sen. Jeff Yarbro didn’t get a second in committee, preventing him from introducing the bill and initiating debate and, ultimately, a vote.
- We’re disappointed with the outcome of this, but are very willing to work with state lawmakers to try again with a new bill on the subject next January.
- Medical Necessity Definition – this bill would have established a statewide definition of “medically necessary” when informing the prescription of services and medication for patients
- This bill received a lot of opposition from insurance providers, because it essentially shifted the authority to determine what services and medication a patient should be able to get from them to the practitioner.
- Ultimately, the opposition did it in and it failed in committee – we’d like to see this one reintroduced next year to see if it has a better shot.
The Glass Slippers (wait ‘till next year, they might have more luck!)
- School Nurses/School Social Workers/RTI2 Coordinators – there were several bills proposed that would have increased funding for more school support staff, particularly the kind of staff that benefit kids with disabilities.
- Modifying the BEP, the state’s education funding mechanism, is notoriously complicated and hard, and its no wonder that lawmakers don’t like to do it.
- Reasons they should modify the BEP:
- Adequate number of school nurses can help support kids with complex medical needs, include frequent or emergency medications, personal care needs or other health care needs, and allow them to receive their education with their peers
- School social workers are vital for connecting kids with disabilities and their families with supports that can help them stay in school, obtain care or receive benefits.
- Not to mention, they tend to wear a ton of hats in supporting students, their IEP’s and IEP teams.
- RTI2 coordinators are necessary to ensure that we are working with kids early to identify disabilities and prevent them from falling behind. They can provide intensive, small group/individual interventions that can support students in staying on track.
- Universal Changing Tables – this bill would require new and remodeled buildings of a certain size and use to install adult-sized, motorized changing tables in accessible bathrooms.
- This bill was expensive, and it was initially very broad in its scope, inspiring some pushback from the folks who build and those who reside in new buildings.
- Some amendments limited the scope slightly, but it was not enough to avoid Summer Study, where legislators will work to make the bill a bit more palatable for all involved.
- Text-to-911 – this bill would require the establishment of a statewide text-to-911 service
- This was and is a fantastic and important bill, and we were disappointed to see it so suddenly hit a roadblock – it flew through committee without much pushback, only to be placed behind the budget and sidelined when it hit the full floor.
- It sounds like some of the pushback was from local officials who didn’t want to pay for it, or apparently be told what to do
- We look forward to working this one hard next year to make sure that it hits the books and becomes a reality in Tennessee.
- Step Therapy Reform – this bill would change some of the practices related to Step Therapy, or the practice of requiring people to try and fail using some forms of (often cheaper) medications and services.
- This bill didn’t get much play this year – it was never brought up in Senate committee and quickly referred to Summer Study in House committee.
- We’ll keep an eye on this one, because we think this would do some good in Tennessee.
- 340B Discrimination Prohibition – this bill would prohibit Pharmacy Benefit Managers from reimbursing 340B entities at lower rates than other health care providers
- This one passed the house, but stalled out in the Calendar committee, ultimately rolling to next year. Hopefully this keeps its momentum going and is quickly passed and signed next year.
- IEP Services Reimbursement – this bill would require the state to reimburse school districts for the cost of providing services established in a student’s IEP
- This is a long-time goal of districts and advocates, because it better ensures that students with IEP’s are getting the services they actually need, rather than the affordable ones.
- That said, this thing was very expensive, and the General Assembly sort of has an aversion to that.
The General Assembly is always a wildly unpredictable place, where legislative dreams go to reach their destiny, or to meet their doom (or just to wait for a while when it’s the first year of a 2-year session). Overall, we’re very proud of our work on our legislative priorities, very thankful for your continued partnership and we look forward to continuing the hard work in 2022.