At the outset, some of the most significant changes brought about by the new law concern restrictions on the ability of government and private businesses to require individuals to provide proof of having received a COVID-19 vaccination. Specifically, the new law states that “[a] private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”¹ Importantly, the new law contains a broad definition of “private business,” and includes individuals, sole proprietorships, corporations, limited liability companies, partnerships, trusts, associations, and non-profit entities.² In addition, the new law contains a broad definition of “adverse action,” and includes discrimination “against a person by denying the person employment, privileges, credit, insurance, access, products, services, or other benefits.”³ As a result, under the new law, most private businesses and governmental entities in Tennessee are prohibited from requiring any individual from providing proof of vaccination in the event the person objects to receiving a COVID-19 vaccine for any reason, and this prohibition is applicable to employees, customers, or just about any individual who accesses products or services of a private business or covered governmental entity. 

Nevertheless, the new law does contain several important exceptions to the general prohibition of requiring proof of having received a COVID-19 vaccination. The new law does not prevent the implementation of COVID-19 vaccine mandates for Medicare and Medicaid providers, or assisted-care living facilities, federal government contractors or subcontractors, schools, or employers that submit notice in writing to the comptroller of the treasury that compliance with the new law would result in a loss of federal funding.⁴ Moreover, the new law does not prohibit “a place of entertainment” in Tennessee from requiring proof of a negative COVID-19 test in order to gain admission, or to allow a person to voluntarily provide proof of vaccination or proof of COVID-19 antibodies in lieu of presenting a negative COVID-19 test in order to gain admission to a “place of entertainment.”⁵ 

The new law also addresses the implementation of mask mandates throughout much of Tennessee. Under the new law, with certain exceptions, governmental entities are no longer permitted to “require a person to wear a face covering as a condition to access the governmental entity’s premises or facilities, or to receive the benefits of the governmental entity’s products or services, unless severe conditions exist and the requirement is in effect for no more than fourteen (14) days.”⁶ The new law further defines “severe conditions” to mean that: (1) the Governor of Tennessee has declared a state of emergency for COVID-19; and (2) a county has an average rolling fourteen-day COVID-19 infection rate of at least 1,000 new known cases of COVID-19 for every 100,000 residents of the county based on the most recent data published by the department of health.⁷ When “severe conditions” do not exist, many governmental entities are also prohibited from requiring employees from wearing a face covering as a term or condition of employment, or from taking an adverse action against an employee for failing to wear a face covering.⁸ 

In order for a school to implement a mask mandate under the new law, “severe conditions” must exist, the school’s governing body must adopt a policy requiring all persons on school property to wear a face covering, and the school must provide face coverings meeting the U.S. National Institute for Occupational Safety and Health N95 classification of air filtration for persons 12 years of age and older.⁹ Even if these requirements are met, the new law does not permit schools to require a person to wear a face covering if the person provides documentation from the person’s healthcare provider that wearing a face covering is contraindicated for the person, or if the person objects to wearing a face covering because of the person’s sincerely held religious belief.¹⁰ As with the implementation of COVID-19 vaccine mandates under the new law, there are several exceptions to the prohibitions on the implementation of mask mandates set forth in this article, including for Medicare or Medicaid certified providers, entities operating on property owned, managed, or secured by the federal government, and healthcare providers.¹¹ Also, and very importantly, the new law does not prohibit private employers or businesses from requiring face coverings for employees, customers, or any other members of the public receiving services. 

Beyond significantly curtailing the ability of many government entities and private businesses from implementing COVID-19 vaccine and other similar mandates, the new law makes several other noteworthy changes to Tennessee law. The new law permits certain individuals to receive unemployment retroactively if they left employment because of a failure or refusal to receive a COVID-19 vaccine when it was previously required by their employer.¹² Furthermore, except in certain cases of minors subjected to abuse or dependent and neglected children, the law restricts the ability of healthcare providers to administer a COVID-19 vaccine to a minor without first obtaining written consent from the minor patient’s parent or legal guardian.¹³ Moreover, the law limits civil liability for deaths “arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.”¹⁴ 

Importantly, the new law also contains an enforcement mechanism in the event of violations. Specifically, the new law creates a private right of action for injunctive relief, compensatory damages, and reasonable attorneys’ fees for any aggrieved person against an alleged violator.¹⁵ By its own terms, the new law terminates on July 1, 2023.¹⁶ 

The precise contours or Tennessee’s new COVID-19 law have yet to be fully litigated in the courts, and there are still several areas of uncertainty regarding the new law’s enforceability and constitutionality. Nevertheless, there can be little doubt that Tennessee’s new COVID-19 law has already had a profound impact on Tennessee’s response to the COVID-19 pandemic, and the new law’s effects will likely continue to be felt by private businesses, employers, employees, government entities, and many more until at least July 1, 2023. 

If you think Tennessee’s new COVID-19 law may impact you or a loved one, you should seek the legal advice of a knowledgeable attorney immediately. During these uncertain times, it is extremely important to seek the assistance of a legal professional to learn your legal rights and obligations as Tennessee continues to navigate through the COVID-19 pandemic. Contact a Nashville attorney with Cole Law Group today at 615-490-6020 to schedule a consultation and learn about how Tennessee’s new COVID-19 law may impact you. 

ABOUT THE AUTHOR: Andy Goldstein 

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well. 

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author. 

_________________________________

¹ Tenn. Code Ann. § 14-2-102(a).

² Tenn. Code Ann. § 14-1-101(15). Notably, the new law does not define a “private business” to include schools, Medicare or Medicaid certified providers, certain healthcare providers enrolled in Medicare or Medicaid, or certain assisted-care living facilities.

³ Tenn. Code Ann. § 14-1-101(1)(A). Moreover, the definition of “adverse action” in the new law also means to “discharge, threaten, or otherwise discriminate against an employee in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.”

⁴ Tenn. Code Ann. § 14-6-102.

⁵ Tenn. Code Ann. § 14-2-102(b).

⁶ Tenn. Code Ann. § 14-2-103(a)(1).

⁷ Tenn. Code Ann. § 14-1-101(20).

⁸ Tenn. Code Ann. § 14-2-103(a)(2).

⁹ Tenn. Code Ann. § 14-2-104.

¹⁰ Tenn. Code Ann. § 14-2-104(c).

¹¹ Tenn. Code Ann. § 14-1-101(8).

¹² Tenn. Code Ann. § 14-3-101.

¹³ Tenn. Code Ann. § 14-4-103(a)-(b).

¹⁴ Tenn. Code Ann. § 14-5-101.

¹⁵ Tenn. Code Ann. § 14-6-103.

¹⁶ Tenn. Code Ann. § 14-6-104.

HIPAA is a complicated law with numerous provisions. HIPAA is the abbreviation of the 1996 Health Insurance Portability and Accountability Act, Public Law 104-191.¹ HIPAA included provisions in the law that authorized the U.S. Department of Health & Human Services (HHS) to adopt national standards to protect the privacy of personal health information. HIPAA mandated that HHS take action that ensures privacy protection for individually identifiable health information.² 

According to the official HHS website, HIPAA requirements include those found in Public Law 104-191, a final privacy rule adopted in December 2000, a final Security Rule adopted in February 2003, an Enforcement rule, and an Omnibus Rule.³ An unofficial version of all HIPAA regulations is found in a combined regulation text on the HHS website.⁴ This unofficial version of regulations is 115 pages long. You may read the full regulations for yourself if you want. However, the purpose of this article is to provide a snapshot into what HIPAA is and the basic requirements it imposes on businesses.

First, it is important to note, that HIPAA does not impose requirements on all businesses. Instead it only applies to the following entities: “(1) A health plan; (2) A health care clearinghouse; (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter; or (4) an individual or “business associate” that provides certain services to a covered entity.”⁵

Thus, your business is only regulated by HIPAA to the extent that your business falls into one of the four above listed categories. The first three are fairly self-explanatory. Savvy business owners likely understand if their business falls within those categories. The more difficult determination is if your business is a “business associate” of one of the first three types of businesses. Business Associate is further defined in § 160.103 to include Health information organizations, someone that offers personal health records, and a subcontractor that “creates, receives, maintains, or transmits protected health information on behalf of the business associate.”⁶ § 160.103(4) carves out exceptions from the definition of business associates. These exceptions include: health care providers to the extent that they are disclosed information regarding treatment of the individual, plan sponsors when they disclose to a group health plan, a government agency, and other limited circumstances.⁷

Hypothetically, if your business contracts with a health care provider to provide database storage, would this use subject you to HIPAA requirements? Most likely, yes. Providing database storage may be determined to be a business associate, as your role would be to receive or maintain protected health information on behalf of your company’s client. Also, you should be able to determine who your customers are to determine if they are health care providers or other covered entities. What if your company provides generally applicable services, such as email available to the public, yet you do not contract directly with a heath care provider? Then the business owner would not have a contract that authorizes the business to create, receive, maintain, or transmit protected health information. Thus, that company should not be subject to HIPAA regulation.

Why Should My Company Pay Attention to HIPAA Compliance?

HHS takes their obligations to enforce HIPAA regulations seriously as evident by the large amount of HIPAA fines and settlements that have been handed out in recent years.⁸ There were 10 reported fines and settlements in 2018. Notably, Anthem, Inc. agreed to a $16,000,000 settlement for numerous HIPAA violations in October 2018. Anthem’s hefty fine was due to the extreme scale of a its 2015 data breach which affected around 78 million people being stolen by hackers.⁹

In many areas of the law, it is wiser to plan ahead and spend money on compliance than stick your head in the sand and risk an extreme penalty if you are caught. If you are unsure whether your business may have HIPAA compliance issues, you should read more on the subject and consider consulting with an attorney or hiring your own HIPAA compliance expert.

For much more detailed HIPAA information, I recommend reading the HIPAA Journal’s Compliance Checklist.¹⁰

_____________________________________

¹ See https://www.hhs.gov/hipaa/for-professionals/index.html

² See https://aspe.hhs.gov/report/health-insurance-portability-and-accountability-act-1996

³ See https://www.hhs.gov/hipaa/for-professionals/index.html

⁴ https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/administrative/combined/hipaa-simplification-201303.pdf?language=es

⁵ C.F.R. Part 160.102.

⁶ C.F.R. § 160.103.

⁷ C.F.R. § 160.103.

⁸ https://www.hipaajournal.com/summary-2018-hipaa-fines-and-settlements/

⁹ Id.

¹0 https://www.hipaajournal.com/hipaa-compliance-checklist/

In most instances under the law, debt is incurred in the capacity of the person(s) involved in the transaction only. Yet, there are several exceptions to this rule. State contract and family law apply to determine if one spouse may be liable for the debt of the other spouse. Tennessee law has provisions for garnishment, to levy bank accounts, to foreclose on property, and place a lien in certain circumstances.¹ Additionally, if you sign a contract as a grantor for the medical care of a friend or family member and agree to contractual provisions that you will pay in the event that they fail to do so, you may be legally bound by that contract.

One of these lesser known exceptions to debt being incurred in an individual capacity only is the obligation to pay the medical bills of a spouse. Tennessee courts have directly recognized the common-law doctrine of necessaries to require a spouse to pay the medical debt of the other spouse in certain circumstances since at least 1997.² In Outpatient Diagnostic Center v. Christian, a medical care provider attempted to hold a husband liable for medical services provided to his wife.³ The husband argued that he should not be liable for his wife’s debt because she was not acting as his agent in the transaction and he did not ratify her debt. The court reasoned that a spouse’s duty to pay for necessary medical expenses for the other spouse is a straightforward application of the common-law imposed duty on a husband to furnish support for his wife.⁴ Additionally, the Tennessee legislature appeared to ratify this doctrine in 1974 in T.C.A. § 47-18-805 “Liability of spouse.”⁵ The court also reasoned that other states confronting similar disputes have recognized the common-law necessaries doctrine as creating this obligation.⁶

The Court defined the limits of the doctrine: “[A] provider of medical services can make out a prima facie claim for recovery under the necessaries doctrine by proving that

(1) it provided medical services to the receiving spouse,

(2) the medical services were necessary for the receiving spouse’s health and well-being,

(3) the person from whom recovery is sought was married to the receiving spouse when the services were provided, and

(4) payment for the services has not been made.”⁷

Thus, if you were married to your spouse at the time your spouse incurred medical bills, your spouse was provided medical services, the medical services were necessary, and your spouse never paid the debt, you may be considered liable under the common law necessaries doctrine.⁸ Objectively, this doctrine seems quite unfair. A spouse may legitimately have no notice that their spouse has sought medical treatment and incurred medical debt and may be quite surprised to be sued over the debt. Yet many medical debt holders may also choose to forgive the debts in such cases that seem exceptionally unfair even if not required to do so by law. As a public policy matter, Tennessee law should encourage people to seek treatment for serious medical conditions. This antiquated application of common-law could easily be overridden by statute if the Tennessee legislature desired to do so. Perhaps now is a good time for that action.

____________________________________

¹ See https://www.bills.com/debt/tennessee-collection-laws; TCA 26-2-107; TCA 26-2-103; TCA 35-5-101

² Outpatient Diagnostic Ctr. v. Christian, No. 01A01-9510-CV-00467, 1997 Tenn. App. LEXIS 305, at *7 (Ct. App. Apr. 30, 1997).

³ Id. at 1.

⁴ Id. at 7 (citing Simpson v. Drake, 150 Tenn. 84, 86, 262 S.W. 41, 41 (1924)).

⁵ T.C.A. § 47-18-805 states: “Where the applicant for credit is married, the spouse of the applicant shall not be liable, other than to the extent common law liability is imposed for furnishing necessaries, for any debts, charges, or accounts where the spouse has not signed the application for credit.”

⁶ Christian, *8 (citing cases from New York, Rhode Island, Vermont, and Virginia in support).

⁷ Id. at 7.

⁸ See Id.

In Texas v. U.S., the Plaintiffs allege in the Complaint that “Because this recent amendment renders legally impossible the Supreme Court’s prior savings construction of the Affordable Care Act’s core provision—the individual mandate—the Court should hold that the ACA is unlawful and enjoin its operation.”⁶ The plaintiffs filed for a preliminary injunction recently. The District Court construed the motion for a preliminary injunction as a motion for partial summary judgment and granted the Plaintiffs summary judgment on count I on December 14, 2018.⁷ This recent decision has made a major splash in the current news cycle.⁸

In the Texas v. U.S. decision, the Court did not attempt to hide the ball deep in the analysis. Instead the Court was transparent in the introduction section and presented a road map for the case.⁹ First the Court reasoned that Article III courts must decide cases or controversies presented to them, even those of the most politically charged. Second, the Plaintiffs allege “the balance of the ACA is untenable as inseverable from the Invalid Mandate.” Third, the Court’s decision is guided by the Supreme Court’s previous decision in NFIB v. Sibelius resting on the tax power only. Fourth, Congress stated the individual mandate was unequivocally “essential to the ACA”. Thus, the District Court granted summary judgment to the Plaintiffs that the ACA is now unconstitutional in totality.¹⁰

I expect the District Court’s decision in Texas v. U.S. to be immediately appealed to the Fifth Circuit. A Fifth Circuit decision will likely come within the next six months. Then the U.S. Supreme Court will likely grant certiorari on the case and oral arguments will likely be held before the end of the 2020 term of the Supreme Court.¹¹ With the current makeup of the U.S. Supreme Court, expecting the judges to maintain fairly consistent voting from the NFIB v. Sebelius case, the outcome of the ACA may once again be determined by a bare majority vote of nine unelected judges.

REFERENCES

¹ See https://libguides.law.umn.edu/c.php?g=125769&p=906254#s-lg-box-8790976

² See https://www.natlawreview.com/article/analysis-us-supreme-court-upholds-affordable-care-act-roberts-rules; Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).

³ Id.

⁴ Pub. L. No. 115-97, 131 Stat. 2054 (2017); See https://www.smith-howard.com/2018-tax-cuts-jobs-act-overview (“the most sweeping tax legislation since the Tax Reform Act of 1986 was signed into law.”).

⁵ https://www.courtlistener.com/docket/6321938/1/texas-v-united-states-of-america

⁶ Id.

⁷ Texas v. United States, Civil Action No. 4:18-cv-00167-O, 2018 U.S. Dist. LEXIS 211547, at *11 (N.D. Tex. Dec. 14, 2018).

⁸ See https://www.npr.org/sections/health-shots/2018/09/04/644529224/whats-at-stake-in-the-latest-affordable-care-act-court-battle; https://www.reuters.com/article/us-usa-healthcare-court/federal-judge-rules-obamacare-unconstitutional-idUSKBN1OE01Y

⁹ Texas, 2018 U.S. Dist. LEXIS 211547, at *11

¹⁰0 Id.

¹¹1 See http://time.com/5482004/affordable-care-act-court-ruling/