Articles Posted in Healthcare

TENNESSEE’S NEW COVID-19 LAW AND ITS IMPACT ON ENFORCEMENT OF MANDATES

March 14, 2022 | by Andy Goldstein

On November 12, 2021, Tennessee Governor Bill Lee signed a new law addressing several issues related to the response to the 2019 Novel Coronavirus, SARS-CoV-2, coronavirus disease (COVID-19), and COVID-19 vaccinations. The new law became effective immediately upon being signed by Gov. Lee on November 12, 2021. Among other things, the new law significantly curtails the government’s ability to impose mask mandates and prohibits the government and most private businesses from compelling individuals from providing proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason. This article discusses some of the important changes the new law brings to public policy surrounding the response to the COVID-19 pandemic throughout Tennessee.

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

Is Your Tennessee Business Subject to HIPAA Regulations?

February 1, 2019 | by Cole Law Group, PC

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

Is Your Spouse’s Medical Debt Considered Marital Debt in Tennessee?

January 28, 2019 | by Cole Law Group, PC

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

Texas Federal Court Rules ACA Unconstitutional–What Happens Next?

January 2, 2019 | by Cole Law Group, PC

There have been several high-powered legal battles about the Constitutionality of the Affordable Care Act (ACA) ever since the Act became a law in March 2010.¹ Several of these cases have considered important Constitutional issues such as the extent of Congress’ commerce clause, necessary and proper, and tax power.² In NFIB v. Sebelius a split supreme court narrowly upheld the constitutionality of the ACA based upon Congress tax power, yet rejected arguments that the law could be sustained based on Congress commerce clause power or the necessary and proper clause.³ Resting the Constitutionality of the ACA upon a single reason left the ACA vulnerable to future legal attack. This attack came in a two-prong approach, first in the 2017 Tax Cuts and Jobs Act (TJCA) signed into law in December, 2017, the individual mandate from the ACA was repealed by Congress and signed into law by the President.⁴ It did not take long for new legal challenges to mount. One of those came quite quickly after the change in the law in the case of Texas v. U.S in the Northern District of Texas on February 26, 2018.⁵

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