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News & Press: Policy Update

Policy Update: Second Session of the 111th Tennessee General Assembly Summary

Monday, June 22, 2020  
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111th General Assembly
Policy Update

June 19, 2020

Second Session of the111th

Tennessee General Assembly Summary

The year 2020 will go down as one of most challenging and disruptive years in state history. Just prior to convening the second legislative Session the state was confronted with a scandal which resulted in the resignation of House Speaker Glen Casada. The House of Representatives moved quickly to elect Rep. Cameron Sexton into the Speaker’s position. While changing House leadership between sessions of the same General Assembly is unusual enough, little did anyone realize that a pandemic was on the horizon.

The novel Coronavirus (COVID-19) hit Tennessee on March 5, 2020. In an attempt to stem the spread of the virus, the General Assembly passed an emergency “bare-bones” budget and suspended debate on all other bills. The legislature vacated the Cordell Hull building in the final days of March and formally reconvened on June 1st. In those few weeks of recess, the economy of Tennessee began to struggle leaving little hope for passing legislative initiatives with fiscal requests such as the improvement in student aid and the public higher education formula.

Once the legislature reconvened, TICUA began to work with a coalition of over 30 trade associations to pass a measure that would provide legal protection against Coronavirus contraction on member campuses as they begin the process of reopening in the fall. The legislative measure was dubbed the “Tennessee Safe Harbor and Recovery Act.” The measure failed in the final days of session which brought a disappointing close to the 111th General Assembly.

The following bills are a sampling of legislative issues which were monitored by TICUA:

General Assembly Passes Higher Ed Emergency Measures
With the onset of the Coronavirus, the Legislature passed an emergency measure which allowed the Director of the Tennessee Student Assistance Corporation (which is the Executive Director of THEC) to “temporarily modify, suspend, or waive any deadline or other non-academic requirement in statute.” The emergency provision is active only during the Governor’s declared a state of emergency. This allows the state to make necessary filing deadline adjustments to all state student aid programs during the Coronavirus pandemic. Many student friendly modifications were made to application deadlines and waiving community service requirements for the Tennessee Promise Scholarship.
Bills Taken Off Notice After COVID-19 Recess

Upon reconvening on June 1st, after the COVID-19 recess, the legislature voted to take several bills off notice without consideration. This action essentially ends their possibility of becoming law during the 111th General Assembly. Bills being followed by TICUA which were taken off notice include:

  • HB2107/SB2031 – adds William R. Moore College of Technology as a recipient of the Tennessee Reconnect and Dual Enrollment Grant programs
  • HB1199/SB977 – adds William R. Moore College of Technology as a recipient of the Wilder-Naifeh Technical Skills Grant
  • HB1834/SB1580 – deletes requirement that students must be a Tennessee resident for one year to receive a Dual Enrollment Grant
  • HB2305/SB2220 – revises the TN Promise GPA calculation and permits an appeal based on the GPA calculation
  • HB742/SB1380 – requires TSAC to award $500 for each of the first four Dual Enrollment Grant courses
  • HB497/SB441 – adds Western Governors University as a recipient of the HOPE Scholarship
Budget Adjustments

Tennessee’s state tax revenue suffered greatly during the first quarter of 2020. It is anticipated that the state’s revenue will be down by $1.5 billion by the end of the budget year. The economic downturn has resulted in over $680 million in recurring cuts to the FY2021 budget. All state government departments were instructed to plan for 12% reductions in their budgets.

The higher education budget was not exempt from the pandemic’s impact on the Tennessee economy. Not only did budget improvements disappear but numerous capital projects were wiped off the books as well. The higher education formula and nonformula units were cut by $23.6 million and the outcomes formula suffered a $38 million cut. While the Tennessee Student Assistance Award improvement was lost, no cuts were made to the base program. As well, the Contract Education program remained stagnant.

Tennessee Safe Harbor and Recovery Act Fails
 

TICUA worked with a coalition of over 30 diverse employer associations to ensure protection from frivolous lawsuits related to the Coronavirus. The Tennessee Safe Harbor and Recovery Act (SB2381/HB2623) provides protection for those entities which are attempting, to the best of their ability, to abide by governmental endorsed guidelines related to COVID-19 as they reopen their operations.

The Tennessee Safe Harbor Act provides broad civil liability protection from “health emergency claims” for a wide array of covered entities in Tennessee, including TICUA member campuses. Under this act, a covered entitywill not be liablefor any damages, injury, or death that results from a “health emergency claim” if the covered entity did not act with gross negligence or willful misconduct, and substantially complied with applicable public health guidance.

A “health emergency claim” includes any cause of action that is related to the following circumstances: The actual, alleged, or possible exposure to, or contraction of, Coronavirus from a covered entity or arising from a covered entity's operations, products, or services; or The covered entity’s efforts to prevent or delay the spread of Coronavirus.

With the complexity and ever-changing framework of local, state, and federal guidelines, the Safe Harbor Act adopts a comprehensive definition of “public health guidance,” which includes all forms of governmental guidance and direction released throughout the progression of the pandemic.

While the legislation intends to provide protection from the financial toll and distraction of legal defense, it does not seek to excuse bad actors or create blanket immunity from pandemic-related lawsuits. Protection from health emergency claims does not apply if a claimant proves by clear and convincing evidence that the covered entity caused damages, injury, or death by acting with gross negligence or willful misconduct.

In order to overcome the act’s safe harbor from health emergency claims, a claimant must demonstrate that the harm alleged was caused by the covered entity’s gross negligence or willful misconduct; and did not substantially comply with applicable public health guidance.

Considering the severe economic damage caused by the pandemic, covered entities throughout the state have expressed that the expense of defending frivolous lawsuits would drive them into financial ruin. To prevent costly defense of unsubstantiated litigation, claimants will be required to meet a heightened standard of pleading specific facts with particularity in order for a health emergency claim to advance.

In the end, the Chambers could not reach an agreement concerning the effective date of the bill. The Senate argued for a March 5 effective date, which is tied to the first diagnosed COVID-19 case in Tennessee. Since our campuses were taking action to stem the spread of the virus throughout the Spring semester, TICUA pushed for the early effective date. The House, however, felt as if a retroactive date may not survive a court challenge. Consequently, the House Justice Committee leadership demanded a later effective date tied to the passage of the bill. During the early morning hours of Friday, June 19, 2020 the House voted down the compromise which defeated the entire measure.

As a result, any challenges brought by a claimant will only need to prove simple negligence for a liability case to move forward. All the higher standard benefits outlined above have been lost.

Tennessee Commission on Education Recovery and Innovation

Sen. Dolores Gresham and Rep. Bill Dunn sponsored a bill (SB1974/HB2470) which creates the Tennessee Commission on Education Recovery and Innovation. The Commission is created to examine the short and long-term systemic effects that the COVID-19 pandemic and natural disasters of 2020 have had on the state's educational systems. According to the bill, “the commission shall advise and make recommendations to the General Assembly, the State Board of Education, the Department of Education, the Tennessee Higher Education Commission, and the state institutions of higher education on strategies to close educational gaps resulting from school COVID-19 related closures, and to modernize the state's educational structure from kindergarten to career in order to create more flexibility in the delivery of education to students.”

The Commission is composed of the following nine (9) members. Three persons appointed by the Governor; three persons appointed by the Speaker of the Senate; and three persons appointed by the Speaker of the House of Representatives. In making appointments, the appointing authorities shall strive to include directors of schools, leaders of higher education institutions, educators, and community and major business leaders.

The Commission is required to submit an initial assessment of the effect the COVID19 pandemic has had on Tennessee's educational systems to the General Assembly no later than January 1, 2021. The Commission shall submit a report on the Commission's actions, findings, and recommendations to the General Assembly no later than January 1, 2022, and shall submit a final report on the Commission's actions, findings, and recommendations to the General Assembly no later than June 30, 2022.

Governor Lee’s Literacy Initiative Stalls

Governor Lee’s administration introduced a bill (SB2160/HB229) to address early literacy early in the legislative session. The bill sought to improve literacy through scientific and evidenced based phonics instruction. The focus is on districts which have K-3 students reading below expectations. Those districts with 3rd grade reading proficiencies above 15% of the state average and with institutions with at least 55% of reading proficiency will be exempt.

The bill requires that Education Preparation Providers (EPP) must have their K-3 teacher and administrative leadership candidates pass a test developed or identified by the department that tests the candidate's knowledge of evidence-based and scientifically-based reading instruction in order to receive a teacher license. Too, college and university professors teaching in the K-3 space must have an active teacher license to teach or have the requirement waived by the Department.

Interestingly, the bill goes further to require all EPP programs to submit information about college cost and student loan burdens of EPP graduates. The bill states, “A joint analysis with the Tennessee higher education commission regarding affordability of educator preparation providers, including tuition affordability for future educators, costs relative to peer institutions in other states, student loan and debt burden of educator preparation provider graduates, an assessment of financial barriers that may prevent high school graduates and career changers from pursuing teaching as a profession, and the ability to reduce the costs of offering educator preparation and credentials.”

When the legislature reconvened after the Coronavirus recess the House Education Committee adopted an amendment which rewrote Governor Lee’s bill. The amendment vests the LEA’s with more control on how literacy will be taught in their districts. The bill retains the requirement to not promote any third-grade students to the next grade who have not “shown a basic understanding of the curriculum and ability to perform the skills required in the subject of reading.”

The amendment retains the requirement of teacher preparation programs to train K-3 teacher candidates on how to teach “foundational reading skills of phonemic awareness, phonics, fluency, vocabulary, and comprehension.” As well, teacher candidates must be able to identify students with dyslexia, students with advanced reading skills, can use and understand student reading data, and how to effectively use high-quality instructional materials.

The amendment deletes the requirement of university faculty teaching reading strategies to teacher candidates to have an active teacher license, pass a literacy exam, or attend statewide training. The amendment retains, however, the requirement of teacher preparation programs to participate in a college-cost analysis based on net-tuition.

The amendment was drafted as a compromise between the House and the Senate leadership. However, when the bill was considered by the Senate Education committee, it was sent to the “General Subcommittee” essentially ending the bill’s passage this session. Due to the Governor’s passion for the issue, it is likely that similar legislation will be introduced in the 112th General Assembly.

FAST Act

The Tennessee Higher Education Commission drafted a comprehensive update to several higher education programs. The 74-section bill (SB2097/HB2157) was sponsored by Sen. Dolores Gresham and Rep. Gary Hicks. The Senate and House took up the FAST Act soon after the Coronavirus recess took action to remove all cost provisions of the bill. Below is a Tennessee Student Assistance Corporation summary of the items which remained intact in the final bill. Provisions in year one will take effect with the 2020-21 academic year. Provisions in year two of the Act will take effect with the 2021-22 academic year.

Year 1 (2020-21)

  • Adds certificate as a terminating event for Tennessee Promise
  • Eliminates the Tennessee Math & Science Teacher Loan Forgiveness Program by no longer accepting initial applications after August 1, 2020. Renewal applications only will be accepted after this date.

Year 2 (2021-22)

  • Eliminates the Tennessee Teaching Scholars Program (TTSP) by no longer accepting initial applications after August 1, 2020. Renewal applications only will be accepted after this date.
  • Adds Program of Study for the following programs:
    -Tennessee Student Assistance Award (TSAA)
    -Tennessee Education Lottery Scholarships (TELS), including Tennessee Reconnect
    -Tennessee Promise
  • Amends the Minority Teaching Fellows Program (MTFP) to require junior, senior, or graduate-level status only to receive the award
Student Athlete Compensation Deferred

Sen. Brian Kelsey and Rep. Antonio Parkinson filed a bill (SB1636/HB1694) which prohibits a public institution of higher education from preventing a student athlete from earning compensation as a result of the use of the student athlete's name, image, or likeness. The bill’s provisions allow student athletes to receive compensation, enter into contracts, and hire professional representation. This bill further prohibits a public institution of higher education, an athletic association, conference, or other group with authority over intercollegiate athletics from providing a prospective student athlete with compensation. The language is similar to that which was passed by the California state legislature. This has become a widely discussed policy issue that is being addressed by the various athletic conferences. Ultimately, the Tennessee legislation was stalled with the news that the NCAA was making progress with a national solution to the issue. It is likely that Congress will pass a measure addressing student compensation.

STRONG Act Expansion Fails

House and Senate Majority Leaders Rep. William Lamberth and Sen. Jack Johnson introduced a bill (SB2177/HB2246) to expand and modify the STRONG Act. The STRONG Act, which is administered by the TN Department of the Military, was passed in 2017 and provides student aid to members of the Tennessee National Guard. Several TICUA campuses serve the Guard through this reimbursement program.

The major provisions of the bill include:

  1. Adds colleges of applied technology to the list of types of institutions that are eligible for reimbursement;
  2. Extends eligibility for reimbursement to mandatory fees;
  3. Specifies that doctoral programs are not eligible for reimbursement;
  4. Clarifies that semester-hour equivalents, such as hours earned on the quarter system, are eligible for reimbursement, remedial course work is eligible for reimbursement, and hours attempted before graduating from high school or earning a GED are not eligible for reimbursement;
  5. Adds a requirement that a guard member must maintain a 3.0 GPA for reimbursement of tuition for a master's program. The GPA requirement will remain a 2.0 for undergraduate, vocational, or technical programs;
  6. Limits the number of master's degree program semester hours that are eligible for reimbursement to 40 semester hours;
  7. Limits the number of vocational or technical program semester hours that are eligible for reimbursement to 24 semester hours;
  8. Clarifies that only semester hours attempted for a guard member's first bachelor's degree and first master's degree are eligible for reimbursement;
  9. Authorizes reimbursement for 30 additional semester hours for a guard member who is enrolled in ROTC while attempting a first bachelor's degree or first master's degree; and
  10. Specifies that guard members who receive an ROTC scholarship must exhaust the benefits of such scholarship to be eligible for tuition reimbursement under the STRONG Act.

The legislation stalled in the Senate Education Committee. As with most bills this session, it appears that the fiscal note was too large to be considered during these difficult financial times. The initiative will be left to the next General Assembly to take-up.