VOL. 42 | NO. 18 | Friday, May 4, 2018
Look ahead to 2019 session: New faces, unfinished business
By Sam Stockard
The Tennessee Legislature took steps toward combating opioid abuse and reforming juvenile justice in the 2018 session but fell short of what many lawmakers hoped to achieve, setting the stage for renewed action in 2019 when a new General Assembly will convene.
The Legislature also left the door open to take another look at Medicaid expansion next year.
But those efforts could be hampered by a massive turnover expected in the Tennessee Legislature as some 35 lawmakers leave and a new governor is sworn in next January. Tennessee Democrats also say they are putting candidates in nearly every legislative district in the state in an effort to start chipping away at Republican supermajorities in the House and Senate.
“A lot of these issues are really tough, and not to say you have to have experience in government to do a good job,” says House Minority Leader Craig Fitzhugh, a Democratic gubernatorial candidate who won’t return to the House in 2019.
“But when you’re going to change maybe as much as a third of the House and a goodly portion of the Senate, there’ll be some growing pains there with leadership and rank-and-file members that could set us back a little more, if we just put off the inevitable about dealing with some of these issues. It’s going to be an interesting year next year in the Legislature for sure.”
In fact, one of the Legislature’s key cogs, Senate Majority Leader Mark Norris, could be exiting if he is confirmed as a U.S. District Court judge, putting the battle against opioid abuse and juvenile justice reform in someone else’s hands.
Legislators say plenty more can be done to shore up those areas, two of Gov. Bill Haslam’s major initiatives this year.
Grappling with juvenile justice
“This session was sort of marked by the folks in black robes and white coats,” Norris points out. “The black robes dispense justice, the white coats are the doctors dispensing drugs. Neither one of them like you infringing on their authority.”
The session also will be remembered by what didn’t get done, issues left to next session to decide.
Juvenile justice reform legislation succeeded in “establishing a presumption” children shouldn’t be detained longer than six months, according to Norris, a Collierville Republican and nominee for a U.S. District Court judgeship in Memphis.
Without a unified court system, though, Norris adds he ran into opposition from judges statewide who don’t want the Legislature telling them how to run their courts.
At the same time, “separation of powers” came into play as the Legislature tried to reduce punishment for status offenses such as truancy and running away from home. Tennessee is among 16 states where juvenile courts send children to detention for those violations, and about six of 95 counties issued 80 percent of roughly 4,500 court orders for those types of violations in 2014.
Undergoing study by legislative committees and the PEW Charitable Trusts, the legislation also was designed to keep juveniles closer to their homes for treatment and punishment.
The state could have cut juvenile detention costs by 40 percent through alternative sentencing for minor offenses but will wind up with less than 10 percent savings, Norris projects.
“Those judges don’t want to go there. They want to keep control of those kids, and they want to lock them up. We’re trying to get them away from that,” Norris says.
The measure contains $4.5 million in state funding to provide more counseling for juveniles in rural areas, an effort to end what some leaders call “justice by geography.” In addition, it seeks more data from juvenile courts for future decisions on dealing with children.
Gov. Bill Haslam, who is in the final year of his second term, agrees the Legislature took “a first big step” on juvenile justice reform and acknowledges more must be done.
“Some of us would have liked to have seen it go a little further, but we understand, and it’s trying to get the right balance between judicial discretion and making a real move to a different place,” Haslam says.
With hundreds of Tennesseans dying annually from drug overdoses, the governor proposed legislation designed to cut the amount of opioid prescriptions flooding the market.
“I think what we’ve accomplished this year will do a lot to stem the tide of the flow of drugs in the drug pipeline, and it will also help treat those that have had to deal with addiction problems,” Lt. Gov. Randy McNally says.
Dealing with methamphetamine and opiates, and new drugs coming into the market, has been one of the Legislature’s toughest tasks, explains McNally, an Oak Ridge Republican.
The governor’s legislation provides $30 million to offer intensive substance abuse treatment for inmates who want to escape addiction, in addition to 10 state troopers to fight the war on drugs. It also updates the schedule on controlled substances, adding synthetic versions of deadly drugs such as fentanyl.
Democrats are likely to spend much of 2019 calling for more spending on opioid addiction treatment, as they did this session.
Fitzhugh, who says he believes the state needs to commit more money to fighting opioid abuse, compared the amount of money spent on the problem to the Rio Grande in the summertime, “a mile wide and an inch deep.”
Another push for expanding TennCare, the state’s version of Medicaid, is likely, too, though it will probably be rebuffed unless Democrats can build their numbers significantly this fall.
Haslam reportedly floated the idea of Medicaid expansion midway through the session and received positive feedback from House and Senate Republican leaders but not enough to move toward action.
“That’s undoubtedly the biggest failure we had,” Fitzhugh acknowledges.
The Senate largely backed the governor’s initial legislation. But House members worked more closely with different health care practitioners, as well as pharmacists, hospitals and dental practices, to enable them to maintain more authority over prescribing medication and without interfering with physician-patient relationships.
Opposition from prescribers led to compromise that softened Haslam’s bill quite a bit, allowing physicians and dentists to write prescriptions for up to three days, with a total of 180 morphine milligram equivalent, without being required to check a controlled substance monitoring database. If they write up to a 10-day opioid prescription with a total dosage of 500 MME they’ll have to check the database, a requirement designed to stop patients from doctor shopping.
The legislation also includes exceptions for major surgeries and exemptions for cases such as cancer, hospice treatment and sickle cell anemia and treatment in some licensed facilities.
The compromise legislation sponsored in the House by Rep. Cameron Sexton, a Crossville Republican, also contains pieces designed for education and prevention, for example, asking medical schools to add more hours for teaching about pain control and addiction.
A new governor’s administration could require physicians to ask more questions on physical forms to see if patients are likely to be dependent or become addicted to painkillers, Sexton says.
“That would go a long way in shaping how we prescribe pain medicine in the state of Tennessee,” he adds.
Legislation designed to create a system for growing and dispensing medical cannabis in Tennessee fell by the wayside this year.
Some lawmakers opposed the plan to create a “bureaucracy” leading to a multi-million-dollar industry. Those views forced Rep. Jeremy Faison to turn his bill into a decriminalization measure just to push it through the House Criminal Justice Committee, but Sen. Steve Dickerson, a Nashville Republican and anesthesiologist, declined to take his version of the bill through the Senate Judiciary Committee, killing it for the year.
Faison remains unfazed heading into re-election season.
“Medical marijuana’s coming to a state near you. It’s going to be everywhere in the next two years. I believe it’ll pass overwhelmingly next year in Tennessee,” explains Faison, a Republican from Cosby in East Tennessee.
“As a matter of fact, there are senators who are wishing to God they would have voted for it. The ones who are in general elections, they’re just wishing they would have spoken out for it or voted for it now. It’s what the people want.”
Faison contends the federal government and major pharmaceutical companies forced opiates on American consumers and patients. For example, if health-care providers receiving Medicaid and Medicare dollars didn’t want to prescribe pain medicine to patients, their funding would be cut, he says.
“The majority of America is begging for medical cannabis, but the big government and big pharma are saying no,” Faison contends.
Regardless of who is elected governor this year, he predicts Tennessee will see a change in medical cannabis laws.
TNReady flunks test
Statewide testing in grades 3-12 went haywire in the final two weeks of the session, sending shockwaves across Tennessee as students, teachers and administrators worried about scores and evaluations. The problems could lead to major testing changes in 2019 with legislators fed up with annual disasters going back three years and a Comptroller’s review of the testing failure under way.
“We probably should have had some type of audit going on where we could have taken some action,” Fitzhugh says.
Foul-ups by the state’s vendor, Questar, and an outside hacking attack put an end to the testing in some school systems. Education Commissioner Candice McQueen refused to resign over the matter – at the call of Democratic leaders – saying the problems were fixed, even though they continued for the next two weeks.
House members, livid they were paying the vendor $30 million a year for failure, put McQueen on a hot seat during a joint committee meeting.
But the most intrigue came down on the session’s final day as the House and Senate sparred over how to handle the fallout. Ultimately, the Legislature decided no “adverse action” could be taken against teachers as part of their evaluation, or against students and schools for poor tests stemming from the testing collapse.
Wording in amendments attached to the state’s $37.7 billion budget plan became the subject of disagreement between the House and Senate, leading to a seven-hour delay wrapping up business.
Senate leaders, including McNally and Norris, felt they had handled the situation the week before the Legislature was to adjourn. But House members felt the ire of teachers statewide who said the botched testing could count toward 10 percent of their evaluations.
House Majority Caucus Leader Glen Casada, who in emergency meetings on the House floor said his group would stand firm for holding teachers “harmless,” downplayed the matter later that night during a press conference with the governor and Senate leadership. Yet he had called for putting a hold on the budget until both chambers could approve legislation to protect teachers.
“I think we just happened to take it up first in the order of business and then the Senate worked their way to it,” Casada explains.
Nevertheless, even Haslam conceded lawmakers had “legitimate” concerns about the testing, even if differing opinions clouded the matter. The governor consistently emphasizes improvements in student test scores have pushed Tennessee from among the worst-performing states in the nation to the middle of the pack.
“One of the reasons we’re trying to do that is: We don’t want to go back to the days where we didn’t have some objective test for how much we were learning,” Haslam acknowledges. “When we did that 10 years ago, Tennessee got an F for truth in advertising for saying 70 percent of our kids were proficient at grade level, but they weren’t. So we wanted to try to figure out a way to have a good objective measure that is fair and helps to protect teachers and gives them an adequate way to measure the progress of their students.”
Some House members were ready to ditch the statewide exam in light of the Questar foul-ups, which were the latest in a series of end-of-year testing snafus.
State Rep. Andy Holt, a Dresden Republican, says he hopes to bring legislation in 2019 pushing for a study on the impact of TNReady and for alternative testing of students.
“I think it’s well worth us staying here an extra day or two to mitigate the disaster that teachers have dealt with every day in their class for the last 180 days,” Holt said during an emergency House Republican Caucus meeting that also touched on constitutional amendments House members wanted to handle with little time remaining.
Faison, who called for a Comptroller’s Office review of Questar’s handling of TNReady, is prepared to put an end to the end-of-year exam in 2019, if he wins re-election. He favors putting emphasis on the ACT Aspire and WorkKeys for those who aren’t planning to attend college.
He contends the ACT and WorkKeys would provide plenty of accountability.
“That’s what the teachers want, that’s what the students want. I don’t know why we’re doing it,” Faison notes. “The deal is nobody in America cares about the TNReady test. No college in Tennessee looks at the scores for TNReady. It’s a waste, and we’ve proved year after year after year that we’re wasting millions of dollars and what have we got? Nothing.”
The Legislature approved new Circuit Court judges for the 16th, 19th and 21st Judicial Districts to cope with population growth in Rutherford, Williamson and Montgomery counties.
But Sen. Bo Watson, chairman of the Senate Finance, Ways and Means Committee, predicts the Legislature could come back next year and work toward more of a permanent solution.
“That’s going to become a problem for us financially if we just keep adding judges without looking at how they are distributed,” adds Watson, a Hixson Republican from Hamilton County.
One of the factors funding for new trial court judges was an agreement to redraw judicial districts based on population trends, as some counties see major growth and some see decline, according to Watson.
Some smaller communities grow accustomed to having a certain number of judges.
But Watson points out, “We just can’t keep adding judges and have some being overburdened and some not having enough to do.”
Lawmakers put a good deal of emphasis on a Comptroller’s report showing districts needed more judges to keep up with a growing court docket. But if lawmakers plan to use that method rather than redistricting, Watson says, “Let’s make that the strategy, instead of these one-offs here and there along the way.”
Sam Stockard is a Nashville-based reporter covering the Legislature for the Nashville Ledger, Memphis Daily News, Knoxville Ledger and Hamilton County Herald. He can be reached at email@example.com.