Education Issues Highlight Capitol Hill Week

(NASHVILLE, Tenn.), February 18, 2016 – Education moved front and center this week as the Focus on College and University Success (FOCUS) Act passed its first legislative test with approval by the Senate Government Operations Committee on Wednesday. The Government Operations Committee also joined the Senate Education Committee to hear testimony regarding a “widespread network failure” in Tennessee’s new online TNReady test, the state’s new student achievement assessment designed to measure what is being taught in Tennessee’s classrooms.

FOCUS Act – The FOCUS Act, sponsored by Senate Majority Leader Mark Norris (R-Collierville) and which is part of Governor Bill Haslam’s legislative priorities, includes:
• A sharpened focus by Tennessee Board of Regents (TBR) on the state’s 13 community and 27 technical colleges;
• Creation of local boards for Austin Peay State University, East Tennessee State University, Middle Tennessee State University, Tennessee State University, Tennessee Technological University and the University of Memphis;
• An enhanced role of Tennessee Higher Education Commission (THEC) to provide greater coordination across the state, to include capital project management, institutional mission approval and higher education finance strategy; and,
• Creation of a transition task force consisting of higher education, business and community leaders from around the state that will serve as the administrative and advisory body throughout the transition.

“The purpose of the FOCUS Act is to ensure that colleges and universities are better organized, supported and empowered in efforts to increase the number of Tennesseans with a postsecondary credential to 55 percent by 2025,” said Sen. Norris. “Last fall, Tennessee saw a 10 percent increase in overall first-time freshman enrollment in our public higher education institutions and a nearly 25 percent increase in first-time freshman enrollment at community colleges. This legislation will better align our postsecondary colleges and universities to meet our goals by providing a sharpened focus on the governance of our community colleges and colleges of applied technology (TCATs), while granting our four-year state universities more autonomy as we seek to empower each institution to be successful.”

TBR would continue to provide key administrative support to the six state universities under the plan. The Tennessee Higher Education Commission would assume an enhanced coordinating role in higher education, ensuring progress on a cohesive, statewide master plan; maintaining academic program quality; and formulating a strategic finance plan for state higher education.

The Government Operations Committee particularly focused on how the legislation impacts boards and commissions. Senate Bill 2569 now moves to the Senate Education Committee for consideration. If approved there, it will then travel to the Finance, Ways and Means Committee before moving to the Senate floor for final consideration.

TNReady — In K-12 education, the Senate Government Operations and Education Committees heard testimony from Commissioner of Education Candice McQueen regarding the failure of the state’s vendor, Measurement Inc., to support statewide testing of Tennessee’s new online TNReady Test. Lawmakers have heard from many parents and teachers who were upset about the failure of the test to launch after months of work went into preparing students for online testing.

McQueen said the state tested the capacity of the vendor’s system in October and January and made recommendations for improvements regarding server capacity and software glitches, but were reservedly optimistic that the test would be launched successfully. “The vendor experienced a failure we have not seen before during any of our stress tests or work to date,” Commissioner McQueen said. “Multiple operational and procedural errors by the vendor combined to overload network infrastructure in the vendors’ online platform data center.”

McQueen went on to say, “It is clear now, and it was clear on February 8, that Measurement Inc.’s platform could not meet our needs for statewide online testing this year.”

Due to the technology failure, the Department of Education ordered that school districts will now take the paper and pencil version of the TNReady test. She said the vendor has been working with the department to get the test printed and delivered to school districts across the state. School districts can then choose a 10-day testing period between February 22 – March 18 to administer the exam. Those 20,000 students who completed part I of the English and language arts, math or social studies test before the online system experienced outages will not need to retake it. The state will not be responsible for the extra costs for the paper tests.

“I appreciated the responses from Commissioner McQueen and her staff at the Department of Education which were direct and in many cases given with candor,” said Senate Education Committee Chairman Dolores Gresham (R-Somerville). “The Senate Education and Government Operations Committees will continue to follow this situation very closely.”

McQueen also announced that Governor Haslam is seeking additional flexibility for teachers as the state continues its transition to the TNReady student assessment. Under the proposal, teachers would have the choice to include or not to include student results from the 2015-2016 TNReady assessment in his or her evaluation score, which typically consists of multiple years of data. The proposal keeps student learning and accountability as factors in an educator’s evaluation while giving teachers the option to include this year’s results if the results benefit them. The governor will work with the General Assembly on specific language and a plan to move the proposal through the legislative process.

“Providing teachers with the flexibility to exclude first-year TNReady data from their growth score over the course of this transition will both directly address many concerns we have heard and strengthen our partnership with educators while we move forward with a new assessment,” McQueen said. “Regardless of the test medium, TNReady will measure skills that the real world will require of our students.”

Most educator evaluations have three main components: qualitative data, which includes principal observations and always counts for at least half of an educator’s evaluation; a student achievement measure that the educator chooses; and a student growth score, which usually comprises 35 percent of the overall evaluation.

Senate Finance approves resolution aiming to get legal clarity regarding the federal government’s Refugee Resettlement Program

Legislation urging Tennessee’s Attorney General to commence legal action in response to the federal government forcing Tennessee to spend state dollars for the Refugee Resettlement Program was approved by the Senate Finance Committee this week. Senate Joint Resolution 467, which is sponsored by Lt. Governor Ron Ramsey and Senate Majority Leader Mark Norris (R-Collierville), addresses a program in which Tennessee no longer participates.

Reports indicate that Tennessee will likely receive some of the Syrian refugees for resettlement under President Obama’s admissions plans.

Tennessee is one of only 12 “Wilson-Fish” states, which means that the state government does not operate the Refugee Resettlement Program. In 2007, Governor Phil Bredesen withdrew the State of Tennessee from the program. The federal government then selected a non-governmental volunteer organization which contracts with them to resettle refugees in Tennessee. The resolution aims to get legal clarity regarding the expenditure of state money on the program and other state operated social service programs.

The resolution references the Tenth Amendment to the U.S. Constitution, as interpreted by the U.S. Supreme Court in National Federation of Independent Businesses (NFIB) v. Sebelius, which says the federal government cannot lawfully force states to provide funding when they have no real option but to comply. Such coercion is also prohibited by Article II, Section 24, of the Tennessee Constitution. That article prohibits the expenditure of public money except when it is approved by the Tennessee General Assembly by law. The federal government had provided 100 percent of the funds associated with the program when it was implemented, but now the state must bear some of the costs.

Norris said declaratory relief from the courts is necessary to bring clarity regarding who must pay the bill for various programs in which refugees would be eligible. Declaratory relief doesn’t seek for the courts to force either party to take action. It gives the court the opportunity to declare the rights of the parties involved. The lawsuit would ask the court to determine what Tennessee’s rights are versus what the federal government is currently requiring the state to do.

“So in essence, what is happening here is that the federal government has done indirectly, what it could not do directly,” said Norris. “In other words, they delegated to the voluntary agency, but have increasingly required the State of Tennessee to pick up the costs, and that is a problem. That is a problem that needs to be addressed by declaratory relief in the federal courts.”

If the state refuses to pay the portion for refugees, the federal government would withhold the remainder of funds that Tennessee receives. The resolution maintains that this coercion by the federal government violates both the United States and Tennessee constitutions.

Another example of increasing cost to the state is the English Language Learners (ELL) program, which serves students from foreign countries. In Metropolitan Nashville Public Schools alone, students represent more than 100 countries and speak languages from more than 100 language groups. The state has increasingly provided funds for that purpose.

“On the one hand, I am advised by counsel that we are, in essence, being compelled to expend sums of state money for Medicaid, English language learning, food stamps, and about eight other programs for resettled refugees without specific appropriations in our budget, without which we are at risk of losing all federal funding,” added Norris. “On the other hand, I am advised by some that doing so does not amount to such coercion or extortion as would otherwise be prohibited. This resolution calls for court action to provide clarity as to what has changed under the NFIB v. Sebelius case as it involves this program in Tennessee.”

The resolution also references the federal requirement under the Refugee Act of 1980 to consult with states regarding the placement of refugees before those refugees are placed within its borders. Governor Bill Haslam wrote a letter to Secretary of State John Kerry last fall asking for more information from the federal government regarding those plans as it affects Tennessee. However, Department of Safety and Homeland Security Commissioner Bill Gibbons told members of the Finance Committee this week that to his knowledge no reply has been received from the U.S. State Department in response to that request.

“This is not intended to be mean spirited,” added Leader Norris. “It is not intended to engage in fear mongering. But, I can tell you when I hear the Commissioner of Safety and Homeland Security appear before us over the period of three months and say we are not getting the input we need from the federal government that may be relocating people here, I have a duty, as we all do, to defend the citizens and the sovereignty of the state. And, that is what I intend to do.”

Lt. Governor Ron Ramsey added, “A nation without well-policed borders is no nation at all. In the era of ISIS, it is imperative to vet those coming into our nation and our state. The federal government has thus far refused to be a transparent partner in the refugee vetting process. If we are not able to identify potential threats, we cannot adequately protect our citizenry. This resolution encourages Tennessee to seek relief in the courts so that Tennessee can once again assert control over refugee placement in Tennessee in order to ensure our ability to protect our citizens.”

The resolution now goes to the Senate floor for final consideration.

Senate adopts Judiciary Committee’s Report recommending confirmation of Judge Roger Page to the Tennessee Supreme Court

In historic action this week, the full Senate adopted a report submitted by the Senate Judiciary Committee recommending the General Assembly confirm Judge Roger Page to the Tennessee Supreme Court. Page was nominated by Governor Bill Haslam to replace Justice Gary Wade who retired in September.

The first of its kind hearing by the Judiciary Committee follows a constitutional amendment passed by voters in 2014 which called for appellate judges to be appointed by the governor and confirmed by the legislature.

The meeting began with State Attorney General Herbert Slatery outlining the history behind the changes which put the new confirmation system into place, spanning three General Assemblies and a plurality of votes cast in the gubernatorial election to ratify. The last step came with legislation which was approved last month that put the framework in place on how the state’s appellate judges should be confirmed or rejected.

Page was introduced to senators on the committee by Dwight Tarwater, General Counsel to Governor Bill Haslam, who called him a man of great integrity, humility and intellect. Afterwards, lawmakers asked Page a wide variety of questions from judicial interpretation, and the death penalty to his record on the court.

Senator John Stevens (R-Huntingdon), who practiced law in Judge Page’s court, told committee members, “What you’ve heard and seen today is what we saw in front of him as representatives of our clients. We saw a thoughtful, prepared judge who treated everyone fairly, who worked really hard. Judge Page always handled the most difficult cases, the tough murder cases, the tough rape cases, the medical malpractice cases, the complex business litigation cases. And as a young practicing attorney, I appreciated how he would help us, as we were trying to figure it out.”

Page, age 60, received his law degree with honors in 1984 from the University of Memphis, where he ranked fourth in his class. He has been a judge on the Tennessee Court of Criminal Appeals since his appointment by Haslam in December 2011, writing more than 330 appellate opinions. He previously served as a circuit court judge for the 26th Judicial District, which includes Chester, Henderson and Madison counties. In that position, he presided over more than 300 civil and criminal jury trials.

Senate Judiciary Committee Chairman Brian Kelsey (R-Germantown) commended members of the Judiciary Committee for fully vetting Judge Wade in an open, public discussion. “It was a good process,” he said. “I am proud of the professionalism and the quality of questions that were asked by members of the Judiciary Committee.”

The Senate then voted in favor of Senate Joint Resolution 513 which calls for a joint convention of the Senate and House of Representatives for a final vote on the confirmation. It will be held on Monday, February 22 at 5:00 CST.

Under the new law, if both chambers vote to confirm, the appointee is confirmed. If both chambers vote to reject, the appointee is rejected. Also, one chamber may reject the appointee by a two thirds vote.

In Brief…

Honoring the Life of U.S. Senator Fred Thompson – The Senate stood in remembrance of the life of U.S. Senator Fred Dalton Thompson this week to cast a unanimous vote in favor of a resolution honoring him. House Joint Resolution 458 recognizes Thompson as a distinguished statesman, exceptional attorney and accomplished actor. It also expounds on Thompson’s career of integrity and honor in public life, his compassion and loyalty in private life and his diligence and dedication in all of his chosen endeavors. Many Tennessee lawmakers and citizens have been inspired by his contributions to the fields of politics, film and public service. The resolution was sponsored by Lt. Governor Ron Ramsey and Senate Majority Leader Mark Norris, with all other members of the Senate joining as co-sponsors.

Aging Caregivers – The Senate Health and Welfare Committee approved a bill this week requiring the Department of Intellectual and Developmental Disabilities to enroll all eligible people on the waiting list with a custodial parent or caregiver age 75 and over. In 2015, the “aging caregiver” bill passed by the General Assembly required DIDD to enroll all eligible people whose caregivers are age 80 and older. However, the average life expectancy in Tennessee is only 76.30 years of age and there are concerns that many families will not live long enough to take advantage of this assistance. It is hoped that providing these individuals with some basic support prior to a “crisis” may reduce overall costs, as well as help them adjust to being supported by people other than their primary caregiver. Senate Bill 2003 aims to provide aging caregivers, who have provided continuous support at no cost to the state, peace of mind that comes from knowing their family member will have needed services as they face their own healthcare challenges or after they pass away. The bill is sponsored by Senator Bill Ketron (R-Murfreesboro).

Elder Abuse — This week, the Senate Health and Welfare Committee heard testimony from the Tennessee Commission on Aging and Disability (TCAD) regarding the recommendations of the Elder Abuse Task Force. Senator Rusty Crowe (R-Johnson City) started the task force two years ago to study Tennessee’s current system for protecting, preventing and prosecuting crimes of abuse for its older and more vulnerable adults. Former State Senator Douglas Henry, who retired from the legislature in 2014, testified as a member of the Elder Abuse Task Force. He and Jim Shulman, the executive director of TCAD, outlined eight recommendations to the legislature. These recommendations include strengthening the background check requirements for certain healthcare facilities and working with the Tennessee Attorney General Conference to strengthen the penalties for crimes of abuse against the elderly. Senator Todd Gardenhire (R-Chattanooga) is sponsoring Senate Bill 1848 which encompasses the key recommendations of the task force. That bill will be considered by the Senate Government Operations Committee on February 24.

Opioids – Legislation that would expand patient access to lifesaving opioid antagonists used to combat opioid overdose passed its first legislative hurdle this week with approval by the Senate Health and Welfare Committee. Senate Bill 2403, sponsored by Senator Doug Overbey (R-Maryville), would require the Tennessee Department of Health to put together a Collaborative Pharmacy Practice Agreement where standards and parameters are to be outlined for the dispensing of this medication. Opioid overdoses can be accidental from a legitimately obtained prescribed medication or as a result of the abuse of prescription opioids or heroin, and can result in death of not treated promptly. The bill now goes to the Senate floor for final consideration.

Counselors and Therapists — Legislation was approved by the Senate this week protecting the rights of counselors to refer a client to another therapist when the goals, outcomes, or behaviors for which they are seeking counseling is a violation of his or her sincerely held religious beliefs. The bill came to the General Assembly from faith-based counselors who are banned under the American Counseling Association’s code of ethics from referring a client, or a perspective client, under such circumstances. The American Counseling Association’s code of ethics is statutorily adopted in Tennessee. Senate Bill 1556, sponsored by Senator Jack Johnson (R-Franklin), would only apply if the counselor coordinates a referral of the client to another therapist who will provide the counseling. The legislation would not apply if the individual seeking or undergoing counseling is in imminent danger of harming themselves or others. The bill further provides immunity from civil or criminal liability for referring such client.

Veterans / Tuition — The Senate Education Committee unanimously passed legislation to open up in-state tuition to veterans this week. Senate Bill 1578, sponsored by Senator Richard Briggs (R-Knoxville), eliminates the requirement that a veteran can only receive in-state tuition at Tennessee public universities and colleges within three years of their discharge. Under this legislation, as long as the veteran fulfilled the requirements set forth by either the Montgomery G.I. Bill, which allows 10 years after discharge to use your benefits, or the Post-9/11 G.I. Bill, which allows for 15 years, they would be eligible for in-state tuition. The extension would allow discharged veterans to have adequate time to get their affairs in order, as many must deal with issues of disabilities or Post-Traumatic Stress Disorder. The Tennessee Higher Education Commission has stated that this bill will not require prior approval from the Veterans Administration in order to stay compliant with the Federal Veterans Affair Program. It will next be considered on the Senate floor.

CMV / Pregnant Women – The full Senate has approved a bill this week to encourage healthcare professionals who care for pregnant women to provide information regarding CMV (Cytomegalovirus) prevention and symptoms to those patients who are at risk of the disease. CMV is a common asymptomatic virus that can infect almost anyone, but becomes a cause for concern for pregnant women. CMV infection in a pregnant woman can cause birth defects and, in rare cases, death in infants infected before birth. In Tennessee, approximately 1 out of every 150 babies is born with congenital CMV. Senate Bill 2097, sponsored by Senator Bill Ketron (R-Murfreesboro), calls for healthcare providers to give patients the information in any way he or she sees fit without the risk of liability.

Suicide Prevention — The Senate Education Committee passed legislation this week that addresses the issue of suicide among young people by requiring all employees of the Local Education Association (LEA) to attend the suicide prevention training that already takes place for teachers and principals. Senate Bill 1992, sponsored by Senator Kerry Roberts (R-Springfield), would strengthen Jason’s Act passed in 2007 by including bus drivers, cafeteria workers and any other employees as these relationships with students can be influential in the student’s life. It also requires an LEA to develop a policy on suicide prevention awareness and it requires the state Department of Education to establish a model policy that the LEAs may choose to adopt. Urging the importance of the issue, Senator Roberts said, “This bill is such an important bill because the numbers of suicides are rising each and every year among our young people. It is a terrible tragedy that, despite past efforts, continues to grow and it is now the third leading cause of death of young people between the ages of 10 and 19.” The bill will next be heard on final consideration on the Senate floor.

Get Alarmed — This week the Senate Commerce and Labor Committee heard testimony from Julie McPeak, the commissioner of the Tennessee Department of Commerce and Insurance, who talked about the state’s “Get Alarmed” program as a part of her budget presentation. This program provides 10 year smoke alarms to Tennessee residents in need, free of charge. Since the program’s inception in 2010, the department has distributed almost 96,000 smoke alarms to 426 local fire departments where the departments and their partner groups install them in high risk homes. According to the Division of Fire Prevention, the Get Alarmed program, has recorded the single largest reduction in fire mortality in the state’s history and has been credited with saving 120 lives.

Tennessee Fallen Heroes Medal – The full Senate voted this week to allow the five soldiers killed in Chattanooga in July due to an act of terrorism to be eligible for the “Tennessee Fallen Heroes Medal.” The medal is currently awarded to honor legal residents of Tennessee killed while serving on active duty or engaged in military support operations involving conflict with an opposing foreign force. Senate Bill 1441, sponsored by Senator Todd Gardenhire (R-Chattanooga), Senator Bo Watson (R-Hixson), Senator Randy McNally (R-Oak Ridge), Senator Ken Yager (R-Kingston), Senator Dolores Gresham (R-Somerville), Senator Mark Green (R-Clarksville), Senator Rusty Crowe (R-Johnson City), Senator Richard Briggs (R-Knoxville) and Senator Mike Bell (R-Riceville), removes the requirement that a recipient be a resident of Tennessee when a soldier is stationed and killed in the state during an attack specifically targeting military service members or inspired or directed by a foreign terrorist organization. The medal is awarded solely by the governor or the governor’s designee to the immediate survivor of the recipient.

Human Trafficking – Human trafficking was the subject of legislation which received approval by the full Senate this week. Senate Bill 2000, sponsored by Senator Bill Ketron (R-Murfreesboro), clarifies that it is not a defense to prosecution under Tennessee law that the intended victim was actually a law enforcement officer. Law enforcement agencies across the state use undercover officers posing as victims in order to effectively prosecute those who engaged in human sex trafficking. The proposal also clarifies that it is not a defense to prosecution that the human trafficking victim is a minor who has consented. A minor in Tennessee does not have the legal capacity to consent to sex with an adult and this bill explicitly removes this defense in human sex trafficking cases.

EpiPens / Restaurants — Legislation to allow heath care prescribers to prescribe epinephrine auto-injectors to a wide variety of entities, including restaurants, has passed final consideration in the Senate. The purpose of the bill is to make the injectors, more commonly referred to as EpiPens, readily available in locations where an emergency is most likely to occur. Restaurants are among them as food is generally the most common cause of anaphylaxis, a condition which can be deadly if not treated immediately. Wasp or bee stings are also common causes of anaphylaxis. Senate Bill 1989, sponsored by Senator Mark Green, M.D. (R-Clarksville), defines the entities that voluntarily agree to receive the prescription as including but not limited to recreation camps, colleges, universities, places of worship, youth sports leagues, amusement parks, restaurants, places of employment, and sports arenas. The bill calls for one or more employees to be trained in how to properly use and store the injectors. The entity or person who uses the injector in response to an emergency would be given immunity from liability when it is used in compliance with the proposed law.

Rape of a Child – Final Senate approval was given to a bill this week which adds aggravated rape of a child and rape of a child as offenses for which aggravated sexual battery is a lesser included offense. A lesser included offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. According to sponsor Senator Paul Bailey (R-Sparta), Senate Bill 1459 affords victims of child rape the same level of protection, with respect to available lesser included offenses, as is given to adult rape victims. The bill was brought to the senator by the Child Advocacy Centers of Tennessee and his local district attorney.

Consumer Protection / Motorcycles – Consumer protection legislation passed the full Senate this week to ensure that persons purchasing a motorcycle will be informed on the certificate of title if it has been depreciated by 75 percent or more due to being wrecked, damaged, dismantled or rebuilt. Currently, anytime a vehicle depreciated by 75 percent or more is transferred to a new owner, disclosure is given that the vehicle is wrecked, damaged, dismantled or rebuilt and that it will be labeled as such on the next certificate of title. The law, however, does not apply to motorcycles, allowing sellers to take advantage of an unintended loophole not to disclose the information. Senate Bill 1994, sponsored by Senator Bill Ketron (R-Murfreesboro), puts motorcycles under the same salvage law requirements as other vehicles.

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