(a) Medical assistance, including demonstration projects and programs designed to enhance the efficient and economic operation of the medicaid program, shall be provided to those classes of individuals determined to be eligible under § 71-5-106. This medical assistance, in the amount, scope, and duration determined by the commissioner of health and to the extent permitted by federal law, may include:

(1) Inpatient hospital services, other than services in an institution for tuberculosis or mental diseases;

(2) Outpatient hospital services;

(3) Other laboratory and X-ray services;

(4) Skilled nursing home services, other than services in an institution for tuberculosis or mental diseases;

(5) Physicians’ services, whether furnished in the office, the patient’s home, a hospital, a skilled nursing home, or elsewhere;

(6) Drugs;

(7) Inpatient hospital services for individuals sixty-five (65) years of age or over in an institution for tuberculosis or mental diseases, and inpatient hospital services for individuals under twenty-one (21) years of age in institutions for mental diseases, or in case of an individual who was receiving such inpatient services for mental disease in the period immediately preceding the date on which such individual becomes twenty-one (21) years of age:

(A) The date on which such individual no longer requires the services; or

(B) If earlier, the date such individual becomes twenty-two (22) years of age;

(8) Nonmedical nursing care shall be rendered in accordance with the tenets and practice of a recognized church or religious denomination to any indigent person otherwise qualified for assistance under this part who depends upon healing by prayer or spiritual means alone in accordance with the tenets and practice of such church or religious denomination;

(9) Skilled nursing home services for individuals sixty-five (65) years of age or over in institutions for tuberculosis or mental diseases;

(10) Medical screening, diagnostic and treatment services for eligible categorically connected individuals under twenty-one (21) years of age;

(11) Psychiatric clinic services in approved facilities;

(12) (A) Home health care services provided in the recipient’s home. The services may follow the recipient into the community subject to subdivision (a)(12)(B).

(B) Home health nurses or aides may accompany a recipient outside the home during the course of delivery of prior approved home health nurse or home health aide services if all of the following criteria are met:

(i) The home health nurse or home health aide shall not transport the recipient;

(ii) The home health agency shall have discretion as to whether or not to accompany a recipient outside the home. The circumstance under which a home health agency may exercise such discretion shall include, without limitation, when the home health agency has concern regarding any of the following:

(a) The scheduling or safety of the transportation;

(b) The health or safety of their employee or the recipient;

(c) The ability to safely and effectively deliver services in the alternative setting; and

(d) The additional expense that would be required to accompany a patient outside the home;

(iii) Additional visits or hours of care will not be approved for coverage for the purpose of accompanying a recipient outside the home. Services will be limited to services to which the recipient would be entitled if the services were provided exclusively at the recipient’s place of residence; and

(iv) No additional reimbursement shall be paid to the home health agency in association with the decision of a home health agency to accompany a patient outside the home;

(C) Nothing in this subdivision (a)(12) is intended to create an entitlement to services outside the home;

(D) A home health agency shall not be subject to any claims or cause of action as result of exercising its discretion under this subdivision (a)(12);

(13) Transportation for approved emergency medical examination or treatment, or both;

(14) Mental retardation and rehabilitation services;

(15) Intermediate care facilities services;

(16) Medical services rendered by community or neighborhood health organizations or clinics, including organizations or clinics where some or all of the medical services are provided by medical students presently enrolled in a medical school accredited by the Association of American Medical Colleges or licensed registered nurses, or both, and where such students or licensed registered nurses are under the direction of a licensed physician or physicians;

(17) Family planning services and supplies;

(18) Basic dental care services;

(19) Medical and surgical services rendered by ambulatory surgical treatment centers;

(20) Services rendered by rural health clinics;

(21) Medical assistance and home-based and community-based services to those eligible being served through a health care financing administration (HCFA) approved waiver designed to provide more efficient and economical alternatives to institutional care;

(22) Services by nurse anesthetists who are registered by the Tennessee board of nursing, who have completed an advance course in anesthesia, and who hold a current certification from the American Association of Nurse Anesthetists as a nurse anesthetist;

(23) Nurse midwife services performed by a person who is licensed by the Tennessee board of nursing as a registered nurse under the authority of the Nursing Practice Act, compiled in title 63, chapter 7, and certified by the American College of Nurse Midwives as a certified nurse midwife; and

(24) Services provided by certified pediatric nurse practitioners and certified family nurse practitioners as required by federal law.

(b) With respect to recipients determined to be “medically needy,” all or a part of the medical services outlined in subsection (a) may be provided, and may, within applicable provisions of federal legislation and regulations, be of lesser amounts, duration and scope than medical services provided other medicaid recipients in order to ensure that an expenditure of state funds shall not exceed the amount provided for the operation of the medicaid program.

(c) When the amount, duration, and scope of medical services is lessened so as to no longer include intermediate care facility services, the commissioner of health, with approval of the commissioner of human services, may continue to provide intermediate care facility services to those recipients who have been determined to be medically indigent and placed in a medicaid certified intermediate care facility bed at the time such change in the amount, duration, and scope of medical services is made.

(d) The department shall assist in the development of a demonstration project, which would provide cost effective alternatives to long-term care under the provisions of the Omnibus Budget Reconciliation Act of 1981, to the extent permissible under the federal law, for institutional and residential homes that provide domiciliary care for the aged and mentally disabled, which project would include the Foster-Group Care Home Association. The development of such demonstration project shall begin on July 1, 1982.

(e) The bureau of TennCare shall have the authority to implement a comprehensive disease management program for certain enrollees of the TennCare program to the extent permitted under federal law and the TennCare waiver. The bureau, through its authority to promulgate rules and regulations, may identify enrollees eligible to participate and the disease categories to be included in the comprehensive disease management program. The bureau, also through its authority to promulgate rules and regulations, may put in place requirements regarding the continued participation of enrollees in the program.

(f) Subject to the availability of funding earmarked for such programs in the general appropriations act and to the extent permitted under federal law and the TennCare waiver, the bureau of TennCare shall have the authority to create in whole or in part and administer a program to be named “The TennCare safety net” which will provide two different components to assist eligible TennCare enrollees:

(1) Certain medical providers in Tennessee shall provide non-emergency health care services without co-payment requirements to certain specified TennCare enrollees. Such services are intended to include only services that are both medically necessary and within the scope of TennCare benefits for the particular enrollee but for which the enrollee cannot meet the co-payment requirements. Through its authority to promulgate rules and regulations, the bureau of TennCare will identify the parameters of this component of the TennCare safety net program, including which enrollees are eligible to participate in this program, allowable benefits under the program, designation of both urban and rural providers who participate in this program, and a funding methodology pursuant to which such providers shall be compensated;

(2) (A) A TennCare foundation will be established that will accept and review applications for medical assistance submitted on behalf of certain specified TennCare enrollees. The members of the foundation shall be appointed by the governor, who shall determine the size and composition of the foundation’s membership. The governor should strive to ensure that the membership is representative of the state’s geographic and demographic composition with appropriate attention to the representation of women and minorities. Terms for the members will be staggered and the length of terms will be detailed by the governor in making initial or subsequent appointments. The governor shall appoint the chair and vice-chair. For the purposes of administration and availability of records, the TennCare foundation shall be located within the bureau of TennCare. Staff assistance shall be provided by the bureau of TennCare or by another entity, should the governor so determine. At the discretion of the governor, the foundation may be placed within another appropriate agency, may create or be reconstituted as a non-profit entity, or may be terminated at any time; and

(B) Applications for medical assistance from the foundation are not intended, and should not be used, as a means to circumvent or avoid the benefit limits established by the bureau of TennCare. It is expected that these applications will be submitted to address special, unforeseen, or exceptional circumstances. Such applications must be submitted by a licensed medical provider who is treating the enrollee and shall request the provision of medically necessary health care services recommended or prescribed by the enrollee’s treating provider that are beyond the scope of benefits provided through the TennCare program benefit package for which the enrollee is eligible. For the purposes of this subsection (f), “beyond the scope of benefits” means a benefit that is covered within limits by TennCare but for which the enrollee has exceeded the covered limits of that benefit. It does not include benefits that are not covered to any extent under TennCare for the applicant. The foundation will not consider matters of eligibility for the TennCare program. Through its authority to promulgate rules and regulations, the bureau of TennCare will identify the parameters of this component of the TennCare safety net program, including the process for making application to this foundation, which enrollees are eligible to apply, and a mechanism for determining which applications will be reviewed by the foundation. The foundation will not have rule-making authority;

(C) (i) Notwithstanding the availability of assistance from the foundation, no enrollee has an expectation of or an entitlement to assistance from the foundation;

(ii) There exists no right of appeal regarding an application for assistance; and

(iii) Because the level of funding provided to the foundation is limited, the foundation may not be able to fully or partially fund all applications. The decisions of which applications to fund will be solely within the discretion of the foundation;

(D) Nothing in this subsection (f) shall be construed to require a contested case hearing as set forth in the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, nor shall any determinations made by the foundation be considered final orders from which appeals can be taken. The consideration of applications provided for by this subdivision (f)(2)(D) shall not constitute hearings as set forth in the Uniform Administrative Procedures Act;

(E) The foundation shall consider applications and determine in its sole discretion and without requirement for written findings whether the application should be granted in whole or in part. The foundation’s determination on an enrollee’s application shall have no binding precedential effect on the consideration of any other enrollees’ applications;

(F) In the event that a matter being considered by the foundation presents a real or apparent conflict of interest for any staff or member, such staff or member shall disclose the conflict to the chair and be recused from any official action taken on the matter;

(G) Notwithstanding the provisions of the Open Meetings Act, compiled in title 8, chapter 44 or any other law to the contrary, any and all meetings of the TennCare foundation are to be considered confidential and closed to the public. Members and staff shall maintain strict standards of confidentiality in the handling of all matters before the foundation. In addition, all relevant federal and state laws regarding patient privacy and confidentiality will be adhered to. All material and information, regardless of form, medium, or method of communication, provided to or acquired by a foundation member or staff in the course of the foundation’s work, shall be regarded as confidential information, shall not be disclosed, and are not public records. In addition, all material and information, regardless of form, medium, or method of communication, made or generated by a member or foundation staff in the course of the foundation’s work, shall be regarded as confidential information and shall not be disclosed and are deemed not to be a public record. All necessary steps shall be taken by members and staff to safeguard the confidentiality of such material or information in conformance with federal and state law;

(H) Every October 1, the foundation shall report in writing to the governor, the TennCare oversight committee, the general welfare, health and human resources committee of the senate, the health and human resources committee of the house of representatives, and the commerce committees of the general assembly regarding how funds allocated to the foundation were spent during the previous fiscal year. Such report shall contain the following information:

(i) How many applications were received;

(ii) How many applications the foundation granted;

(iii) The type of services and items that were funded; and

(iv) Statistical information, by gender, race, and division of the state, on who applied for and who received the funds;

(I) Whether members shall receive reasonable compensation for their service on the TennCare foundation will be determined at the discretion of the governor; members may be reimbursed for those expenses allowed by the provisions of the comprehensive travel regulations promulgated by the department of finance and administration and approved by the attorney general;

(J) If any federal or state court or other tribunal with jurisdiction:

(i) Determines that any aspect of subdivisions (f)(2)(A), (f)(2)(B), (f)(2)(C), (f)(2)(D), (f)(2)(E), or (f)(2)(G) violates federal law, state law, or any existing court order or consent decree, and

(ii) Makes effective an order enjoining compliance with any aspect of these provisions or requiring non-trivial changes in the terms or applications of these provisions,

the challenged provisions may not be severed from the remainder of this subdivision (f)(2). In this event, all provisions of this subdivision (f)(2) will terminate and have no further effect. Such termination shall occur no later than ninety (90) days after the effective date of the order unless such order is stayed by the issuing court or the reviewing court pending disposition of an appeal of the order. The decision whether or not to appeal any such order will be at the sole discretion of the bureau of TennCare. This non-severability provision shall be self-executing. If the provisions of this subdivision (f)(2) are terminated while appropriated funds remain, the unused funds shall revert back to the general fund. Any payments for services or items which have been approved but not yet disbursed as of the date of termination shall be paid, but no further applications for payments shall be considered or granted after the date of termination. In the event of termination under this subsection (f), the foundation may be reinstated only by new legislative action and a new appropriation by the general assembly.

(g) The bureau of TennCare shall have the authority, in collaboration with one or more medical schools located in Tennessee, to establish an evidence-based medicine initiative for the purpose of developing medical protocols and integrating standards of best practices within the delivery of TennCare services. To the extent that evidence-based medical protocols are authorized by the bureau of TennCare, such protocols shall satisfy the standard of medical necessity as set forth in § 71-5-144. The bureau of TennCare, through its authority to promulgate rules and regulations, shall establish the parameters for the initiative, including who can participate and how the initiative is to be implemented.

[Acts 1968, ch. 551, § 7; 1969, ch. 326, §§ 1, 2; 1972, ch. 596, § 1; 1973, ch. 73, §§ 1, 3, 4; 1973, ch. 262, § 1; 1973, ch. 276, § 5; 1974, ch. 802, § 2; 1976, ch. 572, § 1; 1978, ch. 875, § 1; modified; T.C.A., § 14-1907; Acts 1981, ch. 225, §§ 1-4; 1981, ch. 476, § 2; 1982, ch. 740, §§ 6-8, 19; T.C.A., § 14-23-107; Acts 1987, ch. 310, §§ 1, 2; 1988, ch. 510, §§ 1, 2; 1993, ch. 183, § 1; 1998, ch. 1093, § 2; 2004, ch. 673, § 2; 2009, ch. 471, § 1.]