Tennessee special session on COVID-19 liability, protester bills begins in controversy

NASHVILLE — Tennessee legislators return to the state Capitol Monday for a special session in which Republican majority lawmakers hope to resurrect previously failed efforts to pass a measure to shield businesses from coronavirus-related lawsuits except in cases of “gross negligence or willful misconduct.”

The measure is joined by several equally controversial pre-filed House bills as Republicans seek to crack down and enact harsher criminal penalties on demonstrators at the state Capitol, state-owned property and beyond the Capitol complex amid weeks of protests over racism, police brutality and Confederate figures still honored in the Capitol.

Republican Gov. Bill Lee called the special session to address those issues as well as a telehealth bill left behind when lawmakers acrimoniously adjourned their June session amid House and Senate GOP lawmakers’ infighting over the COVID-19 liability bill.

During the June session, top House Republicans including Majority Leader William Lamberth, a Republican attorney from Portland, refused to vote for the COVID-19 liability protection measure due to retroactive provisions that sought to protect businesses, hospitals, nursing homes, universities, schools, churches and other entities going back to March 5, the first reported case of the coronavirus in Tennessee.

House Bill 1, the new bill, backdates that only to Aug. 3, when Lee issued the special session call.

But Nashville attorney Daniel Horowtiz, a constitutional lawyer, is among those still attacking the revised bill, charging in a Sunday Twitter post the bill is “a no good, very bad bit of corporate welfare that will enrich insurance companies on the backs of sick people.”

In a Sunday Times Free Press interview, Lamberth defended the new bill as both better and constitutionally sound. He said the legislation, if it becomes law, would apply only to cases filed prior to Lee’s Aug. 3 special session call.

Moreover, Lamberth said, back in June the public, including victims and attorneys, had no real notice. In the intervening time, a number of lawsuits have been filed in cases. Those include lawsuits filed following a mass outbreak in a Sumner County nursing home in Lamberth’s district as well as one against an Athens nursing home. Those pre-Aug. 3 lawsuits can proceed if the latest bill becomes law.

“There’s been months and months out there for anyone to file a case,” Lamberth said, later adding, “we want to be able to draw a line in the sand at some point,” that being between the special session call and passage of the bill. “I don’t see it as retroactive,” the majority leader noted and said it is “setting a new standard going forward.”

It is “much more legally defensible,” Lamberth said.

Senate Democratic Caucus Chairman Jeff Yarbro of Nashville, also an attorney, disagreed.

“Even after working on it for several months, the governor’s bill is still retroactively unconstitutional,” he said. “It seems to grandfather in a few lawsuits that matter to a few Republicans,” Yarbro added, saying that could be fixed but contending Lee and GOP leaders will “twist arms rather than just fix it.”

“My biggest concern is whether it’s going to protect bad actors instead of businesses who are are trying to protect” employees and customers, Yarbro said.

Lamberth has introduced two bills dealing with protests and social unrest which are included in the governor’s special session call and which Lamberth hopes the governor will embrace.

GOP lawmakers have been fuming for weeks over a refusal by Davidson County District Attorney Glenn Funk, a Democrat, to prosecute Nashville protesters who have demonstrated outside the Capitol, camped out at a plaza across the street from the Capitol and toppled a statue of an early 20th Century former U.S. senator who wrote racist editorials as a newspaper editor and later became a martyr for alcohol prohibition causes after his shooting death.

Protesters are also demanding the immediate removal of the bust of Confederate Gen. Nathan Bedford Forrest, an early Ku Klux Klan leader.

One of Lamberth’s bills focuses primarily on allowing the state attorney general to get involved in criminal prosecutions. In a tweet, Yarbro said it “looks like some unconstitutional garbage. The TN Constitution is explicit that criminal prosecutions must be by locally-elected prosecutors. If local prosecutor refuses, the court can appoint attorney pro tempore. The AG has no constitutional authority to intervene.”

Lamberth disagreed, saying Yarbro “basically argues that on any bill he doesn’t like.” Noting the state attorney general is empowered to prosecute in areas ranging from TennCare fraud to environmental crimes, Lamberth said. “I think we’re on good legal footing there.”

But Lamberth, a former assistant prosecutor, said his primary focus in the second bill, which also contains the language allowing for intervention by the state attorney general, is beefing up criminal penalties in areas ranging from vandalism to camping on state property.

He said his quarrel isn’t with the thousands of demonstrators who have peacefully protested before courthouses in Nashville, Chattanooga and other areas of the state. It is the “criminal aspects of those who are inserting themselves into the peaceful process,” citing several people who set fires in the Metro Nashville courthouse as cases in point.

There is one measure that isn’t causing so much of a fuss: That’s a bill requiring insurers to reimburse health providers for online, telehealth encounters with patients under federally established rates.

Originally sponsored by House Health Insurance Committee Chair Robin Smith, R-Hixson, in lawmakers’ June session, the legislation died at the last minute when the Senate abruptly adjourned. That came amid quarreling by House and Senate Republican leaders over the COVID-19 civil lawsuit bill.

While a temporary executive order issued by Lee requires insurers to reimburse providers for telehealth services, Smith said in a text to the Times Free Press on Sunday that “the need to codify telemedicine in law is to create a level playing field for TN healthcare providers to care for their own TN patients while competing with insurance-owned pools of contracted labor who are often located outside our state that have never seen these patients.

“We’ve witnessed that telemedicine works for young, older and those with disabilities. This is a wonderful use of technology to improve the lives of Tennesseans,” Smith added.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.

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