Can the Tennessee legislature pass a bill that lets only one nursing home in one county relocate beds without going through the normal certificate-of-need rules?

Subject

Opinion No. 14-47, Constitutionality of Legislation Authorizing Partial Relocation of Nursing Home, April 15, 2014

Plain-English summary

Representative Mike Carter asked whether HB2342 (108th General Assembly, 2014, as amended) violated the Tennessee Constitution. The bill would have created a new Tenn. Code Ann. § 68-11-1632 letting an existing nursing home relocate up to 140 of its licensed beds to a new location, subject to several conditions: the home had to be licensed for at least 400 beds, in operation at least 45 years at its current location, located in a county with metropolitan form of government and population over 500,000 (2010 census or later), with the new location in the same county, and an application filed and approved by the Health Services and Development Agency. The bill's population bracket effectively covered only Davidson County, and per the Health Services and Development Agency only one nursing home met the criteria.

The AG concluded HB2342 implicated both Article I, § 8 ("law of the land," Tennessee's equal-protection analog) and Article XI, § 8 (no suspension of general law for individuals). A bill that benefits one entity in one county is "special legislation," and the legislature needs a rational basis for the special classification, meaning a reason to treat this one entity differently.

If HB2342 were amended to apply to all nursing homes statewide, it would no longer be special legislation and the rational-basis question would drop away.

The opinion does not say whether HB2342's rational basis exists. It identifies the constitutional question and points to where the analysis would have to focus: the legislative record on why a single 45-year-old, 400+-bed nursing home in a metro county needs an exemption from the criteria in §§ 68-11-1621 and 1622 that govern certificates of need.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a certificate of need?

In Tennessee, the Tennessee Health Services and Planning Act of 2002 (Tenn. Code Ann. §§ 68-11-1601 to -1631) requires that certain health-care institutions, including nursing homes, obtain a certificate of need (CON) before, among other things, relocating beds to another facility or site. § 68-11-1607(a)(3)(D). The criteria for getting one are set out in §§ 68-11-1621 and 1622.

What did HB2342 actually do?

It carved out a route for a nursing home meeting all five conditions to relocate up to 140 beds without going through the standard CON criteria. The application would still be reviewed under § 68-11-1609(b), but the more restrictive criteria of §§ 68-11-1621 and -1622 would not apply, and the relocated beds would not be considered new nursing-home beds.

What is "special legislation"?

Tennessee's Article XI, § 8 forbids the legislature from passing laws that benefit specific individuals or localities in a way that is not extended to others similarly situated, unless a rational basis supports the differentiation. A bill that names one nursing home in one county, even indirectly through population brackets and operating-history conditions, is special legislation.

Why does it matter whether the law of the land clause is implicated?

Article I, § 8 is Tennessee's equal-protection analog. Together with Article XI, § 8, it tests whether the classification is rationally related to a legitimate state purpose. The AG cited Op. 09-116 (June 11, 2009) as a prior example applying this combined analysis.

What kinds of facts can supply a rational basis?

The AG did not enumerate them in this opinion. The opinion identifies the constitutional question and stops short of deciding whether a rational basis exists; it would fall to the legislature to articulate why this one nursing home's situation justifies treating it differently from every other nursing home.

What if the bill were broadened statewide?

The AG said an amended statewide version would not be special legislation and would not raise the Article I, § 8 or Article XI, § 8 issues. The trade-off, of course, is that statewide application would change the policy: every 400-bed nursing home with a 45-year history in a large metro county could relocate beds outside the normal CON criteria.

Background and statutory framework

Tennessee's CON regime is meant to control health-care capacity and capital expenditures, prevent over-bedding, and channel investment to areas of identified need. The Health Services and Development Agency administers the program. §§ 68-11-1621 and -1622 set out criteria such as need, alignment with state health plan, financial feasibility, and orderly development of services. HB2342 sidestepped those criteria for one nursing home that already had a large bed base and a long history at its existing location.

The special-legislation analysis traces to Tennessee's constitutional design that the legislature must operate by general laws unless particular conditions justify a departure. The opinion relied on Op. 09-116 for the combined Article I, § 8 and Article XI, § 8 framework, under which a special classification must be rationally related to a legitimate state interest. Here the bill's population bracket and operating-history conditions narrowed it to a single entity in Davidson County, which is what put it in special-legislation territory and required a rational basis for the differentiation.

Citations

• Tenn. Code Ann. §§ 68-11-1601 to -1631 (Tennessee Health Services and Planning Act of 2002)
• Tenn. Code Ann. § 68-11-1607(a)(3)(D) (CON required to relocate beds)
• Tenn. Code Ann. § 68-11-1609(b) (CON application review)
• Tenn. Code Ann. §§ 68-11-1621, -1622 (CON criteria and restrictions)
• Tenn. Const. art. I, § 8 (law of the land, Tennessee equal-protection analog)
• Tenn. Const. art. XI, § 8 (no suspension of general law for individuals; special-legislation rational-basis test)
• Tenn. Att'y Gen. Op. 09-116 (June 11, 2009) (combined Article I, § 8 and Article XI, § 8 analysis)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-047.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
April 15, 2014
Opinion No. 14-47
Constitutionality of Legislation Authorizing Partial Relocation of Nursing Home

QUESTIONS

1. Is House Bill 2342 of the 108th General Assembly (2014), as amended (hereinafter "HB2342"), constitutional under Article I, § 8, or Article XI, § 8, of the Tennessee Constitution, considering that it applies to only one nursing home in Tennessee?

2. If HB2342 is constitutionally suspect, would an amendment making the bill applicable to all nursing homes statewide render it constitutional?

OPINIONS

1. If HB2342 applies to only one entity in one county, it qualifies as "special legislation" that implicates Article I, § 8, and Article XI, § 8, of the Tennessee Constitution. A rational basis must exist, therefore, for the special classification.

2. If HB2342 were made applicable to all nursing homes statewide, it would no longer qualify as special legislation.

ANALYSIS

1. HB2342 would amend the Tennessee Health Services and Planning Act of 2002, Tenn. Code Ann. §§ 68-11-1601 to -1631, relative to certificates of need for nursing-home beds and the partial relocation of a nursing home. Under current law, a certificate of need is required in order for a health-care institution, including a nursing home, to relocate beds to another facility or site, Tenn. Code Ann. § 68-11-1607(a)(3)(D), and certain criteria and restrictions have been established for the issuance of such a certificate, see Tenn. Code Ann. §§ 68-11-1621, -1622. The bill would add new § 68-11-1632, which allows an existing nursing home to relocate a portion of its licensed beds, but not more than 140, to a new location under the following conditions: (1) the existing nursing home is licensed for at least 400 beds, (2) the existing nursing home has operated for at least 45 years at its current location, (3) the existing nursing home is located in a county with a metropolitan form of government and a population in excess of 500,000 according to the 2010 federal census or any subsequent census, (4) the proposed location for the partial-relocation facility is within the same county as the existing nursing-home facility, and (5) an application for the qualified partial relocation of the nursing-home beds is filed with and approved by the Health Services and Development Agency. HB2342, § 1 (new § 68-11-1632(a)). The bill's population classification encompasses only Davidson County; and it is assumed here that the bill applies to only one nursing home in that county.

HB2342 implicates both Article I, § 8, and Article XI, § 8, of the Tennessee Constitution. See Tenn. Att'y Gen. Op. 09-116 (June 11, 2009). Article XI, § 8, provides that the legislature "shall have no power to suspend any general law for the benefit of any particular individual, nor to pass any law for the benefit of individuals inconsistent with the general laws of the land; nor to pass any law granting to any individual or individuals, rights, privileges, [immunities] or exemptions other than such as may be, by the same law extended to any member of the community, who may be able to bring himself within the provisions of such law." Article I, § 8, provides that no one shall be "disseized of his freehold, liberties or privileges, . . . or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land." "The former restricts the legislature from enacting 'special legislation' for the benefit of specific individuals or localities in an arbitrary or capricious manner, and the latter guarantees equal protection of the laws." Tenn. Att'y Gen. Op. 09-116, at 1. HB2342 qualifies as "special legislation"; it affords one entity in one county a privilege or exemption that is not extended or available to other entities in that county or in other counties. A rational basis must exist, therefore, for this special classification, i.e., to justify treating this one entity differently.

2. If HB2342 were amended to eliminate its several conditions so as to make it applicable to all nursing homes statewide, it would no longer qualify as special legislation that implicates Article I, § 8, or Article XI, § 8, of the Tennessee Constitution.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

SARA E. SEDGWICK
Senior Counsel

Requested by:
The Honorable Mike Carter
State Representative
G-3 War Memorial Building
Nashville, Tennessee 37243