Tennessee § 33-1-309 - Adoption of rules.

§ 33-1-309. Adoption of rules.

The department shall adopt all rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. All operating guidelines of the department of intellectual and developmental disabilities (sometimes referred to as “DIDD”) and its successors shall be adopted pursuant to the procedure set forth in this subsection (b). For purposes of this section “operating guidelines” means instructions to service providers that the department deems or intends to be mandatory upon such providers. Interpretive instructions, other nonmandatory guidance from the department and rules adopted pursuant to the Uniform Administrative Procedures Act, are not operating guidelines. The adoption of operating guidelines shall be preceded by notice, public meeting, opportunity for comment and responses to such comments from the department; provided, however, in those instances in which the department determines that exigent circumstances require that the operating guideline be implemented prior to a public meeting, the department shall begin the process required by this section as soon as reasonably practicable after its implementation. The department shall provide notice in the Tennessee administrative register which shall include a general description of the subject of the operating guideline, the date, place and time of the public meeting and the opportunity for interested persons to provide oral or written comments. The date of the public meeting shall be no sooner than the first day of the month following the month of publication of the notice. The notice shall also include the name, address and telephone number of a contact person to provide additional information, including, if available, copies of the proposed operating guideline. A representative of DIDD shall be present to hear comments at a hearing required by this section. The representative shall be a person designated by the deputy commissioner of DIDD who is a director level or higher employee. This designee shall be authorized to conduct the meeting in such a manner as to provide reasonable opportunity for all interested persons to provide comments. Within thirty (30) days after the meeting, DIDD shall provide responses to the specific comments received and shall state the reasons for accepting or rejecting the comments. DIDD shall maintain an official record of the meeting, submitted comments and any responses. Mandatory instructions meeting the definition of operating guidelines set forth in subsection (b) that have been implemented prior to July 1, 2001, shall not be required to be readopted pursuant to subsection (b) unless DIDD receives a petition signed by twenty-five (25) interested persons requesting a public meeting on the instruction. In that case, DIDD shall provide notice, a public meeting, opportunity for comment and responses to comment as set forth in subsection (b). An instruction that is the subject of the petition shall remain in effect. In the event that a proper petition is presented under this subsection (c) and DIDD determines that the same or substantially related issues are under consideration as a proposed operating guideline, the matters may be consolidated to avoid duplication. All methodology utilized by DIDD for determining payment to service providers shall be adopted as rules in accordance with the Uniform Administrative Procedures Act, which shall be consistent among providers providing substantially the same services. Intermediate care facilities for persons with mental retardation (ICF/MR) shall comply with rules and operating guidelines made applicable to ICF/MR facilities by DIDD. In order to monitor the care being received by persons in ICF/MR facilities, DIDD shall have reasonable access to the facilities and the medical and other records of the persons occupying the beds. Acts 2000, ch. 947, § 1; 2001, ch. 337, § 1; 2006, ch. 761, § 2; 2007, ch. 499, § 1; 2009, ch. 477, § 1; 2010, ch. 1100, § 29; 2011, ch. 158, § 13. Compiler's Notes. Acts 2009, ch. 477, § 1, directed the code commission to change all references from “division of mental retardation services” to “division of intellectual disabilities services” and to include the changes in supplements and replacement volumes for the Tennessee Code Annotated. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health (now commissioner of mental health and substance abuse services), the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Attorney General Opinions. “Operating guidelines” would not be required to be promulgated as rules under the UAPA if T.C.A. §§ 3-1-309(b) and (c) are repealed, OAG 07-042, 2007 Tenn. AG LEXIS 46 (4/4/07).