TENNESSEE FAMILY RIGHTS LEGISLATION: IMMEDIATE ACTION NEEDED TO STOP A DANGEROUS AND INCONSISTENT LAW

HB2936 (Amendment #017296) is called the “Families’ Rights and Responsibilities Act” and is being promoted as protecting parental rights, but it fails in many ways and introduces potential harm.

Currently, parents have fundamental rights under the Fourteenth Amendment of the United States Constitution. This bill does NOT codify what already exists, it establishes a platform to continuously trim away parental rights.

Nineteen states have passed legislation that puts the fundamental rights of parents into their state laws. Most of these laws codify parental rights as fundamental (meaning protected by the Fourteenth Amendment).

SEE THE CALL TO ACTION BELOW

HB2936 differs from states providing for fundamental parental rights.

See the FULL BILLTEXT HERE.

Tennessee’s HB 2936 enumerates parental rights and then makes exceptions for other existing statutory law, case law, and court orders, and protects certain government agencies and other entities with carve outs and exemptions. The unintended consequences will do more harm than good.

While the bill looks good on the surface, with this:

“The liberty of a parent to the care, custody, and control of the parent’s child, including the right to direct the upbringing, education, health care, and mental health of the child, is a fundamental right.”

The definition of ‘parent’ should give a first pause as it expands parenthood to include an “individual who has been granted decision-making power over the child”.

THEN language throughout the bill continues to carve away those rights:

Section 1 provides an avenue for future laws to usurp parental rights just by saying so with the language:

“State law enacted after July 1, 2024, is subject to this chapter unless the law explicitly excludes such application by reference to this chapter.”

SECTION 2 creates § 63-1-173(b) and specifically addresses medical care. The section includes:

“Except as otherwise provided by statutory law, case law, or court order.

If existing laws are exempted and all future laws can be exempted from this proposed act, then what exactly does the bill do? Here is our analysis:

1. Expands the constitutional definition of “parent” by providing that “an individual who has been granted decision-making authority over the child under state law”.
   • This expansion is nowhere in constitutional law. Under United Supreme Court cases, a parent is a legal parent. Period.
   • This puts “parental rights” in the hands of any judge who has taken subject matter jurisdiction over the child, juvenile, divorces, guardianship, truancy, delinquents, and children in state’s custody.
   • Attorneys are appointed to serve as a guardian ad litem for a child in juvenile and some divorce cases. This would allow a judge to give an attorney ‘decision-making’ authority over a child, thus making the attorney the ‘parent’ gaining all ‘parental rights’ listed under § 36-8-103(c), created in SECTION 1 of the bill.
   • This section does not restrict who can grant “decision-making authority”, “under state law”. The vague language would permit a parent to grant decision-making authority, and perhaps a state agency, such as DCS.
2. Excludes parental rights regarding “Biometric Data” under HIPPA and for all law enforcement purposes, potentially expanding the ability of medical establishments and law enforcement agencies to prohibit access or deny consent to parents. The bill does not require law enforcement or a state agency to make a showing or probable cause of abuse or neglect by the parent. The Fourth Amendment protects persons against unreasonable search and SEIZURE. Obtaining biometric data is a “taking” and constitutionally requires probable cause of a crime.
3. Fails to detail what process is due when the government claims they are “burdening” a parent’s fundamental rights because of “a compelling governmental interest of the highest order.” United States Supreme Court opinions require a finding that a parent is “unfit” by clear and convincing evidence before burdening or interfering with parental rights.
4. Fails to include the word “informed” when mentioning “consent.” Especially in medical care, without adequate formation, true consent cannot be granted. Informed consent is a human right. This is the second TN bill this session that is attempting to drop the word “informed” from “informed consent.”
5. Potentially expands DCS’s authority:
   • To exclude parents from important information regarding their child.
   • To ignore parental fundamental rights during investigations and when children are in their custody, even when the legal parent retains their decision-making rights regarding the child.
6. Higher Education Exclusion. Parental rights and the legal recourse provisions of this bill do not apply when a parent enrolls their child in higher education before the child is eighteen, such as dual enrollment for high schoolers or when a minor graduates from high school early and starts college at 16 or 17.
   1. This loss of parental rights means a minor child is left navigating an adult environment and the influences of academia alone.
   2. Federal programs such as FERPA and Title X already encroach on parental rights – this bill removes parental rights entirely, leaving the minor functionally emancipated.
7. Blanket Consent Exclusion.The rights and legal recourse provisions of this bill do not apply when a parent gives blanket consent authorizing a person or entity “to perform an activity listed” in subsection (c), the list of parental rights. Parents commonly sign consent forms for schools, health care facilities, clubs and sport organizations, and more. This legislation would expand and increase the use of contractual blanket consent provisions to avoid lawsuits. Parents will sign these forms without fully understanding the rights they are waiving.
8. Mature Minor Clarification Act (MMCA) of 2023 Vaccination Consent Concerns
   1. MMCA clarified that federal law mandates and case law upholds that healthcare providers must obtain informed consent from parents prior to vaccination.
   2. The National Childhood Vaccine Injury Act (NCVIA) of 1986 (42 U.S.C. § 300aa-26) removed financial liability from vaccine manufacturers and healthcare providers for injury or death caused by any vaccine recommended by the CDC to children or pregnant women.
   3. Congress mandated that healthcare providers ensure and document that parents receive a current Information Statement (VIS) prior to the administration of every dose of a vaccine to a minor.
   4. There is a conflict of law in this legislation with last year’s Mature Minor Clarification Act (MMCA).  Under the MMCA, a healthcare provider is required to get parental consent prior to administering a vaccine to a minor.  There is no exception.  Under this parental rights legislation, parental rights are forfeited if a child is enrolled in higher education.  Therefore, college medical clinics may vaccinate minors without parental consent.  
9. “Mistakes” Exclusion. Excludes parental rights and prevents recourse to the civil action portion of the bill when “a government entity or any other person” makes a mistake and accepts the consent of someone “in good faith” who does not actually have the legal the right to consent regarding your child.
10. Conflicts Within the Bill. The two sections of the bill are in conflict regarding parental medical consent rights.Under the rules of statutory construction, where there is a general law and a more specific law, the more specific law will trump all provisions in the general law, therefore, Section 2 Title 63 regarding a parent’s right to give medical consent will trump Section 1; § 36-8-103(c)(3). There is also a conflict in the relief available in a lawsuit.
    • SECTION 1, § 36-8-103(c)(3) provides that parental rights are preserved for “all physical and mental healthcare decisions for the child and consent to all physical and mental health care on the child’s behalf, as provided in § 63-1-173. This section includes various exceptions, however, it DOES NOT say “Except as otherwise provided by statutory law, case law, or court order”.
    • SECTION 2 Is specifically about the parental right to informed consent regarding medical treatment of their minor child, and it DOES say “Except as otherwise provided by statutory law, case law, or court order.”
    • For children in state’s custody, they will continue to be subjected to laws that allow DCS to make medical decisions, notwithstanding the fact that the parent’s have not lost their parental rights under the language of § 63-1-173 with says, “except as otherwise provided by statutory law, case law, or court order…”
11. What will litigation look like?
    • Neither section permits a JURY trial, therefore, there is no right to a jury trial since the constitution only provides for jury trial for suits in common law.
    • Neither section specifically permits punitive damages.
    • § 36-1-103(f)(2) in SECTION 1 permits declaratory relief and injunctive relief (restraining order) along with monetary damages. § 63-1-173(f) in SECTION 2 does not provide for declaratory relief or injunctive relief.
    • Damages: Although this section provides for compensatory damages (pain and suffering), it does not provide for punitive damages. There is no standard for what pain and suffering damages should be allowed. These cases will be ruled on by local judges who are unlikely to award substantial damages for pain and suffering.
    • Attorney’s fees: These cases will be lucrative for predatory law firms.
    • Vicarious liability/government: Most assume that the target of this legislation will be the individual who committed the violation against parental rights. The bill is silent as to whether or not the employer (school, county, state, etc) will have vicarious liability for the acts of the individual. There is no vicarious liability in civil rights cases and there are limitations for local governments (county/city) for liability for negligent acts of employees in the Government Tort Liability Act TCA 29-20-101 et seq. Generally INTENTIONAL TORTS do not trigger government entity liability, such as malicious prosecution.
    • Vicarious liability/medical-mental health providers: Generally, the employers are liable for the negligent acts of their employees under the theory of respondeat superior or vicarious liability. However, an entity may not be liable for intentional torts or if there is a determination that the act was not within their scope of duty.
    • Who Pays: Even if compensatory (pain and suffering) damages and attorney’s fees are awarded, who is going to pay?
    • This bill does not directly extend liability to the entity, whether the government tort liability limitation would apply remains a question.
12. FISCAL NOTE: The fiscal note in this bill says that current state resources are sufficient for implementation of this act.
    • The fiscal note DOES NOT consider the damages and attorney fees that a could be assessed against state and county governments, i.e., the taxpayers.

Until these issues have been fully resolved to the benefit of the citizens of this state, this bill should not become law.

*State law cannot preempt requirements of The National Childhood Vaccine Injury Act of 1986 (42 U.S.C. § 300aa-26)

HB2936 (Amendment #017296) BILLTEXT

SECTION 1. Tennessee Code Annotated, Title 36, is amended by adding the following new chapter:

36-8-101. This chapter is known and may be cited as the “Families’ Rights and Responsibilities Act.”

36-8-102. As used in this chapter:

(1) “Biometric data”:

(A) Means data generated by automatic measurements of an individual’s biological characteristics, such as a fingerprint, voiceprint, eye retina or iris, or other unique biological pattern or characteristic, that is used to identify a specific individual;

(B) Does not include a physical or digital photograph, a video or audio recording, or data generated from the recording, or information collected, used, or stored for healthcare treatment, payment, or operations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (42 U.S.C. § 1320d et seq.); and

(C) Does not include data or information collected, used, or stored for law enforcement purposes;

(2) “Child” means an unemancipated, unmarried individual who has not attained eighteen (18) years of age;

(3) “Decision-making authority” means the power granted by the state to a nonparent to make important decisions regarding a child, including decisions regarding the child’s education, religious training, health care, extracurricular activities, and travel;

(4) “Government entity” means any branch, department, agency, commission, or instrumentality of state government, any official or other person acting under color of state law, or any political subdivision of the state; and

(5) “Parent” means a biological, legal, or adoptive parent or an individual who has been granted decision-making authority over the child under state law.

36-8-103.

(a) The liberty of a parent to the care, custody, and control of the parent’s child, including the right to direct the upbringing, education, health care, and mental health of the child, is a fundamental right.

(b) A government entity shall not substantially burden the fundamental rights of a parent as provided under this section unless the government entity demonstrates that the burden, as applied to the parent and the child, is required by a compelling governmental interest of the highest order and is the least restrictive means of furthering that compelling governmental interest.

(c) All parental rights are exclusively reserved to a parent of a child without obstruction by or interference from a government entity, including the following rights and responsibilities:

(1) To direct the upbringing of the child;

(2) To direct the moral or religious training of the child;

(3) To make all physical and mental healthcare decisions for the child and consent to all physical and mental health care on the child’s behalf, as provided in § 63-1-173;

(4) To access and review all health and medical records of the child;

(5) To direct the education of the child, including the right to choose public, private, religious, or home schools, and the right to make reasonable choices within public schools for the education of the child;

(6) To access and review all educational records of the child maintained by the school, including those maintained in accordance with § 49-1-704 of the Data Accessibility, Transparency and Accountability Act and the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g);

(7) To have the child excused from school attendance for religious purposes;

(8) To participate in parent-teacher associations and school organizations that are sanctioned by the board of education of a local education agency;

(9) To be notified promptly if an employee of the state reasonably believes that abuse, neglect, or any criminal offense has been committed against the child by someone other than the parent, unless doing so would interfere with a criminal investigation or department of children’s services investigation, or unless an employee of the state, a political subdivision of the state, a local education agency, a public charter school, or any other governmental entity is required by law to withhold such information;

(10) To consent before the collection, storing, or sharing of any individual biometric data, data relative to analysis of facial expressions, electroencephalogram brain wave patterns, skin conductance, galvanic skin response, heart-rate variability, pulse, blood volume, posture, and eye-tracking, as specified in §§ 49-1-706 and 49-2-211;

(11) To consent before any record of the child’s blood or deoxyribonucleic acid (DNA) is created, stored, or shared, unless authorized by law or pursuant to a court order; and

(12) To consent before any government entity makes a video or voice recording of the child, unless the video or voice recording is made during or as a part of:

(A) A court proceeding;

(B) A law enforcement interaction;

(C) A forensic interview in a criminal or department of children’s services investigation;

(D) The security or surveillance of buildings or grounds;

(E) A photo identification card; or

(F) A public event where the child has no reasonable expectation of privacy.

(d)

(1) This section does not authorize or allow any individual to abuse, neglect, or endanger a child as defined by § 39-15-401.

(2) This section does not prevent the department of children’s services from conducting an investigation or otherwise carrying out its responsibilities under state law.

(3) This section does not apply when:

(A) A parent of the minor has given blanket consent authorizing the person or entity to perform an activity listed in subsection (c);

(B) A government entity or any other person reasonably relies in good faith on an individual’s representations that the individual is the parent of a minor or has otherwise been granted authority to make decisions regarding a minor’s care under state law;

(C) A person, including a law enforcement officer, participates or assists in rendering emergency care pursuant to § 63-6-218;

(D) An employee of a local education agency acts to control bleeding using a bleeding control kit pursuant to § 49-2-137; or

(E) Services are provided to or information is received or maintained about a minor enrolled in an institution of higher education or a minor participating in a program for which the minor’s parent has consented to the child’s participation by an employee of the institution of higher education or other school official.

(e) A public employee, other than law enforcement personnel, shall not encourage or coerce a child to withhold information from the child’s parent. A public employee shall not withhold from a child’s parent information that is relevant to the physical, emotional, or mental health of the child unless required by law to withhold such information.

(f)

(1) A parent whose rights have been burdened by a government entity in violation of this section may assert that violation of this section as a claim or defense in any judicial or administrative proceeding, without regard to whether the proceeding is brought by or in the name of the state, a private person, or another party.

(2) A parent who prevails in a proceeding to enforce this section against a government entity may recover the following from a court of competent jurisdiction:

(A) Declaratory relief;

(B) Injunctive relief; and

(C) Compensatory damages, including reasonable costs and attorney’s fees.

(g) A person or entity that is not a parent shall not have standing to raise in any proceeding in this state the fundamental rights of a parent established in subsection (a).

36-8-104.

This chapter must be construed using the following rules:

(1) The protections of the fundamental right of parents to the care, custody, and control of their child afforded by this chapter are in addition to the protections provided under federal law, state law, and the state and federal constitutions;

(2) This chapter must be construed in favor of a broad protection of the fundamental right of parents to the custody, care, and control of their children, including the right to direct the upbringing, education, health care, and mental health of their child;

(3) This act does not give parents a right to medical treatments for their children that have been prohibited by state law; and

(4) State law enacted after July 1, 2024, is subject to this chapter unless the law explicitly excludes such application by reference to this chapter.

SECTION 2. Tennessee Code Annotated, Title 63, Chapter 1, Part 1, is amended by adding the following new section:

63-1-173.

(a) As used in this section:

(1) “Government entity” means the state, any branch, department, agency, commission, or instrumentality of state government, any official or other person acting under color of state law, or any political subdivision of the state;

(2) “Healthcare provider” means a healthcare professional, healthcare establishment, or healthcare facility licensed, registered, certified, or permitted pursuant to this title, title 33, or title 68 or regulated under the authority of either the department of health or an agency, board, council, or committee attached to the department of health or by the department of mental health and substance abuse services, and that is authorized to provide health or medical care or mental health services in this state;

(3) “Medical decision-making authority” means the power granted by the state to a nonparent to make important decisions regarding a child’s health care;

(4) “Minor”:

(A) Means an individual who has not attained eighteen (18) years of age; and

(B) Does not include an individual who:

(i) Is emancipated pursuant to title 29, chapter 31;

(ii) Needs emergency treatment pursuant to § 63-6-222;

(iii) Is or was previously a member of the armed forces of the United States or a member of a reserve or national guard unit; or

(iv) Is the parent of a minor child and has full custody of that minor child;

(5) “Parent” means a biological, legal, or adoptive parent or an individual who has been granted medical decision-making authority over the child under state law; and

(6) “Person” means an individual, corporation, or any other legal or commercial entity, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state.

(b) Except as otherwise provided by statutory law, case law, or court order, a government entity, a healthcare provider, or any other person shall not knowingly take any of the following actions with regard to a minor without first obtaining the consent of a parent of the minor:

(1) Treat, profess to diagnose, operate on, or prescribe for any physical ailment, physical injury, or deformity;

(2) Prescribe, dispense, deliver, or administer any drug or medication;

(3) Render psychological services specified in §§ 63-11-202 and 63-11-203; or

(4) Render counseling services specified in § 63-22-122.

(c) This section does not apply when:

(1) A parent of the minor has given blanket consent authorizing the person or entity to perform an activity listed in subsection (b);

(2) A government entity, healthcare provider, or any other person reasonably relies in good faith on an individual’s representations that the individual is the parent of a minor or has otherwise been granted authority to make decisions regarding a minor’s health care under state law;

(3) A licensed physician performs emergency medical or surgical treatment pursuant to § 63-6-222;

(4) Licensed personnel render appropriate emergency medical care and provide emergency medical services pursuant to § 68-140-309;

(5) A person, including a law enforcement officer, participates or assists in rendering emergency care pursuant to § 63-6-218;

(6) An employee of a local education agency acts to control bleeding using a bleeding control kit pursuant to § 49-2-137; or

(7) Services are provided to a minor enrolled in an institution of higher education by a licensed provider employed by the institution of higher education.

(d) A violation of this practice is an unlawful practice and is grounds for the offending healthcare provider’s licensing authority to suspend, revoke, or refuse to renew the healthcare provider’s license or take other disciplinary action allowed by law.

(e) If the licensing authority of a healthcare provider receives information of a violation or potential violation of this section by the healthcare provider, then the licensing authority shall conduct an immediate investigation and take appropriate disciplinary action.

(f) A parent may bring a civil cause of action to recover compensatory damages, reasonable attorney’s fees, court costs, expenses, and other appropriate relief against an entity or healthcare provider alleged to have violated this section.

(g) If a court in any civil action brought pursuant to this section finds that a healthcare provider knowingly violated this section, then the court shall notify the appropriate regulatory authority and the attorney general and reporter by mailing a certified copy of the court’s order to the regulatory authority and the attorney general and reporter. Notification pursuant to this subsection (g) must be made upon the judgment of the court being made final.

(h)

(1) A civil action commenced against a healthcare provider under this section must be brought within the period required by § 29-26-116.

(2) A civil action commenced against another entity under this section must be brought within one (1) year from the date of discovery of the violation of this section.

(i) This section is declared to be remedial in nature, and this section must be liberally construed to effectuate its purposes.

SECTION 3. This act takes effect July 1, 2024, the public welfare requiring it, and applies to acts committed on or after that date.

Call to Action

OUR MOST IMPORTANT CALL TO ACTION THIS SESSION — WE NEED EVERY SINGLE ONE OF YOU!

THIS ACTION IS EASY because you only have to contact ONE person: Your own Representative.

HB2936 (Amendment #017296) is called the “Families’ Rights and Responsibilities Act” and is being promoted as protecting parental rights, but it massively fails and introduces potential for devastating harm.

Nineteen states have passed legislation that puts the fundamental rights of parents into their state laws. Most of these laws codify parental rights as fundamental (meaning protected by the Fourteenth Amendment). TN’s HB2936 is far different than the laws in those states.

HB2936 differs from those laws in critically important ways that make it dangerous. It must not become law. A full list of problems with the bill is linked HERE.

Contact Tennessee House Members by phone or email. You can find them here. Just click on this link and the list appears. Click on the email to send an email and call the phone number on the list.

PLEASE VOTE NO ON HB2936 – The Family Rights and Responsibilities Act on Thursday, April 11.

1. Instead of codifying the fundamental rights of parents in TN law, this law creates a platform to trim away those rights. It does this with language throughout the bill that makes exceptions for existing and future statutes, court orders, and case law, as well as carveouts that protect government agencies rather than parents.
2. The broad definitions of “Parent” and “Person” in the bill would allow governmental and non-governmental agencies and entities to override your rights in many circumstances.
3. Parents forfeit their parental rights and the right to legal recourse if they enter blanket consent agreements (such as at schools, medical offices, etc.) or for minor children they enroll in higher education.
4. This new law is likely to put a burden on Tennessee taxpayers when attorneys are awarded massive fees for lawsuits.

The final vote for HB2936 is THURSDAY APRIL 11 during the 9am House Floor Session.

Email, call, and if you can, visit your Representative and tell him or her to VOTE NO!

Tell them the Fundamental Rights of Parents are too important to get wrong. This bill is WRONG. This is not a bill they will be able to boast about.