Gold Dome Report - February 2, 2017
Today marked the 12th day of the Legislative Session. Governor Deal proclaimed Friday, February 3, as 'Falcons Friday' to recognize the Atlanta Falcons who will face the New England Patriots in the Super Bowl on Sunday. The Governor and many other legislators wore their best Falcon's attire in anticipation of the Falcon's victory this weekend. The full press release can be found HERE.
Sen. Renee Unterman (R-Buford) took a moment of personal privilege to ask that her colleagues join with her and sign her new legislation on autism. She reminded fellow Senators that the Lt. Governor and Governor had been leaders in looking for service options for children who suffer from this disease.
The Senate also took up two bills this morning:
SB 85 was presented by Sen. Rick Jeffares (R-McDonough) in the form of a Committee Substitute which passed easily with a vote of 49-2. The legislation amends Chapter 5 of Title 3 to allow for the limited sales of malt beverages at retail by manufacturers. This is in the form of a limited exception to the provisions of O.C.G.A. § 3-5-29 through O.C.G.A. § 3-5-32 providing the three-tier system for distribution and sale of malt beverages, allowing up to 3,000 barrels to be sold of malt beverages at the brewer's licensed premises – when consumed on the premises - and when consumed off premises that such sales for consumption shall not exceed a maximum of 288 ounces of malt beverages per consumer per day.
Next up was the legislation by Sen. Butch Miller (R-Gainesville) which is the reauthorization of the hospital provider fee. This fee was originally enacted in 2010 and then was reauthorized in 2013. Currently, this imposed fee on Georgia's hospitals on inpatient net revenues is to expire on June 30, 2017. The proposal, SB 70, extends the date of the collection of the hospital provider fee until June 30, 2020. Collection of this fee allows Georgia to use those funds to leverage $2.00 in federal funds for every dollar collected as a State dollar. An amendment was proposed by Sen. Josh McKoon (R-Columbus) to move the date of this fee's expiration to June 30, 2018 so that the federal government could signal its intentions on how it will handle the Medicaid program's financing (moving perhaps to a block grant so that states can have flexibility with how those moneys are spent). Sen. McKoon questioned whether this "fee" is really a revenue generating proposal and whether it should have been originated in the House as required by the Georgia Constitution. He argued that providing a three-year extension permits the Department of Community Health Board, which oversees this fee, a longer time frame in which to create details on this fee to be imposed. He recited numerous hospitals which do not benefit from the fee imposed. Sen. McKoon explained that the add-on percentage granted to hospitals did not benefit them all. In fact, in FY 2011, only 63 hospitals in the State benefitted and showed a gain; in FY 2012, there were 55; in FY 2013, there were 52; in FY 2014, there were 45; and in FY 2015, there were 46. Sen. Bill Cowsert (R-Athens and the Majority Leader) urged his colleagues to look at the prior bill as there is oversight in the current law – in fact, there is legislative oversight and the General Assembly has the ability to override the payment through Georgia's administrative procedure laws. There was a letter distributed to the Senators from the Georgia Hospital Association and Georgia Chamber of Commerce which urged passage of SB 70. There were some questions raised on the Floor by Sen. Vincent Fort (D-Atlanta) as he opposed the fact that the Senate had not fully debated Medicaid expansion – noting under Medicaid expansion, Georgia could receive $15 federal dollars for every $1. He argued that Georgia has two million uninsured and Medicaid expansion could save 750-1,000 lives annually. He also told his colleagues that Medicaid expansion could allow $65 billion in economic activity over ten years and create 56,000 new jobs. This brought Sen. Renee Unterman (R-Buford) to her feet, arguing that the proposal had the ability to provide $900 million in benefit to two major hospitals: Grady and Children's Healthcare of Atlanta. She argued that Sen. Fort was comingling two issues. Sen. McKoon jumped into the fray asking Sen. Fort if he had been finding it difficult to find a forum to discuss his concerns about Medicaid expansion and the State's reluctance to move forward with that idea. Sen. Fort said yes. Sen. Steve Henson (D-Tucker and Minority Leader) said to his fellow Senators that there were other alternatives besides imposing this fee on hospitals and asked that perhaps a more full debate be held to look at the complexity of the State's tax structure. In the end, Sen. McKoon's amendment failed with a vote of 5 to 48 (those voting in favor were Sens. Hunter Hill, Gail Davenport, Vincent Fort, David Lucas, and Josh McKoon). The legislation passed as presented with a vote of 50 to 3. It was immediately transmitted to the House.
The House considered HB 58 today, by Rep. Terry Rogers (R-Clarkesville). This bill updates the reference date in the Georgia Code to the federal regulations on safe operation of motor carriers and commercial motor vehicles. Currently law refers to federal regulations in place as of January 1, 2016, so this bill will reference those regulations in force as of January 1, 2017.
HB 2, by Rep. Jason Spencer (R-Woodbine), seeks to alter O.C.G.A. § 9-3-33.1 regarding actions for childhood sexual abuse in O.C.G.A. § 9-3-33.1(d). It amends the law relating to the revival of certain claims. It states in (d)(1) that for a period of four years (rather than current law of two years) following July 1, 2015, plaintiffs of any age who were time barred from filing a civil action for injuries resulting from childhood sexual abuse due to the expiration of the statute of limitations in effect on June 30, 2015 shall be permitted to file such actions against the individual alleged to have committed such abuse before July 1, 2019 (rather than July 1, 2017 as in current law), thereby revising those civil actions which had lapsed or technically expired under the law in effect on June 30, 2015. Also, in (d)(2), it states that the revival of a claim as provided in (1) shall not apply to (A) any claim that has been litigated to finality on the merits in a court of competent jurisdiction prior to July 1, 2017 (rather than July 1, 2015 as in current law).
HB 237, by Rep. Brooks Coleman (R-Duluth) would amend O.C.G.A. § 20-14-26.1 to authorize the Public Education Innovation Fund Foundation to receive donations from taxpayers for the purpose of awarding grants to public schools for the implementation of academic and organizational innovations meant to improve student achievement and for the dissemination of information regarding successful innovations to other public schools in Georgia. Funds may be awarded through a competitive grant process administered by the office and the criteria for such grants is to consider the potential of which the innovation is likely to result in the proposed improvement. The bill further requires the foundation to report to the Department of Revenue on the total number of approved donations and tax credits, as well as a list of donors. The legislation would also create a new Code Section at O.C.G.A. § 48-7-.29.21 that would allow for a tax credit for donations to the fund. For an individual, the tax credit would be equal to the amount donated or $1,000 per year, whichever is less. For a married couple, the credit would be $2,500 per year or equal to the amount donated. A corporation would be allowed a tax credit not to exceed 75 percent of the corporation's income tax liability.
HB 240, by Rep. Rich Golick (R-Smyrna), seeks to amend Titles 33 and 34 to provide for the licensure of a representative of a professional employer organization who engages in counseling, advising, or rendering opinions as to benefits promised under a contract of insurance or as to its terms, value, effect, advantages, or disadvantages. At O.C.G.A. § 33-23-1, the legislation amends the definition of 'counselor,' so that it now would mean at (6):
(A)(i)Any individual who engages or advertises or holds himself or herself out as engaging in the business of counseling, advising, or rendering opinions as to the benefits promised under any contract of insurance issued or offered by any insurer or as to the terms, value, effect, advantages, or disadvantages under the contract of insurance, other than an actuary or consultant advising insurers; or
(ii) A representative of a professional employer organization as defined in subsection (a) of Code Section 34-7-6 who engages in counseling, advising, or rendering opinions as to the benefits promised under any contract of insurance issued or offered by any insurer to such professional employer organization or as to the terms, value, effect, advantages, or disadvantages under such contract of insurance which covers or is proposed to cover current or prospective co-employers or their employees. However, if such representative does not perform any of these activities and directs any and all questions that would require such representative to be licensed pursuant to this chapter to an agent or counselor who is duly licensed pursuant to this chapter, such representative shall not be considered and shall not be subject to the licensing requirements of this chapter.
(B) When receiving a fee, commission, or other compensation for services pursuant to subparagraph (A) of this paragraph, a counselor who is duly licensed pursuant to this chapter shall not receive any compensation from any other source on or relating to the same transaction.
At O.C.G.A. § 34-7-6, it addresses the powers and responsibilities of a professional employer organization, adding changes in (b):
A professional employer organization may collect information to evaluate costs; may obtain life, accident and sickness, disability income, workers' compensation, and other types of insurance coverage; may establish retirement plans; may have other types of employee benefits; and may discuss such benefits with prospective co-employers and their employees; provided, however, that nothing in this Code Section shall be construed to exempt any person from the provisions and licensure requirements of Chapter 23 of Title 33 or any other applicable requirements of law or regulation.
HB 241, by Rep. Lee Hawkins (R-Gainesville) would amend O.C.G.A. § 31-12-6 to require the Department of Public Health to promulgate rules to address individuals with 'Krabbe disease'. It also provides that screening for Krabbe disease shall be conducted separately from the screening of newborns, at the option of the parent or parents.
HB 242, by Rep. Brian Prince (D-Augusta) would amend O.C.G.A. § 19-7-5 to provide that, in the event of a report of child abuse by an active duty status military parent or guardian, child welfare agencies shall notify the military installation family advocacy program of the allegation.
HB 246, by Rep. Wes Cantrell (R-Woodstock) would repeal the sunset provision at O.C.G.A. § 20-2-777 for an annual fitness assessment program.
HB 249, by Rep. Kevin Tanner (R-Dawsonville), addresses drug overdoses and prescribing and dispensing practices in an effort to collect more information about the use of controlled substances. Dispensers, in O.C.G.A. § 16-13-59(b), are to include information for each Schedule II, III, IV, or V controlled substances. The dispenser is to submit prescription information required in O.C.G.A. § 16-13-59(a) in accordance with transmission methods established by the agency at least every 24 hours (rather than on a weekly basis) and report at a minimum such prescription information no later than ten days after the prescription is dispensed. If a dispenser is temporarily unable to comply with this subsection due to an equipment failure or other circumstances, the dispenser shall immediately notify the board and agency. Further, the legislation addresses confidentiality provisions in O.C.G.A. § 16-13-60 outlining who the agency is authorized to provide requested prescription information to which is collected – now permitting not more than two individuals who are members of the prescriber's or dispenser's staff under specified conditions (such as if they are licensed under Chapter 11, 30, 34 or 35 of Title 43, etc.). The proposal further amends O.C.G.A. § 16-13-63, regarding liability, and outlines that when a prescriber is prescribing a controlled substance identified in O.C.G.A. § 16-13-26(1) or (2), then he or she shall seek and review information from the electronic database unless the prescription is for a three-day supply and less than 26 pills; the patient is an inpatient in a hospital or healthcare facility (e.g., nursing home, an intermediate care home, a personal care home, or a hospice program) which provides patient care and prescriptions to be administered and used by a patient on the premises of the facility; the patient is in an outpatient hospice program; or the patient is under long-term care for cancer. It does state that a prescriber who violates such is to be held administratively accountable to the State regulatory board governing the prescriber but not be held civilly liable for damages or criminally responsible for injury, death or loss to person or property on the basis that the prescriber did or did not seek or obtain information from such database when prescribing such substance. Prescribers are required to make notes in the patient's medical record stating the date and time upon which an inquiry was made and identifying the individual's name who made the search and review. At O.C.G.A. § 16-13-71(c), it adds naloxone as an exemption from dangerous drug when it is used for drug overdose prevention and when supplied by a dispenser under certain conditions which are outlined. It also provides that the coroner be notified and for a coroner's inquest when it involves a drug overdose in O.C.G.A. § 45-16-24(a)(10) and O.C.G.A. § 45-16-27(a).
HB 250, by Rep. Mandi Ballinger (R-Canton) would amend O.C.G.A. § 49-5-69.1 to provide that an employee of an early care and education program who has received a satisfactory fingerprint records check determination within the previous 24 months is exempt from submitting applications for an additional background check for the purpose of providing care to foster children.
HB 251, by Rep. Darrel Ealum (D-Albany) would create a new code section at O.C.G.A. § 38-3-38 to provide that, in the event of a state of emergency being declared by the Governor, all emergency responders shall be authorized to enter private property to the extent necessary to conduct their duties which includes search, rescue, property protection, debris removal, restoration of services, and infrastructure repair and allocation. It further states that no person shall interfere with emergency responders in the performance of his or her duties.
HB 252, by Rep. Scot Turner (R-Holly Springs) seeks to amend O.C.G.A. § 31-8-179.6 by extending the sunset provision for the hospital Medicaid financing program to June 30, 2018. The sunset currently extends to June 30, 2017.
HR 169, by Rep. Sandra Scott (D-Rex) urges the Composite State Board of Medical Examiners, the Georgia Board of Dentistry, and the various professional licensing boards under the Secretary of State's jurisdiction to adopt existing interstate licensing compacts in order to honor the home state licenses of military service members who seek to practice in a health service field in Georgia.
HR 170, by Rep. Sharon Cooper (R-Marietta) urges state agencies, medical service providers, health care agencies, research facilities, medical schools, and all other interested parties to increase research, clinical care, and medical education for 'myalgic encephalomyelitis'.
HR 177, by Rep. Pat Gardner (D-Atlanta) commends the Georgia Psychological Association and its members for their dedicated service to the State of Georgia and recognizes February 15, 2017 as Psychology Day at the State Capitol.
HR 182, by Rep. Raffensberger (R-Johns Creek) urges the Governor to negotiate with federal authorities to receive a waiver creating per capita block grant funding to be used for indigent health care and providing legislative notification for the submission of a waiver request.
SB 115, by Sen. Frank Ginn (R-Danielsville), is a proposal to prohibit the sale of ethanol gasoline in Georgia in O.C.G.A. § 10-1-162(j). It also strips out references to ethanol in the Tax Code and its definition for "alternative fuel" in O.C.G.A. § 48-7-40.16(a)(1) and also strips out the reference to ethanol in the exemptions from State sales and use taxes in O.C.G.A. § 48-8-3(34.4). Finally, it repeals Article 7 of Chapter 8 of Title 50, regarding the Department of Community Affairs' grants to promote E-85 gasoline. If passed, this proposal would become effective on January 1, 2018.
SB 116, by Sen. Frank Ginn (R-Danielsville), seeks to add a new Code Section at O.C.G.A. § 36-60-17.2, relating to counties and municipal corporations, to prohibit the assessment of storm-water utility fees on water-neutral properties (defined as "a property designed to achieve control of water runoff from a 25-year, 24-hour storm event in a manner consistent with the Georgia Stormwater Management Manual").
SB 117, by Sen. P.K. Martin (R-Snellville), offers to address current law relating to the Georgia Technology Authority in Chapter 25 of Title 50. It changes the definition of the term, 'agency,' so that it now includes the Georgia Department of Defense.
SB 118, by Sen. Renee Unterman (R-Buford), relates to insurance coverage for autism in O.C.G.A. § 33-24-59.10. It changes the age limits for coverage for autism spectrum disorders for an individual covered under a policy or contract. Under current law, it covers individuals who are six years of age or under – her proposal moves the age to 21 years of age or under.
SB 119, by Sen. Lester Jackson (D-Savannah), seeks to prohibit discrimination based on sexual orientation or gender identity. It proposes to add a new Chapter 16 in Title 10 which is proposed to be known as the "Georgia Civil Rights in Public Accommodations Act" so that all persons will be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation without discrimination or segregation on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. It provides at O.C.G.A. § 10-16-4 that such provision in this new Chapter 16 will not apply to a private establishment, except to the extent that facilities of such private establishment (not open to the general public) perform as a place of public accommodation.
SB 120, by Sen. William Ligon, Jr. (R-Brunswick), addresses the recording of deeds in superior courts. It amends in part:
- O.C.G.A. § 44-2-14(a), providing for constructive notice of instruments which are not attested or acknowledged as provided by law but filed and recorded as required that such instrument serve as constructive notice to subsequent bona fide purchasers beginning four years from the date such instrument was recorded (the four years applies to any deed to realty or personalty or any mortgage, bond for title, or other recordable instrument executed in Georgia beginning on July 1, 2017 or the date upon which the instrument was executed (whichever date occurs last)
- O.C.G.A. § 44-2-18 so that when a deed is not attested or acknowledged before one of the officers named in Code Section 44-2-16, or is not attested by another witness when such other witness is required by law, it may be recorded upon the affidavit of the individual who failed to make such attestation or acknowledgement. When an attestation or acknowledgement is defective, it may be recorded upon the affidavit of the individual whose attestation or acknowledgment was defective. Such affidavit shall be made before any one of the officers named in Code Section 44-2-15 and shall testify to the execution of the deed and its attestation according to law. A substantial compliance with the requirements of this Code section shall be held sufficient in the absence of all suspicion of fraud.
- O.C.G.A. § 44-14-39, relating to the effect of a defective record as notice, so that "except as provided in paragraph (1) of subsection (a) of Code Section 44-2-14, a mortgage which is recorded in an improper office or without due attestation or probate or which is so defectively recorded as not to give notice to a prudent inquirer shall not be held to such notice to subsequent bona fide purchasers. A mere formal mistake in the record shall not vitiate" such mortgage.
SB 121, by Sen. Butch Miller (R-Gainesville), seeks to provide that the State's Health Officer may issue a standing order permitting certain persons and entities to obtain opioid antagonists under the conditions that the State Health Officer may impose. This standing order will have a statewide effect. See O.C.G.A. § 26-4-116.2. It further requires that every pharmacy in the State keep a copy of the standing order and record all opioid antagonists dispensed pursuant to the order. The record is to include the purchaser's name and address and is to be maintained by the pharmacy for two years – this can be kept electronically. Pharmacists are not required to submit this information to the Prescription Drug Monitoring Program and the standing order is not to require pharmacies to maintain opioid antagonists in their biennial inventories. The legislation proposed also amends O.C.G.A. § 16-13-29, regarding controlled substances in Schedule V, adding naloxone to this Schedule V list. This legislation is to be known as the "Jeffrey Dallas Gay, Jr. Act."
SR 150, by Sen. Michael Williams (R-Cumming), commends Hannah Testa for her involvement in and commitment to environmental sustainability and recognizes February 15, 2017 as Plastic Pollution Awareness Day at the capitol.
SR 152, by Sen. Frank Ginn (R-Danielsville), seeks to create a Joint Study Committee on Stream Buffers in Georgia for the purposes of protecting water quality; consideration of property rights of owners to build on their land and exercise freedom of land usage and when government may impinge on those rights; requirements of stream buffers which vary from state to state; and determining an appropriate plan of action to find a balance between water protection and private property rights. This would be a Study Committee consisting of 17 individuals.
House Judiciary Committee
The House Judiciary Committee met today and considered one measure:
- HB 126, authored by Rep. Wendall Willard (R-Sandy Springs), is the Judicial Qualification Commission Improvement Act of 2017. Pat O'Connor, President of the Georgia Bar, appeared before the Committee and again asked that the State Bar be allowed direct appointment of the JQC's lawyer members. Rep. Willard again expressed concern that if the State Bar appointed members rather than elected officials, a problem could arise where the members of the JQC not appointed by an elected official could recommend discipline or removal of an elected official. The Committee did not formally consider or vote on the State Bar's request. Rep. Stacey Evans (D-Smyrna) offered two amendments aimed at clarifying the separation between members and staff of the investigative and hearing panels. The Evans amendments were not adopted. The Committee voted to recommend the bill DO PASS by committee substitute.
House Judiciary Committee - Kelley Subcommittee
The Kelley Subcommittee, chaired by Rep. Trey Kelley (R-Cedartown), heard presentations on two bills today:
- HB 15, authored by Rep. Wendall Willard (R-Sandy Springs), mandates that all Georgia courts of record participate in and require electronic filing of civil actions and pleadings by January 1, 2018. The bill has the support of the Georgia Trial Lawyers Association subject to the addressing of questions related to transaction and service costs. Georgia is currently served by two e-filing vendors, PeachCourt in 150 state and superior courts, and Tyler Technologies in 8 state and superior courts. The Subcommittee TABLED consideration of the bill until next week.
- HB 138, authored by Rep. Lee Hawkins (R-Gainesville), adds a fifth judge to the Northeastern Judicial Circuit. This addition is in response to the Judicial Council of Georgia's determination that the Northeastern Judicial Circuit needs in excess of five judges, and the proposition is supported by local elected officials. The Subcommittee voted to recommend the bill DO PASS by committee substitute and be sent to the full Judiciary Committee.
House Juvenile Justice Committee
This Committee, under new leadership with Rep. Mandi Ballinger (R-Canton), held a hearing on Rep. Mary Margaret Oliver's (D-Decatur) legislation, HB 53, proposing to raise the age from 17 to 18 years of age where juveniles can be prosecuted in juvenile courts. Under Georgia's current law, those individuals over the age of 17 are to be tried in superior courts for offenses. 43 other states have the age of 18 for their juvenile court's jurisdiction.
Rep. Oliver explained her legislation and had a number of supporters on hand to provide some background and support for this idea. J. Tom Morgan, a former DeKalb County District Attorney and practicing lawyer, provided some comments as did Melissa Carter with the Barton Child Law Policy Clinic, Marissa McCall Dodson with the Southern Center for Human Rights, and Polly McKinney and Erica Fenner Sitkoff with Georgia VOICES for Children. There was a lot of discussion about how this legislation was not addressing current law which lawmakers refer to as SB 440, allowing district attorney discretion for children who are ages 13-16 and who commit the seven most dangerous crimes to be tried in superior court. The legislation does have a fiscal note which Rep. Oliver and Rep. Andy Welch (R-McDonough) took issue with. However, the price tag to make this change is $200 million – with half of the cost associated with a proposed need of three additional Department of Juvenile Justice facilities with 50 beds each. Mr. Morgan stated that raising the age to 18 would help many youth with their college and job applications – with a criminal arrest as an adult and on the youth's record can negatively impact their chances. Juvenile records, though, are sealed. Mr. Morgan also noted that counties vary in how they handle these juveniles – many will allow for diversion but many Georgia counties prosecute the 17 year olds as adults. Ms. Carter noted that their data reflects that in 2015, there were 7,452 17 year old juveniles arrested and that number has been declining. Of those 7,452, ninety-two percent were first time offenders and eight percent had been arrested two or more times. Ms. Carter said the price tag of $200 million was not "out of the stratosphere" as other states had seen large costs when looking at making changes; however, most had found that those were not the actual costs. Some cases even have seen cost savings (for instance, Arizona saw a cost savings with diversion and North Carolina projected a cost of $49 million but found $102 million in actual savings). There were questions raised about what the State does in the instance when a foster care child is arrested and how does that child get out of jail; there is no one there for that child. The argument was that there are great discrepancies on how children and youth are treated. Ms. Dodson pointed out that juvenile brains are not fully developed; placing 17 year olds in prisons only increases the potential for them to experience recidivism; and prosecuting 17 year olds as adults negatively impacts them with employment and job opportunities as juvenile court records are sealed and adult records are not. Ms. Dodson explained that one in three Georgians have criminal records and employers now consider criminal records in their hiring decisions and their "look-back" at records can be over an individual's entire adult life. Rep. Regina Quick (R-Athens) asked if the number 18 was just an arbitrary number; the answer was no because there are other references in Georgia's laws reflecting that 18 is an adult (it was noted, though, that Connecticut is considering raising the age for juvenile court jurisdiction to 21 and the Southern Center for Human Rights would be support such). Ms. McKinney and Dr. Sitkoff indicated that the Committee should consider the impacts of childhood trauma and also look at trauma impacts on the brain before making a decision – therapeutic interventions are possible with juveniles.
John Smith with the Department of Juvenile Justice told the Committee that the Department is working on a report which has looked at the Georgia Crime Information Center information on arrests of juveniles. However, that study is not finalized. Mr. Smith told the Committee that his Department's information was that in 2015-2016 there was a 67 percent increase in fingerprints taken at arrests. All discussed that Georgia does not have good data on the numbers of individuals in jails or the cases which are pending or have been adjudicated.
Our 2017 Georgia Capitol team consists of Stan Jones, Helen Sloat, Chuck Clay, George Ray, and Logan Fletcher. We will also try our hand at tweeting this year – so follow us! @GDR_Live
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.