April 11, 2003

For more information contact:

Stanley S. Jones, Jr.

404-817-6133

Greetings from the Gold Dome.  Legislators are winding up their work for this year’s regular Session.  Only four days now remain without a Budget resolution in sight.  Rumors are circulating that a Special Session may be called in order to address reapportionment and budget issues.  Needless to say, many are getting weary.  

Floor News  

          On the House side, here are a few of the day’s highlights (which include four pieces of Senate legislation):  

·        SB 7 proposes to provide regulation of air ambulances by the Department of Human Resources through its Division of Public Health’s Emergency Health Section.  This proposal is added at O.C.G.A. § 31-11-2 .  It cleared the House by a vote of 142 to 1.

·        SB 104, Sen. Tanksley’s deposit account fraud legislation, also passed by a vote of 133 to 18.  It addresses fees on bad checks in O.C.G.A. § 16-9-20 (j).  This increases the fees from the current $25.00 on checks to $30.00 or 5% of the face amount of the instrument, whichever is greater.

·        SR 120 and SR 121, which were uncontested Resolutions relating to public property conveyances, passed.  

In the Senate, the Budget took up the day.  The Senate passed its Appropriations Committee’s version of HB 122 by a vote of 33 to 22, basically splitting along party lines.  There were originally 22 amendments proposed.  In the end, the Senate voted down eleven of those which remained (others were withdrawn).  Some proposed amendments included restoration of Mercer University’s medical school funding; restoration of monies to fund the Georgia Rail Passenger Authority; prevention of an increase in PeachCare for Kids premiums; restoration of monies to complete the social sciences building at Kennesaw State University;  restoration of monies for an asthma project; restoration of monies for the Office of Rural Health; etc.  The House and Senate each insisted on their positions on the Bill and Conferees were appointed.  

Newly Introduced Legislation  

HB 980 – Reps. Cummings, Dodson, and Lunsford have co-authored this amendment to add an additional dental hygienist to the Georgia Board of Dentistry.  Currently, there are eleven members on this Board with nine of them being dentists, one dental hygienist, and one member who is neither a dentist nor dental hygienist.  This changes the number of Board members to 12 and adds an additional dental hygienist – both have to be Georgia residents and practicing currently in the State.  It has been assigned to the House Health and Human Services Committee for further review.  

HB 981 – Rep. Burmeister and others have proposed an amendment to Chapter 12 of Title 31 concerning the provision of comprehensive revisions for the sale or dispensing of contact lenses.  The bill has similarities to the previously filed bill on this topic by Rep. Burmeister, HB 634, which also dealt with dispensing and selling of contact lenses.  Here are a few highlights of this bill:  

·        It states that no person in Georgia shall sell, dispense, or serve as a conduit for the sale or dispensing of contact lenses to the ultimate user of the lenses except a person licensed and regulated by Chapter 29, 30, or 34 of Title 43.

·        No person outside the State can sell or dispense lenses by mail, or ship, or deliver to the end user of the lenses, unless that person is licensed to dispense lenses in Georgia or licensed in the jurisdiction where the person is located.

·        If a person violates such, then he or she would be guilty of a felony and could be imprisoned for one to five years and/or receive a fine not to exceed $10,000.

·        There are provisions concerning replacement lenses up until the expiration date of the prescription.  Such could be obtained from any person lawfully able to dispense lenses.

·        A prescriber is granted immunity from liability for the improper filling of a proper prescription filled by a person other than the prescriber.

·        If a prescriber is requested to validate a prescription by a person authorized under this Code section to fill the prescription, then he or she is required to do so within seven business days on which the prescribing doctor’s office is open after the request. No verification would be provided unless the patient has designated the person requesting the prescription to act on the patient’s behalf.  A non-response to a request for validation does not constitute a validation.  

The bill has been assigned to the House Health and Human Services Committee.  

HB 984 – Rep. Powell, along with others, offered this bill amending Article 2 of Chapter 7 of Title 48.  It proposes to make changes concerning the imposition, rate, and computation of income taxes for the designated counties as less-developed areas in an effort to allow for tax credits for existing manufacturing and telecommunications facilities or manufacturing or telecommunications support facilities.  Some of these proposals include credits for the establishment or relocation of the headquarters of these types of businesses.  There are additional tax credits for those business enterprises’ leased motor vehicles.  The bill has been referred to the House Ways and Means Committee.  

HB 992 – This is another Health Code amendment in O.C.G.A. § 31-2-7 by Reps. Drenner, Henson, and Dooley.  Among its provisions include:  the proposal to repeal the definition of “prior approved system” in standards for sewage management systems; and authorization of the Department of Human Resources to adopt statewide regulations for on-site sewage management systems.  

HB 993 – Rep. Harbin has authored a tax measure to provide income tax credits for pharmaceutical companies locating or expanding their facilities within Georgia .  This specifically amends O.C.G.A. § 48-7-40.24.  This bill would allow credits for each full-time job created ($2,500); if the job has wages of 200% or more of the average wage of the county where it creates such full-time jobs, then a credit of $5,000 would be provided for each of those new full-time jobs.  The proposal would become effective on July 1, 2004 .  It has been assigned to the House Ways and Means Committee.  

HR 722 – Reps. Mills, White, Reece, and Walker have proposed this Resolution concerning SB 23, the “Woman’s Right to Know Act.”  It proposed to amend Chapter 9 of Title 31 of the Code relating to consent to surgical or medical treatment.  This Resolution states that SB 23 was adopted in the Senate on February 28, 2003 and read in the House for the first time on March 3, 2003 .  Since then, it was assigned to the House Judiciary Committee which has failed to take action on the bill.  This Resolution urges the House of Representatives to take appropriate steps to bring SB 23 under consideration by the full House as the Committee of the Whole.  This Resolution was also assigned to the House Judiciary Committee.  

HR 743 – Rep. Harbin has proposed this Resolution creating the House Study Committee on Adapted Athletes.  This will look at the federal Education for All Handicapped Children Act.  

HR 745 – Rep. Smith and others have proposed the creation of a House Study Committee on the Hearing Impaired composed of five House members.  This Study would explore various non-profit organizations which are concerned with the needs of the hearing impaired and consumer groups which serve individuals and families of the hearing impaired so that it can help ensure “Georgia Hears.”  It will look at health and social services that Georgians with hearing impairment can access to confront their limitations in daily living.  This will include looking at intervention programs, etc.  A study will be conducted and reported back on or before December 31, 2003 .  

SR 416- Sen. Levetan’s proposed Senate Hospital Indigent Care Funding Study Committee has now been referred to the Senate Rules Committee for consideration.  

SR 422 – Sens. Zamarippa, Williams, Johnson, and Brown have proposed the creation of a Senate Meeting Georgia’s Transportation Needs Through the Year 2025 Study Committee.   As the largest state east of the Mississippi River , there is a need to look at Georgia ’s transportation system and its needs.  Among things that this Study Committee will review include looking at funding to meet the transportation goals and the capabilities of existing facilities and the system.   It will meet five times between now and December 1, 2003 and report back its findings.  

Committee News  

Senate Regulated Industries Committee  

          The following bills were reported out of this Committee today from a meeting held on April 10, 2003 :  

HB 132 was presented by Rep. Powell, which addresses regulation of surveyors.  Sen. Regina Thomas opposed the measure in the vote but the bill cleared its way onto the Senate Rules Committee.  

HB 506, a Title 8 amendment, also passed.  Among its provisions include the providing for record ownership of manufactured homes and mobile homes and their status as personal or real property and the providing for how such homes may be converted from personal property to real property and vice versa. There were no changes to the bill.  

HB 493, presented by Sen. Johnson, passed.  This proposes to deal with the issue of “equal protection” issues for restaurants and bars’ openings and closings on Sunday.  The City of Atlanta had concerns about the legislation as it is already stretched in the provision of police forces on the weekend.  

Senate Health and Human Services Committee  

          This Committee reported out HB 372 concerning financial assistance (such as grants, scholarships, loans, etc. and the assumption, purchase, or cancellation of repayment of any loans plus interest and charges for education purposes) to be provided to students, post-graduate students, or the parents of such for programs in the study in healthcare fields where there are critical personnel shortages.  The underlying bill added changes to O.C.G.A. § 31-7-75 (25).  In the Substitute, the Committee added a change to O.C.G.A. § 31-3-21 (4) to amend the option provided to counties to create a board of health and wellness by ordinance.  This states that “the governing authority of the county shall be authorized to adopt a system of rules, regulations, and orders covering health and sanitation within the county, and such system of rules, regulations, and orders may be based on recommendations by the county board of health and wellness and shall not be in conflict with the rules and regulations of the department.  Such rules, regulations, and orders when adopted shall be recorded on the minutes of the governing authority of such county, and a certified copy thereof shall be furnished to the department of health and wellness of such county and to the department.”  

          The Committee also passed an amendment to HB 521.  The Committee basically tried to make this version of the bill more like SB 266.  Both bills deal with meningoccal meningitis and vaccination against such disease.  The Senate Committee proposed to include language that a waiver would be required from the student if that student, upon receiving detailed information about the vaccination and the risks associated with the disease, decides that he or she has chosen not to participate in the vaccination (if the student is a minor, then the waiver would have to be done by the student’s parent or guardian).  Both bills do not require the post-secondary educational institutions to pay for the vaccinations.  

Senate Insurance and Labor Committee

          Other bills reported out of the Committee today included HB 792 which relates to class action lawsuits.  This is Rep. Porter’s bill which basically brings in line the State law with federal law on class action lawsuits.  In the House, the Judiciary Committee amended the bill so as to delete the subsections (f) and (g) which adopted some additional appeals rights relating to the order on the certification of the class (modeled after Alabama law).  This Senate Committee reinstated those provisions:  

“f)(1) No class of civil litigants shall be certified or recognized by any court of the State of Georgia unless there shall have been compliance with the procedures for certification of the class set forth in this subsection. (2) As soon as practicable after the commencement of an action in which claims or defenses are purported to be asserted on behalf of or against a class, or as soon as practicable after such assertions in an amended pleading, but in no event prior to the time allowed by law for each party, including, but not limited to, counterclaim, cross-claim, and third-party defendants to file an answer or other pleading responsive to the complaint, counterclaim, cross-claim, or third-party claim, the court shall hold a conference among all named parties to the action for the purpose of establishing a schedule, in the same manner and to the same extent contemplated by Code Section 9-11-16, for any discovery in which the parties may wish to engage which is both allowed by Code Section 9-11-26 through Code Section 9-11-37 and germane to the issue of whether the requested class should or should not be certified. At this conference, the court may set a date for a hearing on the issue of class certification, but such hearing may not be set sooner than 90 days after the date on which the court issues its scheduling order pursuant to the conference unless a shorter time is agreed to by all parties. (3) Upon motion of any party, the court shall, except for good cause shown and even then only if the interests of justice require that it not do so, stay all discovery directed solely to the merits of the claims or defenses in the action until the court shall have made its decision regarding certification of the class. In considering such a motion, the court shall consider whether any prejudice to the plaintiff exists because of the filing by the defendant of a motion for summary judgment pursuant to Code Section 9-11-56 prior to the court’s decision regarding class certification. (4) The court shall, on motion of any party, hold a full evidentiary hearing on class certification. The hearing shall be recorded, and all named parties to the action shall be given notice of the date, time, and place of the hearing by written notification given to the party’s attorney, or if appearing pro se, to the party, no later than 60 days prior to the date set for the hearing. At the hearing, the parties shall be allowed to present, in the same manner as at trial, any admissible evidence in support of or in opposition to the certification of the class. (5) When deciding whether a requested class is to be certified, the court shall determine, by employing a rigorous analysis, if the party or parties requesting class certification have proved its or their entitlement to class certification under Code Section 9-11-23 . The burden of coming forward with such proof shall at all times be on the party or parties seeking certification, and if such proof shall not have been adduced, the court shall not order certification of the class. In making this determination, the court shall analyze all factors required by Code Section 9-11-23 for certification of a class and shall not order certification unless all such factors shall have been established. In announcing its determination, the court shall place in the record of the action a written order addressing all such factors and specifying the evidence, or lack of evidence, on which the court has based its decision with regard to whether each such factor has been established. In so doing, the court may treat a factor as having been established if all parties to the action have so stipulated on the record and if the court shall be satisfied that such factor could be proven to have been established. (6) Nothing in this Code section shall affect, or be construed to affect, any provision of Code Section 9-11-12 or Code Section 9-11-56 .
(g) A court’s order certifying a class or refusing to certify a class action shall be appealable in the same manner as a final order to the appellate court which would otherwise have jurisdiction over the appeal from a final order in the action. Such appeal may only be filed within 42 days of the order certifying or refusing to certify the class. The filing of such appeal, the failure to file an appeal, or the affirmance of the certification or denial order shall in no way affect the right of any party, after the entry of final judgment, to appeal the earlier certification of, or refusal to certify, the class. If the appeal is not the first appeal taken by the party, the subsequent appeal shall be based upon the record at the time of final judgment and shall be considered by the court only to the extent that either the facts or controlling law relevant to certification have changed from that which existed or controlled at the time of the earlier certification or refusal to certify. During the pendency of any such appeal, the action in the trial court shall be stayed in all respects. Following adjudication on appeal or, if the initial appeal is to an intermediate appellate court, adjudication of the action on any writ of certiorari granted by the Supreme Court of Georgia, if the class is not to be certified, the stay in the trial court shall automatically dissolve and the trial court may proceed to adjudicate any remaining individual claims or defenses. If, after such appeal or procedure on writ of certiorari, the class is to be certified, the stay shall likewise dissolve and the trial court shall proceed with adjudication on the merits, except that the trial court shall at all times prior to entry of a final order retain jurisdiction to revisit the certification issues upon motion of a party and to order decertification of the class if during the litigation of the case it shall become evident to the court that the action is no longer reasonably maintainable as a class action pursuant to the factors enumerated in subsection (b) of Code Section 9-11-23.”  

          The Committee also reported out HB 638 regarding a modification to the State Health Benefit Plan in Chapter 18 of Title 45.  In the original form of the bill, the proposal was to include participation of employees of critical access hospital authorities to participate in the State’s benefit plan.  The new Substitute, as reported out of this Committee, proposes to allow employees of federally qualified health centers to also participate as well (they too would have to pay the premiums to participate).  There are concerns that these are actually federal employees so why those persons be covered by the State’s health insurance.  It is likely there will be more heard on this amendment.  

          The Committee also reported out a new version of HB 619, the franchise group insurance bill.  Here are some of the changes:    

·        In the House version, O.C.G.A. § 33-30-1(c)(C)(5) is changed so that if an insurer issues individual policies (certificates of coverage) to each member of a franchise association, then the insurer must also provide a complete copy of the group policy to the individual upon request of such member.

·        In the House version,  there was a subparagraph O.C.G.A. § 33-30-1(c)(C)(6), which stated: “The implementation of this subsection or the marketing, sale, or purchase of insurance authorized under this subsection shall not be contingent upon the promulgation of rules or regulations by the commissioner.”  This language was stricken.

·        The Committee added a new Section 3 which adds a new Code Section at 33-30-1.2 which states:  “Any franchise group plan issued on an individual basis to a member of a franchise association pursuant to the provisions of subsection (c) of Code Section 33-30-1 shall comply with the following written disclosures that must be made to individuals at the time of solicitation for the sale of insurance and upon application for such insurance: (1) That membership in the association will allow such individual to apply for insurance but that the insurer will make the determination as to acceptability for coverage based upon the insurer’s underwriting criteria; (2) That insurance may not be offered to an association member if such member does not satisfy the insurer’s underwriting criteria or insurance may be offered at a higher rate; and (3) That rates for franchise association business are not regulated in Georgia and, therefore, may be subject to unregulated increases upon renewal.”

Senate Finance Committee  

          This Committee reported out HB 492 today by Committee Substitute.  It amends the Tax Code concerning the income tax credit regarding establishing or relocating headquarters by allowing a subsidiary to apply for such and provides for a delayed implementation of state insurance premium tax credits for certified capital companies.  The bill was drafted to assist the Daimler-Chrysler and Rubbermaid businesses who are building headquarters/subsidiaries in Georgia.  The tax credit for establishing or relocating a  company’s headquarters would have certain requirements such as full time jobs with certain pay scales based on the tier level of the county.  The credit would be $2,500 for each eligible new full-time job (more than 30 hours per week) or $5,000 credit if the average wage of the new full-time job created is 200% or more of the average wage of the county in which such job is located. Previously, the law required at least 100 new full-time jobs.  The bill changes this requirement to 50 full-time jobs.  As for the change relating to premium taxes, the law currently allows a certified investor who makes an investment in a certified capital company a tax credit for the year of investment so that he or she can earn a vested credit against the state’s premium tax liability equal to 100% of the certified investor’s investment of certified capital.  The current law states that after July 1, 2005, a certified investor shall be entitled to take up to 10% of such vested tax credits in any taxable year to reduce the certified investor’s state premium tax liability for such taxable year of the certified investor, plus up to 10% of the original amount of any tax credits, some or all of which was carried forward unused per O.C.G.A. § 48-18-3(b).  The change states that this can be done after January 1, 2007.  

          It also reported out HB 544 by Committee Substitute, which amends O.C.G.A. § 48-7-103.  This bill deals with the increase of the threshold for filing monthly tax returns. Current law states that every employer whose tax withheld or required to be withheld is $200 or less per month is required to file and remit payment to the Department on or before the last day of the month following the end of the quarter.  This raises the amount from $200 to $1,000.  Additionally, every employer whose tax withheld or required to be withheld exceeds $1,000 per month and who is required to file and remit payments to the Internal Revenue Service on a semi-weekly basis shall be required to file and remit payments to the Department on a semi-weekly basis.  

          A sales tax holiday may occur.  HB 43 came out of the Committee by Substitute.  This amends O.C.G.A. § 48-8-3 and proposes that certain school supplies, clothing, footwear, computers, and computer-related accessories may be exempt from Georgia sales tax for a period commencing at 12:01 a.m. on July 31, 2003 through and concluding at 12:00 midnight on August 3, 2003.  Clothing and footwear would have to cost $100 or less (it would not include athletic or sporting gear).  It would also apply to a single computer purchase with a sales price of $1,500 or less (it would also include PDAs and handheld computers), and any children’s books and books listed on approved school reading lists for pre-kindergarten through the twelfth grade (up to $20.00 per item in addition to pens, pencils, notebooks, paper, book bags, calculators, dictionaries, and thesauruses).  

Senate Children and Youth Committee  

          This Committee reported out HB 479 which relates to child abuse protocols so that they must be consistent with those policies and procedures of the Division of Family and Children Services of the Department of Human Resources.  

Other  

          Budget Conferees are to meet on Sunday in an effort to continue to hammer out a compromise on the FY 2004 Budget.  Otherwise, Lawmakers will return on Monday, April 14, 2003 to resume their regular work.