February 26, 2001

For more information contact:

Stanley S. Jones, Jr.

404-817-6133

          Greetings again from under the Gold Dome.  Over the weekend, the House and Senate Budget Conferees met to hash out the final details of the FY 2001 Supplemental Budget – days were long and tempers sometimes flared as Legislators often had to sacrifice certain projects in order to gain other positions.  At one point of the negotiations, the Senate Conferees just walked out and the House Conferees noted that perhaps they should just stage a 'sit in’.  The Governor, Lt. Governor and Speaker were on premises as Legislators negotiated the various intricacies of the Budget.  Advocates were also present – including various agency and department heads - in order to help protect funds already placed in the Supplemental Budget.  Days are winding down so any items that need to cross houses must be accomplished soon.  Otherwise, legislation will be ‘dead’ or will have to be attached to some other piece of legislation which is still moving.

 Floor Activity 

          Some of the bills on the House Calendar included the following: 

          HB 154 – This is one of the bingo bills introduced this Session.  Rep. Tom Buck introduced this bill which amends O.C.G.A. § 16-12-60 by adding a new subsection (f) which makes it unlawful to award prizes in excess of $1,300 (either cash or gifts equivalent to such during any calendar day) and $2,600 (either cash or gifts equivalent to such during any calendar week) – this raises the current law from $1,000 and $2,200, respectively.  Further the bill states that: “it shall be unlawful to exceed such limits at any combination of locations operated by a single licensee or such licensee's agents or employees.  It shall be unlawful for two or more licensees to pyramid the valuation of prizes in such manner as to exceed the limits contained in this Code section.  The term 'equivalent value' shall mean the fair market value of the gift on the date the gift is given as the prize in a bingo game.” 

          HB 385 – This is another motor vehicle bill which has been introduced this Session.  This is actually the Governor’s proposal being carried by Rep. Charlie Smith.  The bill addresses consent to tests at O.C.G.A. § 40-5-55 which is amended in the Bill: 

          “Any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public.  Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.  The test or tests shall be administered at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391.  The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities.  Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.”

          The bill also addresses limits associated with driving under the influence and violations and fines for these issues.  Further the bill attempts to get at the issue of ‘road rage’ by adding a new Code Section at 40-6-397 which states: 

“(a) A person commits the offense of aggressive driving when he or she operates any motor vehicle with the intent to annoy, harass, molest, intimidate, injure, or obstruct another person, including without limitation violating Code Section 40-6-42, 40-6-48, 40-6-49, 40-6-52, 40-6-123, 40-6-184, 40-6-312, or 40-6-390 with such intent.
(b) Any person convicted of aggressive driving shall be guilty of a misdemeanor of a high and aggravated nature.”

          In the Senate, there were also a number of bills on its Calendar.  All House bills are currently being held.  

          SB 53, the Fair Health Care Billing Act of 2001, was on the Senate’s Calendar.  SB 53 was on the Floor as a Floor Substitute; the bill passed by a vote of 48 yeas to zero nays.  The bill was authored by Sen. Charles Walker and numerous amendments were made to the bill from its original form.  SB 53 amends the Code at O.C.G.A. § 10-1-393 by adding a new subparagraph at (30.1) which states that “failing to comply with the following provisions in connection with a contract for health care services between a physician and an insurer which offers a health benefit plan under which such physician provides health care services to enrollees” would be an unfair practice in consumer transactions.  Further, the bill states that “every contract between a physician and an insurer which offers a health benefit plan under which that physician provides health care services shall be in writing and shall state the obligations of the parties with respect to charges and fees for services covered under that plan when provided by that physician to enrollees under that plan.  Neither the insurer which provides that plan nor the enrollee under that plan shall be liable for any amount which exceeds the obligations so established for such covered services.”  Also, it states that “neither the physician nor a representative thereof shall intentionally collect or attempt to collect from an enrollee any obligations with respect to charges and fees for which the enrollee is not liable and neither such physician nor a representative thereof may maintain any action at law against such enrollee to collect any such obligations.”  If passed into law, this would apply to health benefit plan contracts issued, delivered, issued for delivery, or renewed in Georgia on or after July 2, 2001.  In addition, a physician would be disciplined under the Composite State Board of Medical Examiners if he or she failed to inform a patient, in a timely manner, that the physician has received the results of a laboratory test.  This would be reflected in the Code at O.C.G.A. § 43-34-37 (a)(11.1). 

Also on the Senate’s Calendar was SR 86, which is a Constitutional Amendment proposed by Sen. Burton.  This would propose that the General Assembly provide by law “for a program of indemnification for any emergency medical service pilot, transport nurse, technician, paramedic, or communications specialist who is employed by a nonprofit corporation or association and who, on or after January 1, 2003, is killed or permanently disabled in the line of duty while at the scene of an emergency or transporting a patient in need of medical care to a medical facility or returning therefrom.  Funds shall be appropriated as necessary for payment of such indemnification or for the purchase of insurance for such indemnification or both.”

          SR 142 was also on the Senate’s Calendar.  This Resolution, authored by Sen. Steve Thompson, would create Joint Comprehensive Water Plan Study Committee and the Water Plan Advisory Committee.  This is an effort, among other things, to address Georgia’s growing issues relating to water and the droughts from 1998-2000 which caused shortages.  It is the hope that this will help plan for a safe and secure water supply for Georgia.  This resolution passed with 49 yeas to zero. 

Newly Introduced Legislation 

HB 724 – Reps. Henson, Watson, and others have authored this bill which amends O.C.G.A § 20-2-55(1) concerning county boards of education by authorizing them to provide group medical and dental insurance for its members who elect to participate.  Also, such interest may be provided through (1) a group policy which is secured by the local school district; (2) a group policy secured by several local school districts; (3) a policy secured by an organization of local school boards; or (4) in accordance with O.C.G.A. § 45-18-5 “providing for the inclusion of members of the local board of education and their spouses and dependents within any health insurance plan or plans established under Article 1 of Chapter 18 of Title 45.”  The bill also addresses the costs associated with such coverage: “A board providing such insurance shall pay no greater percentage of the cost of that insurance than the percentage of the cost paid as an employer contribution by the state for the health insurance plan for state employees pursuant to Article 1 of Chapter 18 of Title 45. The remainder of such insurance costs, and all the costs of any coverage for family members, shall be paid as an employee contribution by the board member.”  The bill also amends O.C.G.A. § 45-18-5(c.1) to allow for such coverage.  The bill has been forwarded to the House State Planning and Community Affairs Committee. 

HB 733 – Rep. Hugley and others have introduced this bill creating, at O.C.G.A. § 43-24A-1, the “Massage Practice Act.”  Massage therapists would be governed by a seven-member Board.  Among the bill’s provisions includes the requirements for licensure at O.C.G.A. § 43-24A-10:  

“(a) Any person is qualified for licensure as a massage therapist under this chapter who:
(1) Is at least 18 years of age or has received a high school diploma or general educational development (GED) diploma;
(2) Has completed a course of study at a board approved massage school or has completed an apprenticeship program that meets standards adopted by the board; and
(3) Has received a passing grade on an examination specified by the board.
(b) Every person desiring to be examined for licensure as a massage therapist shall apply to the board in writing upon forms prepared and furnished by the board.  Applicants may take an examination administered by the board only upon meeting the requirements of this Code section as determined by the board.
(c) Upon an applicant's passing the examination and paying the initial license fee, the board shall issue to the applicant a license, valid until the next scheduled renewal date, to practice massage.
(d) The board shall adopt rules:
(1) Establishing a minimum training program for apprentices; and
(2) Specifying licensing procedures for practitioners desiring to be licensed in this state who hold an active license and have practiced in any other state, territory, or jurisdiction of the United States or any foreign national jurisdiction which has licensing standards substantially similar to, equivalent to, or more stringent than the standards of this state.” 

HB 737 – Rep. Tom Bordeaux has dropped this bill amending O.C.G.A § 9-15-14(g) relating to litigation costs and attorney's fees assessed for frivolous actions and defenses.  It states: “Attorney's fees and expenses of litigation awarded under this Code section in a prior action shall be treated as court costs with regard to the filing of any subsequent action.” 

HB 741 – Rep. Ehrhart has also dropped this measure into the hopper.  This bill pertains to judgments in civil cases and amends O.C.G. A. 9-11-55 and changes current law on opening default cases: 

“(a) When case in default; opening as matter of right; judgment.  If in any case an answer has not been filed within the time required by this chapter, the case shall automatically become in default unless the time for filing the answer has been extended as provided by law. The default may be opened as a matter of right by the filing of such defenses within 15 days of the day of default, upon the payment of costs.  If the case is still in default after the expiration of the period of 15 days, the plaintiff at any time thereafter shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages; provided, however, in the event a defendant, though in default, has placed damages in issue by filing a pleading raising such issue, either party shall be entitled, upon demand, to a jury trial of the issue as to damages.  An action based upon open account shall not be considered one for unliquidated damages within the meaning of this Code section.
(b) Waiver of jury trial in certain instances.  Notwithstanding subsection (a) of this Code section, if a default judgment has been rendered at the discretion of the court pursuant to subparagraph (b)(2)(C) of Code Section 9-11-37, relating to compelling discovery, the judgment against the disobedient party shall be conditioned upon a waiver by the opposing party of a jury trial of any and all remaining issues.
(c) Opening default.  At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court.  In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.”

HB 743 – Rep. Pam Stanley and others have dropped this bill into the hopper creating the “Substance Abuse and Crime Prevention Act of 2001.”  Among the bill’s provisions includes the fact that “any person who is convicted of the personal possession or use of a controlled substance or marijuana is eligible for probation.  The court shall suspend the imposition or execution of sentence and place such person on probation.”  Further, the bill defines “personal possession or use of a controlled substance or marijuana pursuant to this article” would not include “possession for sale, production, manufacturing, or transportation for sale of any controlled substance or marijuana.”  The bill further outlines what happens in a second and third conviction: “If a person is convicted a second time of personal possession or use of a controlled substance or marijuana, the court may include additional conditions of probation it deems necessary, including intensified drug treatment, community service, intensive probation, home arrest, or any other action within the jurisdiction of the court.”  In a third conviction, of personal possession or use of a controlled substance or marijuana, the person would not be eligible for “probation under the provisions of this article but instead shall be sentenced pursuant to the other provisions of this chapter.”  This bill is apparently modeled after an Arizona law.

SB 235 – Sen. Carol Jackson and others have authored this bill amending Title 10 of the Code relating to commerce and trade.  This bill would propose to include viatical settlement contract within the meaning of security.  Further, the bill provides for changes in the definitions of dealer, limited dealer, limited salesman, and salesperson; a definition of viatical settlement contract, viatical settlement broker, and viatical settlement company; provides for changes in the registration requirements for dealers, salespeople, investment advisers, and investment adviser representatives; provides for changes in the registration of securities by notification; changes provisions relating to small issuer registration and nonprofit issuer registration; provides for regulatory authority for the commissioner of securities; changes the provisions related to suspension of registration; provides for exemptions from registration requirements for viatical settlement contracts; provides for privileged communications between the commissioner and attorneys employed by the commissioner; provides for the commissioner to delegate authority to the assistant commissioner to preside at administrative hearings; changes the provisions related to unlawful practices; provides a procedure for the collection of civil penalties; and changes the provisions related to notice of opportunity for hearing.  Some of the definitions included: 

‘Viatical settlement broker’ would mean “an individual, partnership, corporation, or other entity which is in the business of arranging or facilitating, in return for a fee, commission, or other remuneration, the transfer, assignment, or sale of all or portions of the death benefit or ownership of the death benefit or ownership of a life insurance policy or certificate to third persons for consideration which is less than the death benefit thereof.”

‘Viatical settlement company’ would mean an “individual, partnership, corporation, or other entity which is in the business of acquiring life insurance policies from persons who own or are covered under individual or group life insurance polices for the purpose of assigning, transferring, or selling all or portions of the death benefit or ownership of said policies to third persons for consideration which is less than the death benefit thereof.”

‘Viatical settlement contract’ would mean “an agreement for the purchase, sale, assignment, transfer, devise, or bequest of any portion of the death benefit or ownership of a life insurance policy or certificate for consideration that is less than the death benefit of the life insurance policy or certificate.”  Such contract would not include:

“(A) The assignment, transfer, sale, devise, or bequest of a death benefit, life insurance policy, or certificate of insurance to a viatical settlement company;
(B) The assignment of a life insurance policy to a bank, savings bank, savings and loan association, credit union, or other institution licensed under the laws of any state or the United States as collateral for a loan;
(C) The obtaining of accelerated benefits from the issuer pursuant to the terms of a life insurance policy issued in accordance with the laws of this or another state; or
(D) The assignment of a life insurance policy by an individual who enters into no more than one agreement in a calendar year regarding the transfer of life insurance policies insuring the life of only one person for consideration that is less than the death benefit, unless any third party receives, directly or indirectly, any fee, commission, or other remuneration in connection with said assignment.”

SB 238 – This bill has been dropped by Sen. Connie Stokes which proposes to amend Chapter 7 of Title 31 of the Code relating to the regulation of hospitals and related institutions in order to change the provisions relating to definitions regarding review organizations and change the provisions relating to confidentiality of information shared between a review organization and a governmental agency. 

SR 232 – Sen. Mike Polak has dropped this Resolution which proposes to create the Senate Underage Drinking Study Committee. 

Committee Activity 

House Insurance 

          This morning, the Insurance Subcommittee met to hear a bill relating to insurance coverage for autism.  HB 565 was not voted on at this meeting and another meeting is expected later this week.  HB 565 was authored by Rep. Mark Burkhalter along with Insurance Committee Chairman, Rep. Jimmy Lord.  The bill amends the current law at O.C.G.A. § 33-24-28.1 by adding a new subparagraph: 

“(b.1) To the extent that an insurer provides coverage for mental disorders under this Code section, then such insurer shall, pursuant to this Code section, include treatment for mental disorders which are, directly or indirectly, caused or contributed to by autism.  For purposes of this Code section, 'autism' means a developmental neurological disorder, usually appearing during the first three years of life, which affects normal brain functions and is manifested by compulsive, ritualistic behavior and severely impaired social interaction and communication skills.” 

Testimony was given by the Georgia Association of Health Plans in opposition to the bill.  Most health plans provide mental health coverage as optional coverage but prohibit the coverage of autism.  The ‘rub’ with the bill appears to be the costs associated with providing for cognitive therapy, occupational therapy, speech therapy, etc.  Some health plans provide medication and medication management for patients with autism.  There was a good deal of discussion about whether autism was actually a ‘neurological’ disorder rather than a DSM4 condition (mental health condition).  One mother of an autistic child claimed that a person with autism has a brain unlike others – it is structured differently.  She also indicated that about 17,000 persons in Georgia were affected by this problem.  Children usually appear normal until the age of two when autism appears – there are physical manifestations of the disease including seizures, repetitive behaviors, sensory problems (cannot detect heat or pain in the same way as normal persons), etc.  This mother claimed that insurance companies would not pay for any coverages for autistic children – she has to argue for every claim.  Rep. Burkhalter claimed that the bill is not a mandate; no new coverage is required.  The problem, according to Rep. Burkhalter, is that a person may have benefits but cannot get insurance companies to allow them access to such.  Testimony also produced some statistics:  

If a child is treated (medications and all therapies), 47% will have normal lives

If a child is treated (medications and all therapies), 42% will have improved lives

11% of those treated will have no change in their behavior.

Eleven other states have laws allowing treatment for autistic children.  In their closing remarks, the Georgia Psychological Association supported the bill – medications, according to its representative, Ms. Pat Gardner, are not enough.  Even the health plans providing two months of behavioral, speech or other therapies, is not enough – long term therapy is needed for these children in order that they may mainstream into society. 

The Subcommittee will hear this bill again after it gathers additional information. 

Judiciary Committee 

          The House Judiciary Committee had a very full agenda with more than ten bills to deal with.  Some of these bills included the Safe Place for Newborns Act, HB 360, and Speaker Murphy’s insurance liability bill, HB 478.  The Speaker’s bill, HB 478, in last minute discussions, finally reached a compromise between the insurance industry and the trial lawyers.  The bill was pulled from the House Judiciary Committee’s agenda and will be taken up in a meeting on Tuesday.  As of late today, HB 360 had not been passed out of the Committee. 

House Industry Committee 

          HB 377, a bill which would require every manufacturer, distributor, wholesaler, retailer, or seller of tires shall disclose to the public, through the retailer or seller of such tires, the national adjustment rates of all tires.  The bill defines “adjustment rate of tires” as the percentage rate of tires taken back by a manufacturer, wholesaler, distributor, retailer, or seller as adjusted tires in relation to the total number of manufactured tires which are the same or similar in design and manufacture to the adjusted tire.  At the time of the House Industry Committee’s Subcommittee on General Business met to discuss the bill, the dealers had amended the bill in which they would not have to be responsible for reporting such information.  Another meeting is anticipated on this bill either on Tuesday or Wednesday morning in order to keep the bill alive if it is to proceed. 

Senate Insurance and Labor Committee 

          The Senate Insurance and Labor Committee also met this afternoon and took up SB 131, the Senate’s version of the centralized healthcare provider credentialing bill (the House version is HB 356).  The bill was presented to the Committee and MAG Mutual spoke in favor of the bill.  Kirk McGhee, a representative of the Georgia Association of Health Plans, spoke out against the bill stating that health plans would still have to go about the costly method of verifying physicians’ credentials.  Mr. McGhee did point out that the health insurance industry was supportive of the concept of a uniform form for the healthcare providers to use.  Sen. Connie Stokes did inquire if the bill would help the situation – i.e., keep providers from having to duplicate necessary forms, eliminate time/money issues for health plans, etc.  Mr. McGhee explained that it would be more costly for the health plans as another layer of bureaucracy was being added.  Prior to the meeting, most everyone interested in the bill had been told that the Chairman of the Committee, Sen. Robert Brown, had every intention of moving the bill along to Senate Rules.  

          Sen. Jackson’s bill on viatical settlements, SB 235, was held in the Committee at the author’s request.  Apparently, enough opposition and concern about the bill was raised that the bill will now be studied over the summer. 

          The other bill on the Committee’s agenda was SB 148, the Senate’s version of the “Northside v. St. Joe fight” but expands the number of miles from one to ten.  This bill deals with insurance and negotiations of contracts and amends the Code at O.C.G.A. § 13-8-2: 

"(c)(1) As used in the subsection, the term 'insurer' means an insurer as defined in Code Section 33-24-57.1 or a managed care entity as defined in Code Section 33-20A-3.
(2) Any contract for health care services executed on or after July 1, 2001, including any contract for health care services renewed or amended on or after that date, entered into between an insurer and any hospital which is a provider of obstetric services located in a county in which more than five acute care hospitals are located and with the distance between the contracting hospital and any other hospital in the county being more than:
(A) Ten miles; and
(B) Thirty minutes driving time at any time of the day
is against public policy and is void and unenforceable when said contract, renewal, or amendment has the effect of interfering with a patient's ability to receive or obtain health care services from another hospital also located within said county that is agreeable to accept such patient under the same terms and conditions as the contracting hospital agreed with the insurer to provide such services." 

SB 148 will be rescheduled to be heard at the next Committee meeting.

Senate Health and Human Services 

          The Senate Health and Human Services Committee passed out SB 116 by Sen. Nadine Thomas which amends the law passed last Session on educational requirements for cosmetologists.  This bill cleans up the language and would allow those persons who were already enrolled in educational programs to be exempted from meeting the more stringent requirements.  

          The Committee also took up SB 181 which would allow physical therapists to be allowed direct access.  Currently, a physician must refer a patient.  The Georgia law now allows a physical therapist to ‘evaluate’ a patient but not treat a patient.  There were a number of physicians who rose in opposition to the bill – including representatives of the Atlanta Orthopaedic Society and the Georgia Orthopaedic Society.  Doctors claimed that physicians need to diagnose the patient’s problem; physical therapists cannot do that.  In order to diagnose, a history of the patient is necessary along with a physical examination and then necessary diagnostic testing such as x-rays, MRIs, CT scans, blood tests, etc.   A member, P.J. Phelps, of the Physical Therapy Association of Georgia, spoke in favor of the bill claiming that the lack of direct access was leading to skyrocketing healthcare costs.  Ms. Phelps stated that consumers were now turning to the internet and alternative medicine.  She stated that SB 181 addressed some concerns by requiring physical therapists to have at least two years of practice before having direct access to patients and another requirement in the bill would require that physical therapists report back to the patient’s physician.  There is also a requirement for increased educational standards, mandatory continuing competency evaluation, and State Board sanctions for members who work outside their scope of practice.  Ms. Phelps stated that 34 other states have direct access.  After a number of people testified, no vote was taken. 

Other News 

          Later this week, the Jefferson-Jackson Dinner will be held at the World Congress Center.  As expected, many Legislators plan on attending this very large event. 

          Also, the emergence of the National Federation of Independent Businesses legislation, HB 434, which would allow small employers and individuals to negotiate with health plans for their health benefits by eliminating the various mandates (coverage for contraceptives, chlamydia screening, mastectomy coverage, etc.) that the Legislature has passed over the years, continues to make the news.  Over the weekend, The Atlanta Journal-Constitution ran a story about the bill and the concerns that various interest groups have expressed about the legislation.  The Georgia Chamber of Commerce is supporting this bill along with the small employers.  In arguing the bill’s merits, employers believe that this will allow more insurance to be offered to groups who otherwise find it cost prohibitive – in other words, it may help lower the numbers of uninsured in the State.