|
|
February 6, 2004 For more information contact: 404-817-6133 404-817-6247 404-817-6170 |
|
February 6, 2004 Greetings! It was a cold, damp, dreary day in Atlanta. However, Legislators were working feverishly in an effort to get home for the weekend. It seems as if the Session should be concluding rather than slowly approaching its mid-way point. Game playing has already begun between the two chambers with the Senate reluctant to place House bills on its calendar until some Senate bills are placed on the House calendar. Vice versa in the House. More tort reform initiatives were dropped in the House with more expected. Some proposals are Democratic Leadership ones (HB1396-1402); others are GHA/MAG proposals, HB 1419-1422. Many lobbyists were either reading new legislation or working Legislators' nerves to sign upcoming pieces of legislation to be introduced. Floor News The House calendar was short with only three bills. HB 340 passed by a vote of 94 to zero. It proposes to remove an old provision in Georgia's law which requires the Department of Public Safety to provide the warden at Georgia State Prison with an automobile. HB 618 also cleared the House. It will establish a retirement system for the State's magistrate court judges. This Magistrate Retirement Fund will be overseen by a seven person Board of Commissioners with five of these Commissioners currently serving as full-time chief magistrates and who are also members of the retirement fund. All Commissioners would be appointed by the Governor. In order to participate, these judges would contribute $105 monthly to the fund. Additional dollars for this retirement system would be generated from an additional $3 filing fee assessed on cases handled by magistrate courts. To collect benefits, Members of the Fund must be sixty years of age; they also could not collect such retirement while still serving on the bench of these courts. There would be a formula to determine such participation, based upon credible service. To "vest" in this retirement system, Members would be required to have eight years of service, but they will only be allowed to claim a maximum of 20 years credible service in calculating any benefits. The House also passed HB 794 which provides for ad valorem exemption to the Southern Legislative Conference for its regional headquarters. Apparently, the "SLC" will build new office space in Atlanta. The Senate had several bills. One of interest which cleared was HB 1063 which amends Title 40 and creates a new definition of "motorized cart." Rep. Westmoreland introduced this legislation. It also provides an exemption to persons from driver's license requirements when operating motorized carts under certain circumstances and changes certain provisions relating to authority of local bodies regarding motorized carts and crossing of streets under jurisdiction of the Department of Transportation. The legislation defines "motorized cart" as "every motor vehicle having no less than three wheels and an unladen weight of 1,300 pounds or less and which cannot operate at more than 20 miles per hour." Sen. Tommie Williams' legislation, SB 436, concerning water also passed. This legislation creates in O.C.G.A. § 2-6-52 an "Agricultural Water Conservation Incentive Program." It will be developed, implemented, and supervised by the State Soil and Water Conservation Commission for the purpose of providing incentives to agricultural producers to foster water conservation and enhance water quality. Such participation will be voluntary and will include all 159 counties in the State and the 40 soil and water conservation districts. There will be priority designations for inclusion in the program made under the authority of the State Soil and Water Conservation Commission. Additionally, areas will be included in the program as funds are appropriated and such technical assistance becomes available from the local soil and water conservation district or the State Soil and Water Conservation Commission. New Legislation HB 1369 – Rep. Franklin has proposed reviewing the academic performance of a HOPE scholarship recipient at the conclusion of every 18 quarter hours or 12 semester hours for continuation of such scholarship. This would require a cumulative grade point average of at least 3.0. Currently, this is done every 45 quarter hours or 30 semester hours. This was assigned to the House Committee on Higher Education. HB 1374 – Rep. Ashe and others have proposed providing an income tax credit with respect to teleworking. This amends O.C.G.A. § 48-7-29.9. It defines "eligible ongoing telework expenses" as "expenses incurred, up to a limit of $500 per year for each participating employee, pursuant to a telework agreement to enable a participating employee to continue to telework during the first five years after entering into a telework agreement. Such expenses shall include, but not be limited to, monthly fees for access to internet and telecommunications services, including applicable taxes." It also proposes some "eligible start-up telework expenses" for the participating employee. This would include expenses up to $5,000 for things such as purchases of computers, computer related hardware and software, modems, data processing equipment, telecommunications equipment, and all related delivery, installation, and maintenance fees. The bill outlines how this telework agreement and operating rules/guidelines must operate for such a tax credit to be provided to a taxpayer. A taxpayer is proposed to be allow a tax credit imposed for the eligible expenses of up to 25% of the eligible telework expenses incurred (it requires the employee to work at least five days per month); 75% credit for those who work 16 days per month; and 100% credit for at least 18 days per month from a tier 1 or 2 county. Employers would also get a credit for up to 100% of the cost, up to a maximum credit of the lesser of $50 per employee or $40,000 per employer, of preparing the assessment and conducting the pilot program. However, employers would be required to complete the pilot program outlined in the legislation. HB 1376 – Rep. Dodson and others have proposed amending Chapter 6 of Title 31 to change the capital expenditure thresholds for healthcare facilities to $1.5 million (currently this is $1.4 million with the cost inflator factor). It also includes diagnostic and other imaging services as diagnostic, rehabilitation, and treatment centers. It deletes an exception in current Certificate of Need law for ambulatory surgery centers which are in a physician's office and requires indigent and charity care services in such diagnostic, treatment, and rehabilitation centers (this indigent and charity care requirement will be a 3% commitment of adjusted gross revenues on care and treatment for persons having an income level corresponding to more than 125% of the federal poverty guideline but who have no other government or private health insurance support). It will also require financial and utilization reporting by all health care facilities (currently, the physician-owned, single specialty ambulatory surgery centers are not required to report such data. This will also apply to diagnostic, treatment, and rehabilitation centers). It also proposes allowing an exemption for "any person who, on or before the effective date of this subsection, has offered or developed a diagnostic or other imaging service in a diagnostic, treatment or rehabilitation center or performed surgery in the offices of an individual private physician or group practice of physicians in such a facility owned, operated, or utilized by such physicians who: 1) are of the same surgical specialty; and 2) incurred a total capital expenditure associated with the construction, other development, or other establishment of such clinical health service in an amount less than $1,400,000, shall be exempt from the provision of this chapter requiring a certificate of need for such facility." This bill has seen controversy even before its introduction and is in response, in part, to HB 791, another bill dealing with ambulatory surgery centers, by Rep. Porter. HB 1377 – Rep. Mills has proposed creating a special license plate for the promotion of organ and tissue donation organizations in Article 2, Chapter 2 of Title 40. Georgia already has close to 200 special license plates on vehicles. HB 1378 – Rep. Howard and others have proposed amending Article 3 of Chapter 7 of Title 44 to provide that if a writ of possession is issued against a tenant and the tenant does not appeal or remove the tenant's personal property within a certain period of time (seven days), then such personal property shall be deemed abandoned and become the landlord's property. It requires that a summons shall include a notice to the tenant of the provisions in O.C.G.A. § 44-7-60. HB 1379 – Rep. Dodson and others have proposed a change to the profession of industrial hygiene in order to create a specific act in Title 43. It proposes that no person may hold himself or herself out as a certified industrial hygienist, industrial hygienist in training, industrial hygienist, construction health and safety technologist, or occupational health and safety technologist unless he or she complies with the requirements in this proposed Act. If that person does, then he or she will be engaging in an unfair or deceptive act or practice as defined in Title 10. The bill establishes education and experience requirements. HB 1381 – Rep. Harrell and Rep. Howard have proposed amending Article 4 of Chapter 8 of Title 31 to change the definition of abuse to include physical, psychological, or emotional injury. Current law in O.C.G.A. § 31-8-81(1) defines "abuse" as "any intentional or grossly negligent act or series of acts or intentional or grossly negligent omission to act which causes injury to a resident, including, but not limited to, assault or battery, failure to provide treatment or care, or sexual harassment of the resident." HB 1384 – Rep. Sinkfield has authored this measure amending Article 2 of Chapter 7 of Title 48 relating to computation of income taxes. It provides for income exclusions and tax credits relating to individual development accounts. It specifically proposes in O.C.G.A. § 48-7-20.9(a): There shall be allowed to each charitable donor making a contribution to a reserve account on behalf of an individual development account program pursuant to Article 7 of Chapter 8 of Title 50 an income tax credit with respect to the income taxes imposed under this chapter in an amount equal to 50 percent of the total monetary contribution paid during such income tax year by a charitable donor to the reserve account on behalf of an individual development account program or owner in this state. HB 1385 – Rep. Fludd and others have proposed this legislation amending Article 13, Chapter 1 of Title 7 relating to licensing of mortgage lenders and mortgage brokers in order to provide for authorization of mortgage loan officers; provide for an exemption; provide for the prohibition of transacting business without a license; provide for department regulations relating to education and experience requirements for loan officers; etc. HB 1386 – Rep. McClinton and colleagues have offered this change to O.C.G.A. § 48-8-3 concerning sales and use tax exemptions in order to provide for a sales tax exemption for tangible property used in the construction of a symphony hall which is a 501(c)(3) entity. HB 1387 – Rep. Heard and others have offered this change to Title 5; Chapter 15 of Title 9; and Chapter 6 of Title 13. It deals with appeals from awards of attorneys' fees or expenses of litigation; costs in civil actions which are due to the prevailing party; and costs and fees in contract cases. It adds a new O.C.G.A. § 9-15-16: (a) Except as otherwise provided
by law, in any civil action in any court of record of this state, reasonable and
necessary attorney's fees and expenses of litigation shall be awarded to the
prevailing party or parties, unless the court orders otherwise for good cause
shown. In a case where the damages are apportioned between or among the
parties, the fees and expenses shall also be apportioned by the court, unless
the court orders otherwise for good cause shown. Such award shall be made upon
final disposition of a case. HB 1389 – Rep. Greene-Johnson and others have authored this change proposed for Article 1 of Chapter 8 of Title 16. Among its proposals includes a definition and the provision for punishment for certain crimes relating to repairs or improvements of real property. It also mandates written contracts for certain contracts for repairs or improvements. (A contract will not be enforceable if it is more than $500 and not in writing sufficient to indicate that a contract has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker.) HB 1393 – Rep. Mobley and other colleagues have proposed changing Chapter 13 of Title 9 concerning executions and judicial sales to prohibit the sale of tax executions. See O.C.G.A. § 9-13-36: HB 1394 – Rep. Harbin and others are proposing changes to Chapter 5 of Title 43 concerning who may serve as an athletic trainer. It deletes current law which states that "the term "athletic trainer" shall not include any student, teacher, or other person who serves as an athletic trainer for an elementary school or high school, either public or private, within this state." It also amends O.C.G.A. § 43-5-7 so that "no person shall hold himself or herself out as an athletic trainer or perform, for compensation, any of the activities of an athletic trainer, as defined in this chapter, without first obtaining a license under this chapter; provided, however, that nothing in this chapter shall be construed to prevent any person from serving as a student-trainer, assistant-trainer, or any similar position if such service is not primarily for compensation and is carried out under the advice, consent, and supervision of a physician or a licensed athletic trainer." HB 1396 – Rep. Porter and others have also proposed amending Chapter 2 of Title 51 to provide that hospitals shall be insulated from liability for the acts of emergency room physicians who are independent contractors providing emergency healthcare services in a hospital emergency room. These independent contractors are not employees or actual agents of the hospital. The hospital would not be liable for civil damages as a result of an act or omission by the ER physician who is an independent contractor of the hospital if the hospital provides notice that such physician is an independent contractor and if the ER physician is insured (he or she must have liability insurance coverage of $ 1 million per individual claim; and $3 million aggregate). The notice required must be: 1) posted conspicuously in all admitting areas of the hospital, consisting of a sign at least two feet high and two feet wide with print at least two inches high; 2) published at least annually in a newspaper of general circulation in the area; and 3) in substantially the following form: (Name of hospital) shall not be responsible for the actions of emergency room physicians in (name of hospital's) emergency room. The emergency room physicians are independent contractors and are not employees of the hospital." HB 1397 – Rep. Porter and others have also authored this change to O.C.G.A. § 24-9-67 concerning admission into evidence of the opinions of expert witnesses and provide for qualifications of these expert witnesses. It follows the federal requirements in Daubert and fairly closely mirrors HB 1398 noted below. HB 1398 – Rep. Porter has offered this amendment to O.C.G.A. § 24-9-67 to provide for standards in admitting expert testimony in professional malpractice actions. It defines "professional malpractice action" as "an action involving any profession listed in Code Section 9-11-9.1, including but not limited to medical malpractice actions as defined in Code Section 9-3-70." This does have provisions following the federal requirements as found in Daubert. HB 1399 – Rep. Porter also authored this proposal amending Article 5 of Chapter 11 of Title 9, relating to depositions and discovery, and Article 3 of Chapter 9 of Title 24, relating to examination of witnesses. It specifically changes certain provisions relating to medical malpractice civil actions and creates provisions regarding expert opinions in medical malpractice civil actions and changes provisions relating to opinions of experts. It also amends provisions concerning discovery, scheduling of matters and trials, participation in alternative dispute resolution, and attorney fees and expenses in medical malpractice civil actions. HB 1400 – Rep. Powell has proposed the enactment of the "Frivolous Litigation Prevention Act." These changes would be included in Title 9 and would apply to civil practice. There are a number of proposals including signing of pleadings and verification. Currently, every pleading of a party represented by an attorney must be signed by a least one attorney of record, with the person's individual name and address. This proposes that this must be done, or if the party is not represented by counsel, then the party must sign. Additionally, one must also provide not only the name and address but also the telephone number. If a pleading or document is unsigned, it will be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. There is also a section on representations to the court. Sanctions are also included, if after notice and a reasonable opportunity to respond, the court determines there has been a violation. It also proposes changes to how an attorney or a party may respond to an interrogatory. If an objecting party to the interrogatory, that party shall state the reasons for the objection and shall answer to the extent the interrogatory is not objectionable. It also amends law governing the option to produce business records in O.C.G.A. § 9-11-33(c) so as to require "a specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer can be ascertained." There is also a change to O.C.G.A. § 9-11-34(b)(2) concerning production of documents and things and entry upon land for inspection. In the response, it shall state with respect to each item or category that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the objecting party shall state the reasons for objection and shall respond to the extent the request is not objectionable. Additional changes are proposed for failure to make discovery, motion to compel, sanctions, and expenses in O.C.G.A. § 9-11-37. There are also changes proposed for O.C.G.A. § 9-15-14. "In any civil action in any court of record of this state, sanctions under subsection (e) of this Code section shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position, or when another party has unreasonably and vexatiously expanded the proceedings." Further, sanctions "shall be assessed against the party asserting such claim, defense, or other position, against that party's attorney, against any other person or entity that has taken an active part in the initiation, continuation, or procurement of the conduct at issue, or against all of them in such a manner as is just." The bill outlines how this motion for sanctions must be made and what types of monetary sanctions and additional penalties may be imposed. HB 1401 – Rep. Parrish and others have proposed amending O.C.G.A. § 48-7-29 to provide for an additional income tax credit with respect to rural physicians and their medical malpractice insurance premiums. A person qualifying as a rural physician will be allowed a credit against the tax imposed by O.C.G.A. § 48-7-20 with respect to medical malpractice insurance premiums in an amount not to exceed $25,000 or the amount actually expended for such premiums during the taxable year, whichever is less. Additionally, no tax credit may exceed the taxpayer's income tax liability. Unused credit will not be allowed to be carried forward to apply to the succeeding year's liability. HB 1402 – Rep. Porter has offered this legislation as a part of the "tort reform" package. It proposes amending O.C.G.A. § 33-9-21 to require any medical malpractice insurers to file rates, rating plans, rating systems, and underwriting rules. Currently, property and casualty insurers must do so for personal private passenger motor vehicle insurance. Additionally, when a rate filing for a medical malpractice insurer is submitted to the Department of Insurance and results in an increase of more than 10%, the Commissioner for the Department must notify the public of the rate increase and hold a public hearing to determine the "appropriateness" of the increase. HB 1403 – Rep. Bordeaux has also proposed amending O.C.G.A. § 33-9-21.3 to prohibit the retention of excess loss reserves for any claim or potential claim for more than 90 days after the amount of liability for such claim or potential claim has been established, whether by final judgment, settlement agreement, or otherwise. This provision will be enforced through O.C.G.A. § 33-9-23, relating to examination of insurers. SB 485 – Sens. Hall and Cheeks have proposed changes to the Georgia Medical Center Authority. This would alter O.C.G.A. § 20-15-3(h) and assign the Authority to the Dept. of Community Affairs for administrative purposes. SB 488 – Sen. Tanksley and others have proposed amending the "Georgia Securities Act of 1973" in Chapter 5 of Title 10. This is an apparent attempt to conform Georgia's laws with applicable federal laws including the Uniform Securities Act of 2002; the Sarbanes-Oxley Act of 2002 and others. It proposes stronger investor protections and provides for variable annuities and viatical investments. There are also provisions to provide for dealer financial statements and for issuer regulatory compliance. There are also additional enforcement procedures and sanctions as well as emergency orders. Additional penalties for violations, both criminal and civil, are also included. SB 489 – Sen. Unterman has authored this bill prohibiting construction of high-voltage electrical lines within a 150-foot distance of a school. SB 491 – Sens. Williams and others have proposed amending O.C.G.A. § 48-7-127 to provide that it shall be illegal for any person knowingly to coerce, induce, or threaten an individual falsely to declare himself or herself to be an independent contractor or falsely to claim that an individual employed by such person is an independent contractor in order to avoid or evade the withholding and payment of taxes. Committee News There was little activity today. The House Rules Committee did meet in the morning in order to set its calendar for Monday. The House will hear: HB 79 – A bill dealing with education and sales to county school boards by members; HB 498 – An employees' retirement bill providing credit for certain temporary full-time service; HB 585 – A bill dealing with used car dealers' surety bond; HB 1237 – Another bill dealing with employees' retirement (Housing and Finance Authority); and HB 1266 – A bill eliminating the "sunset" provisions for certain renal dialysis facilities. Other News There are additional tort bills, once worked on by the Georgia Coalition for Civil Justice Reform, which were dropped in the hopper late Friday. No further details were available on these bills as they had not been printed: HB 1419 – Rep. Pam Stephenson author. This deals with the elimination of recovery of non-economic damages when a patient receives care in a dedicated emergency department (EMTALA defined) and seeking treatment for a medical condition and based on any alleged negligence occurring within the first 24 hours of that treatment. HB 1420 – Rep. Richard Royal author. This modifies State law on expert witnesses and establishes qualifications by requiring anyone who testifies as an expert to be licensed to practice in, and to actively practice or teach in, the same specialty or area as the defendant for at least three of the last five years. This is a following of the Daubert standard. HB 1421 – Rep. Channell author. This abolishes joint and several liability and provides for comparative negligence. If a plaintiff is found 50% or more at fault (that is, responsible) for his or her own injury, then the plaintiff may not recover any damages. HB 1422 – Rep. Dodson author. This is the bill placing a $250,000 cap on non-economic damages in a medical malpractice action. If you have any questions regarding this Report, please contact Stanley S. Jones, Jr., Jeffrey C. Baxter, or Helen Sloat. |
|
