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March 2, 2004 For more information contact: 404-817-6133 404-817-6247 404-817-6170 |
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March 2, 2004 Greetings from the Gold Dome! Day 28 has arrived and we are closing in on the end of the Session. Legislation must cross houses on Day 33 in order stay alive this Session. Otherwise, "vehicles" for bills will need to be found so that other legislation may be attached to "ride" out the process until the end. Floor News Here are a few highlights from the House activities: The House took up Legislation this morning in an attempt to address the recent proliferation of persons who are impersonating police officers. HB 1287 passed the House today. It imposes prohibitions on persons who use "blue lights" or other strobe lights to pull over motorists when those persons are not actually officers of the law. There were exemptions included in the language to address situations where persons are authorized for operating emergency vehicles, buses, hazardous material transport vehicles, household and industrial waste vehicles, or other vehicles with safety lights (wreckers or trailers which are used with oversized loads). Any person violating this law would be guilty of a misdemeanor punishable by imprisonment of up to one year and a fine of up to $10,000. HB 1555 also cleared the House. It proposes to eliminate a sunset provision on an alternative method for calculating unemployment benefits, and to extend the sunset on a provision by allowing the Commissioner of the Department of Labor to establish contribution rates for employers paying into the State's unemployment trust fund. The bill also proposes to allow persons who are seeking part-time work to apply for unemployment benefits. Currently, this is not allowed. Legislators were concerned that this might be another cost to the State. However, employers who utilize both full- and part-time workers contribute to the Fund; thus, there was an argument that those part-time folks should be able to collect benefits should they lose their jobs. Some thought the cost might be $2.5 million (the Fund is very large and there are some $145 million in deferred payments). The bill passed with a Floor amendment by a vote of 120 to 48. Attorneys, especially criminal lawyers, should be pleased about the passage of HB 1206. If those attorneys wish to participate in the bail bonding business, then they can now do so. Current law is that attorneys may not manage or operate such especially when acting as an attorney for that bail bond client. This bill passed by a vote of 152 to 9. Insurers will be allowed to provide refreshments (food and drink) at trainings, sales, and recruitment seminars without violating the State's anti-rebate laws. Currently, such activity is prohibited. This bill, HB 1348, passed by a vote of 171 to zero. HB 1507 passed the House by a vote of 166 to zero. This initiative seeks to expand Georgia's seed capital fund designed to boost economic development by providing investment money for startup businesses and/or to expand small businesses. Each "seed" dollar requires three other dollars from a private source or other outside monies to be used in the business development. On the Senate side, it used the afternoon to deal with the State's Supplemental Budget, HB 1180. There were seven amendments made to the bill with the discussion taking hours to complete. SB 555 also passed today. This legislation amends Title 14 regarding non-profit corporations and the use of notice by electronic transmission. Additionally, the Senate passed out SB 561 which allows for acceptance of electronic records/signatures on warranty deeds. New Legislation SB 577 – Sen. Tate has proposed an amendment to Chapter 14 of Title 43 to license electrical contractors, plumbers, conditioned air contractors, low-voltage contractors, and utility contractors. This is being proposed to address faulty workmanship, inadequate, inefficient, or unsafe installations as well as fraudulent business practices. Such would be overseen by the State Construction Industry Licensing Board. "Residential contractors" is defined as a person, persons, firm, partnership, company, corporation, or other entity that offers to undertake, undertakes, submits a bid for, express or implied, or does the work that requires the use of more than two unrelated building trades or crafts whose work the contractor shall superintend or do in whole or in part in the construction of single and multi-family dwellings not exceeding three levels above grade or at single project cost not exceeding $10,000. This was assigned to the Senate Regulated Industries and Public Utilities Committee. SB 581 – Sen. Hudgens and others have offered this change to Chapter 1 of Title 50 to provide that State and local agencies and entities shall determine what persons are eligible for services and benefits on the basis of citizenship, residency, and legality of presence in the United States. In making a determination, there will be a presumption that a service or benefit is not to be provided to persons not legally present in the United States unless the department, agency or other entity determines that: 1) the provision of such service or benefit to such persons is specifically required by law; or 2) the failure to provide such service or benefit to such persons would be violation of federal law or the Georgia Constitution." This was referred to the Senate Judiciary Committee. SB 584 – Sens. Unterman, Adelman, and Levetan have co-authored this amendment to O.C.G.A. § 45-20-51 to include as "eligible charitable organizations federated charitable organizations" with offices in Georgia which provide international health and welfare services. This will allow State employees to make such voluntary contributions from their wages and salaries. This was forwarded to the Senate Insurance and Labor Committee. SB 586 – Sen. Shafer and others have dropped this Legislation amending O.C.G.A. § 51-1-27 to provide for the degree of care expected of medical professionals in an emergency room setting. (a) A person
professing to practice surgery or the administering of medicine for compensation
must bring to the exercise of his or her profession a reasonable degree of care
and skill. The degree of care and skill required of a physician in an emergency
room setting shall be that degree of care and skill ordinarily employed by the
profession generally under similar conditions and like surrounding
circumstances. Any injury resulting from a want of such care and skill shall be
a tort for which a recovery may be had. This bill was referred to the Senate Judiciary Committee. SR 850 – Sens. Hamrick, Kemp, and Brush have proposed urging the State Superintendent of Schools and the State Board of Education to study the issue of developing and implementing a standard grading system for Georgia's K-12 public education system. SR 854 – Sens. Butler and several colleagues have proposed recognizing Equal Pay Day on March 4, 2004. This mirrors a House Resolution on this issue. SR 856 – Sen. Mullis and others have offered this Resolution to designate April of each year as Confederate History and Heritage Month and designating that the flag which flew over Georgia from 1956 until 2001 be flown over the State Capitol on Confederate Memorial day and Robert E. Lee's Birthday. SR 858 – Sen. Harp and others have proposed a resolution authorizing the Governor by executive order to establish local redevelopment commissions for the purpose of developing and directing redevelopment plans in accordance with the "Base Closure Community Redevelopment and Homeless Assistance Act of 1994." HB 1665 – Reps. Ralston and Crawford have proposed this amendment to O.C.G.A. § 48-6-69 to provide that the intangible recording tax may be prorated among the counties in which the real property is located. Currently, if any deed is to be recorded which conveys, encumbers, or creates a lien upon real property, and the property is located in more than one county, then the tax is to be paid to the collecting officer of the county in which the instrument is first recorded. This proposes to prorate such. The values must be certified under oath by the holder presenting the instrument for recording. This bill was forwarded to the House Ways and Means Committee. HB 1670 – Another version of an anti-smoking bill has been introduced. Rep. Lucas has offered this bill amending O.C.G.A. § 16-12-2 to provide that certain establishments may determine their own policies on smoking. It still makes it a misdemeanor for someone who smokes tobacco in: 1) an enclosed elevator used by or open to the public and which has no-smoking signs; 2) any place on a public transportation vehicle and which has is clearly designated by a no-smoking sign; 3) any area which is used by or open to the public and which is clearly designated by a no-smoking sign; or any area which is real property upon which is operated a day-care center, group day-care home, or family-care home as defined in O.C.G.A. § 49-5-3 during its hours of operation. It adds individual owners or operators of retail establishments, food service establishments, or bars (where alcohol is served and where food is incidental) have the right to determine their own smoking policies. Further, it states "this Code section shall preempt the entire field of legislation concerning the regulation of the use of tobacco products, and any law or regulation on the use of tobacco products enacted or promulgated by any agency or political subdivision of this state after July 1, 2004, shall be void; provided, however, that counties, municipalities, local boards of education, and other political subdivisions of this state may regulate the use of tobacco products in buildings owned or leased by such political subdivisions." This bill is less stringent than SB 507. This was forwarded to the House Governmental Affairs Committee. HB 1672 – Rep. Gardner has offered this amendment to Chapter 4 of Title 43 concerning registrations of architects and interior designers. It would allow the registration of an architect who has been registered in another jurisdiction and who has education and training substantially equivalent to that required for registration. It also establishes a new Article 3 in Chapter 4 of the same Title to create and maintain an "architect and interior designer education, research, and recovery fund." The Board must maintain a balance of "at least $100,000 in this fund from which any person, except companies when they are not principals in an architect or interior design transaction, aggrieved by an act, representation, transaction, or conduct of a registrant which is violation to this chapter may recover, by order of any court having competent jurisdiction, actual or compensatory damages, not including interest and costs sustained by the act, representation, transaction, or conduct, provided that nothing shall be construed to obligate the fund for more than $10,000 per transaction regardless of the number of persons aggrieved involved in such transaction." This was forwarded to the House Governmental Affairs Committee. HB 1674 – Rep. Dodson has offered another bill dealing with limiting liability of free health clinics in Chapter 1 of Title 51. This mirrors HB 1576 which was engrossed and HB 1204 which was defeated in Committee as it was touted as a "tort reform" bill. A "free health clinic" means a nonprofit, charitable, or eleemosynary institution or organization that voluntarily and without expectation or receipt of compensation provides health care services to person who do not qualify for Medicare or Medicaid, have no private health insurance, and who cannot afford to see a medical care professional. It proposes to grant immunity from liability, as long as such were not caused by gross negligence or willful or wanton misconduct to the free health clinic, its agent, employee, or volunteer which provides medical care professional services free of charge to a person at the person's request or a license or a licensed hospital, public school, or nonprofit organization which requests, sponsors, or participates in the providing of services free of charge under the circumstances provided for in the law. It would apply to causes of action arising on or after July 1, 2004. This was assigned to the House Health and Human Services Committee. HB 1678 – Reps. Boggs and Bordeaux have co-authored this amendment to Article 5 of Chapter 12 of Title 15. This is similar to a bill previously dropped by Rep. Bordeaux, HB 1484. It proposes to provide the State and the accused with the same number of peremptory challenges in misdemeanor and felony cases and in challenging alternative jurors. It also changes provisions relating to challenges for cause in civil cases. It also mirrors HB 1657 authored by Reps. Boggs, Bordeaux, and Campbell. This bill will be heard in the House Judiciary Committee. HB 1679 – Rep. Harrell has proposed a change to Chapter 1 of Title 31 to provide for the advisory committee on hearing in newborn infants to continue in existence until July 30, 2008 (it currently is to be repealed on July 1, 2005). The bill also proposes to increase the membership of this Council from 11 members to 18 members. This is almost identical to HB 1581 and HB 1627 which were previously introduced by Rep. Harrell on this subject. The legislation was forwarded to the House Health and Human Services Committee. Committee News The House Judiciary Committee has reported out several Substitutes on tort reform. Among those bills include HB 1400 which is the bill proposing the enactment of the "Frivolous Litigation Prevention Act." It amends O.C.G.A. § 9-11-11 concerning signature requirements on pleadings. They must be signed by at least one attorney of record in the attorney's individual name; or, if the party is pro se, then signed by that individual. Each pleading or document must also state the signer's address and telephone number. An unsigned pleading or document will be stricken unless omission of the signature is corrected within 30 days of notifying the attorney or party in writing. It also adds a new section on "representation to court" and "sanctions." If the person is found to be in violation of the certifications, then the court may impose an appropriate sanction upon the attorneys, law firms or parties which have participated in the violations. It addresses attorneys who are representing the insured. These new provisions will not apply to discovery proceedings. It also addresses how interrogatories must be answered and requires that the objecting party must state the reasons for objection to an interrogatory and must answer to the extent the interrogatory is not objectionable. The bill also amends O.C.G.A. § 9-11-33(c) which deals with the production of business records – it will require a "specification" in sufficient detail to permit the party making the interrogatory to identify and locate the records where the answer may be ascertained. A similar provision regarding production of documents is added. Additional provisions are added for award of expenses of motions (relating to motions to compel in discovery matters); this adds that if an attorney, representing the insured, to whom the provisions of this law may apply if an employee of the insurance company, then such provisions would also apply to the insurance company. The bill outlines a new process for how a motion for sanctions must be filed and awards granted to such. (It requires that the movant gives notice of intent to file such motion.)
The House Judiciary
Committee also reported out a Substitute on HB 1399. This is the bill amending
Article 5 of Chapter 11 of Title 9 and Article 3 of Chapter 9 of Title 24
regarding expert witness opinions in medical malpractice actions. This
legislation also proposes that the parties establish a joint scheduling order 30
days after the last answer is filed in civil actions setting times for discovery
and when such must be completed and establishing a date for a consolidated
pretrial order to be completed. If no agreement may be reached on such
scheduling order, the parties may file their own and the court will then dictate
an order on such. Language proposed for O.C.G.A. § 24-9-67.1: (a) In a civil
action for medical malpractice as defined in Code Section 9-3-70, the opinions
of an expert as to the standard of care of the defendant whose conduct is at
issue shall be admissible only if, at the time the act or omission is alleged to
have occurred or at the time the witness testifies, the expert witness: (1) Was
licensed by an appropriate regulatory agency to practice his or her profession
and was practicing or teaching or some combination thereof his or her profession
for at least three of the last five years immediately preceding such time; and
(2) Meets at least one of the following criteria: (A) The expert shares at least
one specialty certification with the defendant; The Speaker's oversight Committee on Tort Reform met for three hours to hear business/provider and trial attorney testimony on the several bills that the House Judiciary Committee had passed on the previous Friday, HB 1396,1399 and 1400. Both sides of the debate produced actuaries to testify about trends in premiums and the difficulty of predicting what would happen to the medical loss ratio, or the claims paid out in any particular year. A few things emerged from this discussion. The trial attorney actuary laid to rest any allegation that malpractice companies were recovering lost investments from premium increases by affirming that the companies only invested in risk averse bonds and other fixed rate investments. The providers conceded that malpractice cases that go to trial do not suffer from any shortage of expert witnesses qualified in the actual area of medical practice at issue. This focused the discussion on the insurance carriers' asserted need to spend significant sums fending off cases that do not have real issues, about $90 million per year. Some of this cost results from expert witnesses signing affidavits to begin lawsuits who do not meet appropriate standards for a trial witness. But it was also clear that some of medical issues are not known at the time a suit begins. The Committee declined to accept the provider plea to require a higher standard for the affidavits. In the end, the Committee discussed placing the three Judiciary bills in a substitute bill to be engrossed and reintroduced. Two insurance measures would also be added to this new version of tort reform. A separate bill on charitable immunity for physicians volunteering in free medical clinics would travel on its own. The new draft bill would be finalized on Wednesday. The House Judiciary Committee also reported out a Substitute on HB 1451 which amends O.C.G.A. § 15-9-60 and Chapter 3 of Title 19. It proposes to provide for premarital counseling and financial incentives to invest in such counseling. One of the bill's provisions is that it changes the application fees for marriage licenses. If applicants have undergone counseling, the fee for a marriage license is proposed to be $10. Without such counseling, the fee would be $50. The premarital counseling (four hours if done jointly; and two hours each if done separately by the couple) must be performed by: 1) a professional counselor, social worker, or marriage and family therapist who is licensed pursuant to Chapter 10A of Title 43; 2) a physician licensed under Chapter 34 of Title 43; 3) a psychologist who is licensed under Chapter 39 of Title 43; or 4) an active member of the clergy when in the course of his or her service as clergy. This counseling must be completed within 12 months prior to the application for a marriage license. In a marathon House Insurance Committee meeting, a number of bills were addressed – some in the presence of the media. Chairman Jimmy Lord conducted the meeting. The first bill on the agenda was HB 1302 which proposes to allow an employer to offer a "stripped down" version of a health plan to its employees as long as that employer has fifteen or fewer employees and that employer also offers a full policy complete with insurance mandates (there are more than 40 mandates for services such as mastectomy; birth control; colorectal cancer screening; mental health benefits; etc.) previously passed by the General Assembly. Rep. Lunsford presented HB 1302 and fielded a number of questions. These new types of policies would be more "catastrophic" policies and would cover hospitalization of an individual. There is also a requirement that the employee execute a form, which would be designed by the Department of Insurance through its rules and regulations, stating that he or she understands they are opting for a policy with less coverage if he or she so selects that option. The insurer would be required to maintain such form on file. A number of Committee members expressed concern over how the notice process would work when an individual declines coverage and what data shows that mandates are the true cost drivers of insurance. In the end, the Committee voted to pass the bill out by Substitute with an amendment made to clarify how the form to be executed by the employee would be developed by the Department of Insurance. Two Committee Members dissented - Reps. Heard and Gardner. The Insurance Committee was also to hear HB 1203, a bill brought to it by the Department of Insurance so that it may e-mail notices and orders to insurers. Due to concerns raised by Committee Members, the bill was held in an effort to work out those concerns. A Subcommittee chaired by Rep. Harper had reported out a Substitute on the bill which will probably be tweaked again before reaching the full Committee. HB 1596 also cleared the House Insurance Committee. This bill by Rep. Bordeaux is an attempt to address medical malpractice insurance premium notices. This extends the time within which to cancel or renew such policy to 60 days. This is to allow hospitals and physicians a chance to "shop" premiums on their policies. A number of questions were raised by various insurance agents' representatives which the author committed to working on prior to getting the bill out of Rules Committee. Rep. Bordeaux also committed to Chairman Lord that no other insurance measures would be attached to this bill. The House Insurance Committee also appointed two bills to Subcommittees: HB 1497 – Reps. Bannister; Watson; and Maddox HB 1623 – Reps. Murphy; Rogers; and Forster. The House Health Care Facilities Subcommittee of the House Health and Human Services Committee also met. It passed out HB 1526 which is a bill dealing with the State's vaccination registry. Currently, children under age 18 have their immunizations registered with the Division of Public Health within the Dept. of Human Resources. The Division has asked that this be extended so that adults, through death, be added to such registry in order to track their immunizations such as for flu, etc. The next bill was HB 1361 which is the Georgia Improvement and Learning Readiness Act and which would require full vision tests for children prior to entering first grade. Currently, children are screened for problems but not provided full eye exams. Legislators were concerned that this would be costly and that it would apply, as written, to public schools, private schools, and home-schooled children. There were others concerned about a definition for "comprehensive eye examination." Ophthalmologists and optometrists who were present basically agreed on what an eye exam must contain – including dilation of the eye. There were also questions raised about the funding for these – the bill mentions that funding would be dependent upon receipt of federal dollars. Apparently, Congress is considering granting some $75 million to states for such initiative. It became clear that this was an issue which was perhaps intended to be a vehicle to allow optometrists to expand their scope of practice. Physicians' groups said that there was no need and that that the general standard of care needed to be followed. After all the discussion, the bill will be studied with the Dept. of Community Health to provide information on how much such initiative might cost the Medicaid program. Next, the Subcommittee undertook HR 1420 a resolution creating a Trust Fund to pay for trauma care rendered by hospitals. A number of folks asked questions as to why only hospitals were included and not physicians and dentists. In the end, the Resolution stayed as written and passed. If you have any questions regarding this Report, please contact Stanley S. Jones, Jr., Jeffrey C. Baxter, or Helen Sloat. |
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