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Nelson Mullins is continuing to monitor developments related to COVID-19, including guidance from the Centers for Disease Control and various federal, state, and local government authorities. The firm is taking appropriate precautionary actions and has implemented plans to ensure the continuation of all firm services to clients from both in office and remote work arrangements across our 25 offices. 

In addition, click the link below to access extensive resources to address a wide variety of topics resulting from the virus, in general and by industry,  including topics such as essential businesses, force majeure, business interruption insurance, CARES Act and FFCRA, and others. 

Nelson Mullins COVID-19 Resources

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WEBINAR: New Small Business Bankruptcy via Chapter 11: Key differences versus traditional Chapter 11, 7, or 13 and how small business can use SBRA to reorganize

October 8, 2020

WEBINAR: New Small Business Bankruptcy via Chapter 11: Key differences versus traditional Chapter 11, 7, or 13 and how small business can use SBRA to reorganize

Gold Dome

February 3, 2020

Gold Dome Report - February 3, 2020

Despite beautiful, spring-like weather outdoors in Atlanta today, legislators and lobbyists were back to work inside the halls of the State Capitol. In the Senate, the topic de jour was liquid cremation--specifically a revision to Georgia Code in SB 296 that would allow for alkaline hydrolysis as an alternative means for disposing of dead human bodies. The bill, which was hotly debated, passed by a 35-10 vote.

Though the House and Senate had full Committee meeting schedules this afternoon, rumors continue to swirl in the halls about an extended adjournment so that the legislative budget writers may delve further into addressing the financial needs for the state. It seems more likely, though, that the “break” is forthcoming and that there will be days taken off to work on the FY 2021 Budget. As always, we’ll keep you posted in the #GoldDomeReport.

In today’s Report:

  • House Committee Approves Surprise Billing Rating Bill
  • Committee Reports
  • New Legislation
  • Rules Calendar for Legislative Day 11

House Committee Approves Surprise Billing Rating Bill

Chairman Mark Newton, MD (R-Augusta) and his Special Committee on Access to Quality Healthcare met today to take up HB 789, Chairman Newton’s own proposal to eliminate patients’ receipt of surprise billing. The proposal makes changes in Chapter 20C of Title 33 and creates a surprise bill rating system based upon the number of certain types of hospital-based physician specialty groups. It will be known as the “Surprise Bill Transparency Act.” The bill requires that the health benefit plan surprise bill rating system have checkmarks and X-marks based upon the number of qualified hospital based specialty group types that are in network with a health benefit plan. Each checkmark indicates the presence of a particular type of qualified hospital-based specialty group (anesthesiologists, radiologists, pathologists and emergency medicine physicians) and an X-mark indicates the absence of a particular type of qualified hospital-based specialty group. It also has requirements for insurers which advertise a health benefit plan as in-network so that it shall be required to disclose such health benefit plan surprise bill rating within such advertisement notwithstanding the type or form of such advertisement. If a health benefit plan surprise bill rating is less than four checkmarks, the insurer advertising a hospital as in-network is required to describe which qualified hospital-based specialty group types are not contracted with such health benefit plan.  DOI Commissioner is permitted to promulgate rules and regulations which require insurers to provide explanatory footnotes to each health benefit plan surprise bill rating. The insurer is to update the health benefit plan surprise bill rating within 30 days to reflect necessary reduction in such rating. The Insurance Commissioner is also to submit an annual report to the House and Senate Insurance Committees beginning January 1, 2022 to include such “aggregate data.”  If passed and signed into law, this legislation takes effect October 1, 2020.

Rep. Clay Pirkle (R-Ashburn) expressed that this bill was a starting point to address surprise billing. Rep. Patty Bentley (D-Butler) asked questions around the Shepherd Center and what happens when referrals are made back to another hospital, such as Piedmont. Chairman Newton indicated that it will be necessary to determine what happens in those referrals and whether the services are covered as in-network.

Rep. Spencer Frye (D-Athens) asked about “mixed network” systems in the state. There may be an example where an anesthesiologist in a hospital could be doing just pain management and not providing anesthesiology. However, hospitals will have contracts with health plans and some may have exclusive arrangements with providers. This bill will expose some of the instances where surprise billing is occurring. Large insurers are on the ACA, State Health Benefit Plan, etc. Networks will vary perhaps but the biggest difference will be the pay provided to the providers. Negotiation between insurers and hospitals were also addressed; there will be pressure on the participants – and this should take the patients out of the middle per Newton.  Further, Newton stated he did not wish to address payment and arbitration processes.  Rather, he wants to shine a light on whether groups are in-network or not with an insurer.

Rep. Randy Nix (R-LaGrange) inquired about elective surgeries and requiring that radiology and anesthesiology be checked when a patient checks in for a procedure. There may be several different plans an insurer offers; it may be hard for a hospital to keep up with an ever involving system. This could be particularly burdensome to smaller hospitals.

Kathy Polvino spoke on behalf of the Georgia Alliance of Community Hospitals. The Alliance acknowledged gaps in insurance coverage and the concerns raised to protect patients.  Patients should not be caught in the middle. The rating system could cause confusion in the rating system; she acknowledged the movement away from the “stars” to the “checks” but those still have negative connotation to facilities. Some may not read the footnotes (and explanatory text) and may not see that the facility does not have an emergency department. They do not want the hospital to look like it has “failed.” Insurers do not pay appropriate rates; networks may be too narrow; etc. Hospitals will be getting the low rating and not the insurer.  She raised the question of whether there is a better way? According to her, the issues are complex and need better upfront disclosures. The Ambulatory Surgery Association has also acknowledged issues with individual physicians who are out of network according to Ms.Polvino.

The Georgia Hospital Association rose in support of this bill and expressed to the Chairman and Committee the Association’s appreciation for the ability to work on the language.  Anna Adams made the comments on providing clarity – GHA supports network adequacy and transparency and this makes it easy for a patient to understand. GHA looks forward to working further on this issue. GHA is also appreciative of the move to the health benefit plan surprise bill rating rather than a hospital's rating.

A motion was made DO PASS.  Rep. Frye said he would vote against the bill as it does not do enough for out-of-control insurance companies. Rep. Bentley indicated that she wanted to say that Shepherd was an awesome facility in Georgia. The substitute, LC 46 0237S, PASSED.

Committee Reports

Senate Insurance and Labor Committee

The Senate Insurance and Labor Committee, chaired by Sen. Burt Jones (R-Jackson), met to consider one bill today. SB 303, authored by Sen. Ben Watson (R-Savannah), is the Georgia Right to Shop Act. The bill amends Title 33 to require the disclosure of certain pricing and quality information by insurers relating to payments to and treatments by health care providers. Sen. Watson explained that the bill requires insurers to maintain a publicly-accessible website and phone number that provides what health care providers are paid by the insurer, estimates of out of pocket costs, and quality metrics. He noted that this bill arose out of Lt. Governor Geoff Duncan’s Health Innovation Task Force and references an all payer claims database that was recommended by the Task Force but does not yet exist. Clark Howard spoke in favor of the bill, highlighting the disconnect in health coverage preventing consumers from comparing price and quality. Sen. Larry Walker (R-Perry) asked if the information would be available to any member of the public or only members of a specific health plan, to which Sen. Watson said any member of the public. Sen. Walker expressed concern about persons without insurance or with other insurance using the information to negotiate with providers. Sen. Kay Kirkpatrick (R-Marietta) asked if the phone number would have required staffing hours, to which Sen. Watson stayed it was an open question. He also noted that the Insurance Commissioner would be charged with creating rules and regulations.

Kathy Polvino spoke on behalf of the Georgia Alliance of Community Hospitals. GACH supports insurance transparency, but Ms. Polvino asked Committee to consider the bill as “part of a bigger puzzle”. For example, she noted that the definition provided by the legislation for emergency services is very narrow. She cautioned extension of that and other narrow definitions into other legislative measures.

Anna Adams and Keri Conley spoke on behalf of the Georgia Hospital Association. They also encouraged looking at “the bigger picture” and noted the typical delays in data reporting that would feed the system. GHA also called for disclaimers for patient’s benefit.

Allen Hayes spoke on behalf of America’s Health Insurance Plans. He stated that AHIP supports transparency for “the whole ecosystem”, not just insurers. He also called for access to payment data be limited to plan members and noted that most insurers already provide such access.

Chairman Jones declined to take vote on the bill today, noting that he needs to work with Sen. Watson offline to “iron out a few things that just came to light.” The Committee will meet again on Thursday at 2pm, where it is expected to take action on the bill.

House Judiciary - Welch Subcommittee

Chairman Andy Welch (R-McDonough) and his Subcommittee undertook reviews of two proposals this afternoon. The Subcommittee provided a DO PASS recommendation to Chairman Welch’s HR 1023, which proposes a Constitutional amendment to provide that the people of this state may petition the judiciary for declaratory relief from certain acts of this state or certain local governments or officers or employees thereof that violate the laws or constitution of Georgia or of the United States.  The Resolution received a DO PASS recommendation and moves to the full House Judiciary Committee.

The second proposal, HB 484, was also presented by Chairman Welch.  It seeks to provide in Chapter 14 of Title 44 a mechanism to resolve disputes involving a medical funding provider which has provided payment to a consumer’s healthcare provider. Several groups testified at this hearing including Peachtree Orthopedics, which supported the legislation, and the Georgia Trial Lawyers Association.  The Trial Lawyers liked the disclosure section in the proposal but otherwise did not support the legislation. The bill was held for further discussion by the Subcommittee.

House Public Safety and Homeland Security

The House Public Safety and Homeland Security Committee, chaired by Rep. Bill Hitchens (R-Rincon), met today to consider HB 113. The bill, authored by Rep. John Carson (R-Marietta), increases fees associated with violations of Georgia’s hands-free driving law. The bill also removes a first-time offender fee waiver. Rep. Carson began his presentation by providing statistics related to the initial implementation of the hands-free law. He also noted that many entities including the Georgia State Patrol are calling for more deterrents for drivers to aid their enforcement. The bill would increase the fine structure to be $100 on the first offense, $200 for the second offense, and $300 for subsequent offenses and increase the fines associated with violations in school and work zones. The bill would also include legislative intent for collected fines to be disbursed to the Georgia Trauma Trust Fund. Rep. Carson explained that while he would prefer to dedicate the funds to the Trauma Trust Fund directly, this would require a constitutional amendment (for which negotiations are occurring in the legislature).

Rep. J. Collins (R-Villa Rica) asked if there has been consideration of community service requirements for higher tiered fines. Rep. Carson explained he believes that money is the best deterrent. Rep. Rick Williams (R-Milledgeville) noted that the Brain and Spinal Injury Trust Fund has been delegated by constitutional amendment to receive direct funds and asked if Rep. Carson would consider language to designate funding for this fund. Rep. Carson explained that his goal is to get people off of their phones and save lives and the specific location of funds are up to the committee.  

Judge Gary Jackson requested that the committee not add surcharges to fines. He explained that these funds are not reserved for the courts and are instead returned to the state general funds.

Barry Morgan, Cobb County Solicitor General, spoke in favor of the bill on behalf of the Georgia Association of Solicitor’s General.

Rep. Scott Holcomb (D-Atlanta) stated that he believes the current fee structure is more clear than the proposed substitute language. He also stated that he believes there has not been enough time since the initial adoption of the hands-free law to fully understand the effects of the fine structure. He hopes to see more data on this issue in the future.

Chairman Hitchens adjourned the meeting without taking action on the bill and explained that the committee will meet later this week to consider amendments and other action.

Senate Judiciary Committee

The Senate Judiciary Committee, chaired by Sen. Jesse Stone (R-Waynesboro), met to hear several bills on Monday afternoon:

  • SB 35, authored by Sen. Lester Jackson (D-Savannah), amends Title 42 to prohibit sex offenders from residing near their victims and such victims' immediate family members. Specifically, the bill provides a 2,000-foot buffer between the home of a victim or victim’s immediate family member and the offender. A motion Do Pass failed, and the bill does not advance out of Committee.
  • SB 325, authored by Sen. Zahra Karinshak (D-Duluth), amends Title 17 to extend the statute of limitations for human trafficking offenses from seven to ten years from the commission of the crime or from when any victim turns 18 years of age. The Georgia Association of Criminal Defense Lawyers expressed its support for the bill. There was no action taken by the Committee on the bill.
  • SB 326, authored by Sen. Zahra Karinshak (D-Duluth), amends Titles 17 and 35 to provide that the court imposing sentence may grant the relief of vacatur for nonviolent convictions and sentences of defendants who obtained such convictions and sentences as a direct result of being victims of trafficking for labor or sexual servitude. The Prosecuting Attorneys’ Council and Georgia Association of Criminal Defense Lawyers spoke to the legislation. There was no action taken by the Committee on the bill.
  • SB 331, authored by Sen. Randy Robertson (R-Columbus), amends Title 16 to criminalize the knowing possession, control, or production of any material that contains images that depict a naked or nearly naked, suggestively posed, and inappropriately sexualized child or children with the intent to arouse or satisfy the sexual desire of such person or the person viewing such images. The Prosecuting Attorneys’ Council expressed concern about the vagueness of the proposed language. No action was taken by the Committee on the bill.

New Legislation

The following legislation of interest was introduced in the House today:

  • HB 862, authored by Rep. Dar’Shun Kendrick (D-Lithonia), seeks to establish a Cybersecurity Task Force in a new Article 10 of Chapter 3 of Title 35 which would be composed of 11 members. The members are proposed to be appointed as follows: 1) by the Speaker of the House of Representatives: one member of the House of Representatives; two cybersecurity and internet of things experts (one of whom is to be a manufacturer of IoT devices; one an ethics expert and one who is a current or retired professor of internet technology at an accredited educational institution of higher learning; and 2) by the Lt. Governor: one of whom is a member of the Senate; one a representative of a manufacturer of IoT devices; one who is an internet or technology privacy expert; and one of whom shall be both a cybersecurity and an IoT expert. The task force is to recommend a number of things including minimal security requirements for connected computing devices and minimal privacy protection requirements concerning data collected, processed and shared from connected computing devices throughout the lifetime of such devices from manufacturing to disposal. This bill was referred to the House Public Safety and Homeland Security Committee.
  • HB 868, authored by Rep. Chuck Martin (R-Alpharetta), seeks to amend O.C.G.A. 48-8-3 to revise paragraph (25) to provide an exemption from state sales and use taxes for for-hire ground transportation (e.g. taxi, limousine carrier, transportation referral service, transportation referral service provider, and rideshare networks). This bill was referred to the House Ways and Means Committee.

The following legislation of interest was introduced in the Senate today:

  • SB 343, authored by Sen. Lester Jackson (D-Savannah), seeks to raise the mandatory education age of children from 16 to 17 years of age in O.C.G.A. 20-2-690.1(a). This bill was referred to the Senate Education and Youth Committee.
  • SB 345, authored by Sen. Kay Kirkpatrick (R-Marietta), seeks to provide, in part, that nonprofit organizations prepare and provide food in accordance with the requirements of the Department of Public Health in O.C.G.A. 26-2-21(a). It also adds new definitions including ones for food service establishment. It further amends O.C.G.A. 26-2-391 so as to eliminate the city or county’s ability to delegate the issuance of a permit to a nonprofit for the operation of a nonprofit food sales and food service at events to county boards of health. A county or municipality may issue a food sales and food service permit for up to 120 hours of continuous hours or for a continuous period of up to 12 weeks between May 15 and August 15 and four additional weeks during the calendar year providing that the food provided is free of charge and the organization does not receive funding from the USDA to operate a food program. This bill was referred to the Senate House Health and Human Services Committee.
  • SB 346, authored by Sen. Ellis Black (R-Valdosta), seeks to increase the number of members on the State Board of Veterinary Medicine from six to seven members in O.C.G.A. 43-50-20(a). This seventh member is proposed to be a registered veterinary technician who is actively engaged in the practice of veterinary technology.  Further, it seeks to create in O.C.G.A. 43-50-21.1 that the veterinary board have a professional health program to provide monitoring and rehabilitation of impaired veterinarians in Georgia. Veterinarians participating in such program would bear the costs of participation. This bill was referred to the Senate Agriculture and Community Affairs.
  • SB 347, authored by Sen. Gloria Butler (D-Stone Mountain), seeks to add a new Code section at O.C.G.A. 31-7-23 to require hospitals and ambulatory surgery centers to utilize surgical smoke evacuation systems during surgical procedures to protect patients and healthcare workers from the hazards of surgical smoke (the gaseous byproduct produced from the interaction of tools or heat-producing equipment used for dissection and hemostasis during surgical or invasive procedures which contains infectious bacteria, viruses, and chemicals that include proven toxins, mutagens, carcinogens and allergens). This bill was referred to the Senate Health and Human Services Committee.
  • SB 348, authored by Sen. Kay Kirkpatrick (R-Marietta), seeks to create the “Consumer Right to Access Act” in O.C.G.A. 33-20C-2.1 and a new Chapter 20E in Title 33.  It adds in O.C.G.A. 33-20C-2.1 that if an insurer’s provider directory includes a particular provider as a participating provider at such time that the enrollee selects his or her plan such insurer is required to cover such provider’s charges at an in-network rate for no less than 90 days following the departure from the network during the contract year for such enrollee.  It would not apply if the provider terminates his or her contract or if the provider’s license is suspended, expired or revoked.  It further requires that health insurers are to: 1) maintain a network which is sufficient in numbers and types of healthcare providers to ensure that all healthcare services to covered persons will be accessible without unreasonable delay and in the case of emergency services, covered persons are to have access 24 hours per day, seven days per week; 2) report annually to the Insurance Commissioner for each of its policies or plans the number of enrollees and number of participating in-network healthcare providers; and 3) maintain a network directory via an internet website, mobile application or other electronic means through which a provider or enrollee may obtain a current listing updated at least every 30 days of all participating providers within each network. It further proposes that the Insurance Commissioner annually assess the provider network adequacy of each health insurer (including provider to covered person ratio by specialty; provider to covered person for primary care services; geographic accessibility; geographic population dispersion; waiting times for visits to participating providers; hours of operations; etc.). If the Commissioner finds that the plan is unsatisfactory, a notice is to be sent to the health insurer and the insurer is required to submit a revised plan within 45 days of the notice.  Health insurers are required to pay for the cost of examination by the Commissioner of Insurance. This bill was referred to the Senate Insurance and Labor Committee.
  • SR 654, authored by Sen. Sally Harrell (D-Atlanta), seeks an amendment to Georgia’s constitution so as to provide that taxes on motor fuels are to be appropriated for any or all public transportation purposes in Article III, Section IX, Paragraph VI at subparagraph (b).  Presently, such taxes are used only for roads and bridges and this would allow funding to be used not only for roads and bridges but also rails, airports, buses, seaports and all accompanying infrastructure and services necessary to provide access to these public transportation facilities.

Rules Calendar for Legislative Day 11

The Senate is expected to consider the following measures on Monday for Legislative Day 11:

  • SB 159 - Motor Vehicles and Traffic; operation of motorized mobility devices; provide (Substitute) (TRANS-51st)