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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. 

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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

January 28, 2020

Gold Dome Report - January 28, 2020

After five Legislative Days filled mostly with recognitions and points of personal privilege, the State Senate kicked off floor debate today with its first Rules Calendar of the 2020 Legislative Session. The single item on the docket was HB 444, Governor Kemp’s Dual Enrollment bill that stalled at the end of last year’s session for lack of agreement between the chambers and the Second Floor. The Senate considered a compromise version of the bill today, passing it despite objection from the minority. More on the floor debate, as well as today’s committee action and new legislation, in today’s #GoldDomeReport.

In today’s Report:

  • Senate Approves Compromise Dual Enrollment Bill
  • Committee Reports
  • New Legislation

Did You Know: While our team publishes this report at the end of each day, you can follow the action in real-time with us on Twitter? Follow our team (George Ray, Helen Sloat, and Sam Marticke) or search for #GoldDomeReport for up-to-the-minute updates throughout the legislative session!

Senate Approves Compromise Dual Enrollment Bill

After months of negotiation following last year’s legislative session, the State Senate finally got the opportunity to vote on HB 444 today, Governor Kemp’s proposal to improve the sustainability of Georgia’s Dual Enrollment program. Senator Brian Strickland (R-McDonough) kicked off debate on the compromise bill by stating the bill intends to ensure the state’s dual enrollment program is available for all students in Georgia. He walked through provisions which he called “guardrails” which make sure the program is financially feasible for the state.

Sen. Elena Parent (D-Atlanta) raised concerns that the state’s dataset was not robust enough to reflect the true utilization of the program and this could lead to this bill having unintended consequences. In response to Sen. Jen Jordan (D-Atlanta), Sen. Strickland noted that this bill will not limit access to college credit courses, especially for students in rural areas. Sen. Nan Orrock (D-Atlanta) characterized the bill as a further attempt to cut the budget at OPB’s direction at the sake of children’s ability to seek education opportunities.

Sen. Steve Henson (D-Stone Mountain) spoke in opposition to the bill. He noted that Georgia has a storied tradition of higher education. Sen. Henson continued by reminding senators about the rising cost of higher education. He explained that his opposition to the bill centers around the need for the legislator to improve access to and reduce costs for higher education; which he claims this bill does not accomplish.

Ultimately, when the question was called, the bill PASSED by a vote of 34-18. It now returns to the House for an agree or disagree.

Committee Reports

House Governmental Affairs Committee -- State and Local Government Subcommittee

The State and Local Government Subcommittee of the House Governmental Affairs Committee met on Monday and heard testimony on HB 784. The bill, authored by Rep. Eddie Lumsden (R-Armuchee), to provide that discussions of school safety plans by members of a local board of education may be conducted in executive session. Finished school safety plans are already protected from public disclosure, and this bill would protect discussions around creating such plans. The Subcommittee recommended the bill DO PASS and be sent to the full Committee.

House Health and Human Services Committee

The House Health and Human Services Committee, chaired by Rep. Sharon Cooper (R-Marietta), met for its initial meeting of the 2020 Legislative Session today. The meeting focused on two topics:

  • Bill Speir with the Plasma Protein Therapy Association discussed the plasma collections taking place nationally.  There are 39 collection centers in Georgia (830 centers nationally); these entities collect source protein plasma and that plasma is used to make medications for rare, chronic conditions.  They do have standards which they follow including for quality and “QSEAL.”  The products made by the manufacturers are licensed products by the FDA and they make life-saving therapies. Products can be plasma derived or recombinant products (like used from cell lines for hemophilia treatment). These medications are vital for individuals who have a missing protein line – such as hemophilia patients who miss Factor 8.  Quality plasma, according to Mr. Spier, is screened (individuals making donations must weigh at least 110 pounds, are required to have normal protein levels, must be at least 18 years of age, and must be negative to diseases such as Hepatitis C and HIV.  If an individual shows positive for disease, he or she is placed on National Donor Referral Registry.  Donors of plasma are generally paid for their time - $20-$50 per donation which can take up to two hours for initial donation (90 minutes for subsequent donations).  Individuals may donate up to two times per week but the average donor donates 21 times annually. A hemophilia patient needs at least 1,200 donations for medications for a year.  There are a number of other disease states which benefit with plasma related medications – such as Alpha 1Antigen Deficiency, hereditary Angioedema, primary immunodeficiencies, etc.  The first protein therapy was derived during World War II. Diseases treated are genetic and the process is the product.  Patients, according to Mr. Spier, respond differently to products developed.  There are expert clinical guidelines.  He gave some startling information on life expectancies with these products – for instance a patient with Hemophilia was expected to live until 20 years of age in 1960; now an individual can live until 70 or more. Patients are fearful that they will not have their life saving medications derived from plasma.
  • Lynn Riley, the State Treasurer and overseer of Georgia’s STABLE program provided an update on the program which was formed legislatively in 2016 and commenced in 2017.  Georgia and Ohio work jointly on their programs.  The program allows individuals with disabilities to save for the future.  These states have partnered for economies of scale.  There are limits on what individuals may have in terms of assets and still access public benefits – the limitation is $2000. The program allows individuals to have savings which are not counted towards the resource limit.  250,000 individuals in Georgia are eligible for this program; only 990 individuals have opened STABLE accounts or ½ of 1 percent.  These accounts allow monies to grow and are tax free. The program also allow for qualified withdrawals (such as for medical and/or health treatment).  Annual contribution limits to the accounts, if an individual is employed, is $27,000 (unemployed individuals may bank $15,000 annually). The accounts may have $484,000 total and individuals can refill if an account has money withdrawn.  The accounts are permitted for individuals with disabilities who have such disabilities prior to age 26 (federal legislation is pending to increase this age to 46). There are limitations around what happens with funds upon an individual’s death – the fund can pay funeral expenses and outstanding medical bills; Medicaid may recoup money from the account if Medicaid benefits were utilized after opening the account.

House Retirement Committee

The House Retirement Committee, chaired by Rep. Tommy Benton (R-Jefferson), met to consider several measures today:

  • HB 67, authored by Chairman Benton, amends Title 47 to revise a number of elements of the Georgia Legislative Retirement System. The bill increases the member contribution rate from 7.5% to 9.5% and provides for different methods for calculating retirement benefits. The Committee recommended the bill DO PASS and be sent to the Rules Committee.
  • HB 195, authored by Chairman Benton, amends Title 47 to increase the death benefit under the Georgia Firefighters’ Pension Fund from $5,000 to $10,000. Rep. Patty Bentley (D-Butler) asked whether the fund accepts funeral home assignments, to which Chairman Benton said no. Rep. Bentley further asked if such an amendment could be made, to which Chairman Benton said yes, but he would prefer it not be amended. Morgan Wurst, Executive Director of the Firefighters’ Pension Fund, noted that the concept had come up among his board, but they were not interested in allowing assignment. The Committee recommended the bill DO PASS and be sent to the Rules Committee.
  • HB 292, authored by Chairman Benton, amends Title 47 to eliminate the requirement that the University System of Georgia make payments to the Teacher Retirement System (“TRS”) for employees who forego participation in TRS in favor of the Optional Retirement Program (“ORP”). House Appropriations Committee Chairman Terry England (R-Auburn) spoke to the legislation and noted that ORP has not had a negative impact on TRS and such payments (which actually ceased in the early 2000s) were not necessary. He stated that the bill would not have a material negative impact to TRS. Claire Suggs of the Professional Association of Georgia Educators spoke on the bill. The Committee recommended the bill DO PASS and be sent to the Rules Committee.

The Committee then considered two bills together.

  • HB 320, authored by Rep. Dave Belton (R-Buckhead), amends Title 47 to allow retired members of the Teacher Retirement System to return to work as teachers in K-12 science, technology, engineering, arts, or math if the school district pays the employer and employee shares toward TRS for the members. Rep. Chuck Martin (R-Alpharetta) inquired about the true fiscal impact of the bill and called for more analysis to determine if the legislation might change behavior.
  • HB 336, authored by Rep. Shaw Blackmon (R-Bonaire), amends 47 similarly to HB 320, but instead of restricting eligibility to science, technology, engineering, arts, and math teachers, it provides eligibility for all K-12 teachers regardless of subject matter. The bill also provides for a one-year waiting period between retirement and return to work.

Jimmy Stokes of the Georgia Association of Education Leaders spoke in favor of the bills. Tiffany Taylor and Kerry Pritchard represented the Department of Education speaking in support of both bills and recommending that HB 336 be focused on retired teachers willing to return to high-need positions. Scott Bierman of the Georgia School Board Association spoke in favor of both bills, noting that these bills will help rural schools. Josh Stephens of the Professional Association of Georgia Educators also spoke in support of the bills, emphasizing the importance of focusing on high-need positions.

Chairman Benton postponed a vote on these bills today, expressing an interest in combining the best parts of both bills and incorporating the Department of Education’s proposal. He asked for the creation of a substitute that allows eligibility for science, technology, engineering, arts, and math as well as high-need positions. He also asked for exploration of the 12-month waiting period in HB 336.

Senate Regulated Industries

The Senate Regulated Industries Committee, chaired by Sen. Bill Cowsert (R-Athens), met to consider two measures today:

  • SB 296, authored by Sen. Bill Heath (R-Bremen), which amends Title 43 to create a new definition of “cremation device.” The new definition removes the necessitation for a retort to be present for licensed cremation to take place. Sen. Heath explained that a constituent had previously attempted to expand their cremation services with alkaline hydrolysis equipment but was advised by the State Funeral Board that the type of cremation device they wished to install was not permitted in the state. Sen. Heath called upon this constituent to explain the process to the committee. She explained that this process uses a chemical reaction rather than fire to cremate the deceased individuals. This process provides more sterilization than a fire-based process. Sen. Steve Henson (D-Stone Mountain) raised concerns that the leftover wastewater that enters water treatment facilities could be dangerous for water systems. Jacqueline Echols, President of the Southwest Georgia Watershed Alliance, pointed out rules within Georgia’s EPD that any entity that exposes the wastewater treatment system to chemicals is required to submit to regulation from the EPD. She suggested that these entities also fall under this regulation. The bill received a recommendation DO PASS.
  • SB 298, authored by Sen. Renee Unterman (R-Buford), amends Titles 16 and 20 to provide updates to the State’s enforcement and education efforts on vaping. The bill begins by updating definitions of vaping products to encompass both “vapor cartridges” and “vapor devices” to mean the vapor substance and the vapor delivery system, respectively. The bill also raises the minimum purchasing age for all tobacco and vaping products from 18 to 21. The bill creates a tiered punishment system for individuals who distribute vapor devices and/or vapor cartridges to minors. The first offense results in a misdemeanor, the second: a high and aggravated misdemeanor, and the third: a felony. The bill sets forth labeling requirements for all vaping products in the state; requiring a list of ingredients. The bill also sets forth other prohibited marketing practices including any material that could be construed as marketing the products to children. The bill requires all sellers of vapor products to register with the Department of Revenue.

Sen. Unterman began by providing background about how she became aware of the vaping issue. She then walked Committee members through the main provisions of the bill. Sen. Unterman noted that increasing the minimum age to purchase tobacco products does not preclude individuals under 21 from selling these products as store clerks.

The Committee heard from high school students about why they felt this legislation is important. They characterized the vaping crisis as serious and stated that a large amount of their peers use vaping devices, often during school hours. Dr. Monica Newton, a family physician from Gainesville, spoke in support of the bill. She explained that early intervention efforts can have a significant impact on increasing prevention efforts.

Sen. Unterman explained that she expects to have a new substitute in time for a Committee vote on Thursday. Chairman Cowsert echoed this statement and stated that those who were unable to speak in today’s meeting will be given an opportunity during the next committee meeting.

New Legislation

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

  • HB 804, authored by Rep. Carl Gilliard (D-Garden City), amends O.C.G.A § 34-6A-4 to prevent an employer from compensating a disabled employee at a rate lower than the mandated minimum wage. This bill was referred to the House Industry and Labor Committee
  • HB 809, authored by Rep. Angelika Kausche (D-Johns Creek), amends Title 16 to create new rules about the sale of vaping related products to minors. The bill adds a new definition for “Electronic Vaping Product” and revises the definition of a “Tobacco Product.” The bill also increases the minimum age for the purchase of any tobacco product or electronic vaping product from 18 to 21. Further, the bill requires that any such sale must occur in a face-to-face exchange unless the sale occurs through an approved vending machine. This bill was referred to the House Regulated Industries Committee.
  • HB 810, authored by Rep. Brett Harrell (R-Snellville), amends O.C.G.A. § 16-12-218 to allow a tax credit for the employment of qualified parolees by licensees of the Georgia Access to Medical Cannabis Commission. This bill was referred to the House Ways and Means Committee.
  • HB 813, authored by Rep. Donna McLeod (D-Lawrenceville), amends Title 49 to create an expansion of a Medicaid fee-for-service system in Georgia. The bill directs the Department of Community Health in O.C.G.A. § 49-4-201 to implement a Medicaid fee-for-service program for individuals up to 150% of the federal poverty line. The bill also calls for DCH to issue to subsidies for uninsured persons with incomes between 150% and 500% of the FPL. In counties where there are less than three exchange plans, DCH must provide a fee-for-service Medicaid option. The bill also stipulates that reimbursement for these plans shall be at 105% of the prevailing Medicaid rate. This bill was referred to the House Special Committee on Access to Quality Healthcare.
  • HB 816, authored by Rep. Karen Mathiak (R-Griffin), amends O.C.G.A § 14-7-4 to allow chiropractors to organize and jointly own a professional corporation with physicians. The bill stipulates that chiropractors are not able to add the word “physician” to their name or professional corporation. This bill was referred to the House Regulated Industries Committee.
  • HB 823, authored by Rep. Houston Gaines (R-Athens), amends O.C.G.A. § 16-5-46 to provide that any individual convicted of sex trafficking offenses shall have their commercial drivers license revoked and be disqualified from driving a commercial vehicle. Further, the bill stipulates at O.C.G.A § 40-5-151 that an individual that uses a commercial motor vehicle in the commission of an offense of trafficking an individual for sexual servitude shall have a lifetime ban on driving a commercial motor vehicle. This bill was referred to the House Motor Vehicles Committee.

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

  • SB 238, authored by Sen. Tonya Anderson (D-Atlanta), amends O.C.G.A. § 1-4-1 to provide that Election Day in November shall be a state holiday.
  • SB 307, authored by Sen. Renee Unterman (R-Buford), amends O.C.G.A § 49-5-25 to provide for supportive housing for pregnant women. The bill defines “supportive housing maternity residence” as a residential home that houses up to six pregnant women aged 18 or older at any time during the woman’s pregnancy and up to 18 months after childbirth. This bill was referred to the Senate Health and Human Services Committee.
  • SB 309, authored by Sen. Jesse Stone (R-Waynesboro), is the Georgia Municipal and Local Government Infrastructure Finance Authority Act. The bill amends Title 36 to provide for comprehensive regulation of local government infrastructure financing and to include broadband network projects as undertakings for which revenue bonds may be issued. The bill also creates the Georgia Municipal and Local Government Infrastructure Finance Authority and the Georgia County and Local Government Infrastructure Finance Authority
  • SB 310, authored by Sen. Tyler Harper (R-Ocilla), amends Title 43 to change provisions related to the regulation of kickboxing and other combat sports associations. Further, the bill provides for new regulations for the licensing of structural engineers included provisions related to qualifications for licensure and the addition of professional structural engineers to provisions related to professional engineers. This bill was referred to the Senate Regulated Industries Committee.
  • SB 311, authored by Sen. Kay Kirkpatrick (R-Marietta), amends Title 31 by adding a new Code Section at O.C.G.A § 31-1-18 to prohibit any person or healthcare provider from paying or offering to pay a commission, benefit, bonus, rebate, kickback, or bribe, or participate in any agreement to induce the referral of a patient to or from a healthcare provider. The bill also creates a new fraudulent insurance act for high-tech drug testing at O.C.G.A § 31-1-16.1. This bill was referred to the Senate Judiciary Committee.
  • SB 313, authored by Sen. Dean Burke (R-Bainbridge), amends Title 33 to create new provisions to regulate pharmacy benefits managers. The bill increases the filing fee for pharmacy benefits managers to $2,000 and $1,000 for new applications and renewals, respectively. The bill proscribes PBMs from contracting with physicians for step therapy or prior authorizations unless the physician is licensed by the Georgia Composite Medical Board, actively sees patients, and engages with the medical practice that focuses on the condition for which they are providing advisement. The bill includes reporting requirements for PBMs for any case where a patient’s health outcome is adversely affected by a prior authorization causing a delay in a patient’s access to medication or causes a patient to use a medication other than the original prescription. The bill gives the Insurance Commissioner more enforcement capabilities and includes a requirement for PBMs to issue records upon request of the commissioner. In the event that a violation is discovered by the Commissioner, they are authorized to perform an audit to ensure no other violations of a similar type occurred within the state. PBMs are also required to use the national average drug acquisition price as a benchmark for ingredient drug pricing. For specialty drugs, PBMs must use the select specialty pharmacy rate. The bill prohibits PBMs from basing payment or reimbursement of pharmacies for drugs on outcomes, scores, or metrics related to patient health. These are allowed in instances of pharmacy care. PBMs are also prevented from deriving any revenue in connection with performing pharmacy benefits management services. All rebates must be passed completely to health plans. PBMs are required to charge health plans the same price they pay to pharmacies. Further, the bill proscribes PBMs from 1) charging a pharmacy fee in connection with a network enrollment; 2) withholding coverage for a lower cost drug or failing to reduce a co-pay when a person selects a lower cost drug; or 3) removing a drug from a formulary or refusing coverage in order to incentivize a person to seek coverage from a different plan. Finally, the bill presents legislative findings regarding pharmacy steering and provides that any PBM found to engage in steering or point-of-sale fees are subject to a surcharge of 10% of all aggregate fees paid to the state in the previous calendar year. All PBMs will be required to submit a report on March 1 of each year attesting to whether or not they engaged in steering practices. This bill was referred to the Senate Insurance and Labor Committee.  
  • SR 579, authored by Sen. Dean Burke (R-Bainbridge), commends the Georgia Academy of Audiology and recognizes January 28, 2020 as Georgia Academy of Audiology Day. This Resolution was Read and Adopted.
  • SR 589, authored by Sen. P.K. Martin (R-Lawrenceville), recognizes and commends Georgia’s Career and Technical Student Organizations and recognizes February 13, 2020 as CTSO Day at the Capitol. This Resolution was Read and Adopted.
  • SR 590, authored by Sen. P.K. Martin (R-Lawrenceville), recognizes February 11, 2020 as Dyslexia Day at the Capitol and urges schools, local educational agencies, and the state educational agency to address the profound educational impact of dyslexia. This Resolution was Read and Adopted.