Gold Dome Report - June 2020 #8

Nelson Mullins Riley & Scarborough LLP

Stars aligned in the Capitol today as the House and Senate reached agreement on the most closely watched issue during the reconvening of the 2020 Legislative Session. After announcement late yesterday of a compromise to HB 426, Representative Chuck Efstration’s (R-Dacula) hate crimes bill, the Senate took up and passed the bill by a 47-6 vote — and the House wasted no time in agreeing to the proposition by a 127-38 vote. The bill now goes to Governor Kemp for final approval. 

Hate crimes legislation was not the only weighty issue taken up by legislators on Tuesday. The Senate also passed broad civil liability protections related to COVID-19 (HB167), as well was repeal of a child abuse registry believed to infringe on due process rights (HB 993). The Senate signed off on Governor Kemp’s bill to provide for restriction and sealing of criminal records of sex trafficking victims (SB 435) and also took steps to call a constitutional referendum on measures that would allow the legislature to do its work remotely and electronically in emergency situations (SR 19). 

While these weighty issues were discussed, the Conferees on HB 793, the State Budget for FY 2021, plodded along in an effort to reach agreement. Governor Kemp’s change in the revenue estimate allows for an additional $250 million to be utilized to fund priorities. Now, we wait to see how that funding will be spread with the anticipation much will be used on education efforts.

The Senate is working late again tonight. Keep following us at #GoldDomeReport for the latest.

In this Report:

  • Notable Floor Action 
  • Committee Reports
  • Rules Calendars for Legislative Day 38

Notable Floor Action

After we published our Gold Dome Report for June 22, 2020, the Senate came back late in the evening to address these bills:

  • HB 912, by Representative Bert Reeves (R-Marietta), requires in O.C.G.A. 15-11-64 that each clerk of the juvenile court collect data on all cases in which a child alleged or adjudicated to be a child in need of services or a delinquent child is placed in foster care and has also been alleged or adjudicated to be a dependent child and shall transmit such data as required by such rules. In O.C.G.A. 15-11-110(c), it adds that hearings with dependency case time limitations required by O.C.G.A. 15-11-102 and termination of parental rights hearings are tol take priority in attorney conflict resolution over all other civil and criminal hearings and nonjury appearances in any other class of trial court. It permits a caregiver of a foster care child to arrange for occasional short-term babysitting (up to 72 hours) of a child in foster care placed with such caregiver and allow individuals age 18 or older to supervise such child. 
  • HB 1050, by Representative Eddie Lumsden (R-Armuchee), seeks to amend the Georgia Life and Health Insurance Guaranty Association law in O.C.G.A. 33-38-1 et seq. It extends association protections to certain persons receiving insurance coverage from health maintenance organization subscriber contracts or health care corporation plans; provides for modernization and updates; provides for revisions to the assessment formula on long-term care insurance written by impaired or insolvent insurers; provides for the recoupment of assessments on certain members through a surcharge on premiums as approved by the Commissioner. 
  • HB 1114, by Representative Sharon Cooper (R-Marietta), was taken from the Table upon a motion by Senator Kay Kirkpatrick, MD (R-Marietta). This legislation extends lactation coverage for Medicaid-covered women and extended post-partum care for six months in O.C.G.A. 49-4-159. 

The Senate took up the following measures of note today:

  • HB 167, by Representative Darlene Taylor (R-Thomasville), came to the Senate Floor in a new Rules Committee Substitute to address civil liability due to COVID-19 to be known as the “Georgia Pandemic Business Protection Act.” The legislation amends by adding a new Code Section at O.C.G.A. 51-1-29.7. It provides for limited immunity from liability for the transmission of, contraction of, or exposure to COVID-19. The measure, presented by Senator John Kennedy (R-Macon), passed with a vote of 31-19. Senator Jesse Stone (R-Waynesboro) attempted to amend the proposal to address “gross negligence” but his amendment failed.
  • HB 337, by Representative Shaw Blackmon (R-Bonaire), was presented by Senator John Kennedy (R-Macon). It is the Georgia Peer-to-Peer Car Sharing Program Act and addresses insurance coverage, including what is required for the owner, in O.C.G.A. 40-1-220 et seq. The legislation is needed because the new market of borrowing cars has emerged. It is NCOIL model legislation. The bill passed by Committee Substitute 41-7; it now must be agreed to by the House.
  • HB 426, by Representative Chuck Efstration (R-Dacula), is the proposal to address “hate crimes” in Georgia, addressing Chapters 4 and 10 of Title 17. The Senate engrossed the proposal prior to it being moved to the Floor for debate. It was carried in the Senate by Senator Bill Cowsert (R-Athens). It imposes enhanced penalties for such crimes (24 other states have enhanced penalties with the data collection component); it does not create a separate crime for instances involving bias or prejudice. This legislation is like The legislation addresses felony crimes as well as five misdemeanor crimes (simple assault, simple battery, battery, criminal trespass and theft by taking). The prosecutor makes an application to seek enhanced penalties; the discretion rests with the judge to impose the penalties once an individual is convicted. There is a data collection component in the bill; that information will be sent to the GCIC. A number of Senators spoke, many emotional and expressing their own experiences as being victims of biases, to this legislation which was a compromise reached between the Senate’s Majority and Minority Caucuses. The legislation passed the Senate in the form passed out by the Senate Rules Committee with a vote of 47-6. Those voting no were Senators Gooch, Ginn, Heath, Harper, Dolezal, and Jones (Burt). The House agreed to the changes offered by the Senate to HB 426.
  • HB 838, by Representative Bill Hitchens (R-Rincon), addresses a name change for the Office of Public Safety Officer Support to the Office of Public Safety Support. It also establishes a Peace Officers’ Bill of Rights so that whenever a peace officer serving in the State of Georgia is under investigation and subject to interrogation by members of a law enforcement agency for any reason that could lead to disciplinary action, suspension, demotion, or dismissal, it sets up the interrogation process and how that investigation and interrogation is to be conducted. It also adds in O.C.G.A. 35-8-7.4 a crime of bias motivated intimidation against a first responder (police officer, fire department personnel, and emergency medical technician) and outlines penalties for such crimes and provides for a civil remedy for a false complaint against an officer. The Senate Rules Committee, however, proposed a new Substitute which was carried by Senator Randy Robertson (R-Cataula), which addresses bias discrimination. This legislation addresses O.C.G.A. 24-5-510 and Chapter 2 of Title 35. The Senate passed the bill by a 33-20 vote, and the House agreed to the Senate version of the bill. 
  • HB 993, by Representative Katie Dempsey (R-Rome), eliminates the Child Abuse Registry in law. The legislative changes were requested by the Division of Family and Children’s Services. The State’s Child Abuse Registry was struck down by the courts as unconstitutional in 1998. In 2016, the Registry was reinstituted but has since struggled with constitutional and operational challenges. Elimination of this registry will be a cost savings to the State of around $1.5 million annually. Presently, there are approximately 31 percent of the cases which were placed in the registry which were appealed - individuals were being placed on the Registry regardless of the severity of the act. Georgia does have a system where reports of child abuse and neglect are made; that is the SHINES system. The underlying language of this bill addresses the collection of information by the state’s registrar for vital records within the Department of Public Health. It requires that the registrar provide to the Division of Family and Children Services copies of or data derived from certificates and reports filed with the state registrar upon notification by the Division of Family and Children Services of receipt of a report of abuse or neglect concerning a child or his or her parents or siblings pursuant to O.C.G.A. 19-7-5. Such reports or data are to include records related to birth or death, fetal death, and putative father registry of this state concerning a child or his or her parents or siblings. No one opposed this legislation and it passed the Senate with a vote of 52-0. The House is now required to agree to the Senate’s changes to HB 993.
  • HB 1003, by Representative Jon Burns (R-Newington), was amended from its original form which sought to provide additional judges in the Ogeechee Judicial Circuit. The legislation came to the Senate Floor in the form of a new Committee Substitute by Senator Jesse Stone (R-Waynesboro). The legislation removes the administrative attachment of the Georgia State-wide Business Court from the Court of Appeals in O.C.G.A. 15-5A-16. The legislation passed 48-0. It moves now back to the House for the agreement to the changes.
  • HB 1093, by Representative Steven Meeks (R-Screven) , passed the Senate today by Committee Substitute with a vote of 47-2. It was presented by Senator Lee Anderson (R-Grovetown) in the form of a Committee Substitute. It creates a five-member Agricultural Commodity Commission for Wine and Grapes. The House is required to agree to these changes made.
  • HB 1094, by Representative Houston Gaines (R-Athens), was tabled in the Senate early in the day. This legislation addresses paid parental leave for state employees. Late in the afternoon, Senator Jeff Mullis (R-Chickamauga), asked the bill to be removed from the table and discussed the Senate Insurance and Labor Committee Substitute which revises O.C.G.A. 45-7-4 which revises the compensation of the Lieutenant Governor and members of the General Assembly. This helps to save jobs and lessen costs to the State, moving their salaries down by 11 percent. Members of the General Assembly make $17,350 annually; this cut applies for one year and will be reviewed next year. SB 81 previously proposed increasing salaries of the General Assembly; Alabama pays members of their legislature $40,000 annually. Senator P.K. Martin, IV (R-Lawrenceville) indicated that these cuts will permit that their legislative administrative assistants will not have to take as many furlough days. Georgia’s General Assembly is the lowest per capita in the country. HB 1094 passed the Senate by Committee Substitute with a vote of 43-3.

The House took up the following measures of note today:

  • SB 123, authored by Sen. William Ligon (R-Brunswick), eliminates a coal ash surcharge for municipal solid waste disposal facilities. This bill passed by a vote of 145-15. 
  • SR 19, introduced by Rep. Jon Burns (R-Newington), calls for a constitutional amendment to allow the General Assembly to meet virtually or in a location outside of the Capitol in the event of an emergency. This resolution was adopted by a vote of 151-6. 
  • The House voted to agree to the Senate substitute of HB 838 by a vote of 92-73. The Senate substitute creates a “law enforcement bill of rights” for the investigation of law enforcement office officers that could result in disciplinary action. The bill also creates an offense of “bias motivated intimidation” for certain acts committed against a person because of their actual or perceived status as a first responder. 
  • The House also voted to agree to the Senate substitute of HB 426 by a vote of 127-38. The Senate substitute adds reporting requirements and lowers the number of offenses that are eligible for a hate crimes sentence enhancement. 
  • SB 317, SB 337, SB 340, SB 394, SB 446, SB 482, SB 28, SB 367, SB 426, SB 445, SB 473, SB 477, SB 410, and SB 489 were postponed to the next legislative day.

Committee Reports

Senate Health and Human Services Committee
Chairman Ben Watson, MD (R-Savannah) and his Committee met late in the evening on June 22, 2020, after our release of the Gold Dome Report, to address these bills:

  • HB 521, by Representative Houston Gaines (R-Athens), amends O.C.G.A. 43-11-53 to authorize temporary, limited licenses for dentists and dental hygienists who are licensed in good standing in other states when they want to provide dental care to low-income patients on a volunteer basis for five days. The legislation provides for Missions of Mercy so that patients can get free dental care; it is also a mechanism for CE with the Board’s approval. The dentists and dental hygienists still are required to have active licenses (see lines 53-59). Senator Dean Burke, MD (R-Bainbridge) expressed concern about retired dentists performing procedures and their competence. The legislation also addresses massage therapists’ continuing education requirements (providing statutory authority for the national accrediting board for massage therapy to sign off on credits). The bill received a DO PASS recommendation to the substitute, moving the bill forward to the Senate Rules Committee.
  • HB 918, by Representative Sharon Cooper (R-Marietta), revises the Pharmacy Audit Bill of Rights in O.C.G.A. 26-4-118.The entity conducting the audit must give the pharmacy notice at least 14 days prior to conducting the audit for each audit cycle and include in such notice a comprehensive list of claims by prescription number to be audited, although the final two digits may be omitted, and the cost of such claims shall not be used as a criterion in determining which claims to audit. The audit shall not include more than 100 prescriptions per audit and an entity shall not audit more than 200 prescriptions in any 12 month period, provided that a refill shall not constitute a separate prescription. It also amends O.C.G.A. 26-4-119 regarding pharmacy benefits managers’ actions and how those drugs are reimbursed. Arcadia was steered from a PBM prescriptions, allowing it to pick up $25 million. This legislation adds tighter restrictions from the PBMs’ anti-steering bill passed in 2019. The bill received a DO PASS recommendation, moving it forward to the Senate Rules Committee. 
  • HB 947, by Representative David Knight (R-Griffin), seeks the carve out of pharmacy benefits from Medicaid managed care in O.C.G.A. 49-4-159 by requiring that the Department of Community Health engage an actuary to conduct an actuarial study of the fiscal impact of carving out pharmacy benefits from the state's current Medicaid care management organizations. The Department of Community Health, however, is conducting a “study” and thus, there is no longer a need for the bill. The author pulled the legislation. 
  • HB 1125, by Representative Trey Kelley (R-Cedartown), creates Lacee’s Law in O.C.G.A. 31-1-18 and O.C.G.A. 45-18-4.1. It addresses coverage for breast cancer treatment for individuals who are at high risk for this cancer. The State Health Benefit Plan does not cover mammograms for individuals until age 35 years old; the bill establishes who is considered to be “high risk” for breast cancer for that plan for teachers and state employees. Senator Dean Burke, MD (R-Bainbridge) noted his support for the bill. Greg Reybold, General Counsel for the Georgia Pharmacy Association, supported this legislation. Becky Ryles, representing radiologists, supported the legislation. The legislation received a DO PASS recommendation, moving it forward to the Senate Rules Committee.

Senate State and Local Government Operations Committee
Chairman Lee Anderson (R-Grovetown) and his Committee took up one bill in an early morning meeting. HB 1102, by Representative Dale Rutledge (R-McDonough), received a DO PASS recommendation. This legislation adds a “Revised Homestead Option Sales and Use Tax Act of 2020 into the Code at O.C.G.A. 48-8-109.15 et seq. It addresses use of the HOST and whether to suspend the sales and use tax and replace that tax with a sales and use tax to be authorized by the voters. This measure only addresses Rockdale County.

Senate Insurance and Labor Committee
Senator Burt Jones (R-Jackson) and his Committee met to address a couple of measures:

  • Representative Deborah Silcox (R-Sandy Springs) presented a new version to HB 1090 which revises provisions regarding employer's obligation to provide break time for an employee to express breast milk in O.C.G.A. 34-1-6 and O.C.G.A. 45-1-7. There was a late arriving Committee Substitute, LC 36 4431S. Section 1 of the legislation applies to private employers and Section 2 applies to state agencies/ The employer is required to provide the paid breaks for a mother to express milk unless of undue hardship and her legislation is consistent with federal law but it is broader as it also protects school teachers. In the newest version, Department of Labor Commissioner Mark Butler added language to address issues which his Department encountered due to handling of the pandemic. Part 1 of the legislation is Representative Silcox’s language; Part 2 of the legislation is language from Commissioner Butler carried by Senator P.K. Martin, IV (R-Lawrenceville). Commissioner Butler explained his portion of the bill does the following:
    • Codifies the Department’s emergency rules around the pandemic and unemployment benefits
    • Gives the Commissioner the ability to set the deductible earnings (the old Rule allowed an individual to make up to $50 per week; under the emergency declaration, it increased to $300 per week) and allows the Commissioner the ability to set the earnings from $50 to $300 depending on the situation (once an individual exceed the maximum, then a dollar for dollar is subtracted from the State unemployment benefit for the individual)
    • The weekly benefit time is adjusted to 26 weeks (this is consistent with the federal law and allows individuals to receive money from the federal government
    • Enumerates what the Commissioner can do in the event a state of emergency is declared by the Governor and authorized by the General Assembly
    • Permits the Commissioner to allow the Department to participate in the federal “Work Share Program” when possible

An amendment was offered by Senator Martin to Representative Silcox’s language addressing the liability of the employer; his amendment was adopted. Commissioner Butler did add that 300,000 Georgians, receiving unemployment benefits, are actually working part time. Also, because of these individuals working part time, more than $40 million in revenue to the State has been generated. He also noted that Georgia’s unemployment rate has now reduced to below 10 percent. The Committee gave HB 1090 a DO PASS recommendation to the Committee Substitute as Amended, moving the legislation to the Senate Rules Committee.

House Judiciary Non-Civil Committee
The House Judiciary Non-Civil Committee, chaired by Representative Chuck Efstration (R-Dacula), met to consider several bills today:

  • SB 40, authored by Senator Lester Jackson (D-Savannah), was presented as a substitute bill that would allow for restaurant sale of to-go mixed drinks upon signature of the Governor to March 1, 2021. Chairman Efstration presented the substitute, calling it a “band-aid” specifically aimed at COVID. The Committee recommended the bill DO PASS and be sent to the Rules Committee. 
  • SB 208, authored by Senator Randy Robertson (R-Cataula), is a comprehensive revision of Title 40 relating to ignition interlock devices, penalties related to driving under the influence, and other motor vehicle issues. The Committee recommended the bill DO PASS by Committee Substitute and be sent to the Rules Committee. 
  • SB 320, authored by Senator Chuck Payne (R-Dalton), amends Title 42 to provide a penalty for persons who are classified as sexually dangerous predators who fail to verify or update registration information as required by law. The Committee recommended the bill DO PASS and be sent to the Rules Committee. 

Rules Calendars for Legislative Day 38
In addition to propositions postponed from prior legislative days, the House is expected to consider the following measures on Wednesday for Legislative Day 38:

  • SB 288 - Criminal History Record Information; automatic restriction; final disposition other than a conviction; provide (Substitute) (SCCJS-Gaines-117th) Anderson-43rd 
  • SB 301 - Detainers; inmates charged with subsequent felony offenses under sentence and in custody; temporary custody provisions; revise (PS&HS-Werkheiser-157th) Tillery-19th 
  • SB 321 - Physician Assistants; relating to the number a physician can authorize and supervise at any one time; provisions; revise (Substitute) (RegI-Powell-32nd) Hufstetler-52nd
  • SB 335 - Children and Youth; foster children and foster families; laws and supports; strengthen (Substitute)(JuvJ-Wiedower-119th) Brass-28th 
  • SB 342 - Local Fire Departments; procedures for organization, issuance and revocation of certificates of compliance; provide (PS&HS-Rhodes-120th) Jones-25th
  • SB 344 - Witness or Criminal Defendant; certain proceedings conducted by video conference; requirements; provide (JudyNC-Efstration-104th) Mullis-53rd
  • SB 370 - Public Utilities and Public Transportation; compliance with certain safety and permit requirements; electric easements are utilized for broadband services; provide (Trans-Tanner-9th) Gooch-51st
  • SB 371 - Department of Transportation Officers; state investment in railways and railroad facilities and equipment; provide (Trans-Tanner-9th) Gooch-51st
  • SB 429 - Code Revision Commission; statutory portion of said Code; revise, modernize, correct errors or omissions in, and reenact (CR-Barr-103rd) Ligon, Jr.-3rd

The Senate has not yet adopted a Rules Calendar for Legislative Day 38.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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