Gold Dome Report — Legislative Day 22

Nelson Mullins Riley & Scarborough LLP

Wednesday marked a widely welcomed halfway point to a full legislative week under the Gold Dome. Legislators gave approval to two measures of education interest — Representative Tim Barr’s alternative student transportation bill (HB 455) and Senator Bruce Thompson’s “Dexter Mosley Act” (SB 51) — as well as a measure to redesign Georgia’s breast cancer awareness license plate and create a new all-cancer awareness tag (HB 179). The Senate also passed SB 148, the 2021 Special Council on Tax Reform and Fairness for Georgians and the Special Joint Committee on Joint Committee on Georgia Revenue Structure. The House also signed off on legislation to allow for businesses to hold virtual shareholders’ meetings after the pandemic subsides (HB 306). These measures now cross over to the opposite chamber for further consideration. More on the day’s action in today’s #GoldDomeReport.

In today’s Report:

  • Committee Reports
  • New Legislation
  • Rules Calendars for Legislative Day 23

Committee Reports

House Insurance Committee
Chairman Eddie Lumsden (R-Armuchee) and the Insurance Committee heard two proposals this morning:

  • HB 303, authored by Representative Mike Glanton (D-Jonesboro), seeks to enact the “Jaida Act” in O.C.G.A. 33-9-43.1 so as to allow insurers to offer to active military duty, including reserve and National Guard, the ability to be offered a reduced insurance premium when those individuals are between the ages of 18-25. Reduced premiums are generally offered to those who are 26 and older. Representative Glanton reminded the Committee that he had worked on this legislation for three years and that he had discussed the idea with the insurers. It is not a mandate and the Department of Insurance has no opposition. HB 303 received a DO PASS recommendation and moves to the House Rules Committee.
  • HB 509, authored by Representative Houston Gaines (R-Athens), ensures that if the Affordable Care Act is struck down by the Supreme Court as unconstitutional that Georgia’s law would protect pre-existing conditions. Representative Bruce Williamson (R-Monroe) asked about the insurers’ feedback on the proposal. Representative Gaines indicated that there was earlier opposition but that the Attorney General and Department of Insurance support his legislation. It would require insurers to make available at least one “reasonably priced” comprehensive major medical plans to individuals without limitation or exclusion to pre-existing medical conditions. Representative Park Cannon (D-Atlanta) indicated she sees increased transparency but asked where the legislation came from as the issue has not been something that the General Assembly has seen in recent years. Representative Gaines noted that a similar bill had passed in Florida and it was a way in which Georgia could continue to protect individuals with pre-existing conditions. Representative Angelika Kausch (D-Johns Creek) inquired whether it would cover conditions resulting from COVID-19; Representative Gaines indicated that the Affordable Care Act did not have a lengthy list of pre-existing conditions but the legislation directs the DOI to require insurers to provide a plan as an option. Representative Carolyn Hugley (D-Columbus) countered that the pre-existing condition would be at the time that the legislation becomes effective. The Committee gave a DO PASS recommendation on this bill, moving it to the House Rules Committee.

The Committee held SB 4, authored by Senator Kay Kirkpatrick (R-Marietta). SB 4 seeks to prohibit patient brokering.

House Human Relations and Aging Committee
Chairman Jesse Petrea (R-Savannah) and the Human Relations and Aging Committee held a lengthy 2 plus hour hearing this afternoon on two bills. A third proposal, HB 290 authored by Representative Ed Setzler (R-Acworth), was held. HB 290 is a proposal to address hospital and long-term care facility visitation policies for families and caregivers to visit with individuals in hospitals, nursing homes and other long-term care settings. HB 290 is still being revised and is anticipated to be brought forward again at a meeting next Monday. No action was taken today on HB 290.

The other bills heard without action today:

  • HB 261, authored by Representative Todd Jones (R-Cumming), seeks to create a pilot in Chapter 8 of Title 31 so as facilities can purchase charity care credits. His proposal came about through his work in the private world with cap and trade; he held a study committee on the issue as well, looking at ways to perhaps create an exchange for indigent care credits. The pilot is focused on not-for-profit hospitals and way that they can buy and sell credits. Facilities now receive $.87 on each dollar of cost of care. He argued that this was a “test” and not a change in policy and would be for a two-week period in 2022 with one week in the spring and one week in the fall. There were a host of questions raised by the Committee members including the reference to “normalize” at 150 percent of cost as well as definition for the term, ‘health care facility.’ Representative Erick Allen (D-Smyrna) and Representative Mary Robichaux (D-Roswell) led the questions. Representative Allen indicated his thoughts were that it would take longer than two hours for a hospital to “scrub” data in preparation of this “test.” Representative Jones indicated that he would arrange for in-kind help for facilities to look at their claims level data. Representative Allen also asked about data security, whether the outside assistance is a “covered entity,” and insurability. Representative Donna McLeod (D-Lawrenceville) asked if Representative Jones was familiar with the Affordable Care Act, asking him why not expand Medicaid - Jones countered that expanding Medicaid would be a different policy discussion. Representative Matthew Gambill (R-Cartersville) inquired about costs to the Department of Community Health to conduct the pilot and whether funds would be in the FY 2022 budgets. Representative Sandra Scott (D-Rex) asked about use of the credits rather than these nonprofits actually providing care to patients; again, Representative Jones indicated that would be a discussion in 2023 if his data proved correct.

Tim Kibler, with the Georgia Alliance of Community Hospitals, rose in opposition. His facilities are all not-for-profit facilities. He planted the idea that perhaps the casino legislation, if passed and ratified, could dedicate funds to indigent care. He noted that he feared that the legislation was adding additional burdens on hospitals when they are already challenged.

Ethan James, with the Georgia Hospital Association, also rose in opposition to the bill. It is interesting and outside the box approach. He reminded the Committee that hospitals had 10 million patient encounters in the last year and had 150,000 employees. Each hospital in his organization is struggling during the pandemic. He acknowledged there were shortfalls in indecent care but hospitals continue to provide “ground breaking, life-saving care.” Further he noted that the hospitals have $2 billion in uncompensated care annually. This proposal is not adding resources; it is moving resources. Not a single hospital supports this effort - GHA has both large and small, urban and rural, for-profit and not-for-profit members. Mr. James also raised concerns that it could potentially be in violation to anti-kickback statutes. The Department of Community Health has data; hospitals have seen no model. The security concerns are valid and the legislation does not resolve the uninsured crisis. Further, he reminded the Committee that not-for-profit hospitals pay taxes such as unemployment and some sales taxes on certain goods. The timing for this legislation is disappointing — hospitals are focused now on allowing visitation by families of their loved ones; providing vaccines; providing care; etc. This is a tremendous burden.

Brandy Sylvan, with the Department of Community Health, also noted the Department’s concerns. She acknowledged that the Department was interested but there were a number of challenges. DCH does not have the staff to conduct this pilot and no funds are included in the budget for the pilot. Further, no fiscal note has been prepared on the bill, which she described as lacking specifics. It also requires the Department to submit a report; however, it is hard to measure “success.” Also, she noted that the definition of healthcare facility was an issue and it is not clear on the exchange of funds or impact to draw down federal funds. Finally, she addressed the question around data. She explained that the Department did have claims data on State Health Benefit Plan and Medicaid claims; there were also annual hospital surveys. The Department needs more specifics and would find it difficult to implement as written.

  • HB 605, authored by Representative Sharon Cooper (R-Marietta), seeks to address in Chapter 8 of Title 31 the permission to allow cameras in long-term care facilities so that families can have some piece of mind on their loved one’s care. Representative Cooper explained that the bill was a compromise and she had examined 13 states, looking closely at ways to protect a patient’s rights and yet permit access to cameras. The legislation addresses a patient’s decision making capacity; disagreement if a patient, who shares a room, may encounter when they do not wish to have a camera device; addresses sharing of recordings; addresses when a camera/recording may be discontinued; and many other elements to enact. The Committee had several questions. The legislation is not “new” but is different from the one previously authored by Representative Demitrius Douglas (D-Stockbridge). Representative John LaHood (R-Valdosta) explained that this bill was necessary, particularly now when families are separated because of the pandemic. They need a virtual connection and this allows consumers access - noting it was a good, balanced approach. There were also questions around who controlled the cameras. Chairman Petrea stated he had concerns about a facility removing an electronic device and how that could be a violation. The bill does address the movement of a patient if he or she does not wish to be in a room with another individual who has a camera.

Leading Age Georgia noted that HB 605 was a good effort and was reviewing the legislation further. The State’s Long-Term Care Ombudsman, Melanie McNeill, indicated she had some concerns about use of the terms healthcare provider and healthcare professional which are not defined in the legislation and who has the ability to turn off a recording (if a provider that may defeat the purpose of the legislation). Jason Broce, with the Georgia Health Care Association, spoke in favor of the legislation and noted that it was a compromise effort and his Association supported it in its current form.

Senate Insurance & Labor Committee
The Senate Insurance & Labor Committee, chaired by Senator Dean Burke (R-Bainbridge), met this morning to consider the following legislation:

  • SB 80, authored by Senator Kay Kirkpatrick (R-Marietta), amends Title 33 to create the "Ensuring Transparency in Prior Authorization Act."

Senator Kirkpatrick presented the bill to the Committee as a substitute (LC 46 0435S), which she explained is the result of numerous conversations with stakeholders. She described the legislation as a bipartisan consumer protection bill and noted that she will continue to work with stakeholders to improve the bill going forward. Senator Kirkpatrick gave a high-level overview of the bill, which includes a requirement that insurers’ criteria and statistics for prior authorizations be posted online for providers, qualifications for reviewers, review deadlines that match current CMS guidelines (72 hours for urgent, 7 days for non-urgent issues), criteria for honoring prior authorizations, and requirement that prior authorizations be honored when plans or prior authorization reviewers are changed within the same insurer. The substitute sets a January 2022 effective date for new and renewed contracts.

The Georgia Association of Health Plans thanked Senator Kirkpatrick for conversations and amendments to the bill thus far and expressed interest in continuing to work on the bill on the House side. Jeff Breedlove of the Georgia Council on Substance Abuse spoke in favor of the bill. Michael Power of the Pharmaceutical Care Management Association spoke in opposition to the bill.

The Committee recommended the bill DO PASS by Committee Substitute and be sent to the Rules Committee.

  • SB 156. authored by Senator Marty Harbin (R-Tyrone), amends Title 34 to provide for the appointment of a chief labor officer. The chief labor officer will have the power and duty to provide reports on unemployment claims, develop and implement strategies to improve the reliability of the Department of Labor's services, and provide timely reports to any financial audits of the Department.

Senator Harbin presented the bill to the Committee, noting that the chief labor officer will have concurrent powers to the Labor Commissioner. Committee members expressed competing concerns about constituents having issues accessing benefits from the Department of Labor during the pandemic and about the potential overreach of the bill in relation to an elected constitutional officer.

The Committee recommended the bill DO PASS and be sent to the Rules Committee.

House Industry and Labor Committee
The House Industry and Labor Committee, chaired by Representative Bill Werkheiser (R-Glennville), met today to consider multiple measures including:

  • HB 389, authored by Representative Todd Jones (R-South Forsyth), amends Title 34 to change the definition of employment to encompass services performed for wages. The Department of Labor is authorized to make a contrary determination on a case by case basis. Representative Jones noted that he was working on a substitute right up to the beginning of the meeting and apologized to committee members for such short notice on the changes. He walked members through the specific changes including a new fine structure which creates a line of delineation for business above or below 100 employees. The new bill also allows the commissioner to exercise their judgement on the intent of the offense. The new version also removes the right to private action. He promised to answer any questions of members that might come up in the coming days as they read the substitute. No action was taken on the bill.
  • HB 397, authored by Representative Bill Werkheiser (R-Glennville), amends Title 34 to specify that professional employment organizations and coemployment clients must agree in writing on the responsibility to provide workers compensation. If no agreement is reached in writing, the coemployment client is responsible for providing the workers compensation. Chairman Werkheiser walked the committee through the bill’s purpose through a hypothetical situation. The committee also heard testimony from the public. Representative Tom Kirby (R-Loganville) and Dewey McClain (D-Lawrenceville) both expressed their strong support for the bill. No action was taken on this bill.

New Legislation

The House read and referred the following legislation to committee today:

  • HB 601, authored by Representative Ron Stephens (R-Savannah), amends Title 16 to clarify that definitions for marijuana in the criminal code do not include products approved by the FDA. This bill was referred to the House Judiciary Non-Civil Committee.
  • HB 605, authored by Representative Sharon Cooper (R-Marietta), amends Title 31 to require consent and notification of residents of long term care facilities prior to the implementation of electronic monitoring. This bill was referred to the House Human Relations and Aging Committee.
  • HB 606, authored by Representative Randy Nix (R-LaGrange), amends Title 20 to include the Georgia Independent School Association as an approved accreditation agency for the HOPE scholarship. This bill was referred to the House Education Committee.
  • HB 608, authored by Representative Marcus Wiedower (R-Watkinsville), amends Title 50 to stipulate that certain broadband grants may only be given to entities that expand broadband to areas of the state where no other broadband provider has already provided access. This bill was referred to the House Governmental Affairs Committee.
  • HB 617, authored by Representative Chuck Martin (R-Alpharetta), amends Title 20 to allow college athletes to receive compensation for the use of their name, likeness, or image. The bill prohibits the revocation of a scholarship solely due to an athlete receiving compensation. The bill also requires postsecondary institutions to provide financial literacy and life skills courses to student athletes. This bill was referred to the House Higher Education Committee.

The Senate read and referred the follow legislation to committee today:

  • SB 236, authored by Senator Matt Brass (R-Newnan), amends Title 3 to allow restaurants to sell mixed drinks for off-premises consumption if they are licensed to sell liquor for on-premises consumption. This bill was referred to the Senate regulated Industries and Utilities Committee.
  • SB 238, authored by Senator Brian Strickland (R-McDonough), amends Titles 1 and 28 to provide that only the statutory text, arrangement, and numbering of the Official Code of Georgia be given the force and effect of law. It expressly specifies that annotations, research references, and other non-statutory text does not have the force and effect of law. This bill was referred to the Senate Judiciary Committee.
  • SB 239, authored by Senator Sally Harrell (D-Atlanta), amends Title 20 to require that college tuition in the state be calculated on a per-credit hour basis. This bill was referred to the Senate Higher Education Committee.
  • SB 240, authored by Senator Sally Harrell (D-Atlanta), amends Title 20 to require all local boards of education to provide a course on the critical role elections play in the democratic way of life. This bill was referred to the Senate Education and Youth Committee.
  • SR 144, authored by Senator Matt Brass (R-Newnan), recognizes February 19, 2021 as Georgia Caregivers Day. This resolution was adopted.

Rules Calendars for Legislative Day 23

The House is expected to consider the following measures on Thursday for Legislative Day 23:

  • HB 34 - Audiology and Speech-Language Pathology Interstate Compact Act; enact
  • HB 43 - Motor vehicles; require registration application forms to include optional information regarding certain conditions which may interfere with a registrant's ability to communicate
  • HB 63 - Alternative ad valorem tax; motor vehicles; revise definition of fair market value
  • HB 86 - Georgia Lottery Mobile Sports Wagering Integrity Act; enact
  • HB 141 - Criminal procedure; requirements for awards made from Georgia Crime Victims Emergency Fund to medical service providers; provide
  • HB 218 - Crimes and offenses; weapons carry license reciprocity in this state; expand
  • HB 442 - Domestic relations; management of social media in parenting plans; provide
  • HR 119 - Senator Johnny Isakson Bridge; Chatham County; dedicate

The Senate is expected to consider the following measures on Thursday for Legislative Day 23:

  • SB 193 - Ad Valorem Taxation of Property; requiring that mobile homes procure and display decals; grant counties the option
  • SB 105 - State-Wide Probation System; conditions and procedures under which probation may be terminated early; revise
  • SB 143 - Mechanics and Materialmen; waiver of lien and labor or material bond rights; conform a reference within a statutory form
  • SB 159 - Elementary and Secondary Education; provision relating to student transportation; revise

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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