Georgia Post-Crossover Legislative Update – March 17, 2020

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Due to the recent outbreak of coronavirus (COVID-19), the Georgia General Assembly has suspended the 2020 legislative session until further notice. The suspension began on Friday, March 13, one day after Crossover Day, the point at which legislation must move from one body of the Legislature to the other.

However, the Legislature did reconvene for a one-day special session on Monday, March 16 to ratify Governor Kemp’s executive order that declared a State of Emergency. It is unclear when or if the General Assembly will reconvene under normal circumstances but they expect to hold another special session on April 15 in order to extend the emergency declaration if required.

This update will cover the government’s response to the COVID-19 outbreak and also review the bills that survived Crossover Day and remain up for consideration when the General Assembly reconvenes.

COVID-19 State of Emergency

As of noon on March 16 there are 121 confirmed COVID-19 cases in the state of Georgia, according to the Georgia Department of Public Health. The plurality of cases are in metro Atlanta with 27 cases in Fulton County, 22 in Cobb County and 10 in DeKalb County. In response to the outbreak, Governor Kemp has declared a State of Emergency. The powers provided to the Governor via declaration and ratification of a State of Emergency significantly increase the ability of the executive branch to fight the outbreak.

Governor Kemp now has new abilities to suspend laws and regulations, assume direct operational control of all civil employees, compel health care facilities to provide services, transfer from any available fund in the state treasury sums as may be necessary to meet the emergency or disaster and provide welfare benefits to citizens.

Under this emergency authority, the Georgia Department of Public Health has regulations in place authorizing it to isolate persons infected with COVID-19, quarantine persons exposed to, or reasonably suspected of having been exposed to COVID-19, require surveillance, including the active and direct active monitoring of carriers of the virus and persons exposed to the virus, require persons to be vaccinated or immunized, examined, and treated, restrict travel into or within the state, limit or cancel public gatherings, and close, evacuate, or decontaminate any facility, or destroy or decontaminate any contaminated materials.

Governor Kemp has stated that he intends to use the broad powers to deploy “all available resources” to contain the spread of the coronavirus. The Governor said Friday he’ll initially use the authority to grant nurses from other states temporary Georgia licenses and lift restrictions on commercial truck drivers. He also called up as many as 2,000 Georgia National Guard troops to active duty and ordered all public K-12 schools to close through at least the end of March.

COVID-19 Judicial Emergency

On Saturday, March 14, Georgia Chief Justice Harold Melton issued a thirty day order declaring a statewide judicial emergency. Essentially, the order reduces but does not shut down court actions, gives litigants relief during this period of time from responding to statutory deadlines, and provides greater flexibility to judges in how to conduct court business. 

Justice Melton, however, recognized that certain “essential” court functions need to continue. That includes where an immediate liberty or safety concern is present, criminal court search warrants, arrest warrants, initial appearances, and bond reviews, domestic abuse temporary protective orders and restraining orders, juvenile court delinquency detention hearings and emergency removal matters and mental health commitment hearings.

To the extent court proceedings are held, he ordered they should be done in a manner to limit the risk of exposure, such as by videoconferencing, where possible.

State Budget

Both the Georgia House and Senate passed the mid-year budget that adjusts what the state expects to spend for the second half of 2020. The mid-year budget, which awaits Governor Kemp’s signature, keeps state government running through June 30. Notably, the final version includes $100 million Kemp requested Wednesday to help the state deal with coronavirus. The additional money is intended for the Georgia Emergency Management Agency and the Department of Public Health to aid in the response effort. Lawmakers also added $5 million into the mid-year budget for hospitals, which they said may face special costs associated with the virus.

In addition to the 2020 mid-year budget, the Legislature also must pass a 2021 budget. The House was able to pass its version of the budget, but the Senate did not take action on it before the session was suspended. Because approving a budget is a requirement of the Georgia Constitution, the General Assembly has to come back before the start of the new fiscal year on July 1. Leaders in both chambers are confident that they will meet the deadline, even if it means returning only for that purpose.

The FY 2021 budget has been hotly debated up to this point. The House draft would give teachers a $1,000 pay raise, half of the $2,000 raise that Governor Kemp requested while adding 2% pay raises for state employees and government workers, which could increase to as much as 5% more for those in high-turnover jobs, including food safety inspectors, prison guards and mental health workers.

The House plan also would restore some of the 1,200 positions Kemp had marked for elimination, including food safety inspectors, child welfare and program eligibility workers, agricultural extension employees, GBI lab scientists and technicians, juvenile justice security staff, and workers who help make sure veterans receive the benefits they earned. Moreover, the House draft includes grants for county health departments that Kemp wanted to cut and money to ensure that GBI crime labs don’t fall behind in testing of rape kits and DNA.

There could be political fallout from the budget fight between the Governor and the Legislature that survives beyond this legislative session. The House passed House Bill 1112 which would limit the Governor’s power to set the revenue estimate each year. The bill would require state agencies to send budget proposals to the House and Senate first rather than the Governor. The House also voted to curtail the Governor’s ability to withhold appropriations specifically determined by the Legislature.

Health Care

Health care has been a central focus for state legislators this session as they attempt to address a health care system in Georgia, especially in rural Georgia, that is increasingly strained. They are particularly focused on three main topics: surprise billing, price transparency and pharmacy benefit managers.

Among those three, surprise billing seemingly has the most momentum. Of the bills introduced to address the surprise billing issue, three have risen to the top and received approval from at least one legislative body: House Bill 789, House Bill 888 and Senate Bill 359.

The House of Representatives passed House Bill 789 on March 3. The bill, which is now assigned to the Senate Health and Human Services Committee, requires insurance companies to maintain an online directory of anesthesiologists, pathologists, radiologists and emergency medicine doctors that are covered by their plans.

The House also passed House Bill 888 by a vote of 164-4 on that same day, March 3. The legislation aims to protect patients from having to pay bills after receiving care at a hospital that is in their insurance network. These bills are currently sent to patients in the event they saw a contract doctor who is out of network at a hospital where they are supposedly covered. In such cases, the insurance company and the provider would be required to sort out the payments through arbitration. HB 888 is currently assigned to the Senate Health and Human Services Committee. Senate Bill 359 sponsored by Senator  Chuck Huftstetler (R-Shannon) is functionally the same language as HB 888. SB 359 passed the Senate unanimously on February 24 and is now in the House Special Committee on Access to Quality Health Care.

In addition to surprise billing, legislators are looking to make changes to the pharmacy industry, specifically pharmacy benefit managers who act as middlemen between insurance companies, pharmaceutical companies and consumers. House Bill 946, which passed the House on March 4, would increase oversight on the industry and bar managers from charging an insurance company more for a drug than it cost from a pharmacy. The Senate passed SB 313 a nearly identical bill on Thursday. Another bill, House Bill 947, would allow the state to study the financial impact of removing pharmacy benefit managers from its Medicaid plan entirely. House Bill 946 has been assigned to the Senate Insurance and Labor Committee while House Bill 947 was assigned to the Senate Health and Human Services Committee. Senate Bill 313 was referred to the House Special Committee on Access to Quality Health Care.

Finally, Senate Bill 303 sponsored by Senator Ben Watson (R-Savannah) passed the Senate on February 25 and has been referred to the House Special Committee on Access to Quality Health Care. The bill aims to provide for greater price transparency for non-emergency health care services. It would require the disclosure of pricing information on insurer websites thereby allowing consumers to compare competitors.

Taxes and Tax Credits

As with any legislative session, taxes are top of mind for legislators. That being said, this year, amidst declining revenues and an upcoming election, revenue is particularly salient. One of the first priorities of the session was to pass House Bill 276, which would put the burden of tax collection on online retailers. Overall the bills seeks to collect sales tax from online and third-party platforms selling retail products, thereby leveling the playing field for Georgia-based brick-and-mortar retailers and increasing revenue for the state. After the bill almost passed last year, a conference committee was appointed from the House and Senate which produced a compromise bill that was approved by both chambers on January 16. On Thursday, January 30 Governor Kemp signed the bill into law. It goes into effect April 1.

In other tax news, the House of Representatives passed a bill that would create a flat tax system in Georgia. Should the bill pass into law all Georgians would be subject to a 5.375 percent tax rate instead of the graduated system in place now where citizens pay between 1 and 5.75 percent depending on income level. The plan, which does include a credit for some low- and middle-income families, would accrue savings disproportionately to the wealthy (those making six figures) and could raise taxes on some lower income families. House Bill 949 is expected to cost state government $250 million per year.

Finally, tax credits have been a hotly debated topic thus far due, in part, to several audits conducted by both the state agencies and universities indicating that the film tax credit may not provide the benefit its supporters purport. Representative Matt Dollar (R-Marietta) introduced House Bill 1037 in part to address those concerns. The bill would require every film production to be audited and would only award tax credits after the audit process is complete. However, the legislation would also expand the tax credit to include companies that broadcast non-recurring sporting events with an economic impact of $50 million or more, such as Super Bowls and the NCAA Final Four basketball tournament. The bill passed the House of Representatives on March 12 and currently awaits action by the Senate Assignments Committee.

Going forward, more consistent review of tax credits may be on the horizon thanks to Senate Bill 302 sponsored by Senator John Albers (R-Alpharetta). The bill would permit the chairmen of the House and Senate tax committees to request independent economic-impact reviews of a few tax credits per year. The bill passed the Senate on February 24 and awaits action by the House Ways and Means Committee.

Transportation

As has been the case for the past few years, addressing Georgia’s transportation needs is a major concern for lawmakers. Part of the solution is raising revenues for transportation spending. That is the aim of House Bill 105 which was originally drafted to create a tax credit for disaster relief funding but now includes 50-cents-per-ride tax on rideshare companies such as Uber and Lyft, taxis and limos. The tax on rideshare would replace the sales tax required under House Bill 276. House Bill 105 which had already passed the Senate was amended to require that the money generated from the new fee – up to $40 million annually, by some estimates – be dedicated to public transportation. The amended bill now returns to the state Senate for a final vote.

Some of the language that found its way into HB 105 was stripped from HB 511 which was a massive rural transit bill pushed last session. House Bill 511 now makes slight changes to the Atlanta Transit Link Authority appointment and voting procedures. It was favorably reported by the Senate Transportation Committee on March 9.

The Senate took action to address another novel part of the transportation system — electric scooters. Senate Bill 159 passed the Senate on February 4 and is currently in the House Transportation Committee. The bill would leave regulation of scooters up to local governments while providing a definition of an electric scooter in state law.

The final major transportation push is related to Georgia’s freight and logistics network. Representative Kevin Tanner (R-Dawsonville) has sponsored two pieces of legislation on the issue, House Resolution 935 to establish the Georgia Freight and Logistics Commission and House Bill 820 to create a line item in the state budget for state investment in rail infrastructure. Both passed the House and were favorably reported by the Senate Transportation Committee.

Education

Three major education bills are working their way through the legislative process. The first, House Bill 444, has received approval from both the House and the Senate. The bill limits state funding for college courses provided to high school students to 30 credit hours. The change to the popular dual enrollment program was spurred by increased costs as enrollment increased. House Bill 444 will now go to the Governor for his signature.

The Senate voted in favor of a piece of legislation, Senate Bill 386, that would expand Georgia’s only private school voucher program. The program aimed at special needs students would be expanded to include students with 504 plans which applies to students with disabilities that do not require special instruction under the Disabilities Education Act. The bill now awaits action from the House Education Committee.

Finally, the Senate approved Senate Bill 367 on March 3, which would reduce the number of tests required of students throughout their K-12 education. Backed by Governor Kemp and State School Superintendent Richard Woods, the bill would reduce the total number of mandatory tests in Georgia’s public schools to 19 from 24. The legislation, which passed the Senate 53-0, cuts four tests from high school and one from the fifth grade.

Foster Care

Led by Governor Brian Kemp and Lt. Governor Geoff Duncan, a significant effort is underway to improve the foster care system in Georgia. Three major bills survived Crossover Day, each introduced to try to improve care for foster children.

House Bill 912 would allow foster parents to leave children in the care of a babysitter for up to three days without having to get approval from the state Division of Family and Children Services (DFCS). Current law limits that time to two days. HB 912 passed the House of Representatives unanimously and awaits action from the Senate Assignments Committee.

House Bill 913 would, among other things, lower the age requirement for potential adoptive parents to 21 from 25. HB 913 passed the House of Representatives and is currently in the Senate Judiciary Committee.

Senate Bill 335, which passed the Senate on February 20, would require judges to prioritize court cases involving children in foster care and asks juvenile courts to better track those cases. It would also allow DFCS to vary the amount of training time foster parents are required to undergo annually based on their experience level. The bill currently sits with the House Juvenile Justice Committee.

Senior Care

Prompted by an Atlanta Journal-Constitution investigative report on the state of senior care in Georgia, House Bill 987 passed the full chamber by a vote of 160-1. The legislation, which is sponsored by Representative Sharon Cooper (R-Marietta), would expand the regulation of senior care facilities and increase fines for violations causing serious physical injury to, or the death of, a resident. Specifically, the bill would (i) require administrators who run assisted living facilities or large personal care homes to receive special training and licenses; (ii) require special certification for memory care units; and (iii) double the minimum fine where a home is cited in relation to death or serious harm. The legislation is now in the Senate Regulated Industries and Utilities Committee.

Two other Senior Care related bills failed to gain approval from either legislative body. House Bill 955 was aiming to help ensure local coroners or medical examiners are notified of unexpected deaths in senior care homes and House Bill 849 called for families to be allowed to install so-called “granny cams” in rooms at nursing homes and assisted living facilities to monitor what’s going on with their loved ones. Neither will remain under consideration.

Coal Ash

Concern over coal ash disposal reached a fever pitch this year as residents in rural Georgia experienced contaminants in their water supply as a result of old, leaky unlined coal ash ponds at Plant Scherer, one of the nation’s largest power plants. Several major bills gained approval from at least one side of the Capitol. House Bill 93, which would require public notice when wastewater is being drained from coal ash ponds into local waterways was approved by the House on March 12 and Senate Bill 123, which would reduce imported coal ash was approved by the Senate on February 24.

Additionally, HB 929, which would require long-term monitoring of groundwater around ash ponds with results of the monitoring made available to the public in clear language, passed the House 113-52 on March 12, the same day that House Bill 959, which would discourage out-of-state coal ash from entering Georgia by raising the fee on coal ash being dumped in landfills, gained approval.

Ethylene Oxide

Two bills requiring companies to publicly report their ethylene oxide emissions, House Bill 927 and Senate Bill 426, passed each of their original chambers – the Georgia House and Senate – but one or the other must pass both chambers in order to be presented to the Governor for signature en route to becoming law. The bills would make it mandatory for facilities to make these notifications if they want to continue operating in Georgia. Reports would be posted on the state Environmental Protection Division’s website. At present, companies only have to report when more than 10 pounds of ethylene oxide is released in a 24 hour period. The newly passed legislation would give businesses 24 hours to report any amount of the gas released.

Elections

The Senate approved a bill sponsored by Senator John Kennedy (R-Macon) to require that election officials take action to address long lines on election day. Specifically, the proposal, which is supported by Secretary of State Brad Raffensperger, states that if lines last more than one hour, county election superintendents would have to split up precincts that have more than 2,000 voters, provide additional voting equipment or hire extra poll workers in the next general election. The legislation also gives election officials greater latitude to provide more voting machines in the event of long lines. But it also gives local officials the latitude to provide fewer voting machines which was cause for concern amongst Senate Democrats.

Business Efficiency

Two major tort reform bills, Senate Bill 390 and Senate Bill 415, failed to crossover to the House this past week. Both would have made major changes to how tort cases were argued and the type of damages that could be awarded.

Another priority of the business community, Senate Bill 110, also hit a roadblock. Senate Bill 110 which would establish a new court specifically for complex business matters was voted down in the Senate on March 5. The measure has been tabled.

Alcohol Delivery

House Bill 879, sponsored by Representative Brett Harrell (R-Snelville), would permit home delivery of beer and wine so long as it is delivered to a person who would have to provide ID showing he/she is of legal age. The measure passed the House of Representatives on March 10 and is in the Senate Regulated Industries and Utilities Committee.

Sovereign Immunity

Representative Andrew Welch (R-McDonough) is leading an effort to allow citizens to file lawsuits against the state to challenge unconstitutional laws. House Resolution 1023 would put a referendum on the statewide ballot asking whether to void the constitutional doctrine of sovereign immunity, which bars lawsuits against the government. The resolution, which needs to be approved by at least a two-thirds vote, passed the House and the Senate Judiciary Committee and now awaits action by the Senate Rules Committee and the full Senate.  

Criminal Justice

House Bill 994, supported by Governor Brian Kemp, which intends to strengthen anti-gangs laws has passed the state House. The legislation would allow prosecutors to ask juvenile judges to transfer gang-tied cases to the adult system. The bill would also mandate that the Department of Juvenile Justice put convicted juvenile gang members through an “evidence-based” gang rehabilitation program.

The legislation, which has seen opposition from criminal justice advocates, passed the House 93-65.

Parental Leave

The House of Representatives passed House Bill 1094 to provide three weeks of paid leave to state employees who are new parents regardless of gender. At present, state employees can take up to 12 weeks of unpaid leave, which employers must offer under federal law. The bill would have no impact on private companies. It is currently in the Senate Insurance and Labor Committee.

Environmental Clean-Up Dedicated Fees

The Senate voted unanimously on March 9 in favor of House Resolution 164 which had already passed the House with over 2/3rds of the chamber in support. The Resolution would put a constitutional amendment on the November ballot to dedicate tire and solid waste fees to environmental cleanup projects. Georgians pay a $1 disposal fee on each replacement tire they buy, and counties pay a solid waste disposal fee of 75 cents per ton. Under state law, the General Assembly can’t formally dedicate fee money to specific causes without voters approving a constitutional amendment to do so.

Vaping

Both the Senate and the House have considered legislation pertaining to nicotine vaping devices. The Senate passed Senate Bill 375 which would require e-cigarette education to be added to mandatory drug and alcohol education programs in schools. It would also raise the legal age to buy tobacco products under state law from 18 to 21.

The House voted against a proposal, House Bill 364, that would have added a tax to vaping and other nicotine products.

Gambling

After heavy speculation prior to legislative session and industry optimism in the early weeks, House Resolution 378 which aimed to amend the constitution to allow for casino gambling and betting failed to get a vote on the House floor. There is talk amongst sports-betting supporters that separate language to legalize this narrow gambling practice could find its way as an amendment onto existing legislation but it is thus far unclear how likely that effort would be to succeed.

Conclusion

Until further notice, the Georgia General Assembly is suspended. Lawmakers have agreed to another special session on April 15 in order to extend the emergency declaration if required and possibly finalize a fiscal year 2021 budget. That being said, the Governor has the authority to renew the declaration unilaterally if lawmakers are unable to return to the Capitol due to the COVID-19 virus. Until Georgia and the country writ large get a handle on the coronavirus, legislation will not proceed. Dentons Georgia Legislative team will continue to monitor the situation at the Georgia Capitol as it evolves. Please let us know if you have any questions or concerns regarding the state’s response to coronavirus or any of the legislative efforts mentioned above.