Gold Dome Report - March 10, 2017
Today marked Legislative Day 31 for the General Assembly. Lawmakers took on a light schedule today, hoping to leave early to enjoy the warm weather.
Lt. Governor Casey Cagle and his Healthcare Reform Task Force met this afternoon for an hour plus meeting with two national healthcare experts on the proposed legislation in Congress to repeal the Affordable Care Act – and in particular the impact to Georgia. More on these discussions follows below.
The House and Senate appear slightly mad at one another, each having set light Rules Calendars for floor action after two days off this week for Committee meetings, and there was evidence of that displeasure in the House Rules Committee meeting. Cross over day had been moved forward two days to afford more time for each body to consider legislation from the other, but few bills had yet come out of committees. Chairman John Meadows indicated that the House could conceivably just go home next Thursday after passing the Budget. While it appeared to be a "threat" of sorts, it is not likely that the General Assembly will "quit" next week.
The House took up only two pieces of legislation today.
SB 102, by Sen. Butch Miller (R-Gainesville), allows for the designation of emergency cardiac care centers. It also establishes the Office of Cardiac Care within the Department of Public Health. It is the follow up legislation from the 2016 study committee on Cardiac Care Centers. It was carried in the House by Rep. Lee Hawkins (R-Gainesville) and passed by a vote of 156-1.
HR 389, by Rep. Sam Watson (R-Moultrie), was also considered. It creates the House Rural Development Council, which will seek to identify policies that will help enhance economic opportunities in rural areas around the State. It was adopted by a vote of 162-0.
Majority Leader Bill Cowsert (R-Athens) made a motion to engross HB 264, which was approved.
The first bill presented was HB 183, by Rep. Robert Dickey (R-Musella), and carried by Sen. Matt Brass (R-) in the Senate. It creates the Georgia Geospatial Advisory Council under the Department of Community Affairs. It passed unanimously with a vote of 51-0.
HB 264, by Rep. Chuck Efstration (R-Dacula), was carried in the Senate by Sen. P.K. Martin (R-Lawrenceville) and increases the total limit on the issuance of bonds for the Georgia World Congress Center Authority from $200 million to $400 million. It was engrossed earlier in the morning and then went on to pass by a vote of 45-9.
Without any further business, the Senate adjourned until Day 32.
SB 274, by Sen. Dean Burke (R-Bainbridge), seeks to remove the prohibition of members of the Peace Officers' Annuity and Benefit Fund from joining the Georgia Firefighters' Pension Fund by virtue of the same qualifying employment in O.C.G.A. § 47-7-40. If adopted, it would become effective on July 1, 2018 if it is determined to have been concurrently funded as provided in Chapter 20 of Title 47. Otherwise, it would be immediately repealed on July 1, 2018.
SB 277, by Sen. Michael Williams (R-Cumming), proposes to create a new Chapter 20E in Title 33 to address the provision of emergency medical care to covered individuals. The Chapter will apply to all carriers providing a managed care plan so as to address "balanced billing" to patients for such care in emergency settings. It requires at O.C.G.A. § 33-20E-3 that a carrier which provides benefits to covered persons with respect to emergency medical care "shall pay for such emergency medical care: 1) without the need for any prior authorization determination; 2) regardless of whether the health care provider furnishing such emergency medical care is a participating provider with respect to emergency medical care; and 3) furnished by a nonparticipating provider." If a nonparticipating provider provides the care, then that provider "may bill the carrier directly and the carrier shall pay directly the nonparticipating provider with first dollar coverage for the emergency medical care rendered to the covered person at the lesser of the following amounts:
1) The nonparticipating provider's actual charges or
2) The eightieth percentile of all charges for the same particular emergency medical care, in similar facilities, in the same geographic location, as reported by an independent benchmarking database of actual charges not affiliated with any carrier or health care provider. The charges shall be tied to 2016 chares and may be adjusted for inflation according to the Consumer Price Index or another indicator, as determined by the department. The carrier may collect any required deductibles, coinsurance, copays or other patient financial responsibility from the covered person pursuant to the provisions of the managed care plan contract."
It prohibits in (c) that the managed care plan deny benefits for emergency medical care previously rendered based upon a covered person's failure to provide subsequent notification in accordance with plan provisions where the covered person's medical condition prevented timely notification. In (d), it requires that once an individual is stabilized, as required by EMTALA laws, then the carrier is to arrange a transfer of the covered person to a participating provider at the carrier's cost – if the carrier fails to make such transfer within 24 hours after stabilization, the carrier is to pay the entirety of the nonparticipating provider's charges for care of that individual. O.C.G.A. § 33-20E-4 addresses the plan's prohibition to deny or restrict in-network covered benefits to a covered person solely because the covered person obtained treatment outside the network. O.C.G.A. § 33-20E-5 provides that if a covered person receives emergency medical care from a nonparticipating provider at an in-network facility, such covered person shall not be required to pay more to the carrier than the same cost sharing that the covered person would have to pay to the carrier for the same emergency medical care received from a participating provider – this is the "in-network cost sharing amount." In (a)(2), it prohibits the balanced billing to a patient for any such care to a covered person.
HB 571, by Rep. Sam Watson (R-Moultrie), seeks to address the Magistrates Retirement Fund in Chapter 25 of Title 47. It adds a new Code Section at O.C.G.A. § 47-25-43 so that a member who is in arrears for his or her dues' payment (required by O.C.G.A. § 47-25-41) for a period of 90 days shall become a suspended member on the ninetieth day of such arrearage. It allows for reinstatement only during the 30 day period beginning with his or her next full term of office and that member is denied service credit for the period of time during which he or she was suspended. It further adds a new Code Section at O.C.G.A. § 47-25-82.1 to address situations in lieu of receiving retirement benefits as provided in O.C.G.A. § 47-25-81 and O.C.G.A. § 47-25-82 so that upon application for retirement the member may elect in writing by the board to receive: 1) a 100 percent joint life annuity payable during the lives of a member and his or her designated survivor; or 2) a joint and survivor annuity that shall provide for 50 percent of the monthly retirement benefit amount that is paid to the member to be paid to his or her designated survivor following such member's death. The amount of the retirement benefit payable under this new Code Section would be based on the member's age upon retirement; based on the age of the member's designated survivor (someone with a familiar relationship through blood, marriage or adoption) upon the member's retirement; and computed so as to be actuarially equivalent to the total retirement benefit otherwise which would have been paid. It amends the current law concerning when retired members become employed in O.C.G.A. § 47-25-86 so that if a retired member becomes employed as a chief magistrate, his or her retirement benefits shall be suspended during the period of time he or she holds such position, and upon cessation of such service, his or her prior retirement allowance shall be resumed. If adopted, it would become effective on July 1, 2018 if it is determined to have been concurrently funded as provided in Chapter 20 of Title 47. Otherwise, it would be immediately repealed on July 1, 2018.
House Judiciary Non-Civil Committee – Setzler Subcommittee
Sen. Butch Miller (R-Gainesville) presented SB 121 to the Subcommittee. SB 121 addresses the codification of the Governor's order, issued in December 2016, so as to allow Naloxone to be dispensed with a statewide prescription from the State's Health Officer. The legislation is to address Georgia's growing epidemic with opioid use and overdoses. As we have learned, much has been said about the "triangle" of heroin and opioid drugs being used in the north Atlanta region of the State. Since the Governor's executive order was issued and emergency pharmacy board rules were put in place, several lives have been saved through the purchase of over-the-counter Naloxone drugs to counteract overdoses. If passed, this would enact the Jeffrey Dallas Gay Jr. Act, naming the law after a young man from Gainesville who died as a result of a drug overdose. Sen. Miller presented a new Substitute today (LC 29 7515 ECS) with some format changes – making the law less susceptible to a legal challenge for this standing prescription drug order issued by the State Health Officer.
Rep. Mandi Ballinger (R-Canton) inquired about the administration of the drug on an individual who was not actually having an overdose and what those side effects would be. Sen. Miller indicated that question had been raised in the Study Committee on drug overdoses and abuse which was held last fall. Chairman Ed Setzler (R-Acworth) asked questions about case law and federal regulations needed for this type of prescription. Attorney Jill Travis indicated that was addressed in the Rogers versus State Board of Pharmacy case – meaning that the General Assembly could not give a state agency authority for the broadcast of drugs. Therefore, it needed to be done by the State Health Officer.
Deb Bailey, with Northeast Georgia Health System, spoke to the merits of the legislation which originated from the Study Committee on the issues around drug abuse and overdose. She stated that those who overdose look just like individuals in the room and on the Subcommittee. Further, she noted that her hospital's neonatal unit had 11 babies addicted to opioids on the day that the Study Committee visited in Gainesville. Other states have also codified their executive orders on these drugs (including Virginia and New Jersey). Ms. Bailey indicated that the local Hall County Sheriff's and Gainesville Police have these medicines and have saved lives in the last six months.
Rep. Betty Price, M.D. (R-Roswell) asked about who actually received the prescription. Ms. Bailey stated that it was family members of these addicted individuals – they have experiences where their loved one may have already had more than one close interaction with a drug overdose. They did discuss that this Naloxone or antagonist actually just binds the opioid receptor – thus, it works immediately and allows the individual to breathe. The individual, however, would still need to seek emergency treatment as this drug's effect does wear off. Chairman Setzler inquired about whether the drug, like a pseudoephedrine product, could be "cooked" into something else. Ms. Bailey said no – and that had never even been brought up.
Rep. Bert Reeves (R-Marietta) spoke out in favor of the legislation. He serves on a foundation in Marietta which works at raising drug addiction awareness. He stressed that drug overdose relapse occurrence was high.
Rep. Robert Trammell (D-Luthersville) asked questions about the immunity provided in the legislation to the State Health Officer. His concern was that such immunity was too broad and was extended to the individual when perhaps they might not act in good faith or perhaps may act where such authority might be used for that individual's personal gain. After much discussion around this issue, the Subcommittee agreed to add Rep. Trammell's amendment so that such State Health Officer would be afforded this immunity from liability if he or she acted in good faith. SB 121 then passed as a new Substitute with the amendment included. The legislation now moves to the full Committee for its review.
Next up was SB 159 by Sen. Lee Anderson (R-Grovetown) which has been dubbed the "purple paint bill." Sen. Anderson's legislation seeks to allow property owners the ability to mark their property lines using purple paint. He stated that there have been more than ten states which have passed a similar law, including North Carolina and Arkansas. There were questions posed to Sen. Anderson on whether this issue could be addressed through a local ordinance; he stated that it could be done that way. He countered that if it was a State law there were groups waiting to help educate Georgians about this method of marking their property. He stated that the Georgia Realtors Association, Georgia EMCs, and Georgia Farm Bureau were among the supporters. Sen. Anderson stressed this was an "option" at O.C.G.A. § 16-7-2(b)(4), requiring that these purple paint marks be vertical, placed so that the bottom of the mark is not more than three feet from the ground, and placed where clearly visible (100 feet apart on forested land and 1,000 feet apart for non-forested land). Rep. Price took issue with the reasoning – she often hikes and is concerned about an innocent hiker who wanders through a painted area, without knowing that it is marked as criminal trespass with the paint and thinks that the paint is merely marking a trail. Rep. Regina Quick (R-Athens) attempted to explain that some of the legal questions raised by the Subcommittee were important and not meant to be hostile – she also asked about the "magic" of purple paint. Sen. Anderson stated that individuals who were colorblind could see this paint. However, Rep. Quick indicated that her research showed that might not be the case and that those with colorblindness might be confused. However, it is a new standard for trespass with the purple paint – not rebuttable as are other markers for trespass which must be proved. The legislation was held. The bill may end up being studied over the summer if no solution is found.
Georgia's Health Care Reform Task Force
In January, Lt. Governor Cagle announced the creation of the Georgia Health Care Reform Task Force. He appointed Sens. Dean Burke, M.D. (R-Bainbridge), Ben Watson, M.D. (R-Savannah), Chuck Hufstetler (R-Rome), Renee Unterman (R-Buford), and Jack Hill (R-Reidsville). All of these Senators are healthcare providers with the exception of Sen. Hill, who oversees the writing of the State's Budget.
When formed, Lt. Governor Cagle had these principles in mind for the Task Force to follow (per the press release issued January 6, 2017):
PATIENTS FIRST: The doctor-patient relationship is paramount. Reforming our health care system will make certain that Georgia’s citizens receive high quality care from the doctors they choose. We will ensure every decision rests with the individual, not a network of bureaucrats.
PATIENT DRIVEN: Health insurance should be personalized to meet the needs of individuals and their families. Repealing and replacing Obamacare will permit us to stop forcing citizens to pay more for less, without subsidizing other expenses unrelated to each patient’s care. Increased flexibility will allow for providers and doctors to innovate and offer their patients higher quality care at lower costs.
PATIENT ACCESS: People need access to health care solutions that fit their needs and budgets. Reform will increase diversity and choice in the marketplace so that all consumers can best determine the right policies for themselves and their families. Georgia’s taxpayers should not be forced to shoulder the burden for federal mandates.
PATIENT-SPECIFIC: With more than 330 million people across our nation who each have very different healthcare challenges, we cannot afford to sustain one-size-fits-all insurance policies. Georgia’s leaders are closest to the people who we serve, and we can best adapt to meet the evolving challenges our citizens face. Medicaid funding should be realigned to operate as a block grant to stretch our limited dollars further and provide the highest quality of care to those who need it most.
Today, this Task Force met to hear presentations by national experts. In particular, they focused on the recent introduction in Congress of legislation to repeal and replace what is often called "Obamacare" or the Affordable Care Act.
Jim Frogue, a partner with the Washington, D.C.-based Frogue Clark consulting entity, spoke about the legislation which has now undergone markups in the House Committees on Commerce and Labor and Ways and Means. It does several things as proposed:
- Repeals all the taxes associated with the Affordable Care Act (ACA)
- Repeals the individual mandate for insurance coverage but it does create a 30 percent penalty for individuals who lack health insurance coverage for a continuous 63 days
- Enhances Health Savings Account contributions, moving the amounts for individuals to $6500 and families to $13,100
- Provides "tax credits" (of sorts) for individuals who purchase insurance plans (these would be starting at $2,000 and move in increments of $500 to a maximum of $4,000)
- Increases the age rating bands from 3:1 to 5:1
- There are no penalties for preexisting conditions
- Includes a controlled Medicaid expenditure approach (noting that in 2015, the federal government expended $350 billion on Medicaid (it started as a $1 billion dollar program and has gone up 7 percent average annually))
- It includes $10 billion for non-expansion states
- It provides $100 billion for ten years for state innovation grants for efforts to pay high cost individuals' care (this would be spread across all 50 states)
Mr. Frogue outlined the three phases in the new legislation, noting in particular that the Secretary of Health and Human Services, Tom Price (a Republican physician from Roswell), would have a great deal of authority at the administrative level.
While there have been concerns expressed on both sides of the aisle on the legislation, it does appear clear that the "Freedom Caucus" has issues with the tax "credits" and the Democrats are concerned about the phasing out of Medicaid expansion.
Mr. Frogue indicated that the Medicaid allotments do not look good for Georgia. It has a low per capita cost and now is being punished for its prudent spending in not expanding Medicaid. The legislation uses a 2016 baseline for the calculation of each state's federal Medicaid projection. This year's baseline is definitely not in Georgia's favor.
He did outline some "opportunities" which include the waivers. Secretary Price is also open to do things differently and likes flexibility. Seema Verma who is to be confirmed as the new Centers for Medicare and Medicaid Services Administrative Officer on Monday, March 13, likes waivers and is an expert on those. Mr. Frogue noted that many individuals on Medicaid are actually able-bodied adults and Georgia should think about how to use the waiver as a spring board – perhaps working with other departments, such as HUD and Secretary Ben Carson. Secretary Price's long history in Georgia is also good; he is also well respected in Congress. Mr. Frogue mentioned that Secretary Price is the first physician to lead the agency in 25 years. Other opportunities include the insurance industry actively and aggressively marketing policies. He also mentioned the guaranteed issue matter – noting that Georgia should look at two states which have had good success (accenting particularly the high risk pool's use and how important it is to fold those individuals into the entire pool of individuals – he mentioned Maine in particular).
Mr. Frogue also mentioned the problems plaguing the rural hospitals not only in Georgia but across the country. Sens. Isakson, Perdue, Werner and Kaine have offered legislation addressing the Medicare Area Wage Index – Georgia currently gets the short end on this program and could get $50 million if the law is changed. A House proposal has been introduced mirroring Sen. Johnny Isakson's bill.
Joseph Antos, with the American Enterprise Institute, was today's other speaker. He talked some more about waivers and how their flexibility is helpful. In particular, he mentioned the use of 1115 and 1332 waivers. Georgia, like other states, needs to eliminate unnecessary Medicaid services. The State also must lower the level of emergency room use. 33 states use 1115 waivers. He also noted that with a 1332 waiver, Georgia could address the private insurance market. High risk pools need to be managed and there are needs for disincentives so that insurers do not cherry pick healthy covered lives. Mr. Antos noted that rural healthcare is a problem and that there is no "magic bullet" to eliminate that. However, reducing unnecessary hospitalizations would be useful. For instance, he indicated that the State could look at healthcare delivery such as finding alternatives to calling 9-1-1 and using trained paraprofessionals when situations are not really emergencies (he stated that Georgia should look at Southern California and its work in this area).
There were several questions posed to the speakers.
Lt. Governor Cagle asked about the double digit premium increases which Georgia has seen and what reforms would be best. Mr. Frogue noted that non-group rates have gone up for insurance products – Georgia is not alone with these increases as Arizona and Pennsylvania have also seen such increases. He stressed that the right incentives are necessary to get the coverage at the right time. He spoke some of the penalties imposed on individuals covered by Medicare who did not select their Part B coverage option; that was included in the ACA (30 percent fee). Mr. Antos stressed that segregating the sicker folks into a high risk pool was wrong – their costs need to be financed with those who are not sick. It would be ideal for states to use the innovation grants to address these individuals.
Sen. Hufstetler (R-Rome) asked about the health savings accounts and penalties for individuals to have 'skin in the game.' Mr. Antos stated that Georgia should explore what Indiana has done over the last ten years, covering about 400,000 individuals. It has shown that lower-income individuals are capable of managing their healthcare expenses and that 'mild' penalties are imposed when individuals show up in emergency rooms in cases where they do not have emergencies.
Sen. Burke (R-Bainbridge) asked essentially for Mr. Antos to boil it down for him – would the legislation before Congress be hurtful or helpful for Georgia. However, Sen. Burke gleaned that Georgia needed to give some thought to an 1115 waiver and how to apply for an innovation grant. Mr. Antos agreed with his statements.
Sen. Watson (R-Savannah) asked about the tax credit idea in the new legislation. He seemed to be somewhat concerned about the moneys going to insurance companies directly. However, he did ask for clarification that the credits were not limited to whether the individual paid taxes.
Sen. Hill (R-Reidsville) asked questions about the Medicaid expansion population (Georgia, though did not expand Medicaid). Mr. Antos indicated that the tax credits would be available for the working poor.
Lt. Governor Cagle inquired about the financial aspects as well as the delivery of care component. He wants to bring down Georgia's costs of care and make it more efficient. Mr. Antos stated that government needed to get out of the way to allow that to happen. He recited two places (Pennsylvania at the Geisinger Clinic and Colorado at the Intermountain Health Clinic) that have experienced success in cost reduction. He stressed to Lt. Governor Cagle that Georgia needed to use health savings account dollars more innovatively. Lt. Governor Cagle also asked about the 2016 baseline in the legislation; that does not help Georgia. Mr. Antos stated that it would need to be eliminated from the legislation as otherwise other states, such as New Jersey and New York which have higher per capita costs, benefit from Georgia's lower costs.
Our 2017 Georgia Capitol team consists of Stan Jones, Helen Sloat, Chuck Clay, George Ray, and Logan Fletcher. We will also try our hand at tweeting this year – so follow us! @GDR_Live
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.