The 2008 regular session of the New Hampshire legislature wrapped up in the early hours of June 5. The possibility of a veto session remains but at this point no bills have been vetoed by Governor John Lynch. There are still numerous bills that have not reached the Governor so this report will be updated as that action occurs.
There were 128 bills either lobbied and/or tracked for the NHAJ during the 2008 legislative session. Like we have seen during past sessions, we had to be very vigilant as there was a growing number of bills to grant immunity or limit liability to entities, including doctors, nurses, dentists, gasfitters, home inspectors, home builders, emergency volunteers, private investigators and teachers. Efforts late in the session to get an amendment adopted to protect injured workers from reduced permanent impairment awards that result in a change in the AMA's permanent impairment guidelines was successful.
Below is a recap of some of the more significant bills of interest to the NHAJ.
- relative to workers compensation permanent impairment awards. In early spring the AMA's "Guide to the Evaluation of Permanent Impairment" was modified and it was determined that the new guide may have an adverse affect on injured parties permanent impairment awards. Ed Stewart and Maureen Manning worked with us to get an existing bill amended to include a provision mandating that the previous version of the AMA Guide be used while further study of the issue takes place. Although the insurance lobby worked against us, we were successful in getting this provision amended to SB 501, which passed both Houses and awaits the Governor's action.
– an act relative to liability insurance for passenger rail service. This issue has been around for over a decade and has gained in attention and support as the cities of Nashua and Manchester plan for passenger rail service to Boston. Jim Demers was actively involved in the numerous approaches that were discussed. Unlike the laws in Massachusetts and Rhode Island, the adopted version of the bill is a modified $75 million liability cap, mandating that there also be at least $75 million in insurance coverage. At one point there was talk about sending the bill to the court for an opinion on constitutionality but that was dropped when the House decided to move the amended version of the bill.
- allowing certain judges to terminate membership in the judicial retirement plan and elect senior active status. Jim Demers assisted in the lobbying effort to get this measure passed, whereby an existing judge can retire prior to being vested and still be allowed to be called up as a judge in special cases. This measure passed both House and awaits the Governor's action.
- relative to insurance fraud. This bill, introduced at the request of the insurance department, was intended to clarify the laws relative to insurance fraud, including adding a fine for failure to report fraudulent claims, specifying the commissioner’s use of fraud unit information, adding insurance producers to the laws regarding theft by misapplication of property and defining insurance document for the purposes of forgery. The Insurance Department and the Attorney General’s office fully supported the bill. The NHAJ opposed HB1578 because it included provisions which make the Insurance Department’s papers from an investigation privileged and immune from discovery in a civil lawsuit. Such investigation materials may show that an insurance company was guilty of illegal or unfair conduct, and parties potentially harmed by that conduct should be able to have access to the materials in connection with a lawsuit where the insurer's conduct is relevant. Kevin Dugan offered language in a House Commerce Committee subcommittee meeting that was rejected so the bill passed the House and when it reached the Senate Commerce Committee, Bob Blaisdell submitted Kevin Dugan’s language and it was adopted. The insurance industry waged an aggressive lobby to oppose the NHAJ amendment. A refined version was offered as a floor amendment in the Senate which passed simply stating that information regarding a closed investigation could only be accessible by making a motion before a judge. The bill went to a conference committee where the House refused to concur and the bill died.
- would have repealed the medical malpractice screening panel law. Recognizing early that there was little support for repealing this law, this measure was held for summer study where we will be proposing ways to modify the law to make it more workable and acceptable.
- an act relative to automated external defibrillators. In the House Health & Human Services Committee there was an amendment proposed which would have added complete immunity to physicians and trainers of the devices when they teach individuals to use defibrillators. There was no subcommittee established to work on the bill so we directly engaged committee members, with the assistance of Kevin Dugan, in raising concerns about the immunity provision. We were successful in having the bill pulled from the executive session agenda and sent to a subcommittee. Bob Blaisdell negotiated with the NH Heart Association, the primary proponent of the legislation and immunity amendment. Mike McGrath attended the subcommittee meeting and his comments had a powerful effect on the members of the subcommittee. We were successful in convincing the subcommittee to remove the immunity provision and the full committee ultimately agreed by a vote 17-0. The immunity issue resurfaced in the Senate but we continued to be successful in keeping it from being added and the bill without immunity passed both Houses and awaits the Governor's action.
- to granted blanket immunity to physicians who prescribed drugs to be administered during emergency management exercises. This measure was supported by Fire Chiefs and NH’s Director of Homeland Security. Bob Blaisdell testified on behalf of the NHAJ in opposition. We testified that physicians are expected to act consistent with reasonable medical standards of care when prescribing drugs and by granting them blanket immunity removes any and all accountability. We were successful in amending the bill in the House allowing communities to conduct point of dispensing exercises to test emergency management operations plans and allowing qualified health professionals to prescribe and administer only flu vaccines during such exercises. The qualified health professional would be deemed an emergency management worker by the community and would already fall under the exemption provisions of RSA 21-P:41 during such exercises We followed the bill to the Senate where they decided the bill needed more work and they voted to send it to interim study.
- relative to the regulation of home inspectors & HB 763-establishing the licensure and regulation of residential and building inspectors. There were numerous attempts by proponents of the bills to include language granting immunity or a limited statute of limitations for work performed by home inspectors. Although the home inspectors aggressively lobbied for this limitation, we were successful in defeating every attempt and getting that provision removed for SB212, which eventually passed without the limited liability provision.
-relative to regulating residential building and remodeling contractors. This bill has been around since January of 2007, although similar legislation has been around for four years. Once again there was talk of a possible limited liability amendment, but due to aggressive lobby to prevent this, the amendment was not formally introduced. After 2 years of working on the bill, the House laid it on the table where it eventually died.
- relative to the status of emergency services volunteers. This bill started out by granting blanket immunity to all emergency services volunteers. Kevin Dugan testified in the Senate and with his help we were successful in removing the immunity provision. The committee used this bill as a vehicle to add certain emergency services volunteers to the definition of “employee” with respect to public employment. This quickly became a workers compensation issue and modified language was acceptable to Ed Stewart. When the bill had its public hearing in the House, the bill’s prime sponsor submitted an amendment to the committee trying to get the immunity provision back into the bill. Bob Blaisdell testified before the committee and the amendment was rejected. This bill was signed by the governor on May 21st and will be effective January 01, 2009.
- relative to immunity for school personnel using necessary force to protect pupils. This measure would have granted civil and criminal immunity to teachers who use physical force on students when they claim such force was used to protect other students. We testified and lobbied in opposition for the NHAJ because of the broad and far reaching immunity language. The committee agreed and the bill was defeated in the House.
would have established the regulation of private investigators. We lobbied aggressively against provisions in the bills to grant immunity to private investigators but more importantly, we opposed the broad definition in the bills that would have captured attorneys and some law office employees as private investigators. This measure was held for summer study and we will continue to work to clarify and limit the definition.