NHAJ Legislative Priorities
2009-10 Legislative Session
NHAJ sets its legislative priorities based on our goals of fairness, access and accountability in the civil justice system. This year we set four top priorities: one each in the substantive areas of court funding, judicial process, consumer protection and insurance reform. The statuses of those bills, as well as many of the more than 50 bills receiving substantial attention from NHAJ, are set forth below.
Access to justice has no meaning if the doors to the court house are closed for lack of funding. Although not a budget year, the 2010 Legislative Session focused on substantial deficits in the state budget and across the board cuts that included over $4 million in cuts to the judicial branch. Working with the Chief Justice and members of the House Finance Committee, NHAJ members and staff presented a united front: explaining the critical role played by the courts, examining the consequences of proposed cuts, and proposing alternate revenue sources to supplement (and in some cases supplant) general fund dollars. NHAJ President Ralph Holmes, NHAJ Officer Paul Chant, and NHAJ Member Chuck Douglas provided essential leadership on this bill. By the end of the special session called to finalize work on the budget, the judicial branch cut equaled $1 million.
Over the last decade, access to justice in matters of medical negligence has become more costly and more time consuming due to the introduction of medical screening panels. Initially intended to promote earlier settlement of medical negligence matters, the panels have created a whole new layer of process: requiring a trial before a three person panel prior to any trial by jury. HB 50
sought to promote the statutory purposes in the original legislation by (1) requiring that panels proceed based on offers of proof (2) within a limited time period. A bill nearly identical in language had passed the House last year by a vote of 299-69. Under the leadership of NHAJ Governor Kevin Dugan, HB 50
passed the House by an even larger margin: 330-19. In the Senate Judiciary Committee, the bill received a vote of “ought to pass.” In the full Senate, however, Senator House moved successfully to table the bill. This action thwarted the will of the House and the Senate Judiciary, effectively nullifying extensive advocacy by NHAJ. Click here for talking points.
A small win for health care consumers can be reported on HB 1548
, an enrolled bill which requires the reporting of infections in ambulatory surgical settings.
When special immunities are granted, the doors to justice are closed. Every session, NHAJ fights numerous efforts to provide special immunities to industries ranging from food providers to railroads. This year, our biggest fight involved the antifreeze industry in HB 431
. HB 431
as originally introduced in the House would have given the antifreeze industry immunity in exchange for its support of a mandate to include a bittering agent in its product. We have known for some time how dangerous antifreeze is: that without a bittering agent, it results in unintentional digestion, with resultant death. Painful death. NHAJ Governor Chris Seufert, NHAJ Lobbyist Bob Clegg and Executive Director Ellen Shemitz advocated against immunity, asking instead that the industry be held responsible for whatever bittering agent it added. Justice prevailed in the House, as the immunity was stricken. The House acted responsibly in a way that is fair to both the consumer and the producer. It followed established policy that producers be held responsible for products they put into the stream of commerce. In the Senate, however, the Industry succeeded in inserting immunity language back into the bill, while still permitting industry choice of bittering agents. Such immunity exposes our state to significant cost: environmental, health and financial. NHAJ is working to prevent House concurrence on this bill. Talking Points online.
Better results can be reported on two bills: HB 1310 and HB 1686. HB 1310 sought to provide full immunity for health care workers hired by towns. That bill was voted ITL in the Senate. HB 1686 seeks to promote juvenile diversion programs. As originally drafted, the bill (and a companion bill from the Child and Family Law Committee) provided immunity for employers accepting children through diversion programs. NHAJ Governor Leslie Nixon and Executive Director Ellen Shemitz worked with both the House Child and Family Law Committee and the House Criminal Law Committee to amend the bills, such that juvenile diversion could be promoted without a loss of rights for juveniles. HB 1686 survived the Senate without the reintroduction of immunity language. Continued vigilance is needed. Consider for example SB 516, a bill limiting rail road immunity that has been sent to interim study.
Finally, NHAJ can report success in the Senate in the defeat of SB 468, a bill introduced by Jeb Bradley that sought to set a $250,000 cap on noneconomic damages, limit attorney fees, provide immunity for emergency care, limit wrongful death action, and generally restrict constitutional rights to full legal recourse. Powerful testimony was provided by NHAJ Governor Kevin Dugan, NHAJ Member Chuck Douglas, and NHAJ Lobbyist Bob Clegg
Workers injured on the job due in part to employer negligence should not have to stand in line behind their employer when recovering for the costs of injury. HB 1315 sought to restore fairness and balance to the worker compensation system, by addressing an inequity caused by a Supreme Court opinion in an unrelated matter. HB 1315 would have advanced justice by allowing a decision maker to consider the circumstances of the case when ordering division of any third party recovery. Under the leadership of NHAJ Secretary Paul Chant, The bill passed the House on a roll call vote of 159-125. Despite a vote by the Senate Commerce Committee of “ought to pass,” the full Senate voted for interim study by voice vote. A roll call on a vote of ought to pass was held.
A better result emerged with HB 1371: a bill to permit the recording of IMEs to ensure accountability and transparency. Under the leadership of NHAJ Treasurer Maureen Manning, and with substantial support from NHAJ Member Peter Webb, the bill passed the House 241-32. It was amended in the Senate, and finally passed on May 12, 2010. HB 1371 as amended includes a legislative study committee (1) to review the impact of recording of IMEs and (2) to consider the requirement set out in HB 1370 that IME doctors performing 10 or more IMEs/year must provide an annual report disclosing their client(s), the amounts paid and opinions rendered. (HB 1370 passed the House by a roll call vote of 163-112 but died in the Senate.) The Legislative Study Committee created by HB 1371 must issue a report by November 1, 2010, which means that meetings will take place this summer. Your ideas and support would be appreciated.
More consumer/labor wins can be reported in a series of workers’ compensation bills. HB 216, a 2009 Session bill that had been referred for interim study, sought to allow for attorneys fees in workers’ compensation cases that settled 21 days or less prior to a hearing. While the Senate amended the original bill down to a 7 business day time frame, the bill passed both houses and was signed by the Governor on May 7, 2010. The new law becomes effective on January 1, 2011. In HB 271, another bill studied over the summer, workers gained additional assurance of privacy relative to their medical records. This enrolled bill mandates inclusion of a notice in any medical record request that clarifies scope of release and allows the commissioner to assess a civil penalty of up to $2,500 for disclosure of irrelevant records. Finally, HB 1368 provided another labor win, allowing for the assessment of a fine againstemployers who misrepresent the nature of a hire.
Fairness means that all peoples should be come before the court equal in the eyes of the law. Why then should businesses enjoy a higher interest rate on court judgments than consumer? Under the leadership of NHAJ Governors Chris Seufert and Barney Brannen, NHAJ advocated for HB 1543
to set prejudgment interest rates for consumers at the same rate set for business so as to encourage insurance companies to process claims with greater efficiency and to prevent unjust. The bill passed the House by voice vote, reported out of Senate Commerce with an “ought to pass” vote, but was then laid on table by motion of Senator Houde. Click here for talking points.
Better results can be reported on some insurance bills. HB 1254 calls for the disclosure of liability insurance policy limits at any time after filing suit. The bill passed by roll call vote in the House (159 to 148) and then in the Senate (after an amendment has passed and will take effect on January 1, 2011.
Finally, we can report success on two bills related to subrogation and liens in civil actions, thanks to the extensive work of NHAJ Member Jared Green. As originally introduced last session, HB 577 sought to create a presumption of a 1/3 lien for DHHS. NHAJ took a lead role over the summer and in both sessions, and was able to help build support for an amended bill which simply allows for a division “as justice may require.” HB 1259 addresses the same problems outside of the Medicaid context- setting the same standard for division: “as justice may require.” Both bills have passed both houses. HB 577 is already chaptered law.