ATLANTA – An agreement reached by email constitutes a valid contract the state must uphold, even if that means delaying the execution of a person on death row, the Georgia Supreme Court ruled unanimously Tuesday.
The email was an agreement between defense lawyers and the state Attorney General’s office that capital cases would not move forward during the COVID pandemic unless certain conditions were met.
One result was a delay in the execution of Virgil Presnell Jr., the longest-serving person on Georgia’s death row. Presnell was sentenced to death in 1976 after convictions on murder, rape, and kidnapping charges.
In April of last year, a deputy attorney general and Presnell’s lawyers agreed – via email – that no executions could take place until six months after three conditions related to the COVID pandemic were met. Vaccines had to be readily available to the public, the state Department of Corrections must have resumed its normal visitation rules, and the COVID-19 statewide judicial emergency order must have been lifted.
The Attorney General’s office moved ahead and set Presnell’s execution for May of this year but provided only two days’ advance notice to his lawyers. They sued the state for breach of contract, arguing Georgia had violated its agreement, that the conditions had not all been met, and that six months had not elapsed.
Lawyers for the state argued the state cannot be sued because of the doctrine of sovereign immunity, which bars lawsuits against the state government without its consent. A Fulton County court judge sided with Presnell and his lawyers and blocked the state from moving ahead with the execution.
The state then appealed to the Georgia Supreme Court, arguing the attorneys’ email agreement was not a written contract that could override the sovereign immunity doctrine.
The state Supreme Court unanimously sided with Presnell and his lawyers on Tuesday, finding the email agreement was a valid contract that the state violated by scheduling the execution.
“[T]he state has not cited a single case, nor are we aware of one, in which our appellate courts have adopted a per se rule that emails cannot create a written contract sufficient to waive sovereign immunity,” Justice Carla Wong McMillian wrote. “To the contrary, the great weight of authority has indicated that, as a general matter, emails may constitute written contracts.”
“Though it may prove inconvenient, uncomfortable, or undesirable to the state … everyone should be able to count on the state to honor its word,” Justice Charles Bethel added in a concurring opinion. “The state should keep its promises because the people of Georgia, who are the very source of the state’s sovereignty, are owed a government that honors its commitments.”
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
ATLANTA – Georgia should institute a 30% to 35% tax credit for music-production expenses to help grow the state’s music industry, a bipartisan legislative study committee recommended this week.
The tax incentive would encourage out-of-state productions to invest in Georgia musicians, the committee said. The state should also set the amount of spending needed to qualify for the tax incentive to $25,000 for recorded musical productions and allow companies to aggregate multiple projects to meet that threshold.
The committee also recommended lowering the spending threshold to earn the tax credit to $200,000 for musical or theatrical tours that start in Georgia. This would encourage productions, including Broadway touring companies and major musical acts, to launch their tours in Georgia.
The state should set up a Georgia Music Office within the Office of the Governor to publicize Georgia’s musical talent and attract music companies to the state. That office, modeled on a similar, successful office in Texas, should have three full-time staffers, the committee recommended.
The new music office should create a “Music City” certification that Georgia cities could earn if they meet certain requirements. That would help bolster musical networks and draw attention to the music industry in the designated cities. The program would be modeled on a similar program in Texas that has so far certified over 35 cities in that state.
Georgia should also set up a music commission to advise the new music office. That commission should include music-industry leaders, businesspeople, and music educators.
The state should set up grants for between $5,000 and $25,000 to help support local musicians and recording studios, the committee recommended.
Georgia should also designate music-production development jobs as high-demand careers for the purposes of the Technical College System of Georgia’s new High-Demand Career Initiative program. That would provide funding for employers to create paid apprenticeship programs in music production and help create a future workforce for the industry.
The state’s success in attracting film and television productions after a 2008 tax-incentive reform provides a blueprint for capitalizing on the state’s rich musical heritage that includes internationally known acts such as The Allman Brothers Band, Trisha Yearwood, Outkast, and R.E.M.
Though Georgia has offered music-industry tax incentives since 2017, they have not been competitive enough to beat out the packages offered by other states. The incentives are also set to expire at the end of this year.
The new recommendations grew out of a bipartisan, bicameral study committee established this year. The committee heard from Georgia luminaries such as Chuck Leavell, the Georgia-based keyboardist for The Rolling Stones who previously played for The Allman Brothers Band.
Leavell – and many others who testified before the committee — noted that Georgia is losing music business to other states that offer more generous tax incentives.
“We know the competition, what’s happening in Pennsylvania, Louisiana, and Tennessee,” Leavell told the committee this fall. “We need to get at least even with these guys.”
The General Assembly, which begins meeting in January, would need to approve corresponding legislation for the ideas to become a reality.
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
ATLANTA – The federal government should ensure Medicare Advantage insurers Humana and Aetna cover cataract surgeries for older Georgians without delays or denials, Georgia’s Democratic Congressional representatives said this week.
Aetna started requiring prior authorizations (PAs) for cataract surgeries in its Medicare Advantage plans across the country last year. After protests from doctors and others, Aetna rolled back the policy – except in Georgia and Florida. Humana, another large Medicare Advantage insurer, enacted a similar policy in August requiring prior authorizations for cataract surgeries in Georgia, Capitol Beat reported earlier this year.
“These PA policies put Georgia [Medicare Advantage] patients at greater risk of falls and accidents as their vision continued to deteriorate while they wait for surgery,” the six Democratic representatives said in a letter to Chiquita Brooks-LaSure, chief administrator for the Centers for Medicaid and Medicare Services (CMS), the federal health-care regulator.
“Georgia [Medicare Advantage] beneficiaries have faithfully paid their premiums every month and their access to sight-restoring surgery should not be delayed. They deserve to have the same access to sight-restoring surgery that Aetna and Humana…beneficiaries have in other states,” the representatives added.
This week’s letter from the Democratic representatives follows a similar letter sent to Brooks-LaSure in November by a group of Republican U.S. representatives from Georgia.
“Aetna’s and Humana’s prior authorization policies simply create obstacles to this common surgery for both patients and their physicians,” the five Republican legislators wrote.
Aetna and Humana representatives told Capitol Beat in September the prior authorization policies in Georgia are due to the companies’ pre-existing relationship with Florida-based iCare Health Solutions, a contractor that handles eye-care claims.
Georgia eye doctors say the policy is unnecessary.
“It’s a burden and a delay,” Dr. J. Chandler Berg, an Albany-area doctor and president of the Georgia Society of Ophthalmology, told Capitol Beat in September.
Prior authorization requirements are also a national concern. A report by the Office of Inspector General in the U.S. Department of Health and Human Services last April found around 13% of Medicare Advantage prior authorization denials were for services that would have been covered under traditional Medicare.
CMS recently issued a proposal to change its rules around prior authorization. If implemented, the new rule would require health insurers to streamline their prior authorization policies by 2026, along with other requirements. CMS will accept public comments on the rule until March 13, 2023.
The proposed CMS rule is similar to a bill that addresses PA requirements passed by the U.S. House earlier this year. That bill, called the Improving Seniors’ Timely Access to Care Act, is currently stalled in the Senate.
Older Americans can enroll in Medicare Advantage plans through private health insurance companies instead of obtaining health care through traditional Medicare. More than half of Georgians enrolled in Medicare, the federal insurance program for adults 65 and older, are members of private Medicare Advantage plans rather than the traditional Medicare program for their health insurance, according to the Kaiser Family Foundation.
The Democratic U.S. Representatives who signed this week’s letter are David Scott, D-Atlanta, Henry “Hank” Johnson Jr., D-Stone Mountain, Lucy McBath, D-Marietta, Sanford Bishop Jr., D-Albany, Nikema Williams, D-Atlanta, and Carolyn Bourdeaux, D-Suwanee.
The Republican U.S. Representatives who sent a similar letter in November are Buddy Carter, R-Savannah, Barry Loudermilk, R-Cassville, Drew Ferguson, R-West Point, Rick Allen, R-Augusta, and Austin Scott, R-Tifton.
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
Micha Rich works for the state of Georgia. He is one of the plaintiffs in a lawsuit that seeks to force the State Benefit Health Plan to cover gender-confirming medical care, including surgery. (Photo credit: Teeter Tomlin)
ATLANTA – A group of Georgians is suing the state over its failure to provide health benefits for transgender people through the State Health Benefit Plan, which provides health coverage for state employees, including public school employees.
Two of the plaintiffs in the case work for the state, while one is the son of a state employee covered by the State Health Benefit Plan. The lawsuit maintains the failure to provide the medical services, including gender-confirming surgery, amounts to discrimination based on sex. The Campaign for Southern Equality, an LGBTQ advocacy group with members in Georgia, is also a plaintiff in the lawsuit.
“I grew up in Georgia, I went to college in Georgia, and now I work for the state of Georgia. I want to see Georgia lead on treating people fairly,” said Micha Rich, one of the plaintiffs. He is a staff accountant for the Georgia Department of Audits and Accounts.
“I love what I do and that I get to work in service of the public good. But my employer should not be able to deny me health care because of who I am. For years, I had to put off living my life fully while I waited to have the medical treatments my doctors and I knew I needed,” Rich added.
Medicare and many other private insurance companies already cover the treatments. Recent lawsuits have successfully pushed other health plans in Georgia to provide gender-confirming treatment, including surgery. A lawsuit forced the University System of Georgia to cover the medical care in 2018.
Earlier this year, a federal district judge ruled employers cannot deny or exclude coverage for gender-confirming care for transgender people after a Houston County policy denied coverage for a county employee who wanted the surgery. In July, the state Medicaid program changed its policy to cover transgender health-care, including gender-confirmation surgery, as part of a settlement in a separate lawsuit.
The majority of state health benefit plans cover the services, said Adam Polaski, a spokesperson for the Campaign for Southern Equality, an LGBTQ advocacy group that is one of the plaintiffs in the lawsuit. A federal judge earlier this year ruled North Carolina’s state benefit plan must change its policy to cover gender-confirming care after a similar lawsuit in that state.
Gender dysphoria is a recognized medical condition that results in mental distress because of a mismatch between the sex a person was born with and their gender identity, the person’s own sense of their gender. The condition was first included in a standard psychiatric reference, the Diagnostic and Statistical Manual of Mental Disorders (the DSM), in 2013.
The American Psychiatric Association and the American Medical Association, along with many other national medical groups, recommend gender-confirmation therapy, hormonal treatments, and surgery as possible treatments for gender dysphoria.
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
A screen grab from a recent University of Georgia TikTok post.
ATLANTA – Georgia is joining the growing list of Republican-led states banning TikTok from state-owned phones and laptops, according to a new memo issued by Gov. Brian Kemp on Thursday.
All executive agencies and branches should immediately ban the use of TikTok as well as two other social messaging platforms, WeChat and Telegram, on any government-owned devices, the memo says.
“In recent days, information has come to light exposing the depth of the Chinese Communist Party (CCP) involvement with TikTok and the resulting threat that TikTok poses to government cybersecurity,” Kemp’s memo states.
The social media platform can track and store personal information that could be turned over to the Chinese government, presenting a threat to Georgia’s security, the memo adds.
Chinese company ByteDance owns TikTok. The Kemp memo states ByteDance employs members of the CCP. It also says that TikTok’s content selection algorithm could be influenced by the Chinese government.
In the past few years, many organizations, including some government agencies, have turned to the popular social media app to share information with Georgians, especially young people who make up the majority of the platform’s audience.
The University of Georgia (@universityofga) and Georgia Tech’s admissions office (@GTAdmission) both have official TikTok channels that remained up on the platform as of Thursday afternoon.
“They would fall under this directive and any use of these platforms would be prohibited on any state-issued devices they have,” confirmed Andrew Isenhour, a Kemp spokesperson.
The new Georgia rule also prohibits the use of messaging platform WeChat, which is owned by Tencent Holdings, another Chinese company, and Telegram, which was founded in Russia but is now headquartered in Dubai.
Kemp’s move comes just over a week after state Sen. Jason Anavitarte, R-Dallas, said he will introduce legislation to ban TikTok in Georgia, though the bill had not yet been prefiled with the Senate as of Thursday afternoon.
A growing number of Republican-led states have implemented measures similar to the new Georgia rule. These include Alabama, Texas, South Carolina, South Dakota, Maryland, Utah, Oklahoma, and Nebraska.
The U.S. Senate passed a bill this week to bar federal employees from using TikTok on government-owned devices. The bill was sponsored by Republican Sen. Marco Rubio of Florida. The U.S. House would have to approve the bill before Congress adjourns next week in order for it to reach President Joe Biden’s desk.
Many federal agencies, including the departments of State, Defense, and Homeland Security have also banned the use of TikTok on government-owned devices.
This story is available through a news partnership with Capitol Beat News Service, a project of the Georgia Press Educational Foundation.
