2014 End of Session Wrap Up: Government Liability & Courts

This post summarizes the status of various government liability and courts bills that MACo took a position on for the 2014 Regular Session.

Local Government Tort Claims Act – Repeal of Notice Requirement: SB 689 would repeal the 180-day notice requirement for claims against local governments under the Local Government Tort Claims Act (LGTCA). The bill would also repeal a similar 1-year claim filing provision under the Maryland Tort Claims Act (MTCA) for claims against the State.

MACo opposed the bill, arguing that it would: (1) upset the balance in the LGTCA between the ability of plaintiffs to assert claims and recover damages and the unique role of local governments in providing public services; (2) undermine the ability of a local government to properly conduct investigations in its defense; and (3) increase litigation and local government liability costs.

FINAL STATUS: The Senate Judicial Proceedings Committee heard SB 689 but took no action.

MACo SB 689 Testimony

Local Government Tort Claims Act – Damages and Notice Requirements For Artificial Turf Field Claims: HB 809 would exempt injury claims caused by artificial or synthetic turf playing fields from the 180-day notice requirement and damage caps under the LGTCA. The bill also creates similar exceptions for the State under the MTCA.

MACo opposed the bill, arguing that the bill would hinder the ability of county governments to properly conduct investigations in its defense, increase costs for county governments, and set a questionable precedent the could be used to create other exceptions to the LGTCA.

FINAL STATUS: The House Judiciary Committee gave HB 809 an unfavorable report.

MACo HB 809 Testimony

Local Government Tort Claims Act – Notice Requirement for Lead-Based Paint Claims: HB 1271 / SB 987 would create an exception to the 180-day notice requirement under the LGTCA for a claim arising from exposure to lead-based paint that occurred on or after January 1, 1988.

MACo opposed the bill, arguing that the bill would undermine the ability of a local government to properly conduct investigations in its defense, set a precedent for the creation of other notice exceptions, and subject local governments that manage housing stock to new and significant liabilities and costs.

FINAL STATUS: The House Environmental Matters and Judiciary Committees heard HB 1271 but took no action. The Senate Judicial Proceedings Committee heard SB 987 but took no action.

MACo HB 1271 Testimony

MACo SB 987 Testimony

Workers’ Compensation – Limitations on Payments for Physician-Dispensed Prescriptions: HB 280 / SB 215 would prohibit an employer or insurer from being required to pay for a physician-dispensed prescription in a workers’ compensation case unless the prescription was: (1) dispensed within 30 days after the covered employees’ initial appointment for the injury with the physician or any other physician in the dispensing physician’s employ; and (2) limited to no more than a 30-day supply of the medication.

MACo supported the bill, arguing it provided a reasonable limitation on repackaged and relabeled physician-dispensed medications that are much more expensive than identical medications that are dispensed by a pharmacy while still allowing physicians to dispense a short-term supply of medication to address immediate patient needs.

FINAL STATUS: HB 280 was withdrawn by the bill sponsor. The Senate Finance Committee heard SB 215 but took no action.

MACo HB 280 Testimony

MACo SB 215 Testimony

Workers’ Compensation – Reimbursement Fee Schedule for Repackaged and Relabeled Drugs: HB 1342 / SB 507 would require the Workers’ Compensation Commission to adopt a pharmaceutical fee schedule for repackaged and relabeled prescription drugs dispensed in workers’ compensation cases. (Repackaged and relabeled drugs are typically dispensed directly by physicians.) The schedule would set a price of 130% of the average wholesale price (AWP) for brand-name and generic-equivalent repackaged or relabeled prescription drugs and 150% of the AWP for repackaged or relabeled brand-name drugs without generic equivalents that are dispensed in lieu of drugs that are controlled dangerous substances. The fee schedule would also apply a $12 dispensing fee.

MACo opposed the bill, noting that fee schedule would legitimize a recent and questionable trend of increased costs for physician-dispensed medications over pharmacy-dispensed medications, potentially expand the practice of dispensing repackaged and relabeled drugs, and increase costs for both county governments and some of their insurers.

FINAL STATUS: The House Health and Government Operations and Economic Matters Committees heard HB 1342 but took no action. The Senate Finance Committee heard SB 507 but took no action.

MACo HB 1342 Testimony

MACo SB 507 Testimony

Workers’ Compensation – Occupational Disease Presumptions for Paid Rescue Squad Members and Advanced Life Support Unit Members: As introduced, SB 1099 would extend to paid emergency service (EMS) providers the workers’ compensation firefighter occupational disease presumptions for heart disease, hypertension, lung disease, and various types of cancer.

MACo opposed the bill, arguing that there should be a comprehensive review of the firefighter presumption before additional persons were included under the presumption. Specifically, MACo cited the types of cancers covered by the presumption and the presumption’s lack of rebuttability. MACo also noted the increased costs the bill would place on affected counties and advocated that it should be up to the affected counties to decide whether to extend the presumption to paid EMS providers.

FINAL STATUS: The General Assembly passed SB 1099 with technical amendments changing “paid emergency medical services providers” to “paid rescue squad members and paid advanced life support unit members.”

MACo SB 1099 Testimony

Workers’ Compensation – Volunteer Canteen and Rehabilitation Personnel: SB 196 would make a volunteer canteen, rehabilitation, or personnel support unit part of a volunteer company. Additionally, the bill would classify the performance of support or rehabilitation services (such as providing food, fluids, or climate/temperature relief for responders during an emergency incident or training exercise) as an “on duty” activity with respect to workers’ compensation benefits.

MACo opposed the bill, arguing that it should be a county decision whether to extend enhanced benefits for minor injuries and coverage under the firefighter heart, lung, and cancer presumptions to support personnel that do not undergo the same training or face the same risks as emergency responders.

FINAL STATUS: The Senate Finance Committee heard SB 196 but took no action on the bill.

MACo SB 196 Testimony

Attorney Fees in Civil Actions: HB 568 / SB 544 would authorize a court to award a prevailing party reasonable attorney’s fees and expenses in a civil action to enforce a right secured by the Maryland Constitution or Declaration of Rights. This includes claims such as due process, seizure of goods or property, and freedom of the press. A prevailing plaintiff could collect attorney’s fees based on a variety of factors and considerations but a prevailing defendant would only be allowed to recover fees if the court determines that the plaintiff’s suit was frivolous. The bill also specifies that any attorney fees awarded under the bill’s provisions do not count against the existing liability cap for the MTCA but are subject to the liability cap of the LGTCA.

MACo opposed the bill, arguing that it would lead to increased litigation, treated plaintiffs and defendants unequally, and would increase costs for county governments.

FINAL STATUS: The House Judiciary Committee gave HB 568 an unfavorable report. The Senate Judicial Proceedings Committee gave SB 544 an unfavorable report.

MACo HB 568 Testimony

MACo SB 544 Testimony

Maryland False Claims Act: HB 867 would authorize a government entity or a person on behalf of a government entity to file a civil action against a person who makes a false claim (i.e., receives some type of financial benefit based on untrue statements). If a person files a civil action on behalf of the government entity, the government entity may elect to intervene in the action or else the action is dismissed. If the government entity does elect to intervene and prevails, the person filing the action is entitled to a certain percentage of any awarded damages. If the government entity does not elect to intervene, the court shall dismiss the action. The bill would also prohibit retaliatory actions against an employee who reports or refuses to participate in an action related to a false claim.

MACo supported the bill as an additional tool to allow local governments to pursue and recover damages from a person making or furthering a false claim.

FINAL STATUS: The House passed HB 867 with an amendment exempting claims, records, or statements related to State or local taxes from the bill’s provisions. The Senate Judicial Proceedings Committee further amended the bill – modifying several of the bill’s intent provisions and setting a 10 year time limit on filing a civil claim. However, the Senate voted to postpone debate on the bill indefinitely on Sine Die – thus the bill did not pass.

MACo HB 867 Testimony

For further information about the bills in this section or other government liability and courts bills, please contact Les Knapp at 410.269.0043 or lknapp@mdcounties.org.

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