On January 13, members of the Kansas Legislature will return to the Statehouse. KMS has spent the last several months preparing for the 2020 session and—as has been true for the last 40 years—we will be at the Capitol every day advocating for you and your patients. This promises to be a busy, complex session and several important health care discussions will be at the forefront.
Key to understanding which issues emerge and advance is the impact of the looming elections this summer and fall. In 2020, the entire legislature must stand for election—40 senators and 125 representatives. Nationally, Kansans will also cast ballots for the U.S. President, Vice President, one U.S. Senator and four U.S. Representatives.
While the primary is not until August, the coming elections will influence the debate and tenor of this session. As issues are introduced, emerge and advance, the KMS Legislative committee comprised of your peers is meeting to review and discuss policies affecting the practice of medicine.
Here’s a primer on three key, health-related issues that will be discussed by lawmakers this session.
Cap on Non-economic Damages/
Hilburn Decision by Supreme Court
Last summer, the Kansas Supreme Court issued an opinion which has raised uncertainty around a key medical malpractice protection for physicians. In the case of Hilburn v. Enerpipe, LTD, a motor vehicle injury lawsuit, the justices struck down our state’s cap on non-economic damages. That limit on jury awards for pain and suffering has been a cornerstone of maintaining Kansas’ stable professional liability environment for nearly three decades. In conjunction with its opinion, the Court issued a press release which said it “struck down the statutory noneconomic damages cap in personal injury cases other than medical malpractice actions” (emphasis added). That has created the uncertainty which KMS believes can only be clarified by giving the Court the opportunity to rule on whether the cap still applies in medical malpractice cases, or not.
Working closely with our partners at KAMMCO and the Kansas Hospital Association, KMS has developed an approach which prepares the health care provider community for either outcome. It would amend the Health Care Stabilization Fund law to provide that if the Court does clarify that the cap is in fact unconstitutional in medical malpractice cases, then that would trigger an orderly phasing-out of the Fund, under the control of the Insurance Commissioner. In addition, the mandatory insurance coverage requirement for health care providers would also be repealed, allowing providers to purchase as much or as little insurance as their needs dictate. In the event the cap is upheld by the Court, the Fund would continue in existence and the minimum coverage requirement would increase from the current $300,000 per claim to $1 million per claim, which would help address a concern noted in an earlier decision of the Court that the minimum coverage requirement was inadequate.
To be clear, under the right conditions KMS strongly favors keeping the Stabilization Fund structure in place. This unique public-private insurance arrangement has provided tremendous benefit to Kansans for over four decades. Along with the noneconomic damages cap the Fund has helped stabilize the liability environment, by striking a balance between the rights of injured patients with the state’s need to ensure access to medical care for all of its citizens.
APRN Independent Practice
Advanced Practice Registered Nurses continue to seek independent authority to practice medicine without limitations on scope of practice or oversite from the Board of Healing Arts. The issue has been framed by proponents as a free market proposal that will remove unnecessary barriers to economic opportunity while increasing access and decreasing health care costs. These bold claims fall flat against the plain fact that APRNs can already practice anywhere in the state with a collaborating physician. KMS has consistently opposed allowing non-physicians to practice medicine outside of a collaborative practice agreement and appropriate regulation by the Kansas Board of Healing Arts. As has been our practice and position, KMS will continue to advocate for clearly defining the scope of practice of non-physician providers to ensure appropriate education, training and regulation protecting Kansas patients.
For the last five sessions, lawmakers have debated whether Kansas should add more individuals to our state’s Medicaid rolls. KMS has consistently supported legislative efforts to see all Kansans insured in a fiscally sustainable way that does not cost shift among providers.
Since the conclusion of the 2019 session, the Governor’s office has collaborated with a bi-partisan coalition of lawmakers to develop a proposal intended to pass both chambers. The advancement of this issue will be a key factor in setting the tone for the Session – its passage potentially clearing the way for other important and controversial issues.