The 2020 Kansas legislative session was anything but ordinary, even prior to the onset of COVID-19. Early on, two major issues—Medicaid expansion and abortion—consumed much of the political oxygen in the Statehouse, diminishing the number of bills that would be considered in committee and passed on to the House or Senate. All health-related bills were particularly affected as such bills were viewed as potential vehicles to force a floor vote on Medicaid expansion. Following is a brief summary of what happened—or did not happen—this session, centered around bills of interest to Kansas health care providers.
APRN independent practice
Early in the 2020 session, a significant part of KMS’s focus was ensuring legislators were educated on a proposal by Kansas nurses to allow them to practice medicine without the supervision of a physician. In mid-February, an informational discussion was held in the House health committee, however a bill was never formally considered nor was one taken up in the Senate health committee.
In April, while the Legislature was adjourned, the Governor issued a sweeping emergency order that suspended all collaborative practice, supervisory, or protocol-based agreements between physicians and other health care providers (APRNs, PAs, LPNs, pharmacists, health care profession students, etc.), for any care provided during the COVID-19 emergency declaration period. Now that the original COVID-19 emergency declaration has expired, existing statues requiring collaborative practice agreements to practice medicine in Kansas are back in force.
Looking ahead, APRN proposals to practice medicine independently will likely remain among the issues that KMS will need to address when legislators return for the 2021 session.
Medicaid expansion and the abbreviated 2020 session
By early February, Medicaid expansion hearings had been held in both House and Senate health committees. However, neither committee held a vote, as negotiators sought to pair its passage with a compromise on a constitutional amendment regarding abortion. Such a compromise ultimately never came, leaving Medicaid expansion stalled along with other health bills.
The impasse over Medicaid expansion and abortion would prove to define what little remained of the regularly scheduled legislative session. After Gov. Kelly issued the first COVID-19 emergency declaration on March 12, the Legislature adjourned ahead of schedule on March 19 with plans to return in late April for the regularly scheduled veto session. At that point, it was unclear if or how lingering issues might be taken up.
The shrinking window for consideration of bills in 2020 was exacerbated as the spread of COVID-19 prevented resumption of the legislative session in April. Instead of a longer veto session, the Legislature would reconvene for just a one-day wrap up, setting up an incredibly challenging timeframe for legislators to consider remaining bills.
Hilburn response bill and COVID-19 liability protection
The week in mid-March that the Legislature abruptly adjourned, a hearing in the Senate health committee had been scheduled for SB 493, KMS’s bill in response to the Hilburn ruling. However, that hearing was canceled along with all other scheduled committee meetings.
Once the Legislature made plans to return for the one-day wrap up, various committees scheduled video-conference meetings. Among them were the House and Senate judiciary committees, which each scheduled three meetings to take up COVID-related liability provisions.
KMS developed and presented to both committees a narrowly constructed immunity proposal limiting health care provider liability related to COVID-19 treatment, and for professional services otherwise medically necessary that were delayed or not provided due to the declared state of emergency. KMS also worked closely with the Governor’s office to ensure that the administration’s questions and concerns about the proposal were addressed. The liability provisions were amended to the Hilburn response bill which would have allowed the Health Care Stabilization Fund to offer higher limits of professional liability insurance and provided clarity regarding the cap on non-economic damages.
In the end, the legislature decided to remove the provisions from the Hilburn response bill (SB 493) and combine the KMS liability bill with a number of other issues into one omnibus COVID-19 response bill, which was passed just before the conclusion of the one-day wrap up session. The bill included amendments to the Kansas Emergency Management Act with specific limitations on the Governor’s powers during declared state of disaster emergencies (but did not include provisions related to Hilburn).
Governor veto and legislative special session
On Tuesday, Gov. Kelly vetoed the omnibus COVID-19 bill containing the KMS liability provisions. In doing so, she also signed a revised 15-day state of emergency declaration—which, among other things, passes authority to restrict activities to individual counties' public health officials. Although the Governor had signaled support for the measures proposed by KMS, her veto message indicated that provisions added by the Legislature and the coupling with the emergency management act changes were unacceptable to her.
In conjunction with her veto of the omnibus COVID-19 bill, the Governor also called for the Legislature to return for a special session starting June 3. The Governor specifically called the special session to address issues related to emergency management, however the Legislature may consider other issues as well. Unlike the one-day wrap up session, the special session will not be constrained to a particular timeline.
Whether the Legislature will revisit the subject of liability protections for health care providers during the special session is unclear at this time. Though both the Legislature and Governor support extending adequate liability protections for providers, it remains to be seen whether agreement can be reached on the extent of such provisions amid such a politically charged climate and limited timeframe.
Much like the regularly scheduled session itself, the course of the special session may be shaped in large part by the upcoming election. In November, the entire Legislature must stand for election—40 senators and 125 representatives. Kansans will also cast ballots for the U.S. President, Vice President, one U.S. Senator, and all four U.S. Representatives from Kansas.
Looking ahead to 2021— whatever the results of the November election—there will inevitably be significant shifting in legislative leadership, particularly in the Senate with both the current Senate President and Majority Leader leaving the Legislature.
As always, KMS will work diligently to educate lawmakers on the impact of these and other issues affecting the practice of medicine to ensure physicians are supported as they care for Kansans statewide.
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