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Provider liability protection among provisions of new law

A message from KMS Executive Director Rachelle ColomboKMS Executive Director Rachelle Colombo
Now that the Kansas Legislature has adjourned the Special Session, election season is in full swing. The incredible stress that has been placed on all aspects of American life in recent weeks and months makes the prospect of political engagement unappealing to many. But the importance of targeted advocacy and meaningful participation in policymaking is evident. KMS is the trusted voice for Kansas physicians—always working with lawmakers on policies affecting the practice of medicine so you can focus on patient care. Effective advocacy does not begin and end according to legislative sessions. Effective advocacy is rooted in relationship and requires investment in mutual understanding and support. Our voice as physician advocates is amplified by our political giving through KAMPAC. These funds are used to support state and federal legislative candidates that safeguard keeping the practice of medicine in physician hands. We support those lawmakers that want to ensure the highest level of care for Kansans. If you haven’t already, please consider becoming a KAMPAC member today so that our advocacy remains strong and effective for Kansas physicians.

 

Provider liability protection among provisions of new law
During its two-day Special Session this week, the Legislature passed a compromise bill to address a variety of issues stemming from the onset of COVID-19. Among the primary provisions are liability protections for health care providers that have been advocated by KMS to both lawmakers and the governor’s office. At her press conference Friday, the governor said she would sign the compromise bill into law as soon as it arrives on her desk. Following is a brief overview of the provisions contained in the soon-to-be law.

Under the law, most health care providers will be immune from civil liability for damages or liability arising out of or relating to acts, omissions, or health care decisions occurring during any state of disaster emergency related to COVID-19.

This immunity would not apply to civil liability when it is established that the act, omission, or health care decision constituted gross negligence or willful, wanton, or reckless conduct. This immunity also would not apply to health care services not related to COVID-19 that have not been altered, delayed, or withheld because of the COVID-19 public health emergency.

The law does not extend this liability protection to nursing homes but does give such facilities an affirmative defense to liability in a civil action.

The provisions apply retroactively to any cause of action accruing on or after March 12, 2020, and prior to the termination of the COVID-19 state of disaster emergency.


Telehealth and other health care provisions
The law also includes provisions regarding telehealth. The law allows physicians to prescribe medications (including controlled substances) without conducting an in-person examination of a patient.

A physician under quarantine, including self-imposed quarantine, may practice telehealth.

A physician licensed in another state may practice telehealth to treat patients in Kansas if the physician advises the Kansas State Board of Healing Arts (KSBHA) in writing and the physician holds an unrestricted license to practice medicine and surgery in another state and is not the subject of any investigation or disciplinary action by the licensing agency. Additionally, other health care providers are authorized to administer COVID-19-related care without physician supervision through January 2021. KMS requested removal of both of these policies, but the bill was proposed as a comprehensive compromise between various parties and was ultimately passed through both the House and Senate unamended in an effort to secure the governor’s approval.


Other provisions of the COVID-19 law
• Allows KSBHA to grant a temporary emergency license to practice any profession overseen by the board to “an applicant with qualifications the board deems sufficient to protect public safety and welfare, within the scope of professional practice authorized by the temporary emergency license, for the purpose of preparing for, responding to, or mitigating any effect of COVID-19.” This provision expires on January 26, 2021.

• Allows hospitals to exceed bed capacity during the COVID-19 state of disaster emergency and 120 days after the expiration of the emergency declaration.

• Extends the state of disaster emergency declaration through Sept. 15, 2020.

• Restricts the governor’s ability to further extend the emergency declaration, without approval from the State Finance Council. Likewise, the governor would need to consult with the council before ordering businesses to close for more than 15 days.

• Authorizes Kansas counties to adopt less rigorous restrictions than a current statewide order, under certain circumstances.

• Requires the State Finance Council to approve spending of federal COVID-19 relief funds with a simple majority. The governor’s administration can recommend how to spend the money with legislative oversight.

• • •

This is but a brief summary of the new COVID-19 law. For more details, see the Legislature’s more extensive summary here, or contact KMS Executive Director Rachelle Colombo with questions: This email address is being protected from spambots. You need JavaScript enabled to view it..