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Legislative update: Provider liability bill under consideration as session wraps up

capitol dome smA message from KMS Executive Director Rachelle Colombo:
This weekend marks the passing of two full months since a state of emergency related to COVID-19 was declared in Kansas. During that time, life has changed dramatically, bringing kids home from schools, adults home to work remotely, and the suspension of most medical care that wasn’t emergent or COVID-19-related. We have heard from you regarding the challenges of adapting to delivering care during the pandemic. As schools and the economy have shuttered, the delivery of health care has soldiered on, albeit at a different rhythm and with plenty of setbacks of its own. Many of you have reached out to tell us your stories, from the challenges of procuring PPE, to maintaining payroll and waiting for patient volume to resume as you’ve tried to keep your practices afloat. Hearing from you has honed our advocacy, as we have shared your stories with federal, state, and community leaders and urged them to adopt public policies that will address the problems you have identified, as well as enabling the health care system to reopen, safely and responsibly.

Now entering phase 1.5 of the Governor’s revised reopening plan, it is clear that we are a long way from business as usual. Though we do not know how long COVID-19 will upend our lives and your medical practices, we do know that our mission remains the same: to advocate for keeping the practice of medicine in physicians’ hands to ensure the delivery of the highest quality, safest care to Kansas patients. It is as worthy a mission now as it ever was, and knowing what you are facing has helped us better advocate for you.

These last many weeks, we have worked with legislative leaders, the provider community, the Governor’s office, and even trial lawyers to secure agreement on legislation providing COVID-19-related liability protections for health care providers. When the legislature returns Thursday, they will have the opportunity to significantly alleviate the fear of litigation hanging over Kansas physicians trying to maintain practice in these uncertain times. With only one legislative day scheduled, however, the time is short and the challenges are many to get this legislation enacted. We have impressed upon legislators the importance of taking action with the tools they have today, much like Kansas students, professionals, and providers have during this pandemic.

We know you have continued to provide the highest quality care despite unimaginable challenges and setbacks, and that you want to continue caring for your patients. KMS exists to make that endeavor easier — by advocating for you, so you can focus on your patients. Please continue to tell us how we can help you through these extraordinary times and we will report to you as we assess and progress. You can always reach me via cell phone, text, or email. Thank you for the work you are doing to serve Kansas patients today and in the future.

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 Legislature considering provider liability bill
This week, the House Judiciary committee held two of three planned meetings to discuss potential legislation to mitigate liability for health care providers and businesses related to COVID-19. KMS provided joint testimony with the Kansas Hospital Association on a proposal to enact liability protections for COVID-19-related health care services rendered, or otherwise medically necessary treatment that was delayed or not provided, during the state of emergency due to COVID-19. In addition, the proposal includes provisions from SB 493, which allows the Health Care Stabilization Fund to offer higher limits of insurance in light of the collapsing liability reinsurance markets. The liability proposal also includes KMS’s response to the Hilburn ruling affecting the cap on noneconomic damages. Our liability proposal does not immunize providers from acts that constitute gross negligence or willful misconduct, nor do the COVID-19-specific liability protections cover care that was not affected or delayed by the COVID-19 emergency declaration period.
 
Testimony also was offered by the Kansas Chamber of Commerce to include liability protections for the business community. The Kansas Trial Lawyers Association and the Kansas Bar Association gave testimony opposing both the business and the health care community’s proposals, though we are engaged in ongoing discussions aimed at the addressing the lawyers’ claims that the proposals could be used to shield bad actors.
 
The House Judiciary Committee will conduct its third meeting Monday afternoon, during which the committee may vote on a proposed bill. Also on Monday, the Senate Judiciary Committee is scheduled to hold a hearing on COVID-19 liability protections, and KMS will again present testimony on our proposal. The committee will meet Tuesday to discuss the bill and may hold a vote during its meeting Wednesday, May 20.
 
We are hopeful that both committees will advance the bills to their respective floors for debate and action. However, significant hurdles remain for the issue, as the sole remaining day for both the House and Senate to debate and vote upon bills is Thursday, May 21. While it is unclear how many bills may ultimately be before each chamber, lawmakers will likely be under unusual pressure given the restricted timeline and competing priorities. In the intervening days, we are working to educate and answer lawmakers’ questions and eliminate any legitimate objections to our proposal. While the process leaves little time for advancement and too much opportunity for political gamesmanship, we are hopeful that policymakers recognize the seriousness of not passing this necessary proposal and will work to see it become law.


Finance Council shortens emergency
The State Finance Council this week shortened by three weeks the governor’s current COVID-19 Emergency Order. The council declined to extend her order restricting some businesses and gatherings through June 13 and instead extended the order to May 26. It is possible the Legislature may craft its own emergency order or put restrictions on potential future executive orders by the governor.


AMA issues guidance on serological testing
The American Medical Association (AMA) has issued guidance to help physicians and the public understand potential uses and limitations of antibody testing, and warn against determining immunity or discontinuing physical distancing based on antibody testing.


FDA authorizes emergency use of Propofol Emulsion
The Food and Drug Administration (FDA) issued an emergency use authorization for Fresenius Propoven 2% Emulsion to maintain sedation via continuous infusion in patients older than 16 who require mechanical ventilation in an Intensive Care Unit setting during the COVID-19 pandemic. The FDA issued the emergency use authorization due to shortages of FDA-approved alternatives. See this fact sheet for more information.

AMA supports two federal COVID-19 response bills
The American Medical Association is supporting the Healthcare Workforce Resilience Act in response to the COVID-19 pandemic. The bill, which has been introduced in both chambers, would allow the recapture of 15,000 unused employment-based physician immigrant visas from prior fiscal years. These unused visas could go to International Medical Graduates who could help bolster response to COVID-19.

The AMA is also supporting the Student Loan Forgiveness for Frontline Health Workers Act, which would provide physicians, residents, and medical students with student debt relief in response to the pandemic.

Risk management resources from KAMMCO
KAMMCO has posted risk management resources for members on its COVID-19 resource page. Among the new resources: Guidance for  Advanced Care Planning amid COVID-19, revising policies and procedures due to COVID-19, and patient care with scarce medical resources.

Kansas Prescription Drug and Opioid Survey
The Kansas Prescription Drug and Opioid Advisory Committee is requesting feedback on the second year of implementation of the “Kansas Prescription Drug and Opioid Misuse and Overdose Strategic Plan 2018-2022.” Results from the survey will be used to generate recommendations for the annual update to the Strategic Plan. The committee is particularly interested in learning how COVID-19 has impacted organizations’ ability to implement the strategies. Survey responses are due Friday, May 29. Take the survey here.

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If you have questions about this update or other matters, please contact KMS Executive Director Rachelle Colombo: This email address is being protected from spambots. You need JavaScript enabled to view it..

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