2018 Kansas Legislative Recap

Key Points

• • School funding dominated the 2018 session. The additional $522 million package approved was found constitutionally inadequate, but lawmakers have until 2019to make additional adjustments
  • The state’s request to extend KanCare for five years, including the implementation of work and community engagement requirements, is still pending. At the end of the session, legislators authorized the administration to continue its discussions with CMS about eligibility changes, including work requirements, but prohibited implementation of the change without legislative approval.
  • Senate Sub. for HB 2028, the Kansas Telemedicine Act, authorizes health insurers to reimburse telemedicine providers for covered services in the same manner as they are reimbursed when provided through in-person contact.
  • SB 282 exempts cannabidiol (CBD) from the definition of marijuana in criminal statutes involving controlled substances.

Introduction

The 2018 legislative session, the second year in a legislative biennium, or two-year cycle, began on January 8, 2018, and adjourned on May 4, before the sine die midnight deadline.

Legislators’ top priority this year was addressing the Kansas Supreme Court opinion issued on October 2, 2017, that found the state had not adequately addressed school funding during the 2017 session. Lawmakers approved a $7.1 billion revised state general fund fiscal year (FY) 2019 budget on May 3, 2018, which included an additional $522 million in school funding over a five-year period (Figure 1). The Kansas Supreme Court ruled on June 25, 2018, that the new funding plan was still inadequate but granted the legislature an extension through the 2019 legislative session to make additional adjustments in the plan.

While school funding dominated the 2018 session, lawmakers did discuss several key health policy issues including telemedicine, mid-level dental therapists, cannabidiol (CBD) and the renewal of KanCare—the state’s Medicaid program. A hearing on a bill to expand Medicaid was held early in the session but died on the Senate calendar.

While legislators did their work, Lt. Gov. Jeff Colyer was sworn in as governor on January 31, 2018, following the departure of Sam Brownback to his new position as ambassador at large for international religious freedom for the Trump administration. Candidates for governor and other key state and national positions began campaigning in preparation for the November 2018 elections.

Medicaid Expansion

Senate Bill 38, Establishing the KanCare bridge to a healthy Kansas program (introduced in 2017), received a heavily attended hearing in the Senate Public Health and Welfare Committee on February 14, 2018. KHI provided neutral testimony projecting that expansion under the existing terms of the Affordable Care Act (ACA) would add 145,000 beneficiaries, including 95,000 adults age 19-64 and nearly 50,000 children. The Kansas Department of Health and Environment (KDHE) testified against the bill, stating that expansion would cost the state $22 million over two years. The committee passed the bill to the full Senate on February 19, but there was no further action.

KanCare

On December 26, 2017, the state submitted to the Centers for Medicare and Medicaid Services (CMS) a request to renew and modify the KanCare managed care program beginning on January 1, 2019. The request, labeled KanCare 2.0, included provisions to implement work and community engagement requirements for non-exempt adult enrollees as a condition of eligibility. The request also proposed setting a three-year limit on eligibility for Medicaid, but only for adults subject to the work requirements. Although federal officials have historically refused to approve work requirements as a condition of eligibility for Medicaid, the Trump administration has encouraged states to seek waivers to implement them.

Early in the session, legislative leaders—citing application backlogs, delays in provider payments and disputes over services for disabled enrollees—advised Gov. Brownback that they did not support moving forward with KanCare 2.0 until the issues were corrected. Some lawmakers also questioned whether there would be additional costs associated with KanCare 2.0. Bills were introduced, but did not advance, in both the House and Senate to prevent the administration from implementing KanCare 2.0.

At the end of the session, legislators and Gov. Colyer reached an agreement that was included as a provision in the final budget bill, which authorized the administration to seek approval from CMS for an extension of the existing KanCare program, and allowed both the existing managed care organizations (MCOs) and new companies to compete for new contracts. The budget provision also authorized the administration to continue its discussions with CMS about eligibility changes to KanCare, including work requirements, but prohibited the state from implementing changes without legislative approval. Another provision included in the budget bill would have defunded the Medicaid program if the governor made changes to it; however, the governor vetoed that provision on May 15, 2018, when he signed the budget into law.

On June 22, 2018, KDHE announced that Aetna Better Health of Kansas, Inc. had been chosen as one of the three KanCare providers, replacing Amerigroup Kansas Plan beginning on January 1, 2019. The two other current providers, Sunflower State Health Plan and United Health Care Midwest, received contract renewals.

In the meantime, KDHE has continued pursuing CMS approval for implementation of work and community engagement requirements. However, on May 7, 2018, the state received a letter from CMS denying the lifetime benefit caps the state also had proposed.

In response to legislators’ concerns about continuing application backlogs, Jon Hamdorf, director of the Division of Health Care Finance and Medicaid Director, advised legislators that Maximus, the company that operates the Medicaid application clearinghouse for the state, had been notified it had until June 1 to comply with the terms of its contract related to the processing of applications or face penalties that could exceed $250,000 a day. On June 8, 2018, KDHE Secretary Jeff Andersen announced that Maximus had failed to meet the compliance deadline.

Both the Senate and the House considered bills to allow suspension, instead of termination, of Medicaid eligibility for beneficiaries entering either psychiatric hospitals or correctional facilities. Under existing rules, coverage for these individuals is terminated, requiring them to reapply for Medicaid upon discharge or release. Suspending eligibility would allow coverage to resume immediately upon discharge or release. Because legislative leaders were reluctant to consider any bills that could potentially be used as vehicles for a discussion of Medicaid expansion, they instead inserted language from Sub. for Senate Bill (SB) 195 into the budget bill to authorize KDHE to keep enrollment active, but suspended, for these individuals.

Legislative committees also considered legislation to require Medicaid to cover tobacco cessation services for enrollees, to “carve out” home and community-based services for KanCare members with intellectual or developmental disabilities from managed care, and to enact the KanCare Medicaid Ombudsman Act. These issues all died in committee.

Telemedicine

Senate Sub. for House Bill (HB) 2028, the Kansas Telemedicine Act, was signed into law by Gov. Colyer on May 12, 2018. The act, which takes effect on January 1, 2019, prohibits health insurers from excluding coverage solely because services are provided through telemedicine and authorizes them to reimburse telemedicine providers for covered services in the same manner as they are reimbursed for services provided through in-person contact. The bill had wide support among insurers, telemedicine providers and medical providers and was viewed as especially important to ensure needed health services are available in rural areas.

The bill also includes a highly debated provision that the act does not authorize the delivery of abortions via telemedicine, as well as a provision that if the abortion provision is held invalid or unconstitutional, the entire act will become invalid.

Concealed Carry

HB 2145, amending K.S.A. 21-6301 related to the criminal use of weapons, added additional persons prohibited from possessing firearms, including fugitives from justice, aliens illegally or unlawfully in the U.S., persons subject to court orders restraining them from harassing, stalking or threatening an intimate partner or a child of such person, or persons who have been convicted of domestic violence. The bill was signed by the governor on April 20, 2018.

HB 2042, a bill to require the state to recognize valid concealed carry licenses issued by other states to non-Kansas residents, was introduced at the request of Attorney General Derek Schmidt. The House amended the bill to lower the age required to obtain a concealed carry license from 21 to 18 and allow post-secondary institutions to prohibit concealed carry by persons who do not possess a concealed carry license. The Senate Federal and State Affairs Committee removed the House amendments and passed the bill, but it failed to advance after it went to conference committee.

Prescription Drug Monitoring Program

Legislators considered two bills to enhance provider reporting to the state’s Prescription Drug Monitoring Program (PDMP). HB 2574 would have required all prescribers who hold a Drug Enforcement Administration (DEA) registration and who prescribe scheduled substances, as well as all pharmacists, to register for access to the PDMP. It also required the PDMP advisory committee to develop criteria for use in identifying patterns and activities of concern in the PDMP data. HB 2759 would have amended K.S.A. 65-1682 to include veterinarians in the definition of prescribers required to submit information to the PDMP. Both bills died in committee.

Controlled Substances

SB 282, a bill to update the state’s Uniform Controlled Substances Act, was introduced at the request of the Kansas Bureau of Investigation (KBI) and referred to the Public Health and Welfare (PH&W) Committee. The bill, as introduced, amended the act to add several drugs to the schedules of controlled substances, including several synthetic opioid fentanyl compounds and an opioid analgesic drug. It also updated several cannabinoid classes to include new synthetics and substitutes, and amended the definition of “marijuana” to exempt cannabidiol (CBD). During hearings held in both the Senate and House, legislators focused on gaining an understanding of the properties of CBD, which can be produced without tetrahydrocannabinol (THC), the chemical which causes users to become high. Some research has shown CBD oil to be an effective treatment for chronic pain, seizures and other conditions, such as epilepsy. Some opponents to CBD are concerned that it may be a “gateway” to illegal drug use.

On March 5, 2018, the House HHS Committee held an informational hearing on kratom, an opioid alternative that SB 282 proposed classifying as a Schedule I drug. No extensive human testing or acute toxicity studies of kratom have been conducted and it is not currently banned by the federal Food and Drug Administration (FDA). At the hearing, a representative of the American Kratom Association testified about the benefits and safety profile of kratom. Representatives of the Kansas State Board of Pharmacy and the KBI testified in support of adding kratom to Schedule I.

The House Committee amended the bill by removing kratom from the list of drugs to be added to Schedule I; by allowing the sale of CBD products, as defined in the bill; and by excluding CBD products from the definition of marijuana in the act and crimes involving controlled substances. An amendment offered during House debate on the bill to allow medical marijuana use in the state was rejected on a vote of 54-69. The conference committee removed the references to the sale of CBD products and instead exempted CBD from the definition of marijuana in statutes pertaining to crimes involving controlled substances. The amended bill was signed by the governor on May 14, 2018.

Kansas is one of four states with the most stringent medical marijuana laws in the country. The National Conference of State Legislatures reports that 30 states and the District of Columbia have “comprehensive public medical marijuana and cannabis programs,” while 16 additional states allow the use of “low THC, high CBD products for medical reasons in limited situations or as a legal defense.” On June 26, 2018, Oklahoma became the 31st state when voters approved a ballot measure to allow broad access to medical marijuana.

Under federal law, marijuana is still classified as a Schedule I controlled substance. However, on June 25, 2018, the FDA approved Epidiolex, a CBD based solution used for the treatment of seizures associated with severe forms of epilepsy. The drug will still be classified as a Schedule I substance.

Alcohol

HB 2470, signed by Gov. Colyer on May 14, 2018, which contained the contents of HB 2476 and HB 2482, amended the definition of “alcoholic liquor” in Kansas law to include alcoholic candy as “any candy or other confectionery product with an alcohol content greater than 0.5 percent alcohol by volume.” The sale of alcoholic candy will be subject to regulation by the Alcoholic Beverage Control Division (ABC) of the Kansas Department of Revenue and retailers will be required to have a liquor license to sell it. The bill also expanded the hours that establishments licensed to serve alcohol can sell drinks. Previously, Kansas law allowed establishments to start selling alcohol at 9 a.m., but under the new law, establishments can begin selling alcohol at 6 a.m. The bill also allows licensed microbrewers in the state to produce beer containing up to 15.0 percent alcohol by weight, up from 10.0 percent under current law, and to sell beer in refillable and sealable containers to consumers for off-premises consumption. It also allows self-service dispensing of beer, like what is already permitted under Kansas law for wine.

Tobacco Taxes

Senate Bill 376 would have created or increased several taxes imposed on tobacco product distributors, wholesalers, retail dealers and vending machine operators, and increased the tax on cigarettes from $1.29 per pack to $2.79 per pack effective July 1, 2018. The bill would also have established a cigarette and tobacco cessation fund to be administered by the secretary of KDHE to be used for promoting the cessation of cigarette and tobacco usage, and provided that the first $5 million of revenue collected from the taxes imposed under the bill would be deposited in the cessation fund. The bill received a hearing on March 14, 2018, but died in committee.

Child Welfare System

While the Child Welfare System Task Force—established under House Sub. for SB 126, which was enacted in 2017—continued its work under three designated working groups, legislators considered several new child welfare bills during 2018.

HB 2728, introduced amid allegations against the Kansas Department for Children and Families (DCF) for underreporting child deaths, required the secretary of DCF to release information after a fatality caused by abuse or neglect of a child in need of care. Although the bill died in committee, its contents were inserted into the shell of House Sub. for SB 336—a bill related to persons seeking damages from the state for wrongful convictions—by the House Judiciary Committee. The substitute bill was signed by the governor on May 10, 2018

HB 2481 amends various provisions of the Kansas Adoption and Relinquishment Act related to consent to adoption and relinquishment, foreign and out-of-state adoptions, access to adoption records, notice of adoption hearings and termination of parental rights. The Senate Committee of the Whole amended the bill and also inserted the contents of SB 401, which created the Adoption Protection Act. The act provides that no child placement agency (CPA) is required to “perform, assist, counsel, recommend, consent to, refer, or otherwise participate in the placement of a child for foster care or adoption when the proposed placement . . . would violate such CPA’s sincerely held religious beliefs.” The bill also prohibits the state from denying a license or contract or imposing a fine on a placement agency because of its religious beliefs. A second conference committee removed the contents of SB 284—amending the Kansas Money Transmitter Act—and inserted the contents of HB 2481, then passed the bill on May 3. The bill was signed by Gov. Colyer on May 18, 2018.

Scope of Authority and Practice/Licensing

Legislators once again considered a bill to license midlevel dental therapists (DTs). SB 312 was introduced in the PH&W Committee on January 23, 2018, and was supported this year by the Kansas Dental Association following changes in the language related to direct and indirect supervision. The bill passed the Senate and received a hearing but no vote in the House HHS Committee on March 14, 2018. The conference committee inserted the contents of the bill into Senate Sub. for HB 2674, which established the Kansas Telemedicine Act, but the dental therapists’ language was not retained when the contents of HB 2674 were inserted into Senate Sub. for HB 2028.

HB 2496, enacting the Nurse Licensure Compact, was introduced early in the session and signed by the governor on April 10, 2018. The bill amends the Kansas Nurse Practice Act and allows Registered Nurses (RNs) and Licensed Practical Nurses (LPNs) to have one multi-state license, with the privilege to practice in the home state of Kansas and in other compact states physically, electronically and/or telephonically. The bill takes effect on July 1, 2019.

SB 386 added related educational degrees to the professional counselor licensure criteria and allows licensure for applicants who earn a graduate degree in a counseling-related field as long as the remaining qualifications set forth in Kansas law are met. The changes in the bill are applicable to individuals applying for initial licensure and those who are licensed to practice professional counseling in other jurisdictions. The bill was signed by the governor on April 2, 2018.

Other Health-Related Issues

HB 2232 allows residents of adult care homes, or guardians or legal representatives of residents, to conduct electronic monitoring in a resident’s room subject to the requirements in the bill. The bill was signed by the governor on April 16, 2018.

The contents of HB 2573, providing for the study and investigation of maternal deaths by the secretary of KDHE, and HB 2031, creating the Palliative Care and Quality of Life Interdisciplinary Council and the State Palliative Care Consumer and Professional Information and Education Program within KDHE, were added to Senate Sub. for House Bill 2600 (introduced to amend the state’s Nuclear Energy Development and Radiation Control Act), and approved by the governor on April 26, 2018.

House Sub. for SB 179 created new law and amended existing law to establish juvenile crisis intervention centers and procedures for the admission of juveniles to the centers. The bill also amended numerous provisions of the Revised Kansas Code for Care of Children (CINC Code)—including amending the statute governing when law enforcement officers may take a child into custody—and the Newborn Infant Protection Act related to placement, permanency plans and adoption. The bill was signed by the governor on May 14, 2018.

SB 348 amends the Electronic Notice and Document Act under the insurance code to authorize health benefit plans (as defined in the insurance code) to use electronic delivery as the standard method of delivery to enrollees for explanations of benefits and policy documents, including federally required summaries of benefits and coverage documents. Paper documents must be readily available and enrollees must be given the option to receive paper documents via U.S. mail. The bill was signed by the governor on May 8, 2018.

HB 2472 places a question on driver’s license applications (new and renewals) as to an individual’s willingness to be listed as an organ donor in the Kansas Donor Registry. The bill also requires the word “Donor” to be placed on the front of the driver’s license or identification card of individuals who provide the authorization in their application. The governor signed the bill on April 4, 2018.

HB 2343 creates new law regarding nondiscrimination in access to organ transplants for individuals with disabilities. The bill prohibits covered entities (as defined in the bill) from considering a qualified individual (also defined in the bill) ineligible to receive an anatomical gift or organ transplant and other related medical services solely on the basis of their disability. Covered entities are permitted to take an individual’s disability into account when making treatment or coverage recommendations when the individual’s disability has been found to be medically significant by a physician, following an individualized evaluation. The bill was signed by the governor on February 22, 2018.

SB 311 adds emergency medical services attendants to the list of mandatory reporters of abuse, neglect, exploitation or need of protective services as it pertains to residents or certain adults, as defined in existing law. K.S.A. 39-1401 defines a “resident” as any resident/individual kept, cared for, treated, boarded or otherwise accommodated in an adult care home, or any individual kept, cared for, treated, boarded or otherwise accommodated in a medical care facility, state psychiatric hospital or state institution for people with an intellectual disability. The bill was approved by Gov. Colyer on April 4, 2018.

HB 2590 amends law related to the State Long-Term Care Ombudsman (ombudsman) and the State Long-Term Care Ombudsman Program (program) to require the secretary of the Kansas Department for Aging and Disability Services (KDADS) to monitor the program and its activities, as set forth in contract between the secretary and the ombudsman, and to assess whether the program is performing all of the functions, responsibilities and duties set forth in state and federal laws and regulations. The bill also adds eligibility requirements to the office of ombudsman position, including prohibiting an individual from appointment to, or holding the office of ombudsman if the individual was employed by or participated in the management of a long-term care facility within the previous 12 months. The bill was signed by the governor on April 5, 2018.

Executive Order 18-09, issued by Gov. Colyer on March 1, 2018, established the Governor’s Task Force to Address Substance Use Disorders (SUD). The order established membership of the task force to include state agencies, individuals representing pain management, hospice, nursing facilities, law enforcement, and education, and individuals appointed by legislative leaders. The task force is charged with gathering information regarding SUD (particularly related to opioid and heroin overdoses and methamphetamine addiction) within the state; evaluating existing resources and tools, initiatives and recommendations; examining best practices for prevention, treatment and recovery; and making recommendations to the governor. The task force is to submit a report by September 2018 of its findings, including those related to SUD and the misuse of opioids in Kansas. The task force, chaired by Dr. Greg Lakin, the state’s chief medical officer, held its first meeting on April 19, 2018.

HB 2688, which would have created a Behavioral Health Task Force, passed out of the House Appropriations Committee on March 21, 2018. While it did not advance to a vote in the full House, the Legislature included a provision in the budget bill to continue the Mental Health Task Force, which had provided recommendations to the Legislature on Jan. 8, 2018, after meeting last fall. Two new members were added to the Task Force, which was tasked with developing an implementation plan for its recommendations.

Senate Sub. for HB 2701, introduced by the Senate Utilities Committee, established the Statewide Broadband Expansion Planning Task Force to develop a statewide map for defining and evaluating broadband needs in Kansas along with documenting any risks, issues and constraints associated with a statewide broadband expansion project. The task force will be composed of 17 voting members and five non-voting ex-officio members and is required to submit an initial report on January 15, 2019. During an informational hearing held by the committee on March 8, 2018, KHI provided testimony regarding how the lack of broadband affects health care access and outcomes in rural areas. The bill was signed by Gov. Colyer on April 24, 2018.