2019 Kansas Legislative Recap

Key Points

• • During the 2019 session, the Kansas Supreme Court ruled that the school funding bill passed by the Legislature in early April brought the state into constitutional compliance for adequate funding and legislators considered more than 80 health-related bills.
  • Gov. Kelly introduced Medicaid expansion bills in the House and Senate on January 29 but neither received a hearing. The House passed an expansion bill later in the session but an attempt to place the bill on the Senate calendar for a vote failed.
  • HB 2209, which passed into law without the governor’s signature, allows the Kansas Farm Bureau to sell healthcare benefit coverage to its members that does not comply with the requirements of the Affordable Care Act, including the requirement to cover individuals with pre-existing health conditions.
  • HB 2103 revised the Kansas Code for Care of Children to enable the state to meet the requirements of the federal Family First Prevention Services Act and access additional funds for certain child welfare system prevention services and programs beginning in October.

During the 2019 legislative session more than 80 health-related bills were introduced, including more than a dozen child-welfare bills, but few progressed beyond the committee of origin.

Even so, many important changes to health policy were enacted. This legislative recap examines some of the key health-related bills that were considered. It also includes a table describing many other health-related bills — and showing how far they moved through the legislative process.

Session Overview

The 2019 legislative session, the first year in a legislative biennium or two-year cycle, began on January 14 following the swearing-in of newly elected Gov. Laura Kelly. The session adjourned on May 29, shortly after the governor’s veto of the income tax bill was sustained in the House of Representatives, and the House and Senate overrode her veto of about $54 million in line items in the state budget bill. House Sub. for Senate Bill (SB) 25, the final budget bill, provides $7.1 billion in state general funds for fiscal year (FY) 2019 and $7.7 billion for FY 2020. House Sub. for SB 16, the school funding bill that adds approximately $90 million in additional annual spending for public schools, was passed by legislators in early April. The Kansas Supreme Court ruled on June 14 that the bill brought the state into constitutional compliance for adequate funding.

Medicaid Expansion

Although the House passed a bill to expand Medicaid under the Affordable Care Act (ACA) in late March, the bill failed to get a hearing in the Senate before the session ended.

In her first State of the State address on January 16, Gov. Kelly reaffirmed the expansion of Medicaid (KanCare) as one of her top priorities and indicated she intended to have a plan to present to the Legislature by the end of January. On January 24, Kelly named a bipartisan, 11-member working group to spearhead the effort, which included a legislator from each party and representatives of Kansas hospitals, doctors, safety net clinics and mental health centers. The expansion proposal, SB 54 and House Bill (HB) 2102, was introduced on January 29 with initial funding of approximately $14 million. It was similar to the bill passed by the Legislature in 2017 that was vetoed by Gov. Sam Brownback. However, neither of the bills was scheduled for hearings and the initial funding for expansion included in the governor’s budget subsequently was reallocated by legislators to increase payments to physicians and hospitals treating Medicaid patients.

On March 6-8, Rep. Brenda Landwehr, Chair of the House Health and Human Services Committee (HHS), hosted a roundtable discussion on Medicaid expansion featuring 15 participants representing numerous proponent, opponent and neutral organizations. Over three days, participants discussed the goals of expansion, risks versus benefits, the need for data and the challenges of identifying relevant data and measures, the potential financial effect on hospitals — especially those in rural communities — and alternative options to expansion. While proponents and opponents argued the pros and cons of expansion, all participants agreed on the need for data and metrics to measure health outcomes, and that expansion would help the bottom lines of hospitals but would not resolve some of the larger issues facing hospitals. Participants also agreed that an overall examination of the high costs of health care would be beneficial.

While no new expansion bills were introduced following the roundtable, HB 2066, which was originally a bill updating the scope of practice and other requirements for advanced practice registered nurses, was amended on March 20 to replace the contents of the bill with the contents of HB 2102, one of the governor’s Medicaid expansion bills introduced in January. The House further amended the bill to require all expansion enrollees, regardless of income, to pay a $25 individual monthly fee (up to $100 per month for households) and suspended coverage following three consecutive calendar months of nonpayment of the fee. To date, this is not a model that the Centers for Medicare and Medicaid Services (CMS) has approved. The bill also was amended to include a provision to prohibit coverage or reimbursement for any abortion services and then was passed out of the House the following day on a vote of 69-54.

On April 24, before legislators returned for the veto session, Senate Majority Leader Jim Denning announced that he and other Republicans were committed to working on an expansion bill during the interim session that would be ready for debate in January 2020. However, expansion advocates continued to push for a vote in 2019.

On May 1, the Senate considered a motion made by Senate Minority Leader Anthony Hensley right before the Senate adjourned for first break to pull the bill out of the Senate Public Health and Welfare Committee (PH&W) and place it on the Senate calendar. The motion failed on a vote of 23-13, one vote short of the required 24 votes needed to bring the bill out of committee and subsequent attempts by proponents to bring expansion up for a vote were unsuccessful. Two interim committees — the Senate Select Committee on Health Care Access and the Special Joint Committee on Medicaid Expansion — will be meeting this fall.

HB 2149, a bill that would have required timeliness and performance standards in contracts between KDHE and contractors providing Medicaid services for determining eligibility, along with penalty provisions, received a hearing in the Children and Seniors Committee on February 7 but failed to pass out of committee.

The final budget bill for FY 2020 also includes:

• • An additional $12.4 million for the Children’s Health Insurance Program (CHIP) to replace the scheduled decrease in the federal CHIP match rate;
  • $3.0 million to increase Medicaid dental reimbursement rates;
  • $14.2 million for the Health Care Access Improvement Program, along with a requirement that KDHE submit a request to increase the hospital assessment rate to 3.0 percent;
  • $10.1 million to provide a 1.5 percent increase in the reimbursement rates for providers of home and community-based services (HCBS);
  • $6.8 million to rebase the reimbursement rates for the Program of All-Inclusive Care for the Elderly (PACE);
  • $6.0 million to reduce the wait lists for Medicaid HCBS waivers;
  • $6.8 million to provide a 1.0 percent increase in the reimbursement rates for nursing facilities; and
  • $12.4 million to increase the protected income level for HCBS waiver services recipients and individuals in PACE from $727 to $1,177 per month.

Behavioral Health

On January 14, the Mental Health Task Force (MHTF) submitted its second report to the Legislature, which contained implementation strategies for recommendations made in its first report to the Legislature in 2018. During January and February, members of the Senate Ways and Means Committee and the House Social Services Budget Committee heard presentations from members of the task force about the process used to produce the recommendations and the logistics of implementing those recommendations.

The final budget bill includes $3.9 million for community mental health centers providing crisis center services, Clubhouse Model programs and the Client Assessment Referral and Evaluation program for FY 2019, and $5 million for community mental health center grants for FY 2020. The Legislature also continued the Mental Health Intervention Team Pilot program, which was created during the 2018 session and piloted at 79 schools across the state.

The final budget also directs the Kansas Department for Aging and Disability Services (KDADS) to submit a plan by January 2020 to end the moratorium on admissions at Osawatomie State Hospital and to restore Brain Injury waiver slots to 723; directs the state to submit proposals to CMS to waive the Institution for Mental Diseases (IMD) exclusion; and mandates a behavioral health Medicaid rate study.

Bills addressing the administration of antipsychotic medication to adult care home residents and establishment of a Kansas Alzheimer’s Disease Advisory Council were introduced, but neither bill received a hearing.

Senate Sub. for HB 2167, signed into law by Gov. Kelly on April 15, requires the Kansas Department of Agriculture (KDA), in consultation with the governor and attorney general, to submit a plan to the U.S. Department of Agriculture regarding how KDA will monitor and regulate the commercial production of industrial hemp within the state in accordance with federal law. The bill also establishes the Commercial Industrial Hemp Program, makes changes to the Industrial Hemp Research Program and establishes hemp processing registrations, prohibitions on specific products, sentencing guidelines and waste disposal requirements.

SB 113, the Veterans First Medical Cannabis Act, which would have allowed for the legal use of medical marijuana, received a hearing in the Senate PH&W Committee on March 14-15 but failed to pass out of committee. Proponent testimony focused on the benefits of medical cannabis in pain management as a safer alternative to prescription medications and helping veterans with a variety of issues including post-traumatic stress disorder. Concerns expressed by opponents included the risks to youth, increased violent crime in states that have legalized medical marijuana, the perceived lack of science-based evidence, and the potential for marijuana to act as a gateway drug. Neutral testimony was offered by several organizations that expressed concerns about the implementation process and start-up costs for state agencies, impact on public safety and driving under the influence, and confusion about the status of CBD that currently is exempted from the definition of marijuana in Kansas. A companion bill, HB 2163, was referred to the House HHS Committee but never received a hearing.

SB 195, cited as the Safe Access Act, and its companion bill, HB 2303, also would have legalized the medical use of marijuana to treat certain medical conditions, but neither bill received a hearing.

Licensing & Scope of Practice

SB 15, signed by Gov. Kelly on April 22, revises existing statutes related to the licensure of social workers at the baccalaureate, masters and specialist clinical levels, amends provisions of the Adult Care Home Licensure Act related to applications for licensure, financial solvency and receivership of adult care homes, and amends the naturopathic medicine scope of practice law to include diagnostic imaging.

HB 2066, as originally introduced, would have allowed advanced practice registered nurses (APRNs) to have “full practice authority,” and eliminated the need for APRNs to have collaborative practice agreements with physicians. The House HHS Committee amended the bill to establish a supervised period before APRNs would be able to transition to full practice, require the Board of Nursing to create rules and regulations and require APRNs to pay into the Health Care Stabilization Fund. However, the APRN bill text was removed on the House floor and language for the expansion of Medicaid was inserted. A similar bill, HB 2412, was introduced on March 26 but did not advance beyond the HHS Committee.

Other bills considered this session included HB 2295, which would have provided for licensure of certified anesthesiologist assistants but failed to pass out of committee, and SB 11, which would have established the licensure of dental therapists but failed to receive a hearing. A Special Interim Committee on Health will meet later this summer to study the anesthesiologist assistants licensing issue.

The final budget bill also adopted several top tier recommendations by the CWSTF under its provisions for DCF, including almost $2.5 million for FY 2019 and $19 million for FY 2020 for upgrades to the Kansas Eligibility Enforcement System (KEES), FFPSA, and additional child welfare staff positions to address workforce shortages. In addition, the DCF budget proviso appropriated funds to study the impact of SB 367, enacted in 2016, which sought to decrease the number of youths in the juvenile justice system by creating community-based alternatives to detention centers for youth with offender behaviors entering into a foster care placement or already in a foster care placement. The budget bill also directs the managed care organizations (MCOs) to report quarterly to the Robert G. (Bob) Bethell KanCare Oversight Committee on psychiatric residential treatment facilities (PRTFs).

SB 77, signed by Gov. Kelly on April 12, revises statute to define a “child with sexual behavior problems” to mean a person under 18 years of age who has allegedly committed sexual abuse against another person under 18 years of age. The bill requires DCF to take certain actions when reports of child abuse or neglect are received, such as a joint investigation with law enforcement. DCF also is required to provide a referral to a child advocacy center or other mental health provider and as needed, offer additional services to the child and the family, although the services will be voluntary unless DCF deems otherwise.

SB 18, signed by the governor on May 13, amends statutes for various crimes, including penalties for the crimes of involuntary manslaughter and abuse of a child. If the victim is under age 6, the bill raises the penalty for the crime of involuntary manslaughter from a severity level 5 to a severity level 3-person felony, and the penalty for the crime of abuse of a child is raised from a severity level 5 to a severity level 4 person felony. These provisions will be known as “Mireya’s Law.”

Private Health Insurance

Legislators considered an unusually high number of health insurance bills during the 2019 session due, in part, to several bills being introduced in response to recently approved federal regulations related to association health plans (AHPs) and short-term, limited duration insurance. However, a bill introduced by the Kansas Farm Bureau early in the session received the most attention.

HB 2209, which was allowed to pass into law without the governor’s signature on April 19, authorizes the Kansas Farm Bureau (KFB) to sell healthcare benefit coverage that does not comply with the requirements of the ACA, including the requirement to cover pre-existing conditions and the essential health benefits (EHB) package. The bill specifically states KFB coverage is not subject to the jurisdiction of the Kansas Insurance Department (KID), as it is not considered health insurance, and makes it exempt from the benefit mandates enacted by the Kansas Legislature. Although the benefit plan will not be regulated by KID, the bill does require KFB to submit a signed, certified actuarial statement of the claim reserves of the plan annually to the department. Any concerns about the operation or financial status of the plan would be forwarded by KID to the Kansas Attorney General’s Office as a consumer protection matter.

During hearings on SB 32, the original bill introduced by KFB in January, KFB officials stated they intend to offer this benefit coverage to all their members but will require applicants to be medically underwritten for eligibility to participate in the plan and for setting premium rates. They also stated they anticipate the cost of this coverage could be as much as 30 percent lower than the ACA compliant plans currently available in the market. Membership in the KFB is open to all individuals for a membership fee of around $50/year. Opponents of the bill, including representatives of patient advocacy organizations and health insurance companies, expressed concerns about the potential lack of coverage for individuals with pre-existing health conditions and the possible loss of healthy individuals from the ACA compliant health insurance market, which could increase premiums for less-healthy individuals who remain in the market.

HB 2209 also includes the text of several bills revising Kansas insurance law related to the regulation of AHPs and small employer plans, which could expand the use of AHPs in Kansas. Proponents of the bills, including the Kansas and Wichita Chambers of Commerce, Blue Cross and Blue Shield of Kansas, and the Kansas Dental Association, testified during hearings on the bills that the revisions will allow the state to fully adopt the new federal guidelines issued by the Trump administration in 2018 and potentially increase the number of sole proprietors and small businesses that participate in AHPs and reduce premiums. Opponents expressed concerns about the adequacy of the covered benefits in AHPs, which are not required to include the EHB required by the ACA.

On March 28, prior to the enactment of HB 2209, a U.S. district court judge for the District of Columbia issued an opinion that some provisions of the Trump administration’s final AHP rule are “unlawful and must be set aside.” The U.S. Department of Labor (DOL) announced on April 26 that it is appealing the federal district court decision but did not request a stay for the decision, meaning the ruling remains in effect. However, the DOL also has released a policy statement indicating that individuals already enrolled in AHPs under the final rule can maintain that coverage until the end of their plan year and existing AHPs can renew coverage after the end of the year for those businesses and employees that have already enrolled.

HB 2053 and SB 35, which would have revised Kansas insurance law to adopt the new federal guidelines related to short-term, limited-duration insurance, received hearings but did not pass out of committee. SB 109, which would have repealed the Kansas Uninsurable Health Insurance Plan Act, also known as the state high-risk pool, was withdrawn from the calendar and re-referred to the Financial Institutions and Insurance Committee on April 5.

Other Health-Related Issues

HB 2119, signed by the governor on April 18, amends the Pharmacy Act of the State of Kansas to require that prescriptions be submitted electronically for substances in schedules II-IV that contain an opiate beginning on July 1, 2021. Beginning on March 1, 2020, it also allows pharmacists to administer injections that were prescribed to be self-administered, unless the prescription prohibits it. Proponents of the bill stated that requiring electronic prescriptions is intended to increase safety and ease of tracking prescriptions, while allowing pharmacists to administer injections is intended to increase medication adherence rates.

In addition to the new prescribing rules, HB 2119 also includes provisions authorizing certain business entities (that are not medical care facilities) located in Kansas to hire physicians and chiropractors, which is sometimes referred to as the “corporate practice of medicine.” The bill defines “business entity” as an employer located in Kansas that utilizes electronic medical records (EMRs) and offers medicine and surgery or chiropractic services solely for its employees and dependents of employees at the work site; organizations licensed to sell health insurance in the state; or information technology companies that design, utilize and provide EMRs for businesses and worksite medical clinics for employers located in Kansas.

HB 2290, signed by Gov. Kelly on May 16, authorizes qualified entities — defined as businesses or organizations that provide care to children, older adults or individuals with disabilities that are private, for profit, not-for-profit or voluntary — to require criminal history record checks of providers who have access to children, older adults, or individuals with disabilities to determine whether those individuals have the qualifications and fitness to be permitted to serve as a provider. Proponents of the bill explained that due to enactment of the National Child Protection Act in 2018, states are required to have legislation in place in order to continue to conduct these background checks.

HB 2033, which would have reduced the state sales tax on certain food items beginning in July 2020, also contained provisions related to changes in the state individual income tax rules and tax cuts for individuals. It was vetoed by the governor on May 17. A motion to override the veto failed on May 29.

SB 67, which was forwarded to the governor on April 12, would have required certain notifications to be posted in facilities that provide medication abortions using Mifepristone, also known as RU-486, that the medication is not always effective in ending a pregnancy and the abortion could be reversible if the second pill or tablet has not been administered. Proponents of the bill asserted that abortion reversal is clinically proven, and the bill would ensure patients receive full information, while opponents argued the evidence on abortion reversals is poor and the bill would require physicians to provide misinformation. The bill was vetoed by Gov. Kelly on April 22 and an attempt to override the veto failed by one vote on May 2.