Sine Die and Special Session 2020

11 Min Read

Jun 11, 2020


Peter F. H. Barstad,

Linda J. Sheppard, J.D.

After an extended break that began back in March, legislators returned to the Capitol on May 21 for a 24-hour sine die session that finally ended with passage of a 40-page bill covering a wide variety of COVID-19 related topics, including appropriations, the governor’s powers under the Kansas Emergency Management Act, and liability protection for healthcare providers and private businesses trying to operate during a pandemic. But when Gov. Laura Kelly vetoed the COVID-19 bill on May 26 she called for a Special Session and legislators returned on June 3. During the days leading up to the Special Session, legislative leadership and Gov. Kelly negotiated a modified version of the bill passed in the early hours of May 22 and the Special Session ended late in the day on June 4 after passing Senate Substitute for House Bill 2016.

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As the number of confirmed COVID-19 cases in the state continued to climb, legislators adjourned for an early Spring Break on March 19, following passage of a basic budget bill and House Concurrent Resolution (HCR) 5025, which authorized both the State Finance Council (SFC) and the Legislative Coordinating Council (LCC) to oversee and respond to Gov. Kelly’s actions related to the COVID-19 pandemic. Under HCR 5025, the SFC, upon application of the Governor, was authorized to extend her State of Disaster Emergency declaration for a period not to exceed 30 days. The LCC was tasked with reviewing and revoking orders and proclamations issued by the Governor following consultation with Attorney General Derek Schmidt and other parties. On March 19, there were 34 confirmed cases of COVID-19 in the state.

On Monday, March 30, Kansas Department of Health and Environment (KDHE) Secretary Lee Norman projected that the number of COVID-19 cases would peak around April 24th and expressed concern about Legislators returning on April 27 for the wrap-up session. Three days later, after the Governor announced she was extending the shutdown of state buildings through Sunday, April 19, Senate President Susan Wagle and Speaker of the House Ron Ryckman expressed uncertainty about when the Legislature would reconvene.

On Wednesday, April 22, the LCC met to discuss when to reconvene the wrap-up session but elected not to return on April 27 and set another meeting of the Council for May 6. Discussion during the meeting included the Governor’s ability to reissue her State of Disaster Emergency Proclamation and whether reissuing the proclamation would jeopardize the state’s receipt of millions of dollars being provided by the federal government for the pandemic. Legislative Administrative Services Director Tom Day also stated that he was concerned about the health and safety of legislators, staff and others if the Capitol were reopened for the wrap-up session.

Gov. Kelly also issued EO 20-26, which temporarily removed certain restrictions and requirements for health care providers, including allowing physician assistants, advanced practice registered nurses and nurse anesthetists to provide medical services appropriate to their professional training and experience without a written practice agreement with a physician or physician supervision.

On Thursday, April 30, Gov. Kelly issued a new State of Disaster Emergency Proclamation, which she asserted was needed to maintain her emergency authority under the Kansas Emergency Management Act (KEMA), extend some COVID-19 related executive orders and retain funding and other support through the Federal Emergency Management Act (FEMA) and the U.S. Department of Defense. She also released the Ad Astra: A Plan to Reopen Kansas – her framework for re-opening the Kansas economy. Under Phase One of the plan, the statewide Stay-At-Home order was officially lifted, via EO 20-29, on Monday, May 4.

On Wednesday, May 6, the LCC met for the second time to discuss when the Legislature would reconvene to wrap-up the session. A motion was made by Rep. Hawkins to reconvene for one day on May 21, followed by a substitute motion to reconvene for three days beginning on May 19, made by Sen. Denning and supported by Sen. Wagle. Ultimately, the Denning motion failed and the Hawkins motion was passed unanimously.

On Thursday, May 7, Sen. Wagle announced that four Senate committees – Judiciary, Commerce, Taxation and Financial Institutions and Insurance – would meet prior to May 21. The following day, Rep. Ryckman announced that four House committees – Appropriations, Commerce, Taxation, and Judiciary – would also meet prior to the Legislature’s return. All committees were tasked with considering various COVID-19 related issues and would be meeting between May 13 and May 20.

On Wednesday, May 13, the SFC met and refused to extend the Governor’s second emergency declaration through June 13, but instead extended it to May 26.

On Thursday, May 14, Gov. Kelly signed EO 20-31, which established a new phase to the Ad Astra reopening plan. Under new Phase 1.5 – effective May 18 – mass gatherings of more than 10 individuals were prohibited; certain personal service businesses were allowed to open for pre-scheduled appointments; fitness centers and health clubs were allowed to open with the exclusion of in-person group classes and locker rooms; and in-person commencement or graduation ceremonies with no more than 10 socially-distanced individuals were permitted.

On Tuesday, May 19, Gov. Kelly issued EO 20-34, which would move the state into Phase 2 of the Ad Astra plan effective May 22. Under Phase 2, mass gatherings of more than 15 individuals were still prohibited, but all other businesses and activities slated to open during Phase 2 were allowed with the exception of bars, night clubs and swimming pools.

At midnight on Wednesday, May 20, Attorney General Schmidt issued a 31-page opinion responding to questions posted by several legislators related to the validity of Gov. Kelly’s first and second emergency declarations, the constitutionality of K.S.A. 48-925 and 48-939 (provisions of the KEMA) and enforcement actions taken under the authority of those statutes. In conclusion, Gen. Schmidt stated that prosecutors and law enforcement considering criminal enforcement actions should proceed with caution when bringing charges and also recommended the Legislature carefully review the KEMA and consider reforming provisions that are “constitutionally suspect.” He also recommended that the Legislature confirm the existence of a lawful state of disaster emergency since April 30, when the Governor issued her second declaration, which he characterized as “legally suspect,” and enact an “unclouded method for future [declaration] extensions” during the current pandemic.

On Thursday, May 21, the House and Senate convened at 8 a.m. for a one-day sine die veto session. The House limited the number of representatives in the chamber by allowing only leadership and staff on the floor, with most members listening to the proceedings from their offices and going to the chamber in groups of 20 to vote. It was business as usual for the Senate with members at their desks and a handful of Senators wearing masks.

After a slow start in the Senate, Sen. Denning announced he would be “calling the question” for all bills, meaning they would move to a straight up or down vote without any further debate, discussion, revision or amendment. Sen. Dinah Sykes managed to get an amendment on the queue earlier in the day for HB 2585, dealing with electric utilities, and brought forward an amendment for Medicaid expansion. However, the amendment was challenged and found not germane to the topic of the underlying bill and an effort to overturn the Rules Committee’s decision failed on a vote of 26-14.

Throughout the day and into the night various conference committees met to hammer out compromise provisions on a few bills until all issues had been presented to the full body for consideration. The House-Senate Judiciary Conference Committee Report for Senate Substitute for House Bill 2054 (S. Sub. for HB 2054), Governmental response to the 2020 COVID-19 pandemic in Kansas, included agreement on various components, including:

    • Appropriations for fiscal years 2020 and 2021 related to federal funds made available to the state under federal law
    • Powers of the governor and executive officers, and local health officials
    • Enacting the COVID-19 response and reopening for business liability protection act
    • Providing immunity from civil liability for healthcare providers
    • Authorizing the expanded use of telemedicine
    • Providing for temporary suspension of certain healthcare professional licensing and practice requirements (codifying provisions in EO 20-26)

After nearly 24 hours of work, the House and Senate adjourned shortly before 8 a.m. on May 22, after passing nine bills, covering topics such as reviewing and continuing exceptions to the disclosure of public records, transfers of funds related to the University of Kansas cancer research trust fund, creation of a scholarship act for foster care children, and S. Sub for HB 2054.

On Tuesday, May 26, Gov. Kelly vetoed S. Sub for HB 2054, stating that it included provisions that “would damage Kansas’ ability to respond to COVID-19 and all future disasters.” She also signed a new state disaster declaration and called for a special session of the Legislature to begin on June 3. The new declaration returned all authority related to COVID-19 restrictions to local health authorities and converted the Ad Astra reopening plan into a strongly recommended template for county health officials to consider.

On Monday, June 1, Attorney General Schmidt recommended that the Legislature enact a law governing COVID-19 contact tracing to provide a legal framework for the protection of personal information and civil liberties.

Following the Governor’s veto, she began meeting with members of legislative leadership to discuss revisions that would need to be made to S. Sub. for HB 2054 in order for both parties to approve new legislation during the Special Session. Changes related to appropriations of coronavirus relief funds, the state of disaster emergency declarations and Kansas emergency management act, the authority of county boards of health and local health officers, school closures, the COVID-19 response and reopening for business liability protection act, and the COVID-19 contact tracing privacy act were negotiated and new language was presented to the House Judiciary Committee for consideration.

On Tuesday, June 2, House and Senate leadership stated they were planning for a one or two-day special session focused solely on taking action on a COVID-19 response bill, and expected the House to take first action on the compromise bill which already had the support of the Governor. The compromise bill was forwarded to the House Judiciary Committee on June 2, officially introduced on June 3, as Special Session HB 2016, and extensively reviewed and debated in both the Senate and House Judiciary Committees over two days.

On Wednesday, June 3, the Legislature convened the 2020 Special Session and the day began with Gov. Kelly confirming that she would support Special Session HB 2016, the bipartisan compromise COVID-19 response bill. Legislators also introduced nearly two dozen bills on a number of topics, including: workers compensation; COVID-19 specific state tax abatement relief exemptions; foster care annual academic report cards; early release and house arrest for inmates due to COVID-19; drug abuse treatment for people on diversion; Medicaid expansion; income tax credits for dependent care expenses; food sales tax; medical marijuana; child protection services; and unemployment insurance.

In the House, Rep. Jim Ward made one final attempt to pass Medicaid expansion by introducing an amendment to insert the contents of SB 252, the expansion bill introduced by Sen. Denning at the beginning of the Regular Session, into Special Session HB 2016. However, the amendment was challenged and found not germane and an effort to overturn the Rules Committee’s decision failed on a vote of 76-43, officially ending any last hopes of expanding Medicaid before 2021. After five hours of debate, the House passed Special Session HB 2016 on a vote of 107-12 around 9 p.m., with only one minor technical amendment.

On Thursday, June 4, the Senate Judiciary Committee held a final hearing on Special Session HB 2016, as approved by the House, and passed it out favorably. After a motion by Sen. Denning to call the question, many senators took the opportunity to explain their votes to express dissatisfaction with the process the bill had gone through and to express concerns about the legislation itself. However, despite a majority of senators speaking against the bill, it passed on a vote of 26-12. Sen. Wagle and Sen. Denning – both of whom will not be returning to the Legislature next year, called for adjournment of the 2020 Special Session and the Senate adjourned at 3:26 p.m., followed by adjournment of the House at 3:45 p.m. Special Session HB 2016 was the only bill debated during the Special Session.

On Friday, June 5, Gov. Kelly announced she would sign Special Session HB 2016 as soon as it is presented to her. She also stated she was not completely satisfied with the bill and expects that the entire executive emergency act in the KEMA will likely be revised during the 2021 session.

On Monday, June 8, the Governor signed Special Session HB 2016 and Secretary of State Scott Schwab indicated his office will do an express publication of the Kansas Register to get the bill into law.

As of June 8, there were 10,650 confirmed cases of COVID-19 in the state, including 236 deaths.

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The Kansas Health Institute supports effective policymaking through nonpartisan research, education and engagement. KHI believes evidence-based information, objective analysis and civil dialogue enable policy leaders to be champions for a healthier Kansas. Established in 1995 with a multiyear grant from the Kansas Health Foundation, KHI is a nonprofit, nonpartisan educational organization based in Topeka.

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