2023 Kansas Legislative Preview

Introduction

The 2023 Kansas legislative session began on Monday, January 9. Because 2023 is the first year in the legislative biennium, or two-year cycle, none of the more than 50 unfinished health-related bills from last session remain on the calendar.

Medicaid Expansion

To date, 40 states (including DC) have adopted the Affordable Care Act (ACA) provision to expand Medicaid coverage to adults with income through 138 percent of the federal poverty level (FPL), and 11 states, including Kansas, have not adopted expansion. During the 2022 session, legislation to expand Medicaid was introduced early in the session but failed to receive a hearing. Gov. Laura Kelly has continued to state that Medicaid expansion is a top priority. On November 30, Will Lawrence, Gov. Kelly’s chief of staff, stated that the governor “plans to introduce a bill in both chambers and tour the state talking about Medicaid expansion.”

The financial incentives included in the federal American Rescue Plan Act (ARPA), signed into law in March 2021, are still available to states that have not yet expanded Medicaid. Under ARPA, in addition to the 90 percent federal matching funds already available through the ACA for medical services for newly eligible Medicaid expansion enrollees, states that have not expanded Medicaid also are eligible for a 5 percentage point increase in their current federal matching funds, for a period of two years, which applies to services provided to children, non-expansion adults, older adults and people with disabilities.

KanCare

During the 2023 session, legislators will likely review the work of the 2022 Special Committee on Intellectual and Developmental Disability Waiver Modernization, chaired by Rep. Will Carpenter. The Special Committee, which was charged with reviewing and recommending options to modernize how the Intellectual and Developmental Disability (I/DD) waiver could be restructured to address the I/DD waiver waitlist and workforce struggles, met three times between September and November. At the end of the November 1 meeting, the Special Committee announced their recommendations, which included recommending the Community Support Waiver, capped at $20,000 of goods and services annually, as a lower-cost service alternative for individuals on the waitlist who need services to live at home and in their communities. The Community Support Waiver discussed by the committee could serve individuals outside of residential and congregate day settings and could include services such as transportation, supported employment, individual directed goods and services, personal care, respite care, assistive technology, independent living skills/community engagement skills, family/caregiver support and training, and financial management services. Special Committee members were told that as of July 1, 2022, there were 4,758 individuals on the waitlist for the I/DD waiver and typical wait time can exceed 10 years.

Legislators also may choose to weigh in on any new requests for proposal for the administration and provision of the benefits provided under KanCare and any new contracts with managed care organizations. Under House Bill (HB) 2387, passed at the end of the 2022 session over the governor’s veto, that process can begin on or after January 31, 2023, when the provisions of the bill expire.

Behavioral Health

During the 2022 session, legislators discussed the need for additional mental health beds in the state and included a proviso in 2022 HB 2510 to create an interim study committee on Sedgwick County regional mental health bed expansion that would provide recommendations to the 2023 Legislature for consideration. The Special Committee on Mental Health Beds, charged with reviewing the need for inpatient psychiatric beds, developing a long-term plan to address mental health needs, reviewing the regional bed expansion plan, including how many beds would be constructed, reviewing best practices for operation and oversight of the expanded beds, and reviewing the long-term fiscal impact of additional beds, met five times between August and December. Conferees included representatives from state agencies, mental health advocacy organizations, the Kansas Hospital Association, Kansas Association of Counties, law enforcement officials, Sedgwick County, Larned and Osawatomie state hospitals, Kansas colleges and universities, and mental health providers. During the November 28 meeting of the Special Committee, the members outlined their recommendations for the Legislature, which included:

• Development of up to 50 state institutional beds to be located in the Sedgwick County area in a location with room for expansion;
• Initiation of this development within calendar year 2023;
• Allocation of $40 million in funding from SPARK funds, as requested by Sedgwick County, for the purchase and renovation of a facility to house the beds;
• Approval of $15 million in state general funds in fiscal year (FY) 2023 to the Kansas Department for Aging and Disability Services (KDADS) to be used to begin the process for a request for proposal for the project; and
• Approval of $5 million per year to KDADS for FY 2024 and FY 2025 for a two-year pilot program to reimburse Kansas hospitals that provide observation services for patients during the period prior to the availability of the new state institutional beds, as requested by the Kansas Hospital Association (KHA), including a requirement that KHA provide at least annual reporting to the Legislature regarding this reimbursement program.

During the Special Committee’s final meeting on December 21, the members focused on the issue of the behavioral health workforce in the state and conducted a roundtable discussion on various topics including:

• Increasing the accessibility of entry-level certifications for licensed mental health technicians (LMHTs) and mental health developmental disability technicians (MHDDTs), including whether recruiting for MHDDTs would be easier if all or part of the training could be transferred toward another degree;
• Reducing barriers that prevent retired behavioral health professionals from returning to the workforce, including issuing temporary licenses for those with expired licenses or those who have not completed their required continuing education credits;
• Improving incentive programs for the behavioral health workforce, such as relocation bonuses, partnering with universities for recruitment, and offering credit toward other healthcare degrees for LMHTs;
• Improving the tracking and evaluation of incentive programs to determine if they are being utilized and meeting their goals; and
• Taking steps to ensure that Kansas behavioral health professionals’ wages are comparable to those in other states and similar professions.

David Fye, Executive Director, Kansas Behavioral Sciences Regulatory Board, reported that the Board is considering changes to its regulatory requirements for licensure reciprocity and also considering reducing the requirement for practicing in a specific area for a certain number of months and allowing students to complete addiction counseling, marriage and family therapy, and social work programs online rather than in-person as currently required.

Committee members also discussed the importance of access to therapy and clinical supervision for the behavioral health workforce and the need to address high patient-to-staff ratios and the stressors faced by workers in the field. The Special Committee will be submitting a report to the 2023 Legislature with their final recommendations.

Medical Marijuana

Legislation to create a regulatory framework for medical marijuana in the state will likely be on the table early in the session. The 2022 Special Committee on Medical Marijuana, which was charged with studying medical marijuana regulation legislation considered by the Legislature during the 2021 and 2022 sessions – House Substitute (H Sub) for Senate Bill (SB) 158 and SB 560, respectively – and soliciting testimony from potential licensees, state agencies, medical providers, and law enforcement officials, met four times during October and December. During the meetings, legislators heard both support for and opposition to the legalization of medical marijuana from more than 60 conferees. During the Special Committee’s meeting on October 19, members also heard from professionals from other state medical marijuana programs, who spoke about their successes and struggles when implementing their programs and recommendations for committee members to consider when crafting a bill. Proponents of medical marijuana legislation have pointed to the November 8 passage of a constitutional amendment in Missouri that legalized recreational marijuana as an incentive for Kansas to at least pass medical marijuana.

Following the December 9 meeting of the Special Committee, Chairman Rob Olson stated that he planned to introduce a medical marijuana bill at the beginning of the 2023 session. However, there may be opposition to medical marijuana legislation in the Senate. Senate President Ty Masterson has not expressed his support for the legalization of medical marijuana and recently stated that the state budget and school funding are higher priorities for him. Opposition has also come from members of the Special Committee on Workforce Development, which passed a recommendation, on a vote of 4-3, with some members abstaining, that the Legislature “proceed with caution” with medical marijuana legislation. During their meeting on November 21, members of the Workforce Development Committee, including Sen. Virgil Peck, expressed concerns about employers who are unable to hire employees who cannot pass drug screening tests, specifically those individuals applying for jobs requiring the use of heavy machinery.

During the Special Committee’s final meeting on December 15, Kansas Legislative Research Department (KLRD) staff presented information requested by committee members during the December 9 meeting related to physician liability, access to public housing, gross sales revenue in other states, employment laws, social equity licensing programs and possession limits. At the end of the meeting, Chairman Olson again stated his plans to introduce a bill with elements from H Sub for SB 158 and additional provisions based on the information presented by KLRD. He noted that the bill may be assigned to the Senate Federal and State Affairs Committee and acknowledged that additional bills may be introduced.

Tobacco Products/Electronic Cigarettes

During the 2022 session, the House passed HB 2340, which would have amended the Kansas Cigarette and Tobacco Products Act, the Kansas Indoor Clean Air Act, and criminal statutes related to the use and possession of cigarettes, electronic cigarettes (e-cigarettes), consumable material and tobacco products by persons under the age of 21. Although federal law raising the federal minimum age for the sale of tobacco products from 18 to 21 years (known as “Tobacco 21” or “T21”) was enacted in 2019 and applies to all retail establishments and persons with no exceptions, Rep. John Eplee testified during a hearing on the bill in the Federal and State Affairs Committee in February 2021 that passing the bill would codify the federal minimum legal age in Kansas, reduce tobacco use among adolescents, and help strengthen enforcement of the law.

Speaking directly to Carol Moreland, executive administrator of the Board of Nursing, and Kelly Sommers, executive director of the Kansas State Nurses Association (KSNA), Landwehr asked what changes could be made in some nursing programs related to requirements for hours of education, including the hours required to become a certified nurse aide, and also suggested that the boards review their licensing requirements to determine if they are comparable to other states. Sommers noted that the KSNA’s board would be discussing ways to address any concerns regarding barriers to nurses entering or rejoining the workforce.

Telehealth

The Legislature also may be interested in taking another look at legislation such as SB 248, which would have made a significant number of changes to the Kansas Telemedicine Act, including updated definitions and new requirements related to the coordination of care by telemedicine providers with a patient’s Kansas-based primary care provider or medical home.

Child Welfare

For several years, lawmakers have focused on addressing problems with the child welfare system in Kansas. For the second year in a row, legislators will have an opportunity to consider recommendations for changes to the system from members of the Joint Committee on Child Welfare Oversight, which was created in 2021. The Joint Committee met five times between September and November and heard testimony from foster parents, representatives of KDADS, the Department for Children and Families (DCF), the Division of the Child Advocate, case management providers, foster care and family preservation contractors and individuals. Special topic areas addressed by the Joint Committee included foster youth mental health needs, and permanency and adoption. Recommendations from the Joint Committee included:

•  Passage of a foster parent’s bill of rights to inform foster parents of their rights within the child welfare system;
• Review of the Guardian ad Litem system;
• Consideration of bringing case management back under the direct control of DCF;
• Directing DCF to develop a more uniform way to get information to parents who are attempting to reintegrate after a court hearing and a summary of actions to be taken by parents;
• Directing law enforcement to create best practices for child in need of care interventions;
• Amendment of Adrian’s Law, as proposed during the 2022 session in HB 2632, to require a referral of an alleged victim of child abuse or neglect for an examination as part of an investigation, create a program in the Kansas Department of Health and Environment (KDHE) to provide training and payment and defining child abuse review and evaluation providers, networks, examinations and referrals and child abuse medical resource centers;
• Expansion of the Safe Families Kansas program into new geographic areas of the state; and
• Permanent funding for school-based mental health intervention teams.

Food Taxes

Although the Legislature, at the end of the 2022 session, passed HB 2106, which will gradually eliminate the 6.5 percent state sales tax on food and food ingredients by January 1, 2025, Gov. Laura Kelly announced in December that she intends to push for the complete and immediate elimination of the sales tax on groceries, as well as the sales tax on diapers and feminine hygiene products, when legislators return for the 2023 session. In November, Gov. Kelly pointed to the Consensus Revenue Estimate (CRE) released on November 9 that increased the projected state revenues for FY 2023 and FY 2024 and suggested that the additional revenue could be used for the immediate elimination of the food sales tax. Tax collections for the month of November, announced on December 1, did not meet the CRE announced in November. However, total revenue collections in December were $140 million above the estimates for the month, and total tax receipts for the first six months of Fiscal Year 2023 were $4.667 billion, $104 million more than the prior estimate. Some Republican legislators have indicated they prefer to continue the gradual elimination plan in HB 2106 and focus on other potential tax cuts during 2023.