2020 was a memorable Kansas legislative session. From the lengthy, action-packed sine die session, to the Special Session called by the Governor, through the resulting legislation contained in Special Session House Bill 2016. This special edition of Health at the Capital provides a comprehensive review of the contents of that important bill.
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Special Session House Bill 2016
On Thursday, June 4, 2020 the Kansas Legislature passed Special Session House Bill 2016, entitled An Act concerning governmental response to the 2020 COVID-19 pandemic in Kansas. The final, 40-page bill signed by Gov. Laura Kelly on June 8, addressed a wide range of health-related issues, including the expenditure of funds that have already been, and may be in the future, provided to the state by the federal government for relief of the effects of COVID-19; the powers of the Governor and county officers and officials under the Kansas Emergency Management Act (KEMA); the closing of schools; immunity for health care providers rendering services and liability protection for persons conducting business during the COVID-19 state of emergency; the establishment of an operational framework for contact tracing – a tool used to control an infectious disease outbreak; authorizing the expanded use of telemedicine; and temporarily allowing certain types of healthcare providers to provide care without some existing professional licensing and practice requirements.
Coronavirus Relief Funds (Sections 1 through 4)
The bill appropriates the Coronavirus Relief Fund (CRF) in the Office of the Governor for relief for the effects of COVID-19 during both fiscal years 2020 (ending June 30, 2020) and 2021 (ending June 30, 2021). No moneys can be disbursed or expended from the CRF without the approval of the Governor and a majority of the legislative members of the State Finance Council (SFC); the Council also retains this authority when the Legislature is in session. This same approval process will also apply to any federal funds received under the federal Coronavirus Aid, Relief and Economic Security (CARES) Act, Coronavirus Preparedness and Response Supplemental Appropriations Act, Families First Coronavirus Response Act (Families First Act), the Paycheck Protection Program, Health Care Enhancement Act and any other federal law that provides moneys to the state for coronavirus relief.
Ratification and Limitation of 2020 State of Disaster Emergencies (Section 5)
This section creates new law ratifying and continuing through September 15, 2020, the COVID-19-related state of disaster emergency declared by Gov. Kelly on March 12, 2020, ratified and continued by concurrent resolution through May 1, 2020; declared by proclamation on April 30, 2020; and extended by the SFC through May 26, 2020. It also prohibits the Governor from proclaiming any new COVID-19-related state of disaster emergency during 2020 unless she makes specific application to the SFC and her action is approved by an affirmative vote of at least six of the eight legislative members.
Closure of Business or Commercial Activity (Section 6)
This section creates a new law, effective on or after September 15, 2020, that prohibits the Governor from ordering the closure or cessation of any business or commercial activity for more than 15 days during any state of emergency declared by the Governor. At least 24 hours prior to the issuance of an order, the Governor must call a meeting of the SFC to consult with the members regarding the conditions necessitating the issuance of the closure order. After such initial order/orders have resulted in 15 days of closure or cessation of such businesses or commercial activity, the Governor may not order closure or cessation except upon specific application to the SFC and an affirmative vote of at least six legislative members of the SFC. The Governor may order the closure or cessation of business or commercial activity approved by the SFC for specified periods not to exceed 30 days each. The provisions of this section expire on January 26, 2021.
School Closure (Section 7)
This creates a new section of law that no executive order issued by the Governor pursuant to KEMA that has the effect of closing public or private school attendance centers will be effective unless and until the order has been affirmed by the State Board of Education (SBE) by adoption of a resolution by a majority of the members of the Board. Prior to issuing such an executive order, the Governor must submit the proposed order to the SBE, which will then meet as soon as reasonably possible to review the proposed order and, if a majority of the members determines the order is in the best interests of the students in the state, to adopt a resolution affirming the Governor’s order.
COVID-19 Response and Reopening for Business Liability Protection Act (Business Liability Protection Act) (Sections 8-15)
The newly created Business Liability Protection Act establishes that a healthcare provider is immune from civil liability for damages, administrative fines, or penalties for acts, omissions, healthcare decisions, or the rendering of or the failure to render healthcare services, including services that are altered, delayed, or withheld as a direct response to any COVID-19 state of disaster emergency under KEMA. Immunity would apply to any claims for damages or liability arising out of or relating to acts, omissions, or healthcare decisions related to COVID-19 and occurring during any state of disaster emergency under KEMA.
Immunity will not apply to civil liability when it is established that an act, omission or healthcare decision constituted gross negligence or willful, wanton or reckless conduct and also will not apply to healthcare services not related to COVID-19 that have not been altered, delayed or withheld because of the COVID-19 public health emergency.
A person (or agent of such person, such as an employee) conducting business in Kansas shall be immune from liability in a civil action for a COVID-19 claim if such person was acting pursuant to and in substantial compliance with public health directives applicable to the activity giving rise to the claim. This section expires on January 26, 2021.
A person who designs, manufactures, labels, sells or distributes, provides or donates a qualified product in response to the COVID-19 public health emergency shall be immune from liability in a civil action alleging a product liability claim if any of these actions were taken at the specific request of or in response to a written order or other directive finding a public need for the qualified product, issued by the Governor, Adjutant General, or Division of Emergency Management, and the damages are not caused by willful, wanton, or reckless disregard of a known, substantial and unnecessary risk that the product would cause serious injury to others.
Adult care facilities will have an affirmative defense (not immunity) in a civil action for damages, administrative fines or penalties for a COVID-19 claim if the facility is acting pursuant to and in substantial compliance with public health directives, and:
- The claim was caused by the facility’s compliance with a statute or rule and regulation to reaccept a resident who has removed from the facility for treatment of COVID-19, or
- The facility treats a resident who has tested positive for COVID-19 in compliance with a statute or rule and regulation.
The provisions related to immunity for persons conducting business in the state or product liability apply retroactively to any cause of action accruing on or after March 12, 2020. The provisions related to immunity for healthcare providers and an affirmative defense for adult care facilities apply retroactively to any cause of action accruing on or after March 12, 2020 and prior to the termination of the state of disaster emergency related to the COVID-19 declared pursuant to KEMA.
Contact Tracing (Section 16)
This section shall be known as the COVID-19 contact tracing privacy act (Privacy Act).
The Privacy Act prohibits the state or any municipality, or any officer or official or agent of the state or any municipality, from conducting or authorizing contact tracing, except whenever the Secretary of the Kansas Department of Health and Environment (KDHE) or a local health officer determines contact tracing is necessary to perform a public health duty assigned by statute to the official. The Secretary or the local health officer may conduct or authorize contact tracing as provided for in this Act.
Subject to the availability of appropriations, the Secretary or local health officer can employ, contract for or engage contact tracers, and persons acting as contact tracers are required to meet the qualifications and training prescribed by rules and regulations adopted by the Secretary. Until such rules and regulations are adopted, persons acting as contact tracers can act under the supervision of the Secretary and in compliance with other provisions of the Privacy Act.
Before collecting any contact data, each person acting as a contact tracer is required to execute under oath, on a form prescribed by the Secretary, an acknowledgement of familiarity with the Privacy Act and the duties it imposes, including the duty of confidentiality. The state or municipal entity hiring, contracting with, or engaging the contact tracer is required to maintain a copy of the executed form for at least one year after the person’s duties as a contact tracer end, or pursuant to the applicable records retention schedule, whichever is later.
Under the Kansas Tort Claims Act, a contact tracer employed, contracted, or engaged by the Secretary is deemed a state employee, and a contact tracer employed, contracted, or engaged by a local health officer is deemed an employee of the county.
Contact tracers are prohibited from disclosing the identity of an infected person to a contact, and only contact data specifically authorized by the Secretary, under rules and regulations, can be collected as a part of contact tracing. The Secretary, a local health officer, or a contact tracer are prohibited from producing data pursuant to a subpoena unless the subpoena is issued by a court and accompanied by a valid protective order preventing further disclosure of the information.
Contact data must be:
- Used only for the purpose of contact tracing and not for any other purpose;
- Confidential and not disclosed, produced in response to any Kansas open records act request or made public; unless the disclosure is necessary to conduct contact tracing; and
- Safely and securely destroyed when no longer necessary for contact tracing pursuant to rules and regulations of the Secretary.
Participation in contact tracing shall be voluntary, and no contact or infected person shall be compelled to participate in, nor be prohibited from participating in, contact tracing. Any contact or infected person who in good faith discloses information requested by the contractor under authority of the Privacy Act shall be immune from civil, criminal and administrative liability for the disclosure. No criminal, civil or administrative liability shall arise against a contact or infected person solely due to such person’s failure to cooperate in contact tracing conducted under the Act.
Contact tracing may not be conducted through the use of any service or means that uses cellphone location data to identify or track, directly or indirectly, the movement of persons.
No third party shall be required to collect or maintain data regarding infected persons or contacts for the purpose of contact tracing. Contact tracers are prohibited from obtaining contact data related to an infected person or contact from any third party. Contact data voluntarily collected or maintained by a third party may be obtained by a contact tracer only if the third party provides such information to the contact tracer voluntarily and with the consent of the infected person or contact whose information is disclosed; or such information is provided pursuant to a valid warrant.
Persons may bring a civil action to enjoin violations of the Act and a knowing violation of this section is a class C nonperson misdemeanor. Contact data is deemed personal information within the meaning of the Kansas Consumer Protection Act statute governing requirements for holders of personal information.
The Secretary must promulgate rules and regulations to implement, administer, and enforce the provisions of the Privacy Act prior to August 1, 2020 and the provisions of the Act expire on May 1, 2021.
First Responder Notification (Section 18)
During a COVID-19 state of disaster emergency declared under KEMA, each local health officer shall work with first responder agencies operating in the county to establish a method to share information indicating where a person testing positive for or under quarantine or isolation due to COVID-19 resides or can be expected to be present. Such information will include the address for such person and, as applicable, the duration of the quarantine, isolation or expected recovery period for such person as determined by the local health officer. The information may only be used for the purpose of allowing first responders to be alert to the need for utilizing appropriate PPE during the response activity.
The information described above must be provided to the 911 call center for the area serving the address provided and the 911 call center shall disseminate the information only to first responders responding to the listed address. All information provided or disseminated under this section shall not be a public record and shall not be subject to the Kansas Open Records Act. This records provision will expire on July 1, 2025, unless the Legislature reviews and reenacts this provision under the Kansas Open Records Act.
Adult Care Homes (Section 19)
The Kansas Department for Aging and Disability Services must take the following actions with regard to adult care homes:
- Promptly, and no later than 90 days following the effective date of this section, make or cause to be made infection control inspections.
- Provide the necessary PPE, sanitizing supplies and testing kits appropriate to the needs of each facility on an ongoing basis, based upon:
- The current number of residents;
- The current number of full time and part time staff member;
- The number of residents and staff who have tested positive for COVID-19 in the last 14 days
- The ability to separate COVID-19 residents from non-COVID-19 resident; and
- Any other factors deemed relevant by the Secretary.
- Ensure that infection prevention and control best practices and recommendations based upon guidance from the U.S. Centers for Disease Control and Prevention and KDHE are adopted and made available publicly.
Telemedicine (Section 20)
A physician may issue a prescription for or order the administration of medication, including a controlled substance, for a patient without conducting an in-person examination of such patient. A physician under quarantine, including self-imposed quarantine, may practice telemedicine.
A physician licensed in another state may practice telemedicine to treat patients in Kansas, if the out-of-state physician advises the Board of Healing Arts of such practice in writing and in a manner determined by the Board and holds an unrestricted license to practice medicine and surgery in the other state and is not the subject of any investigation or disciplinary action by the licensing agency. The Board may extend the provisions of this subsection to other healthcare professionals licensed and regulated by the Board as necessary to address the impacts of COVID-19 and consistent with ensuring patient safety. This section expires on January 26, 2021.
Hospitals and Medicare Care Facilities (Section 21)
A hospital may admit patients in excess of its number of licensed beds or inconsistent with its licensed classification of beds, if the hospital determines it necessary to treat COVID-19 patients and to separate COVID-19 patients and non-COVID-19 patients. A hospital admitting patients in this manner shall notify KDHE as soon as practicable but prior authorization is not required.
A hospital may utilize non-hospital space, including off-campus space, to perform COVID-19 testing, triage, quarantine or patient care if the hospital determines it necessary to treat COVID-19 patients and to separate COVID-19 patients and non-COVID-19 patients. KDHE may impose reasonable safety requirements on the use of non-hospital space to maximize the availability of patient care, and non-hospital space used in this manner is deemed to meet the requirements of statutes governing the provision of services by a hospital consisting of more than one establishment. A hospital using non-hospital space in this manner is required to notify KDHE as soon as practicable, but prior authorization is not required.
A medical care facility may permit healthcare providers authorized to provide healthcare services in Kansas to provide healthcare services at such medical care facility without becoming a member of the facility’s medical staff. This section expires 120 days after the expiration or termination of the state of disaster emergency proclamation issued by the Governor in response to the COVID-19 public health emergency, or any extension thereof.
Temporary Emergency License (Section 22)
The Board of Healing Arts may grant a temporary emergency license to practice any profession licensed, certified, registered or regulated by the Board to an applicant with qualifications the Board deems sufficient to protect public safety and welfare within the scope of professional practice authorized by the temporary emergency license, for the purpose of preparing for, responding to or mitigating any effect of COVID-19. This section expires on January 26, 2021.
Temporary Licensure Measures for Additional Healthcare Providers (Section 23)
Physician assistants (PAs), advanced practice registered nurses (APRNs), nurse anesthetists, and licensed practical nurses (LPNs) may provide healthcare services appropriate to their education, training and experience within a designated healthcare facility at which they are employed or contracted to work as necessary to support the facility’s response to the COVID-19 pandemic. PAs may provide services without a written agreement with a supervising physician, APRNs and nurse anesthetists may provide services without direction and supervision from a responsible physician, and LPNs may provide services without direction from a registered professional nurse (RN). PAs, APRNs, nurse anesthetists, and LPNs will not be liable in any criminal prosecution, civil action or administrative proceeding when providing healthcare services under the provisions of this section.
Licensed pharmacists may provide care for routine health maintenance, chronic disease states or similar conditions appropriate to their education, training and experience within a designated healthcare facility at which they are employed or contracted to work as necessary to support the facility’s response to the COVID-19 pandemic without a collaborative practice agreement with a physician and shall not be liable in any criminal prosecution, civil action, or administrative proceeding arising out of the lack of a collaborative practice agreement with a physician.
RNs or LPNs who hold a license that is exempt or inactive or whose license has lapsed within the past five years from the effective date of this law may provide healthcare services appropriate to their education, training and experience, and will not be liable in any criminal prosecution, civil action or administrative proceeding arising out of their exempt, inactive or lapsed license.
Designated healthcare facilities, as necessary to support the facility’s response to the COVID-19 pandemic, may:
- Allow a student who is enrolled in a program to become a licensed, registered or certified healthcare professional to volunteer for work within the facility in roles that are appropriate to the student’s education, training and experience;
- Allow a licensed, registered or certified healthcare professional or emergency medical personnel who is serving in the military in any duty status to volunteer or work within such facility in roles that are appropriate to the military service member’s education, training and experience; and
- Allow a medical student, physical therapist or emergency medical services provider to volunteer or work within such facility as a respiratory therapist extender under the supervision of a physician, respiratory therapist or APRN. Such respiratory therapist extender may assist respiratory therapists and other healthcare professionals in the operation of ventilators and related devices and provide other healthcare services appropriate to their education, training, and experience, as determined by the facility in consultation with its medical leadership.
Healthcare professionals licensed and in good standing in another state may practice such profession in the state of Kansas. A license that has been suspended or revoked or a licensee that is subject to pending license-related disciplinary action will not be considered in good standing. Any license that is subject to limitation in another state will be subject to the same limitation in Kansas. Such healthcare professional will not be liable in any criminal prosecution, civil action, or administrative proceeding arising out of their lack of licensure in Kansas.
Designated healthcare facilities may use qualified volunteers or qualified personnel affiliated with any other designated healthcare facility as if such volunteer or personnel was affiliated with the facility using the volunteer or personnel, subject to any terms and conditions established by the Secretary of KDHE.
Healthcare professionals may be licensed, certified or registered or have such license, certification or registration reinstated within five years of lapse or renewed by the applicable licensing agency in Kansas without satisfying the following conditions of licensure, certification or registration:
- An examination, if such examination’s administration has been canceled while the state of disaster emergency proclamation issued by the Governor in response to the COVID-19 pandemic is in effect;
- Continuing education; and
- Payment of a fee.
A professional certification in basic life support, advanced cardiac life support or first aid will remain valid if such certification is due to expire or be canceled while the state of disaster emergency proclamation issued by the Governor is in effect. Fingerprinting of individuals will not be required as a condition of licensure and certification for any hospital, adult care home, county medical care facility or psychiatric hospital. The provisions of this section expire on January 26, 2021.
Amendments to KEMA (Sections 32-33, 42)
If a state of disaster emergency is proclaimed under KEMA, the Governor shall terminate the emergency proclamation within 15 days, unless ratified by concurrent resolution of the Legislature, except when the Legislature is not in session, upon specific[RSP1] application by the Governor to the SFC and an affirmative vote of a majority of the legislative members of the SFC, a state of disaster emergency may be extended for a specified period not to exceed 30 days.
The COVID-19 state of disaster emergency will terminate on September 15, 2020, except, when the Legislature is not in session, upon the Governor’s application to the SFC and an affirmative vote of at least six legislative members of the SFC. The state of disaster emergency may be extended for specified periods not to exceed 30 days each. No such extensions may continue past January 26, 2021.
At any time, the Legislature by concurrent resolution may require the Governor to terminate a state of disaster emergency. Upon such action, the Governor shall issue a proclamation terminating the state of disaster emergency.
The Governor may issue orders to exercise the powers conferred by KEMA provided that within 24 hours of the issuance of any such order, the Governor shall call a meeting of the SFC for the purposes of reviewing such order. Orders shall be null and void after the period of a state of disaster emergency has ended.
Under the state of disaster emergency proclamation issued on May 26, 2020, the Governor shall not have the power or authority to restrict businesses from operating or to restrict the movement or gathering of individuals. The provisions of this subsection expire on September 15, 2020.
The board of county commissioners of any county may issue an order relating to public health that includes provisions that are less stringent than the provisions of a statewide executive order issued by the Governor, and any board issuing such order is required to make the following findings and include them in the order:
- The board has consulted with the local health officer or other local health officials regarding the Governor’s executive order;
- Following such consultation, implementation of the full scope of provisions in the Governor’s executive order is not necessary to protect the public health and safety of the county; and
- All other relevant findings to support the board’s decision.
On or after January 26, 2021, KEMA reverts back to its current version, removing amendments contained in this bill.
Authority of Local Officials (Section 35, 37)
The chairman of the board of county commissioners of any county, or by the mayor or other principal executive officer of each city in Kansas having a disaster emergency plan, upon finding that a disaster has occurred or the threat is imminent within such county or city, may declare a state of local disaster emergency. No state of local disaster emergency shall be continued for a period more than seven days, or renewed, except with the consent of the board of county commissioners or the governing body of the city. Any order or proclamation declaring, continuing or terminating a local disaster emergency shall be given prompt and general publicity and shall be filed with the county clerk or city clerk. Any such declaration may be reviewed, amended or revoked by the board of county commissioners or the governing body of the city, at a meeting of the governing body.
The board of county commissioners of each county shall act as the county board of health. Each board shall appoint a person licensed to practice medicine and surgery, with preference given to persons who have training in public health, who shall serve as the local health officer and who shall act in an advisory capacity to the board. The local health officer shall hold office at the pleasure of the board.
Any order issued by the local health officer, including orders issued as a result of an executive order of the Governor, may be reviewed, amended or revoked by the board of county commissioners at a meeting of the board. Any order reviewed or amended by the board shall include an expiration date set by the board and may be amended or revoked at an earlier date by a majority vote of the board.
The local health officer may be removed from office by the county board of health for any failure or neglect to perform any of the duties prescribed in this Act.
Critical Access Hospitals (Section 39)
To the extent that a critical access hospital determines it necessary to treat COVID-19 patients or to separate COVID-19 patients, it will not be limited to 25 beds or, in the case of a facility with an approved swing bed agreement, to a combined total of 25 extended care and acute care beds, and will not be limited to providing acute inpatient care for a period of time that does not exceed, on an annual average basis, 96 hours per patient.