With many of the COVID-19 response executive orders issued by the Governor during 2020 and 2021 set to expire on March 31, 2021, legislators passed Senate Bill (SB) 40, which, among other provisions, modifies the procedure for the declaration and extension of a state of disaster emergency under the Kansas Emergency Management Act (KEMA), and extends the current disaster declaration to May 28, 2021. This special edition of Health at the Capitol provides a comprehensive review of the contents of that important bill.
Health at the Capitol is a weekly summary providing highlights of the Kansas legislative session, with a specific focus on health policy related issues. Sign up here to receive these summaries and more, and also follow KHI on Facebook, Twitter and LinkedIn. Previous editions of Health at the Capitol can be found on our ARCHIVE PAGE.
Senate Bill 40
On March 16, 2021, the Kansas Legislature passed SB 40, entitled, in part, “AN ACT concerning governmental response to certain emergencies.” The 15-page bill, signed by Gov. Laura Kelly on March 24, addresses a wide range of health-related issues, including the powers and duties of state and local governing bodies and local health officers; modifying the procedure for the declaration and extension of a state of disaster emergency under KEMA; prohibiting certain actions by the governor related to the COVID-19 health emergency; and limiting powers granted to the governor during a state of disaster emergency.
Local School Board Actions During COVID-19 State of Disaster Emergency (Section 1)
Only the board of education responsible for the operation of a school district is authorized to take action, issue orders, or adopt policies in response to the COVID-19 state of disaster emergency that affect the operation of any school or attendance center of the district, including actions, orders or policies that:
- Close or have the effect of closing any school or attendance center of the district;
- Authorize or require any form of attendance other than full-time, in-person attendance at a school in the school district, including, but not limited to, hybrid or remote learning; or
- Mandate any action by any student or employee of a school district while on school district property.
Any action taken, orders issued, or policies adopted shall only affect the operation of schools under the jurisdiction of the local school board and shall not affect the operation of nonpublic schools. The Kansas State Board of Education, the Governor, the Kansas Department of Health and Environment (KDHE), local health officers, city health officers, or any other state or local unit of government may provide guidance, consultation or other assistance to a local school board but are prohibited from taking any action related to the disaster emergency that affects the operation of any school or attendance center. Any meetings or hearings of a local school board discussing actions taken, orders issued or policies adopted must be open to the public and may be conducted by electronic, audio-visual communication when necessary to secure the health and safety of the public, the board and employees.
Any employee, student or parent/guardian of a student aggrieved by an action, order or policy adopted by a local school board under this section or in violation of this section may request a hearing to contest the action within 30 days of the action, but this request will not stay or enjoin the action. The local school board is required to conduct a hearing within 72 hours of receipt of the request for a hearing to review, amend or revoke any action, order or policy and is required to issue a decision within seven days after the hearing is conducted. Any party aggrieved by the decision of the local school board may file a civil action in the district court where the party resides or in Shawnee County District Court within 30 days after the decision is issued and the court is required to conduct a hearing within 72 hours of receiving the aggrieved party’s petition. The court is also required to grant the request for relief unless it finds the action, order or policy is narrowly tailored to respond to the state of disaster emergency and uses the least restrictive means to do so. The court is also required to issue an order on the petition within seven days after the hearing.
Community College and Technical College Actions During COVID-19 State of Disaster Emergency (Section 2)
Provisions similar to those applicable to local school boards are also applicable to the authority and actions taken by the governing bodies of community and technical colleges, with the following adjustments:
- Provisions regarding schools affected by local school board actions and nonpublic schools are not to be included;
- Entities and officials who may offer guidance, consultation or other assistance also include the State Board of Regents, the Kansas Association of Community College Trustees, and the Kansas Technical College Association; and
- Parents/guardians are not included in those who may request a hearing.
Legislative Coordinating Council Membership (Section 3)
The existing statute establishing the Legislative Coordinating Council (LCC) is amended to add the Vice President of the Senate as a member, increasing the total number of LCC members to eight.
Amendments to KEMA: Responsibilities During State of Disaster Emergency (Section 4)
The LCC (previously the State Finance Council) is authorized to extend a state of disaster emergency beyond the initial 15-day state of disaster emergency period, for specified periods not to exceed 30 days each. An affirmative vote of five LCC members is required for such extension.
Amendments to KEMA: Ratification and Extension of COVID-19 State of Disaster Emergency; Executive Orders (Section 5)
The COVID-19 state of disaster emergency originally declared by the Governor on March 12, 2020, remains in effect through May 28, 2021.
The prohibition on proclamation of new state of disaster emergencies related to the COVID-19 health emergency during 2020 or 2021 is amended to specify that the prohibition includes state of disaster emergencies related in whole or in part to the COVID-19 health emergency, including, but not limited to, any economic, financial or other crisis caused by such emergency.
All executive orders (EOs) issued during the COVID-19 state of disaster emergency were revoked on March 31, 2021, and any new EOs issued during the COVID-19 state of disaster emergency or during a new state of disaster emergency related to the COVID-19 health emergency are subject to revocation by the Legislature or by the LCC, pursuant to procedures provided in Section 6.
Amendments to KEMA: Powers During State of Disaster Emergency (Section 6)
The term “executive” is added to orders issued by the Governor and the LCC is responsible for the review and revocation of EOs related to the state of disaster emergency. The chair of the LCC is required to call a meeting of the LCC within 24 hours of the issuance of an EO for purposes of reviewing the order, and the LCC, when the Legislature is not in session or is adjourned during session for three or more days, may revoke such EOs with the affirmative vote of five members.
The Governor’s power or authority to take certain actions regarding firearms or ammunition during a state of disaster emergency is restricted as follows:
- May not limit or otherwise restrict the sale, purchase, transfer, ownership, storage, carrying or transporting of firearms or ammunitions, or any component or combination thereof, including any components or combination thereof used in the manufacture of firearms or ammunition; and
- May not seize or authorize the seizure of any firearms or ammunition, or any component or combination thereof, except as otherwise permitted by state or federal law.
Any party aggrieved by an EO issued under this section that has the effect of substantially burdening or inhibiting the gathering or movement of individuals or the operation of any religious, civic, business or commercial activity (whether for-profit or not-for-profit) may file a civil action, within 30 days after the issuance of the EO, in the district court of the county where the party resides or in Shawnee County District Court. The court is required to conduct a hearing within 72 hours of receiving a petition in such action and is also required to grant the request for relief unless the court finds the EO is narrowly tailored to respond to the state of disaster emergency and uses the least restrictive means to do so. The court must also issue an order on such petition within seven days after the hearing. Relief under these provisions may not include a stay or injunction concerning the contested EO that applies beyond the county in which the petition was filed, and the Kansas Supreme Court may adopt emergency rules of procedure to facilitate the efficient adjudication of any hearing under these provisions, including rules for consolidation of similar hearings.
Boards of county commissioners remain authorized to issue an order relating to public health that includes provisions less stringent than a statewide EO and such orders will operate in the county in lieu of the Governor’s EO.
Amendments to KEMA: Business Activity, Gathering or Movement of Individuals (Section 7)
The prohibition on orders issued during a COVID-19 state of disaster emergency that substantially burden or inhibit the gathering or movement of individuals or operation of any religious, civic, business or commercial activity remains in place (originally set to expire on March 31, 2021).
Amendments to KEMA: State of Local Disaster Emergency (Section 8)
Parties aggrieved by specified actions taken by a local unit of government under KEMA may file a civil action in the district court of the county where the action was taken, with parameters and procedures substantially similar to those provided by Section 5 of the bill (above) regarding EOs.
Amendments to KEMA: Violations (Section 9)
A knowing violation of an executive order issued pursuant to Section 5 of the bill (above) that mandates a curfew or prohibits public entry into an area affected by a disaster is a class A nonperson misdemeanor.
Kansas Intrastate Emergency Mutual Aid Act (Section 10)
The definition of “emergency responder” in the Kansas Intrastate Emergency Mutual Aid Act, which provides for a system of intrastate mutual aid between participating political subdivisions in cases of declared disasters and drills and exercises in preparation for such disasters, now includes 911 call center public safety telecommunicators and physician assistants.
Revocation of Orders of the Secretary of Health and Environment (Section 11)
In the event of a state of disaster emergency declared by the Governor or a state of local disaster emergency, the Legislature may revoke, by concurrent resolution, an order issued by the Secretary of KDHE to take action related to such disaster emergency. When the Legislature is not in session or is adjourned during session for three or more days, the LCC may revoke such orders with the affirmative vote of five members.
Authority of County Health Boards and Local Health Officers (Section 12)
If a local health officer (officer) determines it is necessary to issue an order mandating the wearing of face masks, limiting the size of gatherings of individuals, curtailing the operation of business, controlling the movements of the population of the county, or limiting religious gatherings, the officer must propose such order to the board of county commissioners (board). At the next regularly scheduled meeting of the board or at a special meeting of the board, it shall review the proposed order and take any action related to the proposed order the board determines is necessary. The proposed order can become effective if approved by the board or, if the board is unable to meet, if approved by the chairperson of the board or the vice chairperson of the board in the chairperson’s absence or disability.
Parties aggrieved by an order issued under this section may file a civil action in the district court of the county in which the order was issued. The procedures for such action would be substantially similar to those provided for EOs and states of local disaster emergency.