Week 3 of the 2022 Session

15 Min Read

Feb 03, 2022


Linda J. Sheppard, J.D.,

Wendy Dang, M.P.H., C.P.H.,

Emma Uridge, C.H.E.S.

During week 3, legislators continued their work on redistricting with the House, on a vote of 79-37, passing the congressional reapportionment map passed by the Senate on January 21. The House Committee on Taxation held hearings on two bills that would eliminate the sales tax on food. Additionally, both the Appropriations and Ways and Means Committees were briefed on the process to be used by the Strengthening People and Revitalizing Kansas (SPARK) advisory panels to evaluate ideas for spending the federal funds available to the state through the federal American Rescue Plan Act. Read our latest edition of Health at the Capitol for details.

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 FacebookTwitter and LinkedIn. Previous editions of Health at the Capitol can be found on our ARCHIVE PAGE.

On Monday, January 24, Kansas Department of Health and Environment (KDHE) Acting Secretary Janet Stanek appointed Joan Duwve, M.D., as the Acting State Health Officer. Dr. Duwve, who spent 11 years practicing family medicine, joined KDHE in November 2020 to lead the Kansas COVID-19 Unified Testing Strategy and became Deputy State Health Officer in July 2021.

House Health and Human Services Committee
(Rep. Brenda Landwehr, Chair)

On Wednesday, January 26, the Committee held a hearing on House Bill (HB) 2463, which would prohibit any state agency from making any “substantive or material change” to KanCare prior to January 1, 2026 and require the extension of the current Managed Care Organization (MCO) contracts through December 31, 2025. The current MCO contracts are set to expire on December 31, 2023. Chair Landwehr stated the intent of the bill was to give the next administration the opportunity to negotiate the long-term contracts with the MCOs. There was no proponent testimony, but opponents included State Medicaid Director Sarah Fertig, KDHE; Heather Braum, Kansas Action for Children; and Sean Gatewood, KanCare Advocates Network. Fertig stated that KDHE is concerned that the bill would prevent routine maintenance and updates to the Medicaid program and would prevent implementation of changes to the program requested by constituents and legislators, specifically requests identified by some 2021 interim committees. Fertig said KDHE is also concerned about how the Centers for Medicare and Medicaid Services (CMS) would respond if KDHE were required to comply with the provisions of the bill. Fertig noted that the phrase “substantive or material change” in the bill is vague, and it is not clear what KDHE would or would not be able to change. Finally, she expressed concerns about KDHE being unable to move forward with the bidding process for the MCO contracts and whether the bill would cause the Medicaid program to be out of compliance with federal law or CMS directives. Both Braum and Gatewood stated they shared Fertig’s concerns regarding the definition of “substantive or material change.” Braum also noted that 75 percent of individuals in KanCare are children and their parents, and she stressed the need to move forward with the current schedule for re-procurement of the MCO contracts to make sure the MCOs are held accountable for any problems or issues that need to be addressed. Gatewood argued against the possibility of having to extend the current Section 1115 demonstration. Written opponent testimony was submitted by the Kansas Department for Aging and Disability Services (KDADS) and Department of Administration Secretary DeAngela Burns-Wallace. Neutral testimony was provided by Rachelle Colombo, Kansas Medical Society (KMS), and Tara Mays, Kansas Hospital Association (KHA), who expressed concerns about a freeze on physician fees and the possibility of a delay in moving forward with changes to the Health Care Access Improvement Program (HCAIP). Committee members asked questions regarding whether an amendment proposed at the start of the hearing would address concerns expressed by the opponents; what impact the bill would have on the implementation of the certified community behavioral health centers and the creation of a second waiver to provide social supports; and if there would be financial risk or a loss of leverage if KDHE were required to extend the existing MCO contracts for two years. Chair Landwehr stated the proposed amendment would allow the Legislature to approve any changes that may be needed in the Medicaid program during the extension period.

On Thursday, January 27, the Committee began a discussion on issues raised by Kansas State Long-Term Care Ombudsman Camille Russell during her presentation to the Committee on January 18. Chair Landwehr stated that she had asked expert representatives from the long-term care industry and agency officials to respond to concerns raised by Russell about complaints related to abuse, neglect, and exploitation of seniors, the use of antipsychotic medications and involuntary discharges. The discussion raised possible legislative solutions already being considered in other Committees and by the Senior Care Task Force, such as tightening regulations with temporary staffing agencies, as well as adding a registry for employees fired for incidents of abuse. Deputy Secretary Scott Brunner, KDADS, briefly outlined the process for the submission and investigation of complaints submitted to KDADS. Linda MowBray, Kansas Health Care Association (KHCA), expressed concerns about the types of complaints that are reported, such as issues with a conservator or guardian, or a patient not having access to personal funds, stating they are not facility issues. Committee members asked questions regarding how complaints are brought to the attention of KDADS; why anonymous complaints are accepted (federal law requires the state to have a hotline for anonymous reporting); and whether there is a registry for employees or contractors who have been cited or terminated for abuse (KDADS has a nurse registry for offenses, but individuals are not added to the list unless they are convicted of a criminal act). MowBray, Rachel Monger, LeadingAge Kansas, and Kelly Sommers, Kansas State Nurses Association (KSNA), expressed concerns about the inability or failure of long-term care (LTC) facilities or the staffing agencies that provide employees for the facilities to gather and share information with other facilities about employees who have been terminated.

The Committee also heard testimony regarding conservator or guardianships that are established without the consent or participation of the patient. Rep. John Barker stated that this issue should probably be addressed by the Kansas Bar Association as a concern for the ethics of the attorneys who are involved in these situations. On the issue of involuntary discharges, Russell noted that discharges are reported to the Ombudsman, but she must get permission to discuss them with KDADS. She noted that discharges usually occur as a result of lack of payment or the patient’s behavior. On the issue of the use of antipsychotic drugs, Russell stated that other committees, including the Senior Care Task Force, are studying this issue but that there is a need for staff to receive person-centered training in how to care for residents with mental health disorders and dementia so the use of antipsychotics can be reduced. Monger noted it is difficult with the current workforce shortage to schedule time for additional training.

Senate Public Health and Welfare Committee
(Sen. Richard Hilderbrand, Chair)

On Tuesday, January 25, the Committee held a hearing on Senate Bill 121, which would update certain provisions of the Kansas Dental Practice Act related to dentists who practice outside of their regular dental office. K.S.A. 65-1430 would be amended to require licensed dentists who practice and provide dental services outside of their regular dental office to provide each patient, upon request, with the dentist’s name, a contact number, a way to contact the dentist after hours for emergencies, and the dentist’s license information. K.S.A. 65-1467 would be amended to prohibit a dentist or a contract for dental services to require a patient to sign an agreement that would limit the patient’s ability to file a complaint with the Kansas Dental Board. The bill would also require a treating dentist, prior to diagnosis and correction of malposition of teeth or the initial use of orthodontic appliances, to perform an examination, including review of the patient’s most recent x-rays or to order x-rays if the patient has not had them within the previous six months. Proponents, including Kevin Robertson, Kansas Dental Association, Gianna Nawrocki, American Association of Orthodontists, and Dr. Steven Heckler, DDS, testified that the bill would codify the standard of care for orthodontic treatments by dentists, ensure that patients are able to contact the dentist in case of an emergency related to the treatment that has been provided, and enable them to file a complaint, regardless of the type of care or treatment provided, with the Kansas Dental Board. Heckler stressed the need for an oral exam and x-rays, particularly for individuals who are being treated with Invisalign home treatment. Opponent testimony was provided by Dr. Jeffrey Sulitzer, Smile Direct Club, who objected to the requirement for x-rays, and argued that the mandate for x-rays for mild to moderate crowding or spacing issues is an overuse of x-rays and is in violation of U.S. Food and Drug Administration and American Dental Association guidelines. Committee members asked questions regarding when x-rays are needed for orthodontic treatments; the experiences of direct-to-consumer companies and orthodontists; the implications of mandated x-rays; and the application process for individuals seeking orthodontic services from direct-to-consumer companies.

On January 25 and 26, the Committee held a hearing on Senate Bill (SB) 381, which would allow for the prescribing and dispensing of medications for off-label use to prevent and treat COVID-19 infections. Proponents included Sen. Mark Steffen as well as individual physicians, pharmacists, nurses and patients, who expressed concerns about the prohibition on prescribing drugs, such as ivermectin and hydroxychloroquine, as part of a sequential multi-drug therapy to prevent or treat COVID-19 infections. The provider conferees stated they are being intimidated by their employers, health care systems, and the Board of Healing Arts and are at risk of losing their jobs, certification, and licenses because they are prescribing drugs for their patients that are considered dangerous for off-label use and argued that there is medical literature that shows that these treatments are effective. They also asserted the bill would support patient autonomy, show respect for the patient-doctor relationship, and provide patients with treatment choices. The Committee received proponent written testimony from over 300 individuals. Rachelle Colombo, KMS, provided neutral testimony and stated that patient autonomy must be balanced with the medical and ethical judgment that is required of physicians. She also expressed concern that the bill would not just apply to ivermectin or hydroxychloroquine, but any off-label treatment that is recommended by a physician without regard for the patient’s underlying health condition. Written neutral testimony was also provided by the Kansas Board of Healing Arts. Opponent written testimony was submitted by Dr. Dena Hubbard, M.D., Kansas Chapter, American Academy of Pediatrics, the University of Kansas Health System, and Ascension Via Christi. Committee members asked questions regarding the existence of documentation from any regulatory body of professions providing substantiation for denying the off-label use of an FDA approved drug; experiences with pharmacies denying prescription fills for patients; the definition of standard of care and how it is established; and who was punishing the prescribers for prescribing medication for off-label usage.

House Social Services Budget Committee
(Rep. Will Carpenter, Chair)

On Thursday, January 27, the Committee heard a presentation by Haely Ordoyne, Kansas Adult Care Executives (KACE) association, regarding workforce shortages and the lack of fiscal oversight for temporary staffing agencies across Kansas. Ordoyne described issues within nursing facilities, such as staffing shortages exacerbated by the pandemic and the current Medicaid reimbursement rates not being able to sustain the staffing costs that facilities must pay to provide care. With current shortages, facilities are being forced to use temporary staffing agencies, paying sometimes three times the typical rate of pay. She also said 90 percent of the members of KACE reported losing staff to temporary agencies for higher pay and stated that passage of HB 2524, which outlines restrictions and regulatory oversight by KDADS for temporary staffing agencies, would be helpful.

Kelly Sommers, Kansas State Nurses Association, testified that she supports nurses who opt to work for temporary staffing agencies and stated that the nurses will go where they are valued and getting paid what they deserve. She also noted that RNs are mentally exhausted and are going to these agencies because they can choose when, where and how much they want to work.

House Appropriations Committee
(Rep. Troy Waymaster, Chair)

On Wednesday, January 26, the Committee received an update from Deputy Secretary Tanya Keys, Kansas Department for Children and Families (DCF) regarding the foster care system and prevention programs, including Family First. Keys provided current data regarding the number of children currently in foster care (6,574), number of new children entering foster care (3,000 in fiscal year 2021), how the determination is made as to whether a child enters foster care, the primary reasons for removal from their homes, the number exiting care (3,300 in fiscal year 2021), number returning home (52 percent), and number of adoptions (1,000 over the past three years). Keys also talked extensively about the various types of programs in place to prevent children from entering the system and efforts to get to “permanency stability” within 12 months. She stated 1,900 families have received services through the federal Family First program since it began in October 2019 and noted that the Governor’s budget includes a request for enhancements to the Family First funding for therapy services of $7 million all funds, $3.5 million state general fund (SGF). Committee members asked questions regarding the environment for children who experience “failure to place” and end up spending the night in offices; how the Family First program has impacted the foster care system; the number of licensed foster families in the state (2,200); the cost to expand the We Can Drive program for teens to the entire state; and the status of DCF’s efforts to upgrade its computer system.

Senate Ways and Means Committee
(Sen. Rick Billinger, Chair)

On Thursday, January 27, the Committee was briefed by Department of Administration Secretary DeAngela Burns-Wallace and John Parolisi, Project Director for Strengthening People and Revitalizing Kansas (SPARK), regarding the process to be used by the SPARK advisory panels to determine investment ideas for approximately $731 million in discretionary State Fiscal Recovery Funds (SFRF) from the federal American Rescue Plan Act. Sec. Burns-Wallace described a handout that was made available to the Committee members, titled SFRF Allocation Tracker, which shows initial allocations that have already been identified and approved by either the State Finance Council or by legislative directive, including $50 million for nurse and frontline care worker retention; $27.1 million for the extension of COVID-19 testing through the first quarter of 2022; $30.3 million for a differential pay plan to address staffing shortages at state facilities, including the Kansas Department of Corrections, KDADS state hospitals and Kansas Commission on Veterans Affairs veterans’ homes; $50 million for individual education learning loss grants for families to purchase materials to offset learning loss; $4 million for matching funds for school districts to invest in high-speed broadband buildout; up to $10 million to be transferred to the Rural Hospital Innovation Grant Fund; and $3 million for the 988 national suicide prevention and crisis hotline. Committee members asked questions regarding whether only “big ticket” ideas will be considered; how families will be chosen to receive the learning loss grants; and what types of projects can be funded.

Senate Federal and State Affairs Committee
(Sen. Rob Olson, Chair)

On January 26, the Committee held a hearing on HB 2056, which would regulate the sale and distribution of kratom products as a part of and supplemental to the Kansas Food, Drug, and Cosmetic Act. Kratom is part of a Southeast Asia plant that is ground to be ingested in a pill capsule, beverage or food product. Proponent Mac Haddow, American Kratom Association, testified that kratom is not FDA approved but has been found to be safe and has been used successfully to help managed chronic and acute pain and wean from opioid medication. However, he acknowledged that there is concern that kratom is not regulated and that adulterated or contaminated kratom products are highly dangerous. He stated that this bill would put regulations in place to ensure that Kansas consumers are able to purchase kratom products in a regulated environment. Neutral testimony was provided by Kenneth Titus, Kansas Department of Agriculture, and Nick Reinecker, a private citizen, who testified that they support the bill but have concerns about the regulatory process of kratom. Titus stated that it would be difficult to adequately test each kratom product for potential controlled substances when they do not have the laboratory capacity to do so. Reinecker asserted that kratom is a naturally occurring product that should not be regulated like a controlled substance. Committee members asked questions regarding how the bill would help regulate the product; what other states have done (KLRD reported 16 states are regulating kratom; it’s illegal in six states; eight states allow persons age 18 and above to possess and use kratom; and two states allow persons age 21 and above to possess and use); and if the products have been a concern to health professionals.

House Committee on Taxation
(Rep. Adam Smith, Chair)

On Tuesday, January 25, the Committee held hearings on HB 2484 and HB 2487, which would eliminate the state sales and compensating use tax for food and food ingredients. Both bills would allow city and countywide retailers’ sales tax to continue to be levied but differ in the definition of “food and food ingredients,” with prepared foods excluded from the definition in HB 2487. HB 2484 would impose the 0 percent tax rate starting on January 1, 2023, while HB 2487 would impose the new rate on July 1, 2022. HB 2487 also would provide for the sales tax exemption for sales of farm products sold at farmers’ markets. Proponents for both bills included AARP Kansas, El Centro, Kansas Association of Counties, Sisters of Charity of Leavenworth, Greater Kansas City Chamber of Commerce, and Kansas Appleseed Center for Law and Justice. Neutral conferees included the Institute for Policy and Social Research, Kansas Chamber of Commerce, and the League of Kansas Municipalities.

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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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