Week 4 of the 2022 Session

16 Min Read

Feb 10, 2022


Linda J. Sheppard, J.D.,

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

Emma Uridge, C.H.E.S.

A potential major snowstorm closed state offices on Wednesday, February 2, interrupting the Legislature’s work on economic development, the elimination of the sales tax on food, and redistricting. This edition of Health at the Capitol looks at health policy issues that were discussed during the fourth week of the session.

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.

The House Commerce, Labor and Economic Development Committee significantly amended what is now House Substitute for Senate Bill (SB) 347, an economic development bill to attract an unidentified potential $4 billion new business to the state.

On Tuesday, February 1, the Department of Revenue announced that income and excise tax collections in January were $118 million more than the estimates for the month.

On Thursday, February 3, Gov. Laura Kelly vetoed SB 355, the Legislature’s congressional redistricting map known as Ad Astra 2.

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

On Tuesday, February 1, the Committee held a hearing on SB 276, which would establish certain procedural safeguards, in compliance with the federal Americans with Disabilities Act, to protect the interests of children parented by blind individuals or children who could be parented by blind individuals, and to protect the rights of parents and prospective parents who are blind. The provisions of the bill are primarily focused on cases involving legal custody, residency, parenting time, children in need of care, adoption, foster care and guardianship. Proponents, including representatives of the National Federation of the Blind, Southeast Kansas Independent Living, Disability Rights Center of Kansas, and private citizens, stated the bill would protect parents who are at risk of losing their children strictly due to their blindness. There was no neutral or opponent testimony.

The Committee also discussed SB 200 (introduced in 2021), which would amend the Kansas Pharmacy Act to authorize point-of-care testing and pharmacists to initiate therapy (treatment) of certain health conditions within an established framework. Courtney Cyzman, Board of Healing Arts (BOHA), stated that BOHA believes it is the appropriate entity to establish the protocols for medical diagnosis and selection of therapy and asserted that the bill, as currently drafted, is overly broad. Sen. Molly Baumgardner offered an amendment and explained that following the initial hearing on the bill during the 2021 session Chair Richard Hilderbrand asked the pharmacists, who were in favor of the bill, and the Kansas Medical Society, that was opposed, to work together to reach agreement on the bill. She stated the amendment being offered now was the result of those discussions and specifically narrows the scope of practice for pharmacists under the bill to three health conditions – influenza, streptococcal pharyngitis, and urinary tract infections; it allows the drug management therapy advisory committee to adopt a statewide protocol for each condition; it directs the advisory committee to consider the appropriateness of therapy based on the patient’s age, approval by the U.S. Food and Drug Administration (FDA), in-person interactions, and the method of administration; and it amends the “practice of pharmacy” to include the initiation of therapy for the specified health conditions. Sen. Mark Steffen raised concerns about the term “statewide protocol” and requested clarification of how it would be defined and by whom. Rachelle Colombo, KMS, confirmed that the term is not defined in the bill, but directs the Collaborative Drug Therapy Management Advisory Committee to adopt a statewide protocol for the stated conditions. She also agreed that this is an area that could be better defined. (The advisory committee is an existing entity under Kansas law, appointed jointly by BOHA and the Board of Pharmacy.) Sen. Molly Baumgardner then stated that the amendment and the bill are necessary because there is a shortage of care for basic health conditions. Sen. Steffen asserted there are no access to care issues across the state at this time because there are emergency clinics and telemedicine everywhere, so he does not agree with the need for the bill. The amendment was approved, and the Committee passed the bill out favorably, as amended.

The Committee also worked Senate Substitute for House Bill (HB) 2262, which would update schedules I, II, IV and V of the Kansas uniform controlled substances act, amend the definition of controlled substances in the Kansas criminal code and exclude certain drug products from the definition of marijuana. Alexandra Blasi, Kansas Board of Pharmacy, discussed an amendment to the bill, which was formally introduced by Sen. Baumgardner, to revise the definition of marijuana to exempt all FDA approved drug products with tetrahydrocannabinol (THC) and cannabidiol (CBD) as the main active ingredient. Blasi noted she anticipates that at least one new drug will be approved by the FDA between the 2022 and 2023 sessions and this amendment will allow that new product to be prescribed in Kansas once approved by the FDA. Sen. Gossage asked a clarifying question about whether this bill would automatically approve medical marijuana in Kansas if the federal government were to approve it. Blasi stated that it would not because this bill only covers FDA-approved drugs and further stated that if the federal government were to de-schedule marijuana that would be a separate issue. The amendment was approved and the bill, as amended, was passed favorably out of Committee.

House Children and Seniors Committee
(Rep. Susan Concannon, Chair)

On Monday and Tuesday, January 31 and February 1, the Committee held a hearing on HB 2525, which would amend requirements and exemptions related to eligibility for food assistance and childcare assistance. Committee discussion focused on whether the bill, which includes a provision that would remove cooperation with child support as a condition of food assistance or childcare subsidies, would affect compliance with timely child support payments. The Committee approved a motion to continue working the bill after an amendment could be prepared to give the Kansas Department for Children and Families (DCF) the option to add compliance or cooperation with child support authorities as a condition of assistance rather than mandating it.

On Tuesday, February 1, the Committee held a hearing on HB 2524, which would require the Kansas Department for Aging and Disability Services (KDADS) to regulate supplemental nursing services agencies and create the supplemental nursing services agency regulation fund. The bill would also prohibit supplemental nursing services agencies from billing or receiving payments from an adult care home or hospital long-term care unit higher than 150 percent of the sum of the weighted average wage rate, plus a factor determined by the Secretary of KDADS to incorporate payroll taxes for the applicable employee classification for the geographic group. The weighted average wage rates would be determined by the Secretary on an annual basis. Proponent testimony was provided by representatives of long-term care (LTC) and adult care homes, and representatives of LeadingAge Kansas, the Kansas Hospital Association (KHA), Kansas Health Care Association/Kansas Center for Assisted Living (KHCA/KCAL), and Kansas Adult Care Executives (KACE), who all stated the need for regulatory oversight of supplemental nursing services agencies. Committee members asked questions regarding why adult care facilities are not able to pay $20-$30 an hour (the Medicaid reimbursement rate, which applies to the majority of residents, limits how much providers can pay staff); what percent of operating costs wages are; and how the 150 percent of the wage rate was determined. Committee members also expressed concerns about placing wage caps on an industry and not allowing the market to deal with supply and demand, as well as the potential risk of not being able to fill vacancies if wages are capped. Opponent testimony was provided by representatives of the American Staffing Association, temporary staffing agencies, and many certified nurse aides, certified medication aides, and nurses.

Robert G. (Bob) Bethell Joint Committee on Home and Community Based Services and KanCare Oversight
(Rep. Brenda Landwehr, Chair)

On Friday, February 4, the Committee heard testimony from private citizens, providers and organizations regarding their concerns about workforce challenges, especially staffing shortages for nurses, personal care attendants and other direct care supports; lack of access to services, especially crisis services; and the continuing issue of the long waiting list for waiver services. Conferees offered several solutions to address the staffing shortages and high turnover rates, such as increasing staffing wages, allowing temporary support staff to continue to practice, establishing workgroups of direct support workers to learn from their experiences, and passing HB 2524 to create regulatory parameters for the supplemental nursing staffing agencies. Committee members asked questions regarding the impact of increasing wage rates; if there were other approaches, like bonuses or gradual rate increases, that were more effective to increase staff retention; if differential rates would make an impact on staff retention; whether there had been any discussions between proponents and opponents of HB 2524 to resolve their opposition; and whether there are additional protective services data that should be made available and if it would violate confidentiality rights if it were released.

Kerrie Bacon, KanCare Ombudsman, provided the Committee with an overview of the office’s annual report and provided information about the Ombudsman office transitioning to the newly created Kansas Office of Public Advocates under the terms stated in executive order 21-27 issued by Gov. Kelly on October 4, 2021.

Steven Anderson, Medicaid Inspector General, stated that the Office of Medicaid Inspector General is continuing to see an increasing number of complaints of fraud, waste, abuse and illegal acts related to the Medicaid, MediKan and the Children’s Health Insurance Program (CHIP). He noted that for 2021, the Office screened 1,195 complaints, with 1,080 of those complaints coming from DCF, which is almost double the number of complaints screened in 2020. Anderson then stated that the Office conducted an engagement meeting on January 5, 2021, with KDHE concerning the start of a performance audit of eligibility determinations for Medicaid recipients that have moved out of the state of Kansas, and that the audit will cover January 2019 through December 2021. He noted that the audit report will answer questions including, does KDHE have an effective system for tracking Medicaid beneficiaries that have moved out of the state, are the reports from the Public Assistance Reporting Information System (PARIS) used effectively and timely to identify Kansas Medicaid beneficiaries who are receiving Medicaid benefits in other states, and are capitation benefit payments properly recouped from managed care organizations for Medicaid beneficiaries that have had their eligibility terminated. Sen. Pat Pettey asked where the idea for the audit originated from and what is PARIS. Anderson responded that the idea of conducting an audit was self-initiated because the Office was seeing news stories raising concerns about fraud once the public health emergency (PHE) ends and the potential for many people to lose their Medicaid eligibility. They decided to review how eligibility determinations are processed to get ahead of that process before the end of the PHE. He also explained that PARIS is a federally funded program that states report to on a quarterly or yearly basis to compare data and determine if there are individuals receiving public assistance payments from multiple states.

The Committee also heard responses from state agencies on unresolved issues. Sarah Fertig, Medicaid Director, KDHE, reported on several outstanding issues. She stated that there are no updates regarding the project for community service coordination for KanCare beneficiaries and the project is still on hold at this time; it has been determined that the authorization of tele-dentistry is a legislative matter that would require an amendment to the dental practice act; KDADS, in response to a request from the Association of Community Mental Health Centers, is working on a policy to open Medicaid code 90846 for reimbursement because it is a behavioral health code; KDHE has looked at the codes and the fiscal impact of increasing emergency medical services (EMS) Medicaid rates and has determined that the cost would be $7.9 to $12.2 million all funds, $3.6 to $5.5 million SGF, depending on the increase; and KDHE has also looked at the issue of increasing pediatric primary care rates and the fiscal impact of increasing 93 pediatric codes to 100 percent of Medicare rates and has determined that it would cost $2.9 million all funds, $886,000 SGF, and that the increase could impact about 140,000 claims per year. Fertig also stated KDHE is currently in the process of implementing an increase in the global obstetrics rates, which have not been increased since 1994. Committee members asked questions regarding how EMS providers would receive mileage rates; how EMS providers are able to budget for expenses not covered by Medicaid; if the providers are paid if they don’t transport a patient (no); if there is a difference between frontier, rural and urban Medicaid mileage rates (yes); and would legislation be needed to make appropriations for this increase (yes).

During the afternoon session, Fertig provided a high-level overview and update for KanCare on a variety of topics, including reprocurement of the MCO contracts, which expire on December 31, 2023; renewal of the KanCare 1115 waiver, which also expires at the end of 2023, or switching to another source of federal authority, such as a 1915(b) managed care waiver; extension of Medicaid coverage for pregnant women, for which funding was included in Gov. Kelly’s budget; a 10 percent FMAP increase from the federal American Rescue Plan Act of 2021 to supplement home and community based services (HCBS), Program of All-Inclusive Care for the Elderly (PACE) and home health spending through March 30, 2024; status of the Health Care Access Improvement Program (HCAIP) implementation (waiting for CMS approval of 1115 amendment to adjust the budget neutrality cap to accommodate increased HCAIP assessment); and enrollment in the Support and Training to Employ People Successfully (STEPS) program (14 people currently enrolled). Fertig also reported that Medicaid enrollment continues to increase, and the impact of the pandemic has been clearly documented since coverage is not being terminated and stated that at the end of 2021, 465,496 beneficiaries were enrolled in KanCare, more than 53,000 more than in 2020.

LaTonya Palmer, Director of Eligibility, provided an update on Medicaid Eligibility Applications, federal marketplace open enrollment, the transition of the Medicaid Application Eligibility Processing contract from Maximus to Conduit, and preparation for the anticipated end of the COVID-19 PHE. She noted that Kansas received 16,929 referrals from the federally facilitated marketplace during the latest open enrollment period that ended on January 15, 2022.

Fertig then reported on staffing and noted that KDHE is operating at 69 percent capacity, with most of the vacancies currently for KDHE eligibility staff that oversee the programs for the elderly and disabled, as well as long-term care medical programs. She stated there are currently 96 vacancies. She also stated that KDHE is preparing for the eventual end of the PHE, including mitigation of the increased workload related to continuous enrollment and the need to continuously review COVID-19 related eligibility.

Scott Brunner, Deputy Secretary of Hospitals and Facilities, KDADS, provided an update on licensing and credentialing and stated that under HB 2477, and in conjunction with the current federal 1135 waiver, temporary aides with eight hours of training will be used to provide resident care through January 20, 2023. He noted that this provision will extend any renewal deadline for any occupational or professional license, certificate or registration issued by KDADS through January 20, 2023. He also stated that staff recruitment and retention is a pressing issue for staff working at state hospitals and nursing facilities, particularly those that operate 24/7, and reported that a plan to raise the base pay rate for nursing staff at state hospitals and other 24/7 facilities will be included in the FY 2023 budget recommendations. He noted that state facility staff will also receive a one-time, $3,500 bonus and that KDADS also raised mental health disability technician starting wages in July 2021. He also noted that the governor has announced base pay increases for nurses in 24/7 facilities and incremental hourly increases for other staff and that the state is also adding and extending contracts for nurses, aides and social workers.

Senate Committee on Assessment and Taxation
(Sen. Caryn Tyson, Chair)

On Tuesday, February 1, the Committee held hearings on two bills related to eliminating the state sales and compensating use tax on food and food ingredients. SB 339 would reduce the tax from 6.5 percent to zero percent beginning on January 1, 2023; provides for the continued levy of city and countywide sales taxes on the sales of food and food ingredients and discontinues the current nonrefundable food sales tax credit after tax year 2022. Under the bill “food and food ingredients” include bottled water, candy, dietary supplements, food sold through vending machines, prepared food (food sold in restaurants) and soft drinks but the definition does not include alcoholic beverages or tobacco. Proponents included representatives of Fuel True, Retail Grocers Association, Kansas Association of Counties, Kansas Interfaith Action, Kansas Restaurant and Hospitality Association, Kansas AARP, and Sisters of Charity of Leavenworth. Some proponents stated they prefer SB 342 but also expressed support for the provisions in SB 339 that allow cities and states to continue to levy sales tax on food. Neutral conferees included representatives of the Kansas Contractors Association, Economic Lifelines, Kansas Action for Children, Kansas Coalition Against Sexual and Domestic Violence, Washburn University and Tobacco Free Kansas. Opponent testimony was provided by John Donley, Kansas Farm Bureau, who stated that his organization does not support the elimination of the sales tax on food and believes there are better approaches to helping people. Committee members asked questions regarding whether the conferees would continue to support or oppose the bill if the definition of food and food ingredients was narrowed and did not include things like bottled water and candy and whether proponents understood that elimination of the sales tax likely requires an increase in other types of taxes.

The Committee then held a hearing on the second bill, SB 342, which is similar to SB 339 but establishes an effective date of July 1, 2022 and excludes prepared food from the definition of “food and food ingredients.” This bill also provides an exemption for the sale of farm products sold at farmer’s markets and increases the distribution percentage of retail sales tax revenue that is deposited into the state highway fund from 16.154 percent to 18.222 percent. Proponents of the bill included Kansas Action for Children, Sen. Dinah Sykes, and many of the same proponent and neutral conferees who testified in favor of SB 339 but who specifically noted they prefer this bill because of the earlier effective date. Scott Schneider, Kansas Restaurant and Hospitality Association, testified in opposition to the bill because it does not allow restaurants to receive the same tax treatment.

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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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