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Health at the Capitol Week 6 (February 25, 2022)

Week 6 of the 2022 Legislative Session

By Linda J. Sheppard, J.D., Wendy Dang, M.P.H., C.P.H., Emma Uridge, C.H.E.S. | February 25, 2022

Health at the Capitol Week 6 (February 25, 2022)

Week 6 of the 2022 Session

This edition of Health at the Capitol looks at health policy issues that were discussed during the sixth week of the Kansas legislative session, which began February 14. Committees were busy working nonexempt bills leading up to Turnaround Day on February 24, including implementation of the 988 Suicide Prevention and Mental Health Crisis Hotline, the timing of changes to the Medicaid program, updates to the eligibility requirements for the Children’s Health Insurance Program (CHIP), and regulation of supplemental nursing services agencies.

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.

 

As expected, the sixth week of the session started with the filing of two lawsuits in Wyandotte County District Court challenging the constitutionality of the congressional redistricting map passed by the Legislature during the first three weeks of the session. On February 18, Attorney General Derek Schmidt filed an action in the Kansas Supreme Court asking for a ruling that the suits filed cannot be heard in state courts and requesting that they be dismissed. With this litigation underway, legislators will now move on to the legislative maps.  

On Monday, February 14, Gov. Laura Kelly directed affected state agencies to apply Kansas law when complying with the U.S. Supreme Court’s decision in January to uphold the Centers for Medicare and Medicaid Services (CMS) rule requiring staff to be vaccinated against COVID-19. Her directive requires agencies complying with the CMS rule to follow Kansas law regarding medical and religious exemptions, documentation and self-attestation regarding vaccination status. Although the CMS rule does not apply to most Kansas state employees, 11.2 percent of state employees work in the state’s six CMS-funded facilities that are subject to the Court’s ruling.

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

On Tuesday, February 15, the Committee held a hearing on House Bill (HB) 2281, which would create the Living, Investing in Values, and Ending Suicide (LIVES) Act and implement the established 988 Suicide Prevention and Mental Health Crisis Hotline. The bill also outlined the responsibilities of the Kansas Department for Aging and Disability Services (KDADS), hotline centers and service providers; imposed a fee to support the hotline in the amount of $0.50 per month per subscriber account of any exchange telecommunications service and other voice services; and established the 988 Suicide Prevention and Mental Health Fund. Proponents of the bill included representatives of the Association of Community Mental Health Centers of Kansas, Inc., COMCARE, InterHab, Kansas Mental Health Coalition, Kansas Suicide Prevention HQ, NAMI Kansas, T-Mobile, and the Wichita Regional Chamber of Commerce. There was no neutral or opponent testimony.

On Wednesday, February 16, the Committee worked HB 2281 and recommended a substitute bill, incorporating several amendments, including:

  • Reducing the 988 fee supporting the hotline to $0.20 per month per subscriber account of telecommunications and other voice services;
  • Prohibiting the imposition of 988 fees other than those established by the bill;
  • Directing the transfer of $3 million from the State General Fund (SGF) to the Hotline on July 1, 2022, and on each July 1 thereafter;
  • Amending how money credited to the Hotline Fund may be used;
  • Providing liability protection for service providers, except for violations of the Kansas Tort Claims Act and actions constituting gross negligence or willful and wanton misconduct;
  • Creating the 988 Coordinating Council;
  • Requiring an annual report be submitted by the KDADS Secretary to select legislative standing committees; and
  • Encouraging inclusion of the 988 number on identification cards provided to students in grades 6 through 12 in school districts that issue such cards.

The House Committee also recommended the substitute bill be referred to the Committee on Energy, Utilities and Telecommunications. 

On Thursday, February 17, the Committee worked HB 2463, which would prohibit any state agency from making any “substantive or material change” to KanCare, the state Medicaid program, prior to January 1, 2026, and require the extension of the current Managed Care Organization (MCO) contracts through December 31, 2025. Committee members directed questions to Sarah Fertig, State Medicaid Director, Kansas Department of Health and Environment (KDHE), who stated that proposed amendments would not allow KDHE to make “crucial changes” that are made daily, could block routine changes and could cause unnecessary delays for services provided to the 500,000 Kansans currently enrolled in Medicaid and CHIP. Fertig also expressed concern about the timing of the Request for Proposals for the MCO contracts, which are currently set to expire on December 31, 2023, and the potential for litigation if the bill were passed. Rep. Susan Ruiz expressed concern about the legalities related to the procurement process and the extension of contracts worth $8 billion with no competition. Her motion to table the bill until the Attorney General has an opportunity to weigh in on the legal issues was passed by the Committee. (Note: On February 21, the Committee voted to take the bill from the table and amended it; details will be provided in the Week 7 edition of Health at the Capitol.)

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

On Tuesday, February 15, the Committee held a hearing on Senate Bill (SB) 453, which would require unlicensed employees of adult care homes who take training courses to demonstrate certain skills to successfully complete the courses, require licensed nurses to teach and evaluate the courses, and allow simulation experiences to be used as part of the training.

On Thursday, February 17, the Committee held a hearing on SB 407, which would update the income eligibility requirements, to reflect current federal poverty level (FPL) guidelines, for the state’s Children's Health Insurance Program (CHIP) and eliminate the waiting period for certain persons to participate in the program. Under current law, there is an eight-month waiting period for families with income over 200 percent of the FPL if they previously had comprehensive health insurance through a health benefit plan and the income eligibility requirement is tied to 250 percent of the 2008 FPL guidelines. Proponents, including Sen. Pat Pettey, Heather Braum, Kansas Action for Children, and LaTonya Palmer, KDHE, stated the bill would remove obsolete language and remove the provision included in 2008 that progressively eroded the number of children eligible for CHIP each year. They also noted that Kansas is the only state with language referencing a specific year for the FPL for CHIP. There was no neutral or opponent testimony. Committee members asked questions regarding the impact of striking language in the bill referring to involuntary or voluntary unemployment to receive CHIP coverage; how income levels are determined; the differences between Medicaid, CHIP and ACA marketplace insurance; and the impact of eliminating the waiting period.

The Committee also held a hearing on SB 440, which would:

  • Allow occupational therapists (OTs) to evaluate and initiate occupational therapy treatment on a patient without referral from a health care practitioner;
  • Would require an OT who is treating a patient without a referral to obtain a referral before continuing treatment if the patient:
    • Is not progressing toward documented treatment goals after 10 patient visits or in a period of 30 calendar days from the initial treatment visits following the initial evaluation; or
    • Within one year from the initial treatment visit, returns to the OT seeking treatment for the same condition or injury.

SB 440 would not prevent a hospital or ambulatory surgical center from requiring a physician to order or make a referral for OT services for a patient currently being treated in the facility and would require an OT to provide written notice to a self-referring patient, prior to commencing treatment, stating that an occupational therapy diagnosis is not a medical diagnosis by a physician. The bill also would require licensed OTs actively practicing in the state to maintain professional liability insurance coverage and require the Kansas State Board of Healing Arts (BOHA) to determine the minimum level of coverage for such insurance through rules and regulations. Proponent Travis Grauerholz, Kansas Occupational Therapy Association, stated the bill would allow OTs to offer services without a referral from a licensed physician while maintaining appropriate safeguards for patient care and would allow quicker access for patients to begin receiving treatment. Courtney Cyzman, BOHA, provided neutral testimony, shared concerns about patient safety and suggested the bill should be amended to protect patients. She also stated that BOHA would like clarification as to who is making the determination of whether a patient is or is not progressing toward documented treatment goals and requested a requirement that a patient’s primary care provider be notified when a patient presents to and engages in occupational therapy services under a self-referral. Committee members asked questions regarding the purpose of the definition of OTs being outlined in the bill; what implementation of the bill would look like; how OTs would receive reimbursement through health insurance or from cash-paying patients; whether occupational therapy services are currently available without a referral; and how OTs create a treatment plan if they are unable to make a diagnosis.

On Friday, February 18, the Committee worked SBs 440 and 407 (described above). SB 440, expanding the scope of authority for occupational therapists, was passed favorably out of Committee. SB 407, updating the eligibility requirements for CHIP, was amended to restore the eight-month waiting period in the current law and the bill, as amended, was passed favorably out of Committee.

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

On Tuesday, February 15, the Committee worked HB 2004, which would create the right to appeal an involuntary discharge or transfer from an adult residential care facility and passed the bill favorably out of Committee.

On Wednesday, February 16, the Committee held a hearing on HB 2632, which would expand existing Adrian’s law to require a forensic medical evaluation of an alleged victim of child abuse or neglect as part of an investigation; create a program in KDHE for the training of and payment for Child Abuse Review and Evaluation (CARE) providers who conduct CARE exams; and would establish definitions, requirements and procedures related to CARE examinations and providers and create the CARE fund. Proponents, including Rachel Marsh, Children’s Alliance of Kansas, Dr. Emily Killough, M.D., Dr. Jennifer Hansen, M.D. Melissa Hudelson, Kansas Chapter of the American Academy of Pediatrics, and Kelli Mark, KDHE, stated the bill would provide the workforce to allow appropriate and timely follow-up for reports of child physical abuse and neglect and also stated training and mentorship for physicians to become CARE providers would increase access to a system of trained professionals that does not currently exist in rural parts of the state. It was noted that the bill was a recommendation from the 2021 Joint Committee on Child Welfare System Oversight. No neutral or opponent testimony was provided. The Committee subsequently worked the bill on Thursday, February 17, noted that the fiscal note had been revised to $819,100 for FY 2023, and passed the bill favorably out of Committee.

The Committee also held a hearing on HB 2700, which would require the Kansas Department for Children and Families (DCF) to conduct an individualized assessment of the child’s needs and attachments before consenting to an adoption and requiring the court to make a finding that the assessment was conducted before entering an order. The assessment should include (1) the child’s current relationships with caregivers, relatives, siblings and others; (2) whether a family can best meet the child’s medical, physical, emotional, cultural and other specific needs; and (3) the child’s need to maintain and strengthen current healthy attachments. Proponents included Rep. Susan Humphries, Rachel Marsh, Children’s Alliance of Kansas, Megan Monsour, Hinkle Law Firm, and individual foster parents and family members. Committee members asked questions regarding how often judges follow the recommendations of caseworkers; whether judges are well informed about the potential placements for children; whether there is a “quota” requirement for children to be placed with kin; whether foster (and potential adoptive parents) would be permitted to provide input into the DCF assessment; and the role of the guardian ad litum. Neutral testimony was submitted by DCF, and no opponent testimony was submitted. The following day, on February 17, Chair Concannon announced that they would not be working HB 2700 that day because an amendment was being prepared. She then stated the bill would be blessed and would likely be worked after turnaround.

The Committee also worked HB 2524, which would require KDADS to regulate supplemental nursing services agencies; establish requirements for nursing agency registration; create the Supplemental Nursing Services Agency Regulation Fund; and 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. Committee members expressed concerns regarding the inclusion of a wage cap in the bill but amended it to require supplemental nursing service agencies to annually report the percentage of health care facility dollars that they expend on temporary employee wages and benefits compared to profits and other administrative costs to the Secretary of KDADS, who shall make such report available to the public. The amendment also increased the percentage of the sum of the weighted average wage rate to 200 percent (to expire on July 1, 2023). They passed the bill favorably out of Committee as amended.

House Insurance and Pensions Committee
(Rep. Steven Johnson, Chair)

On Wednesday, February 16, the Committee worked HB 2110, which would require the State Employees Health Plan (SEHP) to provide coverage for pediatric acute-onset neuropsychiatric syndrome (PANS) and pediatric autoimmune neuropsychiatric disorders associated with streptococcal infections (PANDAS). Committee members asked questions regarding what types of health plans would be subject to this new mandate and how many children in the SEHP might have these conditions. The Committee amended the bill to revise the dates related to the start of coverage in the SEHP, the due date for the report to the Legislature, and when the mandate would be applicable to other state regulated health insurance plans and passed it favorably out of Committee, as amended.

House Judiciary Committee
(Rep. Fred Patton, Chair)

On Monday, February 14, the Committee held a hearing on HB 2652, which would continue the governmental response to the COVID-19 pandemic in Kansas by extending the expanded use of telemedicine; the authority of BOHA to grant certain temporary emergency licenses; the suspension of certain requirements related to medical care facilities; and immunity from civil liability for certain health care providers, certain persons conducting business in the state, and covered facilities for COVID-19 claims until January 20, 2023. Proponents, including Audrey Dunkel, Kansas Hospital Association, Eric Stafford, Kansas Chamber of Commerce, Haely Ordoyne, Kansas Adult Care Executives, John Jenks, Greater Kansas City Chamber of Commerce, Matt Fletcher, InterHab, Linda MowBray, Kansas Health Care Association and Kansas Center for Assisted Living, and Rachel Monger, LeadingAge Kansas, testified that Kansas hospitals and physicians continue to face increased patient needs related to COVID-19 and the provisions in HB 2652 are critical to hospitals’ and physicians’ ability to respond to these patient needs; Kansas businesses need an extension of the liability protections in SB 283, which expire on March 31, 2022, to protect them from no-injury COVID-related litigation, while still allowing for businesses to be held responsible when acting maliciously or failing to guard or warn against risk; and health care providers need the narrow protections from immunity provided in the bill so they can concentrate on providing care in the current difficult environment.

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.