Senate, House gearing up for lightning-fast extension of COVID-19 emergency law

Retention of business, health care liability protections key objectives

Lobbyists socially distance during a Senate Judicary Committee hearing Tuesday on extension until March 31 of a law detailing state and local government authority for responding to the COVID-19 pandemic. The House is working on a comparable bill. (Tim Carpenter/Kansas Reflector)
Lobbyists socially distance during a Senate Judicary Committee hearing Tuesday on extension until March 31 of a law detailing state and local government authority for responding to the COVID-19 pandemic. The House is working on a comparable bill. (Tim Carpenter/Kansas Reflector)

TOPEKA — The Kansas Senate launched an expedited process Tuesday to deal with a bill extending through March the state’s disaster emergency law applicable to the COVID-19 pandemic and scheduled to expire in two weeks.

The intent is to quickly move a package through the House and Senate to serve as a placeholder until lawmakers complete work on an overhaul of law describing the constitutional authority of Gov. Laura Kelly, separation of powers in terms of the Legislature and the role of local units of government during massive public health emergencies. The Senate Judiciary Committee conducted a hearing Tuesday, the second day of the annual session. The House Judiciary Committee is expected to delve into the subject Wednesday at the Capitol.

If the Legislature can’t make a deal with Kelly by Jan. 26, the state would revert to the Kansas Emergency Management Act as enforced prior to a bill passed in June. That special-session bill restrained the governor’s ability to unilaterally issue and enforce statewide mandates on individuals, businesses, schools and municipalities to deal with COVID-19. After September, her authority in the crisis was limited to a series of one-month extensions subject to review by a bipartisan council that included legislative leaders.

The immediate goal for the Legislature is an extension good through March 31. The Senate’s version of the bill would includes a provision allowing the State Finance Council — comprised of the governor and top legislators — to take charge if the Legislature adjourned for more than three days. It’s an idea that reflects anxiety about whether the coronavirus could force a premature end to the session.

The state’s emergency management act written 45 years ago was designed for prairie fires, floods, drought and tornadoes — not a virus of international scope, uncertain duration and deep social intrusion.

 

Liability protections

Eric Stafford, who lobbies on behalf of the Kansas Chamber’s business interests, said it was essential to extend the law, especially business and health care liability protections, through the pandemic. He said the statute properly shielded businesses from no-injury litigation related to COVID-19, while allowing businesses to be held responsible when acting maliciously.

“While a permanent extension would be ideal,” Stafford said, “an extension to the end of the emergency declaration would serve as an acceptable alternative to our members. Liability protection for a viral disease is essential for businesses seeking to reopen or remain open.”

Mike O’Neal, a former Kansas House speaker who represents Kansas Policy Institute and the affiliated Kansas Justice Institute, said existing law raised questions about protection of personal freedoms and the level of legislative oversight of the governor’s office. He said legislators had to address procedural, practical and constitutional issues arising from the pandemic.

“It is very fitting that you would take this opportunity. As Winston Churchill once famously said, “You should not waste a crisis,'” O’Neal said. “It’s important to note that statewide disasters, including health pandemics, are apolitical. The statutory framework for responses must be tailored, applied and analyzed without regard to who occupies the governor’s office or who controls either chamber of the Legislature.”

He recommended formation of a permanent oversight committee of the Legislature, with suitable geographic distribution of members, to deal with health disasters. A theme of the law should be that governors take a lead role in recommending disaster responses, he said, but final decisions ought to be made by the Legislature. Work on the larger overhaul bill should include provisions that address access to public education, virtual voting by the House and Senate, power of local health officials and compensation for businesses damaged by government in a disaster.

 

Licensing problem

Tucker Poling, acting executive director of the Kansas State Board of Healing Arts, said the current emergency management statute enabled health professionals licensed in other states to work in Kansas without a Kansas license. Of grave concern, he said, was the law didn’t define health care professional. In other words, it could be possible for someone to advertise massage as a remedy to COVID-19 while urging potential clients not to see a physician or go to the hospital.

The state’s emergency law intended to help clinics and hospitals with staffing essentially tied the hands of the Board of Healing Arts to step in because enforcement actions were linked to licensure, he said.

“This is the most problematic subsection in the act,” Poling said. “The board believes this subsection endangers public safety because it allows any ‘health care professional’ licensed and in good standing in any state or territory to practice within Kansas without the need for a Kansas license or Kansas regulatory oversight.”

Scott Schneider, who represents the Kansas Restaurant & Hospitality Association, said renewal of the emergency law was important because it would continue curbside and carryout services businesses and consumers turned to as the pandemic wore on. He also said lawmakers in Kansas should make permanent the opportunity for businesses to engage in alcohol delivery and he made a pitch for the bill to secure due process rights in the event of a disaster in which businesses were closed.

Zack Pistora, a lobbyist with the Kansas Sierra Club, raised objections because the committee hearing on Senate Bill 14 occurred less than 24 hours after the bill was introduced. Most committees in the Legislature allow 48 hours between issuance of a public notice of a hearing and the holding of that hearing, he said.

“The public deserves ample time to weigh in and engage in the civic discourse,” he said. “Democracy is, fundamentally, a conversation. It’s a conversation among citizens about how to order their affairs, how to mount a common defense, how best to invest in the common good, how to balance liberty with responsibility toward others, how to safeguard opportunity for the next generations.”

Sen. Kellie Warren, a Leawood Republican and chairwoman of the Senate Judiciary Committee, said public notice of a hearing on the state’s emergency management law was posted last week in the Legislature’s online and printed calendar. That public notice was sufficient to meet requirements of a hearing on the emergency management bill, she said.