Kansas’ pandemic reform bill opens window to ’sausage’ making of political compromise
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TOPEKA — Gov. Laura Kelly affirmed Friday her promise to sign the bipartisan coronavirus oversight bill and that the governor’s pandemic recovery task force would examine how to earmark federal disaster relief to assist struggling homeowners and renters.
Kelly said she was eager for the Legislature to convene interim committees before start of the 2021 legislative session to craft reforms of the decades-old state emergency management act that went beyond contents of the new bill. The existing law wasn’t written with a global pandemic in mind.
“I agree it needs to be modernized so Kansas is prepared to respond to the broad scope and scale of emergencies we’ll continue to face in the coming years,” the governor said.
She said the task force developing plans for distribution in $1.25 billion in COVID-19 aid to Kansas would make a top priority of her request to offer financial relief to home renters and owners. She said the decision to lift an executive order placing a moratorium on mortgage foreclosures and evictions during the pandemic had been tough to swallow.
In addition, the governor said the Kansas Department of Labor was steadily improving the processing of unemployment benefits after the agency was inundated with approximately 200,000 people thrown out of work by the virus. The labor department has processed nearly $1 billion in jobless benefits.
“I want struggling Kansans to know I understand how you feel and how fearful you remain of the future,” Kelly said.
Winners or losers?
Senate President Susan Wagle argued the legislative branch, county governments and business owners emerged as clear winners in the latest messy political battle with Kelly for control of COVID-19 recovery decisions.
Wagle said the bill made clear the governor could no longer close businesses for long periods without the Legislature’s consent. County officials will have greater authority to determine how to deal with the virus, she said. And, Wagle said, the House and Senate seized a bigger voice in allocating more than $1 billion in federal emergency funding.
“Checks and balances are back in place like our constitution demands after much resistance from this governor,” Wagle said. “It is long past time for her administration to focus on stopping virus clusters and getting people their unemployment checks — rather than the massive overreach of control she has forced businesses and Kansans to endure.”
Kelly, a Democrat who has publicly tangled with the Republican president of the Senate, said it was ordinary Kansans who emerged victorious Thursday after the House and Senate approved a bipartisan bill realigning pandemic emergency powers. The governor, who helped negotiate the bill, said she would sign it.
“Our communities have faced unprecedented challenges due to the pandemic and I am proud of the compassion and resiliency they have shown during this difficult time,” Kelly said.
Sen. Pat Pettey, D-Kansas City, said she was disappointed the Legislature missed an opportunity to deliver for lower-income working Kansans by increasing access to affordable health care by expanding eligibility for Medicaid. Among Republicans, Sen. Dennis Pyle, of Hiawatha, said rank-and-file legislators were the losers, because secret negotiations on the bill and use of Senate procedures to block amendment of House Bill 2016 diminished their role.
“We’re the Legislature. Not the governor. Not the judiciary. We’re supposed to make the sausage around here,” Pyle said.
Rep. Blaine Finch, an Ottawa Republican among a handful of negotiators working with the governor and Senate leadership on the deal, said the approach achieved the goal of modernizing state disaster emergency laws originally designed for animal health pandemics or floods and tornadoes.
“This will bring Kansas law up-to-date and provide a solid framework so our families, our businesses and our schools will have more certainty going forward,” he said.
Sen. Jeff Longbine, the Emporia Republican and vice president of the Senate, said he went into negotiations with House members and the governor with a mindset the Legislature had to make certain the state’s economy continued to open and that Kansas county officials secured more flexibility during in the pandemic.
He said the reality was that Kansans must prepare for a potential second wave of COVID-19 later this year. So far, the virus has infected 10,100 people and contributed to the death of 222 people in Kansas.
The new coronavirus bill — Kelly vetoed an earlier version — was forwarded to the governor on votes of 26-12 by the Senate and 107-12 by the House.
“From the get-go,” said House Speaker Ron Ryckman, R-Olathe, “lawmakers have been focused on how to protect the people of Kansas while also protecting our jobs and our economy.”
Under the bill, legislative oversight was expanded in terms of the Kansas Emergency Management Act relied upon by the governor to issue more than 30 executive orders tied to COVID-19.
It extended the governor’s broad emergency disaster declaration to Sept. 15, and it could be extended to January with consent of six of eight legislators on the State Finance Council. The governor could close businesses for no more than 15 days in response to an outbreak after Sept. 15, but that action must be reviewed by the State Finance Council.
The bill contained limited liability protections for businesses that manufactured or sold personal protective equipment as well as shield businesses from lawsuits for potential COVID-19 exposure on their premises.
“As Kansas businesses begin to safely open back up for their customers, they can sleep a little better knowing frivolous lawsuits will not be a concern of theirs,” said Alan Cobb, president of the Kansas Chamber.
Protection from COVID-related lawsuits also was granted in the bill to doctors, nurses and other first responders, but nursing homes that were magnets for infection and death in Kansas didn’t get that same benefit. Several legislators said the result could be a surge in nursing homes bankruptcies.
“Are they just going to roll patients out on the lawn and hope someone picks them up?” said Sen. Mike Thompson, R-Shawnee.
Sen. Molly Baumgardner, R-Louisburg, was among legislators who struggled to comprehend why the bill granted state agencies up to 90 days, rather than the original 30 days, to complete infectious disease inspections of nursing homes.
“If we don’t defend and protect our most vulnerable then how can we call ourselves human?” said Sen. Julia Lynn, R-Olathe.
County health directors and county commissioners were given flexibility to deviate from the governor’s health directives during the pandemic.
Sen. Barbara Bollier, a Mission Hills Democrat and retired physician running for U.S. Senate, said she was alarmed the bill enabled health care professionals from out of state to work in Kansas without regulatory oversight by the Kansas Board of Healing Arts.
“This creates a tremendous safety issue for the people of Kansas,” Bollier said.
The bill included limits on contact tracing by state and local health departments of people suspected of having been infected, while violations of executive orders issued by a governor were downgraded from a criminal offense to a civil infraction.
“This bill has clearer restrictions on the governor’s use of emergency powers to close businesses, churches, schools and otherwise to limit gatherings in a one-size-fits-all, statewide manner,” said Attorney General Derek Schmidt, a Republican.
“Under this bill, Kansans may no longer be threatened with arrest, criminal prosecution and imprisonment for violating statewide executive orders,” he said.
The bill blocked the governor from ordering emergency changes in state election law and required the state Board of Education to vote on any decision by the governor to order schools closed. In March, Kelly shut down K-12 school buildings for rest of the school year to thwart spread of the virus.
During a Senate committee meeting on the bill, a GOP legislator asked the secretary of the Kansas Department of Health and Environment whether the governor unnecessarily damaged the economy and escalated unemployment by locking down the state for so long with stay-home and mass-movement executive orders.
“We’re always smarter in hindsight,” said KDHE secretary Lee Norman. “The question I’d maybe ask back is how many people are we willing to not allow to survive and how many are we going to have infected in order to stimulate the economy?”