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Kansas' COVID-19 disaster declaration is now in Legislature's hands. Here's what to know

Titus Wu
Topeka Capital-Journal
Sen. Kellie Warren, R-Leawood, speaks on the Senate floor Thrusday afternoon in support of a Senate bill extending the provisions of last year's coronavirus-related HB 2016.

During the first week of the Kansas legislative session, the No. 1 priority for the Legislature is to extend the state's COVID-19 disaster emergency declaration before it expires Jan. 26.

The urgency has been underscored by the speed lawmakers are moving with to pass two bills  ― for some, maybe a bit too fast.

"I've not seen, and I don't think we've seen before, a bill that moved with such expediency," said Sen. David Haley, D-Kansas City. "I daresay it is abnormal and it lends a certain question as to how fairly it can be deliberated and considered. This is a very crucial issue in terms of the public health."

Senate Bill 14 and House Bill 2048 are indeed important pieces of legislation, but also large, complicated ones that do more than simply extend a deadline. The bills deal with almost all things COVID-19-related, and while expected to be temporary, will have great impact on the coronavirus response. 

With both having already held their public hearings and passed out of committee in just the first week of session, The Topeka Capital-Journal breaks down the details.

What exactly is in the bills?

Both bills on a substantial level are an extension of House Bill 2016, passed in last year's special session, which outlined various, temporary changes in law in response to the pandemic. 

One section allows alcoholic and other establishments to offer to-go alcohol. Another expands the ability to use telemedicine. A third gives businesses immunity from COVID-19 lawsuits as long as there is substantial compliance with public health directives. There's also a provision providing more flexibilities in health care licensing, boosting the number of folks available to help out in the fight against the coronavirus.   

Arguably the most important section is the disaster declaration itself, which many say is needed in order to secure the necessary resources to battle COVID-19. The governor has to go to legislative leaders in the State Finance Council to request extensions of the declaration for an additional 30 days.

More limitations from the majority-GOP Legislature on the Democratic governor come through the limits on the governor's emergency powers. 

The fact that counties can essentially "opt out" of Gov. Laura Kelly's mask order, for instance, came from HB2016. The governor also can't issue any orders limiting firearms or altering election law.  

Again, all of this is temporary and most will expire on Jan. 26. But the pandemic is still very much here, so legislators need to make sure these rules stay in place.

So what are the changes?

The main change, of course, are the new dates on which all of these provisions will sunset.

The bills are mostly a stopgap measure, to ensure there is continuity while lawmakers figure out later in the rest of session what exactly should be implemented in response to COVID-19. They'll also look into how differently to have oversight over the governor during a long-term emergency like the pandemic.

"My understanding is that this is just to buy us time ... to give us more time to have a deep dive into each detail," said Sen. Beverly Gossage, R-Eudora. "But right now, we have this looming deadline we have to address."

But there are some concrete differences. 

The governor's request to extend the disaster declaration through State Finance Council is only when the Legislature is not in session. When in session such as now, it's the Legislature who extends the declaration, as these two bills do.

But amid a pandemic, there's the possibility of outbreaks that could cause the Legislature to cut session short. If the Legislature adjourns for three or more days during session, these bills would let the SFC mechanism take place and ensure the disaster declaration is continued.  

There is also more permanent restrictions on the governor's power. Currently, the governor can shut down businesses for 15 days. If she wants to extend that closure, she must go to State Finance Council.

Both bills get rid of that and state that, essentially, the governor "may not order the closure ... of any business or commercial activity ... and may not issue an order that prevents the movement or gathering of any individuals." No shutting down businesses at all, and no limits on gatherings.

The governor's office has agreed to the language, said Rep. Fred Patton, R-Topeka, who chairs the Judiciary Committee sponsoring the House version of the bill. Democrats had some skepticism.

"I think the language is too broad, it doesn't give the governor much flexibility to deal with ... I don't believe if the governor was in the majority party we'd be looking at language like this," said Rep. Dennis Highberger, D-Lawrence.

Some advocates praised this change with gatherings and business closures, even if Kelly had indicated she wasn't interested in shutting businesses down.

"That's what has been generating the most litigation; we want to get to a place where orders are based upon facts and causation," said Mike O’Neal, of the right-leaning think tank, the Kansas Policy Institute. "And not in a situation where you may have an outbreak in one isolated place and then by implication, there's an assumption that every other similarly licensed places is equally bad."

Lobbyists listen in on a committee hearing for a bill extending certain provisions related to COVID-19 and KEMA on Jan. 13, 2021.

What are the dates to know?

Jan. 26 is the immediate deadline that one of the two bills need to be passed by; otherwise, the emergency declaration expires.

If a bill passes, the disaster declaration would be extended to March 31 in the Senate version. The House version would extend the declaration to March 5. Either way, if session is not interrupted by a coronavirus outbreak, the Legislature would need to extend the declaration again by the proposed date through a resolution.

All the other provisions for the most part, from telehealth to the SFC mechanism, would be extended to March 31 in the Senate version.

In the House version, some provisions, such as the alcohol-related one, would be extended to June 1. Others, such as immunity for businesses, would last until the end of the year. The restrictions imposed on the governor's emergency powers would last until Jan. 24, 2022. Whether a proposed amendment Thursday extends the SFC mechanism to that date or June 1 is still unclear.

The House Judiciary Committee proposed extending it to that long just as a worst-case safety measure.

"It basically takes into account the 'what if' scenario. What if we're closed for a longer duration than June 1st?" said Rep. Stephen Owens, R-Hesston. "It gives us a little bit more flexibility." 

To be resolved

The House and Senate will have to settle on the same dates in the end, though Patton said the different dates are a minor difference that could easily be worked out.

Another difference to be resolved is how the two chambers address fixing a portion of HB2016 that unintentionally allowed health care workers licensed outside Kansas to practice in the state without the same oversight as in-state providers.

"It's a jurisdictional problem that prevents us from enforcing the same rules on those health care providers," said Tucker Poling, of the Kansas State Board of Healing Arts. "You've created this class of out-of-state providers who we don't have any jurisdiction over."

In the Senate, the committee simply added a "legislative intent" in the minutes that this was not the intention. But the House committee, following the advice of Poling, amended the actual bill language to fix the issue. 

Beyond the extension at hand, multiple lobbyists were present throughout the week to plead for lawmakers to consider actions later on in session. One called for extending the business immunity provision to not one date, but until the end of the pandemic declaration. Another asked for more flexibilities related to health care.

Some legislators may not even want an emergency declaration at all.

On the Senate floor, a motion was made to simply kill the Senate bill, with folks arguing that it's time to move on.

"It's been almost a year, or was nine months, and we're still right back to where we started. We want to extend this?" said Sen. Robert Olson, R-Olathe, who said COVID-19 restrictions were hurting the economy. "It's time to get this economy back open."

That motion failed, and the Senate bill passed and moved on to the other chamber. The House version of the bill will be heard on the House floor this coming week.

"SB 14 preserves and strengthens the limits on the governor’s executive powers adopted in June of 2020 that ensures our economy will remain open, so our businesses have certainty going forward. It also provides the Legislature the time necessary to conduct a thorough review of the Kansas Emergency Management Act," said Senate President Ty Masterson, R-Andover, on its passage. "Given the overwhelming bipartisan support for the measure, it is my hope that the House will quickly follow and that the bill will be signed into law.”