A 24-hour marathon legislative session last week added legislative and local government oversight to Kansas Governor Laura Kelly’s emergency management authority, gave some COVID liability protection healthcare workers and businesses.  Kelly responded, calling their efforts “dangerous” and “irresponsible.”

A memo from Kansas Legislative Research explains the highlights of Senate Substitute for House Bill 2054.  The bill passed the House by a vote of 76-34, with 14 members absent and not voting.  The Senate passed the bill by a vote of 27-11; Senator John Skubal (R-Overland Park) was present but didn’t vote and Senator Barbara Bollier (D-Mission Hills) was absent for the vote.

Emergency Management highlights

  • After the governor’s current order expires on May 31, she must make application to the State Finance Council for a new order, and it takes 6 of the 8 legislative members of the Council to approve her order.
  • A county or city can override the governor’s order if they feel it’s not necessary in their jurisdiction.
  • Local health officers cannot unilaterally implement orders; their recommendations must be approved by elected officials.
  • Violations of such orders are changed from a Class A misdemeanor to a civil penalty with a fine.
Healthcare Provider Immunity
A healthcare provider is immune from civil liability for damages, administrative fines, or penalties for acts, omissions, healthcare decisions, or the rendering of or the failure to render healthcare services, including services that are altered, delayed or withheld, as a direct response to any COVID-19 state of disaster emergency under the KEMA. This immunity would apply to any claims for damages or liability arising out of or relating to acts, omissions, or healthcare decisions occurring during any state of disaster emergency pursuant to KEMA, related to COVID-19. This immunity would not apply to civil liability when it is established that the act, omission, or healthcare decision constituted gross negligence or willful, wanton, or reckless conduct. This immunity also would not apply to healthcare services not related to COVID-19 that have not been altered, delayed, or withheld because of the COVID-19 public health emergency.
Business Liability 
A person (or agent of such person) conducting business in Kansas shall not be held liable for a COVID-19 claim if the act or omission alleged to violate a duty of care was mandated or specifically and affirmatively permitted by a federal or state statute, regulation, or executive order passed or issued in response to the COVID19 pandemic and applicable to the activity at issue at the time of the alleged exposure. This provision would apply retroactively to any cause of action accruing on or after March 12, 2020.
Product Liability 
A person who designs, manufactures, sells, distributes, provides, or donates a qualified product in response to the COVID-19 public health emergency shall not be liable in a civil action alleging a product liability claim involving the product if any of the above actions were taken at the specific request of or in response to a written order or other directive finding a public need for a qualified product, issued by the Governor, Adjutant General, or Division of Emergency Management, and the damages are not occasioned by willful, wanton, or reckless disregard of a known, substantial, and unnecessary risk that the product would cause serious injury to others. This provision would apply retroactively to any cause of action accruing on or after March 12, 2020.  Als, nothing in the Act creates, recognizes, or ratifies a claim or cause of action of any kind; eliminates a required element of any claim; affects workers’ compensation law, including the exclusive application of such law; or amends, repeals, alters, or affects any other immunity or limitation of liability. This provision would apply retroactively to any cause of action accruing on or after March 12, 2020.
Will Kelly veto or approve?

The Kansas Chamber in a press release on Saturday encouraged Governor Laura Kelly to support Senate Substitute for House Bill 2054, a comprehensive bill addressing the impact of the COIVD-19 pandemic on the state.

“While far from perfect from her view and ours, enacting HB 2054 is vital to multiple interests across the state and will give all Kansans confidence our state is on the path of both health and economic recovery,” said Chamber President and CEO Alan Cobb. “This legislation does not put Kansans at risk. Rather, it strengthens our state’s ability to respond to the current health crisis and the economic emergency brought on by the COVID-19 pandemic. It creates a partnership among our elected leaders, even when the Kansas Legislature is not in session. It provides certainty for Kansans and for the state’s business community during these uncertain times.”

Governor Kelly received the bill Friday and has ten days to consider whether she will sign the legislation into law, let it become law without her signature or veto it.

Cobb pointed out that without HB 2054 becoming law, Governor Kelly’s current emergency declaration will expire on Tuesday, May 26th as well as many of the executive orders she has put in place to help Kansans fight the virus. And as the recent opinion from Kansas Attorney General Derrick Schmidt indicates, her ability to issue another emergency declaration is considerably in question.

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