The Kansas Legislature passed a revised COVID-19 oversight bill that Gov. Laura Kelly signed into law on June 8, providing liability protections for health care providers, a provision for which the Medical Society of Sedgwick County and the Kansas Medical Society have strongly advocated.
Under the law, which remains in effect as long as Kansas is under the COVID-19 state of disaster emergency, most health care providers are immune from civil liability, administrative fines or penalties for damages or liability arising out of or relating to acts, omissions, or health care decisions, or failure to render health care services.
This immunity would not apply to civil liability when it is established that the act, omission, or health care decision constituted gross negligence or willful, wanton, or reckless conduct, according to a summary of the bill. This immunity also would not apply to health care services not related to COVID-19 that have not been altered, delayed, or withheld because of the COVID-19 public health emergency.
The law does not extend this liability protection to nursing homes but does give such facilities an affirmative defense to liability in a civil action for damages, essentially making it easier for nursing homes to defeat legal challenges, said Rachelle Colombo, executive director of the Kansas Medical Society.
The law also hits a few other areas of concern for physicians, including:
Telehealth – The law allows physicians to prescribe medications (including controlled substances) without conducting an in-person examination of a patient. A physician under quarantine, including self-imposed quarantine, may practice telehealth.
The law also allows a physician licensed in another state to practice telehealth to treat patients in Kansas if the physician advises the Kansas State Board of Healing Arts (KSBHA) in writing and the physician holds an unrestricted license to practice medicine and surgery in another state and is not the subject of any investigation or disciplinary action by the licensing agency. Additionally, other health care providers are authorized to administer COVID-19-related care without physician supervision through January 2021.
“KMS requested removal of both of these policies, but the bill was proposed as a comprehensive compromise between various parties and was ultimately passed through both the House and Senate unamended in an effort to secure the governor’s approval,” Colombo said.
Expanded scope of practice to non-physicians – Of additional concern to physicians is a temporary emergency license granted by the KSBHA to practice any profession overseen by the board to “an applicant with qualifications the board deems sufficient to protect public safety and welfare, within the scope of professional practice authorized by the temporary emergency license, for the purpose of preparing for, responding to, or mitigating any effect of COVID-19,” according to the new legislation. This includes APRNs, PAs, and others. This provision expires on Jan. 26, 2021.
“Those who are hospitalized with COVID tend to be among the sickest in Kansas. Regulating that care to lesser trained health professionals seems unnecessary and unwise,” said Kevin Hoppock, MD, chairman of the MSSC Legislative Committee.
“Thankfully we have not seen the kind of surges that have been present in other states. My concern is if we did, the individual that would need care that would require a level of acuity that is much higher than appropriate for non-physicians.”
The revised bill also did not address Medicaid expansion or advance the Hilburn response bill, both actions that will now get tabled until next year, Hoppock said.
With the window for additional legislative action closed for 2020, MSSC and KMS will both turn their sights on the upcoming election, which requires continued advocacy and education for the election of individuals who are committed to the health of Kansans through meaningful support of the medical community.
Hoppock encourages physicians to support the Kansas Medical Political Action Committee (KAMPAC), which helps elect candidates who support necessary tort reform and who promote keeping the practice of medicine in the hands of physicians, according to KMS.
“Advocacy is still job No. 1,” Hoppock said. “Even as we anticipate next year’s legislative session, we recognize the next great opportunity is helping to shape the elections through our involvement and support of legislators who understand and support the needs of the medical community.”
To learn more about KAMPAC, please visit kmsonline.org/advocacy/kampac