Print Page | Sign In | Register
The Advocate
Blog Home All Blogs
The KBA Advocate is the weekly KBA legislative newsletter that contains up-to-date information on legislation that impacts your practice. It is only published when the legislature is in session and is sent to all KBA members electronically via the KBA Weekly.

 

Search all posts for:   

 

Top tags: Author: Joseph N. Molina III  2019 Session  2019-20  COVID-19  legislature  budget  2020 Legislative Session  election  Kansas Supreme Court  Brownback  Supreme Court  Court of Appeals  Judicial Branch  Medicaid expansion  school finance  Special Session  abortion  Emergency Management Act  Fall Legislative Conference  Gannon  Hard 50  merit selection  Sine Die  2016 Session  2017 session  2017-18  Alleyne  First Adjournment  judicial branch budget  judicial selection 

24-Hour SINE DIE

Posted By Joseph N. Molina III, Tuesday, May 26, 2020
Click image for full size

The largest bill for the day was the COVID bundle incorporated in Conference Committee Report for HB 2054. This bill includes provisions dealing with CARES funding, Emergency Management Act oversight; liability protections for healthcare, businesses and products; extension of executive orders until 2021; and nursing home oversight. The KBA was most interested in the extension of the executive orders for remote notaries and use of audio visual, both of which were added to the CCR. The KBA opposed the immunity protections added to the bill.

The session was hampered by the Sine Die deadline which forced legislative leaders to rush legislation. When the minority party began an informal filibuster, a member of Senate Leadership cut off debate by “calling the question”. This maneuver of “calling the question” was made on every subsequent bill to deny the minority party the opportunity to delay the process.

When this procedure’s effectiveness waned, the Senate decided to move all remaining issue to a conference committee that only requires a simple up or down vote.

The Conference Committee process was as contentious as the floor debate. This caused added delay and frustration on all sides that lead to a motion to “agree to disagree”. This motion effectively removes the minority party from the conference committee. The motion passed on party line, and the conference committee was able to negotiate the bill without democrats agreeing to the final product. This is how CCR for HB 2054 was developed.

CCR 2054 was debated at 5:30 a.m. by the Senate, which passed it 27-11, and at 6:45 a.m. by the House which approved it 76-34. The Kansas House was able to debate this conference committee report because its leadership extended the Midnight Rule to 8 a.m. The final bill has been enrolled with the Governor, who has 10 days to sign, veto or allow it to become law without her signature.

COVID response – HB 2054

This bill gives the Legislative Coordinating Council authority over federal funding Kansas receives from COVID relief, rather than the office of the Governor. HB 2054 also authorizes the LCC to review COVID-related expenses incurred by state agencies.

This provision applies to both the $1.2 billion Coronavirus Relief Fund and to any federal funds received under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, the Families First Coronavirus Response Act (Families First Act), the Paycheck Protection Program and Health Care Enhancement Act, and any other federal law that provides moneys to the state for aid for coronavirus relief.

HB 2054 also makes several changes to the Kansas Emergency Management Act (KEMA). It ratified and confirmed the Governor’s March 12, 2020, disaster declaration through May 1, 2020 and ratifies and continues through May 31, 2020, the state of disaster emergency declared by the Governor on April 30 and extended by the State Finance Council through May 26, 2020. Without this action, the emergency will expire on May 26th.

The bill further prohibits the Governor from declaring any new COVID-19-related state of disaster emergency during 2020. To proclaim a new state of disaster emergency, the Governor will first have to make specific application to the State Finance Council, and an affirmative vote of six of the legislative members would be required, to order the closure or cessation of any business or commercial activity.

HB 2054 allows the Board of County Commissioners of any county to issue an order relating to public health that contains provisions that are less stringent than the provisions of a statewide executive order issued by the Governor. Any Board of County Commissioners issuing such an order would be required to make a finding, based upon advice from the local health officer or other local health officials, that the scope of provisions in the Governor’s executive order are not necessary to protect the public health and safety of the county to be implemented in the county.

The bill makes several changes regarding the Governor’s authority to issue executive orders in a disaster emergency and changes the penalty for violating orders from a crime to a civil penalty. It also amends some statutes regarding local health officials.

Immunity

The bill provides immunity in certain COVID-related cases for health care providers, businesses and products. These would include nursing homes and adult rehabilitation facilities. The bill DOES NOT provide for premises immunity.  

•  Health care immunity - The bill would state, notwithstanding any other provision of law, 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.

 

•  Business Immunity - The bill would state that, notwithstanding any other provision of law, 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 COVID-19 pandemic and applicable to the activity at issue at the time of the alleged exposure. The bill would state this provision would apply retroactively to any cause of action accruing on or after March 12, 2020.

 

•  Product Immunity - The bill would state that, notwithstanding any other provision of law, 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. The bill would state this provision would apply retroactively to any cause of action accruing on or after March 12, 2020.

Other Provisions

The bill also includes provisions addressing notarial acts and court videoconferencing. HB 2054 extends the Chief Justice’s authority created under SB 102 to issue administrative orders that allow for the use of audio-visual technology in courtrooms. The court will retain this authority until the state of emergency ends plus an additional 150 days.

•  Notarial Acts - The bill would create a new section of law, outside the Revised Uniform Law on Notarial Acts (RULONA), stating that notarial acts performed by a Kansas notary public while the personal appearance requirements are suspended pursuant to an executive order or other state law, shall be valid as if the individual had met the personal appearance requirement, even if the individual failed to do so, as long as the notarial act fulfills all requirements prescribed by the executive order or other state law and all other requirements not relating to personal appearance.

 

•  Video Conferencing - The bill would amend a provision enacted in 2020 House Sub. for SB 102 to allow the Chief Justice of the Kansas Supreme Court to issue an order authorizing the use of two-way electronic audio-visual communication (videoconferencing) in any court proceeding, when the Chief Justice determines such action is necessary to secure the health and safety of court users, staff, and judicial officers, by removing language limiting application of this provision to periods during any state of disaster emergency under KEMA.

 

This was one of the longest legislative days in Kansas history, lasting a full day. You can read more about it here - https://www.kansaspublicradio.org/kpr-news/kansas-gov-kelly%E2%80%99s-emergency-powers-weakened-lawmakers-who-say-she-overreacted-covid-19

See; https://www.cjonline.com/news/20200524/clock-ticking-on-gov-laura-kelly-ahead-of-expiring-emergency-declaration

See also; https://www.kwch.com/content/news/Kansas-lawmakers-push-into-Friday-morning-to-finish-legislative-session-570686711.html

 Attached Thumbnails:

Tags:  Agree to Disagree  Author: Joseph N. Molina III  businesses and products  Calling the Question  COVID response  Emergency Management Act  executive orders  HB 2054  immunity from liability for healthcare  KEMA  Midnight Rule  remote notary  Sine Die 2020  video conferencing court proceedings 

Share |
PermalinkComments (0)
 

Executive and Administrative COVID-19 Orders Extended

Posted By Joseph N. Molina III, Tuesday, May 5, 2020

Last week, Gov. Laura Kelly (D-Topeka) extended the State of Emergency for the State of Kansas until May 15th. The State Finance Council can extend this emergency declaration for another 30 days if needed. In conjunction with this new emergency order, EO 20-28, Gov. Kelly reissued all previously approved executive orders:  

https://governor.kansas.gov/wp-content/uploads/2020/04/EO-20-28-Reissuing-and-Extending-Certain-EOs.pdf (use of audio visual technology for notaries and witnesses is extended in Section 1(l) of EO 20-28). EO 20-28 provides some clarity and stability as Kansas transitions from a “stay at home” phase to Phase 1 of reopening. 

 

The Phase 1 plan can be reviewed here - https://governor.kansas.gov/wp-content/uploads/2020/04/EO-20-29-Implementing-Phase-One-of-Ad-Astra-Plan.pdf 

See; https://www2.ljworld.com/news/2020/apr/29/kelly-extends-state-of-emergency-through-may-14-state-to-receive-550000-new-tests-in-coming-weeks/

See also; https://www.wibw.com/content/news/WATCH-LIVE-Gov-Laura-Kelly-daily-COVID-19-news-conference-set-for-200-pm-570046811.html 

 

Once Gov. Kelly extended the State of Emergency, the Kansas Judicial Branch extended its Administrative Orders. Chief Justice Marla Luckert issued six new administrative orders on May 1 that updated directions to state courts and court users as the state slowly reopens, following the plan outlined by the governor. The orders continue some of the strategies put in place at the beginning of this pandemic response and provide updated guidance for gradually reopening state courts and increasing the number and types of service delivered the people of Kansas. 

 

State courts have been operating in a limited capacity since March 18 under earlier Supreme Court orders issued in response to the COVID-19 pandemic. Courts initially were restricted to only essential functions, but were later permitted to perform additional functions, to the extent local resources and circumstances allowed. 

 

Essential functions generally include: 

  • determining probable cause for persons arrested without a warrant; 
  • first appearances; 
  • bond hearings; 
  • warrants for adults and juveniles; 
  • juvenile detention hearings; 
  • care and treatment emergency orders; 
  • protection from abuse and protection from stalking temporary orders; 
  • child in need of care hearings and orders; 
  • commitment of sexually violent predators; and 
  • isolation and quarantine hearings and orders.

 

05-01-202020-PR-049: Relating to District Court Operations in Counties Affected by a Stay-at-Home Order or Subject to a Directive Closing a County Courthouse or Other Judicial Office

 
05-01-202020-PR-048: Order Relating to District Court Operations in Counties Not Affected by a Stay-at-Home Order or Subject to a Directive Closing a County Courthouse or Other Judicial Office

 
05-01-202020-PR-047: Suspending Deadlines and Time Limitations in Judicial Proceedings

 
05-01-202020-PR-046: Suspending Deadlines and Time Limitations Under K.S.A. 2019 Supp. 22-3402

 
05-01-202020-PR-045: Authorizing Two-Way Audio-Visual Communication in Any Court Proceeding

 
05-01-20: 2020-PR-044: Reissuing Administrative Order 2020-PR-36 under Governor’s April 30, 2020, State of Disaster Emergency Declaration 

 

Finally, the Legislative Coordinating Council will meet Wednesday, May 6th to discuss returning to the Capitol for the Veto SessionSee; http://www.ksrevisor.org/docs/LCCSpMeet_2020/Agenda%205-6-2020.pdf 

Tags:  Author: Joseph N. Molina III  COVID-19  EO 20-28  essential functions  Executive Orders  Kansas Judicial Branch  pandemic  State of Emergency 

Share |
PermalinkComments (0)