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Kansas Governor Poised to Trade Some Emergency Powers to Keep Her COVID Orders

Wichita Democratic state Rep. Elizabeth Bishop puts on a mask as she enters the Statehouse on Thursday, the second day of the special session. (Photo by Jim McLean, Kansas News Service)
Wichita Democratic state Rep. Elizabeth Bishop puts on a mask as she enters the Statehouse on Thursday, the second day of the special session. (Photo by Jim McLean, Kansas News Service)

TOPEKA, Kansas — A deal forged by the governor and legislative leaders extends the Kansas disaster declaration in response to the coronavirus through September, for now ending what’s become a partisan conflict.

The bill allows Gov. Laura Kelly to keep some of her powers to respond to the coronavirus, like delaying deadlines for things such as filing taxes or renewing drivers licenses. The plan gives legislators more control over extending the disaster declaration and reviewing new orders.

“A compromise position. A position that still allows the governor to operate,” Republican Rep. Fred Patton told the House this week. “But we also wanted to have legislative oversight.”

Some Republicans had objected to the Democratic governor closing businesses and banning large gatherings statewide this spring, even though the virus so far hasn’t been widespread in some rural counties.

The bill was passed by the House on Wednesday night, with the Senate following suit Thursday. Kelly is expected to sign the bill, which extends her disaster declaration until Sept. 15 (further extensions are possible) and preserves her executive orders for everything from letting nurses handle more patient care to allowing restaurants to sell alcohol to go.

As the rare special session began, Kelly signaled she’d support the compromise because it provides “the framework our state needs as we continue on the path to recovery.”

“There are parts of this bill that I do not support,” Kelly said in a statement. “However, my priority is and will always be the interests of Kansans first.”

She compromised on her ability to close businesses or ban large gatherings until after Sept. 15. Lawmakers said it will give the governor a chance to respond if cases surge as businesses and other facilities reopen.

“It’s before any potential second wave, we hope, any second wave would come,” Patton said.

Already, Kelly conceded such restrictions to counties last month, turning her reopening plan into recommendations. That came after lawmakers passed a bill restricting herduring a nearly 24-hour-long single-day veto session. Kelly vetoedthat bill.

Legislative leaders said the new plan was born in a bipartisan meeting that Kelly invited them to after the veto.

“We came to a realization very quickly that our policy differences weren’t that large,” Republican Senate Vice President Jeff Longbine told a Senate committee.

The bill is similar in some ways to the previous plan Kelly vetoed, but gives joint oversight of the $1.25 billion in federal coronavirus response funding. Initially, full authority to spend that money rested with Kelly’s office, and the bill she vetoed would have given authority fully to lawmakers.

Now, a panel made up of the governor and legislative leaders will make final decisions on federal aid. That same panel could approve additional extensions to the disaster declaration, and would need to OK future business closures of more than 15 days.

Kelly was the first governor in the country to close schools statewide to control the spread of the virus. This bill wouldn't let her do that again without approval of the State Board of Education.

There was some complaint about the process, after the legislation was rushed to the House floor before many lawmakers could study it. In a Senate committee, any amendments were discouraged to speed up approving the plan.

“Everybody wants to go home,” Republican Sen. Dennis Pyle said after he offered an amendment that was rejected. “I’m so sick of hearing that.”

Protections for business and flexibility for counties

How to deal with local governments has been one of the biggest divides between the governor and lawmakers. Kelly’s orders banning large gatherings and closing businesses applied to all counties, which lawmakers tried to take away.

The new bill puts some requirements on local governments that want to sidestep her orders — they can approve rules that are less restrictive than the state, but must consult with the local health officer to  make sure restrictions aren’t needed to protect public health in the county.

It also gives Kansas businesses some liability protections if people get sick or if the company sells coronavirus-related protective equipment that turns out to be faulty. There are restrictions, as the protective equipment must have been ordered by the state. Businesses would be protected from claims over coronavirus infections if they’re taking recommended precautions.

The governor’s chief of staff said Kelly supports protections for health care providers so they aren’t liable for things like procedures that had to be delayed because of the coronavirus. Otherwise, Kelly is only accepting the liability protections as part of the compromise.

“This is probably the part of the bill that the governor has the most hesitation over,” Chief of Staff Will Lawrence told a committee.

Democrats in the House called the liability protections unnecessary and unsuccessfully tried to amend them. 

Republican Rep. Kellie Warren said businesses need the protection from lawsuits as they reopen. 

“If these businesses are exposed to what I would say in some instances would be frivolous lawsuits,” she said, “it’s just the process of defending those lawsuits that will bankrupt our businesses.”

Medicaid and court nominee stumble

While the coronavirus bill was the main focus of the special session, Democrats in the House did make a last-ditch effort to expand Medicaid. They pointed to the spike in unemployment during the pandemic and said expanding health care coverage to thousands more Kansans was critical.

“When they lost their job, they lost their health care,” Democratic Rep. Jim Ward argued on the House floor. “Medicaid expansion would help them.”

As in past attempts, the chamber’s rules blocked the consideration of expansion and there weren’t enough votes to override the rules.

In addition, lawmakers didn’t take any action to tackle a budget deficit next fiscal year topping $600 million. That could mean the governor will make unilateral budget cuts or legislators take on the deficit when they return in January.

In the Senate, lawmakers rejected the governor’s nominee for a seat on the Court of Appeals. Some senators criticized Carl Folsom, an attorney from Lawrence, for spending most of his career as a public defender and questioned whether he’d be fair on the bench.

“The nominee donated to Governor Kelly’s campaign, which is indicative of his political ideology,” Republican Senate President Susan Wagle said.

That drew a sharp response from Kelly, who said senators were rejecting a highly qualified nominee for political reasons.

“The partisanship being inserted into this process is just wrong,” she said, “and it breaks with long-standing Kansas tradition of keeping politics out of the courts.”

Stephen Koranda is the Statehouse reporter for Kansas Public Radio and the Kansas News Service. You can follow him on Twitter @kprkoranda.

The Kansas News Service is a collaboration of Kansas Public Radio, KCUR, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

Stephen Koranda is KPR's Statehouse reporter.