COVID rages as Kansas lawmakers return to Topeka. 'We need the help of our political leaders.'
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This story is part of The Capital-Journal’s ongoing package previewing the 2022 Kansas legislative session. Follow reporters Andrew Bahl, @AndrewBahl, and Jason Tidd, @Jason_Tidd, on Twitter or go to cjonline.com for more state government and politics coverage.
The coronavirus pandemic is about to affect a third year of Kansas Legislature politics as the 2022 legislative session starts Monday.
After weeks of warnings from hospital leaders, Gov. Laura Kelly on Thursday declared a COVID-19 disaster emergency for health care staffing. She called on lawmakers to move quickly and codify the measures from two executive orders into a temporary statute.
"We'll keep these orders in place for 15 days as a stopgap until the Legislature can convene and send me a bill," Kelly said.
For now, a panel of top lawmakers with oversight power allowed the executive orders to stay in place.
Kansas is in the midst of the worst surge of the pandemic, which the governor blamed on holiday gatherings and the more infectious omicron variant. Hospital officials have said they are already rationing care, and staff are overwhelmed in a pandemic-induced crisis.
Rep. Jo Ella Hoye, D-Lenexa, noted in a Wednesday tweet that the Legislature "will gavel in amidst a crisis in our hospitals." She called the request from doctors for a state emergency declaration a "reasonable plea for help."
Sen. Mark Steffen, R-Hutchinson, said in a Facebook video that Kelly's emergency declaration and executive orders perpetuate what he called a failed pandemic response. Steffen, who is an anesthesiologist, called the situation a "supposed shortage" of hospital employees.
"There is great early treatments," he said. "There's even the Merck and Pfizer oral medications for early treatment. There's Ivermectin, there's hydroxychloroquine. We could easily cut hospitalizations and deaths by a minimum of 50%, and yet they continue down this path of failure."
Merck and Pfizer do in fact have drugs designed to treat COVID-19 that have been authorized by the Food and Drug Administration. The FDA has warned against using Ivermectin and hydroxychloroquine to treat COVID-19.
Lawmakers and the governor have shown little political willpower to take more aggressive measures to slow the spread of the coronavirus or blunt its effects on society.
"The frustrating part is we see the political leaders out there saying, well, either A it's 'We're gonna declare victory,' or B, 'We just can't, nobody wants to have a mask mandate," Steve Stites, chief medical officer of The University of Kansas Health System, said Wednesday. "We know mask mandates absolutely bend the curve. It absolutely helps protect us."
"But, you know, people don't seem to have the political willpower here to do it," Stites said, pointing to similar mandates elsewhere in the country.
Lawmakers may also attempt to address legal concerns raised with the controversial Senate Bill 40, which rewrote portions of emergency management statutes. A Friday ruling from the Kansas Supreme Court upheld the law without ruling on constitutionality questions.
Kansas vaccination rate stagnant
The vaccination rate in Kansas remains relatively low, with about 57% of the population fully vaccinated.
As evidenced by a November special session, politicians are under increasing pressure from an anti-vax and "health freedom" movement. The first weeks of the session will show whether the November law targeting vaccine mandates blunted the movement or gave it the momentum to take further action.
"We need the help of our political leaders," Stites said.
Robert Freelove, chief medical officer of Salina Regional Health Center, urged people to get vaccinated and follow other public health recommendations.
"It's not about politics," he said. "The virus doesn't vote. The virus doesn't care if you're Republican, Democrat, independent — doesn't care. It attacks people with impunity."
Numerous anti-mandate politicians have pointed to personal responsibility and health freedom when urging vaccination.
"We need everyone to get vaccinated," said Kevin Dishman, chief medical officer at Stormont Vail Health in Topeka. "We need everyone to wear a mask. We need everyone to social distance and we need them to do it now. Our community can help us stop this pandemic, but we've got to have the cooperation of everyone in the community. People that have waved the flag of personal choice are extending this pandemic."
Doctors have characterized COVID-19 as a pandemic of the unvaccinated.
Kelly said in a December interview that she was not going to "point fingers and blame anybody" as she continues to encourage vaccination and boosters.
"I will just continue to encourage Kansans to really look at the facts," she said. "The reality is that our hospitals are overwhelmed. It's not just the people who have chosen not to get vaccinated who are taking up those beds, they're taking up beds that others need to be in to receive services, whether it's heart surgery, or lung surgery or an orthopedic procedure. We really just can't afford as a society to have our beds taken up by a preventable disease."
As schools resume in-person classes amid the surge, often without mask requirements, only about 47% of the 12-17 population and 13% of the 5-11 population in Kansas are fully vaccinated.
Kelly told The Capital-Journal last month that it was "premature" to consider a COVID-19 vaccine mandate for schoolchildren due to the emergency use authorization. The KDHE secretary has such rulemaking authority.
"Those conversations will happen when and if the vaccine for kids is fully authorized, but it's premature to have those discussions right now," she said.
'No federal solution'
Arkansas Gov. Asa Hutchinson said in a Dec. 27 White House conference call that governors "are getting pressure to do more, and the need is great to do more in terms of the rapid tests and the availability of it."
In what appeared to be a testing-specific comment, the Republican governor asked Democratic President Joe Biden to "make sure that we do not let federal solutions stand in the way of state solutions."
"Look, there is no federal solution," Biden responded. "This gets solved at a state level. ... And then it ultimately gets down to where the rubber meets the road, and that’s where the patient is in need of help or preventing the need for help."
He added later: "My message to the governors is simple: If you need something, say something — and we — we’re going to have your back in any way we can."
Still though, Biden outlined the ongoing federal pandemic response, adding "it's clearly not enough."
"Omicron is a source of concern, but it should not be a source of panic," Biden said. "If you’re fully vaccinated and you get your booster shot, you’re highly protected. If you’re unvaccinated, you’re at a high risk of getting severely ill from COVID-19, being hospitalized, and, in rare cases, even dying."
For her part, Kelly has been critical of a federally led pandemic response. In November, as Biden's vaccine mandates rolled out, she said she didn't believe them to be the "correct, or the most effective, solution for Kansas."
"States have been leading the fight against COVID-19 from the start of the pandemic," Kelly said. "It is too late to impose a federal standard now that we have already developed systems and strategies that are tailored for our specific needs. I will seek a resolution that continues to recognize the uniqueness of our state and builds on our on-going efforts to combat a once-in-a-century crisis."
While the federal vaccine mandates have been tied up in court, including from lawsuits signed onto by Attorney General Derek Schmidt, the White House has developed plans to address the winter surge. Meanwhile, Kelly signed a bill that weakened vaccine mandates and has focused her public communications on the economy.
In a Nov. 10 statement, a Kelly spokesperson said the governor "continues exploring actions her administration can take to find a Kansas-centric solution, not a nationally mandated, one-size-fits-all approach."
Until Thursday's announcement of the emergency order, she had not held a Statehouse press conference on COVID-19 since July.
Lawmakers weaken vaccine mandates
Republican lawmakers forced the Democratic governor to call a special session the week of Thanksgiving as part of a plan to undermine vaccine requirements by the federal government and private businesses.
The law that passed guaranteed unemployment benefits to workers who lose their jobs because of COVID-19 vaccine mandates. It also guarantees religious and moral exemptions for workers, and employers have zero authority to question the sincerity of the belief.
The bill had little Democratic support and not enough Republican ayes to override a veto. But the governor signed it, calling it a compromise without indicating whether she thought it was good policy.
"I don't disagree that compromises are not always good public policy," Kelly told the Capital-Journal last month. "But, you know, given the situation that it was, and I felt that it was imperative to get that legislation taken care of and move on. I did not want us to spend a lot of time arguing, debating, planning about a myriad of other things."
She said she signed the bill to "get it over with and move on."
But many politicians and activists in the anti-vax wing of the Republican party saw the bill as a first step and promised to push for more when the regular session starts.
Bill provides proposals that could resurface
A glimpse of potential proposals comes from a bill filed by a group of Republican senators during the special session, though it was not debated. The bill was sponsored by Sens. Mark Steffen, R-Hutchinson; Alicia Straub, R-Ellinwood; Mike Thompson, R-Shawnee; and Caryn Tyson, R-Parker.
The bill targeted various public health measures for all infectious diseases — none of the provisions were specific to COVID-19.
Under the bill, when infectious disease outbreaks happen, local health officers would not be able to order people to isolate or quarantine. It would be a recommendation only. A misdemeanor crime would no longer exist for people who violate isolation or quarantine orders. The health officer would no longer be able to order the sheriff or other law enforcement officer to help enforce the public health order.
Local health officers also would be barred from ordering other mitigation measures, such as closing businesses or limiting religious or other gatherings.
All governmental entities would be banned from requiring face masks, quarantines and isolation, as well as issuing stay-at-home orders or curfews "based on an epidemic or other public health reason."
The bill would ban businesses, government entities, public officials and entertainment venues from denying service or discriminating based on vaccination status or so-called "immunity passport" status.
It would ban governments from giving incentives to get vaccinated, such as lotteries. Several state universities used various incentives in fall semester vaccination campaigns.
Under the bill, employers would not be allowed to refuse to hire unvaccinated people, and they couldn't otherwise discriminate, such as paying them less than vaccinated workers. Employers would be barred from asking an employee about their vaccination status or to require any vaccine. Places that are open to the public couldn't segregate or otherwise discriminate based on vaccination status.
Violations would be a level seven felony.
Additionally, when courts consider child custody cases, judges would be blocked from considering vaccination status of a parent or child.
The CDC lists 16 diseases that are preventable with child vaccinations. Kansas requires 11 immunizations to attend school.
One provision in the bill would strip the KDHE secretary of the existing authority to mandate vaccines for schoolchildren, subject to medical and religious exemptions. The bill would codify existing regulations mandating various vaccinations into statute. Child care operators would be required to grant religious and moral exemptions to any vaccination requirements.
Hospitals and health care workers would be banned from refusing to treat or otherwise discriminating against a person based on vaccination or immunity passport status. Health care workers could lose their medical license for violating the provision.
Those medical facilities would also be banned from blocking in-person visitation from a patient’s spouse and certain other people. Adult care homes would have similar rules on visitation.
In an apparent nod to Ivermectin and hydroxychloroquine, patients could sign liability waivers in order to get prescriptions for off-label use of drugs approved by the Food and Drug Administration. The bill appears to strip pharmacists of the ability to refuse to fill a prescription if, in their professional judgment, they believe it should not be filled.
Separately, Sen. Tyson has called for lawmakers to block government contact tracing for all infectious diseases, calling it "an invasion of privacy." Lawmakers have already made it voluntary to participate in COVID-19 contact tracing.
Jason Tidd is a statehouse reporter for the Topeka Capital-Journal. He can be reached by email at jtidd@gannett.com. Follow him on Twitter @Jason_Tidd.
This article originally appeared on Topeka Capital-Journal: Kansas Legislature starts work of 2022 session as COVID rages
