Summary of Legislation 2011
This document contains a summary of legislation relevant to the policy priorities of the Kansas Academy of Family Physicians. Included are bills passed by the Legislature and signed by the Governor, as well as bills considered but not passed in 2011.
Legislation that Passed
HB 2182 – Omnibus Health Bill
HB 2182 contains a number of health-related policy pieces. These were originally contained in other bills, but were combined into one “mega” bill in a health conference committee. Following are pieces especially relevant to KAFP’s members.
Kansas Health Information Technology and Exchange Act
(HB 2182: New Sections 21-35)
The bill creates the Kansas Health Information Technology and Exchange Act, with the stated purpose of harmonizing state law with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rules with respect to individual access, safeguarding, and the use and disclosure of protected health information to facilitate the development and use of health information technology and health information exchange.
Among the applicable definitions in the Act would be the following:
• “Approved HIO” means a health information organization operating in the state which has been approved by the Corporation;
• “Covered entity” means a health care provider, a health care component of a hybrid entity, a health plan or a health care clearinghouse;
• “Health care provider” means a health care provider, as that term is defined by the HIPAA privacy rule, that furnishes health care to individuals in the state; and
• “Health information technology” means an information processing application using computer hardware and software for the storage, retrieval, use and disclosure of health information for communication, decision-making, quality, safety and efficiency of health care. Health information technology includes, but is not limited to: an electronic health record; a personal health record; health information exchange; electronic order entry; and electronic decision support.
Duties of Covered Entity
The bill requires a covered entity to:
• Provide an individual or the individual's personal representative with access to the individual's protected health information which is maintained by the covered entity in a designated record set in compliance with HIPAA privacy rules; and
• Implement and maintain appropriate administrative, technical and physical safeguards to protect the privacy of protected health information in a manner consistent with HIPAA rules.
Disclosure of Information
A covered entity would be prohibited from the use and disclosure of protected health information, with certain exceptions as follows:
• The use and disclosure is consistent with an authorization that satisfies HIPAA requirements;
• The use and authorization without authorization is permitted under applicable sections of the HIPAA privacy rules; or
• The use and disclosure is as required under 45 C.F.R. 164.502 of the HIPAA privacy rules.
Further, notwithstanding the above conditions, the Act would not permit the disclosure of protected health information by a covered entity to an approved health information organization (HIO) without an authorization which satisfies HIPAA, unless:
• A current participation agreement exists between the covered entity and the approved HIO;
• The disclosure to the approved HIO is done in a manner consistent with the approved HIO's established procedures;
• Prior to disclosure to the approved HIO, the covered entity must provide the individual (whose information is to be disclosed), or the individual's representative, with notice required under Section 32 of this act relating to participation agreements; and
• The covered entity restricts disclosure to the approved HIO of any protected health information concerning the individual that is the subject of a written request by the individual, or the personal representative, for reasonable restrictions on disclosure of all or any specified categories of the individual's protected health information, following the covered entity's receipt of the written request.
A covered entity that uses or discloses protected health information in compliance with this section of this act would be immune from any civil or criminal liability or adverse administrative action as a result or related to the disclosure.
The Act requires that, within six months of the effective date of the Act, the Secretary of Health and Environment (KDHE) develop and adopt by rules and regulations a standard authorization form for the use and disclosure of protected health information which meets HIPAA requirements for use and disclosure. A properly completed standard authorization form would be considered valid authorization for the disclosure requested.
Within six months of the effective date of the Act, the Secretary would be required to develop educational material designed to increase awareness and improve understanding of the newly created standard authorization form for the use and disclosure of protected health information.
Fees for Copies
Under the Act, the covered entity would be allowed to charge fees for furnishing copies of the protected health information record, with the fees established and updated by the Secretary of KDHE. No fees would be charged for disclosures between a covered entity and an approved HIO.
Conflicts with State Law
Any provision of state law in conflict with provisions of the Act would be superseded by the rules set out in the Act, except that the Act could not limit or restrict the application and effect of the Kansas statutes regarding peer review, risk management, or any statutory health care provider-patient privilege. The Act would not limit or restrict the ability of a state agency to require the disclosure of protected health information by any person or entity pursuant to law.
Public Health Purpose for Disclosure
The Act would allow a health care provider to disclose protected health information without authorization to any state agency for any public health purpose required by law.
Setting of Standards of HIO's
The Kansas Health Information Exchange, Inc. (Corporation) would establish and revise standards for the approval and operation of statewide and regional HIO's operating in the state as approved HIO's. Among these standards would be those needed for satisfaction of certification standards for health information exchanges promulgated by the federal government and adherence to nationally recognized standards for interoperability.
The Corporation would be required by the Act to establish and implement processes for the approval of an HIO, the re-approval of HIO's at appropriate intervals, and for the investigation of reported concerns and complaints regarding approved HIO's and measures to address the deficiencies.
Participation Agreement Requirements
The Corporation also would establish requirements for participation agreements. Among the requirements are procedures to allow a covered entity to disclose protected health information to an approved HIO, to allow the covered entity access to health information from the HIO, and to establish specifications of the written notice to the individual before disclosure of information. The written notice may be incorporated into the covered entity's notice of privacy practices required under the HIPAA privacy rule. The information required in the written notice is set out in this section of the Act.
HIO Receipt of Financial Support
The Act would require an HIO to be approved to be eligible for financial support from the state, or assistance or support from the state in securing any other source of funding.
HIO Immunity for Use or Disclosure
An approved HIO that uses or discloses protected health information in compliance with rules adopted by the Corporation would be immune from civil or criminal liability or any adverse administrative action resulting from such use or disclosure.
Uniform Electronic Transactions Act
The bill amends part of the Uniform Electronic Transactions Act to allow the definition of “transaction” to include actions or sets of actions occurring between two or more persons relating to the conduct of health care. With this amendment, transactions among entities and persons covered in the Act would fall under the Uniform Electronic Transactions Act.
The Act repeals statutes dealing with access to health care records, enforcement and rule and regulation authority.
Kansas Indoor Clean Air Act—Amendment
(HB 2182: Section 98)
The bill amends the Kansas Indoor Clean Air Act, which bans smoking in enclosed areas or public places while providing specific exemptions where smoking is allowed. The bill would add an exemption from the statewide smoking ban for any annual benefit cigar dinner or other cigar dinner of a substantially similar nature that is:
• Conducted for charitable purposes by a 501(c)(3) not-for -profit organization;
• Conducted no more than once per calendar year; and
• Has been held during the three previous years.
School Sports Injury Prevention Act
(HB 2182: New Section 17)
The bill creates the School Sports Injury Prevention Act, an act that would apply to any public or accredited private high school, middle school, or junior high school. The State Board of Education would be required to distribute information regarding the nature of risks of concussion and head injury.
Further, the new law requires that a student suffering, or suspected of having suffered, a concussion or head injury be immediately removed from a sport competition or practice. Specific conditions would have to be met before a student would be allowed to return to competition or practice.
The bill would require:
• The State Board of Education, in cooperation with the Kansas State High School Activities Association (KSHSAA), to gather information on the nature and risk of concussion and head injury, including the dangers of continuing to play or practice after suffering such an injury, and distribute the information to coaches, school athletes, and parents or guardians of school athletes;
• A concussion and head injury information release form be signed by the athlete and the athlete's parent or guardian and returned to the school prior to participation in any sport competition or practice session. A new signed release form would be required to be returned to the school each school year that a student participates in sports competitions and practice sessions;
• Immediate removal of a school athlete from a sport competition or practice session if a concussion or head injury has been suffered or is suspected;
• Evaluation by a health care provider (defined under the Act as a person licensed by the State Board of Healing Arts to practice medicine and surgery) of any school athlete who has been removed from a sport competition or practice session; and
• Written clearance by the health care provider performing the evaluation prior to return to competition or practice.
The bill would exempt a health care provider who provides a written clearance, and is not an employee of the school district, from liability for civil damages resulting from any act or omission in rendering care, except for acts or omissions which constitute gross negligence or willful or wanton misconduct.
Health Care Freedom Act
(HB 2182: New Section 7)
The bill enacts the Health Care Freedom Act, which would codify the individual right of Kansas residents to choose to purchase or refuse to purchase health insurance. The bill would state the government is prohibited from interfering with a resident's right to purchase or refuse to purchase the insurance.
The bill states it is a resident's right to enter into a private contract with health care providers for lawful health care services, and that the government is prohibited from interfering with this right. The bill would allow a person or employer to pay directly for the services and establish a prohibition against penalizing or fining for doing so. Likewise, the bill would allow a health care provider to accept direct payment for lawful health care services and establish a prohibition against penalizing or fining for doing so.
The bill prohibits any state agency or other state entity from requiring an agreement to participate in Medicare, Medicaid or any other insurance plan, health care system or health information technology or benefit exchange as a condition for the licensure, registration or certification of a health care provider. State agencies and other governmental entities would not be allowed to prohibit participation by a health care provider in a health information organization for either health information technology or benefit exchange based on whether the health care provider participates in Medicare, Medicaid or any other insurance plans or health care systems.
The bill provides that government is prohibited from enacting a law that would restrict any of the rights detailed in the Act or that would impose a form of punishment for exercising the rights. The bill also states none of the Act's provisions shall render a resident liable for any type of punishment or penalty as a result of the resident's failure to obtain health insurance coverage or participate in any health care system or plan.
Physical Therapy Practice Act
(HB 2182: Sections 19 and 20)
The bill amends the Physical Therapy Practice Act by expanding the allowable professional designations for physical therapists (PTs) and physical therapy assistants (PTAs), including the use of designations of educational degrees, certifications or credentials earned. The bill also would insert a definition for the phrase “recognized by the Board” and make technical amendments.
• Allows licensed PTs to designate or describe themselves as a “doctor of physical therapy,” and use similar abbreviations or words. In written or oral communication, when using the letters or term “Dr.” or “Doctor” in conjunction with a licensed PTs professional practice, the PT must identify oneself as a “physical therapist” or “doctor of physical therapy”;
• Allows licensed PTs to list or use in conjunction with their name any letters, words, abbreviations or other insignia to designate educational degrees, certifications or credentials recognized by the Board of Healing Arts (Board) which the PT has earned; and
• Prohibits the use of the term “doctor of physical therapy” by an individual not licensed as a PT or whose license has been suspended or revoked in any manner.
Regional Trauma Council & Advisory Committee on Trauma
(HB 2182: Sections 37-38)
The bill amends the current law to limit peer review protection to reviews or incidents involving trauma injury or trauma care. Any meeting, or part of any meeting, of the Advisory Committee on Trauma (ACT) or of a Regional Trauma Council (RTC) during which a review of incidents involving trauma injury or trauma care is discussed would be required to be conducted in a closed session. The ACT, any RTC, and officers of any of these committees, when acting in their official capacity in considering incidents of a trauma injury or trauma care, would be considered peer review committees and peer review officers.
The bill allows the ACT, an RTC or an officer thereof to advise, report to, and discuss activities, information, and findings of the committee related to incidents of trauma injury or trauma care with the Secretary of Health and Environment without waiving peer review privilege. The records and findings of these committees or officers would remain privileged. The provisions of this bill related to peer review and disclosure of information to the Secretary of Health and Environment related to incidents of trauma injury or trauma care would expire on July 1, 2016, unless reviewed and reenacted by the Legislature prior to that date. The bill also would make technical amendments to the current law.
A “peer review officer or committee” is defined in current law (KSA 2010 Supp. 65-4915) as:
• An individual employed, designated or appointed by, or a committee of or employed, designated or appointed by, a health care provider group and authorized to perform peer review; or
• A health care provider monitoring the delivery of health care at correctional institutions under the jurisdiction of the Secretary of Corrections.
Emergency Medical Services
(HB 2182: Sections 80-91)
The bill amends current law regarding emergency medical services provided by individuals regulated by the Board of Emergency Medical Services (BEMS). Changes made in 2010 law allowed Emergency Medical Services (EMS) attendants to transition from authorized activities to scope of practice, changed the names of some attendant levels to reflect national nomenclature, and allowed for enhancement of skills set to create the ability to provide a higher level of care.
Specifically, the bill makes changes to support the transition and to provide options for those required to meet the transition requirements. The bill would allow EMS attendants:
• The option to transition to a lower level of certification, if they so choose;
• Change the initiation date for transition from January 1, 2011, to December 31, 2011, to allow attendants complete certification cycles to accomplish the transition requirements;
• Allow transitioning upon application and completion of requirements, in addition to renewal times provided in current law; and
• Permit an emergency medical technician-intermediate (EMT-I), an advanced emergency medical technician (Advanced EMT), an emergency medical technician (EMT), an emergency medical technician-defibrillator (EMT-D) and an emergency medical responder (EMR) to provide medical services within their scope of practice when authorized by medical protocols or upon order when direct voice communication is maintained and monitored by specific authorized medical personnel.
EMS Board Membership
The bill would increase the Board membership from thirteen to fifteen members with the Governor appointing two physicians who are actively involved in emergency medical services, bringing the total number of physicians on the Board to three. The two new physician members would serve staggered terms which would begin after July 1, 2011.
EMS Board Authority
The rules and regulation authority of the Board would be expanded to include the adoption of rules and regulations for: fees for licensure, temporary licensure, and renewal of licensure for ambulances and rescue vehicles; requirements for a quality assurance and improvement program for ambulance services; and staffing requirements for attendant or medical services personnel for ambulance services and vehicles. Further, the bill states that nothing in the Act or current law authorizes the Board to specify who may or may not ride in a helicopter that is being used as an ambulance.
• The term “medical adviser” would change to “medical director” when referring to a physician.
• A “training officer” would mean a person who is certified under this Act to teach, coordinate or both, initial courses of instruction for first responders or emergency medical responders and continuing education as prescribed by the Board.
HB 2014 – State Appropriations for Fiscal Year 2012
Budget items of note:
• Board of Healing Arts—Added $100,000 from agency’s special revenue funds to contract with a part-time Medical Director (physician). In 2008, the Legislature passed legislation (HB 2620) allowing the BOHA to contract with a medical director to provide advice and assistance on: “Licensure matters including review, investigation and disposition of complaints; clinical and patient care matters; and the ethical conduct and professional practice of licensees…”
• Dept. of Health & Environment, Health Care Finance – Added language prohibiting the establishment of a preferred drug list for mental health medication.
Legislation that Did Not Pass
SB 88 – Naturopathic doctors, scope of practice expansion
SB 88 would expand the scope of practice for naturopathic doctors to include the injecting of prescription and non-prescription substances on the naturopathic formulary which are authorized for intramuscular or intravenous administration WITHOUT a written protocol with a physician (currently required by law), among others. KAFP opposed this bill.
SB 131/ HB 2098 – Methamphetamine precursors
These identical bills, one introduced in the Senate and one in the House, would have made certain drugs – those considered to be methamphetamine precursors, such as pseudoephedrine – Schedule III prescription drugs.
SB 141 – Immunization resources, KDHE
SB 141 would require KDHE to use CDC funding and federal grants for school influenza vaccine programs only. This would restrict KDHE’s ability to utilize immunization resources in the way that provides the most benefit statewide. This legislation was pushed by a pharmaceutical company that would derive great financial benefit from it. KAFP opposed this bill.
HB 2094 – Childhood immunizations, exemption
HB 2094 would provide a new legal exemption from childhood immunizations if a parent or guardian of a child signs a statement declining immunization for reasons of conscience or personal beliefs. Current law already provides for exemption based on religious beliefs. KAFP opposed this bill.
HB 2340 – Clean indoor air act, exemptions
HB 2340, as it was originally drafted, would have allowed smoking in any bar that sold lottery tickets. This would have provided an opening for virtually any bar in Kansas to allow smoking once again. The Clean Indoor Air Act, passed in 2010, prohibits this. The bill failed to be voted out of the Health & Human Services Committee. KAFP opposed the bill in its original form.
HB 2340, as amended by the House Health & Human Services Committee, was removed of its original contents and the contents of HB 2039 were inserted. The amended version would strengthen the Clean Indoor Air (CIA) Act by removing the law’s current exemption for smoking in state-owned casinos. The bill was passed by the House and is now assigned to the Senate Federal & State Affairs Committee for hearings in the 2012 legislative session. KAFP supported this legislation.
Credit: The Source of most bill information contained in this document is the Kansas Legislative Research Department.