‘A bad situation’: Nursing home compromise between Kelly, Republicans faces pushback

A deal by Democratic Gov. Laura Kelly and top Republicans over her emergency authority during the pandemic faced bipartisan skepticism Wednesday because the agreement provides nursing homes – where dozens have died from the coronavirus in Kansas – limited legal protections.

Kelly and GOP leaders spent days trying to reach a compromise over how vulnerable nursing homes should be to COVID-19 lawsuits. But the solution they reached, giving the facilities robust defenses in court but no immunity from suits, has sparked a bipartisan backlash.

“Basically, you have a get-out-of-jail free card that says if these conditions are met, you don’t have to pay a COVID claim,” House Speaker Pro Tem Blaine Finch told a gathering of House Republicans.

The Legislature opened a special session Wednesday with legislative leaders aiming for swift passage of the deal, which places additional checks on Kelly’s power to close businesses and schools – changes that Republicans highly value. In return, Republicans agreed to limit the legal shield provided to nursing homes and other businesses.

“I can tell you at this point, nobody likes it,” Tim Graham, Kelly’s director of governmental affairs, told Senate Democrats during a caucus meeting. “Our allies don’t like this language … nursing homes hate this language.”

The House passed the bill 107-12 just after 9 p.m. on Wednesday. Lawmakers -- often along party lines -- rejected a series of Democratic amendments that would have expanded Medicaid, reinstated prohibitions of evictions and foreclosures, and lowered the sales tax rate on food.

The Senate is expected to debate the bill on Thursday.

Over the past two weeks, Kelly and Republicans have clashed over the extent of her emergency powers during the pandemic. Last month, the Legislature passed a bill limiting her power to impose statewide restrictions to fight the spread of COVID-19. The governor vetoed it and called the special session.

By Wednesday, however, the conflict over the emergency powers had largely faded. Republicans and Democrats involved in negotiations since last Thursday over the compromise package all said Kelly and GOP lawmakers reached agreement quickly over her authority.

Legal liability – particularly for nursing homes – proved to be the thorny issue, with Kelly and Republicans not reaching an accord until earlier this week.

The coronavirus spreads easily in nursing homes, where elderly and often sick individuals live in close quarters. In Kansas, 34 virus clusters have been linked to long-term care facilities, accounting for 731 cases and 117 deaths – more than half of all COVID-19 fatalities in the state.

As legislative leaders briefed rank-and-file members on the deal Wednesday, frustrations spilled into public view from both sides of the liability debate. Lawmakers unsuccessfully attempted to strip the liability provisions from the bill on the House floor in a 38-81 vote.

“This creates a bad situation for rural America,” Rep. Jim Kelly, an Independence Republican, said.

Rep. Kelly said nursing homes in rural areas could do everything right but still get hit with a lawsuit under the proposal. Even if a facility wins, it might have to spend a lot of money defending itself.

“I have a real fear going forward, I guess, when it’s my time to go they’ll be no place in my hometown for me to go to,” he said.

Republican leaders attempted to sell their members on the compromise by insisting the governor would have vetoed any additional protections for nursing homes. Ryckman said the liability concern was probably one of the most “back and forth” issues during discussions with the governor’s office.

“Here’s where we moved backwards a bit, but something is better than nothing,” Ryckman said.

Sen. Tom Holland, a Baldwin City Democrat, said voting on limiting liability creates hazards and denies individuals their opportunity to chance to go to court.

“This to me is just the bovine crap that always goes on,” Holland said.

Gov. Kelly herself offered only tepid praise for the deal. In a statement, she said she disagrees with parts of the bill but didn’t elaborate.

“I will support this bipartisan bill that was created with input from Republicans, Democrats, and stakeholders that I believe will provide the framework our state needs as we continue on the path to recovery,” Kelly said.

Legislative leaders advanced the bill without formal hearings – a sharp departure from normal practice, which is to allow the public to testify on bills. Still, they want to avoid last month’s spectacle, when the Legislature passed a bill that attempted to restrict Kelly’s powers after a marathon 24-hour session only to have Kelly denounce and veto it days later.

“We’ll have a signature on this bill,” House Speaker Ron Ryckman, an Olathe Republican, said.

Like the first bill Kelly vetoed, the legislation allows counties to set pandemic-related rules that are less strict than any statewide standards imposed by Kelly. And the governor would be prohibited from closing or restricting businesses for more than a couple weeks without approval from legislative leaders.

The new bill goes further in restricting the governor in one key area, however. Kelly – the first governor during the pandemic to close schools for the entirety of the academic year – would be prohibited from closing schools again without approval from the state board of education.

The old bill would have given the Legislative Coordinating Council – a group of top lawmakers – the power to block Kelly from spending hundreds of millions in federal relief aid. The new bill shifts the oversight role to the State Finance Council, which is also made up of legislative leaders but is chaired by Kelly, giving her a greater role in the process.

The bill also contains a new section providing privacy protections to individuals who are contacted by health officials tracing the spread of the disease. Contract tracers would be prohibited from revealing the identify of an infected person to their contacts.

The Star’s Laura Bauer contributed reporting

This story was originally published June 3, 2020 at 4:52 PM.