SESSION OF 2024
SUPPLEMENTAL NOTE ON SENATE BILL NO. 391
As Amended by Senate Committee on Public
Health and Welfare
Brief*
SB 391, as amended, would enact the Constitutional
Right to Health Freedom Act (Act). The Act would permit the
Secretary of Health and Environment (Secretary) to designate
a list of infectious or contagious diseases but would remove
the Secretary’s authority to enact rules and regulations
regarding infectious or contagious diseases. The Act would
only permit the Secretary to recommend ways to prevent the
spread and dissemination of diseases for both the general
public and for those who may professionally encounter a
disease. The Act would also amend statutory duties and the
authority of the Secretary, local health entities and local
health officers (LHOs) concerning infectious or contagious
diseases.
Constitutional Right to Health Freedom Act
The bill would enact the Constitutional Right to Health
Freedom Act (Act).
Secretary of Health and Environment Legal Authority
(Section 2)
The Act would allow the Secretary to recommend ways
to prevent the introduction and spread of infectious and
contagious diseases and would remove the authority of the
Secretary to take related actions. The bill would also allow the
Secretary to adopt the policies necessary to carry out such
____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org recommendations and would remove authority to adopt
related rules and regulations. References to Secretary’s
authority regarding orders would be removed throughout the
bill and replaced with a references to make
recommendations.
[Note: Current law permits the Secretary to adopt rules
and regulations necessary for public health and includes the
authority to apply to the District Court for an injunction to
compel compliance with such rules and regulations, while
also directing the District Court to issue such injunction after
cause is shown in a hearing.]
The bill would also specify that recommendations or
adopted policies may not conflict with any other law or
otherwise expand the Secretary’s authority.
Tuberculosis (Section 3)
The bill would make technical changes to current law
related to tuberculosis and remove the criminal penalty for
violation of the section.
County or Joint Board of Health or Local Health Officer
(Sections 5, 7, and 9)
The bill would amend law as it relates to the duties and
powers of the county or joint boards of health, and LHOs to
remove their ability to require either isolation or quarantine of
an infected individual.
The bill would remove the authority of a county or joint
board of health or a LHO to prohibit public gatherings when
necessary for the control of any infectious or contagious
disease, but would allow the entity or LHO to provide a
recommendation against public gatherings during an
outbreak.
2- 391 The bill would also allow a LHO to recommend
treatment, isolation, or quarantine, but would remove the
ability of a LHO to:
●Issue an order requiring an individual the LHO
believes to have been exposed to an infectious or
contagious disease to seek evaluation and
treatment;
●Remain in isolation or quarantine; or require an
adult, an emancipated minor, or minor with a
guardian to go into isolation or quarantine until no
longer contagious; or
●Request an order for a sheriff, deputy sheriff, or law
enforcement officer to assist in the execution or
enforcement of any such order by the LHO.
The bill would add a provision requiring a LHO to submit
recommendations related to the isolation or quarantine of
individuals to the Board of County Commissioners (Board) as
a proposed order. At the next regularly scheduled meeting or
a special meeting of the Board, the Board would be required
to review the proposed order and take any necessary action.
The proposed order of the LHO would become an order of
the Board if approved. If the Board is unable to meet, the
chairperson of the Board or the vice chairperson of the Board
in the chairperson’s absence or disability could approve the
order.
The bill would also make technical amendments to the
LHO appointment and clarify that the LHO could only use
medically necessary and reasonable measures to prevent the
spread of infectious, contagious, or communicable diseases.
Report of Infectious or Contagious Diseases by the Secretary
(Section 6)
The bill would permit the Secretary to designate a list of
infectious or contagious diseases.
3- 391 The bill would retain the Secretary’s ability to provide
testing regarding the disease and would amend current law to
require the Secretary specifically make recommendations for
preventing the introduction and spread of infectious or
contagious diseases within Kansas and for the protection of
individuals who provide medical or nursing services, clinical
or forensic laboratory services, emergency medical services
and firefighting, law enforcement and correctional services, or
who provide any other service, or individuals who receive any
such services or are in any other employment where the
individual may encounter occupational exposure to blood and
other potentially infectious materials. Authority to adopt rules
and regulations and issue orders to prevent the spread and
dissemination of such diseases would be revoked by the bill.
Public or Private Employers (Section 8)
A public or private employer would be prohibited from
discharging an employee when the employee is following the
LHO recommendation to isolate or quarantine or due to their
vaccination status. Conforming amendments would be made
to remove provisions relating to isolation or quarantine
orders.
The bill would also permit a civil action to be filed
against an employer by an employee who has been
discharged due to following a LHO isolation or quarantine
recommendation or due to their vaccination status. A
prevailing plaintiff would be allowed to recover actual
damages sustained, costs, and reasonable attorney fees.
Remote Learning (Section 10)
Under continuing law, a school board may permit up to
40 school term hours of remote learning for students due to a
disaster. The bill would amend the definition of “disaster” to
remove orders issued by the Secretary, in conformance with
the other provisions of the bill.
4- 391 Background
The bill was introduced by the Senate Committee on
Public Health and Welfare at the request of Senator Steffen.
Senate Committee on Public Health and Welfare
In the Senate Committee hearing on February 15, 2024,
Senator Steffen, two attorneys, one medical professional, and
seven private citizens provided proponent testimony stating
generally their personal experiences with various entities. The
proponents noted the limitations they felt during the COVID-
19 pandemic and, due to those experiences, why the change
to a constitutional model of public health is needed.
Written-only proponent testimony was received from an
attorney, a representative of We the People Kansas, and
fifteen private citizens.
Representatives of Kansas Action for Children, Kansas
Association of Local Health Departments, Kansas Chamber,
and the Kansas Department of Health and Environment
(KDHE) provided opponent testimony stating generally that
the bill would remove the Secretary and LHO’s authority to
act regarding infectious and contagious diseases, which
would put everyone at risk. They noted the work of public
health is all-encompassing, arduous, and necessary for
everyday life to continue and includes ensuring that hospitals
are practicing good infection control; children can play, learn,
grow, and stay healthy; employers are keeping employees
safe; and spread of new or old diseases is limited. It was also
noted, that enactment of the bill would undo hundreds of
years of public health work.
The Senate Committee amended the bill to do the
following:
●Remove the criminal penalty regarding a violation
of the tuberculosis related statues;
5- 391 ●Reinstate reporting the infectious or contagious
disease requirements for licensed social workers,
teachers, and school administrators;
●Require the Secretary to designate a list of
infectious or contagious diseases;
●Permit the Secretary to provide testing for
infectious or contagious diseases; and
●Allow a Board to adopt an order regarding isolation
or quarantine based upon a LHO recommendation
to the Board.
Fiscal Information
According to the fiscal note prepared by the Budget on
the bill, as introduced, KDHE indicates enactment of the bill
could increase expenditures due to an excess number of
cases of infectious or contagious diseases as the bill would
remove or limit the authority of the Secretary, as well as limit
the authority of LHOs, to control the spread of infectious or
contagious diseases.
KDHE states that the cost estimate for one measles
outbreak would be approximately $7.1 million for the
increased costs related to public health investigations. The
estimate is based on the agency’s review of available data as
well as internal analysis of the 2018 measles outbreak in
Johnson County. KDHE notes that elimination of isolation,
quarantine, and other measures to control the spread of
infectious and contagious diseases, would have a
compounding effect with case counts increasing each year.
KDHE notes that during a 2018/2019 measles outbreak
of 72 cases in Clark County, Washington, the public health
response to the outbreak cost approximately $2.3 million. The
investigators estimated that, if no isolation or quarantine
measures had been implemented, the outbreak would have
6- 391 resulted in an additional 1,296 cases and 72,198 contacts
thus increasing the cost of the public health response to over
$120.0 million. Measles is a vaccine preventable disease for
which cases are isolated and close contacts who are not
immune to the disease because of prior infection or
vaccination are quarantined.
KDHE reports that between 2001 and 2018, for 11
outbreaks, the median cost for a measles outbreak in the
United States is estimated to be $152,308 per outbreak,
$32,805 per case, and $223 per contact. In 2018, Kansas
experienced a large measles outbreak resulting in 22 cases
and 198 contacts. Using the same methodology cited above,
if no isolation or quarantine measures had been implemented
there would have been 396 cases and 3,564 contacts
increasing the cost to public health from an estimated
$419,584 to $7.6 million, an excess expenditure of over $7.1
million. The agency notes this is just one example of the
increased cost of a single outbreak of measles. KDHE
investigates between 32 to 108 outbreaks per year caused by
diseases that are reportable in Kansas or that have isolation
and quarantine regulations. The agency states that excess
cost to KDHE and to counties would likely be much higher
than this estimate.
The Office of Judicial Administration states enactment of
the bill would not have a significant fiscal effect on
expenditures of or revenues to the Judicial Branch. The
Kansas State Department of Education reports the bill would
not have a fiscal effect on the agency. Any fiscal effect
associated with the bill is not reflected in The FY 2025
Governor’s Budget Report.
The Kansas Association of Counties was unable to
estimate a fiscal effect for counties.
Public Health; health; healthcare; Constitutional Right to Health Freedom Act;
Secretary of Health and Environment; quarantine; isolation; local health officers;
infectious or contagious diseases
7- 391