Kansas 2023 2023-2024 Regular Session

Kansas Senate Bill SB391 Comm Sub / Analysis

                    SESSION OF 2024
SUPPLEMENTAL NOTE ON SENATE BILL NO. 391
As Amended by Senate Committee of the Whole
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 
recommendations and would remove authority to adopt 
____________________
*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 related rules and regulations. References to Secretary’s 
authority regarding orders would be removed throughout the 
bill and replaced with 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 an 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.
The bill would also allow an LHO to recommend 
treatment, isolation, or quarantine, but would remove the 
ability of an LHO to:
2- 391 ●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 allowing that an LHO 
could choose to submit recommendations if an outbreak of a 
highly contagious, deadly disease occurs related to the 
isolation or quarantine of individuals infected with a highly 
contagious, deadly disease to the Board of County 
Commissioners (Board). The chairperson of the Board or the 
vice-chairperson of the Board in the chairperson’s absence or 
disability could take action to isolate or quarantine such 
infected individuals upon receipt of the recommendation from 
the LHO.
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.  
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 
3- 391 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.
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.
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, 
generally stating 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 15 
private citizens.
4- 391 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, generally stating 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: 
●Remove the criminal penalty regarding a violation 
of the tuberculosis-related statues; 
●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 n LHO 
recommendation to the Board. 
Senate Committee of the Whole
The Senate Committee of the Whole (SCOW) amended 
the bill to remove the provisions related to a cause of action 
against an employer and return the bill to current law.
5- 391 SCOW also adopted an amendment that an LHO could 
choose to submit recommendations regarding isolation or 
quarantine of an infected individual and the Board could 
decide to act upon the recommendation to isolate or 
quarantine an infected individual.
Fiscal Information
According to the fiscal note prepared by the Division of 
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 
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. 
6- 391 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; local health officers; infectious or 
contagious diseases
7- 391