Adoption of Minors: Statutory Overview

Background

Adoption establishes a legal parent-child relationship between a child and third persons and terminates existing rights and obligations between a child and his or her biological parents. In Kansas, the Adoption and Relinquishment Act, KSA 59-2111 et seq., governs adoptions, which include termination of parental rights and the transfer of legal custody to and creation of legal rights in the adoptive parents. Any adult or married couple may adopt.

KSA 59-2112 defines the different methods of adopting: “adult adoption,” “agency adoption,” “independent adoption,” and “stepparent adoption.” This article focuses on adoption of minors.

Agency adoptions are handled by a public or private entity lawfully authorized to place children for adoption, consent to the adoption, and care for children until they are adopted or reach majority.

Independent adoptions can occur directly with an adoptive family or through an intermediary such as a doctor, lawyer, or friend.

Stepparent adoptions involve the adoption of a minor child by the spouse of a biological parent, which requires termination of the parental rights of only one natural parent.

Jurisdiction and Venue

In Kansas, district courts may hear adoption petitions; however, the court must have jurisdiction. Generally, jurisdiction will be in Kansas if the birth mother and adoptive parents are all Kansas residents. Additionally, adoption proceedings are permitted to take place in a county where the Department for Children and Families or subcontracting agency has an office when the State or a department of the State is the adoption agency.

If the child is of Native American heritage, the Indian Child Welfare Act, 25 USC §§ 1901 to 1963, may apply. Further, the parties may need to comply with the Interstate Compact on the Placement of Children, KSA 38-1201 et seq., if the child is born in Kansas and is to be placed with adoptive parents in another state or is born out of the state and an agency will be involved in the adoption in Kansas.

Legislation enacted in 2018 (SB 284) clarified jurisdiction over adoption proceedings, including termination of parental rights proceedings, which are governed by the Uniform Child- custody Jurisdiction and Enforcement Act (UCCJEA) (KSA 23-37,101 et seq.). If, at the time the petition is filed, a proceeding concerning the custody or adoption of the minor is pending in another state exercising jurisdiction pursuant to the UCCJEA, Kansas may not exercise jurisdiction unless the other state’s court stays its proceeding. Similarly, if another state has issued a decree or order concerning custody, Kansas may not exercise jurisdiction unless the court of the state issuing the order does not have continuing jurisdiction, has declined to exercise jurisdiction, or does not have jurisdiction. For more information on the UCCJEA, see the Kansas Legislative Research Department (KLRD) memorandum “Child Custody and Visitation Procedures.”

Petition

KSA 59-2128 lists the required contents of a petition for adoption and requires the following items be filed with the petition:

  • Written consents to adoption;
  • Background information for the child’s biological parents;
  • Accounting for all consideration and disbursements; and
  • Any required affidavit concerning venue.

Consent

KSA 59-2114 requires consent to be in writing and acknowledged before a judge or officer authorized to take acknowledgments, such as a notary. If acknowledged before a judge, the judge must inform the consenting person of the legal consequences of the consent. The consent is final when executed “unless the consenting party, prior to final decree of adoption, alleges and proves by clear and convincing evidence that the consent was not freely and voluntarily given.” The type of consent depends on the kind of adoption sought, e.g., independent adoptions or stepparent adoptions. Consent may not be given more than six months prior to the date the petition of adoption is filed.

A birth mother cannot give consent until 12 hours after the birth of the child. A father may give consent any time after the birth of a child, or before the birth of the child if he has the advice of independent legal counsel as to the consequences prior to its execution.

Birth parents younger than 18 years old must receive the advice of independent legal counsel on the consequences of execution of a consent. Unless the minor birth parent is otherwise represented, the petitioner or child placement agency must pay for the cost of independent legal counsel. An attorney providing independent legal advice shall be present at the execution of the consent.

Independent Adoption

In an independent adoption, consent is required from:

  • The child’s living parents; or one of the parents if the other parent’s consent is unnecessary pursuant to Kansas law; or the child’s legal guardian if both parents are dead or their consents are unnecessary; or the court terminating parental rights under the Revised Code for the Care of Children (CINC Code), KSA 38-2201 et seq.;
  • If parental rights have not been terminated, any court having jurisdiction over the child pursuant to the CINC Code; and
  • Any child older than 14 sought to be adopted who is of sound intellect.

Stepparent Adoption

In a stepparent adoption, consent must be given by:

  • The living parents of a child;
  • If the other parent’s consent is unnecessary, one of the parents;
  • If parental rights have not been terminated, the judge of any court having jurisdiction over the child pursuant to the CINC Code; and
  • Any child older than 14 sought to be adopted who is of sound intellect.

Agency Adoption

For an agency adoption, once parents relinquish their child to an agency, consent must be given by the authorized representative of the agency and any child older than 14 sought to be adopted who is of sound intellect.

Intercountry Adoption

Additional requirements exist for intercountry adoptions. An intercountry adoption is the process of legally adopting a child from a foreign country. Kansas law provides that a foreign adoption decree will have the same force and effect as an adoption filed and finalized in Kansas:

  • If the person adopting is a Kansas resident;
  • The adoption was obtained pursuant to the laws of the foreign country;
  • The adoption is evidenced by proof of lawful admission into the United States; and
  • The foreign decree is filed and recorded with any county within the state.

The U.S. Department of State outlines procedures for intercountry adoptions.

Relinquishment

Relinquishment is the process of custody and parental rights being forfeited by the parent and assumed by another party. Relinquishment to an agency will be deemed sufficient if the relinquishment is in substantial compliance with the form created by the Kansas Judicial Council. Like consent, the relinquishment must be in writing and acknowledged by a notary or the court. (Again, the judge must inform the person of the legal consequences of the relinquishment.)

Similar to law governing consent, the law requires independent counsel for a minor relinquishing a child and provides the natural mother cannot relinquish the child until 12 hours after the birth. A father may relinquish any time after the birth of a child. If the agency accepts the relinquishment, the agency stands in loco parentis for the child and has the rights of a parent or legal guardian, including the power to place the child for adoption. When a parent relinquishes a child, all parental rights are terminated.

Termination of Parental Rights

When parents consent to an adoption, they agree to the termination of their parental rights. Parental rights are not terminated until the judge makes the final decree of adoption. A court can also terminate parental rights pursuant to a CINC proceeding if a parent does not sign a consent. For more information on CINC proceedings, see the KLRD memorandum “Foster Care.”

Additionally, KSA 59-2136 addresses circumstances in which the necessity of a parent’s consent or relinquishment is in question. While it frequently refers to fathers, it specifies, insofar as it is practicable, those provisions applicable to fathers also apply to mothers. Absent a father’s consent, his parental rights must be terminated.

If a father is unknown or his whereabouts are unknown, the court must make an effort to identify the father; appoint an attorney to represent him; and, if no person is identified as the father or possible father or if the father’s whereabouts are unknown, order publication notice of the hearing.

If identified, he must receive notice of the termination proceedings. If no father is identified or if, after receiving notice, he fails to appear or does not claim custodial rights, the court will terminate his parental rights. If a father is identified to the court and claims parental rights, the court must determine parentage pursuant to the Kansas Parentage Act, KSA 23-2201 et seq.

Further, if the father cannot employ an attorney, the court must appoint one for him. Thereafter, the court may terminate a parent’s rights and find the consent or relinquishment unnecessary if it determines by clear and convincing evidence:

  • The father abandoned or neglected the child after having knowledge of the child’s birth;
  • The father is unfit or incapable of giving consent;
  • The father has made no reasonable efforts to support or communicate with the child after having knowledge of this child’s birth;
  • The father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
  • The father abandoned the mother after having knowledge of the pregnancy;
  • The birth of the child was the result of the rape of the mother; or
  • The father has failed to assume the duties of a parent for two consecutive years immediately preceding the filing of the petition to adopt.

In determining whether to terminate parental rights, the court must consider all of the relevant surrounding circumstances and may disregard incidental visitations, contacts, communications, or contributions.

Assessments

Petitioners must obtain an assessment and a report of the assessment and have it filed to the court before the hearing on the petition. The assessment includes the results of the investigation of the adoptive parents, their home, and ability to care for the child. An assessment is performed by a person meeting statutory qualifications. Assessments are valid only if performed within a year of filing the petition for adoption.

Temporary Custody Order

In an independent or agency adoption, the court may issue a temporary custody order pending the hearing. If the court places the child in a home not licensed to provide such care, the home must first be assessed by a person or agency authorized to make assessments, or the court may “expeditiously” conduct an evidentiary hearing, including testimony by the petitioners, prior to making the placement.

Adoption Hearing and Final Decree

KSA 59-2133 requires the court to set the hearing within 60 days from the date of the filing of the adoption petition. Additionally, in independent and stepparent adoptions, it requires notice be given to parents or possible parents at least ten calendar days before the hearing, unless parental rights have been terminated or waived, and to any person who has physical custody of the child, unless waived. The court may designate others to be notified. In agency adoptions, notice must be served upon the consenting agency, the parents or possible parents, any relinquishing party, and any person who has physical custody of the child at least ten calendar days before the hearing, unless waived. After the hearing on the petition, the court considers the assessment and all evidence and, if the adoption is granted, makes a final decree of adoption.

Rights of an Adopted Child

An adopted child is entitled to the same personal and property rights as a birth child of the adoptive parents, who likewise are entitled to exercise all the rights of a birth parent and are subject to all the liabilities of that relationship. Both KSA 59-2118 and KSA 59-2136 allow children to inherit from their birth parents after parental rights have been terminated, although the birth parents’ rights to inherit is severed at that time.

Adoption Protection Act

The Adoption Protection Act (Act), codified at KSA 60-5322, was enacted in 2018 SB 284. The Act states, notwithstanding any other provision of state law and to the extent allowed by federal law, no child placement agency (CPA) shall be required to perform, assist, counsel, recommend, consent to, refer, or otherwise participate in placement of a child for foster care or adoption when the proposed placement of the child violates the CPA’s sincerely held religious beliefs. The bill also prohibits taking the following actions against a CPA, if taken solely because of the CPA’s objection to providing any of the services described above on the grounds of such religious beliefs:

  • State agency or political subdivision denial of a license, permit, or other authorization or denial of renewal, revocation, or suspension of the same;
  • Denial of participation in a Department for Children and Families (DCF) program in which CPAs are allowed to participate;
  • Denial of reimbursement for performing foster care placement or adoption services on behalf of an entity that has a contract with DCF as a case management contractor; or
  • Imposition of a civil fine or other adverse administrative action or any claim or cause of action under any state or local law.

The CPA’s sincerely held religious beliefs must be described in the CPA’s organizing documents, written policies, or such other written document approved by the CPA’s governing body. The provisions of the bill do not apply to an entity while the entity has a contract with DCF as a case management contractor.

by Elizabeth Cohn
Senior Research Analyst
785-296-4382

The Patient Protection and Affordable Health Care Act Rulings

Prior to 2017, the Patient Protection and Affordable Care Act (ACA) contained a provision requiring all individuals to purchase health insurance. This provision was referred to as the “individual mandate.” If an individual failed to purchase minimum health coverage, a penalty (the “shared responsibility payment”) would be collected from that person. The penalty was assessed and collected in the same manner as taxes and paid to the Internal Revenue Service for deposit in the U.S. Treasury.

Several court cases have considered whether the shared responsibility payment, and the ACA more broadly, are constitutional. This memorandum provides information on cases regarding the ACA heard before the U.S. Supreme Court in 2012, 2015, and 2021.

2012 U.S. Supreme Court Decision

The individual mandate to obtain health insurance under the ACA was held to be constitutional in June 2012 by the U.S. Supreme Court (National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012))1. In a 5-4 decision, the Court ruled that, although the mandate could not be imposed under the Commerce Clause or the Necessary and Proper Clause in the U.S. Constitution, it could be upheld as a tax2. There was confusion, however, as to whether the Court ruled the ACA was or was not a tax. This confusion centered around the Anti-Injunction Act (26 USC §7421).

Under the Anti-Injunction Act (AIA), “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”3 This law prevents individuals from suing to enjoin the collection of a tax. Thus, individuals may only sue for a refund after the taxes have been properly paid.

The issue before the Court in this case was whether the individual mandate and its shared responsibility payment barred the Court from considering the case. If the shared responsibility payment was considered a tax and thereby subject to the AIA, this suit would not be properly before the Court and, as such, the Court could not rule on the other aspects of the suit.

The Court noted that the ACA refers to the shared responsibility payment as a “penalty” and not a “tax.” The Court found this significant because there are other payments in the ACA that are called “taxes” as opposed to “penalties.” The Court concluded the distinction between terms was important as it considered the application of the AIA to the ACA. The AIA applies specifically to “taxes.” The Court concluded that had Congress wanted the AIA to apply to this provision of the ACA, Congress would have called the shared responsibility payment a “tax,” as it referred to other payments in the ACA, rather than as a “penalty.” The Court ruled this word choice demonstrated legislative intent, namely that Congress did not want this particular payment subject to the AIA and, as such, called it a penalty rather than a tax.

It should be noted, however, that the congressional determination of what to call the shared responsibility payment and the constitutional interpretation of what the shared responsibility payment actually functions as are two separate and distinct considerations.

This was born out of one of the major parts of the Court’s decision, in which the Court deemed the ACA constitutional as a tax. After the Court ruled that the individual mandate was unsustainable under the Commerce and Necessary and Proper clauses, it turned to whether the individual mandate could be salvaged outside of these clauses. Chief Justice Roberts concluded “…the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.”

It [was] therefore necessary to turn the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to ‘lay and collect Taxes.’ Art. I, §8, cl. 1…Because ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,’ Hooper v. California, 155 U.S. 648, 657, the question is whether it is ‘fairly possible’ to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U.S. 22, 62. (Syllabus, P.3)

2015 U.S Supreme Court Decision

Another case regarding the ACA, King v. Burwell (576 U.S. 473 (2015))4, came before the U.S. Supreme Court in 2015. With the requirement for individuals to obtain minimum essential coverage or pay a tax penalty, the ACA created an unaffordability exception for low-income individuals. To limit the number of people who would fall into this exception, the ACA provided for tax credits calculated based on an individual’s health plan. The ACA also requires each state to establish an “exchange” through which people could purchase health care coverage; if a state elected not to do so, the federal government would establish one through the Secretary of Health and Human Services. While the ACA’s language regarding the tax credits only referred to “an exchange established by the state,” the Internal Revenue Service created a regulation to also make the tax credits available to individuals enrolled through a federal exchange.

The state of Virginia declined to establish a state-run exchange; the federal government then established an exchange for the state. A group of Virginia residents, who without the tax credits would be in the unaffordability exception and exempt from purchasing health insurance, filed the lawsuit, arguing that the Internal Revenue Service regulations exceeded the agency’s statutory authority and violated the Administrative Procedure Act. The defendants motioned to dismiss the case, which was granted by the U.S. District Court for the Eastern District of Virginia and affirmed by the U.S. Court of Appeals for the Fourth Circuit. Certiorari was granted by the U.S. Supreme Court in November 2014.

In a 6-3 decision published in June 2015, the U.S. Supreme Court held that Congress did not delegate the authority to determine whether the tax credits are available through both state-created and federally created exchanges to the Internal Revenue Service, but the language of the statute indicates that Congress intended the tax credits to be available through both types of exchanges. In his opinion, Chief Justice John Roberts concluded that the plaintiff’s interpretation of the ACA would destabilize the individual insurance market in any state and hinder operations in states with a federal exchange, and it is implausible that Congress meant the ACA to operate in that manner5.

2021 U.S. Supreme Court Decision

In 2017, Congress passed the Tax Cuts and Jobs Act of 2017 (TCJA) which, among other things, amended the tax code by reducing the tax penalty for failing to comply with the individual mandate to zero. Two months later, a group of states led by Texas and two individuals filed a lawsuit asking a Texas federal district court to declare the ACA unconstitutional (Texas v. United States, 340 F. Supp 3d 579 (N.D. Tex. 2018))6. The plaintiffs argued that when Congress removed the tax penalty, it made the ACA’s individual mandate provision unconstitutional because it was no longer enforceable as a tax; this, they argued, would render the rest of the ACA unconstitutional because the remaining provisions relied on the mandate.

In 2018, the U.S. District Court for the Northern District of Texas held that the entire ACA was invalid, reasoning that the zeroing-out of the tax penalty renders the individual mandate unconstitutional and that the rest of the ACA is not severable from that provision. The ruling was put on hold pending appeal.

The U.S. Court of Appeals for the Fifth Circuit then held that the individual mandate was unconstitutional in a 2-1 decision. The Court of Appeals remanded the case back to the U.S. District Court for additional analysis on which provisions could remain without the mandate. Several states, led by California, sought U.S. Supreme Court review, filing a petition for a writ of certiorari in January 2020 that was granted in March 2020.

The lower court decisions were reversed and remanded by the U.S. Supreme Court in a 7-2 decision in June 2021. Justice Breyer concluded in his opinion that plaintiffs “do not have standing to challenge [the ACA’s] minimum essential coverage provision because they have not shown a past or future injury fairly traceable to defendants’ conduct enforcing the specific statutory provision they attack as unconstitutional7.”

  1. https://casetext.com/case/natl-fedn-of-indep-bus-v-sebelius-2 ↩︎
  2. https://supreme.justia.com/cases/federal/us/567/519/ ↩︎
  3. 26 USC §7421(a) ↩︎
  4. https://casetext.com/case/king-v-burwell-2 ↩︎
  5. https://supreme.justia.com/cases/federal/us/576/14-114/ ↩︎
  6. https://casetext.com/case/texas-v-united-states-28 ↩︎
  7. https://www.supremecourt.gov/opinions/20pdf/19-840_6jfm.pdf ↩︎

by Leighann Thone, PhD
Research Analyst
785-296-4181

Fentanyl Test Strips

Over the past decade, fentanyl that is made and distributed illegally has been increasingly found in the drug supply across the United States, contributing to significant increases in drug overdose deaths. According to the National Institute on Drug Abuse1, more than 106,000 persons in the United States died from drug-involved overdose in 2021, more than double the 52,404 deaths recorded in 2015. The U.S. Centers for Disease Control and Prevention (CDC)2 reports that more than 150 people die every day from overdoses related to synthetic opioids such as fentanyl. To address this issue, states introduced more than 600 bills during the 2023 legislative session and enacted at least 103 laws with fentanyl-related provisions3.

Because fentanyl is nearly undetectable when combined with other drugs, fentanyl test strips are one tool that can help identify the substance in other drugs. While fentanyl test strips have often been included in states’ criminal statutes on drug paraphernalia, many state legislatures have enacted exclusions in recent years to make fentanyl test strips legally available for distribution.

This memorandum provides more information on fentanyl and fentanyl test strips, including recent research, federal actions, and state legislation.

Fentanyl

According to the U.S. Drug Enforcement Administration (DEA), pharmaceutical fentanyl is a synthetic opioid medication developed for pain management and approved by the U.S. Food and Drug Administration for pain relief and anesthetic uses. First developed in 1959, it is approximately 100 times more potent than morphine and 50 times more potent than heroin.

From 2011 through 2018, fatal overdoses associated with abuse of clandestinely produced fentanyl and fentanyl analogues increased markedly. According to the National Forensic Laboratory Information System, reports on fentanyl (both pharmaceutical and clandestinely produced) increased from 5,400 in 2014 to more than 56,000 in 2017, as reported by federal, state, and local forensic laboratories in the United States.

In April 2022, the DEA sent a letter to federal, state, and local law enforcement officials warning of a nationwide spike in fentanyl-related mass-overdose events. Between October 2020 and October 2021, more than 105,000 Americans died of drug overdoses, and more than 66.0 percent of those deaths were related to fentanyl and other synthetic opioids.

Fentanyl Test Strips

Fentanyl test strips (FTS), a form of inexpensive drug testing technology originally developed for urinalysis, have been shown to be effective at detecting the presence of fentanyl in drug samples.

To use FTS, testers dissolve a small amount of the drug to be tested in water and dip the test strip into the liquid for 15 seconds. The test strip registers results within 5 minutes; usually, one line indicates fentanyl is present and two lines indicate a negative result. FTS are inexpensive, typically costing around $1 each for a single test strip. Some organizations provide free FTS to individuals through their harm reduction programs. For example, in October 2022, the Wisconsin Department of Health announced4 a partnership among tribal nation health clinics, county health and human services departments, county and municipal health departments, and other organizations to distribute FTS throughout the state at no cost to individuals.

FTS Research and Federal Actions to Address Fentanyl

A 2017 study conducted by the Drug Overdose Prevention and Education Project in San Francisco, with a report published in February 2018, concluded that FTS are a useful tool for harm reduction while also raising some considerations: FTS are not an effective tool for systematically documenting the presence of fentanyl in the drug supply, they can produce false positive results, and they do not provide any information about the percentages of fentanyl in drugs or detect the presence of any other drugs5.

A 2018 study conducted by researchers at Brown University, Boston Medical Center, and Johns Hopkins University in collaboration with law enforcement agencies found that FTS were accurate at detecting fentanyl in samples of street drugs and were unlikely to produce false negative results6.

In April 2021, the CDC and the Substance Abuse and Mental Health Services Administration announced that federal funding could be used to purchase rapid FTS in an effort to curb drug overdose deaths. The change applies to all federal grant programs, as long as the purchase of FTS is consistent with the purpose of the program7.

Included in a federal spending package signed by the president in late December 2022, the Mainstreaming Addiction Treatment Act removed the federal requirement for health care practitioners to have a waiver to prescribe medication for opioid use disorder, allowing practitioners to more easily prescribe buprenorphine8 and increasing access to treatment.

The Biden Administration also released its whole-of-government approach to address the trafficking of fentanyl in the United States in April 20239. In collaboration with international partners, the approach includes:

  • Strengthening intelligence sharing and communication at the federal, state, and local levels;
  • Disrupting operations by partnering with private sector businesses to intercept illegal substances and production materials;
  • Educating companies on how to protect themselves from illegal activities;
  • Creating tighter regulations for the financial sector to better identify and eliminate drug traffickers; and
  • Addressing loopholes related to chemical composition of fentanyl and making it a Schedule I drug under the Controlled Substances Act.

The Biden Administration is also increasing public health initiatives to expand the availability of opioid overdose reversal products such as Naloxone and increasing treatment and medication options for people in jails and prisons.

Legality and Decriminalization of FTS

As of August 2023, FTS are legal to possess in 30 states and the District of Columbia. In 2023, Arkansas (HB 1456), Florida (SB 164), Hawaii (SB 671), Illinois (HB 3203), Kansas (SB 174), Kentucky (HB 353), Mississippi (HB 722), New Hampshire (HB 287), South Carolina (HB 3503), South Dakota (HB 1041), and Utah (SB 86) enacted legislation to exempt FTS from their statutory definition of “drug paraphernalia.”

Several states have passed legislation in recent years affecting the legality of FTS:

  • Since 2018, 23 states have amended their statutory definition of “drug paraphernalia” or “drug related object” to exempt some or all types of drug testing equipment;
  • Four states — Nebraska, New York, South Carolina, and Wyoming — either never had a provision regarding testing equipment in statute or amended it prior to 2018;
  • Nine states, including Alabama, Georgia, Louisiana, Minnesota, Tennessee, and Wisconsin, limit allowed testing equipment to that which can detect fentanyl, fentanyl analogues, or other synthetic opioids;
  • Seven states, including Illinois, Oklahoma, and North Carolina, as well as the District of Columbia, include testing equipment in their statutory definition of “drug paraphernalia” but do not have a criminal penalty for using or possessing such equipment, at least for some individuals, such as those who work for syringe service programs; and
  • In 12 states where FTS are illegal, Good Samaritan fatal overdose prevention laws provide legal immunity from criminal penalty in certain situations.

Kansas Legislative Action on Fentanyl and FTS

During the 2023 session, the Kansas Legislature passed SB 174, which was signed into law by the Governor on May 11, 2023, and became effective July 1, 2023. Among other provisions regarding crimes, the bill makes the following changes related to fentanyl:

  • Amends the definition of “manufacture” to include placing a controlled substance into a pill or capsule form;
  • Amends the definition of “drug paraphernalia” to exclude tests used to detect the presence of fentanyl, ketamine, or gamma-hydroxybutyric acid (GHB);
  • Adds the definition of “fentanyl-related controlled substances” in the Kansas Criminal Code to include certain Schedule I and Schedule II controlled substances, as specified by the bill; and
  • Amends the crime of manufacturing a controlled substance to make the manufacturing of a fentanyl-related controlled substance a drug severity level 1 felony, increased from a drug severity level 2 felony.
  1. https://nida.nih.gov/research-topics/trends-statistics/overdose-death-rates ↩︎
  2. https://www.cdc.gov/stopoverdose/fentanyl/index.html ↩︎
  3. https://www.ncsl.org/state-legislatures-news/details/to-combat-overdose-crisis-states-bring-tough-new-laws-to-fight-against-fentanyl ↩︎
  4. https://www.dhs.wisconsin.gov/news/releases/101322.htm ↩︎
  5. https://harmreduction.org/issues/fentanyl/fentanyl-test-strip-pilot/ ↩︎
  6. https://www.brown.edu/news/2018-10-18/fentanyl ↩︎
  7. https://www.cdc.gov/media/releases/2021/p0407-Fentanyl-Test-Strips.html ↩︎
  8. Buprenorphine is the first medication to treat opioid use disorder that can be prescribed or dispensed in physician offices. It is a opioid partial agonist and produces effects such as euphoria or respiratory depression at low to moderate doses, with weaker effects than full opioid agonists like methadone. When taken as prescribed, buprenorphine diminishes withdrawal symptoms and physical dependency on opioids. ↩︎
  9. https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/11/fact-sheet-biden-harris-administration-announces-strengthened-approach-to-crack-down-on-illicit-fentanyl-supply-chains/ ↩︎

by Leighann Thone, PhD
Research Analyst
785-296-4181

Kansas Retail Sales Tax Exemptions

The Kansas retail sales tax is levied statewide at the rate of 6.5 percent on retail sales of tangible personal property and certain services, absent specific exemption. Specific exemptions may be found in KSA 79-3603 and KSA 79-3606. Additionally, certain services are not subject to the retail sales tax.

Statutory Exemptions

As of July 1, 2023, Kansas statutes include 92 subsections devoted to exemptions. These exemptions include conceptual exemptions, exemptions based on the definition of retail sales; legal exemptions, exemptions based on federal requirements; and public policy exemptions. The total amount of state revenue forgone due to sales tax exemptions in fiscal year (FY) 2022 was $8.066 billion.

Conceptual Exemptions

For FY 2022, the Kansas Department of Revenue (KDOR) estimated that conceptual exemptions resulted in a reduction of revenue in the amount of $5.362 billion. Of that amount, $3.765 billion can be attributed to the exemption found in KSA 79-3606(m), which exempts from taxation property that becomes an ingredient or component part of property or services produced or manufactured for ultimate sale at retail.

Legally Required Exemptions

Legally required exemptions resulted in reduction of revenue in the amount of $90.2 million in FY 2022, according to estimates by KDOR. This amount was primarily made up of $49.4 million lost to purchases by the federal government or its agencies and instrumentalities; and $19.57 million lost to purchases by railroads or public utilities for use in the movement of interstate commerce.

Government Purchase Exemptions

Exemptions for government purchases accounted for $1.417 billion in foregone revenue in FY 2022, the largest component of which was purchases by the State of Kansas or its political subdivisions.

Public Policy Exemptions

Public policy exemptions accounted for $1.191 billion in lost revenue according to KDOR’s FY 2022 estimates. Of this amount, $2.6 million was due to exemptions for charitable organizations named in statutes, and an additional $38.6 million was due to broadly applicable charitable, religious, or benevolent exemptions.

Service Exemptions

While there is no general application of the sales tax to services, of those services that are otherwise specifically taxable, statutorily provided exemptions resulted in $5.5 million of foregone revenue in FY 2022.

by Edward Penner
Principal Economist
785-296-3824

Kansas Emergency Management Act

History of the Kansas Emergency Management Act

The Kansas Emergency Management Act (KEMA), codified at KSA 48-920 et. seq., contains provisions governing the state’s response to disasters occurring within the state. This memorandum provides a brief history of KEMA, recent changes to the Act, and its application in the State’s response to the COVID-19 pandemic.

Civil Defense Acts of 1951 and 1955

The first modern statutes related to emergency management were enacted by the Civil Defense Act of 1951, and later amended by the Civil Defense Act of 1955. The 1951 enactment created a state civil defense advisory council and allowed each city and county to establish local councils of defense to carry out all state emergency functions. Notable provisions in the 1955 enactment included granting authority to cities to purchase accident insurance to protect volunteer civil defense workers (currently found in KSA 48-922) and the creation of a Civil Defense Division within the Office of the Adjutant General.

Kansas Emergency Preparedness Act (1975)

In 1975, the Kansas Emergency Preparedness Act (Act) was enacted. Under the Act, which would later become KEMA, the Civil Defense Division was abolished and replaced with the Division of Emergency Preparedness within the Office of the Adjutant General. The Act also established a state of disaster emergency declaration process via proclamation by the Governor (currently found in KSA 48-924). These proclamations are subject to ratification by the Legislature and extension by the State Finance Council.

1994 HB 3055

In 1994 amendments to KEMA, the Legislature abolished the Division of Emergency Preparedness and replaced it with the Division of Emergency Management (KDEM). Among other provisions, this legislation also created procedures to allow cities located in more than one county to designate a disaster agency, and created succession of duties provisions that would take effect when the Governor is unavailable.

2001 Senate Sub. for Sub. for HB 2468 and 2002 SB 395

In 2001, the Legislature expanded the Governor’s authority to issue a state of disaster emergency proclamation, to allow the Governor to issue such proclamations upon a finding or receiving notification that a quarantine or other regulations are necessary to prevent the spread of any contagious or infectious disease among domestic animals. The act also provided a different timeline and extension process for such emergencies. In 2002, the Legislature further expanded the Governor’s authority to allow proclamation of a state of disaster emergency to prevent the spread of contagious or infectious disease among plants, raw agricultural commodities, animal feed, or processed food.

2020 Senate Sub. for HB 2054

On May 21, 2020, the Legislature convened for its Sine Die Session and passed Senate Sub. for HB 2054, a response to the 2020 COVID-19 pandemic in Kansas providing certain relief related to health, welfare, property, and economic security during the public health emergency. The bill also created new provisions related to emergency management and amended several provisions in KEMA. The Governor vetoed Senate Sub. for HB 2054 on May 26, 2020.

2020 HB 2016 (Special Session)

The 2020 Special Session was convened June 3, 2020, pursuant to a proclamation issued by the Governor on May 26, 2020, following her veto of Senate Sub. for HB 2054. The Legislature passed, and the Governor approved, HB 2016 on June 4, 2020. The bill contained many modified provisions of the vetoed legislation. Among other provisions, the bill created and amended law related to state of disaster emergencies and KEMA.

New Sections of Law Created

The bill ratified, continued, and extended the state of disaster emergency related to COVID-19 through September 15, 2020, and prohibited the Governor from declaring a new state of disaster emergency concerning COVID-19 unless approved by an affirmative vote of at least six legislative members of the State Finance Council (Council).

The bill also provided that on and after September 15, 2020, the Governor could not order the closure or cessation of any business or commercial activity for more than 15 days during any state of disaster emergency declared under KEMA. At least 24 hours prior to the issuance of such order, the Governor was required to call a meeting of the Council to consult with the Council regarding the conditions necessitating the issuance of the order. After an order or orders have resulted in 15 days of such closures, the Governor could not order such closure, except upon specific application by the Governor to the Council and an affirmative vote of at least six legislative members of the Council. The Governor could order such closure, as approved by the Council, for specified periods not to exceed 30 days each. [Note: This section expired January 26, 2021.]

The bill created a section of law providing that the Governor may not issue an executive order pursuant to KEMA that has the effect of closing public or private schools unless affirmed by the Kansas State Board of Education.

Amendments to KEMA

The bill made several amendments to the statute governing the powers of the Governor during a state of disaster emergency (KSA 48-925), all of which expired January 26, 2021.

The bill also amended a statute governing states of local disaster emergency to allow any state of local disaster emergency declaration to be reviewed, amended, or revoked by the Board of County Commissioners or the governing body of the city, respectively, at a meeting of the governing body.

Finally, the bill amended the section governing violations of KEMA to change the penalty from a class A misdemeanor to a civil penalty of up to $2,500 per violation. The bill also created an enforcement mechanism through a civil action brought by the Attorney General or the county or district attorney in the county in which the violation took place. Further, the bill allows the Attorney General or any county or district attorney to bring an action to enjoin, or to obtain a restraining order, against a person who has violated, is violating, or is otherwise likely to violate KEMA.

2020 Special Committee on the Kansas Emergency Management Act

On June 18, 2020, the Legislative Coordinating Council approved the creation of a 13-member Special Committee to review KEMA, 2020 Special Session HB 2016, review oversight and emergency management approaches utilized in other states, and to make recommendations to the Legislature on any improvements or changes that should be considered.

The Special Committee met on August 24-26, 2020, and September 22-24, 2020. At the August meeting, the Special Committee heard presentations from the Office of Revisor of Statutes, a presentation on legislative oversight of emergency management in other states by representatives of the National Conference of State Legislatures, and a briefing on the operations of the Wolf Creek Generating Station by a representative of Evergy. In addition, the Special Committee heard testimony from the Adjutant General, the Attorney General, the Chairperson of the House Committee on K-12 Education Budget, the Commissioner of Education, the Kansas State Fire Marshal, and the Secretary of Health and Environment. Representatives of Kansas Association of Counties, Kansas Chamber of Commerce, Kansas Department of Agriculture, Kansas Medical Society, League of Kansas Municipalities, and the National Federation of Independent Businesses also testified before the committee, offering their thoughts and suggestions on KEMA and HB 2016.

At the September meetings, the Special Committee heard presentations from the Office of Revisor of Statutes, the Kansas Legislative Research Department, and the Legislative Division of Post Audit. The Governor’s Chief of Staff, the Special Counsel to the Chief Justice, the Jefferson County Attorney, the Sedgwick County District Attorney, and the city manager of Dodge City testified before the Special Committee, offering thoughts and suggestions on KEMA and changes made in HB 2016. Representatives of Americans for Prosperity, the Johnson County Sheriff’s Office, Kansas Advocates for Better Care, the Kansas Association of Chiefs of Police, the Kansas Emergency Management Association, the Kansas Health Care Association, the Kansas Hospital Association, the Kansas Peace Officers Association, and the Kansas Sheriffs Association also testified at this meeting.

Following testimony at the September meeting, the Special Committee discussed a list of 37 topics raised by conferees and members during the Special Committee’s 6 days of meetings. While the Special Committee did not propose any specific legislation for the 2021 Legislative Session, it recommended several items be studied further by the appropriate standing committees of the 2021 Legislature. Those items are included in the Special Committee’s Interim Report to the 2021 Legislature.

by Natalie Nelson
Principal Research Analyst
785-296-4418

Kansas Creative Arts Industries Commission

The Kansas Creative Arts Industries Commission (KCAIC), housed within the Department of Commerce, is charged with growing the creative industries sector of the Kansas economy. The KCAIC also provides assistance for film crews, including location scouting, serving as a facilitator, and lending support during production.

History and Structure

The Legislature passed and the Governor signed into law 2012 Senate Sub. for HB 2454, which created the KCAIC within the Department of Commerce. The bill merged the powers, functions, and duties of the Kansas Arts Commission and the Kansas Film Commission and made the KCAIC responsible for measuring, promoting, supporting, and expanding the creative industries in Kansas. Both the Kansas Arts Commission and the Kansas Film Commission were abolished.

The KCAIC is governed by an 11-member Commission with members who serve for terms of three years. Members may be reappointed at the end of their first term; however, members may not serve more than two terms and are not eligible for reappointment following the end of the member’s second term of office.

The members of the commission include:

  • Two members appointed by the President of the Senate;
  • One member appointed by the Minority Leader of the Senate;
  • Two members appointed by the Speaker of the House of Representatives;
  • One member appointed by the Minority Leader of the House of Representatives; and
  • Five members appointed by the Governor.

Additionally, all members appointed by the Governor have terms of three years, except that in the initial appointment three of the appointments were for two-year terms and two of the appointments were for three-year terms. The Governor designated the term for which each of the members first appointed would serve. The Commission is required to convene annually by the 20th day of the legislative session and elect a chairperson and vice-chairperson from among its members. Under the provisions of the statute governing the KCAIC, the Commission is required to meet no fewer than four times during each calendar year, and the Commission must meet on the call of the chair, with the meetings taking place in various locations across Kansas.

The statutes governing the KCAIC indicate the Commission should be “broadly representative” of the major fields of the arts and related creative industries. Members shall be appointed from among private citizens who are widely known for having competence and experience in connection with the arts and related creative industries or business leaders with an interest in promoting the arts. Additionally, the members should have knowledge of community and state interests.

Programs

The KCAIC has expanded from two programs to eleven programs over the previous decade. The programs include:

  • Artist INC is a training program for individual artists in all disciplines to develop their careers and entrepreneur skills by connecting them to tools, resources, and opportunities;
  • Arts Education engages learners through music, dance, poetry, visual art, and drama to understand and express their learning of curriculum concepts through the arts. Educators from any Kansas schools are invited to participate in workshops;
  • Arts in Medicine is a partnership with Emporia State University (ESU) to allow associations, agencies, and organizations that provide medical services to Kansans to work with art therapy faculty and graduate students at ESU to build a program that meets the needs of their populations, such as group art therapy, individual art therapy for patients receiving specific treatment, art-based workshops, and arts-based programs at special events;
  • Creative Aging Kansans allows seniors to be served by leveraging the arts to encourage sound health, independence, dignity, purpose, and joy;
  • Critical Writing Initiative is designed to increase the capacity and quality of arts writing. The four-month program is composed of two parts – a workshop component and a field-experience component. Example of workshop topics include: film and television writing, writing about the visual arts, profile writing, and food writing;
  • Ethnic Markets Initiative is a pilot program to support equitable food systems through culture sharing and the arts. The program partners with five businesses in the Lawrence area by providing economic development training and marketing assistance;
  • Field Arts Forum is a pilot program designed to provide an experiential learning opportunity for emerging practitioners in the fields of New Rural Arts, Art & Ecology, Social and Environmental Art, and Creative Placemaking by visiting numerous sites of social, ecological, and cultural significance across rural Kansas. This is a partnership with Pratt Community College;
  • Indigenous Arts Initiative supports a rotating series of art labs that provide Indigenous artists an opportunity to hone creative skills, expand professional networks, and gain leadership experience through collaborative, mentor-based programming at the University of Kansas (KU). Workshops and public events are offered during the annual KU Indigenous Cultures Festival;
  • Mural Making Guide was designed to assist communities in the creation of new murals and in providing technical assistance for new large-scale public art projects;
  • New Dance Lab is a partnership between KCAIC and Johnson County Community College to allow a select group of dance professionals the opportunity to participate in one-on-one and small group professional development experiences;
  • New Play Lab at the annual William Inge Theatre Festival is a partnership between KCAIC and the William Inge Center for the Arts at Independence Community College. The selected playwrights receive:
    • A professional staged reading of their play with an audience;
    • Feedback on their play facilitated by national theatre professionals;
    • Additional playwriting classes and seminars exclusive to New Play Lab participants, including a masterclass with William Inge Theatre Festival guest playwrights;
    • Opportunities to meet with theatre professionals from across the country;
    • VIP passes to all festival events; and
    • Meal vouchers to enjoy restaurants in Independence, Kansas;
  • Poet Laureate of Kansas promotes the arts as a public resource for all Kansans. The selected poet laureate presents readings and discussions about poetry in communities across the state;
  • Poetry Out Loud is a national arts education program that encourages the study of poetry by offering free, educational materials, and dynamic recitation competition for high school students across the country. This program helps students master public speaking skills, build self-confidence, and learn about literary history and contemporary life. Students also have the opportunity to compete for an expenses paid trip to Washington, D.C., and over $50,000 in scholarships and prizes; and
  • Tallgrass Artist Residency is a program centered in Matfield Green, Kansas. The residency works with local organizations to house artists and host events throughout the Flint Hills region.

Funding

State Funds. When the KCAIC was created in 2012, the Governor recommended $200,000, all from the Economic Development Initiatives Fund (EDIF). The 2012 Legislature added an additional $500,000, all from the EDIF, and 3.0 FTE positions for the operation of the KCAIC. Since its original funding allocation, EDIF funding for KCAIC has fluctuated. The Commission received federal funding to continue certain projects during this time.

The 2023 Legislature approved adding an additional $500,000 to expand workforce development and entrepreneurship in the creative sector that are currently restricted under National Endowment for the Arts (NEA) regulations. Actual EDIF spending for the KCAIC is shown below.

Federal Funds. The NEA determines whether the KACIC complies with eligibility requirements each year. NEA funding received by the State of Kansas is shown below.

FYEDIF FundingNEA Funding
2014$595,419$559,721
2015$362,261$413,230
2016$190,428$17,256
2017$194,420$607,647
2018$188,611$620,218
2019$113,373$610,987
2020$576,479$1,083,400
2021$503,270$1,410,145
2022$499,816$413,230
2023$509,425$559,721

by Chardae Caine
Senior Fiscal Analyst
785-296-3183

Kansas Income Tax Reform 2012-2017

This memorandum summarizes changes made to Kansas income tax from 2012 through 2017. Additionally, it covers tax credits impacted by those change, as well as the fiscal effects to state tax receipts.

Legislative Income Tax Reform

Beginning in 2012, the Kansas Legislature passed legislation enacting major changes to the Kansas individual income tax. Virtually all areas of the determination of income tax liability were affected by the reforms, including additions and subtractions to adjusted gross income, standard and itemized deductions, tax rates and brackets, tax credits, and tax liability exclusion. Major legislation was passed in 2012, 2013, 2015, and 2017, with additional legislation passed in 2014 relating to individual income tax reform.

Addition and Subtraction Modifications

In 2012, legislation specifically exempted certain nonwage business income by providing a modification to federal adjusted gross income that subtracted the taxpayer’s income reported on lines 12, 17, and 18 of federal Form 1040. This included business income; income from rents, royalties, partnerships, S corporations, and trusts; and farm income. In addition to this subtraction modification, the legislation included a modification requiring taxpayers to add their losses attributable to those categories back to their federal adjusted gross income in determining their adjusted gross income for Kansas income tax purposes. In 2015, legislation modified the subtraction modification by requiring taxpayers to include “guaranteed payments” in their determination of income. “Guaranteed payments” is a federally defined term for a specific type of business income.

The 2017 Legislature eliminated the addition and subtraction modifications in their entirety, largely returning this area of the Kansas individual income tax to its condition prior to 2012.

Standard Deduction and Itemized Deductions

In 2012, legislation increased the standard deduction for single head-of-household filers from $4,500 to $9,000 and for married taxpayers filing jointly from $6,000 to $9,000. These amounts were reduced to $7,500 for married taxpayers filing jointly and $6,000 for single head-of-household filers by 2013 legislation.

Itemized deductions were unaffected by 2012 legislation, but 2013 legislation eliminated the itemized deduction for certain gambling losses and provided for a series of “haircuts” to all other itemized deductions—excluding charitable contributions—that reduced those deductions by 30.0 percent beginning in tax year 2013 and increasing to 50.0 percent by tax year 2017.

In 2015, legislation further reduced itemized deductions by eliminating all itemized deductions other than charitable contributions, mortgage interest, and property taxes beginning in tax year 2015. Mortgage interest and property taxes were reduced to 50.0 percent of their federal amount effective for tax year 2015, and charitable contributions remained at the full federal amount.

In 2017, legislation reinstated the itemized deduction for medical expenses at 50.0 percent of the federal amount beginning in tax year 2018 and increased the amount for medical expenses, property taxes, and mortgage interest to 75.0 percent of the federal level in 2019 and to 100.0 percent of the federal level in 2020.

Tax Rates and Brackets

In 2012, legislation collapsed the three-bracket structure for individual income tax Kansas had used since 1992 into a two-bracket system and applied rates of 3.0 percent and 4.9 percent. Previous rates had been 3.5 percent, 6.25 percent, and 6.45 percent. In 2013, legislation provided a schedule of future rate reductions to lower the rates to 2.3 percent and 3.9 percent in tax year 2018, and then provided a formula that could—under certain circumstances—provide additional rate reductions in the future based on year-over-year growth of specified State General Fund tax receipts. In 2015, legislation altered the rate reduction schedule to provide that the rates would be reduced to 2.6 percent and 4.6 percent before a modified version of the rate reduction formula would go into effect in tax year 2021.

In 2017, legislation reinstituted a three-bracket individual income tax structure with tax rates set at 2.9 percent, 4.9 percent, and 5.2 percent for tax year 2017 and at 3.1 percent, 5.25 percent, and 5.7 percent for tax year 2018 and all tax years thereafter. The statutory future rate reduction formula was repealed by 2017 legislation.

Income Tax Credits

In 2012, legislation repealed or limited numerous income tax credits. In 2014, legislation reinstituted tax credits for adoption expenses and disability access expenses. In 2017, legislation reinstituted the child and dependent care tax credit through a three-year phase beginning in tax year 2018.

Low-Income Tax Exclusion

In 2015, legislation created a provision that eliminated any positive income tax liability for single filers with $5,000 or less of taxable income and for married taxpayers filing jointly with $12,500 or less of taxable income beginning in tax year 2016. In 2017, legislation changed the thresholds for this exclusion to $2,500 for single filers and $5,000 for married filers, effective tax year 2018.

Fiscal Information

When fully implemented, tax legislation passed in 2012 and 2013 had the effect of reducing individual income tax receipts, while tax legislation passed in 2015 and 2017 had the effect of increasing individual income tax receipts.

According to the Kansas Department of Revenue, the estimated combined fiscal effect of major tax legislation enacted during those four sessions on individual income tax was a reduction in receipts of $358.1 million for fiscal year 2018.

by Matthew Willis
Senior Research Analyst
785-296-4443

Mortgage Registration Tax and Statutory Fees for Recording Documents with County Registers of Deeds

This memorandum provides information on the mortgage registration tax and statutory fees for recording documents with county registers of deeds. The mortgage registration tax was repealed in 2019.

Mortgage Registration Tax Phase-out and Fee Increase Phase-in

Prior to 2019, Kansas law provided for a tax on mortgage registration to be paid to county registers of deeds. The tax was phased out beginning with calendar year (CY) 2015 through CY 2019. Statutory fees charged for documents filed with county registers of deeds were increased from CY 2015 through CY 2018 to compensate for the decrease from the phase-out of the mortgage registration tax.

The mortgage registration tax, which had been levied at the rate of 0.26 percent of the principal debt or obligation secured by mortgages, was reduced to 0.2 percent for all mortgages received and filed for record during CY 2015; 0.15 percent during CY 2016; 0.1 percent during CY 2017; and 0.05 percent during CY 2018. The tax was repealed altogether beginning in CY 2019. Of the revenue generated by the mortgage registration tax, 25/26ths had been retained by the counties.

Statutory recording fees were increased as follows:



Prior Law
CY 2015
CY 2016
CY 2017
CY 2018 & thereafter

















First page of deeds, mortgages, other instruments
$6.00
$8.00
$11.00
$14.00
$17.00
Each additional page of such documents

2.00

4.00

7.00

10.00

13.00
Recording town plats per page

20.00

22.00

25.00

28.00

31.00
Release/assignment of mortgages

5.00

7.00

10.00

13.00

16.00
Certifying instruments on record

1.00

3.00

6.00

9.00

12.00
Signature acknowledgment

0.50

2.50

5.50

8.50

11.50
IRS tax lien filing notices

5.00

7.00

10.00

13.00

16.00
IRS/KDOR lien release notices

5.00

7.00

10.00

13.00

16.00
Liens for materials/services per KSA 58-201

5.00

7.00

10.00

13.00

16.00

The above fees were capped beginning in CY 2015, such that a maximum of $125 may be levied for recording mortgages of $75,000 or less involving single-family principal residences.

Heritage Trust Fund

The Heritage Trust Fund had previously been the recipient of 1/26th of the revenue generated by the mortgage registration tax. The Heritage Trust Fund receives no revenue from the mortgage registration tax as of calendar year 2015. Rather, an additional fee of $1 is levied and credited to the Heritage Trust Fund on the first and all subsequent pages of any deeds, mortgages, and other instruments and on release or assignments of mortgages. An annual statutory cap of $100,000 on Heritage Trust Fund mortgage registration tax distributions from any given county was replaced with a new cap of $30,000 from any county relative to the new $1 fee.

County Clerk and County Treasurer Technology Funds

An existing separate fee of $2 per page was increased to $3 per page beginning in calendar year 2015, and receipts from this additional $1 are split into two separate $0.50 portions and deposited into two funds created in 2015 in each county – the County Clerk Technology Fund and the County Treasurer Technology Fund.

By Eric Adell.

Reimbursement Under the Medicaid Home and Community Based Services Waivers

Overview of Home and Community Based Services Waivers

The Medicaid Home and Community Based Services (HCBS) waiver program is authorized under Section 1915(c) of the Social Security Act. Through the HCBS waiver program, a Medicaid beneficiary can receive a wide range of services designed to allow the individual to live in their home or community and avoid institutionalized care.

Services under the HCBS waiver program may be a combination of standard medical services and non-medical services. Standard services may include, but are not limited to:

  • Case management (support and service coordination);
  • In-home care (home health aide and personal care attendants); and
  • Habilitation services (both day and residential).

Currently, 47 states, including Kansas and the District of Columbia, have HCBS waivers approved with the Centers for Medicare and Medicaid Services (CMS). The only states that do not have an approved 1915(c) waiver with CMS are Arizona, Rhode Island, and Vermont.

In Kansas, the HCBS waiver programs are overseen by the Kansas Department for Aging and Disability Services (KDADS) in conjunction with the state Medicaid agency, the Kansas Department for Health and Environment (KDHE). The State has contracted with three Managed Care Organizations to deliver Medicaid services to eligible individuals, including individuals on HCBS waivers.

HCBS Waivers in Kansas

Currently, KanCare allows the State to administer all its HCBS waiver services through managed care. There are seven separate 1915(c) HCBS waivers: Autism (AU), Frail Elderly (FE), Intellectual and Developmental Disability (I/DD), Physical Disability (PD), Serious Emotional Disturbance (SED), Technology Assisted (TA), and Brain Injury (BI). The State is in the process of developing an additional waiver to serve individuals with I/DD.

To participate in a HCBS waiver, the individual requiring services must be financially and functionally eligible for Medicaid. Individuals are financially eligible at no additional cost to the individual if their income is less than 300 percent of the Federal Benefit Rate, which is the maximum amount payable under Supplemental Security Income. In 2023, this amount is $2,742 per spouse per month. If an individual’s income is above this amount, the individual must share in the cost of care. The cost sharing amount depends on the individual and is called the “client obligation.” The client obligation is paid directly by the client to a medical provider, not to the State of Kansas nor to a KanCare Managed Care Organization (MCO).

Individuals on the HCBS waivers receive services through individual providers that are contracted through MCOs. Those providers are then reimbursed through KanCare for providing those services. Rates vary by service and by waiver. This can result in different reimbursement rates for the same service if it is offered on multiple waivers. Due to rising costs to provide these services, there have been efforts to increase the rates at which HCBS services are reimbursed. Additional information for each of the seven HCBS waivers follows.

Autism (AU)

The AU waiver provides services to children who have been diagnosed with an Autism Spectrum Disorder. Children are eligible for services from the time of diagnosis until their sixth birthday. Autism services are limited to three years; however, an additional year may be submitted for approval.

The AU waiver offers the following services:

  • Family Adjustment Counseling – This service offers counseling services from a licensed mental health provider to help the family address the child’s diagnosis and daily needs;
  • Peer-to-peer Parent Support Training – This service assists family members in acquiring the knowledge and skills to address the child’s specific needs and to develop the family’s problem-solving skills, coping mechanisms, and strategies for the child’s symptom and behavior management; and
  • Respite Care – This service offers temporary direct care and supervision of the child to provide relief to families and caregivers.

Additionally, the Medicaid state plan offers the following services which were previously part of the AU waiver:

  • Consultative Clinical and Therapeutic Services – This service focuses on improving behavioral challenges related to the child’s diagnosis. The provider teaches skills based on the child and family’s strengths and needs, develops the individual behavior plan/plan of care (IBP/POC), coordinates services, provides training and technical assistance, and monitors the child’s progress within the program;
  • Intensive Individual Supports – This service assists in acquiring, retaining, improving, and generalizing skills to successfully function in the home and community; and
  • Interpersonal Communication Therapy (ICT) – This service aims to improve social communication symptoms related to the child’s diagnosis, including the development of conversation, unplanned communication, and verbal and nonverbal communication skills.

Frail Elderly (FE)

The FE waiver provides home and community based services to Kansas seniors as an alternative to nursing facility care. The waiver serves those individuals 65 and older who meet the Medicaid nursing facility threshold score and are financially eligible for Medicaid.

The FE waiver offers the following 12 services, which vary in reimbursement rates and frequency of utilization, though an individual may not want or need to use all services offered:

  • Adult Day Care – This service provides activities meeting the needs and interests of the person to help them maintain physical and social function, including basic nursing and daily supervision or physical assistance with eating, mobility, bathing, and dressing;
  • Assistive Technology – This service provides adaptive equipment, assistive technology, or home modifications to enhance an individual’s independence or abilities;
  • Personal Care Services – This service provides supervision or physical assistance with instrumental activities of daily living, health maintenance activities, and in some cases, socialization or recreation;
  • Financial Management Services – This service provides administrative and payroll services for individuals who choose to self-direct some or all of their services;
  • Home Telehealth – This service is a remote monitoring system that includes education, counseling, and nursing supervision. It allows the person to manage their health and recognize issues before it declines. The system is monitored by a nurse who is alerted if survey responses or vital sign measurements show a need for follow-up;
  • Medication Reminder – This service provides a scheduled reminder to the person when it is time to take their medications. This service may include a medication dispenser which stores and dispenses medication at the appropriate time;
  • Nursing Evaluation Visit – This service offers an evaluation completed by a nurse to see which personal care services worker may best meet the needs and wants of the person;
  • Oral Health Services – This service offers dental services based on the person’s level of need, including dental procedures and denture-related costs;
  • Personal Emergency Response – This service provides electronic devices with portable buttons worn by the person to provide access to assistance or emergency help at any time of day;
  • Wellness Monitoring – This service allows regularly scheduled nursing visits to check a person’s health status and to monitor for changes in health and wellbeing;
  • Comprehensive Support – This service offers one-on-one support and observation to supervise and assist with incidental care as needed to meet the person’s health and welfare needs, not including hands-on nursing; and
  • Enhanced Care Services – This service provides immediate supervision or physical assistance with tasks such as toileting, transferring, mobility, medication reminders, and contact with a medical professional in the event of an emergency while the participant is sleeping.

Intellectual and Developmental Disability (I/DD)

The I/DD waiver provides services to individuals five years of age and older who meet the definition of intellectual disability, have a developmental disability, or are eligible for care in an intermediate care facility for individuals with intellectual disabilities. Those with a developmental disability may be eligible if their disability was present before age 22 and they have a substantial limitation in 3 areas of life functioning.

The I/DD waiver offers the following 13 services, which vary in reimbursement rates and frequency of utilization, though an individual may not want or need to use all services offered:

  • Assistive Services – This service provides adaptive equipment, assistive technology, or home modifications to enhance an individual’s independence or abilities;
  • Adult Day Supports – This service offers out-of-home activities to help adults who are no longer eligible for school services to maintain or increase abilities, productivity, independence, integration, and community participation;
  • Financial Management Services – This service provides administrative and payroll services for individuals who choose to self-direct some or all of their services;
  • Medical Alert – This service provides an electronic device that alerts a medical professional in the event an individual’s medical condition has become critical;
  • Overnight Respite – This service provides temporary direct care and supervision of the individual to provide relief to families and caregivers. This service may be self-directed for individuals on the the I/DD waiver;
  • Personal Care Services – This service provides supervision or physical assistance with instrumental activities of daily living, health maintenance activities, and in some cases socialization or recreation. This service may be self-directed or agency-directed for individuals on the the I/DD waiver;
  • Residential Supports for Adults – This service provides assistance and support in completing activities of daily living and the social and adaptive skills to people who live in a residential setting and do not live with a family member;
  • Residential Supports for Children – This service provides placement for children ages 5 to 21 in a licensed foster care home to avoid placement in an institutional or other congregate setting when the child cannot remain in the family home;
  • Enhanced Care Services – This service provides immediate supervision or physical assistance with tasks such as toileting, transferring, mobility, medication reminders, and contact with a medical professional in the event of an emergency while the participant is sleeping. This service may be self-directed for the I/DD waiver;
  • Specialized Medical Care – This service provides long-term registered nurse or licensed practical nurse support for individuals who are medically fragile and technology-dependent;
  • Supported Employment – This service provides job support to people who work in a competitive and integrated setting; and
  • Wellness Monitoring – This service allows regularly scheduled nursing visits to check a person’s health status and to monitor for changes in health and wellbeing.

Additionally, an individual determined by a Community Developmental Disability Organization to be eligible for I/DD services is eligible for Targeted Case Management services to assist the individual in gaining access to medical, social, educational, and other services through assessment, support plan development, referral, and monitoring. If the individual is not eligible for KanCare, there may be a fee for this service.

Physical Disability (PD)

The PD waiver provides services to individuals 16 to 64 years of age who meet the criteria for nursing facility placement due to having a PD, have been determined disabled by the Social Security Administration, need assistance to perform activities of daily living, and are Medicaid-eligible.

The PD waiver offers the following seven services, which vary in reimbursement rates and frequency of utilization, though an individual may not want or need to use all services offered:

  • Assistive Services – This service provides adaptive equipment, assistive technology, or home modifications to enhance an individual’s independence or abilities;
  • Financial Management Services – This service provides administrative and payroll services for individuals who choose to self-direct some or all of their services;
  • Home-delivered Meal Service – This service offers one or two prepared meals to be delivered to provide adequate nutrition and regular meals;
  • Medication Reminder – This service provides a scheduled reminder to the person when it is time to take their medications. This service may include a medication dispenser which stores and dispenses medication at the appropriate time;
  • Personal Emergency Response System – This service provides electronic devices with portable buttons worn by the individual to alert emergency personnel at any time of day;
  • Personal Care Services – This service provides supervision or physical assistance with instrumental activities of daily living and activities of daily living, health maintenance activities, and in some cases, socialization or recreation; and
  • Enhanced Care Services – This service provides immediate supervision or physical assistance with tasks such as toileting, transferring, mobility, medication reminders, and contact with a medical professional in the event of an emergency while the participant is sleeping.

Serious Emotional Disturbance (SED)

The SED waiver provides services to individuals ages 4 to 18 who have been diagnosed with a mental health condition that substantially disrupts the individual’s ability to function socially, academically, or emotionally. The waiver is designed to divert the individual from psychiatric hospitalization to intensive home and community based supportive services. There may be exceptions for children younger than 4 and an extension of services up to age 22, if an individual had initially applied before age 19.

The SED waiver offers the following six services, which vary in reimbursement rates and frequency of utilization, though an individual may not want or need to use all services offered:

  • Parent Support and Training – This service is provided to family members of a child with SED to increase their ability to provide a safe and supportive environment for the child;
  • Independent Living / Skills Building – This service aims to help young adults learn and retain skills necessary to obtain and maintain employment, housing, education, and community life as they transition to adulthood;
  • Short Term Respite Care – This service provides temporary direct care and supervision to a child with SED to provide relief to families and caregivers;
  • Wraparound Facilitation – This service is provided in addition to targeted case management services to address the unique needs of a participant living in the community. This service is used to bring the MCO, participant, family, and community members together to discuss and to complete an individualized plan of care;
  • Professional Resource Family Care – This service provides short-term and intensive supports to a person in a surrogate family setting; and
  • Personal Care Services – This service enables the participant to accomplish tasks or engage in activities that they would normally do themselves if they did not have a mental illness. This service offers direct support, supervision, and cuing to encourage the participant to perform the task. Assistance often relates to performance of activities for daily living and instrumental activities for daily living.

Additionally, an individual determined to be functionally eligible for the SED waiver is eligible for Targeted Case Management services to assist the individual in gaining access to medical, social, educational, and other services through assessment, support plan development, referral, and monitoring. If the individual is not eligible for KanCare, there may be a fee for the service.

Technology Assisted (TA)

The TA waiver provides services to people through the age of 21 who require substantial and ongoing daily care by a nurse comparable to the level of care provided in a hospital.

The TA waiver offers the following seven services, which vary in reimbursement rates and frequency of utilization, though an individual may not want or need to use all services offered:

  • Health Maintenance Monitoring – This service offers regularly scheduled nursing visits to check the individual’s health status and to monitor for changes in health and wellbeing;
  • Home Modification – This service offers modification or adaption to a person’s home through tangible equipment or hardware;
  • Financial Management Services – This service offers administrative and payroll services for individuals who choose to self-direct some or all of their services;
  • Intermittent Intensive Medical Care – This service offers nursing services to individuals using personal care services to meet specific skilled nursing care needs;
  • Personal Care Services – This service provides supervision or physical assistance with instrumental activities of daily living and activities of daily living, health maintenance activities, and in some cases socialization or recreation. This is the only TA waiver service that may be self-directed;
  • Medical Respite – This service provides the beneficiary’s family with short, specified periods of relief from caring for the individual; and
  • Specialized Medical Care – This service provides long-term registered nursing or licensed practical nurse support for people who are medically fragile and technology-dependent. If the individual’s parent is a registered nurse and meets specific criteria, they may be eligible to be reimbursed for providing this service.

Brain Injury (BI)

The Brain Injury (BI) Waiver is a habilitative/rehabilitation and independent living program with an emphasis on the development of new independent living skills and/or relearning of lost independent living skills due to an acquired or traumatic brain injury.

The BI waiver offers the following nine services, which vary in reimbursement rates and frequency of utilization, though an individual may not want or need to use all services offered:

  • Assistive Services – This service provides adaptive equipment, assistive technology, or home modifications to enhance an individual’s independence or abilities;
  • Financial Management Services – This service offers administrative and payroll services for individuals who choose to self-direct some or all of their services;
  • Home-delivered Meal Service – This service offers one or two prepared meals to be delivered to provide adequate nutrition and regular meals;
  • Medication Reminder – This service provides a scheduled reminder to the person when it is time to take their medications. This service may include a medication dispenser which stores and dispenses medication at the appropriate time;
  • Personal Emergency Response System – This service provides electronic devices with portable buttons worn by the individual to alert emergency personnel at any time of day;
  • Personal Care Services – This service provides supervision or physical assistance with instrumental activities of daily living and activities of daily living, health maintenance activities, and in some cases socialization or recreation;
  • Rehabilitation Therapies – This service assists with the restoration of physical and mental functioning and includes behavior therapy, occupational therapy, physical therapy, speech-language therapy, and cognitive rehabilitation;
  • Enhanced Care Services – This service provides immediate supervision or physical assistance with tasks such as toileting, transferring, mobility, medication reminders, and contact with a medical professional in the event of an emergency while the participant is sleeping; and
  • Transitional Living Skills – This service offers training exercises in which individuals with a BI practice skills in real-life situations in their homes and communities. Trainings are designed to prevent or minimize chronic disabilities while restoring the individual to an optimal level of physical, cognitive, and behavioral functioning within the context of the individual.

Recent Changes in Provider Reimbursement Rates

Providers of waiver services are reimbursed by the waiver participant’s MCO. Based on funding appropriated by the Legislature, KDHE and KDADS set floor rates that are the lowest rate the MCO may reimburse providers; however, a MCO may individually choose to reimburse providers at a higher rate based on a variety of factors.

Over a number of years, the Legislature has made the following efforts to increase reimbursement rates for HCBS waiver services.

2019 Legislative Session

The 2019 Legislature passed a budget with the following adjustments to funding for the HCBS waiver programs:

  • The addition of $10.1 million, including $4.2 million SGF, to provide a 1.5 percent increase in the reimbursement rates for providers of all HCBS waiver services beginning in FY 2020; and
  • The addition of language expanding the Traumatic Brain Injury waiver program to include individuals with acquired brain injuries.

2020 Legislative Session

The 2020 Legislature passed a budget with the following adjustments to funding for the HCBS waiver programs:

  • The addition of $22.1 million, including $9.0 million SGF, to provide a 5.0 percent increase to reimbursement rates for I/DD waiver services beginning in FY 2021; and
  • The addition of $6.4 million, including $2.7 million SGF, to increase the rate for the Specialized Medical Care (T1000) rate for the TA waiver from $31.55 per hour to $37.00 per hour, beginning FY 2021.

2020 Interim Allotment

On June 25, 2020, the Governor released an allotment plan due to projected shortfalls in state revenue resulting from the COVID-19 pandemic. The plan resulted in the following adjustments to funding for the HCBS waiver programs:

  • The deletion of $22.1 million, including $9.0 million SGF, to provide a 5.0 percent increase to reimbursement rates for I/DD waiver services beginning FY 2021; and
  • The deletion of $6.4 million, including $2.7 million SGF, to increase the rate for the T1000 rate for the TA waiver from $31.55 per hour to $37.00 per hour beginning in FY 2021.

As a result of removing these funds from the budget, the reimbursement rates remained at the FY 2020 rates for FY 2021.

2021 Legislative Session

The 2021 Legislature passed a budget with the following adjustments to funding for the HCBS waiver programs:

  • The addition of $5.5 million, including $2.0 million SGF, in FY 2021 and $31.0 million, including $12.4 million SGF, in FY 2022 to provide an increase in reimbursement rates for providers of I/DD waiver services. This funded a 5.0 percent increase for the final four months of FY 2021 and an additional 2.0 percent increase for FY 2022;
  • The addition of $16.1 million, including $6.2 million SGF, to increase the reimbursement rate for the T1000 rate from $32.55 per hour to $43.00 per hour for the TA waiver; and
  • The addition of $9.6 million, including $4.3 million SGF, to increase the Protected Income Limit for HCBS participants from 15.0 percent to 300.0 percent of the federal Supplemental Security Income for FY 2022.

2022 Legislative Session

The 2022 Legislature passed a budget with the following adjustments to funding for the HCBS waiver programs:

  • The addition of $23.2 million, including $9.3 million SGF, to standardize the personal care services rates for the FE, I/DD, PD, SED, TA, and BI waivers and to further increase the standard rate by 2.0 percent beginning in FY 2023;
  • The addition of $1.8 million, including $716,493 SGF, to increase the cap on assistive services for all waivers. Previously, the lifetime cap was $7,500. The additional funds increased the lifetime limit to $10,000 beginning in FY 2023;
  • The addition of $122.2 million, including $48.9 million SGF, to provide a 25.0 percent increase to the reimbursement rates for I/DD waiver services beginning in FY 2023. This increase excluded the T1000 rate, which was increased separately;
  • The addition of $7.7 million, including $3.1 million SGF, to increase the reimbursement rate for the T1000 code from $43.00 per hour to $47.00 per hour for the I/DD and TA waivers beginning in FY 2023. This standardized the rate across both waivers and further increased the standardized rate; and
  • The addition of $11.8 million, including $4.7 million SGF, to provide a 10.0 percent increase to the reimbursement rates for FE waiver services beginning in FY 2023.

2023 Legislative Session

The 2023 Legislature passed a budget with the following adjustments to funding for the HCBS waiver programs:

  • The addition of $17.7 million, including $7.1 million SGF, to standardize Personal Care, Enhanced Care, Medication Reminder and Financial Management services on the BI, PD, AU and TA waivers to match increased rates approved by the 2022 Legislature for the FE waiver, beginning in FY 2024;
  • The addition of $13.0 million, including $5.2 million SGF, to provide a 10.0 percent increase to reimbursement rates for the FE waiver beginning in FY 2024;
  • The addition of $11.2 million, including $4.5 million SGF, to increase the Targeted Case Management rate for individuals with I/DD from $43.24 per hour to $75.00 per hour beginning in FY 2024; and
  • The addition of language requiring the agency to submit to the Centers for Medicare and Medicaid Services an application for a community support waiver for individuals with I/DD for FY 2024.

by Dayton LaMunyon
Fiscal Analyst
785-296-4405

Kansas Department of Health and Environment Laboratory Construction

2021 Legislative Session Action

Section 61(b) of enacted 2021 SB 159 directs the Kansas Department of Health and Environment (KDHE) to issue a request for proposal (RFP) in FY 2022 to construct or renovate a building and equip a KDHE laboratory located within an 8-mile radius of the Capitol Complex in Topeka. The bill directs the Joint Committee on State Building Construction (Committee) to review these proposals and make recommendations to the State Finance Council concerning the laboratory.

Section 61(b) of enacted 2021 SB 159 also authorizes the issuance of bonds for capital improvement projects, not to exceed $65.0 million, for the KDHE laboratory.

2021 Committee Activity

At the September 2021 Committee meeting, representatives of KDHE presented eight site proposals for a KDHE laboratory. Three of the proposed sites were state-owned properties and five sites were submitted by private entities during the RFP process.

State-owned Site Proposals

Three of the proposals were originally submitted to the Committee in January 2020. The proposed construction projects were on three state-owned properties in Topeka, with a total project cost of $64.3 million estimated in March 2021. These sites were:

  • Lot 4 in downtown Topeka, near the Docking State Office Building;
  • A site on the grounds of the Kansas Neurological Institute (KNI); and
  • A site adjacent to the current KDHE laboratory at Forbes Field.

RFP Process Site Proposals

Pursuant to 2021 SB 159, the Department of Administration, in collaboration with KDHE, issued an RFP open from August 2, 2021, to August 31, 2021, seeking building sites within an 8-mile radius of the Capitol Complex capable of supporting a 100,000 gross-square-foot laboratory facility with suitable utilities services, vehicular access, and on-site parking. Land purchase and lease proposals were allowable, as well as options to renovate an existing building.

The Director of the KDHE laboratories presented the proposals and agency evaluations determining viability for each site. The proposals submitted included the following commercial properties:

  • The former Payless ShoeSource corporate headquarters at 3231 Southeast 6th Avenue. This location did not include lease payment amounts due to the proposer’s pending acquisition of the property via commercial sale and would likely necessitate sharing the space with other tenants;
  • Mostly vacant lots near downtown Topeka at 11th Street and Quincy Street, which would entail annual lease payments of $65,000 for the site and $20,000 for parking;
  • Vacant lots in east Topeka between 21st Street and Cyprus Drive, west of Cedarwood Drive, which would entail an annual lease payment of $25,000;
  • Partially vacant lots at the Kanza Business and Technology Park at Kanza Drive and Macvicar Avenue, which would entail a land purchase of $1.0 million; and
  • A building in downtown Topeka at 220 Southeast 6th Street, which did not meet the minimum space requirements and entailed an annual lease payment of $1.9 million.

The Director of the KDHE laboratories stated that commercial lease agreements would necessitate contract negotiations, and land purchases would require legislative action. Further, use of these commercial properties would require engineering and soil composition assessments, which could delay the start of construction. Due to this, KDHE recommended consideration of the three state-owned properties.

On October 11, 2021, the Committee received testimony from the Department of Administration estimating that up to 50.0 percent of the total project cost could be eligible for moneys from the State Fiscal Recovery Fund provided through the federal American Rescue Plan Act (ARPA) of 2021.

2021 Committee Recommendation

On October 11, 2021, the Committee recommended construction of a KDHE laboratory at the state-owned KNI site.

On December 17, 2021, the State Finance Council approved a resolution that included construction of the KDHE laboratory at Lot 4 in downtown Topeka, near the Docking State Office Building, rather than the KNI site. The Secretary of Administration noted the KNI site is under consideration for other state projects.

2022 Legislative Session Action

Authorized by the language in Section 61(b) of 2021 SB 159, the Division of the Budget transferred $32.5 million in COVID-19 federal relief funds from the Office of the Governor to KDHE in FY 2022 for construction of the KDHE lab.

Section 143 of enacted 2022 House Sub. for Sub. for SB 267 appropriated $32.5 million from the State General Fund (SGF) for the construction of the KDHE laboratory. The bill also requires that if any additional COVID-19 federal relief funds provided for discretionary purposes are available to be used to finance the construction of the laboratory, the Director of the Budget shall lapse that same amount of additional funds from the $32.5 million SGF appropriated by the bill.

2022 Committee Updates

On September 7, 2022, a representative of the Department of Administration presented floor plans for the KDHE lab to the Committee. The building design includes three above-ground floors and a parking lot.

On October 28, 2022, the Legislative Budget Committee received testimony from the Department of Administration stating that construction of the lab is anticipated to begin in December 2022 or January 2023.

2023 Updates

The 2023 Legislature approved a FY 2024 budget for KDHE that includes $30.9 million, all federal ARPA funds, for construction of the KDHE laboratory. On August 22, 2023, a representative of the Department of Administration presented an update on the construction to the Legislative Budget Committee. The representative stated the steel had been fully placed and the construction crew was continuing with concrete pours. He stated the agency is in the process of planning the move from the current location and estimating the associated expenses for an anticipated occupancy date of December 2024.

by Megan Leopold, PhD
Fiscal Analyst
785-296-4419