2021 Special Session Recap

Posted September 10, 2021

Pursuant to gubernatorial proclamation, the Kentucky General Assembly convened for a Special Session on Tuesday, September 7, to address the current COVID-19 situation.  After only three days and two gubernatorial vetoes, legislators passed four pandemic related bills and one economic development bill, making remarkably few changes to the bills that were introduced at the beginning of the Special Session. In doing so, the legislature ratified most of the Beshear Administration’s pandemic-related emergency executive orders but banned his ability to issue statewide mask mandates.

The following is a summary of legislation passed during the Special Session.

House Joint Resolution (HJR) 1 – Extending the Governor’s Emergency Orders

HJR1 limits the Governor’s emergency orders only to those that are approved in this resolution. However, rather than a wholesale scrapping of the Governor’s work product over the last 18 months, the legislature moved forward with most or all the orders with very few items eliminated. In many cases, extensions of orders are granted to secure current and future federal funding as it relates to the COVID virus. The volume of orders extended include eight (8) Executive Orders; two (2) Executive Cabinet Orders; twenty-three (23) actions issued by a cabinet, agency, or department; and thirty-two (32) actions issued by a board, commission, or corporation. Of note, within the orders ratified by the General Assembly is the express extension of the COVID liability protections for businesses and other entities included in 2021’s SB5 and the privileges of 2020’s SB150.

Most of these codified orders will remain in place until January 15, 2022. The General Assembly convenes in Regular Session on January 4, 2022, which gives lawmakers the ability to extend the orders past January 15 if needed.

Senate Bill (SB) 1 – Education Delivery & Local Flexibility of School Districts

This bill was the most controversial measure this session for both Republicans and Democrats. Many Republicans felt it didn’t go far enough in preventing school districts from implementing mask mandates, and for many Democrats it didn’t go far enough in requiring mask mandates in the schools. As a result, SB1 received the longest floor debates with opposition from members in both parties. In the end, however, the bill passed the Senate by a vote of 28-8 and it passed the House by a vote of 71-24. The Governor vetoed the bill around 10:30pm Thursday night, but both chambers voted to override his vetoes. The primary provisions of SB1 address topics such as masking, “test-to-stay,” and remote instruction.

Senate Bill (SB) 2 – COVID Health Care Response Policies

This legislation addresses several substantive COVID-19 related health care issues. Among them are visitation in long term care facilities, establishment of COVID antibody administration centers, COVID-19 testing, staffing allowances for paramedics in nursing homes and hospitals, development of public service announcements, as well as promotion and access to the COVID-19 vaccine. The only amendment made to this bill through the process was the addition of language clarifying that local health departments may not mandate a vaccine during a pandemic.

  • Masking — The bill strikes down two controversial emergency regulations, both of which required the statewide masking mandate. Those statewide mandates are rendered unenforceable and no substantially similar regulations may be promulgated until June 1, 2023. Decisions to require masks may be made at the local government and individual business level.
  • Long Term Care — During the early stages of the pandemic, residents of long-term care facilities, as well as family members and staff, struggled with restrictions on visitation. In response, this bill establishes the concept of an “essential compassionate care visitor” who shall be allowed to make visits to residents throughout the pandemic. The legislation defines a compassionate care visitor as someone who provided regular care and support to the patient prior to the pandemic and is important to the mental, physical, or social well-being of a resident in specific conditions.
  • Antibody Centers — The legislation directs the Cabinet for Health and Family Services to assist and support COVID-19 antibody administration centers. The Cabinet is also directed to develop protocols for appropriate patient eligibility criteria for receiving treatment, as well as protocols for the administration of treatments. It would require at least one qualified center in each of the 15 Area Development Districts across the Commonwealth.
  • Staffing Shortages — To address staffing shortages at hospitals and nursing homes, the bill puts in place a procedure to allow a paramedic employed by a hospital or nursing home to work as a licensed paramedic in any department of the hospital or nursing home and provide patient care services under the supervision of the medical director and upon provider orders.
  • Vaccination Campaign — Requires the Cabinet for Health and Family Services to work with universities, colleges, and health care organizations to develop public service announcements that provide information about the severe symptoms of COVID-19 and develop strategies to urge the public to get vaccinated.
  • Testing & Vaccine Access — Directs the Cabinet for Health and Family Services to assist with acquiring COVID-19 tests, developing a plan for statewide distribution of COVID-19 tests, and distribution of the tests to providers and other entities. It also expands access to the COVID-19 vaccination by increasing distribution of the vaccine to primary care providers, increasing the likelihood that patients will decide to receive the vaccine from a trusted source.
  • Redefines “COVID-19 Pandemic” — Redefines the pandemic as the national emergency declaration concerning COVID-19 as declared by the President of the United States and United States Department of Health and Human Services as opposed to a state of emergency declared by the Governor in response to COVID-19 through executive order.

The Governor ultimately vetoed the bill around 10:30pm Thursday night, but again both chambers voted to override his vetoes.

Senate Bill (SB) 5 – Incentives for Mega Economic Development Projects

The bill transfers $441.23 billion dollars from Kentucky’s $1.9 billion “Rainy Day” Budget Reserve Trust Fund to various state agencies to provide incentives in an effort to reel in mega-sized economic-development projects of more than $2 billion.

Senate Bill (SB) 3 – American Rescue Plan Act Appropriation for the COVID Response

The bill appropriates $69.26 million in Kentucky’s federal American Rescue Plan Act monies to the state Health & Family Services Cabinet for the following areas, but it is noted the funds can be used for “other critical health care needs.”

  • Covid-19 testing in most health care settings;
  • Assisting providers in establishing monoclonal antibody treatment and treatment centers, with a goal of having at least one treatment center in each of the state’s 15 area development districts; and
  • Provides for “Test and Stay” Covid testing at schools as an alternative to quarantining students.