As Amended by House Committee
         

         
As Amended by Senate Committee
         

          Session of 1997
         
         
SENATE BILL No. 242
          
By Committee on Public Health and Welfare
         
2-10
         
12             AN ACT concerning the state board of healing arts; concerning res-
13             piratory therapy and physical therapy; relating to licensure; amend-
14             ing K.S.A. 39-952, 40-12a01, 65-4921, 65-5502, 65-5503, 65-5504,
15             65-5505, 65-5506, 65-5507, 65-5508, 65-5509, 65-5510, 65-5511, 65-
16             5512, and 65-5514 and 65-5516 K.S.A. 1996 Supp. 40-3103, 65-
17             4116, 65-4915, 74-4916 and 74-4960a 40-2,111, 40-12a01, 60-
18             513d, 60-2609, 65-2901, 65-2904, 65-2905, 65-2907, 65-2908,
19             65-2909, 65-2910, 65-2912, 65-2914, 65-2918, 65-4116, 65-4921,
20             65-5502, 65-5503, 65-5504, 65-5505, 65-5506, 65-5507, 65-5510,
21             65-5511, 65-5512 and 65-5514 and K.S.A. 1997 Supp. 7-121b,
22             17-2707, 21-3721, 40-3103, 40-3401, 40-3403, 65-1902, 65-2891,
23             65-2906, 65-2913, 65-4915, 65-5508, 65-5509, 65-5912, 74-4916
24             and 74-4960a and repealing the existing sections.
25            
26       Be it enacted by the Legislature of the State of Kansas:
27           Section 1. K.S.A. 65-5502 is hereby amended to read as follows:
28       65-5502. As used in K.S.A. 65-5501 to 65-5517, inclusive and amendments
29       thereto:
30           (a) ``Board'' means the state board of healing arts.
31           (b) ``Respiratory therapy'' is a health care profession whose practi-
32       tioners are employed therapists practice under the supervision of a qual-
33       ified medical director and with the prescription of a licensed physician
34       in the providing therapy, management, rehabilitation, diagnostic evalua-
35       tion respiratory assessment and care of patients with deficiencies and
36       abnormalities which affect the pulmonary system and associated aspects
37       of cardiopulmonary and other systems functions, and includes. The duties
38       which may be performed in any clinic, hospital, skilled nursing facility,
39       outpatient setting and private dwelling, by a respiratory therapist in-
40       clude, but are not limited to, all of the following:
41           (1) Direct and indirect pulmonary care respiratory therapy services
42       that are safe, aseptic, preventative and restorative to the patient.
43           (2) Direct and indirect respiratory care therapy services, including

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  1       but not limited to, the administration of pharmacological and diagnostic
  2       and therapeutic agents related to respiratory care therapy procedures
  3       necessary to implement a treatment, disease prevention, or pulmonary
  4       rehabilitative or diagnostic regimen prescribed by a physician.
  5           (3) Observation and monitoring of signs and symptoms, general be-
  6       havior, general physical response to respiratory care treatment and di-
  7       agnostic testing, determination of whether such signs, symptoms, reac-
  8       tions, behavior or general response exhibit abnormal characteristics and
  9       implementation based on observed abnormalities of appropriate report-
10       ing or referral or respiratory care protocols, or changes in treatment reg-
11       imen, pursuant to a prescription by a physician on the initiation of emer-
12       gency procedures.
13           (4) The diagnostic and therapeutic use of any of the following, in
14       accordance with the prescription of a physician: Administration of medical
15       gases, exclusive of general anesthesia;, aerosols;, humidification; and en-
16       vironmental control systems and baromedical therapy; pharmacologic;
17       transcription.
18           (4) Transcription and implementation of written or verbal orders of
19       a physician pertaining to the practice of respiratory care; the implemen-
20       tation therapy.
21           (5) Implementation of respiratory care therapy protocols as de-
22       fined by the medical staff of the an institution; or a qualified medical
23       director or other written protocol, changes in treatment pursuant to
24       the written or verbal orders of a physician or the initiation of emergency
25       procedures under the regulations of the board or as otherwise permitted
26       in this act. The administration of pharmacological agents related to res-
27       piratory care procedures; mechanical or, physiological, ventilatory or cir-
28       culatory support; bronchopulmonary hygiene; cardiopulmonary resusci-
29       tation; maintenance of the natural airways; insertion and maintenance of
30       indwelling arterial catheters and maintenance of artificial airways with-
31       out cutting tissues and maintenance of artificial airways; diagnostic and
32       testing techniques required for implementation of respiratory care pro-
33       tocols; collection of specimens of blood; collection of specimens from the
34       respiratory tract; analysis of blood gases and respiratory secretions, and
35       electrolytes; and collection and analysis of electrophysiological data as
36       authorized by written protocols.
37           (5) The transcription and implementation of the written and verbal
38       orders of a physician pertaining to the practice of respiratory therapy.
39           (c) ``Respiratory therapist'' means a person who is registered licensed
40       to practice respiratory therapy as defined in this act.
41           (d) ``Person'' means any individual, partnership, unincorporated or-
42       ganization or corporation.
43           (e) ``Physician'' means a person who is licensed by the board to prac-

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  1       tice medicine and surgery.
  2           (f) ``Qualified medical director'' means the medical director of any
  3       inpatient or outpatient respiratory care therapy service, department or
  4       home care agency. The medical director shall be a physician who has
  5       interest and knowledge in the diagnosis and treatment of respiratory
  6       problems. This physician shall be responsible for the quality, safety and
  7       appropriateness of the respiratory services provided and require that res-
  8       piratory care therapy be ordered by a physician who has medical re-
  9       sponsibility for the patient. The medical director shall be readily accessible
10       to the respiratory care therapy practitioner.
11           Sec. 2. K.S.A. 65-5503 is hereby amended to read as follows: 65-
12       5503. The board, in the manner as hereinafter provided, shall administer
13       the provisions of this act.
14           Sec. 3. K.S.A. 65-5504 is hereby amended to read as follows: 65-
15       5504. (a) There is established a respiratory therapist care council to advise
16       the board in carrying out the provisions of this act. The council shall
17       consist of five seven members, all citizens and residents of the state of
18       Kansas appointed as follows: One member shall be a physician appointed
19       by the state board of healing arts; one member shall be the president of
20       the state board of healing arts or a person designated by the president;
21       two members shall be from the public sector who are not engaged, directly
22       or indirectly, in the provision of health services and shall be appointed
23       by the governor for a term of two years appointed by the governor;
24       and three members shall be respiratory therapists appointed by the gov-
25       ernor. The governor, insofar as possible, shall appoint persons from dif-
26       ferent geographical areas and persons who represent various types of
27       respiratory therapy treatment practice. If a vacancy occurs on the council,
28       the appointing authority of the position which has become vacant shall
29       appoint a person of like qualifications to fill the vacant position for the
30       unexpired term, if any. The Kansas respiratory therapy care society shall
31       recommend the names of respiratory therapists to the governor in a num-
32       ber equal to at least twice the positions or vacancies to be filled, and the
33       governor may appoint members to fill the positions or vacancies from the
34       submitted list. The terms of the members of the council appointed by
35       the governor prior to the effective date of this act shall expire on July 1,
36       1988. Members of the council appointed by the governor on and after
37       the effective date of this act shall be appointed for terms of three years
38       and until their successors are appointed and qualified except that of the
39       members first appointed by the governor on or after the effective date of
40       this act one shall be appointed for a term of one year, one shall be ap-
41       pointed for a term of two years and one shall be appointed for a term of
42       three years, as designated by the governor, except that members ap-
43       pointed from the public sector shall be appointed for terms of two

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  1       years and until their successors are appointed. The member ap-
  2       pointed by the state board of healing arts shall serve at the pleasure of
  3       the state board of healing arts. A member designated by the president of
  4       the state board of healing arts shall serve at the pleasure of the president.
  5           (b) Members of the council attending meetings of the council, or
  6       attending a subcommittee meeting thereof authorized by the council,
  7       shall be paid amounts provided in subsection (e) of K.S.A. 75-3223 and
  8       amendments thereto from the healing arts fee fund.
  9           Sec. 4. K.S.A. 65-5505 is hereby amended to read as follows: 65-
10       5505. The board shall pass upon the qualifications of all applicants for
11       examination and registration licensure, provide for and conduct all ex-
12       aminations, determine the applicants who successfully pass the exami-
13       nation, duly register license such applicants and adopt rules and regula-
14       tions as may be necessary to administer the provisions of this act. The
15       board shall keep a record of all proceedings under this act and a roster
16       of all individuals registered licensed under this act. Only an individual
17       may be registered licensed under this act.
18           Sec. 5. K.S.A. 65-5506 is hereby amended to read as follows: 65-
19       5506. (a) An applicant applying for registration licensure as a respiratory
20       therapist shall file a written application on forms provided by the board,
21       showing to the satisfaction of the board that the applicant meets the
22       following requirements:
23           (1) Education: The applicant shall present evidence satisfactory to the
24       board of having successfully completed the academic requirements of an
25       educational program in respiratory therapy recognized approved by the
26       board.
27           (2) Experience: The applicant shall submit to the board evidence of
28       having successfully completed a period of supervised field work at a min-
29       imum recognized by the board.
30           (3) Examination: The applicant shall pass an examination as provided
31       for in K.S.A. 65-5507 and amendments thereto.
32           (4) (3) Fees: The applicants shall pay to the board all applicable fees
33       established under K.S.A. 65-5509 and amendments thereto.
34           (b) The board shall adopt rules and regulations establishing the cri-
35       teria which how for an educational program in respiratory therapy that
36       shall satisfy to be recognized to obtain successful recognition by the
37       board under paragraph (1) of subsection (a). The board may send a ques-
38       tionnaire developed by the board to any school or other entity conducting
39       an educational program in respiratory therapy for which the board does
40       not have sufficient information to determine whether the program should
41       be recognized by the board and whether the program meets the rules
42       and regulations adopted under this section. The questionnaire providing
43       the necessary information shall be completed and returned to the board

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  1       in order for the program to be considered for recognition. The board may
  2       contract with investigative agencies, commissions or consultants to assist
  3       the board in obtaining information about an educational program in res-
  4       piratory therapy. In entering such contracts the authority to recognize an
  5       educational program in respiratory therapy shall remain solely with the
  6       board.
  7           Sec. 6. K.S.A. 65-5507 is hereby amended to read as follows: 65-
  8       5507. (a) Each applicant for registration licensure under this act shall be
  9       examined by a written examination required chosen by the board to test
10       the applicant's knowledge of the basic and clinical sciences relating to
11       respiratory therapy, and respiratory care therapy theory and practice,
12       including the applicant's professional skills and judgment in the utilization
13       of respiratory therapy techniques and methods, and such other subjects
14       as the board may deem useful to determine the applicant's fitness to
15       practice.
16           (b) Applicants for registration licensure shall be examined at a time
17       and place and under such supervision as the board may determine. Ex-
18       aminations shall be given at least twice each year at such places within
19       this state as the board may determine and the board shall give or cause
20       to be given reasonable public notice of such examinations at least 60 days
21       prior to their administration.
22           (c) Applicants may obtain their examination scores.
23           Sec. 7. K.S.A. 65-5508 is hereby amended to read as follows: 65-
24       5508. (a) The board shall waive the examination, education and experi-
25       ence requirements and grant registration licensure to any person who
26       applies for registration licensure on or before July 1, 1987 1998, who pays
27       the application fee and who, was registered or certified immediately by
28       the state of Kansas prior to the effective date of this act as a respiratory
29       therapist or respiratory therapy technician by the national board for res-
30       piratory care or who has been employed as a respiratory therapist for the
31       purpose of providing respiratory therapy for at least two years within the
32       three-year period immediately prior to the effective date of this act and
33       has passed a licensure examination administered or recognized by the
34       board, providing such credential has not been suspended or revoked.
35           (b) The board may waive the examination, education or experience
36       requirements and grant registration licensure to any applicant who pres-
37       ents proof of current licensure or registration as a respiratory therapist in
38       another state, the District of Columbia or territory of the United States
39       which requires standards for licensure or registration determined by the
40       board to be equivalent to or exceed the requirements for registration
41       licensure under this act.
42           (c) (b) At the time of making an application under this section, the
43       applicant shall pay to the board the application fee as required under

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  1       K.S.A. 65-5509 and amendments thereto.
  2           (d) (c) The board may issue a special permit to a student enrolled in
  3       an approved school of respiratory therapy who applies for such special
  4       permit on a form provided by the board and who pays to the board the
  5       special permit fee as required under K.S.A. 65-5509 and amendments
  6       thereto. The special permit shall authorize a student who is enrolled in
  7       an approved school of respiratory therapy and who holds such special
  8       permit to practice respiratory therapy under the supervision of a regis-
  9       tered respiratory therapist. Such special permit shall expire on the date
10       that the student graduates from an approved school of respiratory therapy
11       or otherwise ceases to be enrolled in an approved school of respiratory
12       therapy.
13           (e) (d) The board may issue a temporary registration license to an
14       applicant for registration licensure as a respiratory therapist who applies
15       for temporary registration licensure on a form provided by the board, who
16       meets the requirements for registration licensure or who meets all of the
17       requirements for registration licensure except examination and who pays
18       to the board the temporary registration licensing fee as required under
19       K.S.A. 65-5509 and amendments thereto. Such temporary registration
20       licensure shall expire one year from the date of issue or on the date that
21       the board approves the application for registration licensure, whichever
22       occurs first. No more than one such temporary registration license shall
23       be permitted to any one person, without the majority approval of the
24       members of the board.
25           (f) The board may waive the examination and education requirements
26       and issue a license to individuals who have not taken and passed a licen-
27       sure exam administered or approved by the board, yet were registered by
28       the board under the previous act as a respiratory therapist, providing
29       these individuals have been registered by the board and employed as
30       respiratory therapists since the inception of the initial registration act in
31       1987.
32        (e) A person registered to practice respiratory therapy on Feb-
33       ruary 28, 1998, shall be deemed to be licensed to practice respira-
34       tory therapy under this act, and such person shall not be required
35       to file an original application for licensure under this act. Any ap-
36       plication for registration filed but which has not been granted prior
37       to March 1, 1998, shall be processed as an application for licensure
38       under this act.
39           Sec. 8. K.S.A. 65-5509 is hereby amended to read as follows: 65-
40       5509. (a) The board shall charge and collect in advance fees provided for
41       in this act as fixed by the board by rules and regulations, subject to the
42       following limitations:
43       Application fee, not more than $40
44       Temporary registration licensing fee, not more than 40
45       Special permit fee, not more than 40
46       Registration License renewal fee, not more than 40
47       Registration License late renewal fee, not more than 40
48       Registration License reinstatement fee, not more than 40
49       Certified copy of registration license, not more than[cm20
50           (b) The board shall charge and collect in advance fees for any ex-
51       amination administered by the board under the respiratory therapy prac-
52       tice act as fixed by the board by rules and regulations in an amount equal
53       to the cost to the board of the examination. If the examination is not
54       administered by the board, the board may require that fees paid for any
55       examination under the respiratory therapy practice act be paid directly to
56       the examination service by the person taking the examination.
57        Sec. 7. K.S.A. 1997 Supp. 65-5508 is hereby amended to read
58       as follows: 65-5508. (a) The board shall waive the examination, educa-
59       tion and experience requirements and grant registration to any person
60       who applies for registration on or before July 1, 1987, who pays the ap-
61       plication fee and who was registered or certified immediately prior to the
62       effective date of this act as a respiratory therapist or respiratory therapy
63       technician by the national board for respiratory care or who has been
64       employed as a respiratory therapist for the purpose of providing respi-
65       ratory therapy for at least two years within the three-year period imme-
66       diately prior to the effective date of this act.
67           (b) The board may waive the examination, education or expe-
68       rience requirements and grant registration licensure to any applicant
69       who presents proof of current licensure or registration as a res-
70       piratory therapist in another state, the District of Columbia or ter-
71       ritory of the United States which requires standards for licensure
72       or registration determined by the board to be equivalent to or
73       exceed the requirements for registration licensure under this act.
74           (c) (b) At the time of making an application under this section,
75       the applicant shall pay to the board the application fee as required
76       under K.S.A. 65-5509 and amendments thereto.
77           (d) (c) The board may issue a special permit to a student en-
78       rolled in an approved school of respiratory therapy who applies
79       for such special permit on a form provided by the board and who
80       pays to the board the special permit fee as required under K.S.A.
81       65-5509 and amendments thereto. The special permit shall author-
82       ize a student who is enrolled in an approved school of respiratory therapy
83       and who holds such special permit to practice respiratory therapy under
84       the supervision of a registered respiratory therapist. Such special permit
85       shall expire on the date that the student graduates from an ap-
86       proved school of respiratory therapy or otherwise ceases to be en-

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  1       rolled in an approved school of respiratory therapy.
  2           (e) (d) The board may issue a temporary registration license to
  3       an applicant for registration licensure as a respiratory therapist who
  4       applies for temporary registration licensure on a form provided by
  5       the board, who meets the requirements for registration licensure or
  6       who meets all of the requirements for registration licensure except
  7       examination and who pays to the board the temporary registration
  8       license fee as required under K.S.A. 65-5509 and amendments
  9       thereto. Such temporary registration licensure shall expire one year
10       from the date of issue or on the date that the board approves the
11       application for registration licensure, whichever occurs first. No
12       more than one such temporary registration license shall be permitted
13       to any one person.
14           (e) A person registered to practice respiratory therapy on February
15       28, 1999, shall be deemed to be licensed to practice respiratory therapy
16       under this act, and such person shall not be required to file an original
17       application for licensure under this act. Any application for registration
18       filed but which has not been granted prior to March 1, 1999, shall be
19       processed as an application for licensure under this act.
20           Sec. 8. K.S.A. 1997 Supp. 65-5509 is hereby amended to read
21       as follows: 65-5509. (a) The board shall charge and collect in ad-
22       vance fees provided for in this act as fixed by the board by rules
23       and regulations, subject to the following limitations:
24       Application fee, not more than $80
25       Temporary registration license fee, not more than 40
26       Special permit fee, not more than 80
27       Registration License renewal fee, not more than 80
28       Registration License late renewal fee, not more than 80
29       Registration License reinstatement fee, not more than 80
30       Certified copy of registration license, not more than 40
31       Written verification of registration license, not more than[cm25
32           (b) The board shall charge and collect in advance fees for any
33       examination administered by the board under the respiratory ther-
34       apy practice act as fixed by the board by rules and regulations in
35       an amount equal to the cost to the board of the examination. If the
36       examination is not administered by the board, the board may re-
37       quire that fees paid for any examination under the respiratory
38       therapy practice act be paid directly to the examination service by
39       the person taking the examination.
40           Sec. 9. K.S.A. 65-5510 is hereby amended to read as follows: 65-
41       5510. (a) The board may deny, refuse to renew, suspend or revoke a
42       registration license where the registrant licensee or applicant for registra-
43       tion licensure has been guilty of unprofessional conduct which has en-

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  1       dangered or is likely to endanger the health, welfare or safety of the
  2       public. Unprofessional conduct includes:
  3           (1) Obtaining a registration license by means of fraud, misrepresen-
  4       tation or concealment of material facts;
  5           (2) being guilty of unprofessional conduct as defined by rules and
  6       regulations adopted by the board;
  7           (3) being convicted of a felony if the acts for which such person was
  8       convicted are found by the board to have a direct bearing on whether
  9       such person should be entrusted to serve the public in the capacity of a
10       respiratory therapist;
11           (4) violating any lawful order or rule and regulation of the board; and
12           (5) violating any provision of this act.
13           (b) Such denial, refusal to renew, suspension or revocation of a reg-
14       istration license may be ordered by the board after notice and hearing on
15       the matter in accordance with the provisions of the Kansas administrative
16       procedure act. Upon the end of the period of time established by the
17       board for the revocation of a registration license, application may be made
18       to the board for reinstatement. The board shall have discretion to accept
19       or reject an application for reinstatement and may hold a hearing to con-
20       sider such reinstatement. An application for reinstatement shall be ac-
21       companied by the registration licensing reinstatement fee established un-
22       der K.S.A. 65-5509 and amendments thereto.
23           Sec. 10. K.S.A. 65-5511 is hereby amended to read as follows: 65-
24       5511. Foreign trained respiratory therapists shall satisfy the examination
25       requirements of K.S.A. 65-5506 and amendments thereto. The board shall
26       require foreign trained applicants to furnish proof of completion of ed-
27       ucational and supervised field work requirements, substantially equal to
28       or greater than those contained in K.S.A. 65-5506 and amendments
29       thereto prior to taking the examination.
30           Sec. 11. K.S.A. 65-5512 is hereby amended to read as follows: 65-
31       5512. (a) Registrations Licenses issued under this act shall be effective
32       for a period of one year and shall expire at the end of such period of time
33       unless renewed in the manner prescribed by the board, upon the payment
34       of the registration license renewal fee established under K.S.A. 65-5509
35       and amendments thereto. The board may establish additional require-
36       ments for registration license renewal which provide evidence of contin-
37       ued competency. The board may provide for the late renewal of a reg-
38       istration license upon the payment of a late fee established under K.S.A.
39       65-5509 and amendments thereto, but no such late renewal of a registra-
40       tion license may be granted more than five years after its expiration.
41           (b) A person whose registration license is suspended shall not engage
42       in any conduct or activity in violation of the order or judgment by which
43       the registration license was suspended. If a registration license revoked

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  1       on disciplinary grounds is reinstated, the registrant licensee, as a condition
  2       of reinstatement, shall pay the registration license renewal fee and any
  3       late fee that may be applicable.
  4           Sec. 12. K.S.A. 65-5514 is hereby amended to read as follows: 65-
  5       5514. (a) On and after July 1, 1987 1998 March 1, 1999, it shall be
  6       unlawful for any person who is not registered licensed under this act as a
  7       respiratory therapist or whose registration license has been suspended or
  8       revoked to use, in connection with such person's name or place of busi-
  9       ness, hold themselves out to the public as a licensed respiratory therapist,
10       or use the abbreviation of CRTT, RRT, RCP or the words ``respiratory
11       therapist,'' ``respiratory therapist registered,'' ``respiratory care practi-
12       tioner'' or, ``inhalation therapist'' or any other words, letters, abbreviations
13       or insignia indicating or implying that such person is a respiratory ther-
14       apist, or who in any way, orally, in writing, in print or by sign, directly or
15       by implication, represents oneself as a respiratory therapist to practice
16       the art and science of respiratory therapy as herein defined. A violation
17       of this subsection (a) shall constitute a class B misdemeanor.
18           (b) The respiratory therapy practice act recognizes the existence of
19       overlapping functions between health care providers. Therefore, nothing
20       Nothing in this act is intended to limit, preclude or otherwise interfere
21       with the practices of other health care providers formally trained and
22       licensed, registered, credentialed or certified by appropriate agencies of
23       the state of Kansas. The practice of respiratory therapy shall not be con-
24       strued to include the following individuals:
25           (1) Persons rendering gratuitous services assistance in the case of an
26       emergency.
27           (2) Members of any church practicing their religious tenets provided
28       they shall not be exempt from complying with all public health regulations
29       of the state.
30           (3) Persons whose services are performed via pursuant to the dele-
31       gation of and under the supervision of a respiratory therapist who is
32       licensed under this act.
33           (4) Healthcare providers in the United States armed forces, public
34       health services, federal facilities and coast guard or other military serv-
35       ice when acting in the line of duty in this state.
36           (5) Medical practitioners licensed Licensees under the Healing Arts
37       Act healing arts act, and practicing their professions, when licensed and
38       practicing in accordance with the provisions of the Kansas Statutues, or
39       amendments thereto, law or persons performing services pursuant to the
40       delegation of a licensed physician under subsection (g) of K.S.A. 65-2872
41       and amendments thereto, and any interpretation thereof by the supreme
42       court of this state.
43           (6) Dentists practicing their professions, when licensed and practicing

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  1       in accordance with the provisions of the Kansas Statutes Annotated, and
  2       amendments thereto, and any interpretation thereof by the supreme court
  3       of this state law.
  4           (7) Nurses practicing their professions, when licensed and practicing
  5       in accordance with the provisions of the Kansas nurse practice act, and
  6       amendments thereto, law or persons performing services pursuant to the
  7       delegation of a licensed nurse under subsection (m) of K.S.A. 65-1124 and
  8       amendments thereto, and any interpretation thereof by the supreme court
  9       of this state.
10           (8) Health care providers who have been formally trained and have
11       passed a credentialing or certification examination and are practicing in
12       accordance with the training and provisions of their respective creden-
13       tialing organization or have received specific training in one or more
14       functions included in this act pursuant to established educational proto-
15       cols or both.
16           (9) Students while in actual attendance in an accredited health care
17       occupational educational program and under the supervision of a quali-
18       fied instructor.
19        (10) Self-care by a patient or gratuitous care by a friend or
20       family member who does not represent or hold out to the public to
21       be a respiratory therapist.
22           (11) Monitoring, installation or delivery of medical devices,
23       gases and equipment and the maintenance thereof by a nonlicensed
24       person for the express purpose of self-care by a patient or gratuitous
25       care by a friend or family member.
26           (c) Durable medical equipment companies may deliver and set-up
27       respiratory equipment pursuant to a written prescription by a physician.
28       Any instructions to the patient or client regarding the clinical use of said
29       equipment, any patient monitoring, assessment or other procedures de-
30       signed to evaluate the effectiveness of prescribed respiratory therapy
31       must be performed by or via pursuant to the delegation of a licensed
32       respiratory therapist or other health care provider formally trained and
33       licensed or otherwise credentialed by appropriate agencies of the state of
34       Kansas.
35           (d) Any violation of this section shall constitute a class C B misde-
36       meanor.
37           (e) (d) Nothing in this act shall be construed to permit the practice
38       of medicine and surgery. No statute granting authority to licensees
39       of the state board of healing arts shall be construed to confer au-
40       thority upon respiratory therapists to engage in any activity not
41       conferred by this act.
42           Sec. 13. K.S.A. 65-5516 is hereby amended to read as follows: 65-
43       5516. All state agency adjudicative proceedings under K.S.A. 65-5501 to

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  1       65-5517, inclusive, shall be conducted in accordance with the provisions
  2       of the Kansas administrative procedure act and shall be reviewable in
  3       accordance with the act for judicial review and civil enforcement of
  4       agency actions.
  5        Sec. 13. K.S.A. 39-952 is hereby amended to read as follows:
  6       39-952. The secretary of health and environment or the secretary's
  7       designee shall not issue a correction order to a person licensed to
  8       operate an adult care home because of a violation of a provision of
  9       article 9 of chapter 39 of the Kansas Statutes Annotated or a rule
10       and regulation adopted thereunder which was caused by any person
11       licensed by the state board of healing arts to practice a branch of the
12       healing arts if such person licensed by the state board of healing arts
13       is not an owner, operator or employee of the adult care home and
14       if the person licensed to operate the adult care home shows that he
15       or she such person has exercised reasonable diligence in notifying
16       such the person licensed by the state board of healing arts to practice
17       a branch of the healing arts of his or her such person's duty to the
18       residents of the adult care home.
19           Sec. 14. K.S.A. 40-12a01 is hereby amended to read as follows:
20       40-12a01. As used in this act: (a) ``Health care provider'' means any
21       person licensed to practice any branch of the healing art arts by the
22       board of healing arts or any hospital licensed under the provisions
23       of K.S.A. 65-425 et seq., and amendments thereto, or a private psy-
24       chiatric hospital authorized under K.S.A. 75-3307b and amend-
25       ments thereto;
26           (b) ``person'' means an individual, corporation, partnership, as-
27       sociation, joint stock company, trust, unincorporated organization
28       or any similar entity;
29           (c) ``affiliate'' means a person that directly or indirectly,
30       through one or more intermediaries, employs, controls or is con-
31       trolled by, or is under common control with a health care provider;
32           (d) ``commissioner'' means the commissioner of insurance; and
33           (e) ``association'' means any organization whose income is ex-
34       empt from taxation pursuant to section 501(a) of the internal rev-
35       enue code of 1986, and amendments thereto, as in effect on the
36       effective date of this act, due to such association's compliance with
37       section 501(c)(6) of such code, and amendments thereto, as in effect
38       on the effective date of this act.
39           Sec. 15. K.S.A. 1996 1997 Supp. 40-3103 is hereby amended to
40       read as follows: 40-3103. As used in this act, the following words
41       and phrases shall have the meanings respectively ascribed to them
42       herein:
43           (a) ``Commissioner'' means the state commissioner of insurance.

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  1           (b) ``Disability benefits'' means allowances for loss of monthly
  2       earnings due to an injured person's inability to engage in available
  3       and appropriate gainful activity, subject to the following conditions
  4       and limitations: (1) The injury sustained is the proximate cause of
  5       the injured person's inability to engage in available and appropri-
  6       ate gainful activity; (2) subject to the maximum benefits stated
  7       herein, allowances shall equal 100% of any such loss per individual,
  8       unless such allowances are deemed not includable in gross income
  9       for federal income tax purposes, in which event such allowances
10       shall be limited to 85%; and (3) allowances shall be made up to a
11       maximum of not less than $900 per month for not to exceed one year
12       after the date the injured person becomes unable to engage in avail-
13       able and appropriate gainful activity.
14           (c) ``Director'' means the director of vehicles.
15           (d) ``Funeral benefits'' means allowances for funeral, burial or
16       cremation expenses in an amount not to exceed $2,000 per individ-
17       ual.
18           (e) ``Highway'' means the entire width between the boundary
19       lines of every way publicly maintained, when any part thereof is
20       open to the use of the public for purposes of vehicular travel.
21           (f) ``Implement of husbandry'' means every vehicle designed or
22       adapted and used exclusively for agricultural operations and only
23       incidentally operated or moved upon the highways.
24           (g) ``Insurer'' means any insurance company, as defined by
25       K.S.A. 40-201, and amendments thereto, authorized to transact
26       business in this state, which issues policies of motor vehicle liability
27       insurance covering liability arising out of the ownership, operation,
28       maintenance or use of a motor vehicle.
29           (h) ``Injured person'' means any person suffering injury.
30           (i) ``Injury'' means bodily harm, sickness, disease or death re-
31       sulting from an accident arising out of the ownership, maintenance
32       or use of a motor vehicle.
33           (j) ``Lienholder'' means a person holding a security interest in
34       a vehicle.
35           (k) ``Medical benefits'' means and includes allowances for all
36       reasonable expenses, up to a limit of not less than $4,500, for nec-
37       essary health care rendered by practitioners licensed by the state
38       board of healing arts to practice any branch of the healing arts or
39       licensed psychologists, surgical, x-ray and dental services, including
40       prosthetic devices and necessary ambulance, hospital and nursing
41       services; and such term also includes allowances for services rec-
42       ognized and permitted under the laws of this state for an injured
43       person who relies upon spiritual means through prayer alone for

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  1       healing in accordance with such person's religious beliefs.
  2           (l) ``Monthly earnings'' means: (1) In the case of a regularly em-
  3       ployed person or a person regularly self-employed, 1/12 of the annual
  4       earnings at the time of injury; or (2) in the case of a person not
  5       regularly employed or self-employed, or of an unemployed person,
  6       1/12 of the anticipated annual earnings from the time such person
  7       would reasonably have been expected to be regularly employed. In
  8       calculating the anticipated annual earnings of an unemployed per-
  9       son who has previously been employed, the insurer shall average
10       the annual compensation of such person for not to exceed five years
11       preceding the year of injury or death, during which such person
12       was employed.
13           (m) ``Motor vehicle'' means every self-propelled vehicle of a
14       kind required to be registered in this state, including any trailer,
15       semitrailer or pole trailer designed for use with such vehicle, but
16       such term does not include a motorized bicycle.
17           (n) ``Operator'' means any person who drives or is in actual
18       physical control of a motor vehicle upon a highway or who is ex-
19       ercising control over or steering a vehicle being towed by a motor
20       vehicle.
21           (o) ``Owner'' means a person, other than a lienholder, having
22       property in or title to a motor vehicle, including a person who is
23       entitled to the use and possession of a motor vehicle subject to a
24       security interest held by another person, but such term does not
25       include a lessee under a lease not intended as security.
26           (p) ``Person'' means an individual, partnership, corporation or
27       other association of persons.
28           (q) ``Personal injury protection benefits'' means the disability
29       benefits, funeral benefits, medical benefits, rehabilitation benefits,
30       substitution benefits and survivors' benefits required to be provided
31       in motor vehicle liability insurance policies pursuant to this act.
32           (r) ``Rehabilitation benefits'' means allowances for all reason-
33       able expenses, up to a limit of not less than $4,500, for necessary
34       psychiatric or psychological services, occupational therapy and
35       such occupational training and retraining as may be reasonably
36       necessary to enable the injured person to obtain suitable employ-
37       ment.
38           (s) ``Relative residing in the same household'' means a relative
39       of any degree by blood, marriage or adoption, who usually makes
40       such person's home in the same family unit, whether or not tem-
41       porarily living elsewhere.
42           (t) ``Security interest'' means an interest in a vehicle reserved
43       or created by agreement and which secures payment or perform-

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  1       ance of an obligation. The term includes the interest of a lessor
  2       under a lease intended as security.
  3           (u) ``Self-insurer'' means any person effecting self-insurance
  4       pursuant to subsection (f) of K.S.A. 40-3104, and amendments
  5       thereto, or any nonresident self-insurer that has filed the form pre-
  6       scribed in subsection (b) of K.S.A. 40-3106, and amendments
  7       thereto.
  8           (v) ``Special mobile equipment'' means every vehicle not de-
  9       signed or used primarily for the transportation of persons or prop-
10       erty and only incidentally operated or moved over a highway, in-
11       cluding but not limited to: Ditch-digging apparatus, well-boring
12       apparatus and road construction and maintenance machinery such
13       as asphalt spreaders, bituminous mixers, bucket loaders, tractors
14       other than truck tractors, ditchers, leveling graders, finishing ma-
15       chines, motor graders, road rollers, scarifiers, earth moving carry-
16       alls and scrapers, power shovels and drag lines and self-propelled
17       cranes and earth moving equipment. The term does not include
18       house trailers, dump trucks, truck mounted transit mixers, cranes
19       or shovels or other vehicles designed for the transportation of per-
20       sons or property to which machinery has been attached.
21           (w) ``Substitution benefits'' means allowances for appropriate
22       and reasonable expenses incurred in obtaining other ordinary and
23       necessary services in lieu of those that, but for the injury, the in-
24       jured person would have performed for the benefit of such person
25       or such person's family, subject to a maximum of $25 per day for
26       not longer than 365 days after the date such expenses are incurred.
27           (x) ``Survivor'' means a decedent's spouse, or child under the
28       age of 18 years, where death of the decedent resulted from an injury.
29           (y) ``Survivors' benefits'' means total allowances to all survivors
30       for: (1) Loss of an injured person's monthly earnings after such
31       person's death, up to a maximum of not less than $900 per month;
32       and (2) substitution benefits following the injured person's death.
33       Expenses of the survivors which have been avoided by reason of the
34       injured person's death shall be subtracted from the allowances to
35       which survivors would otherwise be entitled, and survivors' benefits
36       shall not be paid for more than one year after the injured person's
37       death, less the number of months the injured person received disa-
38       bility benefits prior to such person's death. For purposes of this
39       subsection, monthly earnings shall include, in the case of a person
40       who was a social security recipient or a retirement or pension ben-
41       efit recipient, or both, at the time of such injured person's death,
42       1/12 of the annual amount of the difference between the annual
43       amount of the social security benefits or the retirement benefits, or

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  1       both, that such injured person was receiving at the time of such
  2       injured person's death and the annual amount of the social security
  3       benefits or the retirement benefits, or both, that the survivor is re-
  4       ceiving after the time of such injured person's death.
  5           (z) ``Uninsured motor vehicle'' means any motor vehicle which
  6       is not included under an approved self-insurance plan of a self-
  7       insurer or for which there is not in effect a motor vehicle liability
  8       insurance policy meeting the requirements of this act.
  9           (aa) ``Any workmen's compensation law'' means the workmen's
10       compensation act of Kansas, the United States longshoremen's and
11       harbor workers' compensation act, the federal employer liability
12       acts, and any similar state or federal law.
13           Sec. 16. K.S.A. 1996 Supp. 65-4116 is hereby amended to read
14       as follows: 65-4116. (a) Every person who manufactures, distributes
15       or dispenses any controlled substance within this state or who pro-
16       poses to engage in the manufacture, distribution or dispensing of
17       any controlled substance within this state shall obtain annually a
18       registration issued by the board in accordance with the uniform
19       controlled substances act and with rules and regulations adopted
20       by the board.
21           (b) Persons registered by the board under this act to manufac-
22       ture, distribute, dispense or conduct research with controlled sub-
23       stances may possess, manufacture, distribute, dispense or conduct
24       research with those substances to the extent authorized by their
25       registration and in conformity with the other provisions of this act.
26           (c) The following persons need not register and may lawfully
27       possess controlled substances under this act, as specified in this sub-
28       section:
29           (1) An agent or employee of any registered manufacturer, dis-
30       tributor or dispenser of any controlled substance if the agent or
31       employee is acting in the usual course of such agent or employee's
32       business or employment;
33           (2) a common or contract carrier or warehouseman or an em-
34       ployee thereof whose possession of any controlled substance is in
35       the usual course of business or employment;
36           (3) an ultimate user or a person in possession of any controlled
37       substance pursuant to a lawful order of a practitioner or in lawful
38       possession of a schedule V substance;
39           (4) persons licensed and registered by the board under the pro-
40       visions of the acts contained in article 16 of chapter 65 of the Kansas
41       Statutes Annotated, and amendments thereto, to manufacture, dis-
42       pense or distribute drugs are considered to be in compliance with
43       the registration provision of the uniform controlled substances act

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  1       without additional proceedings before the board or the payment of
  2       additional fees, except that manufacturers and distributors shall
  3       complete and file the application form required under the uniform
  4       controlled substances act;
  5           (5) any person licensed by the state board of healing arts under
  6       the Kansas healing arts act;
  7           (6) any person licensed by the state board of veterinary exam-
  8       iners;
  9           (7) any person licensed by the Kansas dental board; and
10           (8) any person who is a member of the Native American Church,
11       with respect to use or possession of peyote, whose use or possession
12       of peyote is in, or for use in, bona fide religious ceremonies of the
13       Native American Church, but nothing in this paragraph shall au-
14       thorize the use or possession of peyote in any place used for the
15       confinement or housing of persons arrested, charged or convicted
16       of criminal offenses or in the state security hospital.
17           (d) The board may waive by rules and regulations the require-
18       ment for registration of certain manufacturers, distributors or dis-
19       pensers if the board finds it consistent with the public health and
20       safety, except that licensure of any person by the state board of
21       healing arts to practice any branch of the healing arts, Kansas dental
22       board or the state board of veterinary examiners shall constitute
23       compliance with the registration requirements of the uniform con-
24       trolled substances act by such person for such person's place of
25       professional practice. Evidence of abuse as determined by the board
26       relating to a person licensed by the state board of healing arts shall
27       be submitted to the state board of healing arts and the attorney
28       general within 60 days. The state board of healing arts shall, within
29       60 days, make findings of fact and take such action against such
30       person as it deems necessary. All findings of fact and any action
31       taken shall be reported by the state board of healing arts to the
32       board of pharmacy and the attorney general. Evidence of abuse as
33       determined by the board relating to a person licensed by the state
34       board of veterinary examiners shall be submitted to the state board
35       of veterinary examiners and the attorney general within 60 days.
36       The state board of veterinary examiners shall, within 60 days, make
37       findings of fact and take such action against such person as it deems
38       necessary. All findings of fact and any action taken shall be reported
39       by the state board of veterinary examiners to the board of pharmacy
40       and the attorney general. Evidence of abuse as determined by the
41       board relating to a dentist licensed by the Kansas dental board shall
42       be submitted to the Kansas dental board and the attorney general
43       within 60 days. The Kansas dental board shall, within 60 days, make

SB 242--Am. by H

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  1       findings of fact and take such action against such dentist as it deems
  2       necessary. All findings of fact and any action taken shall be reported
  3       by the Kansas dental board to the board of pharmacy and the at-
  4       torney general.
  5           (e) A separate annual registration is required at each place of
  6       business or professional practice where the applicant manufactures,
  7       distributes or dispenses controlled substances.
  8           (f) The board may inspect the establishment of a registrant or
  9       applicant for registration in accordance with the board's rules and
10       regulations.
11           (g) (1) The registration of any person or location shall termi-
12       nate when such person or authorized representative of a location
13       dies, ceases legal existence, discontinues business or professional
14       practice or changes the location as shown on the certificate of reg-
15       istration. Any registrant who ceases legal existence, discontinues
16       business or professional practice, or changes location as shown on
17       the certificate of registration, shall notify the board promptly of
18       such fact and forthwith deliver the certificate of registration di-
19       rectly to the secretary or executive secretary of the board. In the
20       event of a change in name or mailing address the person or author-
21       ized representative of the location shall notify the board promptly
22       in advance of the effective date of this change by filing the change
23       of name or mailing address with the board. This change shall be
24       noted on the original application on file with the board.
25           (2) No registration or any authority conferred thereby shall be
26       assigned or otherwise transferred except upon such conditions as
27       the board may specifically designate and then only pursuant to the
28       written consent of the board.
29           Sec. 17. K.S.A. 1996 Supp. 65-4915 is hereby amended to read
30       as follows: 65-4915. (a) As used in this section:
31           (1) ``Health care provider'' means: (A) Those persons and enti-
32       ties defined as a health care provider under K.S.A. 40-3401 and
33       amendments thereto; and (B) a dentist licensed by the Kansas dental
34       board, a dental hygienist licensed by the Kansas dental board, a
35       professional nurse licensed by the board of nursing, a practical
36       nurse licensed by the board of nursing, a mental health technician
37       licensed by the board of nursing, a physical therapist assistant cer-
38       tified by the state board of healing arts, an occupational therapist
39       registered by the state board of healing arts, an occupational ther-
40       apy assistant registered by the state board of healing arts, a respi-
41       ratory therapist registered licensed by the state board of healing arts,
42       a physician's assistant registered by the state board of healing arts
43       and attendants and ambulance services certified by the emergency

SB 242--Am. by H

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  1       medical services board.
  2           (2) ``Health care provider group'' means:
  3           (A) A state or local association of health care providers;
  4           (B) the board of governors created under K.S.A. 40-3403 and
  5       amendments thereto;
  6           (C) an organization of health care providers formed pursuant
  7       to state or federal law and authorized to evaluate medical and
  8       health care services;
  9           (D) a review committee operating pursuant to K.S.A. 65-2840b
10       through 65-2840d, and amendments thereto;
11           (E) an organized medical staff of a licensed medical care facility
12       as defined by K.S.A. 65-425 and amendments thereto, an organized
13       medical staff of a private psychiatric hospital licensed under K.S.A.
14       75-3307b and amendments thereto or an organized medical staff of
15       a state psychiatric hospital or state institution for the mentally re-
16       tarded, as follows: Larned state hospital, Osawatomie state hospital,
17       Rainbow mental health facility, Topeka state hospital, Kansas neu-
18       rological institute, Norton state hospital, Parsons state hospital and
19       training center and Winfield state hospital and training center;
20           (F) a health care provider;
21           (G) a professional society of health care providers or one or
22       more committees thereof;
23           (H) a Kansas corporation whose stockholders or members are
24       health care providers or an association of health care providers,
25       which corporation evaluates medical and health care services; or
26           (I) an insurance company, health maintenance organization or
27       administrator of a health benefits plan which engages in any of the
28       functions defined as peer review under this section.
29           (3) ``Peer review'' means any of the following functions:
30           (A) Evaluate and improve the quality of health care services
31       rendered by health care providers;
32           (B) determine that health services rendered were professionally
33       indicated or were performed in compliance with the applicable
34       standard of care;
35           (C) determine that the cost of health care rendered was consid-
36       ered reasonable by the providers of professional health services in
37       this area;
38           (D) evaluate the qualifications, competence and performance of
39       the providers of health care or to act upon matters relating to the
40       discipline of any individual provider of health care;
41           (E) reduce morbidity or mortality;
42           (F) establish and enforce guidelines designed to keep within rea-
43       sonable bounds the cost of health care;

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  1           (G) conduct of research;
  2           (H) determine if a hospital's facilities are being properly util-
  3       ized;
  4           (I) supervise, discipline, admit, determine privileges or control
  5       members of a hospital's medical staff;
  6           (J) review the professional qualifications or activities of health
  7       care providers;
  8           (K) evaluate the quantity, quality and timeliness of health care
  9       services rendered to patients in the facility;
10           (L) evaluate, review or improve methods, procedures or treat-
11       ments being utilized by the medical care facility or by health care
12       providers in a facility rendering health care.
13           (4) ``Peer review officer or committee'' means:
14           (A) An individual employed, designated or appointed by, or a
15       committee of or employed, designated or appointed by, a health
16       care provider group and authorized to perform peer review; or
17           (B) a health care provider monitoring the delivery of health
18       care at correctional institutions under the jurisdiction of the sec-
19       retary of corrections.
20           (b) Except as provided by K.S.A. 60-437 and amendments
21       thereto and by subsections (c) and (d), the reports, statements, mem-
22       oranda, proceedings, findings and other records of peer review com-
23       mittees or officers shall be privileged and shall not be subject to
24       discovery, subpoena or other means of legal compulsion for their
25       release to any person or entity or be admissible in evidence in any
26       judicial or administrative proceeding. Information contained in
27       such records shall not be discoverable or admissible at trial in the
28       form of testimony by an individual who participated in the peer
29       review process. This privilege may be claimed by the legal entity
30       creating the peer review committee or officer, or by the commis-
31       sioner of insurance for any records or proceedings of the board of
32       governors.
33           (c) Subsection (b) shall not apply to proceedings in which a
34       health care provider contests the revocation, denial, restriction or
35       termination of staff privileges or the license, registration, certifi-
36       cation or other authorization to practice of the health care provider.
37           (d) Nothing in this section shall limit the authority, which may
38       otherwise be provided by law, of the commissioner of insurance, the
39       state board of healing arts or other health care provider licensing
40       or disciplinary boards of this state to require a peer review com-
41       mittee or officer to report to it any disciplinary action or recom-
42       mendation of such committee or officer; to transfer to it records of
43       such committee's or officer's proceedings or actions to restrict or

SB 242--Am. by H

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  1       revoke the license, registration, certification or other authorization
  2       to practice of a health care provider; or to terminate the liability of
  3       the fund for all claims against a specific health care provider for
  4       damages for death or personal injury pursuant to subsection (i) of
  5       K.S.A. 40-3403 and amendments thereto. Reports and records so
  6       furnished shall not be subject to discovery, subpoena or other
  7       means of legal compulsion for their release to any person or entity
  8       and shall not be admissible in evidence in any judicial or adminis-
  9       trative proceeding other than a disciplinary proceeding by the state
10       board of healing arts or other health care provider licensing or dis-
11       ciplinary boards of this state.
12           (e) A peer review committee or officer may report to and discuss
13       its activities, information and findings to other peer review com-
14       mittees or officers or to a board of directors or an administrative
15       officer of a health care provider without waiver of the privilege
16       provided by subsection (b) and the records of all such committees
17       or officers relating to such report shall be privileged as provided
18       by subsection (b).
19           (f) Nothing in this section shall be construed to prevent an in-
20       sured from obtaining information pertaining to payment of benefits
21       under a contract with an insurance company, a health maintenance
22       organization or an administrator of a health benefits plan.
23        Sec. 17. K.S.A. 1997 Supp. 65-4915 is hereby amended to read
24       as follows: 65-4915. (a) As used in this section:
25           (1) ``Health care provider'' means: (A) Those persons and en-
26       tities defined as a health care provider under K.S.A. 40-3401 and
27       amendments thereto; and (B) a dentist licensed by the Kansas den-
28       tal board, a dental hygienist licensed by the Kansas dental board,
29       a professional nurse licensed by the board of nursing, a practical
30       nurse licensed by the board of nursing, a mental health technician
31       licensed by the board of nursing, a physical therapist assistant cer-
32       tified by the state board of healing arts, an occupational therapist
33       registered by the state board of healing arts, an occupational ther-
34       apy assistant registered by the state board of healing arts, a res-
35       piratory therapist registered licensed by the state board of healing
36       arts, a physician's assistant registered by the state board of healing
37       arts and attendants and ambulance services certified by the emer-
38       gency medical services board.
39           (2) ``Health care provider group'' means:
40           (A) A state or local association of health care providers or one
41       or more committees thereof;
42           (B) the board of governors created under K.S.A. 40-3403 and
43       amendments thereto;

SB 242--Am. by H

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  1           (C) an organization of health care providers formed pursuant
  2       to state or federal law and authorized to evaluate medical and
  3       health care services;
  4           (D) a review committee operating pursuant to K.S.A. 65-2840b
  5       through 65-2840d, and amendments thereto;
  6           (E) an organized medical staff of a licensed medical care facil-
  7       ity as defined by K.S.A. 65-425 and amendments thereto, an or-
  8       ganized medical staff of a private psychiatric hospital licensed un-
  9       der K.S.A. 75-3307b and amendments thereto or an organized
10       medical staff of a state psychiatric hospital or state institution for
11       the mentally retarded, as follows: Larned state hospital, Osawa-
12       tomie state hospital, Rainbow mental health facility, Topeka state
13       hospital, Kansas neurological institute, Norton state hospital, Par-
14       sons state hospital and training center and Winfield state hospital
15       and training center;
16           (F) a health care provider;
17           (G) a professional society of health care providers or one or
18       more committees thereof;
19           (H) a Kansas corporation whose stockholders or members are
20       health care providers or an association of health care providers,
21       which corporation evaluates medical and health care services; or
22           (I) an insurance company, health maintenance organization or
23       administrator of a health benefits plan which engages in any of the
24       functions defined as peer review under this section.
25           (3) ``Peer review'' means any of the following functions:
26           (A) Evaluate and improve the quality of health care services
27       rendered by health care providers;
28           (B) determine that health services rendered were profession-
29       ally indicated or were performed in compliance with the applica-
30       ble standard of care;
31           (C) determine that the cost of health care rendered was con-
32       sidered reasonable by the providers of professional health services
33       in this area;
34           (D) evaluate the qualifications, competence and performance
35       of the providers of health care or to act upon matters relating to
36       the discipline of any individual provider of health care;
37           (E) reduce morbidity or mortality;
38           (F) establish and enforce guidelines designed to keep within
39       reasonable bounds the cost of health care;
40           (G) conduct of research;
41           (H) determine if a hospital's facilities are being properly util-
42       ized;
43           (I) supervise, discipline, admit, determine privileges or control

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  1       members of a hospital's medical staff;
  2           (J) review the professional qualifications or activities of health
  3       care providers;
  4           (K) evaluate the quantity, quality and timeliness of health care
  5       services rendered to patients in the facility;
  6           (L) evaluate, review or improve methods, procedures or treat-
  7       ments being utilized by the medical care facility or by health care
  8       providers in a facility rendering health care.
  9           (4) ``Peer review officer or committee'' means:
10           (A) An individual employed, designated or appointed by, or a
11       committee of or employed, designated or appointed by, a health
12       care provider group and authorized to perform peer review; or
13           (B) a health care provider monitoring the delivery of health
14       care at correctional institutions under the jurisdiction of the sec-
15       retary of corrections.
16           (b) Except as provided by K.S.A. 60-437 and amendments
17       thereto and by subsections (c) and (d), the reports, statements,
18       memoranda, proceedings, findings and other records submitted to
19       or generated by peer review committees or officers shall be priv-
20       ileged and shall not be subject to discovery, subpoena or other
21       means of legal compulsion for their release to any person or entity
22       or be admissible in evidence in any judicial or administrative pro-
23       ceeding. Information contained in such records shall not be dis-
24       coverable or admissible at trial in the form of testimony by an
25       individual who participated in the peer review process. The peer
26       review officer or committee creating or initially receiving the rec-
27       ord is the holder of the privilege established by this section. This
28       privilege may be claimed by the legal entity creating the peer re-
29       view committee or officer, or by the commissioner of insurance for
30       any records or proceedings of the board of governors.
31           (c) Subsection (b) shall not apply to proceedings in which a
32       health care provider contests the revocation, denial, restriction or
33       termination of staff privileges or the license, registration, certifi-
34       cation or other authorization to practice of the health care pro-
35       vider. A licensing agency in conducting a disciplinary proceeding
36       in which admission of any peer review committee report, record
37       or testimony is proposed shall hold the hearing in closed session
38       when any such report, record or testimony is disclosed. Unless oth-
39       erwise provided by law, a licensing agency conducting a discipli-
40       nary proceeding may close only that portion of the hearing in
41       which disclosure of a report or record privileged under this section
42       is proposed. In closing a portion of a hearing as provided by this
43       section, the presiding officer may exclude any person from the

SB 242--Am. by H

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  1       hearing location except the licensee, the licensee's attorney, the
  2       agency's attorney, the witness, the court reporter and appropriate
  3       staff support for either counsel. The licensing agency shall make
  4       the portions of the agency record in which such report or record
  5       is disclosed subject to a protective order prohibiting further dis-
  6       closure of such report or record. Such report or record shall not
  7       be subject to discovery, subpoena or other means of legal com-
  8       pulsion for their release to any person or entity. No person in at-
  9       tendance at a closed portion of a disciplinary proceeding shall at
10       a subsequent civil, criminal or administrative hearing, be required
11       to testify regarding the existence or content of a report or record
12       privileged under this section which was disclosed in a closed por-
13       tion of a hearing, nor shall such testimony be admitted into evi-
14       dence in any subsequent civil, criminal or administrative hearing.
15       A licensing agency conducting a disciplinary proceeding may re-
16       view peer review committee records, testimony or reports but
17       must prove its findings with independently obtained testimony or
18       records which shall be presented as part of the disciplinary pro-
19       ceeding in open meeting of the licensing agency. Offering such
20       testimony or records in an open public hearing shall not be
21       deemed a waiver of the peer review privilege relating to any peer
22       review committee testimony, records or report.
23           (d) Nothing in this section shall limit the authority, which may
24       otherwise be provided by law, of the commissioner of insurance,
25       the state board of healing arts or other health care provider li-
26       censing or disciplinary boards of this state to require a peer review
27       committee or officer to report to it any disciplinary action or rec-
28       ommendation of such committee or officer; to transfer to it records
29       of such committee's or officer's proceedings or actions to restrict
30       or revoke the license, registration, certification or other authori-
31       zation to practice of a health care provider; or to terminate the
32       liability of the fund for all claims against a specific health care
33       provider for damages for death or personal injury pursuant to sub-
34       section (i) of K.S.A. 40-3403 and amendments thereto. Reports and
35       records so furnished shall not be subject to discovery, subpoena
36       or other means of legal compulsion for their release to any person
37       or entity and shall not be admissible in evidence in any judicial or
38       administrative proceeding other than a disciplinary proceeding by
39       the state board of healing arts or other health care provider li-
40       censing or disciplinary boards of this state.
41           (e) A peer review committee or officer may report to and dis-
42       cuss its activities, information and findings to other peer review
43       committees or officers or to a board of directors or an administra-

SB 242--Am. by H

25

  1       tive officer of a health care provider without waiver of the privi-
  2       lege provided by subsection (b) and the records of all such com-
  3       mittees or officers relating to such report shall be privileged as
  4       provided by subsection (b).
  5           (f) Nothing in this section shall be construed to prevent an in-
  6       sured from obtaining information pertaining to payment of ben-
  7       efits under a contract with an insurance company, a health main-
  8       tenance organization or an administrator of a health benefits plan.
  9           Sec. 18. K.S.A. 65-4921 is hereby amended to read as follows:
10       65-4921. As used in K.S.A. 65-4921 through 65-4930, and amend-
11       ments thereto:
12           (a) ``Appropriate licensing agency'' means the agency that is-
13       sued the license to the individual or health care provider who is the
14       subject of a report under this act.
15           (b) ``Department'' means the department of health and environ-
16       ment.
17           (c) ``Health care provider'' means: (1) Those persons and enti-
18       ties defined as a health care provider under K.S.A. 40-3401 and
19       amendments thereto; and (2) a dentist licensed by the Kansas dental
20       board, a dental hygienist licensed by the Kansas dental board, a
21       professional nurse licensed by the board of nursing, a practical
22       nurse licensed by the board of nursing, a mental health technician
23       licensed by the board of nursing, a physical therapist assistant cer-
24       tified by the state board of healing arts, an occupational therapist
25       registered by the state board of healing arts, an occupational ther-
26       apy assistant registered by the state board of healing arts and a
27       respiratory therapist registered licensed by the state board of healing
28       arts.
29           (d) ``License,'' ``licensee'' and ``licensing'' include comparable
30       terms which relate to regulation similar to licensure, such as reg-
31       istration.
32           (e) ``Medical care facility'' means: (1) A medical care facility
33       licensed under K.S.A. 65-425 et seq. and amendments thereto; (2) a
34       private psychiatric hospital licensed under K.S.A. 75-3307b and
35       amendments thereto; and (3) state psychiatric hospitals and state
36       institutions for the mentally retarded, as follows: Larned state hos-
37       pital, Osawatomie state hospital, Rainbow mental health facility,
38       Topeka state hospital, Kansas neurological institute, Norton state
39       hospital, Parsons state hospital and training center and Winfield
40       state hospital and training center.
41           (f) ``Reportable incident'' means an act by a health care pro-
42       vider which: (1) Is or may be below the applicable standard of care
43       and has a reasonable probability of causing injury to a patient; or

SB 242--Am. by H

26

  1       (2) may be grounds for disciplinary action by the appropriate li-
  2       censing agency.
  3           (g) ``Risk manager'' means the individual designated by a med-
  4       ical care facility to administer its internal risk management pro-
  5       gram and to receive reports of reportable incidents within the fa-
  6       cility.
  7           (h) ``Secretary'' means the secretary of health and environment.
  8           Sec. 19. K.S.A. 1996 1997 Supp. 74-4916 is hereby amended to
  9       read as follows: 74-4916. (1) Upon the death of a member before
10       retirement, the member's accumulated contributions shall be paid
11       to the member's beneficiary.
12           (2) (a) In the event that a member dies before retirement as a
13       result of an accident arising out of and in the course of the member's
14       actual performance of duty in the employ of a participating em-
15       ployer independent of all other causes and not as a result of a will-
16       fully negligent or intentional act of the member, an accidental death
17       benefit shall be payable if: (A) A report of the accident, in a form
18       acceptable to the board, is filed in the office of the executive sec-
19       retary of the board within 60 days after the date of the accident
20       causing such death and an application for such benefit, in such form
21       and manner as the board shall prescribe, is filed in the office of the
22       executive secretary of the board within two years of the date of the
23       accident, but the board may waive such time limits for a reasonable
24       period if in the judgment of the board the failure to meet these limits
25       was due to lack of knowledge or incapacity; and (B) the board finds
26       from such evidence as it may require, to be submitted in such form
27       and manner as it shall prescribe, that the natural and proximate
28       cause of death was the result of an accident arising out of and in
29       the course of the member's employment with a participating em-
30       ployer independent of all other causes at a definite time and place.
31       Such accidental death benefit shall be a lump-sum amount of
32       $50,000 and an annual amount of 1/2 of the member's final average
33       salary which shall accrue from the first day of the month following
34       the date of death and which shall be payable in monthly install-
35       ments or as the board may direct, but, after June 30, 1982, in no
36       case shall the accidental death benefit be less than $100 per month.
37       The accidental death benefit payments shall be paid to the surviving
38       spouse of such deceased member, such payments to continue so long
39       as such surviving spouse lives or if there is no surviving spouse, or
40       in the case the spouse dies before the youngest child of such de-
41       ceased member attains age 18 or before the youngest child of such
42       deceased member attains age 23 years, if such child is a full-time
43       student as provided in K.S.A. 74-49,117 and amendments thereto or

SB 242--Am. by H

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  1       if there are one or more children of the member who are totally
  2       disabled and dependent on the member or spouse, then to the child
  3       or children of such member under age 18 or under age 23, if such
  4       child or children are full-time students as provided in K.S.A. 74-
  5       49,117 and amendments thereto and to the child or children of the
  6       member who are totally disabled and dependent on the member or
  7       spouse, divided in such manner as the board in its discretion shall
  8       determine, to continue until the youngest surviving child dies or
  9       attains age 18 or attains age 23 if such child is a full-time student
10       as provided in K.S.A. 79-49,117 and amendments thereto or, in the
11       case of the child or children who are totally disabled and dependent
12       on the member or spouse, until death or until no longer totally dis-
13       abled, or if there is no surviving spouse or child eligible for acci-
14       dental death benefits under this subsection (2) at the time of the
15       member's death, then to the parent or parents of such member who
16       are dependent on such member, to continue until the last such par-
17       ent dies. All payments due under this subsection (2) to a minor shall
18       be made to a legally appointed conservator of such minor or totally
19       disabled child as provided in subsection (7) of K.S.A. 74-4902 and
20       amendments thereto. Commencing on the effective date of this act,
21       any surviving spouse, who was receiving benefits pursuant to this
22       section and who had such benefits terminated by reason of such
23       spouse's remarriage, shall be entitled to once again receive benefits
24       pursuant to this section, except that such surviving spouse shall not
25       be entitled to recover any benefits not received after the termination
26       of benefits by reason of such surviving spouse's remarriage but be-
27       fore the effective date of this act.
28           (b) In construction of this section of the act there shall be no
29       presumption that the death of the member was the result of an ac-
30       cident nor shall there be a liberal interpretation of the law or evi-
31       dence in favor of the person claiming under this subsection (2). In
32       the event of the death of a member resulting from a heart, circula-
33       tory or respiratory condition there must be clear and precise evi-
34       dence that death was the result of an accident independent of all
35       other causes which arose out of and in the course of the member's
36       actual performance of duties in the employ of a participating em-
37       ployer.
38           (c) The annual benefit under this subsection (2) shall be re-
39       duced by any workers compensation benefit payable. If the workers
40       compensation benefit is paid in a lump sum, the amount of such
41       reduction shall be calculated on a monthly basis over the period of
42       time for which workers compensation benefits would have been
43       payable had such lump sum not been paid. For any recipient al-

SB 242--Am. by H

28

  1       ready in receipt of such benefits on the effective date of this act, no
  2       change in the original reduction for workers compensation benefits
  3       shall be applicable to benefits paid prior to July 1, 1994. In the
  4       event that a member should die as a result of an accident as de-
  5       scribed in this subsection (2), all elections or options previously
  6       made by the deceased member shall become void and of no effect
  7       whatsoever and the retirement system shall be liable only for the
  8       accidental death benefit, refund of accumulated contributions as
  9       described in subsection (1) and any insured death benefit that may
10       be due. The benefit payable under this subsection (2) shall be
11       known and referred to as the ``accidental death benefit.''
12           (3) (a) Upon the application of a member, or the member's ap-
13       pointing authority acting for the member, a member who is in the
14       employ of a participating employer and becomes totally and per-
15       manently disabled for duty in the employ of a participating em-
16       ployer, by reason of an accident which occurred prior to July 1,
17       1975, may be retired by the board if, (A) the board finds the total
18       and permanent disability to be the natural and proximate result of
19       an accident causing personal injury or disease independent of all
20       other causes and arising out of and in the course of the member's
21       actual performance of duties as an employee of a participating em-
22       ployer; and (B) a report of the accident, in a form acceptable to the
23       board is filed in the office of the executive secretary of the board
24       within 200 days after the date of the accident causing such injury;
25       and (C) such application for retirement under this provision, in
26       such form and manner as shall be prescribed by the board, is filed
27       in the office of the executive secretary of the board within two years
28       of the date of the accident; and (D) after a medical examination of
29       the member has been made by or under the direction of a medical
30       physician or physicians or any other practitioner holding a valid
31       license to practice a branch of the healing arts issued by the Kansas
32       state board of healing arts designated by the board and the medical
33       physician or physicians or any other practitioner holding a valid
34       license to practice a branch of the healing arts issued by the Kansas
35       state board of healing arts report in writing to the board that the
36       member is physically or mentally totally disabled for duty in the
37       employ of a participating employer and that such disability will
38       probably be permanent; and (E) the board finds that the member
39       became permanently and totally disabled on a date certain based
40       on the evidence furnished and the professional guidance obtained
41       and that such disability was not the result of a willfully negligent
42       or intentional act of the member. If the board shall so retire the
43       applicant, the member shall receive annually an accidental total

SB 242--Am. by H

29

  1       disability benefit equal to 1/2 of the member's final average salary
  2       which shall accrue from the first day of the month following the
  3       date of such accidental total and permanent disability as found by
  4       the board payable in monthly installments or as the board may
  5       direct.
  6           (b) In construction of this subsection (3) there shall be no pre-
  7       sumption that the disability of the member was the result of an
  8       accident nor shall there be a liberal interpretation of the law or
  9       evidence in favor of the member claiming under this subsection (3).
10       In the event of the disability of a member resulting from a heart,
11       circulatory or respiratory condition there must be clear and precise
12       evidence that disability was the result of an accident independent
13       of all other causes which arose out of and in the course of the mem-
14       ber's actual performance of duties in the employ of a participating
15       employer.
16           (c) A member will continue to receive such accidental total dis-
17       ability benefit so long as the member is wholly and continuously
18       disabled by such injury and prevented thereby from engaging in
19       any gainful occupation or employment for which the member is
20       reasonably qualified by reason of education, training or experience.
21       The accidental loss of both hands by actual severance through or
22       above the wrist joint, or the accidental loss of both feet by actual
23       severance through or above the ankle joint or the entire and irre-
24       coverable accidental loss of sight of both eyes, or such severance of
25       one hand and one foot, and such severance of one hand or one foot
26       and such loss of sight of one eye, shall be deemed accidental total
27       and permanent disability and accidental total disability benefits
28       shall be paid so long as the member lives.
29           (d) Any retirant retired by reason of such accidental total and
30       permanent disability who has been receiving benefits under the pro-
31       visions of this subsection (3) for a period of five years shall be
32       deemed finally retired and shall not be subject to further medical
33       examinations, except that if the board of trustees has reasonable
34       grounds to question whether the retirant remains totally and per-
35       manently disabled, a further medical examination or examinations
36       may be required. Refusal or neglect to submit to examination shall
37       be sufficient cause for suspending or discontinuing the accidental
38       total disability benefit. If the refusal or neglect continues for a pe-
39       riod of one year, all of the member's rights with respect to such
40       accidental total disability benefit may be revoked by the board.
41           (e) In the event that a retirant who is receiving an accidental
42       total disability benefit dies within five years after the date of the
43       retirant's retirement, an accidental death benefit shall then be pay-

SB 242--Am. by H

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  1       able as provided in subsection (2) of this section.
  2           (f) A member who retires under the provisions of this subsection
  3       (3) shall receive such benefits as provided in this subsection (3) in
  4       lieu of all other retirement benefits provided under the retirement
  5       system except that no member shall be entitled to receive any pay-
  6       ments under this subsection (3) for a period for which insured dis-
  7       ability benefits are received.
  8           (g) The value, as determined by the board upon recommenda-
  9       tion of the actuary, of any workmen's compensation benefits paid
10       or payable to the recipient of an accidental total disability benefit
11       shall be deducted from the amount payable under this section.
12           (h) The benefit payable under subsection (3) of this section shall
13       be known and referred to as ``accidental total disability benefit.''
14           Sec. 20. K.S.A. 1996 1997 Supp. 74-4960a is hereby amended
15       to read as follows: 74-4960a. (1) If any active contributing member
16       who is appointed or employed on or after July 1, 1989, or who makes
17       an election pursuant to K.S.A. 74-4955a and amendments thereto
18       to be covered by the provisions of this act becomes disabled as de-
19       fined in subsection (2), such member shall receive a monthly benefit
20       equal to 50% of the member's final average salary at the time such
21       member was disabled payable in monthly installments, accruing
22       from the first day upon which the member ceases to draw compen-
23       sation, if a report of the disability in such form and manner as the
24       board shall prescribe is filed in the office of the executive secretary
25       of the board within 220 days after the date of the commencement
26       of such disability and if an application for such benefit in such form
27       and manner as the board shall prescribe is filed in the office of the
28       executive secretary of the board within two years of the date of the
29       commencement of such disability.
30           (2) For the purposes of this section, ``disabled'' means total in-
31       ability to perform permanently the duties of the position of police-
32       man or fireman.
33           (3) In the event a member who is disabled and entitled to such
34       benefits as provided in subsection (1) dies after the date of such
35       disability, and no benefits are payable under subsection (3) of
36       K.S.A. 74-4958 and amendments thereto, the following benefits shall
37       be payable:
38           (i) To the member's spouse, if lawfully wedded to the member
39       at the time of the member's death, a lump-sum benefit equal to 50%
40       of the member's final average salary at the time such member was
41       disabled.
42           (ii) To the member's spouse, if lawfully wedded to the member
43       at the time of the member's death, an annual benefit equal to 50%

SB 242--Am. by H

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  1       of the member's benefit payable in monthly installments, to accrue
  2       from the first day of the month following the member's date of death
  3       and ending on the last day of the month in which the spouse dies.
  4       Commencing on the effective date of this act, any surviving spouse,
  5       who was receiving benefits pursuant to this section and who had
  6       such benefits terminated by reason of such spouse's remarriage,
  7       shall be entitled to once again receive benefits pursuant to this sec-
  8       tion, except that such surviving spouse shall not be entitled to re-
  9       cover any benefits not received after the termination of benefits by
10       reason of such surviving spouse's remarriage but before the effec-
11       tive date of this act. If there is no surviving spouse, or if after the
12       death of the spouse there remain one or more children under the
13       age of 18 years or one or more children under the age of 23 years
14       who is a full-time student as provided in K.S.A. 74-49,117 and
15       amendments thereto, the annual spouse's benefit shall be payable
16       in equal shares to such children and each child's share shall end on
17       the last day of the month in which such child attains the age of 18
18       years or dies, whichever occurs earlier or in which such child at-
19       tains the age of 23 years, if such child is a full-time student as pro-
20       vided in K.S.A. 74-49,117 and amendments thereto. Commencing
21       on the effective date of this act, any child who was receiving benefits
22       pursuant to this section and who had such benefits terminated by
23       reason of such child's marriage, shall be entitled to once again re-
24       ceive benefits pursuant to this section subject to the limitations con-
25       tained in this section, except that such child shall not be entitled to
26       recover any benefits not received after the termination of benefits
27       by reason of such child's marriage but before the effective date of
28       this act.
29           (4) Any member who was employed for compensation by an em-
30       ployer other than the member's participating employer and whose
31       disability was incurred in the course of such other employment shall
32       not be eligible for any of the benefits provided in subsection (1) or
33       (3).
34           (5) If a member becomes totally and permanently disabled and
35       no benefits are payable under subsection (1), the sum of the mem-
36       ber's accumulated contributions shall be paid to the member.
37           (6) Any member receiving benefits under this section shall sub-
38       mit to medical examination, not oftener than annually, by one or
39       more physicians or any other practitioners of the healing arts hold-
40       ing a valid license issued by Kansas the state board of healing arts
41       to practice a branch of the healing arts, as the board of trustees may
42       direct. If upon such medical examination, the examiner's report to
43       the board that the member is physically able and capable of resum-

SB 242--Am. by H

32

  1       ing employment with the participating employer from whose em-
  2       ployment such member was employed prior to such member's dis-
  3       ability, the disability benefits shall terminate. A member who has
  4       been receiving benefits under the provisions of this section and who
  5       returns to employment of a participating employer shall immedi-
  6       ately commence accruing service credit which shall be added to that
  7       which has been accrued by virtue of previous service.
  8           (7) Any member who has been receiving benefits under the pro-
  9       visions of this section for a period of five years shall be deemed
10       permanent and shall not be subject to further medical examinations,
11       except that if the board of trustees shall have reasonable grounds
12       to question whether the member remains totally and permanently
13       disabled, a further medical examination or examinations may be
14       required.
15           (8) Refusal or neglect to submit to examination as provided in
16       subsection (6) shall be sufficient cause for suspending or discontin-
17       uing benefit payments under this section and if such refusal or ne-
18       glect shall continue for a period of one year, the member's rights in
19       and to all benefits under this system may be revoked by the board.
20           (9) In the event that a member becomes disabled and is eligible
21       for benefits provided in this section, such member shall be given
22       participating service credit for the entire period of such disability.
23           (10) Any member who is receiving benefits pursuant to this sec-
24       tion shall file annually a statement of earnings for the previous year
25       in such form and manner as the board shall prescribe. Any disabil-
26       ity benefit paid to a member entitled to such benefit pursuant to
27       this section shall be reduced by the board in an amount equal to a
28       $1 reduction in such benefit for every $2 of earnings of such member
29       which were earned during the previous year while such member
30       was disabled. Such reduction shall apply only to a member's earn-
31       ings which exceed $10,000.
32           (11) Any benefits provided pursuant to this section and any par-
33       ticipating service credit given pursuant to subsection (9) shall ter-
34       minate upon the earliest date such member is eligible for retirement
35       upon attainment of the normal retirement date as provided in K.S.A.
36       74-4964a and amendments thereto.
37           (12) Any member who has received benefits under the provi-
38       sions of this section for a period of five years or more immediately
39       preceding retirement shall have such member's final average salary
40       adjusted upon retirement by the actuarial salary assumption rates
41       in existence during such period. Effective July 1, 1993, each mem-
42       ber's current annual rate shall be adjusted upon retirement by 5%
43       for each year of disability after July 1, 1993.

SB 242--Am. by H

33

  1           (13) All payments due under this section to a minor shall be
  2       made to a legally appointed conservator of such minor.
  3           (14) The provisions of this section shall be effective on and after
  4       July 1, 1989 and shall apply only to members who were appointed
  5       or employed prior to July 1, 1989, and who made an election pur-
  6       suant to K.S.A. 74-4955a and amendments thereto; and persons ap-
  7       pointed or employed on or after July 1, 1989.
  8           Sec. 14 21. K.S.A. 39-952, 40-12a01, 65-4921, 65-5502, 65-5503,
  9       65-5504, 65-5505, 65-5506, 65-5507, 65-5508, 65-5509, 65-5510, 65-
10       5511, 65-5512, and 65-5514 and 65-5516 K.S.A. 1996 Supp. 40-3103,
11       65-4116, 65-4915, 74-4916 and 74-4960a are hereby repealed.
12        Sec. 21. K.S.A. 65-2901 is hereby amended to read as follows:
13       65-2901. (a) As used in this act, the term ``physical therapy'' means
14       a health specialty concerned with the evaluation, treatment or in-
15       struction of human beings to assess, prevent and alleviate physical
16       disability and pain. This includes the administration and evaluation
17       of tests and measurements of bodily functions and structures in aid
18       of treatment; the planning, administration, evaluation and modi-
19       fications of treatment and instruction, including the use of physical
20       measures, activities and devices for prevention and therapeutic
21       purposes; and the provision of consultative, educational and ad-
22       visory services for the purpose of reducing the incidence and se-
23       verity of physical disability and pain. The use of roentgen rays and
24       radium for diagnostic and therapeutic purposes, the use of elec-
25       tricity for surgical purposes, including cauterization, and the prac-
26       tice of medicine and surgery are not authorized or included under
27       the term ``physical therapy'' as used in this act.
28           (b) ``Physical therapist'' means a person who practices physical
29       therapy as defined in this act and delegates selective forms of treat-
30       ment to supportive personnel under the supervision of such per-
31       son. Any person who successfully meets the requirements of K.S.A.
32       65-2906 and amendments thereto shall be known and designated
33       as a physical therapist and may designate or describe oneself as a
34       physical therapist, physiotherapist, registered licensed physical ther-
35       apist, P.T., Ph.T. or R.P.T. L.P.T. Physical therapists may evaluate
36       patients without physician referral but may initiate treatment only
37       after consultation with and approval by a physician licensed to
38       practice medicine and surgery, a licensed podiatrist or a licensed
39       dentist in appropriately related cases.
40           (c) ``Physical therapist assistant'' means a person who works
41       under the direction of a physical therapist, and who assists in the
42       application of physical therapy, and whose activities require an
43       understanding of physical therapy, but do not require professional

SB 242--Am. by H

34

  1       or advanced training in the anatomical, biological and physical sci-
  2       ences involved in the practice of physical therapy. Any person who
  3       successfully meets the requirements of K.S.A. 65-2906 and amend-
  4       ments thereto shall be known and designated as a physical thera-
  5       pist assistant, and may designate or describe oneself as a physical
  6       therapist assistant, certified physical therapist assistant, P.T.A.,
  7       C.P.T.A. or P.T. Asst.
  8           Sec. 22. K.S.A. 65-2904 is hereby amended to read as follows:
  9       65-2904. The state examining committee shall be appointed as fol-
10       lows: The state board of healing arts shall appoint one physician
11       licensed to practice medicine and surgery and one member of the
12       state board of healing arts, and the governor shall appoint three
13       physical therapists who are duly registered licensed physical thera-
14       pists who have at least three years' experience in physical therapy
15       immediately preceding the appointment and are actively engaged,
16       in this state, in physical therapy. The foregoing appointees shall
17       constitute the state examining committee for physical therapy. Ex-
18       cept as otherwise provided in this section, the members appointed
19       in accordance with this section shall be appointed for terms of four
20       years and shall serve until their successors are appointed and qual-
21       ify. Of the first three physical therapist members appointed by the
22       governor on or after July 1, 1983, one shall be appointed for a
23       term of two years, one shall be appointed for a term of three years
24       and one shall be appointed for a term of four years, and these
25       members shall serve until a successor is appointed and qualified.
26       Thereafter, physical therapist members appointed by the governor
27       shall be appointed for terms of four years and shall serve until their
28       successors are appointed and qualified. Each member of the com-
29       mittee shall take an oath as required by law for state officers. No
30       physical therapist member appointed by the governor on or after
31       July 1, 1983, shall be appointed for more than two successive four-
32       year terms commencing on or after that date.
33           Sec. 23. K.S.A. 65-2905 is hereby amended to read as follows:
34       65-2905. (a) The state examining committee for physical therapy
35       provided for in this act shall elect from their members a president
36       and a vice-president, who shall serve for one year or until their
37       successors are elected and qualified. The executive director of the
38       state board of healing arts shall act as secretary of the examining
39       committee.
40           (b) The state examining committee shall serve in an advisory
41       capacity to the state board of healing arts in matters pertaining to
42       physical therapy. The state board of healing arts may adopt rea-
43       sonable rules and regulations relative to the qualification and ex-

SB 242--Am. by H

35

  1       amination of applicants as may be found necessary for the per-
  2       formance of its duties. As to any matters coming under its
  3       jurisdiction, the state examining committee while in session may
  4       take testimony and any member may administer oaths in the taking
  5       of such testimony.
  6           (c) A simple majority of the committee shall constitute a quo-
  7       rum for the transaction of business. The secretary shall keep a
  8       record of all procedures of the committee.
  9           (d) The examining committee shall meet at a city designated
10       by the examining committee and the board, and under the direc-
11       tion of the state board of healing arts, there conduct the exami-
12       nation for the registration licensure of physical therapists and certi-
13       fication of physical therapist assistants, at least once each year, and
14       may hold other meetings and examinations at such times and
15       places as the examining committee and board may determine.
16           (e) The board may appoint and fix the compensation of such
17       employees as may be necessary to assist the examining committee,
18       and the board shall have the power to employ such expert assis-
19       tance as it may deem necessary to carry out the purposes of this
20       act. Members of the state examining committee for physical ther-
21       apy attending meetings of such committee, or attending a subcom-
22       mittee meeting thereof authorized by such committee, shall be
23       paid compensation, subsistence allowances, mileage and other ex-
24       penses as provided in K.S.A. 75-3223 and amendments thereto.
25           Sec. 24. K.S.A. 1997 Supp. 65-2906 is hereby amended to read
26       as follows: 65-2906. (a) It shall be the duty of the state board of
27       healing arts, with the advice and assistance of the state examining
28       committee, to pass upon the qualifications of all applicants for ex-
29       amination and registration licensure or certification, provide for and
30       conduct all examinations, determine the applicants who success-
31       fully pass the examination, duly register license or certify such per-
32       sons and adopt rules and regulations for professional conduct of
33       the registered or certified persons.
34           (b) An applicant applying for registration licensure as a physical
35       therapist or for a certificate as a physical therapist assistant shall
36       file a written application on forms provided by the state board of
37       healing arts, showing to the satisfaction of the board that the ap-
38       plicant meets the following requirements:
39           (1) The applicant is of legal age;
40           (2) the applicant has successfully completed the academic
41       requirements of an educational program in physical therapy ap-
42       proved by the board which is appropriate for the certification or
43       registration licensure of the applicant;

SB 242--Am. by H

36

  1           (3) the applicant has passed an examination required by the
  2       board which is appropriate for the certification or registration licen-
  3       sure of the applicant to test the applicant's knowledge of the basic
  4       and clinical sciences relating to physical therapy theory and prac-
  5       tice; and
  6           (4) the applicant has paid to the board all applicable fees es-
  7       tablished under K.S.A. 65-2911 and amendments thereto.
  8           (c) The board shall adopt rules and regulations establishing the
  9       criteria which a school shall satisfy in order to be approved by the
10       board for purposes of subsection (b). The board may send a ques-
11       tionnaire developed by the board to any school for which the board
12       does not have sufficient information to determine whether the
13       school meets the requirements of the board for approval and rules
14       and regulations adopted under this section. The questionnaire
15       providing the necessary information shall be completed and re-
16       turned to the board in order for the school to be considered for
17       approval. The board may contract with investigative agencies,
18       commissions or consultants to assist the board in obtaining infor-
19       mation about schools. In entering such contracts the authority to
20       approve schools shall remain solely with the board.
21           (d) All registrations or certificates issued prior to July 1, 1994, which
22       are in effect on the effective date of this act shall be and continue in full
23       force and effect and be eligible for renewal and reinstatement under
24       K.S.A. 65-2910 and amendments thereto.
25           Sec. 25. K.S.A. 65-2907 is hereby amended to read as follows:
26       65-2907. An applicant may be registered licensed as a physical ther-
27       apist or certified as a physical therapist assistant without a certif-
28       icate of proficiency in the basic sciences from the state board of
29       healing arts if the applicant fulfills the provisions of this act.
30           Sec. 26. K.S.A. 65-2908 is hereby amended to read as follows:
31       65-2908. The board shall register license as a physical therapist or
32       certify as a physical therapist assistant each applicant who suc-
33       cessfully meets the requirements provided for in this act for reg-
34       istration licensure as a physical therapist or certification as a physical
35       therapist assistant and who is otherwise qualified as required
36       herein. The board shall issue a certificate of registration license to
37       each person registered licensed under this act and a certificate to
38       each person certified under this act.
39           Sec. 27. K.S.A. 65-2909 is hereby amended to read as follows:
40       65-2909. (a) The board may issue a certificate of registration license
41       in physical therapy without examination therein to an applicant
42       who presents evidence satisfactory to the board of having passed
43       the examination in physical therapy of the American registry of

SB 242--Am. by H

37

  1       physical therapists, or an examination before a similar, lawfully
  2       authorized examining board in physical therapy of another state,
  3       District of Columbia, territory or foreign country, if the standards
  4       for registration or licensure in physical therapy in such other state,
  5       district, territory or foreign country are determined by the board
  6       to be as high as those of this state for licensure. At the time of making
  7       such application, the applicant shall pay to the board a fee as pre-
  8       scribed, no part of which shall be returned.
  9           (b) The board may issue a certificate as a physical therapist
10       assistant without examination therein to an applicant who presents
11       evidence satisfactory to the board of having passed an examination
12       as a physical therapist assistant as approved by the state board of
13       healing arts or an examination before a similar, lawfully authorized
14       examining board in physical therapy of another state, District of
15       Columbia, territory or foreign country, if the standards for certi-
16       fication in physical therapy in such other state, District of Colum-
17       bia, territory or foreign country are determined by the board to
18       be as high as those of this state. At the time of making such appli-
19       cation, the applicant shall pay to the board a fee as prescribed, no
20       part of which shall be returned.
21           Sec. 28. K.S.A. 65-2910 is hereby amended to read as follows:
22       65-2910. (a) The registration licensure of every registered licensed
23       physical therapist and the certification of every certified physical
24       therapist assistant shall expire on the date established by rules and
25       regulations of the state board of healing arts which may provide
26       renewal throughout the year on a continuing basis. In each case
27       in which a registration license or certificate is renewed for a period
28       of time of less than one year, the board may prorate the amount
29       of the fee established under K.S.A. 65-2911 and amendments
30       thereto. The request for renewal shall be on a form provided by
31       the board and shall be accompanied by the renewal fee established
32       under to K.S.A. 65-2911 and amendments thereto which shall be
33       paid not later than the expiration date of the registration license or
34       certificate.
35           (b) The state board of healing arts shall require every registered
36       licensed physical therapist or certified physical therapist assistant
37       as a condition of renewal to submit with the application for a re-
38       newal evidence of satisfactory completion of a program of contin-
39       uing education required by the board. The board shall establish
40       the requirements for each such program of continuing education
41       by rules and regulations. In establishing such requirements the
42       board shall consider any existing programs of continuing educa-
43       tion currently being offered to registered licensed physical therapists

SB 242--Am. by H

38

  1       or certified physical therapist assistants.
  2           (c) The state board of healing arts prior to renewal of the reg-
  3       istration license of a physical therapist, shall require the registrant
  4       licensee, if in the active practice of physical therapy within Kansas,
  5       to submit to the board evidence satisfactory to the board that the
  6       registrant licensee is maintaining a policy of professional liability in-
  7       surance as required by K.S.A. 40-3402 and amendments thereto
  8       and has paid the annual premium surcharge as required by K.S.A.
  9       40-3404 and amendments thereto.
10           (d) At least 30 days before the expiration of the registration li-
11       cense of a physical therapist or the certificate of a physical therapist
12       assistant, the state board of healing arts shall notify the registrant
13       licensee or certificate holder of the expiration by mail addressed to
14       the registrant's licensee's last mailing address as noted upon the of-
15       fice records. If the registrant licensee or certificate holder fails to
16       pay the renewal fee by the date of expiration, the registrant licensee
17       or certificate holder shall be given a second notice that the regis-
18       tration license or certificate has expired and the registration license
19       or certificate may be renewed only if the renewal fee and the late
20       renewal fee are received by the board within the thirty-day period
21       following the date of expiration and that, if both fees are not re-
22       ceived within the thirty-day period, the registration license or cer-
23       tificate shall be considered to have lapsed for failure to renew and
24       shall be reissued only after the physical therapist or physical ther-
25       apist assistant has been reinstated under subsection (e).
26           (e) Any registrant licensee or certificate holder who allows the
27       registration license or certificate to lapse by failing to renew may be
28       reinstated upon recommendation of the state board of healing arts
29       and upon payment of the renewal fee and the reinstatement fee
30       and upon submitting evidence of satisfactory completion of any
31       applicable reeducation and continuing education requirements es-
32       tablished by the board. The board shall adopt rules and regulations
33       establishing appropriate reeducation and continuing education
34       requirements for reinstatement of persons whose registrations li-
35       censes or certificates have lapsed for failure to renew.
36           Sec. 29. K.S.A. 65-2912 is hereby amended to read as follows:
37       65-2912. (a) The board may refuse to grant a certificate of registra-
38       tion license to any physical therapist or a certificate to any physical
39       therapist assistant, or may suspend or revoke the registration license
40       of any registered licensed physical therapist or certificate of any cer-
41       tified physical therapist assistant for any of the following grounds:
42           (1) Addiction to or distribution of intoxicating liquors or drugs
43       for other than lawful purposes;

SB 242--Am. by H

39

  1           (2) conviction of a felony if the board determines, after inves-
  2       tigation, that the physical therapist or physical therapist assistant
  3       has not been sufficiently rehabilitated to warrant the public trust;
  4           (3) obtaining or attempting to obtain registration licensure or
  5       certification by fraud or deception;
  6           (4) finding by a court of competent jurisdiction that the phys-
  7       ical therapist or physical therapist assistant is a disabled person
  8       and has not thereafter been restored to legal capacity;
  9           (5) unprofessional conduct;
10           (6) the treatment or attempt to treat ailments or other health
11       conditions of human beings other than by physical therapy and as
12       authorized by this act;
13           (7) failure to refer patients to other health care providers if
14       symptoms are present for which physical therapy treatment is in-
15       advisable or if symptoms indicate conditions for which treatment
16       is outside the scope of knowledge of the registered licensed physical
17       therapist;
18           (8) initiating treatment without prior consultation and ap-
19       proval by a physician licensed to practice medicine and surgery,
20       by a licensed podiatrist or by a licensed dentist; and
21           (9) knowingly submitting any misleading, deceptive, untrue or
22       fraudulent misrepresentation on a claim form, bill or statement.
23           (b) All proceedings pursuant to this section shall be conducted
24       in accordance with the provisions of the Kansas administrative pro-
25       cedure act and shall be reviewable in accordance with the act for
26       judicial review and civil enforcement of agency actions.
27           Sec. 30. K.S.A. 1997 Supp. 65-2913 is hereby amended to read
28       as follows: 65-2913. (a) Any person, except a person certified as a
29       physical therapist assistant, who engages in the practice of physical ther-
30       apy or any person who, in any manner, represents oneself as a phys-
31       ical therapist, or who uses in connection with such person's name
32       the words or letters physical therapist, physiotherapist, registered
33       licensed physical therapist, P.T., Ph. T. or R.P.T. L.P.T., or any other
34       letters, words, abbreviations or insignia, indicating or implying
35       that such person is a physical therapist, without a valid existing
36       certificate of registration license as a physical therapist issued to such
37       person under the provisions of this act, shall be guilty of a class B
38       nonperson misdemeanor.
39           (b) Any person who, in any manner, represents oneself as a
40       physical therapist assistant, or who uses in connection with such
41       person's name the words or letters physical therapist assistant, cer-
42       tified physical therapist assistant, P.T.A., C.P.T.A. or P.T. Asst., or
43       any other letters, words, abbreviations or insignia, indicating or

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  1       implying that such person is a physical therapist assistant, without
  2       a valid existing certificate as a physical therapist assistant issued
  3       to such person pursuant to the provisions of this act, shall be guilty
  4       of a class B nonperson misdemeanor.
  5           (c) Nothing in this act shall prohibit any person not holding
  6       oneself out as a physical therapist or physical therapist assistant
  7       from carrying out as an independent practitioner, without pre-
  8       scription or supervision, the therapy or practice for which the per-
  9       son is qualified, and shall not prohibit the person from using cor-
10       rective therapy. Nothing in this act shall prohibit persons whose services
11       are performed pursuant to the delegation of or under the supervision of
12       a licensed physical therapist from performing physical therapy. Nothing
13       in this act shall prohibit students from practicing physical therapy as part
14       of an approved educational program in physical therapy while under the
15       supervision of a qualified instructor. Nothing in this act shall prohibit
16       any person who assists the physical therapist or physical therapist
17       assistant from being designated as a physical therapy aide.
18           Sec. 31. K.S.A. 65-2914 is hereby amended to read as follows:
19       65-2914. (a) No person shall employ fraud or deception in applying
20       for or securing a certificate of registration license as a physical ther-
21       apist.
22           (b) A person registered licensed under this act as a physical ther-
23       apist shall not treat ailments or other health conditions of human
24       beings other than by physical therapy unless duly licensed or reg-
25       istered to provide such treatment under the laws of this state.
26           (c) A person certified under this act as a physical therapist as-
27       sistant shall not treat ailments or other health conditions of human
28       beings except under the direction of a physical therapist duly reg-
29       istered under this act. The word ``direction'' as used in this sub-
30       section (c) shall mean that the physical therapist shall see all pa-
31       tients initially and evaluate them periodically except in those cases
32       in a hospital setting when the physical therapist is not immediately
33       available, the physical therapist assistant may initiate patient care
34       after telephone contact with the physical therapist for documented
35       instruction. The physical therapist must then evaluate the patient
36       and establish a plan of treatment as soon as possible with a mini-
37       mum weekly review.
38           (d) Any person violating the provisions of this section shall be
39       guilty of a class B misdemeanor.
40           Sec. 32. K.S.A. 65-2918 is hereby amended to read as follows:
41       65-2918. Physical therapists practicing their profession, when reg-
42       istered licensed and practicing under and in accordance with the
43       provisions of article 29 of chapter 65 of the Kansas Statutes An-

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  1       notated, and acts amendatory of the provisions thereof or supple-
  2       mental thereto, shall not be construed to be practicing the healing
  3       arts or be subject to the healing arts act.
  4           New Sec. 33. Any person holding a valid registration as a phys-
  5       ical therapist immediately prior to the effective date of this act
  6       which has been issued by the state board of healing arts shall be
  7       deemed to be a licensed physical therapist and shall be subject to
  8       the provisions of this act and the provisions of article 29 of chapter
  9       65 of the Kansas Statutes Annotated.
10           Sec. 34. K.S.A. 1997 Supp. 7-121b is hereby amended to read
11       as follows: 7-121b. (a) Subject to subsection (b) of K.S.A. 40-3411
12       and amendments thereto, whenever a civil action is commenced
13       by filing a petition or whenever a pleading states a claim in a dis-
14       trict court for damages for personal injuries or death arising out
15       of the rendering of or the failure to render professional services
16       by any health care provider, compensation for reasonable attorney
17       fees to be paid by each litigant in the action shall be approved by
18       the judge after an evidentiary hearing and prior to final disposition
19       of the case by the district court. Compensation for reasonable at-
20       torney fees for services performed in an appeal of a judgment in
21       any such action to the court of appeals shall be approved after an
22       evidentiary hearing by the chief judge or by the presiding judge
23       of the panel hearing the case. Compensation for reasonable attor-
24       ney fees for services performed in an appeal of a judgment in any
25       such action to the supreme court shall be approved after an evi-
26       dentiary hearing by the departmental justice for the department
27       in which the appeal originated. In determining the reasonableness
28       of such compensation, the judge or justice shall consider the fol-
29       lowing:
30           (1) The time and labor required, the novelty and difficulty of
31       the questions involved and the skill requisite to perform the legal
32       service properly.
33           (2) The likelihood, if apparent to the client, that the acceptance
34       of the particular employment will preclude other employment by
35       the attorney.
36           (3) The fee customarily charged in the locality for similar legal
37       services.
38           (4) The amount involved and the results obtained.
39           (5) The time limitations imposed by the client or by the circum-
40       stances.
41           (6) The nature and length of the professional relationship with
42       the client.
43           (7) The experience, reputation and ability of the attorney or

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  1       attorneys performing the services.
  2           (8) Whether the fee is fixed or contingent.
  3           (b) As used in this section:
  4           (1) ``Health care provider'' means a person licensed to practice
  5       any branch of the healing arts, a person who holds a temporary
  6       permit to practice any branch of the healing arts, a person engaged
  7       in a postgraduate training program approved by the state board
  8       of healing arts, a licensed medical care facility, a health mainte-
  9       nance organization, a licensed dentist, a licensed professional
10       nurse, a licensed practical nurse, a licensed optometrist, a licensed
11       podiatrist, a licensed pharmacist, a professional corporation or-
12       ganized pursuant to the professional corporation law of Kansas by
13       persons who are authorized by such law to form such a corporation
14       and who are health care providers as defined by this subsection, a
15       registered licensed physical therapist or an officer, employee or
16       agent thereof acting in the course and scope of such person's em-
17       ployment or agency; and
18           (2) ``professional services'' means those services which require
19       licensure, registration or certification by agencies of the state for
20       the performance thereof.
21           Sec. 35. K.S.A. 1997 Supp. 17-2707 is hereby amended to read
22       as follows: 17-2707. As used in this act, unless the context clearly
23       indicates that a different meaning is intended, the following words
24       mean:
25           (a) ``Professional corporation,'' a corporation organized under
26       this act.
27           (b) ``Professional service,'' the type of personal service ren-
28       dered by a person duly licensed by this state as a member of any
29       of the following professions, each paragraph constituting one type:
30           (1) A certified public accountant;
31           (2) An architect;
32           (3) An attorney-at-law;
33           (4) A chiropractor;
34           (5) A dentist;
35           (6) An engineer;
36           (7) An optometrist;
37           (8) An osteopathic physician or surgeon;
38           (9) A physician, surgeon or doctor of medicine;
39           (10) A veterinarian;
40           (11) A podiatrist;
41           (12) A pharmacist;
42           (13) A land surveyor;
43           (14) A licensed psychologist;

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  1           (15) A specialist in clinical social work;
  2           (16) A registered licensed physical therapist;
  3           (17) A landscape architect;
  4           (18) A registered professional nurse;
  5           (19) A real estate broker or salesperson.
  6           (c) ``Regulating board,'' the board or state agency which is
  7       charged with the licensing and regulation of the practice of the
  8       profession which the professional corporation is organized to ren-
  9       der.
10           (d) ``Qualified person'':
11           (1) Any natural person licensed to practice the same type of
12       profession which any professional corporation is authorized to
13       practice;
14           (2) the trustee of a trust which is a qualified trust under sub-
15       section (a) of section 401 of the internal revenue code of 1954, as
16       amended, or of a contribution plan which is a qualified employee
17       stock ownership plan under subsection (a) of section 409A of the
18       internal revenue code of 1954, as amended; or
19           (3) the trustee of a revocable living trust established by a nat-
20       ural person who is licensed to practice the type of profession which
21       any professional corporation is authorized to practice, if the terms
22       of such trust provide that such natural person is the principal ben-
23       eficiary and sole trustee of such trust and such trust does not con-
24       tinue to hold title to professional corporation stock following such
25       natural person's death for more than a reasonable period of time
26       necessary to dispose of such stock.
27           Sec. 36. K.S.A. 1997 Supp. 21-3721 is hereby amended to read
28       as follows: 21-3721. (a) Criminal trespass is:
29           (1) Entering or remaining upon or in any land, nonnavigable
30       body of water, structure, vehicle, aircraft or watercraft other than
31       railroad property as defined in K.S.A. 1997 Supp. 21-3761 and
32       amendments thereto by a person who knows such person is not
33       authorized or privileged to do so, and:
34           (A) Such person enters or remains therein in defiance of an
35       order not to enter or to leave such premises or property personally
36       communicated to such person by the owner thereof or other au-
37       thorized person; or
38           (B) such premises or property are posted in a manner reason-
39       ably likely to come to the attention of intruders, or are locked or
40       fenced or otherwise enclosed, or shut or secured against passage
41       or entry; or
42           (C) such person enters or remains therein in defiance of a re-
43       straining order issued pursuant to K.S.A. 60-1607, 60-3105, 60-

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  1       3106 or 60-3107 or K.S.A. 38-1542, 38-1543 or 38-1563, and
  2       amendments thereto, and the restraining order has been person-
  3       ally served upon the person so restrained; or
  4           (2) entering or remaining upon or in any public or private land
  5       or structure in a manner that interferes with access to or from any
  6       health care facility by a person who knows such person is not au-
  7       thorized or privileged to do so and such person enters or remains
  8       thereon or therein in defiance of an order not to enter or to leave
  9       such land or structure personally communicated to such person by
10       the owner of the health care facility or other authorized person.
11           (b) As used in this section:
12           (1) ``Health care facility'' means any licensed medical care fa-
13       cility, certificated health maintenance organization, licensed men-
14       tal health center, or mental health clinic, licensed psychiatric hos-
15       pital or other facility or office where services of a health care
16       provider are provided directly to patients.
17           (2) ``Health care provider'' means any person: (A) Licensed to
18       practice a branch of the healing arts; (B) licensed to practice psy-
19       chology; (C) licensed to practice professional or practical nursing;
20       (D) licensed to practice dentistry; (E) licensed to practice optom-
21       etry; (F) licensed to practice pharmacy; (G) registered to practice
22       podiatry; (H) licensed as a social worker; or (I) registered licensed to
23       practice physical therapy.
24           (c) (1) Criminal trespass is a class B nonperson misdemeanor.
25           (2) Upon a conviction of a violation of subsection (a)(1)(C), a
26       person shall be sentenced to not less than 48 consecutive hours of
27       imprisonment which must be served either before or as a condition
28       of any grant of probation or suspension, reduction of sentence or
29       parole.
30           Sec. 37. K.S.A. 40-2,111 is hereby amended to read as follows:
31       40-2,111. As used in K.S.A. 40-2,111 through 40-2,113, and amend-
32       ments thereto: (a) ``Adverse underwriting decision'' means: Any of
33       the following actions with respect to insurance transactions in-
34       volving insurance coverage which is individually underwritten:
35           (1) A declination of insurance coverage;
36           (2) a termination of insurance coverage;
37           (3) an offer to insure at higher than standard rates, with re-
38       spect to life, health or disability insurance coverage; or
39           (4) the charging of a higher rate on the basis of information
40       which differs from that which the applicant or policyholder fur-
41       nished, with respect to property or casualty insurance coverage.
42           (b) ``Declination of insurance coverage'' means a denial, in
43       whole or in part, by an insurance company or agent of requested

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  1       insurance coverage.
  2           (c) ``Health care institution'' means any medical care facility,
  3       adult care home, drug abuse and alcoholic treatment facility,
  4       home-health agency certified for federal reimbursement, mental
  5       health center or mental health clinic licensed by the secretary of
  6       social and rehabilitation services, kidney disease treatment center,
  7       county, city-county or multicounty health departments and health-
  8       maintenance organization.
  9           (d) ``Health care provider'' means any person licensed to prac-
10       tice any branch of the healing arts, licensed dentist, licensed pro-
11       fessional nurse, licensed practical nurse, advanced registered
12       nurse practitioner, licensed optometrist, registered licensed physical
13       therapist, licensed social worker, registered physicians' assistant,
14       licensed podiatrist or licensed psychologist.
15           (e) ``Institutional source'' means any natural person, corpora-
16       tion, association, partnership or governmental or other legal entity
17       that provides information about an individual to an agent or in-
18       surance company, other than:
19           (1) An agent;
20           (2) the individual who is the subject of the information; or
21           (3) a natural person acting in a personal capacity rather than
22       a business or professional capacity.
23           (f) ``Insurance transaction'' means any transaction involving in-
24       surance, but not including group insurance coverage, primarily for
25       personal, family or household needs rather than business or pro-
26       fessional needs.
27           (g) ``Medical-record information'' means personal information
28       which:
29           (1) Relates to an individual's physical or mental condition,
30       medical history or medical treatment; and
31           (2) is obtained from a health care provider or health care in-
32       stitution, from the individual, or from the individual's spouse, par-
33       ent or legal guardian.
34           (h) ``Termination of insurance coverage'' or ``termination of an
35       insurance policy'' means either a cancellation, nonrenewal or lapse
36       of an insurance policy, in whole or in part, for any reason other
37       than:
38           (1) The failure to pay a premium as required by the policy ; or
39           (2) at the request or direction of the insured.
40           Sec. 38. K.S.A. 1997 Supp. 40-3401 is hereby amended to read
41       as follows: 40-3401. As used in this act the following terms shall
42       have the meanings respectively ascribed to them herein.
43           (a) ``Applicant'' means any health care provider.

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  1           (b) ``Basic coverage'' means a policy of professional liability in-
  2       surance required to be maintained by each health care provider
  3       pursuant to the provisions of subsection (a) or (b) of K.S.A. 40-3402
  4       and amendments thereto.
  5           (c) ``Commissioner'' means the commissioner of insurance.
  6           (d) ``Fiscal year'' means the year commencing on the effective
  7       date of this act and each year, commencing on the first day of that
  8       month, thereafter.
  9           (e) ``Fund'' means the health care stabilization fund estab-
10       lished pursuant to subsection (a) of K.S.A. 40-3403 and amend-
11       ments thereto.
12           (f) ``Health care provider'' means a person licensed to practice
13       any branch of the healing arts by the state board of healing arts,
14       a person who holds a temporary permit to practice any branch of
15       the healing arts issued by the state board of healing arts, a person
16       engaged in a postgraduate training program approved by the state
17       board of healing arts, a medical care facility licensed by the de-
18       partment of health and environment, a health maintenance organ-
19       ization issued a certificate of authority by the commissioner of in-
20       surance, a podiatrist licensed by the state board of healing arts, an
21       optometrist licensed by the board of examiners in optometry, a
22       pharmacist licensed by the state board of pharmacy, a licensed
23       professional nurse who is authorized to practice as a registered
24       nurse anesthetist, a licensed professional nurse who has been
25       granted a temporary authorization to practice nurse anesthesia
26       under K.S.A. 65-1153 and amendments thereto, a professional cor-
27       poration organized pursuant to the professional corporation law
28       of Kansas by persons who are authorized by such law to form such
29       a corporation and who are health care providers as defined by this
30       subsection, a Kansas limited liability company organized for the
31       purpose of rendering professional services by its members who are
32       health care providers as defined by this subsection and who are
33       legally authorized to render the professional services for which the
34       limited liability company is organized, a partnership of persons
35       who are health care providers under this subsection, a Kansas not-
36       for-profit corporation organized for the purpose of rendering pro-
37       fessional services by persons who are health care providers as de-
38       fined by this subsection, a dentist certified by the state board of
39       healing arts to administer anesthetics under K.S.A. 65-2899 and
40       amendments thereto, a physical therapist registered licensed by the
41       state board of healing arts, a psychiatric hospital licensed under
42       K.S.A. 75-3307b and amendments thereto, or a mental health cen-
43       ter or mental health clinic licensed by the secretary of social and

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  1       rehabilitation services, except that health care provider does not
  2       include (1) any state institution for the mentally retarded, (2) any
  3       state psychiatric hospital, (3) any person holding an exempt license
  4       issued by the state board of healing arts or, (4) any person holding
  5       a visiting clinical professor license from the state board of healing
  6       arts or (5) any person holding a license as a licensed respiratory therapist.
  7           (g) ``Inactive health care provider'' means a person or other
  8       entity who purchased basic coverage or qualified as a self-insurer
  9       on or subsequent to the effective date of this act but who, at the
10       time a claim is made for personal injury or death arising out of the
11       rendering of or the failure to render professional services by such
12       health care provider, does not have basic coverage or self-insur-
13       ance in effect solely because such person is no longer engaged in
14       rendering professional service as a health care provider.
15           (h) ``Insurer'' means any corporation, association, reciprocal
16       exchange, inter-insurer and any other legal entity authorized to
17       write bodily injury or property damage liability insurance in this
18       state, including workers compensation and automobile liability in-
19       surance, pursuant to the provisions of the acts contained in article
20       9, 11, 12 or 16 of chapter 40 of Kansas Statutes Annotated.
21           (i) ``Plan'' means the operating and administrative rules and
22       procedures developed by insurers and rating organizations or the
23       commissioner to make professional liability insurance available to
24       health care providers.
25           (j) ``Professional liability insurance'' means insurance provid-
26       ing coverage for legal liability arising out of the performance of
27       professional services rendered or which should have been ren-
28       dered by a health care provider.
29           (k) ``Rating organization'' means a corporation, an unincorpor-
30       ated association, a partnership or an individual licensed pursuant
31       to K.S.A. 40-930 or 40-1114, or both, and amendments thereto, to
32       make rates for professional liability insurance.
33           (l) ``Self-insurer'' means a health care provider who qualifies
34       as a self-insurer pursuant to K.S.A. 40-3414 and amendments
35       thereto.
36           (m) ``Medical care facility'' means the same when used in the
37       health care provider insurance availability act as the meaning as-
38       cribed to that term in K.S.A. 65-425 and amendments thereto, ex-
39       cept that as used in the health care provider insurance availability
40       act such term, as it relates to insurance coverage under the health
41       care provider insurance availability act, also includes any director,
42       trustee, officer or administrator of a medical care facility.
43           (n) ``Mental health center'' means a mental health center li-

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48

  1       censed by the secretary of social and rehabilitation services under
  2       K.S.A. 75-3307b and amendments thereto, except that as used in
  3       the health care provider insurance availability act such term, as it
  4       relates to insurance coverage under the health care provider in-
  5       surance availability act, also includes any director, trustee, officer
  6       or administrator of a mental health center.
  7           (o) ``Mental health clinic'' means a mental health clinic licensed
  8       by the secretary of social and rehabilitation services under K.S.A.
  9       75-3307b and amendments thereto, except that as used in the
10       health care provider insurance availability act such term, as it re-
11       lates to insurance coverage under the health care provider insur-
12       ance availability act, also includes any director, trustee, officer or
13       administrator of a mental health clinic.
14           (p) ``State institution for the mentally retarded'' means Win-
15       field state hospital and training center, Parsons state hospital and
16       training center and the Kansas neurological institute.
17           (q) ``State psychiatric hospital'' means Larned state hospital,
18       Osawatomie state hospital, Rainbow mental health facility and To-
19       peka state hospital.
20           (r) ``Person engaged in residency training'' means:
21           (1) A person engaged in a postgraduate training program ap-
22       proved by the state board of healing arts who is employed by and
23       is studying at the university of Kansas medical center only when
24       such person is engaged in medical activities which do not include
25       extracurricular, extra-institutional medical service for which such
26       person receives extra compensation and which have not been ap-
27       proved by the dean of the school of medicine and the executive
28       vice-chancellor of the university of Kansas medical center. Persons
29       engaged in residency training shall be considered resident health
30       care providers for purposes of K.S.A. 40-3401 et seq., and amend-
31       ments thereto; and
32           (2) a person engaged in a postgraduate training program ap-
33       proved by the state board of healing arts who is employed by a
34       nonprofit corporation organized to administer the graduate med-
35       ical education programs of community hospitals or medical care
36       facilities affiliated with the university of Kansas school of medicine
37       or who is employed by an affiliate of the university of Kansas school
38       of medicine as defined in K.S.A. 76-367 and amendments thereto
39       only when such person is engaged in medical activities which do
40       not include extracurricular, extra-institutional medical service for
41       which such person receives extra compensation and which have
42       not been approved by the chief operating officer of the nonprofit
43       corporation or the chief operating officer of the affiliate and the

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  1       executive vice-chancellor of the university of Kansas medical cen-
  2       ter.
  3           (s) ``Full-time physician faculty employed by the university of
  4       Kansas medical center'' means a person licensed to practice med-
  5       icine and surgery who holds a full-time appointment at the uni-
  6       versity of Kansas medical center when such person is providing
  7       health care.
  8           (t) ``Sexual act'' or ``sexual activity'' means that sexual conduct
  9       which constitutes a criminal or tortious act under the laws of the
10       state of Kansas.
11           Sec. 39. K.S.A. 1997 Supp. 40-3403 is hereby amended to read
12       as follows: 40-3403. (a) For the purpose of paying damages for
13       personal injury or death arising out of the rendering of or the
14       failure to render professional services by a health care provider,
15       self-insurer or inactive health care provider subsequent to the time
16       that such health care provider or self-insurer has qualified for cov-
17       erage under the provisions of this act, there is hereby established
18       the health care stabilization fund. The fund shall be held in trust
19       in the state treasury and accounted for separately from other state
20       funds. The board of governors shall administer the fund or con-
21       tract for the administration of the fund with an insurance company
22       authorized to do business in this state.
23           (b) (1) There is hereby created a board of governors which
24       shall be composed of such members and shall have such powers,
25       duties and functions as are prescribed by this act. The board of
26       governors shall:
27           (A) Administer the fund and exercise and perform other pow-
28       ers, duties and functions required of the board under the health
29       care provider insurance availability act;
30           (B) provide advice, information and testimony to the appro-
31       priate licensing or disciplinary authority regarding the qualifica-
32       tions of a health care provider;
33           (C) prepare and publish, on or before October 1 of each year,
34       a summary of the fund's activity during the preceding fiscal year,
35       including but not limited to the amount collected from surcharges,
36       the highest and lowest surcharges assessed, the amount paid from
37       the fund, the number of judgments paid from the fund, the num-
38       ber of settlements paid from the fund and the amount in the fund
39       at the end of the fiscal year; and
40           (D) have the authority to grant exemptions from the provisions
41       of subsection (m) of this section when a health care provider tem-
42       porarily leaves the state for the purpose of obtaining additional
43       education or training or to participate in religious, humanitarian

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  1       or government service programs. Whenever a health care provider
  2       has previously left the state for one of the reasons specified in this
  3       paragraph and returns to the state and recommences practice, the
  4       board of governors may refund any amount paid by the health care
  5       provider pursuant to subsection (m) of this section if no claims have
  6       been filed against such health care provider during the provider's
  7       temporary absence from the state.
  8           (2) The board shall consist of 10 persons appointed by the com-
  9       missioner of insurance, as provided by this subsection (b) and as
10       follows:
11           (A) Three members who are licensed to practice medicine and
12       surgery in Kansas who are doctors of medicine and who are on a
13       list of nominees submitted to the commissioner by the Kansas med-
14       ical society;
15           (B) three members who are representatives of Kansas hospitals
16       and who are on a list of nominees submitted to the commissioner
17       by the Kansas hospital association;
18           (C) two members who are licensed to practice medicine and
19       surgery in Kansas who are doctors of osteopathic medicine and
20       who are on a list of nominees submitted to the commissioner by
21       the Kansas association of osteopathic medicine;
22           (D) one member who is licensed to practice chiropractic in
23       Kansas and who is on a list of nominees submitted to the commis-
24       sioner by the Kansas chiropractic association;
25           (E) one member who is a licensed professional nurse author-
26       ized to practice as a registered nurse anesthetist who is on a list of
27       nominees submitted to the commissioner by the Kansas association
28       of nurse anesthetists.
29           (3) When a vacancy occurs in the membership of the board of
30       governors created by this act, the commissioner shall appoint a
31       successor of like qualifications from a list of three nominees sub-
32       mitted to the commissioner by the professional society or associ-
33       ation prescribed by this section for the category of health care
34       provider required for the vacant position on the board of gover-
35       nors. All appointments made shall be for a term of office of four
36       years, but no member shall be appointed for more than two suc-
37       cessive four-year terms. Each member shall serve until a successor
38       is appointed and qualified. Whenever a vacancy occurs in the
39       membership of the board of governors created by this act for any
40       reason other than the expiration of a member's term of office, the
41       commissioner shall appoint a successor of like qualifications to fill
42       the unexpired term. In each case of a vacancy occurring in the
43       membership of the board of governors, the commissioner shall

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  1       notify the professional society or association which represents the
  2       category of health care provider required for the vacant position
  3       and request a list of three nominations of health care providers
  4       from which to make the appointment.
  5           (4) The board of governors shall organize on July 1 of each year
  6       and shall elect a chairperson and vice-chairperson from among its
  7       membership. Meetings shall be called by the chairperson or by a
  8       written notice signed by three members of the board.
  9           (5) The board of governors, in addition to other duties imposed
10       by this act, shall study and evaluate the operation of the fund and
11       make such recommendations to the legislature as may be appro-
12       priate to ensure the viability of the fund.
13           (6) (A) The board shall appoint an executive director who shall
14       be in the unclassified service under the Kansas civil service act.
15           (b) (B) The board may appoint such additional employees, and
16       provide all office space, services, equipment, materials and sup-
17       plies, and all budgeting, personnel, purchasing and related man-
18       agement functions required by the board in the exercise of the
19       powers, duties and functions imposed or authorized by the health
20       care provider insurance availability act or may enter into a con-
21       tract with the commissioner of insurance for the provision, by the
22       commissioner, of all or any part thereof.
23           (7) The commissioner shall:
24           (A) Provide technical and administrative assistance to the
25       board of governors with respect to administration of the fund upon
26       request of the board;
27           (B) provide such expertise as the board may reasonably re-
28       quest with respect to evaluation of claims or potential claims.
29           (c) Subject to subsections (d), (e), (f), (i), (k), (m), (n), (o), (p)
30       and (q), the fund shall be liable to pay: (1) Any amount due from
31       a judgment or settlement which is in excess of the basic coverage
32       liability of all liable resident health care providers or resident self-
33       insurers for any personal injury or death arising out of the ren-
34       dering of or the failure to render professional services within or
35       without this state;
36           (2) subject to the provisions of subsection (m), any amount due
37       from a judgment or settlement which is in excess of the basic cov-
38       erage liability of all liable nonresident health care providers or
39       nonresident self-insurers for any such injury or death arising out
40       of the rendering or the failure to render professional services
41       within this state but in no event shall the fund be obligated for
42       claims against nonresident health care providers or nonresident
43       self-insurers who have not complied with this act or for claims

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  1       against nonresident health care providers or nonresident self-in-
  2       surers that arose outside of this state;
  3           (3) subject to the provisions of subsection (m), any amount due
  4       from a judgment or settlement against a resident inactive health
  5       care provider, an optometrist or pharmacist who purchased cov-
  6       erage pursuant to subsection (n) or a physical therapist who pur-
  7       chased coverage pursuant to subsection (o), for any such injury or
  8       death arising out of the rendering of or failure to render profes-
  9       sional services;
10           (4) subject to the provisions of subsection (m), any amount due
11       from a judgment or settlement against a nonresident inactive
12       health care provider, an optometrist or pharmacist who purchased
13       coverage pursuant to subsection (n) or a physical therapist who
14       purchased coverage pursuant to subsection (o), for any injury or
15       death arising out of the rendering or failure to render professional
16       services within this state, but in no event shall the fund be obli-
17       gated for claims against: (A) Nonresident inactive health care pro-
18       viders who have not complied with this act; or (B) nonresident
19       inactive health care providers for claims that arose outside of this
20       state, unless such health care provider was a resident health care
21       provider or resident self-insurer at the time such act occurred;
22           (5) subject to subsection (b) of K.S.A. 40-3411, and amend-
23       ments thereto, reasonable and necessary expenses for attorney
24       fees incurred in defending the fund against claims;
25           (6) any amounts expended for reinsurance obtained to protect
26       the best interests of the fund purchased by the board of governors,
27       which purchase shall be subject to the provisions of K.S.A. 75-3738
28       through 75-3744, and amendments thereto, but shall not be sub-
29       ject to the provisions of K.S.A. 75-4101 and amendments thereto;
30           (7) reasonable and necessary actuarial expenses incurred in
31       administering the act, including expenses for any actuarial studies
32       contracted for by the legislative coordinating council, which ex-
33       penditures shall not be subject to the provisions of K.S.A. 75-3738
34       through 75-3744, and amendments thereto;
35           (8) periodically to the plan or plans, any amount due pursuant
36       to subsection (a)(3) of K.S.A. 40-3413 and amendments thereto;
37           (9) reasonable and necessary expenses incurred by the board
38       of governors in the administration of the fund or in the perform-
39       ance of other powers, duties or functions of the board under the
40       health care provider insurance availability act;
41           (10) return of any unearned surcharge;
42           (11) subject to subsection (b) of K.S.A. 40-3411, and amend-
43       ments thereto, reasonable and necessary expenses for attorney

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  1       fees and other costs incurred in defending a person engaged or
  2       who was engaged in residency training or the private practice cor-
  3       porations or foundations and their full-time physician faculty em-
  4       ployed by the university of Kansas medical center from claims for
  5       personal injury or death arising out of the rendering of or the
  6       failure to render professional services by such health care pro-
  7       vider;
  8           (12) notwithstanding the provisions of subsection (m), any
  9       amount due from a judgment or settlement for an injury or death
10       arising out of the rendering of or failure to render professional
11       services by a person engaged or who was engaged in residency
12       training or the private practice corporations or foundations and
13       their full-time physician faculty employed by the university of Kan-
14       sas medical center;
15           (13) subject to the provisions of K.S.A. 65-429 and amendments
16       thereto, reasonable and necessary expenses for the development
17       and promotion of risk management education programs and for
18       the medical care facility licensure and risk management survey
19       functions carried out under K.S.A. 65-429 and amendments
20       thereto;
21           (14) notwithstanding the provisions of subsection (m), any
22       amount, but not less than the required basic coverage limits, owed
23       pursuant to a judgment or settlement for any injury or death aris-
24       ing out of the rendering of or failure to render professional serv-
25       ices by a person, other than a person described in clause (12) of
26       this subsection (c), who was engaged in a postgraduate program
27       of residency training approved by the state board of healing arts
28       but who, at the time the claim was made, was no longer engaged
29       in such residency program;
30           (15) subject to subsection (b) of K.S.A. 40-3411, and amend-
31       ments thereto, reasonable and necessary expenses for attorney
32       fees and other costs incurred in defending a person described in
33       clause (14) of this subsection (c);
34           (16) expenses incurred by the commissioner in the perform-
35       ance of duties and functions imposed upon the commissioner by
36       the health care provider insurance availability act, and expenses
37       incurred by the commissioner in the performance of duties and
38       functions under contracts entered into between the board and the
39       commissioner as authorized by this section; and
40           (17) periodically to the state general fund reimbursements of
41       amounts paid to members of the health care stabilization fund
42       oversight committee for compensation, travel expenses and sub-
43       sistence expenses pursuant to subsection (e) of K.S.A. 40-3403b,

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  1       and amendments thereto.
  2           (d) All amounts for which the fund is liable pursuant to sub-
  3       section (c) shall be paid promptly and in full except that, if the
  4       amount for which the fund is liable is $300,000 or more, it shall
  5       be paid, by installment payments of $300,000 or 10% of the
  6       amount of the judgment including interest thereon, whichever is
  7       greater, per fiscal year, the first installment to be paid within 60
  8       days after the fund becomes liable and each subsequent install-
  9       ment to be paid annually on the same date of the year the first
10       installment was paid, until the claim has been paid in full. Any
11       attorney fees payable from such installment shall be similarly pro-
12       rated.
13           (e) In no event shall the fund be liable to pay in excess of
14       $3,000,000 pursuant to any one judgment or settlement against
15       any one health care provider relating to any injury or death arising
16       out of the rendering of or the failure to render professional serv-
17       ices on and after July 1, 1984, and before July 1, 1989, subject to
18       an aggregate limitation for all judgments or settlements arising
19       from all claims made in any one fiscal year in the amount of
20       $6,000,000 for each health care provider.
21           (f) The fund shall not be liable to pay in excess of the amounts
22       specified in the option selected by the health care provider pur-
23       suant to subsection (l) for judgments or settlements relating to in-
24       jury or death arising out of the rendering of or failure to render
25       professional services by such health care provider on or after July
26       1, 1989.
27           (g) A health care provider shall be deemed to have qualified
28       for coverage under the fund:
29           (1) On and after July 1, 1976, if basic coverage is then in effect;
30           (2) subsequent to July 1, 1976, at such time as basic coverage
31       becomes effective; or
32           (3) upon qualifying as a self-insurer pursuant to K.S.A. 40-3414
33       and amendments thereto.
34           (h) A health care provider who is qualified for coverage under
35       the fund shall have no vicarious liability or responsibility for any
36       injury or death arising out of the rendering of or the failure to
37       render professional services inside or outside this state by any
38       other health care provider who is also qualified for coverage under
39       the fund. The provisions of this subsection shall apply to all claims
40       filed on or after July 1, 1986.
41           (i) Notwithstanding the provisions of K.S.A. 40-3402 and
42       amendments thereto, if the board of governors determines due to
43       the number of claims filed against a health care provider or the

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  1       outcome of those claims that an individual health care provider
  2       presents a material risk of significant future liability to the fund,
  3       the board of governors is authorized by a vote of a majority of the
  4       members thereof, after notice and an opportunity for hearing in
  5       accordance with the provisions of the Kansas administrative pro-
  6       cedure act, to terminate the liability of the fund for all claims
  7       against the health care provider for damages for death or personal
  8       injury arising out of the rendering of or the failure to render pro-
  9       fessional services after the date of termination. The date of ter-
10       mination shall be 30 days after the date of the determination by
11       the board of governors. The board of governors, upon termination
12       of the liability of the fund under this subsection, shall notify the
13       licensing or other disciplinary board having jurisdiction over the
14       health care provider involved of the name of the health care pro-
15       vider and the reasons for the termination.
16           (j) (1) Upon the payment of moneys from the health care sta-
17       bilization fund pursuant to subsection (c)(11), the board of gov-
18       ernors shall certify to the director of accounts and reports the
19       amount of such payment, and the director of accounts and reports
20       shall transfer an amount equal to the amount certified, reduced
21       by any amount transferred pursuant to paragraph (3) of this sub-
22       section (j), from the state general fund to the health care stabili-
23       zation fund.
24           (2) Upon the payment of moneys from the health care stabili-
25       zation fund pursuant to subsection (c)(12), the board of governors
26       shall certify to the director of accounts and reports the amount of
27       such payment which is equal to the basic coverage liability of
28       self-insurers, and the director of accounts and reports shall trans-
29       fer an amount equal to the amount certified, reduced by any
30       amount transferred pursuant to paragraph (3) of this subsection
31       (j), from the state general fund to the health care stabilization
32       fund.
33           (3) The university of Kansas medical center private practice
34       foundation reserve fund is hereby established in the state treasury.
35       If the balance in such reserve fund is less than $500,000 on July 1
36       of any year, the private practice corporations or foundations re-
37       ferred to in subsection (c) of K.S.A. 40-3402, and amendments
38       thereto, shall remit the amount necessary to increase such balance
39       to $500,000 to the state treasurer for credit to such reserve fund
40       as soon after such July 1 date as is practicable. Upon receipt of
41       each such remittance, the state treasurer shall credit the same to
42       such reserve fund. When compliance with the foregoing provisions
43       of this paragraph have been achieved on or after July 1 of any year

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  1       in which the same are applicable, the state treasurer shall certify
  2       to the board of governors that such reserve fund has been funded
  3       for the year in the manner required by law. Moneys in such reserve
  4       fund may be invested or reinvested in accordance with the provi-
  5       sions of K.S.A. 40-3406, and amendments thereto, and any income
  6       or interest earned by such investments shall be credited to such
  7       reserve fund. Upon payment of moneys from the health care sta-
  8       bilization fund pursuant to subsection (c)(11) or (c)(12) with re-
  9       spect to any private practice corporation or foundation or any of
10       its full-time physician faculty employed by the university of Kansas,
11       the director of accounts and reports shall transfer an amount equal
12       to the amount paid from the university of Kansas medical center
13       private practice foundation reserve fund to the health care stabi-
14       lization fund or, if the balance in such reserve fund is less than the
15       amount so paid, an amount equal to the balance in such reserve
16       fund.
17           (4) Upon payment of moneys from the health care stabilization
18       fund pursuant to subsection (c)(14) or (c)(15), the board of gover-
19       nors shall certify to the director of accounts and reports the
20       amount of such payment, and the director of accounts and reports
21       shall transfer an amount equal to the amount certified from the
22       state general fund to the health care stabilization fund.
23           (k) Notwithstanding any other provision of the health care pro-
24       vider insurance availability act, no psychiatric hospital licensed un-
25       der K.S.A. 75-3307b and amendments thereto shall be assessed a
26       premium surcharge or be entitled to coverage under the fund if
27       such hospital has not paid any premium surcharge pursuant to
28       K.S.A. 40-3404 and amendments thereto prior to January 1, 1988.
29           (l) On or after July 1, 1989, every health care provider shall
30       make an election to be covered by one of the following options
31       provided in this subsection (l) which shall limit the liability of the
32       fund with respect to judgments or settlements relating to injury or
33       death arising out of the rendering of or failure to render profes-
34       sional services on or after July 1, 1989. Such election shall be made
35       at the time the health care provider renews the basic coverage in
36       effect on July 1, 1989, or, if basic coverage is not in effect, such
37       election shall be made at the time such coverage is acquired pur-
38       suant to K.S.A. 40-3402, and amendments thereto. Notice of the
39       election shall be provided by the insurer providing the basic cov-
40       erage in the manner and form prescribed by the board of gover-
41       nors and shall continue to be effective from year to year unless
42       modified by a subsequent election made prior to the anniversary
43       date of the policy. The health care provider may at any subsequent

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  1       election reduce the dollar amount of the coverage for the next and
  2       subsequent fiscal years, but may not increase the same, unless spe-
  3       cifically authorized by the board of governors. Any election of fund
  4       coverage limits, whenever made, shall be with respect to judg-
  5       ments or settlements relating to injury or death arising out of the
  6       rendering of or failure to render professional services on or after
  7       the effective date of such election of fund coverage limits. Such
  8       election shall be made for persons engaged in residency training
  9       and persons engaged in other postgraduate training programs ap-
10       proved by the state board of healing arts at medical care facilities
11       or mental health centers in this state by the agency or institution
12       paying the surcharge levied under K.S.A. 40-3404, and amend-
13       ments thereto, for such persons. Such options shall be as follows:
14           (1) OPTION 1. The fund shall not be liable to pay in excess of
15       $100,000 pursuant to any one judgment or settlement for any party
16       against such health care provider, subject to an aggregate limita-
17       tion for all judgments or settlements arising from all claims made
18       in the fiscal year in an amount of $300,000 for such provider.
19           (2) OPTION 2. The fund shall not be liable to pay in excess of
20       $300,000 pursuant to any one judgment or settlement for any party
21       against such health care provider, subject to an aggregate limita-
22       tion for all judgments or settlements arising from all claims made
23       in the fiscal year in an amount of $900,000 for such provider.
24           (3) OPTION 3. The fund shall not be liable to pay in excess of
25       $800,000 pursuant to any one judgment or settlement for any party
26       against such health care provider, subject to an aggregate limita-
27       tion for all judgments or settlements arising from all claims made
28       in the fiscal year in an amount of $2,400,000 for such health care
29       provider.
30           (m) The fund shall not be liable for any amounts due from a
31       judgment or settlement against resident or nonresident inactive
32       health care providers who first qualify as an inactive health care
33       provider on or after July 1, 1989, unless such health care provider
34       has been in compliance with K.S.A. 40-3402, and amendments
35       thereto, for a period of not less than five years. If a health care
36       provider has not been in compliance for five years, such health
37       care provider may make application and payment for the coverage
38       for the period while they are nonresident health care providers,
39       nonresident self-insurers or resident or nonresident inactive
40       health care providers to the fund. Such payment shall be made
41       within 30 days after the health care provider ceases being an active
42       health care provider and shall be made in an amount determined
43       by the board of governors to be sufficient to fund anticipated

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  1       claims based upon reasonably prudent actuarial principles. The
  2       provisions of this subsection shall not be applicable to any health
  3       care provider which becomes inactive through death or retire-
  4       ment, or through disability or circumstances beyond such health
  5       care provider's control, if such health care provider notifies the
  6       board of governors and receives approval for an exemption from
  7       the provisions of this subsection. Any period spent in a postgrad-
  8       uate program of residency training approved by the state board of
  9       healing arts shall not be included in computation of time spent in
10       compliance with the provisions of K.S.A. 40-3402, and amend-
11       ments thereto.
12           (n) Notwithstanding the provisions of subsection (m) or any
13       other provision in article 34 of chapter 40 of the Kansas Statutes
14       Annotated to the contrary, the fund shall not be liable for any claim
15       made on or after July 1, 1991, against a licensed optometrist or
16       pharmacist relating to any injury or death arising out of the ren-
17       dering of or failure to render professional services by such optom-
18       etrist or pharmacist prior to July 1, 1991, unless such optometrist
19       or pharmacist qualified as an inactive health care provider prior
20       to July 1, 1991.
21           (o) Notwithstanding the provisions of subsection (m) or any
22       other provision in article 34 of chapter 40 of the Kansas Statutes
23       Annotated to the contrary, the fund shall not be liable for any claim
24       made on or after July 1, 1995, against a physical therapist registered
25       licensed by the state board of healing arts relating to any injury or
26       death arising out of the rendering of or failure to render profes-
27       sional services by such physical therapist prior to July 1, 1995,
28       unless such physical therapist qualified as an inactive health care
29       provider prior to July 1, 1995.
30           (p) Notwithstanding the provisions of subsection (m) or any
31       other provision in article 34 of chapter 40 of the Kansas Statutes
32       Annotated to the contrary, the fund shall not be liable for any claim
33       made on or after July 1, 1997, against a health maintenance or-
34       ganization relating to any injury or death arising out of the ren-
35       dering of or failure to render professional services by such health
36       maintenance organization prior to July 1, 1997, unless such health
37       maintenance organization qualified as an inactive health care pro-
38       vider prior to July 1, 1997, and obtained coverage pursuant to
39       subsection (m). Health maintenance organizations not qualified as
40       inactive health care providers prior to July 1, 1997, may purchase
41       coverage from the fund for periods of prior compliance by making
42       application prior to August 1, 1997, and payment within 30 days
43       from notice of the calculated amount as determined by the board

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  1       of governors to be sufficient to fund anticipated claims based on
  2       reasonably prudent actuarial principles.
  3           (q) Notwithstanding anything in article 34 of chapter 40 of the
  4       Kansas Statutes Annotated to the contrary, the fund shall in no
  5       event be liable for any claims against any health care provider
  6       based upon or relating to the health care provider's sexual acts or
  7       activity, but in such cases the fund may pay reasonable and nec-
  8       essary expenses for attorney fees incurred in defending the fund
  9       against such claim. The fund may recover all or a portion of such
10       expenses for attorney fees if an adverse judgment is returned
11       against the health care provider for damages resulting from the
12       health care provider's sexual acts or activity.
13           Sec. 40. K.S.A. 60-513d is hereby amended to read as follows:
14       60-513d. As used in K.S.A. 60-513 and 60-513b, and amendments
15       to such statutes, the term ``health care provider'' means a person
16       licensed to practice any branch of the healing arts, a person who
17       holds a temporary permit to practice any branch of the healing
18       arts, a person engaged in a postgraduate training program ap-
19       proved by the state board of healing arts, a licensed medical care
20       facility, a health maintenance organization, a licensed dentist, a
21       licensed professional nurse, a licensed practical nurse, a licensed
22       optometrist, a licensed podiatrist, a professional corporation or-
23       ganized pursuant to the professional corporation law of Kansas by
24       persons who are authorized by such law to form such a corporation
25       and who are health care providers as defined by this section, a
26       licensed pharmacist or a registered licensed physical therapist.
27           Sec. 41. K.S.A. 60-2609 is hereby amended to read as follows:
28       60-2609. (a) Whenever judgment is entered on a claim in any ac-
29       tion for recovery of damages for personal injury or death arising
30       out of the rendering of or the failure to render professional serv-
31       ices by any health care provider, the court may include in such
32       judgment a requirement that the damages awarded be paid in
33       whole or in part by installment or periodic payments, and any in-
34       stallment or periodic payment upon becoming due and payable
35       under the terms of any such judgment shall constitute a separate
36       judgment upon which execution may issue. Any judgment ordering
37       any such payments shall specify the amount of each payment, the
38       interval between payments and the number of payments to be paid
39       under the judgment. For good cause shown, the court may modify
40       such judgment with respect to the amount of such payments and
41       the number of payments to be made or the interval between pay-
42       ments, but the total amount of damages awarded by such judgment
43       shall not be subject to modification in any event.

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60

  1           (b) As used in this section, ``health care provider'' means a per-
  2       son licensed to practice any branch of the healing arts, a person
  3       who holds a temporary permit to practice any branch of the heal-
  4       ing arts or a person engaged in a postgraduate training program
  5       approved by the state board of healing arts, a licensed medical
  6       care facility, a health maintenance organization, a licensed dentist,
  7       a licensed professional nurse, a licensed practical nurse, a licensed
  8       optometrist, a licensed podiatrist, a licensed pharmacist, a profes-
  9       sional corporation organized pursuant to the professional corpo-
10       ration law of Kansas by persons who are authorized by such law to
11       form such a corporation and who are health care providers as de-
12       fined by this subsection, a registered licensed physical therapist or
13       an officer, employee or agent thereof acting in the course and
14       scope of employment or agency.
15           Sec. 42. K.S.A. 1997 Supp. 65-1902 is hereby amended to read
16       as follows: 65-1902. (a) Except as provided in subsection (b), no
17       person shall:
18           (1) Engage in practice of cosmetology, esthetics, manicuring
19       or electrology unless the person holds a valid license, issued by the
20       board, to engage in that practice;
21           (2) conduct a school for teaching cosmetology unless the per-
22       son holds a valid license, issued by the board, to conduct the
23       school;
24           (3) teach cosmetology in a licensed school unless the person
25       holds a valid cosmetology instructor's license issued by the board;
26           (4) conduct a school for teaching nail technology unless the
27       person holds a valid license, issued by the board, to conduct the
28       school;
29           (5) teach nail technology in a licensed school unless the person
30       holds a valid cosmetology or manicuring instructor's license issued
31       by the board;
32           (6) conduct a school for teaching electrology unless the person
33       holds a valid license, issued by the board, to conduct the school;
34           (7) teach electrology in a licensed school or clinic unless the
35       person holds a valid electrology instructor's license issued by the
36       board;
37           (8) conduct a school for teaching esthetics unless the person
38       holds a valid license, issued by the board, to conduct the school;
39       or
40           (9) teach esthetics in a licensed school unless the person holds
41       a valid cosmetology or esthetics instructor's license issued by the
42       board.
43           (b) The provisions of this act shall not apply to:

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61

  1           (1) Any person licensed as a barber or apprentice barber;
  2           (2) any person licensed to practice medicine and surgery, op-
  3       tometry, nursing or dentistry, while engaged in that practice;
  4           (3) any person who is a registered licensed physical therapist; or
  5           (4) any teacher while engaged in instructing elementary or sec-
  6       ondary school students in the proper care of their own persons.
  7           (c) A person holding a license as a cosmetology technician on
  8       the day immediately preceding the effective date of this act shall
  9       continue to be a licensed cosmetology technician and perform the
10       functions of a cosmetology technician, as such term was defined
11       immediately prior to the effective date of this act, and may renew
12       such license subject to the payment of fees and other conditions
13       and limitations on the renewal of licenses under article 19 of chap-
14       ter 65 of the Kansas Statutes Annotated and acts amendatory of
15       the provisions thereof.
16           Sec. 43. K.S.A. 1997 Supp. 65-2891 is hereby amended to read
17       as follows: 65-2891. (a) Any health care provider who in good faith
18       renders emergency care or assistance at the scene of an emergency
19       or accident including treatment of a minor without first obtaining
20       the consent of the parent or guardian of such minor shall not be
21       liable for any civil damages for acts or omissions other than dam-
22       ages occasioned by gross negligence or by willful or wanton acts
23       or omissions by such person in rendering such emergency care.
24           (b) Any health care provider may render in good faith emer-
25       gency care or assistance, without compensation, to any minor re-
26       quiring such care or assistance as a result of having engaged in
27       competitive sports, without first obtaining the consent of the par-
28       ent or guardian of such minor. Such health care provider shall not
29       be liable for any civil damages other than damages occasioned by
30       gross negligence or by willful or wanton acts or omissions by such
31       person in rendering such emergency care.
32           (c) Any health care provider may in good faith render emer-
33       gency care or assistance during an emergency which occurs within
34       a hospital or elsewhere, with or without compensation, until such
35       time as the physician employed by the patient or by the patient's
36       family or by guardian assumes responsibility for such patient's pro-
37       fessional care. The health care provider rendering such emer-
38       gency care shall not be held liable for any civil damages other than
39       damages occasioned by negligence.
40           (d) Any provision herein contained notwithstanding, the ordi-
41       nary standards of care and rules of negligence shall apply in those
42       cases wherein emergency care and assistance is rendered in any
43       physician's or dentist's office, clinic, emergency room or hospital

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  1       with or without compensation.
  2           (e) As used in this section the term ``health care provider''
  3       means any person licensed to practice any branch of the healing
  4       arts, licensed dentist, licensed optometrist, licensed professional
  5       nurse, licensed practical nurse, licensed podiatrist, licensed phar-
  6       macist and registered licensed physical therapist, and any physician's
  7       assistant who has successfully completed an American medical as-
  8       sociation approved training program and has successfully com-
  9       pleted the national board examination for physicians' assistants of
10       the American board of medical examiners, any person who holds
11       a valid attendant's certificate under K.S.A. 65-6129, and amend-
12       ments thereto, any person who holds a valid certificate for the
13       successful completion of a course in first aid offered or approved
14       by the American red cross, by the American heart association, by
15       the mining enforcement and safety administration of the bureau
16       of mines of the department of interior, by the national safety coun-
17       cil or by any instructor-coordinator, as defined in K.S.A. 65-6112,
18       and amendments thereto, and any person engaged in a postgrad-
19       uate training program approved by the state board of healing arts.
20           Sec. 44. K.S.A. 1997 Supp. 65-5912 is hereby amended to read
21       as follows: 65-5912. (a) Nothing in this act shall be construed to
22       require any insurer or other entity regulated under chapter 40 of
23       the Kansas Statutes Annotated or any other law of this state to
24       provide coverage for or indemnify for the services provided by a
25       person licensed under this act.
26           (b) So long as the following persons do not hold themselves out
27       to the public to be dietitians or licensed dietitians or use these titles
28       in combination with other titles or use the abbreviation L.D., or
29       any combination thereof, nothing in this act shall be construed to
30       apply:
31           (1) To any person licensed to practice the healing arts, a li-
32       censed dentist, a licensed dental hygienist, a licensed professional
33       nurse, a licensed practical nurse, a licensed psychologist, a licensed
34       masters level psychologist, a licensed pharmacist or an employee
35       thereof, a physician's assistant, a licensed professional counselor;
36           (2) to any unlicensed employee of a licensed adult care home
37       or a licensed medical care facility as long as such person is working
38       under the general direction of a licensee in the healing arts, nurs-
39       ing or a dietetic services supervisor as defined in regulations
40       adopted by the secretary of health and environment or a consult-
41       ant licensed under this act;
42           (3) to any dietetic technician or dietetic assistant;
43           (4) to any student enrolled in an approved academic program

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63

  1       in dietetics, home economics, nutrition, education or other like
  2       curriculum, while engaged in such academic program;
  3           (5) to prevent any person, including persons employed in
  4       health food stores, from furnishing nutrition information as to the
  5       use of food, food materials or dietary supplements, nor to prevent
  6       in any way the free dissemination of information or of literature
  7       as long as no individual engaged in such practices holds oneself
  8       out as being licensed under this act;
  9           (6) to prohibit any individual from marketing or distributing
10       food products, including dietary supplements, or to prevent any
11       such person from providing information to customers regarding
12       the use of such products;
13           (7) to prevent any employee of the state or a political subdivi-
14       sion who is employed in nutrition-related programs from engaging
15       in activities included within the definition of dietetics practice as
16       a part of such person's employment;
17           (8) to any person who performs the activities and services of a
18       licensed dietitian or nutrition educator as an employee of the state
19       or a political subdivision, an elementary or secondary school, an
20       educational institution, a licensed institution, or a not-for-profit
21       organization;
22           (9) to any person serving in the armed forces, the public health
23       service, the veterans administration or as an employee of the fed-
24       eral government;
25           (10) to any person who has a degree in home economics insofar
26       as the activities of such person are within the scope of such per-
27       son's education and training;
28           (11) to any person who counsels or provides weight-control
29       services as a part of a franchised or recognized weight-control pro-
30       gram or a weight-control program that operates under the general
31       direction of a person licensed to practice the healing arts, nursing
32       or a person licensed under this act;
33           (12) to any person who is acting as a representative of a trade
34       association and who engages in one or more activities included
35       within the practice of dietetics as a representative of such associ-
36       ation;
37           (13) to a registered licensed physical therapist who makes a di-
38       etetic or nutritional assessment or gives dietetic or nutritional ad-
39       vice in the normal practice of such person's profession or as oth-
40       erwise authorized by law;
41           (14) to a dietitian licensed, registered or otherwise authorized
42       to practice dietetics in another state who is providing consultation
43       in this state;

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64

  1           (15) to any person conducting a teaching clinical demonstra-
  2       tion which is carried out in an educational institution or an affili-
  3       ated clinical facility or health care agency;
  4           (16) to any person conducting classes or disseminating infor-
  5       mation relating to nonmedical nutrition; or
  6           (17) to any person permitted to practice under K.S.A. 65-2872a
  7       and amendments thereto.
  8           (c) Nothing in this act shall be construed to interfere with the
  9       religious practices or observances of a bona fide religious organi-
10       zation, nor to prevent any person from caring for the sick in ac-
11       cordance with tenets and practices of any church or religious de-
12       nomination which teaches reliance upon spiritual means through
13       prayer for healing.
14           Sec. 45. K.S.A. 39-952, 40-2,111, 40-12a01, 60-513d, 60-2609,
15       65-2901, 65-2904, 65-2905, 65-2907, 65-2908, 65-2909, 65-2910,
16       65-2912, 65-2914, 65-2918, 65-4116, 65-4921, 65-5502, 65-5503,
17       65-5504, 65-5505, 65-5506, 65-5507, 65-5510, 65-5511, 65-5512
18       and 65-5514 and K.S.A. 1997 Supp. 7-121b, 17-2707, 21-3721,
19       40-3103, 40-3401, 40-3403, 65-1902, 65-2891, 65-2906, 65-2913,
20       65-4915, 65-5508, 65-5509, 65-5912, 74-4916 and 74-4960a are
21       hereby repealed.
22           Sec. 15 22 46. This act shall take effect and be in force from and
23       after March 1, 1998 1999, and its publication in the statute book.
24