Session of 1998
HOUSE BILL No. 2681
By Committee on Health and Human Services
1-21
9
AN ACT concerning the Kansas healing arts act;
actions against licensees;
10 amending K.S.A.
65-2842 and K.S.A. 1997 Supp. 65-2836 and repeal-
11 ing the existing
sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section 1. K.S.A. 1997 Supp.
65-2836 is hereby amended to read as
15 follows: 65-2836. A licensee's license may
be revoked, suspended or lim-
16 ited, or the licensee may be publicly or
privately censured, or an appli-
17 cation for a license or for reinstatement
of a license may be denied upon
18 a finding of the existence of any of the
following grounds:
19 (a) The licensee has
committed fraud or misrepresentation in apply-
20 ing for or securing an original, renewal or
reinstated license.
21 (b) The licensee has
committed an act of unprofessional or dishon-
22 orable conduct or professional
incompetency.
23 (c) The licensee has been
convicted of a felony or class A misde-
24 meanor, whether or not related to the
practice of the healing arts.
25 (d) The licensee has used
fraudulent or false advertisements.
26 (e) The licensee is addicted
to or has distributed intoxicating liquors
27 or drugs for any other than lawful
purposes.
28 (f) The licensee has
willfully or repeatedly violated this act, the phar-
29 macy act of the state of Kansas or the
uniform controlled substances act,
30 or any rules and regulations adopted
pursuant thereto, or any rules and
31 regulations of the secretary of health and
environment which are relevant
32 to the practice of the healing arts.
33 (g) The licensee has
unlawfully invaded the field of practice of any
34 branch of the healing arts in which the
licensee is not licensed to practice.
35 (h) The licensee has engaged
in the practice of the healing arts under
36 a false or assumed name, or the
impersonation of another practitioner.
37 The provisions of this subsection relating
to an assumed name shall not
38 apply to licensees practicing under a
professional corporation or other
39 legal entity duly authorized to provide
such professional services in the
40 state of Kansas.
41 (i) The licensee has the
inability to practice the branch of the
healing
42 arts for which the licensee is
licensed with reasonable skill and safety to
43 patients by reason of physical or
mental illness or condition,
alcoholism,
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2
1 excessive or
use of alcohol or drugs, controlled or
any other chemicals or
2 substances, chemical or any
other type of material or as a result of any
3 mental or physical
condition. In determining whether or not such
inability
4 exists, the board, upon reasonable
suspicion of such inability, and follow-
5 ing the procedures prescribed in
K.S.A. 65-2842 and amendments thereto,
6 shall have authority to compel a
licensee to submit to mental or physical
7 examination or drug screen, or any
combination thereof, by such persons
8 as the board may designate.
To determine whether reasonable suspicion
9 of such inability exists, the
investigative information shall be presented to
10 the board as a whole, to a review
committee of professional peers of the
11 licensee established pursuant to
K.S.A. 65-2840c and amendments
12 thereto or to a committee
consisting of the officers of the board elected
13 pursuant to K.S.A. 65-2818 and
amendments thereto and the executive
14 director appointed pursuant to
K.S.A. 65-2878 and amendments thereto,
15 and the determination shall be made
by a majority vote of the entity which
16 reviewed the investigative
information. Information submitted to the
17 board as a whole or a review
committee of peers or a committee of the
18 officers and executive director of
the board and all reports, findings and
19 other records shall be confidential
and not subject to discovery by or
20 release to any person or entity.
The licensee shall submit to the board a
21 release of information authorizing
the board to obtain a report of such
22 examination or drug screen, or
both. A person affected by this subsection
23 shall be offered, at reasonable
intervals, an opportunity to demonstrate
24 that such person can resume the
competent practice of the healing arts
25 with reasonable skill and safety to
patients. For the purpose of this sub-
26 section, every person licensed to
practice the healing arts and who shall
27 accept the privilege to practice
the healing arts in this state by so prac-
28 ticing or by the making and filing
of an annual renewal to practice the
29 healing arts in this state shall be
deemed to have consented to submit to
30 a mental or physical examination or
a drug screen, or any combination
31 thereof, when directed in writing
by the board and further to have waived
32 all objections to the admissibility
of the testimony, drug screen or ex-
33 amination report of the person
conducting such examination or drug
34 screen, or both, at any proceeding
or hearing before the board on the
35 ground that such testimony or
examination or drug screen report consti-
36 tutes a privileged communication.
In any proceeding by the board pur-
37 suant to the provisions of this
subsection, the record of such board pro-
38 ceedings involving the mental and
physical examination or drug screen,
39 or any combination thereof, shall
not be used in any other administrative
40 or judicial
proceeding.
41 (j) The licensee has had a
license to practice the healing arts revoked,
42 suspended or limited, has been censured or
has had other disciplinary
43 action taken, or an application for a
license denied, by the proper licensing
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3
1 authority of another state,
territory, District of Columbia, or other coun-
2 try, a certified copy of the record
of the action of the other jurisdiction
3 being conclusive evidence
thereof.
4 (k) The licensee has
violated any lawful rule and regulation promul-
5 gated by the board or violated any
lawful order or directive of the board
6 previously entered by the board.
7 (l) The licensee has
failed to report or reveal the knowledge required
8 to be reported or revealed under
K.S.A. 65-28,122 and amendments
9 thereto.
10 (m) The licensee, if licensed
to practice medicine and surgery, has
11 failed to inform a patient suffering from
any form of abnormality of the
12 breast tissue for which surgery is a
recommended form of treatment, of
13 alternative methods of treatment
specified in the standardized summary
14 supplied by the board. The
standardized summary shall be given to each
15 patient specified herein as soon as
practicable and medically indicated
16 following diagnosis, and this shall
constitute compliance with the require-
17 ments of this subsection. The board
shall develop and distribute to per-
18 sons licensed to practice medicine
and surgery a standardized summary
19 of the alternative methods of
treatment known to the board at the time
20 of distribution of the standardized
summary, including surgical, radiolog-
21 ical or chemotherapeutic treatments
or combinations of treatments and
22 the risks associated with each of
these methods. Nothing in this subsection
23 shall be construed or operate to
empower or authorize the board to re-
24 strict in any manner the right of a
person licensed to practice medicine
25 and surgery to recommend a method
of treatment or to restrict in any
26 manner a patient's right to select
a method of treatment. The standard-
27 ized summary shall not be construed
as a recommendation by the board
28 of any method of treatment. The
preceding sentence or words having the
29 same meaning shall be printed as a
part of the standardized summary.
30 The provisions of this subsection
shall not be effective until the stan-
31 dardized written summary provided
for in this subsection is developed
32 and printed and made available by
the board to persons licensed by the
33 board to practice medicine and
surgery recognized by licensees of the
34 same profession in the same or similar
communities as being acceptable
35 under like conditions and
circumstances.
36 (n) The licensee has cheated
on or attempted to subvert the validity
37 of the examination for a license.
38 (o) The licensee has been
found to be mentally ill, disabled, not guilty
39 by reason of insanity, not guilty because
the licensee suffers from a mental
40 disease or defect or incompetent to stand
trial by a court of competent
41 jurisdiction.
42 (p) The licensee has
prescribed, sold, administered, distributed or
43 given a controlled substance to any person
for other than medically ac-
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1 cepted or lawful purposes.
2 (q) The licensee has
violated a federal law or regulation relating to
3 controlled substances.
4 (r) The licensee has
failed to furnish the board, or its investigators or
5 representatives, any information
legally requested by the board.
6 (s) Sanctions or
disciplinary actions have been taken against the li-
7 censee by a peer review committee,
health care facility, a governmental
8 agency or department or a
professional association or society for acts or
9 conduct similar to acts or conduct
which would constitute grounds for
10 disciplinary action under this section.
11 (t) The licensee has failed
to report to the board any adverse action
12 taken against the licensee by another state
or licensing jurisdiction, a peer
13 review body, a health care facility, a
professional association or society, a
14 governmental agency, by a law enforcement
agency or a court for acts or
15 conduct similar to acts or conduct which
would constitute grounds for
16 disciplinary action under this section.
17 (u) The licensee has
surrendered a license or authorization to practice
18 the healing arts in another state or
jurisdiction, has surrendered the au-
19 thority to utilize controlled substances
issued by any state or federal
20 agency, has agreed to a limitation to or
restriction of privileges at any
21 medical care facility or has surrendered
the licensee's membership on any
22 professional staff or in any professional
association or society while under
23 investigation for acts or conduct similar
to acts or conduct which would
24 constitute grounds for disciplinary action
under this section.
25 (v) The licensee has failed
to report to the board surrender of the
26 licensee's license or authorization to
practice the healing arts in another
27 state or jurisdiction or surrender of the
licensee's membership on any
28 professional staff or in any professional
association or society while under
29 investigation for acts or conduct similar
to acts or conduct which would
30 constitute grounds for disciplinary action
under this section.
31 (w) The licensee has an
adverse judgment, award or settlement
32 against the licensee resulting from a
medical liability claim related to acts
33 or conduct similar to acts or conduct which
would constitute grounds for
34 disciplinary action under this section.
35 (x) The licensee has failed
to report to the board any adverse judg-
36 ment, settlement or award against the
licensee resulting from a medical
37 malpractice liability claim related to acts
or conduct similar to acts or
38 conduct which would constitute grounds for
disciplinary action under this
39 section.
40 (y) The licensee has failed
to maintain a policy of professional liability
41 insurance as required by K.S.A. 40-3402 or
40-3403a and amendments
42 thereto.
43 (z) The licensee has failed
to pay the annual premium surcharge as
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1 required by K.S.A. 40-3404 and
amendments thereto.
2 (aa) The licensee has
knowingly submitted any misleading, deceptive,
3 untrue or fraudulent representation
on a claim form, bill or statement.
4 (bb) The licensee as
the responsible physician for a physician's assis-
5 tant has failed to adequately direct
and supervise the physician's assistant
6 in accordance with K.S.A. 65-2896 to
65-2897a, inclusive, and amend-
7 ments thereto, or rules and
regulations adopted under such statutes.
8 Sec. 2. K.S.A. 65-2842
is hereby amended to read as follows: 65-
9 2842. Whenever the board
directs, pursuant to subsection (i) of K.S.A.
10 65-2836 and amendments thereto,
that a licensee submit to a mental or
11 physical examination or drug
screen, or any combination thereof, the time
12 from the date of the board's
directive until the submission to the board
13 of the report of the examination or
drug screen, or both, shall not be
14 included in the computation of the
time limit for hearing prescribed by
15 the Kansas administrative procedure
act. (a) Every person licensed to
16 practice the healing arts, by so
practicing or by filing an application for
17 an original, renewal or reinstated
license shall be deemed:
18 (1) To have consented to
submit to a mental or physical examination
19 or drug screen, or any combination
thereof, when ordered by the board
20 upon a finding by the board of
reasonable suspicion that such person has
21 the inability to practice the healing
arts with reasonable skill and safety
22 because of physical or mental illness or
condition, or use of alcohol or
23 drugs or any other chemicals or
substances; and
24 (2) to have waived all
claims to any privilege or objections to the
25 admissibility of the testimony, drug
screen or examination report of the
26 person conducting such examination or
drug screen at any proceeding or
27 hearing before the board.
28 (b) The board may order a
person to submit to a mental or physical
29 examination or drug screen, or any
combination thereof, only after giving
30 such person notice and an opportunity
for hearing under the provisions
31 of the Kansas administrative procedure
act. A proceeding for examination
32 or drug screen may be commenced as part
of an investigation by the
33 board, during discovery in an
administrative proceeding or in response
34 to an application for an original
renewal or reinstated license. This section
35 shall not be construed to prohibit the
board from taking such emergency
36 action as necessary to suspend or
temporarily limit a license pursuant to
37 K.S.A. 65-2838 and amendments
thereto.
38 (c) The board shall hold
any hearing under this section in closed ses-
39 sion, except that the board shall cause
the proceeding to be recorded.
40 (d) All orders, reports,
records, memoranda, pleadings, exhibits and
41 transcripts of proceedings related to an
application for an order under
42 this section shall be privileged and
confidential and shall not be subject
43 to discovery, subpoena or other means of
legal compulsion for their release
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1 to any person or entity and shall
not be admissible in any civil or admin-
2 istrative action other than a
disciplinary proceeding by the board, except
3 that such information may be
disclosed in the same manner authorized
4 by K.S.A. 65-2898a and amendments
thereto.
5 Sec. 3. K.S.A. 65-2842
and K.S.A. 1997 Supp. 65-2836 are hereby
6 repealed.
7 Sec. 4. This act shall
take effect and be in force from and after its
8 publication in the statute book.
9