Session of 1999
         
Substitute for HOUSE BILL No. 2007
         
By Committee on Federal and State Affairs
         
4-2
         
  9             AN  ACT concerning abortion; amending K.S.A. 1998 Supp. 65-445, 65-
10             2837, 65-6701, 65-6703 and 65-6709 and repealing the existing sec-
11             tions; also repealing K.S.A. 1998 Supp. 65-2837b and 65-6721.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Sec.  1. K.S.A. 1998 Supp. 65-445 is hereby amended to read as fol-
15       lows: 65-445. (a) Every medical care facility shall keep written records of
16       all pregnancies which are lawfully terminated within such medical care
17       facility and shall annually shall submit a written report thereon to the
18       secretary of health and environment in the manner and form prescribed
19       by the secretary. Every person licensed to practice medicine and surgery
20       shall keep a record of all pregnancies which are lawfully terminated by
21       such person in a location other than a medical care facility and shall
22       annually shall submit a written report thereon to the secretary of health
23       and environment in the manner and form prescribed by the secretary.
24             (b) Each The report required by this section shall not include the
25       name of any person whose pregnancy was terminated. Each report shall
26       include:
27             (1) The number of pregnancies terminated during the period of time
28       covered by the report,;
29             (2) the type of medical facility in which the pregnancy was
30       terminated,;
31             (3) information required to be reported under K.S.A. 65-6703, and
32       amendments thereto, if applicable to the pregnancy terminated, and;
33             (4) the confidential code number assigned by the secretary of health
34       and environment of both physicians who made the determination that the
35       abortion was necessary; and
36             (5) and such other information as may be required by the secretary
37       of health and environment, but the report shall not include the names of
38       the persons whose pregnancies were so terminated.
39             (c) Except as provided by this subsection, information obtained by
40       the secretary of health and environment under this section shall be con-
41       fidential and shall not be disclosed in a manner that would reveal the
42       identity of any person licensed to practice medicine and surgery who
43       submits a report to the secretary under this section or the identity of any

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  1       medical care facility which submits a report to the secretary under this
  2       section, except that. Such information, including information identifying
  3       such persons and facilities may be disclosed to the state board of healing
  4       arts upon request of the board for disciplinary action conducted by the
  5       board and may be disclosed to the attorney general or a district or county
  6       attorney upon a showing that a reasonable cause exists to believe that a
  7       violation of this act has occurred. Any information disclosed to the state
  8       board of healing arts or the attorney general or a district or county at-
  9       torney pursuant to this subsection shall be used solely for the purposes
10       of a disciplinary action or criminal proceeding. Except as otherwise pro-
11       vided in this subsection, information obtained by the secretary under this
12       section may be used only for statistical purposes and such information
13       shall not be released in a manner which would identify any county or
14       other area of this state in which the termination of the pregnancy oc-
15       curred. A violation of this subsection (c) is a class A nonperson
16       misdemeanor.
17             (d) In addition to such criminal penalty under subsection (c), any
18       person licensed to practice medicine and surgery or medical care facility
19       whose identity is revealed in violation of this section may bring a civil
20       action against the responsible person or persons for any damages to the
21       person licensed to practice medicine and surgery or medical care facility
22       caused by such violation.
23             (e) For the purpose of maintaining confidentiality as provided by sub-
24       sections (c) and (d), reports of terminations of pregnancies required by
25       this section shall identify the person or facility submitting such reports
26       only by confidential code number assigned by the secretary of health and
27       environment to such person or facility and the department of health and
28       environment shall maintain such reports only by such number.
29             Sec.  2. K.S.A. 1998 Supp. 65-2837 is hereby amended to read as
30       follows: 65-2837. As used in K.S.A. 65-2836, and amendments thereto,
31       and in this section:
32             (a) "Professional incompetency" means:
33             (1) One or more instances involving failure to adhere to the appli-
34       cable standard of care to a degree which constitutes gross negligence, as
35       determined by the board.
36             (2) Repeated instances involving failure to adhere to the applicable
37       standard of care to a degree which constitutes ordinary negligence, as
38       determined by the board.
39             (3) A pattern of practice or other behavior which demonstrates a
40       manifest incapacity or incompetence to practice medicine.
41             (b) "Unprofessional conduct" means:
42             (1) Solicitation of professional patronage through the use of fraudu-
43       lent or false advertisements, or profiting by the acts of those representing

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  1       themselves to be agents of the licensee.
  2             (2) Representing to a patient that a manifestly incurable disease, con-
  3       dition or injury can be permanently cured.
  4             (3) Assisting in the care or treatment of a patient without the consent
  5       of the patient, the attending physician or the patient's legal
  6       representatives.
  7             (4) The use of any letters, words, or terms, as an affix, on stationery,
  8       in advertisements, or otherwise indicating that such person is entitled to
  9       practice a branch of the healing arts for which such person is not licensed.
10             (5) Performing, procuring or aiding and abetting in the performance
11       or procurement of a criminal abortion an abortion in violation of K.S.A.
12       65-6703, and amendments thereto.
13             (6) Willful betrayal of confidential information.
14             (7) Advertising professional superiority or the performance of pro-
15       fessional services in a superior manner.
16             (8) Advertising to guarantee any professional service or to perform
17       any operation painlessly.
18             (9) Participating in any action as a staff member of a medical care
19       facility which is designed to exclude or which results in the exclusion of
20       any person licensed to practice medicine and surgery from the medical
21       staff of a nonprofit medical care facility licensed in this state because of
22       the branch of the healing arts practiced by such person or without just
23       cause.
24             (10) Failure to effectuate the declaration of a qualified patient as
25       provided in subsection (a) of K.S.A. 65-28,107, and amendments thereto.
26             (11) Prescribing, ordering, dispensing, administering, selling, supply-
27       ing or giving any amphetamines or sympathomimetic amines, except as
28       authorized by K.S.A. 65-2837a, and amendments thereto.
29             (12) Conduct likely to deceive, defraud or harm the public.
30             (13) Making a false or misleading statement regarding the licensee's
31       skill or the efficacy or value of the drug, treatment or remedy prescribed
32       by the licensee or at the licensee's direction in the treatment of any dis-
33       ease or other condition of the body or mind.
34             (14) Aiding or abetting the practice of the healing arts by an unli-
35       censed, incompetent or impaired person.
36             (15) Allowing another person or organization to use the licensee's
37       license to practice the healing arts.
38             (16) Commission of any act of sexual abuse, misconduct or exploita-
39       tion related to the licensee's professional practice.
40             (17) The use of any false, fraudulent or deceptive statement in any
41       document connected with the practice of the healing arts including the
42       intentional falsifying or fraudulent altering of a patient or medical care
43       facility record.

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  1             (18) Obtaining any fee by fraud, deceit or misrepresentation.
  2             (19) Directly or indirectly giving or receiving any fee, commission,
  3       rebate or other compensation for professional services not actually and
  4       personally rendered, other than through the legal functioning of lawful
  5       professional partnerships, corporations or associations.
  6             (20) Failure to transfer patient records to another licensee when re-
  7       quested to do so by the subject patient or by such patient's legally des-
  8       ignated representative.
  9             (21) Performing unnecessary tests, examinations or services which
10       have no legitimate medical purpose.
11             (22) Charging an excessive fee for services rendered.
12             (23) Prescribing, dispensing, administering, distributing a prescrip-
13       tion drug or substance, including a controlled substance, in an excessive,
14       improper or inappropriate manner or quantity or not in the course of the
15       licensee's professional practice.
16             (24) Repeated failure to practice healing arts with that level of care,
17       skill and treatment which is recognized by a reasonably prudent similar
18       practitioner as being acceptable under similar conditions and
19       circumstances.
20             (25) Failure to keep written medical records which accurately de-
21       scribe the services rendered to the patient, including patient histories,
22       pertinent findings, examination results and test results.
23             (26) Delegating professional responsibilities to a person when the
24       licensee knows or has reason to know that such person is not qualified by
25       training, experience or licensure to perform them.
26             (27) Using experimental forms of therapy without proper informed
27       patient consent, without conforming to generally accepted criteria or stan-
28       dard protocols, without keeping detailed legible records or without having
29       periodic analysis of the study and results reviewed by a committee or
30       peers.
31             (28) Prescribing, dispensing, administering or distributing an ana-
32       bolic steroid or human growth hormone for other than a valid medical
33       purpose. Bodybuilding, muscle enhancement or increasing muscle bulk
34       or strength through the use of an anabolic steroid or human growth hor-
35       mone by a person who is in good health is not a valid medical purpose.
36             (29) Referring a patient to a health care entity for services if the
37       licensee has a significant investment interest in the health care entity,
38       unless the licensee informs the patient in writing of such significant in-
39       vestment interest and that the patient may obtain such services elsewhere.
40             (30) Failing to properly supervise, direct or delegate acts which con-
41       stitute the healing arts to persons who perform professional services pur-
42       suant to such licensee's direction, supervision, order, referral, delegation
43       or practice protocols.

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  1             (c) "False advertisement" means any advertisement which is false,
  2       misleading or deceptive in a material respect. In determining whether
  3       any advertisement is misleading, there shall be taken into account not
  4       only representations made or suggested by statement, word, design, de-
  5       vice, sound or any combination thereof, but also the extent to which the
  6       advertisement fails to reveal facts material in the light of such represen-
  7       tations made.
  8             (d) "Advertisement" means all representations disseminated in any
  9       manner or by any means, for the purpose of inducing, or which are likely
10       to induce, directly or indirectly, the purchase of professional services.
11             (e) "Licensee" for purposes of this section and K.S.A. 65-2836, and
12       amendments thereto, shall mean all persons issued a license, permit or
13       special permit pursuant to article 28 of chapter 65 of the Kansas Statutes
14       Annotated.
15             (f) "License" for purposes of this section and K.S.A. 65-2836, and
16       amendments thereto, shall mean any license, permit or special permit
17       granted under article 28 of chapter 65 of the Kansas Statutes Annotated.
18             (g) "Health care entity" means any corporation, firm, partnership or
19       other business entity which provides services for diagnosis or treatment
20       of human health conditions and which is owned separately from a refer-
21       ring licensee's principle practice.
22             (h) "Significant investment interest" means ownership of at least 10%
23       of the value of the firm, partnership or other business entity which owns
24       or leases the health care entity, or ownership of at least 10% of the shares
25       of stock of the corporation which owns or leases the health care entity.
26             Sec.  3. K.S.A. 1998 Supp. 65-6701 is hereby amended to read as
27       follows: 65-6701. As used in this act K.S.A. 65-6701 through 65-6715, and
28       amendments thereto::
29             (a) "Abortion" means the use of any means to intentionally terminate
30       a pregnancy except for the purpose of causing a live birth. Abortion does
31       not include: (1) The use of any drug or device that inhibits or prevents
32       ovulation, fertilization or the implantation of an embryo; or (2) disposition
33       of the product of in vitro fertilization prior to implantation.
34             (b) "Counselor" means a person who is: (1) Licensed to practice med-
35       icine and surgery; (2) licensed to practice psychology; (3) licensed to prac-
36       tice professional or practical nursing; (4) registered to practice profes-
37       sional counseling; (5) licensed as a social worker; (6) the holder of a
38       master's or doctor's degree from an accredited graduate school of social
39       work; (7) registered to practice marriage and family therapy; (8) a regis-
40       tered physician's assistant; or (9) a currently ordained member of the
41       clergy or religious authority of any religious denomination or society.
42       Counselor does not include the physician who performs or induces the
43       abortion or a physician or other person who assists in performing or in-

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  1       ducing the abortion.
  2             (c) "Department" means the department of health and environment.
  3             (d) "Gestational age" means the time that has elapsed since the first
  4       day of the woman's last menstrual period.
  5             (e) "Medical emergency" means that condition which, on the basis
  6       of the physician's good faith clinical judgment, so complicates the medical
  7       condition of a pregnant woman as to necessitate the immediate abortion
  8       of her pregnancy to avert her death or for which a delay will create serious
  9       risk of substantial and irreversible impairment of a major bodily function.
10             (f) "Minor" means a person less than 18 years of age.
11             (g) "Physician" means a person licensed to practice medicine and
12       surgery in this state.
13             (h) "Pregnant" or "pregnancy" means that female reproductive con-
14       dition of having a fetus in the mother's body.
15             (i) "Qualified person" means an agent of the physician who is a psy-
16       chologist, licensed social worker, registered professional counselor, reg-
17       istered nurse or physician.
18             (j) "Unemancipated minor" means any minor who has never been:
19       (1) Married; or (2) freed, by court order or otherwise, from the care,
20       custody and control of the minor's parents.
21             (k) "Viable" means that stage of gestation when, in the best medical
22       judgment of the attending physician, the fetus is capable of sustained
23       survival outside the uterus without the application of extraordinary med-
24       ical means fetal development when the physician determines, according
25       to accepted obstetrical or neonatal standards of care and practice applied
26       by physicians in the same or similar circumstances, that there is a rea-
27       sonable probability that the life of the child can be continued indefinitely
28       outside the mother's womb with natural or artificial life-supportive
29       measures.
30             Sec.  4. K.S.A. 1998 Supp. 65-6703 is hereby amended to read as
31       follows: 65-6703. (a) No person shall perform or induce an abortion when
32       the fetus is viable unless such person is a physician and has a documented
33       referral from another physician not legally or financially affiliated with
34       the physician performing or inducing the abortion and both physicians
35       determine that: (1) The abortion is necessary to preserve the life of the
36       pregnant woman; or (2) a continuation of the pregnancy will cause a
37       substantial and irreversible impairment of a major bodily function of the
38       pregnant woman.
39             (b)  (1) Except in the case of a medical emergency, prior to perform-
40       ing an abortion upon a woman, the physician shall determine the gesta-
41       tional age of the fetus according to accepted obstetrical and neonatal
42       practice and standards or neonatal standards of care and practice applied
43       by physicians in the same or similar circumstances. If the physician de-

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  1       termines the gestational age is less than 22 weeks, the physician shall
  2       document as part of the medical records of the woman the basis for the
  3       determination.
  4             (2) If the physician determines the gestational age of the fetus is 22
  5       or more weeks, prior to performing an abortion upon the woman, the
  6       physician shall determine if the fetus is viable by using and exercising
  7       that degree of care, skill and proficiency commonly exercised by the or-
  8       dinary skillful, careful and prudent physician according to accepted ob-
  9       stetrical or neonatal standards of care and practice applied by physicians
10       in the same or similar circumstances. In making this determination of
11       viability, the physician shall perform or cause to be performed such med-
12       ical examinations and tests as are necessary to make a finding of the
13       gestational age of the fetus and After making such determination, the
14       physician shall enter such findings and determinations of viability in the
15       medical record of the woman.
16             (3) If the physician determines the gestational age of a fetus is 22 or
17       more weeks, and determines that the fetus is not viable and performs an
18       abortion on the woman, the physician shall report such determinations
19       and the reasons for such determinations in writing to the medical care
20       facility in which the abortion is performed for inclusion in the report of
21       the medical care facility to the secretary of health and environment under
22       K.S.A. 65-445, and amendments thereto or. If the abortion is not per-
23       formed in a medical care facility, the physician shall report such deter-
24       minations and the reasons for such determinations in writing to the sec-
25       retary of health and environment as part of the written report made by
26       the physician to the secretary of health and environment under K.S.A.
27       65-445, and amendments thereto.
28             (4) If the physician who is to perform the abortion determines the
29       gestational age of a fetus is 22 or more weeks, and determines that the
30       fetus is viable, and both physicians under subsection (a) determine in
31       accordance with the provisions of subsection (a) that an abortion is nec-
32       essary to preserve the life of the pregnant woman or that a continuation
33       of the pregnancy will cause a substantial and irreversible impairment of
34       a major bodily function of the pregnant woman and the physician per-
35       forms an abortion on the woman, the physician who performs the abortion
36       shall report such determinations, the reasons for such determinations and
37       the basis for the determination that an abortion is necessary to preserve
38       the life of the pregnant woman or that a continuation of the pregnancy
39       will cause a substantial and irreversible impairment of a major bodily
40       function of the pregnant woman make a report in writing to the medical
41       care facility in which the abortion is performed for inclusion in the report
42       of the medical care facility to the secretary of health and environment as
43       required under K.S.A. 65-445, and amendments thereto or. If the abor-

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  1       tion is not performed in a medical care facility, the physician who per-
  2       forms the abortion shall report such determinations, the reasons for such
  3       determinations and the basis for the determination that an abortion is
  4       necessary to preserve the life of the pregnant woman or that a continu-
  5       ation of the pregnancy will cause a substantial and irreversible impairment
  6       of a major bodily function of the pregnant woman make a report in writing
  7       to the secretary of health and environment as part of the written report
  8       made by the physician to the secretary of health and environment as
  9       required under K.S.A. 65-445, and amendments thereto. In the report
10       required by this subsection, the physician shall specify in detail the clinical
11       diagnosis or condition that existed which made the performance of the
12       abortion necessary to preserve the life of the pregnant woman or to pre-
13       vent a substantial and irreversible impairment of a major bodily function.
14       Such information also shall specify the exact nature of the impairment of
15       the major bodily function of the pregnant woman.
16             (5) The physician shall retain the medical records required to be kept
17       under paragraphs (1) and (2) of this subsection (b) for not less than five
18       years and shall retain a copy of the written reports required under para-
19       graphs (3) and (4) of this subsection (b) for not less than five years.
20             (c) A woman upon whom an abortion is performed shall not be pros-
21       ecuted under this section for a conspiracy to violate this section pursuant
22       to K.S.A. 21-3302, and amendments thereto.
23             (d) Nothing in this section shall be construed to create a right to an
24       abortion. Notwithstanding any provision of this section, a person shall not
25       perform an abortion that is prohibited by law.
26             (e) As used in this section, "viable" means that stage of fetal devel-
27       opment when it is the physician's judgment according to accepted ob-
28       stetrical or neonatal standards of care and practice applied by physicians
29       in the same or similar circumstances that there is a reasonable probability
30       that the life of the child can be continued indefinitely outside the mother's
31       womb with natural or artificial life-supportive measures.
32             (f) If any provision of this section is held to be invalid or unconsti-
33       tutional, it shall be conclusively presumed that the legislature would have
34       enacted the remainder of this section without such invalid or unconsti-
35       tutional provision.
36             (g) (f) Upon a first conviction of a violation of this section, a person
37       shall be guilty of a class A nonperson misdemeanor. Upon a second or
38       subsequent conviction of a violation of this section, a person shall be guilty
39       of a severity level 10, nonperson felony.
40             Sec.  5. K.S.A. 1998 Supp. 65-6709 is hereby amended to read as
41       follows: 65-6709. No abortion shall be performed or induced without the
42       voluntary and informed consent of the woman upon whom the abortion
43       is to be performed or induced. Except in the case of a medical emergency,

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  1       consent to an abortion is voluntary and informed only if:
  2             (a) At least 24 hours before the abortion the physician who is to per-
  3       form the abortion or the referring physician has informed the woman in
  4       writing of:
  5             (1) The name of the physician who will perform the abortion;
  6             (2) a description of the proposed abortion method;
  7             (3) a description of risks related to the proposed abortion method,
  8       including risks to the woman's reproductive health and alternatives to the
  9       abortion that a reasonable patient would consider material to the decision
10       of whether or not to undergo the abortion;
11             (4) the probable gestational age of the fetus at the time the abortion
12       is to be performed and that Kansas law requires the following: "No person
13       shall perform or induce an abortion when the fetus is viable unless such
14       person is a physician and has a documented referral from another phy-
15       sician not legally or financially associated affiliated with the physician
16       performing or inducing the abortion and both physicians determine that:
17       (1) The abortion is necessary to preserve the life of the pregnant woman;
18       or (2) the fetus is affected by a severe or life-threatening deformity or
19       abnormality a continuation of the pregnancy will cause a substantial and
20       irreversible impairment of a major bodily function of the pregnant
21       woman." If the child is born alive, the attending physician has the legal
22       obligation to take all reasonable steps necessary to maintain the life and
23       health of the child;
24             (5) the probable anatomical and physiological characteristics of the
25       fetus at the time the abortion is to be performed;
26             (6) the medical risks associated with carrying a fetus to term; and
27             (7) any need for anti-Rh immune globulin therapy, if she is Rh neg-
28       ative, the likely consequences of refusing such therapy and the cost of
29       the therapy.
30             (b) At least 24 hours before the abortion, the physician who is to
31       perform the abortion, the referring physician or a qualified person has
32       informed the woman in writing that:
33             (1) Medical assistance benefits may be available for prenatal care,
34       childbirth and neonatal care, and that more detailed information on the
35       availability of such assistance is contained in the printed materials given
36       to her and described in K.S.A. 1998 Supp. 65-6710, and amendments
37       thereto;
38             (2) the printed materials in K.S.A. 1998 Supp. 65-6710, and amend-
39       ments thereto, describe the fetus and list agencies which offer alternatives
40       to abortion with a special section listing adoption services;
41             (3) the father of the fetus is liable to assist in the support of her child,
42       even in instances where he has offered to pay for the abortion except that
43       in the case of rape this information may be omitted; and

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  1             (4) the woman is free to withhold or withdraw her consent to the
  2       abortion at any time prior to invasion of the uterus without affecting her
  3       right to future care or treatment and without the loss of any state or
  4       federally-funded benefits to which she might otherwise be entitled.
  5             (c) Prior to the abortion procedure, prior to physical preparation for
  6       the abortion and prior to the administration of medication for the abor-
  7       tion, the woman shall meet privately with the physician who is to perform
  8       the abortion and such person's staff to ensure that she has an adequate
  9       opportunity to ask questions of and obtain information from the physician
10       concerning the abortion.
11             (d) At least 24 hours before the abortion, the woman is given a copy
12       of the printed materials described in K.S.A. 1998 Supp. 65-6710, and
13       amendments thereto. If the woman asks questions concerning any of the
14       information or materials, answers shall be provided to her in her own
15       language.
16             (e) The woman certifies in writing on a form provided by the de-
17       partment, prior to the abortion, that the information required to be pro-
18       vided under subsections (a), (b) and (d) has been provided and that she
19       has met with the physician who is to perform the abortion on an individual
20       basis as provided under subsection (c). All physicians who perform abor-
21       tions shall report the total number of certifications received monthly to
22       the department. The department shall make the number of certifications
23       received available on an annual basis.
24             (f) Prior to the performance of the abortion, the physician who is to
25       perform the abortion or the physician's agent receives a copy of the writ-
26       ten certification prescribed by subsection (e) of this section.
27             (g) The woman is not required to pay any amount for the abortion
28       procedure until the 24-hour waiting period has expired. 
29       Sec.  6. K.S.A. 1998 Supp. 65-445, 65-2837, 65-2837b, 65-6701, 65-
30       6703, 65-6709 and 65-6721 are hereby repealed.
31        Sec.  7. This act shall take effect and be in force from and after its
32       publication in the Kansas register.