The House met pursuant to adjournment with Speaker pro tem Mays in the chair.
The roll was called with 120 members present.
Reps. Haley, McKechnie, Neufeld, Nichols and O'Connor were excused on excused
absence by the Speaker.
Present later: Reps. McKechnie, Neufeld and Nichols.
Prayer by guest chaplain, the Rev. Kendall Franklin, senior pastor, First Church of the
Nazarene, Hutchinson, and guest of Rep. O'Neal:
Heavenly Father,
We thank You for the persons who serve and have been sent to represent
the people. May they continually be reminded of the privilege and
responsibility of their office.
I pray specifically for these who make up the House of Representatives.
I ask that they will experience Your help and Your presence in a very
meaningful way. Guide them so they can give their utmost for Your highest.
Help us all to not settle only for the good, but to strive for the best. Give
us the strength to do what is right even when it means standing alone and
going against the grain. Keep us from arrogance, and the need to always win.
As this session comes to a close, may we never take for granted what we
have in the heart of this great country and in our extraordinary state. Help
us to never forget that we are a blessed people.
May Your will be done.
In Jesus' Name. Amen.
The Pledge of Allegiance was led by Rep. Stone.
PRESENTATION OF PETITIONS
The following petition was presented and filed:
HP 2010, by Rep. Benlon (by request), a petition opposing the continuation of the use
of the death penalty in all cases, signed by Diane Etzel-Wise and 47 others from Johnson
County..
REFERENCE OF BILLS AND CONCURRENT RESOLUTIONS
Speaker pro tem Mays announced the following resolution, appearing on the Calendar
as ``To Be Referred,'' was referred to committee as indicated:
Health and Human Services: SCR 1612.
REFERENCE OF BILLS AND CONCURRENT RESOLUTIONS
The following bills and resolutions were referred to committees as indicated:
Appropriations: HCR 5042.
Judiciary: SB 317.
Kansas 2000 Select: HB 2573.
INTRODUCTION OF ORIGINAL MOTIONS
Roll call was demanded on motion of Rep. Jenkins to remove Sub. SB 271 from the
table(see previous action, HJ pp 609 and 737).
On roll call, the vote was: Yeas 58; Nays 60; Present but not voting: 0; Absent or not
voting: 7.
Absent or not voting: Haley, Kuether, McKechnie, Neufeld, Nichols, O'Connor, Rehorn.
The motion did not prevail.
FINAL ACTION ON BILLS AND CONCURRENT RESOLUTIONS HB 2115, An act concerning the Kansas session laws; amending K.S.A. 45-313 and
repealing the existing section, was considered on final action.
On roll call, the vote was: Yeas 113; Nays 6; Present but not voting: 0; Absent or not
voting: 6.
Absent or not voting: Glasscock, Haley, McKechnie, Neufeld, Nichols, O'Connor.
The bill passed.
HB 2558, An act concerning the disposition of certain moneys for the benefit of children;
disposition of tobacco litigation settlement proceeds; creating the Kansas endowment for
youth fund, the children's initiatives fund and the children's initiatives accountability fund;
establishing the Kansas children's cabinet and the Kansas endowment for youth board of
trustees; prescribing certain powers, duties and functions; providing for the investment and
management of such funds; abolishing the children's health care programs fund; amending
K.S.A. 75-7021 and K.S.A. 1998 Supp. 20-367, 38-1808 and 38-1901 and repealing the
existing sections also repealing K.S.A. 1998 Supp. 38-2008, was considered on final action.
Call of the House was demanded.
On roll call, the vote was: Yeas 109; Nays 12; Present but not voting: 0; Absent or not
voting: 4.
Absent or not voting: Haley, McKechnie, Neufeld, O'Connor.
The bill passed, as amended.
EXPLANATIONS OF VOTE
Mr. Speaker: I vote NO on HB 2558. Many aspects of HB 2558 I agree with, however,
a bill of this magnitude that provides for the spending of hundreds of millions of dollars, a
bill infused with big government bureaucracy that creates a children's cabinet, an
endowment for a youth fund, the children's initiatives fund, the children's initiatives
accountability fund, and a family and children trust account administered by the Secretary
of SRS, should be fully debated and not pushed through when time is limited, tempers are
short and attention devoted to the comprehensive transportation plan, the higher education
bill and the budget.--Donald L. Dahl
Mr. Speaker: Yet here's a spot. Out damned spot! Out, I say! - Hell is murky! - Fee, fie,
fo, fum, I smell the smoke of an Englishman.
What need we fear who knows it, when none can call our power to account? - Yet who
would have thought the old man to have had so much blood in him.
This is a bloody bill that draws us into this tighter loop which kills people with the ``ciggie.''
Take, oh lords the monies from this killing process, use it to treat those that are dying, use
it to attempt to prevent our children from partaking. I vote no on HB 2558.--Ted Powers
Mr. Speaker: The investment of tobacco litigation funds for the benefit of children's
programs is a noble endeavor which I support. However, I do not support the deposits of
these monies into the KEY fund because this fund has in the past funded programs without
competitive bids and programs without credible research and outcomes. I vote no on HB 2558.--Carlos Mayans
Mr. Speaker: I vote yes on HB 2558. This legislation represents a reasonable and cost-
effective way for our state to maximize the benefit of tobacco settlement funds for the
citizens of Kansas. Those who claim the bill creates new bureaucracies have not studied the
bill. The bill provides an efficient process to fund much needed children's initiatives while
creating a permanent trust from which future needs can be met. This bill allows funding of
initiatives that can prove they work. Earmarking tobacco settlement funds for delinquency
prevention, early childhood education and children's health programs is a sensible
investment in our future. HB 2558 represents good public policy and good stewardship of
tobacco settlement funds.--David Adkins
Mr. Speaker: I vote no on HB 2558. The intentions of this bill are admirable. However,
reducing bureaucracy, increasing efficiency in state government and receiving greater
effectiveness from state funding is not found in this bill.
I believe the funds are being divided into too many different accounts with too many
different interests being involved. I am concerned the funds will be whittled away and
support for the children will not be achieved. Through division of the funds into separate
agencies, some being partisan in control, administrative services are being duplicated. This
is money which could be spent on children.--Cindy Hermes
HCR 5041, A concurrent resolution memorializing Congress to rescind certain Health
Care Financing Administration (HCFA) rules requiring Outcome and Assessment
Information Set (OASIS) reporting, was considered on final action.
On roll call, the vote was: Yeas 122; Nays 0; Present but not voting: 0; Absent or not
voting: 3.
EXPLANATIONS OF VOTE
Mr. Speaker: Though SB 345 defers any additional funding until fiscal year 2001,
passage of this bill means that we are committing ourselves to the expenditure of more than
82 million dollars of new state funding when fully implemented. Of that amount,
approximately 3 million goes to Washburn for program enhancement, 26 million to the 6
state universities for program enhancement and only 5 million to the 19 community colleges
for program enhancement. Once again, Washburn and the regents institutions get the bulk
of the money, and the community colleges get what's left. I vote NO on SB 345.--Patricia
Lightner, Phyllis Gilmore
Mr. Speaker: What a masterful exhibit of efficiency this bill calls for! It will require that
three people (commission for public universities) do the work now done by 9 people (current
board of regents), another three people (commission for community colleges and vocation/
technical education) will do the work now done by 10 people (current state board of
education) and another three people (commission for higher education coordination) to do
what NO ONE has been able to do. I am reminded that a camel is a horse that was put
together by a committee. I fear that we may get a camel with passage of this bill. I vote NO
on SB 345.--Donald L. Dahl, Sue Storm, Phil Kline
Mr. Speaker: The general improvement of postsecondary education in the State of
Kansas is long overdue, but at a cost of more than 30 million dollars, its implementation is
more than our taxpayers can afford. I vote no on SB 345.-Carlos Mayans
Mr. Speaker: I favor many of the provisions of this bill, but I object to using state funds
to reduce community college mill levies without having met any criteria to merge or
consolidate services prior to receipt of such funds. I vote no on SB 345.--Deena Horst
Mr. Speaker: I vote no on SB 345. While this bill advances many appropriate reform
policies, I cannot support the bill as a whole. The Board of Regents as restructured will, in
my view, be incapable of carrying out the myriad duties assigned to the three commissions
created. The bill is flawed because of the proponents' desire to avoid a constitutional
amendment. In attempting to address existing problems, this bill creates many more. The
constituency-based board member appointment process, as set forth in the bill, is a threat
to the credibility and integrity of the board. Taken as a whole, the bill poses a greater risk
of harm to our system of higher education than does the status quo.--David Adkins
Mr. Speaker: SB 345 was supposed to be a bill to improve the governance of higher
education in Kansas. With the amendment added in committee it now features a program
of property tax reduction. The 87 counties without a community college will see a reduction
of $14 million, while counties with a college will have a $21 million reduction in property
taxes. To get the votes to pass it, we spent $3 million for Washburn and $26 million for the
regents institutions. Where does this $82 million expenditure fit into our plans for a
transportation program, funding for elementary and secondary schools, and other state
functions? I vote NO on SB 345.--Robert Tomlinson
MOTIONS TO CONCUR AND NONCONCUR
On motion of Rep. O'Neal, the House nonconcurred in Senate amendments to Sub. HB 2469 and asked for a conference.
Speaker pro tem Mays thereupon appointed Reps. O'Neal, Carmody and Pauls as
conferees on the part of the House.
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on Senate
amendments to HB 2074, submits the following report:
The House accedes to all Senate amendments to the bill, and your committee on
conference further agrees to amend the bill, as printed with Senate Committee of the Whole
amendments, as follows:
On page 15, in line 22, after ``health'' by inserting ``and environment''; in line 36, by
striking ``Kansas register'' and inserting ``statute book'';
And your committee on conference recommends the adoption of this report.
Sandy Praeger
Chris Steineger
Larry D. Salmans
Garry Boston
Jerry Henry
Gerald G. Geringer
On motion of Rep. Boston, the conference committee report on HB 2074 was adopted.
Call of the House was demanded.
On roll call, the vote was: Yeas 108; Nays 15; Present but not voting: 0; Absent or not
voting: 2.
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on Senate
amendments to HB 2145, submits the following report:
The House accedes to all Senate amendments to the bill, and your committee on
conference further agrees to amend the bill, as printed with Senate Committee of the Whole
amendments, as follows:
On page 5, by striking all of lines 21 through 32, and inserting:
``(3) For a solid waste disposal area permit issued on or after July 1, 1999, proof that
the permittee owns the land where the disposal area will be located, if the disposal area is:
(A) A municipal solid waste landfill; or (B) a solid waste disposal area that has: (i) A leachate
or gas collection or treatment system; (ii) waste containment systems or appurtenances with
planned maintenance schedules; or (iii) an environmental monitoring system with planned
maintenance schedules or periodic sampling and analysis requirements. This requirement
shall not apply to a permit for lateral or vertical expansion contiguous to a permitted solid
waste disposal area in operation on July 1, 1999, if such expansion is on land leased by the
permittee before April 1, 1999.'';
On page 6, in line 26, after the period, by inserting ``Prior to the department's
authorization, written approval for the disposal must be obtained from the landowner and
the local governmental or zoning authority having jurisdiction over the disposal site.''; in
line 32, after the period, by inserting ``Prior to the department's authorization, written
approval for the disposal must be obtained from the landowner and the local governmental
or zoning authority having jurisdiction over the disposal site.'';
And your committee on conference recommends the adoption of this report.
David R. Corbin
Stephen R. Morris
Donald E. Biggs
Joann Lee Freeborn
Gerry Ray
Vaughn L. Flora
On motion of Rep. Freeborn, the conference committee report on HB 2145 was adopted.
On roll call, the vote was: Yeas 122; Nays 1; Present but not voting: 0; Absent or not
voting: 2.
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on Senate
amendments to HB 2191, submits the following report:
The House accedes to all Senate amendments to the bill, and your committee on
conference further agrees to amend the bill, as printed with House Committee amendments,
as follows:
On page 1, following the enacting clause, by inserting 41 new sections as follows:
``Section 1. K.S.A. 72-961 is hereby amended to read as follows: 72-961. This act shall
be known and may be cited as the ``special education for exceptional children act.'' It is the purpose and intention of this act to provide for educational opportunities which will contribute to the development of each exceptional child in this state in accord with his or her abilities and capacities.
Sec. 2. K.S.A. 1998 Supp. 72-962 is hereby amended to read as follows: 72-962. As used
in this act:
(a) ``School district'' means any public school district.
(b) ``Board'' means the board of education of any school district.
(c) ``State board'' means the state board of education.
(d) ``Department'' means the state department of education.
(e) ``State institution'' means Topeka state hospital, Osawatomie state hospital, Rainbow mental health facility, Larned state hospital, Parsons state hospital and training center, Winfield state hospital and training center, Kansas neurological institute and any juvenile correctional facility as defined by K.S.A. 38-1602, and amendments theretoany institution under the jurisdiction of a state agency.
(f) ``State agency'' means the secretary of social and rehabilitation services, the secretary of corrections, and the commissioner of juvenile justice.
(f)(g) ``Exceptional children'' means persons who: (1) are children with disabilities or gifted children and are school age, to be determined in accordance with rules and regulations
adopted by the state board, which age may differ from the ages of children required to
attend school under the provisions of K.S.A. 72-1111, and amendments thereto; and (2) differ in physical, mental, social, emotional or educational characteristics to the extent that special education services are necessary to enable them to receive educational benefits in accordance with their abilities or capacities.
(g)(h) ``Gifted children'' means exceptional children who are determined to be within
the gifted category of exceptionality as such category is defined inby the state planboard.
(h)(i) ``Special education services'' means programs for which specialized training, instruction, programming techniques, facilities and equipment may be needed for the education of exceptional childrenspecially designed instruction provided at no cost to parents to meet the unique needs of an exceptional child, including:
(1) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(2) instruction in physical education.
(i)(j) ``Special teacher'' means a person, employed by or under contract with a school
district or a state institution forto provide special education or related services, who is: (1) A teacher Qualified to instructprovide special education or related services to exceptional
children as determined bypursuant to standards established by the state board and who is so certified by the state board; or (2) a paraprofessional qualified to assist certificated teachers in the instructionprovision of special education or related services to exceptional
children as determined bypursuant to standards established by the state board and who is so approved by the state board.
(j)(k) ``State plan'' means the state plan for special education and related services
authorized by this act.
(k)(l) ``Agency'' means boards and the secretary of social and rehabilitation services state agencies.
(l) ``Lawful custodian'' means a parent or a person acting as parent. If none of the above is known or can be found, an agency shall cause proper proceedings to be instituted pursuant to the Kansas code for care of children to determine whether a child is a child in need of care. For a child whose custodian is the secretary of social and rehabilitation services, the term lawful custodian means the secretary except, when used in K.S.A. 72-972 through 72- 975, and amendments to such sections, the term means an education advocate.
(m) ``Parent'' means a natural parent, an adoptive parent, or a stepparentperson acting as parent, a legal guardian, or an education advocate.
(n) ``Person acting as parent'' means: (1) A guardian or conservator; or (2) a person, other than a parent, who is liable by law to maintain, care for, or support the child, or who has actual care and control of the child and is contributing the major portion of the cost of support of the child, or who has actual care and control of the child with the written consent of a person who has legal custody of the child, or who has been granted custody of the child by a court of competent jurisdiction.
(n) ``Person acting as parent'' means a person such as a grandparent or a stepparent with whom a child lives or a person other than a parent who is legally responsible for the welfare of a child.
(o) ``Education advocate'' means a person appointed by the state board in accordance
with the provisions of K.S.A. 38-1513a, and amendments thereto. A person appointed as an
education advocate for a child shall not be: (1) An employee of the agency which is required
by law to provide special education or related services for the child, or; (2) an employee of
the state board, the department, or any agency which is directly involved in providing
educational services for the child,; or (3) any person having a professional or personal interest
which would conflict with the interests of the child.
(p) ``Free appropriate public education'' means special education and related services that: (1) Are provided at public expense, under public supervision and direction, and without charge; (2) meet the standards of the state board; (3) include an appropriate preschool, elementary, or secondary school education; and (4) are provided in conformity with an individualized education program.
(q) ``Federal law'' means the individuals with disabilities education act, as amended.
(r) ``Individualized education program'' or ``IEP'' means a written statement for each exceptional child that is developed, reviewed, and revised in accordance with the provisions of section 12, and amendments thereto.
(s) ``Related services'' means transportation, and such developmental, corrective, and other supportive services, including speech-language pathology and audiology services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only, as may be required to assist an exceptional child to benefit from special education, and includes the early identification and assessment of disabling conditions in children.
(t) ``Supplementary aids and services'' means aids, services, and other supports that are provided in regular education classes or other education-related settings to enable children with disabilities to be educated with nondisabled children to the maximum extent appropriate.
(u) ``Individualized education program team'' or ``IEP team'' means a group of individuals composed of: (1) The parents of a child; (2) at least one regular education teacher of the child, if the child is, or may be, participating in the regular education environment; (3) at least one special education teacher or, where appropriate, at least one special education provider of the child; (4) a representative of the agency directly involved in providing educational services for the child who: (A) Is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of exceptional children; (B) is knowledgeable about the general curriculum; and (C) is knowledgeable about the availability of resources of the agency; (5) an individual who can interpret the instructional implications of evaluation results; (6) at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child, including related services personnel as appropriate; and (7) whenever appropriate, the child.
(v) ``Evaluation'' means a multisourced and multidisciplinary examination, conducted in accordance with the provisions of section 11, and amendments thereto, to determine whether a child is an exceptional child.
(w) ``Independent educational evaluation'' means an examination which is obtained by the parent of an exceptional child and performed by an individual or group of individuals who meet state and local standards to conduct such an examination.
(x) ``Elementary school'' means any nonprofit institutional day or residential school that offers instruction in any or all of the grades kindergarten through nine.
(y) ``Secondary school'' means any nonprofit institutional day or residential school that offers instruction in any or all of the grades nine through 12.
(z) ``Children with disabilities'' means children with mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities and who, by reason thereof, need special education and related services.
(aa) ``Substantial change in placement'' means the movement of an exceptional child, for more than 25% of the child's school day, from a less restrictive environment to a more restrictive environment or from a more restrictive environment to a less restrictive environment.
(bb) ``Material change in services'' means an increase or decrease of 25% or more of the duration or frequency of a special education service, a related service or a supplementary aid or a service specified on the IEP of an exceptional child.
Sec. 3. K.S.A. 72-963 is hereby amended to read as follows: 72-963. The state board
shall adopt, from time to time amend, and administer the state plan. The state board may amend the state plan as necessary. The state plan, and any amendments thereto, shall be
prepared in consultation with the state advisory council for special education provided for
in this act. The state plan shall include a statement of the objectives of state supervision of special education services in school districts and state institutions.
The state board may adopt rules and regulations for the administration of the special education for exceptional childrenthis act and shall adopt rules and regulations necessary
to comply with the federal law and to implement and give effect to the state plan. Rules and regulations adopted by the state board to implement and give effect to the state plan shall include the following:
(a) Provisions for the establishment, maintenance and supervision of special education services in school districts and state institutionsthe provisions of this act.
(b) Prescribed courses of study and curricula necessary to meet requirements for approval of special education services.
(c) Criteria for screening, diagnosis and certification of exceptional children including physical, educational and psychological examinations. No child from a home in which English is not the principal language may be assigned to special education services for exceptional children until such time that the child has been given, in the principal language used in the home of the child, examinations reasonably related to the child's cultural environment.
(d) Definitions of the various categories of exceptionality.
(e) Implementation dates of special education services for the various categories of exceptionality.
(f) Standards for special education services to be received by each of the several categories of exceptional children.
Rules and regulations adopted by the state board to implement and give effect to the state plan shall be incorporated by reference in the state plan.
Sec. 4. K.S.A. 72-963a is hereby amended to read as follows: 72-963a. Within 30 days after the effective date of this act, The state board shall:
(a) Establish procedures, which shall be utilized by each agency, to allow parties to disputes involving any matter described in subsection (b)(4) of section 17, and amendments thereto, or in section 31, and amendments thereto, to resolve such disputes through a mediation process or through due process hearings which meet the requirements of the federal law and this act.
(a)(b) Establish, in consultation with the state advisory council for special education,
standards and requirements for qualification of persons as hearing officers and mediators.
Such standards and requirements shall include, but not be limited to, standards and
requirements relating to the education and training necessary to assure the competent
performance of functions and procedures which hearing officers and mediators are
authorized to perform.
(b)(c) Establish standards and criteria for conducting and approving training programs
for hearing officers and mediators.
(c)(d) Compile and maintain a list of qualified hearing officers and mediators.
Sec. 5. K.S.A. 72-963c is hereby amended to read as follows: 72-963c. (a) The state
board, in consultation with the state advisory council for special education, shall:
(1) Prescribe guidelines for the selection of persons for appointment as education
advocates and for the exercise of their authorized powers, duties and functions;
(2) establish standards and criteria for qualification of persons for appointment as
education advocates; and
(3) provide for special training programs with respect to the powers, duties and functions
of lawful custodiansparents.
(b) Lawful custodiansParents who are education advocates shall, and all other lawful custodiansparents may, participate in the special training programs provided for under
provision (3) of subsection (a).
(c) The state board shall adopt rules and regulations for effectuation of the provisions of this section and shall make such rules and regulations a part of the state plan.
Sec. 6. K.S.A. 72-964 is hereby amended to read as follows: 72-964. (a) TheThere is established a state advisory council for special education which shall consist of ninenot more than 21 members. Members of the advisory council shall be appointed by the state board
of education, and every such appointment shall beserve for a fixed term of not to exceed
three years. No member may serve more than two consecutive terms. Whenever a vacancy
occurs in the membership of the advisory council for any reason other than the expiration
of the term of a member, the state board shall appoint a successor for the remainder of the
unexpired term. Members appointed
(b) (1) The advisory council established under this section shall be representative of the state population and be comprised of persons and community organizations interested in exceptional children, professions related to the educational needs ofinvolved in, or concerned with, the education of exceptional children, local school districts and boards of education thereof, state institutions of higher education and state institutions.including: (A) Parents of exceptional children, at least one of whom shall be the parent of a gifted child; (B) individuals with disabilities; (C) teachers; (D) representatives of institutions of higher education that prepare special education and related services personnel; (E) state and local education officials; (F) administrators of programs for exceptional children; (G) representatives of other state agencies involved in the financing or delivery of related services to exceptional children; (H) representatives of private schools and public charter schools; (I) at least one representative of a vocational, community, or business organization concerned with the provision of transition services to children with disabilities; and (J) representatives from the state juvenile and adult corrections agencies.
(2) A majority of the members of the advisory council shall be individuals with disabilities or parents of children with disabilities.
(b)(c) The state advisory council for special education shall:
(1) Advise and consult with the state board in the preparation and administration of the state plan and in the formulation and review of rules and regulations adopted pursuant to this act; (2) consider any problems presented to it by the state board, and give advice thereon; and (3) make recommendations to the state board concerning special education services. In addition, the advisory council shall have and perform such powers, functions and duties as are specified by law.of unmet needs within the state in the education of exceptional children;
(2) comment publicly on any rules and regulations proposed by the state board regarding the education of exceptional children;
(3) advise the state board in developing evaluations and reporting on data to the federal government;
(4) advise the state board in developing corrective action plans to address findings identified in federal monitoring reports; and
(5) advise the state board in developing and implementing policies relating to the coordination of services for exceptional children.
(c)(d) Members of the state advisory council for special education attending meetings
of such council, or attending a subcommittee meeting thereof authorized by the state board,
shall be paid subsistence allowances, mileage and other expenses as provided in K.S.A. 75-
3223, and amendments thereto.
(d)(e) The state board shall call the members of the advisory council to meet at Topeka
at least once each year, at which meeting the council shall organize by electing a chairperson
and a vice-chairperson. The person in the department specified under direction of the state board to be the principal administrator of special education and related services shall be the
secretary of the advisory council. The council shall meet upon the call of the chairperson
or upon the call of the state board as often as may be necessary at times and places designated
by the chairperson or by the state board in order to fulfill the duties prescribed under the
provisions of the special education for exceptional childrenthis act.
Sec. 7. K.S.A. 72-965 is hereby amended to read as follows: 72-965. (a) The state board
shall be responsible for the distribution and allocation of state and federal funds for special
education in accordance with appropriation acts and the statutes of this state. Such moneys
shall be expended only in accordance with and for the purposes specified in federal or state
law. Payments under this act may be made in installments and in advance or by way of
reimbursement, with necessary adjustments on account offor overpayments or
underpayments. Federal funds for special education shall be deposited in the state treasury.
(b) The state board is hereby authorized to accept from an individual or individuals, the
United States government or any of its agencies or any other public or private body, grants
or contributions of money, funds or property which the state board may authorize to be
used in accordance with appropriation acts, for or in aid of special education or related
services or any of the purposes authorized by the federal law or this act or the state plan.
Sec. 8. K.S.A. 72-966 is hereby amended to read as follows: 72-966. (a) The(1) Each
board of education of every school district shall provide special education services for all exceptional children who are residents of the school district.adopt and implement procedures to assure that all exceptional children residing in the school district, including children enrolled in private schools, who are in need of special education and related services, are identified, located and evaluated.
(2) Each board shall provide a free appropriate public education for exceptional children enrolled in the school district and for children with disabilities who are placed in a private school or facility by the school district as the means of carrying out the board's obligation to provide a free appropriate public education under this act and for children with disabilities who have been suspended for an extended term or expelled from school.
(3) Each board shall provide exceptional children who are enrolled by their parents in private schools with special education and related services in accordance with state law and federal law.
(b) WhenIf an exceptional child, upon referral by a person licensed to practice medicine and surgery, is admitted to a hospital, treatment center, or other health care institution, or
to a group boarding home or other care facility, and the institution or facility is located
outside the school district in which the child resides, the district in which the institution or
facility is located mustmay contract with the district in which a parent or person acting as parent of the child resides, to provide special education or related services, if such services
are necessary for the child. Special education and related services required by this subsection shallmay be provided pursuant to and in accordance with a contract which shall be entered
into between the board of education of the school district of which the child is a resident
and the board of education of the school district in which the child is livinghoused. Each Any such contract shall be subject to the provisions of subsectionsubsections (a)(3) and subsection (c) of K.S.A. 72-967, and amendments thereto. If a contract is not entered into between the school districts, the child shall be deemed to be a pupil of the school district which is providing special education and related services to the child. Nothing in this
subsection shall be construed to limit or supersede or in any manner affect or diminish the
requirements of compliance by each school district with the provisions of subsection (a),
but shall operate as a comity of school districts in assuring the provision of special education
services for each exceptional child in the state.
(c) (1) Special education and related services required by this section shall meet
standards and criteria set by the state board.
(2) The manner and time for implementation in school districts of special education services designed for each of the various categories of exceptionality shall be designated by the state board in accordance with the state plan.shall be responsible for assuring that the requirements of the federal law and this act are met and that all educational programs for exceptional children, including programs administered by any other state agency: (A) Are under the general supervision of individuals who are responsible for educational programs for exceptional children; and (B) meet the educational standards prescribed by the state board.
(3) Provision (2) of this subsection shall not limit the responsibility of any other state agency to provide, or pay for some or all of the costs of, a free appropriate public education for an exceptional child.
(d) Consistent with state and federal law, state agencies shall enter into such interagency agreements as are necessary or advisable in making a free appropriate public education available to all exceptional children residing in the state. The state board shall establish procedures for resolving interagency disputes, including procedures under which local educational agencies may initiate proceedings to secure reimbursement or otherwise implement or seek enforcement of the provisions of the interagency agreement.
New Sec. 9. The state board shall:
(1) Establish goals for the performance of children with disabilities in the state that: (A)
Will promote the purposes of this act; and (B) are consistent, to the maximum extent
appropriate, with other goals and standards for children established by the state board;
(2) establish performance indicators the state will use to assess progress toward
achieving those goals that, at a minimum, address the performance of children with
disabilities on assessments, dropout rates, and graduation rates;
(3) every two years, report to the secretary of the U.S. department of education, and to
the public, the progress of the state, and of children with disabilities in the state, toward
meeting the goals established under this section; and
(4) based on its assessment of that progress, revise its state improvement plan in
accordance with the provisions of subpart 1 of part D of the federal law as may be needed
to improve performance, if the state receives assistance under that subpart.
New Sec. 10. (a) The state board and each board shall include, to the extent required
by the federal law and this act, exceptional children in general state and district-wide
assessment programs, with appropriate accommodations where necessary. As appropriate,
the state board and each board shall:
(1) Develop guidelines for the participation of children with disabilities in alternate
assessments for those children who cannot participate in state and district-wide assessment
programs; and
(2) develop and, beginning not later than July 1, 2000, conduct those alternate
assessments.
(b) The state board shall make available to the public, and report to the public with the
same frequency and in the same detail as it reports on the assessment of nondisabled
children, the following:
(1) The number of children with disabilities participating in regular assessments;
(2) the number of children with disabilities participating in alternate assessments; and
(3) the performance of children with disabilities on regular assessments beginning not
later than July of 1999, and on alternate assessments not later than July 1, 2000, if doing so
would be statistically sound and would not result in the disclosure of performance results
identifiable of individual children.
(c) Data relating to the performance of children with disabilities shall be disaggregated
for assessments conducted after the effective date of this act.
New Sec. 11. (a) (1) An agency shall conduct a full and individual initial evaluation in
accordance with this section before the initial provision of special education and related
services to an exceptional child. Such initial evaluation shall consist of procedures to
determine whether a child is an exceptional child and the educational needs of such child.
(2) An agency proposing to conduct an initial evaluation of a child shall obtain informed
consent from the parent of such child before the evaluation is conducted. Parental consent
for evaluation shall not be construed as consent for placement for receipt of special
education and related services.
(3) If the parents of a child refuse consent for evaluation of the child, the agency may,
but shall not be required to, continue to pursue an evaluation by utilizing the mediation or
due process procedures prescribed in this act.
(b) Each agency shall ensure that a reevaluation of each exceptional child is conducted:
(1) If conditions warrant a reevaluation or if the child's parent or teacher requests a
reevaluation, but at least once every 3 years; and
(2) in accordance with subsections (c), (d) and (e).
(c) An agency shall provide notice to the parents of a child that describes any evaluation
procedures such agency proposes to conduct. In conducting the evaluation, the agency shall:
(1) Use a variety of assessment tools and strategies to gather relevant functional and
developmental information, including information provided by the parent, that may assist
in determining whether the child is an exceptional child and the content of the child's
individualized education program, including information related to enabling the child to be
involved, and progress, in the general curriculum or, for preschool children, to participate
in appropriate activities;
(2) not use any single procedure as the sole criterion for determining whether a child
is an exceptional child or determining an appropriate educational program for the child;
and
(3) use technically sound instruments that may assess the relative contribution of
cognitive and behavioral factors, in addition to physical or developmental factors.
(d) An agency shall ensure that:
(1) Tests and other evaluation materials used to assess a child under this section: (A)
Are selected and administered so as not to be discriminatory on a racial or cultural basis;
and (B) are provided and administered in the child's native language or other mode of
communication, unless it is clearly not feasible to do so; and
(2) any standardized tests that are given to the child: (A) Have been validated for the
specific purpose for which they are used; (B) are administered by trained and knowledgeable
personnel; and (C) are administered in accordance with any instructions provided by the
producer of such tests;
(3) the child is assessed in all areas of suspected disability; and
(4) assessment tools and strategies that provide relevant information that directly assists
persons in determining the educational needs of the child are provided.
(e) Upon completion of administration of tests and other evaluation materials:
(1) The determination of whether the child is an exceptional child shall be made by a
team of qualified professionals and the parent of the child in accordance with this section;
and
(2) a copy of the evaluation report and the documentation of determination of eligibility
shall be given to the parent.
(f) In making a determination of eligibility under this section, a child shall not be
determined to be an exceptional child if the determinant factor for such determination is
lack of instruction in reading or math or limited English proficiency.
(g) As part of an initial evaluation, if appropriate, and as part of any reevaluation under
this section, the IEP team and other qualified professionals, as appropriate, shall:
(1) Review existing evaluation data on the child, including evaluations and information
provided by the parents of the child, current classroom-based assessments and observations,
and teacher and related services providers' observations; and
(2) on the basis of that review, and input from the child's parents, identify what
additional data, if any, are needed to determine: (A) Whether the child has a particular
exceptionality, or in the case of a reevaluation of a child, whether the child continues to
have such exceptionality; (B) the present levels of performance and educational needs of
the child; (C) whether the child needs special education and related services; or in the case
of a reevaluation of a child, whether the child continues to need special education and related
services; and (D) whether any additions or modifications to the special education and related
services are needed to enable the child to meet the measurable annual goals set out in the
IEP of the child and to participate, as appropriate, in the general curriculum.
(h) Each agency shall obtain informed parental consent prior to conducting any
reevaluation of an exceptional child, except that such informed consent need not be obtained
if the agency can demonstrate that it took reasonable measures to obtain such consent and
the child's parent failed to respond.
(i) If the IEP team and other qualified professionals, as appropriate, determine that no
additional data are needed to determine whether the child continues to be an exceptional
child, the agency:
(1) Shall notify the child's parents of: (A) That determination and the reasons for it; and
(B) the rights of such parents to request an assessment to determine whether the child
continues to be an exceptional child; and
(2) shall not be required to conduct such an assessment unless requested by the child's
parents.
(j) An agency shall evaluate a child in accordance with this section before determining
that the child is no longer an exceptional child.
New Sec. 12. (a) (1) Except as specified in provision (2), at the beginning of each school
year, each agency shall have an individualized education program in effect for each
exceptional child.
(2) In the case of a child with a disability aged three through five and for two year-old
children with a disability who will turn age three during the school year, an individualized
family service plan that contains the material described in 20 U.S.C. 1436, and that is
developed in accordance with this section, may serve as the IEP of the child if using that
plan as the IEP is agreed to by the agency and the child's parents.
(b) The IEP for each exceptional child shall include:
(1) A statement of the child's present levels of educational performance, including: (A)
How the child's disability or giftedness affects the child's involvement and progress in the
general curriculum; or (B) for preschool children, as appropriate, how the disability affects
the child's participation in appropriate activities; (2) a statement of measurable annual goals,
including benchmarks or short-term objectives, related to: (A) Meeting the child's needs
that result from the child's disability or giftedness, to enable the child to be involved in and
progress in the general or advanced curriculum; and (B) meeting each of the child's other
educational needs that result from the child's disability or giftedness;
(3) a statement of the special education and related services and supplementary aids
and services to be provided to the child, or on behalf of the child, and a statement of the
program modifications or supports for school personnel that will be provided for the child:
(A) To advance appropriately toward attaining the annual goals; (B) to be involved and
progress in the general curriculum in accordance with provision (1) and to participate in
extracurricular and other nonacademic activities; and (C) to be educated and participate
with other exceptional and nonexceptional children in the activities described in this
paragraph;
(4) an explanation of the extent, if any, to which the child will not participate with
nonexceptional children in the regular class and in the activities described in provision (3);
(5) (A) a statement of any individual modifications in the administration of state or
district-wide assessments of student achievement that are needed in order for the child to
participate in such assessment; and (B) if the IEP team determines that the child will not
participate in a particular state or district-wide assessment of student achievement or part
of such an assessment, a statement of why that assessment is not appropriate for the child
and how the child will be assessed;
(6) the projected date for the beginning of the services and modifications described in
provision (3), and the anticipated frequency, location, and duration of those services and
modifications;
(7) (A) Beginning at age 14, and updated annually, a statement of the transition service
needs of the child under the applicable components of the child's IEP that focuses on the
child's course of study, such as participation in advanced-placement courses or a vocational
education program; (B) beginning at age 16 or younger, if determined appropriate by the
IEP team, a statement of needed transition services for the child, including, when
appropriate, a statement of the interagency responsibilities or any needed linkages; and (C)
beginning at least one year before the child reaches the age of majority under state law, a
statement that the child has been informed of the child's rights, if any, that will transfer to
the child on reaching the age of majority as provided in section 18;
(8) a statement of: (A) How the child's progress toward the annual goals will be
measured; and (B) how the child's parents will be regularly informed, by such means as
periodic report cards, at least as often as parents of nonexceptional children are informed
of their children's progress, of their child's progress toward the annual goals; and the extent
to which that progress is sufficient to enable the child to achieve the goals by the end of
the year.
(c) In developing each child's IEP, the IEP team shall consider:
(1) The strengths of the child and the concerns of the parents for enhancing the
education of their child;
(2) the results of the initial evaluation or most recent evaluation of the child;
(3) in the case of a child whose behavior impedes the child's learning or that of others,
strategies, including positive behavioral interventions and supports to address that behavior;
(4) in the case of a child with limited English proficiency, the language needs of the
child as such needs relate to the child's IEP;
(5) in the case of a child who is blind or visually impaired, provide for instruction in
Braille and the use of Braille unless the IEP team determines, after an evaluation of the
child's reading and writing skills, needs, and appropriate reading and writing media,
including an evaluation of the child's future needs for instruction in Braille or the use of
Braille, that instruction in Braille or the use of Braille is not appropriate for the child;
(6) the communication needs of the child, and in the case of a child who is deaf or hard
of hearing, consider the child's language and communication needs, opportunities for direct
communications with peers and professional personnel in the child's language and
communication mode, academic level, and full range of needs, including opportunities for
direct instruction in the child's language and communication mode; and
(7) whether the child requires assistive technology devices and services.
(d) The regular education teacher of the child, as a member of the IEP team, to the
extent appropriate, shall participate in:
(1) The development of the IEP of the child, including the determination of appropriate
positive behavioral interventions and strategies and the determination of supplementary aids
and services, program modifications, and support for school personnel consistent with this
section; and
(2) the review and revision of the child's IEP under subsection (e).
(e) Each agency shall ensure that the IEP team:
(1) Reviews the child's IEP periodically, but not less than annually to determine whether
the annual goals for the child are being achieved; and
(2) revises the IEP as appropriate to address: (A) Any lack of expected progress toward
the annual goals and in the general curriculum, where appropriate; (B) the results of any
reevaluation conducted under this section; (C) information about the child provided to, or
by, the parents, as described in subsection (g) of section 11, and amendments thereto; (D)
the child's anticipated needs; or (E) other matters.
Sec. 13. K.S.A. 72-967 is hereby amended to read as follows: 72-967. (a) Each board,
in order to comply with the requirements of K.S.A. 72-933 and 72-966this act shall have
the authority to:
(1) Establish and organize approvableProvide appropriate special education and related
services for exceptional children within its schools.
(2) Provide for approvableappropriate special education and related services in the
home, in a hospital or in other facilityfacilities.
(3) Contract with anyanother school district for special education and related services. Before entering into any such contract, the special education services to be provided by such school district, and the contract therefor, shall be approved by the commissioner of education upon authorization by the state board, which approval shall be granted if the special education services provided for in such contract meet standards and criteria set by the state board in accordance with the state plan. Any such contract may provide for the
payment of tuition and other costs by the contracting school district in which the child is enrolled.
(4) Enter into cooperative agreements with one or more other school districts for special
education and related services, if such agreements are approved as provided by this act.
(5) Contract with any accredited private nonprofit corporation or any public or private
institution, within or withoutoutside the state, which has proper special education or related
services for exceptional children. Prior to the time any school district enters into a contract with any private nonprofit corporation or any public or private institution for the education of any exceptional child the curriculum provided by such corporation or institution and the contract shall be approved by the commissioner of education upon authorization by the state board. Whenever an exceptional child is educated by a private nonprofit corporation or a
public or private institution as provided under the provisions of this paragraph, such child
shall be considered a pupil of the school district contracting for such education hereunder
to the same extent as other pupils of such school district for the purpose of determining
entitlements and participation in all state, countyfederal and other financial assistance or
payments to such school district.
(6) ProvideFurnish transportation for exceptional children, whether such children are
residents or nonresidents of such school district, to and fromfor the provision of special
education or related services attended. In lieu of paying for transportation, the board of the
school district in which an exceptional child resides may pay all or part of the cost of room
and board for such exceptional child at the place where the special education or related
services attended are locatedprovided.
(b) Special education and related services which are provided by school districts for
exceptional children shall meet standards and criteria set by the state board in accordance with the state plan and shall be subject to approval by the state board.
(c) Any contract entered into by a board under the provisions of this section shall be
subject to change or termination by the legislature.
Sec. 14. K.S.A. 1998 Supp. 72-968 is hereby amended to read as follows: 72-968. (a)
The boards of any two or more school districts within or outside the state may make and
enter into agreements providing for cooperative operation and administration in providing
special education and related services for exceptional children on a shared-cost basis, subject
to the following:
(1) An agreement shall be effective only after approval by the state board, which
approval shall be granted if the special education services provided for in such agreement
meet standards and criteria set by the state board in accordance with the state plan.
(2) (A) The duration of an agreement shall be perpetual but the agreement may be
partially or completely terminated as hereinafter provided.
(B) Partial termination of an agreement made and entered into by the boards of three
or more school districts may be accomplished only upon petition for withdrawal from the
agreement made by a contracting school district to the other contracting school districts
and approval by the state board of written consent to the petition by such other school
districts or upon order of the state board after appeal to it by a school district from denial
of consent to a petition for withdrawal and hearing thereon conducted by the state board.
The state board shall consider all the testimony and evidence brought forth at the hearing
and issue an order approving or disapproving withdrawal by the school district from the
agreement.
(C) Complete termination of an agreement made and entered into by the boards of two
school districts may be accomplished upon approval by the state board of a joint petition
made to the state board for termination of the agreement by both of the contracting school
districts after adoption of a resolution to that effect by each of the contracting school districts
or upon petition for withdrawal from the agreement made by a contracting school district
to the other contracting school district and approval by the state board of written consent
to the petition by such other school district or upon order of the state board after appeal to
it by a school district from denial of consent to a petition for withdrawal and hearing thereon
conducted by the state board. The state board shall consider all the testimony and evidence
brought forth at the hearing and issue an order approving or disapproving withdrawal by
the school district from the agreement.
(D) Complete termination of an agreement made and entered into by the boards of
three or more school districts may be accomplished only upon approval by the state board
of a joint petition made to the state board for termination of the agreement by not less than 2/3 of the contracting school districts after adoption of a resolution to that effect by each of
the contracting school districts seeking termination of the agreement. The state board shall
consider the petition and approve or disapprove termination of the agreement.
(E) The state board shall take such action in approving or disapproving the complete
or partial termination of an agreement as the state board deems to be in the best interests
of the involved school districts and of the state as a whole in the provision of special
education services for exceptional children. Whenever the state board has disapproved the
complete or partial termination of an agreement, no further action with respect to such
agreement shall be considered or taken by the state board for a period of not less than three
years.
(3) An agreement shall designate the sponsoring school district and shall provide for a
separate fund thereof, to which each contracting district shall pay the moneys due from it
under the agreement. Any school district which is a party to an agreement may be designated
the sponsoring district.
(4) An agreement shall specify the method or methods to be employed for disposing of
property upon partial or complete termination.
(5) Within the limitations provided by law, an agreement may be changed or modified
by mutual consent of the contracting school districts.
(6) An agreement shall be subject to change or termination by the legislature.
(b) The provisions of this section apply to every agreement entered into under authority
of this section after the effective date of this act and to every agreement entered into under
this section prior to the effective date of this act, and extant on the effective date of this
act, regardless of any provisions in such agreement to the contrary.
Sec. 15. K.S.A. 72-970 is hereby amended to read as follows: 72-970. (a) Except as otherwise provided in subsection (b), every state institution shall provide special education and related services for all exceptional children housed and maintained in the state
institution and said special educationsuch services shall meet standards and criteria set by
the state board in accordance with the state plan and shall be subject to approval by the
state board. State institutions may contract with local school districts and other appropriate agencies or individuals for special education or related services. Prior to the time any state
institution enters into a contract with any school district thefor special education or related services, the services to be provided by such school district shall be approved by the state
board.
(b) In providing special education or related services to incarcerated children with disabilities, a correctional institution shall be exempt from the requirements of this act to the extent authorized by the federal law.
Sec. 16. K.S.A. 72-971 is hereby amended to read as follows: 72-971. (a) In order to obtain data necessary for review of the progress or lack thereof made in special education services for exceptional children and to assess future needs for providing special education services on a more comprehensive, expert, economic and efficient basis, it shall be the duty of the department to conduct an annual survey of the school districts showing the total number of exceptional children within the various categories of exceptionality in The state board shall prepare and file such reports as are required by the federal law or this act.
(b) The state crippled children's commissionSchool districts and other state agencies
having census data on exceptional children shall from time to time as requested furnish such
data, as requested, to the departmentstate board.
New Sec. 17. (a) The rights of parents of exceptional children shall include, but not be
limited to, the rights specified in this section.
(b) The parents of exceptional children shall have the right to:
(1) Examine all records relating to such child and to participate in meetings with respect
to the identification, evaluation, and educational placement of the child, and the provision
of a free appropriate public education to such child, and to obtain an independent
educational evaluation of the child;
(2) written prior notice in accordance with section 19, and amendments thereto,
whenever an agency: (A) Proposes to initiate or change; or (B) refuses to initiate or change,
the identification, evaluation, or educational placement of the child or the provision of a
free appropriate public education to the child;
(3) receive the notice required by provision (2) in their native language, unless it clearly
is not feasible to do so;
(4) present complaints with respect to any matter relating to the identification,
evaluation, or educational placement of the child, or the provision of a free appropriate
public education to the child, subject to the requirements that the parent, or the attorney
representing the parent or child, provides notice to the agency that includes: (A) The name
of the child, the address of the residence of the child, and the name of the school the child
is attending; (B) a description of the nature of the problem of the child relating to such
proposed initiation or change, including facts relating to such problem; and (C) a proposed
resolution of the problem to the extent known and available to the parents at the time;
(5) request mediation in accordance with this act;
(6) consent, or refuse to consent, to the evaluation, reevaluation or the initial placement
of their child and to any substantial change in placement of, or a material change in services
for, their child, unless a change in placement of their child is ordered pursuant to the
provisions of section 30, and amendments thereto, or the agency can demonstrate that it
has taken reasonable measures to obtain parental consent to a change in placement or
services, and the child's parent has failed to respond. If the parent fails to respond to the
request for parental consent to a substantial change in placement or a material change in
services, the agency must maintain detailed records of written and verbal contacts with the
parent and the response, if any, received from the parent;
(7) be members of any group that makes decisions on the educational placement of
their child;
(8) demand that their child remain in the child's current educational placement pending
the outcome of a due process hearing, except as otherwise provided by federal law and this
act;
(9) request a due process hearing in regard to any complaint filed in accordance with
provision (4) of this subsection, or as authorized in section 31, and amendments thereto;
(10) appeal to the state board any adverse decision rendered by a hearing officer in a
local due process hearing;
(11) appeal to state or federal court any adverse decision rendered by a review officer
in a state-level due process appeal; and
(12) recover attorney fees, as provided in the federal law, if they are the prevailing
parties in a due process hearing or court action; however, only a court shall have the authority
to award attorney fees, and such fees may be reduced or denied in accordance with federal
law.
(c) The state board shall develop a model form to assist parents in filing a complaint in
accordance with subsection (b)(4).
(d) The state board shall develop, and thereafter amend as necessary, and distribute for
use by agencies, a list of the rights available to the parents of exceptional children under
the federal law and this act. The list shall be made available in various languages and be
written so as to be easily understandable by parents.
(e) A list of the rights available to the parents of exceptional children shall be given to
the parents, at a minimum: (A) Upon initial referral for evaluation and upon reevaluation
of the child; (B) upon each notification of an individualized education program meeting;
and (C) upon registration of a complaint under subsection (b)(4).
New Sec. 18. When a person who has been determined to be a child with a disability
reaches the age of 18, except for such a person who has been determined to be incompetent
under state law:
(a) An agency shall provide to both the person and to the person's parents any notice
required by this act;
(b) all other rights accorded to parents under this act transfer to the person;
(c) the agency shall notify the person and the parents of the transfer of rights; and
(d) all rights accorded to parents under this act transfer to the person if incarcerated in
an adult or juvenile federal, state or local correctional institution.
New Sec. 19. The notice required by subsection (b)(2) of section 17, and amendments
thereto, shall include:
(a) A description of the action proposed or refused by the agency;
(b) an explanation of why the agency proposes or refuses to take the action;
(c) a description of any other options that the agency considered and the reasons those
options were rejected;
(d) a description of each evaluation procedure, test, record, or report the agency used
as a basis for the proposed or refused action;
(e) a description of any other factors that are relevant to the agency's proposal or refusal;
(f) a statement that the parents have protection under the procedural safeguards of this
act and, if the notice is not an initial referral for evaluation, the means by which a copy of
the procedural safeguards can be obtained; and
(g) sources for parents to contact to obtain assistance in understanding the provisions
of the federal law and this act.
Sec. 20. K.S.A. 72-973 is hereby amended to read as follows: 72-973. (a) TheAny due process hearing provided for in K.S.A. 72-972, and amendments thereto,under this act,
shall be held at a time and place reasonably convenient to the lawful custodianparent of
the involved child, shall be a closed hearing unless the lawful custodianparent requests an
open hearing, and shall be conducted in accordance with rules and regulations relating
thereto adopted by the agency. Such rules and regulations shall afford procedural due
process, including the following:
(1) The right of the parties to have counsel or an advisor of their own choice present
and to receive the advice of such counsel or other advisor whom they may select;
(2) the right of the child and the lawful custodianparent of the child to be present at
the hearing;
(3) the right of the child, the lawful custodianparent of the child and their counsel or
advisor to hear or read a full report of the testimony of witnesses responsible for
recommending the proposed action and of any other material witnesses;
(4) the right of the parties and their counsel or advisor to confront and cross-examine
witnesses who appear in person at the hearing, either voluntarily or as a result of the issuance
of a subpoena;
(5) the right of the parties to present witnesses in person or their testimony by affidavit,
including expert medical, psychological or educational testimony;
(6) the right of the child and the lawful custodianparent, on behalf of the child, to
testify and give reasons in opposition to the proposed action;
(7) the right of the parties to prohibit the presentation of any evidence at the hearing
which has not been disclosed to the opposite party at least five days prior to the hearing, including any evaluations completed by that date and any recommendations based on such evaluations;
(8) the right of the parties to have an orderly hearing;
(9) the right of the child to a fair and impartial decision based on substantial evidence;
and
(10) the right of the parties to have a written or, at the option of the parent, an electronic, verbatim record of the hearing made by mechanical or electronic recording or by an official court reporter.
(b) TheEach due process hearing, other than an expedited hearing under section 31 or section 32, and amendments thereto, shall be held not later than 30 days from the date on
which the request therefor is received or, if no request is received, not later than 30 days from the date by which the request should have been made, or on which objection, or revocation of consent, to the proposed action is received by the agency. The child and the lawful custodianparent of the child shall be notified in writing of the time and place of the
hearing at least five days prior thereto. At any reasonable time prior to the hearing, the lawful custodianparent and the counsel or advisor of the involved child shall be given access
to all records, tests, reports or clinical evaluations relating to the proposed action.
(c) (1) Except as otherwise provided in section 32, and amendments thereto, during the pendency of any proceedings conducted under this act, unless the agency and parent otherwise agree, the child shall remain in the then-current educational placement of such child.
(2) If proceedings arise in connection with the initial admission of the child to school, the child shall be placed in the appropriate regular education classroom or program in compliance with K.S.A. 72-1111, and amendments thereto, unless otherwise directed pursuant to section 30, and amendments thereto.
(c)(d) Subject to the provisions of K.S.A. 72-973a, and amendments thereto, the agency
shall appoint a hearing officer for the purpose of conducting the hearing. Members of the
state board, the secretary of social and rehabilitation services, the secretary of corrections, the commissioner of the juvenile justice authority, and members of any board or agency
involved in the education of the child shall not serve as hearing officers. No hearing officer
shall be any person (1) responsible for recommending the proposed action upon which the
hearing is based, (2)any person having a personal or professional interest which would
conflict with objectivity in the hearing, or (3)any person who is an employee of the state
board or any agency involved in the education of the child. A person shall not be considered
an employee of the agency solely because the person is paid by the agency to serve as a
hearing officer. Each agency shall maintain a list of hearing officers. Such list shall include
a statement of the qualifications of each hearing officer. Each hearing officer and each state review officer shall be qualified in accordance with standards and requirements established
by the state board and shall have satisfactorily completed a training program conducted or
approved by the state board. Whenever a hearing officer conducts any hearing, such hearing
officer shall render a decision on the matter, including findings of fact and conclusions, not
later than 10 days after the conclusionclose of the hearing and shall prepare a. The decision shall be written report thereon to the agency providing for the hearingor, at the option of the parent, shall be an electronic decision. Any action of the hearing officer in accordance
with this subsection shall be final, subject to appeal and review in accordance with K.S.A. 72-974, and amendments theretothis act.
Sec. 21. K.S.A. 72-973a is hereby amended to read as follows: 72-973a. Prior to
appointing any hearing officer to conduct a due process hearing provided for in K.S.A. 72- 972, and amendments theretounder this act, the agency shall make its list of hearing officers
available to the lawful custodianparent of the involved child and shall inform the lawful custodianparent of the right to request disqualification of any or all of the hearing officers
on the list and to request the state board to appoint a hearing officer in accordance with
the procedure provided in this subsection. If the lawful custodianparent does not request disqualification of all of the hearing officersgive written notice of disqualification to the agency within five days after the parent receives the list, the agency may appoint from its
list any hearing officer whom the lawful custodianparent has not requested to be
disqualified. If the lawful custodianparent requests disqualification of all of the hearing
officers and requests the appointment of a hearing officer by the state board, the agency
shall immediately notify the state board and shall request the state board to provide a list of the names and qualifications of five prospective hearing officers. The agency and the lawful custodian of the involved child may each remove two names from the list. The agency shall inform the state board of the name or names remaining on the list and the state board shall appoint a hearing officer therefrom.
Sec. 22. K.S.A. 1998 Supp. 72-974 is hereby amended to read as follows: 72-974. (a)
Written notice of the result of any hearing provided for under K.S.A. 72-972, and amendments thereto,this act shall be given to the agency providing for the hearing and
shall be sent by restrictedcertified mail to the affected child or the lawful custodianparent,
counsel or advisor of the child within 24 hours after the result is determined. Such decision,
after deletion of any personally identifiable information contained therein, shall also be
transmitted to the state board which shall make the decision available to the state advisory
council for special education and to the public upon request.
(b) (1) Any party to a due process hearing provided for under K.S.A. 72-972, and amendments thereto,this act may appeal the decision to the state board by filing a written
notice of appeal with the commissioner of education not later than 30 calendar days after receivingthe date of the postmark on the written notice specified in subsection (a). Any such hearing and decision therein shall be reviewed by a reviewingA review officer
appointed by the state board,shall conduct an impartial review of the decision. The review officer shall render a decision not later than 20 calendar days after the notice of appeal is
filed. The reviewingreview officer shall: (A) Examine the record of the hearing; (B)
determine whether the procedures at the hearing were in accordance with the requirements
of due process; (C) afford the parties an opportunity for oral or written argument, or both,
at the discretion of the reviewingreview officer; (D) seek additional evidence if necessary;
(E) render aan independent decision on any such appeal not later than five days after
completion of the review; and (F) send written notice of the decision on any such appeal
to the parties and to the state board.
(2) For the purpose of reviewing any hearing and decision under provision (1), the state
board may appoint one or more reviewingreview officers. Any such appointment may apply
to a review of a particular hearing or to reviewing a set or class of hearings as specified by
the state board in making the appointment. Whenever a reviewing officer appointed under authority of this subsection conducts any review, the reviewing officer shall decide the matter by affirming, reversing or modifying the decision from which the appeal was taken and shall prepare a written report thereon to the state board.
(c) Any action of a reviewingreview officer pursuant to this section is subject to review
in accordance with the act for judicial review and civil enforcement of agency actions or to an action in federal court as allowed by the federal law.
(d) Any action in federal court shall be filed within 30 days after service of the review officer's decision.
Sec. 23. K.S.A. 72-975 is hereby amended to read as follows: 72-975. (a) Any person
conducting a hearing or review under article 9 of chapter 72 of Kansas Statutes Annotated this act may administer oaths for the purpose of taking testimony therein.
(b) Any person conducting a hearing or review under article 9 of chapter 72 of Kansas Statutes Annotatedthis act or any party to any such hearing or review may request the clerk
of the district court to issue subpoenas for the attendance and testimony of witnesses and
the production of all relevant records, tests, reports and evaluations in the same manner
provided for the issuance of subpoenas in civil actions pursuant to K.S.A. 60-245, and amendments thereto.
(c) Any person conducting a hearing or review under article 9 of chapter 72 of Kansas Statutes Annotatedthis act, at the request of either party, may grant specific extensions of
time beyond the limitations specified in K.S.A. 72-973 and 72-974, and amendments thereto this act.
(d) Any person conducting a hearing under this act shall consider any request for discovery in accordance with the provisions of K.S.A. 77-522, and amendments thereto, except that depositions of witnesses who will be available for the hearing shall not be allowed.
(d)(e) Every hearing and review under article 9 of chapter 72 of Kansas Statutes Annotatedthis act shall be provided for at no cost to the child or the lawful custodianparent
of the child. The costs of any hearing provided for by a board shall be paid by the school
district.
(e)(f) Any reviewingreview officer conducting a review under subsection (b) of K.S.A. 72-974, and amendments thereto,this act may hold a hearing to receive additional evidence.
Every such hearing shall be conducted in accordance with requirements which are
consonant with the requirements of subsection (a) of K.S.A. 72-973, and amendments theretothis act.
(f) No action described in subsection (a) of K.S.A. 72-972, and amendments thereto, shall be taken during the pendency of any proceedings conducted pursuant to the provisions of K.S.A. 72-972 to 72-975, inclusive, and amendments thereto, except that the proposed action may be taken before all such proceedings have been completed if the lawful custodian of the involved child gives written consent thereto.
Sec. 24. K.S.A. 72-976 is hereby amended to read as follows: 72-976. A(a) Each school
district shall not be required, to keep an exceptional child in regular school programs or to provide such exceptional child with special education services for exceptional children when it is determined pursuant to the provisions of K.S.A. 72-972 to 72-975, inclusive, and amendments thereto, that the education of such child cannot be satisfactorily achieved thereby and that such child requires housing, maintenance and special education services provided at a state institutionthe maximum extent appropriate, to educate children with disabilities with children who are not disabled, and to provide special classes, separate schooling or for the removal of children with disabilities from the regular education environment only when the nature or severity of the disability of the child is such that education in regular classes with supplementary aids and services cannot be achieved satisfactorily.
(b) Nothing in this section shall be construed to authorize the state board or any board
to function as an admitting agency to the state institutions or to limit or supersede or in any
manner affect the requirements of each board to comply with the provisions of K.S.A. 72- 933 and 72-966, and amendments thereto, to provide special education services for each
exceptional child in the school district unless and until such child meets the criteria for
admission to a state institution and is so admitted by the state institution. Each state
institution shall publish annually the criteria for admission to such state institution and shall
furnish such criteria to each board upon request therefor.
Sec. 25. K.S.A. 72-977 is hereby amended to read as follows: 72-977. (a) Except as
otherwise provided in this section, when a school district or a state institution provides special education services for exceptional children as required by this act, and a determination has been made as provided in K.S.A. 72-972 to 72-975, inclusive, and amendments thereto, that a child is an exceptional child and special education services are necessary for such child, it shall be the duty of the lawful custodianparent of sucheach
exceptional child to require such child to enroll for and attend school to receive the special
education and related services which are indicated by such determinationon the child's IEP or to provide for such services privately.
(b) The provisions of subsection (a) do not apply to gifted children or to lawful custodiansparents of gifted children.
Sec. 26. K.S.A. 1998 Supp. 72-978 is hereby amended to read as follows: 72-978. (a)
(1) In each school year, in accordance with appropriations for special education and related
services provided under this act, each school district which has provided special education and related services in compliance with the requirements of the state plan and the provisions
of this act shall be entitled to receive:
(A) Reimbursement for actual travel allowances paid to special teachers at not to exceed
the rate specified under K.S.A. 75-3203, and amendments thereto, for each mile actually
traveled during the school year in connection with duties in providing special education or related services for exceptional children; such reimbursement shall be computed by the
state board by ascertaining the actual travel allowances paid to special teachers by the school
district for the school year and shall be in an amount equal to 80% of such actual travel
allowances;
(B) reimbursement in an amount equal to 80% of the actual travel expenses incurred
for providing transportation for exceptional children to special education or related services;
such reimbursement shall not be paid if such child has been counted in determining the
transportation weighting of the district under the provisions of the school district finance
and quality performance act;
(C) reimbursement in an amount equal to 80% of the actual expenses incurred for the
maintenance of an exceptional child at some place other than the residence of such child
for the purpose of providing special education or related services; such reimbursement shall
not exceed $600 per exceptional child per school year; and
(D) after subtracting the amounts of reimbursement under (A), (B) and (C) from the
total amount appropriated for special education and related services under this act, an
amount which bears the same proportion to the remaining amount appropriated as the
number of full-time equivalent special teachers who are qualified to provide special education or related services to exceptional children and are employed by the school district
for approved special education or related services bears to the total number of such qualified
full-time equivalent special teachers employed by all school districts for approved special
education or related services.
(2) Each special teacher who is a paraprofessionalqualified to assist in the provision of special education or related services to exceptional children shall be counted as 2/5 full-time
equivalent special teacher who is qualified to provide special education or related services to exceptional children.
(b) (1) No special teacher in excess of the number of special teachers necessary to comply with the ratio of special teacher to exceptional children prescribed by the state board for the school district shall be counted in making computations under this section.
(2) No time spent by a special teacher in connection with duties performed under a
contract entered into by the Atchison juvenile correctional facility, the Beloit juvenile
correctional facility, the Larned juvenile correctional facility, or the Topeka juvenile
correctional facility and a school district for the provision of special education services by
such state institution shall be counted in making computations under this section.
Sec. 27. K.S.A. 72-979 is hereby amended to read as follows: 72-979. (a) Payments
under this act shall be made in athe manner to beand at such times during each school year as are determined by the state board. In the eventIf any district is paid more than it
is entitled to receive under any distribution made under this act, the state board shall notify
the district of the amount of such overpayment, and such district shall remit the same to
the state board. The state board shall remit any moneys so received to the state treasurer,
and the state treasurer shall deposit the same in the state treasury to the credit of the general
fund. If any such district fails so to remit, the state board shall deduct the excess amounts
so paid from future payments becoming due to such district. In the eventIf any district is
paid less than the amount to which it is entitled under any distribution made under this act,
the state board shall pay the additional amount due at any time within the school year in
which the underpayment was made or within sixty (60)60 days after the end of such school
year.
(b) The state board shall prescribe all forms necessary for reporting under this act. Funds shall be distributed to the respective boards as soon as the state board deems practicable.
(c) Every board shall make such periodic and special reports of statistical and financial
information to the state board as it may request in order to carry out its responsibilities under this act.
Sec. 28. K.S.A. 72-981 is hereby amended to read as follows: 72-981. The department, upon request, shall from time to time as requested: (1) Give technical advice and assistance
to any boardagency in connection with the establishment and maintenance of programs of screening, diagnosis and certification ofspecial education and related services for exceptional
children; (2) make recommendations to any boardagency concerning appropriate special
education or related services forto be provided to exceptional children; and (3) consider
and give advice to any boardagency concerning problems encountered by such boardagency
in complying with the requirements of K.S.A. 72-933 and 72-966this act.
Sec. 29. K.S.A. 1998 Supp. 72-983 is hereby amended to read as follows: 72-983. (a)
In each school year, commencing with the 1994-95 school year, to the extent that
appropriations are available, each school district which has provided special education or related services for an exceptional child who uniquely or so severely differs from other exceptional children in physical, mental, social, emotional or educational characteristics that the costs attributable to the provision of special education services for the child arewhose IEP provides for services which cost in excess of $25,000 for the school year is eligible to
receive a grant of state moneys in an amount equal to 75% of that portion of the costs,
incurred by the district in the provision of special education or related services for the child,
that is in excess of $25,000.
(b) In order to be eligible for a grant of state moneys provided for by subsection (a), a
school district shall submit to the state board of education an application for a grant and, a
description of the special education or related services provided, and the name or names of the child or children for whom provided. The application and description shall be prepared
in such form and manner as the state board shall require and shall be submitted at a time
to be determined and specified by the state board. Approval by the state board of
applications for grants of state moneys is prerequisite to the award of grants.
(c) Each school district which is awarded a grant under this section shall make such
periodic and special reports of statistical and financial information to the state board as it
may request.
(d) All moneys received by a school district under authority of this section shall be
deposited in the special education fund of the school district. Amounts received under this
section and deposited in the special education fund shall be used exclusively to reimburse
the school district, in part, for the excessive amount expended in providing special education or related services for uniquely or severely differentthe exceptional child or children whose name or names were provided under subsection (b).
(e) The state board of education shall:
(1) Prescribe and adopt criteria for identification of uniquely or severely different exceptional children and for determination of excessive costs attributable to the provision
of special education and related services for such childrenwhich an application for a grant of state moneys may be made under this section;
(2) approve applications of school districts for grants;
(3) determine the amount of grants and be responsible for payment of such grants to
school districts; and
(4) prescribe all forms necessary for reporting under this section.
(f) If the amount of appropriations for the payment of grants under this section is
insufficient to pay in full the amount each school district is determined to be eligible to
receive for the school year, the state board shall prorate the amount appropriated among
all school districts which are eligible to receive grants of state moneys in proportion to the
amount each school district is determined to be eligible to receive.
New Sec. 30. (a) School personnel may order a change in the placement of a child with
a disability:
(1) To an appropriate interim alternative educational setting or other setting, or the
short-term suspension of the child; or
(2) to an appropriate interim alternative educational setting for not more than 45
calendar days if: (A) The child carries a weapon to school or to a school function under the
jurisdiction of the agency; or (B) the child knowingly possesses or uses illegal drugs or sells
or solicits the sale of a controlled substance while at school or a school function under the
jurisdiction of the agency.
(b) The alternative educational setting described in subsection (a)(2) shall be
determined by the IEP team.
(c) Either before, or not later than 10 days after, taking a disciplinary action as described
in subsection (a):
(1) If the agency did not conduct a functional behavioral assessment and implement a
behavioral intervention plan for such child before the behavior that resulted in the
disciplinary action, the agency shall convene an IEP meeting to develop an intervention
plan to address that behavior; or
(2) if the child already has a behavioral intervention plan, the IEP team shall review the
plan and modify it, as necessary, to address the behavior.
(d) A hearing officer who meets the qualifications specified in this act may order a
change in the placement of a child with a disability to an appropriate interim alternative
educational setting for not more than 45 calendar days if the hearing officer:
(1) Determines that the agency has demonstrated, by substantial evidence, that
maintaining the current placement of such child is substantially likely to result in injury to
the child or to others;
(2) considers the appropriateness of the child's current placement;
(3) considers whether the agency has made reasonable efforts to minimize the risk of
harm in the child's current placement, including the use of supplementary aids and services;
and
(4) determines that the interim alternative educational setting meets the requirements
of subsection (e).
(e) Any interim alternative educational setting in which a child is placed under this
section shall:
(1) Be selected so as to enable the child to continue to participate in the general
curriculum, although in another setting, and to continue to receive those services and
modifications, including those described in the child's current IEP, that will enable the child
to meet the goals set out in the IEP; and
(2) include services and modifications designed to address the behavior so that it does
not recur.
(f) If a disciplinary action is contemplated as described in subsection (a) for a behavior
of a child with a disability, or if a disciplinary action involving a change of placement for
more than 10 school days is contemplated for a child with a disability who has engaged in
other behavior that violated any rule or code of conduct of the agency that applies to all
children:
(1) Not later than the date on which the decision to take that action is made, the parents
shall be notified of that decision and of all procedural safeguards afforded under section 31;
and
(2) immediately, if possible, but in no case later than 10 school days after the date on
which the decision to take that action is made, a review, as specified in subsection (g), shall
be conducted of the relationship between the child's disability and the behavior subject to
the disciplinary action.
(g) Any review described in subsection (f)(2) shall be conducted by the child's IEP team
and other qualified personnel. In carrying out such a review, the IEP team may determine
that the behavior of the child was not a manifestation of such child's disability only if the
IEP team:
(1) First considers, in terms of the behavior subject to disciplinary action, all relevant
information, including: (A) evaluation and diagnostic results, including such results or other
relevant information supplied by the parents of the child; (B) observations of the child; and
(C) the child's IEP and placement; and
(2) then determines that: (A) In relationship to the behavior subject to disciplinary
action, the child's IEP and placement were appropriate and the special education services,
supplementary aids and services, and behavior intervention strategies were provided
consistent with the child's IEP and placement; (B) the child's disability did not impair the
ability of the child to understand the impact and consequences of the behavior subject to
disciplinary action; and (C) the child's disability did not impair the ability of the child to
control the behavior subject to disciplinary action.
(h) (1) If the result of the review under subsection (g) is a determination that the
behavior of the child was not a manifestation of the child's disability, the relevant disciplinary
procedures applicable to children without disabilities may be applied to the child in the
same manner in which they would be applied to children without disabilities, except that
an appropriate public education must continue to be provided to the child during the period
of disciplinary action.
(2) If the agency initiates disciplinary procedure applicable to all children, the agency
shall ensure that the special education and disciplinary records of the child are transmitted
for consideration by the person or persons making the final determination regarding the
disciplinary action.
(i) For purposes of this section, the following definitions apply:
(1) ``Controlled substance'' means a drug or other substance identified under schedules
I, II, III, IV, or V in 21 U.S.C. 812(c);
(2) ``illegal drug'' means a controlled substance but does not include such a substance
that is legally possessed or used under the supervision of a licensed health-care professional
or that is legally possessed or used under any other authority under any federal or state law;
(3) ``substantial evidence'' means beyond a preponderance of the evidence;
(4) ``weapon'' means a weapon, device, instrument, material, or substance, animate or
inanimate, that is used for, or is readily capable of, causing death or serious bodily injury,
except that such term does not include a pocket knife with a blade of less than 21/2 inches
in length.
New Sec. 31. (a) (1) If a child's parent disagrees with a determination under section
30, and amendments thereto, that the child's behavior was not a manifestation of the child's
disability or with any decision regarding placement under that section, the parent may
request a due process hearing.
(2) The agency shall arrange for an expedited hearing in any case described in this
section when requested by a parent.
(b) (1) In reviewing a decision with respect to the manifestation determination, the
hearing officer shall determine whether the agency has demonstrated that the child's
behavior was not a manifestation of such child's disability consistent with the requirements
of subsection (g) of section 30, and amendments thereto.
(2) In reviewing a decision under subsection (a)(2) of section 30, and amendments
thereto, to place the child in an interim alternative educational setting, the hearing officer
shall apply the standards set out in subsection (d) of section 30, and amendments thereto.
(c) Any hearing provided for in section 30 or in this section shall be conducted:
(1) By a due process hearing officer appointed by the state board; and
(2) in accordance with rules and regulations adopted by the state board.
New Sec. 32. (a) If a parent requests a hearing under section 31, and amendments
thereto, the child shall remain in the interim alternative educational setting pending the
decision of the hearing officer in regard to the manifestation determination or the interim
placement decision, or until the expiration of the 45-day time period described in subsection
(a)(2) of section 30, and amendments thereto, whichever occurs first, unless the parent and
the agency agree otherwise.
(b) Except as provided in subsection (c), if a child is placed in an interim alternative
educational setting pursuant to section 30, and amendments thereto, and school personnel
propose to change the child's placement after expiration of the interim alternative
placement, during the pendency of any proceeding to challenge the proposed change in
placement, the agency shall return the child to the child's placement prior to the interim
alternative educational setting.
(c) (1) If the agency maintains that it is dangerous for the child to be returned to the
child's placement prior to removal to the interim alternative education setting during the
pendency of due process proceedings, the agency may request an expedited hearing in
regard to the proposed change in placement.
(2) In determining whether the child may be placed in the alternative education setting
or in another appropriate placement ordered by the hearing officer, the hearing officer shall
apply the standards set out in subsection (d) of section 30, and amendments thereto.
New Sec. 33. (a) A child who has not been determined to be eligible for special
education and related services under this act and who has engaged in behavior that violated
any rule or code of conduct of the school district, including any behavior described in section
30 and amendments thereto, may assert any of the protections provided for in this act if the
school district had knowledge, as determined in accordance with this section, that the child
was a child with a disability before the behavior that precipitated the disciplinary action
occurred.
(b) A school district shall be deemed to have knowledge that a child is a child with a
disability if:
(1) The parent of the child has expressed concern in writing, unless the parent is
illiterate or has a disability that prevents compliance with the requirements contained in
this subsection, to personnel of the appropriate educational agency that the child is in need
of special education and related services;
(2) the behavior or performance of the child demonstrates the need for such services;
(3) the parent of the child previously has requested an evaluation of the child; or
(4) the teacher of the child, or other personnel of the school district, previously has
expressed concern about the behavior or performance of the child to the director of special
education of such school district or to other personnel of the district.
(c) (1) Subject to provision (2) of this subsection, if a school district does not have
knowledge that a child is a child with a disability prior to taking disciplinary action against
the child, the child may be subjected to the same disciplinary action as is applied to children
without disabilities who engage in comparable behaviors.
(2) If a request is made for an evaluation of a child during the time period in which the
child is subjected to disciplinary action described by this act, an evaluation shall be
conducted in an expedited manner. If the child is determined to be a child with a disability,
taking into consideration information from the evaluation conducted by the school district
and information provided by the parents, the school district shall provide special education
and related services in accordance with the provisions of this act, except that, pending the
results of the evaluation, the child shall remain in the educational placement determined
by school authorities, which may be long-term suspension or expulsion from school.
New Sec. 34. (a) Nothing in this act shall be construed to prohibit an agency from
reporting a crime committed by a child with a disability to appropriate authorities or to
prevent state or local law enforcement and judicial authorities from exercising their
responsibilities with regard to the application of federal, state, or local law to crimes
committed by a child with a disability.
(b) An agency reporting a crime committed by a child with a disability shall ensure that
copies of the special education and disciplinary records of the child are transmitted for
consideration by the appropriate authorities to whom it reports the crime.
New Sec. 35. (a) The state board shall establish and implement procedures to allow
agencies and parents to resolve disputes through a mediation process which, at a minimum,
shall be available whenever a due process hearing is requested under this act.
(b) The procedures adopted shall ensure that the mediation process is:
(1) Voluntary on the part of the parties;
(2) not used to deny or delay a parent's right to a due process hearing, or to deny any
other rights afforded under this act; and
(3) conducted by a qualified and impartial mediator who is trained in effective mediation
techniques.
(c) The state board shall maintain a list of individuals who are qualified mediators and
knowledgeable in laws and regulations relating to the provision of special education and
related services and shall establish procedures for the appointment of a mediator to help
resolve disputes between the parties.
(d) The state board shall bear the cost of the mediation process described in this section.
(e) Each session in the mediation process shall be scheduled in a timely manner and
shall be held in a location that is convenient to the parties to the dispute.
(f) An agreement reached by the parties to the dispute in the mediation process shall
be set forth in a written mediation agreement.
(g) Discussions that occur during the mediation process shall be confidential and may
not be used as evidence in any subsequent due process hearings or civil proceedings and
the parties to the mediation process may be required to sign a confidentiality pledge prior
to the commencement of such process.
Sec. 36. K.S.A. 38-1513a is hereby amended to read as follows: 38-1513a. (a) When
the court has granted legal custody of a child in a hearing under the Kansas code for care
of children to an agency, association or individual, the custodian or an agent designated by
the custodian shall have authority to make educational decisions for the child if the parents
of the child are unknown or unavailable. When the custodian of the child is the secretary, and the parents of the child are unknown or unavailable, and the child appears to be an
exceptional child who requires special education services, the secretary shall immediately
notify the state board of education, or a designee of the state board, and the school district
in which the child is residing that the child is in need of an education advocate. As soon as
possible after notification by the secretary of the need by a child of an education advocate,
the state board of education, or its designee, shall appoint an education advocate for the
child.
(b) As used in this section, the terms exceptional child, special education services, and
education advocate have the meanings respectively ascribed thereto in the special education
for exceptional children act.
Sec. 37. K.S.A. 1998 Supp. 72-53,109 is hereby amended to read as follows: 72-53,109.
(a) Subject to the provisions of subsection (b), no school district shall be required to provide
any person, who is 16 years of age or older, has been prosecuted as an adult, convicted of
a crime, and incarcerated in a county jail or state correctional institution, with an opportunity
to attend school at a school facility operated by the school district for the period of time the
person is incarcerated, nor shall any school district be required to provide any such person
with educational services at the county jail or state correctional institution in which the
person is incarcerated.
(b) The provisions of subsection (a) do not apply to any person who is under 21 years of age and who, immediately prior to conviction and incarceration, was determined to be an exceptional child, except for an exceptional child who is determined to be a gifted child, a child with a disability for whom an individualized education program had been developed and effectuated under the provisions of the special education for exceptional children act.
Sec. 38. K.S.A. 1998 Supp. 72-8902 is hereby amended to read as follows: 72-8902. (a) (1) Except as authorized in provision (2), a suspension may be for a short term not exceeding
five school days, or for an extended term not exceeding 90 school days. An expulsion may
be for a term not exceeding 186 school days. If a suspension or expulsion is for a term
exceeding the number of school days remaining in the school year, any remaining part of
the term of the suspension or expulsion may be applied to the succeeding school year.
(2) A short-term suspension may be imposed for not more than 10 school days if a pupil: (A) Carries a weapon to school, onto school property, or to a school supervised activity; (B) knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school, on school property or at a school supervised activity; or (C) has engaged in behavior which resulted in, or was substantially likely to have resulted in, injury to the pupil or to others.
(3) For the purposes of this provision, the following definitions apply: (A) ``Controlled substance'' means a drug or other substance identified under schedules I, II, III, IV, or V in 21 U.S.C. 812(c); (B) ``illegal drug'' means a controlled substance but does not include such a substance that is legally possessed or used under the supervision of a licensed health- care professional or that is legally possessed or used under any other authority under any federal or state law; and (C) ``weapon'' means a weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that such term does not include a pocket knife with a blade of less than 21/2 inches in length.
(b) (1) Except as authorized in provision (2), no suspension for a short term shall be
imposed upon a pupil without giving the pupil notice of the charges and affording the pupil
an opportunity for a hearing thereon. The notice may be oral or written and the hearing
may be held immediately after the notice is given. The hearing may be conducted informally
but shall include the following procedural due process requirements: (A) The right of the
pupil to be present at the hearing; (B) the right of the pupil to be informed of the charges;
(C) the right of the pupil to be informed of the basis for the accusation; and (D) the right
of the pupil to make statements in defense or mitigation of the charges or accusations.
Refusal of a pupil to be present at the hearing will constitute a waiver of the pupil's
opportunity for a hearing.
(2) A short-term suspension may be imposed upon a pupil forthwith, and without
affording the pupil or the pupil's parent or guardian a hearing if the presence of the pupil
endangers other persons or property or substantially disrupts, impedes or interferes with
the operation of the school.
(c) A written notice of any short-term suspension and the reason therefor shall be given
to the pupil involved and to the pupil's parent or guardian within 24 hours after the
suspension has been imposed and, in the event the pupil has not been afforded a hearing
prior to any short-term suspension, an opportunity for an informal hearing shall be afforded
the pupil as soon thereafter as practicable but in no event later than 72 hours after such
short-term suspension has been imposed. Any notice of the imposition of a short-term
suspension that provides an opportunity for an informal hearing after such suspension has
been imposed shall state that failure of the pupil and the pupil's parent or guardian to attend
the hearing will result in a waiver of the pupil's opportunity for the hearing.
(c)(d) No suspension for an extended term and no expulsion shall be imposed upon a
pupil until an opportunity for a formal hearing thereon is afforded the pupil. A written
notice of any proposal to suspend for an extended term or to expel from school, and the
charges upon which the proposal is based shall be given to the pupil proposed to be
suspended or expelled from school, and to the pupil's parent or guardian. Any notice of a
proposal to suspend for an extended term or to expel from school shall state the time, date
and place that the pupil will be afforded an opportunity for a formal hearing, and that failure
of the pupil and the pupil's parent or guardian to attend the hearing will result in a waiver
of the pupil's opportunity for the hearing. The hearing shall be held not later than 10 days
after the date of the notice. The notice shall be accompanied by a copy of this act and the
regulations of the board of education adopted under K.S.A. 72-8903, and amendments
thereto.
(d)(e) Whenever any written notice is required under this act to be given to a pupil or
to a pupil's parent or guardian, it shall be sufficient if the notice is mailed to the address on
file in the school records of the pupil. In lieu of mailing the written notice, the notice may
be personally delivered.
(e)(f) A formal hearing on a suspension or expulsion may be conducted by any
certificated employee or committee of certificated employees authorized by the board of
education to conduct the hearing.
Sec. 39. K.S.A. 72-5392 is hereby amended to read as follows: 72-5392. As used in this
act:
(a) ``School district'' means any public school district organized under the laws of this
state.
(b) ``Exceptional children'' and ``Auxiliary schoolspecial education services'' means (1) speech and hearing diagnostic services; (2) diagnostic psychological services; (3) therapeutic psychological and speech and hearing services; and (4) programs and services for exceptional childrenhave the meanings respectively ascribed thereto in K.S.A. 72-962, and amendments thereto.
(c) ``Private, nonprofit elementary or secondary school'' means an organization which
regularly offers education at the elementary or secondary level, which is exempt from federal
income taxation under section 501 of the federal internal revenue code of 1954, as amended,
which conforms to the civil rights act of 1964, and attendance at which satisfies any
compulsory school attendance laws of this state.
Sec. 40. K.S.A. 72-5393 is hereby amended to read as follows: 72-5393. AnyEvery
school district which provides auxiliary school services to pupils attending its schools shall
provide on an equal basis the same auxiliary schoolspecial education services to every pupil, whose parent or guardian makes a request therefor, residingfor exceptional children who reside in the school district and attendingattend a private, nonprofit elementary or secondary
school, whether such school is located within or outside the school district, upon request of a parent or guardian of any such child for the provision of such services. No school district
shall be required to provide such services outside the school district. Any such school district
may provide auxiliaryspecial education services to all pupils attendingfor exceptional children who attend a private, nonprofit elementary or secondary school located within the
school district, whether or not all such pupilschildren reside in the school district. Speech and hearing diagnostic services and diagnostic psychologicalSpecial education services, if provided in the public schools of the school district, shall bewhich are provided in any under this section for exceptional children who attend a private, nonprofit elementary or
secondary school which is located in the school district. Therapeutic psychological and speech and hearing services and programs and services for exceptional children, which cannotmay be practically provided in anythe private, nonprofit elementary or secondary
school which is located in the school district, shall be providedor in the public schools of
the school district, in a public center, or in mobile units located off the private, nonprofit elementary or secondary school premises as determined by the school district. The site for the provision of special education services under this section for an exceptional child shall be determined by the school district in consultation with the parent or guardian of the child and with officials of the private, nonprofit elementary or secondary school. Special education services provided under this section for exceptional children who attend a private, nonprofit elementary or secondary school are subject to the following requirements: (a) If the services are provided for in the private, nonprofit elementary or secondary school, amounts expended for the provision of such services shall not be required to exceed the average cost to the school district for the provision of the same services in the public schools of the school district for children within the same category of exceptionality; (b) if the services are provided for in the public schools of the school district, the services shall be provided on an equal basis with the provision of such services for exceptional children attending the public schools; and, (c) if sothe services are provided in the public schools of the school district or in a public center, transportation to and from such public school or public center shall be provided by
the school district.
Sec. 41. K.S.A. 72-5394 is hereby amended to read as follows: 72-5394. No auxiliary schoolspecial education services shall be provided in connection with religious courses,
devotional exercises, religious training, or any other religious activity.'';
By renumbering sections 1 through 11 as sections 42 through 52, respectively;
On page 12, in line 38, by striking ``section'' and inserting ``subsection''; in line 42, by
striking ``section'' and inserting ``subsection'';
On page 13, in line 2, by striking ``section'' and inserting ``subsection'';
On page 17, in line 26, after the first ``K.S.A.'', by inserting ``38-1513a, 72-933, 72-961,
72-963, 72-963a, 72-963b, 72-963c, 72-964, 72-965, 72-966, 72-967, 72-969, 72-970, 72-
971, 72-972, 72-973, 72-973a, 72-975, 72-976, 72-977, 72-979, 72-980, 72-981,''; also in line
26, before ``72-5386'', by striking ``and'' and inserting a comma; also in line 26, after ``72-
5386'', by inserting ``, 72-5392, 72-5393 and 72-5394''; in line 27, before ``72-'', by inserting
``72-962, 72-968, 72-974, 72-978, 72-983, 72-53,109 and 72-8902,'';
In the title, in line 12, after the semicolon, by inserting ``provision of special education
and related services for exceptional children;''; in line 15, after the first ``K.S.A'', by inserting
``38-1513a, 72-933, 72-961, 72-963, 72-963a, 72-963c, 72-964, 72-965, 72-966, 72-967, 72-
970, 72-971, 72-973, 72-973a, 72-975, 72-976, 72-977, 72-979, 72-981,''; also in line 15, after
``72-5213'', by striking ``and'' and inserting a comma; also in line 15, after ``72-5386'', by
inserting ``, 72-5392, 72-5393 and 72-5394''; in line 16, before ``72-89b02'', by inserting ``72-
962, 72-968, 72-974, 72-978, 72-983, 72-53,109, 72-8902,''; in line 18, by striking ``and'' and
inserting a comma; also in line 18, before the period, by inserting ``, 72-933, 72-963b, 72-
969, 72-972 and 72-980'';
And your committee on conference recommends the adoption of this report.
Barbara Lawrence
Dwayne Umbarger
Christine Downey
Ralph M. Tanner
Cindy Empson
Henry M. Helgerson, Jr.
On motion of Rep. Tanner to adopt the conference committee report on HB 2191, Rep.
Howell offered a substitute motion to not adopt the conference committee report and asked
that a new conference committee be appointed.
Roll call was demanded.
On roll call, the vote was: Yeas 55; Nays 66; Present but not voting: 0; Absent or not
voting: 4.
EXPLANATIONS OF VOTE
Mr. Speaker: Public schools are required to provide special education services to all
special education students who live in their district and taxpayers have the right to expect
that adequate services will be provided in the most economical and pragmatic manner.
Decisions about how services are to be provided remains the prerogative of the school
district. This bill does not entitle private school students in Kansas to more services or more
rights than public school students. Nor does this bill require that more public funds be spent
in the provision of special education services to private school students than is spent on
students with similar special education needs in public school. With that understanding, I
vote yes on HB 2191.--Marti Crow. Sue Storm, Doug Spangler, L. Candy Ruff,
Douglas Johnston, Geraldine Flaharty, Melany Barnes, Dixie Toelkes, Jim
Garner, Ruby Gilbert
Mr. Speaker: The use of the phrase ``in consultation with'' in the text of Sec. 40 of HB 2191 as amended in conference to amend K.S.A. 72-5393 is intended by the drafters to
ensure all parties a voice in the decision making process. The law, however, remains silent
on the exact time and place of the decision of the site of delivery of determined services.
This allows a decision to be made based upon the ongoing consultation of all interested
parties. By remaining silent the site of delivery of services can be determined during or after
any formal consultation. I vote YES on HB 2191.--Bob Bethell
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on Senate
amendments to HB 2276, submits the following report:
The House accedes to all Senate amendments to the bill, and your committee on
conference further agrees to amend the bill, as printed with Senate Committee of the Whole
amendments, as follows:
By redesignating sections 1 through 80 as new sections;
On page 25, in line 32, by striking ``and 32'';
On page 46 preceding line 33, by inserting the following sections:
``New Sec. 81. (a) Any instrument filed in accordance with the Kansas revised limited
liability company act, and amendments thereto, may be filed by telefacsimile
communication. If such telefacsimile communication is accompanied with the appropriate
fees, and meets the statutory requirements, it shall be effective upon its filing date. The
secretary of state shall prescribe a telefacsimile communication fee in addition to any filing
fees to cover the cost of the services. The fee must be paid prior to acceptance of a
telefacsimile communication under this section. The telefacsimile communication fee shall
be deposited into the information and copy service fee fund.
(b) As used in this section, telefacsimile communication means the use of electronic
equipment to send or transfer a document.
Sec. 82. K.S.A. 1998 Supp. 17-2708 is hereby amended to read as follows: 17-2708.
Except as otherwise provided, the Kansas general corporation code contained in K.S.A. 17-
6001 et seq., and amendments thereto, shall apply to a professional corporation organized
pursuant to this chapter. Any provisions of the professional corporation law of Kansas shall
take precedence over any provision of the Kansas general corporation code which conflicts
with it. The provisions of the professional corporation law of Kansas shall take precedence
over any law which prohibits a corporation from rendering any type of professional service.
Any person authorized to form a professional corporation under K.S.A. 17-2701 et seq. and
amendments thereto also may incorporate under the Kansas general corporation code
contained in K.S.A. 17-6001 et seq., and amendments thereto, or organize under the Kansas
limited liability company act contained in K.S.A. 17-7601section 1et seq., and amendments
thereto, or organize as a limited liability partnership as defined in K.S.A. 1998 Supp. 56a-
101 and amendments thereto.
Sec. 83. K.S.A. 1998 Supp. 17-5903 is hereby amended to read as follows: 17-5903. As
used in this act:
(a) ``Corporation'' means a domestic or foreign corporation organized for profit or
nonprofit purposes.
(b) ``Nonprofit corporation'' means a corporation organized not for profit and which
qualifies under section 501(c)(3) of the federal internal revenue code of 1986 as amended.
(c) ``Limited partnership'' has the meaning provided by K.S.A. 56-1a01, and
amendments thereto.
(d) ``Limited agricultural partnership'' means a limited partnership founded for the
purpose of farming and ownership of agricultural land in which:
(1) The partners do not exceed 10 in number;
(2) the partners are all natural persons, persons acting in a fiduciary capacity for the
benefit of natural persons or nonprofit corporations, or general partnerships other than
corporate partnerships formed under the laws of the state of Kansas; and
(3) at least one of the general partners is a person residing on the farm or actively
engaged in the labor or management of the farming operation. If only one partner is meeting
the requirement of this provision and such partner dies, the requirement of this provision
does not apply for the period of time that the partner's estate is being administered in any
district court in Kansas.
(e) ``Corporate partnership'' means a partnership, as defined in K.S.A. 1998 Supp. 56a-
101, and amendments thereto, which has within the association one or more corporations
or one or more limited liability companies.
(f) ``Feedlot'' means a lot, yard, corral, or other area in which livestock fed for slaughter
are confined. The term includes within its meaning agricultural land in such acreage as is
necessary for the operation of the feedlot.
(g) ``Agricultural land'' means land suitable for use in farming.
(h) ``Farming'' means the cultivation of land for the production of agricultural crops,
the raising of poultry, the production of eggs, the production of milk, the production of fruit
or other horticultural crops, grazing or the production of livestock. Farming does not include
the production of timber, forest products, nursery products or sod, and farming does not
include a contract to provide spraying, harvesting or other farm services.
(i) ``Fiduciary capacity'' means an undertaking to act as executor, administrator,
guardian, conservator, trustee for a family trust, authorized trust or testamentary trust or
receiver or trustee in bankruptcy.
(j) ``Family farm corporation'' means a corporation:
(1) Founded for the purpose of farming and the ownership of agricultural land in which
the majority of the voting stock is held by and the majority of the stockholders are persons
related to each other, all of whom have a common ancestor within the third degree of
relationship, by blood or by adoption, or the spouses or the stepchildren of any such persons,
or persons acting in a fiduciary capacity for persons so related;
(2) all of its stockholders are natural persons or persons acting in a fiduciary capacity
for the benefit of natural persons; and
(3) at least one of the stockholders is a person residing on the farm or actively engaged
in the labor or management of the farming operation. A stockholder who is an officer of
any corporation referred to in this subsection and who is one of the related stockholders
holding a majority of the voting stock shall be deemed to be actively engaged in the
management of the farming corporation. If only one stockholder is meeting the requirement
of this provision and such stockholder dies, the requirement of this provision does not apply
for the period of time that the stockholder's estate is being administered in any district court
in Kansas.
(k) ``Authorized farm corporation'' means a Kansas corporation, other than a family farm
corporation, all of the incorporators of which are Kansas residents, family farm corporations
or family farm limited liability agricultural companies or any combination thereof, and which
is founded for the purpose of farming and the ownership of agricultural land in which:
(1) The stockholders do not exceed 15 in number; and
(2) the stockholders are all natural persons, family farm corporations, family farm
limited liability agricultural companies or persons acting in a fiduciary capacity for the
benefit of natural persons, family farm corporations, family farm limited liability agricultural
companies or nonprofit corporations; and
(3) if all of the stockholders are natural persons, at least one stockholder must be a
person residing on the farm or actively engaged in labor or management of the farming
operation. If only one stockholder is meeting the requirement of this provision and such
stockholder dies, the requirement of this provision does not apply for the period of time
that the stockholder's estate is being administered in any district court in Kansas.
(l) ``Trust'' means a fiduciary relationship with respect to property, subjecting the person
by whom the property is held to equitable duties to deal with the property for the benefit
of another person, which arises as a result of a manifestation of an intention to create it. A
trust includes a legal entity holding property as trustee, agent, escrow agent, attorney-in-
fact and in any similar capacity.
(m) ``Family trust'' means a trust in which:
(1) A majority of the equitable interest in the trust is held by and the majority of the
beneficiaries are persons related to each other, all of whom have a common ancestor within
the third degree of relationship, by blood or by adoption, or the spouses or stepchildren of
any such persons, or persons acting in a fiduciary capacity for persons so related; and
(2) all the beneficiaries are natural persons, are persons acting in a fiduciary capacity,
other than as trustee for a trust, or are nonprofit corporations.
(n) ``Authorized trust'' means a trust other than a family trust in which:
(1) The beneficiaries do not exceed 15 in number;
(2) the beneficiaries are all natural persons, are persons acting in a fiduciary capacity,
other than as trustee for a trust, or are nonprofit corporations; and
(3) the gross income thereof is not exempt from taxation under the laws of either the
United States or the state of Kansas.
For the purposes of this definition, if one of the beneficiaries dies, and more than one
person succeeds, by bequest, to the deceased beneficiary's interest in the trust, all of such
persons, collectively, shall be deemed to be one beneficiary, and a husband and wife, and
their estates, collectively, shall be deemed to be one beneficiary.
(o) ``Testamentary trust'' means a trust created by devising or bequeathing property in
trust in a will as such terms are used in the Kansas probate code.
(p) ``Poultry confinement facility'' means the structures and related equipment used for
housing, breeding, laying of eggs or feeding of poultry in a restricted environment. The term
includes within its meaning only such agricultural land as is necessary for proper disposal
of liquid and solid wastes and for isolation of the facility to reasonably protect the confined
poultry from exposure to disease. As used in this subsection, ''poultry'' means chickens,
turkeys, ducks, geese or other fowl.
(q) ``Rabbit confinement facility'' means the structures and related equipment used for
housing, breeding, raising, feeding or processing of rabbits in a restricted environment. The
term includes within its meaning only such agricultural land as is necessary for proper
disposal of liquid and solid wastes and for isolation of the facility to reasonably protect the
confined rabbits from exposure to disease.
(r) ``Swine marketing pool'' means an association whose membership includes three or
more business entities or individuals formed for the sale of hogs to buyers but shall not
include any trust, corporation, limited partnership or corporate partnership, or limited
liability company other than a family farm corporation, authorized farm corporation, limited
liability agricultural company, limited agricultural partnership, family trust, authorized trust
or testamentary trust.
(s) ``Swine production facility'' means the land, structures and related equipment owned
or leased by a corporation or limited liability company and used for housing, breeding,
farrowing or feeding of swine. The term includes within its meaning only such agricultural
land as is necessary for proper disposal of liquid and solid wastes in environmentally sound
amounts for crop production and to avoid nitrate buildup and for isolation of the facility to
reasonably protect the confined animals from exposure to disease.
(t) ``Limited liability company'' has the meaning provided by K.S.A. 17-7602section 2,
and amendments thereto.
(u) ``Limited liability agricultural company'' means a limited liability company founded
for the purpose of farming and ownership of agricultural land in which:
(1) The members do not exceed 10 in number; and
(2) the members are all natural persons, family farm corporations, family farm limited
liability agriculture companies, persons acting in a fiduciary capacity for the benefit of
natural persons, family farm corporations, family farm limited liability agricultural
companies or nonprofit corporations, or general partnerships other than corporate
partnerships formed under the laws of the state of Kansas; and
(3) if all of the members are natural persons, at least one member must be a person
residing on the farm or actively engaged in labor or management of the farming operation.
If only one member is meeting the requirement of this provision and such member dies,
the requirement of this provision does not apply for the period of time that the member's
estate is being administered in any district court in Kansas.
(v) ``Dairy production facility'' means the land, structures and related equipment used
for housing, breeding, raising, feeding or milking dairy cows. The term includes within its
meaning only such agricultural land as is necessary for proper disposal of liquid and solid
wastes and for isolation of the facility to reasonably protect the confined cows from exposure
to disease.
(w) ``Family farm limited liability agricultural company'' means a limited liability
company founded for the purpose of farming and ownership of agricultural land in which:
(1) The majority of the members are persons related to each other, all of whom have a
common ancestor within the third degree of relationship, by blood or by adoption, or the
spouses or the stepchildren of any such persons, or persons acting in a fiduciary capacity
for persons so related;
(2) the members are natural persons or persons acting in a fiduciary capacity for the
benefit of natural persons; and
(3) at least one of the members is a person residing on the farm or actively engaged in
the labor or management of the farming operation. If only one member is meeting the
requirement of this provision and such member dies, the requirement of this provision does
not apply for the period of time that the member's estate is being administered in any
district court in Kansas.
(x) ``Hydroponics'' means the growing of vegetables, flowers, herbs, or plants used for
medicinal purposes, in a growing medium other than soil.
Sec. 84. K.S.A. 17-7701 is hereby amended to read as follows: 17-7701. (a) A merger
or consolidation solely between any two or more domestic corporations or one more
domestic corporations and one or more foreign corporations shall be governed by and
subject to K.S.A. 17-6701 et seq. and amendments thereto, as is applicable.
(b) A merger or consolidation solely between any two or more domestic limited
partnerships or one or more domestic limited partnerships and one or more foreign limited
partnerships shall be governed by and subject to K.S.A. 56-1a609 and amendments thereto.
(c) A merger or consolidation solely between any two or more domestic limited liability
companies or one or more domestic limited liability companies and one or more foreign
limited liability companies shall be governed by K.S.A. 17-7650section 20 and amendments
thereto.
(d) Subject to the provisions of this section, any merger or consolidation between one
or more domestic corporations and any one or more constituent entities at least one of
which is not a corporation, one or more domestic limited partnerships and any one or more
constituent entities at least one of which is not a limited partnership, or one or more
domestic limited liability companies and any one or more constituent entities at least one
of which is not a limited liability company shall be governed by and subject to the provisions
of K.S.A. 17-7701 through 17-7708, and amendments thereto.
Sec. 85. K.S.A. 17-7705 is hereby amended to read as follows: 17-7705. (a) The
agreement of merger or consolidation required by K.S.A. 17-7704 shall be authorized and
approved in the following manner:
(1) A constituent entity that is a domestic general partnership shall have the agreement
of merger or consolidation authorized and approved by all of the partners, unless otherwise
provided in the articles or agreement of partnership;
(2) a constituent entity that is a domestic limited partnership shall have the agreement
of merger or consolidation approved by all general partners and by all of the limited partners
unless otherwise provided in the certificate or agreement of limited partnership;
(3) a constituent entity that is a domestic corporation shall have the agreement of merger
or consolidation approved in the manner applicable to a merger of two or more domestic
corporations as provided in K.S.A. 17-6001 et seq. and amendments thereto;
(4) a constituent entity that is a domestic limited liability company shall have the
agreement of merger or consolidation approved in the manner provided in K.S.A. 17-7650 section 20 and amendments thereto; and
(5) each constituent entity formed under the laws of a jurisdiction other than this state
shall have the agreement of merger or consolidation approved in accordance with the laws
of such other jurisdiction.
(b) The fact that the agreement of merger or consolidation has been authorized and
approved in accordance with this section shall be certified on the agreement of merger or
consolidation on behalf of each constituent entity:
(1) In the case of any domestic general or limited partnership, by any general partner;
(2) in the case of any domestic corporation, by its president or a vice president, and by
its secretary or an assistant secretary;
(3) in the case of any domestic limited liability company, by any member or manager;
and
(4) in the case of any constituent entity formed under the laws of any jurisdiction other
than this state, in accordance with the laws of such other jurisdiction.
(c) After the agreement of merger or consolidation is authorized and approved, unless
the agreement of merger or consolidation provides otherwise, and at any time before the
agreement of merger or consolidation or certificate of merger or consolidation is effective
as provided for in K.S.A. 17-7706, the agreement of merger or consolidation may be
abandoned. Subject to any contractual rights, in accordance with the procedure set forth in
the agreement of merger or consolidation or, if none is set forth, with the approval of those
persons or individuals entitled to approve the merger or consolidation as provided in
subsection (a).
Sec. 86. K.S.A. 1998 Supp. 58-3062 is hereby amended to read as follows: 58-3062. (a)
No licensee, whether acting as an agent or a principal, shall:
(1) Intentionally use advertising that is misleading or inaccurate in any material
particular or that in any way misrepresents any property, terms, values, policies or services
of the business conducted, or uses the trade name, collective membership mark, service
mark or logo of any organization owning such name, mark or logo without being authorized
to do so.
(2) Fail to account for and remit any money which comes into the licensee's possession
and which belongs to others.
(3) Misappropriate moneys required to be deposited in a trust account pursuant to
K.S.A. 58-3061 and amendments thereto, convert such moneys to the licensee's personal
use or commingle the money or other property of the licensee's principals with the licensee's
own money or property, except that nothing herein shall prohibit a broker from having funds
in an amount not to exceed $100 in the broker's trust account to pay expenses for the use
and maintenance of such account.
(4) Accept, give or charge any rebate or undisclosed commission.
(5) Pay a referral fee to a person who is properly licensed as a broker or salesperson in
another jurisdiction or who holds a corporate real estate license in another jurisdiction if
the licensee knows that the payment of the referral fee will result in the payment of a rebate
by the out-of-state licensee.
(6) Represent or attempt to represent a broker without the broker's express knowledge
and consent.
(7) Guarantee or authorize any person to guarantee future profits that may result from
the resale of real property.
(8) Place a sign on any property offering it for sale or lease without the written consent
of the owner or the owner's authorized agent.
(9) Offer real estate for sale or lease without the knowledge and consent of the owner
or the owner's authorized agent or on terms other than those authorized by the owner or
the owner's authorized agent.
(10) Induce any party to break any contract of sale or lease.
(11) Offer or give prizes, gifts or gratuities which are contingent upon an agency
agreement or the sale, purchase or lease of real estate.
(12) Fail to see that financial obligations and commitments between the parties to an
agreement to sell, exchange or lease real estate are in writing, expressing the exact agreement
of the parties or to provide, within a reasonable time, copies thereof to all parties involved.
(13) Procure a signature to a purchase contract which has no definite purchase price,
method of payment, description of property or method of determining the closing date.
(14) Engage in fraud or make any substantial misrepresentation.
(15) Represent to any lender, guaranteeing agency or any other interested party, either
verbally or through the preparation of false documents, an amount in excess of the true and
actual sale price of the real estate or terms differing from those actually agreed upon.
(16) Fail to make known to any purchaser or lessee any interest the licensee has in the
real estate the licensee is selling or leasing or to make known to any seller or lessor any
interest the licensee will have in the real estate the licensee is purchasing or leasing.
(17) Fail to inform both the buyer, at the time an offer is made, and the seller, at the
time an offer is presented, that certain closing costs must be paid and the approximate
amount of such costs.
(18) Fail without just cause to surrender any document or instrument to the rightful
owner.
(19) Accept anything other than cash as earnest money unless that fact is communicated
to the owner prior to the owner's acceptance of the offer to purchase, and such fact is shown
in the purchase agreement.
(20) Fail to deposit any check or cash received as an earnest money deposit or as a
deposit on the purchase of a lot within five business days after the purchase agreement or
lot reservation agreement is signed by all parties, unless otherwise specifically provided by
written agreement of all parties to the purchase agreement or lot reservation agreement, in
which case the licensee shall deposit the check or cash received on the date provided by
such written agreement.
(21) Fail in response to a request by the commission or the director to produce any
document, book or record in the licensee's possession or under the licensee's control that
concerns, directly or indirectly, any real estate transaction or the licensee's real estate
business.
(22) Refuse to appear or testify under oath at any hearing held by the commission.
(23) Demonstrate incompetency to act as a broker, associate broker or salesperson.
(24) Knowingly receive or accept, directly or indirectly, any rebate, reduction or
abatement of any charge, or any special favor or advantage or any monetary consideration
or inducement, involving the issuance of a title insurance policy or contract concerning
which the licensee is directly or indirectly connected, from a title insurance company or
title insurance agent, or any officer, employee, attorney, agent or solicitor thereof.
(25) Engage in the purchase of one-, two-, three- or four-family dwellings, including
condominiums and cooperatives, or the acquisition of any right, title or interest therein,
including any equity or redemption interests, if:
(A) (i) At the time of such purchase, the dwellings are subject to a right of redemption
pursuant to foreclosure of a mortgage on such dwellings; (ii) the licensee fails to give written
notice of the purchase, within 20 days thereafter, to the mortgage holder or judgment
creditor who held such mortgage; and (iii) the licensee, unless otherwise required by law or
court order, fails to apply any rent proceeds from the dwellings to the judgment lien arising
from the foreclosure of such mortgage, as payments become due under the loan, regardless
of whether the licensee is obligated to do so;
(B) (i) the dwellings are subject to a loan which is secured by a mortgage and which is
in default at the time of such purchase or in default within one year after such purchase;
(ii) the licensee fails to give written notice of the purchase, within 20 days thereafter, to the
mortgage holder; and (iii) the licensee, unless otherwise required by law or court order, fails
to apply any rent proceeds from the dwellings to the mortgage as the payments come due,
regardless of whether the licensee is obligated on the loan; or
(C) the licensee fails to notify, at the time of rental, any person renting any such dwelling
of the extent and nature of the licensee's interest in such dwelling and the probable time
until possession will be taken by the mortgage holder or judgment creditor.
(26) Commit forgery or, unless authorized to do so by a duly executed power of attorney,
sign or initial any contractual agreement on behalf of another person in a real estate
transaction.
(b) No salesperson or associate broker shall:
(1) Except as provided in paragraph (A) or (B), accept a commission or other valuable
consideration from anyone other than the broker by whom the licensee is employed or with
whom the licensee is associated as an independent contractor.
(A) A salesperson or associate broker may accept a commission or other valuable
consideration from a licensee who employs the salesperson or associate broker as a personal
assistant provided that: (i) the licensee and the salesperson or associate broker who is
employed as a personal assistant are licensed under the supervision of the same broker, and
(ii) the supervising broker agrees in writing that the personal assistant may be paid by the
licensee.
(B) If a salesperson or associate broker has (i) organized as a professional corporation
pursuant to K.S.A. 17-2706 et seq., and amendments thereto, (ii) incorporated under the
Kansas general corporation code contained in K.S.A. 17-6001 et seq., and amendments
thereto, (iii) organized under the Kansas limited liability company act contained in K.S.A. 17-7601section 1et seq., and amendments thereto, or (iv) has organized as a limited liability
partnership as defined in K.S.A. 1998 Supp. 56a-101 and amendments thereto, the
commission or other valuable consideration may be paid by the licensee's broker to such
professional corporation, corporation, limited liability company or limited liability
partnership. This provision shall not alter any other provisions of this act.
(2) Fail to place, as soon after receipt as practicable, any deposit money or other funds
entrusted to the salesperson or associate broker in the custody of the broker whom the
salesperson or associate broker represents.
(c) No broker shall:
(1) Pay a commission or compensation to any person for performing the services of an
associate broker or salesperson unless such person is licensed under this act and employed
by or associated with the broker.
(2) Fail to deliver to the seller in every real estate transaction, at the time the transaction
is closed, a complete, detailed closing statement showing all of the receipts and
disbursements handled by the broker for the seller, or fail to deliver to the buyer a complete
statement showing all money received in the transaction from such buyer and how and for
what the same was disbursed, or fail to retain true copies of such statements in the broker's
files, except that the furnishing of such statements to the seller and buyer by an escrow
agent shall relieve the broker's responsibility to the seller and the buyer.
(3) Fail to properly supervise the activities of an associated or employed salesperson or
associate broker.
(4) Lend the broker's license to a salesperson, or permit a salesperson to operate as a
broker.
(5) Fail to provide to the principal a written report every 30 days, along with a final
report, itemizing disbursements made by the broker from advance listing fees.
(d) (1) If a purchase agreement provides that the earnest money be held by an escrow
agent other than a real estate broker, no listing broker shall:
(A) Fail to deliver the purchase agreement and earnest money deposit to the escrow
agent named in the purchase agreement within five business days after the purchase
agreement is signed by all parties unless otherwise specifically provided by written
agreement of all parties to the purchase agreement, in which case the broker shall deliver
the purchase agreement and earnest money deposit to the escrow agent named in the
purchase agreement on the date provided by such written agreement; or
(B) fail to obtain and keep in the transaction file a receipt from the escrow agent showing
date of delivery of the purchase agreement and earnest money deposit.
(2) If a purchase agreement provides that the earnest money be held by an escrow agent
other than a real estate broker and the property was not listed with a broker, no broker for
the buyer shall:
(A) Fail to deliver the purchase agreement and earnest money deposit to the escrow
agent named in the purchase agreement within five business days after the purchase
agreement is signed by all parties unless otherwise specifically provided by written
agreement of all parties to the purchase agreement, in which case the broker shall deliver
the purchase agreement and earnest money deposit to the escrow agent named in the
purchase agreement on the date provided by such written agreement; or
(B) fail to obtain and keep in the transaction file a receipt from the escrow agent showing
date of delivery of the purchase agreement and earnest money deposit.
(3) If a purchase agreement provides that the earnest money be held by an escrow agent
other than a real estate broker and neither the seller nor buyer is represented by a broker,
no transaction broker shall:
(A) Fail to deliver the purchase agreement and earnest money deposit to the escrow
agent named in the purchase agreement within five business days after the purchase
agreement is signed by all parties unless otherwise specifically provided by written
agreement of all parties to the purchase agreement, in which case the broker shall deliver
the purchase agreement and earnest money deposit to the escrow agent named in the
purchase agreement on the date provided by such written agreement; or
(B) fail to obtain and keep in the transaction file a receipt from the escrow agent showing
date of delivery of the purchase agreement and earnest money deposit.
The commission may adopt rules and regulations to require that such purchase agreement
which provides that the earnest money be held by an escrow agent other than a real estate
broker include: (1) notification of whether or not the escrow agent named in the purchase
agreement maintains a surety bond, and (2) notification that statutes governing the
disbursement of earnest money held in trust accounts of real estate brokers do not apply to
earnest money deposited with the escrow agent named in the purchase agreement.
(e) Nothing in this section shall be construed to grant any person a private right of
action for damages or to eliminate any right of action pursuant to other statutes or common
law.'';
By renumbering remaining sections accordingly;
Also on page 46, in line 38, following ``17-7652,'' by inserting ``17-7652, as amended by
section 7 of 1999 House Bill No. 2161,''; in line 39, by striking the first ``and'' and inserting
a comma; also in line 39, after ``17-7656'' by inserting ``, 17-7701 and 17-7705''; also in line
39, after ``Supp.'' by inserting ``17-2708, 17-5903,''; in line 40, following ``17-7634,'' by
inserting ``17-7634, as amended by section 13 of 1999 House Bill No. 2161,''; also in line
40, by striking ``and'' and inserting a comma; also in line 40, after ``17-7654'' by inserting
``and 58-3062'';
On page 1, in the title, in line 12, after the semicolon by inserting ``amending K.S.A. 17-
7701 and 17-7705 and K.S.A. 1998 Supp. 17-2708, 17-5903 and 58-3062 and repealing the
existing sections; also''; in line 18, following ``17-7652,'' by inserting ``17-7652, as amended
by section 7 of 1999 House Bill No. 2161,''; in line 20, following ``17-7634,'' by inserting
``17-7634, as amended by section 13 of 1999 House Bill No. 2161,''; And your committee
on conference recommends the adoption of this report.
Tim Emert
John Vratil
Greta Goodwin
Michael R. O'Neal
Tim Carmody
Janice L. Pauls
On motion of Rep. Carmody, the conference committee report on HB 2276 was adopted.
On roll call, the vote was: Yeas 122; Nays 0; Present but not voting: 0; Absent or not
voting: 3.
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on Senate
amendments to HB 2492, submits the following report:
The Senate recedes from all of its amendments by Senate Committee of the Whole to
the bill and the House accedes to all the Senate amendments by Senate Committee to the
bill;
And your committee on conference recommends the adoption of this report.
David R. Corbin
Stephen R. Morris
Donald E. Biggs
Dan Johnson
Joe Humerickhouse
Laura McClure
On motion of Rep. Johnson, the conference committee report on HB 2492 was adopted.
On roll call, the vote was: Yeas 119; Nays 2; Present but not voting: 0; Absent or not
voting: 4.
Absent or not voting: Haley, O'Connor, O'Neal, Powers.
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on House
amendments to House Substitute for SB 306, submits the following report:
The Senate accedes to all House amendments to the bill, and your committee on
conference further agrees to amend the bill, as printed with House on Final Action
amendments, as follows:
On page 14, in line 35, by striking ``OR'';
On page 32, by striking all in lines 41 through 43;
On page 33, by striking all in lines 1 through 3;
And by renumbering sections accordingly;
On page 1, in the title, in line 10, by striking ``civil procedure;''; also in line 10, by striking
``exemptions;'';
And your committee on conference recommends the adoption of this report.
Michael R. O'Neal
Tim Carmody
Janice L. Pauls
Tim Emert
John Vratil
Greta Goodwin
On motion of Rep. Carmody, the conference committee report on H. Sub. for SB 306
was adopted.
On roll call, the vote was: Yeas 121; Nays 0; Present but not voting: 0; Absent or not
voting: 4.
Absent or not voting: Haley, O'Connor, O'Neal, Powers.
CONFERENCE COMMITTEE REPORT
Mr. President and Mr. Speaker: Your committee on conference on House
amendments to SB 108, submits the following report:
The Senate accedes to all House amendments to the bill, and your committee on
conference further agrees to amend the bill, as printed with House Committee amendments
and reprinted, as follows:
On page 2, by striking lines 4 through 7; on line 22, by striking ``section'' and inserting
``act''; on line 24, by striking all after ``to''; on line 25, by striking all before ``the'' and inserting
``affect''; on line 26, by striking ``condition'' and inserting ``indication'';
And your committee on conference recommends the adoption of this report.
Garry Boston
Gerald G. Geringer
Jerry Henry
Don Steffes
Sandy Praeger
Donald E. Biggs
On motion of Rep. Boston, the conference committee report on SB 108 was adopted.
On roll call, the vote was: Yeas 122; Nays 0; Present but not voting: 0; Absent or not
voting: 3.
On motion of Rep. Tanner to adopt the conference committee report on SB 38, the
motion was withdrawn.
On motion of Rep. Glasscock, the House went into Committee of the Whole, with Rep.
Gregory in the chair.
COMMITTEE OF THE WHOLE
On motion of Rep. Gregory, Committee of the Whole report, as follows, was adopted:
Recommended that on motion of Rep. McKinney SCR 1616 be amended on page 2, in
line 37, before the colon, by inserting ``,unless such livestock ownership restricts free and
competitive markets or is a violation of antitrust laws'';
Also, on motion of Rep. Johnson SCR 1616 be amended on page 2, after line 35, by
inserting the following:
``WHEREAS, Producers should consider participating in marketing alliances,
cooperatives and other innovative methods of marketing livestock in order to focus on
changing consumer demands and to regain market share; and''; and SCR 1616 be adopted
as amended.
REPORT OF STANDING COMMITTEE
Your Committee on Calendar and Printing recommends on requests for resolutions
and certificates that
Request No. 267, by Representative Loyd, congratulating Itzel Stewart, 1999 Woman
of the Year, Kansas League of United Latin American Citizens;
Request No. 268, by Representative Loyd, congratulating Lydia Gonzales, Lifetime
Achievement Award, U.S. Hispanic Leadership Institute;
Request No. 269, by Representative Compton, congratulating Jared Ratzlaff, winner of
sixth place, 165 pound weight class, State Wrestling in Topeka, 1999;
Request No. 270, by Representative Compton, congratulating Aron Culbertson, winner
of fifth place, 57 pound weight class, State Wrestling in Topeka, 1999;
Request No. 271, by Representative Compton, congratulating Josh Myers, winner of
fourth place, 185 pound weight class, State Wrestling in Topeka, 1999;
Request No. 272, by Representative Compton, congratulating Jon Wooten, winner of
sixth place, 67 pound weight class, State Wrestling in Topeka, 1999;
Request No. 273, by Representative Geringer, congratulating Mike Eastman on
achieving Eagle Scout;
Request No. 285, by Representative Ray, congratulating Elite Gymnastics, Level 6
Team, Kansas State Girls' Junior Olympics Champions;
Request No. 286, by Representative Krehbiel, congratulating Rodney C. Wren, winner
of the State Champion American Legion Oratory Title;
Request No. 287, by Representative Krehbiel, honoring William E. Grimes on his
retirement and for his distinguished service as superintendent of USD 423;
Request No. 288, by Representative Hermes, congratulating Dr. Ronald Zoeller on his
appointment to the Kansas State Board of Healing Arts;
Request No. 289, by Representative Hermes, congratulating Dr. Jim Edwards on his
appointment to the Kansas State Board of Healing Arts;
Request No. 290, by Representative Loyd, commending Darleen Carroll for 20 years
of service managing Garden City;
Request No. 291, by Representative Loyd, congratulating Deneise McGowan for
certification as 1999 Reading Renaissance Model Classroom;
Request No. 292, by Representative Loyd, congratulating Shauna Lenneman, Reading
Renaissance Model Classroom, Level I Certification from the Institute for Academic
Excellence;
Request No. 293, by Representative Loyd, congratulating Amanda Rivera and Amanda
Medrano, second place, Junior Group Exhibit, District 5 History Day;
Request No. 294, by Representative Loyd, congratulating Michael Selzer, Nick
Richmond, Matthew Selzer, first place, Junior Group Exhibit, District 5 History Day;
Request No. 295, by Representative Loyd, congratulating Joshua Bayles, Cory
Pendergast, Michael Merz, first place, Senior Group Exhibit, District 5 History Day;
Request No. 296, by Representative Loyd, congratulating Brad Fouse, first place, Junior
Individual Exhibit, District 5 History Day;
Request No. 297, by Representative Loyd, congratulating Anh Vu, second place, Junior
Individual Exhibit, District 5 History Day;
Request No. 298, by Representative Loyd, congratulating Ryan Gillette, first place,
Junior Individual Media, District 5 History Day;
Request No. 299, by Representative Loyd, congratulating Beth Crotty, Junior Individual
Exhibit, Finney County Conservation District Award;
Request No. 300, by Representative Loyd, congratulating Linh Dang, Junior Individual
Exhibit, Optimist Club Award;
Request No. 301, by Representative Loyd, congratulating DeAnna Zemp and Amanda
Kinnischtzke, Junior Group Exhibit Team, Optimist Club Award;
Request No. 302, by Representative Phelps, commending Sharon Leikam for eight years
of dedicated service to the City of Hays;
Request No. 303, by Representative Carmody, congratulating Joshua F. Jadlow on
achieving Eagle Scout;
Request No. 304, by Representative Jennison, congratulating Burnell and Josephine
Muhleisen on 50 years of marriage;
Request No. 305, by Representative Jennison, congratulating Bob and Lee White on 50
years of marriage;
Request No. 306, by Representative Benlon, congratulating Ronald Poplau on induction
into the National Teachers Hall of Fame;
Request No. 307, by Representative Phelps, commending Curt Vajnar, Hays High
School, Kansas State Master Teacher for 1999;
Request No. 308, by Representative P. Long, commending Kaycee Inwood for academic
achievement as a United States National Award winner in Science;
Request No. 309, by Representative Pauls, honoring ALTRUSA International, Inc., on
ALTRUSA Awareness Day, April 11, 1999, the 82nd birthday of ALTRUSA;
Request No. 310, by Representative Loyd, congratulating Erica Schaffer, winner of
second place, Junior Individual Media, District 5 History Day;
Request No. 311, by Representative Loyd, congratulating Mallory Daniel, Celeste
Gerber, Karena Ensz, Finney County Historical Society Award, District 5 History Day;
Request No. 312, by Representative Crow, commending Leavenworth High School
players, coaches, cheerleaders, fans and administrators, recognized by the Kansas State High
School Activities Association with the 1999 Sportsmanship Award at the 6A State Basketball
Tournament;
Request No. 313, by Representative Reinhardt, congratulating Michelle M. DiLisio,
Teacher of the Year;
be approved and the Chief Clerk of the House be directed to order the printing of said
certificates and order drafting of said resolutions.
On motion of Rep. Weber, the committee report was adopted.
Upon unanimous consent, the House referred back to the regular order of business,
Introduction of Bills and Concurrent Resolutions.
INTRODUCTION OF BILLS AND CONCURRENT RESOLUTIONS
The following bill was thereupon introduced and read by title:
HB 2574, An act concerning limitations on certain civil actions; relating to certain
regulated products and services, by Committee on Federal and State Affairs.
On motion of Rep. Weber, the House recessed until 3:00 p.m.