February 16, 1999

Journal of the Senate

TWENTY-SIXTH DAY
______
Senate Chamber, Topeka, Kansas
Tuesday, February 16, 1999--2:30 p.m.
 The Senate was called to order by President Dick Bond.

 The roll was called with thirty-nine senators present.

 Senator Praeger was excused.

 Invocation by Chaplain Fred S. Hollomon:

          Heavenly Father,

         When Jesus spoke the beatitudes He turned the conventional wisdom upside
      down. Unfortunately, O God, most of the conventional wisdom of our day still
      contradicts the beatitudes

          Jesus said, ``Blessed are the meek, for they shall inherit the earth.''

      But the cynics say, ``Blessed are the aggressors, for they shall take over the earth.''

         Jesus said, ``Blessed are they who hunger and thirst after righteousness, for they
      shall be filled.''

      But conventional wisdom says, ``Blessed are those who don't know what it is to hunger
      or thirst for anything, for they have everything.''

          Jesus said, ``Blessed are the merciful, for they shall obtain mercy.''

      The cynics say, ``Blessed are the merciless, for they will end up with what the merciful
      once had.''

          Jesus said, ``Blessed are the pure in heart, for they shall see God.''

      But we hear today, ``Blessed are the heartless, for they do not need God.''

          Jesus said, ``Blessed are the peacemakers for they shall be called the children of
      God.''

      Conventional wisdom says, ``Blessed are the troublemakers, for they will wind up
      with the children's toys.''

         Remind us, O God, that what makes no sense to the cynics is the only way that
      works in the long run.

          I pray in the Name of Jesus,

         AMEN

INTRODUCTION OF BILLS AND CONCURRENT RESOLUTIONS
 The following bills were introduced and read by title:

   SB 321, An act concerning pupils; prohibiting withholding of records; relating to
suspension or expulsion; amending K.S.A. 72-5386 and K.S.A. 1998 Supp. 72-8907 and 72-
89a02 and repealing the existing sections, by Committee on Federal and State Affairs.

   SB 322, An act concerning the parole of certain inmates, by Committee on Federal and
State Affairs.

REFERENCE OF BILLS AND CONCURRENT RESOLUTIONS
 The following bills and resolutions were referred to Committees as indicated:

   Assessment and Taxation: SB 318; HCR 5002.

 Elections and Local Government: SB 319, 320.

 Energy and Natural Resources: SCR 1611; HB 2104.

 Federal and State Affairs: HB 2012.

 Judiciary: SB 317; HB 2184, 2221.

 Public Health and Welfare: HB 2086.

 Transportation and Tourism: HB 2094.

 Ways and Means: SB 316.

COMMUNICATIONS FROM STATE OFFICERS
    KANSAS DEVELOPMENT FINANCE AUTHORITY
  November 30, 1998
   Thomas A. Page, Chairman, Kansas Development Finance Authority, submitted the
annual report for fiscal year 1998.

   The President announced the above report is on file in the office of the Secretary of the
Senate and is available for review at any time.

MESSAGE FROM THE HOUSE
 Announcing passage of HB 2075.

 Also, passage of SB 41.
INTRODUCTION OF HOUSE BILLS AND CONCURRENT RESOLUTIONS
 HB 2075 was thereupon introduced and read by title.

REPORTS OF STANDING COMMITTEES
 Committee on Assessment and Taxation recommends SB 78 be amended on page 1,
in line 22, by striking ``gathering and'';

      On page 2, after line 7, by inserting a new section to read as follows:

      ``Sec.  2. K.S.A. 79-5a01 is hereby amended to read as follows: 79-5a01. (a) As used in
this act, the terms ``public utility'' or ``public utilities'' shall mean every individual, company,
corporation, association of persons, lessees or receivers that now or hereafter are in control,
manage or operate a business of:

      (1) A railroad or railroad corporation if such railroad or railroad corporation owns or
holds, by deed or other instrument, an interest in right-of-way, track, franchise, roadbed or
trackage in this state;

      (2) transmitting to, from, through or in this state telegraphic messages;

      (3) transmitting to, from, through or in this state telephonic messages;

      (4) transporting or distributing to, from, through or in this state natural gas, oil or other
commodities in pipes or pipelines, or engaging primarily in the business of storing natural
gas in an underground formation;

      (5) generating, conducting or distributing to, from, through or in this state electric
power;

      (6) transmitting to, from, through or in this state water if for profit or subject to
regulation of the state corporation commission;

      (7) transporting to, from, through or in this state cargo or passengers by means of any
vessel or boat used in navigating any of the navigable watercourses within or bordering upon
this state.

      (b) The terms ``public utility'' or ``public utilities'' shall not include: (1) Rural water
districts established under the laws of the state of Kansas; or (2) any individual, company,
corporation, association of persons, lessee or receiver owning or operating an oil or natural
gas production gathering line which is situated within one county in this state and does not
cross any state boundary line; or (3) any individual, company, corporation, association of
persons, lessee or receiver owning any vessel or boat operated upon the surface of any
manmade waterway located entirely within one county in the state; or (4) for all taxable
years commencing after December 31, 1998, any natural gas distribution system which is
owned and operated by a nonprofit public utility described by K.S.A. 66-104c, and
amendments thereto, and which is operated predominantly for the purpose of providing fuel
for the irrigation of land devoted to agricultural use.'';

      Also, on page 2, in line 8, by striking ``is'' and inserting ``and 79-5a01 are'';

      And by renumbering existing sections accordingly;

      In the title, in line 10, after ``79-201j'' by inserting ``and 79-5a01''; in line 11, by striking
``section'' and inserting ``sections''; and the bill be passed as amended.

 Committee on Commerce recommends SB 76 be amended on page 1, in line 14, by
striking ``As used in this act'' and inserting ``For purposes of K.S.A. 12-1770 et seq. and
amendments thereto''; in line 18, by striking ``has been'' and inserting ``is eligible to be'';

      On page 2, in line 13, after the first comma, by inserting ``a historic theater as defined in
section 1, and amendments thereto,'';

      On page 3, in line 26, by striking ``within'' and inserting ``for''; and the bill be passed as
amended.

 Also SB 219 be amended on page 16, after line 42, by inserting an additional subsection
as follows:

      ``(e) If a self-insured employer, group-funded workers compensation pool, insurance
carrier or vocational rehabilitation provider fails to supply the information required by this
section, the director shall issue and serve upon such person a summary order or statement
of the charges with respect thereto and a hearing shall be conducted thereon in accordance
with the provisions of the Kansas administrative procedure act. An administrative penalty
of up to $500 for each violation or act, along with an additional penalty of up to $100 for
each week thereafter that such report or other information is not provided to the director
shall be imposed.'';

      Also on page 16, preceding line 43, by inserting an additional section as follows:

      ``Sec.  10. K.S.A. 44-5,104 is hereby amended to read as follows: 44-5,104. (a) Each
insurance company or group-funded self-insurance plan providing workers compensation
insurance coverage in Kansas shall maintain and may offer to shall provide accident
prevention programs upon request of the covered employer as a prerequisite for authority
to provide such insurance or coverage. The accident prevention programs shall be adequate
to furnish accident prevention services required by the nature of the operations of the
policyholders or other covered entities and the accident prevention services shall include
surveys, recommendations, training programs, consultations, analyses of accident causes,
industrial hygiene and industrial health services to implement the program of accident
prevention services. The accident prevention programs shall be staffed with field safety
representatives. Each field safety representative shall be a person who is (1) a college
graduate who has a bachelor's degree in science, business industrial hygiene, safety or loss
control, or engineering, (2) a registered professional engineer, (3) a certified safety
professional, who has attained the designation from the board of certified safety
professionals, (4) a certified industrial hygienist, who has attained the designation from the
American board of industrial hygiene (5) an individual with 10 five years of experience in
occupational safety and health, (6) a person who is working under direct supervision of a
person who meets the qualification requirements of this section (7) a person who has
attained the designation of associate in loss control management or associate in risk
management from the insurance institute of America, who has attained the designation of
occupational safety and health technologist from the board of certified safety professionals,
or who has attained any other comparable designation or certification by a recognized
organization as determined by the secretary of human resources, or (8) an individual who
has completed a certified training program in accident prevention services approved by the
secretary of human resources. The insurance company or group-funded self-insurance plan
may employ qualified personnel, retain qualified independent contractors, contract with the
policyholder to provide qualified accident prevention personnel and services, or use a
combination of such methods to fulfill the obligations imposed by this section. Accident
prevention personnel shall have the qualifications required for field safety representatives.

      (b) The secretary of human resources may conduct such inspections as the secretary
deems necessary to determine the adequacy of the accident prevention services required
by subsection (a) for each insurance company and group-funded self-insurance plan
providing workers compensation insurance coverage in Kansas, including, but not limited
to, random inspections and those based upon employer complaints. Documented employer
complaints shall be appropriately investigated and the results shall be reported to the
commissioner of insurance. The secretary shall not be required by this section to inspect
each insurance company or group-funded self-insurance plan.

      (c) A notice that accident prevention services are available to the policyholder from the
insurance company shall appear in no less than ten-point boldface type on the front page
of each workers compensation insurance policy delivered or issued for delivery in this state.

      (d) At least once each year, each insurance company or group-funded self-insurance
plan providing workers compensation insurance in Kansas shall submit to the director of
workers compensation detailed information on the type of accident prevention programs
offered to the policyholders by the insurance company or to the covered entities by the
group-funded self-insurance plan, as the case may be. The information shall include:

      (1) The amount of money spent by the insurance company or group-funded self-insured
plan on accident prevention services;

      (2) the names, number and qualifications of field safety representatives employed;

      (3) the number of site inspections performed;

      (4) any accident prevention services made available under a contractual arrangement;

      (5) a specification and listing of the premium size of the risks to which accident
prevention services were actually provided;

      (6) evidence of the effectiveness of and accomplishments in accident prevention; and

      (7) any additional information required by the director of workers compensation.

      (e) If the insurance company or group-funded self-insurance plan does not maintain or
provide the accident prevention services required by this section, the director of workers
compensation shall notify the commissioner of insurance. Upon receiving such notification,
the commissioner of insurance shall presume the insurance company or group-funded self-
insurance plan knew or reasonably should have known of the violation and shall assess the
penalty prescribed therefore pursuant to K.S.A. 40-2,125 and amendments thereto. The
secretary shall send the information and results obtained pursuant to subsection (d) to the
insurance commissioner who shall widely disseminate information about the program.

      (f) The secretary of human resources shall employ the personnel necessary to enforce
the provisions of this section and shall employ sufficient safety inspectors to perform
inspections at job sites or other work places and at the locations of the and may audit
accident prevention programs of each insurance company or group-funded self-insurance
plan which is subject to this section to determine the adequacy of the accident prevention
services provided. The safety inspectors shall have the qualifications required for field safety
representatives by subsection (a).

      (g) The insurance company or group-funded self-insurance plan, and any agent, servant,
or employee thereof, shall have no liability with respect to any accident based on the
allegation that such accident was caused or could have been prevented by a program,
inspection or other activity or by a service undertaken or not undertaken by the insurance
company or group-funded self-insurance plan for the prevention of accidents in connection
with operations of the employer. This immunity shall not affect the liability of the insurance
company or group-funded self-insurance plan for compensation or as otherwise provided in
this act.'';

      And by renumbering the remaining sections accordingly;

      On page 21, after line 29, by inserting the following additional sections:

      ``Sec.  12. K.S.A. 1998 Supp. 44-5,122 is hereby amended to read as follows: 44-5,122.
(a) If the director or the assistant attorney general assigned to the division of workers
compensation has probable cause to believe a fraudulent or abusive act or practice or any
other violation of the workers compensation act is of such significance as to constitute a
crime, a copy of any order, all investigative reports and any evidence in the possession of
the division of workers compensation which relates to such act, practice or violation shall
may be forwarded to the prosecuting attorney of the county in which the act or any of the
acts were performed which constitute the fraudulent or abusive act or practice or other
violation. Any case which a county attorney fails to prosecute within 90 days shall be
returned promptly to the director. The assistant attorney general assigned to the division of
workers compensation shall then prosecute the case if, in the opinion of the assistant attorney
general, the acts or practices involved still warrant prosecution.

      (b) Any person who believes a violation of the workers compensation act has been or is
being committed may notify the division of workers compensation of the department of
human resources immediately after discovery of the alleged violation. The person shall send
to the division of workers compensation, in a manner prescribed by the director, the
information describing the facts of the alleged violation and such additional information
relating to the alleged violation as the director may require. The director shall cause an
evaluation of the facts surrounding the alleged violation to be made to determine the extent,
if any, to which violations of the workers compensation act exist, which shall include a review
and investigation by the assistant attorney general assigned to the division to the extent as
may be deemed necessary to determine whether there has been a violation of the workers
compensation act.

      Sec.  13. K.S.A. 1998 Supp. 44-5,125 is hereby amended to read as follows: 44-5,125.
(a) (1) Any person who obtains or attempts to obtain workers compensation benefits for
such person or another, or who denies or attempts to deny the obligation to make any
payment of workers compensation benefits by knowingly or intentionally: (A) Making a false
or misleading statement, (B) misrepresenting or concealing a material fact, (C) fabricating,
altering, concealing or destroying a document; (D) receiving temporary total disability
benefits or permanent total disability benefits to which they are not entitled, while employed,
or (E) conspiring with another person to commit any act described by paragraph (1) of this
subsection (a), shall be guilty of:

      (i) A class A nonperson misdemeanor, if the amount received as a benefit or other
payment under the workers compensation act as a result of such act or the amount that the
person otherwise benefited monetarily as a result of a violation of this subsection (a) is $500
or less;

      (ii) a severity level 9, nonperson felony, if such amount is more than $500 but less than
$25,000;

      (iii) a severity level 7, nonperson felony, if the amount is more than $25,000, but less
than $50,000;

      (iv) a severity level 6, nonperson felony if the amount is more than $50,000, but less
than $100,000; or

      (v) a severity level 5, nonperson felony if the amount is more than $100,000.

      (b) Any person who knowingly and intentionally presents a false certificate of insurance
that purports that the presenter is insured under the workers compensation act, shall be
guilty of a level 8, nonperson felony.

      (c) A health care provider under the workers compensation act who knowingly and
intentionally submits a charge for health care that was not furnished, shall be guilty of a
level 9, nonperson felony.

      (d) Any person who obtains or attempts to obtain a more favorable workers
compensation insurance premium rate than that to which the person is entitled, who
prevents, reduces, avoids or attempts to prevent, reduce or avoid the payment of any
compensation under the workers compensation act, or who fails to communicate a
settlement offer or similar information to a claimant under the workers compensation act,
by, in any such case knowingly or intentionally: (1) Making a false or misleading statement;
(2) misrepresenting or concealing a material fact; (3) fabricating, concealing or destroying
a document; or (4) conspiring with another person or persons to commit the acts described
in clause (1), (2) or (3) of this subsection shall be guilty of a level 9, nonperson felony.

      (e) Any person who has received any amount of money as a benefit or other payment
under the workers compensation act as a result of a violation of subsection (a) or (c) and
any person who has otherwise benefited monetarily as a result of a violation of subsection
(a) or (c) shall be liable to repay an amount equal to the amount so received by such person
or the amount by which such person has benefited monetarily, with interest thereon. Any
such amount, plus any accrued interest thereon, shall bear interest at the current rate of
interest prescribed by law for judgments under subsection (e)(1) of K.S.A. 16-204 and
amendments thereto per month or fraction of a month until repayment of such amount,
plus any accrued interest thereon. The interest shall accrue from the date of overpayment
or erroneous payment of any such amount or the date such person benefited monetarily.

      (f) Any person aggrieved by a violation of subsection (a), (b), (c) or (d) shall have a
cause of action against any other person to recover any amounts of money erroneously paid
as benefits or any other amounts of money paid under the workers compensation act, and
to seek relief for other monetary damages, for which liability has accrued under this section
against such other person. Relief under this subsection is to be predicated upon exhaustion
of administrative remedies available in K.S.A. 44-5,120 and amendments thereto.

      (g) Nothing in this section shall prohibit an employer from exercising a right to
reimbursement under K.S.A. 44-534a, 44-556 or 44-569a and amendments thereto.

      (h) Prosecution for any crime under this section shall be commenced within five years
after its discovery, which shall not include any time period set forth in subsection (8) of
K.S.A. 1998 Supp. 21-3106 and amendments thereto.'';

      And by renumbering the remaining sections accordingly;

      Also on page 21, in line 30, by striking ``and'' where it appears for the first time and
inserting a comma; also in line 30, after ``44-557'', by inserting ``and 44-5,104''; in line 31,
by striking ``and'' and inserting a comma; in line 32, before ``are'', by inserting ``, 44-5,122
and 44-5,125'';

      In the title, in line 10, by striking ``and'' and inserting a comma; in line 11, after ``557'',
by inserting ``and 44-5,104''; also in line 11, by striking ``and'' where it appears for the second
time and inserting a comma; in line 12, after ``5,120'', by inserting ``, 44-5,122 and 44-5,125'';
and the bill be passed as amended.

 Committee on Education recommends SB 129 be amended on page 6, in line 36, after
``children'', by inserting ``, at least one of whom shall be the parent of a gifted child'';

      On page 18, in line 35, after ``notice'', by inserting ``in accordance with section 19, and
amendments thereto,''; in line 37, by striking all after ``child''; in line 38, by striking ``tion
(c),'';

      On page 26, in line 42, before ``school'', by inserting ``Atchison juvenile correctional
facility, the Beloit juvenile correctional facility, the Larned juvenile correctional facility, or
the Topeka correctional facility and a''; also in line 42, by striking ``with a state institution'';
and the bill be passed as amended.

 Committee on Federal and State Affairs recommends SB 238 be amended on page 1,
in line 27, by striking ``warden'' and inserting ``secretary of corrections, warden''; in line 29,
by striking ``the warden's''; in line 30, by striking ``or administrator's custody'' and inserting
``the custody of such official''; in line 31, by striking ``warden'' and inserting ``secretary of
corrections, warden''; in line 32, by striking all after ``autopsy''; in line 33, by striking all
before ``shall'' and inserting ``pursuant to this subsection''; in line 34, by striking ``warden or
administrator'' and inserting ``correctional facility, jail or other facility where the death
occurred''; in line 35, following the period, by inserting ``For the purposes of this subsection,
custody does not include general supervision of a person on probation, parole, postrelease
supervision or constraint incidental to release on bail.''; and the bill be passed as amended.

 Committee on Judiciary recommends SB 81 be passed and, because the committee is
of the opinion that the bill is of a noncontroversial nature, be placed on the consent calendar.

 Also SB 93 be amended on page 2, in line 2, by striking ``statute book'' and inserting
``Kansas register''; and the bill be passed as amended.

 SB 98 be amended on page 3, in line 37, by striking all after the period; by striking all
in lines 38 through 41; in line 42, by striking ``either'' and inserting ``this''; in line 43, after
the period, by inserting ``When a new felony is committed while the offender is on release
for a felony pursuant to the provisions of article 28 of chapter 22 of the Kansas Statutes
Annotated, a new sentence may be imposed pursuant to the consecutive sentencing
requirements of K.S.A. 21-4608 and amendments thereto, and the court may sentence the
offender to imprisonment for the new conviction, even when the new crime of conviction
otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for
the new crime does not constitute a departure.''; and the bill be passed as amended.

REPORT ON ENROLLED BILLS
 SR 1816, 1817, 1818 reported correctly enrolled, properly signed and presented to the
Secretary of the Senate on February 16, 1999.

COMMITTEE OF THE WHOLE
 On motion of Senator Emert, the Senate resolved itself into Committee of the Whole for
consideration of bills on the calendar under the heading of General Orders with Senator
Harrington in the chair.

 On motion of Senator Harrington the following report was adopted:

   Recommended that SB 95, 123, 137, 149 be passed.

 SB 60, 65, 124, 145, 171 be amended by adoption of the committee amendments, and
the bills be passed as amended.

 A motion to pass over SB 44 failed, and the Committee recommended SB 44 be passed.

 SB 45 be amended by motion of Senator Gooch on page 1, in line 38, after ``credit'' by
inserting ``for tax year 1999, and all such years thereafter, or any carryover amount accruing
from tax years 1997 or 1998,''; in line 39, by striking ``may''; by striking all in lines 40 through
43;

      On page 2, in line 1, by striking all before the period and inserting ``shall be refunded to
the taxpayer'', and print as indicated, and the bill be passed as amended.

 SB 152 be amended by adoption of the committee amendments, and further amended
by motion of Senator Brownlee on page 8, in line 7, by striking ``renal'' and inserting ``rental'';
in line 9, before the period, by inserting ``license'', and the bill be passed as further amended.

 SB 252 be amended by adoption of the committee amendments and the bill be passed
as amended.

 The following amendment offered by Senator Huelskamp to SB 252 was rejected:

   On page 31, after line 14, by inserting a new section to read as follows:

      ``New Sec.  53. In the event that the mill levy rate authorized by the provisions of K.S.A.
1998 Supp. 72-6431, and amendments thereto, is lowered for any taxable year, in such year
no city or county shall increase its mill levy without an election thereon called, noticed and
conducted in the same manner as prescribed for elections under the mail ballot election act
and such increase receiving the approval of the electors voting in such election.'';

      By renumbering existing sections accordingly.

 The amendment was rejected.

 SB 72 be passed over and retain a place on the calendar.

CORRECTION OF THE JOURNAL
 Correct the Journal of the Senate for February 15, 1999, page 142, following Introduction
of House Bills and Concurrent Resolutions to show the Committee on Federal and State
Affairs recommending SB 101, 174 be not passed.

   On motion of Senator Emert the Senate adjourned until 2:30 p.m., Wednesday, February
17, 1999.

HELEN A. MORELAND, Journal Clerk.

PAT SAVILLE, Secretary of Senate.