12
AN ACT making and concerning
appropriations for the fiscal year ending
13 June 30,
1998, for the department of health and environment;
au-
14 thorizing
certain transfers and imposing certain restrictions and
limi-
15 tations,
and directing or authorizing certain receipts and
disburse-
16 ments and
acts incidental to the foregoingconcerning
abortions;
17 amending K.S.A.
1997 Supp. 65-445, 65-2837, 65-6703 and 65-
18 6712 and repealing
the existing sections.
19
20 Be it enacted by the Legislature of the
State of Kansas:
21
Section 1. (a) For the fiscal year ending June
30, 1998, appropria-
22 tions are hereby made,
restrictions and limitations are hereby imposed,
23 and transfers, fees, receipts,
disbursements and acts incidental to the fore-
24 going are hereby directed or
authorized as provided in this act.
25
Sec. 2.
26
DEPARTMENT OF HEALTH AND
ENVIRONMENT
27 (a) There is
appropriated for the above agency from the state
general
28 fund the
following:
29
AIDS medication
shortfall
$235,000
30
[Year 2000 computer
repair
$500,000]
31 (b) There is
appropriated for the above agency from the
following
32 special revenue fund or funds
all moneys now or hereafter lawfully cred-
33 ited to and available in such
fund or funds, except that expenditures other
34 than refunds authorized by law
shall not exceed the following:
35
Child care facilities
licensure fund
No
limit
36
Sec. 3. This act shall take effect and be in force from
and after its
37 publication in the Kansas
register.
38
Section 1. K.S.A. 1997
Supp. 65-6703 is hereby amended to
39 read as follows: 65-6703. (a) No person
shall perform or induce an
40 abortion when the fetus is viable unless
such person is a physician
41 and has a documented referral from
another physician notlegally
42 orfinanciallyassociatedaffiliatedwith the physician
performing or
43 inducing the abortion and both
physicians determine that: (1) The
SB 545--Am. by H
2
1 abortion is necessary to preserve
the life of the pregnant woman;
2 or (2)the fetus is
affected by a severe or life-threatening deformity or
3 abnormalitya
continuation of the pregnancy will cause a substantial and
4 irreversible impairment of a major
bodily function of the pregnant
5 woman.
6 (b) (1) Except in the case of a medical emergency,
prior to performing
7 an abortion upon a woman, the
physician shall determine the gestational
8 age of the fetus by applying the
factors usually applied by a physician
9 engaged in obstetrical, perinatal
or neonatal practice under the same or
10 similar circumstances. If the physician
determines the gestational age is
11 less than 20 weeks, the physician shall
document as part of the medical
12 records of the woman the basis for the
determination.
13 (2) If the physician
determines the gestational age of the fetus is 20
14 or more weeks, prior to performing an
abortion upon the woman the
15 physician shall determine if the unborn
child is viable by using and ex-
16 ercising that degree of care, skill and
proficiency commonly exercised by
17 the ordinary skillful, careful and
prudent physician engaged in obstetrical,
18 perinatal or neonatal practice under the
same or similar conditions. In
19 making this determination of viability,
the physician shall perform or
20 cause to be performed such medical
examinations and tests as are neces-
21 sary to make a finding of the
gestational age, weight and lung maturity
22 of the unborn child and shall enter such
findings and determinations of
23 viability in the medical record of the
woman.
24 (3) If the physician
determines the gestational age of a fetus is 20 or
25 more weeks, determines that the fetus is
not viable and performs an abor-
26 tion on the mother, the physician shall
report such determinations and
27 the reasons for such determinations in
writing to the medical care facility
28 in which the abortion is performed for
inclusion in the report of the med-
29 ical care facility to the secretary of
health and environment under K.S.A.
30 65-445 and amendments thereto or if the
abortion is not performed in a
31 medical care facility, the physician
shall report such determinations and
32 the reasons for such determinations in
writing to the secretary of health
33 and environment as part of the written
report made by the physician to
34 the secretary of health and environment
under K.S.A. 65-445 and amend-
35 ments thereto.
36 (4) If the physician
who is to perform the abortion determines the
37 gestational age of a fetus is 20 or more
weeks, determines that the fetus
38 is viable, both physicians under
subsection (a) determine in accordance
39 with the provisions of subsection (a)
that an abortion is necessary to pre-
40 serve the life of the pregnant woman or
that a continuation of the preg-
41 nancy will cause a substantial and
irreversible impairment of a major
42 bodily function of the pregnant woman
and the physician performs an
43 abortion on the woman, the physician who
performs the abortion shall
SB 545--Am. by H
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1 report such determinations, the
reasons for such determinations and the
2 basis for the determination that
an abortion is necessary to preserve the
3 life of the pregnant woman or that
a continuation of the pregnancy will
4 cause a substantial and
irreversible impairment of a major bodily function
5 of the pregnant woman in writing
to the medical care facility in which
6 the abortion is performed for
inclusion in the report of the medical care
7 facility to the secretary of
health and environment under K.S.A. 65-445
8 and amendments thereto or if the
abortion is not performed in a medical
9 care facility, the physician who
performs the abortion shall report such
10 determinations, the reasons for such
determinations and the basis for the
11 determination that an abortion is
necessary to preserve the life of the
12 pregnant woman or that a continuation of
the pregnancy will cause a
13 substantial and irreversible impairment
of a major bodily function of the
14 pregnant woman in writing to the
secretary of health and environment
15 as part of the written report made by
the physician to the secretary of
16 health and environment under K.S.A.
65-445 and amendments thereto.
17 (5) The physician
shall retain the medical records required to be kept
18 under paragraphs (1) and (2) of this
subsection (b) for not less than three
19 years and shall retain a copy of the
written reports required under par-
20 agraphs (3) and (4) of this subsection
(b) for not less than five years.
21 (c) A woman upon whom
an abortion is performed shall not be pros-
22 ecuted under this section for a
conspiracy to violate this section pursuant
23 to K.S.A. 21-3302, and amendments
thereto.
24 (d) Nothing in this
section shall be construed to create a right to an
25 abortion. Notwithstanding any provision
of this section, a person shall
26 not perform an abortion that is
prohibited by law.
27 (e) As used in this
section, ``viable'' means that stage of fetal devel-
28 opment when, in the judgment of the
physician based upon the particular
29 facts of the case before the physician
and in light of the most advanced
30 medical technology and information
available to the physician, there is a
31 reasonable likelihood of sustained
survival of the unborn child outside the
32 body of the mother, with or without
artificial support.
33 (f) If any provision
of this section is held to be invalid or unconsti-
34 tutional, it shall be conclusively
presumed that the legislature would have
35 enacted the remainder of this section
without such invalid or unconsti-
36 tutional provision.
37 (b) Violation of this section is a class A person
misdemeanor.
38 (g) Upon
conviction of a violation of this section, a person shall
be
39 guilty of a severity level 10, person
felony.
40 New Sec. 2. (a)
No person shall perform or induce a partial
41 birth abortion unless such person is a
physician and has a docu-
42 mented referral from another physician
not legally or financially
43 affiliated with the physician performing
or inducing the abortion
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1 and both physicians determine that
the abortion is necessary to
2 preserve the life of the pregnant
woman.
3 (b) As used in
this section, partial birth abortion means an
4 abortion in which the fetus is
partially delivered vaginally and then
5 intentionally killed before
completing the delivery.
6 (c) If a
physician determines in accordance with the provisions
7 of subsection (a) that an abortion
is necessary to preserve the life
8 of the pregnant woman and performs
an abortion on the woman,
9 the physician shall report such
determination and the reasons for
10 such determination in writing to the
medical care facility in which
11 the abortion is performed for inclusion
in the report of the medical
12 care facility to the secretary of health
and environment under
13 K.S.A. 65-445 and amendments thereto or
if the abortion is not
14 performed in a medical care facility,
the physician shall report the
15 reasons for such determination in
writing to the secretary of health
16 and environment as part of the written
report made by the phy-
17 sician to the secretary of health and
environment under K.S.A. 65-
18 445 and amendments thereto. The
physician shall retain a copy of
19 the written reports required under this
subsection for not less than
20 five years.
21 (d) A woman upon whom
an abortion is performed shall not be
22 prosecuted under this section for a
conspiracy to violate this sec-
23 tion pursuant to K.S.A. 21-3302, and
amendments thereto.
24 (e) Nothing in this
section shall be construed to create a right
25 to an abortion. Notwithstanding any
provision of this section, a
26 person shall not perform an abortion
that is prohibited by law.
27 (f) Upon a first
conviction of a violation of this section, a person
28 shall be guilty of a class A person
misdemeanor. Upon a second or
29 subsequent conviction of a violation of
this section, a person shall
30 be guilty of a severity level 10, person
felony.
31 Sec. 3. K.S.A.
1997 Supp. 65-6712 is hereby amended to read
32 as follows: 65-6712. Any physician who
intentionally, knowingly or
33 recklessly fails to provide informed
consent pursuant to the
34 woman's-right-to-know act,
whether or not an abortion is actually per-
35 formed on the woman,is guilty of
unprofessional conduct as defined
36 in K.S.A. 65-2837 and amendments
thereto.
37 Sec. 4. K.S.A.
1997 Supp. 65-445 is hereby amended to read
38 as follows: 65-445. (a) Every medical
care facility shall keep written
39 records of all pregnancies which are
lawfully terminated within
40 such medical care facility and shall
annually submit a written re-
41 port thereon to the secretary of health
and environment in the
42 manner and form prescribed by the
secretary. Every person li-
43 censed to practice medicine and surgery
shall keep a record of all
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1 pregnancies which are lawfully
terminated by such person in a
2 location other than a medical care
facility and shall annually sub-
3 mit a written report thereon to
the secretary of health and envi-
4 ronment in the manner and form
prescribed by the secretary.
5 (b) Each report
required by this section shall include the num-
6 ber of pregnancies terminated
during the period of time covered
7 by the report, the type of medical
facility in which the pregnancy
8 was terminated, information
required to be reported under K.S.A. 65-
9 6703 and amendments thereto if
applicable to the pregnancy terminated,
10 information required to be reported
under section 2 and amendments
11 thereto if applicable to the pregnancy
terminatedand such other infor-
12 mation as may be required by the
secretary of health and environ-
13 ment, but the report shall not include
the names of the persons
14 whose pregnancies were so
terminated.
15 (c) Information
obtained by the secretary of health and envi-
16 ronment under this section shall be
confidential and shall not be
17 disclosed in a manner that would reveal
the identity of any person
18 licensed to practice medicine and
surgery who submits a report to
19 the secretary under this section or the
identity of any medical care
20 facility which submits a report to the
secretary under this section.
21 Information obtained by the secretary
under this section may be
22 used only for statistical purposes,
except that no information may
23 be released which would identify any
county or other area of this
24 state in which the termination of the
pregnancy occurred. A vio-
25 lation of this subsection (c) is a class
A nonperson misdemeanor.
26 (d) In addition to
such criminal penalty under subsection (c),
27 any person licensed to practice medicine
and surgery or medical
28 care facility whose identity is revealed
in violation of this section
29 may bring a civil action against the
responsible person or persons
30 for any damages to the person licensed
to practice medicine and
31 surgery or medical care facility caused
by such violation.
32 (e) For the purpose
of maintaining confidentiality as provided
33 by subsections (c) and (d), reports of
terminations of pregnancies
34 required by this section shall identify
the person or facility sub-
35 mitting such reports only by
confidential code number assigned
36 by the secretary of health and
environment to such person or fa-
37 cility and the department of health and
environment shall maintain
38 such reports only by such
number.
39 Sec. 5. K.S.A.
1997 Supp. 65-2837 is hereby amended to read
40 as follows: 65-2837. As used in K.S.A.
65-2836, and amendments
41 thereto, and in this section:
42 (a) ``Professional
incompetency'' means:
43 (1) One or more
instances involving failure to adhere to the
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1 applicable standard of care to a
degree which constitutes gross
2 negligence, as determined by the
board.
3 (2) Repeated
instances involving failure to adhere to the ap-
4 plicable standard of care to a
degree which constitutes ordinary
5 negligence, as determined by the
board.
6 (3) A pattern
of practice or other behavior which demonstrates
7 a manifest incapacity or
incompetence to practice medicine.
8
(b) ``Unprofessional conduct'' means:
9
(1) Solicitation of professional patronage through the use
of
10 fraudulent or false advertisements, or
profiting by the acts of those
11 representing themselves to be agents of
the licensee.
12 (2) Representing to a
patient that a manifestly incurable dis-
13 ease, condition or injury can be
permanently cured.
14 (3) Assisting in the
care or treatment of a patient without the
15 consent of the patient, the attending
physician or the patient's le-
16 gal representatives.
17 (4) The use of any
letters, words, or terms, as an affix, on sta-
18 tionery, in advertisements, or otherwise
indicating that such per-
19 son is entitled to practice a branch of
the healing arts for which
20 such person is not licensed.
21 (5) Performing,
procuring or aiding and abetting in the per-
22 formance or procurement of a criminal
abortion.
23 (6) Willful betrayal
of confidential information.
24 (7) Advertising
professional superiority or the performance of
25 professional services in a superior
manner.
26 (8) Advertising to
guarantee any professional service or to per-
27 form any operation painlessly.
28 (9) Participating in
any action as a staff member of a medical
29 care facility which is designed to
exclude or which results in the
30 exclusion of any person licensed to
practice medicine and surgery
31 from the medical staff of a nonprofit
medical care facility licensed
32 in this state because of the branch of
the healing arts practiced by
33 such person or without just
cause.
34 (10) Failure to
effectuate the declaration of a qualified patient
35 as provided in subsection (a) of K.S.A.
65-28,107, and amendments
36 thereto.
37 (11) Prescribing,
ordering, dispensing, administering, selling,
38 supplying or giving any amphetamines or
sympathomimetic
39 amines, except as authorized by K.S.A.
65-2837a, and amendments
40 thereto.
41 (12) Conduct likely
to deceive, defraud or harm the public.
42 (13) Making a false
or misleading statement regarding the li-
43 censee's skill or the efficacy or value
of the drug, treatment or
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1 remedy prescribed by the licensee
or at the licensee's direction in
2 the treatment of any disease or
other condition of the body or
3 mind.
4 (14) Aiding or
abetting the practice of the healing arts by an
5 unlicensed, incompetent or
impaired person.
6 (15) Allowing
another person or organization to use the li-
7 censee's license to practice the
healing arts.
8 (16) Commission
of any act of sexual abuse, misconduct or ex-
9 ploitation related to the
licensee's professional practice.
10 (17) The use of any
false, fraudulent or deceptive statement in
11 any document connected with the practice
of the healing arts in-
12 cluding the intentional falsifying or
fraudulent altering of a patient
13 or medical care facility record.
14 (18) Obtaining any
fee by fraud, deceit or misrepresentation.
15 (19) Directly or
indirectly giving or receiving any fee, commis-
16 sion, rebate or other compensation for
professional services not
17 actually and personally rendered, other
than through the legal
18 functioning of lawful professional
partnerships, corporations or as-
19 sociations.
20 (20) Failure to
transfer patient records to another licensee
21 when requested to do so by the subject
patient or by such patient's
22 legally designated
representative.
23 (21) Performing
unnecessary tests, examinations or services
24 which have no legitimate medical
purpose.
25 (22) Charging an
excessive fee for services rendered.
26 (23) Prescribing,
dispensing, administering, distributing a pre-
27 scription drug or substance, including a
controlled substance, in
28 an excessive, improper or inappropriate
manner or quantity or not
29 in the course of the licensee's
professional practice.
30 (24) Repeated failure
to practice healing arts with that level of
31 care, skill and treatment which is
recognized by a reasonably pru-
32 dent similar practitioner as being
acceptable under similar con-
33 ditions and circumstances.
34 (25) Failure to keep
written medical records which accurately
35 describe the services rendered to the
patient, including patient
36 histories, pertinent findings,
examination results and test results.
37 (26) Delegating
professional responsibilities to a person when
38 the licensee knows or has reason to know
that such person is not
39 qualified by training, experience or
licensure to perform them.
40 (27) Using
experimental forms of therapy without proper in-
41 formed patient consent, without
conforming to generally accepted
42 criteria or standard protocols, without
keeping detailed legible
43 records or without having periodic
analysis of the study and results
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1 reviewed by a committee or
peers.
2
(28) Prescribing, dispensing, administering or distributing
an
3 anabolic steroid or human growth
hormone for other than a valid
4 medical purpose. Bodybuilding,
muscle enhancement or increas-
5 ing muscle bulk or strength
through the use of an anabolic steroid
6 or human growth hormone by a
person who is in good health is
7 not a valid medical
purpose.
8 (29) Referring
a patient to a health care entity for services if
9 the licensee has a significant
investment interest in the health care
10 entity, unless the licensee informs the
patient in writing of such
11 significant investment interest and that
the patient may obtain
12 such services elsewhere.
13 (30) Violating
K.S.A. 65-6703 and amendments thereto or section 2
14 and amendments thereto.
15 (c) ``False
advertisement'' means any advertisement which is
16 false, misleading or deceptive in a
material respect. In determin-
17 ing whether any advertisement is
misleading, there shall be taken
18 into account not only representations
made or suggested by state-
19 ment, word, design, device, sound or any
combination thereof, but
20 also the extent to which the
advertisement fails to reveal facts ma-
21 terial in the light of such
representations made.
22 (d) ``Advertisement''
means all representations disseminated in
23 any manner or by any means, for the
purpose of inducing, or which
24 are likely to induce, directly or
indirectly, the purchase of profes-
25 sional services.
26 (e) ``Licensee'' for
purposes of this section and K.S.A. 65-2836,
27 and amendments thereto, shall mean all
persons issued a license,
28 permit or special permit pursuant to
article 28 of chapter 65 of the
29 Kansas Statutes Annotated.
30 (f) ``License'' for
purposes of this section and K.S.A. 65-2836,
31 and amendments thereto, shall mean any
license, permit or special
32 permit granted under article 28 of
chapter 65 of the Kansas Stat-
33 utes Annotated.
34 (g) ``Health care
entity'' means any corporation, firm, partner-
35 ship or other business entity which
provides services for diagnosis
36 or treatment of human health conditions
and which is owned sep-
37 arately from a referring licensee's
principle practice.
38 (h) ``Significant
investment interest'' means ownership of at
39 least 10% of the value of the firm,
partnership or other business
40 entity which owns or leases the health
care entity, or ownership of
41 at least 10% of the shares of stock of
the corporation which owns
42 or leases the health care
entity.
43 Sec. 6. K.S.A.
1997 Supp. 65-445, 65-2837, 65-6703 and 65-
SB 545--Am. by H
9
1 6712 are hereby repealed.
2
Sec. 7. This act shall take effect and be in force from
and after
3 its publication in the Kansas
register.
4