Session of 1999
         
HOUSE BILL No. 2235
         
By Committee on Health and Human Services
          
2-3
          
  9             AN  ACT concerning physical therapy; relating to licensure; amending
10             K.S.A. 40-2,111, 60-513d, 60-2609, 65-2901, 65-2904, 65-2905, 65-
11             2907, 65-2908, 65-2909, 65-2910, 65-2912, 65-2914 and 65-2918 and
12             K.S.A. 1998 Supp. 7-121b, 17-2707, 21-3721, 40-3401, 40-3403, 65-
13             1902, 65-2891, 65-2906, 65-2913 and 65-5912 and repealing the exist-
14             ing sections.
15      
16       Be it enacted by the Legislature of the State of Kansas:
17             Section  1. K.S.A. 1998 Supp. 7-121b is hereby amended to read as
18       follows: 7-121b. (a) Subject to subsection (b) of K.S.A. 40-3411 and
19       amendments thereto, whenever a civil action is commenced by filing a
20       petition or whenever a pleading states a claim in a district court for dam-
21       ages for personal injuries or death arising out of the rendering of or the
22       failure to render professional services by any health care provider, com-
23       pensation for reasonable attorney fees to be paid by each litigant in the
24       action shall be approved by the judge after an evidentiary hearing and
25       prior to final disposition of the case by the district court. Compensation
26       for reasonable attorney fees for services performed in an appeal of a
27       judgment in any such action to the court of appeals shall be approved
28       after an evidentiary hearing by the chief judge or by the presiding judge
29       of the panel hearing the case. Compensation for reasonable attorney fees
30       for services performed in an appeal of a judgment in any such action to
31       the supreme court shall be approved after an evidentiary hearing by the
32       departmental justice for the department in which the appeal originated.
33       In determining the reasonableness of such compensation, the judge or
34       justice shall consider the following:
35             (1) The time and labor required, the novelty and difficulty of the
36       questions involved and the skill requisite to perform the legal service
37       properly.
38             (2) The likelihood, if apparent to the client, that the acceptance of
39       the particular employment will preclude other employment by the
40       attorney.
41             (3) The fee customarily charged in the locality for similar legal
42       services.
43             (4) The amount involved and the results obtained.

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  1             (5) The time limitations imposed by the client or by the
  2       circumstances.
  3             (6) The nature and length of the professional relationship with the
  4       client.
  5             (7) The experience, reputation and ability of the attorney or attorneys
  6       performing the services.
  7             (8) Whether the fee is fixed or contingent.
  8             (b) As used in this section:
  9             (1) "Health care provider" means a person licensed to practice any
10       branch of the healing arts, a person who holds a temporary permit to
11       practice any branch of the healing arts, a person engaged in a postgrad-
12       uate training program approved by the state board of healing arts, a li-
13       censed medical care facility, a health maintenance organization, a licensed
14       dentist, a licensed professional nurse, a licensed practical nurse, a licensed
15       optometrist, a licensed podiatrist, a licensed pharmacist, a professional
16       corporation organized pursuant to the professional corporation law of
17       Kansas by persons who are authorized by such law to form such a cor-
18       poration and who are health care providers as defined by this subsection,
19       a registered licensed physical therapist or an officer, employee or agent
20       thereof acting in the course and scope of such person's employment or
21       agency; and
22             (2) "professional services" means those services which require licen-
23       sure, registration or certification by agencies of the state for the perform-
24       ance thereof.
25             Sec.  2. K.S.A. 1998 Supp. 17-2707 is hereby amended to read as
26       follows: 17-2707. As used in this act, unless the context clearly indicates
27       that a different meaning is intended, the following words mean:
28             (a) "Professional corporation," a corporation organized under this act.
29             (b) "Professional service," the type of personal service rendered by a
30       person duly licensed by this state as a member of any of the following
31       professions, each paragraph constituting one type:
32             (1) A certified public accountant;
33             (2) An architect;
34             (3) An attorney-at-law;
35             (4) A chiropractor;
36             (5) A dentist;
37             (6) An engineer;
38             (7) An optometrist;
39             (8) An osteopathic physician or surgeon;
40             (9) A physician, surgeon or doctor of medicine;
41             (10) A veterinarian;
42             (11) A podiatrist;
43             (12) A pharmacist;

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  1             (13) A land surveyor;
  2             (14) A licensed psychologist;
  3             (15) A specialist in clinical social work;
  4             (16) A registered licensed physical therapist;
  5             (17) A landscape architect;
  6             (18) A registered professional nurse;
  7             (19) A real estate broker or salesperson.
  8             (c) "Regulating board," the board or state agency which is charged
  9       with the licensing and regulation of the practice of the profession which
10       the professional corporation is organized to render.
11             (d) "Qualified person":
12             (1) Any natural person licensed to practice the same type of profes-
13       sion which any professional corporation is authorized to practice;
14             (2) the trustee of a trust which is a qualified trust under subsection
15       (a) of section 401 of the internal revenue code of 1954, as amended, or
16       of a contribution plan which is a qualified employee stock ownership plan
17       under subsection (a) of section 409A of the internal revenue code of 1954,
18       as amended; or
19             (3) the trustee of a revocable living trust established by a natural
20       person who is licensed to practice the type of profession which any pro-
21       fessional corporation is authorized to practice, if the terms of such trust
22       provide that such natural person is the principal beneficiary and sole
23       trustee of such trust and such trust does not continue to hold title to
24       professional corporation stock following such natural person's death for
25       more than a reasonable period of time necessary to dispose of such stock.
26             Sec.  3. K.S.A. 1998 Supp. 21-3721 is hereby amended to read as
27       follows: 21-3721. (a) Criminal trespass is:
28             (1) Entering or remaining upon or in any land, nonnavigable body of
29       water, structure, vehicle, aircraft or watercraft other than railroad prop-
30       erty as defined in K.S.A. 1998 Supp. 21-3761 and amendments thereto
31       by a person who knows such person is not authorized or privileged to do
32       so, and:
33             (A) Such person enters or remains therein in defiance of an order
34       not to enter or to leave such premises or property personally communi-
35       cated to such person by the owner thereof or other authorized person;
36       or
37             (B) such premises or property are posted in a manner reasonably
38       likely to come to the attention of intruders, or are locked or fenced or
39       otherwise enclosed, or shut or secured against passage or entry; or
40             (C) such person enters or remains therein in defiance of a restraining
41       order issued pursuant to K.S.A. 60-1607, 60-3105, 60-3106 or 60-3107 or
42       K.S.A. 38-1542, 38-1543 or 38-1563, and amendments thereto, and the
43       restraining order has been personally served upon the person so re-

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  1       strained; or
  2             (2) entering or remaining upon or in any public or private land or
  3       structure in a manner that interferes with access to or from any health
  4       care facility by a person who knows such person is not authorized or
  5       privileged to do so and such person enters or remains thereon or therein
  6       in defiance of an order not to enter or to leave such land or structure
  7       personally communicated to such person by the owner of the health care
  8       facility or other authorized person.
  9             (b) As used in this section:
10             (1) "Health care facility" means any licensed medical care facility,
11       certificated health maintenance organization, licensed mental health cen-
12       ter, or mental health clinic, licensed psychiatric hospital or other facility
13       or office where services of a health care provider are provided directly to
14       patients.
15             (2) "Health care provider" means any person: (A) Licensed to prac-
16       tice a branch of the healing arts; (B) licensed to practice psychology; (C)
17       licensed to practice professional or practical nursing; (D) licensed to prac-
18       tice dentistry; (E) licensed to practice optometry; (F) licensed to practice
19       pharmacy; (G) registered to practice podiatry; (H) licensed as a social
20       worker; or (I) registered licensed to practice physical therapy.
21             (c)  (1) Criminal trespass is a class B nonperson misdemeanor.
22             (2) Upon a conviction of a violation of subsection (a)(1)(C), a person
23       shall be sentenced to not less than 48 consecutive hours of imprisonment
24       which must be served either before or as a condition of any grant of
25       probation or suspension, reduction of sentence or parole.
26             Sec.  4. K.S.A. 40-2,111 is hereby amended to read as follows: 40-
27       2,111. As used in K.S.A. 40-2,111 through 40-2,113, and amendments
28       thereto: (a) "Adverse underwriting decision" means: Any of the following
29       actions with respect to insurance transactions involving insurance cover-
30       age which is individually underwritten:
31             (1) A declination of insurance coverage;
32             (2) a termination of insurance coverage;
33             (3) an offer to insure at higher than standard rates, with respect to
34       life, health or disability insurance coverage; or
35             (4) the charging of a higher rate on the basis of information which
36       differs from that which the applicant or policyholder furnished, with re-
37       spect to property or casualty insurance coverage.
38             (b) "Declination of insurance coverage" means a denial, in whole or
39       in part, by an insurance company or agent of requested insurance
40       coverage.
41             (c) "Health care institution" means any medical care facility, adult
42       care home, drug abuse and alcoholic treatment facility, home-health
43       agency certified for federal reimbursement, mental health center or men-

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  1       tal health clinic licensed by the secretary of social and rehabilitation serv-
  2       ices, kidney disease treatment center, county, city-county or multicounty
  3       health departments and health-maintenance organization.
  4             (d) "Health care provider" means any person licensed to practice any
  5       branch of the healing arts, licensed dentist, licensed professional nurse,
  6       licensed practical nurse, advanced registered nurse practitioner, licensed
  7       optometrist, registered licensed physical therapist, licensed social worker,
  8       registered physicians' assistant, licensed podiatrist or licensed
  9       psychologist.
10             (e) "Institutional source" means any natural person, corporation, as-
11       sociation, partnership or governmental or other legal entity that provides
12       information about an individual to an agent or insurance company, other
13       than:
14             (1) An agent;
15             (2) the individual who is the subject of the information; or
16             (3) a natural person acting in a personal capacity rather than a busi-
17       ness or professional capacity.
18             (f) "Insurance transaction" means any transaction involving insur-
19       ance, but not including group insurance coverage, primarily for personal,
20       family or household needs rather than business or professional needs.
21             (g) "Medical-record information" means personal information which:
22             (1) Relates to an individual's physical or mental condition, medical
23       history or medical treatment; and
24             (2) is obtained from a health care provider or health care institution,
25       from the individual, or from the individual's spouse, parent or legal
26       guardian.
27             (h) "Termination of insurance coverage" or "termination of an insur-
28       ance policy" means either a cancellation, nonrenewal or lapse of an in-
29       surance policy, in whole or in part, for any reason other than:
30             (1) The failure to pay a premium as required by the policy ; or
31             (2) at the request or direction of the insured.
32             Sec.  5. K.S.A. 1998 Supp. 40-3401 is hereby amended to read as
33       follows: 40-3401. As used in this act the following terms shall have the
34       meanings respectively ascribed to them herein.
35             (a) "Applicant" means any health care provider.
36             (b) "Basic coverage" means a policy of professional liability insurance
37       required to be maintained by each health care provider pursuant to the
38       provisions of subsection (a) or (b) of K.S.A. 40-3402 and amendments
39       thereto.
40             (c) "Commissioner" means the commissioner of insurance.
41             (d) "Fiscal year" means the year commencing on the effective date
42       of this act and each year, commencing on the first day of that month,
43       thereafter.

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  1             (e) "Fund" means the health care stabilization fund established pur-
  2       suant to subsection (a) of K.S.A. 40-3403 and amendments thereto.
  3             (f) "Health care provider" means a person licensed to practice any
  4       branch of the healing arts by the state board of healing arts, a person who
  5       holds a temporary permit to practice any branch of the healing arts issued
  6       by the state board of healing arts, a person engaged in a postgraduate
  7       training program approved by the state board of healing arts, a medical
  8       care facility licensed by the department of health and environment, a
  9       health maintenance organization issued a certificate of authority by the
10       commissioner of insurance, a podiatrist licensed by the state board of
11       healing arts, an optometrist licensed by the board of examiners in optom-
12       etry, a pharmacist licensed by the state board of pharmacy, a licensed
13       professional nurse who is authorized to practice as a registered nurse
14       anesthetist, a licensed professional nurse who has been granted a tem-
15       porary authorization to practice nurse anesthesia under K.S.A. 65-1153
16       and amendments thereto, a professional corporation organized pursuant
17       to the professional corporation law of Kansas by persons who are author-
18       ized by such law to form such a corporation and who are health care
19       providers as defined by this subsection, a Kansas limited liability company
20       organized for the purpose of rendering professional services by its mem-
21       bers who are health care providers as defined by this subsection and who
22       are legally authorized to render the professional services for which the
23       limited liability company is organized, a partnership of persons who are
24       health care providers under this subsection, a Kansas not-for-profit cor-
25       poration organized for the purpose of rendering professional services by
26       persons who are health care providers as defined by this subsection, a
27       dentist certified by the state board of healing arts to administer anes-
28       thetics under K.S.A. 65-2899 and amendments thereto, a physical ther-
29       apist registered licensed by the state board of healing arts, a psychiatric
30       hospital licensed under K.S.A. 75-3307b and amendments thereto, or a
31       mental health center or mental health clinic licensed by the secretary of
32       social and rehabilitation services, except that health care provider does
33       not include (1) any state institution for the mentally retarded, (2) any
34       state psychiatric hospital, (3) any person holding an exempt license issued
35       by the state board of healing arts or, (4) any person holding a visiting
36       clinical professor license from the state board of healing arts or (5) any
37       person holding a license as a licensed respiratory therapist.
38             (g) "Inactive health care provider" means a person or other entity
39       who purchased basic coverage or qualified as a self-insurer on or subse-
40       quent to the effective date of this act but who, at the time a claim is made
41       for personal injury or death arising out of the rendering of or the failure
42       to render professional services by such health care provider, does not
43       have basic coverage or self-insurance in effect solely because such person

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  1       is no longer engaged in rendering professional service as a health care
  2       provider.
  3             (h) "Insurer" means any corporation, association, reciprocal
  4       exchange, inter-insurer and any other legal entity authorized to write bod-
  5       ily injury or property damage liability insurance in this state, including
  6       workers compensation and automobile liability insurance, pursuant to the
  7       provisions of the acts contained in article 9, 11, 12 or 16 of chapter 40 of
  8       Kansas Statutes Annotated.
  9             (i) "Plan" means the operating and administrative rules and proce-
10       dures developed by insurers and rating organizations or the commissioner
11       to make professional liability insurance available to health care providers.
12             (j) "Professional liability insurance" means insurance providing cov-
13       erage for legal liability arising out of the performance of professional
14       services rendered or which should have been rendered by a health care
15       provider.
16             (k) "Rating organization" means a corporation, an unincorporated as-
17       sociation, a partnership or an individual licensed pursuant to K.S.A. 40-
18       930 or 40-1114, or both, and amendments thereto, to make rates for
19       professional liability insurance.
20             (l) "Self-insurer" means a health care provider who qualifies as a self-
21       insurer pursuant to K.S.A. 40-3414 and amendments thereto.
22             (m) "Medical care facility" means the same when used in the health
23       care provider insurance availability act as the meaning ascribed to that
24       term in K.S.A. 65-425 and amendments thereto, except that as used in
25       the health care provider insurance availability act such term, as it relates
26       to insurance coverage under the health care provider insurance availa-
27       bility act, also includes any director, trustee, officer or administrator of a
28       medical care facility.
29             (n) "Mental health center" means a mental health center licensed by
30       the secretary of social and rehabilitation services under K.S.A. 75-3307b
31       and amendments thereto, except that as used in the health care provider
32       insurance availability act such term, as it relates to insurance coverage
33       under the health care provider insurance availability act, also includes any
34       director, trustee, officer or administrator of a mental health center.
35             (o) "Mental health clinic" means a mental health clinic licensed by
36       the secretary of social and rehabilitation services under K.S.A. 75-3307b
37       and amendments thereto, except that as used in the health care provider
38       insurance availability act such term, as it relates to insurance coverage
39       under the health care provider insurance availability act, also includes any
40       director, trustee, officer or administrator of a mental health clinic.
41             (p) "State institution for the mentally retarded" means Winfield state
42       hospital and training center, Parsons state hospital and training center
43       and the Kansas neurological institute.

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  1             (q) "State psychiatric hospital" means Larned state hospital, Osawa-
  2       tomie state hospital, Rainbow mental health facility and Topeka state
  3       hospital.
  4             (r) "Person engaged in residency training" means:
  5             (1) A person engaged in a postgraduate training program approved
  6       by the state board of healing arts who is employed by and is studying at
  7       the university of Kansas medical center only when such person is engaged
  8       in medical activities which do not include extracurricular, extra-institu-
  9       tional medical service for which such person receives extra compensation
10       and which have not been approved by the dean of the school of medicine
11       and the executive vice-chancellor of the university of Kansas medical cen-
12       ter. Persons engaged in residency training shall be considered resident
13       health care providers for purposes of K.S.A. 40-3401 et seq., and amend-
14       ments thereto; and
15             (2) a person engaged in a postgraduate training program approved by
16       the state board of healing arts who is employed by a nonprofit corporation
17       organized to administer the graduate medical education programs of com-
18       munity hospitals or medical care facilities affiliated with the university of
19       Kansas school of medicine or who is employed by an affiliate of the uni-
20       versity of Kansas school of medicine as defined in K.S.A. 76-367 and
21       amendments thereto only when such person is engaged in medical activ-
22       ities which do not include extracurricular, extra-institutional medical serv-
23       ice for which such person receives extra compensation and which have
24       not been approved by the chief operating officer of the nonprofit cor-
25       poration or the chief operating officer of the affiliate and the executive
26       vice-chancellor of the university of Kansas medical center.
27             (s) "Full-time physician faculty employed by the university of Kansas
28       medical center" means a person licensed to practice medicine and surgery
29       who holds a full-time appointment at the university of Kansas medical
30       center when such person is providing health care.
31             (t) "Sexual act" or "sexual activity" means that sexual conduct which
32       constitutes a criminal or tortious act under the laws of the state of Kansas.
33             Sec.  6. K.S.A. 1998 Supp. 40-3403 is hereby amended to read as
34       follows: 40-3403. (a) For the purpose of paying damages for personal
35       injury or death arising out of the rendering of or the failure to render
36       professional services by a health care provider, self-insurer or inactive
37       health care provider subsequent to the time that such health care provider
38       or self-insurer has qualified for coverage under the provisions of this act,
39       there is hereby established the health care stabilization fund. The fund
40       shall be held in trust in the state treasury and accounted for separately
41       from other state funds. The board of governors shall administer the fund
42       or contract for the administration of the fund with an insurance company
43       authorized to do business in this state.

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  1             (b)  (1) There is hereby created a board of governors which shall be
  2       composed of such members and shall have such powers, duties and func-
  3       tions as are prescribed by this act. The board of governors shall:
  4             (A) Administer the fund and exercise and perform other powers, du-
  5       ties and functions required of the board under the health care provider
  6       insurance availability act;
  7             (B) provide advice, information and testimony to the appropriate li-
  8       censing or disciplinary authority regarding the qualifications of a health
  9       care provider;
10             (C) prepare and publish, on or before October 1 of each year, a sum-
11       mary of the fund's activity during the preceding fiscal year, including but
12       not limited to the amount collected from surcharges, the highest and
13       lowest surcharges assessed, the amount paid from the fund, the number
14       of judgments paid from the fund, the number of settlements paid from
15       the fund and the amount in the fund at the end of the fiscal year; and
16             (D) have the authority to grant exemptions from the provisions of
17       subsection (m) of this section when a health care provider temporarily
18       leaves the state for the purpose of obtaining additional education or train-
19       ing or to participate in religious, humanitarian or government service
20       programs. Whenever a health care provider has previously left the state
21       for one of the reasons specified in this paragraph and returns to the state
22       and recommences practice, the board of governors may refund any
23       amount paid by the health care provider pursuant to subsection (m) of
24       this section if no claims have been filed against such health care provider
25       during the provider's temporary absence from the state.
26             (2) The board shall consist of 10 persons appointed by the commis-
27       sioner of insurance, as provided by this subsection (b) and as follows:
28             (A) Three members who are licensed to practice medicine and sur-
29       gery in Kansas who are doctors of medicine and who are on a list of
30       nominees submitted to the commissioner by the Kansas medical society;
31             (B) three members who are representatives of Kansas hospitals and
32       who are on a list of nominees submitted to the commissioner by the
33       Kansas hospital association;
34             (C) two members who are licensed to practice medicine and surgery
35       in Kansas who are doctors of osteopathic medicine and who are on a list
36       of nominees submitted to the commissioner by the Kansas association of
37       osteopathic medicine;
38             (D) one member who is licensed to practice chiropractic in Kansas
39       and who is on a list of nominees submitted to the commissioner by the
40       Kansas chiropractic association;
41             (E) one member who is a licensed professional nurse authorized to
42       practice as a registered nurse anesthetist who is on a list of nominees
43       submitted to the commissioner by the Kansas association of nurse

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  1       anesthetists.
  2             (3) When a vacancy occurs in the membership of the board of gov-
  3       ernors created by this act, the commissioner shall appoint a successor of
  4       like qualifications from a list of three nominees submitted to the com-
  5       missioner by the professional society or association prescribed by this
  6       section for the category of health care provider required for the vacant
  7       position on the board of governors. All appointments made shall be for a
  8       term of office of four years, but no member shall be appointed for more
  9       than two successive four-year terms. Each member shall serve until a
10       successor is appointed and qualified. Whenever a vacancy occurs in the
11       membership of the board of governors created by this act for any reason
12       other than the expiration of a member's term of office, the commissioner
13       shall appoint a successor of like qualifications to fill the unexpired term.
14       In each case of a vacancy occurring in the membership of the board of
15       governors, the commissioner shall notify the professional society or as-
16       sociation which represents the category of health care provider required
17       for the vacant position and request a list of three nominations of health
18       care providers from which to make the appointment.
19             (4) The board of governors shall organize on July 1 of each year and
20       shall elect a chairperson and vice-chairperson from among its member-
21       ship. Meetings shall be called by the chairperson or by a written notice
22       signed by three members of the board.
23             (5) The board of governors, in addition to other duties imposed by
24       this act, shall study and evaluate the operation of the fund and make such
25       recommendations to the legislature as may be appropriate to ensure the
26       viability of the fund.
27             (6)  (A) The board shall appoint an executive director who shall be in
28       the unclassified service under the Kansas civil service act and may appoint
29       such attorneys, legal assistants, claims managers and compliance auditors
30       who shall also be in the unclassified service under the Kansas civil service
31       act. Such executive director, attorneys, legal assistants, claims managers
32       and compliance auditors shall receive compensation fixed by the board,
33       in accordance with appropriation acts of the legislature, not subject to
34       approval of the governor.
35             (B) The board may appoint such additional employees, and provide
36       all office space, services, equipment, materials and supplies, and all budg-
37       eting, personnel, purchasing and related management functions required
38       by the board in the exercise of the powers, duties and functions imposed
39       or authorized by the health care provider insurance availability act or may
40       enter into a contract with the commissioner of insurance for the provision,
41       by the commissioner, of all or any part thereof.
42             (7) The commissioner shall:
43             (A) Provide technical and administrative assistance to the board of

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  1       governors with respect to administration of the fund upon request of the
  2       board;
  3             (B) provide such expertise as the board may reasonably request with
  4       respect to evaluation of claims or potential claims.
  5             (c) Subject to subsections (d), (e), (f), (i), (k), (m), (n), (o), (p) and
  6       (q), the fund shall be liable to pay: (1) Any amount due from a judgment
  7       or settlement which is in excess of the basic coverage liability of all liable
  8       resident health care providers or resident self-insurers for any personal
  9       injury or death arising out of the rendering of or the failure to render
10       professional services within or without this state;
11             (2) subject to the provisions of subsection (m), any amount due from
12       a judgment or settlement which is in excess of the basic coverage liability
13       of all liable nonresident health care providers or nonresident self-insurers
14       for any such injury or death arising out of the rendering or the failure to
15       render professional services within this state but in no event shall the
16       fund be obligated for claims against nonresident health care providers or
17       nonresident self-insurers who have not complied with this act or for
18       claims against nonresident health care providers or nonresident self-in-
19       surers that arose outside of this state;
20             (3) subject to the provisions of subsection (m), any amount due from
21       a judgment or settlement against a resident inactive health care provider,
22       an optometrist or pharmacist who purchased coverage pursuant to sub-
23       section (n) or a physical therapist who purchased coverage pursuant to
24       subsection (o), for any such injury or death arising out of the rendering
25       of or failure to render professional services;
26             (4) subject to the provisions of subsection (m), any amount due from
27       a judgment or settlement against a nonresident inactive health care pro-
28       vider, an optometrist or pharmacist who purchased coverage pursuant to
29       subsection (n) or a physical therapist who purchased coverage pursuant
30       to subsection (o), for any injury or death arising out of the rendering or
31       failure to render professional services within this state, but in no event
32       shall the fund be obligated for claims against: (A) Nonresident inactive
33       health care providers who have not complied with this act; or (B) non-
34       resident inactive health care providers for claims that arose outside of this
35       state, unless such health care provider was a resident health care provider
36       or resident self-insurer at the time such act occurred;
37             (5) subject to subsection (b) of K.S.A. 40-3411, and amendments
38       thereto, reasonable and necessary expenses for attorney fees incurred in
39       defending the fund against claims;
40             (6) any amounts expended for reinsurance obtained to protect the
41       best interests of the fund purchased by the board of governors, which
42       purchase shall be subject to the provisions of K.S.A. 75-3738 through 75-
43       3744, and amendments thereto, but shall not be subject to the provisions

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  1       of K.S.A. 75-4101 and amendments thereto;
  2             (7) reasonable and necessary actuarial expenses incurred in admin-
  3       istering the act, including expenses for any actuarial studies contracted
  4       for by the legislative coordinating council, which expenditures shall not
  5       be subject to the provisions of K.S.A. 75-3738 through 75-3744, and
  6       amendments thereto;
  7             (8) periodically to the plan or plans, any amount due pursuant to
  8       subsection (a)(3) of K.S.A. 40-3413 and amendments thereto;
  9             (9) reasonable and necessary expenses incurred by the board of gov-
10       ernors in the administration of the fund or in the performance of other
11       powers, duties or functions of the board under the health care provider
12       insurance availability act;
13             (10) return of any unearned surcharge;
14             (11) subject to subsection (b) of K.S.A. 40-3411, and amendments
15       thereto, reasonable and necessary expenses for attorney fees and other
16       costs incurred in defending a person engaged or who was engaged in
17       residency training or the private practice corporations or foundations and
18       their full-time physician faculty employed by the university of Kansas
19       medical center from claims for personal injury or death arising out of the
20       rendering of or the failure to render professional services by such health
21       care provider;
22             (12) notwithstanding the provisions of subsection (m), any amount
23       due from a judgment or settlement for an injury or death arising out of
24       the rendering of or failure to render professional services by a person
25       engaged or who was engaged in residency training or the private practice
26       corporations or foundations and their full-time physician faculty em-
27       ployed by the university of Kansas medical center;
28             (13) subject to the provisions of K.S.A. 65-429 and amendments
29       thereto, reasonable and necessary expenses for the development and pro-
30       motion of risk management education programs and for the medical care
31       facility licensure and risk management survey functions carried out under
32       K.S.A. 65-429 and amendments thereto;
33             (14) notwithstanding the provisions of subsection (m), any amount,
34       but not less than the required basic coverage limits, owed pursuant to a
35       judgment or settlement for any injury or death arising out of the rendering
36       of or failure to render professional services by a person, other than a
37       person described in clause (12) of this subsection (c), who was engaged
38       in a postgraduate program of residency training approved by the state
39       board of healing arts but who, at the time the claim was made, was no
40       longer engaged in such residency program;
41             (15) subject to subsection (b) of K.S.A. 40-3411, and amendments
42       thereto, reasonable and necessary expenses for attorney fees and other
43       costs incurred in defending a person described in clause (14) of this sub-

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  1       section (c);
  2             (16) expenses incurred by the commissioner in the performance of
  3       duties and functions imposed upon the commissioner by the health care
  4       provider insurance availability act, and expenses incurred by the com-
  5       missioner in the performance of duties and functions under contracts
  6       entered into between the board and the commissioner as authorized by
  7       this section; and
  8             (17) periodically to the state general fund reimbursements of
  9       amounts paid to members of the health care stabilization fund oversight
10       committee for compensation, travel expenses and subsistence expenses
11       pursuant to subsection (e) of K.S.A. 40-3403b, and amendments thereto.
12             (d) All amounts for which the fund is liable pursuant to subsection
13       (c) shall be paid promptly and in full except that, if the amount for which
14       the fund is liable is $300,000 or more, it shall be paid, by installment
15       payments of $300,000 or 10% of the amount of the judgment including
16       interest thereon, whichever is greater, per fiscal year, the first installment
17       to be paid within 60 days after the fund becomes liable and each subse-
18       quent installment to be paid annually on the same date of the year the
19       first installment was paid, until the claim has been paid in full. Any at-
20       torney fees payable from such installment shall be similarly prorated.
21             (e) In no event shall the fund be liable to pay in excess of $3,000,000
22       pursuant to any one judgment or settlement against any one health care
23       provider relating to any injury or death arising out of the rendering of or
24       the failure to render professional services on and after July 1, 1984, and
25       before July 1, 1989, subject to an aggregate limitation for all judgments
26       or settlements arising from all claims made in any one fiscal year in the
27       amount of $6,000,000 for each health care provider.
28             (f) The fund shall not be liable to pay in excess of the amounts spec-
29       ified in the option selected by the health care provider pursuant to sub-
30       section (l) for judgments or settlements relating to injury or death arising
31       out of the rendering of or failure to render professional services by such
32       health care provider on or after July 1, 1989.
33             (g) A health care provider shall be deemed to have qualified for cov-
34       erage under the fund:
35             (1) On and after July 1, 1976, if basic coverage is then in effect;
36             (2) subsequent to July 1, 1976, at such time as basic coverage be-
37       comes effective; or
38             (3) upon qualifying as a self-insurer pursuant to K.S.A. 40-3414 and
39       amendments thereto.
40             (h) A health care provider who is qualified for coverage under the
41       fund shall have no vicarious liability or responsibility for any injury or
42       death arising out of the rendering of or the failure to render professional
43       services inside or outside this state by any other health care provider who

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  1       is also qualified for coverage under the fund. The provisions of this sub-
  2       section shall apply to all claims filed on or after July 1, 1986.
  3             (i) Notwithstanding the provisions of K.S.A. 40-3402 and amend-
  4       ments thereto, if the board of governors determines due to the number
  5       of claims filed against a health care provider or the outcome of those
  6       claims that an individual health care provider presents a material risk of
  7       significant future liability to the fund, the board of governors is authorized
  8       by a vote of a majority of the members thereof, after notice and an op-
  9       portunity for hearing in accordance with the provisions of the Kansas
10       administrative procedure act, to terminate the liability of the fund for all
11       claims against the health care provider for damages for death or personal
12       injury arising out of the rendering of or the failure to render professional
13       services after the date of termination. The date of termination shall be
14       30 days after the date of the determination by the board of governors.
15       The board of governors, upon termination of the liability of the fund
16       under this subsection, shall notify the licensing or other disciplinary board
17       having jurisdiction over the health care provider involved of the name of
18       the health care provider and the reasons for the termination.
19             (j)  (1) Upon the payment of moneys from the health care stabiliza-
20       tion fund pursuant to subsection (c)(11), the board of governors shall
21       certify to the director of accounts and reports the amount of such pay-
22       ment, and the director of accounts and reports shall transfer an amount
23       equal to the amount certified, reduced by any amount transferred pur-
24       suant to paragraph (3) of this subsection (j), from the state general fund
25       to the health care stabilization fund.
26             (2) Upon the payment of moneys from the health care stabilization
27       fund pursuant to subsection (c)(12), the board of governors shall certify
28       to the director of accounts and reports the amount of such payment which
29       is equal to the basic coverage liability of self-insurers, and the director of
30       accounts and reports shall transfer an amount equal to the amount cer-
31       tified, reduced by any amount transferred pursuant to paragraph (3) of
32       this subsection (j), from the state general fund to the health care stabili-
33       zation fund.
34             (3) The university of Kansas medical center private practice foun-
35       dation reserve fund is hereby established in the state treasury. If the
36       balance in such reserve fund is less than $500,000 on July 1 of any year,
37       the private practice corporations or foundations referred to in subsection
38       (c) of K.S.A. 40-3402, and amendments thereto, shall remit the amount
39       necessary to increase such balance to $500,000 to the state treasurer for
40       credit to such reserve fund as soon after such July 1 date as is practicable.
41       Upon receipt of each such remittance, the state treasurer shall credit the
42       same to such reserve fund. When compliance with the foregoing provi-
43       sions of this paragraph have been achieved on or after July 1 of any year

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  1       in which the same are applicable, the state treasurer shall certify to the
  2       board of governors that such reserve fund has been funded for the year
  3       in the manner required by law. Moneys in such reserve fund may be
  4       invested or reinvested in accordance with the provisions of K.S.A. 40-
  5       3406, and amendments thereto, and any income or interest earned by
  6       such investments shall be credited to such reserve fund. Upon payment
  7       of moneys from the health care stabilization fund pursuant to subsection
  8       (c)(11) or (c)(12) with respect to any private practice corporation or foun-
  9       dation or any of its full-time physician faculty employed by the university
10       of Kansas, the director of accounts and reports shall transfer an amount
11       equal to the amount paid from the university of Kansas medical center
12       private practice foundation reserve fund to the health care stabilization
13       fund or, if the balance in such reserve fund is less than the amount so
14       paid, an amount equal to the balance in such reserve fund.
15             (4) Upon payment of moneys from the health care stabilization fund
16       pursuant to subsection (c)(14) or (c)(15), the board of governors shall
17       certify to the director of accounts and reports the amount of such pay-
18       ment, and the director of accounts and reports shall transfer an amount
19       equal to the amount certified from the state general fund to the health
20       care stabilization fund.
21             (k) Notwithstanding any other provision of the health care provider
22       insurance availability act, no psychiatric hospital licensed under K.S.A.
23       75-3307b and amendments thereto shall be assessed a premium sur-
24       charge or be entitled to coverage under the fund if such hospital has not
25       paid any premium surcharge pursuant to K.S.A. 40-3404 and amend-
26       ments thereto prior to January 1, 1988.
27             (l) On or after July 1, 1989, every health care provider shall make an
28       election to be covered by one of the following options provided in this
29       subsection (l) which shall limit the liability of the fund with respect to
30       judgments or settlements relating to injury or death arising out of the
31       rendering of or failure to render professional services on or after July 1,
32       1989. Such election shall be made at the time the health care provider
33       renews the basic coverage in effect on July 1, 1989, or, if basic coverage
34       is not in effect, such election shall be made at the time such coverage is
35       acquired pursuant to K.S.A. 40-3402, and amendments thereto. Notice
36       of the election shall be provided by the insurer providing the basic cov-
37       erage in the manner and form prescribed by the board of governors and
38       shall continue to be effective from year to year unless modified by a
39       subsequent election made prior to the anniversary date of the policy. The
40       health care provider may at any subsequent election reduce the dollar
41       amount of the coverage for the next and subsequent fiscal years, but may
42       not increase the same, unless specifically authorized by the board of gov-
43       ernors. Any election of fund coverage limits, whenever made, shall be

HB 2235

16

  1       with respect to judgments or settlements relating to injury or death arising
  2       out of the rendering of or failure to render professional services on or
  3       after the effective date of such election of fund coverage limits. Such
  4       election shall be made for persons engaged in residency training and
  5       persons engaged in other postgraduate training programs approved by
  6       the state board of healing arts at medical care facilities or mental health
  7       centers in this state by the agency or institution paying the surcharge
  8       levied under K.S.A. 40-3404, and amendments thereto, for such persons.
  9       Such options shall be as follows:
10             (1) OPTION 1. The fund shall not be liable to pay in excess of
11       $100,000 pursuant to any one judgment or settlement for any party
12       against such health care provider, subject to an aggregate limitation for
13       all judgments or settlements arising from all claims made in the fiscal year
14       in an amount of $300,000 for such provider.
15             (2) OPTION 2. The fund shall not be liable to pay in excess of
16       $300,000 pursuant to any one judgment or settlement for any party
17       against such health care provider, subject to an aggregate limitation for
18       all judgments or settlements arising from all claims made in the fiscal year
19       in an amount of $900,000 for such provider.
20             (3) OPTION 3. The fund shall not be liable to pay in excess of
21       $800,000 pursuant to any one judgment or settlement for any party
22       against such health care provider, subject to an aggregate limitation for
23       all judgments or settlements arising from all claims made in the fiscal year
24       in an amount of $2,400,000 for such health care provider.
25             (m) The fund shall not be liable for any amounts due from a judgment
26       or settlement against resident or nonresident inactive health care provid-
27       ers who first qualify as an inactive health care provider on or after July 1,
28       1989, unless such health care provider has been in compliance with K.S.A.
29       40-3402, and amendments thereto, for a period of not less than five years.
30       If a health care provider has not been in compliance for five years, such
31       health care provider may make application and payment for the coverage
32       for the period while they are nonresident health care providers, nonres-
33       ident self-insurers or resident or nonresident inactive health care provid-
34       ers to the fund. Such payment shall be made within 30 days after the
35       health care provider ceases being an active health care provider and shall
36       be made in an amount determined by the board of governors to be suf-
37       ficient to fund anticipated claims based upon reasonably prudent actuarial
38       principles. The provisions of this subsection shall not be applicable to any
39       health care provider which becomes inactive through death or retirement,
40       or through disability or circumstances beyond such health care provider's
41       control, if such health care provider notifies the board of governors and
42       receives approval for an exemption from the provisions of this subsection.
43       Any period spent in a postgraduate program of residency training ap-

HB 2235

17

  1       proved by the state board of healing arts shall not be included in com-
  2       putation of time spent in compliance with the provisions of K.S.A. 40-
  3       3402, and amendments thereto.
  4             (n) Notwithstanding the provisions of subsection (m) or any other
  5       provision in article 34 of chapter 40 of the Kansas Statutes Annotated to
  6       the contrary, the fund shall not be liable for any claim made on or after
  7       July 1, 1991, against a licensed optometrist or pharmacist relating to any
  8       injury or death arising out of the rendering of or failure to render pro-
  9       fessional services by such optometrist or pharmacist prior to July 1, 1991,
10       unless such optometrist or pharmacist qualified as an inactive health care
11       provider prior to July 1, 1991.
12             (o) Notwithstanding the provisions of subsection (m) or any other
13       provision in article 34 of chapter 40 of the Kansas Statutes Annotated to
14       the contrary, the fund shall not be liable for any claim made on or after
15       July 1, 1995, against a physical therapist registered licensed by the state
16       board of healing arts relating to any injury or death arising out of the
17       rendering of or failure to render professional services by such physical
18       therapist prior to July 1, 1995, unless such physical therapist qualified as
19       an inactive health care provider prior to July 1, 1995.
20             (p) Notwithstanding the provisions of subsection (m) or any other
21       provision in article 34 of chapter 40 of the Kansas Statutes Annotated to
22       the contrary, the fund shall not be liable for any claim made on or after
23       July 1, 1997, against a health maintenance organization relating to any
24       injury or death arising out of the rendering of or failure to render pro-
25       fessional services by such health maintenance organization prior to July
26       1, 1997, unless such health maintenance organization qualified as an in-
27       active health care provider prior to July 1, 1997, and obtained coverage
28       pursuant to subsection (m). Health maintenance organizations not qual-
29       ified as inactive health care providers prior to July 1, 1997, may purchase
30       coverage from the fund for periods of prior compliance by making ap-
31       plication prior to August 1, 1997, and payment within 30 days from notice
32       of the calculated amount as determined by the board of governors to be
33       sufficient to fund anticipated claims based on reasonably prudent actu-
34       arial principles.
35             (q) Notwithstanding anything in article 34 of chapter 40 of the Kansas
36       Statutes Annotated to the contrary, the fund shall in no event be liable
37       for any claims against any health care provider based upon or relating to
38       the health care provider's sexual acts or activity, but in such cases the
39       fund may pay reasonable and necessary expenses for attorney fees in-
40       curred in defending the fund against such claim. The fund may recover
41       all or a portion of such expenses for attorney fees if an adverse judgment
42       is returned against the health care provider for damages resulting from
43       the health care provider's sexual acts or activity.

HB 2235

18

  1             Sec.  7. K.S.A. 60-513d is hereby amended to read as follows: 60-
  2       513d. As used in K.S.A. 60-513 and 60-513b, and amendments to such
  3       statutes, the term "health care provider" means a person licensed to prac-
  4       tice any branch of the healing arts, a person who holds a temporary permit
  5       to practice any branch of the healing arts, a person engaged in a post-
  6       graduate training program approved by the state board of healing arts, a
  7       licensed medical care facility, a health maintenance organization, a li-
  8       censed dentist, a licensed professional nurse, a licensed practical nurse,
  9       a licensed optometrist, a licensed podiatrist, a professional corporation
10       organized pursuant to the professional corporation law of Kansas by per-
11       sons who are authorized by such law to form such a corporation and who
12       are health care providers as defined by this section, a licensed pharmacist
13       or a registered licensed physical therapist.
14             Sec.  8. K.S.A. 60-2609 is hereby amended to read as follows: 60-
15       2609. (a) Whenever judgment is entered on a claim in any action for
16       recovery of damages for personal injury or death arising out of the ren-
17       dering of or the failure to render professional services by any health care
18       provider, the court may include in such judgment a requirement that the
19       damages awarded be paid in whole or in part by installment or periodic
20       payments, and any installment or periodic payment upon becoming due
21       and payable under the terms of any such judgment shall constitute a
22       separate judgment upon which execution may issue. Any judgment or-
23       dering any such payments shall specify the amount of each payment, the
24       interval between payments and the number of payments to be paid under
25       the judgment. For good cause shown, the court may modify such judg-
26       ment with respect to the amount of such payments and the number of
27       payments to be made or the interval between payments, but the total
28       amount of damages awarded by such judgment shall not be subject to
29       modification in any event.
30             (b) As used in this section, "health care provider" means a person
31       licensed to practice any branch of the healing arts, a person who holds a
32       temporary permit to practice any branch of the healing arts or a person
33       engaged in a postgraduate training program approved by the state board
34       of healing arts, a licensed medical care facility, a health maintenance
35       organization, a licensed dentist, a licensed professional nurse, a licensed
36       practical nurse, a licensed optometrist, a licensed podiatrist, a licensed
37       pharmacist, a professional corporation organized pursuant to the profes-
38       sional corporation law of Kansas by persons who are authorized by such
39       law to form such a corporation and who are health care providers as
40       defined by this subsection, a registered licensed physical therapist or an
41       officer, employee or agent thereof acting in the course and scope of em-
42       ployment or agency.
43             Sec.  9. K.S.A. 1998 Supp. 65-1902 is hereby amended to read as

HB 2235

19

  1       follows: 65-1902. (a) Except as provided in subsection (b), no person shall:
  2             (1) Engage in practice of cosmetology, esthetics, nail technology or
  3       electrology unless the person holds a valid license, issued by the board,
  4       to engage in that practice;
  5             (2) conduct a school for teaching cosmetology unless the person holds
  6       a valid license, issued by the board, to conduct the school;
  7             (3) teach cosmetology in a licensed school unless the person holds a
  8       valid cosmetology instructor's license issued by the board;
  9             (4) conduct a school for teaching nail technology unless the person
10       holds a valid license, issued by the board, to conduct the school;
11             (5) teach nail technology in a licensed school unless the person holds
12       a valid cosmetology or manicuring instructor's license issued by the board;
13             (6) conduct a school for teaching electrology unless the person holds
14       a valid license, issued by the board, to conduct the school;
15             (7) teach electrology in a licensed school or clinic unless the person
16       holds a valid electrology instructor's license issued by the board;
17             (8) conduct a school for teaching esthetics unless the person holds a
18       valid license, issued by the board, to conduct the school;
19             (9) teach esthetics in a licensed school unless the person holds a valid
20       cosmetology or esthetics instructor's license issued by the board;
21             (10) own or operate a school, salon or clinic where cosmetology, es-
22       thetics, nail technology or electrology is taught or practiced unless the
23       person holds a valid school, salon or clinic license issued by the board; or
24             (11) teach or practice cosmetology, esthetics, nail technology or elec-
25       trology in a school, salon or clinic unless the owner or operator of the
26       school, salon or clinic holds a valid school, salon or clinic license issued
27       by the board.
28             (b) The provisions of this act shall not apply to:
29             (1) Any person licensed as a barber or apprentice barber;
30             (2) any person licensed to practice medicine and surgery, chiroprac-
31       tic, optometry, nursing or dentistry, while engaged in that practice;
32             (3) any person who is a registered licensed physical therapist or cer-
33       tified physical therapist assistant while engaged in that practice; or
34             (4) any teacher while engaged in instructing elementary or secondary
35       school students in the proper care of their own persons.
36             (c) A person holding a license as a cosmetology technician on the day
37       immediately preceding the effective date of this act shall continue to be
38       a licensed cosmetology technician and perform the functions of a cos-
39       metology technician, as such term was defined immediately prior to the
40       effective date of this act, and may renew such license subject to the pay-
41       ment of fees and other conditions and limitations on the renewal of li-
42       censes under article 19 of chapter 65 of the Kansas Statutes Annotated
43       and acts amendatory of the provisions thereof.

HB 2235

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  1             Sec.  10. K.S.A. 1998 Supp. 65-2891 is hereby amended to read as
  2       follows: 65-2891. (a) Any health care provider who in good faith renders
  3       emergency care or assistance at the scene of an emergency or accident
  4       including treatment of a minor without first obtaining the consent of the
  5       parent or guardian of such minor shall not be liable for any civil damages
  6       for acts or omissions other than damages occasioned by gross negligence
  7       or by willful or wanton acts or omissions by such person in rendering such
  8       emergency care.
  9             (b) Any health care provider may render in good faith emergency
10       care or assistance, without compensation, to any minor requiring such
11       care or assistance as a result of having engaged in competitive sports,
12       without first obtaining the consent of the parent or guardian of such
13       minor. Such health care provider shall not be liable for any civil damages
14       other than damages occasioned by gross negligence or by willful or wan-
15       ton acts or omissions by such person in rendering such emergency care.
16             (c) Any health care provider may in good faith render emergency care
17       or assistance during an emergency which occurs within a hospital or else-
18       where, with or without compensation, until such time as the physician
19       employed by the patient or by the patient's family or by guardian assumes
20       responsibility for such patient's professional care. The health care pro-
21       vider rendering such emergency care shall not be held liable for any civil
22       damages other than damages occasioned by negligence.
23             (d) Any provision herein contained notwithstanding, the ordinary
24       standards of care and rules of negligence shall apply in those cases
25       wherein emergency care and assistance is rendered in any physician's or
26       dentist's office, clinic, emergency room or hospital with or without
27       compensation.
28             (e) As used in this section the term "health care provider" means any
29       person licensed to practice any branch of the healing arts, licensed dentist,
30       licensed optometrist, licensed professional nurse, licensed practical nurse,
31       licensed podiatrist, licensed pharmacist and registered licensed physical
32       therapist, and any physician's assistant who has successfully completed an
33       American medical association approved training program and has suc-
34       cessfully completed the national board examination for physicians' assis-
35       tants of the American board of medical examiners, any person who holds
36       a valid attendant's certificate under K.S.A. 65-6129, and amendments
37       thereto, any person who holds a valid certificate for the successful com-
38       pletion of a course in first aid offered or approved by the American red
39       cross, by the American heart association, by the mining enforcement and
40       safety administration of the bureau of mines of the department of interior,
41       by the national safety council or by any instructor-coordinator, as defined
42       in K.S.A. 65-6112, and amendments thereto, and any person engaged in
43       a postgraduate training program approved by the state board of healing

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  1       arts.
  2             Sec.  11. K.S.A. 65-2901 is hereby amended to read as follows: 65-
  3       2901. (a) As used in this act, the term "physical therapy" means a health
  4       specialty concerned with the evaluation, treatment or instruction of hu-
  5       man beings to assess, prevent and alleviate physical disability and pain.
  6       This includes the administration and evaluation of tests and measure-
  7       ments of bodily functions and structures in aid of treatment; the planning,
  8       administration, evaluation and modifications of treatment and instruction,
  9       including the use of physical measures, activities and devices for preven-
10       tion and therapeutic purposes; and the provision of consultative, educa-
11       tional and advisory services for the purpose of reducing the incidence and
12       severity of physical disability and pain. The use of roentgen rays and
13       radium for diagnostic and therapeutic purposes, the use of electricity for
14       surgical purposes, including cauterization, and the practice of medicine
15       and surgery are not authorized or included under the term "physical ther-
16       apy" as used in this act.
17             (b) "Physical therapist" means a person who practices physical ther-
18       apy as defined in this act and delegates selective forms of treatment to
19       supportive personnel under the supervision of such person. Any person
20       who successfully meets the requirements of K.S.A. 65-2906 and amend-
21       ments thereto shall be known and designated as a physical therapist and
22       may designate or describe oneself as a physical therapist, physiotherapist,
23       registered licensed physical therapist, P.T., Ph. T. or R.P.T. L.P.T. Phys-
24       ical therapists may evaluate patients without physician referral but may
25       initiate treatment only after consultation with and approval by a physician
26       licensed to practice medicine and surgery, a licensed podiatrist or a li-
27       censed dentist in appropriately related cases.
28             (c) "Physical therapist assistant" means a person who works under
29       the direction of a physical therapist, and who assists in the application of
30       physical therapy, and whose activities require an understanding of phys-
31       ical therapy, but do not require professional or advanced training in the
32       anatomical, biological and physical sciences involved in the practice of
33       physical therapy. Any person who successfully meets the requirements of
34       K.S.A. 65-2906 and amendments thereto shall be known and designated
35       as a physical therapist assistant, and may designate or describe oneself as
36       a physical therapist assistant, certified physical therapist assistant, P.T.A.,
37       C.P.T.A. or P.T. Asst.
38             Sec.  12. K.S.A. 65-2904 is hereby amended to read as follows: 65-
39       2904. The state examining committee shall be appointed as follows: The
40       state board of healing arts shall appoint one physician licensed to practice
41       medicine and surgery and one member of the state board of healing arts,
42       and the governor shall appoint three physical therapists who are duly
43       registered licensed physical therapists who have at least three years' ex-

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  1       perience in physical therapy immediately preceding the appointment and
  2       are actively engaged, in this state, in physical therapy. The foregoing ap-
  3       pointees shall constitute the state examining committee for physical ther-
  4       apy. Except as otherwise provided in this section, the members appointed
  5       in accordance with this section shall be appointed for terms of four years
  6       and shall serve until their successors are appointed and qualify. Of the
  7       first three physical therapist members appointed by the governor on or
  8       after July 1, 1983, one shall be appointed for a term of two years, one
  9       shall be appointed for a term of three years and one shall be appointed
10       for a term of four years, and these members shall serve until a successor
11       is appointed and qualified. Thereafter, physical therapist members ap-
12       pointed by the governor shall be appointed for terms of four years and
13       shall serve until their successors are appointed and qualified. Each mem-
14       ber of the committee shall take an oath as required by law for state of-
15       ficers. No physical therapist member appointed by the governor on or
16       after July 1, 1983, shall be appointed for more than two successive four-
17       year terms commencing on or after that date.
18             Sec.  13. K.S.A. 65-2905 is hereby amended to read as follows: 65-
19       2905. (a) The state examining committee for physical therapy provided
20       for in this act shall elect from their members a president and a vice-
21       president, who shall serve for one year or until their successors are elected
22       and qualified. The executive director of the state board of healing arts
23       shall act as secretary of the examining committee.
24             (b) The state examining committee shall serve in an advisory capacity
25       to the state board of healing arts in matters pertaining to physical therapy.
26       The state board of healing arts may adopt reasonable rules and regulations
27       relative to the qualification and examination of applicants as may be found
28       necessary for the performance of its duties. As to any matters coming
29       under its jurisdiction, the state examining committee while in session may
30       take testimony and any member may administer oaths in the taking of
31       such testimony.
32             (c) A simple majority of the committee shall constitute a quorum for
33       the transaction of business. The secretary shall keep a record of all pro-
34       cedures of the committee.
35             (d) The examining committee shall meet at a city designated by the
36       examining committee and the board, and under the direction of the state
37       board of healing arts, there conduct the examination for the registration
38       licensure of physical therapists and certification of physical therapist as-
39       sistants, at least once each year, and may hold other meetings and ex-
40       aminations at such times and places as the examining committee and
41       board may determine.
42             (e) The board may appoint and fix the compensation of such em-
43       ployees as may be necessary to assist the examining committee, and the

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  1       board shall have the power to employ such expert assistance as it may
  2       deem necessary to carry out the purposes of this act. Members of the
  3       state examining committee for physical therapy attending meetings of
  4       such committee, or attending a subcommittee meeting thereof authorized
  5       by such committee, shall be paid compensation, subsistence allowances,
  6       mileage and other expenses as provided in K.S.A. 75-3223 and amend-
  7       ments thereto.
  8             Sec.  14. K.S.A. 1998 Supp. 65-2906 is hereby amended to read as
  9       follows: 65-2906. (a) It shall be the duty of the state board of healing arts,
10       with the advice and assistance of the state examining committee, to pass
11       upon the qualifications of all applicants for examination and registration
12       licensure or certification, provide for and conduct all examinations, de-
13       termine the applicants who successfully pass the examination, duly reg-
14       ister license or certify such persons and adopt rules and regulations for
15       professional conduct of the registered licensed or certified persons.
16             (b) An applicant applying for registration licensure as a physical ther-
17       apist or for a certificate as a physical therapist assistant shall file a written
18       application on forms provided by the state board of healing arts, showing
19       to the satisfaction of the board that the applicant meets the following
20       requirements:
21             (1) The applicant is of legal age;
22             (2) the applicant has successfully completed the academic require-
23       ments of an educational program in physical therapy approved by the
24       board which is appropriate for the certification or registration licensure
25       of the applicant;
26             (3) the applicant has passed an examination required by the board
27       which is appropriate for the certification or registration licensure of the
28       applicant to test the applicant's knowledge of the basic and clinical sci-
29       ences relating to physical therapy theory and practice; and
30             (4) the applicant has paid to the board all applicable fees established
31       under K.S.A. 65-2911 and amendments thereto.
32             (c) The board shall adopt rules and regulations establishing the cri-
33       teria which a school shall satisfy in order to be approved by the board for
34       purposes of subsection (b). The board may send a questionnaire devel-
35       oped by the board to any school for which the board does not have suf-
36       ficient information to determine whether the school meets the require-
37       ments of the board for approval and rules and regulations adopted under
38       this section. The questionnaire providing the necessary information shall
39       be completed and returned to the board in order for the school to be
40       considered for approval. The board may contract with investigative agen-
41       cies, commissions or consultants to assist the board in obtaining infor-
42       mation about schools. In entering such contracts the authority to approve
43       schools shall remain solely with the board.

HB 2235

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  1             (d) All registrations or certificates issued prior to July 1, 1994, which
  2       are in effect on the effective date of this act shall be and continue in full
  3       force and effect and be eligible for renewal and reinstatement under
  4       K.S.A. 65-2910 and amendments thereto.
  5             Sec.  15. K.S.A. 65-2907 is hereby amended to read as follows: 65-
  6       2907. An applicant may be registered licensed as a physical therapist or
  7       certified as a physical therapist assistant without a certificate of profi-
  8       ciency in the basic sciences from the state board of healing arts if the
  9       applicant fulfills the provisions of this act.
10             Sec.  16. K.S.A. 65-2908 is hereby amended to read as follows: 65-
11       2908. The board shall register license as a physical therapist or certify as
12       a physical therapist assistant each applicant who successfully meets the
13       requirements provided for in this act for registration licensure as a phys-
14       ical therapist or certification as a physical therapist assistant and who is
15       otherwise qualified as required herein. The board shall issue a certificate
16       of registration license to each person registered licensed under this act
17       and a certificate to each person certified under this act.
18             Sec.  17. K.S.A. 65-2909 is hereby amended to read as follows: 65-
19       2909. (a) The board may issue a certificate of registration license in phys-
20       ical therapy without examination therein to an applicant who presents
21       evidence satisfactory to the board of having passed the examination in
22       physical therapy of the American registry of physical therapists, or an
23       examination before a similar, lawfully authorized examining board in
24       physical therapy of another state, District of Columbia, territory or foreign
25       country, if the standards for registration or licensure in physical therapy
26       in such other state, district, territory or foreign country are determined
27       by the board to be as high as those of this state for licensure. At the time
28       of making such application, the applicant shall pay to the board a fee as
29       prescribed, no part of which shall be returned.
30             (b) The board may issue a certificate as a physical therapist assistant
31       without examination therein to an applicant who presents evidence sat-
32       isfactory to the board of having passed an examination as a physical ther-
33       apist assistant as approved by the state board of healing arts or an ex-
34       amination before a similar, lawfully authorized examining board in
35       physical therapy of another state, District of Columbia, territory or foreign
36       country, if the standards for certification in physical therapy in such other
37       state, District of Columbia, territory or foreign country are determined
38       by the board to be as high as those of this state. At the time of making
39       such application, the applicant shall pay to the board a fee as prescribed,
40       no part of which shall be returned.
41             Sec.  18. K.S.A. 65-2910 is hereby amended to read as follows: 65-
42       2910. (a) The registration licensure of every registered licensed physical
43       therapist and the certification of every certified physical therapist assistant

HB 2235

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  1       shall expire on the date established by rules and regulations of the state
  2       board of healing arts which may provide renewal throughout the year on
  3       a continuing basis. In each case in which a registration license or certifi-
  4       cate is renewed for a period of time of less than one year, the board may
  5       prorate the amount of the fee established under K.S.A. 65-2911 and
  6       amendments thereto. The request for renewal shall be on a form provided
  7       by the board and shall be accompanied by the renewal fee established
  8       under to K.S.A. 65-2911 and amendments thereto which shall be paid
  9       not later than the expiration date of the registration license or certificate.
10             (b) The state board of healing arts shall require every registered li-
11       censed physical therapist or certified physical therapist assistant as a con-
12       dition of renewal to submit with the application for a renewal evidence
13       of satisfactory completion of a program of continuing education required
14       by the board. The board shall establish the requirements for each such
15       program of continuing education by rules and regulations. In establishing
16       such requirements the board shall consider any existing programs of con-
17       tinuing education currently being offered to registered licensed physical
18       therapists or certified physical therapist assistants.
19             (c) The state board of healing arts prior to renewal of the registration
20       license of a physical therapist, shall require the registrant licensee, if in
21       the active practice of physical therapy within Kansas, to submit to the
22       board evidence satisfactory to the board that the registrant licensee is
23       maintaining a policy of professional liability insurance as required by
24       K.S.A. 40-3402 and amendments thereto and has paid the annual pre-
25       mium surcharge as required by K.S.A. 40-3404 and amendments thereto.
26             (d) At least 30 days before the expiration of the registration license
27       of a physical therapist or the certificate of a physical therapist assistant,
28       the state board of healing arts shall notify the registrant licensee or cer-
29       tificate holder of the expiration by mail addressed to the registrant's li-
30       censee's last mailing address as noted upon the office records. If the reg-
31       istrant licensee or certificate holder fails to pay the renewal fee by the
32       date of expiration, the registrant licensee or certificate holder shall be
33       given a second notice that the registration license or certificate has expired
34       and the registration license or certificate may be renewed only if the
35       renewal fee and the late renewal fee are received by the board within the
36       thirty-day period following the date of expiration and that, if both fees
37       are not received within the thirty-day period, the registration license or
38       certificate shall be considered to have lapsed for failure to renew and
39       shall be reissued only after the physical therapist or physical therapist
40       assistant has been reinstated under subsection (e).
41             (e) Any registrant licensee or certificate holder who allows the reg-
42       istration license or certificate to lapse by failing to renew may be rein-
43       stated upon recommendation of the state board of healing arts and upon

HB 2235

26

  1       payment of the renewal fee and the reinstatement fee and upon submit-
  2       ting evidence of satisfactory completion of any applicable reeducation and
  3       continuing education requirements established by the board. The board
  4       shall adopt rules and regulations establishing appropriate reeducation and
  5       continuing education requirements for reinstatement of persons whose
  6       registrations licenses or certificates have lapsed for failure to renew.
  7             Sec.  19. K.S.A. 65-2912 is hereby amended to read as follows: 65-
  8       2912. (a) The board may refuse to grant a certificate of registration license
  9       to any physical therapist or a certificate to any physical therapist assistant,
10       or may suspend or revoke the registration license of any registered li-
11       censed physical therapist or certificate of any certified physical therapist
12       assistant for any of the following grounds:
13             (1) Addiction to or distribution of intoxicating liquors or drugs for
14       other than lawful purposes;
15             (2) conviction of a felony if the board determines, after investigation,
16       that the physical therapist or physical therapist assistant has not been
17       sufficiently rehabilitated to warrant the public trust;
18             (3) obtaining or attempting to obtain registration licensure or certi-
19       fication by fraud or deception;
20             (4) finding by a court of competent jurisdiction that the physical ther-
21       apist or physical therapist assistant is a disabled person and has not there-
22       after been restored to legal capacity;
23             (5) unprofessional conduct;
24             (6) the treatment or attempt to treat ailments or other health con-
25       ditions of human beings other than by physical therapy and as authorized
26       by this act;
27             (7) failure to refer patients to other health care providers if symptoms
28       are present for which physical therapy treatment is inadvisable or if symp-
29       toms indicate conditions for which treatment is outside the scope of
30       knowledge of the registered licensed physical therapist;
31             (8) initiating treatment without prior consultation and approval by a
32       physician licensed to practice medicine and surgery, by a licensed podi-
33       atrist or by a licensed dentist; and
34             (9) knowingly submitting any misleading, deceptive, untrue or fraud-
35       ulent misrepresentation on a claim form, bill or statement.
36             (b) All proceedings pursuant to this section shall be conducted in
37       accordance with the provisions of the Kansas administrative procedure
38       act and shall be reviewable in accordance with the act for judicial review
39       and civil enforcement of agency actions.
40             Sec.  20. K.S.A. 1998 Supp. 65-2913 is hereby amended to read as
41       follows: 65-2913. (a) Any person, except a person certified as a physical
42       therapist assistant, who engages in the practice of physical therapy or any
43       person who, in any manner, represents oneself as a physical therapist, or

HB 2235

27

  1       who uses in connection with such person's name the words or letters
  2       physical therapist, physiotherapist, registered licensed physical therapist,
  3       P.T., Ph. T. or R.P.T. L.P.T., or any other letters, words, abbreviations or
  4       insignia, indicating or implying that such person is a physical therapist,
  5       without a valid existing certificate of registration license as a physical ther-
  6       apist issued to such person under the provisions of this act, shall be guilty
  7       of a class B nonperson misdemeanor.
  8             (b) Any person who, in any manner, represents oneself as a physical
  9       therapist assistant, or who uses in connection with such person's name
10       the words or letters physical therapist assistant, certified physical therapist
11       assistant, P.T.A., C.P.T.A. or P.T. Asst., or any other letters, words, ab-
12       breviations or insignia, indicating or implying that such person is a phys-
13       ical therapist assistant, without a valid existing certificate as a physical
14       therapist assistant issued to such person pursuant to the provisions of this
15       act, shall be guilty of a class B nonperson misdemeanor.
16             (c) Nothing in this act shall prohibit any person not holding oneself
17       out as a physical therapist or physical therapist assistant from carrying out
18       as an independent practitioner, without prescription or supervision, the
19       therapy or practice for which the person is qualified, and shall not prohibit
20       the person from using corrective therapy. Nothing in this act shall pro-
21       hibit persons whose services are performed pursuant to the delegation of
22       or under the supervision of a licensed physical therapist from performing
23       physical therapy. Nothing in this act shall prohibit students from prac-
24       ticing physical therapy as part of an approved educational program in
25       physical therapy while under the supervision of a qualified instructor.
26       Nothing in this act shall prohibit any person who assists the physical ther-
27       apist or physical therapist assistant from being designated as a physical
28       therapy aide.
29             Sec.  21. K.S.A. 65-2914 is hereby amended to read as follows: 65-
30       2914. (a) No person shall employ fraud or deception in applying for or
31       securing a certificate of registration license as a physical therapist.
32             (b) A person registered licensed under this act as a physical therapist
33       shall not treat ailments or other health conditions of human beings other
34       than by physical therapy unless duly licensed or registered to provide such
35       treatment under the laws of this state.
36             (c) A person certified under this act as a physical therapist assistant
37       shall not treat ailments or other health conditions of human beings except
38       under the direction of a physical therapist duly registered under this act.
39       The word "direction" as used in this subsection (c) shall mean that the
40       physical therapist shall see all patients initially and evaluate them peri-
41       odically except in those cases in a hospital setting when the physical ther-
42       apist is not immediately available, the physical therapist assistant may
43       initiate patient care after telephone contact with the physical therapist for

HB 2235

28

  1       documented instruction. The physical therapist must then evaluate the
  2       patient and establish a plan of treatment as soon as possible with a min-
  3       imum weekly review.
  4             (d) Any person violating the provisions of this section shall be guilty
  5       of a class B misdemeanor.
  6             Sec.  22. K.S.A. 65-2918 is hereby amended to read as follows: 65-
  7       2918. Physical therapists practicing their profession, when registered li-
  8       censed and practicing under and in accordance with the provisions of
  9       article 29 of chapter 65 of the Kansas Statutes Annotated, and acts amen-
10       datory of the provisions thereof or supplemental thereto, shall not be
11       construed to be practicing the healing arts or be subject to the healing
12       arts act.
13             New Sec.  23. Any person holding a valid registration as a physical
14       therapist immediately prior to the effective date of this act which has
15       been issued by the state board of healing arts shall be deemed to be a
16       licensed physical therapist and shall be subject to the provisions of this
17       act and the provisions of article 29 of chapter 65 of the Kansas Statutes
18       Annotated.
19             Sec.  24. K.S.A. 1998 Supp. 65-5912 is hereby amended to read as
20       follows: 65-5912. (a) Nothing in this act shall be construed to require any
21       insurer or other entity regulated under chapter 40 of the Kansas Statutes
22       Annotated or any other law of this state to provide coverage for or in-
23       demnify for the services provided by a person licensed under this act.
24             (b) So long as the following persons do not hold themselves out to
25       the public to be dietitians or licensed dietitians or use these titles in
26       combination with other titles or use the abbreviation L.D., or any com-
27       bination thereof, nothing in this act shall be construed to apply:
28             (1) To any person licensed to practice the healing arts, a licensed
29       dentist, a licensed dental hygienist, a licensed professional nurse, a li-
30       censed practical nurse, a licensed psychologist, a licensed masters level
31       psychologist, a licensed pharmacist or an employee thereof, a physician's
32       assistant, a licensed professional counselor;
33             (2) to any unlicensed employee of a licensed adult care home or a
34       licensed medical care facility as long as such person is working under the
35       general direction of a licensee in the healing arts, nursing or a dietetic
36       services supervisor as defined in regulations adopted by the secretary of
37       health and environment or a consultant licensed under this act;
38             (3) to any dietetic technician or dietetic assistant;
39             (4) to any student enrolled in an approved academic program in di-
40       etetics, home economics, nutrition, education or other like curriculum,
41       while engaged in such academic program;
42             (5) to prevent any person, including persons employed in health food
43       stores, from furnishing nutrition information as to the use of food, food

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  1       materials or dietary supplements, nor to prevent in any way the free dis-
  2       semination of information or of literature as long as no individual engaged
  3       in such practices holds oneself out as being licensed under this act;
  4             (6) to prohibit any individual from marketing or distributing food
  5       products, including dietary supplements, or to prevent any such person
  6       from providing information to customers regarding the use of such
  7       products;
  8             (7) to prevent any employee of the state or a political subdivision who
  9       is employed in nutrition-related programs from engaging in activities in-
10       cluded within the definition of dietetics practice as a part of such person's
11       employment;
12             (8) to any person who performs the activities and services of a li-
13       censed dietitian or nutrition educator as an employee of the state or a
14       political subdivision, an elementary or secondary school, an educational
15       institution, a licensed institution, or a not-for-profit organization;
16             (9) to any person serving in the armed forces, the public health serv-
17       ice, the veterans administration or as an employee of the federal
18       government;
19             (10) to any person who has a degree in home economics insofar as
20       the activities of such person are within the scope of such person's edu-
21       cation and training;
22             (11) to any person who counsels or provides weight-control services
23       as a part of a franchised or recognized weight-control program or a
24       weight-control program that operates under the general direction of a
25       person licensed to practice the healing arts, nursing or a person licensed
26       under this act;
27             (12) to any person who is acting as a representative of a trade asso-
28       ciation and who engages in one or more activities included within the
29       practice of dietetics as a representative of such association;
30             (13) to a registered licensed physical therapist who makes a dietetic
31       or nutritional assessment or gives dietetic or nutritional advice in the
32       normal practice of such person's profession or as otherwise authorized by
33       law;
34             (14) to a dietitian licensed, registered or otherwise authorized to
35       practice dietetics in another state who is providing consultation in this
36       state;
37             (15) to any person conducting a teaching clinical demonstration
38       which is carried out in an educational institution or an affiliated clinical
39       facility or health care agency;
40             (16) to any person conducting classes or disseminating information
41       relating to nonmedical nutrition; or
42             (17) to any person permitted to practice under K.S.A. 65-2872a and
43       amendments thereto.

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  1             (c) Nothing in this act shall be construed to interfere with the relig-
  2       ious practices or observances of a bona fide religious organization, nor to
  3       prevent any person from caring for the sick in accordance with tenets and
  4       practices of any church or religious denomination which teaches reliance
  5       upon spiritual means through prayer for healing. 
  6       Sec.  25. K.S.A. 40-2,111, 60-513d, 60-2609, 65-2901, 65-2904, 65-
  7       2905, 65-2907, 65-2908, 65-2909, 65-2910, 65-2912, 65-2914 and 65-2918
  8       and K.S.A. 1998 Supp. 7-121b, 17-2707, 21-3721, 40-3401, 40-3403, 65-
  9       1902, 65-2891, 65-2906, 65-2913 and 65-5912 are hereby repealed.
10        Sec.  26. This act shall take effect and be in force from and after
11       March 1, 2000, and its publication in the statute book.