J o u r n a l   o f   t h e   S e n a t e


                                FIFTY-SECOND DAY
                                    --------


                                                SENATE CHAMBER, TOPEKA,
     KANSAS
                                           Thursday, March 27, 1997--9:00 a.m.

  The Senate was called to order by President Dick Bond.
  The roll was called with forty senators present.
  President Bond introduced as guest chaplain Rev. Donna Voteau-Messier, Valley
Falls and Coal Creek United Methodist Churches, Valley Falls, who delivered the
invocation:
   God of robins, tulips, daffodils, lilies, new sprouting grass, fresh
   budding trees. God of farmers planting fields, and gardeners planting
   vegetables.  God of sunlight and thunderstorms. God of Comets and Lunar
   eclipses. God who changes the seasons from winter into spring with no need
   of a committee meeting, bill, discussion, or vote.
   God of Passover and Purim. God of Lent and Easter. God of Protestant and
   Catholic, God of male and female, God of young and old, God of Republican
   and Democrat. God of the big city and small rural town. God of the farmer
   and business owner. God of the rich and the poor. God of handgun carriers,
   and pacifists. God of property taxes and sales taxes. God of Pro-Life and
   Pro-Choice. Give us strength to see beyond the divisions we would so
   easily make among ourselves.
   Remind us each of the great gift we have in citizenship. A citizenship
   that calls us to listen and interact with those we disagree with. A
   citizenship that demands we think of others and not just ourselves. A
   citizenship in which a few represent and make decisions for the many. 
   Give each of these gathered here your presence and power as they work long
   hours, mainly for the love of politics and people. They certainly can't be
   working just for the pay when we know how meager their wages would be if
   they were paid on an hourly basis.
   Give each person gathered here O God: A keen mind to grasp all the
   consequences of an issue, open eyes to see beyond a few to the many, clear
   ears to hear all the voices speaking to them, and a strong voice with
   words of integrity.
   Because each of us calls you by so many names I close now with an all
   inclusive reference from Luke Skywalker ``May the Force be with You''!

REFERENCE OF BILLS AND CONCURRENT RESOLUTIONS

  The following bills were referred to Committees as indicated:
  Elections and Local Government: HB 2155.
  Financial Institutions and Insurance: HB 2297.

CHANGE OF REFERENCE

  The President withdrew HB 2098 from the Committee on Education, and
referred the bill to the Committee on Ways and Means.

CONSIDERATION OF MOTIONS TO CONCUR OR NONCONCUR

  Senator Steffes moved the Senate Concur in house amendments to SB 32.
  SB 32, An act concerning filing financing statements of security
interests; purchase price of consumer good; amending K.S.A. 84-9-302 and
repealing the existing section, was con sidered on final action.

382                          JOURNAL OF THE SENATE

  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The Senate concurred.
  On motion of Senator Steffes the Senate nonconcurred in the House
amendments to SB 204 and requested a conference committee be appointed.
  The President appointed Senators Steffes, Praeger and Feleciano as a
conference com mittee on the part of the Senate.

FINAL ACTION ON CONSENT CALENDAR

  HB 2026, 2250 having appeared on the Consent Calendar for the
required two full legislative days without objection from any member, were
considered on final action.
  HB 2026, An act concerning the residential landlord and tenant act;
relating to security deposits; amending K.S.A. 58-2550 and repealing the
existing section, was considered on final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The bill passed.
  HB 2250, An act concerning criminal procedure; relating to the
admissibility of report of forensic examiner; amending K.S.A. 1996 Supp.
22-2902a and repealing the existing section, was considered on final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The bill passed.

FINAL ACTION ON BILLS AND CONCURRENT RESOLUTIONS

  SB 187, An act abolishing the corporation for change; relating to the
transfer of duties and powers thereof; amending K.S.A. 20-1a11, K.S.A. 1995
Supp. 74-9501, as amended by section 127 of chapter 229 of the 1996 Session
Laws of Kansas, and K.S.A. 1996 Supp. 381808, 75-2935 and 75-2935b and
repealing the existing sections; also repealing K.S.A. 381801, 38-1802,
38-1803, 38-1805, 38-1806, 38-1809, 38-1810 and 38-1811 and K.S.A. 1996 Supp.
38-1804 and 38-1807, was considered on final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The bill passed, as amended.
  SB 234, An act prohibiting partial-birth abortions; amending K.S.A.
1996 Supp. 65-6703 and repealing the existing section, was considered on
final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.

                                 March 27, 1997                             383

  Absent or not voting: Gooch.
  The bill passed, as amended.
  HB 2045, An act relating to insurance; directors; numbers; election
and term; oath; relating to the payment of certain insurance proceeds;
amending K.S.A. 40-305, 40-3901 and 40-3903 and repealing the existing
sections, was considered on final action.
  On roll call, the vote was: Yeas 38, nays 1, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Corbin, Donovan,
Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger, Harrington,
Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy, Lawrence, Lee,
Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury, Salmans, Schraad,
Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Nays: Clark.
  Absent or not voting: Gooch.
  The bill passed, as amended.
  HB 2058, An act concerning crimes, punishment and criminal procedure;
relating to certain crimes involving information and computers; amending
K.S.A. 21-3755 and K.S.A. 1996 Supp. 21-3711 and repealing the existing
sections, was considered on final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The bill passed.
  Sub. HB 2081, An act relating to insurance; rate making and rating
organizations; ad visory organizations; rate administration and statistical
plans; rebating of premium; repealing K.S.A. 40-925, 40-926, 40-927, 40-928,
40-928a, 40-929, 40-930, 40-931, 40-932, 40-933, 40-934, 40-935, 40-936,
40-937, 40-939, 40-940, 40-941, 40-942, 40-943, 40-944, 40-945, 40-1111,
40-1111a, 40-1112, 40-1113, 40-1113a, 40-1113c, 40-1114, 40-1114a, 40-1115,
401116, 40-1117, 40-1118, 40-1121, 40-1122, 40-1123, 40-1124 and 40-1125, was
considered on final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The substitute bill passed, as amended.
  HB 2167, An act concerning driver's licenses; relating to a suspended
license; amending K.S.A. 1996 Supp. 8-260 and repealing the existing section,
was considered on final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The bill passed, as amended.
  HB 2202, An act relating to driver's licenses; amending K.S.A. 1996
Supp. 8-234b and 8-2,128 and repealing the existing sections, was considered
on final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The bill passed, as amended.

384                          JOURNAL OF THE SENATE

  HB 2219, An act concerning waste; relating to solid waste disposal
areas exempt from certain requirements; concerning confined feeding
facilities; amending K.S.A. 1996 Supp. 65-171d and 65-3406 and repealing the
existing sections, was considered on final action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The bill passed, as amended.
  S. Sub. for HB 2269, An act concerning abortion; relating to certain
requirements before the performance thereof; amending K.S.A. 65-6706 and
K.S.A. 1996 Supp. 65-2836 and repealing the existing sections; also repealing
K.S.A. 65-6706, was considered on final action.
  On roll call, the vote was: Yeas 18, nays 20, present and passing 1; absent
or not voting 1.
  Yeas: Barone, Bleeker, Brownlee, Clark, Donovan, Gilstrap, Hardenburger,
Harrington, Huelskamp, Jordan, Lawrence, Morris, Pugh, Salmans, Schraad,
Steffes, Tyson, Umbarger.
  Nays: Becker, Biggs, Bond, Corbin, Downey, Feleciano, Goodwin, Hensley,
Jones, Karr, Kerr, Langworthy, Lee, Oleen, Petty, Praeger, Ranson, Salisbury,
Steineger, Vidricksen.
  Present and passing: Emert.
  Absent or not voting: Gooch.
  A constitutional majority having failed to vote in favor of the bill, S. Sub for HB
2269 did not pass.
                              EXPLANATION OF VOTE
  Mr. President: Women do have a right to know, but the information should
not be forced on her if she chooses not to want to hear it.--Rich Becker
  Mr. President: This is the most difficult vote that I have had to make.  As
the youngest of 11 children, the father of 6, and the grandpa to 21, I have
pretty good credentials for being pro-life. My study and review of this bill
and its ramifications has led me to the conclusion that it is not responsible
legislation for all of Kansas. The easy out for me would be to vote yes and
let an expected Governor's veto take care of it. I did not come here to make
the easy votes. Many pro-life issues come before this body. We need to start
looking for consistency in our emotional rhetoric and votes. Is not the child
support enforcement program pro-life? Is English Only legislation pro-life to
Hispanics? Are we willing to fund support programs to the working poor,
single moms, health care for children after birth and even legal
immigrants?--Don Biggs
  Mr. President: This Women's-Right-To-Know bill is a good compromise, moving
from the 24 hour waiting period to the 8 hours the Governor asked for. It's a
reasonable bill, making specific the intent of the 1992 informed consent law.
This bill is pro-information, empowering women to make well informed
decisions, and the best possible choices.-Laurie Bleeker
Senators Brownlee, Jordan, Umbarger request the record to show they concur
with the ``Explanation of Vote'' offered by Senator Bleeker on S. Sub. for
HB 2269.
  Mr. President: Knowledge is power. When women are provided all information
as to the alternatives available to abortion, they are empowered.
  I am proud to support the amended version to the Senate substitute of the
Women's Right to Know Act.
  This amended version is pro-woman, with a pro-life, pro-choice compromise
being reached.
  The Senate substituted language was pro-abortion provider.--Nancey
Harrington
  Senators Jordan and Umbarger request the record to show they concur with
the ``Expla nation of Vote'' offered by Senator Harrington on S. Sub. for
HB 2269.
  Mr. President: My yes vote for this bill is due to the unique situation an
abortion procedure creates. In most cases the woman and the doctor have never
had a meeting. They do not know each other. To my knowledge this is unique
compared to all other major surgery procedures. For the woman's safety and
the doctor's liability, I think it is imperative a

                                 March 27, 1997                             385

meeting take place with thorough communication of the procedures. Thank
You.--Nick Jordan
  Senators Gilstrap, Harrington and Umbarger request the record to show they
concur with the ``Explanation of Vote'' offered by Senator Jordan on S.
Sub. for HB 2269.
  Mr. President: I vote ``No'' on S. Sub. for HB 2269 not because I am
unwilling to vote for a good, tough and straight forward ``Women's Right to
Know Act.'' Indeed, I voted in favor of a bill last session also labeled as
``Women's Right to Know.'' That bill has some serious flaws, but it could
still be understood and had a reasonable chance of enforcement.
  This year's bill is not understandable nor enforceable and it does not
appear to have been designed for the purpose of informing women considering
the monumental decision of whether or not to have an abortion. I await a good
and straight forward bill on which I can vote yes.--Dave Kerr
  Senators Corbin, Downey, Feleciano, Lee request the record to show they
concur with the ``Explanation of Vote'' offered by Senator Kerr on S. Sub.
for HB 2269.
  Mr. President: I came to the Senate floor yesterday to support a bill which
guaranteed a woman the right to meet with the physician prior to an abortion,
and to decline that meeting if she chose. I supported an amendment so that a
woman would know she could receive child support from the father, should she
decide not to have an abortion. I supported a change in current law for a
woman to be able to cancel an abortion at any time, and I supported
codification of penalties against physicians who do not follow Kansas
abortion laws. The Federal and State Affairs Committee brought a reasoned,
``right to know'' bill to the Senate--the series of amendments made on the
Senate floor convince me that the bill is now much more than a ``right to
know'' measure, so regretfully, I must now vote no on S. Sub. for HB
2269.--Lana Oleen
  Senators Corbin, Downey, Feleciano, Goodwin, Salisbury request the record
to show they concur with the ``Explanation of Vote'' offered by Senator Oleen
on S. Sub. for HB 2269.
Mr. President: Those of us who are of my generation and my mother's know full
well that a majority of the members of a legislative body may outlaw
abortion, or further restrict access to abortion, but they will never
eliminate it.
  For the sake of my daughters and granddaughters, I will continue to pray
that they have the wisdom to make decisions that are best for them, and I
will work and vote for their freedom to choose from all options available to
them in regard to pregnancy and child bearing, including their right to a
safe and legal procedure to terminate their pregnancy, if that is their
decision--without fear of harassment or inability to find qualified medical
professionals.
  The decision of whether or not to terminate a pregnancy should be made by
the pregnant woman who must carry the burden and the consequences of her
decision.
  For that reason I vote ``no'' on S. Sub. for HB 2269, which goes far
beyond providing information to women as it purports, but further restricts a
women's access to a safe and legal abortion.--Pat Ranson
  Mr. President: I have always, in my career as a Senator, voted for most
pro-life issues.
  In eighteen years as a legislator--I have never been involved in a form of
blackmail on a subject before the Senate, prior to a vote being taken on a
bill.
  I was told this morning that all the bills I have an interest in would be
sent back to committee--or taken off the calendar--if I did not vote for this
bill.
  There is no place in this legislative process for this type of activity!  I
will not let my principles be compromised or my vote bought! I have no choice
but to vote NO.
  I vote NO on S. Sub. for HB 2269.--Ben Vidricksen
  HB 2305, An act concerning hunting by certain nonresidents; amending
K.S.A. 32-980 and repealing the existing section, was considered on final
action.
  On roll call, the vote was: Yeas 39, nays 0, present and passing 0; absent
or not voting 1.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Goodwin, Hardenburger,
Harrington, Hensley, Huelskamp,

386                          JOURNAL OF THE SENATE

Jones, Jordan, Karr, Kerr, Langworthy, Lawrence, Lee, Morris, Oleen, Petty,
Praeger, Pugh, Ranson, Salisbury, Salmans, Schraad, Steffes, Steineger,
Tyson, Umbarger, Vidricksen.
  Absent or not voting: Gooch.
  The bill passed.

REPORT ON ENGROSSED BILLS

  SB 10, 133, 205 reported correctly engrossed March 27, 1997.
  Also, SB 32, 60, 110 correctly re-engrossed March 27, 1997.

REPORT ON ENROLLED BILLS

  SR 1836 reported correctly enrolled, properly signed and presented to
the Secretary of the Senate on March 27, 1997.

COMMITTEE OF THE WHOLE

  On motion of Senator Emert, the Senate resolved itself into Committee of
the Whole for consideration of bills on the calendar under the heading of
General Orders with Senator Lawrence in the chair.
  On motion of Senator Lawrence the following report was adopted:
  Recommended that HB 2218 be amended by adoption of the committee
amendments, and the bill be passed as amended.
  HB 2129 be amended by adoption of the committee amendments, be
further amended by motion of Senator Salmans on page 1, in line 37, preceding
``under'' by inserting ``insofar as such practice is part of the duties of
such person's paid position and is performed solely on behalf of the
employer, so long as such practice is'', and the bill be passed as further
amended.
  On motion of Senator Emert, the Committee reconsidered its action on HB
2129, and the bill was amended by motion of Senator Emert on page 5, in
line 20, by striking ``mental'' and inserting ``: (1) Mental''; in line 25,
after ``treatment'' by inserting ``; or
  (2)  mental condition, whether congenital or acquired, which affects the
person's emo tional or volitional capacity predisposing that person to commit
sexually violent offenses. The provisions of this subsection (e)(2) shall be
effective on the date of the issuance by the United States supreme court of
an opinion in the case of State of Kansas vs. LeRoy Hen dricks, case
no. 95-1649, which holds the sexually violent predator act, K.S.A. 59-29a01
et seq., unconstitutional and shall expire on June 30, 1998'';
  Also on page 5, in line 27, by striking ``a'' and inserting ``: (A) A''; in
line 28, after ``(e)'' by inserting ``(1)''; in line 33, after ``disorder''
by inserting ``; or
  (B)  a mentally ill person, as defined in subsection (e)(2) who also has
committed an act that would constitute a sexually violent offense and
presents a continuing threat of harm to self or others. The provisions of
this subsection (f)(1)(B) shall be effective on the date of the issuance by
the United States supreme court of an opinion in the case of State of
Kansas vs. LeRoy Hendricks, case no. 95-1649, which holds the sexually
violent predator act, K.S.A. 59-29a01 et seq., unconstitutional and
shall expire on June 30, 1998'';
  On page 8, after line 2, by inserting:
  ``(p)  ``Sexually violent offense'' means:
  (1)  Rape, K.S.A. 21-3502 and amendments thereto;
  (2)  indecent liberties with a child, K.S.A. 21-3503 and amendments
thereto;
  (3)  aggravated indecent liberties with a child, K.S.A. 21-3504 and
amendments thereto;
  (4)  criminal sodomy, subsection (a)(2) and (a)(3) of K.S.A. 21-3505 and
amendments thereto;
  (5)  aggravated criminal sodomy, K.S.A. 21-3506 and amendments thereto;
  (6)  indecent solicitation of a child, K.S.A. 21-3510 and amendments
thereto;
  (7)  aggravated indecent solicitation of a child, K.S.A. 21-3511 and
amendments thereto;
  (8)  sexual exploitation of a child, K.S.A. 21-3516 and amendments thereto;
  (9)  aggravated sexual battery, K.S.A. 3518 and amendments thereto;
  (10)  any conviction for a felony offense in effect at any time prior to
the effective date of this act, that is comparable to a sexually violent
offense as defined in subparagraphs (1)

                                 March 27, 1997                             387

through (9), or any federal or other state conviction for a felony offense
that under the laws of this state would be a sexually violent offense as
defined in this section.
  (11)  an attempt, conspiracy or criminal solicitation, as defined in K.S.A.
21-3301, 213302, 21-3303 and amendments thereto, of a sexually violent
offense as defined in this section; or
  (12)  any act which at the time of sentencing for the offense has been
determined beyond a reasonable doubt to have been sexually motivated. As used
in this subparagraph, ``sexually motivated'' means that one of the purposes
for which the defendant committed the crime was for the purpose of the
defendant's sexual gratification.
  The provisions of this subsection (p) shall be effective on the date of the
issuance by the United States supreme court of an opinion in the case of
State of Kansas vs. LeRoy Hen dricks, case no. 95-1649, which holds the
sexually violent predator act, K.S.A. 59-29a01 et seq.,
unconstitutional and shall expire on June 30, 1998.'';
  On page 15, after line 28, by inserting:
  ``Sec. 11.  K.S.A. 1996 Supp. 59-2972 is hereby amended to read as follows:
59-2972.   (a) The Except as provided in subsection (c), the
secretary of social and rehabilitation services or the secretary's designee
may transfer any patient from any state psychiatric hospital under the
secretary's control to any other state psychiatric hospital whenever the
secretary or the secretary's designee considers it to be in the best
interests of the patient. Except in the case of an emergency, the patient's
spouse or nearest relative or legal guardian, if one has been appointed,
shall be notified of the transfer, and notice shall be sent to the committing
court not less than 14 days before the proposed transfer. The notice shall
name the hospital to which the patient is proposed to be transferred to and
state that, upon request of the spouse or nearest relative or legal guardian,
an opportunity for a hearing on the proposed transfer will be provided by the
secretary of social and rehabilitation services prior to such transfer.
  (b)  The Except as provided in subsection (c), the secretary of
social and rehabilitation services or the designee of the secretary may
transfer any involuntary patient from any state psychiatric hospital to any
state institution for the mentally retarded whenever the secretary of social
and rehabilitation services or the designee of the secretary considers it to
be in the best interests of the patient. Any patient transferred as provided
for in this subsection shall remain subject to the same statutory provisions
as were applicable at the psychiatric hospital from which the patient was
transferred and in addition thereto shall abide by and be subject to all the
rules and regulations of the retardation institution to which the patient has
been transferred. Except in the case of an emergency, the patient's spouse or
nearest relative or legal guardian, if one has been appointed, shall be
notified of the transfer, and notice shall be sent to the committing court
not less than 14 days before the proposed transfer. The notice shall name the
institution to which the patient is proposed to be transferred to and state
that, upon request of the spouse or nearest relative or legal guardian, an
opportunity for a hearing on the proposed transfer will be provided by the
secretary of social and re habilitation services prior to such transfer. No
patient shall be transferred from a state psychiatric hospital to a state
institution for the mentally retarded unless the superintendent of the
receiving institution has found, pursuant to K.S.A. 76-12b01 through 76-12b11
and amendments thereto, that the patient is mentally retarded and in need of
care and training and that placement in the institution is the least
restrictive alternative available. Nothing in this subsection shall prevent
the secretary of social and rehabilitation services or the designee of the
secretary from allowing a patient at a state psychiatric hospital to be
admitted as a voluntary resident to a state institution for the mentally
retarded, or from then discharging such person from the state psychiatric
hospital pursuant to K.S.A. 1996 Supp. 59-2973 and amendments thereto, as may
be appropriate.
  (c)  At all times, any person admitted to or detained at a state
psychiatric hospital upon an application made pursuant to K.S.A. 1996 Supp.
59-2954, and amendments thereto, or an order issued pursuant to K.S.A. 1996
Supp. 59-2958, 59-2959, 59-2964, 59-2966 or 592969, and amendments thereto,
and who is alleged to be or who has been determined to be a mentally ill
person subject to involuntary commitment for care and treatment, as defined
in subsection (f)(1)(B) of K.S.A. 1996 Supp. 59-2946, and amendments thereto,
shall be kept in a separate secure facility or building and segregated at all
times from any other patient alleged to be or who has been determined to be a
mentally ill person subject to involuntary

388                          JOURNAL OF THE SENATE

commitment for care and treatment, as defined in subsection (f)(1)(A) of
K.S.A. 1996 Supp. 59-2946, and amendments thereto. The provisions of this
subsection (c) shall be effective on the date of the issuance by the United
States supreme court of an opinion in the case of State of Kansas vs.
LeRoy Hendricks, case no. 95-1649, which holds the sexually violent
predator act, K.S.A. 59-29a01 et seq., unconstitutional and shall
expire on June 30, 1998.
  New Sec. 12.  The attorney general shall have concurrent authority with any
county or district attorney to file a petition pursuant to K.S.A. 1996 Supp.
59-2957, and amendments thereto and to prepare all necessary papers, to
appear at any hearing and to present such evidence as the attorney general
determines to be of aid to the court in determining the issues before the
court in any case wherein it is alleged that a person is or continues to be a
mentally ill person subject to involuntary commitment for care and treatment,
as defined in subsection (f)(1)(B) of K.S.A. 1996 Supp. 59-2946, and
amendments thereto. The pro visions of this section shall be part of and
supplemental to the care and treatment act for mentally ill persons. The
provisions of this section shall be effective on the date of the issuance by
the United States supreme court of an opinion in the case of State of
Kansas vs. LeRoy Hendricks, case no. 95-1649, which holds the sexually
violent predator act, K.S.A. 59-29a01 et seq., unconstitutional and
shall expire on June 30, 1998.
  New Sec. 13.  In each proceeding in which it is alleged that a person is or
continues to be a mentally ill person subject to involuntary commitment for
care and treatment, as defined in subsection (f)(1)(B) of K.S.A. 1996 Supp.
59-2946, and amendments thereto, the court shall allow and order paid a
reasonable fee and expenses for an attorney appointed by the court to
represent the person against whom the petition was filed, which fee and ex
penses shall be taxed to the estate of the patient, to those bound by law to
support such patient or to the state of Kansas, except if a proposed patient
is found not to be a mentally ill person subject to involuntary commitment
under this act, the costs shall not be assessed against such patient's
estate. Any fee or expenses taxes to the state of Kansas shall be considered
a special claim against the state and considered in like manner by the
legislature at its next session. The provisions of this section shall be part
of and supplemental to the care and treatment act for mentally ill persons.
The provisions of this section shall be ef fective on the date of the
issuance by the United States supreme court of an opinion in the case of
State of Kansas vs. LeRoy Hendricks, case no. 95-1649, which holds the
sexually violent predator act, K.S.A. 59-29a01 et seq.,
unconstitutional and shall expire on June 30, 1998.
  New Sec. 14.  Upon the provisions of subsections (e)(2), (f)(1)(B) and (p)
of K.S.A. 1996 Supp. 59-2946 and 59-2972 and sections 12 and 13 of this act
taking effect, the attorney general shall give notice of such fact by
publishing such notice in the Kansas register, but such notice requirement
shall not be necessary for  such provisions to take effect and be in
force.'';
  And by renumbering sections accordingly;
  Also on page 15, after line 36, by inserting:
  ``Sec. 17.  On the date of the issuance by the United States supreme court
of an opinion in the case of State of Kansas vs. LeRoy Hendricks, case
no. 95-1649, which holds the sexually violent predator act, K.S.A. 59-29a01
et seq., unconstitutional, K.S.A. 1996 Supp. 59-2972 and section 1 of
chapter 172 of the 1996 Session Laws of Kansas, section 2 of chapter 172 of
the 1996 Session Laws of Kansas, section 3 of chapter 172 of the 1996 Session
Laws of Kansas, section 4 of chapter 172 of the 1996 Session Laws of Kansas
and section 5 of chapter 172 of the 1996 Session Laws of Kansas are hereby
repealed.'';
  And by renumbering sections accordingly;
  On page 1, in the title, in line 14, after the semicolon, by inserting
``care and treatment act for mentally ill persons;''; in line 16, after
``59-2946,'' by inserting ``59-2972,''; in line 21, after ``Kansas'' by
inserting ``and section 1 of chapter 172 of the 1996 Session laws of Kansas,
section 2 of chapter 172 of the 1996 Session Laws of Kansas, section 3 of
chapter 172 of the 1996 Session laws of Kansas, section 4 of chapter 172 of
the 1996 Sessions Laws of Kansas and section 5 of chapter 172 of the 1996
Session laws of Kansas'', and the bill be passed as further amended.
  SCR 1606 be amended by adoption of the committee amendments.

                                 March 27, 1997                             389

  Senator Huelskamp moved to amend the concurrent resolution on page 2, in
line 36, by striking ``general'' and inserting ``primary''; also in line 36,
after ``election'' by inserting ``to be held in August''.
  The motion failed and the amendment was rejected.
  The motion to recommend SCR 1606 as amended favorably for passage
failed, and SCR 1606 as amended remains on General Orders.
  On motion of Senator Emert, the Senate recessed until 1:30 p.m.
 Afternoon Session   The Senate met pursuant to recess with President
Bond in the chair.

CHANGE OF REFERENCE

  The President withdrew HB 2098 from the Committee on Ways and Means,
and rere ferred the bill to the Committee on Education.
  The President withdrew HB 2022, 2350 from General Orders and referred
the bills to the Committee on Ways and Means.

MESSAGE FROM THE GOVERNOR

  SB 83, 121 approved on March 26, 1997.

MESSAGE FROM THE HOUSE

  Announcing passage of HB 2160, 2166, 2272.
  Also, passage of SB 41, as amended, 221, as amended.
  The House accedes to the request of the Senate for a conference on SB
32 and has appointed Representatives Cox, Humerickhouse and Correll as
conferees on the part of the House.
  The House accedes to the request of the Senate for a conference on SB
164 and has appointed Representatives Mayans, Morrison and Henry as
conferees on the part of the House.
  The House accedes to the request of the Senate for a conference on SB
165 and has appointed Representatives Mayans, Morrison and Henry as
conferees on the part of the House.
  The House accedes to the request of the Senate for a conference on SB
204 and has appointed Representatives Bradley, Wilson and Kirk as
conferees on the part of the House.
  The House accedes to the request of the Senate for a conference on SB
333 and has appointed Representatives Myers, Sloan and Burroughs as
conferees on the part of the House.

INTRODUCTION OF HOUSE BILLS AND CONCURRENT RESOLUTIONS

  HB 2160, 2166, 2272 were thereupon introduced and read by title.

CONSIDERATION OF MOTIONS TO CONCUR OR NONCONCUR

  Senator Hardenburger moved the Senate Concur in house amendments to SB
33.
  SB 33, An act concerning municipalities; relating to the bonding of
certain officers; amending K.S.A. 19-4204 and 19-4206 and repealing the
existing sections, was considered on final action.
  On roll call, the vote was: Yeas 40, nays 0, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Prae ger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  The Senate concurred.
  Senator Langworthy moved the Senate Concur in house amendments to SB 41.

390                          JOURNAL OF THE SENATE

  SB 41, An act relating to property taxation; exempting residential
property from certain school levies; repealing section 11 of 1997 House Bill
No. 2031, was considered on final action.
  On roll call, the vote was: Yeas 37, nays 0, present and passing 3; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Langworthy, Lawrence, Lee,
Oleen, Petty, Praeger, Pugh, Ranson, Salisbury, Salmans, Schraad, Steffes,
Steineger, Tyson, Umbarger, Vidricksen.
  Present and passing: Karr, Kerr, Morris.
  The Senate concurred.

REPORTS OF STANDING COMMITTEES

  Committee on Commerce begs leave to submit the following report:
  The following appointments were referred to and considered by the committee
and your committee recommends that the Senate approve and consent to such
appointments:
  By the Governor:
Kansas Performance Review Board: K.S.A. 1996 Supp. 75-7102
  Jeanne Andra Cranford, term expires June 30, 1998
  Clarence ``Bud'' Burgess, term expires June 30, 2000
  Dale K. Davis, term expires June 30, 2000
  Howard R. Fricke, term expires June 30, 2000
  F. Lynn Markel, term expires June 30, 1998
  Committee on Federal and State Affairs recommends SB 21, 230, 233,
307 be not passed.
  Also HB 2159, as amended by House Committee of the Whole, be reported
without recommendation.
~


390                          JOURNAL OF THE SENATE


COMMITTEE OF THE WHOLE

  The Committee returned to consideration of bills on the calendar under the
heading of General Orders with Senator Lawrence in the chair.
  Recommended that HB 2050, 2264, 2389, 2444 be passed.
  Also SB 161; HB 2185, 2361 be amended by adoption of the committee
amendments, and the bills be passed as amended.
  HB 2223 be amended by motion of Senator Kerr on page 4, after line
23, by inserting the following:
  ``Sec. 3.  K.S.A. 1996 Supp. 12-17,118 is hereby amended to read as
follows: 12-17,118.   (a) Following adoption of a plan pursuant to K.S.A.
1996 Supp. 12-17,117 and amendments thereto, the governing body shall create
a neighborhood revitalization fund to finance the redevelopment of designated
revitalization areas and dilapidated structures and to provide rebates
authorized by this section. Moneys may be budgeted and transferred to such
fund from any source which may be lawfully utilized for such purposes. Any
municipality may expend money from the general fund of such municipality to
accomplish the purposes of this act.
  (b)  Moneys credited to such fund from annually budgeted transfers shall
not be subject to the provisions of K.S.A. 79-2925 through 79-2937, and
amendments thereto. In making the budget of the municipality, the amounts
credited to, and the amount on hand in, such neighborhood revitalization fund
and the amount expended therefrom shall be shown thereon for the information
of taxpayers. Moneys in such fund may be invested in accordance with K.S.A.
10-131, and amendments thereto with the interest credited to the fund.
  (c)  If the governing body determines that money which has been credited to
such fund or any part thereof is not needed for the purposes for which so
budgeted or transferred, the governing body may transfer such amount not
needed to the fund from which it came and such retransfer and expenditure
shall be subject to the provisions of K.S.A. 79-2925 through 79-2937, and
amendments thereto.
  (d)  Any increment in ad valorem property taxes levied by the municipality
resulting from improvements by a taxpayer to property in a neighborhood
revitalization area or to a dilapidated structure may be credited to the fund
for the purpose of returning all or a part

                                 March 27, 1997                             391

of the property increment to the taxpayer in the form of a rebate.
Applications for rebates shall be submitted in the manner and subject to the
conditions provided by the revitalization plan adopted under K.S.A. 1996
Supp. 12-17,117 and amendments thereto. Upon approval of an application
received hereunder the municipality shall rebate all or a part of incremental
increases in ad valorem property tax resulting from the improvements. Upon
payment of taxes by the taxpayer, the rebate must be made within 30 days
after the next distribution date as specified in K.S.A. 12-1678a, and
amendments thereto.
  (e)  No later than November 1 of each year the county clerk of each
county shall certify to the state commissioner of education the assessed
valuation amount of any school district therein for which tax increment
rebates have been made by the school district during the previous year in
accordance with an interlocal agreement approved by the board of edu cation
of such district under the provisions of K.S.A. 1996 Supp. 12-17,119 and
amendments thereto. The amount of the assessed valuation shall be determined
by dividing the total amount of tax increment rebates paid by the district
during the preceding 12 months by the total of the ad valorem tax levy rates
levied by or on behalf of the district in the previous year. The commissioner
of education shall annually deduct the certified amounts of assessed
valuation for such rebates from the total assessed valuation of the district
in determining the total and per pupil assessed valuations used in the
allocation of state aid payments to school districts.'';
  And by renumbering sections accordingly;
  Also on page 4, in line 24, after ``12-6a06'' by inserting ``and K.S.A.
1996 Supp. 12-17,118'';
  On page 1, in the title, in line 10, before ``amending'' by inserting
``neighborhood revi talization;''; in line 11, after ``12-6a06'' by inserting
``and K.S.A. 1996 Supp. 12-17,118'', and the bill be passed as amended.
  HB 2011 be amended by adoption of the committee amendments, be
further amended by motion of Senator Salisbury on page 2, after line 11, by
inserting additional sections as follows:
  ``Sec. 2.  K.S.A. 44-505 is hereby amended to read as follows: 44-505. (a)
Subject to the provisions of K.S.A. 44-506 and amendments thereto, the
workers compensation act shall apply to all employments wherein employers
employ employees within this state except that such act shall not apply to:
  (1)  Agricultural pursuits and employments incident thereto, other than
those employ ments in which the employer is the state, or any department,
agency or authority of the state;
  (2)  any employment, other than those employments in which the employer is
the state, or any department, agency or authority of the state, wherein the
employer had a total gross annual payroll for the preceding calendar year of
not more than $20,000 for all employees and wherein the employer reasonably
estimates that such employer will not have a total gross annual payroll for
the current calendar year of more than $20,000 for all employees, except that
no wages paid to an employee who is a member of the employer's family by
marriage or consanguinity shall be included as part of the total gross annual
payroll of such employer for purposes of this subsection, except where the
employer is a self-employed subcontractor under circumstances wherein K.S.A.
44-503, and amendments thereto, would otherwise apply;
  (3)  any employment, other than those employments in which the employer is
the state, or any department, agency or authority of the state, wherein the
employer has not had a payroll for a calendar year and wherein the employer
reasonably estimates that such em ployer will not have a total gross annual
payroll for the current calendar year of more than $20,000 for all employees,
except that no wages paid to an employee who is a member of the employer's
family by marriage or consanguinity shall be included as a part of the total
gross annual payroll of such employer for purposes of this subsection;
  (4)  the employment of any firefighters who are members of a firemen's
relief association for whom a valid statement of election to except such
members from the provisions of the workers compensation act has been filed
with the director by the governing body of such firemen's relief association
as provided in K.S.A. 44-505d and amendments thereto; or
  (5)  services performed by a qualified real estate agent as an independent
contractor. For the purposes of this act a qualified real estate agent shall
be deemed to be an inde

392                          JOURNAL OF THE SENATE

pendent contractor if such qualified real estate agent is licensed by the
Kansas real estate commission as a salesperson under the real estate brokers'
and salespersons' license act and for whom: (A) Substantially all of the
remuneration, whether or not paid in cash, for the services performed by such
individual as a real estate salesperson is directly related to sales or other
output, including the performance of services, rather than to the number of
hours worked; and (B) the services performed by the individual are performed
pursuant to a written contract between such individual and the person for
whom the services are per formed and such contract provides that the
individual will not be treated as an employee with respect to such services
for state tax purposes.
  (b)  Each employer who employs employees in employments which are excepted
from the provisions of the workers compensation act as provided in subsection
(a) of this section, shall be entitled to come within the provisions of such
act by: (1) Becoming a member in and by maintaining a membership in a
qualified group-funded workers' compensation pool, as provided by K.S.A.
44-581 to 44-591, inclusive, and amendments thereto; or (2) filing with the
director a written statement of election to accept thereunder. Such written
state ment of election shall be effective from the date of filing until such
time as the employer files a written statement withdrawing such election with
the director. All written statements of election or of withdrawal of election
filed pursuant to this subsection shall be in such form as may be required by
the director by rules and regulations.
  (c)  This act shall not apply in any case where the accident occurred prior
to the effective date of this act. All rights which accrued by reason of any
such accident shall be governed by the laws in effect at that time.
  Sec. 3.  K.S.A. 1996 Supp. 44-508 is hereby amended to read as follows:
44-508. As used in the workers compensation act:
  (a)  ``Employer'' includes: (1) Any person or body of persons, corporate or
unincorporate, and the legal representative of a deceased employer or the
receiver or trustee of a person, corporation, association or partnership; (2)
the state or any department, agency or authority of the state, any city,
county, school district or other political subdivision or municipality or
public corporation and any instrumentality thereof; and (3) for the purposes
of community service work, the entity for which the community service work is
being performed and the governmental agency which assigned the community
service work, if any, if either such entity or such governmental agency has
filed a written statement of election with the director to accept the
provisions under the workers compensation act for persons performing com
munity service work and in such case such entity and such governmental agency
shall be deemed to be the joint employer of the person performing the
community service work and both shall have the rights, liabilities and
immunities provided under the workers compen sation act for an employer with
regard to the community service work, except that the liability for providing
benefits shall be imposed only on the party which filed such election with
the director, or on both if both parties have filed such election with the
director; for purposes of community service work, ``governmental agency''
shall not include any court or any officer or employee thereof and any case
where there is deemed to be a ``joint employer'' shall not be construed to be
a case of dual or multiple employment.
  (b)  ``Workman'' or ``employee'' or ``worker'' means any person who has
entered into the employment of or works under any contract of service or
apprenticeship with an employer. Such terms shall include but not be limited
to: Executive officers of corporations; profes sional athletes; persons
serving on a volunteer basis as duly authorized law enforcement officers,
ambulance attendants, mobile intensive care technicians, firefighters, but
only to the extent and during such periods as they are so serving in such
capacities; persons em ployed by educational, religious and charitable
organizations, but only to the extent and during the periods that they are
paid wages by such organizations; persons in the service of the state, or any
department, agency or authority of the state, any city, school district, or
other political subdivision or municipality or public corporation and any
instrumentality thereof, under any contract of service, express or implied,
and every official or officer thereof, whether elected or appointed, while
performing official duties; persons in the serv ice of the state as volunteer
members of the Kansas department of civil air patrol, but only to the extent
and during such periods as they are officially engaged in the performance of
functions specified in K.S.A. 48-3302 and amendments thereto; volunteers in
any employ

                                 March 27, 1997                             393

ment, if the employer has filed an election to extend coverage to such
volunteers; minors, whether such minors are legally or illegally employed;
and persons performing community service work, but only to the extent and
during such periods as they are performing com munity service work and if an
election has been filed an election to extend coverage to such persons. Any
reference to an employee who has been injured shall, where the employee is
dead, include a reference to the employee's dependents, to the employee's
legal represen tatives, or, if the employee is a minor or an incapacitated
person, to the employee's guardian or conservator. Unless there is a valid
election in effect which has been filed as provided in K.S.A. 44-542a and
amendments thereto, such terms shall not include individual employers,
limited or general partners or self-employed persons, except a
self-employed subcontractor performing work for a contractor.
  (c) (1)  ``Dependents'' means such members of the employee's family as were
wholly or in part dependent upon the employee at the time of the accident.
  (2)  ``Members of a family'' means only surviving legal spouse and
children; or if no surviving legal spouse or children, then parents or
grandparents; or if no parents or grand parents, then grandchildren; or if no
grandchildren, then brothers and sisters. In the mean ing of this section,
parents include stepparents, children include stepchildren, grandchildren
include stepgrandchildren, brothers and sisters include stepbrothers and
stepsisters, and children and parents include that relation by legal
adoption. In the meaning of this section, a surviving spouse shall not be
regarded as a dependent of a deceased employee or as a member of the family,
if the surviving spouse shall have for more than six months willfully or
voluntarily deserted or abandoned the employee prior to the date of the
employee's death.
  (3)  ``Wholly dependent child or children'' means:
  (A)  A birth child or adopted child of the employee except such a child
whose relationship to the employee has been severed by adoption;
  (B)  a stepchild of the employee who lives in the employee's household;
  (C)  any other child who is actually dependent in whole or in part on the
employee and who is related to the employee by marriage or consanguinity; or
  (D)  any child as defined in subsections (3)(A), (3)(B) or (3)(C) who is
less than 23 years of age and who is not physically or mentally capable of
earning wages in any type of sub stantial and gainful employment or who is a
full-time student attending an accredited insti tution of higher education or
vocational education.
  (d)  ``Accident'' means an undesigned, sudden and unexpected event or
events, usually of an afflictive or unfortunate nature and often, but not
necessarily, accompanied by a manifestation of force. The elements of an
accident, as stated herein, are not to be construed in a strict and literal
sense, but in a manner designed to effectuate the purpose of the workers
compensation act that the employer bear the expense of accidental injury to a
worker caused by the employment.
  (e)  ``Personal injury'' and ``injury'' mean any lesion or change in the
physical structure of the body, causing damage or harm thereto, so that it
gives way under the stress of the worker's usual labor. It is not essential
that such lesion or change be of such character as to present external or
visible signs of its existence.  An injury shall not be deemed to have been
directly caused by the employment where it is shown that the employee suffers
disa bility as a result of the natural aging process or by the normal
activities of day-to-day living.
  (f)  The words ``arising out of and in the course of employment'' as used
in the workers compensation act shall not be construed to include injuries to
the employee occurring while the employee is on the way to assume the duties
of employment or after leaving such duties, the proximate cause of which
injury is not the employer's negligence. An employee shall not be construed
as being on the way to assume the duties of employment or having left such
duties at a time when the worker is on the premises of the employer or on the
only available route to or from work which is a route involving a special
risk or hazard and which is a route not used by the public except in dealings
with the employer. An employee shall not be construed as being on the way to
assume the duties of employment, if the employee is a provider of emergency
services responding to an emergency.
  The words, ``arising out of and in the course of employment'' as used in
the workers compensation act shall not be construed to include injuries to
employees while engaged in recreational or social events under circumstances
where the employee was under no duty

394                          JOURNAL OF THE SENATE

to attend and where the injury did not result from the performance of tasks
related to the employee's normal job duties or as specifically instructed to
be performed by the employer.
  (g)  ``Burden of proof'' means the burden of a party to persuade the trier
of facts by a preponderance of the credible evidence that such party's
position on an issue is more prob ably true than not true on the basis of the
whole record.
  (h)  ``Director'' means the director of workers compensation as provided
for in K.S.A. 75-5708 and amendments thereto.
  (i)  ``Health care provider'' means any person licensed, by the proper
licensing authority of this state, another state or the District of Columbia,
to practice medicine and surgery, osteopathy, chiropractic, dentistry,
optometry, podiatry or psychology.
  (j)  ``Secretary'' means the secretary of human resources.
  (k)  ``Construction design professional'' means any person who is an
architect, profes sional engineer, landscape architect or land surveyor who
has been issued a license by the state board of technical professions to
practice such technical profession in Kansas or any corporation organized to
render professional services through the practice of one or more of such
technical professions in Kansas under the professional corporation law of
Kansas or any corporation issued a certificate of authorization under K.S.A.
74-7036 and amendments thereto to practice one or more of such technical
professions in Kansas.
  (l)  ``Community service work'' means: (1) Public or community service
performed as a result of a contract of diversion or of assignment to a
community corrections program or conservation camp or suspension of sentence
or as a condition of probation or in lieu of a fine imposed by court order;
or (2) public or community service or other work performed as a requirement
for receipt of any kind of public assistance in accordance with any program
administered by the secretary of social and rehabilitation services.
  (m)  ``Utilization review'' means the initial evaluation of appropriateness
in terms of both the level and the quality of health care and health services
provided a patient, based on accepted standards of the health care profession
involved. Such evaluation is accomplished by means of a system which
identifies the utilization of health care services above the usual range of
utilization for such services, which is based on accepted standards of the
health care profession involved, and which refers instances of possible
inappropriate utilization to the director for referral to a peer review
committee.
  (n)  ``Peer review'' means an evaluation by a peer review committee of the
appropriate ness, quality and cost of health care and health services
provided a patient, which is based on accepted standards of the health care
profession involved and which is conducted in conjunction with utilization
review.
  (o)  ``Peer review committee'' means a committee composed of health care
providers licensed to practice the same health care profession as the health
care provider who rendered the health care services being reviewed.
  (p)  ``Group-funded self-insurance plan'' includes each group-funded
workers compen sation pool, which is authorized to operate in this state
under K.S.A. 44-581 through 44592 and amendments thereto, each municipal
group-funded pool under the Kansas munic ipal group-funded pool act which is
covering liabilities under the workers compensation act, and any other
similar group-funded or pooled plan or arrangement that provides coverage for
employer liabilities under the workers compensation act and is authorized by
law.
  (q)  On and after the effective date of this act, ``workers compensation
board'' or ``board'' means the workers compensation board established under
K.S.A. 1996 Supp. 44-555c and amendments thereto.
  Sec. 4.  K.S.A. 1996 Supp. 44-510 is hereby amended to read as follows:
44-510. Except as otherwise provided therein, medical compensation under the
workers compensation act shall be as follows:
  (a)  It shall be the duty of the employer to provide the services of a
health care provider, and such medical, surgical and hospital treatment,
including nursing, medicines, medical and surgical supplies, ambulance,
crutches, and apparatus, and transportation to and from the home of the
injured employee to a place outside the community in which such employee
resides, and within such community if the director in the director's
discretion so orders, including transportation expenses computed in
accordance with subsection (a) of K.S.A. 44

                                 March 27, 1997                             395

515 and amendments thereto, as may be reasonably necessary to cure and
relieve the em ployee from the effects of the injury.
  (1)  The director shall appoint, subject to the approval of the secretary,
a specialist in health services delivery, who shall be referred to as the
medical administrator. The medical administrator shall be a person licensed
to practice medicine and surgery in this state and shall be in the
unclassified service under the Kansas civil service act. The medical admin
istrator, subject to the direction of the director, shall have the duty of
overseeing the pro viding of health care services to employees in accordance
with the provisions of the workers compensation act, including but not
limited to:
  (A)  Preparing, with the assistance of the advisory panel, the fee schedule
for health care services as set forth in this section;
  (B)  developing, with the assistance of the advisory panel, the utilization
review program for health care services as set forth in this section;
  (C)  developing procedures for appeals and review of disputed charges or
services ren dered by health care providers under this section;
  (D)  developing a system for collecting and analyzing data on expenditures
for health care services by each type of provider under the workers
compensation act; and
  (E)  carrying out such other duties as may be delegated or directed by the
director or secretary.
  (2)  The director shall prepare and adopt rules and regulations, which
shall be in effect on or before July 1, 1993, and which establish a
schedule of maximum fees for medical, surgical, hospital, dental, nursing,
vocational rehabilitation or any other treatment or services provided or
ordered by health care providers and rendered to employees under the workers
compensation act. The schedule shall include provisions and review procedures
for excep tional cases involving extraordinary medical procedures or
circumstances and shall include costs and charges for medical records and
testimony.
  (3)  The schedule of maximum fees shall be reasonable, shall promote health
care cost containment and efficiency with respect to the workers compensation
health care delivery system, and shall be sufficient to ensure availability
of such reasonably necessary treatment, care and attendance to each injured
employee to cure and relieve the employee from the effects of the injury.
  (4) (A)  In every case, all fees, transportation costs, charges under this
section and all costs and charges for medical records and testimony shall be
subject to approval by the director and shall be limited to such as are fair,
reasonable and necessary. The schedule of maximum fees shall be reviewed
annually revised as necessary at least every two years by the
director to assure that the schedule is current, reasonable and fair.
  (B)  There is hereby created an advisory panel to assist the director in
establishing a schedule of maximum fees as required by this section. The
panel shall consist of the com missioner of insurance and seven members
appointed as follows:  (i) One person shall be appointed by the Kansas
medical society, (ii) one member shall be appointed by the Kansas association
of osteopathic medicine, (iii) one member shall be appointed by the Kansas
hospital association, (iv) one member shall be appointed by the Kansas
chiropractic asso ciation, and (v) three members appointed by the secretary.
One member appointed by the secretary shall be a representative of employers
recommended to the secretary by the Kansas chamber of commerce and industry.
One member appointed by the secretary shall be a representative of employees
recommended to the secretary by the Kansas AFL-CIO. One member appointed by
the secretary shall be a representative of entities providing vocational
rehabilitation services pursuant to K.S.A. 44-510g and amendments thereto.
Each appointed member shall be appointed for a term of office of two years
which shall commence on July 1 of the year of appointment.
  (C)  All fees and other charges paid for such treatment, care and
attendance, including treatment, care and attendance provided by any health
care provider, hospital or other entity providing health care services, shall
not exceed the amounts prescribed by the schedule of maximum fees established
under this section or the amounts authorized pursuant to the provisions and
review procedures prescribed by the schedule for exceptional cases. A health
care provider, hospital or other entity providing health care services shall
be paid either such health care provider, hospital or other entity's usual
charge for the treatment, care and

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attendance or the maximum fees as set forth in the schedule, whichever is
less. In reviewing and approving the schedule of maximum fees, the director
shall consider the following:
  (i)  The levels of fees for similar treatment, care and attendance imposed
by other health care programs or third-party payors in the locality in which
such treatment or services are rendered;
  (ii)  the impact upon cost to employers for providing a level of fees for
treatment, care and attendance which will ensure the availability of
treatment, care and attendance required for injured employees;
  (iii)  the potential change in workers compensation insurance premiums or
costs attrib utable to the level of treatment, care and attendance provided;
and
  (iv)  the financial impact of the schedule of maximum fees upon health care
providers and health care facilities and its effect upon their ability to
make available to employees such reasonably necessary treatment, care and
attendance to each injured employee to cure and relieve the employee from the
effects of the injury.
  (D)  Members of the advisory panel attending meetings of the advisory
panel, or at tending a subcommittee of the advisory panel authorized by the
advisory panel, shall be paid subsistence allowances, mileage and other
expenses as provided in K.S.A. 75-3223 and amendments thereto.
  (5)  Any contract or any billing or charge which any health care provider,
vocational rehabilitation service provider, hospital, person, or institution
enters into with or makes to any patient for services rendered in connection
with injuries covered by the workers com pensation act or the fee schedule
adopted under this section, which is or may be in excess of or not in
accordance with such act or fee schedule, is unlawful, void and unenforceable
as a debt.
  (6)  The director shall have jurisdiction to hear and determine all
disputes as to such charges and interest due thereon and shall prescribe
procedural rules to be followed by the parties to such disputes. In the event
of any controversy arising under this section, payments shall not be delayed
for any amounts not in dispute or controversy. Acceptance by any provider of
services of a payment amount under this section which is less than the full
amount charged for the services, shall not affect the right to have a review
of the claim for the outstanding or remaining amounts. In the event of a
dispute as to such charges, the health care provider, hospital, institution,
person or other provider under this section may appear and be represented in
the action under the workers compensation act.
  (7)  If the director finds, after utilization review and peer review, that
a provider or facility has made excessive charges or provided or ordered
unjustified treatment, services, hospitalization or visits, the provider or
facility shall not receive payment pursuant to this section from an insurance
carrier, employer or employee for the excessive fees or unjustified
treatment, services, hospitalization or visits and such provider or facility
shall repay any fees or charges collected therefor.
  (8)  Not later than December 31, 1993, the director shall develop and
implement, or contract with a qualified entity to develop and implement,
utilization review and peer review procedures relating to the services
rendered by providers and facilities, which services are paid for in whole or
in part pursuant to the workers compensation act. The director may contract
with one or more private foundations or organizations to provide utilization
review, as appropriate, of entities providing health care services or
vocational rehabilitation services, or both, pursuant to the workers
compensation act.
  (9)  By accepting payment pursuant to this section for treatment or
services rendered to an injured employee, a health care provider or health
care facility shall be deemed to consent to submitting all necessary records
to substantiate the nature and necessity of the service or charge and other
information concerning such treatment to utilization review and peer review
under this section. Such health care provider shall comply with any decision
of the director pursuant to subsection (a)(10).
  (10)  If it is determined by a peer review committee that a provider
improperly overu tilized or otherwise rendered or ordered unjustified
treatment or services or that the fees for such treatment or services were
excessive, the director may order the provider to show cause why the provider
should not be required to repay the amount which was paid for rendering or
ordering such treatment or services and shall provide the provider a hearing

                                 March 27, 1997                             397

thereon if requested. If a hearing is not requested within 30 days of receipt
of the order and the director decides to proceed with the matter, a hearing
shall be conducted and if a prima facie case is established a final order
shall be issued by the director. If the final order is adverse to a health
care provider, the director shall provide a report to the licensing board of
the health care provider with full documentation of any such determination,
except that no such report shall be provided until after judicial review if
the order is appealed. Any order of the director under this section shall be
subject to review by the board.
  (11)  Except as provided by K.S.A. 60-437 and amendments thereto or this
section, all reports, information, statements, memoranda, proceedings,
findings and records which re late to utilization review or peer review
conducted pursuant to this section, including any records of peer review
committees, shall be privileged and shall not be subject to discovery,
subpoena, or other means of legal compulsion for release to any person or
entity and shall not be admissible in evidence in any judicial or
administrative proceeding, except those proceedings authorized pursuant to
this section.
  (12)  A provider or facility may not improperly charge or overcharge a
workers compen sation insurer or charge for services which were not provided,
for the purpose of obtaining additional payment.
  (13)  Any violation of the provisions of this section which is willful or
which demonstrates a pattern of improperly charging or overcharging workers
compensation insurers constitutes grounds for the director to impose a civil
fine not to exceed $5,000. Any civil fine imposed under this section shall be
subject to review in accordance with the act for judicial review and civil
enforcement of agency actions in the district court for Shawnee county. All
moneys received for civil fines imposed under this section shall be deposited
in the state treasury to the credit of the workers compensation fund.
  (14)  As used in this subsection (a), unless the context or the specific
provisions require otherwise, ``provider'' means any health care provider or
vocational rehabilitation service provider, and ``facility'' means any
facility providing health care services or vocational re habilitation
services, or both, including any hospital.
  (b)  Any health care provider, nurse, physical therapist, any entity
providing medical, physical or vocational rehabilitation services or
providing reeducation or training pursuant to K.S.A. 44-510g and amendments
thereto, medical supply establishment, surgical supply establishment,
ambulance service or hospital who accept the terms of the workers compen
sation act by providing services or material thereunder shall be bound by the
fees approved by the director and no injured employee or dependent of a
deceased employee shall be liable for any charges above the amounts approved
by the director. If the employer has knowledge of the injury and refuses or
neglects to reasonably provide the services of a health care provider
required by this section, the employee may provide the same for such em
ployee, and the employer shall be liable for such expenses subject to the
regulations adopted by the director. No action shall be filed in any court by
a health care provider or other provider of services under this section for
the payment of an amount for medical services or materials provided under the
workers compensation act and no other action to obtain or attempt to obtain
or collect such payment shall be taken by a health care provider or other
provider of services under this section, including employing any collection
service, until after final adjudication of any claim for compensation for
which an application for hearing is filed with the director under K.S.A.
44-534 and amendments thereto. In the case of any such action filed in a
court prior to the date an application is filed under K.S.A. 44-534 and
amendments thereto, no judgment may be entered in any such cause and the
action shall be stayed until after the final adjudication of the claim. In
the case of an action stayed hereunder, any award of compensation shall
require any amounts payable for medical serv ices or materials to be paid
directly to the provider thereof plus an amount of interest at the rate
provided by statute for judgments. No period of time under any statute of
limitation, which applies to a cause of action barred under this subsection,
shall commence or continue to run until final adjudication of the claim under
the workers compensation act.
  (c) (1)  If the director finds, upon application of an injured employee,
that the services of the health care provider furnished as provided in
subsection (a) and rendered on behalf of the injured employee are not
satisfactory, the director may authorize the appointment of some other health
care provider. In any such case, the employer shall submit the names of

398                          JOURNAL OF THE SENATE

three health care providers that are not associated in practice together. The
injured em ployee may select one from the list who shall be the authorized
treating health care provider. If the injured employee is unable to obtain
satisfactory services from any of the health care providers submitted by the
employer under this subsection (c)(1), either party or both parties may
request the director to select a treating health care provider.
  (2)  Without application or approval, an employee may consult a health care
provider of the employee's choice for the purpose of examination, diagnosis
or treatment, but the em ployer shall only be liable for the fees and charges
of such health care provider up to a total amount of $500. The amount allowed
for such examination, diagnosis or treatment shall not be used to obtain a
functional impairment rating. Any medical opinion obtained in violation of
this prohibition shall not be admissible in any claim proceedings under the
workers compensation act.
  (d)  An injured employee whose injury or disability has been established
under the work ers compensation act may rely, if done in good faith, solely
or partially on treatment by prayer or spiritual means in accordance with the
tenets of practice of a church or religious denomination without suffering a
loss of benefits subject to the following conditions:
  (1)  The employer or the employer's insurance carrier agrees thereto in
writing either before or after the injury;
  (2)  the employee submits to all physical examinations required by the
workers compen sation act;
  (3)  the cost of such treatment shall be paid by the employee unless the
employer or insurance carrier agrees to make such payment;
  (4)  the injured employee shall be entitled only to benefits that would
reasonably have been expected had such employee undergone medical or surgical
treatment; and
  (5)  the employer or insurance carrier that made an agreement under
paragraph (1) or   (3) of this subsection may withdraw from the agreement on
10 days' written notice.
  (e)  In any employment to which the workers compensation act applies, the
employer shall be liable to each employee who is employed as a duly
authorized law enforcement officer, ambulance attendant, mobile intensive
care technician or firefighter, including any person who is serving on a
volunteer basis in such capacity, for all reasonable and necessary preventive
medical care and treatment for hepatitis to which such employee is exposed
under circumstances arising out of and in the course of employment.
  (f)  No person shall be subject to civil liability for libel, slander or
any other relevant tort cause of action by virtue of performing utilization
review or peer review under contract with the director pursuant to subsection
(a)(7).
  Sec. 5.  K.S.A. 44-510b is hereby amended to read as follows: 44-510b.
Where death results from injury, compensation shall be paid as provided in
K.S.A. 44-510 and amend ments thereto, and as follows:
  (a)  If an employee leaves any dependents wholly dependent upon the
employee's earn ings at the time of the accident, all compensation benefits
under this section shall be paid to such dependent persons. Such dependents
shall be paid weekly compensation, except as otherwise provided in this
section, in a total sum to all such dependents, equal to 66 2/3% of the
average gross weekly wage of the employee at the time of the accident,
computed as provided in K.S.A. 44-511 and amendments thereto, but in no event
shall such weekly benefits exceed, nor be less than, the maximum and minimum
weekly benefits provided in K.S.A. 44-510c and amendments thereto, subject to
the following:
  (1)  If the employee leaves a surviving legal spouse or a wholly dependent
child or children, or both, who are eligible for benefits under this section,
then all death benefits shall be paid to such surviving spouse or children,
or both, and no benefits shall be paid to any other wholly or partially
dependent persons.
  (2)  A surviving legal spouse shall be paid compensation benefits for life
or until remar riage, except as otherwise provided in this section.
  (3)  Any wholly dependent child of the employee shall be paid compensation,
except as otherwise provided in this section, until such dependent child
becomes 18 years of age, except that any such dependent child who is not
physically or mentally capable of earning wages in any type of substantial
and gainful employment, or who is enrolled as a full-time

                                 March 27, 1997                             399

student in an accredited institution of higher education or vocational
education shall be paid compensation until such dependent child becomes 23
years of age.
  (4)  If the employee leaves no legal spouse or dependent children eligible
for benefits under this section but leaves other dependents wholly dependent
upon the employee's earnings, such other dependents shall receive weekly
compensation benefits as provided in this subsection until death, remarriage
or so long as such other dependents do not receive more than 50% of their
support from any other earnings or income or from any other source, except
that the maximum benefits payable to all such other dependents, regardless of
the number of such other dependents, shall not exceed a maximum amount of
$18,500.
  (b)  Upon the remarriage of a surviving legal spouse receiving compensation
under this section, the benefits being paid to such spouse shall terminate,
except that upon such re marriage 100 weeks of benefits at the highest rate
paid to such spouse under this section shall be paid to such spouse in one
lump sum, except that such lump-sum payment shall be subject to the maximum
amount of compensation payable under this section as prescribed by subsection
(h).
  (c)  Where the employee leaves a surviving legal spouse and dependent
children who were wholly dependent upon the employee's earnings and are
eligible for benefits under this section 1/2 of the maximum weekly benefits
payable shall be apportioned to such spouse and 1/2 to such dependent
children.
  (d)  If an employee does not leave any dependents who were wholly dependent
upon the employee's earnings at the time of the accident but leaves
dependents, other than a spouse or children, in part dependent on the
employee's earnings, such percentage of a sum equal to three times the
employee's average yearly earnings but not exceeding $18,500 but not less
than $2,500, as such employee's average annual contributions which the
employee made to the support of such dependents during the two years
preceding the date of the accident, bears to the employee's average yearly
earnings during the contemporaneous twoyear period, shall be paid in
compensation to such dependents, in weekly payments as provided in subsection
(a), not to exceed $18,500 to all such dependents.
  (e)  The administrative law judge, except as otherwise provided in this
section, shall have the power and authority to apportion and reapportion the
compensation allowed under this section, either to wholly dependent persons
or partially dependent persons, in accordance with the degree of dependency
as of the date of the accident, except that the weekly payment of
compensation to any and all dependents shall not exceed the maximum weekly
benefits provided in subsection (a).
  (f)  In all cases of death compensable under this section, the employer
shall pay the reasonable expense of burial not exceeding $3,300
$4,300.
  (g)  The marriage or death of any dependent shall terminate all
compensation, under this section, to such dependent, but shall not increase
or decrease the compensation allowed to any other dependents except that,
upon the marriage or death of the surviving legal spouse or a dependent
child, the compensation payable to such spouse or child shall be reappor
tioned to those, among the surviving legal spouse and dependent children, who
remain eligible to receive compensation under this section.
  (h)  Notwithstanding any other provision in this section to the contrary,
the maximum amount of compensation benefits payable under this section to any
and all dependents by the employer shall not exceed a total amount of
$200,000 and when such total amount has been paid the liability of the
employer for any further compensation under this section to dependents, other
than minor children of the employee, shall cease except that the payment of
compensation under this section to any minor child of the employee shall
continue for the period of the child's minority at the weekly rate in effect
when the employer's liability is otherwise terminated under this subsection
and shall not be subject to termination under this subsection until such
child becomes 18 years of age.
  (i)  A surviving spouse shall submit an annual statement to the employer
and to the director, in such form and containing such information relating to
eligibility for compen sation under this section as may be required by rules
and regulations of the director. If such spouse fails to submit such an
annual statement, the employer may notify the director of such failure and
the director shall notify such spouse of such failure by certified mail with
return receipt. If such spouse fails to submit the annual statement or fails
to reasonably

400                          JOURNAL OF THE SENATE

provide the required information within 30 days after receipt of the notice
from the director, all compensation benefits paid under this section to such
spouse shall be suspended until such statement is submitted in proper form to
the employer and the director.
  Sec. 6.  K.S.A. 44-523 is hereby amended to read as follows: 44-523. (a)
The director, administrative law judge or board shall not be bound by
technical rules of procedure, but shall give the parties reasonable
opportunity to be heard and to present evidence, insure the employee and the
employer an expeditious hearing and act reasonably without partiality.
  (b)  Whenever a party files an application for hearing pursuant to K.S.A.
44-534 and amendments thereto, the matter shall be assigned to an
administrative law judge for hearing and the administrative law judge shall
set a terminal date to require the claimant to submit all evidence in support
of the claimant's claim no later than 30 days after the first full hearing
before the administrative law judge and to require the respondent to submit
all evidence in support of the respondent's position no later than 30 days
thereafter. An extension of the foregoing time limits shall be granted if
all parties agree. An extension of the foregoing time limits may
also be granted:
  (1)  If all parties agree;
  (2) (1)  If the employee is being paid temporary or permanent
total disability compen sation;
  (3) (2)  for medical examination of the claimant if the party
requesting the extension explains in writing to the administrative law judge
facts showing that the party made a diligent effort but was unable to have a
medical examination conducted prior to the sub mission of the case by the
claimant but then only if the examination appointment was set and notice of
the appointment sent prior to submission by the claimant; or
  (4) (3)  on application for good cause shown.
  (c)  When all parties have submitted the case to an administrative law
judge for an award, the administrative law judge shall issue an award within
30 days. The administrative law judge shall not stay a decision due to the
absence of a submission letter. When the award is not entered in 30 days,
any party to the action may notify the director that an award is not entered
and the director shall assign the matter to an assistant director or to a
special administrative law judge who shall enter an award forthwith based on
the evidence in the record, or the director, on the director's own motion,
may remove the case from the ad ministrative law judge who has not entered an
award within 30 days following submission by the party and assign it to an
assistant director or to a special administrative law judge for immediate
decision based on the evidence in the record.
  (d)  Not less than 10 days prior to the first full hearing before an
administrative law judge, the administrative law judge shall conduct a
prehearing settlement conference for the purpose of obtaining stipulations
from the parties, determining the issues and exploring the possibility that
the parties may resolve those issues and reach a settlement prior to the
first full hearing.'';
  And by renumbering sections accordingly;
  On page 4, in line 17, after the period, by inserting ``The method for
calculating the amount of security required of self-insureds shall be
reviewed by an actuary every five years, beginning in fiscal year 1997. The
costs for these actuarial studies shall be paid from the workers compensation
fee fund.
  (j)  A corporation or other entity whose current identity is attributable
to a merger or other transformation whereby the whole or a substantial part
of a previous entity's assets and income have been transferred to it, and its
liabilities have not increased beyond the financial review requirements of
the director, which qualified under its previous identity as a self-insurer
under other provisions of this statute, and amendments thereto, may apply for
renewal as a self-insurer under its new name. The director may grant the
application for renewal if satisfied that the new entity meets all necessary
financial criteria for renewal that would have been applied to the previous
self-insured entity. An application under these provisions shall be limited
to an entity seeking renewal based upon the prior self-insured status of
another entity or entities.'';
  Also on page 4, after line 17, by inserting additional sections as follows:
  ``Sec. 8.  K.S.A. 44-534 is hereby amended to read as follows: 44-534. (a)
Whenever the employer, worker, Kansas workers compensation fund or
insurance carrier cannot agree

                                 March 27, 1997                             401

upon the worker's right to compensation under the workers compensation act or
upon any issue in regard to workers compensation benefits due the injured
worker thereunder, the employer, worker or insurance carrier may apply in
writing to the director for a determi nation of the benefits or compensation
due or claimed to be due. The application shall be in the form prescribed by
the rules and regulations of the director and shall set forth the substantial
and material facts in relation to the claim. Whenever an application is filed
under this section, the matter shall be assigned to an administrative law
judge. The director shall forthwith mail a certified copy of the application
to the adverse party. The administrative law judge shall proceed, upon due
and reasonable notice to the parties, which shall not be less than 20 days,
to hear all evidence in relation thereto and to make findings concerning the
amount of compensation, if any due to the worker.
  (b)  No proceeding for compensation shall be maintained under the workers
compen sation act unless an application for a hearing is on file in the
office of the director within three years of the date of the accident or
within two years of the date of the last payment of compensation, whichever
is later.
  Sec. 9.  K.S.A. 1996 Supp. 44-534a is hereby amended to read as follows:
44-534a.   (a) (1) After an application for a hearing has been filed pursuant
to K.S.A. 44-534 and amendments thereto, the employee or the employer may
make application for a preliminary hearing, in such form as the director may
require, on the issues of the furnishing of medical treatment and the payment
of temporary total disability compensation. At least seven days prior to
filing an application for a preliminary hearing, the applicant shall give
written notice to the adverse party of the intent to file such an
application. Such notice of intent shall contain a specific statement of the
benefit change being sought that is to be the subject of the requested
preliminary hearing. If the parties do not agree to the change of benefits
within the seven-day period, the party seeking a change in benefits may file
an application for preliminary hearing which shall be accompanied by a copy
of the notice of intent and the applicant's certification that the notice of
intent was served on the adverse party or that party's attorney and that the
request for a benefit change has either been denied or was not answered
within seven days after service. Copies of medical reports or other evidence
which the party intends to produce as exhibits supporting the change of
benefits shall be included with the application. The director shall assign
the application to an administrative law judge who shall set the matter for a
preliminary hearing and shall give at least seven days' written notice by
mail to the parties of the date set for such hearing.
  (2)  Such preliminary hearing shall be summary in nature and shall be held
by an ad ministrative law judge in any county designated by the
administrative law judge, and the administrative law judge shall exercise
such powers as are provided for the conduct of full hearings on claims under
the workers compensation act. Upon a preliminary finding that the injury to
the employee is compensable and in accordance with the facts presented at
such preliminary hearing, the administrative law judge may make a preliminary
award of medical compensation and temporary total disability compensation to
be in effect pending the conclusion of a full hearing on the claim, except
that if the employee's entitlement to medical compensation or temporary total
disability compensation is disputed or there is a dispute as to the
compensability of the claim, no preliminary award of benefits shall be
entered without giving the employer the opportunity to present evidence,
including testi mony, on the disputed issues. A finding with regard to a
disputed issue of whether the employee suffered an accidental injury, whether
the injury arose out of and in the course of the employee's employment,
whether notice is given or claim timely made, or whether certain defenses
apply, shall be considered jurisdictional, and subject to review by the
board. Such review by the board shall not be subject to judicial review. If
an appeal from a prelim inary order is perfected under this section, such
appeal shall not stay the payment of medical compensation and temporary total
disability compensation from the date of the preliminary award. If temporary
total compensation is awarded, such compensation may be ordered paid from the
date of filing the application, except that if the administrative law judge
finds from the evidence presented that there were one or more periods of
temporary total disability prior to such filing date, temporary total
compensation may be ordered paid for all periods of temporary total
disability prior to such date of filing. The decision in such preliminary
hearing shall be rendered within five days of the conclusion of such hearing.
Except as

402                          JOURNAL OF THE SENATE

provided in this section, no such preliminary findings or preliminary awards
shall be ap pealable by any party to the proceedings, and the same shall not
be binding in a full hearing on the claim, but shall be subject to a full
presentation of the facts.
  (b)  If compensation in the form of medical benefits or temporary total
disability benefits has been paid by the employer or the employer's insurance
carrier either voluntarily or pursuant to an award entered under this section
and, upon a full hearing on the claim, the amount of compensation to which
the employee is entitled is found to be less than the amount of compensation
paid or is totally disallowed, the employer and the employer's insurance
carrier shall be reimbursed from the workers compensation fund established in
K.S.A. 44-566a and amendments thereto, for all amounts of compensation so
paid which are in excess of the amount of compensation the employee is
entitled to less any amount deducted from additional disability benefits due
the employee pursuant to subsection (c) of K.S.A. 44-525, and amendments
thereto, as determined in the full hearing on the claim. The director shall
determine the amount of compensation paid by the employer or insurance
carrier which is to be reimbursed under this subsection, and the director
shall certify to the commissioner of insurance the amount so determined. Upon
receipt of such certification, the commissioner of insurance shall cause
payment to be made to the employer or the employer's insurance carrier in
accordance therewith. No reimbursement shall be certified unless the
request is made by the employer or employer's insurance carrier within one
year of the final award.
  Sec. 10.  K.S.A. 44-536 is hereby amended to read as follows: 44-536. (a)
With respect to any and all proceedings in connection with any initial or
original claim for compensation, no claim of any attorney for services
rendered in connection with the securing of compen sation for an employee or
the employee's dependents, whether secured by agreement, order, award or a
judgment in any court shall exceed (1) a reasonable amount for such
services or (2) the amount equal to the total of 25% of that portion of
total compensation recovered and paid which is less than $10,001, 20% of that
portion of total compensation recovered and paid which is greater than
$10,000 and less than $20,001, and 15% of that portion of the total amount of
the compensation recovered and paid which is in excess of $20,000 25%
of the amount of compensation recovered and paid, whichever is less, in
addition to actual expenses incurred, and subject to the other provisions of
this section. Except as hereinafter provided in this section, in death cases,
total disability and partial disability cases, the amount of attorney fees
shall not be based upon compensation exceed 25% of the sum which
would be due under the workers compensation act beyond 415 weeks of permanent
total disability based upon the employee's average gross weekly wage prior to
the date of the accident and subject to the maximum weekly benefits provided
in K.S.A. 44-510c and amendments thereto.
  (b)  All attorney fees in connection with the initial or original claim for
compensation shall be fixed pursuant to a written contract between the
attorney and the employee or the employee's dependents, which shall be
subject to approval by the director in accordance with this section. Every
attorney, whether the disposition of the original claim is by agree ment,
settlement, award, judgment or otherwise, shall file the attorney contract
with the director for review in accordance with this section. The director
shall review each such contract and the fees claimed thereunder as provided
in this section and shall approve such contract and fees only if both are in
accordance with all provisions of this section. Any claims for attorney fees
not in excess of the limits provided in this section and approved by the
director shall be enforceable as a lien on the compensation due or to become
due. The director shall specifically and individually review each claim of an
attorney for services rendered under the workers compensation act in each
case of a settlement agreement under K.S.A. 44-521 and amendments thereto or
a lump-sum payment under K.S.A. 44-531 and amendments thereto as to the
reasonableness thereof. In reviewing the reasonableness of such claims for
attorney fees, the director shall consider the other provisions of this
section and the following:
  (1)  The written offers of settlement made prior to representation
received by the em ployee prior to execution of a written contract
between the employee and the attorney; the employer shall attach to the
settlement worksheet copies of any written offers of settlement

                                 March 27, 1997                             403

which were sent to the employee before the employer was aware that the
employee had hired an attorney;
  (2)  the time and labor required, the novelty and difficulty of the
questions involved and the skill requisite to perform the legal services
properly;
  (3)  the likelihood, if apparent to the employee or the employee's
dependents, that the acceptance of the particular case will preclude other
employment by the attorney;
  (4)  the fee customarily charged in the locality for similar legal
services;
  (5)  the amount of compensation involved and the results obtained;
  (6)  the time limitations imposed by the employee, by the employee's
dependents or by the circumstances;
  (7)  the nature and length of the professional relationship with the
employee or the employee's dependents; and
  (8)  the experience, reputation and ability of the attorney or attorneys
performing the services.
  (c)  No attorney fees shall be charged with respect to compensation for
medical expenses, except where an allowance is made for proposed or future
treatment as a part of a compro mise settlement. No attorney fees shall be
charged with respect to vocational rehabilitation benefits.
  (d)  No attorney fees shall be charged in connection with any temporary
total disability compensation unless the payment of such compensation in the
proper amount is refused, or unless such compensation is terminated by the
employer and the payment of such com pensation is obtained or reinstated by
the efforts of the attorney, whether by agreement, settlement, award or
judgment.
  (e)  With regard to any claim where there is no dispute as to any of the
material issues prior to representation of the claimant or claimants by an
attorney, or where the amount to be paid for compensation does not exceed the
written offer made to the claimant or claim ants by the employer prior
to representation by execution of a written contract between the
employee and an attorney, the fees to any such attorney shall not exceed
either the sum of $250 or a reasonable fee for the time actually spent by the
attorney, as determined by the director, whichever is greater, exclusive of
reasonable attorney fees for any representation by such attorney in reference
to any necessary probate proceedings. With regard to any claim where the
amount to be paid for compensation does exceed the written offer made prior
to representation, fees for services rendered by an attorney shall not exceed
the lesser of (1) a reasonable amount for such services or; (2)
the an amount equal to the total of 25% 50% of that
portion of the amount of compensation recovered and paid, which is in excess
of the amount of compensation offered to the employee by the employer prior
to the exe cution of a written contract between the employee and the
attorney; or attorney's entry of appearance in the claim and which is
less than $10,001, 20% of that portion of the amount of compensation
recovered and paid, which is in excess of the amount of compensation offered
to the employee prior to the attorney's entry of appearance in the claim and
which is more than $10,000 and less than $20,001 and 15% of that portion of
the amount of compensation recovered and paid, which is in excess of the
amount of compensation offered to the employee prior to the attorney's entry
of appearance in the claim and which is in excess of $20,000, as specified in
subsection (a). (3) 25% of the total amount of compensation recovered
and paid as described in subsection (a).
  (f)  All attorney fees for representation of an employee or the employee's
dependents shall be only recoverable from compensation actually paid to such
employee or dependents, except as specifically provided otherwise in
subsection (g) and (h).
  (g)  In the event any attorney renders services to an employee or the
employee's de pendents, subsequent to the ultimate disposition of the initial
and original claim, and in connection with an application for review and
modification, a hearing for additional medical benefits, an application
for penalties or otherwise, such attorney shall be entitled to reason able
attorney fees for such services, in addition to attorney fees received or
which the attorney is entitled to receive by contract in connection with the
original claim, and such attorney fees shall be awarded by the director on
the basis of the reasonable and customary charges in the locality for such
services and not on a contingent fee basis. If the services rendered under
this subsection by an attorney result in an additional award of
disability

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compensation, the attorney fees shall be paid from such amounts of
disability compensation. If such services involve no additional award
of disability compensation, but result in an additional award of
medical compensation, penalties, or other benefits, the director shall fix
the proper amount of such attorney's attorney fees in accordance
with this subsection and such fees shall be paid by the employer or the
workers compensation fund, if the fund is liable for compensation pursuant to
K.S.A. 44-567 and amendments thereto, to the extent of the liability of the
fund. If the services rendered herein result in a denial of additional
compensation, the director may authorize a fee to be paid by the
respondent.
  (h)  Any and all disputes regarding attorney fees, whether such disputes
relate to which of one or more attorneys represents the claimant or claimants
or is entitled to the attorney fees, or a division of attorney fees where the
claimant or claimants are or have been rep resented by more than one
attorney, or any other disputes concerning attorney fees or contracts for
attorney fees, shall be heard and determined by the administrative law judge,
after reasonable notice to all interested parties and attorneys.
  (i)  After reasonable notice and hearing before the administrative law
judge, any attorney found to be in violation of any provision of this section
shall be required to make restitution of any excess fees charged.
  Sec. 11.  K.S.A. 44-550b is hereby amended to read as follows: 44-550b. (a)
All records provided to be maintained under K.S.A. 44-550 and amendments
thereto and not with standing the provisions of K.S.A. 45-215, et seq.,
and amendments thereto, shall be open to public inspection, except
that:
  (1)  Records relating to financial information submitted by an employer
to qualify as a self-insurer pursuant to K.S.A 44-532 and amendments thereto
and;
  (2)  records which relate to utilization review or peer review conducted
pursuant to K.S.A. 44-510 and amendments thereto shall not be disclosed
except to the health care provider and as otherwise specifically
provided by the workers compensation act.;
  (3)  records relating to private premises safety inspections;
  (4)  medical records, forms collected pursuant to K.S.A. 44-567(b) and
amendments thereto and accident reports maintained under K.S.A. 44-550 and
amendments thereto per taining to an individual shall not be disclosed
except:
  (A)  Upon order of a court of competent jurisdiction;
  (B)  to the employer, its insurance carrier or its representative, from
whom a worker seeks workers compensation benefits;
  (C)  to the division of workers compensation for its own records for its
purposes;
  (D)  to federal or state governmental agencies for purposes of fraud and
abuse investi gations;
  (E)  to an employer in connection with any application for employment to an
employer, its insurance carrier or representatives providing (i) a
conditional offer of employment has been made and (ii) the request for
records includes a signed release by the individual, identifies the job
conditionally offered by the employer and is submitted in writing, either by
mail or electronic means. Requests relating to an individual under this
subsection shall be considered a record to be maintained and open to public
inspection under K.S.A. 44-550 and amendments thereto;
  (F)  to the workers compensation fund for its own purposes; and
  (G)  to the worker upon written release by the worker.
  (b)  This section shall be part of and supplemental to the workers
compensation act.
  Sec. 12.  K.S.A. 1996 Supp. 44-551 is hereby amended to read as follows:
44-551. (a) The duties of the assistant directors of workers compensation
shall include but not be limited to acting in the capacity of an
administrative law judge.
  (b) (1)  Administrative law judges shall have power to administer oaths,
certify official acts, take depositions, issue subpoenas, compel the
attendance of witnesses and the pro duction of books, accounts, papers,
documents and records to the same extent as is conferred on the district
courts of this state, and may conduct an investigation, inquiry or hearing on
all matters before the administrative law judges. All acts, findings
final orders, awards, decisions, rulings or modifications of
findings or awards, or preliminary awards under K.S.A. 44-534a and
amendments thereto made by an administrative law judge shall be subject to
review by the board upon written request of any interested party within 10
days. Interme

                                 March 27, 1997                             405

diate Saturdays, Sundays and legal holidays shall be excluded in the time
computation. Review by the board shall be a prerequisite to judicial
review as provided for in K.S.A. 44556 and amendments thereto. On any such
review, the board shall have authority to grant or refuse compensation, or to
increase or diminish any award of compensation or to remand any matter to the
administrative law judge for further proceedings. The orders of the board
under this subsection shall be issued within 30 days from the date arguments
were presented by the parties.
  (2) (A)  If an administrative law judge has entered a preliminary award
under K.S.A. 44-534a and amendments thereto, a review by the board shall not
be conducted under this section unless it is alleged that the administrative
law judge exceeded the administrative law judge's jurisdiction in granting or
denying the relief requested at the preliminary hearing. Such an appeal from
a preliminary award may be heard and decided by a single member of the board.
Members of the board shall hear such preliminary appeals on a rotating basis
and the individual board member who decides the appeal shall sign each such
decision. The orders of the board on any acts, findings, awards,
decisions, rulings or modifications of findings or awards under this
subsection shall be issued within 30 days from the date ar guments were
presented by the parties.
  (B)  If an order on review is not issued by the board within the applicable
time period prescribed by subsection (b)(2)(A) (1), medical
compensation and any disability compen sation as provided in the award of the
administrative law judge shall be paid commencing with the first day after
such time period and shall continue to be paid until the order of the board
is issued, except that no payments shall be made under this provision for any
period before the first day after such time period. Nothing in this section
shall be construed to limit or restrict any other remedies available to any
party to a claim under any other statute.
  (C)  In any case in which the final award of an administrative law judge is
appealed to the board for review under this section and in which the
compensability is not an issue to be decided on review by the board, medical
compensation shall be payable in accordance with the award of the
administrative law judge and shall not be stayed pending such review. The
employee may proceed under K.S.A. 44-534a and amendments thereto and may have
a hearing in accordance with that statute to enforce the provisions of this
subsection.
  (c)  Each assistant director and each administrative law judge or special
administrative law judge shall be allowed all reasonable and necessary
expenses actually incurred while in the actual discharge of official duties
in administering the workers compensation act, but such expenses shall be
sworn to by the person incurring the same and be approved by the secretary.
  (d)  In case of emergency the director may appoint special local
administrative law judges and assign to them the examination and hearing of
any designated case or cases. Such special local administrative law judges
shall be attorneys and admitted to practice law in the state of Kansas and
shall, as to all cases assigned to them, exercise the same powers as provided
by this section for the regular administrative law judges. Special local
administrative law judges shall receive a fee commensurate with the services
rendered as fixed by rules and regulations adopted by the director. The fees
prescribed by this section prior to the effective date of this act shall be
effective until different fees are fixed by such rules and regulations.
  (e)  All special local administrative law judge's fees and expenses,
with the exception of settlement hearings, shall be paid from the workers
compensation administration fee fund, as provided in K.S.A. 74-712 and
amendments thereto. Where there are no available funds or where the special
local administrative law judge conducted a settlement hearing, the fees
shall be taxed as cost costs in each case heard by such special
local administrative law judge and when collected shall be paid directly to
such special local administrative law judge by the party charged with the
payment of the same.
  (f)  Except as provided for judicial review under K.S.A. 44-556 and
amendments thereto, the decisions and awards of the board shall be final.
  Sec. 13.  K.S.A. 1996 Supp. 44-555c is hereby amended to read as follows:
44-555c. (a) There is hereby established the workers compensation board. The
board shall have exclusive jurisdiction to review all decisions, findings,
orders and awards of compensation of admin istrative law judges under the
workers compensation act. The review by the board shall be upon questions of
law and fact as presented and shown by a transcript of the evidence and

406                          JOURNAL OF THE SENATE

the proceedings as presented, had and introduced before the administrative
law judge. The board shall be within the division of workers compensation of
the department of human resources and all budgeting, personnel, purchasing
and related management functions of the board shall be administered under the
supervision and direction of the secretary of human resources. The board
shall consist of five members who shall be appointed by the secretary in
accordance with this section and who shall each serve for a term of four
years, except as provided for the first members appointed to the board under
subsection (f).
  (b)  Each board member shall be an attorney regularly admitted to practice
law in Kansas for a period of at least seven years and shall have engaged in
the active practice of law during such period as a lawyer, judge of a court
of record or any court in Kansas or a fulltime teacher of law in an
accredited law school, or any combination of such types of practice.
  (c)  Each board member shall receive an annual salary in an amount equal to
the salary prescribed by law for a district judge, except that the member who
is the chairperson of the workers compensation board shall receive an annual
salary in an amount equal to the salary prescribed for a district judge
designated as administrative judge of a district court of Kansas. The board
members shall devote full time to the duties of such office and shall not
engage in the private practice of law during their term of office. No board
member may receive additional compensation for official services performed by
the board member. Each board member shall be reimbursed for expenses incurred
in the performance of such official duties under the same circumstances and
to the same extent as judges of the district court are reimbursed for such
expenses.
  (d)  Applications for membership on the board shall be submitted to the
director of workers compensation. The director shall determine if an
applicant meets the qualifications for membership on the board prescribed in
subsection (b). Qualified applicants for the board will be submitted by the
director to the workers compensation board nominating committee for
consideration.
  (e)  There is hereby established the workers compensation board nominating
committee which shall be composed of two members appointed as follows:   The
Kansas AFL-CIO and the Kansas chamber of commerce and industry shall each
select one representative to serve on the workers compensation board
nominating committee and shall give written notice of the selection to the
secretary who shall appoint such representatives to the com mittee. In the
event of a vacancy occurring for any reason on the nominating committee, the
respective member shall be replaced by the appointing organization with
written notice of the appointment to the secretary of human resources within
30 days of such vacancy.
  (f) (1)  Upon being notified of any vacancy on the board or of the need to
appoint a member pro tem under subsection (i), the nominating committee shall
consider all qualified applicants submitted by the director for the vacant
position on the board or the member pro tem position and nominate a person
qualified therefor. The nominating committee shall be required to reach
unanimous agreement on any nomination to the board. With respect to each
person nominated, the secretary either shall accept and appoint the person
nomi nated by the nominating committee to the position on the board for which
the nomination was made or shall reject the nomination and request the
nominating committee to nominate another person for that position. Upon
receipt of any such request for the nomination of another person, the
nominating committee shall nominate another person for that position in the
same manner.
  (2)  The first members of the board established by this section are hereby
appointed as follows:  Each person who was a member of the workers
compensation board which was in existence on January 12, 1995, is hereby
appointed, effective January 13, 1995, as a member of the board established
by this section. The term of office of each person so appointed as a member
of the board established by this section is for the period equal to the
remainder of the term of office such person had as of January 12, 1995, as a
member of the workers compensation board which was in existence on January
12, 1995.
  (3)  Each member of the board shall hold office for the term of the
appointment and until the successor shall have been appointed. Successors to
such members shall be ap pointed for terms of four years.
  (4)  If a vacancy should occur on the board during the term of a member,
the nominating committee shall nominate an individual from the qualified
applicants submitted by the

                                 March 27, 1997                             407

director to complete the remainder of the unexpired portion of the term. With
respect to each person so nominated, the secretary either shall accept and
appoint the person nomi nated to the board or shall reject the nomination and
request the nominating committee to nominate another person for the position.
Upon receipt of any such request for the nomi nation of another person, the
nominating committee shall nominate another person for the position in the
same manner.
  (g)  Following the completion of a term, board members who wish to be
considered for reappointment to the board shall be deemed to have met the
qualification requirements for selection to the board and shall be considered
for renomination by the workers compen sation board nominating committee.
  (h)  The members of the board shall annually elect one member to serve as
chairperson.
  (i)  If illness or other temporary disability of a member of the board will
not permit the member to serve during a case or in any case in which a member
of the board must be excused from serving because of a conflict or is
otherwise disqualified with regard to such case, the director shall notify
the workers compensation nominating committee of the need to appoint a member
pro tem. Upon receipt of such notice, the committee shall act as soon as
possible and nominate a qualified person to serve as member pro tem in such
case in accordance with subsection (f). Each member pro tem shall receive
compensation at the same rate as a member of the board receives, prorated for
the days hours of actual service as a member pro tem and shall
receive expenses under the same circumstances and to the same extent as a
member of the board receives. Each member pro tem shall have all the powers,
duties and functions of a member of the board with regard to the case.
  (j)  The board shall maintain principal offices in Topeka, Kansas, and the
board may conduct hearings at a courthouse of any county in Kansas or at
another location specified by the board. The secretary of human resources
shall provide a courtroom and other suitable quarters in Topeka, Kansas, for
the use of the board and its staff. When the board conducts hearings at any
location other than in Topeka, Kansas, the director shall make suitable
arrangements for such hearings. Subject to the provisions of appropriation
acts, the director shall provide such supplies and equipment and shall
appoint such support personnel as may be necessary for the board to fulfill
the duties imposed by this act, subject to approval by the secretary.
  (k)  For purposes of hearing cases, the board may sit together or in panels
of two mem bers or more, designated by the chairperson of the board, except
that an appeal from a preliminary award entered under K.S.A. 44-534a and
amendments thereto may be heard by a panel of one member designated by the
chairperson. All members of the board shall determine each matter before the
board. All decisions, reviews and determinations by the board shall be
approved in writing by at least three board members. Whenever the board
enters a final order in any proceeding, the board shall make written findings
of fact and conclusions of law forming the basis of the board's determination
and final order. The findings of fact and conclusions of law of the board
shall be made a part of the final order. The board shall mail a copy of the
final order of the board to all parties to the proceeding within three days
following the issuance of the final order.
  Sec. 14.  K.S.A. 44-557a is hereby amended to read as follows: 44-557a. (a)
The director shall: (1) Compile and publish statistics to determine the
causation of compensable disabil ities in the state of Kansas and (2) compile
and maintain a database of information on claim characteristics and costs
related to open and closed claims, in order to determine the ef fectiveness
of the workers compensation act to provide adequate indemnity, medical and
vocational rehabilitation compensation to injured workers and to return
injured workers to remunerative employment. The commissioner of insurance
shall cooperate with the director and shall make available any information
which will assist the director in compiling such information and statistics
and may contract with the director and the secretary of the de partment of
health and environment to collect such information as the director deems nec
essary.
  (b)  A primary source of such information and statistics shall be the
compliance of em ployers, group-funded workers compensation pools and
insurance carriers in reporting of all accidents which are required to be
reported under the workers compensation act. Each self-insured employer,
group-funded workers compensation pool, insurance carrier and vo

408                          JOURNAL OF THE SENATE

cational rehabilitation provider shall submit to the director the disposition
of a statistically significant sample of open and closed claims under the act
and, in connection with the closing of each claim in which payments were
made, the following: (1) The dates, time intervals, amounts and types of
weekly disability payments made, (2) the dates and gross amounts of payments
made to each type of medical compensation provider, (3) the dates and type of
service for which payment was made and the gross amounts paid to each vo
cational rehabilitation provider, and (4) the dates and types of fees paid as
claim costs. The director shall prescribe by rules and regulations such
formats, computer media and methods as may be necessary to provide
information to the director on a periodic basis. Each selfinsured
employer, group-funded workers compensation pool, insurance carrier,
vocational rehabilitation provider, health care provider or health care
facility shall submit medical information, by procedure, charge and zip code
of the provider in order to set the maximum medical fee schedule. The
director of workers compensation may adopt and promulgate such rules and
regulations as the director deems necessary for the purposes of administering
and enforcing the provisions of this section.
  (c)  The director may contract for professional actuarial or statistical
services to provide assistance in determining the types of information and
the methods of selecting and ana lyzing information as may be necessary for
the director to conduct studies of open and closed claims under the workers
compensation act and to enable the director to make valid statistical
conclusions as to the distribution of costs of workers compensation benefits.
  (d)  The director shall obtain such office and computer equipment and
employ such additional clerical help as the director deems necessary to
gather such information and prepare such statistics.
  Sec. 15.  K.S.A. 1996 Supp. 44-566a is hereby amended to read as follows:
44-566a. (a) There is hereby created in the state treasury the workers
compensation fund. The commis sioner of insurance shall be responsible for
administering the workers compensation fund, and all payments from the
workers compensation fund shall be upon warrants of the director of accounts
and reports issued pursuant to vouchers approved by the commissioner of in
surance or a person or persons designated by the commissioner. The
commissioner of in surance annually shall report to the governor and the
legislature the receipts and disburse ments from the workers compensation
fund during the preceding fiscal year.
  (b) (1)  On June 1 of each year, the commissioner of insurance shall impose
an assess ment against all insurance carriers, self-insurers and group-funded
workers compensation pools insuring the payment of compensation under the
workers compensation act, and the same shall be due and payable to the
commissioner on the following July 1, the proceeds of which shall be credited
to the workers compensation fund. The total amount of each such assessment
shall be equal to an amount sufficient, in the opinion of the commissioner of
insurance, to pay all amounts, including attorney fees and costs, which may
be required to be paid from such fund during the current fiscal year, less
the amount of the estimated unencumbered balance in the workers compensation
fund as of the June 30 immediately preceding the date the assessment is due
and payable under this section. The total amount of each such assessment
shall be apportioned among those upon whom it is imposed, such that each is
assessed an amount that bears the same relation to such total assessment as
the amount of money paid or payable in workers compensation claims by such
insurance carrier, self-insurer or group-funded workers compensation pool in
the immediately preceding cal endar year bears to all such claims paid or
payable during such calendar year. The com missioner of insurance may
establish experience-based rates of assessments under this sub section and
make adjustments in the assessments imposed under this subsection based on
the success of accident prevention programs under K.S.A. 44-5,104 and
amendments thereto and other employer safety programs.
  (2)  The commissioner of insurance shall remit all moneys received by or
for such com missioner under this subsection to the state treasurer. Upon
receipt of any such remittance the state treasurer shall deposit the entire
amount thereof in the state treasury to the credit of the workers
compensation fund.
  (c) (1)  Whenever the workers compensation fund may be made liable for the
payment of any amounts in proceedings under the workers compensation act, the
commissioner of insurance, in the capacity of administrator of such fund,
shall be impleaded in such pro

                                 March 27, 1997                             409

ceedings and shall represent and defend the workers compensation fund. The
commissioner of insurance shall be deemed impleaded in any such proceedings
whenever written notice of the proceedings setting forth the nature of the
liability asserted against the workers compensation fund, is given to the
commissioner of insurance. The commissioner of insur ance may be made a party
in this manner by any party to the proceedings. A copy of the written notice
shall be given to the director and to all other parties to the proceedings.
  (2)  The administrative law judge shall dismiss the workers compensation
fund from any proceeding where the administrative law judge has determined
that there is insufficient evidence to indicate involvement by the workers
compensation fund.
  (3)  In any case in which the workers compensation fund has been
impleaded, if the liability of the fund has not been established within
five years of the date of the employee filing a written notice of claim, the
commissioner of insurance may cause to be filed with an administrative law
judge a motion to dismiss the fund from the case. The administrative law
judge shall notify counsel of record not less than 10 days prior to issuing
any order dismissing the fund from a case. The administrative law judge shall
dismiss the fund from any such case absent a showing by one of the parties
that the case should be left open due to medical necessity or other just
cause by the employer or insurance carrier and where an award has been
entered deciding all of the issues in the employee's claim against the em
ployer, but not deciding the issues between the employer and the fund, the
fund may file an application with the administrative law judge requesting
that the fund be dismissed from the case with prejudice. The employer shall
have a period of six months from the filing of the application in which to
complete the employer's evidence on the fund issues and submit the case to
the administrative law judge for decision. The fund shall then have a period
of 60 days after the submission of the employer's evidence to submit its own
evidence concern ing the fund issues in the case. If the employer fails to do
so, the administrative law judge shall dismiss the fund from the case with
prejudice on the judge's own motion.
  (d)  The commissioner of insurance, in the capacity of administrator of the
workers compensation fund, may make settlements of any amounts which may be
payable from the workers compensation fund with regard to any claim under the
workers compensation act, subject to the approval of the director.
  (e)  The workers compensation fund shall be liable for:
  (1)  Payment of awards to handicapped employees in accordance with the
provisions of K.S.A. 44-569 and amendments thereto for claims arising prior
to July 1, 1994;
  (2)  payment of workers compensation benefits to an employee who is unable
to receive such benefits from such employee's employer under the conditions
prescribed by K.S.A. 44-532a and amendments thereto;
  (3)  reimbursement of an employer or insurance carrier pursuant to the
provisions of K.S.A. 44-534a and amendments thereto, subsection (d) of K.S.A.
44-556 and amendments thereto, subsection (c) of K.S.A. 44-569 and amendments
thereto and K.S.A. 44-569a and amendments thereto;
  (4)  payment of the actual expenses of the commissioner of insurance which
are incurred for administering the workers compensation fund, subject to the
provisions of appropriations acts; and
  (5)  any other payments or disbursements provided by law.
  (f)  If it is determined that the workers compensation fund is not liable
as described in subsection (e), attorney fees incurred by the workers
compensation fund may be assessed against the party who has impleaded the
workers compensation fund other than impleadings pursuant to K.S.A. 44-532a
and amendments thereto.
  (g)  The commissioner of insurance shall provide for the implementation of
the workers compensation fund as provided in this section and shall be
responsible for ensuring the fund's adequacy to meet and pay claims awarded
against it.
  Sec. 16.  K.S.A. 44-567 is hereby amended to read as follows: 44-567. (a)
An employer who operates within the provisions of the workers compensation
act and who knowingly employs or retains a handicapped employee, as defined
in K.S.A. 44-566 and amendments thereto shall be relieved of liability for
compensation awarded or be entitled to an appor tionment of the costs thereof
as follows:

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  (1)  Whenever a handicapped employee is injured or is disabled or dies as a
result of an injury which occurs prior to July 1, 1994, and the
administrative law judge awards compen sation therefor and finds the injury,
disability or the death resulting therefrom probably or most likely would not
have occurred but for the preexisting physical or mental impairment of the
handicapped employee, all compensation and benefits payable because of the
injury, disability or death shall be paid from the workers compensation fund;
and
  (2)  subject to the other provisions of the workers compensation act,
whenever a hand icapped employee is injured or is disabled or dies as a
result of an injury and the adminis trative law judge finds the injury
probably or most likely would have been sustained or suffered without regard
to the employee's preexisting physical or mental impairment but the resulting
disability or death was contributed to by the preexisting impairment, the ad
ministrative law judge shall determine in a manner which is equitable and
reasonable the amount of disability and proportion of the cost of award which
is attributable to the em ployee's preexisting physical or mental impairment,
and the amount so found shall be paid from the workers compensation fund.
  (b)  In order to be relieved of liability under this section, the employer
must prove either the employer had knowledge of the preexisting impairment at
the time the employer em ployed the handicapped employee or the employer
retained the handicapped employee in employment after acquiring such
knowledge. The employer's knowledge of the preexisting impairment may be
established by any evidence sufficient to maintain the employer's burden of
proof with regard thereto. If the employer, prior to the occurrence of a
subsequent injury to a handicapped employee, files with the director a notice
of the employment or retention of such employee, together with a description
of the handicap claimed, such notice and description of handicap shall create
a presumption that the employer had knowledge of the preexisting impairment.
If the employer files a written notice of an employee's preexisting
impairment with the director in a form approved by the director therefor,
such notice establishes the existence of a reservation in the mind of the
employer when deciding whether to hire or retain the employee.
  (c)  Knowledge of the employee's preexisting impairment or handicap at the
time the employer employs or retains the employee in employment shall be
presumed conclusively if the employee, in connection with an application for
employment or an employment med ical examination or otherwise in connection
with obtaining or retaining employment with the employer, knowingly: (1)
Misrepresents that such employee does not have such an impairment or
handicap; (2) misrepresents that such employee has not had any previous
accidents; (3) misrepresents that such employee has not previously been
disabled or com pensated in damages or otherwise because of any prior
accident, injury or disease; (4) mis represents that such employee has not
had any employment terminated or suspended be cause of any prior accident,
injury or disease; (5) misrepresents that such employee does not have any
mental, emotional or physical impairment, disability, condition, disease or
infirmity; or (6) misrepresents or conceals any facts or information which
are reasonably related to the employee's claim for compensation.
  (d)  An employer shall not be relieved of liability for compensation
awarded nor shall an employer be entitled to an apportionment of the costs
thereof as provided in this section, unless the employer shall cause the
commissioner of insurance, in the capacity of admin istrator of the workers
compensation fund, to be impleaded, as provided in K.S.A. 44-566a and
amendments thereto, in any proceedings to determine the compensation to be
awarded a handicapped employee who is injured or disabled or has died, by
giving written notice of the employee's claim to the commissioner of
insurance ten days prior to the first full hearing where any evidence
is presented on the claim.
  (e)  Amendments to this section shall apply only to cases where a
handicapped employee, or the employee's dependents, claims compensation as a
result of an injury occurring after the effective date of such amendments.
  (f)  The total amount of compensation due the employee shall be the amount
for disa bility computed as provided in K.S.A. 44-503a, 44-510 through
44-510g and 44-511, and amendments thereto, and in no case shall the payments
be less nor more than the amounts provided in K.S.A. 44-510c and amendments
thereto.;
  And by renumbering sections accordingly;

                                 March 27, 1997                             411

  On page 5, after line 9, by inserting the following sections:
  ``Sec. 18.  K.S.A. 44-5,120 is hereby amended to read as follows: 44-5,120.
(a) The di rector of workers compensation is hereby authorized and directed
to establish a system for monitoring, reporting and investigating suspected
fraud or abuse by any persons who are not licensed or regulated by the
commissioner of insurance in connection with securing the liability of an
employer under the workers compensation act or in connection with claims or
benefits thereunder. The commissioner of insurance is hereby authorized and
directed to establish a system for monitoring, reporting and investigating
suspected fraud or abuse by any persons who are licensed or regulated by the
commissioner of insurance in connection with securing the liability of an
employer under the workers compensation act or in con nection with claims
thereunder.
  (b)  This section applies to:
  (1)  Persons claiming benefits under the workers compensation act;
  (2)  employers subject to the requirements of the workers compensation act;
  (3)  insurance companies including group-funded self-insurance plans
covering Kansas employers and employees;
  (4)  any person, corporation, business, health care facility that is
organized either for profit or not-for-profit and that renders medical care,
treatment or services in accordance with the provisions of the workers
compensation act to an injured employee who is covered thereunder; and
  (5)  attorneys and other representatives of employers, employees, insurers
or other en tities that are subject to the workers compensation act.
  (c)  The commissioner of insurance may examine the workers compensation
records of insurance companies or self-insurers as necessary to ensure
compliance with the workers compensation act. Each insurance company
providing workers compensation insurance in Kansas, the company's agents, and
those entities that the company has contracted to provide review services or
to monitor services and practices under the workers compensation act shall
cooperate with the commissioner of insurance, and shall make available to the
com missioner any records or other necessary information requested by the
commissioner. The commissioner of insurance shall conduct an examination
authorized by this subsection in accordance with the provisions of K.S.A.
40-222 and 40-223 and amendments thereto.
  (d)  Fraudulent or abusive acts or practices for purposes of the workers
compensation act include, but are not limited to, willfully or intentionally:
  (1)  Collecting from an employee, through a deduction from wages or a
subsequent fee, any premium or other fee paid by the employer to obtain
workers compensation insurance coverage;
  (2)  misrepresenting to an insurance company or the insurance department,
the classi fication of employees of an employer, or the location, number of
employees, or true identity of the employer with the intent to lessen or
reduce the premium otherwise chargeable for workers compensation insurance
coverage;
  (3)  lending money to the claimant during the pendency of the workers
compensation claim by an attorney representing the claimant, but this
provision shall not prohibit the attorney from assisting the claimant in
obtaining financial assistance from another source, except that (A) the
attorney shall not have a financial interest, directly or indirectly, in the
source from which the loan or other financial assistance is secured and (B)
the attorney shall not be personally liable in any way for the credit
extended to the claimant;
  (4)  obtaining, denying or attempting to obtain or deny payments of workers
compen sation benefits for any person by:
  (A)  Making a false or misleading statement;
  (B)  misrepresenting or concealing a material fact;
  (C)  fabricating, altering, concealing or destroying a document; or
  (D)  conspiring to commit an act specified by clauses (A), (B) or (C) of
this subsection   (d)(4);
  (5)  bringing, prosecuting or defending an action for compensation under
the workers compensation act or requesting initiation of an administrative
violation proceeding that, in either case, has no basis in fact or is not
warranted by existing law or a good faith argument for the extension,
modification or reversal of existing law;

412                          JOURNAL OF THE SENATE

  (6)  breaching a provision of an agreement approved by the director;
  (7)  withholding amounts not authorized by the director from the employee's
or legal beneficiary's weekly compensation payment or from advances from any
such payment;
  (8)  entering into a settlement or agreement without the knowledge and
consent of the employee or legal beneficiary;
  (9)  taking a fee or withholding expenses in excess of the amounts
authorized by the director;
  (10)  refusing or failing to make prompt delivery to the employee or legal
beneficiary of funds belonging to the employee or legal beneficiary as a
result of a settlement, agreement, order or award;
  (11)  misrepresenting the provisions of the workers compensation act to an
employee, an employer, a health care provider or a legal beneficiary;
  (12)  instructing employers not to file required documents with the
director;
  (13)  instructing or encouraging employers to violate the employee's right
to medical benefits under the workers compensation act;
  (14)  failing to tender promptly full death benefits if a clear and
legitimate dispute does not exist as to the liability of the insurance
company, self-insured employer or group-funded self-insurance plan;
  (15)  failing to confirm medical compensation benefits coverage to any
person or facility providing medical treatment to a claimant if a clear and
legitimate dispute does not exist as to the liability of the insurance
carrier, self-insured employer or group-funded self-insurance plan;
  (16)  failing to initiate or reinstate compensation when due if a clear and
legitimate dispute does not exist as to the liability of the insurance
company, self-insured employer or group-funded self-insurance plan;
  (17)  misrepresenting the reason for not paying compensation or terminating
or reducing the payment of compensation;
  (18)  refusing to pay compensation as and when the compensation is due;
  (19)  refusing to pay any order awarding compensation; and
  (20)  refusing to timely file required reports or records under the workers
compensation act.
  (e)  Whenever the director or the commissioner of insurance has reason to
believe that any person has engaged or is engaging in any fraudulent or
abusive act or practice in con nection with the conduct of Kansas workers
compensation insurance, claims, benefits or services in this state, that such
fraudulent or abusive act or practice is not subject to possible proceedings
under K.S.A. 40-2401 through 40-2421 and amendments thereto by the com
missioner of insurance, and that a proceeding by the director or the
commissioner of in surance, in the case of any person licensed or regulated
by the commissioner, with respect thereto would be in the interest of the
public, the director or the commissioner of insurance, in the case of any
person licensed or regulated by the commissioner, shall issue and serve upon
such person a statement of the charges with respect thereto and shall conduct
a hearing thereon in accordance with the provisions of the Kansas
administrative procedure act. Com plaints filed with the director or the
commissioner of insurance may be dismissed by the director or the
commissioner of insurance on their own initiative, and shall be dismissed
upon the written request of the complainant, if the director or commissioner
of insurance has not conducted a hearing or taken other administrative action
dismissing the complaint within 180 days of the filing of the complaint. Any
such dismissal of a complaint in accor dance with this section shall
constitute final action by the director or commissioner of in surance which
shall be deemed to exhaust all administrative remedies under K.S.A. 44-5,120
and amendments thereto for the purpose of allowing subsequent filing of the
matter in court by the complainant. Dismissal of a complaint in accordance
with this section shall not be subject to appeal or judicial review.
  (f)  If, after such hearing, the director or the commissioner of insurance,
in the case of any person licensed or regulated by the commissioner,
determines that the person charged has engaged in any fraudulent or abusive
act or practice, any costs incurred as a result of conducting any
administrative hearing authorized under the provisions of this section may be
assessed against the person or persons found to have engaged in such acts. In
an appro

                                 March 27, 1997                             413

priate case to reimburse costs incurred, such costs may be awarded to a
complainant. As used in this subsection, ``costs'' include witness fees,
mileage allowances, any costs associated with reproduction of documents which
become a part of the hearing record and the expense of making a record of the
hearing.
  (g)  If, after such hearing, the director or the commissioner of insurance,
in the case of any person licensed or regulated by the commissioner,
determines that the person or persons charged have engaged in a fraudulent or
abusive act or practice the director or the com missioner of insurance, in
the case of any person licensed or regulated by the commissioner, shall issue
an order requiring such person to cease and desist from engaging in such act
or practice and, in the exercise of discretion, may order any one or more of
the following:
  (1)  Payment of a monetary penalty of not more than $1,000 for each and
every act constituting the fraudulent or abusive act or practice, but not
exceeding an aggregate penalty of $2,500 for any six-month period;
  (2)  redress of the injury by requiring the refund of any premiums paid by
and requiring the payment of any moneys withheld from, any employee,
employer, insurance company or other person or entity adversely affected by
the act constituting a fraudulent or abusive act or practice;
  (3)  repayment of an amount equal to the total amount that the person
received as benefits or any other payment under the workers compensation act
and any amount that the person otherwise benefited as a result of an act
constituting a fraudulent or abusive act or practice, with interest thereon
determined so that such total amount, plus any accrued interest thereon,
bears interest, from the date of the payment of benefits or other such
payment or the date the person was benefited, at the current rate of interest
prescribed by law for judgments under subsection (e)(1) of K.S.A. 16-204 and
amendments thereto per month or fraction of a month until repayment.
  (h)  After the expiration of the time allowed for filing a petition for
review of an order issued under this section, if no such petition has been
duly filed within such time, the director at any time, after notice and
opportunity for hearing in accordance with the provisions of the Kansas
administrative procedure act, may reopen and alter, modify or set aside, in
whole or in part, any order issued under this section, whenever in the
director's opinion conditions of fact or of law have so changed as to require
such action or if the public interest so requires.
  (i)  Upon the order of the director or the commissioner of insurance, in
the case of any person licensed or regulated by the commissioner, after
notice and hearing in accordance with the provisions of the Kansas
administrative procedure act, any person who violates a cease and desist
order of the director or the commissioner of insurance, in the case of any
person licensed or regulated by the commissioner, issued under this section
may be subject, at the discretion of the director or the commissioner of
insurance, in the case of any person licensed or regulated by the
commissioner, to a monetary penalty of not more than $10,000 for each and
every act or violation, but not exceeding an aggregate penalty of $50,000 for
any six-month period in addition to any penalty imposed pursuant to
subsection (g).
  (j)  Any civil fine imposed under this section shall be subject to review
in accordance with the act for judicial review and civil enforcement of
agency actions in the district court in Shawnee county.
  (k)  All moneys received under this section for costs assessed, which are
not awarded to a complainant, or monetary penalties imposed shall be
deposited in the state treasury and credited to the workmen's compensation
fee fund.
  Sec. 19.  K.S.A. 44-5,121 is hereby amended to read as follows: 44-5,121.
(a) Any person who has suffered economic loss by a fraudulent or abusive act
or practice shall have a cause of action against any other person to recover
such loss which was paid as benefits or other amounts of money which were
paid under the workers compensation act and to seek relief for other monetary
damages from such other person based on a fraudulent or abusive act or
practice, except that such other monetary damages shall not include damages
for non pecuniary loss. Relief under this section is to be predicated upon
exhaustion of administrative remedies available in K.S.A. 44-1,520 and
amendments thereto.
  (b)  Nothing in this section or K.S.A. 44-5,120 and amendments thereto
shall prohibit an employer from exercising a right to reimbursement under
K.S.A. 44-534a, 44-556 or 44569a and amendments thereto.

414                          JOURNAL OF THE SENATE

  Sec. 20.  K.S.A. 1996 Supp. 44-5,125 is hereby amended to read as follows:
44-5,125.   (a) (1) Any person who obtains or attempts to obtain any payment
of compensation under the workers compensation act for such person or who
denies or attempts to deny the obli gation to make any payment of workers
compensation benefits; who obtains or attempts to obtain a more favorable
workers compensation benefit rate or insurance premium rate than that to
which such person is otherwise entitled; who prevents, reduces, avoids or
attempts to prevent, reduce or avoid the payment of any compensation under
the workers compen sation act; or who fails to communicate a settlement offer
or similar information to a claimant under the workers compensation act, by,
in any such case, knowingly or intentionally: (A) Making a false or
misleading statement, (B) misrepresenting or concealing a material fact, or
(C) fabricating, altering, concealing or destroying a document; and (2) any
person who conspires with another person to commit any act described by
clause (1) of this subsection   (a), shall be guilty of:
  (A)  A class A nonperson misdemeanor, if the amount received as a benefit
or other payment under the workers compensation act as a result of such act
or the amount that the person otherwise benefited monetarily as a result of a
violation of this subsection (a) is $500 or less; or
  (B)  a severity level 9, nonperson felony, if such amount is more than
$500.
  (b)  Any person who has received any amount of money as a benefit or other
payment under the workers compensation act as a result of a violation of
subsection (a) and any person who has otherwise benefited monetarily as a
result of a violation of subsection (a) shall be liable to repay an amount
equal to the amount so received by such person or the amount by which such
person has benefited monetarily, with interest thereon. Any such amount, plus
any accrued interest thereon, shall bear interest at the current rate of
interest prescribed by law for judgments under subsection (e)(1) of K.S.A.
16-204 and amendments thereto per month or fraction of a month until
repayment of such amount, plus any accrued interest thereon. The interest
shall accrue from the date of overpayment or erroneous pay ment of any such
amount or the date such person benefited monetarily.
  (c)  Any person aggrieved by a violation of subsection (a) shall have a
cause of action against any other person to recover any amounts of money
erroneously paid as benefits or any other amounts of money paid under the
workers compensation act, and to seek relief for other monetary damages, for
which liability has accrued under this section against such other person.
Relief under this subsection is to be predicated upon exhaustion of
adminis trative remedies available in K.S.A. 44-5,120 and amendments
thereto.
  (d)  Nothing in this section shall prohibit an employer from exercising a
right to reim bursement under K.S.A. 44-534a, 44-556 or 44-569a and
amendments thereto.
  Sec. 21.  K.S.A. 74-713 is hereby amended to read as follows: 74-713. The
director shall provide by regulation for the collection of each carrier's,
self-insurer's and group-funded workers' compensation pools' proportionate
amount of the carrier's share of expense. The maximum amount which shall be
collected from any carrier, self-insurer or group-funded workers'
compensation pool shall be 3% of the workers' compensation benefits paid by
such carrier, self-insurer or group-funded workers' compensation pool as
listed by the director. Such amounts shall be paid within 30 days from the
date that notice is served upon such carrier, self-insurer or group-funded
workers' compensation pool. If such amounts are not paid within such period,
the director may assess a civil penalty equal to 10% of the amount so unpaid
for each 30 days the liability remains due and unpaid, and such civil penalty
shall be collected at the same time and as a part of the original amount as
determined by the director under the terms of this act. Upon assessment,
if the total dollar amount due is $10 or less, the amount due is
waived.'';
  And by renumbering sections accordingly;
  Also on page 5, in line 10, by striking all after ``K.S.A.'' and inserting
``44-505, 44-510b, 44-523, 44-534, 44-536, 44-550b, 44-557a, 44-567,
44-5,120, 44-5,121 and 74-713 and K.S.A. 1996 Supp. 44-508, 44-510, 44-532,
44-532b, 44-534a, 44-551, 44-555c, 44-566a and 44-5,125 are hereby'';
  In the title, in line 10, after ``to'' by inserting ``the''; also in line
10, by striking all after ``compensation''; in line 11, by striking all
before the semicolon and inserting ``act''; also in line 11, by striking all
after ``K.S.A.'' and inserting ``44-505, 44-510b, 44-523, 44-534, 44

                                 March 27, 1997                             415

536, 44-550b, 44-557a, 44-567, 44-5,120, 44-5,121 and 74-713 and K.S.A. 1996
Supp. 44508, 44-510, 44-532, 44-534a, 44-551, 44-555c, 44-566a and
44-5,125''; in line 12, before the period, by inserting ``; also repealing
K.S.A. 1996 Supp. 44-532b'', and the bill be passed as further amended.


                                 March 27, 1997                             415

  HB 2038 be amended by adoption of the committee amendments, be
further amended by motion of Senator Kerr on page 6, in line 32, by striking
``human resources'' and inserting in lieu thereof ``administration''; in line
33, by striking ``amounts'' and inserting in lieu thereof ``amount''; in line
34, by striking ``em-''; in line 35, by striking ``ployment security fund''
and inserting in lieu thereof ``canceled warrants payment fund for payment of
expired warrants''; also in line 35, by striking ``claimants'' and inserting
in lieu thereof ``claimant''; before line 38, by inserting the following
section to read as follows:
  ``Sec. 5.  The department of human resources is hereby authorized and
directed to pay the following amount from the employment security fund to the
following claimant:'';
  And by renumbering sections accordingly;
  Also on page 6, by striking all in line 39;
  On page 8, in line 5, by striking ``(b)'' and inserting in lieu thereof
``Sec. 9.  (a)'';
  And by renumbering sections accordingly, and the bill be passed as further
amended.
  The following amendment offered by Senator Huelskamp to HB 2038 was
rejected: on page 6, in line 30, by striking ``$2,349.91'' and inserting
``$24,822.19''; in line 31, by striking ``$4,616.56'' and inserting
``$27,088.84''.
  HB 2181 be amended by adoption of the committee amendments, be
further amended by motion of Senator Harrington on page 2, after line 4, by
inserting the following:
  ``(d)  assessing the possible cancer risk of abortion;'';
  And by relettering subsections accordingly;
  Also on page 2, in line 25, before the period, by inserting ``and the
possible cancer risk related to having an abortion'', and the bill be passed
as further amended.
  HB 2188 be amended by adoption of the committee amendments, be
further amended by motion of Senator Jordan on page 2, in line 15, by
striking ``park improvement fund'' and inserting ``parks fee fund,
established under K.S.A. 32-991, and amendments thereto'', and the bill be
passed as further amended.
  HB 2010, 2255; Sub HB 2331 be passed over and retain a place on the
calendar.

FINAL ACTION OF BILLS AND CONCURRENT RESOLUTIONS

  On motion of Senator Emert an emergency was declared by a 2/3
constitutional majority, and SB 161; HB 2011, 2038, 2050, 2129,
2181, 2185, 2188, 2218, 2223, 2264, 2361, 2389, 2444 were advanced to
Final Action and roll call.
  SB 161, An act relating to property taxation; concerning appeals from
appraised valuation determinations; amending K.S.A. 74-2426, 74-2437,
74-2439, 79-331, 79-1409, 79-1412a, 79-1426, 79-1458 and 79-1472 and K.S.A.
1996 Supp. 79-1404, 79-1404a, 79-1413a, 791437f, 79-1448, 79-1604, 79-1606
and 79-1608 and repealing the existing sections; also repealing K.S.A.
79-1470 and K.S.A. 1996 Supp. 79-1481, 79-1494, 79-1609, 79-1610 and 79-1611,
was considered on final action.
  On roll call, the vote was: Yeas 25, nays 15, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bond, Corbin, Downey, Emert, Feleciano,
Gilstrap, Gooch, Goodwin, Hardenburger, Hensley, Jones, Jordan, Karr,
Langworthy, Lee, Oleen, Praeger, Salisbury, Schraad, Steffes, Steineger,
Vidricksen.
  Nays: Bleeker, Brownlee, Clark, Donovan, Harrington, Huelskamp, Kerr,
Lawrence, Morris, Petty, Pugh, Ranson, Salmans, Tyson, Umbarger.
  The bill passed, as amended.
                              EXPLANATION OF VOTE
  Mr. President: I could say much about state government taking over this
part of county government, however I will limit my remarks to the following.
  In abolishing County Hearing Officers who are employed by the individual
Counties and requiring all property tax appeals to be under the State Board
of Tax Appeals is taking

416                          JOURNAL OF THE SENATE

decisions that affect local people from the local government and giving it to
the State gov ernment. This is taking government in the wrong direction.
  Government that is closest and most responsive to the people is the best
government.-Robert Tyson
  HB 2011, An act relating to the workers compensation act; amending
K.S.A. 44-505, 44510b, 44-523, 44-534, 44-536, 44-550b, 44-557a, 44-567,
44-5,120, 44-5,121 and 74-713 and K.S.A. 1996 Supp. 44-508, 44-510, 44-532,
44-534a, 44-551, 44-555c, 44-566a and 44-5, 125 and repealing the existing
sections; also repealing K.S.A. 1996 Supp. 44-532b, was considered on final
action.
  On roll call, the vote was: Yeas 40, nays 0, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Prae ger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vi dricksen.
  The bill passed, as amended.
  HB 2038, An act concerning certain claims against the state; making
appropriations, authorizing certain transfers, imposing certain restrictions
and limitations, and directing or authorizing certain disbursements,
procedures and acts incidental to the foregoing, was considered on final
action.
  On roll call, the vote was: Yeas 40, nays 0, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Prae ger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vi dricksen.
  The bill passed, as amended.
  HB 2050, An act concerning the employment security law; extending the
moratorium on contributions for an additional year; amending K.S.A. 1996
Supp. 44-710a and repealing the existing section, was considered on final
action.
  On roll call, the vote was: Yeas 40, nays 0, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Prae ger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vi dricksen.
  The bill passed.
  HB 2129, An act concerning mental health services; licensed masters
level psychologists; practice requirements; institutional licensees of state
board of healing arts; care and treat ment act for mentally ill persons;
amending K.S.A. 74-5344, 74-5344, as amended by section 8 of this act, and
65-2895 and K.S.A. 1996 Supp. 59-2946, 59-2972, 65-5912, 65-6319, 745361,
74-5362, 74-5363 and 74-5366 and repealing the existing sections; also
repealing K.S.A. 74-5344, as amended by section 124 of chapter 229 of the
1996 Session Laws of Kansas, and K.S.A. 74-5363, as amended by section 124 of
chapter 229 of the 1996 Session Laws of Kansas and section 1 of chapter 172
of the 1996 Session laws of Kansas, section 2 of chapter 172 of the 1996
Session Laws of Kansas, section 3 of chapter 172 of the 1996 Session laws of
Kansas, section 4 of chapter 172 of the 1996 Sessions Laws of Kansas and
section 5 of chapter 172 of the 1996 Session laws of Kansas, was considered
on final action.
  On roll call, the vote was: Yeas 39, nays 1, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Prae ger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Vidricksen.
  Nays: Umbarger.
  The bill passed, as amended.

                                 March 27, 1997                             417

  HB 2181, An act establishing a cancer registry in the state of Kansas
and providing for rules and regulations for the operation thereof, was
considered on final action.
  On roll call, the vote was: Yeas 39, nays 1, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin, Donovan,
Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger, Harrington,
Hensley, Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy, Lawrence, Lee,
Morris, Oleen, Petty, Praeger, Pugh, Ranson, Salisbury, Salmans, Schraad,
Steffes, Steineger, Tyson, Umbarger, Vidricksen.
  Nays: Becker.
  The bill passed, as amended.
                              EXPLANATION OF VOTE
  Mr. President: I vote no on HB 2181. This bill creates a cancer
registry. I don't think it should be used as a means of collecting abortion
data. This is a dangerous precedent to set.--Rich Becker
  HB 2185, An act concerning department of health and environment;
adult care home administrator; continuing education sponsors; amending K.S.A.
1996 Supp. 65-3501 and 653503 and repealing the existing sections, was
considered on final action.
  On roll call, the vote was: Yeas 38, nays 2, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Jones, Jordan, Karr, Kerr, Langworthy, Lawrence, Lee,
Morris, Oleen, Petty, Praeger, Ranson, Salisbury, Salmans, Schraad, Steffes,
Steineger, Tyson, Umbarger, Vidricksen.
  Nays: Huelskamp, Pugh.
  The bill passed, as amended.
  HB 2188, An act concerning the department of wildlife and parks;
relating to improve ment and development of certain state parks; long-term
leases; taxation, was considered on final action.
  On roll call, the vote was: Yeas 34, nays 6, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bond, Brownlee, Corbin, Donovan, Downey,
Emert, Fe leciano, Gilstrap, Gooch, Goodwin, Hardenburger, Harrington,
Hensley, Huelskamp, Jones, Jordan, Karr, Langworthy, Lawrence, Lee, Morris,
Oleen, Praeger, Ranson, Salisbury, Schraad, Steffes, Steineger, Tyson,
Umbarger, Vidricksen.
  Nays: Bleeker, Clark, Kerr, Petty, Pugh, Salmans.
  The bill passed, as amended.
  HB 2218, An act concerning certain special benefit districts;
relating to the creation or enlargement thereof; amending K.S.A. 19-270,
24-409 and 82a-623 and repealing the ex isting sections, was considered on
final action.
  On roll call, the vote was: Yeas 40, nays 0, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Prae ger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vi dricksen.
  The bill passed, as amended.
  HB 2223, An act concerning cities; relating to improvements;
neighborhood revitaliza tion; amending K.S.A. 12-6a04 and 12-6a06 and K.S.A.
1996 Supp. 12-17,118 and repealing the existing sections, was considered on
final action.
  On roll call, the vote was: Yeas 40, nays 0, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Prae ger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vi dricksen.
  The bill passed, as amended.
  HB 2264, An act concerning real estate; relating to the brokerage
relationships in real estate transactions act; amending K.S.A. 17-2707,
58-3045 and 58-3063 and K.S.A. 1996 Supp. 58-3036, 58-3037, 58-3039, 58-3042
and 58-3046a and repealing the existing sections;

418                          JOURNAL OF THE SENATE

reviving K.S.A. 1996 Supp. 58-3035, 58-3050, 58-3062, 58-3064, 58-3065,
58-3068, 5830,101, 58-30,102, 58-30,103, 58-30,104, 58-30,105, 58-30,106,
58-30,107, 58-30,108, 5830,109, 58-30,110, 58-30,111, 58-30,112 and 74-4202;
amending K.S.A. 1996 Supp. 58-3035, as revived by section 3 of this act,
58-3050, as revived by section 11 of this act, 58-3062, as revived by section
13 of this act, 58-3064, as revived by section 16 of this act, 58-3065, as
revived by section 18 of this act, 58-3068, as revived by section 20 of this
act, 58-30,101, as revived and amended by section 22 of this act, 58-30,102,
as revived by section 24 of this act, 58-30,103, as revived by section 26 of
this act, 58-30,104, as revived by section 28 of this act, 58-30,105, as
revived by section 30 of this act, 58-30,106, as revived by section 32 of
this act, 58-30,107, as revived by section 34 of this act, 58-30,109, as
revived by section 37 of this act, 58-30,110, as revived by section 39 of
this act, 58-30,111, as revived by section 41 of this act, 58-30,112, as
revived by section 43 of this act, and 74-4202, as revived by section 45 of
this act, and repealing the existing sections; also repealing K.S.A. 1995
Supp. 58-3035, as amended by section 20 of chapter 212 of the 1996 Session
Laws of Kansas, 583050, as amended by section 12 of chapter 212 of the 1996
Session Laws of Kansas, 583062, as amended by section 13 of chapter 212 of
the 1996 Session Laws of Kansas, 583064, as amended by section 14 of chapter
212 of the 1996 Session Laws of Kansas, 58-3065, as amended by section 15 of
chapter 212 of the 1996 Session Laws of Kansas, 58-3068, as amended by
section 16 of chapter 212 of the 1996 Session Laws of Kansas, 74-4202, as
amended by section 17 of chapter 212 of the 1996 Session Laws of Kansas and
K.S.A. 1996 Supp. 58-30,108, as revived by section 36 of this act and
74-4209, was considered on final action.
  On roll call, the vote was: Yeas 35, nays 5, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bond, Brownlee, Corbin, Downey, Emert,
Feleciano, Gil strap, Gooch, Goodwin, Hardenburger, Harrington, Hensley,
Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy, Lawrence, Lee, Morris,
Oleen, Petty, Praeger, Salisbury, Salmans, Schraad, Steffes, Steineger,
Tyson, Umbarger, Vidricksen.
  Nays: Bleeker, Clark, Donovan, Pugh, Ranson.
  The bill passed.
  HB 2361, An act concerning nongame, threatened and endangered
species; relating to listing of and recovery plans for such species; allowing
tax credits for certain taxes and assessments; amending K.S.A. 32-957, 32-960
and 32-962 and K.S.A. 1996 Supp. 79-32,117 and repealing the existing
sections; also repealing K.S.A. 1996 Supp. 32-963a, was consid ered on final
action.
  On roll call, the vote was: Yeas 35, nays 5, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Corbin, Downey,
Feleciano, Gil strap, Gooch, Goodwin, Hardenburger, Harrington, Hensley,
Huelskamp, Jones, Jordan, Karr, Kerr, Langworthy, Lawrence, Lee, Morris,
Oleen, Petty, Praeger, Ranson, Salisbury, Salmans, Schraad, Steffes,
Steineger, Tyson, Vidricksen.
  Nays: Clark, Donovan, Emert, Pugh, Umbarger.
  The bill passed, as amended.
  HB 2389, An act concerning Kansas state university, authorizing the
state board of re gents to convey title to certain real estate located in
Clay and Washington counties; providing for the disposition of proceeds, was
considered on final action.
  On roll call, the vote was: Yeas 40, nays 0, present and passing 0; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bleeker, Bond, Brownlee, Clark, Corbin,
Donovan, Downey, Emert, Feleciano, Gilstrap, Gooch, Goodwin, Hardenburger,
Harrington, Hensley, Huel skamp, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Prae ger, Pugh, Ranson, Salisbury,
Salmans, Schraad, Steffes, Steineger, Tyson, Umbarger, Vi dricksen.
  The bill passed.
  HB 2444, An act establishing the advisory commission on
African-American affairs; com position thereof; election of officers; powers
and duties, was considered on final action.
  On roll call, the vote was: Yeas 31, nays 7, present and passing 2; absent
or not voting 0.
  Yeas: Barone, Becker, Biggs, Bond, Clark, Corbin, Downey, Emert, Feleciano,
Gilstrap, Gooch, Goodwin, Hensley, Jones, Jordan, Karr, Kerr, Langworthy,
Lawrence, Lee, Morris, Oleen, Petty, Praeger, Pugh, Salisbury, Schraad,
Steffes, Steineger, Umbarger, Vidricksen.

                                 March 27, 1997                             419

  Nays: Bleeker, Donovan, Hardenburger, Huelskamp, Ranson, Salmans, Tyson.
  Present and passing: Brownlee, Harrington.
  The bill passed.
  On motion of Senator Emert the Senate adjourned until 9:00 a.m., Friday,
March 28, 1997.
                                           HELEN A. MORELAND, Journal Clerk.
PAT SAVILLE, Secretary of the Senate.
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