CHAPTER 142 HOUSE BILL No. 2531
      An Act concerning certain crimes; enacting the prevention of assisted suicide act; concern-
      ing the assisting of suicide; providing criminal penalties; providing civil remedy; provid-
      ing injunctive relief; concerning abortions; amending K.S.A. 21-3406, 65-2006, 65-2896b
      and 75-6104 and K.S.A. 1997 Supp. 65-445, 65-1120, 65-1436, 65-1627, 65-2836, 65-
      2837, 65-6703 and 65-6712 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

New Section 1. Sections 1, 2, 4, 5, 6, 7 and 14, and amendments
thereto, shall be known and may be cited as the ``prevention of assisted
suicide act.''

New Sec. 2. As used in sections 1 to 14, inclusive, of this act:

(a) ``Licensed health care professional'' means a person licensed to
practice medicine and surgery, licensed podiatrist, registered physician
assistant, licensed nurse, dentist or licensed pharmacist.

(b) ``Suicide'' means the act or instance of taking one's own life vol-
untarily and intentionally.

Sec. 3. K.S.A. 21-3406 is hereby amended to read as follows: 21-
3406. (a) Assisting suicide is intentionally advising, encouraging or assist-
ing another in the taking of the other's life which results in a suicide or
attempted suicide. Assisting suicide is a severity level 9, person felony.:

(1) Knowingly by force or duress causing another person to commit
or to attempt to commit suicide; or

(2) with the intent and purpose of assisting another person to commit
or to attempt to commit suicide, knowingly either:

(A) Providing the physical means by which another person commits
or attempts to commit suicide; or

(B) participating in a physical act by which another person commits
or attempts to commit suicide.

(b) Assisting suicide under subsection (1) is a severity level 3, person
felony. Assisting suicide under subsection (2) is a severity level 9, person
felony.

New Sec. 4. (a) A licensed health care professional who administers,
prescribes or dispenses medications or procedures to relieve another per-
son's pain or discomfort, even if the medication or procedure may hasten
or increase the risk of death, does not violate K.S.A. 21-3406 and amend-
ments thereto unless the medications or procedures are knowingly ad-
ministered, prescribed or dispensed with the intent to cause death.

(b) A licensed health care professional, family member or other le-
gally authorized person who participates in the act of, or the decision
making process which results in the withholding or withdrawal of a life-
sustaining procedure does not violate K.S.A. 21-3406 and amendments
thereto.

(c) Providing spiritual treatment through prayer alone, in lieu of med-
ical treatment, does not violate K.S.A. 21-3406 and amendments thereto.

New Sec. 5. (a) A cause of action for injunctive relief may be main-
tained against any person who is reasonably believed to be about to violate
or who is in the course of violating K.S.A. 21-3406 and amendments
thereto by any person who is:

(1) The spouse, parent, child or sibling of the person who would
commit suicide.

(2) Entitled to inherit from the person who would commit suicide.

(3) A health care provider of the person who would commit suicide.

(4) A public official with appropriate jurisdiction to prosecute or en-
force the laws of this state.

New Sec. 6. A cause of action for civil damages may be maintained
against any person who violates or who attempts to violate K.S.A. 21-3406
and amendments thereto by any person who is the spouse, parent, child,
sibling, or entitled to inherit from the person or who is the personal
representative of the person who did or would commit suicide for com-
pensatory damages and exemplary damages, whether or not the plaintiff
consented to or had prior knowledge of the violation or attempt.

New Sec. 7. Reasonable attorney fees shall be awarded to the pre-
vailing plaintiff in a civil action brought pursuant to section 5 or 6 and
amendments thereto, or in a proceeding for a judgment of contempt of
court for violating an injunction issued under section 5 and amendments
thereto. If the defendant prevails, and the court determines that a plaintiff
brought the suit or the proceeding for a judgment of contempt frivolously
or in bad faith, reasonable attorney fees shall be awarded to the defend-
ant.

Sec. 8. K.S.A. 1997 Supp. 65-1120 is hereby amended to read as
follows: 65-1120. (a) Grounds for disciplinary actions. The board may
deny, revoke, limit or suspend any license, certificate of qualification or
authorization to practice nursing as a registered professional nurse, as a
licensed practical nurse, as an advanced registered nurse practitioner or
as a registered nurse anesthetist that is issued by the board or applied for
under this act or may publicly or privately censure a licensee or holder
of a certificate of qualification or authorization, if the applicant, licensee
or holder of a certificate of qualification or authorization is found after
hearing:

(1) To be guilty of fraud or deceit in practicing nursing or in procuring
or attempting to procure a license to practice nursing;

(2) to have been guilty of a felony or to have been guilty of a mis-
demeanor involving an illegal drug offense unless the applicant or licensee
establishes sufficient rehabilitation to warrant the public trust, except that
notwithstanding K.S.A. 74-120 no license, certificate of qualification or
authorization to practice nursing as a licensed professional nurse, as a
licensed practical nurse, as an advanced registered nurse practitioner or
registered nurse anesthetist shall be granted to a person with a felony
conviction for a crime against persons as specified in article 34 of chapter
21 of the Kansas Statutes Annotated and acts amendatory thereof or sup-
plemental thereto;

(3) to have committed an act of professional incompetency as defined
in subsection (e);

(4) to be unable to practice with skill and safety due to current abuse
of drugs or alcohol;

(5) to be a person who has been adjudged in need of a guardian or
conservator, or both, under the act for obtaining a guardian or conser-
vator, or both, and who has not been restored to capacity under that act;

(6) to be guilty of unprofessional conduct as defined by rules and
regulations of the board;

(7) to have willfully or repeatedly violated the provisions of the Kansas
nurse practice act or any rules and regulations adopted pursuant to that
act, including K.S.A. 65-1114 and 65-1122 and amendments thereto; or

(8) to have a license to practice nursing as a registered nurse or as a
practical nurse denied, revoked, limited or suspended, or to be publicly
or privately censured, by a licensing authority of another state, agency of
the United States government, territory of the United States or country
or to have other disciplinary action taken against the applicant or licensee
by a licensing authority of another state, agency of the United States
government, territory of the United States or country. A certified copy of
the record or order of public or private censure, denial, suspension, lim-
itation, revocation or other disciplinary action of the licensing authority
of another state, agency of the United States government, territory of the
United States or country shall constitute prima facie evidence of such a
fact for purposes of this paragraph (8).; or

(9) to have assisted suicide in violation of K.S.A. 21-3406 and amend-
ments thereto as established by any of the following:

(A) A copy of the record of criminal conviction or plea of guilty for a
felony in violation of K.S.A. 21-3406 and amendments thereto.

(B) A copy of the record of a judgment of contempt of court for vio-
lating an injunction issued under section 5 and amendments thereto.

(C) A copy of the record of a judgment assessing damages under sec-
tion 6 and amendments thereto.

(b) Proceedings. Upon filing of a sworn complaint with the board
charging a person with having been guilty of any of the unlawful practices
specified in subsection (a), two or more members of the board shall in-
vestigate the charges, or the board may designate and authorize an em-
ployee or employees of the board to conduct an investigation. After in-
vestigation, the board may institute charges. If an investigation, in the
opinion of the board, reveals reasonable grounds for believing the appli-
cant or licensee is guilty of the charges, the board shall fix a time and
place for proceedings, which shall be conducted in accordance with the
provisions of the Kansas administrative procedure act.

(c) Witnesses. No person shall be excused from testifying in any pro-
ceedings before the board under this act or in any civil proceedings under
this act before a court of competent jurisdiction on the ground that such
testimony may incriminate the person testifying, but such testimony shall
not be used against the person for the prosecution of any crime under
the laws of this state except the crime of perjury as defined in K.S.A. 21-
3805 and amendments thereto.

(d) Costs. If final agency action of the board in a proceeding under
this section is adverse to the applicant or licensee, the costs of the board's
proceedings shall be charged to the applicant or licensee as in ordinary
civil actions in the district court, but if the board is the unsuccessful party,
the costs shall be paid by the board. Witness fees and costs may be taxed
by the board according to the statutes relating to procedure in the district
court. All costs accrued by the board, when it is the successful party, and
which the attorney general certifies cannot be collected from the appli-
cant or licensee shall be paid from the board of nursing fee fund. All
moneys collected following board proceedings shall be credited in full to
the board of nursing fee fund.

(e) Professional incompetency defined. As used in this section, ``pro-
fessional incompetency'' means:

(1) One or more instances involving failure to adhere to the appli-
cable standard of care to a degree which constitutes gross negligence, as
determined by the board;

(2) repeated instances involving failure to adhere to the applicable
standard of care to a degree which constitutes ordinary negligence, as
determined by the board; or

(3) a pattern of practice or other behavior which demonstrates a man-
ifest incapacity or incompetence to practice nursing.

(f) Criminal justice information. The board upon request shall receive
from the Kansas bureau of investigation such criminal history record in-
formation relating to arrests and criminal convictions as necessary for the
purpose of determining initial and continuing qualifications of licensees
of and applicants for licensure by the board.

Sec. 9. K.S.A. 1997 Supp. 65-1436 is hereby amended to read as
follows: 65-1436. (a) The Kansas dental board may refuse to issue the
license provided for in this act, or may take any of the actions with respect
to any dental or dental hygiene license as set forth in subsection (b),
whenever it is established, after notice and opportunity for hearing in
accordance with the provisions of the Kansas administrative procedure
act, that any applicant for a dental or dental hygiene license or any li-
censed dentist or dental hygienist practicing in the state of Kansas has:

(1) Committed fraud, deceit or misrepresentation in obtaining any
license, money or other thing of value;

(2) habitually used intoxicants or drugs which have rendered such
person unfit for the practice of dentistry or dental hygiene;

(3) been determined by the board to be professionally incompetent;

(4) committed gross, wanton or willful negligence in the practice of
dentistry or dental hygiene;

(5) employed, allowed or permitted any unlicensed person or persons
to perform any work in the licensee's office which constitutes the practice
of dentistry or dental hygiene under the provisions of this act;

(6) willfully violated the laws of this state relating to the practice of
dentistry or dental hygiene or the rules and regulations of the secretary
of health and environment or of the board regarding sanitation;

(7) engaged in the division of fees, or agreed to split or divide the fee
received for dental service with any person for bringing or referring a
patient without the knowledge of the patient or the patient's legal rep-
resentative, except the division of fees between dentists practicing in a
partnership and sharing professional fees, or in case of one licensed den-
tist employing another;

(8) committed complicity in association with or allowed the use of
the licensed dentist's name in conjunction with any person who is engaged
in the illegal practice of dentistry;

(9) been convicted of a felony or a misdemeanor involving moral tur-
pitude in any jurisdiction and the licensee fails to show that the licensee
has been sufficiently rehabilitated to warrant the public trust;

(10) prescribed, dispensed, administered or distributed a prescription
drug or substance, including a controlled substance, in an excessive, im-
proper or inappropriate manner or quantity outside the scope of practice
of dentistry or in a manner that impairs the health and safety of an in-
dividual;

(11) prescribed, purchased, administered, sold or given away pre-
scription drugs, including a controlled substance, for other than legal and
legitimate purposes;

(12) violated or been convicted of any federal or state law regulating
possession, distribution or use of any controlled substance;

(13) failed to pay license fees;

(14) used the name ``clinic,'' ``institute'' or other title that may suggest
a public or semipublic activity except that the name ``clinic'' may be used
as authorized in K.S.A. 65-1435 and amendments thereto;

(15) committed, after becoming a licensee, any conduct which is det-
rimental to the public health, safety or welfare as defined by rules and
regulations of the board;

(16) engaged in a misleading, deceptive, untrue or fraudulent mis-
representation in the practice of dentistry or on any document connected
with the practice of dentistry by knowingly submitting any misleading,
deceptive, untrue or fraudulent misrepresentation on a claim form, bill
or statement, including the systematic waiver of patient co-payment or
co-insurance;

(17) failed to keep adequate records;

(18) the licensee has had a license to practice dentistry revoked, sus-
pended or limited, has been censured or has had other disciplinary action
taken, an application for license denied, or voluntarily surrendered the
license after formal proceedings have been commenced by the proper
licensing authority or another state, territory or the District of Columbia
or other country, a certified copy of the record of the action of the other
jurisdiction being conclusive evidence thereof; or

(19) failed to furnish the board, or its investigators or representatives
any information legally requested by the board; or

(20) assisted suicide in violation of K.S.A. 21-3406 and amendments
thereto as established by any of the following:

(A) A copy of the record of criminal conviction or plea of guilty for a
felony in violation of K.S.A. 21-3406 and amendments thereto.

(B) A copy of the record of a judgment of contempt of court for vio-
lating an injunction issued under section 5 and amendments thereto.

(C) A copy of the record of a judgment assessing damages under sec-
tion 6 and amendments thereto.

(b) Whenever it is established, after notice and opportunity for hear-
ing in accordance with the provisions of the Kansas administrative pro-
cedure act, that a licensee is in any of the circumstances or has committed
any of the acts described in subsection (a), the Kansas dental board may
take one or any combination of the following actions with respect to the
license of the licensee:

(1) Revoke the license.

(2) Suspend the license for such period of time as may be determined
by the board.

(3) Restrict the right of the licensee to practice by imposing limita-
tions upon dental or dental hygiene procedures which may be performed,
categories of dental disease which may be treated or types of patients
which may be treated by the dentist or dental hygienist. Such restrictions
shall continue for such period of time as may be determined by the board,
and the board may require the licensee to provide additional evidence at
hearing before lifting such restrictions.

(4) Grant a period of probation during which the imposition of one
or more of the actions described in subsections (b)(1) through (b)(3) will
be stayed subject to such conditions as may be imposed by the board
including a requirement that the dentist or dental hygienist refrain from
any course of conduct which may result in further violation of the dental
practice act or the dentist or dental hygienist complete additional or re-
medial instruction. The violation of any provision of the dental practice
act or failure to meet any condition imposed by the board as set forth in
the order of the board will result in immediate termination of the period
of probation and imposition of such other action as has been taken by the
board.

(c) As used in this section, ``professionally incompetent'' means:

(1) One or more instances involving failure to adhere to the appli-
cable standard of dental or dental hygienist care to a degree which con-
stitutes gross negligence, as determined by the board;

(2) repeated instances involving failure to adhere to the applicable
standard of dental or dental hygienist care to a degree which constitutes
ordinary negligence, as determined by the board; or

(3) a pattern of dental or dental hygienist practice or other behavior
which demonstrates a manifest incapacity or incompetence to practice
dentistry.

(d) In addition to or in lieu of one or more of the actions described
in subsections (b)(1) through (b)(4), the board may assess a fine not in
excess of $10,000 against a licensee. All fines collected pursuant to this
subsection shall be remitted to the state treasurer. Of the amount so
remitted, an amount equal to the board's actual costs related to fine as-
sessment and enforcement under this subsection, as certified by the pres-
ident of the board to the state treasurer, shall be credited to the dental
board fee fund and the balance shall be credited to the state general fund.

(e) The board, upon its own motion or upon the request of any li-
censee who is a party to a licensure action, may require a physical or
mental examination, or both, of such licensee either prior to a hearing to
be held as a part of a licensure action or prior to the termination of any
period of suspension or the termination of any restrictions imposed upon
the licensee as provided in subsection (b).

Sec. 10. K.S.A. 1997 Supp. 65-1627 is hereby amended to read as
follows: 65-1627. (a) The board may revoke, suspend, place in a proba-
tionary status or deny a renewal of any license of any pharmacist upon a
finding that:

(1) The license was obtained by fraudulent means;

(2) the licensee has been convicted of a felony and the licensee fails
to show that the licensee has been sufficiently rehabilitated to warrant
the public trust;

(3) the licensee is found by the board to be guilty of unprofessional
conduct or professional incompetency;

(4) the licensee is addicted to the liquor or drug habit to such a degree
as to render the licensee unfit to practice the profession of pharmacy;

(5) the licensee has violated a provision of the federal or state food,
drug and cosmetic act, the uniform controlled substances act of the state
of Kansas, or any rule and regulation adopted under any such act;

(6) the licensee is found by the board to have filled a prescription not
in strict accordance with the directions of the practitioner;

(7) the licensee is found to be mentally or physically incapacitated to
such a degree as to render the licensee unfit to practice the profession
of pharmacy;

(8) the licensee has violated any of the provisions of the pharmacy
act of the state of Kansas or any rule and regulation adopted by the board
pursuant to the provisions of such pharmacy act;

(9) the licensee has failed to comply with the requirements of the
board relating to the continuing education of pharmacists;

(10) the licensee as a pharmacist in charge or consultant pharmacist
under the provisions of subsection (c) or (d) of K.S.A. 65-1648 and
amendments thereto has failed to comply with the requirements of sub-
section (c) or (d) of K.S.A. 65-1648 and amendments thereto;

(11) the licensee has knowingly submitted a misleading, deceptive,
untrue or fraudulent misrepresentation on a claim form, bill or statement;

(12) the licensee has had a license to practice pharmacy revoked,
suspended or limited, has been censured or has had other disciplinary
action taken, or an application for license denied, by the proper licensing
authority of another state, territory, District of Columbia or other country,
a certified copy of the record of the action of the other jurisdiction being
conclusive evidence thereof; or

(13) the licensee has self-administered any controlled substance with-
out a practitioner's prescription order.; or

(14) the licensee has assisted suicide in violation of K.S.A. 21-3406
and amendments thereto as established by any of the following:

(A) A copy of the record of criminal conviction or plea of guilty for a
felony in violation of K.S.A. 21-3406 and amendments thereto.

(B) A copy of the record of a judgment of contempt of court for vio-
lating an injunction issued under section 5 and amendments thereto.

(C) A copy of the record of a judgment assessing damages under sec-
tion 6 and amendments thereto.

(b) In determining whether or not the licensee has violated subsec-
tion (a)(3), (a)(4), (a)(7) or (a)(13), the board upon reasonable suspicion
of such violation has authority to compel a licensee to submit to mental
or physical examination or drug screen, or any combination thereof, by
such persons as the board may designate. To determine whether reason-
able suspicion of such violation exists, the investigative information shall
be presented to the board as a whole. Information submitted to the board
as a whole and all reports, findings and other records shall be confidential
and not subject to discovery by or release to any person or entity. The
licensee shall submit to the board a release of information authorizing
the board to obtain a report of such examination or drug screen, or both.
A person affected by this subsection shall be offered, at reasonable in-
tervals, an opportunity to demonstrate that such person can resume the
competent practice of pharmacy with reasonable skill and safety to pa-
tients. For the purpose of this subsection, every person licensed to prac-
tice pharmacy and who shall accept the privilege to practice pharmacy in
this state by so practicing or by the making and filing of an annual renewal
to practice pharmacy in this state shall be deemed to have consented to
submit to a mental or physical examination or a drug screen, or any com-
bination thereof, when directed in writing by the board and further to
have waived all objections to the admissibility of the testimony, drug
screen or examination report of the person conducting such examination
or drug screen, or both, at any proceeding or hearing before the board
on the ground that such testimony or examination or drug screen report
constitutes a privileged communication. In any proceeding by the board
pursuant to the provisions of this subsection, the record of such board
proceedings involving the mental and physical examination or drug
screen, or any combination thereof, shall not be used in any other ad-
ministrative or judicial proceeding.

(c) The board may suspend, revoke, place in a probationary status or
deny a renewal of any retail dealer's permit issued by the board when
information in possession of the board discloses that such operations for
which the permit was issued are not being conducted according to law or
the rules and regulations of the board.

(d) The board may revoke, suspend, place in a probationary status or
deny a renewal of the registration of a pharmacy upon a finding that: (1)
Such pharmacy has been operated in such manner that violations of the
provisions of the pharmacy act of the state of Kansas or of the rules and
regulations of the board have occurred in connection therewith; (2) the
owner or any pharmacist employed at such pharmacy is convicted, sub-
sequent to such owner's acquisition of or such employee's employment
at such pharmacy, of a violation of the pharmacy act or uniform controlled
substances act of the state of Kansas, or the federal or state food, drug
and cosmetic act; or (3) the owner or any pharmacist employed by such
pharmacy has fraudulently claimed money for pharmaceutical services.

(e) A registration to manufacture or to distribute at wholesale a drug
or a registration for the place of business where any such operation is
conducted may be suspended, revoked, placed in a probationary status
or the renewal of such registration may be denied by the board upon a
finding that the registrant or the registrant's agent: (1) Has materially
falsified any application filed pursuant to or required by the pharmacy
act of the state of Kansas; (2) has been convicted of a felony under any
federal or state law relating to the manufacture or distribution of drugs;
(3) has had any federal registration for the manufacture or distribution of
drugs suspended or revoked; (4) has refused to permit the board or its
duly authorized agents to inspect the registrant's establishment in ac-
cordance with the provisions of K.S.A. 65-1629 and amendments thereto;
(5) has failed to keep, or has failed to file with the board or has falsified
records required to be kept or filed by the provisions of the pharmacy
act of the state of Kansas or by the board's rules and regulations; or (6)
has violated the pharmacy act of the state of Kansas or rules and regu-
lations adopted by the state board of pharmacy under the pharmacy act
of the state of Kansas or has violated the uniform controlled substances
act or rules and regulations adopted by the state board of pharmacy under
the uniform controlled substances act.

(f) Orders under this section, and proceedings thereon, shall be sub-
ject to the provisions of the Kansas administrative procedure act.

Sec. 11. K.S.A. 65-2006 is hereby amended to read as follows: 65-
2006. (a) The board, upon hearing, may revoke, suspend or limit any
license or permit to practice podiatry, may deny issuance or renewal of
any such license or permit, or may publicly or privately censure a licensee
or permittee, if the person holding or applying for such license or permit
is found by the board to:

(1) Have committed fraud in securing the license or permit;

(2) have engaged in unprofessional or dishonorable conduct or pro-
fessional incompetency;

(3) have been convicted of a felony if the board determines, after
investigation, that such person has not been sufficiently rehabilitated to
warrant the public trust;

(4) have used untruthful or improbable statements or flamboyant,
exaggerated or extravagant claims in advertisements concerning the li-
censee's or permit holder's professional excellence or abilities;

(5) be addicted to or have distributed intoxicating liquors or drugs
for any other than lawful purposes;

(6) have willfully or repeatedly violated the podiatry act, the phar-
macy act or the uniform controlled substances act, or any rules and reg-
ulations adopted thereunder, or any rules and regulations of the secretary
of health and environment which are relevant to the practice of podiatry;

(7) have unlawfully invaded the field of practice of any branch of the
healing arts;

(8) have failed to submit proof of completion of a continuing edu-
cation course required pursuant to the podiatry act;

(9) have engaged in the practice of podiatry under a false or assumed
name or impersonated another podiatrist, but practice by a licensee or
permit holder under a professional corporation or other legal entity duly
authorized to provide podiatry services in the state shall not be considered
to be practice under an assumed name;

(10) be unable to practice podiatry with reasonable skill and safety to
patients by reason of any mental or physical condition, illness, alcoholism
or excessive use of drugs, controlled substances or chemical or any other
type of material;

(11) have had the person's license or permit to practice podiatry re-
voked, suspended or limited, or have had other disciplinary actions taken
or an application for a license or permit denied, by the proper licensing
authority of any state, territory or country or the District of Columbia;

(12) have violated any rules and regulations of the board or any lawful
order or directive of the board; or

(13) have knowingly submitted a misleading, deceptive, untrue or
fraudulent misrepresentation on a claim form, bill or statement.; or

(14) have assisted suicide in violation of K.S.A. 21-3406 and amend-
ments thereto as established by any of the following:

(A) A copy of the record of criminal conviction or plea of guilty for a
felony in violation of K.S.A. 21-3406 and amendments thereto.

(B) A copy of the record of a judgment of contempt of court for vio-
lating an injunction issued under section 5 and amendments thereto.

(C) A copy of the record of a judgment assessing damages under sec-
tion 6 and amendments thereto.

(b) In determining whether or not a licensee or permit holder is un-
able to practice podiatry with reasonable skill and safety to patients as
provided in subsection (a)(10), the board, upon probable cause, shall have
authority to compel a licensee or permit holder to submit to mental or
physical examination by such persons as the board may designate. Failure
of a licensee or permit holder to submit to such examination when di-
rected shall constitute an admission of the allegations against the licensee
or permit holder, unless the failure was due to circumstances beyond the
licensee's or permit holder's control. A person affected by this subsection
shall be offered, at reasonable intervals, an opportunity to demonstrate
that such person can resume the competent practice of podiatry with
reasonable skill and safety to patients. Each licensee or permit holder
accepting the privilege to practice podiatry in this state, by practicing
podiatry in this state or by making and filing an application for a license
or permit, or renewal of a license or permit, to practice podiatry in this
state, shall be deemed to have consented to submit to a mental or physical
examination when directed in writing by the board pursuant to this sub-
section and to have waived all objections to the admissibility of the tes-
timony or examination report of the person conducting such examination
at any proceeding or hearing before the board on the ground that such
testimony or examination report constitutes a privileged communication.
The record of any board proceedings involving a mental or physical ex-
amination pursuant to this subsection shall not be used in any other ad-
ministrative or judicial proceeding.

Whenever the board directs that a licensee or permit holder submit to
an examination pursuant to this subsection, the time from the date of the
board's directive until the submission to the board of the report of the
examination shall not be included in the computation of the time limit
for hearing prescribed by the Kansas administrative procedure act.

(c) As used in this section, ``professional incompetency'' and ``unpro-







fessional conduct'' shall have the meanings ascribed thereto by K.S.A. 65-
2837 and amendments thereto.

(d) The procedure for revocation, suspension, limitation, temporary
suspension, temporary limitation, or for denial of issuance or renewal
pursuant to this section, of any license or permit to practice podiatry shall
be in accordance with the provisions of the Kansas administrative pro-
cedure act.

Sec. 12. K.S.A. 1997 Supp. 65-2836 is hereby amended to read as
follows: 65-2836. A licensee's license may be revoked, suspended or lim-
ited, or the licensee may be publicly or privately censured, or an appli-
cation for a license or for reinstatement of a license may be denied upon
a finding of the existence of any of the following grounds:

(a) The licensee has committed fraud or misrepresentation in apply-
ing for or securing an original, renewal or reinstated license.

(b) The licensee has committed an act of unprofessional or dishon-
orable conduct or professional incompetency.

(c) The licensee has been convicted of a felony or class A misde-
meanor, whether or not related to the practice of the healing arts.

(d) The licensee has used fraudulent or false advertisements.

(e) The licensee is addicted to or has distributed intoxicating liquors
or drugs for any other than lawful purposes.

(f) The licensee has willfully or repeatedly violated this act, the phar-
macy act of the state of Kansas or the uniform controlled substances act,
or any rules and regulations adopted pursuant thereto, or any rules and
regulations of the secretary of health and environment which are relevant
to the practice of the healing arts.

(g) The licensee has unlawfully invaded the field of practice of any
branch of the healing arts in which the licensee is not licensed to practice.

(h) The licensee has engaged in the practice of the healing arts under
a false or assumed name, or the impersonation of another practitioner.
The provisions of this subsection relating to an assumed name shall not
apply to licensees practicing under a professional corporation or other
legal entity duly authorized to provide such professional services in the
state of Kansas.

(i) The licensee has the inability to practice the branch of the healing
arts for which the licensee is licensed with reasonable skill and safety to
patients by reason of illness, alcoholism, excessive use of drugs, controlled
substances, chemical or any other type of material or as a result of any
mental or physical condition. In determining whether or not such inability
exists, the board, upon reasonable suspicion of such inability, shall have
authority to compel a licensee to submit to mental or physical examination
or drug screen, or any combination thereof, by such persons as the board
may designate. To determine whether reasonable suspicion of such ina-
bility exists, the investigative information shall be presented to the board
as a whole, to a review committee of professional peers of the licensee
established pursuant to K.S.A. 65-2840c and amendments thereto or to
a committee consisting of the officers of the board elected pursuant to
K.S.A. 65-2818 and amendments thereto and the executive director ap-
pointed pursuant to K.S.A. 65-2878 and amendments thereto, and the
determination shall be made by a majority vote of the entity which re-
viewed the investigative information. Information submitted to the board
as a whole or a review committee of peers or a committee of the officers
and executive director of the board and all reports, findings and other
records shall be confidential and not subject to discovery by or release to
any person or entity. The licensee shall submit to the board a release of
information authorizing the board to obtain a report of such examination
or drug screen, or both. A person affected by this subsection shall be
offered, at reasonable intervals, an opportunity to demonstrate that such
person can resume the competent practice of the healing arts with rea-
sonable skill and safety to patients. For the purpose of this subsection,
every person licensed to practice the healing arts and who shall accept
the privilege to practice the healing arts in this state by so practicing or
by the making and filing of an annual renewal to practice the healing arts
in this state shall be deemed to have consented to submit to a mental or
physical examination or a drug screen, or any combination thereof, when
directed in writing by the board and further to have waived all objections
to the admissibility of the testimony, drug screen or examination report
of the person conducting such examination or drug screen, or both, at
any proceeding or hearing before the board on the ground that such
testimony or examination or drug screen report constitutes a privileged
communication. In any proceeding by the board pursuant to the provi-
sions of this subsection, the record of such board proceedings involving
the mental and physical examination or drug screen, or any combination
thereof, shall not be used in any other administrative or judicial proceed-
ing.

(j) The licensee has had a license to practice the healing arts revoked,
suspended or limited, has been censured or has had other disciplinary
action taken, or an application for a license denied, by the proper licensing
authority of another state, territory, District of Columbia, or other coun-
try, a certified copy of the record of the action of the other jurisdiction
being conclusive evidence thereof.

(k) The licensee has violated any lawful rule and regulation promul-
gated by the board or violated any lawful order or directive of the board
previously entered by the board.

(l) The licensee has failed to report or reveal the knowledge required
to be reported or revealed under K.S.A. 65-28,122 and amendments
thereto.

(m) The licensee, if licensed to practice medicine and surgery, has
failed to inform a patient suffering from any form of abnormality of the
breast tissue for which surgery is a recommended form of treatment, of
alternative methods of treatment specified in the standardized summary
supplied by the board. The standardized summary shall be given to each
patient specified herein as soon as practicable and medically indicated
following diagnosis, and this shall constitute compliance with the require-
ments of this subsection. The board shall develop and distribute to per-
sons licensed to practice medicine and surgery a standardized summary
of the alternative methods of treatment known to the board at the time
of distribution of the standardized summary, including surgical, radiolog-
ical or chemotherapeutic treatments or combinations of treatments and
the risks associated with each of these methods. Nothing in this subsection
shall be construed or operate to empower or authorize the board to re-
strict in any manner the right of a person licensed to practice medicine
and surgery to recommend a method of treatment or to restrict in any
manner a patient's right to select a method of treatment. The standard-
ized summary shall not be construed as a recommendation by the board
of any method of treatment. The preceding sentence or words having the
same meaning shall be printed as a part of the standardized summary.
The provisions of this subsection shall not be effective until the stan-
dardized written summary provided for in this subsection is developed
and printed and made available by the board to persons licensed by the
board to practice medicine and surgery.

(n) The licensee has cheated on or attempted to subvert the validity
of the examination for a license.

(o) The licensee has been found to be mentally ill, disabled, not guilty
by reason of insanity, not guilty because the licensee suffers from a mental
disease or defect or incompetent to stand trial by a court of competent
jurisdiction.

(p) The licensee has prescribed, sold, administered, distributed or
given a controlled substance to any person for other than medically ac-
cepted or lawful purposes.

(q) The licensee has violated a federal law or regulation relating to
controlled substances.

(r) The licensee has failed to furnish the board, or its investigators or
representatives, any information legally requested by the board.

(s) Sanctions or disciplinary actions have been taken against the li-
censee by a peer review committee, health care facility, a governmental
agency or department or a professional association or society for acts or
conduct similar to acts or conduct which would constitute grounds for
disciplinary action under this section.

(t) The licensee has failed to report to the board any adverse action
taken against the licensee by another state or licensing jurisdiction, a peer
review body, a health care facility, a professional association or society, a
governmental agency, by a law enforcement agency or a court for acts or
conduct similar to acts or conduct which would constitute grounds for
disciplinary action under this section.

(u) The licensee has surrendered a license or authorization to practice
the healing arts in another state or jurisdiction, has surrendered the au-
thority to utilize controlled substances issued by any state or federal
agency, has agreed to a limitation to or restriction of privileges at any
medical care facility or has surrendered the licensee's membership on any
professional staff or in any professional association or society while under
investigation for acts or conduct similar to acts or conduct which would
constitute grounds for disciplinary action under this section.

(v) The licensee has failed to report to the board surrender of the
licensee's license or authorization to practice the healing arts in another
state or jurisdiction or surrender of the licensee's membership on any
professional staff or in any professional association or society while under
investigation for acts or conduct similar to acts or conduct which would
constitute grounds for disciplinary action under this section.

(w) The licensee has an adverse judgment, award or settlement
against the licensee resulting from a medical liability claim related to acts
or conduct similar to acts or conduct which would constitute grounds for
disciplinary action under this section.

(x) The licensee has failed to report to the board any adverse judg-
ment, settlement or award against the licensee resulting from a medical
malpractice liability claim related to acts or conduct similar to acts or
conduct which would constitute grounds for disciplinary action under this
section.

(y) The licensee has failed to maintain a policy of professional liability
insurance as required by K.S.A. 40-3402 or 40-3403a and amendments
thereto.

(z) The licensee has failed to pay the annual premium surcharge as
required by K.S.A. 40-3404 and amendments thereto.

(aa) The licensee has knowingly submitted any misleading, deceptive,
untrue or fraudulent representation on a claim form, bill or statement.

(bb) The licensee as the responsible physician for a physician's as-
sistant has failed to adequately direct and supervise the physician's as-
sistant in accordance with K.S.A. 65-2896 to 65-2897a, inclusive, and
amendments thereto, or rules and regulations adopted under such stat-
utes.

(cc) The licensee has assisted suicide in violation of K.S.A. 21-3406 as
established by any of the following:

(A) A copy of the record of criminal conviction or plea of guilty for a
felony in violation of K.S.A. 21-3406 and amendments thereto.

(B) A copy of the record of a judgment of contempt of court for vio-
lating an injunction issued under section 5 and amendments thereto.

(C) A copy of the record of a judgment assessing damages under sec-
tion 6 and amendments thereto.

Sec. 13. K.S.A. 65-2896b is hereby amended to read as follows: 65-
2896b. (a) The board of healing arts may remove a person's name from
the register of physicians' assistants for any of the following reasons:

(1) The person whose name is entered on the register of physicians'
assistants requests or consents to the removal thereof;

(2) the board of healing arts determines that the person whose name
is entered on the register of physicians' assistants has not been employed
as a physician's assistant or as a teacher or instructor of persons being
educated and trained to become physicians' assistants in a course of ed-
ucation and training approved by the state board of healing arts under
K.S.A. 65-2896a and amendments thereto at some time during the five
years immediately preceding the date of such determination;

(3) if the board determines, after notice and opportunity to be heard,
in accordance with the provisions of the Kansas administrative procedure
act, that a physician's assistant has violated any provision of K.S.A. 65-
2896 to 65-2897a, inclusive, and amendments thereto, or any rules and
regulations adopted pursuant thereto; or

(4) if the board determines, after notice and opportunity to be heard,
in accordance with the provisions of the Kansas administrative procedure
act, that the request by the proposed responsible physician pursuant to
subsection (a)(4) of K.S.A. 65-2896a and amendments thereto should not
be approved.; or

(5) if the board determines, after notice and opportunity to be heard,
in accordance with the provisions of the Kansas administrative procedure
act, that a physician assistant has assisted suicide in violation of K.S.A.
21-3406 and amendments thereto as established by any of the following:

(A) A copy of the record of criminal conviction or plea of guilty for a
felony in violation of K.S.A. 21-3406 and amendments thereto.

(B) A copy of the record of a judgment of contempt of court for vio-
lating an injunction issued under section 5 and amendments thereto.

(C) A copy of the record of a judgment assessing damages under sec-
tion 6 and amendments thereto.

(b) The board of healing arts may remove a person's name from the
register of physicians' assistants or may refuse to place a person's name
on the register of physicians' assistants, if the board determines, after
notice and opportunity for hearing in accordance with the provisions of
the Kansas administrative procedure act, that a physician's assistant has
exceeded or has acted outside the scope of authority given the physician's
assistant by the responsible physician or by this act.

New Sec. 14. If any one or more provision, section, subsection, sen-
tence, clause, phrase or word of this act or the application thereof to any
person or circumstance is found to be unconstitutional, the same is hereby
declared to be severable and the balance of this act shall remain effective
notwithstanding such unconstitutionality. The legislature hereby declares
that it would have passed this act, and each provision, section, subsection,
sentence, clause, phrase or word thereof, irrespective of the fact that any
one or more provision, section, subsection, sentence, clause, phrase or
word be declared unconstitutional.

Sec. 15. K.S.A. 1997 Supp. 65-6703 is hereby amended to read as
follows: 65-6703. (a) No person shall perform or induce an abortion when
the fetus is viable unless such person is a physician and has a documented
referral from another physician not legally or financially associated affil-
iated with the physician performing or inducing the abortion and both
physicians determine that: (1) The abortion is necessary to preserve the
life of the pregnant woman; or (2) the fetus is affected by a severe or life-
threatening deformity or abnormality a continuation of the pregnancy will
cause a substantial and irreversible impairment of a major bodily function
of the pregnant woman.

(b) (1) Except in the case of a medical emergency, prior to performing
an abortion upon a woman, the physician shall determine the gestational
age of the fetus according to accepted obstetrical and neonatal practice
and standards applied by physicians in the same or similar circumstances.
If the physician determines the gestational age is less than 22 weeks, the
physician shall document as part of the medical records of the woman the
basis for the determination.

(2) If the physician determines the gestational age of the fetus is 22
or more weeks, prior to performing an abortion upon the woman the
physician shall determine if the fetus is viable by using and exercising
that degree of care, skill and proficiency commonly exercised by the or-
dinary skillful, careful and prudent physician in the same or similar cir-
cumstances. In making this determination of viability, the physician shall
perform or cause to be performed such medical examinations and tests as
are necessary to make a finding of the gestational age of the fetus and
shall enter such findings and determinations of viability in the medical
record of the woman.

(3) If the physician determines the gestational age of a fetus is 22 or
more weeks, and determines that the fetus is not viable and performs an
abortion on the woman, the physician shall report such determinations
and the reasons for such determinations in writing to the medical care
facility in which the abortion is performed for inclusion in the report of
the medical care facility to the secretary of health and environment under
K.S.A. 65-445 and amendments thereto or if the abortion is not performed
in a medical care facility, the physician shall report such determinations
and the reasons for such determinations in writing to the secretary of
health and environment as part of the written report made by the phy-
sician to the secretary of health and environment under K.S.A. 65-445
and amendments thereto.

(4) If the physician who is to perform the abortion determines the
gestational age of a fetus is 22 or more weeks, and determines that the
fetus is viable, both physicians under subsection (a) determine in accord-
ance with the provisions of subsection (a) that an abortion is necessary to
preserve the life of the pregnant woman or that a continuation of the
pregnancy will cause a substantial and irreversible impairment of a major
bodily function of the pregnant woman and the physician performs an
abortion on the woman, the physician who performs the abortion shall
report such determinations, the reasons for such determinations and the
basis for the determination that an abortion is necessary to preserve the
life of the pregnant woman or that a continuation of the pregnancy will
cause a substantial and irreversible impairment of a major bodily function
of the pregnant woman in writing to the medical care facility in which
the abortion is performed for inclusion in the report of the medical care
facility to the secretary of health and environment under K.S.A. 65-445
and amendments thereto or if the abortion is not performed in a medical
care facility, the physician who performs the abortion shall report such
determinations, the reasons for such determinations and the basis for the
determination that an abortion is necessary to preserve the life of the
pregnant woman or that a continuation of the pregnancy will cause a
substantial and irreversible impairment of a major bodily function of the
pregnant woman in writing to the secretary of health and environment
as part of the written report made by the physician to the secretary of
health and environment under K.S.A. 65-445 and amendments thereto.

(5) The physician shall retain the medical records required to be kept
under paragraphs (1) and (2) of this subsection (b) for not less than five
years and shall retain a copy of the written reports required under par-
agraphs (3) and (4) of this subsection (b) for not less than five years.

(c) A woman upon whom an abortion is performed shall not be pros-
ecuted under this section for a conspiracy to violate this section pursuant
to K.S.A. 21-3302, and amendments thereto.

(d) Nothing in this section shall be construed to create a right to an
abortion. Notwithstanding any provision of this section, a person shall
not perform an abortion that is prohibited by law.

(e) As used in this section, ``viable'' means that stage of fetal devel-
opment when it is the physician's judgment according to accepted ob-
stetrical or neonatal standards of care and practice applied by physicians
in the same or similar circumstances that there is a reasonable probability
that the life of the child can be continued indefinitely outside the mother's
womb with natural or artificial life-supportive measures.

(f) If any provision of this section is held to be invalid or unconsti-
tutional, it shall be conclusively presumed that the legislature would have
enacted the remainder of this section without such invalid or unconsti-
tutional provision.

(b) Violation of this section is a class A person misdemeanor.

(g) Upon a first conviction of a violation of this section, a person shall
be guilty of a class A nonperson misdemeanor. Upon a second or subse-
quent conviction of a violation of this section, a person shall be guilty of
a severity level 10, nonperson felony.

Sec. 16. K.S.A. 1997 Supp. 65-6712 is hereby amended to read as
follows: 65-6712. Any physician who intentionally, knowingly or recklessly
fails to provide informed consent pursuant to the woman's-right-to-know
act in accordance with K.S.A. 1997 Supp. 65-6709 and amendments
thereto the printed materials described in K.S.A. 1997 Supp. 65-6710 and
amendments thereto, whether or not an abortion is actually performed
on the woman, is guilty of unprofessional conduct as defined in K.S.A.
65-2837 and amendments thereto.

Sec. 17. K.S.A. 1997 Supp. 65-445 is hereby amended to read as
follows: 65-445. (a) Every medical care facility shall keep written records
of all pregnancies which are lawfully terminated within such medical care
facility and shall annually submit a written report thereon to the secretary
of health and environment in the manner and form prescribed by the
secretary. Every person licensed to practice medicine and surgery shall
keep a record of all pregnancies which are lawfully terminated by such
person in a location other than a medical care facility and shall annually
submit a written report thereon to the secretary of health and environ-
ment in the manner and form prescribed by the secretary.

(b) Each report required by this section shall include the number of
pregnancies terminated during the period of time covered by the report,
the type of medical facility in which the pregnancy was terminated, in-
formation required to be reported under K.S.A. 65-6703 and amendments
thereto if applicable to the pregnancy terminated, and such other infor-
mation as may be required by the secretary of health and environment,
but the report shall not include the names of the persons whose preg-
nancies were so terminated.

(c) Information obtained by the secretary of health and environment
under this section shall be confidential and shall not be disclosed in a
manner that would reveal the identity of any person licensed to practice
medicine and surgery who submits a report to the secretary under this
section or the identity of any medical care facility which submits a report
to the secretary under this section, except that such information, including
information identifying such persons and facilities may be disclosed to the
state board of healing arts upon request of the board for disciplinary
action conducted by the board and may be disclosed to the attorney gen-
eral upon a showing that a reasonable cause exists to believe that a vio-
lation of this act has occurred. Any information disclosed to the state
board of healing arts or the attorney general pursuant to this subsection
shall be used solely for the purposes of a disciplinary action or criminal
proceeding. Except as otherwise provided in this subsection, information
obtained by the secretary under this section may be used only for statis-
tical purposes, except that no and such information may shall not be
released in a manner which would identify any county or other area of
this state in which the termination of the pregnancy occurred. A violation
of this subsection (c) is a class A nonperson misdemeanor.

(d) In addition to such criminal penalty under subsection (c), any
person licensed to practice medicine and surgery or medical care facility
whose identity is revealed in violation of this section may bring a civil
action against the responsible person or persons for any damages to the
person licensed to practice medicine and surgery or medical care facility
caused by such violation.

(e) For the purpose of maintaining confidentiality as provided by sub-
sections (c) and (d), reports of terminations of pregnancies required by
this section shall identify the person or facility submitting such reports
only by confidential code number assigned by the secretary of health and
environment to such person or facility and the department of health and
environment shall maintain such reports only by such number.

New Sec. 18. (a) No person shall perform or induce a partial birth
abortion on a viable fetus unless such person is a physician and has a
documented referral from another physician not legally or financially af-
filiated with the physician performing or inducing the abortion and both
physicians determine: (1) The abortion is necessary to preserve the life
of the pregnant woman; or (2) a continuation of the pregnancy will cause
a substantial and irreversible impairment of a major physical or mental
function of the pregnant woman.

(b) As used in this section:

(1) ``Partial birth abortion'' means an abortion procedure which in-
cludes the deliberate and intentional evacuation of all or a part of the
intracranial contents of a viable fetus prior to removal of such otherwise
intact fetus from the body of the pregnant woman.

(2) ``Partial birth abortion'' shall not include the: (A) Suction curet-
tage abortion procedure; (B) suction aspiration abortion procedure; or
(C) dilation and evacuation abortion procedure involving dismemberment
of the fetus prior to removal from the body of the pregnant woman.

(c) If a physician determines in accordance with the provisions of
subsection (a) that a partial birth abortion is necessary and performs a
partial birth abortion on the woman, the physician shall report such de-
termination and the reasons for such determination in writing to the med-
ical care facility in which the abortion is performed for inclusion in the
report of the medical care facility to the secretary of health and environ-
ment under K.S.A. 65-445 and amendments thereto or if the abortion is
not performed in a medical care facility, the physician shall report the
reasons for such determination in writing to the secretary of health and
environment as part of the written report made by the physician to the
secretary of health and environment under K.S.A. 65-445 and amend-
ments thereto. The physician shall retain a copy of the written reports
required under this subsection for not less than five years.

(d) A woman upon whom an abortion is performed shall not be pros-
ecuted under this section for a conspiracy to violate this section pursuant
to K.S.A. 21-3302, and amendments thereto.

(e) Nothing in this section shall be construed to create a right to an
abortion. Notwithstanding any provision of this section, a person shall not
perform an abortion that is prohibited by law.

(f) Upon conviction of a violation of this section, a person shall be
guilty of a severity level 10 person felony.

Sec. 19. K.S.A. 1997 Supp. 65-2837 is hereby amended to read as
follows: 65-2837. As used in K.S.A. 65-2836, and amendments thereto,
and in this section:

(a) ``Professional incompetency'' means:

(1) One or more instances involving failure to adhere to the appli-
cable standard of care to a degree which constitutes gross negligence, as
determined by the board.

(2) Repeated instances involving failure to adhere to the applicable
standard of care to a degree which constitutes ordinary negligence, as
determined by the board.

(3) A pattern of practice or other behavior which demonstrates a
manifest incapacity or incompetence to practice medicine.

(b) ``Unprofessional conduct'' means:

(1) Solicitation of professional patronage through the use of fraudu-
lent or false advertisements, or profiting by the acts of those representing
themselves to be agents of the licensee.

(2) Representing to a patient that a manifestly incurable disease, con-
dition or injury can be permanently cured.

(3) Assisting in the care or treatment of a patient without the consent
of the patient, the attending physician or the patient's legal representa-
tives.

(4) The use of any letters, words, or terms, as an affix, on stationery,
in advertisements, or otherwise indicating that such person is entitled to
practice a branch of the healing arts for which such person is not licensed.

(5) Performing, procuring or aiding and abetting in the performance
or procurement of a criminal abortion.

(6) Willful betrayal of confidential information.

(7) Advertising professional superiority or the performance of pro-
fessional services in a superior manner.

(8) Advertising to guarantee any professional service or to perform
any operation painlessly.

(9) Participating in any action as a staff member of a medical care
facility which is designed to exclude or which results in the exclusion of
any person licensed to practice medicine and surgery from the medical
staff of a nonprofit medical care facility licensed in this state because of
the branch of the healing arts practiced by such person or without just
cause.

(10) Failure to effectuate the declaration of a qualified patient as
provided in subsection (a) of K.S.A. 65-28,107, and amendments thereto.

(11) Prescribing, ordering, dispensing, administering, selling, supply-
ing or giving any amphetamines or sympathomimetic amines, except as
authorized by K.S.A. 65-2837a, and amendments thereto.

(12) Conduct likely to deceive, defraud or harm the public.

(13) Making a false or misleading statement regarding the licensee's
skill or the efficacy or value of the drug, treatment or remedy prescribed
by the licensee or at the licensee's direction in the treatment of any dis-
ease or other condition of the body or mind.

(14) Aiding or abetting the practice of the healing arts by an unli-
censed, incompetent or impaired person.

(15) Allowing another person or organization to use the licensee's
license to practice the healing arts.

(16) Commission of any act of sexual abuse, misconduct or exploita-
tion related to the licensee's professional practice.

(17) The use of any false, fraudulent or deceptive statement in any
document connected with the practice of the healing arts including the
intentional falsifying or fraudulent altering of a patient or medical care
facility record.

(18) Obtaining any fee by fraud, deceit or misrepresentation.

(19) Directly or indirectly giving or receiving any fee, commission,
rebate or other compensation for professional services not actually and
personally rendered, other than through the legal functioning of lawful
professional partnerships, corporations or associations.

(20) Failure to transfer patient records to another licensee when re-
quested to do so by the subject patient or by such patient's legally des-
ignated representative.

(21) Performing unnecessary tests, examinations or services which
have no legitimate medical purpose.

(22) Charging an excessive fee for services rendered.

(23) Prescribing, dispensing, administering, distributing a prescrip-
tion drug or substance, including a controlled substance, in an excessive,
improper or inappropriate manner or quantity or not in the course of the
licensee's professional practice.

(24) Repeated failure to practice healing arts with that level of care,
skill and treatment which is recognized by a reasonably prudent similar
practitioner as being acceptable under similar conditions and circum-
stances.

(25) Failure to keep written medical records which accurately de-
scribe the services rendered to the patient, including patient histories,
pertinent findings, examination results and test results.

(26) Delegating professional responsibilities to a person when the
licensee knows or has reason to know that such person is not qualified by
training, experience or licensure to perform them.

(27) Using experimental forms of therapy without proper informed
patient consent, without conforming to generally accepted criteria or stan-
dard protocols, without keeping detailed legible records or without having
periodic analysis of the study and results reviewed by a committee or
peers.

(28) Prescribing, dispensing, administering or distributing an ana-
bolic steroid or human growth hormone for other than a valid medical
purpose. Bodybuilding, muscle enhancement or increasing muscle bulk
or strength through the use of an anabolic steroid or human growth hor-
mone by a person who is in good health is not a valid medical purpose.

(29) Referring a patient to a health care entity for services if the
licensee has a significant investment interest in the health care entity,
unless the licensee informs the patient in writing of such significant in-
vestment interest and that the patient may obtain such services elsewhere.

(30) Violating K.S.A. 65-6703 and amendments thereto.

(c) ``False advertisement'' means any advertisement which is false,
misleading or deceptive in a material respect. In determining whether
any advertisement is misleading, there shall be taken into account not
only representations made or suggested by statement, word, design, de-
vice, sound or any combination thereof, but also the extent to which the
advertisement fails to reveal facts material in the light of such represen-
tations made.

(d) ``Advertisement'' means all representations disseminated in any
manner or by any means, for the purpose of inducing, or which are likely
to induce, directly or indirectly, the purchase of professional services.

(e) ``Licensee'' for purposes of this section and K.S.A. 65-2836, and
amendments thereto, shall mean all persons issued a license, permit or
special permit pursuant to article 28 of chapter 65 of the Kansas Statutes
Annotated.

(f) ``License'' for purposes of this section and K.S.A. 65-2836, and
amendments thereto, shall mean any license, permit or special permit
granted under article 28 of chapter 65 of the Kansas Statutes Annotated.

(g) ``Health care entity'' means any corporation, firm, partnership or
other business entity which provides services for diagnosis or treatment
of human health conditions and which is owned separately from a refer-
ring licensee's principle practice.

(h) ``Significant investment interest'' means ownership of at least 10%
of the value of the firm, partnership or other business entity which owns
or leases the health care entity, or ownership of at least 10% of the shares
of stock of the corporation which owns or leases the health care entity.

Sec. 20. K.S.A. 75-6104 is hereby amended to read as follows: 75-
6104. A governmental entity or an employee acting within the scope of
the employee's employment shall not be liable for damages resulting
from:

(a) Legislative functions, including, but not limited to, the adoption
or failure to adopt any statute, regulation, ordinance or resolution;

(b) judicial function;

(c) enforcement of or failure to enforce a law, whether valid or in-
valid, including, but not limited to, any statute, rule and regulation, or-
dinance or resolution;

(d) adoption or enforcement of, or failure to adopt or enforce, any
written personnel policy which protects persons' health or safety unless
a duty of care, independent of such policy, is owed to the specific indi-
vidual injured, except that the finder of fact may consider the failure to
comply with any written personnel policy in determining the question of
negligence;

(e) any claim based upon the exercise or performance or the failure
to exercise or perform a discretionary function or duty on the part of a
governmental entity or employee, whether or not the discretion is abused
and regardless of the level of discretion involved;

(f) the assessment or collection of taxes or special assessments;

(g) any claim by an employee of a governmental entity arising from
the tortious conduct of another employee of the same governmental en-
tity, if such claim is (1) compensable pursuant to the Kansas workers
compensation act or (2) not compensable pursuant to the Kansas workers
compensation act because the injured employee was a firemen's relief
association member who was exempt from such act pursuant to K.S.A.
44-505d, and amendments thereto, at the time the claim arose;

(h) the malfunction, destruction or unauthorized removal of any traf-
fic or road sign, signal or warning device unless it is not corrected by the
governmental entity responsible within a reasonable time after actual or
constructive notice of such malfunction, destruction or removal. Nothing
herein shall give rise to liability arising from the act or omission of any
governmental entity in placing or removing any of the above signs, signals
or warning devices when such placement or removal is the result of a
discretionary act of the governmental entity;

(i) any claim which is limited or barred by any other law or which is
for injuries or property damage against an officer, employee or agent
where the individual is immune from suit or damages;

(j) any claim based upon emergency management activities, except
that governmental entities shall be liable for claims to the extent provided
in article 9 of chapter 48 of the Kansas Statutes Annotated;

(k) the failure to make an inspection, or making an inadequate or
negligent inspection, of any property other than the property of the gov-
ernmental entity, to determine whether the property complies with or
violates any law or rule and regulation or contains a hazard to public
health or safety;

(l) snow or ice conditions or other temporary or natural conditions
on any public way or other public place due to weather conditions, unless
the condition is affirmatively caused by the negligent act of the govern-
mental entity;

(m) the plan or design for the construction of or an improvement to
public property, either in its original construction or any improvement
thereto, if the plan or design is approved in advance of the construction
or improvement by the governing body of the governmental entity or
some other body or employee exercising discretionary authority to give
such approval and if the plan or design was prepared in conformity with
the generally recognized and prevailing standards in existence at the time
such plan or design was prepared;

(n) failure to provide, or the method of providing, police or fire pro-
tection;

(o) any claim for injuries resulting from the use of any public property
intended or permitted to be used as a park, playground or open area for
recreational purposes, unless the governmental entity or an employee
thereof is guilty of gross and wanton negligence proximately causing such
injury;

(p) the natural condition of any unimproved public property of the
governmental entity;

(q) any claim for injuries resulting from the use or maintenance of a
public cemetery owned and operated by a municipality or an abandoned
cemetery, title to which has vested in a governmental entity pursuant to
K.S.A. 17-1366 through 17-1368, and amendments thereto, unless the
governmental entity or an employee thereof is guilty of gross and wanton
negligence proximately causing the injury;

(r) the existence, in any condition, of a minimum maintenance road,
after being properly so declared and signed as provided in K.S.A. 68-
5,102, and amendments thereto;

(s) any claim for damages arising from the performance of community
service work other than damages arising from the operation of a motor
vehicle as defined by K.S.A. 40-3103, and amendments thereto;

(t) any claim for damages arising from the operation of vending ma-
chines authorized pursuant to K.S.A. 68-432 or K.S.A. 75-3343a, and
amendments thereto;

(u) providing, distributing or selling information from geographic in-
formation systems which includes an entire formula, pattern, compilation,
program, device, method, technique, process, digital database or system
which electronically records, stores, reproduces and manipulates by com-
puter geographic and factual information which has been developed in-
ternally or provided from other sources and compiled for use by a public
agency, either alone or in cooperation with other public or private entities;
or

(v) any claim arising from providing a juvenile justice program to
juvenile offenders, if such juvenile justice program has contracted with
the commissioner of juvenile justice or with another nonprofit program
that has contracted with the commissioner of juvenile justice.

A governmental entity shall not be liable for damages under subsection
(d) of K.S.A. 65-445 and amendments thereto or subsection (e) of K.S.A.
1997 Supp. 65-6804 and amendments thereto for any action of an em-
ployee or former employee who has violated the provisions of subsection
(d) of K.S.A. 65-445 and amendments thereto or subsection (e) of K.S.A.
1997 Supp. 65-6804 and amendments thereto.

The enumeration of exceptions to liability in this section shall not be
construed to be exclusive nor as legislative intent to waive immunity from
liability in the performance or failure to perform any other act or function
of a discretionary nature.

Sec. 21. K.S.A. 21-3406, 65-2006, 65-2896b and 75-6104 and K.S.A.
1997 Supp. 65-445, 65-1120, 65-1436, 65-1627, 65-2836, 65-2837, 65-
6703 and 65-6712 are hereby repealed.

Sec. 22. This act shall take effect and be in force from and after its
publication in the statute book.

Approved April 27, 1998

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