SB 286--Am. by HCW
[As Amended by House Committee of the Whole]
As Amended by House Committee
As Amended by Senate Committee
Session of 1997
By Committee on Financial Institutions and Insurance

14 AN ACT [concerning patient protection;] enacting the patient pro- 15 tection act; relating to health care services [enacting the woman's- 16 right-to-know act; establishing requirements for informed con- 17 sent relating to abortions; providing penalties for violations; 18 amending K.S.A. 65-6701 and K.S.A. 1996 Supp. 65-2836 and 19 repealing the existing sections; also repealing K.S.A. 65-6706]. 20 21 Be it enacted by the Legislature of the State of Kansas: 22 Section 1. This act [Sections 1 to 8, inclusive, and amendments 23 thereto] shall be known and may be cited as the patient protection act. 24 Sec. 2. As used in this [the patient protection] act: 25 (a) ``Emergency medical condition'' means the sudden and, at the 26 time, unexpected onset of a health condition that requires immediate 27 medical attention, where failure to provide medical attention would result 28 in serious impairment to bodily functions or serious dysfunction of a bod- 29 ily organ or part, or would place the person's health in serious jeopardy. 30 (b) ``Emergency services'' means ambulance services and health 31 care items and services furnished or required to evaluate and treat an 32 emergency medical condition, as directed or ordered by a physician. 33 (c) ``Health benefit plan'' means any hospital or medical expense pol- 34 icy, health, hospital or medical service corporation contract, a plan pro- 35 vided by a municipal group-funded pool, a policy or agreement entered 36 into by a health insurer or a health maintenance organization contract 37 offered by an employer or any certificate issued under any such policies, 38 contracts or plans. ``Health benefit plan'' does not include policies or 39 certificates covering only accident, credit, dental, disability income, long- 40 term care, hospital indemnity, medicare supplement, specified disease, 41 vision care, coverage issued as a supplement to liability insurance, insur- 42 ance arising out of a workers compensation or similar law, automobile 43 medical-payment insurance, or insurance under which benefits are pay- SB 286--Am. by HCW

 1  able with or without regard to fault and which is statutorily required to
 2  be contained in any liability insurance policy or equivalent self-insurance.
 3    (d)  ``Health insurer'' means any insurance company, nonprofit med-
 4  ical and hospital service corporation, municipal group-funded pool, fra-
 5  ternal benefit society, health maintenance organization, or any other
 6  entity which offers a health benefit plan subject to the Kansas Statutes
 7  Annotated.
 8    (e)  ``Insured'' means a person who is covered by a health ben-
 9  efit plan.
10    (e) (f)  ``Participating provider'' means a provider who, under a con-
11  tract with the health insurer or with its contractor or subcontractor, has
12  agreed to provide one or more health care services to covered persons
13  insureds with an expectation of receiving payment, other than coinsur-
14  ance, copayments or deductibles, directly or indirectly from the health
15  insurer.
16    (f) (g)  ``Provider'' means a physician, hospital or other person which
17  is licensed, accredited or certified to perform specified health care serv-
18  ices.
19    (g) (h)  ``Provider network'' means those participating providers who
20  have entered into a contract or agreement with a health insurer to provide
21  items or health care services to individuals covered by a health benefit
22  plan offered by such health insurer.
23    (h) (i)  ``Physician'' means a person licensed by the state board of
24  healing arts to practice medicine and surgery.
25    Sec. 3.  (a) A health benefit plan shall not deny coverage for emer-
26  gency services if the symptoms presented by a covered patient person
27  an insured and recorded by the attending provider indicate that an emer-
28  gency medical condition exists, including or for emergency services nec-
29  essary to provide the a covered person an insured with a medical
30  examination and stabilizing treatment required pursuant to section 1867
31  of the Social Security Act, regardless of whether prior authorization was
32  obtained to provide those services.
33    (b)  If a participating provider or other authorized representative of a
34  health carrier insurer authorizes emergency services, the health carrier
35  insurer shall not subsequently rescind or modify that authorization after
36  the provider renders the authorized care in good faith and pursuant to
37  the authorization except for:
38    (1)  Payments made as a result of misrepresentation, fraud, omission
39  or clerical error; and
40    (2)  copayment, coinsurance or deductible amounts that are the re-
41  sponsibility of the covered person insured.
42    (c)  Once an enrollee insured is stabilized pursuant to subsection (a),
43  a health benefit plan may require as a condition of further coverage that
SB 286--Am. by HCW

 1  a hospital emergency facility shall promptly contact the health carrier
 2  insurer for prior authorization for continuing treatment, specialty con-
 3  sultations, transfer arrangements or other medically necessary and appro-
 4  priate care for an enrollee insured.
 5    (d)  Coverage of emergency services shall be subject to applicable
 6  copayments, coinsurance and deductibles.
 7    (e)  For required post evaluation or post stabilization services imme-
 8  diately following treatment of an emergency medical condition, a health
 9  insurer shall provide access to an authorized representative 24 hours a
10  day, seven days a week.
11    Sec. 4.  No health insurer shall prohibit or restrict any participating
12  provider from discussing with or disclosing to any covered person insured
13  or other individual any medically appropriate health care information that
14  such provider deems appropriate regarding the nature of treatment op-
15  tions, the risks or alternatives thereto, the process used or the decision
16  made by such insurer to approve or deny health care services, the avail-
17  ability of alternate therapies, consultations, or tests, or from advocating
18  on behalf of the covered person insured within the utilization review or
19  grievance processes established by the health insurer.
20    Sec. 5.  No health insurer shall offer or operate a compensation ar-
21  rangement between such health insurer or its agents and a participating
22  provider that may directly or indirectly serve as an inducement to reduce
23  or limit the delivery of medically necessary services with respect to a
24  covered person an insured in any health benefit plan offered by such
25  health insurer. Compensation arrangements which involve capitation pay-
26  ments or other risk sharing provisions shall not be considered induce-
27  ments.
28    Sec. 6.  Every health insurer shall inform in writing current and pro-
29  spective covered persons insureds that the following information shall
30  be available upon request:
31    (a)  A complete description of the health care services, items and other
32  benefits to which the covered person insured is entitled in the particular
33  health benefit plan which is covering or being offered to such person;
34    (b)  a description of any limitations, exceptions or exclusions to cov-
35  erage in the health benefit plan, including prior authorization policies,
36  restricted drug formularies or other provisions which restrict access to
37  covered services or items by covered persons the insured;
38    (c)  a listing of the health benefit plan's participating providers, their
39  business addresses and telephone numbers, the availability of those pro-
40  viders, and any limitations on a covered person's an insured's choice of
41  provider;
42    (d)  notification in advance of any changes in the health benefit plan
43  which either reduces the coverage or benefits, or increases the cost, to
SB 286--Am. by HCW

 1  such person; and
 2    (e)  a description of the grievance and appeal procedures available
 3  under the health benefit plan and a covered person's an insured's rights
 4  regarding termination, disenrollment, nonrenewal or cancelation of cov-
 5  erage.
 6    Sec. 7.  (a) A health insurer providing a health benefit plan shall main-
 7  tain a provider network that is sufficient in numbers and types of provid-
 8  ers to assure that all covered services to covered persons an insured will
 9  be accessible without unreasonable delay. Sufficiency of the provider net-
10  work shall be determined in accordance with the requirements of this
11  section, and may be established by reference to any reasonable criteria
12  used by the health insurer, including but not limited to: provider-covered
13  person provider-insured ratios by specialty; primary care provider-cov-
14  ered person provider-insured ratios; geographic accessibility; waiting
15  times for appointments with participating providers; hours of operation;
16  and the availability of technological and specialty services to serve the
17  needs of covered persons insureds requiring technologically advanced or
18  specialty care.
19    (b)  A health insurer shall have a plan by which a covered person an
20  insured with a life-threatening, chronic, degenerative or disabling con-
21  dition or disease, which requires specialized medical care over a pro-
22  longed period of time, may receive a referral to a specialist with expertise
23  in treating such disease or condition who shall be responsible for and
24  capable of providing and coordinating the covered person's insured's
25  specialty care.
26    (c)  Nothing in this section shall require a health insurer to provide
27  benefits not otherwise covered by the terms of the health benefits plan.
28    Sec. 8.  The commissioner of insurance may adopt rules and
29  regulations as necessary to implement the provisions of this [the
30  patient protection] act.
31    [New Sec. 9.  Sections 9 to 20, inclusive, and amendments
32  thereto shall be known and may be cited as the woman's-right-to-
33  know act.
34    [New Sec. 10.  (a) The legislature of the state of Kansas finds
35  that:
36    [(1)  It is essential to the psychological and physical well-being
37  of a woman considering an abortion that she receive complete and
38  accurate information on her alternatives.
39    [(2)  The knowledgeable exercise of a woman's decision to have
40  an abortion depends on the extent to which the woman receives
41  sufficient information to make an informed choice between two
42  alternatives:  Giving birth or having an abortion.
43    [(3)  A large percentage of all abortions are performed in clinics
SB 286--Am. by HCW

 1  devoted solely to providing abortions and family planning services.
 2  Most women who seek abortions at these facilities do not have any
 3  relationship with the physician who performs the abortion, before
 4  or after the procedure. They do not return to the facility for post-
 5  surgical care. In most instances, the woman's only actual contact
 6  with the physician occurs simultaneously with the abortion pro-
 7  cedure, with little opportunity to receive counseling concerning
 8  her decision.
 9    [(4)  The decision to abort ``is an important, and often a stressful
10  one, and it is desirable and imperative that it be made with full
11  knowledge of its nature and consequences.'' Planned Parenthood v.
12  Danforth, 428 U.S. 52, 67 (1976).
136    [(5)  ``The medical, emotional, and psychological consequences
14  of an abortion are serious and can be lasting. . . .'' H.L. v. Matheson,
15  450 U.S. 398, 411 (1981).
161    [(6)  Abortion facilities or providers offer only limited and/or
17  impersonal counseling opportunities.
18    [(7)  Many abortion facilities or providers hire untrained and
19  unprofessional ``counselors'' whose primary goal is to sell abortion
20  services.
21    [(b)  Based on the findings in subsection (a) of this section, it is
22  the purpose of the woman's-right-to-know act to:
23    [(1)  Ensure that every woman considering an abortion receive
24  complete information on her alternatives and that every woman
25  submitting to an abortion do so only after giving her voluntary and
26  informed consent to the abortion procedure.
27    [(2)  Protect unborn children from a woman's uninformed de-
28  cision to have an abortion.
29    [(3)  Reduce ``the risk that a woman may elect an abortion, only
30  to discover later, with devastating psychological consequences,
31  that her decision was not fully informed.'' Planned Parenthood v.
32  Casey, 112 S.Ct. 2791, 2823 (1992).
332    [Sec. 11.  K.S.A. 65-6701 is hereby amended to read as follows:
34  65-6701. As used in this act:
35    [(a)  ``Abortion'' means the use of any means to intentionally
36  terminate a pregnancy except for the purpose of causing a live
37  birth. Abortion does not include: (1) The use of any drug or device
38  that inhibits or prevents ovulation, fertilization or the implantation
39  of an embryo; or (2) disposition of the product of in vitro fertili-
40  zation prior to implantation.
41    [(b)  ``Conception'' means the fusion of a human spermatozoon with
42  a human ovum.
43    [(c)  ``Counselor'' means a person who is: (1) Licensed to prac-
SB 286--Am. by HCW

 1  tice medicine and surgery; (2) licensed to practice psychology; (3)
 2  licensed to practice professional or practical nursing; (4) regis-
 3  tered to practice professional counseling; (5) licensed as a social
 4  worker; (6) the holder of a master's or doctor's degree from an
 5  accredited graduate school of social work; (7) registered to prac-
 6  tice marriage and family therapy; (8) a registered physician's as-
 7  sistant; or (9) a currently ordained member of the clergy or relig-
 8  ious authority of any religious denomination or society. Counselor
 9  does not include the physician who performs or induces the abor-
10  tion or a physician or other person who assists in performing or
11  inducing the abortion.
12    [(c) (d)  ``Department'' means the department of health and environ-
13  ment.
14    [(e)  ``Gestational age'' means the time that has elapsed since the first
15  day of the woman's last menstrual period.
16    [(f)  ``Medical emergency'' means that condition which, on the basis of
17  the physician's good faith clinical judgment, so complicates the medical
18  condition of a pregnant woman as to necessitate the immediate abortion
19  of her pregnancy to overt her death or for which a delay will create serious
20  risk of substantial and irreversible impairment of a major bodily function.
21    [(g)  ``Minor'' means a person less than 18 years of age.
22    [(d) (h)  ``Physician'' means a person licensed to practice medi-
23  cine and surgery in this state.
24    [(e) (i)  ``Pregnant'' or ``pregnancy'' means that female reproductive
25  condition of having an unborn child in the mother's body.
26    [(j)  ``Qualified person'' means an agent of the physician who is a psy-
27  chologist, licensed social worker, registered professional counselor, reg-
28  istered nurse or physician.
29    [(k)  ``Unborn child'' means the offspring of human beings from con-
30  ception until birth.
31    [(l)  ``Unemancipated minor'' means any minor who has never
32  been: (1) Married; or (2) freed, by court order or otherwise, from
33  the care, custody and control of the minor's parents.
34    [(f) (m)  ``Viable'' means that stage of gestation when, in the best
35  medical judgment of the attending physician, the fetus is capable
36  of sustained survival outside the uterus without the application of
37  extraordinary medical means.
38    [(n)  ``Aggrieved party'' means any woman who obtains, seeks to ob-
39  tain, or believes she has obtained, an abortion, and includes her personal
40  representative.
41    [New Sec. 12.  No abortion shall be performed or induced
42  without the voluntary and informed consent of the woman upon
43  whom the abortion is to be performed or induced. Except in the
SB 286--Am. by HCW

 1  case of a medical emergency, consent to an abortion is voluntary
 2  and informed only if:
 3    [(a)  At least eight hours before the abortion the physician who
 4  is to perform the abortion or the referring physician has informed
 5  the woman, orally and in person, of:
 6    [(1)  The name of the physician who will perform the abortion;
 7    [(2)  a description of the proposed abortion method;
 8    [(3)  a description of risks related to the proposed abortion
 9  method, including risks to the woman's reproductive health and
10  alternatives to the abortion that a reasonable patient would con-
11  sider material to the decision of whether or not to undergo the
12  abortion;
13    [(4)  the probable gestational age of the unborn child at the
14  time the abortion is to be performed, and if the unborn child is
15  viable or has reached the gestational age of 24 weeks, that (A) the
16  unborn child may be able to survive outside the womb; and (B) if
17  the unborn child is born alive, the attending physician has the legal
18  obligation to take all reasonable steps necessary to maintain the
19  life and health of the child;
20    [(5)  the probable anatomical and physiological characteristics
21  of the unborn child at the time the abortion is to be performed;
22    [(6)  the medical risks associated with carrying her child to
23  term; and
24    [(7)  any need for anti-Rh immune globulin therapy, if she is Rh
25  negative, the likely consequences of refusing such therapy and the
26  cost of the therapy.
27    [(b)  At least eight hours before the abortion, the physician who
28  is to perform the abortion, the referring physician or a qualified
29  person has informed the woman, orally and in person, that:
30    [(1)  Medical assistance benefits may be available for prenatal
31  care, childbirth and neonatal care, and that more detailed infor-
32  mation on the availability of such assistance is contained in the
33  printed materials given to her and described in section 13 and
34  amendments thereto;
35    [(2)  the printed materials in section 13 and amendments
36  thereto describe the unborn child and list agencies which offer
37  alternatives to abortion;
38    [(3)  the father of the unborn child is liable to assist in the sup-
39  port of her child, even in instances where he has offered to pay for
40  the abortion except that in the case of rape this information may
41  be omitted; and
42    [(4)  the woman is free to withhold or withdraw her consent to
43  the abortion at any time before or during the abortion without
SB 286--Am. by HCW

 1  affecting her right to future care or treatment and without the loss
 2  of any state or federally-funded benefits to which she might oth-
 3  erwise be entitled.
 4    [(c)  The information in subsection (a) and subsection (b) of this
 5  section 12 is provided to the woman individually and in a private
 6  room to protect her privacy and maintain the confidentiality of her
 7  decision, to ensure that the information focuses on her individual
 8  circumstances and that she has an adequate opportunity to ask
 9  questions.
10    [(d)  At least eight hours before the abortion, the woman is
11  given a copy of the printed materials described in section 13 and
12  amendments thereto. If the woman is unable to read the materials,
13  they shall be read to her. If the woman asks questions concerning
14  any of the information or materials, answers shall be provided to
15  her in her own language.
16    [(e)  The woman certifies in writing on a form provided by the
17  department, prior to the abortion, that the information required
18  to be provided under subsections (a), (b) and (d) has been pro-
19  vided. All physicians who perform abortions shall report the total
20  number of certifications received monthly to the department. The
21  department shall make the number of certifications received avail-
22  able on an annual basis.
23    [(f)  Prior to the performance of the abortion, the physician who
24  is to perform the abortion or the physician's agent receives a copy
25  of the written certification prescribed by subsection (e) of this sec-
26  tion.
27    [(g)  The woman is not required to pay any amount for the abor-
28  tion procedure until the eight-hour waiting period has expired.
29    [New Sec. 13.  (a) The department shall cause to be published,
30  within 30 days after the effective date of this act, and shall update
31  on an annual basis, the following easily comprehensible printed
32  materials:
33    [(1)  Geographically indexed materials designed to inform the
34  woman of public and private agencies and services available to
35  assist a woman through pregnancy, upon childbirth and while her
36  child is dependent, including but not limited to, adoption agencies.
37  The materials shall include a comprehensive list of the agencies, a
38  description of the services they offer and the telephone numbers
39  and addresses of the agencies; and inform the woman about avail-
40  able medical assistance benefits for prenatal care, childbirth and
41  neonatal care and about the support obligations of the father of a
42  child who is born alive. The department shall ensure that the ma-
43  terials described in this section are comprehensive and do not di-
SB 286--Am. by HCW

 1  rectly or indirectly promote, exclude or discourage the use of any
 2  agency or service described in this section. The materials shall also
 3  contain a toll-free 24-hour a day telephone number which may be
 4  called to obtain, orally, such a list and description of agencies in
 5  the locality of the caller and of the services they offer. The mate-
 6  rials shall state that it is unlawful for any individual to coerce a
 7  woman to undergo an abortion, that any physician who performs
 8  an abortion upon a woman without her informed consent may be
 9  liable to her for damages in a civil action at law and that the law
10  permits adoptive parents to pay costs of prenatal care, childbirth
11  and neonatal care. The materials shall include the following state-
12  ment:
13  [``There are many public and private agencies willing and able to help you
14  to carry your child to term, and to assist you and your child after your child
15  is born, whether you choose to keep your child or to place her or him for
16  adoption. The State of Kansas strongly urges you to contact them before
17  making a final decision about abortion. The law requires that your physician
18  or the physician's agent give you the opportunity to call agencies like these
19  before you undergo an abortion.''
20    [(2)  Materials that inform the pregnant woman of the probable
21  anatomical and physiological characteristics of the unborn child at
22  two-week gestational increments from fertilization to full term,
23  including pictures or drawings representing the development of
24  unborn children at two-week gestational increments, and any rel-
25  evant information on the possibility of the unborn child's survival.
26  Any such pictures or drawings shall contain the dimensions of the
27  unborn child and shall be realistic. The materials shall be objec-
28  tive, nonjudgmental and designed to convey only accurate scien-
29  tific information about the unborn child at the various gestational
30  ages. The material shall also contain objective information describ-
31  ing the methods of abortion procedures commonly employed, the
32  medical risks commonly associated with each such procedure and
33  the medical risks associated with carrying a child to term.
34    [(3)  A certification form to be used by physicians or their
35  agents under subsection (e) of section 12 and amendments thereto,
36  which will list all the items of information which are to be given to
37  women by physicians or their agents under the woman's-right-to-
38  know act.
39    [(b)  The materials required under this section shall be printed
40  in a typeface large enough to be clearly legible. The materials shall
41  be made available in both English and Spanish language versions.
42    [(c)  The materials required under this section shall be available
43  at no cost from the department upon request and in appropriate
SB 286--Am. by HCW

 1  number to any person, facility or hospital.
 2    [New Sec. 14.  Where a medical emergency compels the per-
 3  formance of an abortion, the physician shall inform the woman,
 4  before the abortion if possible, of the medical indications sup-
 5  porting the physician's judgment that an abortion is necessary to
 6  avert her death or to avert substantial and irreversible impairment
 7  of a major bodily function.
 8    [New Sec. 15.  (a) Any person who intentionally, knowingly or
 9  recklessly violates the woman's-right-to-know act is guilty of a class
10  A person misdemeanor.
11    [(b)  No physician shall be guilty of violating the woman's-right-
12  to-know act if the physician can demonstrate, by a preponderance
13  of the evidence, that the physician reasonably believed that fur-
14  nishing the information would have resulted in a severely adverse
15  effect on the physical or mental health of the pregnant woman.
16    [New Sec. 16.  In addition to whatever remedies are available
17  under the common or statutory law of this state, failure to comply
18  with the requirements of the woman's-right-to-know act shall:
19    [(a)  Create a civil cause of action:
20    [(1)  If an intentional or negligent failure of a physician to com-
21  ply with the provisions of the woman's-right-to-know act is proven
22  by a preponderance of the evidence, the court shall award to the
23  aggrieved party a civil penalty in an amount of not less than $1,000
24  and not more than $250,000.
25    [(2)  If the aggrieved party prevails in whole or in part in any
26  action under the woman's-right-to-know act, the court shall award
27  to the aggrieved party reasonable attorney fees, expenses and
28  costs, including those on appeal.
29    [(3)  When requested, the court shall allow an aggrieved party
30  to proceed using solely initials or a pseudonym and may close any
31  proceedings in the case and enter other protective orders to pre-
32  serve the privacy of the aggrieved party.
33    [(b)  Provide a cause of action for recovery for the woman for
34  the death of her unborn child, whether or not the unborn child
35  was viable at the time the abortion was performed or was born
36  alive.
37    [New Sec. 17.  Any physician who complies with the provisions
38  of this act shall not be held civilly liable to a patient for failure to
39  obtain informed consent to the abortion.
40    [New Sec. 18.  The provisions of this act are declared to be
41  severable, and if any provision, word, phrase or clause of the act
42  or the application thereof to any person shall be held invalid, such
43  invalidity shall not affect the validity of the remaining portions of
SB 286--Am. by HCW

 1  the woman's-right-to-know act.
 2    [New Sec. 19.  (a) Nothing in the woman's-right-to-know act
 3  shall be construed as creating or recognizing a right to abortion.
 4    [(b)  It is not the intention of the woman's-right-to-know act to
 5  make lawful an abortion that is currently unlawful.
 6    [New Sec. 20.  The legislature, by concurrent resolution, may
 7  appoint one or more of its members, who sponsored or cospon-
 8  sored 1997 House Bill No. 2269 in such member's official capacity,
 9  to intervene as a matter of right in any case in which the consti-
10  tutionality of this law is challenged.
11    [Sec. 21.  K.S.A. 1996 Supp. 65-2836 is hereby amended to
12  read as follows: 65-2836. A licensee's license may be revoked, sus-
13  pended or limited, or the licensee may be publicly or privately
14  censured, or an application for a license or for reinstatement of a
15  license may be denied upon a finding of the existence of any of the
16  following grounds:
17    [(a)  The licensee has committed fraud or misrepresentation in
18  applying for or securing an original, renewal or reinstated license.
19    [(b)  The licensee has committed an act of unprofessional or
20  dishonorable conduct or professional incompetency.
21    [(c)  The licensee has been convicted of a felony or class A mis-
22  demeanor, whether or not related to the practice of the healing
23  arts.
24    [(d)  The licensee has used fraudulent or false advertisements.
25    [(e)  The licensee is addicted to or has distributed intoxicating
26  liquors or drugs for any other than lawful purposes.
27    [(f)  The licensee has willfully or repeatedly violated this act,
28  the pharmacy act of the state of Kansas or the uniform controlled
29  substances act, or any rules and regulations adopted pursuant
30  thereto, or any rules and regulations of the secretary of health and
31  environment which are relevant to the practice of the healing arts.
32    [(g)  The licensee has unlawfully invaded the field of practice
33  of any branch of the healing arts in which the licensee is not li-
34  censed to practice.
35    [(h)  The licensee has engaged in the practice of the healing
36  arts under a false or assumed name, or the impersonation of an-
37  other practitioner. The provisions of this subsection relating to an
38  assumed name shall not apply to licensees practicing under a pro-
39  fessional corporation or other legal entity duly authorized to pro-
40  vide such professional services in the state of Kansas.
41    [(i)  The licensee has the inability to practice the branch of the
42  healing arts for which the licensee is licensed with reasonable skill
43  and safety to patients by reason of illness, alcoholism, excessive
SB 286--Am. by HCW

 1  use of drugs, controlled substances, chemical or any other type of
 2  material or as a result of any mental or physical condition. In de-
 3  termining whether or not such inability exists, the board, upon
 4  reasonable suspicion of such inability, shall have authority to com-
 5  pel a licensee to submit to mental or physical examination or drug
 6  screen, or any combination thereof, by such persons as the board
 7  may designate. To determine whether reasonable suspicion of
 8  such inability exists, the investigative information shall be pre-
 9  sented to the board as a whole, to a review committee of profes-
10  sional peers of the licensee established pursuant to K.S.A. 65-
11  2840c and amendments thereto or to a committee consisting of the
12  officers of the board elected pursuant to K.S.A. 65-2818 and
13  amendments thereto and the executive director appointed pursu-
14  ant to K.S.A. 65-2878 and amendments thereto, and the determi-
15  nation shall be made by a majority vote of the entity which re-
16  viewed the investigative information. Information submitted to the
17  board as a whole or a review committee of peers or a committee
18  of the officers and executive director of the board and all reports,
19  findings and other records shall be confidential and not subject to
20  discovery by or release to any person or entity. The licensee shall
21  submit to the board a release of information authorizing the board
22  to obtain a report of such examination or drug screen, or both. A
23  person affected by this subsection shall be offered, at reasonable
24  intervals, an opportunity to demonstrate that such person can re-
25  sume the competent practice of the healing arts with reasonable
26  skill and safety to patients. For the purpose of this subsection,
27  every person licensed to practice the healing arts and who shall
28  accept the privilege to practice the healing arts in this state by so
29  practicing or by the making and filing of an annual renewal to
30  practice the healing arts in this state shall be deemed to have con-
31  sented to submit to a mental or physical examination or a drug
32  screen, or any combination thereof, when directed in writing by
33  the board and further to have waived all objections to the admis-
34  sibility of the testimony, drug screen or examination report of the
35  person conducting such examination or drug screen, or both, at
36  any proceeding or hearing before the board on the ground that
37  such testimony or examination or drug screen report constitutes a
38  privileged communication. In any proceeding by the board pur-
39  suant to the provisions of this subsection, the record of such board
40  proceedings involving the mental and physical examination or
41  drug screen, or any combination thereof, shall not be used in any
42  other administrative or judicial proceeding.
43    [(j)  The licensee has had a license to practice the healing arts
SB 286--Am. by HCW

 1  revoked, suspended or limited, has been censured or has had other
 2  disciplinary action taken, or an application for a license denied, by
 3  the proper licensing authority of another state, territory, District
 4  of Columbia, or other country, a certified copy of the record of the
 5  action of the other jurisdiction being conclusive evidence thereof.
 6    [(k)  The licensee has violated any lawful rule and regulation
 7  promulgated by the board or violated any lawful order or directive
 8  of the board previously entered by the board.
 9    [(l)  The licensee has failed to report or reveal the knowledge
10  required to be reported or revealed under K.S.A. 65-28,122 and
11  amendments thereto.
12    [(m)  The licensee, if licensed to practice medicine and surgery,
13  has failed to inform a patient suffering from any form of abnor-
14  mality of the breast tissue for which surgery is a recommended
15  form of treatment, of alternative methods of treatment specified
16  in the standardized summary supplied by the board. The stan-
17  dardized summary shall be given to each patient specified herein
18  as soon as practicable and medically indicated following diagnosis,
19  and this shall constitute compliance with the requirements of this
20  subsection. The board shall develop and distribute to persons li-
21  censed to practice medicine and surgery a standardized summary
22  of the alternative methods of treatment known to the board at the
23  time of distribution of the standardized summary, including sur-
24  gical, radiological or chemotherapeutic treatments or combina-
25  tions of treatments and the risks associated with each of these
26  methods. Nothing in this subsection shall be construed or operate
27  to empower or authorize the board to restrict in any manner the
28  right of a person licensed to practice medicine and surgery to rec-
29  ommend a method of treatment or to restrict in any manner a
30  patient's right to select a method of treatment. The standardized
31  summary shall not be construed as a recommendation by the board
32  of any method of treatment. The preceding sentence or words hav-
33  ing the same meaning shall be printed as a part of the standardized
34  summary. The provisions of this subsection shall not be effective
35  until the standardized written summary provided for in this sub-
36  section is developed and printed and made available by the board
37  to persons licensed by the board to practice medicine and surgery.
38    [(n)  The licensee has cheated on or attempted to subvert the
39  validity of the examination for a license.
40    [(o)  The licensee has been found to be mentally ill, disabled,
41  not guilty by reason of insanity, not guilty because the licensee
42  suffers from a mental disease or defect or incompetent to stand
43  trial by a court of competent jurisdiction.
SB 286--Am. by HCW

 1    [(p)  The licensee has prescribed, sold, administered, distrib-
 2  uted or given a controlled substance to any person for other than
 3  medically accepted or lawful purposes.
 4    [(q)  The licensee has violated a federal law or regulation re-
 5  lating to controlled substances.
 6    [(r)  The licensee has failed to furnish the board, or its investi-
 7  gators or representatives, any information legally requested by the
 8  board.
 9    [(s)  Sanctions or disciplinary actions have been taken against
10  the licensee by a peer review committee, health care facility, a
11  governmental agency or department or a professional association
12  or society for acts or conduct similar to acts or conduct which
13  would constitute grounds for disciplinary action under this section.
14    [(t)  The licensee has failed to report to the board any adverse
15  action taken against the licensee by another state or licensing ju-
16  risdiction, a peer review body, a health care facility, a professional
17  association or society, a governmental agency, by a law enforce-
18  ment agency or a court for acts or conduct similar to acts or con-
19  duct which would constitute grounds for disciplinary action under
20  this section.
21    [(u)  The licensee has surrendered a license or authorization to
22  practice the healing arts in another state or jurisdiction, has sur-
23  rendered the authority to utilize controlled substances issued by
24  any state or federal agency, has agreed to a limitation to or restric-
25  tion of privileges at any medical care facility or has surrendered
26  the licensee's membership on any professional staff or in any pro-
27  fessional association or society while under investigation for acts
28  or conduct similar to acts or conduct which would constitute
29  grounds for disciplinary action under this section.
30    [(v)  The licensee has failed to report to the board surrender of
31  the licensee's license or authorization to practice the healing arts
32  in another state or jurisdiction or surrender of the licensee's mem-
33  bership on any professional staff or in any professional association
34  or society while under investigation for acts or conduct similar to
35  acts or conduct which would constitute grounds for disciplinary
36  action under this section.
37    [(w)  The licensee has an adverse judgment, award or settle-
38  ment against the licensee resulting from a medical liability claim
39  related to acts or conduct similar to acts or conduct which would
40  constitute grounds for disciplinary action under this section.
41    [(x)  The licensee has failed to report to the board any adverse
42  judgment, settlement or award against the licensee resulting from
43  a medical malpractice liability claim related to acts or conduct sim-
SB 286--Am. by HCW

 1  ilar to acts or conduct which would constitute grounds for disci-
 2  plinary action under this section.
 3    [(y)  The licensee has failed to maintain a policy of professional
 4  liability insurance as required by K.S.A. 40-3402 or 40-3403a and
 5  amendments thereto.
 6    [(z)  The licensee has failed to pay the annual premium sur-
 7  charge as required by K.S.A. 40-3404 and amendments thereto.
 8    [(aa)  The licensee has knowingly submitted any misleading, de-
 9  ceptive, untrue or fraudulent representation on a claim form, bill
10  or statement.
11    [(bb)  The licensee as the responsible physician for a physician's
12  assistant has failed to adequately direct and supervise the physi-
13  cian's assistant in accordance with K.S.A. 65-2896 to 65-2897a, in-
14  clusive, and amendments thereto, or rules and regulations adopted
15  under such statutes.
16    [(cc)  The licensee has failed to comply with the woman's-right-to-
17  know act.
18    [Sec. 22.  K.S.A. 65-6701 and 65-6706 and K.S.A. 1996 Supp.
19  65-2836 are hereby repealed.]
20    Sec. 8 9 [23].  This act shall take effect and be in force from and after
21  its publication in the statute book.