Session of 2023
HOUSE BILL No. 2276
By Committee on Health and Human Services
2-2
AN ACT concerning health and healthcare; relating to the Kansas healing
arts act; licensees; unprofessional conduct; prohibiting pelvic, rectal or
prostate exams on unconscious patients without informed consent;
amending K.S.A. 65-2837 and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) No person licensed under this act shall knowingly
perform or supervise the performance of a pelvic, rectal or prostate
examination on an anesthetized or unconscious person unless:
(1) The patient or the patient's authorized representative gives
informed consent for the examination;
(2) the examination is within the standard of care for the patient;
(3) the patient is unconscious and the examination is necessary for
diagnostic or treatment purposes;
(4) a medical emergency exists, obtaining the patient's consent is
impractical and the examination is necessary for diagnostic or treatment
purposes; or
(5) a court of competent jurisdiction finds that there is a compelling
need for such examination and orders the performance of the examination
for the collection of evidence.
(b) The licensee shall notify the patient as soon after the examination
as practicable that an examination has been performed pursuant to
subsection (a)(3), (a)(4) or (a)(5).
(c) Violation of this section shall constitute unprofessional conduct as
defined in K.S.A. 65-2837, and amendments thereto.
(d) As used in this section, "informed consent" means the signing of a
consent form by a patient or person authorized to make healthcare
decisions on behalf of such patient that:
(1) Is written in plain language;
(2) is dated;
(3) includes a description of the procedure to be performed; and
(4) states if there will be a medical student or medical resident who
will perform or be present at the examination.
(d) This section shall be a part of and supplemental to the Kansas
healing arts act.
Sec. 2. K.S.A. 65-2837 is hereby amended to read as follows: 65-
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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
applicable standard of care to a degree that constitutes gross negligence, as
determined by the board.
(2) Repeated instances involving failure to adhere to the applicable
standard of care to a degree that constitutes ordinary negligence, as
determined by the board.
(3) A pattern of practice or other behavior that demonstrates a
manifest incapacity or incompetence to practice the healing arts.
(b) "Unprofessional conduct" means:
(1) Solicitation ofSoliciting professional patronage through the use of
fraudulent 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,
condition 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 representatives.
(4) The use of Using 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 ofWillfully betraying confidential information.
(7) Advertising professional superiority or the performance of
professional 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 that is designed to exclude or that 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) FailureFailing to effectuate the declaration of a qualified patient
as provided in K.S.A. 65-28,107(a), and amendments thereto.
(11) Prescribing, ordering, dispensing, administering, selling,
supplying or giving any amphetamines or sympathomimetic amines,
except as authorized by K.S.A. 65-2837a, and amendments thereto.
(12) Engaging in conduct likely to deceive, defraud or harm the
public.
(13) Making a false or misleading statement regarding the licensee's
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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 disease
or other condition of the body or mind.
(14) Aiding or abetting the practice of the healing arts by an
unlicensed, incompetent or impaired person.
(15) Allowing another person or organization to use the licensee's
license to practice the healing arts.
(16) Commission ofCommitting any act of sexual abuse, misconduct
or other improper sexual contact that exploits the licensee-patient
relationship with a patient or a person responsible for health care
healthcare decisions concerning such patient.
(17) The use ofUsing 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, limited liability companies or
associations.
(20) FailureFailing to transfer patient records to another licensee
when requested to do so by the subject patient or by such patient's legally
designated representative.
(21) Performing unnecessary tests, examinations or services that have
no legitimate medical purpose.
(22) Charging an excessive fee for services rendered.
(23) Prescribing, dispensing, administering or distributing a
prescription drug or substance, including a controlled substance, in an
improper or inappropriate manner, or for other than a valid medical
purpose, or not in the course of the licensee's professional practice.
(24) Repeated failureFailing repeatedly to practice healing arts with
that level of care, skill and treatment that is recognized by a reasonably
prudent similar practitioner as being acceptable under similar conditions
and circumstances.
(25) FailureFailing to keep written medical records that accurately
describe 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
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standard 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 anabolic
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 hormone by a
person who is in good health is not a valid medical purpose.
(29) Referring a patient to a health care healthcare entity for services
if the licensee has a significant investment interest in the health care
healthcare entity, unless the licensee informs the patient in writing of such
significant investment interest and that the patient may obtain such
services elsewhere.
(30) Failing to properly supervise, direct or delegate acts that
constitute the healing arts to persons who perform professional services
pursuant to such licensee's direction, supervision, order, referral,
delegation or practice protocols.
(31) Violating K.S.A. 65-6703, and amendments thereto.
(32) Charging, billing or otherwise soliciting payment from any
patient, patient's representative or insurer for anatomic pathology services,
if such services are not personally rendered by the licensee or under such
licensee's direct supervision. As used in this subsection, "anatomic
pathology services" means the gross or microscopic examination of
histologic processing of human organ tissue or the examination of human
cells from fluids, aspirates, washings, brushings or smears, including blood
banking services, and subcellular or molecular pathology services,
performed by or under the supervision of a person licensed to practice
medicine and surgery or a clinical laboratory. Nothing in this subsection
shall be construed to prohibit billing for anatomic pathology services by:
(A) A hospital;
(B) a clinical laboratory when samples are transferred between
clinical laboratories for the provision of anatomic pathology services; or
(C) a physician providing services to a patient pursuant to a medical
retainer agreement in compliance with K.S.A. 65-4978, and amendments
thereto, when the bill to the patient for such services:
(i) Identifies the laboratory or physician that performed the services;
(ii) discloses in writing to the patient the actual amount charged by
the physician or laboratory that performed the service; and
(iii) is consistent with rules and regulations adopted by the board for
appropriate billing standards applicable to such services when furnished
under these agreements.
(33) Engaging in conduct that violates patient trust and exploits the
licensee-patient relationship for personal gain.
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(34) Obstructing a board investigation including, but not limited to,
engaging in one or more of the following acts:
(A) Falsifying or concealing a material fact;
(B) knowingly making or causing to be made any false or misleading
statement or writing; or
(C) other acts or conduct likely to deceive or defraud the board.
(35) Violating section 1, and amendments thereto.
(c) "False advertisement" means any advertisement that 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, device,
sound or any combination thereof, but also the extent to which the
advertisement fails to reveal facts material in the light of such
representations made.
(d) "Advertisement" means all representations disseminated in any
manner or by any means for the purpose of inducing, or that 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, means all persons issued a license, permit or special
permit pursuant to article 28 of chapter 65 of the Kansas Statutes
Annotated, and amendments thereto.
(f) "License" for purposes of this section and K.S.A. 65-2836, and
amendments thereto, means any license, permit or special permit granted
under article 28 of chapter 65 of the Kansas Statutes Annotated, and
amendments thereto.
(g) "Health careHealthcare entity" means any corporation, firm,
partnership or other business entity that provides services for diagnosis or
treatment of human health conditions and that is owned separately from a
referring 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 that owns or
leases the health care healthcare entity, or ownership of at least 10% of the
shares of stock of the corporation that owns or leases the health care
healthcare entity.
Sec. 3. K.S.A. 65-2837 is hereby repealed.
Sec. 4. This act shall take effect and be in force from and after its
publication in the statute book.
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