Text of KS HB 2791 (2024)

Session of 2024 HOUSE BILL No. 2791 By Committee on Health and Human Services Requested by Representative Bryce 2-9 AN ACT concerning children and minors; relating to healthcare of minors; enacting the forbidding abusive child transitions act; prohibiting healthcare professionals from treating a child whose gender identity is inconsistent with the child's sex; authorizing a civil cause of action against healthcare professionals for providing such treatments; restricting use of state funds to promote gender transitioning; prohibiting professional liability insurance from covering damages for healthcare providers that provide gender transition treatment to children; authorizing professional discipline against a physician who performs such treatments; amending K.S.A. 65-2837 and K.S.A. 2023 Supp. 65-1120 and repealing the existing sections. Be it enacted by the Legislature of the State of Kansas: New Section 1. (a) The provisions of sections 1 through 7, and amendments thereto, shall be known and may be cited as the forbidding abusive child transitions act. (b) As used in this act: (1) "Child" means an individual less than 18 years of age. (2) "Female" means an individual who is a member of the female sex. (3) "Gender" means the psychological, behavioral, social and cultural aspects of being male or female. (4) "Gender dysphoria" is the diagnosis of gender dysphoria in the fifth edition of the diagnostic and statistical manual of mental disorders. (5) "Healthcare provider" means an individual who is licensed, certified or otherwise authorized by the laws of this state to administer healthcare services in the ordinary course of the practice of such individual's profession. (6) "Male" means an individual who is a member of the male sex. (7) "Perceived sex" is an individual's internal sense of such individual's sex. (8) "Perceived gender" is an individual's internal sense of such individual's gender. (9) "Sex" means the biological indication of male and female in the context of reproductive potential or capacity, including sex chromosomes, naturally occurring sex hormones, gonads and nonambiguous internal and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 HB 2791 2 external genitalia present at birth, without regard to an individual's psychological, chosen or subjective experience of gender. (10) "Social transitioning" means acts other than medical or surgical interventions that are undertaken for the purpose of presenting as a member of the opposite sex, including the changing of an individual's preferred pronouns or manner of dress. New Sec. 2. (a) A recipient of state funds shall not use such funds to provide or subsidize medication or surgery as a treatment for a child's perception of gender or sex that is inconsistent with such child's sex. (b) An indiviudal or entity that receives state funds to pay for or subsidize the treatment of children for psychological conditions, including gender dysphoria, shall not promote or advocate medication or surgery as a treatment for a child whose perceived gender or perceived sex is inconsistent with such child's sex. (c) The Kansas program of medical assistance and its managed care organizations shall not reimburse or provide coverage for medication or surgery as a treatment for a child whose perceived gender or perceived sex is inconsistent with such child's sex. (d) Except to the extent required by the first amendment to the United States constitution, a state property, facility or building shall not be used to promote or advocate the use of social transitioning, medication or surgery as a treatment for a child whose perceived gender or perceived sex is inconsistent with such child's sex. (e) A state property, facility or building shall not be used to prescribe, administer or dispense medication or perform surgery as a treatment for a child whose perceived gender or perceived sex is inconsistent with such child's sex. (f) A state employee whose official duties include the care of children shall not, while engaged in those official duties, provide or promote the use of social transitioning, medication, or surgery as a treatment for a child whose perceived gender or perceived sex is inconsistent with such child's sex. New Sec. 3. (a) A healthcare professional shall obtain informed consent from a child's parent or guardian before discussing with a child the possibility of social transitioning, medication or surgery as a treatment for a child whose perceived gender or perceived sex is inconsistent with such child's sex. (b) For purposes of this act, informed consent requires notice: (1) That social transitioning, medication and surgery may have an iatrogenic effect such that, beginning with one treatment, the discordance between the child's perception and such child's sex may increase, requiring even more treatment; (2) regarding puberty blockers and that such medications: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 3 (A) have not been approved by the federal food and drug administration as a treatment for gender dysphoria; (B) have been used to chemically castrate sex offenders; (C) have known harms, including diminished bone density and infertility; (D) may have permanent negative effects on adult sexual function; (E) have not been studied to determine the long-term risks to children who have persistent exposure to puberty blockers; and (F) have unknown effects on brain development and cognition; (3) regarding cross-sex hormones and that the use of such medications is associated with: (A) In males, the risk of thromboembolic disease including blood clots, cholelithiasis including gallstones, coronary artery disease including heart attacks, macroprolactinoma, which is a tumor of the pituitary gland, cerebrovascular disease including strokes, hypertriglyceridemia, which is an elevated level of triglycerides in the blood, breast cancer and irreversible infertility; and (B) in females, the risk of erythrocytosis, which is an increase in red blood cells, severe liver dysfunction, coronary artery disease including heart attacks, hypertension and increased risk of breast and uterine cancers; and (4) that for surgical procedures, the risks, complications and long- term concerns associated with these types of procedures are almost entirely unknown because there are no long-term studies on either the effectiveness or safety of such procedures. (c) If a healthcare professional fails to obtain informed consent in accordance with this section before knowingly discussing with a child the possibility of social transitioning, medication or surgery as a treatment for a child whose perceived gender or perceived sex is inconsistent with such child's sex: (1) The healthcare professional has engaged in unprofessional conduct and is subject to discipline by the appropriate licensing entity or disciplinary review board with competent jurisdiction in this state. New Sec. 4. (a) Except as provided in subsection (c), a healthcare provider shall not knowingly provide the following to a female child whose perceived gender or sex is not female as treatment for distress arising from such female child's perception that such child's gender or sex is not female: (1) Surgical procedures, including vaginectomy, hysterectomy, oophorectomy, ovariectomy, reconstruction of the urethra, metoidioplasty phalloplasty, scrotoplasty, implantation of erection or testicular protheses, subcutaneous mastectomy, voice surgery, liposuction, lipofilling or pectoral implants; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 4 (2) supraphysiologic doses of testosterone or other androgens; or (3) puberty blockers such as GnRH agonists or other synthetic drugs that suppress the production of estrogen and progesterone to delay or suppress pubertal development in female children. (b) Except as provided in subsection (b), a healthcare provider shall not knowingly provide the following to a male child whose perceived gender or sex is not male as treatment for distress arising from such male child's perception that such child's gender or sex is not male: (1) Surgical procedures, including a penectomy, orchiectomy, vaginoplasty, clitoroplasty, vulvoplasty, augmentation mammoplasty, facial feminization surgery, liposuction, lipofilling, voice surgery, thyroid cartilage reduction or gluteal augmentation; (2) supraphysiologic doses of estrogen; or (3) puberty blockers such as GnRH agonists or other synthetic drugs that suppress the production of testosterone or delay or suppress pubertal development in male children. (c) The treatments prohibited by subsections (a) and (b) shall not apply to treatment provided for other purposes, including: (1) Treatment for individuals born with a medically verifiable disorder of sex development, including: (A) An individual born with external biological sex characteristics that are irresolvably ambiguous, including an individual born with 46 XX chromosomes with virilization, 46 XY chromosomes with under virilization or having both ovarian and testicular tissue; or (B) an individual whom a physician has otherwise diagnosed with a disorder of sexual development that the physician has determined through genetic or biochemical testing that such individual does not have normal sex chromosome structure, sex steroid hormone production or sex steroid hormone action for a male or female; and (2) treatment of any infection, injury, disease or disorder that has been caused or exacerbated by the performance of a procedure listed in subsections (a) or (b). New Sec. 5. (a) If a healthcare professional violates the provisions of section 3 or 4, and amendments thereto: (1) The healthcare professional has engaged in unprofessional conduct and is subject to discipline by the appropriate licensing entity or disciplinary review board with competent jurisdiction in this state. (b) A healthcare professional who provides treatment to a child in violation of section 4(a) or (b), and amendments thereto, shall be held strictly liable to such child if the treatment or effects of such treatment results in any physical, psychological, emotional or physiological harms to such child in the next 30 years. (c) The parents of a child who has experienced violation of section 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 5 or 4, and amendments thereto, shall have a private cause of action against a healthcare provider for damages and equitable relief as the court may determine is justified. A prevailing party may recover the costs of the suit and reasonable attorney fees. (d) (1) An individual who was provided treatment as a child in violation of section 4(a) or (b), and amendments thereto, shall have a private cause of action against the healthcare provider who provided such treatment for actual damages, punitive damages, injunctive relief, the cost of the suit and reasonable attorney fees. (2) An action against a healthcare provider pursuant to this subsection shall be filed within 30 years from the date the individual turns 18 years of age. New Sec. 6. A professional liability insurance policy issued to a healthcare provider shall not include coverage for damages assessed against the healthcare provider who provides treatment to a child in violation of section 3 or 4(a) or (b), and amendments thereto. New Sec. 7. If any provision or clause of this act or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable. Sec. 8. K.S.A. 2023 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 or authorization to practice nursing as a registered professional nurse, as a licensed practical nurse, as an advanced practice registered nurse or as a registered nurse anesthetist that is issued by the board or applied for under this act, or may require the licensee to attend a specific number of hours of continuing education in addition to any hours the licensee may already be required to attend or may publicly or privately censure a licensee or holder of a temporary permit or authorization, if the applicant, licensee or holder of a temporary permit 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 misdemeanor 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, and amendments thereto, no license or authorization to practice nursing as a licensed professional nurse, as a licensed practical nurse, as an advanced practice registered nurse 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, prior to their repeal, or article 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 6 54 of chapter 21 of the Kansas Statutes Annotated, or K.S.A. 21-6104, 21- 6325, 21-6326 or 21-6418, and amendments thereto; (3) has been convicted or found guilty or has entered into an agreed disposition of a misdemeanor offense related to the practice of nursing as determined on a case-by-case basis; (4) to have committed an act of professional incompetency as defined in subsection (e); (5) to be unable to practice with skill and safety due to current abuse of drugs or alcohol; (6) 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 conservator, or both, and who has not been restored to capacity under that act; (7) to be guilty of unprofessional conduct as defined by rules and regulations of the board; (8) 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; (9) 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, limitation, 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 (9); or (10) to have assisted suicide in violation of K.S.A. 21-3406, prior to its repeal, or K.S.A. 21-5407, 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, prior to its repeal, or K.S.A. 21- 5407, and amendments thereto.; (B) a copy of the record of a judgment of contempt of court for violating an injunction issued under K.S.A. 2023 Supp. 60-4404, and amendments thereto.; and (C) a copy of the record of a judgment assessing damages under K.S.A. 2023 Supp. 60-4405, and amendments thereto; or (11) violating the forbidding abusive child transitions act. (b) Proceedings. Upon filing of a sworn complaint with the board charging a person with having been guilty of any of the unlawful practices 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 7 specified in subsection (a), two or more members of the board shall investigate the charges, or the board may designate and authorize an employee or employees of the board to conduct an investigation. After investigation, the board may institute charges. If an investigation, in the opinion of the board, reveals reasonable grounds for believing the applicant 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 proceedings 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- 5903, 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 if the attorney general certifies cannot be collected from the applicant 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, "professional incompetency" means: (1) One or more instances involving failure to adhere to the applicable 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 that demonstrates a manifest 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 information 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. 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 8 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 of 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 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 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) Failure 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) 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 disease or other condition of the body or mind. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 9 (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 of 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 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, limited liability companies or associations. (20) Failure 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 failure 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) Failure 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 standard protocols, without keeping detailed legible records or without having periodic analysis of the study and results reviewed by a committee or peers. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 10 (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) Violating the forbidding abusive child transitions act. (33) 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)(34) Engaging in conduct that violates patient trust and exploits the licensee-patient relationship for personal gain. (34)(35) Obstructing a board investigation including, but not limited to, engaging in one or more of the following acts: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 HB 2791 11 (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. (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. 10. K.S.A. 65-2837 and K.S.A. 2023 Supp. 65-1120 are hereby repealed. Sec. 11. This act shall take effect and be in force from and after its publication in the statute book. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35