News – Page 29

Kansas State High School Activities Association and Public School Sports and Activity Participation

This memorandum details the role of the Kansas State High School Activities Association (KSHSAA) in regulating student participation in middle school and high school sports and other interscholastic activities. Topics addressed include recent legislation and the ability of both nonpublic school students and public virtual school students to participate in KSHSAA-regulated sports and activities.

Kansas Statute

KSA 72-7114 et seq. establishes that the authority and responsibility to regulate, supervise, promote, and develop activities — such as athletics, music, forensics, dramatics, and any other interschool extracurricular activities — by students from grades 7 through 12 lies with an association composed of a majority of the high schools within the state. Statute further outlines various requirements of the organization, such as making an annual report to the State Board of Education and outlining the size and composition of the organization’s governing board. Within the State of Kansas, the KSHSAA fulfills the role of this organization.

Kansas State High School Activities Association

Formed in 1937 and incorporated in 1956, KSHSAA is a private, nonprofit association governed by a 70-member board of directors composed of elected officials, school administrators, educators, and coaches. The board of directors is responsible for making rules and bylaw changes, while a nine-member executive board is elected from within the board of directors to manage policy, conduct hearings, and manage the affairs of the organization.

KSHSAA is composed of 350 senior high schools and 408 middle or junior high schools. While member schools can be either public or private, they all must be accredited by the Kansas State Board of Education.

Student Eligibility

Part of KSHSAA’s regulation of interschool extracurricular activities is to determine eligibility requirements for participation in said activities. In order for a student to be eligible to participate, they must meet the following criteria:

Have passed a minimum of five new subjects the previous semester;
Be enrolled in and attending a minimum of five new subjects during the present semester; and
Be a bona fide student in good standing per KSHSAA guidelines. To be considered a bona fide student in good standing, the student must meet the following requirements:
Be attending the school in which they wish to participate;
Not be under a penalty of suspension;
Have character and conduct that does not discredit the school or student;
Be in good standing;
Not use anabolic steroids; and
Not be competing under an assumed name.

Nontraditional Students

Nonpublic School Students

The passage of House Sub. for SB 113 by the 2023 Legislature allows for any nonpublic school student to participate in any activity offered by a public school district that is regulated, supervised, promoted, and developed by the KSHSAA, as long as the student meets the following criteria:

Be a resident of the school district;
Be enrolled and attending a nonpublic elementary or secondary school;
Comply with the requirements of KSA 72-6262 and amendments thereto (health-related requirements); and
Pay any fees required by the school district for participation in such activity.

The local board of education could also require a nonpublic school student who participates in an activity to enroll or complete a particular course as a condition of participation, if such requirement is imposed upon all other students who participate in such activity.

As of August 1, 2023, KSHSAA has put forth guidance and other supporting documents to assist school districts with requests by nonpublic school students to participate in KSHSAA-regulated sports and activities. KSHSAA has largely maintained the same eligibility requirements regarding course enrollment, grades, and good standing of a student. KSHSAA relies upon the verification of the nonpublic student’s school administrators to verify the student meets said eligibility requirements.

Virtual School Students

Public virtual school students are not included in the provisions of House Sub. for SB 113 because they are public school students and therefore are governed by KSHSAA policy. Current KSHSAA policy allows students attending a virtual school accredited by the Kansas State Department of Education (KSDE) to establish eligibility at the KSHSAA-member public school in which they reside. In order to be eligible, the student must meet the following criteria:

Be attending a KSDE-accredited virtual school;
Be currently enrolled in and attending a minimum of one class at the KSHSAA-member public school;
Pass a minimum of five units of credit the prior semester; and
Be enrolled in a minimum of five units of credit not previously passed for the semester.

Additionally, the local school district must approve a dual-enrollment agreement with the virtual school.

by Matthew Willis
Senior Research Analyst
785-296-4443

Administration of Water in Kansas

This memorandum describes the administration of water in Kansas by state agencies, including which state agencies have the primary duty regarding administration of water and other state agencies that have smaller roles regarding the state’s water supply.

Administration of Water in Kansas

The administration of water in Kansas – generally regarding its allocation, cleanliness, and availability – is, for the most part, divided among three state agencies:

Division of Water Resources (DWR), Kansas Department of Agriculture (KDA);
Bureau of Water, Kansas Department of Health and Environment (KDHE); and
Kansas Water Office.

The following state agencies and entities have limited roles in the administration of water:

Adjutant General’s Office;
Department of Commerce;
Division of Conservation, KDA;
Bureau of Environmental Field Services, KDHE;
Bureau of Environmental Remediation, KDHE;
Bureau of Waste Management, KDHE;
Kansas Biological Survey;
Kansas Corporation Commission;
Kansas Department of Wildlife and Parks;
Kansas Forest Service;
Kansas Geological Survey; and
Kansas State Research and Extension.

State Agency Roles

Division of Water Resources, Kansas Department of Agriculture

The DWR in the KDA is under the direction of the Chief Engineer, who administers 30 laws and responsibilities, including the Kansas Water Appropriation Act (Act). The Chief Engineer also governs how water is allocated and used; regulates the construction of dams, levees, and other changes to streams; oversees the State’s four interstate river compacts; and coordinates the National Flood Insurance Program in Kansas.

One of the most important programs the DWR administers is the Water Appropriation program, which is authorized by the Act and directed by rules and regulations regarding the granting and perfecting of water rights.

This program also coordinates with groundwater management districts, irrigation districts, rural water districts, public wholesale water supply districts, and water assurance districts; administers the Water Transfer Act and Water Banking Act; administers intensive groundwater use control areas (IGUCAs), local enhanced management areas (LEMAs), and water conservation districts; and performs other functions related to water rights and use.

In 2023, the Kansas Water Appropriation Act turned 78 years old. It continues to be amended by the Legislature nearly every legislative session as needs, technologies, and available water continue to change over time.

Bureau of Water, Kansas Department of Health and Environment

Much of the authority for measuring and maintaining water quality rests with the Bureau of Water in KDHE. Although most of the State’s water quality programs have their home in KDHE, some do not. For example, when oil and gas activities have been the source of water pollution, the Kansas Corporation Commission has authority for remediation.

Examples of water quality programs administered by KDHE include:

Clean drinking water standards;
Harmful algal blooms management and surface water quality standards;
Livestock Waste Management program;
Municipal, commercial, and industrial wastewater lagoon regulations;
Watershed management; and
Water Well program.

Kansas Water Office

The Kansas Water Office was established as the water planning, policy, coordination, and marketing agency for the State. The primary function of the agency is the development and implementation of the Kansas Water Plan that is determined in coordination with the Kansas Water Authority. The Kansas Water Authority also receives input from 14 regional advisory committees that represent the 14 watersheds in the state.

The Kansas Water Office also oversees various water projects that occur all over the state for water conservation, water management, technology and crop varieties, and additional sources of water supply. In addition, the agency monitors the storage capacity of the federal reservoirs in Kansas, climate and drought conditions, and outlook.

by Meredith Fry
Senior Research Analyst
785-296-7882

Kansas Public Water Supply Loan Fund

This memorandum describes the Kansas Public Water Supply Loan Fund (PWSLF), its history and purpose, how the fund works, administration of the fund, priority projects, and financial status of the PWSLF.

History

The PWSLF was established by the 1994 Legislature through SB 611. Statutory authority for the PWSLF may be found at KSA 65-163d through 65-163u. The PWSLF is a revolving loan fund program that provides financial assistance in the form of loans to Kansas municipalities at below market interest rates for the construction of public water supply system infrastructure. Expenditures from the PWSLF are for projects that comply with the federal Safe Drinking Water Act.

In 1996, the Safe Drinking Water Act (SDWA), by U.S. Congressional action, established the Drinking Water State Revolving Fund (DWSRF) to assist public water supply systems in financing the costs of infrastructure needed to achieve or maintain compliance with SDWA requirements and to protect public health. This measure authorized the U.S. Environmental Protection Agency (EPA) to award capitalization grants to the states.

How the Kansas Public Water Supply Loan Fund Works

The PWSLF is made possible by receipt of capitalization grants from the EPA. Kansas must provide 20 percent matching funds to receive the capitalization grant. The PWSLF provides matching funds by issuing state match revenue bonds and by a one-time $5.0 million allocation in accordance with SB 487 passed by the 1998 Legislature. The state-matched bonds are repaid with the interest portion of the municipalities’ loan repayments and other interest earnings of the PWSLF.

The PWSLF is operated as a reserve account leverage program. In a reserve account leverage program, the capitalization grant is deposited in a reserve account and pledged as security for repayment of state-issued revenue bonds. Proceeds from the revenue bonds are loaned to the municipalities. The reserve account is invested and the interest earnings are combined with the loan repayments from municipalities to buy down the loan’s interest rate. Municipalities are charged interest rates determined by the repayment period:

For loans with a repayment period of up to 20 years, the interest rate is equal to 60 percent of the previous three months’ average of the Bond Buyers 20 Bond Index;
For loans with a repayment period between 20 and 30 years, the rate equals 70 percent of the previous three months’ average of the Bond Buyers 20 Bond Index; and
For loans with a repayment period between 30 and 40 years, the rate equals 80 percent of the previous three months’ average of the Bond Buyers 20 Bond Index.

Funding to implement and administer the PWSLF is available from the federal capitalization grant and from a service fee built into the loan interest rate. No funding from the State General Fund is needed for the program. The PWSLF resides in the State Treasury and moneys are credited to the Fund from the following sources:

Funding received from the federal government;
Funding appropriated by the Legislature;
Proceeds derived from the sale of bonds issued in accordance to the PWSLF statutes;
Funding received from repayments of loans as well as the interest paid;
Interest attributable to investment of moneys in the PWSLF; and
Funding received from any public or private entity for the purposes of the PWSLF.

Administration of the PWSLF

The Secretary of Health and Environment (Secretary) is charged with administering the PWSLF and developing a priority system for projects. According to statute, those permitted to have access to the PWSLF are:

Municipalities (political or taxing subdivisions that are authorized by law to construct, operate, and maintain a public water supply system);
Water districts; and
Two or more political or taxing subdivisions that jointly construct, operate, or maintain a public water supply system.

The law requires the Secretary to exclude from the priority list any municipality project that has not adopted and implemented conservation plans and practices. Also excluded are any projects related to the diversion or transportation of water acquired through a water transfer.

Specific authority to issue and sell revenue bonds or to enter into an agreement with the Kansas Development Finance Authority (KDFA) to issue revenue bonds for the purpose of making loans for public water supply development and improvement is granted to the Secretary.

The PWSLF is audited annually by a certified public accounting firm in accordance with auditing standards generally accepted in the country and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General. The most recent report shows an unqualified opinion.

Priority System for Projects

The Kansas Department of Health and Environment (KDHE) has developed a Project Priority System to rank all projects submitted for funding. The system establishes priority rating criteria that are used to numerically rank projects for potential funding assistance from the PWSLF. All projects are placed on a yearly Project Priority List (PPL) which are listed in order of project ranking. A funding line is set to accommodate the highest ranked project in correlation to the available funds. Beginning in 2022, KDHE began generating three PPLs due to changes in federal law. The three PPLs include Lead Service Line (LSL), which only lists lead service line replacement and inventory projects; Emerging Contaminant (EC), which only lists projects that address emerging contaminants; and Base Program (BP), which lists all other eligible projects.

Projects will be funded according to ranking on the 2024 PPLs and the readiness of the project to proceed. The 2024 Intended Use Plan uses the PPLs to inform decisions regarding which projects will be financed through the PWSLF and estimates anticipated available funds for the program. The Infrastructure Investment and Jobs Act of 2021added three additional capitalization grants (General Supplemental, Lead Service Line Replacements, and Emerging Contaminants) available for federal fiscal years 2022 through 2026. KDHE applied for two of these grants (General Supplemental and Emerging Contaminants) on May 10, 2023. KDHE will apply for the third grant (Lead Service Line Replacements) once a sufficient amount of project costs are in the LSL PPL.

The SDWA requires priority to be given to projects that address the most serious risks to human health, that are necessary to assure compliance with the requirements of the SDWA, and to assist public water supplies most in need, on a per household basis according to state affordability criteria.

In addition, state law requires KDHE to make available at least 20 percent of the total money in the PWSLF to public water supply systems serving less than 5,000 people. The SDWA requires KDHE to make available at least 15 percent of the total money in the PWSLF to public water supply systems serving less than 10,000 people. Systems that serve less than 10,000 represent 32 percent of the estimated available loan funds in the 2024 PPL.

KDHE considers several factors, in addition to readiness, in determining the priority of each project. The factors include:

Water quality issues, including compliance with maximum contaminant levels, treatment techniques, aesthetic factors, and unregulated contaminants;
Consolidation of systems;
Improvements to reliability;
State median and applicant household income levels;
Special categories which include expansions and improvements to potential future quality standards; and
Other considerations that KDHE may include when the above factors do not cover the previously outlined criteria but are worthy of consideration.

2024 Priority List

The 2024 PPLs list all eligible and current projects that have been submitted for loan fund consideration. The funding lines for the PPLs are set to an amount closest to the available funds, which KDHE has estimated to be approximately $440.0 million in aggregate. The BC PPL will have a funding line that includes all projects with a priority rank of 12 and above. The EC PPL will have a funding line that includes all projects with a priority rank of 23 and above. The LCL PPL will not have a funding line because KDHE can fund all projects on the LCL PPL.

Financial Status of the PWSLF

In November 2010, the KDFA created a Master Financing Indenture (MFI) that allows the PWSLF and the Kansas Water Pollution Control Revolving Fund (KDHE’s Clean Water Act State Revolving Loan Fund) to access the municipal bond market as a single entity. According to KDHE, this indenture greatly enhances the PWSLF’s ability to provide loans. The MFI issued bonds in November 2010 and May 2011, and both issues were rated AAA. The Master Bond Resolution, which preceded the MFI, will continue to exist as long as bonds issued under it are still outstanding, but no new bonds can be issued from it.

As of May 31, 2023, KDHE had 401 loan agreements or offers in place for a total of $1.2 billion. KDHE will direct loan the non-set-aside portion of any remaining and future capitalization grants rather than use it to leverage bonds through a reserve leveraging structure. For the 2024 PPLs, KDHE anticipates $440.0 million of available PWSLF that can be committed to loans. This represents available cap grant funds, recycled funds, and bond proceeds in excess of existing loan commitments. KDHE does not typically commit specific types of funds for specific loans at loan execution; instead, the source of funds used for disbursements will be determined at the time of each disbursement request.

by Luke Drury
Senior Fiscal Analyst
785-296-7250

Civil Asset Forfeiture

Civil asset forfeiture is the process through which a law enforcement agency may seize and take ownership of property used in the commission of a crime. This memorandum provides an overview of the civil forfeiture laws in Kansas, relevant legislative history of such laws, and recent reporting and study of this topic.

Overview of Kansas Civil Forfeiture Laws

Property and Conduct Subject to Civil Forfeiture

Kansas Statutes Annotated Chapter 60, Article 41 is titled the Kansas Standard Asset Seizure and Forfeiture Act (SASFA). Under KSA 60-4104, certain conduct can lead to civil asset forfeiture even without prosecution or conviction. This conduct includes, but is not limited to, theft, prostitution, human trafficking, and forgery. Under KSA 60-4105, every kind of property used during conduct giving rise to forfeiture, or obtained as a result of conduct giving rise to forfeiture, is subject to forfeiture.

There are certain exemptions under KSA 60-4106. For example, under KSA 60-4106(a)(1), real property or interests in real property cannot be seized unless the conduct leading to forfeiture is a felony. Under KSA 60-4106(a)(3), property is not subject to forfeiture if the owner received the property before or during the conduct giving rise to forfeiture and did not know about the conduct or made reasonable efforts to prevent the conduct.

Kansas Forfeiture Procedure

Law enforcement officers may seize property with a warrant issued by the court, without a warrant if they have probable cause to believe the property is subject to forfeiture under the statutes, or constructively, with notice (KSA 60-4107). Under KSA 60-4107(d), the seizing agency must make reasonable efforts within 30 days to give notice of the seizure to the owner, interest holder, or person who had possession of the property.

Typically, the county or district attorney, the Attorney General, or an attorney approved by one of the two, will represent the Kansas law enforcement agency in a forfeiture action. KSA 60-4107(g)-(j) provides a procedure the law enforcement agency must follow to secure representation in such a proceeding. In those cases where the county or district attorney approves another attorney to represent a local agency in the forfeiture proceeding, the county or district attorney is prohibited from approving an attorney with whom the county or district attorney has a direct or indirect financial interest. Similarly, for state agencies, the Attorney General is prohibited from approving an attorney with whom the Attorney General has a direct or indirect financial interest. A county or district attorney and the Attorney General are prohibited from requesting or receiving any referral fee or personal financial benefit from any proceeding under SASFA.

Under KSA 60-4109(a), a civil forfeiture proceeding commences when the attorney representing the law enforcement agency (the plaintiff’s attorney) files a notice of pending forfeiture or a judicial forfeiture action.

If the plaintiff’s attorney does not initiate the forfeiture proceeding or the law enforcement agency does not pursue the forfeiture proceeding within 90 days against the property seized, and the property’s owner or interest holder (the claimant) files a timely claim, the court must release the property to the owner (on the owner’s request) pending further proceedings (KSA 60-4109(a)(1)).

Under KSA 60-4109(a)(1), the seized property cannot stay in the owner’s possession more than 90 days without a court-authorized extension. Under KSA 60-4109(a) (2), if the owner files a petition for exemption to forfeiture under KSA 60-4110, the plaintiff’s attorney can delay filing the judicial forfeiture proceeding for up to 180 days. To delay filing, the plaintiff’s attorney must provide notice of exemption to any interest holders who filed petitions to have their interests exempt from forfeiture within 60 days after the effective date of the notice of pending forfeiture.

The plaintiff’s attorney is also allowed, under KSA 60-4109(b), to file a lien on the forfeited property to cover necessary court costs, and the lien will constitute notice to any person claiming an interest in the property as along as it contains certain information.

Burden of Proof and Court Findings

Under KSA 60-4113(h), in a civil forfeiture proceeding, the plaintiff’s attorney has the initial burden of proof and must prove, by a preponderance of the evidence, the property is subject to civil forfeiture. Then the burden of proof shifts to the claimant (the property owner or interest holder) to prove, by a preponderance of the evidence, the claimant’s property interest is not subject to forfeiture. If the court finds the property is not subject to forfeiture, the property must be returned to the claimant. If the court finds the property is subject to forfeiture, the property is forfeited to the law enforcement agency that seized the property (KSA 60-4113(i)). However, under KSA 60-4106(c), the court must restrict the scope of the forfeiture to ensure it is proportionate with the conduct that gave rise to the seizure.

In February 2019, in the case Timbs v. Indiana, 139 S. Ct. 682 (2019), the U.S. Supreme Court held the excessive fines clause of the Eighth Amendment is an incorporated protection applicable to states under the Fourteenth Amendment’s due process clause and, based on its previous decision in Austin v. United States, 113 S. Ct. 602 (1993), rejected Indiana’s argument that civil in rem forfeitures do not fall within the excessive fines clause. Thus, a state civil forfeiture may not violate the Eighth Amendment prohibition on excessive fines. However, the Timbs decision did not address what level of civil forfeiture would constitute an excessive fine, and it is not yet clear how the analysis of this question would compare to the proportionality analysis required under KSA 60-4106(c).

Use of Forfeited Property

When property is forfeited, the law enforcement agency may keep the property, transfer it to any government agency, destroy it, or use it for training purposes (KSA 60-4117(a)(1) and (a)(2)). The law enforcement agency also may sell the property. KSA 60- 4117(a)(3)(A) requires property, other than real property, to be sold at public sale to the highest bidder. Real property may be sold at a public sale or through a real estate company (KSA 60-4117(a)(3)(B)).

Under KSA 60-4117(c)-(d), after the proceeds have been used to satisfy certain security interests or liens, expenses of the proceedings, reasonable attorney fees, and repayment of certain law enforcement funds, the remaining proceeds will go to the law enforcement agency’s state forfeiture fund if the law enforcement agency is a state agency.

The statute provides an exclusive list of 12 special, additional law enforcement purposes for which proceeds from forfeiture may be used. Moneys in the funds containing forfeiture proceeds must be separated and accounted for in a manner that allows accurate tracking and reporting of deposits and expenditures of proceeds from forfeiture credited to the fund, proceeds from pending forfeiture actions under SASFA, and proceeds from federal forfeiture actions.

Forfeiture Repository and Reporting Requirements

KSA 60-4127 requires that the Kansas Bureau of Investigation (KBI) establish, on or before July 1, 2019, the Kansas Asset Seizure and Forfeiture Repository, which gathers information concerning each seizure for forfeiture made by a seizing agency pursuant to SASFA. The information gathered includes, but is not limited to:

The name of the seizing agency, or name of the lead agency if part of a multi-jurisdictional task force, and any applicable agency or district court case numbers for the seizure
The location, date, and time of the seizure and a description of the initiating law enforcement activity leading to the seizure;
Descriptions of the type of property and contraband seized and the estimated values of the property and contraband;
Whether criminal charges were filed for an offense related to the forfeiture, and court and case number information of such charges;
A description of the final disposition of the forfeiture action, including any claim or exemption asserted under SASFA;
Whether the forfeiture was transferred to the federal government for disposition;
Total cost of the forfeiture action, including attorney fees; and
Total amount of proceeds from the forfeiture action, specifying the amount received by the seizing agency and the amount received by any other agency or person.

The KBI monitors compliance, and agencies not in compliance are unable to seek forfeiture proceedings. Each year, the KBI must report to the Legislature any agencies not in compliance with the reporting requirements.

The KBI has established a website to facilitate the submission of the required reports and to make information from the reports publicly available.

Legislative History and Proposals Related to Civil Asset Forfeiture

Legislation, 2013-2016

In 2013, the Legislature passed HB 2081, which added certain offenses to the conduct giving rise to civil forfeiture (indecent solicitation of a child, aggravated indecent solicitation of a child, and sexual exploitation of a child). The bill also added electronic devices to the list of items that could be seized.

In 2014, Kansas enacted legislation concerning civil forfeiture as it pertains to certain firearms (HB 2578). That bill added language to KSA 22-2512 as to how seized firearms could be disposed and specifications for notifying the owner of a seized weapon how to retrieve it if the weapon can be returned.

In 2016, HB 2460 created the crime of violation of a consumer protection order, related to door-to-door sales, and added the crime to conduct giving rise to civil forfeiture.

2016 Legislative Division of Post Audit (LPA) Report

In July 2016, the LPA released a report, “Seized and Forfeited Property: Evaluating Compliance with State Law and How Proceeds Are Tracked, Used, and Reported,” which compared Kansas’ forfeiture process with those of four other states and the federal government. It also examined the seizure and forfeiture processes of two statewide and four local law enforcement agencies, finding that the agencies generally complied with major state laws and best practices, with few exceptions.

The report found the agencies generally complied with state laws for liquidating forfeited property, but several agencies were missing important controls. LPA also found the six agencies lacked important controls for tracking forfeiture proceeds, but appeared to have good processes for appropriate use of forfeiture proceeds. Also, while the state agencies complied with reporting requirements in state law, the local agencies did not. The report noted additional findings, including that broad discretion over the use of forfeiture proceeds could create a risk of use for operating funds, that certain agencies had conflicts of interest or lacked controls for drug buys, and that none of the agencies had complete and written policies and procedures for seized and forfeited property.

The report noted numerous specific recommendations had been made to the various agencies based upon the findings. It recommended the Legislature consider legislation clarifying KSA 60-4117(d) (3) and the use of forfeiture funds for operating expenses. The report also recommended the House and Senate Judiciary Committees consider introducing legislation to either create a more centralized reporting structure or consider eliminating the reporting requirement altogether.

The highlights and full report may be found on LPA’s website.

2017 Kansas Judicial Council Study and 2018 Legislation

Following the LPA report and the introduction of five House bills and three Senate bills in 2017 on the topic of civil asset forfeiture, the chairpersons of the House and Senate Judiciary Committees requested the Kansas Judicial Council study the topic. Following its study, the Judicial Council issued its report, including a draft of recommended legislation, in December 2017. HB 2459, based on the Judicial Council’s recommended legislation, was passed by the 2018 Legislature, and made several amendments to SASFA and created the Kansas Asset Seizure and Forfeiture Repository (Repository). [Note: These amendments have been incorporated in the Overview of Civil Asset Forfeiture Laws section above.]

2023 Developments

Judicial Council Study

Following the introduction of one Senate bill and three House bills that would amend SASFA in the 2023 Legislative Session, the chairpersons of the House Committee on Judiciary and the House Committee on Corrections and Juvenile Justice jointly requested the Kansas Judicial Council reconvene its Civil Asset Forfeiture Advisory Committee to study one of the introduced bills, HB 2380. The Kansas Judicial Council agreed to study the topic and will publish its report in December 2023.

Special Committee on Civil Asset Forfeiture

After interested parties failed to reach a compromise on the contents of HB 2380 during the 2023 Legislative Session, a representative, on behalf of the House Committee on Judiciary, requested the Legislative Coordinating Council approve one meeting day in the 2023 Interim Session to review recommendations made by the Judicial Council. The Special Committee on Civil Asset Forfeiture is scheduled to meet on December 6, 2023.

by Mike Ditch Jr.
Research Analyst
785-296-4409

Sports Wagering

U.S. Supreme Court Decision

In Murphy v. NCAA¹, the U.S. Supreme Court held a 1992 law prohibiting states from allowing betting on sporting events to be unconstitutional. The Professional and Amateur Sports Protection Act (PASPA)² had prohibited all sports lotteries except those allowed under state law at the time PASPA was passed. Delaware, Montana, Nevada, and Oregon all had state laws providing for sports wagering in 1992; however, Nevada was the only one of those states conducting sports wagering in a meaningful way between 1992 and 2018.

In 2011, New Jersey enacted a law authorizing sports betting. This law was struck down by federal district and appellate courts as a violation of PASPA as part of a challenge brought by five professional sports leagues. New Jersey later repealed the state law expressly authorizing sports wagering but did not replace it with language expressly prohibiting sports betting. Again, the sports leagues sued New Jersey, claiming that by not expressly prohibiting sports wagering, the state law effectively authorized sports gambling by implication. In 2018, the U.S. Supreme Court issued the Murphy ruling that PASPA was unconstitutional on the grounds that the federal law prohibited the modification or repeal of state law prohibitions and unlawfully regulated the actions of state legislatures.

State Action Since Murphy v. NCAA

As a result of the U.S. Supreme Court’s ruling that PASPA is unconstitutional, states can legally regulate gambling on sporting events. Since the Murphy decision in May 2018, 48 states and the District of Columbia have legalized sports wagering or considered legislation or a ballot initiative related to legalizing the practice.

According to the American Gaming Association³, a total of 36 states and District of Columbia currently accept sports wagers, and 2 states have legalized sports betting but such betting is not yet operational. In 2023, Kentucky, North Carolina, and Vermont passed bills legalizing sports betting. Georgia, Minnesota, Missouri, Oklahoma, Texas, and South Carolina considered sports betting bills in 2023 but did not pass legislation during their legislative sessions.

The following map illustrates which states have legalized sports betting for individuals 18 or 21 years of age and older, states that have legalized sports betting but are not yet operational, and states where sports betting remains illegal.

Notable State Policies

In nearly every state with legal sports wagering, gamblers must be age 21 or older to place a wager. However, in District of Columbia, Montana, New Hampshire, New York (tribal casinos only), Rhode Island, Washington, and Wyoming, persons age 18 or older may place sports wagers.

Out of the 38 states with legal sports wagering (either active or pending implementation), 21 states and the District of Columbia restrict wagering on either local or collegiate teams, or on amateur sports: Arizona, Arkansas (restriction only on amateur sports), Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa, Nebraska, New Hampshire, New Jersey, New York, Oregon, Rhode Island, South Dakota, Tennessee, Vermont, Virginia, Washington, and Wisconsin.

Six states (Arizona, Illinois, Michigan, North Carolina, Tennessee, and Virginia) require the use of official league data for either proposition bets, in-play wagers, or both.

Kansas Tribal Casino Compact Resolutions

During the 2023 Legislative Session, HR 6026 and SR 1725 were adopted to approve an amendment to the gaming compact between Prairie Band Potawatomi Nation and the State of Kansas. The amendments create and amend provisions of the compact concerning sports wagering operations on the Nation’s reservation lands. The compact amendment was approved by the U.S. Interior Department’s Bureau of Indian Affairs in July 2023. Prairie Band Casino & Resort has stated they plan to launch sports betting before the end of 2023⁴.

Tribal Casino Litigation

Sports wagering occurs at tribal casinos in many states that have legalized sports wagering. However, a legal challenge in Florida was filed in 2021 concerning the issue of whether a tribal casino may accept wagers placed off of tribal lands. That case, West Flagler Associates, Ltd. v. Haaland⁵, was appealed to the U.S. Supreme Court in October 2023. The U.S. Supreme Court later in October 2023 issued an order allowing the decision of the District of Columbia Circuit Court of Appeals to stand.⁶

The lawsuit was initially filed in 2021 by parimutuel companies West Flagler Associates and Bonita-Fort Myers Corp. in response to the 2021 compact between the State and the Seminole Tribe. Per the terms of the compact, mobile sports wagers could be placed anywhere in the state, with bets handled by computer servers on tribal property. Plaintiffs argue that the agreement is in conflict with a 2018 state constitutional amendment requiring voter approval of casino gambling in Florida. Although the U.S. Department of the Interior allowed the compact to move forward, the lawsuit alleges that the compact violates the federal Indian Gaming Regulatory Act⁷ because it would authorize gambling off tribal lands.

In 2021, a judge of the U.S. District Court for the District of Columbia issued a ruling setting aside approval of the compact, but that ruling was reversed by an appeals court panel in June 2023, and the full appeals court refused to reconsider the case in September 2023. In October 2023, the parimutuel companies filed a request for a stay at the U.S. Supreme Court (requesting that the appellate court decision be put on hold). In an unsigned order, the U.S. Supreme Court denied the stay request on October 25, 2023, which allowed the appellate decision reinstating the compact to stand.

As of October 30, 2023, a separate case (West Flager Associates, Ltd., et al. v. Ron D. DeSantis, etc., et al.) is pending before the Florida Supreme Court, seeking to invalidate the compact as it relates to off-reservation wagering and seeking a decision stating such off-reservation wagering could only be authorized through a voter-approved constitutional amendment.

Murphy v. NCAA ,138 S.Ct. 1461 (2018) ↩︎
28 USC §3701, et seq. ↩︎
https://www.americangaming.org/research/state-gaming-map/ ↩︎
https://fox4kc.com/news/kansas-news/kansas-tribal-casino-gets-sports-betting-approval-quick-launch-expected/ ↩︎
West Flagler Associates, Ltd., et al. v. Haaland, 71 F.4th 1059 (2023). ↩︎
https://www.scotusblog.com/case-files/cases/west-flagler-associates-v-haaland/ ↩︎
25 USC §2701, et seq. ↩︎

by Leighann Thone, PhD
Research Analyst
785-296-4181

Judicial Selection

This memorandum describes the methods for filling vacancies on the Kansas Supreme Court and the Kansas Court of Appeals, as well as recent legislative efforts to amend the selection process.

Current Method for Filling Vacancies

Kansas Supreme Court

Article 3, Section 5 of the Kansas Constitution governs selection of Kansas Supreme Court justices. After an amendment in 1958, Section 5 has specified any vacancy on the Court shall be filled through the Governor’s appointment of one of three candidates nominated by the Supreme Court Nominating Commission. The non-partisan Commission has nine members:

A chairperson who is an attorney chosen by the members of the Kansas Bar;
One attorney member from each congressional district (4) chosen by members of the Kansas Bar who reside in that district; and
One non-attorney member from each congressional district (4) appointed by the Governor.

Kansas Court of Appeals

The process for filling vacancies on the Kansas Court of Appeals is governed by statute. In 2013, KSA 20-3020 was amended (2013 HB 2019 ) to allow the Governor, with the consent of the Senate, to appoint a qualified person to fill any vacancy on the Kansas Court of Appeals.

Under this procedure, the Governor must make an appointment within 60 days of receiving notice of the vacancy from the Clerk of the Supreme Court. Otherwise, the Chief Justice of the Supreme Court, with the consent of the Senate, will appoint a qualified person for the position. The Senate is required to vote on the appointment within 60 days of being received or, if the Senate is not in session and will not be in session within the 60-day time limit, within 20 days of the next session. If the Senate fails to vote within the time limit, its consent will be deemed given. If the appointee does not receive a majority vote in the Senate, the Governor will appoint another qualified person within 60 days, and the same consent procedure will be followed.

Qualifications and Terms

To serve on either Court, a person shall be regularly admitted to the practice of law in Kansas (Kansas Bar) and has engaged in the active and continuous practice of law for at least ten (10) years prior to appointment (See KSA 20-105 and KSA 20-3020). Once appointed, Supreme Court justices and Court of Appeals judges are subject to retention elections following their first full year in office and at the end of each term. Supreme Court justices serve six-year terms, and Court of Appeals judges serve four-year terms.

Legislative Efforts to Change Selection Process

As the Kansas Court of Appeals is governed by statute, amending the method for filling vacancies on that court requires only a statutory amendment. The method for filling vacancies on the Kansas Supreme Court is governed by the Kansas Constitution, which requires a constitutional amendment to modify that process. Article 14, Section 1 of the Kansas Constitution provides that a concurrent resolution originating in either chamber of the Legislature that is approved by two-thirds of all members will be considered by Kansas voters at the next election. If a majority of Kansas voters approve the amendment, it becomes a part of the Kansas Constitution.

Since the process for filling vacancies on the Court of Appeals was amended in 2013, numerous bills and resolutions concerning the selection of Court of Appeals judges and Supreme Court justices have been introduced in the Legislature, but only two concurrent resolutions (2015 HCR 5005 and 2022 SCR 1621) have been debated by the full House or Senate, respectively. Neither resolution was adopted by the required two-thirds majority of members on final action.

by Elizabeth Cohn
Senior Research Analyst
785-296-4382

COVID-19 Vaccine Mandates

In September 2021, President Biden released his “Path Out of the Pandemic COVID-19 Action Plan,” which set forth plans to increase COVID-19 vaccination rates for certain groups. This memorandum provides an overview of these actions and subsequent state responses.

Federal Mandates

Private Employer Mandate

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS)¹ mandating private employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Alternatively, such employers could adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.

In January 2022, the U.S. Supreme Court held that the broad approach by OSHA to regulate all private employers with 100 or more employees was impermissible as the ETS took on “the character of a general public health measure, rather than an occupational safety or health standard,” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 211 L. Ed. 2D 448, 142 S. Ct. 661, 665.² With this ruling, the Court held that OSHA could not enforce the ETS while litigation challenging the standard is ongoing. OSHA subsequently withdrew the ETS on January 25, 2022.³

Following this decision, large businesses nationwide were not required to mandate vaccines for employees, but states and individual businesses could enforce their own vaccine requirements.

Kansas Response

During the 2021 Special Session, legislation⁴ was enacted to require medical and religious exemptions be provided to employees whose employers require vaccinations. The law also allows an employee to file a complaint with the Secretary of Labor alleging that an employer failed to offer an exemption, improperly denied an exemption request, or took another punitive action against the employee related to a requested exemption.

Responses in Other States

As of October 2023, no state has mandated vaccinations for employees of private employers. Seventeen states had requirements for some or all state workers to receive the vaccine or undergo regular testing, but these requirements have since been rescinded. The District of Columbia continues to require District government employees, contractors, and interns to be fully vaccinated or undergo weekly testing; individuals may be exempted due to religious beliefs or medical conditions.

As of June 2023⁵, 15 states do not allow government entities to require a COVID-19 vaccine to access public buildings or services and 11 states do not allow state entities to use vaccination status as a condition of employment. Eight states do not allow government entities to require residents to receive the COVID-19 vaccine. Twelve states have specifically prohibited the use of vaccine passports, with some states providing exceptions for their use in situations involving health care. Three states—Maine, Pennsylvania, and Rhode Island, and the District of Columbia—continue to require health care workers to receive the COVID-19 vaccine. California, Colorado, Illinois, New Jersey, and Oregon ended similar requirements earlier in 2022 or 2023, and Maine will end this requirement in 2024.

Federal Contractor Mandate

On September 9, 2021, President Biden issued Executive Order 14042⁶, mandating COVID-19 vaccinations for all employees working for federal contractors and subcontractors.

In December 2021, the U.S. District Court of the Southern District of Georgia ruled President Biden had likely exceeded his authority in issuing the executive order, and ordered a nationwide injunction on the federal contractor mandate (Georgia v. Biden, 574 F. Supp. 3D 1337 (S.D. Ga. 2021)) . On August 28, 2022, the U.S. Court of Appeals for the 11^th Circuit ruled that the nationwide injunction on the vaccine mandate was overbroad and narrowed the scope of it to apply to the plaintiffs in the case (seven states, including Kansas) (Georgia v. President of the United States, 46 F.4^th 1283 (11^th Cir. 2022)).

Other courts issued separate injunctions for several states that blocked the enforcement of the mandate while litigation continued, and the Biden administration stated it would not enforce the mandate until further notice⁷.

On May 1, 2023, the Biden administration announced⁸ that it would be ending the COVID-19 vaccine requirements for federal employees, federal contractors, and international air travelers, effective at the end of the day on May 11, 2023, the same day the federal COVID-19 public health emergency declaration ended. The U.S. Department of Health and Human Services and the U.S. Department of Homeland Security also announced they would begin the process to end their vaccination requirements for Head Start educators, Centers for Medicare and Medicaid Services (CMS)-certified health care facilities, and certain non-citizens at the land border.

CMS Mandate

On November 4, 2021, CMS issued an emergency rule⁹ requiring staff of health care facilities that receive CMS funding to be vaccinated for COVID-19.

In January 2022, the U.S. Supreme Court upheld the mandate, stating CMS has the authority to impose requirements on those facilities as a condition of their Medicaid and Medicare participation, and because facilities in the programs have long been required to follow certain rules, including those about infection prevention and control. In October 2022, the Supreme Court declined to hear a petition filed by a group of ten states (including Kansas) seeking to appeal the decision.

On March 29, 2022, Governor Kelly announced Kansas state regulators would not enforce the health care worker mandate, resulting in a $350,000 cut in CMS funding.

On November 17, 2022, a coalition of 22 states filed a petition under the federal Administrative Procedures Act requesting CMS to repeal its rule implementing the mandate and related guidance.

In January 2023, HR 497¹⁰, the Freedom for Health Care Workers Act, was passed by the U.S. House of Representatives in a 227-203 vote. The bill would have nullified the CMS rule requiring vaccines and would have banned the issuance of any substantially similar rule.

On August 5, 2023¹¹, CMS published a final rule that ended the requirements related to staff vaccination for all provider types.

Department of Defense Mandate

Secretary of Defense Lloyd Austin announced in August 2021¹² that all members of the Armed Forces under U.S. Department of Defense (DoD) authority on active duty or in the Ready Reserve, including the National Guard, must receive the COVID-19 vaccination.

Secretary Austin released a second memorandum in November 2021¹³, which emphasized the requirement for the National Guard and Ready Reserve. DoD stated that National Guard members who did not show proof of vaccination and did not qualify for an authorized exemption would not be paid by the federal government when they were activated on federal status, including monthly drill weekends and the two-week annual training period. Each branch followed its own deadline for vaccine compliance, the last of which was June 2022, for National Guard members.

On December 23, 2022, President Biden signed the 2023 National Defense Authorization Act¹⁴ into law; among its provisions, the bill required Secretary Austin to rescind the vaccination mandate for members of the armed forces within 30 days.

On January 10, 2023¹⁵, Secretary Austin rescinded the August 2021 memorandum mandating that members of the armed forces must be vaccinated against COVID-19 and the November 2021 memorandum pertaining to the vaccination of National Guard and Reserve personnel.

Service members who were involuntarily discharged because of their vaccination status may petition their board of corrections or request a waiver to apply for reinstatement. In May 2023, HR 3458¹⁶ was introduced into Congress to streamline the reinstatement process, including upgrading previous vaccine-related discharges to “honorable,” providing bonuses that were withheld or recouped due to discharge, and expunging records of disciplinary language related to the COVID-19 vaccine. The bill has not yet received a hearing.

State Response

Governors in seven states formally asked Secretary Austin to not enforce the mandate for National Guard members, and Alaska, Oklahoma, and Texas filed lawsuits on behalf of their National Guard members. A number of individual service members also joined lawsuits based on the DoD’s refusal to grant requested religious exemptions.

In January 2022, a Texas judge ordered a temporary injunction against the punishment of a group of Navy SEALs who refused the COVID-19 vaccine and, in February 2022, a Florida federal district court judge issued a temporary order preventing disciplinary action against two officers who refused the vaccine on religious grounds. Both lawsuits were settled¹⁷ in October 2023 for a total of $1.8 million to cover legal fees incurred during the cases.

by Leighann Thone, PhD
Research Analyst
785-296-4181

Statewide Star Bond Authority

This memorandum provides an overview of the STAR Bond program using the Q&A format. Information addresses the program, financing criteria, and eligible uses of bond proceeds.

What is a STAR Bond?

A STAR Bond is a tax increment financing (TIF) program that allows city governments to issue special revenue bonds, which are repaid by all of the revenues received by the city or county from incremental increases in transient guest taxes, local sales taxes, and use taxes collected from taxpayers doing business within the designated portion of the city’s “sales tax and revenue” (STAR) bond district. All or a portion of the increased state sales and use tax revenues also may be used to repay the bonds, which typically have a 20-year repayment period.

What Projects Qualify for STAR Bond Financing?

A project with a capital investment of at least $75.0 million and $75.0 million in projected gross annual sales revenues, and projects in metropolitan areas with a population between 50,000 and 75,000 with at least $40.0 million in capital investment and $40.0 million in projected gross annual sales revenues;
A project located outside of a metropolitan area with a population of more than 50,000 that has been found by the Secretary of Commerce (Secretary) to be in an eligible area under TIF law and of regional or statewide importance;
A major commercial entertainment and tourism area, as determined by the Secretary;
Auto racetrack facilities, multisport athletic complexes, river walk canal facilities, historic theaters, the Manhattan Discovery Center, the Wyandotte County Schlitterbahn Project, museum facilities, and a major motorsports complex in Shawnee County;
A project involving buildings 65 years or older and contiguous lots that are vacant or condemned; and
A significant business headquarters or office building development designed to draw a substantial number of new visitors to Kansas.

What Projects are Excluded from STAR Bond Financing?

Projects that include a gaming casino are specifically excluded from use of STAR Bonds.

How Does the STAR Bond Program Work?

The law allows the governing body of a city to establish one or more special bond projects in any area in the city, or outside a city’s boundaries with written approval of the county commission. However, each special bond project must be approved by the Secretary based on the required feasibility study prior to utilizing STAR Bonds.

The city is also required to propose a project plan, hold a hearing on the plan, and adopt the project plan. One mandated component of the project plan is a marketing study conducted to examine the impact of the special bond project on similar businesses in the projected market area.

Finally, the city must complete a feasibility study, which includes:

One or more consultants selected and approved by the Secretary.
Whether a project’s revenue and tax increment revenue and other available revenues are expected to exceed or be sufficient to pay for the project costs;
The effect, if any, the project will have on any outstanding special obligation bonds payable from the revenues used to fund the project;
A statement of how the jobs and taxes obtained from the project will contribute significantly to the economic development of the state and region;
Visitation expectations (with a plan describing how the number of visitors will be tracked and reported), the unique quality of the project, an economic impact study (including the anticipated effect of the project on regional and statewide economies), and integration and collaboration with other resources or businesses;
The quality of service and experience provided as measured against national consumer standards for the specific target market;
Project accountability, measured according to industry best practices;
The return on state and local investment that the project is anticipated to produce;
A net return on investment analysis;
A statement concerning whether a portion of the local sales and use taxes are pledged to other uses and are unavailable as revenue for the project, and, if the revenues are so committed, a detailed explanation of the commitment and the effect;
An anticipated principal and interest payment schedule on the bond issue; and
A full disclosure and description of all state, federal, and local tax incentives that apply or are anticipated to apply to any business located in or that will locate in the district.

The Secretary places a limit on the total amount of STAR Bonds that can be issued for any project.

A city is also required to have a certified public accountant conduct an annual audit of each project. STAR Bond districts are prohibited from including real property that was part of another project or district unless that project or district has been approved by the Secretary prior to March 1, 2016. A district in a metropolitan area with a population of more than 50,000 must be a contiguous parcel of real estate and is limited to those areas being developed and any areas reasonably anticipated to directly benefit the project.

STAR Bond districts created and approved in 2017 or later must exclude tax increment revenues derived from retail automobile dealers. If a STAR Bond district adds area, the base tax year for the newly annexed area will be the 12-month period immediately prior to the month in which the new area is added to the district.

What are the Constraints Placed on the Developer?

The developer of a special bond project is required to commence work on the project within two years from the date of adoption of the project plan. If the developer does not commence work on the project within the two-year period, funding for the project ceases, and the developer has one year to resubmit the project to the Secretary and appeal to the Secretary for reapproval of the project. If the project is reapproved, the two-year period for commencement applies.

No state or local or government official can be employed by a STAR bond project developer or manager. Also, the law requires that Kansas residents be given priority consideration for employment in construction projects located in a special bond project area.

What are Eligible Uses for STAR Bond Proceeds?

Purchase of property, relocation assistance, and site preparation work;
Various infrastructure costs, such as utility relocation, parking facilities, street improvements, etc;
Landscaping, lighting, and similar costs;
Costs incurred for auto race track facilities, major multisport athletic complexes, museum facilities, and major motorsports complexes;
Construction or renovation costs of buildings or other structures for rural development projects;
Construction or renovation costs of amusement rides, including buildings to house amusement rides for projects approved in fiscal year 2024 only;
Related expenses to redevelop and finance the project; and
Recovering Department of Commerce (Department) costs arising from fulfilling administrative, review, approval, and other responsibilities in relation to the project up to 1.0 percent of the bond proceeds, but not exceeding $200,000, plus any actual administrative costs incurred by the Department that exceed the fee.

What are Ineligible Uses for STAR Bond Proceeds?

Excluding rural development projects and, for FY 2024 only, buildings to house amusement rides, costs incurred in connection with the construction of buildings or other structures are not eligible. In addition, proceeds are not available for fees and commissions paid to real estate agents, financial advisors, or any other consultants who represent the developer or any other businesses considering locating or located in a redevelopment district; salaries for local government employees; moving expenses for employees of the businesses locating within the redevelopment district; property taxes for businesses that locate in the redevelopment district; lobbying costs; bond origination fees paid to the city; any personal property as defined in KSA 79-102; and travel, entertainment, and hospitality.

Additional Information

All cities that have projects financed with STAR Bonds are to prepare and submit an annual report to the Secretary by October 1 of each year. The Department compiles an annual report on all STAR Bond projects and submits them to the Governor, the Senate Committee on Commerce, and the House Committee on Commerce, Labor and Economic Development by January 31 of each year. For the past three calendar years and year-to-date, each STAR Bond district must report the following information:

Names of the owners, partners, officers, or principals of any developer and of any associated business partners of any developer involved in the STAR bond project.
The gross annual sales, gross annual sales projected pursuant to the STAR bond project plan and feasibility study, gross annual sales required to meet bond debt service requirements and other expenses, and amount of sales and use tax collected;
The amount of bond payments and other expenses incurred;
The amount of bonds issued and the balance of bonds, by district and by project;
The remaining cash balance in the project to pay for future debt service and other permissible expenses;
Any new income-producing properties brought into the district, identifying the base amount of revenue the State would retain and the incremental amount that goes to the district;
The amount of bonds issued to repay private investors, identifying the share of the indebtedness financed by private and public financing;
The percentages of state and local effort committed to the district; and
The number of visitors to the district, identifying the number of in-state and out-of-state visitors.

Additionally, the transfer of any ownership in real property acquired with the proceeds of STAR bonds requires the advance approval of the Secretary. While bonds are outstanding, such a transfer would require disclosure of the sale price and the names of any transferees, owners, officers, or principals in the transaction.

Previously reauthorized in 2017 and 2020, the authority to issue debt pursuant to the STAR Bond Financing Act was extended by 2021 House Sub. for SB 124 until July 1, 2026.

by Mike Ditch Jr.
Research Analyst
785-296-4409

Traffic Enforcement Using Cameras

This memorandum provides an introduction to traffic enforcement using cameras.

Cameras are statutorily authorized for use by municipalities in 36 states and the District of Columbia for enforcement of traffic laws, most commonly in enforcement related to speeding, full stops at red lights, and passing school buses that are stopped with the stop arm extended. State laws authorize municipalities or certain municipalities to use such cameras under certain circumstances. Toll agencies, including the Kansas Turnpike Authority, also use video enforcement for toll collection.

United States map showing Authorized Uses of Cameras for Law Enforcement in the U.S.

The map below shows the uses for which states authorize traffic enforcement came the Uniform Act Regulating Traffic on Highways or similar city ordinances. The following bills have been introduced, but not enacted, in Kansas in recent years to authorize cameras on school buses to identify any vehicle passing a school bus stopped with the stop arm extended and lights flashing: 2023 HB 2251, 2021-2022 HB 2154, 2019-2020 SB 472 and HB 2532, 2017- 2018 HB 2040, and 2016 HB 2470.

Proponents generally state camera enforcement can help reduce behaviors that put lives and property at risk and act as a force multiplier for law enforcement agencies. Opponents have stated enforcement without a law enforcement officer present is unmerited, and enforcement from images could be used for surveillance or to raise revenues for the local government.

Costs of Crashes

Information in the 2021 Kansas Traffic Crash Facts Annual Accidents Facts Book published by the Kansas Department of Transportation ― which notes 57,598 total crashes, 424 fatalities, and 17,479 people injured in 2021 ― includes the following about types of violations that traffic cameras are most frequently used to enforce in other states:

Estimated costs of $6.8 billion for 32,927 crashes involving driver infractions;
4,479 crashes that were speed related, 75 fatalities, 1,969 injured, with associated economic costs of $1.5 billion; and
1,237 crashes in work zones, 6 fatalities, 385 injured, and associated costs of $168.6 million.

Each crash can have more than one contributing factor, but driver inattention was most common (11,939 crashes). Other top driver-contributing circumstances noted were right-of-way violations (No. 2, noted for 6,568 crashes), followed too closely (No. 3, 4,596 crashes), and driving too fast for conditions (No. 4, 3,944 crashes).

School Bus Violations

The April 2023 Kansas One Day Stop Arm Violation Count found, for the 2,857 buses of 223 districts participating, 676 instances of a vehicle passing when the stop arm was extended.

State Policy Choices

States crafting policy for use of such cameras have many policy choices, such as:

Which entities can use camera enforcement;
In what capacities contractors can be involved;
Whether a traffic violation documented with use of a camera will be a criminal or a civil offense;
Whether a law enforcement officer or another type of government employee must review images before notices of violation are sent;
Whether information about camera-enforced violations can be used for insurance purposes or determining whether the driver’s license should be restricted or suspended;
Whether the images can be used for any purpose other than enforcement of the specific violation;
What elements must be present in, or omitted from, the image (e.g., an image of the driver);
The image retention period; and
Whether and how information is made available to drivers about the presence of enforcement cameras.

Additional Resources

Additional sources of information include:

Kansas Legislative Research Department, “School Bus Passing Law Enforcement in Other States.” (https://www.kslegresearch.org/KLRD-web/Publications/BriefingBook/2020Briefs/M-3-SchoolBusPassingLawEnforcementInOtherStates.pdf)
National Conference of State Legislatures (NCSL), “State School Bus Stop-Arm Camera Laws.” (https://www.ncsl.org/research/transportation/state-school-bus-stop-armcamera-laws.aspx)
NCSL, “Traffic Safety Review: State Speed and Red-Light Camera Laws and Programs.” (https://www.ncsl.org/research/transportation/traffic-safety-review-state-speed-and-red-lightcamera-laws-and-program.aspx)
NCSL Traffic Safety State Bill Tracking. (https://www.ncsl.org/transportation/traffic-safety-state-bill-tracking)
Kansas State Department of Education, “School Bus Stop Arm Violation Surveys.” Kansas 2022 results. (https://www.ksde.org/Agency/Fiscal-and-Administrative-Services/School-Finance/School-Bus-Safety/SchoolBus-Safety-Illegal-Passing-Information)

by Eric Adell
Research Analyst
785-296-4404

Massage Therapy

This memorandum outlines current and recent legislation addressing the licensure of massage therapists, current practice, and legal requirements in Kansas.

Kansas Law and Local Government Oversight

Kansas law does not prescribe a massage therapy requirement requirement. Therefore, individuals in Kansas may engage in the practice of massage therapy without fees, state standards, or state oversight. There are statutes that define what “massage therapy” is not. KSA 65-2872 and KSA 65-2913 expressly exclude from the practice of healing arts and from representing oneself as a physical therapist, respectively, persons who massage for the purpose of relaxation, muscle conditioning, or figure improvement, so long as no drugs are used and such persons do not hold themselves out to be physicians or healers.

Some local governments have zoning requirements restricting where a massage therapist may be located. Additionally, local governments could choose to regulate massage therapists by ordinance or resolution. The City of Mission, for example, regulates both massage establishments and massage therapists by ordinance (Chapter 620, excerpted below):

Permit Required. No person, firm, partnership, association or corporation shall operate a massage establishment, as defined herein, without first having obtained a permit therefor issued by the City Clerk of this city. Such permit shall be valid only from July first (1st) to June thirtieth (30th) of each calendar year (620.020).
Massage Therapist Permit Required. No person shall perform massage therapy unless he/she has a valid massage therapist’s permit issued by the City pursuant to the provisions of this Chapter. (620.040).

Education Requirements. To be eligible for a massage therapist license, an applicant shall provide proof of the following at the time of application:
- Educational Requirements. An initial applicant shall provide proof that the applicant:
  - Has successfully completed a course of instruction made up of not less than five hundred (500) hours of instruction in the theory, method, or practice of massage from a National Certification Board for Therapeutic Massage and Bodywork approved school; or
  - Has passed the National Certification Examination for Therapeutic Massage and Bodywork;
- CPR and First Aid. An applicant upon initial application and upon renewal shall provide proof of current certification in first aid and in cardiopulmonary resuscitation (CPR) by the American Heart Association or the equivalent;
- Continuing Education Requirements. An applicant upon initial application and upon renewal shall provide proof of compliance with continuing education requirements of the National Certification Board for Therapeutic Massage and Bodywork or the American Massage Therapy Association in effect at the time of application (620.070).

Kansas Massage Therapy Programs

There are at least seven massage therapy programs offered in Kansas at community colleges and private companies. The programs range in duration from 12 to 24 months. Most programs claim to prepare students to take a national massage therapy examination. The Massage & Bodywork Licensing Examination (MBLEx) is a commonly required entry level licensing examination.

Current and Recent Legislation in Kansas

2023 Legislative Session

In 2023, two bills were introduced pertaining to massage therapy licensure. SB 111 and SB 305 contain similar provisions that would enact the Massage Therapist Licensure Act (Act). The bills would:

Define terms;
Create a process for application and fee payment and outline qualifications required to receive a massage therapy license, issued by the State Board of Healing Arts;
Create a process for “grandfathering” currently practicing massage therapists into licensure;
Create requirements for reciprocal licensure;
Define actions prohibited by the Act;
Provide requirements for massage therapists providing services under the Act;
Establish a Massage Therapy Advisory Committee to assist the Board of Healing Arts (BOHA) with implementation of the Act;
Set limitations for licensure fees, which would be determined by BOHA;
Provide for licenses issued under the Act to expire every two years and create a process for renewal;
Require applicants for licensure to be fingerprinted and submit to a state and national criminal history record check, and to pay a fee for such services, to be remitted to the State Treasurer and deposited into the Healing Arts Fee Fund;
Create guidelines and processes for denial, suspension, revocation, or limitation of licenses issued under the Act;
Provide for remittance of penalties and fines to the State Treasurer, to be deposited into the State General Fund;
Provide for any other fees, charges, or penalties to be remitted to the State Treasurer, with 10 percent credited to the State General Fund and the balance credited to the Healing Arts Fee Fund;
Prohibit a local unit of government from establishing additional requirements for massage therapists licensed under the Act;
Establish that practicing massage therapy without a license would be subject to a class B person misdemeanor and would constitute an unconscionable act or practice in violation of the Kansas Consumer Protection Act;
Allow for BOHA to assess civil fines to individuals for unprofessional conduct, to be deposited in the State General Fund; and
Require individuals licensed under the Act to maintain professional liability insurance coverage as a condition for rendering service as a massage therapist in Kansas, with minimum coverage of $2 million per claim and $6 million in aggregate.

Both bills would take effect on September 1, 2025.

SB 111 was requested for introduction as a committee bill by Senator Holscher and SB 305 was requested on behalf of the Kansas Massage Therapy Association. Both bills were referred to the Senate Committee on Public Health and Welfare, where they both remain; neither bill received a hearing during the 2023 Session.

Recent Legislation

Bills to enact licensure for massage therapists were introduced in 2008 (SB 572), 2012 (HB 2564), 2013 (HB 2187), 2015 (HB 2123 and SB 40), 2018 (SB 358 and HB 2557), 2019 (HB 2184), 2020 (SB 452), 2021 (HB 2400), 2022 (SB 351), and 2023 (SB 111 and SB 305). The bills introduced since 2013 would enact the Massage Therapist Licensure Act and include substantially similar provisions.

Below are descriptions of 2013 HB 2187 and the House Committee study that took place in 2013. Two notable differences between more recent bills and HB 2187 is the required background check of a new applicant in the 2015 and 2018 bills (the new applicant background check was optional in HB 2187) and the regulatory board (the more recent bills assign the regulation of massage therapists to the BOHA).

HB 2187 (2013) and Committee Study

In January 2014, HB 2187 received a hearing in the House Committee on Health and Human Services; however, no further action was taken on the bill and the bill died in committee at the conclusion of the 2014 Session.

HB 2187 would have given oversight of massage therapy licensure to the Board of Nursing (Board). The Board estimated licensing of massage therapy would have increased its expenditures for the first year by $217,883 and would have increased fee fund revenue by $180,000, assuming 2,400 people would have applied for a massage therapy license. There would have been a $30,000 one-time start-up fee for capital outlay expenditures for the first year. The Board also anticipated hiring 3.0 FTEs to handle the increased workload.

Proponents of HB 2187 stated it would not over-regulate the practice of massage therapy but would protect the practitioners and the public. Proponents also stated the bill would benefit public interest by assuring clients that a licensed massage therapist had a clear scope of practice, a required education and training level, and continuing education requirements; a means of filing a complaint or grievance was available; and a state regulatory body was empowered to enforce sanctions against those who violated public trust. Without state licensure, the only recourse for the public would be filing a criminal or civil complaint.

Opponents of the bill stated massage therapy practice is operating well without government involvement. Opponents also voiced concern about the ability to comply with record-keeping standards. While massage therapy schools teach record-keeping as part of a 500-hour program, there are not record-keeping classes available for practicing massage therapists not enrolled in a full training program.

The League of Kansas Municipalities (LKM) opposed the section of the bill that would have preempted the municipal ordinances relating to massage therapists. The LKM suggested a dual regulation system.

A subcommittee of the House Committee on Health and Human Services was formed during the 2013 Legislative Session to gather additional information about massage therapy. The first meeting was on March 14, 2013, and a second meeting was held on May 9, 2013. The Subcommittee did not make any recommendations or propose legislation. The Subcommittee Report can be found at the following link: http://kslegislature.org/li_2014/b2013_14/committees/ ctte_h_hhs_1/documents/testimony/20140129_17.pdf.

Other States

All 50 states either require massage therapy licensure or have introduced or drafted legislation requiring licensure of massage therapists. The majority of states have a massage therapy board that regulates massage therapy licenses. The biennial licensing fees range from $60 to $300. Most states require 500 to 600 hours of massage therapy education, although some states require up to 1,000 hours. Most states require applicants to pass a state or national examination, as well as some level of background check.

The table on the following pages compares the licensing requirements proposed in

Massage Therapy Laws
State	State Licensure	Regulatory Oversight Body	License Fees (maximum allowable)	Age Require-ment	Education Requirements	Other Licensing Requirements	Exam Requirements	Continuing Education
Kansas (proposed)	SB 305 (2023) – proposed	Board of Healing Arts	Application: $80 Temporary Permit: $25 Renewal: $75 Reinstatement: $80 Certified Copy: $25 Written Verification: $30 Inactive License: $20	18 years of age	High school diploma or equivalent; at least 625 in-classroom hours of supervised instruction	No other record of disqualifying conduct as defined by the Board; citizen or legal permanent resident of the United States (U.S.)	Nationally-recognized competency examination in massage therapy	24 hours biennially
Colorado	Colo. Rev. Stat. § 12-235-101 et seq.	Division of Professions and Occupations	Application: $200 Renewal: $79 Late Renewal: $15 Background Check: $39.50	18 years of age	500 hours of course work and clinical work from an approved massage school	Fingerprint-based criminal history record check; hold and maintain professional liability insurance	MBLEx, NCETM, NCETMB, NCBTMB, or an examination approved by the Director	24 hours biennially
Missouri	RSMo § 324.240 et seq.	Board of Therapeutic Massage	Application: $125 Renewal: $100 Late Renewal: $50 Reinstatement: $100 Late Continuing Education: $50 Fingerprinting: $43.05	18 years of age	500 clock hours of training in an apprenticeship with a certified mentor or completion of a massage therapy program	Notarized application; fingerprint-based background check	Examination approved by the Board	12 hours biennially
Nebraska	Neb. Rev. Stat. § 38-1701 et seq.	Department of Health and Human Services Division of Public Health Licensure Unit	Application: $110 Renewal: $110 Temporary License: $25	19 years of age	1,000 hours of study and training over no less than 9 months; approved schools must require a high school diploma or equivalent	Be “of good character”; lawful presence in the U.S.	NCBTMB, NCETM, MBLEx, and other equivalent examinations as approved by the Board	16 hours biennially – 8 hours hands-on; 3 hours of ethics; 8 hours may be earned online or virtually
Oklahoma	Okla. Stat. Tit. 59, § 4200.1 et seq.	Advisory Board on Massage Therapy	Application: $100 Renewal: $100 Reciprocal License: $115 Late Penalty: $10 Duplicate License: $10 Lost Renewal Form: $10	18 years of age	500 hours of formal education in massage therapy	Lawful presence in the U.S.; current professional liability insurance; background check	MBLEx or NCBTMB	10 hours biennially
Iowa	Iowa Code § 152C.1 et seq.	Iowa Board of Massage Therapy	License: $120 Biennial renewal: $60 Temporary: $120 Late Fee: $60 Reactivation: $120		600 hours of supervised academic instruction; approved schools must require a high school diploma or equivalent		NCBTMB or MBLEx	24 hours biennially
NCETMB: National Certification Examination for Therapeutic Massage & Bodywork MBLEx: Federation of State Massage Therapy Boards NCCAOM: National Certification Commission for Acupuncture and Oriental Medicine NCBTMB: National Certification Board for Therapeutic Massage & Bodywork AMMA NBCE: American Medical Massage Association National Board Certification Exam

by Leighann Thorne, PHD
Research Analyst
785-296-4181