Posted By Joseph N. Molina III,
Tuesday, July 17, 2018
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One of the most controversial pieces of legislation in 2018 was the Adoption Protection Act. This proposal would prohibit negative consequences for child placement agencies that refused services due to sincerely held religious beliefs. Proponents of this bill believed this was a way to protect child placement organizations. Some opponents thought is was a form of discrimination. For our part the KBA opposed this proposal based on the best interest of the child standard.
See also; https://www.ksn.com/news/local/adoption-protection-act-on-the-way-in-kansas/1185939381
This bill, originally introduced as HB 2687 and SB 401, initially failed to make it out of committee. However, it was attached on the Senate floor to a more benign proposal offered by the Kansas Judicial Council. The Judicial Council bill updated adoption and relinquishment provisions while the Adoption Protection Act protected child placement agencies with sincerely held religious beliefs. This combined bill can be found under SB 284. This combined bill was able to garner 63 House votes in what was one of the longer non-budget debates.
The Adoption Protection Act states, notwithstanding any other provision of state law and to the extent allowed by federal law, no child placement agency (CPA), as defined by the bill, shall be required to perform, assist, counsel, recommend, consent to, refer, or otherwise participate in any placement of a child for foster care or adoption when the proposed placement of such child violates such CPA’s sincerely held religious beliefs.
The bill also prohibits taking the following actions against a CPA, if taken solely because of the CPA’s objection to providing any of the services described above on the grounds of such religious beliefs:
- Denial of a license, permit, or other authorization, denial of renewal of the same, or revocation or suspension of the same by any state agency or political subdivision;
- Denial of participation in any program operated by the Department for Children and Families (DCF) in which CPAs can participate;
- Denial of reimbursement for performing foster care placement or adoption services on behalf of an entity that has a contract with DCF as a case management contractor; or
- Imposition of a civil fine or other adverse administrative action or any claim or cause of action under any state or local law.
The bill requires the CPA’s sincerely held religious beliefs to be specified in the CPA’s organizing documents, written policies, or such other written document approved by the governing body of the CPA.
The provisions of the bill do not apply to any entity while the entity has a contract with DCF as a case management contractor.
The Kansas Department of Children and Families contracts with two case management contractors, KVC Health Systems and St. Francis Community Services. These case management contractors then work independently with child placement agencies, some of which limit placement options based on the agency’s sincerely held religiously belief.
It has been recently reported that the Department of Child and Families will begin offering contracts to child placement agencies directly, effectively circumventing both case management contractors that are exempt from the Adoption Protection Act. See; https://www.kansas.com/news/politics-government/article214966725.html.
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Posted By Joseph N. Molina III,
Tuesday, July 10, 2018
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To provide the most up-to-date information on rule changes the KBA Advocate will begin publishing Supreme Court Rule changes in its weekly blog in addition to legislative information.
This week please find the following rule changes:
I hope this proves useful!
Kansas Supreme Court
Posted By Joseph N. Molina III,
Tuesday, June 19, 2018
Updated: Tuesday, June 19, 2018
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KBA President’s Cup Golf Tournament
Last Thursday, June 14th, the KBA held its annual golf tournament in Spring Hill, Kan. KBA members and supporters gathered at the beautiful Sycamore Ridge Golf Club for a challenging 18-hole scramble.
Brian Doerr, John Duggan, Michael McGee and Andrew Spitsnogle from the law firm of Duggan, Shadwick Doerr & Kurlbaum LLC.
The winning score was -14 under par.
Sara Beezley, John Keller, Ann & Randy Timi
Joseph Molina, Josh Skiles and Cheryl Whelan
Proximity Prize winners include:
Closest to the Pin
Jerry Bales; Fred Starrett; Blake Vande Garde; Andrew Spitsnogle; and John Duggan
Larry Bork & Cheryl Whelan
Closest 2nd Shot
I would like to personally thank the staff at Sycamore Ridge for doing a fantastic job on our event.
Special thanks to our sponsors:
The Bar Plan
Appino & Biggs Reporting Service, Inc.
Alcohol Detection Systems
We couldn’t coordinate this tournament
without help from our tournament committee:
Cheryl Whelan and Bill Sampson
with support from KBA staffers: Kathy Johnson and Ryan Purcell.
Thanks again and hope to see you next June at Topeka Country Club.
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Posted By Joseph N. Molina III,
Tuesday, June 5, 2018
Updated: Monday, June 4, 2018
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With the legislative session nearly a month past, it is a good time to discuss legislation that made changes to the Kansas Judicial Branch. This week’s Advocate focuses on judicial budget issues and provides a summary for House Sub for SB 261.
Coming into the year, the Judicial Branch budget was relatively stable. The court system had enough funds to operate without the fear of furloughs or other budget-cutting issues. What currently plagues the court system is the loss of employees and difficulty filling open positions. The court found that these issues are attributable to low starting salaries and lack of pay increases. In 2017, most state employees received a 2.5% raise, but that increase merely offset the increase in healthcare premiums. This year, the court was asking for a larger increase for judges and nonjudicial staff. The court sought $19.7 million in its supplemental budget request.
The supplemental request included nearly $18 million in pay increases for judges and nonjudicial staff, just under one million dollars for 20 new FTE employees (clerks); $775K for seven new judges and accompanying staff, and $200K for office renovations.
The court previously asked for 80 new FTE but that number was lowered due to efficiencies gained through E-filing; the 7 new judges is a Blue-Ribbon Commission recommendation and the $200 K for office renovations is an attempt to locate all Court of Appeals judges on the same floor of the Judicial Center. However, the big ask was salary increases for staff.
Initially the Kansas Senate Ways and Means Subcommittee only recommended the $200K for office renovations with a promise to revisit the pay increase request during the Veto Session. The House Appropriations Committee recommended around seven million dollars for raises but only a two percent raise for judges.
In the end, both chambers agreed to pay increases of five percent for nonjudicial staff and 2.5 percent for judges. This is a good first step for judicial branch employees and something positive to build upon. The KBA would like to thank all those legislators who helped with this effort. A strong judiciary is critical for our three-tiered form of government to operate effectively.
SB 261 is a bundled bill containing five separate proposals. Each of these proposals were individual bills that received a hearing in at least one chamber but for one reason or another did not get through the complete the legislative process on their own. SB 261 was designed for legislative efficiency, bundling these five related bills into one and passing them together. To better understand those issues, please review this summary from the Kansas Legislative Research Department.
State Agency Duties—Docket Fees, Marriage Licenses, Regulation of Scrap Metal, Crime Victims Compensation Board, and Appointment of an Appraiser; SB 261
SB 261 amends provisions concerning state agency duties regarding:
- docket fees
- marriage licenses
- the regulation of scrap metal
- the Crime Victims Compensation Board
- transfer of the duty to appoint an appraiser
The bill amends the statute governing disposition of docket fees to extend from June 30, 2019, until June 30, 2021, the period during which the state treasurer shall deposit and credit the first $3.1 million to the Electronic Filing and Management Fund. Beginning with the fiscal year ending June 30, 2022, the bill increases from $1.0 million to $1.5 million the amount the state treasurer is directed to deposit and credit to the fund in subsequent years.
The bill replaces the requirement that the judge or clerk of a district court record the marriage on the court’s marriage record and forward the license, marriage certificate, names of the parties, and name and address of the officiant to the secretary of health and environment with a requirement that the judge or clerk submit the information from the license to the vital statistics integrated information system maintained by the secretary, or by other means as designated by the secretary and the judicial administrator. The bill removes a requirement that the judge or clerk notify the secretary if no marriage license has been issued during a month.
Scrap Metal Theft Reduction Act
The bill delays or makes unenforceable certain provisions of the Scrap Metal Theft Reduction Act until January 1, 2020. The following provisions are delayed by the bill:
- A requirement the attorney general establish a central database for the act and certain actions required of scrap metal dealers related to registering for the database;
- The ability for the attorney general, upon a finding that a scrap metal dealer has violated any provision of the act, to impose a civil penalty not less than $100 nor more than $5,000;
- The requirements that a scrap metal dealer obtain a copy of an identification card of a seller of scrap metal and a photograph of the item or items being sold; and
- A prohibition until January 1, 2019 on certain actions related to the purchasing and disposing of scrap metal.
The bill requires the attorney general to report to the president of the senate, speaker of the house of representatives, and standing judiciary committees on or before February 1, 2019, on the progress toward establishing the required database.
Crime Victims Compensation Board
The bill amends law governing awards from the Crime Victims Compensation Board. Specifically, the bill amends the definition of “collateral source” to specify it means the “net financial benefit” received by a victim or claimant from various sources and excludes taxes, legal fees, costs, expenses of litigation, liens, offsets, credits, or other deductions from the benefit received. The definition is also amended to include “damages awarded in a tort action” received by or readily available to the victim or claimant.
Transfer of the Duty to Appoint an Appraiser
The bill amends law requiring an appraisal prior to the state purchasing or disposing of any real property. The bill transfers the duty to appoint an appraiser with no conflict of interest from the judicial administrator to the director of property valuation, the head of the department of revenue’s division of property valuation. Similarly, if the county assessment value of the real property is more than $200,000, the bill allows the director of property valuation, rather than the judicial administrator, to appoint three appraisers who have no conflict of interest in the purchase or sale of the real property involved in the transaction.
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Posted By Joseph N. Molina III,
Tuesday, May 29, 2018
Updated: Tuesday, May 29, 2018
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On May 18th Gov. Coyler signed into law HB 2280. This bill revises the Rules and Regulations Filing Act. The new law provides stricter guidelines for the rule-making process, grants authority to the director of budget to review and approve of proposed rules and regs, and alters the State Rule and Regulations Board. It also requires an evaluation of the economic impact statements by the Legislative Division of Post Audit.
The bill was introduced as HB 2526 and heard by the House Commerce, Labor and Economic Development Committee. There were three proponents of the bill, one neutral and no opponents of the bill. The proponents included Rep. John Carmichael, Rep. Ron Highland and lobbyist Tuck Duncan. The neutral conferee was the Kansas Chamber of Commerce.
Kansas Chamber of Commerce
Rep. John Carmichael
Rep. Ron Highland
R.E. “Tuck” Duncan
HB 2280 imposes a new requirement on executive branch agencies and staff (agency lawyers) to include more information when trying to adopt a new rule/reg or attempting to amend an existing rule/reg. The law now requires the agency and its director to submit an economic impact statement that includes a cost-benefit analysis. It further requires that the economic impact statement address which business sectors would be affected and those business sectors be consulted.
In summary, HB 2280 adds new requirements when adding or changing a rule or regulation. It adds individuals to the State Rules and Regulations Board, it requires agencies to draft an economic impact statement and develops an approval process for the director of the budget.
Below is a summary drafted by the Kansas Legislative Research Department for HB 2280.
Economic Impact Statements
The bill revises the contents of the economic impact statement that accompanies a state agency’s proposed rule and regulation or, if applicable, the proposed amendment to a current rule or regulation. Currently, an economic impact statement includes a description of:
● The proposed rule and regulation;
● The extent to which the proposed rule and regulation is required by federal law;
● The cost, including the government agencies and other persons who will bear the expense; and
● Any less-intrusive or less-costly methods to achieve the same end and the reasons for rejecting those methods.
The bill deletes references to the descriptions of cost and alternative means, and requires instead an economic impact statement to include a quantified cost-benefit analyses to be performed by the state agency and the director of the budget. If a state agency’s proposed rule and regulation would address a policy issue differently than a neighboring state’s agency or the federal government, the state agency will be required to include an explanation.
The economic impact statement will include an analysis that addresses the following factors:
● The extent to which the rule and regulation will enhance or restrict business activities and growth;
● The economic effect on the Kansas economy, including specific businesses, business sectors, public utility ratepayers, individuals, and local units of government;
● The businesses that will be affected directly;
● The benefits compared to the cost;
● Measures taken by the agency to minimize the cost and impact on businesses and economic development within the state, local units of government and individuals;
● An estimate of the total annual implementation and compliance costs, which will be expressed as a single dollar amount, that will be expected to be absorbed by businesses, local units of government or members of the public, and which will include an agency determination of whether these costs will exceed $3.0 million over a two-year period; and
In addition, the bill requires state agencies to consult and solicit information from businesses, business associations, local governmental units, state agencies or institutions, and members of the public who may be affected by the proposed rules and regulations or who may provide relevant information.
Approval Process by the Director of the Budget
Prior to an agency submitting a proposed rule and regulation to the secretary of administration and the attorney general, as required by law, the agency will send the proposed rule and regulation to the director of the budget, who will conduct an independent analysis, using the factors specified above, to determine whether the costs incurred by non-state government entities will be $3.0 million or less over a two-year period. The director will approve the proposed rule and regulation for submission to the secretary and attorney general if it is determined the impact will be less than or equal to $3.0 million. If the impact exceeds $3.0 million, the director may either disapprove the proposed rule and regulation or approve it, provided the agency conducted a public hearing prior to submitting the proposed rule and regulation and found the costs have been accurately determined and will be necessary for achieving legislative intent.
Starting with the 2019 Legislative Session, the director of the budget will submit an annual report to the legislature and the joint committee that will include the text of each rule and regulation reviewed, the final economic impact statement, and a summary of the analysis supporting the director’s decision. If the legislature is in session, the director will submit a separate report to the legislature and the joint committee regarding the director’s decision involving a proposed rule and regulation determined to cost more than $3.0 million over a two-year period.
Composition of the State Rules and Regulations Board
The bill amends statutes governing the appointment of members to the state board. The bill adds a member of the minority party to the membership of the state board, along with the chairperson of the Senate Committee on Ways and Means (in even-numbered years) or the chairperson of the House Committee on Appropriations (in odd-numbered years). Under the provisions of the bill, the new minority party member of the state board will be either the ranking minority member of the joint committee or a member of the joint committee appointed by the minority leader of the same legislative chamber as the joint committee chairperson.
Composition and Powers of the Joint Committee on Administrative Rules and Regulations
A ranking minority member will be designated for the joint committee by the minority leader of the senate or house, as will be applicable, so that the chairperson and the ranking minority member will be from the same chamber. Following each of its meetings where comments, recommendations, and concerns are expressed while reviewing proposed rules and regulations, the joint committee will issue a report to the legislature. The report will be made available to each agency that had proposed rules and regulations. If it will be impractical to finalize a report in time for an agency’s public hearing on the proposed rules and regulations, a preliminary report will be made available to the agency. In that case, the preliminary report will be made part of the final report, and it will be made available to each agency.
In 2021, the Legislative Post Audit Committee will direct the Legislative Division of Post Audit to conduct an audit that studies:
● The accuracy of economic impact statements submitted by state agencies for the preceding seven years;
● The impact the director’s review has had on the accuracy of economic impact statements; and
● Whether the $3.0 million threshold is the appropriate level to trigger an additional public hearing.
The bill becomes effect on publication in the Kansas Register.
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Posted By Joseph N. Molina III,
Tuesday, May 22, 2018
Updated: Tuesday, May 22, 2018
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School Finance Law & Lawsuit
At 9:00 a.m. on Tuesday, May 22nd the Kansas Supreme Court gaveled in to hear arguments on whether the newly passed school finance bill was constitutional. That bill, Sub for SB 423, is the focal point of arguments and the ultimate decision will determine whether schools reopen this fall.
This hearing is the culmination of a lawsuit filed in 2010 by several Kansas school districts. The Kansas Supreme Court has until June 30th—a self-imposed deadline—to render a decision. The options are simple: find the law constitutional and close the case, or find the law unconstitutional and close schools. There might be an alternative where the law is found unconstitutional, but the Court gives the Legislature more time to fix those issues. No one can predict the outcome.
Sub. for SB 423 is a complex bill that crafts a new school finance formula among other policy provisions. The Kansas Legislative Research Department has provided the following summary of the bill:
K-12 School Finance; Amendments to the Kansas School Equity and Enhancement Act; Sub. for SB 423
Sub. for SB 423 makes appropriations to the Kansas State Department of Education (KSDE) for FY 2019. This bill also creates a new pilot program for the Mental Health Intervention Team between school districts and community mental health centers (CMHCs). In addition, the bill makes several amendments to the Kansas School Equity and Enhancement Act (KSEEA), including amendments to the Base Aid for Student Excellence (BASE), pre-school-aged at-risk students, the Local Option Budget (LOB), various weightings in the school finance formula, the State Board of Education’s (KSBE) accreditation system, school district funding requirements, and the schedule for audits to be completed by the Legislative Division of Post Audit (LPA). The bill also amends statutes relating to capital outlay funds and school district capital improvements.
The bill includes an introductory statement stating the State’s educational interests concern the areas of social-emotional learning, kindergarten readiness, individual plans of study, graduation, and post-secondary success, and the State addresses such interests by providing support and services both in the classroom and in the community. Further, the introductory statement summarizes appropriations for K-12 education, as well as appropriations for support services provided by other state agencies and institutions for students from birth to graduation.
FY 2019 Appropriations
The bill appropriates $26.0 million, all from the State General Fund (SGF), for increased State Foundation Aid payments. The bill also appropriates $32.4 million for increased Special Education Services Aid payments and $6.0 million for increased Supplemental State Aid (LOB State Aid) payments, all from the SGF.
The bill appropriates $2.8 million, all from the SGF, to provide the ACT and three ACT WorkKeys assessments required to earn a national career readiness certificate to each student enrolled in grades 9-12. No such student is required to pay any fees or costs, and no school district is required to provide more than one exam and three assessments per student. Further, the bill appropriates $500,000 for the mentor teacher program, all from the SGF.
The bill appropriates $10.0 million, all from the SGF, for the first year of a Mental Health Intervention Team pilot program between school districts and CMHCs for FY 2019, including $7.5 million for the operation of the pilot program and $2.5 million for the one-time purchase of a database. Upon the certification of memorandums of understanding between participating school districts and CMHCs, the bill requires the transfer of $1.5 million from KSDE to the Kansas Department for Aging and Disability Services (KDADS) to provide treatment and services for students under the pilot program who are uninsured or underinsured.
The bill appropriates $15,000, all from the SGF, to implement the Jobs for America’s Graduates–Kansas (JAG-K) pilot program for foster children in the Wichita school district (USD 259), the Topeka school district (USD 501), and the Kansas City school district (USD 500).
Mental Health Intervention Team Pilot Program
The bill creates the Mental Health Intervention Team pilot program between participating school districts and CMHCs for FY 2019. School districts will enter memorandums of understanding with participating CMHCs and the appropriate state agencies. The mental health intervention teams will be composed of school liaisons employed by the school district, and clinical therapists and case managers employed by the CMHC.
The following will participate in the program:
● Twenty-three schools in the Wichita school district (USD 259); ● Twenty-eight schools in the Topeka school district (USD 501); ● Ten schools in the Kansas City school district (USD 500); ● Five schools in the Parsons school district (USD 503); ● Four schools in the Garden City school district (USD 457); and ● Nine schools served by the Central Kansas Cooperative in Education.
The bill requires the Director of the Division of Health Care Finance of the Kansas Department of Health and Environment to certify to the Director of the Budget and the Director of Legislative Research the aggregate amount of expenditures for FY 2019 for treatment provided to students under the pilot program or provided based on a referral from such program.
Base Aid for Student Excellence
The bill amends the BASE for five years beginning in school year 2018-2019. The new BASE amounts are: ● School year 2018-2019, $4,900; ● School year 2019-2020, $5,061; ● School year 2020-2021, $5,222; ● School year 2021-2022, $5,384; and ● School year 2022-2023, $5,545.
Beginning in school year 2023-2024, the BASE will increase by the average percentage increase in the Consumer Price Index for all urban consumers in the Midwest region during the three immediately preceding school years. SB 19 (2017) provided for inflationary increases beginning in school year 2019-2020.
The bill amends the definition of “preschool-aged at-risk student” to allow districts to expand their programs to include three-year-old children.
Local Option Budget
Use of LOB
The bill requires each school district to adopt an LOB equal to 15.0 percent of the school district’s Total Foundation Aid. The amount, along with the LOB State Aid attributable to that required LOB, will be included in a district’s Local Foundation Aid. The required LOB dollars will be included in the BASE amount, and the bill revises the BASE to reflect this increase.
Beyond the required LOB amount, school districts may adopt an LOB up to 27.5 percent of a district’s Total Foundation Aid on the action of local school boards. The maximum LOB amount a school district may adopt is 30.5 percent of Total Foundation Aid, which is subject to a protest petition.
The Total Foundation Aid amount used for LOB purposes divides the total Special Education Services Aid received by a school district by 85.0 percent of the BASE. The resulting quotient is then used to calculate a school district’s Total Foundation Aid.
Further, the bill requires school districts to transfer from the LOB an amount proportional to the amounts of its Total Foundation Aid attributable to the at-risk and bilingual weightings to their at-risk and bilingual funds.
The bill voids any resolution providing LOB authority in excess of 30.0 percent that was adopted by a local school board prior to July 1, 2017, under the provisions of the Classroom Learning Assuring Student Success Act and not submitted to the electors of the school district for approval. Any school district affected by this provision will be required to adopt a new resolution subject to protest petition to adopt an LOB above 27.5 percent.
The bill increases the protest petition requirements to challenge an LOB increase above 27.5 percent from 5.0 percent of a school district’s qualified voters in 30 days to 10.0 percent of voters in 40 days.
The bill requires any school board seeking to raise its LOB authority for the succeeding school year to notify KSBE of the intended percentage increase in its LOB authority by April 1 of the current school year. School boards are prohibited from adopting an LOB in excess of the authority stated in its notice submitted to KSBE. KSBE is required to submit all such notifications to the Legislature. The notification requirement takes effect for any planned increases in LOB authority during school year 2019-2020.
LOB State Aid
The bill changes the process for calculating LOB State Aid from a school district’s LOB for the immediately preceding school year to a school district’s current-year LOB.
The bill amends the transportation weighting in the KSEEA. The transportation weighting will be calculated based on a per capita allowance based on a school district’s density figure, which is the area of a school district in square miles divided by the number of transported students. The bill also provides for a statutory minimum level of transportation funding; provides for per capita allowances based on a cost factor of 5.0 for students more than 2.5 miles away from their school (prior law provided for a cost factor of 2.8); and limits the proportion of a school district’s State Foundation Aid attributable to the transportation weighting to being no more than 110.0 percent of a school district’s total transportation expenditures for the immediately preceding school year.
At-Risk and Other Weightings
The bill removes language that provides for a 10.0 percent minimum for the at-risk student weighting. The bill also delays to July 1, 2020, the sunset on the provision in the high density at-risk weighting that allows for calculation of the weighting at the school-building level.
The bill changes the use of the preceding year’s data to use of the current year’s data for the bilingual and career and technical education (CTE) weightings and repeals the July 1, 2019, sunset for the CTE weighting.
KSBE Accreditation System
The bill requires KSBE to establish rigorous accountability measures in the areas of social-emotional learning, kindergarten readiness, individual plans of study, graduation, and postsecondary success. The bill requires such accountability measures to be applied at the school district level and the school building level, and both KSBE and local school boards are required to publish such accountability measures on their websites.
The bill also requires any corrective action plan required by KSBE for a school district not meeting accreditation requirements, and any subsequent reports regarding the implementation of such a corrective action plan, to be published on the websites of KSDE and such school district. In addition, the bill requires the superintendent, or the superintendent’s designee, of any school district not meeting accreditation requirements to appear before the House Committee on Education and the Senate Committee on Education during the same school year in which the school district is not accredited. Such school district is required to provide a report to the House and Senate education committees on the challenges to the district regaining accreditation.
School District Funding Reporting Requirements
The bill requires KSDE to include the following in the annual school district funding reports:
● Expenditures and fund transfers from the LOB for the following: ○ At-risk education programs and services; ○ Preschool-aged at-risk education programs and services; ○ Bilingual education programs and services; ○ CTE programs and services; ○ Special education and related services; and ○ Virtual school programs and services; and ● Each school district’s total bonded indebtedness.
Performance Audit Schedule—Legislative Post Audit
The bill makes several changes to the schedule for the performance audits to be completed by LPA. The new schedule is:
● FY 2019, special education and related services; ● FY 2020, at-risk education funding; ● FY 2021, cost-function analysis of statewide education performance; ● FY 2022, bilingual education funding; ● FY 2023, virtual school programs; and ● FY 2024, cost-function analysis of statewide education performance.
The bill removes from the schedule a cost-function analysis that was to be performed in 2019. The remaining cost-function analyses will not include special education and related services. The bill also removes two performance audits to identify best practices in successful schools that were to be performed in 2021 and 2026.
Use of Capital Outlay Funds
The bill eliminates the provision of current law that allows school districts to expend capital outlay funds on utilities and property and casualty insurance.
School District Capital Improvements
The bill amends current provisions that allow KSBE to approve an application for a bond election only if approval does not result in the aggregate amount of all general obligation bonds approved by the KSBE for such school year exceeding the aggregate principal amount of bonds retired by districts in the state in the preceding year (aggregate principal amount). The bill provides that for an application in excess of $175.0 million, KSBE will apply an amount of $175.0 million when determining whether the aggregate principal amount has been exceeded. Additionally, commencing in school year 2017-2018, KSBE is required to determine the aggregate principal amount by adjusting the aggregate principal amount by the five-year compounded producer price index industry data for new school buildings as reported by the Bureau of Labor Statistics.
The bill takes effect upon publication in the Kansas Register. However, all provisions other than the use of current year data for the bilingual and CTE weighting will be effective on and after July 1, 2018.
Please note: The above information was taken from Kansas Legislative Research Department’s 2018 Supplement to Preliminary Summary of Legislation • 2018 Kansas Legislature • April 12, 2018
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Posted By Joseph N. Molina III,
Monday, May 14, 2018
Updated: Monday, May 14, 2018
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The 2018 session was filled with drama. School finance dominated the headlines from the opening gavel but many other less controversial topics were proposed, debated and ultimately passed. The Kansas Legislature introduced 462 Senate bills compared to 799 House bills. Together, the chambers proposed 45 concurrent resolutions (30 by the House/15 by the Senate). They also discussed 158 simple resolutions with the Senate outpacing the House 95 to 63 respectively.
To date, 131 bills have passed into law. Most of these bills were stand-alone proposals that worked their way thru the legislative process without much political tinkering, but there are also several bundled bills that need to be unpacked to determine what was signed into law.
I will highlight these bills over the next several weeks, so you can better understand how the law has changed.
Let’s begin with House Sub for SB 374 – Driving Under the Influence
House Sub. for SB 374 amends law concerning driving under the influence of alcohol, drugs, or both (DUI). Specifically, the bill amends statutes governing the crimes of operating or attempting to operate a commercial motor vehicle under the influence (commercial DUI); implied consent; and tests of blood, breath, urine, or other bodily substance. The bill also repeals the crime of test refusal.
Legislative Intent - The bill states the Legislature’s intent regarding comparability of an out-of-jurisdiction offense to a Kansas offense shall be liberally construed to allow comparable offenses, (regardless of whether the elements are identical to or narrower than the corresponding Kansas offense), for the purposes of determining a person’s criminal history. It also indicates the Legislature intends to include—but does not limit such offenses to—convictions under specified statutes in Missouri, Oklahoma, Colorado, and Nebraska, as well as a Wichita municipal ordinance.
Commercial DUI - The bill amends language in the commercial DUI implied consent statute to state that a person who drives a commercial motor vehicle “consents” to take a test or tests of that person’s blood, breath, urine, or other bodily substance. Current law states a person is “deemed to have given consent” to tests of blood, breath, or urine. The bill amends the commercial DUI statute to specify that a person commits the crime if the person commits an offense “otherwise comparable” to DUI, as defined in Kansas law.
Commercial DUI and DUI Changes - The bill amends provisions in the commercial DUI and DUI statutes concerning supervision upon release from imprisonment. If an offender for whom a warrant has been issued by the court alleging a violation of supervision cannot be found in order to serve the warrant, that person will be considered a fugitive from. If it is found the offender has violated the provisions of this supervision, the court determines whether the time from the issuing of the warrant to the date of the court’s determination of an alleged violation, or any part of it, is to be counted as time served on supervision. Further, the bill allows the term of supervision to be extended at the court’s discretion beyond one year. Any violation of the conditions of such extended term of supervision may subject such person to the revocation of supervision and imprisonment in jail of up to the remainder of the original sentence, not the term of the extended supervision. Within both statutes, the bill amends the one-month imprisonment enhancement for convicted persons who had one or more children under the age of 14 in the vehicle at the time of the offense. The bill specifies the enhancement applies to “any person 18 years of age or older” when one or more children under the age of 18 are in the vehicle at the time of the offense.
DUI Implied Consent - The bill amends language in the DUI implied consent statute to state that a person who operates or attempts to operate a vehicle “may be requested” to submit to one or more tests of the person’s blood, breath, urine, or other bodily substance. The bill removes language stating a dead or unconscious person shall be deemed not to have withdrawn consent. The bill adds language requiring the test to be administered at the direction of a law enforcement officer, and the law enforcement officer determines which type of test is to be conducted or requested. This replaces language requiring a law enforcement officer to request the person to submit to testing after providing required notice (described below) and to select the test or tests to be completed. The bill removes language requiring law enforcement to request a person to submit to a test deemed consented to if at the time of the request the officer has reasonable grounds to believe the person was DUI. Instead, the bill adds language stating one or more tests may be required of a person when, at the time of the request, a law enforcement officer has probable cause to believe the person has committed the crime of DUI. The bill also replaces “reasonable grounds” with “probable cause” elsewhere in the bill to reflect this change in the required standard.
The bill also revises language in this subsection to allow a test when a person has been involved in a motor vehicle accident or collision resulting in personal injury or death. This new language replaces provisions that distinguish between personal injury and serious injury or death when the operator may be cited for any traffic offense. The bill removes a definition for “serious injury” and other references to these provisions to reflect this change.
The bill removes “accident” from language allowing a law enforcement officer directing administration of a test to act on the basis of the collective information available to law enforcement officers involved in the investigation or arrest.
DUI Testing Notice - When Requesting a Test and Exceptions. The bill removes provisions governing the oral and written notice required to be given to a person when requesting a test or tests of blood, breath, urine, or other bodily substance. Instead, the bill adds two new subsections governing notice for tests of breath or other bodily substance other than blood or urine and for tests of blood and urine. The notice for tests of breath or other bodily substance other than blood or urine states the following: there is no right to consult with an attorney regarding whether to submit to testing, but, after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing; if the person refuses to submit to and complete the test or tests, or if the person fails a test, the person’s driving privileges will be suspended for a period of at least 30 days and up to a year; refusal to submit to testing may be used against the person at any trial or hearing on a charge arising out of DUI; and the results of the testing may be used against the person at any trial or hearing on a DUI charge. The notice for tests of blood or urine states the following: if the person refuses to submit to and complete the test or tests, or if the person fails a test, the person’s driving privileges will be suspended for a period of at least 30 days and up to a year; the results of the testing may be used against the person at any trial or hearing on a DUI charge; and after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing. The bill states nothing in this section is to be construed to limit the right of a law enforcement officer to conduct any search of a person’s breath or other bodily substance, other than blood or urine, incident to a lawful arrest pursuant to the U.S. Constitution, with or without providing the person the notice outlined above for requesting a test of breath or other bodily substance, other than blood or urine, nor limit the admissibility at any trial or hearing of alcohol or drug concentration testing results obtained pursuant to such a search. Additionally, the bill states nothing in this section is to be construed to limit the right of a law enforcement officer to conduct or obtain a blood or urine test of a person pursuant to a warrant under the Kansas Code of Criminal Procedure, the U.S. Constitution, or a judicially recognized exception to the search warrant requirement, with or without providing the person the notice outlined above for requesting a test of blood or urine, nor limit the admissibility at any trial or hearing of alcohol or drug concentration testing results obtained pursuant to such a search. Similarly, the bill states nothing in this section is to be construed to limit the admissibility at trial of test results obtained pursuant to a judicially recognized exception to the warrant requirement.
The bill amends a subsection stating no test results shall be suppressed because of technical irregularities in the consent or notice required. Instead, the bill states no test results shall be suppressed because of irregularities not affecting the substantial rights of the accused in the consent or notice authorized. The bill replaces notice “required” with notice “authorized” elsewhere in the bill consistent with this change.
The bill states failure to provide any or all notice is not an issue or defense in any action other than an administrative action regarding the subject’s driving privileges.
Immunity of Persons and Entities Involved in Testing - The bill adds paramedics to and adds “advanced” to the term “emergency medical technicians” in the list of persons and entities who have immunity for participating in good faith in the obtaining, withdrawal, collection, or testing of blood, breath, urine, or other bodily substance under specified circumstances. The bill adds “as otherwise authorized by law” to the circumstances under which this immunity applies.
This summary of House Sub for SB 374 was drafted by the Kansas Legislative Research Department. It can be found in Summary of Legislation PDF - http://www.kslegresearch.org/KLRD-web/Publications/SummaryofLegislation/PreliminarySummaries/2018-preliminary-summary-supp-II.pdf
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Posted By Joseph N. Molina III,
Monday, May 7, 2018
Updated: Monday, May 7, 2018
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The Kansas Legislative Session ended Friday, May 4th. The last big issue facing the Kansas House was a large tax cut passed earlier by the Kansas Senate 21-19. That bill failed on a 59-59 vote. With little else holding them in Topeka both chambers adjourned. This leaves a bit of an opening for Gov. Coyler should he decide to veto any bills. Those potential vetoes would go unchallenged since the legislature has no formal way of overriding them know. So we will have to wait and see if the governor uses that power.
There was some good news during veto session. For instance, both chambers passed a budget last week that contains raises for judges and nonjudicial staff. That bill, House Sub for SB 109, passed the House 98-23 and the Senate 26-14. The legislature agreed to 5% for nonjudicial staff and 2% for judges.
See; State Finance Council. Add $27.7 million, including $14.9 million from the State General Fund, to provide salary adjustments equivalent to two steps on the Statewide Pay Matrix for employees who did not receive a salary adjustment as part of the 2017 Salary Initiatives, one step for employees who received approximately one step on the statewide pay matrix in FY 2018, two steps for uniformed corrections officers, two steps for non-judge employees within the Kansas Judicial Branch, and a 2.0 percent salary adjustment for judges and justices. This adjustment excludes Kansas State legislators, Board of Regents and Regents Institutions, Kansas Highway Patrol officers, employees of the Kansas Bureau of Investigation included in the Recruitment and Retention Plan, and teachers and licensed personnel and employees and the Kansas State School for the Deaf and the Kansas State School for the Blind.
2018 house Sub for SB 109 Bill Explainer, PG 5.
Also, HCR 5029, Constitutional amendment concerning school finance was not voted on during the veto session. Since the K12 bill and the cleanup bill passed last week, there was not much appetite to debate that issue. However, should the Supreme Court strike down the recently passed school finance bill, this may reappear in a special session.
Both chambers have also passed two KBA-introduced bills dealing with arbitration. Last session, the KBA introduced the Uniform Arbitration Act of 2000 and ADR in trust instrument proposals. Both passed the House in 2017 but stalled in the Senate because of teacher due process concerns. During Veto Session an opportunity presented itself to decouple the teacher due process concern from our arbitration bills and create a clean bundled bill. That bill, HB 2571, passed both chambers unanimously and is headed to the Governor. Rep. Blaine Finch was instrumental in this effort.
There was also a little controversial news!
The House and Senate passed HB 2481 concerning the adoption protection act. The bill aims to codify current practices of allowing adoption agencies and foster care placement agencies to refuse service to certain individuals due to a sincerely held religious belief. The vote in both chambers was relatively close, 24-16 in the Senate, 63-58 in the House. This measure failed during the regular session 58-64 in the House. The bill now heads to the governor’s desk who has already indicated he plans to sign it. This was one of the more controversial bills this session.
See also; http://www.kansas.com/news/politics-government/article210442154.html
All eyes will now shift across 10th street to the Kansas Supreme Court to see how they receive the newly crafted school finance law. Many believe the amount added to K12 will not be enough but there is hope that the new money is focused enough on classrooms and kids who need the most help that it just might pass constitutional muster. But those are just guesses at this point. More answers will be provided when the Court takes up the issue on May 22nd. Until then everyone will be getting some much needed rest.
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Posted By Joseph N. Molina III,
Tuesday, May 1, 2018
Updated: Tuesday, May 1, 2018
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Things are in high gear right now as the Kansas Legislature tries to complete its Veto Session work. Each chamber has agreed to its own version of a budget, and conference committee members are now negotiating those differences. There are quite a few, but the big ones include KPERs repayment amounts. The House wants to pay back all $192 million while the Senate proposes only paying back $82 million.
The other big fight is whether Kris Kobach will be able to use state general funds dollars to pay any contempt fines incurred. The House added language prohibiting this type of payment, the Senate wants it out. Kobach has issued a letter saying the amendment is illegal, and his office may sue to have it removed.
This Veto Session has also produced language to “fix” the $80 million K12 distribution issue. The House Sub for SB 61 fix stems from the school finance bill passed prior to legislators going on break. That bill, Sub for SB 423, had a complex issue that overlooked how some funds would be distributed. To be clear no new money was added. The legislature just redirected how some funds would be distributed. House Sub for SB 61 heads to the governor’s desk now.
See also; https://kasb.org/0430/
It is also important to note that the House budget proposal contains new money for raises for both judicial staff and nonjudicial personnel. The House added $7.9 million dollars for raises. 2.5% of which will go to judges. Rep. Brad Ralph (R-Dodge City) was instrumental in the budget process regarding these raises. This issue is sure to come up in conference. The Senate originally offered to include $200K to renovate court offices but no money for raises.
The bulk of the week will involve conference committee work followed by conference committee report votes. Members of the Judiciary Conference Committee have made significant strides since their return. They have discussed more than 30 bills and agreed to more than half of them. Remaining are the complex DUI bill, the adoption bill and wrongful conviction, to name but a few.
Some bills have already been passed into law. To view those, please visit:
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Posted By Joseph N. Molina III,
Tuesday, April 17, 2018
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This week we look at a few bills that have been signed by the governor. All bills will become effective July 1, 2018 unless otherwise stated. These are simple summaries drafted by the Kansas Legislative Research Department. You can find full summaries and/or the entire bill/law by visiting www.kslegilsature.org.
Involuntary Manslaughter—DUI; Aggravated Battery—DUI; HB 2439
HB 2439 amends the definition of the crime of involuntary manslaughter to include the killing of a human being committed in the commission of, or attempt to commit, or flight from driving under the influence of alcohol or drugs (DUI) while:
● In violation of any restriction imposed on such person’s driving privileges for DUI;
● The person’s driving privileges are suspended or revoked for DUI; or
● The person has been deemed a “habitual violator,” as defined in KSA 2017 Supp. 8-285, including at least one DUI violation.
Violation of this provision is a severity level 3, person felony. This new offense is added to the list of offenses for which juvenile records or files may not be expunged. It also is added to the list of offenses that the Department of Corrections is required to report when committed by a sex offender in the custody of the Secretary of Corrections.
Giving a False Alarm; HB 2581
HB 2581 amends law related to the crime of giving a false alarm. The common name of this proposal was the “Anti-Swatting bill”. The bill renames the offense as “making an unlawful request for emergency service assistance” and its definition is amended to include transmitting or communicating false or misleading information in any manner to request emergency service assistance, including law enforcement, fire, medical, or other emergency service knowing at the time there is no reasonable ground for believing assistance is needed.
The crime continues to be a Class A nonperson misdemeanor, except including false information that violent criminal activity or immediate threat to a person’s life or safety has or is taking place continues to be a severity level 7, nonperson felony, except in the following circumstances added by the bill:
● If bodily harm results from the response by emergency services, the offense is a severity level 6, person felony;
● Great bodily harm resulting from the response by emergency services is a severity level 4, person felony; and
● Death resulting from the response by emergency services is a severity level 1, person felony.
The bill clarifies use of an electronic device or software to alter, conceal, or disguise the source of the request or the identify of the person making such request continues to be a level 10, nonperson felony. The bill provides that it shall not be a defense that the person who suffered bodily harm, great bodily harm, or death contributed, or others contributed, to such person’s harm or death. Persons who make an unlawful request for emergency service assistance may also be prosecuted for any form of homicide.
Asbestos Trust Claims Transparency Act; HB 2457
HB 2457 enacts the Asbestos Trust Claims Transparency Act (Act), which shall apply to all asbestos claims (as defined in the Silica and Asbestos Claims Act) filed on or after July 1, 2018.
The bill requires the plaintiff to provide certain statements and materials no later than 30 days prior to the date the court establishes for the completion of all fact discovery. Specifically, the plaintiff is required to investigate, file all asbestos trust claims that can be made by the plaintiff, and provide a sworn statement indicating the investigation has been conducted and all possible claims filed. The plaintiff is required to provide all parties with all trust claim materials, accompanied by a custodial affidavit from the asbestos trust. If the plaintiff’s asbestos trust claim is based on exposure through another individual, the plaintiff is required to produce all trust claim documents submitted by or on behalf of the other individual to any asbestos trust to which the plaintiff has access. The bill also requires the plaintiff to supplement the information and materials within 30 days after the plaintiff, or a person on the plaintiff’s behalf, supplements an existing asbestos trust claim, receives additional information or materials related to such a claim, or files an additional asbestos trust claim.
Civil Asset Forfeiture; Kansas Asset Seizure and Forfeiture Repository; HB 2459
HB 2459 creates, and amends law related to civil asset forfeiture, as follows.
The bill creates a new section within the Kansas Standard Asset Seizure and Forfeiture Act (SASFA) requiring the Kansas Bureau of Investigation (KBI) to establish, on or before July 1, 2019, the Kansas Asset Seizure and Forfeiture Repository (Repository), which will gather information concerning each seizure for forfeiture made by a seizing agency pursuant to SASFA. The information gathered will include, but not be limited to:
● The name of the seizing agency or name of the lead agency if part of a multijurisdictional task force and any applicable agency or district court case numbers for the seizure;
• The county where and date and time the seizure occurred, a description of the initiating law enforcement activity leading to the seizure, and the specific location where the seizure occurred;
● 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 bill requires the KBI to maintain the Repository and an associated public website and requires the KBI to promulgate rules and regulations before July 1, 2019, to implement the new section.
On and after July 1, 2019, each seizing agency must report the specified information concerning each seizure for forfeiture to the Repository, with the prosecuting attorney submitting information to the seizing agency within 30 days after the final disposition of the forfeiture, and the seizing agency submitting the required information to the Repository within 60 days after the final disposition of the forfeiture.
On or before February 1 of each year, beginning in 2020, each law enforcement agency (agency) must annually compile and submit a forfeiture fund report to the Repository. If the agency is a state agency, the report must include the agency’s state forfeiture fund balance on January 1 and December 31 of the preceding calendar year and the total amount of the deposits and a listing, by category, of expenditures during the preceding calendar year. If the agency is a city or county agency, the report must include the agency’s special law enforcement trust fund balance on January 1 and December 31 of the preceding calendar year and the total amount of deposits and a listing, by category, of expenditures during the preceding calendar year.
The reports for each agency must separate and account for deposits and expenditures from proceeds from forfeiture credited to the agency’s fund pursuant to the SASFA section governing disposition of forfeited property, deposits and expenditures from proceeds from forfeiture actions under federal law, and amounts held by the agency related to pending forfeiture actions under SASFA.
Civil Immunity for Entry into Vehicle to Remove a Vulnerable Person or Domestic Animal; HB 2516
HB 2516 creates law providing for immunity from civil liability for damage to a motor vehicle for a person who enters the vehicle, by force or otherwise, to remove a vulnerable person or domestic animal, if the person entering:
● Determines the vehicle is locked or there is otherwise no reasonable method for the vulnerable person or domestic animal to exit the vehicle without assistance;
● Has a good faith and reasonable belief, based upon known circumstances, that entry is necessary because the vulnerable person or domestic animal is in imminent danger of suffering harm;
● Ensures law enforcement is notified or calls 911 before or immediately after entering the vehicle;
● Uses no more force to enter the vehicle and remove the vulnerable person or domestic animal than is necessary; and
● Remains with the vulnerable person or domestic animal in a safe location in reasonable proximity to the vehicle until law enforcement or a first responder arrives.
The bill defines “domestic animal” to include a dog, cat, or other animal that is domesticated and may be kept as a household pet. This does not include livestock, as defined elsewhere in statute, or other farm animals. The bill defines “vulnerable person” to mean an adult whose ability to perform the normal activities of daily living or to provide for such adult’s own care or protection is impaired or a minor. The bill defines “motor vehicle” by reference to the definition in the statutes governing vehicle registration.
Protection from Abuse Act; Protection from Stalking or Sexual Assault Act; Transfer of Wireless Telephone Number; HB 2524
HB 2524 creates law allowing a court, at a hearing on a petition filed pursuant to the Protection from Abuse Act (PFAA) or Protection from Stalking or Sexual Assault Act (PFSSAA), to issue an order directing a wireless services provider (provider) to transfer the billing responsibility for and rights to the wireless telephone number or numbers to the petitioner if the petitioner is not the account holder, to ensure the petitioner and any minor children in the care of the petitioner may maintain their existing wireless telephone numbers. The forms for the petition and order shall be prescribed by the Judicial Council and supplied by the clerk of the court.
This order shall be a separate order directed to the provider and must list the name and billing telephone number of the account holder, the name and contact information of the person to whom the telephone number or numbers will be transferred, and each telephone number to be transferred.
If the order is made in conjunction with a PFSSAA petition, the court must ensure the petitioner’s address and telephone number are not disclosed to the account holder. If the order is made in conjunction with a petition filed under the PFAA, the court must direct that the petitioner’s information remain confidential if the court finds the petitioner’s address, telephone number, or both need to remain confidential.
Certain Death and Related Benefits Allowed by the Workers Compensation Act; Senate Sub. for HB 2184
Senate Sub. for HB 2184 increases certain death and related benefits allowed by the Workers Compensation Act (Act).
When an employee dies at the workplace, the Act allows for an initial payment to be shared between the surviving spouse and the dependent children. The spouse receives 50.0 percent, and the children, if applicable, receive 50.0 percent. The bill increases the initial payment from $40,000 to $60,000. After the initial payment, the Act generally allows for those dependents to receive weekly payments, subject to minimum and maximum amounts that are specified by law. Under the Act, a wholly dependent child may receive subsequent weekly benefits until the age of 18 or age of 23, provided the child is either incapable of earning wages or enrolled as a full-time student in a college or vocational institution. The bill clarifies that benefits for a dependent child 18 years old continue until May 30 of the child’s senior year of high school or until the child turns 19, whichever happens earlier. If a deceased employee leaves behind a spouse, dependent children, or both, then no other dependents or heirs may receive benefits under the Act.
The remainder of the bill revises certain minimum and maximum benefits payable for other individuals. Pursuant to the Act, other individuals who were wholly dependent upon a deceased employee’s earnings are eligible for a benefit. The bill increases the maximum benefit from $18,500 to $100,000. In situations where a deceased employee leaves behind persons who were partially dependent, the minimum benefit increases from $2,500 to $25,000, and the maximum benefit increases from $18,500 to $100,000.
The Act allows legal heirs to receive a lump-sum payment of $25,000, but they are exempt from receiving that benefit if there is a life insurance policy that was procured by an employer worth not less than $18,500 and with beneficiaries designated by the deceased employee. The bill increases the lump-sum benefit to heirs from $25,000 to $100,000. However, if the employer procured a life insurance policy in an amount not less than $50,000, then the benefit paid to the heirs is reduced by the amount of the life insurance, up to $100,000.
The maximum amount paid by the employer for burial expenses increases from $5,000 to $10,000. When a court-appointed conservator is necessary, the maximum costs paid by an employer increases from $1,000 to $2,500.
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