1997 Session Laws of Kansas: Chapter 161

1142 1997 Session Laws of Kansas Ch. 161

Chapter 161

HOUSE BILL No. 2278

An Act concerning the background of certain persons for employment purposes; concerning
the department of health and environment; restrictions on persons operating adult care homes and home health agencies and working for such homes or agencies; employment checks by community service providers, mental health centers and independent living agencies; amending K.S.A. 39-1404, 39-1411 and 39-1434 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

New Section 1. (a) On and after July 1, 1998, no person shall know-
ingly operate an adult care home if, in the adult care home, there works
any person who:

(1) (A) Has a felony conviction for a crime which is described in
articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated and
acts amendatory thereof or supplemental thereto, except K.S.A. 21-3605
and amendments thereto, or a conviction of an attempt under K.S.A.
21-3301 and amendments thereto to commit any such act, or (B) has
been convicted of any act which is described in K.S.A. 21-4301 or 21-

Ch. 161 1997 Session Laws of Kansas 1143

4301a and amendments thereto or similar statutes of other states or the
federal government;

(2) has been adjudicated a juvenile offender because of having com-
mitted an act which if done by an adult would constitute the commission
of a felony and which is a crime against persons, is any act described in
articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated and
acts amendatory thereof or supplemental thereto except K.S.A. 21-3605
and amendments thereto, or is any act described in K.S.A. 21-4301 or
21-4301a and amendments thereto or similar statutes of other states or
the federal government;

(3) has committed an act of physical, mental or emotional abuse or
neglect or sexual abuse as validated by the department of social and re-
habilitation services pursuant to K.S.A. 38-1523 and amendments thereto
and (A) the person has failed to successfully complete a corrective action
plan which had been deemed appropriate and approved by the depart-
ment of social and rehabilitation services, or (B) the record has not been
expunged pursuant to rules and regulations adopted by the secretary of
social and rehabilitation services;

(4) has had a child declared in a court order in this or any other state
to be deprived or a child in need of care based on an allegation of physical,
mental or emotional abuse or neglect or sexual abuse;

(5) has had parental rights terminated pursuant to the Kansas juvenile
code or K.S.A. 38-1581 through 38-1584, and amendments thereto, or a
similar statute of other states;

(6) has signed a diversion agreement pursuant to K.S.A. 22-2906 et
seq., and amendments thereto, or pursuant to K.S.A. 38-1635 and amend-
ments thereto involving a charge of child abuse or a sexual offense;

(7) has been found by the department of health and environment or
the department of social and rehabilitation services under K.S.A. 39-1401
et seq. and amendments thereto to have committed an act of abuse, ne-
glect or exploitation of a resident; or

(8) has been found by the department of social and rehabilitation
services under K.S.A. 39-1430 et seq. and amendments thereto to have
committed an act of abuse, neglect or exploitation of an adult.

(b) No person shall operate an adult care home if such person has
been found to be a disabled person in need of a guardian or conservator,
or both.

1144 1997 Session Laws of Kansas Ch. 161

1433 and amendments thereto and 39-1434 and amendments thereto, in
the possession of the department of health and environment or the de-
partment of social and rehabilitation services concerning persons working
in an adult care home. The secretary shall have access to these records
for the purpose of determining whether or not the adult care home meets
the requirements of this section. The Kansas bureau of investigation may
charge to the department of health and environment a reasonable fee for
providing criminal history record information under this subsection.

(d) For the purpose of complying with this section, the operator of
an adult care home shall request from the department of health and
environment information obtained by the secretary of health and envi-
ronment under subsection (c) and information available under subsection
(c)(4) of K.S.A. 39-936 and amendments thereto, if any, which relates to
a person who works in the adult care home, or is being considered for
employment by the adult care home, for the purpose of determining
whether such person is subject to the provision of this section. For the
purpose of complying with this section, the operator of an adult care home
shall receive from any employment agency which provides employees to
work in the adult care home written certification that such employees are
not prohibited from working in the adult care home under this section.
For the purpose of complying with this section, information relating to
convictions and adjudications by the federal government or to convictions
and adjudications in states other than Kansas shall not be required until
such time as the secretary of health and environment determines the
search for such information could reasonably be performed and the in-
formation obtained within a two-week period. For the purpose of com-
plying with this section, a person who operates an adult care home may
hire an applicant for employment on a conditional basis pending the re-
sults from the department of health and environment of a request for
information under this subsection. No adult care home, the operator or
employees of an adult care home or an employment agency, or the op-
erator or employees of an employment agency, shall be liable for civil
damages resulting from any decision to employ, to refuse to employ or
to discharge from employment any person based on such adult care
home's compliance with the provisions of this section if such adult care
home or employment agency acts in good faith to comply with this sec-
tion.

(e) For the purpose of subsection (a)(3), an act of abuse or neglect
shall not be considered to have been validated by the department of social
and rehabilitation services unless the alleged perpetrator has: (1) Had an
opportunity to be interviewed and present information during the inves-
tigation of the alleged act of abuse or neglect; and (2) been given notice
of the agency decision and an opportunity to appeal such decision to the
secretary and to the courts pursuant to the act for judicial review and civil
enforcement of agency actions.

Ch. 161 1997 Session Laws of Kansas 1145

(f) The secretary of health and environment shall charge each person
requesting information under this section a fee equal to cost, not to ex-
ceed $10, for each name about which an information request has been
submitted to the department under this section.

(g) No person who works for an adult care home and who is currently
licensed or registered by an agency of this state to provide professional
services in the state and who provides such services as part of the work
which such person performs for the adult care home shall be subject to
the provisions of this section.

(h) A person who volunteers in an adult care home shall not be sub-
ject to the provisions of this section because of such volunteer activity.

(i) No person who has been employed by the same adult care home
for five consecutive years immediately prior to the effective date of this
act shall be subject to the provisions of this section while employed by
such adult care home.

(j) The operator of an adult care home shall not be required under
this section to conduct a background check on an applicant for employ-
ment with the adult care home if the applicant has been the subject of a
background check under this act within one year prior to the application
for employment with the adult care home.

(k) This section shall be part of and supplemental to the adult care
home licensure act.

New Sec. 2. (a) On and after July 1, 1998, no person shall knowingly
operate a home health agency if, for the home health agency, there works
any person who:

1146 1997 Session Laws of Kansas Ch. 161

and (A) the person has failed to successfully complete a corrective action
plan which had been deemed appropriate and approved by the depart-
ment of social and rehabilitation services, or (B) the record has not been
expunged pursuant to rules and regulations adopted by the secretary of
social and rehabilitation services;

(5) has had parental rights terminated pursuant to the Kansas juvenile
code or K.S.A. 38-1581 through 38-1584, and amendments thereto, or a
similar statute of other states;

(b) No person shall operate a home health agency if such person has
been found to be a disabled person in need of a guardian or conservator,
or both.

(c) In accordance with the provisions of this subsection (c), the sec-
retary of health and environment shall have access to any criminal history
record information in the possession of the Kansas bureau of investigation
and any report of investigations as authorized by subsection (e) of K.S.A.
38-1523 and amendments thereto in the possession of the department of
social and rehabilitation services or court of this state, or any reports of
investigations, findings or assessments as provided in K.S.A. 39-1402 and
amendments thereto, 39-1404 and amendments thereto, 39-1411 and
amendments thereto, 39-1433 and amendments thereto and 39-1434 and
amendments thereto, in the possession of the department of health and
environment or the department of social and rehabilitation services con-
cerning persons working for a home health agency. The secretary shall
have access to these records for the purpose of determining whether or
not the home health agency meets the requirements of this section. The
Kansas bureau of investigation may charge to the department of health
and environment a reasonable fee for providing criminal history record
information under this subsection.

(d) For the purpose of complying with this section, the operator of a
home health agency shall request from the department of health and
environment information obtained by the secretary of health and envi-
ronment under subsection (c), if any, which relates to a person who works

Ch. 161 1997 Session Laws of Kansas 1147

for the home health agency or is being considered for employment by
the home health agency, for the purpose of determining whether such
person is subject to the provisions of this section. For the purpose of
complying with this section, information relating to convictions and ad-
judications by the federal government or to convictions and adjudications
in states other than Kansas shall not be required until such time as the
secretary of health and environment determines the search for such in-
formation could reasonably be performed and the information obtained
within a two-week period. For the purpose of complying with this section,
a person who operates a home health agency may hire an applicant for
employment on a conditional basis pending the results from the depart-
ment of health and environment of a request for information under this
subsection. No home health agency, the operator or employees of a home
health agency or an employment agency, or the operator or employees
of an employment agency, which provides employees to work for the
home health agency shall be liable for civil damages resulting from any
decision to employ, to refuse to employ or to discharge from employment
any person based on such home health agency's compliance with the
provisions of this section if such home health agency or employment
agency acts in good faith to comply with this section.

(g) No person who works for a home health agency and who is cur-
rently licensed or registered by an agency of this state to provide profes-
sional services in this state and who provides such services as part of the
work which such person performs for the home health agency shall be
subject to the provisions of this section.

(h) A person who volunteers to assist a home health agency shall not
be subject to the provisions of this section because of such volunteer
activity.

(i) No person who has been employed by the same home health
agency for five consecutive years immediately prior to the effective date
of this act shall be subject to the requirements of this section while em-
ployed by such adult care home.

(j) The operator of a home health agency shall not be required under

1148 1997 Session Laws of Kansas Ch. 161

this section to conduct a background check on an applicant for employ-
ment with the home health agency if the applicant has been the subject
of a background check under this act within one year prior to the appli-
cation for employment with the home health agency.

(k) This section shall be part of and supplemental to the provisions
of article 51 of chapter 65 of the Kansas Statutes Annotated and acts
amendatory thereof or supplemental thereto.

New Sec. 3. The secretary of health and environment shall provide
for the implementation of the processing of information requested from
the department of health and environment on an incremental basis. This
implementation shall be completed so that adult care homes and home
health agencies may receive information required under this act no later
than July 1, 1998.

New Sec. 4. (a) A community service provider as defined in K.S.A.
1996 Supp. 39-1803 and amendments thereto, a mental health center as
defined in K.S.A. 65-4432 and amendments thereto and an independent
living agency as defined in K.S.A. 65-5101 and amendments thereto may
request for the purpose of obtaining background information on appli-
cants for employment with such entity information:

(1) From the department of social and rehabilitation services as to
whether such applicant has committed an act of physical, mental or emo-
tional abuse or neglect or sexual abuse as validated by the department of
social and rehabilitation services pursuant to K.S.A. 38-1523 and amend-
ments thereto;

(2) from the department of social and rehabilitation services as to
whether such applicant has been found to have committed an act of abuse,
neglect or exploitation of a resident as contained in the register of reports
under K.S.A. 39-1404 and amendments thereto or an act of abuse, neglect
or exploitation of an adult as contained in the register of reports under
K.S.A. 39-1434 and amendments thereto;

(3) from the department of health and environment as to whether
such applicant has been found to have committed an act of abuse, neglect
or exploitation of a resident as contained in the register of reports under
K.S.A. 39-1411 and amendments thereto;

(4) from the department of health and environment any information
concerning the applicant in the state registry which contains information
about unlicensed employees of adult care homes under K.S.A. 39-936
and amendments thereto.

(b) No community service provider, mental health center or inde-
pendent living agency shall be liable for civil damages to any person re-
fused employment, discharged from employment or whose terms of em-
ployment are affected because of actions taken by the community service
provider, mental health center or independent living agency in good faith
based on information received under this section.

Ch. 161 1997 Session Laws of Kansas 1149

Sec. 5. K.S.A. 39-1404 is hereby amended to read as follows: 39-
1404. (a) The department of social and rehabilitation services or the de-
partment of health and environment upon receiving a report that a resi-
dent is being, or has been, abused, neglected or exploited, or is in a
condition which is the result of such abuse, neglect or exploitation or is
in need of protective services, within 24 hours of receiving such report,
shall initiate an investigation, including a personal visit with the resident
and, within two weeks of receiving such report, shall complete the inves-
tigation to determine if the resident is being or has been abused, ne-
glected or exploited or is in a condition which is a result of such abuse,
neglect or exploitation. The investigation shall include, but not be limited
to, a visit to the named resident and consultation with those individuals
having knowledge of the facts of the particular case. Upon completion of
the investigation of each case, written findings shall be prepared which
shall include a finding of whether there is or has been abuse, neglect or
exploitation, recommended action and a determination of whether pro-
tective services are needed. If it appears that a crime has occurred, the
appropriate law enforcement agency shall be notified by the department
investigating the report.

(b) The secretary of social and rehabilitation services shall maintain
a register of the reports received and investigated by the department of
social and rehabilitation services, the findings, evaluations and the actions
recommended. The register shall be available for inspection by personnel
of the department of social and rehabilitation services. The secretary of
social and rehabilitation services shall forward a copy of any report of
abuse, neglect or exploitation of a resident investigated by the department
of social and rehabilitation services to the secretary of health and envi-
ronment and, in the case of a report of abuse, neglect or exploitation of
a resident of an adult family home, to the secretary of aging.

(c) The report received by the department of social and rehabilitation
services and the written findings, evaluations and actions recommended
shall not be deemed a public record or be subject to the provisions of the
open records act. Except as otherwise provided in this section, or in sec-
tion 4 and amendments thereto the name of the person making the orig-
inal report to the department of social and rehabilitation services or any
person mentioned in such report shall not be disclosed unless the person
making the original report specifically requests or agrees in writing to
such disclosure or unless a judicial proceeding results therefrom. Except
as otherwise provided in this section, no information contained in the
register shall be made available to the public in such a manner as to
identify individuals.

(d) The secretary of social and rehabilitation services shall forward
any finding of abuse, neglect or exploitation alleged to be committed by
a provider of services licensed, registered or otherwise authorized to pro-
vide services in this state to the appropriate state authority which regu-

1150 1997 Session Laws of Kansas Ch. 161

lates such provider. The appropriate state regulatory authority may con-
sider the finding in any disciplinary action taken with respect to the
provider of services under the jurisdiction of such authority.

(e) The department which investigates the report shall inform the
complainant, upon request of the complainant, that an investigation has
been made and, if the allegations of abuse, neglect or exploitation have
been substantiated, that corrective measures will be taken.

Sec. 6. K.S.A. 39-1411 is hereby amended to read as follows: 39-
1411. (a) The secretary of health and environment shall maintain a reg-
ister of the reports received and investigated by the department of health
and environment under K.S.A. 39-1402 and 39-1403, and amendments
to such sections, and the findings, evaluations and actions recommended
by the department with respect to such reports. The findings, evaluations
and actions shall be subject to such notice and appeals procedures as may
be adopted by rules and regulations of the secretary of health and envi-
ronment, which rules and regulations shall be consistent with any require-
ments of state or federal law relating thereto except that the secretary
shall not be required to conduct a hearing in cases forwarded to the
appropriate state authority under subsection (b). The register shall be
available for inspection by personnel of the department of health and
environment as specified by the secretary of health and environment and
to such other persons as may be required by federal law and designated
by the secretary of health and environment by rules and regulations. In-
formation from the register shall be provided as specified in section 4 and
amendments thereto. The secretary of health and environment shall for-
ward a copy of any report of abuse, neglect or exploitation of a resident
of an adult care home to the secretary of aging.

(b) The secretary of health and environment shall forward any finding
of abuse, neglect or exploitation alleged to be committed by a provider
of services licensed, registered or otherwise authorized to provide services
in this state to the appropriate state authority which regulates such pro-
vider. The appropriate state regulatory authority, after notice to the al-
leged perpetrator and a hearing on such matter if requested by the alleged
perpetrator, may consider the finding in any disciplinary action taken with
respect to the provider of services under the jurisdiction of such authority.
The secretary of health and environment may consider the finding of
abuse, neglect or exploitation in any licensing action taken with respect
to any adult care home or medical care facility under the jurisdiction of
the secretary.

(c) If the investigation of the department of health and environment
indicates reason to believe that the resident is in need of protective serv-
ices, that finding and all information relating to that finding shall be for-
warded by the secretary of health and environment to the secretary of
social and rehabilitation services.

Ch. 161 1997 Session Laws of Kansas 1151

(d) Except as otherwise provided in this section, the report received
by the department of health and environment and the written findings,
evaluations and actions recommended shall be confidential and shall not
be subject to the open records act. Except as otherwise provided in this
section, the name of the person making the original report to the de-
partment of health and environment or any person mentioned in such
report shall not be disclosed unless such person specifically requests or
agrees in writing to such disclosure or unless a judicial or administrative
proceeding results therefrom. In the event that an administrative or ju-
dicial action arises, no use of the information shall be made until the
judge or presiding officer makes a specific finding, in writing, after a
hearing, that under all the circumstances the need for the information
outweighs the need for confidentiality. Except as otherwise provided in
this section, no information contained in the register shall be made avail-
able to the public in such a manner as to identify individuals.

Sec. 7. K.S.A. 39-1434 is hereby amended to read as follows: 39-
1434. (a) The secretary of social and rehabilitation services shall maintain
a statewide register of the reports, assessments received and the analyses,
evaluations and the actions recommended. The register shall be available
for inspection by personnel of the department of social and rehabilitation
services and as provided in section 4 and amendments thereto.

(b) Neither the report, assessment or the written evaluation analysis
shall be deemed a public record or be subject to the provisions of the
open records act. The name of the person making the original report or
any person mentioned in such report shall not be disclosed unless the
person making the original report specifically requests or agrees in writing
to such disclosure or unless a judicial proceeding results therefrom. No
information contained in the statewide register shall be made available to
the public in such a manner as to identify individuals.

Sec. 8. K.S.A. 39-1404, 39-1411 and 39-1434 are hereby repealed.

Sec. 9. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 13, 1997.