CHAPTER 95 SENATE BILL No. 129
      An Act concerning the secretary of aging; older Americans act programs; senior care act;
      long-term care programs; department on aging; amending K.S.A. 75-5908, 75-5910, 75-
      5928 and 75-5945 and repealing the existing sections; also repealing K.S.A. 75-5935.

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

Section 1. K.S.A. 75-5908 is hereby amended to read as follows:
75-5908. In addition to powers and duties otherwise provided by law, on
and after July 1, 1977, the secretary shall have the following powers and
duties:

(a) To evaluate all programs, services and facilities for the aged within
the state and determine the extent to which present public or private
programs, services and facilities meet the needs of the aged.

(b) To evaluate and coordinate all programs, services and facilities for
the aging presently furnished by state and federal agencies, and make
appropriate recommendations regarding such services, programs and fa-
cilities to the governor and the legislature.

(c) To function as the sole state agency to develop a comprehensive
plan to meet the needs of the state's senior citizens.

(d) To receive and disburse federal funds made available directly to
the department, including those funds made available under the federal
older Americans act of 1965 (public law 89-73), 42 U.S.C. 3001 et seq.,
and any amendments thereto, for providing services for senior citizens or
for purposes related thereto and to develop and administer any state plan
for the aging required by federal law.

(e) To solicit, accept, hold and administer in behalf of the state any
grants, devises or bequests of money, securities or property to the state
of Kansas for services to senior citizens or purposes related thereto.

(f) To provide consultation and assistance to communities and groups
developing local and area services for senior citizens.

(g) To promote community education regarding the problems of sen-
ior citizens through institutes, publications, radio, television and the press.

(h) To cooperate with agencies of the federal government in studies
and conferences designed to examine the needs of senior citizens and to
prepare programs and facilities to meet those needs.

(i) To establish and maintain information and referral sources
throughout the state in conjunction with other agencies.

(j) To provide such staff support as may reasonably be required by
the council.

(k) To establish state policies for the administration of the depart-
ment; for the disbursement of federal older Americans act funds within
the state; and for state administration of federal older Americans act pro-
grams consistent with relevant federal law, rules and regulations, policies
and procedures.

(l) To keep informed of the latest developments of research, studies
and programs being conducted nationally and internationally on problems
and needs of aging.

(m) To adopt such rules and regulations as may be necessary to ad-
minister the provisions of this act provisions of article 59 of chapter 75 of
the Kansas Statutes Annotated and acts amendatory thereof and supple-
mental thereto.

(n) To lend surplus state property under the authority of the depart-
ment on aging to area agencies on aging or to the state long-term care
ombudsman to help them perform duties required under state and federal
programs administered by the department on aging.

(o) To enter into any contract or agreement which the secretary finds
necessary to perform the powers, duties and functions of the secretary or
the department.

Sec. 2. K.S.A. 75-5910 is hereby amended to read as follows: 75-
5910. (a) Except as otherwise specifically provided by law, and subject to
the Kansas civil service act, the secretary of aging shall appoint all sub-
ordinate officers and employees of the department and all such subor-
dinate officers and employees shall be within the classified service under
the Kansas civil service act.

(b) The secretary may appoint one public information officer, one
chief attorney, one personal secretary and one special assistant who shall
be in the unclassified service under the Kansas civil service act and shall
receive compensation fixed by the secretary and approved by the gover-
nor. The secretary may appoint deputy secretaries and commissioners as
determined necessary by the secretary to effectively carry out the mission
of the department. All deputy secretaries and commissioners shall be in
the unclassified service under the Kansas civil service act and shall receive
compensation fixed by the secretary and approved by the governor.

(c) Nothing in subsection (b) shall affect the classified status of any
person employed by the department on aging on the day immediately
preceding the effective date of this act. The provisions of this subsection
shall not be construed to limit the powers of the secretary pursuant to
K.S.A. 75-5909 or 75-2948 and amendments thereto.

(d) Personnel of the department shall perform such duties and ex-
ercise such powers as the secretary may prescribe such duties and powers
or as are designated by law.

Sec. 3. K.S.A. 75-5928 is hereby amended to read as follows: 75-
5928. (a) Within the limitations of appropriations therefor, the secretary
of aging is hereby authorized to establish a program of in-home services
for residents of Kansas 60 years of age or older who have functional
limitations which restrict their ability to carry out activities of daily living
and impede their ability to live independently.

(b) The secretary of aging shall establish and administer, pursuant to
the provisions of this act, a program of in-home services as authorized
under subsection (a). The secretary shall designate area agencies on aging
to administer the program in their respective planning and service areas.
The secretary shall designate an area agency on aging to receive funds
only after the area agency on aging has submitted an acceptable program
plan. The plan must be developed with support of a local or regional
coordinating committee comprised of representatives of senior organi-
zations, home health agencies and health departments, department of
social and rehabilitation services offices and other interested groups. The
program plan must be renewed annually by the area agency on aging
older Americans act advisory council and representatives of senior organ-
izations, home health agencies, health departments and the department
of social and rehabilitation services.

(c) The program of in-home services authorized under subsection (a)
shall serve such planning and service areas and provide such services as
may be specified by the secretary and as are consistent with this act and
with appropriation acts relating thereto. The secretary shall establish by
rules and regulations the priority of services to be offered under this
program. Such services shall include, but not be limited to, homemaker
services, attendant care services, transportation for care services, chore
services and care management services. The secretary shall follow the
priorities established in specifying services under this act, but any such
service or services, or combination of services, to be provided under this
act shall be consistent with appropriations for such program.

(d) In establishing a program of in-home services authorized under
subsection (a) and the provisions of this act, the secretary of aging may:

(1) Make grants to area agencies on aging;

(2) fix, charge and collect fees for services provided as part of such
program, such fees to be fixed on a sliding scale based on the recipient's
ability to pay for the services and the schedule of fees shall be published
annually in the Kansas register;

(3) adopt rules and regulations necessary to establish the program
under this act and to administer the provisions of such program and shall
adopt rules and regulations as provided under K.S.A. 75-5931;

(4) enter into contracts as necessary to carry out the provisions of this
act; and

(5) take such other action as may be necessary to carry out the pro-
visions of this act.

Sec. 4. K.S.A. 75-5945 is hereby amended to read as follows: 75-
5945. The secretary of aging shall administer the long-term care programs
and services transferred in this act. All powers granted in this act are to
be interpreted and administered in conformity with federal grant require-
ments as applicable to programs transferred, even if such powers are
limited or excluded:

(a) The secretary of aging shall develop state plans or state plan
amendments or portions of state plans or state plan amendments in con-
sultation with the secretary of social and rehabilitation services relating
to long-term care programs as provided under the federal social security
act. The secretary of aging shall not develop any state plan amendment
in duplication of or contrary to any state plan otherwise developed by the
secretary of social and rehabilitation services. The secretary of aging may
cooperate with the federal government on any other program providing
federal financial assistance and long-term care services not otherwise in-
consistent with this act. The secretary of aging is not required to develop
a state plan for participation or cooperation in all federal social security
act programs or other federal programs that are available for long-term
care services. The secretary of aging may develop a state plan in regard
to long-term care services in which the federal government does not par-
ticipate.

(b) The secretary of aging, in consultation with the secretary of social
and rehabilitation services, may determine the general policies relating
to all forms of long-term care programs which are administered or su-
pervised by the secretary of aging and to adopt the rules and regulations
therefor.

(c) The secretary of aging shall adopt rules and regulations necessary
to protect the confidentiality of all client information as required by fed-
eral and state statutes and regulations.

(d) The secretary of aging shall provide that all officers and employees
of the department of social and rehabilitation services who are engaged
in the exercise and performance of the powers, duties and functions of
the programs transferred in this act and are determined by the secretary
to be necessary to perform such functions are transferred to the depart-
ment on aging. Officers and employees of the department of social and
rehabilitation services shall retain all retirement benefits and leave rights
which had accrued or vested prior to each date of transfer. The service
of each such officer and employee so transferred shall be deemed to have
been continuous. All transfers, layoffs and abolition of classified service
positions under the Kansas civil service act which may result from pro-
gram transfers shall be made in accordance with the civil service laws and
any rules and regulations adopted thereunder. The secretary of aging may
appoint attorneys as are necessary to effectively carry out the mission of
the department and the programs transferred by this act. The attorneys
appointed shall be in the unclassified service under the Kansas civil serv-
ice act, shall serve at the pleasure of the secretary, and shall receive an
annual salary fixed by the secretary and approved by the governor. Noth-
ing in this act shall affect the classified status of any transferred person
employed as an attorney by the department of social and rehabilitation
services prior to the date of transfer and the unclassified status shall apply
only to persons appointed to such attorney positions on or after the ef-
fective date of this act.

(e) The secretary of aging shall establish an adequate system of fi-
nancial records. The secretary of aging and the secretary of social and
rehabilitation services shall execute agreements for the department of
social and rehabilitation services and the department on aging to share
data systems necessary to maximize the efficiency of program operations
and to ensure that federal grant requirements are met. The secretary of
aging shall make annual reports to the governor and shall make any re-
ports required by federal agencies.

(f) The secretary of aging may receive, have custody of, protect, ad-
minister, disburse, dispose of and account for federal or private equip-
ment, supplies and property which is given, granted, loaned or advanced
to the state of Kansas for long-term care programs after the transfer of
such programs pursuant to this act.

(g) The secretary of aging may assist other departments, agencies and
institutions of the state and federal government and of other states under
interstate agreements, when so requested, by performing services in con-
formity with the purpose of this act.

(h) The secretary of aging may lease real and personal property when-
ever the property is not available through the state or a political subdi-
vision of the state for performing the functions required by this act.

(i) All contracts shall be made in the name of ``secretary of aging''
and in that name the secretary may sue and be sued on such contracts.
The grant of authority under this subsection shall not be construed to be
a waiver of any rights retained by the state under the 11th amendment
to the United States constitution and shall be subject to and shall not
supersede the provisions of any appropriations act of this state.

(j) The secretary of aging, except as set forth in the Kansas adminis-
trative procedure act and paragraphs 5 and 6, shall provide a fair hearing
for any person who is an applicant, client or other interested person who
appeals from the decision or final action of any agent or employee of the
secretary. The hearing shall be conducted in accordance with the provi-
sions of the Kansas administrative procedure act and the requirements of
any applicable federal grant programs.

(1) The secretary of aging may investigate (A) any claims and vouch-
ers and persons, businesses and other entities who provide services to the
secretary of aging or to clients served by long-term care programs under
the administration of the secretary, and (B) the eligibility of persons to
receive services under long-term care programs under the administration
of the secretary, and (C) the eligibility of providers of services.

(2) When conducting investigations, the secretary of aging may issue
subpoenas; compel the attendance of witnesses at any place in this state;
compel the production of any records, books, papers or other documents
considered necessary; administer oaths; take testimony; and render de-
cisions. If a person refuses to comply with any subpoena issued under
this section or to testify to any matter regarding which the person may
lawfully be questioned, the district court of any county, on application of
the secretary, may issue an order requiring the person to comply with the
subpoena and to testify. Failure to obey the order of the court may be
punished by the court as a contempt of court. Unless incapacitated, the
person placing a claim or defending a privilege before the secretary shall
appear in person or by authorized representative and may not be excused
from answering questions and supplying information, except in accord-
ance with the person's constitutional rights and lawful privileges.

(3) The presiding officer may close any portion of a hearing con-
ducted under the Kansas administrative procedure act when matters
made confidential, pursuant to federal or state law or regulation are under
consideration.

(4) Except as provided in subsection (d) of K.S.A. 77-511 and amend-
ments thereto and notwithstanding the other provisions of the Kansas
administrative procedure act, the secretary of aging may enforce any or-
der prior to the disposition of a person's application for an adjudicative
proceeding unless prohibited from such action by federal or state statute,
regulation or court order.

(5) This appeals procedure shall not have jurisdiction to determine
the facial validity of a state or federal statute, rule or regulation.

(6) The secretary of aging shall not be required to provide a hearing
if: (A) The appeals procedure lacks jurisdiction over the subject matter;
(B) resolution of the matter does not require the secretary to issue an
order that determines an applicant's or client's legal rights, duties, privi-
leges, immunities or other legal interests; (C) the matter was not timely
submitted for appeal pursuant to regulation or other provision of law; (D)
the matter was not submitted in a form substantially complying with any
applicable provision of law; or (E) the matter is under the prior or con-
current jurisdiction of the secretary of social and rehabilitation services
pursuant to K.S.A. 75-3306 and amendments thereto.

(k) The secretary of aging may establish payment schedules for each
group of providers for the long-term care programs. The secretary shall
consider budgetary constraints as a factor in establishing payment sched-
ules so long as the result does not conflict with applicable federal law.
The secretary shall not be required to make any payments under any
federal grant program which do not meet the requirements for state and
federal financial participation. The secretary shall not be required to make
any payments under any federal grant program which do not meet the
requirements for state and federal financial participation. The secretary
shall not be required to establish or pay at rates which are in excess of
the minimum necessary payment requirements regardless of excess costs
incurred by a provider.

(l) The secretary of aging shall review all rules and regulations of the
department on aging and shall amend and revoke the rules and regula-
tions to conform to the purposes of this act.

(m) The secretary of aging may implement a program which would
permit the value of any services provided by the area agencies on aging
for the benefit of any long-term care programs administered by the sec-
retary to be considered eligible for federal financial participation for such
long-term care programs.

Sec. 5. K.S.A. 75-5908, 75-5910, 75-5928, 75-5935 and 75-5945 are
hereby repealed.

Sec. 6. This act shall take effect and be in force from and after its
publication in the statute book.

Approved April 9, 1998

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