As Amended by Senate Committee
Session of 1997
SENATE BILL No. 375
By Committee on Ways and Means
2-21
10
AN ACT concerning abuse, neglect and exploitation of
certain persons;
11 appointment of
guardian or conservator; amending K.S.A. 39-
12 1401, 39-1402,
39-1404, 39-1430, 39-1431, 39-1433,
39-1434, 39-1435
13
and, 39-1440 and 59-3036 and
K.S.A. 1997 Supp. 39-1404 and
14 repealing the existing
sections.
15
16 Be it enacted by the Legislature of the
State of Kansas:
17 Section 1. K.S.A.
39-1401 is hereby amended to read as follows:
18 39-1401. As used in this act:
19 (a) ``Resident''
means:
20 (1) Any resident, as
defined by K.S.A. 39-923 and amendments
21 thereto; or
22 (2) any client
cared for in an adult family home; or
23 (3)
(2) any individual kept, cared for, treated, boarded or
otherwise
24 accommodated in a medical care facility;
or
25 (4)( any
individual with mental retardation or a developmental
disa-
26 bility receiving services through a
community mental retardation facility
27 or residential facility licensed
under K.S.A. 75-3307b and amendments
28 thereto; or
29 (5)
(3) any individual, kept, cared for, treated, boarded
or otherwise
30 accommodated in a state psychiatric
hospital or state institution for the
31 mentally retarded.
32 (b) ``Adult care home''
has the meaning ascribed thereto in K.S.A.
33 39-923 and amendments thereto.
34 (c) ``Adult
family home'' has the meaning ascribed thereto in
K.S.A.
35 39-1501 and amendments
thereto.
36 (d)
(c) ``In need of protective services'' means that a
resident is unable
37 to perform or obtain services which are
necessary to maintain physical or
38 mental health, or both.
39 (e)
(d) ``Services which are necessary to maintain physical
and mental
40 health'' include, but are not limited to,
the provision of medical care for
41 physical and mental health needs, the
relocation of a resident to a facility
42 or institution able to offer such care,
assistance in personal hygiene, food,
43 clothing, adequately heated and ventilated
shelter, protection from health
SB 375--Am.
2
1 and safety hazards, protection from
maltreatment the result of which
2 includes, but is not limited to,
malnutrition, deprivation of necessities or
3 physical punishment and
transportation necessary to secure any of the
4 above stated needs, except that this
term shall not include taking such
5 person into custody without consent,
except as provided in this act.
6 (f)
(e) ``Protective services'' means services provided by
the state or
7 other governmental agency or any
private organizations or individuals
8 which are necessary to prevent abuse,
neglect or exploitation. Such pro-
9 tective services shall include, but
not be limited to, evaluation of the need
10 for services, assistance in obtaining
appropriate social services and assis-
11 tance in securing medical and legal
services.
12 (g)
(f) ``Abuse'' means neglect, infliction of
physical or mental injury
13 or deprivation by a caretaker of
services which are necessary to maintain
14 physical and mental health
any act or failure to act performed intention-
15 ally or recklessly that causes or is
likely to cause harm to a resident,
16 including:
17 (1) Infliction of
physical or mental injury;
18
(2) any (A) Any
sexual act by a caretaker with a
resident other
19 than a caretaker who is married to
the resident; or
20 (B) any sexual act
with a resident when the resident does not con-
21 sent or when the
caretaker or another person knows or should know
that
22 the resident is incapable of resisting
or declining consent to the sexual act
23 due to mental deficiency or disease or
due to fear of retribution or hard-
24 ship;
25
(3) inappropriate
unreasonable use of a physical restraint,
isolation
26 or medication that harms or is likely to
harm a resident;
27
(4) inappropriate
unreasonable use of a physical or chemical
re-
28 straint, medication or isolation as
punishment, for convenience, in conflict
29 with a physician's orders or as a
substitute for treatment, except where
30 such conduct or physical restraint is in
furtherance of the health and
31 safety of the resident or another
resident;
32 (5) a threat or
menacing conduct directed toward a resident that re-
33 sults or might reasonably be expected to
result in fear or emotional or
34 mental distress to a resident;
35 (6) fiduciary
abuse; or
36 (7) omission or
deprivation by a caretaker or another person of goods
37 or services which are necessary to avoid
physical or mental harm or ill-
38 ness;
or.
39 (8) medically
inappropriate conduct that causes or is likely to
cause
40 physical harm to a
resident.
41
(h) (g) ``Neglect'' means the failure
of a caretaker to maintain rea-
42 sonable care and treatment to such
an extent that the resident's health
43 or emotional well-being is
injured or omission by one's self, caretaker or
SB 375--Am.
3
1 another person to provide goods or
services which are reasonably nec-
2 essary to ensure safety and
well-being and to avoid physical or mental
3 harm or illness.
4 (i)
(h) ``Caretaker'' means a person or institution who has
assumed
5 the responsibility for the care of
the resident voluntarily, by contract or
6 by order of a court of competent
jurisdiction.
7 (j)
(i) ``Exploitation'' means
intentionally misappropriation of
resident
8 property or
intentionally taking unfair advantage of an adult's
physical
9 or financial resources for another
individual's personal or financial advan-
10 tage by the use of undue influence,
coercion, harassment, duress, decep-
11 tion, false representation or false
pretense by a caretaker or another per-
12 son.
13 (k)
(j) ``Medical care facility'' means a facility licensed
under K.S.A.
14 65-425 et seq. and amendments
thereto but shall not include, for purposes
15 of this act, a state psychiatric hospital
or state institution for the mentally
16 retarded, including Larned state hospital,
Osawatomie state hospital,
17 Rainbow mental health facility,
Topeka state hospital, Kansas neurological
18 institute,
and Parsons state hospital and training center
and Winfield state
19 hospital and training
center.
20 (k) ``Fiduciary
abuse'' means a situation in which any person who is
21 the caretaker of, or who stands in a
position of trust to, a resident, takes,
22 secretes, or appropriates their money or
property, to any use or purpose
23 not in the due and lawful execution of
such person's trust.
24 (l) ``State psychiatric
hospital'' means Larned state hospital, Osawa-
25 tomie state hospital,
and Rainbow mental health facility and Topeka
state
26 hospital.
27 (m) ``State institution
for the mentally retarded'' means Kansas neu-
28 rological institute,
and Parsons state hospital and training center
and Win-
29 field state hospital and training
center.
30 (n) ``Report'' means
a description or accounting of an incident or in-
31 cidents of abuse, neglect or
exploitation under this act and for the purposes
32 of this act shall not include any
written assessment or findings.
33 (o) ``Law enforcement''
means the public office which is vested
34 by law with the duty to maintain
public order, make arrests for
35 crimes and investigate criminal acts,
whether that duty extends to
36 all crimes or is limited to specific
crimes.
37 No person shall be considered
to be abused, neglected or exploited or
38 in need of protective services for the sole
reason that such person relies
39 upon spiritual means through prayer alone
for treatment in accordance
40 with the tenets and practices of a
recognized church or religious denom-
41 ination in lieu of medical treatment.
42 Sec. 2. K.S.A.
39-1402 is hereby amended to read as follows: 39-
43 1402. (a) Any person who is licensed to
practice any branch of the healing
SB 375--Am.
4
1 arts, a licensed psychologist,
a licensed master level psychologist, a
2 licensed master level
temporary, a chief administrative officer of a
3 medical care facility, an adult care
home administrator or operator, a
4 licensed social worker, a licensed
professional nurse or, a licensed prac-
5 tical nurse, a teacher,
a bank trust officer, a guardian or a conservator
6 who has reasonable cause to believe
that a resident is being or has been
7 abused, neglected or exploited, or is
in a condition which is the result of
8 such abuse, neglect or exploitation
or is in need of protective services,
9 shall report immediately such
information or cause a report of such in-
10 formation to be made in any reasonable
manner to the department of
11 health and environment with respect to
residents defined under (a)(1)
12 and (a)(3) (a)(2)
of K.S.A. 39-1401 and amendments thereto and to the
13 department of social and rehabilitation
services with respect to all other
14 residents. Reports made to one department
which are required by this
15 subsection to be made to the other
department shall be referred by the
16 department to which the report is made to
the appropriate department
17 for that report, and any such report shall
constitute compliance with this
18 subsection. Reports shall be made during
the normal working week days
19 and hours of operation of such departments.
Reports shall be made to
20 law enforcement agencies during the time
the departments are not open
21 for business. Law enforcement agencies
shall submit the report and ap-
22 propriate information to the appropriate
department on the first working
23 day that such department is open for
business. A report made pursuant
24 to K.S.A. 65-4923 or 65-4924 and amendments
thereto shall be deemed
25 a report under this section.
26 (b) The report made
pursuant to subsection (a) shall contain the
27 name and address of the person making the
report and of the caretaker
28 caring for the resident, the name and
address of the involved resident,
29 information regarding the nature and extent
of the abuse, neglect or ex-
30 ploitation, the name of the next of kin of
the resident, if known, and any
31 other information which the person making
the report believes might be
32 helpful in an investigation of the case and
the protection of the resident.
33 (c) Any other person
having reasonable cause to suspect or believe
34 that a resident is being or has been
abused, neglected or exploited, or is
35 in a condition which is the result of such
abuse, neglect or exploitation
36 or is in need of protective services may
report such information to the
37 department of health and environment with
respect to residents defined
38 under (a)(1) and (a)(3)
(a)(2) of K.S.A. 39-1401 and amendments thereto
39 and to the department of social and
rehabilitation services with respect
40 to all other residents. Reports made to one
department which are to be
41 made to the other department under this
section shall be referred by the
42 department to which the report is made to
the appropriate department
43 for that report.
SB 375--Am.
5
1 (d) Notice of the
requirements of this act and the department to
2 which a report is to be made under
this act shall be posted in a conspic-
3 uous place in every adult care home,
adult family home and medical care
4 facility in this state.
5 (e) Any person
required to report information or cause a report of
6 information to be made under
subsection (a) who knowingly fails to make
7 such report or cause such report to
be made shall be guilty of a class B
8 misdemeanor.
9
Sec. 3. K.S.A. 39-1404 is hereby amended to read as
follows: 39-
10 1404. (a) The
department of social and rehabilitation services or
The
11 department of health and
environment upon receiving a report that a
12 resident is being, or has been,
abused, neglected or exploited, or is in a
13 condition which is the result of
such abuse, neglect or exploitation or is
14 in need of protective
services, within 24 hours of receiving such
report,
15 shall initiate an investigation,
including a personal visit with the resident
16 and, within two weeks of receiving
such report, shall complete the inves-
17 tigation to determine if the
resident is being or has been abused, ne-
18 glected or exploited or is in a
condition which is a result of such abuse,
19 neglect or exploitation. The
investigation shall include, but not be limited
20 to, a visit to the named resident
and consultation with those individuals
21 having knowledge of the facts of
the particular case. Upon completion of
22 the investigation of each case,
written findings shall be prepared which
23 shall include a finding of whether
there is or has been abuse, neglect or
24 exploitation, recommended action
and a determination of whether pro-
25 tective services are needed. If it
appears that a crime has occurred, the
26 appropriate law enforcement agency
shall be notified by the department
27 investigating the
report.
28 (b) The
secretary of social and rehabilitation services shall
maintain
29 a register of the reports received
and investigated by the department of
30 social and rehabilitation services,
the findings, evaluations and the actions
31 recommended. The register shall be
available for inspection by personnel
32 of the department of social and
rehabilitation services. The secretary of
33 social and rehabilitation services
shall forward a copy of any report of
34 abuse, neglect or exploitation of a
resident investigated by the department
35 of social and rehabilitation
services to the secretary of health and envi-
36 ronment and, in the case of a
report of abuse, neglect or exploitation of
37 a resident of an adult family home,
to the secretary of aging.
38 (c) The report
received by the department of social and
rehabilitation
39 services and the written findings,
evaluations and actions recommended
40 shall not be deemed a public record
or be subject to the provisions of the
41 open records act. Except as
otherwise provided in this section, the name
42 of the person making the original
report to the department of social and
43 rehabilitation services or any
person mentioned in such report shall not
SB 375--Am.
6
1 be disclosed unless the
person making the original report specifically re-
2 quests or agrees in writing
to such disclosure or unless a judicial pro-
3 ceeding results therefrom.
Except as otherwise provided in this section,
4 no information contained in
the register shall be made available to the
5 public in such a manner as to
identify individuals.
6 (d) The
secretary of social and rehabilitation services shall
forward
7 any finding of abuse, neglect
or exploitation alleged to be committed by
8 a provider of services
licensed, registered or otherwise authorized to pro-
9 vide services in this state
to the appropriate state authority which regu-
10 lates such provider. The
appropriate state regulatory authority may con-
11 sider the finding in any
disciplinary action taken with respect to the
12 provider of services under the
jurisdiction of such authority.
shall:
13
(1) When a criminal act has occurred or has
appeared to have oc-
14 curred, immediately notify the
appropriate law enforcement agency;
15 (2) make a
personal visit with the involved adult:
16 (A) Within 24
hours when the information from the reporter
indicates
17 imminent danger to the health or
welfare of the involved adult;
18 (B) within
three working days for all reports of suspected abuse,
when
19 the information from the
reporter indicates no imminent danger;
20 (C) within
five working days for all reports of neglect or
exploitation
21 when the information from the
reporter indicates no imminent danger.
22 (D) complete,
within 30 working days of receiving a report, a
thor-
23 ough investigation and
evaluation to determine the situation relative to
24 the condition of the involved
resident and what action and services, if any,
25 are required. The investigation
shall include, but not be limited to, con-
26 sultation with those individuals
having knowledge of the facts of the par-
27 ticular case;
and
28 (E) prepare,
upon a completion of the evaluation of each case, a
writ-
29 ten assessment which shall
include an analysis of whether there is or has
30 been abuse, neglect or
exploitation, recommended action, a determination
31 of whether protective services
are needed, and any follow up.
32
(e) (b) The
department which investigates the report
of health and
33 environment
shall inform the complainant, upon request of the
complain-
34 ant, that an investigation has been
made and, if the allegations of abuse,
35 neglect or exploitation have been
substantiated, that corrective measures
36 will be taken
if required.
37
(c) The department of health and environment may
inform the chief
38 administrative officer of a
facility as defined by K.S.A. 39-923 and amend-
39 ments thereto of substantial
findings of resident abuse, neglect or exploi-
40 tation.
41 Sec. 3. K.S.A. 1997
Supp. 39-1404 is hereby amended to read
42 as follows: 39-1404. (a) The
department of social and rehabilitation
43 services or the
department of health and environment upon
receiving
SB 375--Am.
7
1 a report that a resident is
being, or has been, abused, neglected or
2 exploited, or is in a condition
which is the result of such abuse,
3 neglect or exploitation or is
in need of protective services, within
24
4 hours of receiving such
report, shall initiate an investigation, including a
5 personal visit with the
resident and, within two weeks of receiving such
6 report, shall complete the
investigation to determine if the resident is
7 being or has been abused,
neglected or exploited or is in a condition which
8 is a result of such abuse,
neglect or exploitation. The investigation shall
9 include, but not be limited
to, a visit to the named resident and consul-
10 tation with those individuals
having knowledge of the facts of the partic-
11 ular case. Upon completion of the
investigation of each case, written find-
12 ings shall be prepared which shall
include a finding of whether there is
13 or has been abuse, neglect or
exploitation, recommended action and a
14 determination of whether protective
services are needed. If it appears
15 that a crime has occurred, the
appropriate law enforcement agency shall
16 be notified by the department
investigating the report.
17 (b) The
secretary of social and rehabilitation services shall
maintain
18 a register of the reports received
and investigated by the department of
19 social and rehabilitation services,
the findings, evaluations and the actions
20 recommended. The register shall be
available for inspection by personnel
21 of the department of social and
rehabilitation services. The secretary of
22 social and rehabilitation services
shall forward a copy of any report of
23 abuse, neglect or exploitation of a
resident investigated by the department
24 of social and rehabilitation
services to the secretary of health and envi-
25 ronment and, in the case of a
report of abuse, neglect or exploitation of
26 a resident of an adult family home,
to the secretary of aging.
27 (c) The report
received by the department of social and
rehabilitation
28 services and the written findings,
evaluations and actions recommended
29 shall not be deemed a public record
or be subject to the provisions of the
30 open records act. Except as
otherwise provided in this section, or in K.S.A.
31 1997 Supp. 65-6205 and amendments
thereto the name of the person
32 making the original report to the
department of social and rehabilitation
33 services or any person mentioned in
such report shall not be disclosed
34 unless the person making the
original report specifically requests or
35 agrees in writing to such
disclosure or unless a judicial proceeding results
36 therefrom. Except as otherwise
provided in this section, no information
37 contained in the register shall be
made available to the public in such a
38 manner as to identify
individuals.
39 (d) The
secretary of social and rehabilitation services shall
forward
40 any finding of abuse, neglect or
exploitation alleged to be committed by
41 a provider of services licensed,
registered or otherwise authorized to pro-
42 vide services in this state to the
appropriate state authority which regu-
43 lates such provider. The
appropriate state regulatory authority may con-
SB 375--Am.
8
1 sider the finding in any
disciplinary action taken with respect to the
2 provider of services under
the jurisdiction of such authority.
3
(e) shall:
4 (1) When a
criminal act has occurred or has appeared to have oc-
5 curred, immediately notify the
appropriate law enforcement agency;
6 (2) make a
personal visit with the involved resident:
7 (A) Within 24
hours when the information from the reporter indicates
8 imminent danger to the health or
welfare of the involved resident;
9 (B) within
three working days for all reports of suspected abuse, when
10 the information from the reporter
indicates no imminent danger; or
11 (C) within five
working days for all reports of neglect or exploitation
12 when the information from the reporter
indicates no imminent danger.
13 (3) Complete, within
30 working days of receiving a report, a thor-
14 ough investigation and evaluation to
determine the situation relative to
15 the condition of the involved resident
and what action and services, if any,
16 are required. The investigation shall
include, but not be limited to, con-
17 sultation with those individuals having
knowledge of the facts of the par-
18 ticular case; and
19 (4) prepare, upon a
completion of the evaluation of each case, a writ-
20 ten assessment which shall include an
analysis of whether there is or has
21 been abuse, neglect or exploitation;
recommended action; a determination
22 of whether protective services are
needed; and any follow up.
23
(b) The department which
investigates the report of health and en-
24 vironment shall inform the
complainant, upon request of the com-
25 plainant, that an investigation has
been made and, if the allegations
26 of abuse, neglect or exploitation
have been substantiated, that cor-
27 rective measures will be
taken if required.
28 (c) The
department of health and environment may inform the chief
29 administrative officer of a facility as
defined by K.S.A. 39-923 and amend-
30 ments thereto of confirmed findings of
resident abuse, neglect or exploi-
31 tation.
32 Sec. 4. K.S.A.
39-1430 is hereby amended to read as follows: 39-
33 1430. As used in this act:
34 (a) ``Adult'' means an
individual 18 years of age or older alleged to
35 be unable to protect their own interest and
who is harmed or threatened
36 with harm through action or inaction by
either another individual or
37 through their own action or
inaction. Such term shall not include a resi-
38 dent as the term ``resident'' is
defined under K.S.A. 39-1401 and amend-
39 ments thereto when (1)
such person is residing in such person's own
40 home, the home of a family member or the
home of a friend, (2) such
41 person resides in an adult family home
as defined in K.S.A. 39-1501 and
42 amendments thereto, or (3) such person
is receiving services through a
43 provider of community
development disabilities facility
services and
SB 375--Am.
9
1 affiliates thereof operated or
funded by the department of social
2 and rehabilitation
services or a residential facility licensed pursuant
to
3 K.S.A. 75-3307b and amendments
thereto. Such term shall not include
4 persons to whom K.S.A.
30-3101 39-1401 et seq.
and amendments thereto
5 apply.
6 (b) ``Abuse''
means the intentional infliction of injury,
unreasonable
7 confinement, fiduciary abuse,
intimidation, cruel punishment, omission
8 or deprivation by a caretaker
or another person of goods or services which
9 are necessary to avoid
physical or mental harm or illness. any act or
failure
10 to act performed intentionally or
recklessly that causes or is likely to cause
11 harm to an adult, including:
12 (1) Infliction of
physical or mental injury;
13
(2) any (A) Any
sexual act by a caretaker with an adult
other than
14 a caretaker who is married to the
adult; or
15 (B) any sexual act
with an adult when the adult does not consent
16 or when the caretaker
or another person knows or should know that
the
17 adult is incapable of resisting or
declining consent to the sexual act due
18 to mental deficiency or disease or due
to fear of retribution or hardship;
19
(3) inappropriate
unreasonable use of a physical restraint,
isolation
20 or medication that harms or is likely to
harm an adult;
21
(4) inappropriate
unreasonable use of a physical or chemical
re-
22 straint, medication or isolation as
punishment, for convenience, in conflict
23 with a physician's orders or as a
substitute for treatment, except where
24 such conduct or physical restraint is in
furtherance of the health and
25 safety of the adult;
26 (5) a threat or
menacing conduct directed toward an adult that results
27 or might reasonably be expected to
result in fear or emotional or mental
28 distress to an adult;
29 (6) fiduciary
abuse; or
30 (7) omission or
deprivation by a caretaker or another person of goods
31 or services which are necessary to avoid
physical or mental harm or ill-
32 ness;
or.
33 (8) medically
inappropriate conduct that causes or is likely to
cause
34 physical harm to an
adult.
35 (c) ``Neglect'' means
the failure or omission by one's self, caretaker
36 or another person to provide goods or
services which are reasonably
37 necessary to ensure safety and well-being
and to avoid physical or mental
38 harm or illness.
39 (d) ``Exploitation''
means misappropriation of an adult's property or
40 intentionally taking unfair
advantage of an adult's physical or financial
41 resources for another individual's personal
or financial advantage by the
42 use of undue influence, coercion,
harassment, duress, deception, false
43 representation or false pretense by a
caretaker or another person.
SB 375--Am.
10
1 (e) ``Fiduciary
abuse'' means a situation in which any person who is
2 the caretaker of, or who stands in a
position of trust to, an adult, takes,
3 secretes, or appropriates their money
or property, to any use or purpose
4 not in the due and lawful execution
of such person's trust.
5 (f) ``In need of
protective services'' means that an adult is unable to
6 provide for or obtain services which
are necessary to maintain physical or
7 mental health or both.
8 (g) ``Services
which are necessary to maintain physical or mental
9 health or both'' include, but are not
limited to, the provision of medical
10 care for physical and mental health needs,
the relocation of an adult to a
11 facility or institution able to offer such
care, assistance in personal hy-
12 giene, food, clothing, adequately heated
and ventilated shelter, protection
13 from health and safety hazards, protection
from maltreatment the result
14 of which includes, but is not limited to,
malnutrition, deprivation of ne-
15 cessities or physical punishment and
transportation necessary to secure
16 any of the above stated needs, except that
this term shall not include
17 taking such person into custody without
consent except as provided in
18 this act.
19 (h) ``Protective
services'' means services provided by the state or
20 other governmental agency or by private
organizations or individuals
21 which are necessary to prevent abuse,
neglect or exploitation. Such pro-
22 tective services shall include, but shall
not be limited to, evaluation of the
23 need for services, assistance in obtaining
appropriate social services, and
24 assistance in securing medical and legal
services.
25 (i) ``Caretaker'' means
a person who has assumed the responsibility
26 for an adult's care or financial management
or both.
27 (j) ``Secretary'' means
the secretary of social and rehabilitation serv-
28 ices.
29 (k) ``Report'' means a
report of abuse, neglect or exploitation under
30 this act description or
accounting of an incident or incidents of abuse,
31 neglect or exploitation under this act
and for the purposes of this act shall
32 not include any written assessment or
findings.
33 (l) ``Law enforcement''
means the public office which is vested by law
34 with the duty to maintain public order,
make arrests for crimes, investi-
35 gate criminal acts and file criminal
charges, whether that duty extends to
36 all crimes or is limited to specific
crimes.
37 (m) ``Involved adult''
means the adult who is the subject of a report
38 of abuse, neglect or exploitation under
this act.
39 No person shall be considered
to be abused, neglected or exploited or
40 in need of protective services for the sole
reason that such person relies
41 upon spiritual means through prayer alone
for treatment in accordance
42 with the tenets and practices of a
recognized church or religious denom-
43 ination in lieu of medical treatment.
SB 375--Am.
11
1
Sec. 5. K.S.A. 39-1431 is hereby amended to read as
follows: 39-
2 1431. (a) Any person who is licensed
to practice any branch of the healing
3 arts, a licensed psychologist,
a licensed master level psychologist, a
4 licensed master level
temporary, the chief administrative officer of a
5 medical care facility, a
teacher, a licensed social worker, a licensed pro-
6 fessional nurse, a licensed practical
nurse, a licensed dentist, a law en-
7 forcement officer, a case manager,
a guardian or conservator, a bank
8 trust officer, a rehabilitation
counselor, a social security payee,
a holder
9 of a power of attorney,
a home health aide, an owner or operator
of a
10 residential care facility,
an independent living counselor and the
chief
11 administrative officer of a licensed home
health agency, the chief admin-
12 istrative officer of an adult family
home and the chief administrative of-
13 ficer of a provider of
community developmental disabilities
facility serv-
14 ices and affiliates thereof operated
or funded by the department of
15 social and rehabilitation services
or licensed under K.S.A. 75-3307b
16 and amendments thereto who has
reasonable cause to believe that an adult
17 is being or has been abused, neglected or
exploited or is in need of pro-
18 tective services shall report,
within six hours immediately from receipt
of
19 the information, such information or cause
a report of such information
20 to be made in any reasonable manner. An
employee of a domestic vio-
21 lence center shall not be required to
report information or cause a report
22 of information to be made under this
subsection. Other state agencies
23 receiving reports that are to be referred
to the department of social and
24 rehabilitation services, shall submit the
report to the department within
25 six hours, during normal work days, of
receiving the information. Reports
26 shall be made to the department of social
and rehabilitation services dur-
27 ing the normal working week days and hours
of operation. Reports shall
28 be made to law enforcement agencies during
the time social and reha-
29 bilitation services are not in operation.
Law enforcement shall submit the
30 report and appropriate information to the
department of social and re-
31 habilitation services on the first working
day that social and rehabilitation
32 services is in operation.
33 (b) The report made
pursuant to subsection (a) shall contain the
34 name and address of the person making the
report and of the caretaker
35 caring for the involved adult, the name and
address of the involved adult,
36 information regarding the nature and extent
of the abuse, neglect or ex-
37 ploitation, the name of the next of kin of
the involved adult, if known,
38 and any other information which the person
making the report believes
39 might be helpful in the investigation of
the case and the protection of the
40 involved adult.
41 (c) Any other person
having reasonable cause to suspect or believe
42 that an adult is being or has been abused,
neglected or exploited or is in
43 need of protective services may report such
information to the depart-
SB 375--Am.
12
1 ment of social and rehabilitation
services. Reports shall be made to law
2 enforcement agencies during the time
social and rehabilitation services
3 are not in operation.
4 (d) A person
making a report under subsection (a) shall not be re-
5 quired to make a report under K.S.A.
39-1401 to 39-1410, inclusive, and
6 amendments thereto. A person
making a report under K.S.A. 39-1401 to
7 39-1410, inclusive, and
amendments thereto, shall not be required to
8 make a report under this
act.
9 (e) Any person
required to report information or cause a report of
10 information to be made under subsection (a)
who knowingly fails to make
11 such report or cause such report not to be
made shall be guilty of a class
12 B misdemeanor.
13 (f) Notice of the
requirements of this act and the department to which
14 a report is to be made under this act
shall be posted in a conspicuous
15 place in every adult family home as
defined in K.S.A. 39-1501 and amend-
16 ments thereto and every
provider of community developmental
disabil-
17 ities facility
services and affiliates thereof operated or funded by
the
18 department of social and
rehabilitation services or other facility li-
19 censed under K.S.A. 75-3307b and
amendments thereto.
20 Sec. 6. K.S.A.
39-1433 is hereby amended to read as follows: 39-
21 1433. (a) The department of social and
rehabilitation services upon re-
22 ceiving a report that an adult is being, or
has been abused, neglected, or
23 exploited or is in need of protective
services, shall:
24 (1) When a criminal
act has occurred or has appeared to have oc-
25 curred, immediately notify the
appropriate law enforcement agency;
26 (1)
(2) make a personal visit with the involved adult:
27 (A) Within 24 hours when
the information from the reporter indi-
28 cates imminent danger to the health or
welfare of the involved adult;
29 (B) within three working
days for all reports of suspected abuse, when
30 the information from the reporter indicates
no imminent danger;
31 (C) within five working
days for all reports of neglect or exploitation
32 when the information from the reporter
indicates no imminent danger.
33 (2)
(3) Complete, within two weeks 30
working days of receiving a
34 report, a thorough investigation and
evaluation to determine the situation
35 relative to the condition of the involved
adult and what action and serv-
36 ices, if any, are required. The evaluation
shall include, but not be limited
37 to, consultation with those individuals
having knowledge of the facts of
38 the particular case. When a
criminal act has appeared to have occurred,
39 law enforcement shall be notified
immediately and If the alleged perpe-
40 trator is licensed, registered or otherwise
regulated by a state agency,
41 such state agency also shall be notified
immediately.
42 (3)
(4) Prepare, upon completion of the
evaluation investigation of
43 each case, a written assessment which shall
include an analysis of whether
SB 375--Am.
13
1 there is or has been abuse, neglect
or exploitation, recommended action,
2 a determination of whether protective
services are needed, and any fol-
3 low-up.
4 (b) The
secretary of social and rehabilitation services shall
forward
5 any finding of abuse, neglect or
exploitation alleged to have been com-
6 mitted by a provider of services
licensed, registered or otherwise author-
7 ized to provide services in this
state to the appropriate state authority
8 which regulates such provider. The
appropriate state regulatory authority
9 may consider the finding in any
disciplinary action taken with respect to
10 the provider of services under the
jurisdiction of such authority.
11 (c) The department of
social and rehabilitation services shall inform
12 the complainant, upon request of the
complainant, that an investigation
13 has been made and if the allegations of
abuse, neglect or exploitation have
14 been substantiated, that corrective
measures will be taken.
15 (d) The department of
social and rehabilitation services may inform
16 the chief administrative officer and
community facilities licensed pursuant
17 to K.S.A. 75-3307b and amendments
thereto of substantiated
confirmed
18 findings of resident abuse, neglect or
exploitation.
19
Sec. 7. K.S.A. 39-1434 is hereby amended to read as
follows: 39-
20 1434. (a) The secretary of social
and rehabilitation services shall maintain
21 a statewide register of the
reports, assessments received and the
analyses,
22 evaluations and the
actions and the confirmed findings of the
abuse, ne-
23 glect and exploitation
actions recommended. The register shall be
avail-
24 able for inspection by personnel of
the department of social and rehabil-
25 itation services
and other agencies or facilities for the purpose
of
26 determining employment. Persons
with a confirmed finding of abuse, ne-
27 glect or exploitation of an
adult shall have the right to appeal that decision
28 pursuant to K.S.A. 75-3306 and
amendments thereto.
29 (b) Neither the
report, assessment or the written evaluation analysis
30 shall be deemed a public record or
be subject to the provisions of the
31 open records act. The name of the
person making the original report or
32 any person mentioned in such report
shall not be disclosed unless the
33 person making the original report
specifically requests or agrees in writing
34 to such disclosure or unless a
judicial proceeding results therefrom. No
35 information contained in the
statewide register shall be made available to
36 the public in such a manner as to
identify individuals.
37 Sec. 8
7. K.S.A. 39-1435 is hereby amended to read as
follows: 39-
38 1435. In performing the duties set forth in
this act, the secretary of social
39 and rehabilitation services may request the
assistance of all state depart-
40 ments, agencies and commissions and may
utilize any other public or
41 private agencies, groups or individuals who
are appropriate and who may
42 be available. Law enforcement shall be
contacted to assist the department
43 of social and rehabilitation services when
the information received on the
SB 375--Am.
14
1 report indicates that an adult,
residing in such adult's own home or the
2 home of another individual, an
adult family home, a community devel-
3 opment disabilities facility or
residential facility is in a life threatening
4 situation.
5
Sec. 9 8. K.S.A. 39-1440
is hereby amended to read as follows: 39-
6 1440. Subsequent to the authorization
for the provision of necessary pro-
7 tective services, the secretary shall
initiate a review of each case within
8 45 60 days to
determine where continuation of, or modification in, the
9 services provided is warranted. A
decision to continue the provision of
10 such services shall comply with the consent
provisions of this act. Reev-
11 aluations of the need for protective
services shall be made not less than
12 every six months thereafter.
13 Sec. 9. K.S.A.
59-3036 is hereby amended to read as follows:
14 59-3036. (a) (1) If during the
pendency of a proceeding initiated
15 under K.S.A. 59-3009 and amendments
thereto, it appears that there
16 is an imminent danger that the
physical health or safety of the pro-
17 posed ward will be seriously
impaired or financial resources will be
18 depleted unless immediate
action is taken, the proposed ward, or any
19 adult interested in the welfare of
the proposed ward, may petition
20 the court in which the proceeding is
pending for the emergency
21 appointment of a guardian
or conservator.
22 (2) The petition
shall state:
23 (A) The names and
addresses of the individuals and entities en-
24 titled to notice; and
25 (B) the relief
requested and the facts and reasons supporting
26 that request.
27 (3) A hearing
shall be held no more than 48 hours after a peti-
28 tion for an emergency appointment has
been filed. Notice shall be
29 given in the manner directed by the
court.
30 (4) If the court
determines that there is an imminent danger that
31 the physical health or safety of the
proposed ward will be seriously
32 impaired or financial
resources will be depleted unless immediate
ac-
33 tion is taken, the court shall
appoint a guardian or conservator
in
34 the manner prescribed in K.S.A.
59-3014 and amendments thereto.
35 The court shall assign to an
emergency appointee only those duties
36 and powers necessary to protect
against the imminent danger
37 shown.
38 (5) The emergency
appointment shall remain in effect until the
39 conclusion of the hearing conducted
under K.S.A. 59-3013 and
40 amendments thereto.
41 (b) If at any time
the court has probable cause to believe that
42 a guardian or
conservator is not effectively performing such
person's
43 duties and powers, and that there is
an imminent danger that the
SB 375--Am.
15
1 physical health or safety of
the ward will be seriously impaired or
2 financial resources will be
depleted unless immediate action is taken,
3 the court shall:
4 (1) Suspend
and temporarily replace the guardian with a guard-
5 ian or
conservator meeting the qualifications set forth in
K.S.A. 59-
6 3014 and amendments
thereto;
7 (2) reassign
the duties and powers of the suspended guardian
or
8 conservator to the
emergency appointee; and
9 (3) direct
the temporary appointee to file a petition under K.S.A.
10 59-3029 and amendments thereto within
five days if such petition
11 is not already pending, and submit
such reports as may be neces-
12 sary.
13 (c) The court may
designate another eligible person selected in
14 accordance with K.S.A. 59-3014 and
amendments thereto to assume
15 the duties and powers assigned to the
guardian or conservator upon
16 the resignation, disability,
temporary absence or death of the
17 guardian or
conservator. The individual so designated, other than
an
18 individual designated because of the
temporary absence of a guard-
19 ian or
conservator, shall submit a report pursuant to K.S.A.
59-3029
20 and amendments thereto within 10 days
after an individual ap-
21 pointed on a standby basis assumes
the duties of a guardian or
22 conservator. A
guardian or conservator serving on a standby
basis
23 may exercise all of the duties and
powers assigned to the predeces-
24 sor as a guardian or
conservator until the conclusion of the
proceed-
25 ings under K.S.A. 59-3029 and
amendments thereto or, in case of
26 the temporary absence of the
predecessor guardian or
conservator,
27 until the predecessor
guardian or conservator returns, unless
oth-
28 erwise ordered by the
court.
29 (d) This section
shall be part of and supplemental to the act for
30 obtaining a guardian or conservator,
or both.
31 Sec. 10. K.S.A.
39-1401, 39-1402, 39-1404, 39-1430, 39-1431,
39-
32 1433, 39-1434, 39-1435
and, 39-1440 and 59-3036 and
K.S.A. 1997
33 Supp. 39-1404 are hereby
repealed.
34 Sec. 11. This act
shall take effect and be in force from and after its
35 publication in the statute book.
36