HOUSE BILL No. 2607

      An Act concerning the state long-term care ombudsman; attaching the office of the state
      long-term care ombudsman to the department of administration for certain purposes;
      prescribing certain powers, duties and functions; amending K.S.A. 75-5914, 75-5916,
      75-5917, 75-5917a, 75-5918, 75-5918a, 75-5919, 75-5920, 75-5921, 75-5922, 75-5922a,
      75-5922b and 75-5922c and repealing the existing sections.

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

    New Section 1. (a) The office of the state long-term care ombuds-
man is hereby attached to the department of administration. The office
of the state long-term care ombudsman shall be in Topeka, Kansas. The
secretary of administration shall provide such technical assistance and
advice as the secretary deems reasonable and necessary to assist the state
long-term care ombudsman office to function as an independent state
agency. The secretary of administration and the department of adminis-
tration shall have no authority over the state long-term care ombudsman,
any regional long-term care ombudsman, any other ombudsman, includ-
ing any volunteer ombudsman, or any other officer, employee or volun-
teer of the office of the state long-term care ombudsman with respect to
the performance of any power, duty or function of the office or the ex-
ercise of any other authority of the office or the state long-term care
ombudsman.

    (b) For the fiscal year ending June 30, 2000, and for each fiscal year
thereafter, the secretary of administration shall include the budget esti-
mate of the office of the state long-term care ombudsman, as prepared
and approved by the state long-term care ombudsman, along with the
budget estimate prepared and submitted to the division of the budget for
the department of administration under K.S.A. 75-3717 and amendments
thereto. The budget estimate of the office of the state long-term care
ombudsman for each such fiscal year shall be prepared at the direction
and under the supervision of the state long-term care ombudsman. Ex-
penditures from appropriations to the department of administration for
the office of the state long-term care ombudsman, made pursuant to
budget estimates for the office, shall be made on vouchers approved by
the state long-term care ombudsman or the state long-term care om-
budsman's designee. All vouchers for expenditures and all payrolls of the
office of the state long-term care ombudsman shall be approved by the
state long-term care ombudsman or the state long-term care ombuds-
man's designee.

    New Sec. 2. (a) The secretary of aging and the state long-term care
ombudsman shall enter into agreements for the provision of financial
assistance to the office by the department on aging from available state
and federal funds of the department on aging. This financial assistance
shall be to assist the office of the state long-term care ombudsman to
provide ombudsman services in accordance with the long-term care om-
budsman act, applicable federal programs and the provisions of this sec-
tion.

    (b) Subject to the provisions of appropriation acts, the secretary of
aging and the department on aging shall continue to provide financial
assistance for the office of the state long-term care ombudsman in an
aggregate amount of not less than the aggregate of the amounts provided
during the fiscal year ending June 30, 1998, appropriately adjusted for
increases attributable to inflation and other applicable factors.

    (c) For the fiscal year ending June 30, 2000, and for each fiscal year
thereafter, the secretary of aging shall include in the budget estimate
prepared and submitted to the division of the budget for the department
on aging under K.S.A. 75-3717 and amendments thereto, in addition to
other amounts included in such budget estimate for the department on
aging, amounts to be provided to the office of the state long-term care
ombudsman during such fiscal year pursuant to this section. The amounts
included in each such budget estimate to be provided to the office of the
state long-term care ombudsman shall include amounts to be appropri-
ated from moneys provided to the department on aging under the federal
older Americans act, 42 U.S.C. 3001 et seq., and amendments thereto, or
other federal programs for the aging or from other moneys of the de-
partment on aging. In no case shall the aggregate of the amounts included
in any such budget estimate of the department on aging, that are to be
provided to the office of the state long-term care ombudsman, be less
than the aggregate of all moneys provided during the fiscal year ending
June 30, 1998, by the department on aging for the office of the state long-
term care ombudsman from appropriations to the department on aging,
including moneys received under the federal older Americans act, 42
U.S.C. 3001 et seq., and amendments thereto, or under any other federal
programs for the aging. The aggregate amounts included in each such
budget estimate of the department on aging, that are to be provided to
the office of the state long-term care ombudsman, shall be adjusted ap-
propriately for increases attributable to inflation and other applicable fac-
tors.

    Sec. 3. K.S.A. 75-5914 is hereby amended to read as follows: 75-
5914. The advisory council on aging shall have the following powers and
duties:

    (a) Provide advocacy for the aging in the affairs of the department,
the governor's office and other public and private, state and local agencies
affecting the aging.;

    (b) review and comment upon reports of the department to the gov-
ernor and the legislature.;

    (c) prepare and submit to the governor, the legislature and the sec-
retary an annual report evaluating the level and quality of all programs,
services and facilities provided to the aging by state agencies.;

    (d) review and comment upon the comprehensive state plan pre-
pared by the department.;

    (e) review and comment upon disbursements by the department of
public funds to public and private agencies.;

    (f) recommend candidates to the governor for appointment as sec-
retary of aging for the department. on aging;

    (g) consult with the secretary regarding the operations of the de-
partment.;

    (h) serve as the advisory committee to the governor and the depart-
ment on aging as required and defined in the rules and regulations, part
903.50(c), issued under the federal older Americans act of 1965 (public
law 89-73) and amendments thereto.;

    (i) review and comment to the state long-term care ombudsman upon
the policies and procedures of the office of long-term care ombudsman.;
and

    (j) consult with the state long-term care ombudsman regarding needs
for ombudsman services for aged Kansas residents.

    Sec. 4. K.S.A. 75-5916 is hereby amended to read as follows: 75-
5916. As used in the long-term care ombudsman act:

    (a) ``Ombudsman'' means the state long-term care ombudsman, any
regional long-term care ombudsman or any individual designated as an
ombudsman under subsection (h) of K.S.A. 75-5918 and amendments
thereto who has received the training required under subsection (f) of
K.S.A. 75-5918 and amendments thereto and who has been designated
by the state long-term care ombudsman to carry out the powers, duties
and functions of the office of the state long-term care ombudsman.

    (b) ``Secretary'' means the secretary of aging ``Volunteer ombudsman''
means an individual who has satisfactorily completed the training pre-
scribed by the state long-term care ombudsman under subsection (f) of
K.S.A. 75-5918 and amendments thereto, who is a volunteer assisting in
providing ombudsman services and who receives no payment for such
service other than reimbursement for expenses incurred in accordance
with guidelines adopted therefor by the state long-term care ombudsman.

    (c) ``Facility'' means an adult care home as such term is defined in
K.S.A. 39-923 and amendments thereto, except that facility does not in-
clude any nursing facility for mental health or any intermediate care fa-
cility for the mentally retarded, as such terms are defined in K.S.A. 39-
923 and amendments thereto.

    (d) ``Resident'' means a resident as such term is defined in K.S.A. 39-
923 and amendments thereto.

    (e) ``State long-term care ombudsman'' means the individual ap-
pointed by the secretary governor to administer the office of the state
long-term care ombudsman.

    (f) ``Regional long-term care ombudsman'' means an individual ap-
pointed by the secretary state long-term care ombudsman under K.S.A.
75-5917 and amendments thereto.

    (g) ``Office'' means the office of the state long-term care ombudsman.

    (h) ``Conflict of interest'' means (1) having a pecuniary or other in-
terest in a facility, but not including interests that result only from having
a relative who is a resident or from being the guardian of a resident, (2)
being actively employed or otherwise having active involvement in rep-
resentation of or advocacy for any facility or group of facilities, whether
or not such representation or advocacy is individual or through an as-
sociation or other entity, but not including any such active involvement
that results only from having a relative who is a resident or from being
the guardian of a resident, or (3) being employed by or having an active
association with any entity that represents any resident or group of res-
idents, including any area agency on aging, but not including any such
active association that results only from having a relative who is a resident
or from being the guardian of a resident.

    Sec. 5. K.S.A. 75-5917 is hereby amended to read as follows: 75-
5917. (a) On the effective date of this act, the office of the state long-term
care ombudsman in existence on the day preceding such effective date is
hereby abolished and there is hereby established under the supervision
of the secretary of aging within and as a part of the department on aging
the office of the state long-term care ombudsman, the head of which shall
be the state long-term care ombudsman. In performance of the powers,
duties and functions prescribed by law, the office shall be an independent
state agency. The state long-term care ombudsman shall be appointed by
the secretary of aging and shall be in the classified service of the Kansas
civil service act governor, subject to confirmation by the senate as pro-
vided in K.S.A. 75-4315b and amendments thereto. The term of office of
the first person appointed as the state long-term care ombudsman on or
after the effective date of this act shall expire on January 15, 2000, and
such state long-term care ombudsman shall serve until a successor is ap-
pointed and confirmed. Thereafter, each person appointed as the state
long-term care ombudsman shall have a term of office of four years and
shall serve until a successor is appointed and confirmed.

    (b) The secretary of aging long-term care ombudsman shall appoint
each regional long-term care ombudsman and all officers and employees
of the office of state long-term care ombudsman within the department
on aging. Each regional long-term care ombudsman and all such officers
and employees shall be within the classified service under the Kansas civil
service act. Under the supervision of the secretary of aging

    (c) In accordance with the provisions of this act, the state long-term
care ombudsman shall administer the office of the state long-term care
ombudsman.

    (d) No person shall be eligible to be appointed to, or to hold, the office
of state long-term care ombudsman if such person is subject to a conflict
of interest. No person shall be eligible for appointment as the state long-
term care ombudsman unless such person has:

    (1) A baccalaureate or higher degree from an accredited college or
university;

    (2) demonstrated abilities to analyze problems of law, administration
and public policy; and

    (3) experience in investigation and conflict resolution procedures.

    (e) (1) On the effective date of this act, all of the powers, duties,
functions, records and property of the office of the state long-term care
ombudsman abolished by this section, which are prescribed for the office
of the state long-term care ombudsman by this act, are hereby transferred
to and conferred and imposed upon the office of the state long-term care
ombudsman that is established by this section, except as is otherwise spe-
cifically provided by this act. On the effective date of this act, all of the
powers, duties, functions, records and property of the secretary of aging
or the department on aging, which relate to or are required for the per-
formance of powers, duties or functions which are prescribed for the office
of the state long-term care ombudsman or the state long-term care om-
budsman by this act, including the power to expend funds now or here-
after made available in accordance with appropriation acts, are hereby
transferred to and conferred and imposed upon the office of the state long-
term care ombudsman and the state long-term care ombudsman that are
established by this section, except as is otherwise specifically provided by
this act.

    (2) The office of the state long-term care ombudsman established by
this section shall be the successor in every way to the powers, duties and
functions of the office of the state long-term care ombudsman, the secre-
tary of aging, or the department on aging in which such powers, duties
and functions were vested prior to the effective date of this act, except as
otherwise specifically provided by this act. Every act performed under
the authority of the office of the state long-term care ombudsman estab-
lished by this act shall be deemed to have the same force and effect as if
performed by the office of the state long-term care ombudsman, the sec-
retary of aging or the department on aging in which such powers, duties
and functions were vested prior to the effective date of this act.

    (3) Subject to the provisions of this act, whenever the office of the
state long-term care ombudsman that is abolished by this act or the sec-
retary on aging or the department on aging, or words of like effect, is
referred to or designated by a statute, contract, or other document, and
such reference or designation relates to a power, duty or function which
is transferred to and conferred and imposed upon the office of the state
long-term care ombudsman that is established by this act, such reference
or designation shall be deemed to apply to the office of the state long-term
care ombudsman established by this act.

    (4) All policies, orders or directives of the office of the state long-term
care ombudsman that is abolished by this act and all policies, orders or
directives of the secretary of aging, which are in existence on the effective
date of this act and which relate to powers, duties and functions that were
vested in such office of the state long-term care ombudsman or the sec-
retary of aging prior to such date, shall continue to be effective and shall
be deemed to be the policies, orders or directives of the state long-term
care ombudsman established by this act, until revised, amended or re-
voked or nullified pursuant to law. The office of the state long-term care
ombudsman established by this act shall be deemed to be a continuation
of the office of the state long-term care ombudsman abolished by this act.

    (5) (A) The state long-term care ombudsman and the secretary of
administration shall provide that all officers and employees of the de-
partment on aging, who are engaged in the exercise and performance of
the powers, duties and functions of the programs of the office of the state
long-term care ombudsman that are transferred by this act, are trans-
ferred to the office of the state long-term care ombudsman established by
this section.

    (B) Officers and employees of the department on aging transferred
under this act shall retain all retirement benefits and leave rights which
had accrued or vested prior to each date of transfer. The service of each
officer or employee so transferred shall be deemed to be continuous. All
transfers, layoffs and abolition of classified service positions under the
Kansas civil service act which may result from program transfers under
this act shall be made in accordance with the civil service laws and any
rules and regulations adopted thereunder. Nothing in this act shall affect
the classified status of any transferred person employed by the department
on aging prior to the date of transfer.

    (C) If the state long-term care ombudsman and the secretary of aging
cannot agree as to how any transfer of an officer or employee is to take
place under this section, the state long-term care ombudsman and the
secretary of administration shall be responsible for administering any lay-
off that is part of the transfer in accordance with this act.

    (D) Notwithstanding the effective date of this act, the provisions of
this act prescribing the transfer of officers and employees between the
office of the state long-term care ombudsman established by this section
and the department on aging, the date of transfer of each such officer or
employee shall commence at the start of a payroll period.

    Sec. 6. K.S.A. 75-5917a is hereby amended to read as follows: 75-
5917a. (a) The secretary state long-term care ombudsman shall ensure
that:

    (a) (1) No individual involved in the designation authorization of any
individual to represent the office as an ombudsman or a volunteer om-
budsman is subject to a conflict of interest;

    (b) (2) no officer, employee or other representative of the office is
subject to a conflict of interest;

    (c) (3) policies and procedures are in place to identify and remedy all
conflicts of interest specified under paragraphs (a) (1) and (b) (2);

    (d) (4) legal counsel is available to the office for advice and consul-
tation and that legal representation is provided to any ombudsman against
whom suit or other legal action is brought in connection with the per-
formance of the ombudsman's official duties; and

    (e) (5) the office has the ability to pursue administrative, legal and
other appropriate remedies on behalf of residents of facilities.

    (b) The state long-term care ombudsman may enter into contracts
with service providers to provide investigative, legal, public education,
training or other services as may be required to assist the state long-term
care ombudsman in providing ombudsman services to residents of facili-
ties or as otherwise required to carry out the powers, duties and functions
of the office. Contracts entered into under this subsection shall not be
subject to the competitive bidding requirements of K.S.A. 75-3739 and
amendments thereto. No contract may be entered into by the state long-
term care ombudsman to privatize the office or to otherwise provide that
all or substantially all of the ombudsman services or functions of the office
are to be performed by one or more service providers.

    (c) For the purposes of carrying out the powers and duties of the office
of the state long-term care ombudsman, the state long-term care om-
budsman may request and accept a grant or donation from any person,
firm, association or corporation or from any federal, state or local gov-
ernmental agency and may enter into contracts or other transactions with
any such person or entity in connection with the grant or donation.

    Sec. 7. K.S.A. 75-5918 is hereby amended to read as follows: 75-
5918. The state long-term care ombudsman shall be an advocate of resi-
dents in facilities throughout the state. The state long-term care om-
budsman shall:

    (a) Investigate and resolve complaints made by or on behalf of the
residents relating to action, inaction or decisions of facilities or the rep-
resentatives of facilities, or both, except that all complaints of abuse, ne-
glect or exploitation of a resident shall be referred to the secretary of
health and environment in accordance with provisions of K.S.A. 39-1401
et seq. and amendments thereto;

    (b) develop continuing programs to inform residents, their family
members or other persons responsible for residents regarding the rights
and responsibilities of residents and such other persons;

    (c) provide the legislature, and the governor and the secretary with
an annual report containing data and, findings and outcomes regarding
the types of problems experienced and complaints received by or on be-
half of residents and containing policy, regulatory and legislative recom-
mendations to solve such problems, resolve such complaints and improve
the quality of care and life in facilities and shall present such report and
other appropriate information and recommendations to the senate com-
mittee on public health and welfare, the senate committee on ways and
means, the house of representatives committee on health and human serv-
ices and the house of representatives committee on appropriations during
each regular session of the legislature;

    (d) analyze and monitor the development and implementation of fed-
eral, state and local government laws, rules and regulations, resolutions,
ordinances and policies with respect to long-term care facilities and serv-
ices provided in this state, and recommend any changes in such laws,
regulations, resolutions, ordinances and policies deemed by the office to
be appropriate;

    (e) provide information and recommendations directly to news media
representatives, public agencies, legislators and others, as deemed nec-
essary by the office, regarding the problems and concerns of older indi-
viduals residing residents in facilities, including recommendations related
thereto, except that the state long-term care ombudsman shall give the
information or recommendations to any directly affected parties or their
representatives before providing such information or recommendations to
news media representatives;

    (f) prescribe and provide for the training of the state long-term care
ombudsman, each regional long-term care ombudsman and any individual
designated as an ombudsman under subsection (h) of K.S.A. 75-5918 and
amendments thereto this section, and any individual who is an ombuds-
man volunteer in (1) federal, state and local laws, rules and regulations,
resolutions, ordinances and policies with respect to facilities located in
Kansas, (2) investigative techniques, and (3) such other matters as the
secretary state long-term care ombudsman deems appropriate;

    (g) coordinate ombudsman services provided by the office with the
protection and advocacy systems for individuals with developmental dis-
abilities and mental illness established under part A of the federal devel-
opmental disabilities assistance and bill of rights act, 42 U.S.C.A. 6001 et
seq., and under the federal protection and advocacy for mentally ill in-
dividuals act of 1986, public law 99-316;

    (h) consider authorize an individual, who is an employee of an area
agency on aging which provides ombudsman services the office and who
has been designated as satisfactorily completed the training prescribed
by the state long-term care ombudsman under subsection (f), to be an
ombudsman by the state long-term care ombudsman or a volunteer om-
budsman and to be a representative of the office and such an authorized
individual shall be deemed to be a representative of the office for the
purposes of this and subject to the provisions of the long-term care om-
budsman act;

    (i) establish and maintain a system to recruit and train individuals to
become volunteer ombudsmen;

    (j) develop and implement procedures for authorizing and for with-
drawing the authorization of individuals to be ombudsmen or volunteer
ombudsmen to represent the office in providing ombudsmen services;

    (k) provide services to residents of facilities throughout the state di-
rectly or through service providers to meet needs for ombudsmen services;

    (l) collaborate with the department of health and environment and
the department of social and rehabilitation services to establish a state-
wide system to collect and analyze information on complaints and con-
ditions in facilities; and

    (j) (m) perform such other duties and functions as may be provided
by law or as may be directed by the secretary of aging.

    Sec. 8. K.S.A. 75-5918a is hereby amended to read as follows: 75-
5918a. No individual shall investigate any complaint filed with the office
of the state long-term care ombudsman unless the individual has received
the training required under subsection (f) of K.S.A. 75-5918 and amend-
ments thereto and has been designated by the state long-term care om-
budsman as an ombudsman or a voluntary ombudsman qualified to in-
vestigate such complaints.

    Sec. 9. K.S.A. 75-5919 is hereby amended to read as follows: 75-
5919. (a) An ombudsman or a volunteer ombudsman is hereby authorized
to enter any facility and any area within such facility at any time with or
without prior notice and shall have access to the residents of a facility at
all times.

    (b) An ombudsman or a volunteer ombudsman shall notify immedi-
ately the person in charge of a facility upon arrival and shall present
appropriate identification.

    (c) Residents shall have the right to request, deny or terminate visits
with an ombudsman or a volunteer ombudsman.

    Sec. 10. K.S.A. 75-5920 is hereby amended to read as follows: 75-
5920. (a) With the written consent of the resident of the facility, guardian
of the resident or next of kin of a deceased resident, an ombudsman shall
have access to all records and documents kept for or concerning the
resident.

    (b) An ombudsman shall have access to all records and documents
kept for or concerning a resident (1) in any case in which the resident is
unable to consent and has no guardian, and (2) in a case in which (A)
access to the records and documents is necessary to investigate a com-
plaint, (B) the resident is unable to consent and the guardian of the res-
ident refuses to give permission for such access, (C) the investigating om-
budsman has reasonable cause to believe that the guardian is not acting
in the best interests of the resident, and (D) the state long-term care
ombudsman has approved such access by the investigating ombudsman.

    (c) In addition, in assisting a resident of a facility, an ombudsman
shall have access to all records and documents of the facility which are
relevant to such assistance to the extent necessary to carry out the pro-
visions of the long-term care ombudsman act.

    (d) A volunteer ombudsman shall have access to the plan of care and
other records or documents kept for or concerning the resident to the
same extent and under the same circumstances as an ombudsman under
this section, except that a volunteer ombudsman shall not have access to
any such other records and documents that are privileged medical re-
cords.

    Sec. 11. K.S.A. 75-5921 is hereby amended to read as follows: 75-
5921. All information, records and reports received by or developed by
an ombudsman or a volunteer ombudsman which relate to a resident of
a facility, including written material identifying a resident or other com-
plainant, are confidential and not subject to the provisions of K.S.A. 45-
201 to 45-203, inclusive, and amendments thereto, and shall not be dis-
closed or released by an ombudsman or a volunteer ombudsman, either
by name of the resident or other complainant or of facts which allow the
identity of the resident or other complainant to be inferred, except upon
the order of a court or unless the resident or the resident's legal repre-
sentative or other complainant consents in writing to such disclosure or
release by an ombudsman or a volunteer ombudsman, except the state
long-term care ombudsman shall forward to the secretary of health and
environment and the secretary of social and rehabilitation services copies
of reports received by the state long-term care ombudsman relating to
the health and safety of residents and except as provided in subsection
(a) of K.S.A. 75-5918 and amendments thereto. A summary report and
findings shall be forwarded to the facility, exclusive of information or
material that identifies residents or any other individuals.

    Sec. 12. K.S.A. 75-5922 is hereby amended to read as follows: 75-
5922. An ombudsman shall have access to all records and documents kept
by the department of health and environment and, the department of
social and rehabilitation services and the department on aging which re-
late to facilities and concern the following matters: (a) Licensure of fa-
cilities; (b) certification of facilities; (c) public funding reimbursement for
care of residents of facilities; (d) utilization and medical review records;
and (e) complaints regarding care of residents of facilities. The provisions
of this sections shall not apply to a volunteer ombudsman.

    Sec. 13. K.S.A. 75-5922a is hereby amended to read as follows: 75-
5922a. No ombudsman or volunteer ombudsman shall be liable for the
good faith performance of official duties.

    Sec. 14. K.S.A. 75-5922b is hereby amended to read as follows: 75-
5922b. (a) No person shall willfully interfere with any lawful action or
activity of an ombudsman or a volunteer ombudsman, including the re-
quest for immediate entry into a facility.

    (b) No person shall take any discriminatory, disciplinary or retaliatory
action against any officer or employee of a facility or against any resident
or any guardian or family member thereof for any communication by any
such individual with an ombudsman or a volunteer ombudsman or for
any information given or disclosed by such individual in good faith to aid
the office in carrying out its duties and responsibilities.

    (c) Any person that violates the provisions of subsection (a) or the
provisions of subsection (b) shall be guilty of a class C misdemeanor.

    Sec. 15. K.S.A. 75-5922c is hereby amended to read as follows: 75-
5922c. The provisions of sections 1 and 2 and K.S.A. 75-5916 through
75-5922c and amendments thereto shall be known and may be cited as
the long-term care ombudsman act.

    Sec. 16. K.S.A. 75-5914, 75-5916, 75-5917, 75-5917a, 75-5918, 75-
5918a, 75-5919, 75-05920, 75-5921, 75-5922, 75-5922a, 75-5922b and 75-
5922c are hereby repealed.

    Sec. 17. This act shall take effect and be in force from and after June
14, 1998, and its publication in the Kansas register.

I hereby certify that the above Bill originated in the House,
and passed that body

__________________________________

House concurred in
Senate amendments __________________________

__________________________________

Speaker of the House.

__________________________________

Chief Clerk of the House.

Passed the Senate
as amended __________________________

__________________________________

President of the Senate

__________________________________

Secretary of the Senate.

Aproved __________________________

__________________________________

Governor.