As Amended by House Committee
         

         
As Amended by Senate Committee
         

          Session of 1998
                   
SENATE BILL No. 399
         
By Legislative Budget Committee
         
12-17
          12             AN ACT concerning persons in the custody of the secretary of corrections
13             providing certain services to Kansas soldiers' home and, Kansas vet-
14             erans' home, Larned state hospital or Osawatomie state hospital;
15             exemption from certain requirements; amending K.S.A. 1997 Supp.
16             39-970 and repealing the existing section.
17            
18       Be it enacted by the Legislature of the State of Kansas:
19           Section 1. K.S.A. 1997 Supp. 39-970 is hereby amended to read as
20       follows: 39-970. (a) On and after July 1, 1998, no person shall knowingly
21       operate an adult care home if, in the adult care home, there works any
22       person who:
23           (1) (A) Has a felony conviction for a crime which is described in
24       articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated and
25       acts amendatory thereof or supplemental thereto, except K.S.A. 21-3605
26       and amendments thereto, or a conviction of an attempt under K.S.A.
27       21-3301 and amendments thereto to commit any such act, or (B) has
28       been convicted of any act which is described in K.S.A. 21-4301 or 21-
29       4301a and amendments thereto or similar statutes of other states or the
30       federal government;
31           (2) has been adjudicated a juvenile offender because of having com-
32       mitted an act which if done by an adult would constitute the commission
33       of a felony and which is a crime against persons, is any act described in
34       articles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated and
35       acts amendatory thereof or supplemental thereto except K.S.A. 21-3605
36       and amendments thereto, or is any act described in K.S.A. 21-4301 or
37       21-4301a and amendments thereto or similar statutes of other states or
38       the federal government;
39           (3) has committed an act of physical, mental or emotional abuse or
40       neglect or sexual abuse as validated by the department of social and re-
41       habilitation services pursuant to K.S.A. 38-1523 and amendments thereto
42       and (A) the person has failed to successfully complete a corrective action
43       plan which had been deemed appropriate and approved by the depart-

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  1       ment of social and rehabilitation services, or (B) the record has not been
  2       expunged pursuant to rules and regulations adopted by the secretary of
  3       social and rehabilitation services;
  4           (4) has had a child declared in a court order in this or any other state
  5       to be deprived or a child in need of care based on an allegation of physical,
  6       mental or emotional abuse or neglect or sexual abuse;
  7           (5) has had parental rights terminated pursuant to the Kansas juvenile
  8       code or K.S.A. 38-1581 through 38-1584, and amendments thereto, or a
  9       similar statute of other states;
10           (6) has signed a diversion agreement pursuant to K.S.A. 22-2906 et
11       seq., and amendments thereto, or pursuant to K.S.A. 38-1635 and amend-
12       ments thereto involving a charge of child abuse or a sexual offense;
13           (7) has been found by the department of health and environment or
14       the department of social and rehabilitation services under K.S.A. 39-1401
15       et seq. and amendments thereto to have committed an act of abuse, ne-
16       glect or exploitation of a resident; or
17           (8) has been found by the department of social and rehabilitation
18       services under K.S.A. 39-1430 et seq. and amendments thereto to have
19       committed an act of abuse, neglect or exploitation of an adult.
20           (b) No person shall operate an adult care home if such person has
21       been found to be a disabled person in need of a guardian or conservator,
22       or both.
23           (c) In accordance with the provisions of this subsection (c), the sec-
24       retary of health and environment shall have access to any criminal history
25       record information in the possession of the Kansas bureau of investigation
26       and any report of investigations as authorized by subsection (e) of K.S.A.
27       38-1523 and amendments thereto in the possession of the department of
28       social and rehabilitation services, or any reports of investigations, findings
29       or assessments as provided in K.S.A. 39-1402 and amendments thereto,
30       39-1404 and amendments thereto, 39-1411 and amendments thereto, 39-
31       1433 and amendments thereto and 39-1434 and amendments thereto, in
32       the possession of the department of health and environment or the de-
33       partment of social and rehabilitation services concerning persons working
34       in an adult care home. The secretary shall have access to these records
35       for the purpose of determining whether or not the adult care home meets
36       the requirements of this section. The Kansas bureau of investigation may
37       charge to the department of health and environment a reasonable fee for
38       providing criminal history record information under this subsection.
39           (d) For the purpose of complying with this section, the operator of
40       an adult care home shall request from the department of health and
41       environment information obtained by the secretary of health and envi-
42       ronment under subsection (c) and information available under subsection
43       (c)(4) of K.S.A. 39-936 and amendments thereto, if any, which relates to

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  1       a person who works in the adult care home, or is being considered for
  2       employment by the adult care home, for the purpose of determining
  3       whether such person is subject to the provision of this section. For the
  4       purpose of complying with this section, the operator of an adult care home
  5       shall receive from any employment agency which provides employees to
  6       work in the adult care home written certification that such employees are
  7       not prohibited from working in the adult care home under this section.
  8       For the purpose of complying with this section, information relating to
  9       convictions and adjudications by the federal government or to convictions
10       and adjudications in states other than Kansas shall not be required until
11       such time as the secretary of health and environment determines the
12       search for such information could reasonably be performed and the in-
13       formation obtained within a two-week period. For the purpose of com-
14       plying with this section, a person who operates an adult care home may
15       hire an applicant for employment on a conditional basis pending the re-
16       sults from the department of health and environment of a request for
17       information under this subsection. No adult care home, the operator or
18       employees of an adult care home or an employment agency, or the op-
19       erator or employees of an employment agency, shall be liable for civil
20       damages resulting from any decision to employ, to refuse to employ or
21       to discharge from employment any person based on such adult care
22       home's compliance with the provisions of this section if such adult care
23       home or employment agency acts in good faith to comply with this sec-
24       tion.
25           (e) For the purpose of subsection (a)(3), an act of abuse or neglect
26       shall not be considered to have been validated by the department of social
27       and rehabilitation services unless the alleged perpetrator has: (1) Had an
28       opportunity to be interviewed and present information during the inves-
29       tigation of the alleged act of abuse or neglect; and (2) been given notice
30       of the agency decision and an opportunity to appeal such decision to the
31       secretary and to the courts pursuant to the act for judicial review and civil
32       enforcement of agency actions.
33           (f) The secretary of health and environment shall charge each person
34       requesting information under this section a fee equal to cost, not to ex-
35       ceed $10, for each name about which an information request has been
36       submitted to the department under this section.
37           (g) No person who works for an adult care home and who is currently
38       licensed or registered by an agency of this state to provide professional
39       services in the state and who provides such services as part of the work
40       which such person performs for the adult care home shall be subject to
41       the provisions of this section.
42           (h) A person who volunteers in an adult care home shall not be sub-
43       ject to the provisions of this section because of such volunteer activity.

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  1           (i) No person who has been employed by the same adult care home
  2       for five consecutive years immediately prior to the effective date of this
  3       act shall be subject to the provisions of this section while employed by
  4       such adult care home.
  5           (j) No person who is in the custody of the secretary of corrections and
  6       who provides services in nonpatient areas or on the grounds of the Kansas
  7       soldiers' home or the Kansas veterans' home shall be subject to the pro-
  8       visions of this section while providing such services. No person who is
  9       in the custody of the secretary of corrections and who provides serv-
10       ices, under direct supervision, in nonpatient areas, on the grounds
11       or other areas designated by the superintendent, of the Kansas sol-
12       diers' home, the Kansas veterans' home, Larned state hospital or
13       Osawatomie state hospital shall be subject to the provisions of this
14       section while providing such services.
15           (j) (k) The operator of an adult care home shall not be required under
16       this section to conduct a background check on an applicant for employ-
17       ment with the adult care home if the applicant has been the subject of a
18       background check under this act within one year prior to the application
19       for employment with the adult care home.
20           (k) (l) This section shall be part of and supplemental to the adult care
21       home licensure act.
22           Sec. 2. K.S.A. 1997 Supp. 39-970 is hereby repealed.
23           Sec. 3. This act shall take effect and be in force from and after its
24       publication in the statute book.
25