Kansas Session Laws Chapter 99

CHAPTER 99 SENATE BILL No. 107 An Act concerning the secretary of health and environment; enacting the residential child-
hood lead poisoning prevention act; rescinding the expiration date for school health
assessments; amending K.S.A. 1998 Supp. 72-5214 and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 1998 Supp. 72-5214 is hereby amended to read as
follows: 72-5214. (a) As used in this section:

(1) ``School board'' means the board of education of a school district
and the governing authority of any nonpublic school;

(2) ``school'' means all elementary schools within the state;

(3) ``local health department'' means any county or joint board of
health having jurisdiction over the place where any pupil affected by this
section may reside;

(4) ``secretary'' means the secretary of health and environment;

(5) ``physician'' means a person licensed to practice medicine and
surgery;

(6) ``nurse'' means a person licensed to practice professional nursing;

(7) ``health assessment'' means a health history, physical examination
and such screening tests as are medically indicated to determine hearing
ability, vision ability, nutrition adequacy and appropriate growth and de-
velopment;

(8) ``clinic'' means an indigent health care clinic as defined by K.S.A.
75-6102 and amendments thereto.

(b) Subject to the provisions of subsection (d) and subsection (g), on
and after July 1, 1994, every pupil up to the age of nine years who has
not previously enrolled in any school in this state, prior to admission to
and attendance in school, shall present to the appropriate school board
the results of a health assessment, pursuant to subsection (g), which as-
sessment shall have been conducted within 12 months of school entry by
a nurse who has completed the department of health and environment
training and certification, by a physician or by a person acting under the
direction of a physician. Information contained in the health assessment
shall be confidential and shall not be disclosed or made public beyond
that necessary under this section except that: (1) Information contained
in the health assessment may be disclosed to school board personnel but
only to the extent necessary to administer this section and protect the
health of the pupil; (2) if a medical emergency exists, the information
contained in the health assessment may be disclosed to medical personnel
to the extent necessary to protect the health of the pupil; (3) if the parent
or guardian of a pupil under 18 years of age consents to the disclosure of
the information contained in the health assessment or, if the pupil is 18
years of age or older, if the pupil consents to the disclosure of the infor-
mation; and (4) if no person can be identified in the information to be
disclosed and the disclosure is for statistical purposes.

(c) As an alternative to the health assessment required under sub-
section (b), a pupil shall present:

(1) A written statement signed by one parent or guardian that the
child is an adherent of a religious denomination whose religious teachings
are opposed to such assessments; or

(2) a written statement signed by one parent or guardian that such
assessment will be scheduled and completed within 90 days after admis-
sion to school.

(d) Prior to the commencement of each school year, the school board
of every school affected by this section shall give to all known pupils who
will be enrolling in the school and who are subject to the requirements
of subsection (b) or (c)(1) and (2), a copy of any policy regarding the
implementation of the provisions of this section adopted by the school
board.

(e) If a pupil transfers from one school to another, the school board
of the school from which the pupil transfers shall forward with the pupil's
transcript, upon request of the parent or guardian of the pupil therefor,
the results of the health assessment showing evidence of compliance with
the requirements of this section to the school board of the school to which
the pupil transfers.

(f) Local health departments and clinics may charge a sliding fee for
providing such health assessments based on ability to pay and no pupil
shall be denied the health assessment due to inability to pay. The local
health officer shall counsel and advise local school boards on the admin-
istration of this section. The secretary may adopt rules and regulations to
award grants to assist local health departments and clinics in providing
such health assessments, consistent with state appropriations.

(g) The secretary may adopt rules and regulations necessary to carry
out the provisions of this section, but shall not prescribe a form on which
the results of health assessments are reported.

(h) The school board of every school affected by this section may
exclude from school attendance, or by policy adopted by any such school
board authorize any certificated employee or committee of certificated
employees to exclude from school attendance, any pupil who is subject
to and who has not complied with the requirements of subsection (b) or
(c). A pupil shall be subject to exclusion from school attendance under
this section until such time as the pupil shall have complied with the
requirements of subsection (b) or (c). The policy shall include provisions
for written notice to be given to the parent or guardian of the involved
pupil. The notice shall indicate the reason for the exclusion from school
attendance, state that the pupil shall continue to be excluded until the
pupil has complied with the requirements of subsection (b) or (c) and
inform the parent or guardian that a hearing thereon shall be afforded
the parent or guardian upon request for a hearing.

(i) The provisions of K.S.A. 72-1111 and amendments thereto do not
apply to any pupil while excluded from school attendance under the pro-
visions of subsection (h).

~~(j) The provisions of this section shall expire on July 1, 1999.~~

New Sec. 2. Sections 2 to 16, inclusive, of this act shall be known
and may be cited as the residential childhood lead poisoning prevention
act.

New Sec. 3. Definitions. As used in the residential childhood lead
poisoning prevention act:

(a) ``Abatement'' means any measure or set of measures designed to
permanently eliminate lead-based paint hazards as defined in the federal
program.

(b) ``Accredited training program'' means a training program that has
been accredited by the federal program or the secretary to present train-
ing courses to individuals engaged in lead-based paint activities.

(c) ``Business entity'' means a company, partnership, corporation, sole
proprietorship, association, or other business concern.

(d) ``Certificate'' means an authorization issued by the secretary per-
mitting an individual to engage in lead-based paint activities.

(e) ``Federal program'' means subpart L, lead-based paint activities
of 40 CFR part 745, as in effect on the effective date of this act.

(f) ``Lead-based paint'' means paint or other surface coatings that
contain lead equal to or in excess of one milligram per square centimeter
or more than 0.5% by weight.

(g) ``Lead-based paint activities'' means the inspection, assessment
and abatement of lead-based paint, including the disposal of waste gen-
erated therefrom.

(h) ``License'' means an authorization issued by the secretary per-
mitting a business entity to engage in lead-based paint activities.

(i) ``Public agency'' means any state agency or political or taxing sub-
division of the state and those federal departments, agencies or instru-
mentalities thereof which are not subject to preemption.

(j) ``Secretary'' means the secretary of health and environment.

(k) ``Residential dwelling'' means a detached single family dwelling
or a single family dwelling unit in a structure that contains more than one
separate residential dwelling unit used as a place of residence for habi-
tation by an individual or the individual's immediate family, or both.

(l) ``Habitation'' means a place of abode or residence constructed be-
fore 1978 where individuals eat, sleep and reside.

(m) ``Immediate family'' means spouse, parent, stepparent, child,
stepchild or sibling.

New Sec. 4. The secretary shall administer the provisions of the res-
idential childhood lead poisoning prevention act. In administering the
provisions of the residential childhood lead poisoning prevention act, the
secretary shall be authorized to:

(a) Develop and implement a childhood lead poisoning prevention
program as necessary to protect the health of the children of Kansas,
which may include provisions to:

(1) Investigate the extent of childhood lead poisoning in Kansas;

(2) develop a data management system designed to collect and ana-
lyze information on childhood lead poisoning;

(3) develop and conduct programs to educate health care providers
regarding the magnitude and severity of and the necessary responses to
lead poisoning in Kansas;

(4) issue recommendations for the methods and intervals for blood
lead screening and testing of children, taking into account recommen-
dations by the United States centers for disease control and prevention,
except that no child shall be screened or tested if the child's parent or
guardian objects in writing on the ground that such screening or testing
is contrary to the parent's or guardian's religious beliefs and practices;

(5) develop and issue health advisories urging health care providers
to conduct blood lead screening of children;

(6) encourage health care providers to ensure that parents and guard-
ians of children are advised of the availability and advisability of screening
and testing for lead poisoning;

(7) develop a program to assist local health departments in identifi-
cation and follow-up of cases of elevated blood lead levels in children and
other high-risk individuals; and

(8) in consultation with appropriate federal, state and local agencies,
develop a comprehensive public education program regarding environ-
mental lead exposures and lead poisoning by:

(A) Identifying appropriate target groups that are in a position to
prevent lead poisoning or reduce the number of children who are exposed
to lead;

(B) assessing the information needed for each of the target groups
and determine the best means of educating the members of each target
groups; and

(C) disseminating the information to the target groups in an effective
manner.

(b) adopt rules and regulations necessary for the administration of
the residential childhood lead poisoning prevention act including, but not
limited to, licensure of business entities and public agencies, certification
of individuals, accreditation of training programs, on-site inspections and
requirements, notification and record keeping, procedures and work
practice standards relating to lead-based paint activities as are necessary
to protect the public health and safety;

(c) adopt by rules and regulations a reasonable schedule of fees for
the issuance and renewal of certificates and licenses, training program
accreditations and on-site inspections. The fees shall be periodically in-
creased or decreased consistent with the need to cover the direct and
indirect costs to administer the program. At no time shall such fees exceed
those charged by the United States environmental protection agency for
the same or similar regulatory programs. The fees shall be based upon
the amount of revenue determined by the secretary to be required for
proper administration of the provisions of the residential childhood lead
poisoning prevention act. State and local health department personnel
certifying for the purpose of environmental investigation of lead poisoned
children shall be exempted from licensure fees;

(d) conduct on-site inspections of procedures being utilized by a li-
censee during an actual abatement project and conduct inspection of the
records pertaining to the residential childhood lead poisoning prevention
act;

(e) adopt rules and regulations regarding the distribution of lead haz-
ard information to owners and occupants of housing prior to conducting
renovation activities in housing;

(f) develop rules and regulations to control and disposition and reuse
of architectural debris that contains lead-based paint.

New Sec. 5. (a) A business entity or public agency shall not engage
in a lead-based paint activity unless the business entity or public agency
holds a license issued by the secretary for that purpose.

(b) Except as otherwise provided in the residential childhood lead
poisoning prevention act, no individual shall engage in lead-based paint
activities unless the individual holds a certificate issued by the secretary
for that purpose. In order to qualify for a certificate, an individual must
have successfully completed an accredited training program and pass a
third party exam as required by the secretary. Any individual who owns
and resides in a residential dwelling may perform lead-based paint activ-
ities within such residential dwelling even though such individual does
not hold a certificate for that purpose under the residential childhood
lead poisoning prevention act. All work performed by such individual
owner of a residential dwelling must be performed in accordance with
state and federal guidelines or statutes, or both.

(c) Any business or public agency that owns or leases a nonresidential
dwelling may perform lead-based paint activities within such facility even
though such business or public agency does not hold a license for that
purpose under the residential childhood lead poisoning prevention act.
All work performed by a business or public agency on such facility must
be performed in accordance with state and federal guidelines or statutes,
or both.

New Sec. 6. In order to qualify for a license, a business entity or
public agency shall:

(a) Ensure that each employee or agent of the business entity or pub-
lic agency who will engage in a lead-based paint activity is certified;

(b) demonstrate to the satisfaction of the secretary that the business
entity or public agency is capable of complying with all requirements,
procedures and standards of the United States environmental protection
agency, the United States occupational safety and health administration
and the secretary, as applicable, to lead-based paint activities;

(c) comply with all rules and regulations adopted by the secretary
under the residential childhood lead poisoning prevention act; and

(d) allow representatives of the secretary, after identification, to enter
and inspect any habitation or property on which a habitation is situated
at any reasonable time with consent of the owner or under search warrant
for the purpose of inspecting lead-based paint activities as required in
order to implement provisions of the residential childhood lead poisoning
prevention act.

New Sec. 7. The secretary shall remit all moneys received from the
fees established pursuant to the residential childhood lead poisoning pre-
vention act to the state treasurer at least monthly. Upon receipt of each
remittance, the state treasurer shall deposit the entire amount thereof in
the lead-based paint hazard fee fund established in section 8 and amend-
ments thereto.

New Sec. 8. (a) There is established in the state treasury the lead-
based paint hazard fee fund. Revenue from the following sources shall
be deposited in the state treasury and credited to the fund:

(1) Fees collected under the residential childhood lead poisoning pre-
vention act for licensure and certification to engage in lead-based paint
activities, accreditation of training programs and fees for evaluation of
abatement projects;

(2) any moneys recovered by the state under the residential childhood
lead poisoning prevention act, including administrative expenses, civil
penalties and moneys paid under any agreement, stipulation or settle-
ment;

(3) any moneys collected or received from public or private grants
and from gifts and donations; and

(4) interest attributable to investment of moneys in the fund.

(b) Moneys deposited in the fund shall be expended only for the
purpose of administering the residential childhood lead poisoning pre-
vention act and for no other governmental purposes.

(c) On or before the 10th day of each month, the director of accounts
and reports shall transfer from the state general fund to the lead-based
paint hazard fee fund interest earnings based on:

(1) The average daily balance of moneys in the lead-based paint haz-
ard fee fund for the preceding month; and

(2) the net earnings rate of the pooled money investment portfolio
for the preceding month.

(d) All expenditures from the fund shall be made in accordance with
appropriation acts upon warrants of the director of accounts and reports
issued pursuant to vouchers approved by the secretary for the purposes
set forth in this section.

New Sec. 9. (a) The secretary may refuse to issue a license or may
suspend or revoke any license issued under the residential childhood lead
poisoning prevention act if the secretary finds, after notice and hearing
conducted in accordance with the provisions of the Kansas administrative
procedure act, that the applicant or licensee has:

(1) Fraudulently or deceptively obtained or attempted to obtain a
license;

(2) failed at any time to meet the qualifications for a license or to
comply with any rules and regulations adopted by the secretary under the
residential childhood lead poisoning prevention act;

(3) failed at any time to meet any applicable federal or state standard
for lead-based paint activities; or

(4) employed or permitted an uncertified individual to work on a
lead-based paint activity.

(b) The secretary may refuse to issue a certificate or may suspend or
revoke any certificate issued under the residential childhood lead poison-
ing prevention act if the secretary finds, after notice and hearing con-
ducted in accordance with the provisions of the Kansas administrative
procedure act, that the applicant for certificate or certificate holder has:

(1) Fraudulently or deceptively obtained or attempted to obtain a
certificate; or

(2) failed at any time to meet qualifications for a certificate or to
comply with any provision or requirement of the residential childhood
lead poisoning prevention act or any rules and regulations adopted by the
secretary under the residential childhood lead poisoning prevention act.

(c) The secretary may deny, suspend or revoke any accreditation of
a training program under the residential childhood lead poisoning pre-
vention act if the secretary finds, after notice and hearing conducted in
accordance with the provisions of the Kansas administrative procedure
act, that the applicant for training program accreditation or training pro-
vider has:

(1) Fraudulently or deceptively obtained or attempted to obtain ac-
creditation of a training program;

(2) failed at any time to meet the qualifications to obtain accreditation
of a training program or to comply with any rules and regulations adopted
by the secretary under the residential childhood lead poisoning preven-
tion act;

(3) failed to maintain or provide information on training programs;
or

(4) falsified information, accreditation or approval records, instructor
qualification information or other accreditation or approval information
required to be submitted by the secretary.

(d) Any individual, business entity or accredited training program ag-
grieved by a decision or order of the secretary may appeal the order or
decision in accordance with the provisions of the act for judicial review
and civil enforcement of agency actions.

(e) (1) If the secretary finds that the public health or safety is en-
dangered by the continuation of an abatement project, the secretary may
temporarily suspend, without notice or hearing in accordance with the
emergency adjudication procedures of the provisions of the Kansas ad-
ministrative procedure act, the license of the business entity or public
agency or the certificate of any person engaging in such abatement pro-
ject.

(2) In no case shall a temporary suspension of a license or certificate
under this section be in effect for a period of time in excess of 90 days.
At the end of such period of time, the license or certificate shall be re-
instated unless the secretary has suspended or revoked the license or
certificate, after notice and hearing in accordance with the provisions of
the residential childhood lead poisoning prevention act, or the license has
expired as otherwise provided under the residential childhood lead poi-
soning prevention act.

New Sec. 10. Whenever an authorized agency of the secretary finds
that any individual, business entity, accredited program or public agency
is not in compliance with the residential childhood lead poisoning pre-
vention act or any rules and regulations adopted under the residential
childhood lead poisoning prevention act, it shall be the duty of such agent
to notify the individual, business entity, accredited program or public
agency in writing of such changes or alterations as the agency shall deem
necessary in order to comply with the requirements of the residential
childhood lead poisoning prevention act and any rules and regulations
adopted under the residential childhood lead poisoning prevention act,
and the agency shall file a copy of such notice with the secretary. It shall
thereupon be the duty of the individual, business entity, accredited pro-
gram or public agency to make such changes or alterations as are con-
tained in the written notice within five days from the receipt of such
notice.

New Sec. 11. Any individual, business entity, public agency or ac-
credited training program which knowingly violates any provision of the
residential childhood lead poisoning prevention act or any rules and reg-
ulations adopted under the residential childhood lead poisoning preven-
tion act is guilty:

(a) For a first offense, of a class C misdemeanor; and

(b) for a second offense or subsequent offense, of a class B misde-
meanor.

New Sec. 12. (a) Any individual, business entity, accredited training
program or public agency who violates any provision of the residential
childhood lead poisoning prevention act or any rules and regulations
adopted under the residential childhood lead poisoning prevention act,
in addition to any other penalty or litigation provided by law, may incur
a civil penalty imposed under subsection (b) in a maximum amount not
to exceed $1,000 for the first violation, $5,000 for each subsequent vio-
lation and, in the case of a continuing violation, every day such previously
notified violation continues shall be deemed a separate violation.

(b) The secretary, upon finding that any individual, business entity,
accredited training program or public agency has violated any provision
of the residential childhood lead poisoning prevention act or any rules
and regulations adopted under the residential childhood lead poisoning
prevention act, may impose a civil penalty within the limits provided in
this section upon such individual, business entity, accredited training pro-
gram or public agency which civil penalty shall be in an amount to con-
stitute an actual and substantial economic deterrent to the violation for
which the civil penalty is assessed.

(c) The secretary, upon finding that an individual, business entity,
accredited training program or public agency has violated any provision
of the residential childhood lead poisoning prevention act or rules and
regulations adopted under the residential childhood lead poisoning pre-
vention act, may issue an order finding such individual, business entity,
accredited training program or public agency in violation of the residential
childhood lead poisoning prevention act and directing the individual,
business entity, accredited training program or public agency to take such
action as necessary to correct the violation.

(d) No civil penalty shall be imposed under this section except upon
the written order of the secretary after notification and hearing, if a hear-
ing is requested, in accordance with the provisions of the Kansas admin-
istrative procedure act.

(e) Any individual, business entity, accredited training program or
public agency aggrieved by an order of the secretary made under this
section may appeal such order to the district court in the manner provided
by the act for judicial review and civil enforcement of agency actions.

(f) Any penalty recovered pursuant to the provisions of this section
shall be remitted to the state treasurer and deposited in the lead-based
paint hazard fee fund.

(g) The secretary shall use penalties recovered pursuant to the pro-
visions of this section to establish a grant program for communities to
conduct activities designed to reduce or eliminate exposure of children
to residential lead-based paint hazards.

New Sec. 13. Notwithstanding any other remedy and in addition to
any other remedy, the secretary may maintain, in the manner provided
by the act for judicial review and civil enforcement of agency actions, an
action in the name of the state of Kansas for injunction or other process
against any business entity or individual to restrain or prevent any viola-
tion of the provisions of the residential childhood lead poisoning preven-
tion act or of any rules and regulations adopted under the residential
childhood lead poisoning prevention act.

New Sec. 14. Licensure, certification or training program accredi-
tation for a business entity, public agency or individual who engages in
lead-based paint activities shall not be required until such time as the
secretary adopts rules and regulations to implement the provisions of the
residential childhood lead poisoning prevention act.

New Sec. 15. The audit privilege recognized in K.S.A. 1998 Supp.
60-332 through 60-339 does not pertain to the residential childhood lead
poisoning prevention act.

Sec. 16. On July 1, 2004, the provisions of sections 2 to 16, inclusive,
of this act are hereby repealed.
Sec. 17. K.S.A. 1998 Supp. 72-5214 is hereby repealed.
Sec. 18. This act shall take effect and be in force from and after its
publication in the Kansas register.

Approved April 14, 1999.
Published in the Kansas Register April 22, 1999.
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