CHAPTER 149
SENATE BILL No. 261
(Amends Chapter 91)
An Act concerning state officers and employees; concerning the
transfer of certain powers,
duties and functions between certain state agencies; transferring
certain powers, duties
and functions from the department of health and environment to the
department on
aging; concerning contracts involving state officers and employees;
amending K.S.A. 39-
924, 39-925, 39-926, 39-930, 39-938, 39-940, 39-944, 39-945,
39-946, 39-947, 39-948,
39-950, 39-951, 39-952, 39-953a, 39-954, 39-958, 39-961, 39-963,
39-965, 39-969, 39-
1404, as amended by section 5 of 2003 House Bill No. 2254, 39-1405,
as amended by
section 6 of 2003 House Bill No. 2254, 39-1406, as amended by
section 7 of 2003 House
Bill No. 2254, 39-1409, as amended by section 10 of 2003 House Bill
No. 2254, 39-1411
and 46-233 and K.S.A. 2002 Supp. 32-906, 39-923, 39-936 and
39-1402, as amended by
section 3 of 2003 House Bill No. 2254, and repealing the
existing sections.
Be it enacted by the Legislature of the State of Kansas:
Sec. 1. K.S.A. 2002 Supp. 32-906 is
hereby amended to read as fol-
lows: 32-906. (a) Except as otherwise provided by law or rules and
reg-
ulations of the secretary, a valid Kansas fishing license is
required to fish
or to take any bullfrog in this state.
(b) The provisions of subsection (a) do
not apply to fishing by:
(1) A person, or a member of a person's
immediate family domiciled
with such person, on land owned by such person or on land leased
or
rented by such person for agricultural purposes;
(2) a resident of this state who is less
than 16 years of age or who is
65 or more years of age;
(3) a nonresident who is less than 16
years of age;
(4) a person fishing in a private water
fishing impoundment unless
waived pursuant to K.S.A. 32-975 and amendments thereto;
(5) a resident of an adult care home, as
defined by K.S.A. 39-923 and
amendments thereto, licensed by the secretary of health and
environment
aging;
(6) an inmate in an honor camp operated
by the secretary of correc-
tions, pursuant to an agreement between the secretary of
corrections and
the secretary of wildlife and parks;
(7) a person on dates designated pursuant
to subsection (f);
(8) a person fishing under a valid
institutional group fishing license
issued pursuant to subsection (g); or
(9) a participant in a fishing clinic
sponsored or cosponsored by the
department, during the period of time that the fishing clinic is
being
conducted.
(c) The fee for a fishing license shall
be the amount prescribed pur-
suant to K.S.A. 32-988 and amendments thereto.
(d) Unless otherwise provided by law or
rules and regulations of the
secretary, a fishing license is valid throughout the state.
(e) Unless otherwise provided by law or
rules and regulations of the
secretary, a fishing license is valid from the date of issuance and
expires
on December 31 following its issuance, except that the secretary
may
issue a:
(1) Permanent license pursuant to K.S.A.
32-929 and amendments
thereto;
(2) lifetime license pursuant to K.S.A.
32-930 and amendments
thereto;
(3) nonresident fishing license valid for
a period of five days; and
(4) resident or nonresident fishing
license valid for a period of 24
hours.
(f) The secretary may designate by
resolution two days each calendar
year during which persons may fish by legal means without having a
valid
fishing license.
(g) The secretary shall issue an annual
institutional group fishing li-
cense to each facility operating under the jurisdiction of or
licensed by
the secretary of social and rehabilitation services and to any
veterans ad-
ministration medical center in the state of Kansas upon application
by
such facility or center to the secretary of wildlife and parks for
such li-
cense.
All applications for facilities under the
jurisdiction of the secretary of
social and rehabilitation services shall be made with the approval
of the
secretary of social and rehabilitation services and shall provide
such in-
formation as the secretary of wildlife and parks requires. All
applications
for any veterans administration medical center shall be made with
the
approval of the director of such facility and shall provide such
information
as the secretary of wildlife and parks requires. Persons who have
been
admitted to and are currently residing at the facility or center,
not to
exceed 20 at any one time, may fish under an institutional group
fishing
license within the state while on a group trip, group outing or
other group
activity which is supervised by the facility or center. Persons
fishing under
an institutional group fishing license shall not be required to
obtain a
fishing license but shall be subject to all other laws and to all
rules and
regulations relating to fishing.
The staff personnel of the facility or center
supervising the group trip,
group outing or other group activity shall have in their possession
the
institutional license when engaged in supervising any activity
requiring
the license. Such staff personnel may assist group members in all
aspects
of their fishing activity.
(h) The secretary may issue a special
nonprofit group fishing license
to any community, civic or charitable organization which is
organized as
a not-for-profit corporation, for use by such community, civic or
chari-
table organization for the sole purpose of conducting group fishing
activ-
ities for handicapped or developmentally disabled individuals. All
appli-
cations for a special nonprofit group fishing license shall be made
to the
secretary or the secretary's designee and shall provide such
information
as required by the secretary.
Handicapped or developmentally disabled
individuals, not to exceed
20 at any one time, may fish under a special nonprofit group
fishing
license while on a group trip, outing or activity which is
supervised by the
community, civic or charitable organization. Individuals fishing
under a
special nonprofit group fishing license shall not be required to
obtain a
fishing license but shall be subject to all other laws and rules
and regu-
lations relating to fishing.
The staff personnel of the community, civic or
charitable organization
supervising the group trip, outing or activity shall have in their
possession
the special nonprofit group fishing license when engaged in
supervising
any activity requiring the special nonprofit group fishing license.
Such
staff personnel may assist group members in all aspects of their
fishing
activity.
Sec. 2. K.S.A. 2002 Supp. 39-923 is
hereby amended to read as fol-
lows: 39-923. (a) As used in this act:
(1) ``Adult care home'' means any nursing
facility, nursing facility for
mental health, intermediate care facility for the mentally
retarded, as-
sisted living facility, residential health care facility, home
plus, boarding
care home and adult day care facility, all of which classifications
of adult
care homes are required to be licensed by the secretary of
health and
environment aging.
(2) ``Nursing facility'' means any place
or facility operating 24 hours
a day, seven days a week, caring for six or more individuals not
related
within the third degree of relationship to the administrator or
owner by
blood or marriage and who, due to functional impairments, need
skilled
nursing care to compensate for activities of daily living
limitations.
(3) ``Nursing facility for mental
health'' means any place or facility
operating 24 hours a day, seven days a week caring for six or more
indi-
viduals not related within the third degree of relationship to the
admin-
istrator or owner by blood or marriage and who, due to functional
im-
pairments, need skilled nursing care and special mental health
services
to compensate for activities of daily living limitations.
(4) ``Intermediate care facility for the
mentally retarded'' means any
place or facility operating 24 hours a day, seven days a week
caring for
six or more individuals not related within the third degree of
relationship
to the administrator or owner by blood or marriage and who, due
to
functional impairments caused by mental retardation or related
condi-
tions need services to compensate for activities of daily living
limitations.
(5) ``Assisted living facility'' means
any place or facility caring for six
or more individuals not related within the third degree of
relationship to
the administrator, operator or owner by blood or marriage and who,
by
choice or due to functional impairments, may need personal care
and
may need supervised nursing care to compensate for activities of
daily
living limitations and in which the place or facility includes
apartments
for residents and provides or coordinates a range of services
including
personal care or supervised nursing care available 24 hours a day,
seven
days a week for the support of resident independence. The provision
of
skilled nursing procedures to a resident in an assisted living
facility is not
prohibited by this act. Generally, the skilled services provided in
an as-
sisted living facility shall be provided on an intermittent or
limited term
basis, or if limited in scope, a regular basis.
(6) ``Residential health care facility''
means any place or facility, or a
contiguous portion of a place or facility, caring for six or more
individuals
not related within the third degree or relationship to the
administrator,
operator or owner by blood or marriage and who, by choice or due
to
functional impairments, may need personal care and may need
supervised
nursing care to compensate for activities of daily living
limitations and in
which the place or facility includes individual living units and
provides or
coordinates personal care or supervised nursing care available on a
24-
hour, seven-day-a-week basis for the support of resident
independence.
The provision of skilled nursing procedures to a resident in a
residential
health care facility is not prohibited by this act. Generally, the
skilled
services provided in a residential health care facility shall be
provided on
an intermittent or limited term basis, or if limited in scope, a
regular
basis.
(7) ``Home plus'' means any residence or
facility caring for not more
than eight individuals not related within the third degree of
relationship
to the operator or owner by blood or marriage unless the resident
in need
of care is approved for placement by the secretary of the
department of
social and rehabilitation services, and who, due to functional
impairment,
needs personal care and may need supervised nursing care to
compensate
for activities of daily living limitations. The level of care
provided residents
shall be determined by preparation of the staff and rules and
regulations
developed by the department of health and
environment on aging. An
adult care home may convert a portion of one wing of the facility
to a not
less than five-bed and not more than eight-bed home plus facility
pro-
vided that the home plus facility remains separate from the adult
care
home, and each facility must remain contiguous.
(8) ``Boarding care home'' means any
place or facility operating 24
hours a day, seven days a week, caring for not more than 10
individuals
not related within the third degree of relationship to the operator
or
owner by blood or marriage and who, due to functional impairment,
need
supervision of activities of daily living but who are ambulatory
and essen-
tially capable of managing their own care and affairs.
(9) ``Adult day care'' means any place or
facility operating less than
24 hours a day caring for individuals not related within the third
degree
of relationship to the operator or owner by blood or marriage and
who,
due to functional impairment need supervision of or assistance with
ac-
tivities of daily living.
(10) ``Place or facility'' means a
building or any one or more complete
floors of a building, or any one or more complete wings of a
building, or
any one or more complete wings and one or more complete floors of
a
building, and the term ``place or facility'' may include multiple
buildings.
(11) ``Skilled nursing care'' means
services performed by or under the
immediate supervision of a registered professional nurse and
additional
licensed nursing personnel. Skilled nursing includes administration
of
medications and treatments as prescribed by a licensed physician or
den-
tist; and other nursing functions which require substantial nursing
judg-
ment and skill based on the knowledge and application of scientific
prin-
ciples.
(12) ``Supervised nursing care'' means
services provided by or under
the guidance of a licensed nurse with initial direction for nursing
proce-
dures and periodic inspection of the actual act of accomplishing
the pro-
cedures; administration of medications and treatments as prescribed
by
a licensed physician or dentist and assistance of residents with
the per-
formance of activities of daily living.
(13) ``Resident'' means all individuals
kept, cared for, treated,
boarded or otherwise accommodated in any adult care home.
(14) ``Person'' means any individual,
firm, partnership, corporation,
company, association or joint-stock association, and the legal
successor
thereof.
(15) ``Operate an adult care home'' means
to own, lease, establish,
maintain, conduct the affairs of or manage an adult care home,
except
that for the purposes of this definition the word ``own'' and the
word
``lease'' shall not include hospital districts, cities and counties
which hold
title to an adult care home purchased or constructed through the
sale of
bonds.
(16) ``Licensing agency'' means the
secretary of health and environ-
ment aging.
(17) ``Skilled nursing home'' means a
nursing facility.
(18) ``Intermediate nursing care home''
means a nursing facility.
(19) ``Apartment'' means a private unit
which includes, but is not
limited to, a toilet room with bathing facilities, a kitchen,
sleeping, living
and storage area and a lockable door.
(20) ``Individual living unit'' means a
private unit which includes, but
is not limited to, a toilet room with bathing facilities, sleeping,
living and
storage area and a lockable door.
(21) ``Operator'' means an individual who
operates an assisted living
facility or residential health care facility with fewer than 61
residents, a
home plus or adult day care facility and has completed a course
approved
by the secretary of health and environment on principles of
assisted living
and has successfully passed an examination approved by the
licensing
agency secretary of health and environment
on principles of assisted living
and such other requirements as may be established by the
licensing
agency secretary of health and environment
by rules and regulations.
(22) ``Activities of daily living'' means
those personal, functional ac-
tivities required by an individual for continued well-being,
including but
not limited to eating, nutrition, dressing, personal hygiene,
mobility, to-
ileting.
(23) ``Personal care'' means care
provided by staff to assist an indi-
vidual with, or to perform activities of daily living.
(24) ``Functional impairment'' means an
individual has experienced
a decline in physical, mental and psychosocial well-being and as a
result,
is unable to compensate for the effects of the decline.
(25) ``Kitchen'' means a food preparation
area that includes a sink,
refrigerator and a microwave oven or stove.
(26) The term ``intermediate personal
care home'' for purposes of
those individuals applying for or receiving veterans' benefits
means resi-
dential health care facility.
(b) The term ``adult care home'' shall
not include institutions oper-
ated by federal or state governments, except institutions operated
by the
Kansas commission on veterans affairs, hospitals or institutions
for the
treatment and care of psychiatric patients, child care facilities,
maternity
centers, hotels, offices of physicians or hospices which are
certified to
participate in the medicare program under 42 code of federal
regulations,
chapter IV, section 418.1 et seq. and amendments thereto and
which
provide services only to hospice patients.
(c) Facilities licensed under
K.S.A. 39-1501 et seq. and
amendments
thereto or K.S.A. 75-3307b and amendments thereto or under
this section
as an intermediate personal care home or with license
applications on file
with the licensing agency as intermediate personal care
homes on or be-
fore January 1, 1995, shall have the option of becoming
licensed as either
an assisted living facility or a residential health care
facility without being
required to add kitchens or private baths.
(d) (c) Nursing
facilities in existence on the effective date of this act
changing licensure categories to become residential health care
facilities
shall be required to provide private bathing facilities in a
minimum of
20% of the individual living units.
(e)
(d) Facilities licensed under the adult care home
licensure act on
the day immediately preceding the effective date of this act shall
continue
to be licensed facilities until the annual renewal date of such
license and
may renew such license in the appropriate licensure category under
the
adult care home licensure act subject to the payment of fees and
other
conditions and limitations of such act.
(f) (e) Nursing
facilities with less than 60 beds converting a portion
of the facility to residential health care shall have the option of
licensing
for residential health care for less than six individuals but not
less than
10% of the total bed count within a contiguous portion of the
facility.
(g) (f) The
licensing agency may by rule and regulation change the
name of the different classes of homes when necessary to avoid
confusion
in terminology and the agency may further amend, substitute, change
and
in a manner consistent with the definitions established in this
section,
further define and identify the specific acts and services which
shall fall
within the respective categories of facilities so long as the above
categories
for adult care homes are used as guidelines to define and identify
the
specific acts.
Sec. 3. K.S.A. 39-924 is hereby
amended to read as follows: 39-924.
The purpose of this act is the development, establishment, and
enforce-
ment of standards (1) for the care, treatment, health, safety,
welfare and
comfort of individuals in adult care homes licensed by the
secretary of
health and environment aging and (2) for
the construction, general hy-
giene, maintenance and operation of said adult care homes, which,
in the
light of advancing knowledge, will promote safe and adequate
accom-
modation, care and treatment of such individuals in adult care
homes.
Sec. 4. K.S.A. 39-925 is hereby
amended to read as follows: 39-925.
(a) The administration of this the adult
care home licensure act shall be
under the secretary of health and environment
is hereby transferred from
the secretary of health and environment to the secretary of
aging, except
as otherwise provided by this act. On the effective date of this
act, the
administration of the adult care home licensure act shall be
under au-
thority of the secretary of aging as the licensing agency in
conjunction
with the state fire marshal, and shall have the assistance of the
county,
city-county or multicounty health departments, local fire and
safety au-
thorities and other agencies of government in this state. The
secretary of
aging shall appoint an officer to administer the adult care home
licensure
act and such officer shall be in the unclassified service under
the Kansas
civil service act.
(b) The secretary of aging shall be a
continuation of the secretary of
health and environment as to the programs transferred and shall
be the
successor in every way to the powers, duties and functions of
the secretary
of health and environment for such programs, except as otherwise
pro-
vided by this act. On and after the effective date of this act,
for each of
the programs transferred, every act performed in the exercise of
such
powers, duties and functions by or under the authority of the
secretary
of aging shall be deemed to have the same force and effect as if
performed
by the secretary of health and environment in whom such powers
were
vested prior to the effective date of this act.
(c) (1) No suit, action or other
proceeding, judicial or administrative,
which pertains to any of the transferred adult care home survey,
certifi-
cation and licensing programs, and reporting of abuse, neglect
or exploi-
tation of adult care home residents, which is lawfully
commenced, or could
have been commenced, by or against the secretary of health and
environ-
ment in such secretary's official capacity or in relation to the
discharge
of such secretary's official duties, shall abate by reason of
the transfer of
such programs. The secretary of aging shall be named or
substituted as
the defendant in place of the secretary of health and
environment in any
suit, action or other proceeding involving claims arising from
facts or
events first occurring either on or before the effective date of
this act or
thereafter.
(2) No suit, action or other
proceeding, judicial or administrative,
pertaining to the adult care home survey, certification and
licensing pro-
grams or to the reporting of abuse, neglect or exploitation of
adult care
home residents which otherwise would have been dismissed or
concluded
shall continue to exist by reason of any transfer under this
act.
(3) No criminal action commenced or
which could have been com-
menced by the state shall abate by the taking effect of this
act.
(4) Any final appeal decision of the
department of health and envi-
ronment entered pursuant to K.S.A. 39-923 et seq., and
amendments
thereto, K.S.A. 39-1401 et seq., and amendments thereto,
or the act for
judicial review and civil enforcement of agency actions, K.S.A.
77-601 et
seq., and amendments thereto, currently pertaining to adult care
home
certification, survey and licensing or reporting of abuse,
neglect or ex-
ploitation of adult care home residents, transferred pursuant to
this act
shall be binding upon and applicable to the secretary of aging
and the
department on aging.
(5) All orders and directives under
the adult care home licensure act
by the secretary of health and environment in existence
immediately prior
to the effective date of the transfer of powers, duties and
functions by this
act, shall continue in force and effect and shall be deemed to
be duly issued
orders, and directives of the secretary of aging, until
reissued, amended
or nullified pursuant to law.
(d) (1) All rules and
regulations of the department of health and en-
vironment adopted pursuant to K.S.A. 39-923 et seq., and
amendments
thereto, and in effect on the effective date of this act, which
promote the
safe, proper and adequate treatment and care of individuals in
adult care
homes, except those specified in subsection (d)(2) of this
section, shall
continue to be effective and shall be deemed to be rules and
regulations
of the secretary of aging, until revised, amended, revoked or
nullified by
the secretary of aging, or otherwise, pursuant to
law.
(2) The following rules and
regulations of the department of health
and environment adopted pursuant to K.S.A. 39-923 et
seq., and amend-
ments thereto, and in effect on the effective date of this act,
shall remain
the rules and regulations of the secretary of health and
environment:
K.A.R. 28-39-164 through 28-39-174.
(e) All contracts shall be made in the
name of ``secretary of aging''
and in that name the secretary of aging may sue and be sued on
such
contracts. The grant of authority under this subsection shall
not be con-
strued to be a waiver of any rights retained by the state under
the 11th
amendment to the United States constitution and shall be subject
to and
shall not supersede the provisions of any appropriation act of
this state.
Sec. 5. K.S.A. 39-926 is hereby
amended to read as follows: 39-926.
It shall be unlawful for any person or persons acting jointly or
severally
to operate an adult care home within this state except upon license
first
had and obtained for that purpose from the secretary of
health and en-
vironment aging as the licensing agency
upon application made therefor
as provided in this act, and compliance with the requirements,
standards,
rules and regulations, promulgated under its provisions.
Sec. 6. K.S.A. 39-930 is hereby
amended to read as follows: 39-930.
The fee for license to operate an adult care home shall be a base
amount
plus an additional amount for each bed of such home which shall be
paid
to the secretary of health and environment
aging before the license is
issued. The fee shall be fixed by rules and regulations of the
secretary of
health and environment aging. The fee shall
be deposited in the state
treasury and credited to the state general fund unless the
evaluation and
inspection was made by a county, city-county or multicounty health
de-
partment at the direction of the secretary of health and
environment and
the papers required are completed and filed with the secretary,
then 40%
of the fee collected shall be forwarded to such county, city-county
or
multicounty health department. If a facility has a change of
administrator
after the commencement of the licensing period, the fee shall be
$15 and
shall be deposited in the state treasury and credited to the state
general
fund.
Sec. 7. K.S.A. 2002 Supp. 39-936 is
hereby amended to read as fol-
lows: 39-936. (a) The presence of each resident in an adult care
home
shall be covered by a statement provided at the time of admission,
or
prior thereto, setting forth the general responsibilities and
services and
daily or monthly charges for such responsibilities and services.
Each res-
ident shall be provided with a copy of such statement, with a copy
going
to any individual responsible for payment of such services and the
adult
care home shall keep a copy of such statement in the resident's
file. No
such statement shall be construed to relieve any adult care home of
any
requirement or obligation imposed upon it by law or by any
requirement,
standard or rule and regulation adopted pursuant thereto.
(b) A qualified person or persons shall
be in attendance at all times
upon residents receiving accommodation, board, care, training or
treat-
ment in adult care homes. The licensing agency may establish
necessary
standards and rules and regulations prescribing the number,
qualifica-
tions, training, standards of conduct and integrity for such
qualified per-
son or persons attendant upon the residents.
(c) (1) The licensing agency shall
require unlicensed employees of
an adult care home, except an adult care home licensed for the
provision
of services to the mentally retarded which has been granted an
exception
by the licensing agency secretary of health and
environment upon a find-
ing by the licensing agency that an appropriate training program
for un-
licensed employees is in place for such adult care home, employed
on
and after the effective date of this act who provide direct,
individual care
to residents and who do not administer medications to residents and
who
have not completed a course of education and training relating to
resident
care and treatment approved by the licensing
agency secretary of health
and environment or are not participating in such a course on
the effective
date of this act to complete successfully 40 hours of training in
basic
resident care skills. Any unlicensed person who has not completed
40
hours of training relating to resident care and treatment approved
by the
licensing agency secretary of health and
environment shall not provide
direct, individual care to residents. The 40 hours of training
shall be su-
pervised by a registered professional nurse and the content and
admin-
istration thereof shall comply with rules and regulations adopted
by the
licensing agency secretary of health and
environment. The 40 hours of
training may be prepared and administered by an adult care home or
by
any other qualified person and may be conducted on the premises of
the
adult care home. The 40 hours of training required in this section
shall
be a part of any course of education and training required by the
licensing
agency secretary of health and environment
under subsection (c)(2).
(2) The licensing agency may require
unlicensed employees of an
adult care home, except an adult care home licensed for the
provision of
services to the mentally retarded which has been granted an
exception
by the licensing agency secretary of health and
environment upon a find-
ing by the licensing agency that an appropriate training program
for un-
licensed employees is in place for such adult care home, who
provide
direct, individual care to residents and who do not administer
medications
to residents after 90 days of employment to successfully complete
an
approved course of instruction and an examination relating to
resident
care and treatment as a condition to continued employment by an
adult
care home. A course of instruction may be prepared and administered
by
any adult care home or by any other qualified person. A course of
instruc-
tion prepared and administered by an adult care home may be
conducted
on the premises of the adult care home which prepared and which
will
administer the course of instruction. The licensing agency shall
not re-
quire unlicensed employees of an adult care home who provide
direct,
individual care to residents and who do not administer medications
to
residents to enroll in any particular approved course of
instruction as a
condition to the taking of an examination, but the
licensing agency sec-
retary of health and environment shall prepare guidelines
for the prep-
aration and administration of courses of instruction and shall
approve or
disapprove courses of instruction. Unlicensed employees of adult
care
homes who provide direct, individual care to residents and who do
not
administer medications to residents may enroll in any approved
course of
instruction and upon completion of the approved course of
instruction
shall be eligible to take an examination. The examination shall be
pre-
scribed by the licensing agency secretary of
health and environment, shall
be reasonably related to the duties performed by unlicensed
employees
of adult care homes who provide direct, individual care to
residents and
who do not administer medications to residents and shall be the
same
examination given by the licensing agency
secretary of health and envi-
ronment to all unlicensed employees of adult care homes who
provide
direct, individual care to residents and who do not administer
medica-
tions.
(3) The licensing agency
secretary of health and environment shall
fix, charge and collect a fee to cover all or any part of the costs
of the
licensing agency under this subsection (c). The fee shall be fixed
by rules
and regulations of the licensing agency
secretary of health and environ-
ment. The fee shall be remitted to the state treasurer in
accordance with
the provisions of K.S.A. 75-4215, and amendments thereto. Upon
receipt
of each such remittance, the state treasurer shall deposit the
entire
amount in the state treasury to the credit of the state general
fund.
(4) The licensing agency
secretary of health and environment shall
establish a state registry containing information about unlicensed
em-
ployees of adult care homes who provide direct, individual care to
resi-
dents and who do not administer medications in compliance with
the
requirements pursuant to PL 100-203, Subtitle C, as amended
November
5, 1990.
(5) No adult care home shall use an
individual as an unlicensed em-
ployee of the adult care home who provides direct, individual care
to
residents and who does not administer medications unless the
facility has
inquired of the state registry as to information contained in the
registry
concerning the individual.
(6) Beginning July 1, 1993, the adult
care home must require any
unlicensed employee of the adult care home who provides direct,
indi-
vidual care to residents and who does not administer medications
and
who since passing the examination required under paragraph (2) of
this
subsection has had a continuous period of 24 consecutive months
during
none of which the unlicensed employee provided direct, individual
care
to residents to complete an approved refresher course. The
licensing
agency secretary of health and environment
shall prepare guidelines for
the preparation and administration of refresher courses and shall
approve
or disapprove courses.
(d) Any person who has been employed as
an unlicensed employee
of an adult care home in another state may be so employed in this
state
without an examination if the secretary of health and environment
deter-
mines that such other state requires training or examination, or
both, for
such employees at least equal to that required by this state.
(e) All medical care and treatment shall
be given under the direction
of a physician authorized to practice under the laws of this state
and shall
be provided promptly as needed.
(f) No adult care home shall require as a
condition of admission to
or as a condition to continued residence in the adult care home
that a
person change from a supplier of medication needs of their choice
to a
supplier of medication selected by the adult care home. Nothing in
this
subsection (f) shall be construed to abrogate or affect any
agreements
entered into prior to the effective date of this act between the
adult care
home and any person seeking admission to or resident of the adult
care
home.
(g) Except in emergencies as defined by
rules and regulations of the
licensing agency and except as otherwise authorized under federal
law,
no resident may be transferred from or discharged from an adult
care
home involuntarily unless the resident or legal guardian of the
resident
has been notified in writing at least 30 days in advance of a
transfer or
discharge of the resident.
(h) No resident who relies in good faith
upon spiritual means or
prayer for healing shall, if such resident objects thereto, be
required to
undergo medical care or treatment.
Sec. 8. K.S.A. 39-938 is hereby
amended to read as follows: 39-938.
Adult care homes shall comply with all the lawfully established
require-
ments and rules and regulations of the secretary of health
and environ-
ment aging and the state fire marshal, and
any other agency of govern-
ment so far as pertinent and applicable to adult care homes,
their
buildings, operators, staffs, facilities, maintenance, operation,
conduct,
and the care and treatment of residents. The administrative rules
and
regulations of the state board of cosmetology and of the Kansas
board of
barbering shall not apply to adult care homes.
Sec. 9. K.S.A. 39-940 is hereby
amended to read as follows: 39-940.
(a) The secretary of health and environment
aging may prescribe and
supply necessary forms for applications, reports, records and
inspections
for adult care homes. All prescribed records shall be open to
inspection
by the designated agents of the agencies administering this
act.
(b) It shall be unlawful to:
(1) Make false entries in such
records;
(2) omit any information required or make
any false report concern-
ing any adult care home; or
(3) file or cause to be filed such false
or incomplete records or reports
with the department of health and environment
on aging or with any
agency administering this act, knowing that such records or reports
are
false or incomplete.
Sec. 10. K.S.A. 39-944 is hereby
amended to read as follows: 39-944.
Notwithstanding the existence or pursuit of any other remedy, the
sec-
retary of health and environment aging, as
the licensing agency, in the
manner provided by the act for judicial review and civil
enforcement of
agency actions, may maintain an action in the name of the state of
Kansas
for injunction or other process against any person or agency to
restrain
or prevent the operation of an adult care home without a license
under
this act.
Sec. 11. K.S.A. 39-945 is hereby
amended to read as follows: 39-945.
A correction order may be issued by the secretary of health
and environ-
ment aging or the secretary's designee to a
person licensed to operate an
adult care home whenever the state fire marshal or the marshal's
repre-
sentative or a duly authorized representative of the secretary of
health
and environment aging inspects or
investigates an adult care home and
determines that the adult care home is not in compliance with the
pro-
visions of article 9 of chapter 39 of the Kansas Statutes Annotated
or rules
and regulations promulgated thereunder which individually or
jointly af-
fects significantly and adversely the health, safety, nutrition or
sanitation
of the adult care home residents. The correction order shall be
served
upon the licensee either personally or by certified mail, return
receipt
requested. The correction order shall be in writing, shall state
the specific
deficiency, cite the specific statutory provision or rule and
regulation al-
leged to have been violated, and shall specify the time allowed for
cor-
rection.
Sec. 12. K.S.A. 39-946 is hereby
amended to read as follows: 39-946.
(a) If upon reinspection by the state fire marshal or the marshal's
rep-
resentative or a duly authorized representative of the secretary of
health
and environment aging, which reinspection
shall be conducted within 14
days from the day the correction order is served upon the licensee,
it is
found that the licensee of the adult care home which was issued a
cor-
rection order has not corrected the deficiency or deficiencies
specified in
the order, the secretary of health and environment
aging may assess a
civil penalty in an amount not to exceed $500 per day per
deficiency
against the licensee of an adult care home for each day subsequent
to the
day following the time allowed for correction of the deficiency as
specified
in the correction order that the adult care home has not corrected
the
deficiency or deficiencies listed in the correction order, but the
maximum
assessment shall not exceed $2,500. Prior to the assessment
of a civil
penalty, the case shall be reviewed by a person licensed to
practice med-
icine and surgery. A written notice of assessment
shall be served upon
the licensee of an adult care home either personally or by
certified mail,
return receipt requested.
(b) Before the assessment of a civil
penalty, the secretary of aging
shall consider the following factors in determining the amount of
the civil
penalty to be assessed: (1) The severity of the violation; (2) the
good faith
effort exercised by the adult care home to correct the violation;
and (3)
the history of compliance of the ownership of the adult care home
with
the rules and regulations. If the secretary of health and
environment aging
finds that some or all deficiencies cited in the correction order
have also
been cited against the adult care home as a result of any
inspection or
investigation which occurred within 18 months prior to the
inspection or
investigation which resulted in such correction order, the
secretary of
health and environment aging may double the
civil penalty assessed
against the licensee of the adult care home, the maximum not to
exceed
$5,000.
(c) All civil penalties assessed shall be
due and payable within 10 days
after written notice of assessment is served on the licensee,
unless a longer
period of time is granted by the secretary. If a civil penalty is
not paid
within the applicable time period, the secretary of health
and environ-
ment aging may file a certified copy of the
notice of assessment with the
clerk of the district court in the county where the adult care home
is
located. The notice of assessment shall be enforced in the same
manner
as a judgment of the district court.
Sec. 13. K.S.A. 39-947 is hereby
amended to read as follows: 39-947.
Any licensee against whom a civil penalty has been assessed under
K.S.A.
39-946, and amendments thereto, may appeal such assessment within
10
days after receiving a written notice of assessment by filing with
the sec-
retary of health and environment aging
written notice of appeal specifying
why such civil penalty should not be assessed. Such appeal shall
not op-
erate to stay the payment of the civil penalty. Upon receipt of the
notice
of appeal, the secretary of health and environment
aging shall conduct a
hearing in accordance with the provisions of the Kansas
administrative
procedure act. If the secretary of aging sustains the
appeal, any civil pen-
alties collected shall be refunded forthwith to the appellant
licensee with
interest at the rate established by K.S.A. 16-204, and
amendments
thereto, from the date of payment of the civil penalties to the
secretary
of aging. If the secretary of aging denies the appeal
and no appeal from
the secretary is taken to the district court in accordance with the
provi-
sions of the act for judicial review and civil enforcement of
agency actions,
the secretary of aging shall dispose of any civil penalties
collected as pro-
vided in K.S.A. 39-949, and amendments thereto.
Sec. 14. K.S.A. 39-948 is hereby
amended to read as follows: 39-948.
(a) A licensee may appeal to the district court from a decision of
the
secretary of aging under K.S.A. 39-947, and amendments
thereto. The
appeal shall be tried in accordance with the provisions of the act
for
judicial review and civil enforcement of agency actions.
(b) An appeal to the district court or to
an appellate court shall not
stay the payment of the civil penalty. If the court sustains the
appeal, the
secretary of health and environment aging
shall refund forthwith the pay-
ment of any civil penalties to the licensee with interest at the
rate estab-
lished by K.S.A. 16-204, and amendments thereto, from the date of
pay-
ment of the civil penalties to the secretary. If the court denies
the appeal,
the secretary of health and environment
aging shall dispose of any civil
penalties collected as provided in K.S.A. 39-949, and
amendments
thereto.
Sec. 15. K.S.A. 39-950 is hereby
amended to read as follows: 39-950.
The secretary of health and environment
aging may adopt rules and reg-
ulations necessary to carry out the provisions of this act.
Sec. 16. K.S.A. 39-951 is hereby
amended to read as follows: 39-951.
The authority granted to the secretary of health and
environment aging
under this act is in addition to other statutory authority the
secretary of
aging has to require the licensing and operation of adult
care homes and
is not to be construed to limit any of the powers and duties of the
secretary
of aging under article 9 of chapter 39 of the Kansas
Statutes Annotated.
Sec. 17. K.S.A. 39-952 is hereby
amended to read as follows: 39-952.
The secretary of health and environment
aging or the secretary's designee
shall not issue a correction order to a person licensed to operate
an adult
care home because of a violation of a provision of article 9 of
chapter 39
of the Kansas Statutes Annotated or a rule and regulation adopted
there-
under which was caused by any person licensed by the state board
of
healing arts to practice a branch of the healing arts if such
person licensed
by the state board of healing arts is not an owner, operator or
employee
of the adult care home and if the person licensed to operate the
adult
care home shows that such person has exercised reasonable diligence
in
notifying the person licensed by the state board of healing arts to
practice
a branch of the healing arts of such person's duty to the residents
of the
adult care home.
Sec. 18. K.S.A. 39-953a is hereby
amended to read as follows: 39-
953a. (a) At any time the secretary of health and
environment aging ini-
tiates any action concerning an adult care home in which it is
alleged that
there has been a substantial failure to comply with the
requirements,
standards or rules and regulations established under the adult care
home
licensure act, that conditions exist in the adult care home which
are life
threatening or endangering to the residents of the adult care home,
that
the adult care home is insolvent, or that the adult care home has
defi-
ciencies which significantly and adversely affect the health,
safety, nutri-
tion or sanitation of the adult care home residents, the secretary
of aging
may issue an order, pursuant to the emergency proceedings provided
for
under the Kansas administrative procedure act, prohibiting any new
ad-
missions into the adult care home until further determination by
the sec-
retary of aging. This remedy granted to the secretary of
aging is in ad-
dition to any other statutory authority the secretary of
aging has relating
to the licensure and operation of adult care homes and is not be
construed
to limit any of the powers and duties of the secretary of
aging under the
adult care home licensure act.
(b) This section shall be part of and
supplemental to the adult care
home licensure act.
Sec. 19. K.S.A. 39-954 is hereby
amended to read as follows: 39-954.
(a) The secretary of health and environment
aging, the owner of an adult
care home, or the person licensed to operate an adult care home may
file
an application with the district court for an order appointing the
secretary
of health and environment aging or the
designee of the secretary as re-
ceiver to operate an adult care home whenever: (1) Conditions exist
in
the adult care home that are life threatening or endangering to the
resi-
dents of the adult care home; (2) the adult care home is insolvent;
or (3)
the secretary of health and environment
aging has issued an order revok-
ing the license of the adult care home.
(b) The secretary of health and
environment aging may adopt rules
and regulations setting forth the necessary qualifications of
persons to be
designated receivers and a method for selecting designees.
Sec. 20. K.S.A. 39-958 is hereby
amended to read as follows: 39-958.
(a) The application for receivership shall be given priority
by the district
court and shall be heard no later than the seventh
(7th) day following the
filing of the application. A continuance of no more than
ten (10) 10 days
may be granted by the district court for good cause. The district
court
shall give all parties who have filed an answer the opportunity to
present
evidence pertaining to the application. If the district court finds
that the
facts warrant the granting of the application, the court shall
appoint the
secretary of health and environment aging
or the designee of the secretary
as receiver to operate the home.
(b) Upon the appointment of a
receiver under this section, the re-
ceiver shall be granted a license by the licensing agency to
operate an
adult care home as provided under the provisions of article 9 of
chapter
39 of the Kansas Statutes Annotated, and acts amending the
provisions
thereof or acts supplemental thereto. The provisions of article 9
of chapter
39 of the Kansas Statutes Annotated, and acts amending the
provisions
thereof and acts supplemental thereto, relating to inspection prior
to
granting a license to operate an adult care home and relating to
payment
of license fees shall not apply to a license granted to a receiver
under this
section, and such license shall remain in effect during the
existence of
the receivership and shall expire on the termination of the
receivership.
The receiver shall make application for the license on forms
provided for
this purpose by the licensing agency.
Sec. 21. K.S.A. 39-961 is hereby
amended to read as follows: 39-961.
(a) The personnel and facilities of the department
of health and environ-
ment on aging shall be available to the
receiver for the purposes of car-
rying out the receiver's duties as receiver as authorized by the
secretary
of health and environment aging.
(b) The department of
health and environment on aging shall itemize
and keep a ledger showing costs of personnel and other expenses
estab-
lishing the receivership and assisting the receiver and such amount
shall
be owed by the owner or licensee to the department of
health and en-
vironment on aging. Such department shall
submit a bill for such expenses
to the receiver for inclusion in the receiver's final accounting.
Any amount
so billed and until repaid shall constitute a lien against all
non-exempt
personal and real property of the owner or licensee.
Sec. 22. K.S.A. 39-963 is hereby
amended to read as follows: 39-963.
(a) The court shall terminate the receivership only under any of
the fol-
lowing circumstances:
(1) Twenty-four months after the date on
which the receivership was
ordered;
(2) a new license, other than the license
granted to the receiver under
K.S.A. 39-958 and amendments thereto, has been granted to operate
the
adult care home; or
(3) at such time as all of the residents
in the adult care home have
been provided alternative modes of health care, either in another
adult
care home or otherwise.
(b) (1) At the time of
termination of the receivership, the receiver
shall render a full and complete accounting to the district court
and shall
make disposition of surplus money at the direction of the district
court.
(2) The court may make such
additional orders as are appropriate to
recover the expenses and costs to the department of health
and environ-
ment on aging and the secretary of social
and rehabilitation services in-
curred pursuant to K.S.A. 39-960 or 39-961 and amendments
thereto.
Sec. 23. K.S.A. 39-965 is hereby
amended to read as follows: 39-965.
(a) If the secretary of health and environment
aging determines that an
adult care home is in violation of or has violated any
requirements, stan-
dards or rules and regulations established under the adult care
home
licensure act which violation can reasonably be determined to have
re-
sulted in, caused or posed serious physical harm to a resident, the
sec-
retary of aging in accordance with proceedings under the
Kansas admin-
istrative procedure act, may assess a civil penalty against the
licensee of
such adult care home in an amount of not to exceed $1,000 per day
per
violation for each day the secretary finds that the adult care home
was
not in compliance with such requirements, standards or rules and
regu-
lations but the maximum assessment shall not exceed $10,000.
(b) All civil penalties assessed shall be
due and payable in accordance
with subsection (c) of K.S.A. 39-946 and K.S.A. 39-947 and
amendments
thereto.
(c) The secretary of health and
environment aging may adopt rules
and regulations which shall include due process procedures for the
issu-
ance of civil penalties relating to nursing facilities.
(d) The authority to assess civil
penalties granted to the secretary of
health and environment aging under this
section is in addition to any
other statutory authority of the secretary relating to the
licensure and
operation of adult care homes and is not to be construed to limit
any of
the powers and duties of the secretary of aging under the
adult care home
licensure act.
(e) This section shall be part of and
supplemental to the adult care
home licensure act.
Sec. 24. K.S.A. 39-969 is hereby
amended to read as follows: 39-969.
(a) The licensing agency secretary of health
and environment shall upon
request receive from the Kansas bureau of investigation, without
charge,
such criminal history record information relating to criminal
convictions
as necessary for the purpose of determining initial and continuing
qual-
ifications of an operator.
(b) This section shall be part of and
supplemental to the adult care
home licensure act.
New Sec. 25. (a) On July 1, 2003,
certain powers, duties and func-
tions of the secretary of health and environment under
K.S.A.39-1401
through 39-1411, and amendments thereto, are hereby transferred
from
the secretary of health and environment to the secretary of aging,
as
provided by this act.
(b) No suit, action or other proceeding,
judicial or administrative,
which pertains to any of the transferred reporting of abuse,
neglect or
exploitation of adult care home residents, which is lawfully
commenced,
or could have been commenced, by or against the secretary of health
and
environment in such secretary's official capacity or in relation to
the dis-
charge of such secretary's official duties, shall abate by reason
of the
transfer of such program. The secretary of aging shall be named or
sub-
stituted as the defendant in place of the secretary of health and
environ-
ment in any suit, action or other proceeding involving claims
arising from
facts or events first occurring either on or before the date the
pertinent
program is transferred or on any date thereafter.
(c) No suit, action or other proceeding,
judicial or administrative,
pertaining to the reporting of abuse, neglect or exploitation of
adult care
home residents which otherwise would have been dismissed or
concluded
shall continue to exist by reason of any transfer under this
act.
(d) Any final appeal decision of the
department of health and envi-
ronment entered pursuant to K.S.A. 39-1401 et seq., and
amendments
thereto, or the act for judicial review and civil enforcement of
agency
actions, K.S.A. 77-601 et seq., and amendments thereto,
currently per-
taining to reporting of abuse, neglect or exploitation of adult
care home
residents, transferred pursuant to this act shall be binding upon
and ap-
plicable to the secretary of aging and the department on aging.
Sec. 26. K.S.A. 2002 Supp. 39-1402,
as amended by section 3 of 2003
House Bill No. 2254, is hereby amended to read as follows: 39-1402.
(a)
Any person who is licensed to practice any branch of the healing
arts, a
licensed psychologist, a licensed master level psychologist, a
licensed clin-
ical psychotherapist, a chief administrative officer of a medical
care fa-
cility, an adult care home administrator or operator, a licensed
social
worker, a licensed professional nurse, a licensed practical nurse,
a licensed
marriage and family therapist, a licensed clinical marriage and
family ther-
apist, licensed professional counselor, licensed clinical
professional coun-
selor, registered alcohol and drug abuse counselor, a teacher, a
bank trust
officer and any other officers of financial institutions, a legal
representa-
tive or a governmental assistance provider who has reasonable cause
to
believe that a resident is being or has been abused, neglected or
exploited,
or is in a condition which is the result of such abuse, neglect or
exploi-
tation or is in need of protective services, shall report
immediately such
information or cause a report of such information to be made in
any
reasonable manner to the department of health and
environment on aging
with respect to residents defined under
subsections subsection (a)(1)
and
(a)(2) of K.S.A. 39-1401 and amendments
thereto, to the department of
health and environment with respect to residents defined under
subsection
(a)(2) of K.S.A. 39-1401, and amendments thereto, and to the
department
of social and rehabilitation services and appropriate law
enforcement
agencies with respect to all other residents. Reports made to one
de-
partment which are required by this subsection to be made to the
other
department shall be referred by the department to which the report
is
made to the appropriate department for that report, and any such
report
shall constitute compliance with this subsection. Reports shall be
made
during the normal working week days and hours of operation of
such
departments. Reports shall be made to law enforcement agencies
during
the time the departments are not open for business. Law
enforcement
agencies shall submit the report and appropriate information to the
ap-
propriate department on the first working day that such department
is
open for business. A report made pursuant to K.S.A. 65-4923 or
65-4924
and amendments thereto shall be deemed a report under this
section.
(b) The report made pursuant to
subsection (a) shall contain the
name and address of the person making the report and of the
caretaker
caring for the resident, the name and address of the involved
resident,
information regarding the nature and extent of the abuse, neglect
or ex-
ploitation, the name of the next of kin of the resident, if known,
and any
other information which the person making the report believes might
be
helpful in an investigation of the case and the protection of the
resident.
(c) Any other person, not listed in
subsection (a), having reasonable
cause to suspect or believe that a resident is being or has been
abused,
neglected or exploited, or is in a condition which is the result of
such
abuse, neglect or exploitation or is in need of protective services
may
report such information to the department of health and
environment on
aging with respect to residents defined under
subsections subsection
(a)(1) and (a)(2) of K.S.A. 39-1401 and amendments
thereto, to the de-
partment of health and environment with respect to residents
defined
under subsection (a)(2) of K.S.A. 39-1401, and amendments
thereto, and
to the department of social and rehabilitation services with
respect to all
other residents. Reports made to one department which are to be
made
to the other department under this section shall be referred by the
de-
partment to which the report is made to the appropriate department
for
that report.
(d) Notice of the requirements of this
act and the department to
which a report is to be made under this act shall be posted in a
conspic-
uous public place in every adult care home and medical care
facility in
this state.
(e) Any person required to report
information or cause a report of
information to be made under subsection (a) who knowingly fails to
make
such report or cause such report to be made shall be guilty of a
class B
misdemeanor.
Sec. 27. K.S.A. 39-1404, as amended
by section 5 of 2003 House Bill
No. 2254, is hereby amended to read as follows: 39-1404. (a) The
de-
partment of health and environment or the department of social
and
rehabilitation services upon receiving a report that a resident is
being, or
has been, abused, neglected or exploited, or is in a condition
which is the
result of such abuse, neglect or exploitation or is in need of
protective
services shall:
(1) When a criminal act has occurred or
has appeared to have oc-
curred, immediately notify, in writing, the appropriate law
enforcement
agency;
(2) make a personal visit with the
involved resident:
(A) Within 24 hours when the information
from the reporter indi-
cates imminent danger to the health or welfare of the involved
resident;
(B) within three working days for all
reports of suspected abuse, when
the information from the reporter indicates no imminent danger;
or
(C) within five working days for all
reports of neglect or exploitation
when the information from the reporter indicates no imminent
danger.
(3) Complete, within 30 working days of
receiving a report, a thor-
ough investigation and evaluation to determine the situation
relative to
the condition of the involved resident and what action and
services, if
any, are required. The investigation shall include, but not be
limited to,
consultation with those individuals having knowledge of the facts
of the
particular case; and
(4) prepare, upon a completion of the
evaluation of each case, a writ-
ten assessment which shall include an analysis of whether there is
or has
been abuse, neglect or exploitation; recommended action; a
determina-
tion of whether protective services are needed; and any follow
up.
(b) The department which investigates the
report shall inform the
complainant, upon request of the complainant, that an investigation
has
been made and, if the allegations of abuse, neglect or exploitation
have
been substantiated, that corrective measures will be taken if
required
upon completion of the investigation or sooner if such measures do
not
jeopardize the investigation.
(c) The department of health and
environment on aging may inform
the chief administrative officer of a facility as defined by K.S.A.
39-923
and amendments thereto within 30 days of confirmed findings
of resident
abuse, neglect or exploitation.
Sec. 28. K.S.A. 39-1405, as amended
by section 6 of 2003 House Bill
No. 2254, is hereby amended to read as follows: 39-1405. (a) The
sec-
retary of health and environment aging
shall forward to the secretary of
social and rehabilitation services any finding that a
resident with respect
to residents defined under (a)(1) of K.S.A. 39-1401, and
amendments
thereto, who may be in need of protective services. The
secretary of health
and environment shall forward to the secretary of social and
rehabilitation
services any finding with respect to residents defined under
(a)(2) of
K.S.A. 39-1401, and amendments thereto, who may be in need
of protec-
tive services. If the secretary of social and rehabilitation
services deter-
mines that a resident is in need of protective services, the
secretary of
social and rehabilitation services shall provide the necessary
protective
services, if a resident consents, or if the resident lacks capacity
to consent,
the secretary may obtain consent from such resident's legal
representa-
tive. If a resident or such resident's legal representative, or
both, fails to
consent and the secretary of social and rehabilitation services has
reason
to believe that such a resident lacks capacity to consent, the
secretary of
social and rehabilitation services shall determine pursuant to
K.S.A. 39-
1408 and amendments thereto whether a petition for appointment of
a
guardian or conservator, or both, should be filed.
(b) If the caretaker or legal
representative, or both, of a resident who
has consented to the receipt of reasonable and necessary protective
serv-
ices refuses to allow the provision of such services to such
resident, the
secretary of social and rehabilitation services may seek to obtain
an in-
junction enjoining the caretaker or legal representative, or both,
from
interfering with the provision of protective services to the
resident. The
petition in such action shall allege specific facts sufficient to
show that
the resident is in need of protective services and consents to
their pro-
vision and that the caretaker or legal representative, or both,
refuses to
allow the provision of such services. If the judge, by clear and
convincing
evidence, finds that the resident is in need of protective services
and has
been prevented by the caretaker or legal representative, or both,
from
receiving such services, the judge shall issue an order enjoining
the care-
taker or legal representative, or both, from interfering with the
provision
of protective services to the resident. The court may appoint a new
legal
representative if the court deems that it is in the best interest
of the
resident.
Sec. 29. K.S.A. 39-1406, as amended
by section 7 of 2003 House Bill
No. 2254, is hereby amended to read as follows: 39-1406. Any
person,
department or agency authorized to carry out the duties enumerated
in
this act, including investigating law enforcement agencies and the
long-
term care ombudsman shall have access to all relevant records. The
au-
thority of the secretary of social and rehabilitation services
and, the sec-
retary of health and environment, and the secretary of aging
under this
act shall include, but not be limited to, the right to initiate or
otherwise
take those actions necessary to assure the health, safety and
welfare of
any resident, subject to any specific requirement for individual
consent
of the resident.
Sec. 30. K.S.A. 39-1409, as amended
by section 10 of 2003 House
Bill No. 2254, is hereby amended to read as follows: 39-1409. In
per-
forming the duties set forth in this act, the secretary of social
and reha-
bilitation services, the secretary of health and environment,
the secretary
of aging or an appropriate law enforcement agency may
request the as-
sistance of the staffs and resources of all appropriate state
departments,
agencies and commissions and local health departments and may
utilize
any other public or private agency, group or individual who is
appropriate
and who may be available to assist such department or agency in
the
investigation and determination of whether a resident is being, or
has
been, abused, neglected or exploited or is in a condition which is
a result
of such abuse, neglect or exploitation, except that any internal
investiga-
tion conducted by any caretaker under investigation shall be
limited to
the least serious category of report as specified by the secretary
of health
and environment, the secretary of aging or the secretary of
social and
rehabilitation services, as applicable.
Sec. 31. K.S.A. 39-1411 is hereby
amended to read as follows: 39-
1411. (a) The secretary of health and environment
aging shall maintain a
register of the reports received and investigated by the department
of
health and environment on aging under
K.S.A. 39-1402 and 39-1403, and
amendments to such sections, and the findings, evaluations and
actions
recommended by the department on aging with respect to such
reports.
The secretary of health and environment shall maintain a
register of the
reports received and investigated by the department of health
and envi-
ronment under K.S.A. 39-1402 and 39-1403, and amendments
thereto,
and the findings, evaluations and actions recommended by the
depart-
ment of health and environment with respect to such reports.
The find-
ings, evaluations and actions shall be subject to the Kansas
administrative
procedure act and any requirements of state or federal law
relating
thereto except that the secretary shall not be required to conduct
a hear-
ing in cases forwarded to the appropriate state authority under
subsection
(b). The register shall be available for inspection by personnel of
the
department of health and environment or the department on
aging as
specified by the secretary of health and environment or the
secretary of
aging and to such other persons as may be required by
federal law and
designated by the secretary of health and environment or the
secretary
of aging by rules and regulations. Information from the
register shall be
provided as specified in K.S.A. 2002 Supp. 65-6205
and amendments
thereto. The secretary of health and environment shall
forward a copy of
any report of abuse, neglect or exploitation of a resident
of an adult care
home to the secretary of aging.
(b) The secretary of health and
environment aging shall forward any
finding of abuse, neglect or exploitation alleged to be committed
by a
provider of services licensed, registered or otherwise authorized
to pro-
vide services in this state to the appropriate state authority
which regu-
lates such provider. The secretary of health and environment
shall for-
ward any finding of abuse, neglect or exploitation alleged to be
committed
by a provider of services licensed, registered or otherwise
authorized to
provide services in this state to the appropriate state
authority which
regulates such provider. The appropriate state regulatory
authority, after
notice to the alleged perpetrator and a hearing on such matter if
re-
quested by the alleged perpetrator, may consider the finding in any
dis-
ciplinary action taken with respect to the provider of services
under the
jurisdiction of such authority. The secretary of health and
environment
aging may consider the finding of abuse, neglect or
exploitation in any
licensing action taken with respect to any adult care home or
medical care
facility under the jurisdiction of the secretary of aging.
The secretary of
health and environment may consider the finding of abuse,
neglect or
exploitation in any licensing action taken with respect to any
medical care
facility under the jurisdiction of the secretary of health and
environment.
(c) If the investigation of the
department of health and environment
or the department on aging indicates reason to believe that
the resident
is in need of protective services, that finding and all information
relating
to that finding shall be forwarded by the secretary of health and
environ-
ment or the secretary of aging to the secretary of social
and rehabilitation
services.
(d) Except as otherwise provided in this
section, the report received
by the department of health and environment or the department on
aging
and the written findings, evaluations and actions recommended shall
be
confidential and shall not be subject to the open records act.
Except as
otherwise provided in this section, the name of the person making
the
original report to the department of health and environment or
the de-
partment on aging or any person mentioned in such report
shall not be
disclosed unless such person specifically requests or agrees in
writing to
such disclosure or unless a judicial or administrative proceeding
results
therefrom. In the event that an administrative or judicial action
arises, no
use of the information shall be made until the judge or presiding
officer
makes a specific finding, in writing, after a hearing, that under
all the
circumstances the need for the information outweighs the need for
con-
fidentiality. Except as otherwise provided in this section, no
information
contained in the register shall be made available to the public in
such a
manner as to identify individuals.
Sec. 32. K.S.A. 46-233 is hereby
amended to read as follows: 46-233.
(a) (1) No state officer or employee shall in the capacity as such
officer
or employee be substantially involved in the preparation of or
participate
in the making of a contract with any person or business by which
such
officer or employee is employed or in whose business such officer
or
employee or any member of such officer's or employee's immediate
fam-
ily has a substantial interest and no such person or business shall
enter
into any contract where any state officer or employee, acting in
such
capacity, is a signatory to, has been substantially involved in the
prepa-
ration of or is a participant in the making of such contract and is
employed
by such person or business or such officer or employee or any
member
of such officer's or employee's immediate family has a substantial
interest
in such person or business.
(2) Except as otherwise provided in this
subsection, whenever any
individual has participated as a state officer or employee in the
making
of any contract with any person or business, such individual shall
not
accept employment with such person or business as an employee,
inde-
pendent contractor or subcontractor until two years after
performance of
the contract is completed or until two years after the individual
terminates
employment as a state officer or employee, whichever is sooner.
This
prohibition on accepting employment shall not apply in any case
in which:
(A) A state officer or employee who participated in making
a contract
while employed by an institution that is subsequently
closed or abolished
or otherwise ceases operations or that has budget
reductions imposed
that are associated with such closure and who is laid off
from employment
with such institution for the reason of such closure,
abolition or cessation
of operations or such imposition of budget reductions; (B)
a state officer
or employee who participated in making a contract while
employed by
an institution that is scheduled to be closed or abolished
or to cease
operations, who is scheduled to be laid off from employment
with such
institution for the reason of the scheduled closure,
abolition or cessation
of operations, and who voluntarily terminates such
employment after re-
ceiving such state officer or employee's notice of the
scheduled layoff;
(C) a state officer or employee who participated in making
a contract
while employed by the department of corrections at the
Topeka correc-
tional facility and who is laid off from such employment
due to the trans-
fer of the reception and diagnostic center from the Topeka
correctional
facility to the El Dorado correctional facility; (D) a
state officer or em-
ployee who participated in making a contract while employed
by the de-
partment of corrections at the Topeka correctional facility
and who vol-
untarily terminates from such employment after receiving
such state
officer or employee's notice of scheduled layoff due to the
transfer of the
reception and diagnostic center from the Topeka
correctional facility to
the El Dorado correctional facility; (E) a state officer or
employee who
participated in making a contract while employed by the
department of
social and rehabilitation services within the division of
services for the
blind or at Kansas industries for the blind at facilities
located on the
Topeka state hospital property, as defined by K.S.A. 2000
Supp. 75-
37,123 and amendments thereto, and who is laid off from
such employ-
ment due to the closure, abolition or other cessation of
operations of the
Kansas industries for the blind as a state program at such
location; or (F)
a state officer or employee who participated in making a
contract while
employed by the department of social and rehabilitation
services within
the division of services for the blind or at Kansas
industries for the blind
at facilities located on the Topeka state hospital
property, as defined by
K.S.A. 2000 Supp. 75-37,123 and amendments thereto, and who
volun-
tarily terminates from such employment after receiving such
state offi-
cer's or employee's notice of scheduled layoff due to the
closure, abolition
or other cessation of operations of the Kansas industries
for the blind as
a state program at such location where a state
officer or employee who
participated in making a contract while employed by the state of
Kansas
is laid off or scheduled to be laid off from any state position
on or after
July 1, 2002. As used in this subsection (a)(2), ``laid
off'' and ``layoff'' mean,
in the case of a state officer or employee in the
classified service under
the Kansas civil service act, being laid off under K.S.A. 75-2948,
and
amendments thereto, and, in the case of a state officer or
employee in
the unclassified service under the Kansas civil service
act, being termi-
nated from employment with the state agency by the
appointing authority,
except that ``laid off'' and ``layoff'' shall not include
any separation from
employment pursuant to a budget reduction or expenditure
authority
reduction and a reduction of F.T.E. positions under K.S.A.
75-6801, and
amendments thereto; ``institution'' means Topeka state
hospital or Win-
field state hospital and training center.
(b) No individual shall, while a
legislator or within one year after the
expiration of a term as legislator, be interested pecuniarily,
either directly
or indirectly, in any contract with the state, which contract is
funded in
whole or in part by any appropriation or is authorized by any law
passed
during such term, except that the prohibition of this subsection
(b) shall
not apply to any contract interest in relation to which a
disclosure state-
ment is filed as provided by K.S.A. 46-239, and amendments
thereto.
(c) No individual, while a legislator or
within one year after the ex-
piration of a term as a legislator, shall represent any person in a
court
proceeding attacking any legislative action taken or enactment made
dur-
ing any term such individual served as a legislator as being
unconstitu-
tional because of error in the legislative process with respect to
such
action or enactment unless such legislator voted no upon the
enactment
of the measure and declared on the record, during such term, that
such
legislation was unconstitutional. The prohibition of this
subsection (c)
shall not apply to a current or former legislator charged with a
violation
of such legislative action or enactment.
(d) Subsections (a) and (b) shall not
apply to the following:
(1) Contracts let after competitive
bidding has been advertised for by
published notice; and
(2) contracts for property or services
for which the price or rate is
fixed by law.
(e) When used in this section:
(1) ``Substantial interest'' shall have
the same meaning ascribed
thereto by K.S.A. 46-229, and amendments thereto, and any such
interest
held within the preceding 12 months of the act or event of
participating
in the preparation of making a contract.
(2) ``Substantially involved in the
preparation or participate in the
making of a contract'' means having approved or disapproved a
contract
or having provided significant factual or specific information or
advice or
recommendations in relation to the negotiated terms of the
contract.
Sec. 33. K.S.A. 39-924, 39-925, 39-926, 39-930,
39-938, 39-940, 39-
944, 39-945, 39-946, 39-947, 39-948, 39-950, 39-951, 39-952,
39-953a,
39-954, 39-958, 39-961, 39-963, 39-965, 39-969, 39-1404, as amended
by
section 5 of 2003 House Bill No. 2254, 39-1405, as amended by
section
6 of 2003 House Bill No. 2254, 39-1406, as amended by section 7 of
2003
House Bill No. 2254, 39-1409, as amended by section 10 of 2003
House
Bill No. 2254, 39-1411 and 46-233 and K.S.A. 2002 Supp. 32-906,
39-
923, 39-936 and 39-1402, as amended by section 3 of 2003 House
Bill
No. 2254, are hereby repealed.
Sec. 34. This act shall take effect and be in
force from and after its
publication in the statute book.
Approved May 19, 2003.
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