CHAPTER 91
HOUSE BILL No. 2254
(Amended by Chapter 149)
An Act concerning dependent persons; relating to the reporting of
abuse, neglect or ex-
ploitation of such persons; amending K.S.A. 39-1401, 39-1403,
39-1404, 39-1405, 39-
1406, 39-1407, 39-1408, 39-1409, 39-1430, 39-1432, 39-1433, 39-1436
and 39-1437 and
K.S.A. 2002 Supp. 39-1402 and 39-1431 and repealing the
existing sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) Investigation
of adult abuse. The state depart-
ment of social and rehabilitation services and law enforcement
officers
shall have the duty to receive and investigate reports of adult
abuse, ne-
glect, exploitation or fiduciary abuse for the purpose of
determining
whether the report is valid and whether action is required to
protect the
adult from further abuse or neglect. If the department and such
officers
determine that no action is necessary to protect the adult but that
a crim-
inal prosecution should be considered, the department and such law
en-
forcement officers shall make a report of the case to the
appropriate law
enforcement agency.
(b) Joint investigations. When a
report of adult neglect, adult abuse,
exploitation or fiduciary abuse indicates (1) that there is serious
physical
injury to or serious deterioration or sexual abuse or exploitation
of the
adult and (2) that action may be required to protect the adult, the
inves-
tigation may be conducted as a joint effort between the department
of
social and rehabilitation services and the appropriate law
enforcement
agency or agencies, with a free exchange of information between
such
agencies. Upon completion of the investigation by the law
enforcement
agency, a full report shall be provided to the department of social
and
rehabilitation services.
(c) Coordination of investigations by
county or district attorney. If a
dispute develops between agencies investigating a reported case of
adult
abuse, neglect, exploitation or fiduciary abuse, the appropriate
county or
district attorney shall take charge of, direct and coordinate the
investi-
gation.
(d) Investigations concerning certain
facilities. Any investigation by a
law enforcement agency involving a facility subject to licensing or
regu-
lation by the secretary of health and environment shall be
reported
promptly to the state secretary of health and environment, upon
conclu-
sion of the investigation or sooner if such report does not
compromise
the investigation.
(e) Cooperation between agencies.
Law enforcement agencies and
the department of social and rehabilitation services shall assist
each other
in taking action which is necessary to protect the adult regardless
of which
party conducted the initial investigation.
Sec. 2. K.S.A. 39-1401 is hereby
amended to read as follows: 39-
1401. As used in this act:
(a) ``Resident'' means:
(1) Any resident, as defined by K.S.A.
39-923 and amendments
thereto; or
(2) any individual kept, cared for,
treated, boarded or otherwise ac-
commodated in a medical care facility; or
(3) any individual, kept, cared for,
treated, boarded or otherwise ac-
commodated in a state psychiatric hospital or state institution for
the
mentally retarded.
(b) ``Adult care home'' has the meaning
ascribed thereto in K.S.A.
39-923 and amendments thereto.
(c) ``In need of protective services''
means that a resident is unable
to perform or obtain services which are necessary to maintain
physical or
mental health, or both.
(d) ``Services which are necessary to
maintain physical and mental
health'' include, but are not limited to, the provision of medical
care for
physical and mental health needs, the relocation of a resident to a
facility
or institution able to offer such care, assistance in personal
hygiene, food,
clothing, adequately heated and ventilated shelter, protection from
health
and safety hazards, protection from maltreatment the result of
which
includes, but is not limited to, malnutrition, deprivation of
necessities or
physical punishment and transportation necessary to secure any of
the
above stated needs, except that this term shall not include taking
such
person into custody without consent, except as provided in this
act.
(e) ``Protective services'' means
services provided by the state or other
governmental agency or any private organizations or individuals
which are
necessary to prevent abuse, neglect or exploitation. Such
protective serv-
ices shall include, but not be limited to, evaluation of the need
for serv-
ices, assistance in obtaining appropriate social services and
assistance in
securing medical and legal services.
(f) ``Abuse'' means any act or failure to
act performed intentionally
or recklessly that causes or is likely to cause harm to a resident,
including:
(1) Infliction of physical or mental
injury;
(2) any sexual act with a resident when
the resident does not consent
or when the other person knows or should know that the resident
is
incapable of resisting or declining consent to the sexual act due
to mental
deficiency or disease or due to fear of retribution or
hardship;
(3) unreasonable use of a physical
restraint, isolation or medication
that harms or is likely to harm a resident;
(4) unreasonable use of a physical or
chemical restraint, medication
or isolation as punishment, for convenience, in conflict with a
physician's
orders or as a substitute for treatment, except where such conduct
or
physical restraint is in furtherance of the health and safety of
the resident
or another resident;
(5) a threat or menacing conduct directed
toward a resident that re-
sults or might reasonably be expected to result in fear or
emotional or
mental distress to a resident;
(6) fiduciary abuse; or
(7) omission or deprivation by a
caretaker or another person of goods
or services which are necessary to avoid physical or mental harm or
illness.
(g) ``Neglect'' means the failure or
omission by one's self, caretaker
or another person with a duty to provide goods or services
which are
reasonably necessary to ensure safety and well-being and to avoid
physical
or mental harm or illness.
(h) ``Caretaker'' means a person or
institution who has assumed the
responsibility, whether legally or not, for the care of the
resident volun-
tarily, by contract or by order of a court of competent
jurisdiction.
(i) ``Exploitation'' means
misappropriation of resident property or in-
tentionally taking unfair advantage of an adult's physical or
financial re-
sources for another individual's personal or financial advantage by
the use
of undue influence, coercion, harassment, duress, deception, false
rep-
resentation or false pretense by a caretaker or another person.
(j) ``Medical care facility'' means a
facility licensed under K.S.A. 65-
425 et seq. and amendments thereto but shall not include,
for purposes
of this act, a state psychiatric hospital or state institution for
the mentally
retarded, including Larned state hospital, Osawatomie state
hospital, and
Rainbow mental health facility, Kansas neurological institute and
Parsons
state hospital and training center.
(k) ``Fiduciary abuse'' means a situation
in which any person who is
the caretaker of, or who stands in a position of trust to, a
resident, takes,
secretes, or appropriates the resident's money or property, to any
use or
purpose not in the due and lawful execution of such person's
trust.
(l) ``State psychiatric hospital'' means
Larned state hospital, Osawa-
tomie state hospital and Rainbow mental health facility.
(m) ``State institution for the mentally
retarded'' means Kansas neu-
rological institute and Parsons state hospital and training
center.
(n) ``Report'' means a description or
accounting of an incident or
incidents of abuse, neglect or exploitation under this act and for
the pur-
poses of this act shall not include any written assessment or
findings.
(o) ``Law enforcement'' means the public
office which is vested by
law with the duty to maintain public order, make arrests for crimes
and
investigate criminal acts, whether that duty extends to all crimes
or is
limited to specific crimes.
(p) ``Legal representative'' means an
agent designated in a durable
power of attorney, power of attorney or durable power of
attorney for
health care decisions or a court appointed guardian, conservator
or trus-
tee.
(q) ``Financial institution'' means
any bank, trust company, escrow
company, finance company, saving institution or credit union,
chartered
and supervised under state or federal law.
(r) ``Governmental assistance
provider'' means an agency, or em-
ployee of such agency, which is funded solely or in part to
provide assis-
tance within the Kansas senior care act, K.S.A. 75-5926
et seq., and
amendments thereto, including medicaid and medicare.
No person shall be considered to be abused,
neglected or exploited or
in need of protective services for the sole reason that such person
relies
upon spiritual means through prayer alone for treatment in
accordance
with the tenets and practices of a recognized church or religious
denom-
ination in lieu of medical treatment.
Sec. 3. K.S.A. 2002 Supp. 39-1402
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 psy-
chologist, a licensed clinical psychotherapist, a chief
administrative officer
of a medical care facility, 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 mar-
riage and family therapist, licensed professional counselor,
licensed clin-
ical professional counselor, registered alcohol and drug abuse
counselor,
a teacher, a bank trust officer, a guardian or a
conservator and any other
officers of financial institutions, a legal representative 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 exploitation 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 with respect to residents
defined
under subsections (a)(1) and (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 department 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. Re-
ports 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
informa-
tion to the appropriate 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
with respect to residents defined under subsections (a)(1)
and (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 department 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. 4. K.S.A. 39-1403 is hereby
amended to read as follows: 39-
1403. (a) Anyone participating in the making of any report pursuant
to
this act, or in any follow-up activity to or investigation of such
report or
any other report of abuse, neglect or exploitation of an adult or
who
testifies in any administrative or judicial proceeding arising from
such
report shall not be subject to any civil or
criminal liability on account of
such report, investigation or testimony, unless such person acted
in bad
faith or with malicious purpose.
(b) No employer shall terminate the
employment of, prevent or im-
pair the practice or occupation of or impose any other sanction on
any
employee solely for the reason that such employee made or caused to
be
made a report under this act.
Sec. 5. K.S.A. 39-1404 is hereby
amended to read as follows: 39-
1404. (a) The department 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 may inform the chief
administrative officer of a facility as defined by K.S.A. 39-923
and amend-
ments thereto within 30 days of confirmed findings of
resident abuse,
neglect or exploitation.
Sec. 6. K.S.A. 39-1405 is hereby
amended to read as follows: 39-
1405. (a) The secretary of health and environment shall forward to
the
secretary of social and rehabilitation services any finding that a
resident
may be in need of protective services. If the secretary of social
and re-
habilitation services determines 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 representative. If a resident or such
resident's legal rep-
resentative, or both, fails to consent and the secretary of
social and re-
habilitation services has reason to believe that such a resident
lacks ca-
pacity 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 res-
ident.
Sec. 7. K.S.A. 39-1406 is hereby
amended to read as follows: 39-
1406. Any person, department or agency authorized to carry out the
du-
ties enumerated in this act, including investigating law
enforcement agen-
cies and the long-term care ombudsman shall have access to
all relevant
records. The authority of the secretary of social and
rehabilitation services
and the secretary of health and environment 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. 8. K.S.A. 39-1407 is hereby
amended to read as follows: 39-
1407. If a resident does not consent to the receipt of reasonable
and
necessary protective services, or if such person withdraws the
consent,
such services shall not be provided or continued, except that if
the sec-
retary of social and rehabilitation services has reason to believe
that such
resident lacks capacity to consent, the secretary may seek court
authori-
zation to provide necessary services, as provided in K.S.A.
39-1408, and
amendments thereto.
Sec. 9. K.S.A. 39-1408 is hereby
amended to read as follows: 39-
1408. (a) If the secretary of social and rehabilitation services
finds 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 and
lacks capacity to consent to reasonable and necessary protective
services,
the secretary may petition the district court for appointment of a
guardian
or conservator, or both, for the resident pursuant to the
provisions of the
act for obtaining a guardian or conservator, or both, in order to
obtain
such consent.
(b) In any proceeding in district court
pursuant to provisions of this
act, the district court shall appoint an attorney to represent the
resident
if the resident is without other legal representation.
Sec. 10. K.S.A. 39-1409 is hereby
amended to read as follows: 39-
1409. In performing the duties set forth in this act, the secretary
of social
and rehabilitation services or, the
secretary of health and environment or
an appropriate law enforcement agency may request the
assistance of the
staffs and resources of all appropriate state departments, agencies
and
commissions and local health departments and may utilize any other
pub-
lic 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,
ne-
glected or exploited or is in a condition which is a result of such
abuse,
neglect or exploitation, except that any internal investigation
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
or the secretary of social and rehabilitation services, as
applicable.
Sec. 11. K.S.A. 39-1430 is hereby
amended to read as follows: 39-
1430. As used in this act:
(a) ``Adult'' means an individual 18
years of age or older alleged to
be unable to protect their own interest and who is harmed or
threatened
with harm, whether financial, mental or physical in nature,
through action
or inaction by either another individual or through their own
action or
inaction when (1) such person is residing in such person's own
home, the
home of a family member or the home of a friend, (2) such person
resides
in an adult family home as defined in K.S.A. 39-1501 and
amendments
thereto, or (3) such person is receiving services through a
provider of
community services and affiliates thereof operated or funded by the
de-
partment of social and rehabilitation services or the department on
aging
or a residential facility licensed pursuant to K.S.A. 75-3307b and
amend-
ments thereto. Such term shall not include persons to whom K.S.A.
39-
1401 et seq. and amendments thereto apply.
(b) ``Abuse'' means any act or failure to
act performed intentionally
or recklessly that causes or is likely to cause harm to an adult,
including:
(1) Infliction of physical or mental
injury;
(2) any sexual act with an adult when the
adult does not consent or
when the other person knows or should know that the adult is
incapable
of resisting or declining consent to the sexual act due to mental
deficiency
or disease or due to fear of retribution or hardship;
(3) unreasonable use of a physical
restraint, isolation or medication
that harms or is likely to harm an adult;
(4) unreasonable use of a physical or
chemical restraint, medication
or isolation as punishment, for convenience, in conflict with a
physician's
orders or as a substitute for treatment, except where such conduct
or
physical restraint is in furtherance of the health and safety of
the adult;
(5) a threat or menacing conduct directed
toward an adult that results
or might reasonably be expected to result in fear or emotional or
mental
distress to an adult;
(6) fiduciary abuse; or
(7) omission or deprivation by a
caretaker or another person of goods
or services which are necessary to avoid physical or mental harm or
illness.
(c) ``Neglect'' means the failure or
omission by one's self, caretaker
or another person with a duty to supply or provide
goods or services
which are reasonably necessary to ensure safety and well-being and
to
avoid physical or mental harm or illness.
(d) ``Exploitation'' means
misappropriation of an adult's property or
intentionally taking unfair advantage of an adult's physical or
financial
resources for another individual's personal or financial advantage
by the
use of undue influence, coercion, harassment, duress, deception,
false
representation or false pretense by a caretaker or another
person.
(e) ``Fiduciary abuse'' means a situation
in which any person who is
the caretaker of, or who stands in a position of trust to, an
adult, takes,
secretes, or appropriates their money or property, to any use or
purpose
not in the due and lawful execution of such person's trust or
benefit.
(f) ``In need of protective services''
means that an adult is unable to
provide for or obtain services which are necessary to maintain
physical or
mental health or both.
(g) ``Services which are necessary to
maintain physical or mental
health or both'' include, but are not limited to, the provision of
medical
care for physical and mental health needs, the relocation of an
adult to a
facility or institution able to offer such care, assistance in
personal hy-
giene, food, clothing, adequately heated and ventilated shelter,
protection
from health and safety hazards, protection from maltreatment the
result
of which includes, but is not limited to, malnutrition, deprivation
of ne-
cessities or physical punishment and transportation necessary to
secure
any of the above stated needs, except that this term shall not
include
taking such person into custody without consent except as provided
in
this act.
(h) ``Protective services'' means
services provided by the state or
other governmental agency or by private organizations or
individuals
which are necessary to prevent abuse, neglect or exploitation. Such
pro-
tective services shall include, but shall not be limited to,
evaluation of the
need for services, assistance in obtaining appropriate social
services, and
assistance in securing medical and legal services.
(i) ``Caretaker'' means a person who has
assumed the responsibility,
whether legally or not, for an adult's care or financial
management or
both.
(j) ``Secretary'' means the secretary of
social and rehabilitation serv-
ices.
(k) ``Report'' means a description or
accounting of an incident or in-
cidents of abuse, neglect or exploitation under this act and for
the pur-
poses of this act shall not include any written assessment or
findings.
(l) ``Law enforcement'' means the public
office which is vested by law
with the duty to maintain public order, make arrests for crimes,
investi-
gate criminal acts and file criminal charges, whether that duty
extends to
all crimes or is limited to specific crimes.
(m) ``Involved adult'' means the adult
who is the subject of a report
of abuse, neglect or exploitation under this act.
(n) ``Legal representative,''
``financial institution'' and ``governmental
assistance provider'' shall have the meanings ascribed thereto
in K.S.A.
39-1401, and amendments thereto.
No person shall be considered to be abused,
neglected or exploited or
in need of protective services for the sole reason that such person
relies
upon spiritual means through prayer alone for treatment in
accordance
with the tenets and practices of a recognized church or religious
denom-
ination in lieu of medical treatment.
Sec. 12. K.S.A. 2002 Supp. 39-1431
is hereby amended to read as
follows: 39-1431. (a) Any person who is licensed to practice any
branch
of the healing arts, a licensed psychologist, a licensed master
level psy-
chologist, a licensed clinical psychotherapist, the chief
administrative of-
ficer of a medical care facility, a teacher, a licensed social
worker, a li-
censed professional nurse, a licensed practical nurse, a licensed
dentist,
a licensed marriage and family therapist, a licensed clinical
marriage and
family therapist, licensed professional counselor, licensed
clinical profes-
sional counselor, registered alcohol and drug abuse counselor, a
law en-
forcement officer, a case manager, a guardian or
conservator, a bank trust
officer, a rehabilitation counselor, a
holder of a power of attorney, a bank
trust officer or any other officers of financial institutions, a
legal repre-
sentative, a governmental assistance provider, an owner or
operator of a
residential care facility, an independent living counselor and the
chief
administrative officer of a licensed home health agency, the chief
admin-
istrative officer of an adult family home and the chief
administrative of-
ficer of a provider of community services and affiliates thereof
operated
or funded by the department of social and rehabilitation services
or li-
censed under K.S.A. 75-3307b and amendments thereto who has
reason-
able cause to believe that an adult is being or has been abused,
neglected
or exploited or is in need of protective services shall report,
immediately
from receipt of the information, such information or cause a report
of
such information to be made in any reasonable manner. An employee
of
a domestic violence center shall not be required to report
information or
cause a report of information to be made under this subsection.
Other
state agencies receiving reports that are to be referred to the
department
of social and rehabilitation services and the appropriate law
enforcement
agency, shall submit the report to the department and
agency within six
hours, during normal work days, of receiving the information.
Reports
shall be made to the department of social and rehabilitation
services dur-
ing the normal working week days and hours of operation. Reports
shall
be made to law enforcement agencies during the time social and
reha-
bilitation services are not in operation. Law enforcement shall
submit the
report and appropriate information to the department of social and
re-
habilitation services on the first working day that social and
rehabilitation
services is in operation after receipt of such
information.
(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 involved adult, the name and address of the involved
adult,
information regarding the nature and extent of the abuse, neglect
or ex-
ploitation, the name of the next of kin of the involved adult, if
known,
and any other information which the person making the report
believes
might be helpful in the investigation of the case and the
protection of the
involved adult.
(c) Any other person, not listed in
subsection (a), having reasonable
cause to suspect or believe that an adult is being or has been
abused,
neglected or exploited or is in need of protective services may
report such
information to the department of social and rehabilitation
services. Re-
ports shall be made to law enforcement agencies during the time
social
and rehabilitation services are not in operation.
(d) A person making a report under
subsection (a) shall not be re-
quired to make a report under K.S.A. 39-1401 to 39-1410, inclusive,
and
amendments thereto.
(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 not to be made shall be guilty of
a class
B misdemeanor.
(f) 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 family home as defined in
K.S.A. 39-
1501 and amendments thereto and every provider of community
services
and affiliates thereof operated or funded by the department of
social and
rehabilitation services or other facility licensed under K.S.A.
75-3307b
and amendments thereto, and other institutions included in
subsection
(a).
Sec. 13. K.S.A. 39-1432 is hereby
amended to read as follows: 39-
1432. (a) Anyone participating in the making of any report pursuant
to
this act, or in any follow-up activity to or investigation of such
report or
who testifies in any administrative or judicial proceeding arising
from such
report shall not be subject to any civil or
criminal liability on account of
such report, investigation or testimony, unless such person acted
in bad
faith or with malicious purpose.
(b) No employer shall terminate the
employment of, prevent or im-
pair the practice or occupation of or impose any other sanction on
any
employee solely for the reason that such employee made or caused to
be
made a report, or cooperated with an investigation, under this act.
A
court, in addition to other damages and remedies, may assess
reasonable
attorney fees against an employer who has been found to have
violated
the provisions of this subsection.
Sec. 14. K.S.A. 39-1433 is hereby
amended to read as follows: 39-
1433. (a) The department of social and rehabilitation services upon
re-
ceiving a report that an adult is being, or has been abused,
neglected, or
exploited 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 adult:
(A) Within 24 hours when the information
from the reporter indi-
cates imminent danger to the health or welfare of the involved
adult;
(B) within three working days for all
reports of suspected abuse, when
the information from the reporter indicates no imminent danger;
(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 adult and what action and services,
if any,
are required. The evaluation shall include, but not be limited to,
consul-
tation with those individuals having knowledge of the facts of the
partic-
ular case. If the alleged perpetrator is licensed, registered or
otherwise
regulated by a state agency, such state agency also shall be
notified im-
mediately upon completion of the investigation
or sooner if such notifi-
cation does not compromise the investigation.
(4) Prepare, upon completion of the
investigation 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 secretary of social and
rehabilitation services shall forward
any finding of abuse, neglect or exploitation alleged to have been
com-
mitted by a provider of services licensed, registered or otherwise
author-
ized to provide services in this state to the appropriate state
authority
which regulates such provider. The appropriate state regulatory
authority
may consider the finding in any disciplinary action taken with
respect to
the provider of services under the jurisdiction of such
authority.
(c) The department of social and
rehabilitation services 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, upon
comple-
tion of the investigation or sooner, if such measures do not
jeopardize the
investigation.
(d) The department of social and
rehabilitation services may inform
the chief administrative officer of community facilities licensed
pursuant
to K.S.A. 75-3307b and amendments thereto of confirmed findings
of
resident abuse, neglect or exploitation.
Sec. 15. K.S.A. 39-1436 is hereby
amended to read as follows: 39-
1436. (a) Any person or agency which maintains records relating to
the
involved adult which are relevant to any investigation conducted by
the
department of social and rehabilitation services or a law
enforcement
agency under this act shall provide, upon the written
consent of the in-
volved adult or the involved adult's guardian, the department of
social
and rehabilitation services or a law enforcement agency with
the necessary
records to assist in investigations. Any such information shall be
subject
to the confidentiality requirements of K.S.A. 39-1434 and
amendments
thereto.
(b) The department of social and
rehabilitation services or a law en-
forcement agency shall have access to all relevant records
in accordance
with the provisions of subsection (a).
Sec. 16. K.S.A. 39-1437 is hereby
amended to read as follows: 39-
1437. (a) If the secretary determines that an involved adult is in
need of
protective services, the secretary shall provide the necessary
protective
services if the adult consents, or if the adult lacks capacity
to consent, the
secretary may obtain consent from such adult's legal
representative. If the
involved adult fails to consent and the secretary has reason to
believe that
the involved adult lacks capacity to consent, the secretary shall
determine
whether a petition for appointment of a guardian or conservator, or
both,
should be filed. If such determination is made, the
secretary may petition
the district court for appointment of a guardian or conservator, or
both,
for an involved adult pursuant to the provisions of the act for
obtaining a
guardian or conservator, or both.
(b) If the caretaker or legal
representative of an involved adult who
has consented to the receipt of reasonable and necessary protective
serv-
ices refuses to allow the provision of such services to the adult,
the sec-
retary may seek an injunction enjoining the caretaker or legal
represen-
tative from interfering with the provision of protective
services to the
adult. The petition in such action shall allege specific facts
sufficient to
show that the adult is in need of protective services and consents
to their
provision and that the caretaker or legal representative
refuses to allow
the provision of such services. If the judge finds, by clear and
convincing
evidence, that the adult is in need of protective services
and has been
prevented by the caretaker or legal representative from
receiving such
services, the judge shall issue an order enjoining the caretaker
or legal
representative from interfering with the provision of
protective services
to the adult. The court may appoint a new legal representative,
if the
court deems that it is in the best interest of the
adult.
Sec. 17. K.S.A. 39-1401, 39-1403, 39-1404,
39-1405, 39-1406, 39-
1407, 39-1408, 39-1409, 39-1430, 39-1432, 39-1433, 39-1436 and
39-1437
and K.S.A. 2002 Supp. 39-1402 and 39-1431 are hereby repealed.
Sec. 18. This act shall take effect and be in
force from and after its
publication in the statute book.
Approved April 16, 2003.
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