CHAPTER 98
SENATE BILL No. 14
An Act concerning providers of care services; employment of persons
by such providers;
amending K.S.A. 65-5117 and K.S.A. 2002 Supp. 39-970 and repealing
the existing
sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2002 Supp. 39-970
is hereby amended to read as
follows: 39-970. (a) (1) No person shall knowingly operate an adult
care
home if, in the adult care home, there works any person who has
been
convicted of or has been adjudicated a juvenile offender because of
having
committed an act which if done by an adult would constitute the
com-
mission of capital murder, pursuant to K.S.A. 21-3439 and
amendments
thereto, first degree murder, pursuant to K.S.A. 21-3401 and
amend-
ments thereto, second degree murder, pursuant to subsection (a)
of
K.S.A. 21-3402 and amendments thereto, voluntary manslaughter,
pur-
suant to K.S.A. 21-3403 and amendments thereto, assisting suicide
pur-
suant to K.S.A. 21-3406 and amendments thereto, mistreatment of a
de-
pendent adult, pursuant to K.S.A. 21-3437 and amendments
thereto,
rape, pursuant to K.S.A. 21-3502 and amendments thereto, indecent
lib-
erties with a child, pursuant to K.S.A. 21-3503 and amendments
thereto,
aggravated indecent liberties with a child, pursuant to K.S.A.
21-3504 and
amendments thereto, aggravated criminal sodomy, pursuant to K.S.A.
21-
3506 and amendments thereto, indecent solicitation of a child,
pursuant
to K.S.A. 21-3510 and amendments thereto, aggravated indecent
solici-
tation of a child, pursuant to K.S.A. 21-3511 and amendments
thereto,
sexual exploitation of a child, pursuant to K.S.A. 21-3516 and
amend-
ments thereto, sexual battery, pursuant to K.S.A. 21-3517 and
amend-
ments thereto, or aggravated sexual battery, pursuant to K.S.A.
21-3518
and amendments thereto, an attempt to commit any of the crimes
listed
in this subsection (a)(1), pursuant to K.S.A. 21-3301, and
amendments
thereto, a conspiracy to commit any of the crimes listed in this
subsection
(a)(1), pursuant to K.S.A. 21-3302, and amendments thereto, or
criminal
solicitation of any of the crimes listed in this subsection (a)(1),
pursuant
to K.S.A. 21-3303, and amendments thereto, or similar statutes of
other
states or the federal government.
(2) A person operating an adult care home
may employ an applicant
who has been convicted of any of the following if five or more
years have
elapsed since the applicant satisfied the sentence imposed or was
dis-
charged from probation, a community correctional services program,
pa-
role, postrelease supervision, conditional release or a suspended
sentence;
or if five or more years have elapsed since the applicant has been
finally
discharged from the custody of the commissioner of juvenile justice
or
from probation or has been adjudicated a juvenile offender,
whichever
time is longer: A felony conviction for a crime which is described
in: (A)
Article 34 of chapter 21 of the Kansas Statutes Annotated and
amend-
ments thereto, except those crimes listed in subsection (a)(1); (B)
articles
35 or 36 of chapter 21 of the Kansas Statutes Annotated and
amendments
thereto, except those crimes listed in subsection (a)(1) and K.S.A.
21-
3605 and amendments thereto; (C) an attempt to commit any of
the
crimes listed in this subsection (a)(2) pursuant to K.S.A. 21-3301,
and
amendments thereto; (D) a conspiracy to commit any of the crimes
listed
in subsection (a)(2) pursuant to K.S.A. 21-3302, and amendments
thereto;
(E) criminal solicitation of any of the crimes listed in subsection
(a)(2)
pursuant to K.S.A. 21-3303, and amendments thereto; or (F) similar
stat-
utes of other states or the federal government.
(b) No person shall operate an adult care
home if such person has
been found to be in need of a guardian or conservator, or both as
provided
in K.S.A. 2002 Supp. 59-3050 through 59-3095, and amendments
thereto.
The provisions of this subsection shall not apply to a minor
found to be
in need of a guardian or conservator for reasons other than
impairment.
(c) The secretary of health and
environment shall have access to any
criminal history record information in the possession of the Kansas
bureau
of investigation regarding felony convictions, convictions under
K.S.A. 21-
3437 and, 21-3517 and 21-3701, and
amendments thereto, adjudications
of a juvenile offender which if committed by an adult would have
been a
felony conviction, and adjudications of a juvenile offender for an
offense
described in K.S.A. 21-3437 and, 21-3517
and 21-3701, and amendments
thereto, concerning persons working in an adult care home. The
secretary
shall have access to these records for the purpose of determining
whether
or not the adult care home meets the requirements of this section.
The
Kansas bureau of investigation may charge to the department of
health
and environment a reasonable fee for providing criminal history
record
information under this subsection.
(d) For the purpose of complying with
this section, the operator of
an adult care home shall request from the department of health
and
environment information regarding only felony convictions,
convictions
under K.S.A. 21-3437 and, 21-3517 and
21-3701, and amendments
thereto, adjudications of a juvenile offender which if committed by
an
adult would have been a felony conviction, and adjudications of a
juvenile
offender for an offense described in K.S.A. 21-3437
and, 21-3517 and 21-
3701, and amendments thereto, and which relates to a person
who works
in the adult care home, or is being considered for employment by
the
adult care home, for the purpose of determining whether such person
is
subject to the provision of this section. For the purpose of
complying with
this section, the operator of an adult care home shall receive from
any
employment agency which provides employees to work in the adult
care
home written certification that such employees are not prohibited
from
working in the adult care home under this section. For the purpose
of
complying with this section, information relating to convictions
and ad-
judications by the federal government or to convictions and
adjudications
in states other than Kansas shall not be required until such time
as the
secretary of health and environment determines the search for such
in-
formation could reasonably be performed and the information
obtained
within a two-week period. For the purpose of complying with this
section,
a person who operates an adult care home may hire an applicant
for
employment on a conditional basis pending the results from the
depart-
ment of health and environment of a request for information under
this
subsection. No adult care home, the operator or employees of an
adult
care home or an employment agency, or the operator or employees of
an
employment agency, shall be liable for civil damages resulting from
any
decision to employ, to refuse to employ or to discharge from
employment
any person based on such adult care home's compliance with the
provi-
sions of this section if such adult care home or employment agency
acts
in good faith to comply with this section.
(e) The secretary of health and
environment shall charge each person
requesting information under this section a fee equal to cost, not
to ex-
ceed $10, for each name about which an information request has
been
submitted to the department under this section.
(f) (1) The secretary of health and
environment shall provide each
operator requesting information under this section with the
criminal his-
tory record information concerning felony convictions and
convictions
under K.S.A. 21-3437 and, 21-3517 and
21-3701, and amendments
thereto, in writing and within three working days of receipt of
such in-
formation from the Kansas bureau of investigation. The criminal
history
record information shall be provided regardless of whether the
infor-
mation discloses that the subject of the request has been convicted
of an
offense enumerated in subsection (a).
(2) When an offense enumerated in
subsection (a) exists in the crim-
inal history record information, and when further confirmation
regarding
criminal history record information is required from the
appropriate court
of jurisdiction or Kansas department of corrections, the secretary
shall
notify each operator that requests information under this section
in writ-
ing and within three working days of receipt from the Kansas bureau
of
investigation that further confirmation is required. The secretary
shall
provide to the operator requesting information under this section
infor-
mation in writing and within three working days of receipt of such
infor-
mation from the appropriate court of jurisdiction or Kansas
department
of corrections regarding confirmation regarding the criminal
history rec-
ord information.
(3) Whenever the criminal history record
information reveals that the
subject of the request has no criminal history on record, the
secretary
shall provide notice to each operator requesting information under
this
section, in writing and within three working days after receipt of
such
information from the Kansas bureau of investigation.
(4) The secretary of health and
environment shall not provide each
operator requesting information under this section with the
juvenile crim-
inal history record information which relates to a person subject
to a
background check as is provided by K.S.A. 38-1618 and
amendments
thereto, except for adjudications of a juvenile offender for an
offense de-
scribed in K.S.A. 21-3701, and amendments thereto. The
secretary shall
notify the operator that requested the information, in writing and
within
three working days of receipt of such information from the Kansas
bureau
of investigation, whether juvenile criminal history record
information re-
ceived pursuant to this section reveals that the operator would or
would
not be prohibited by this section from employing the subject of the
re-
quest for information and whether such information contains
adjudica-
tions of a juvenile offender for an offense described in K.S.A.
21-3701,
and amendments thereto.
(5) An operator who receives criminal
history record information un-
der this subsection (f) shall keep such information confidential,
except
that the operator may disclose such information to the person who
is the
subject of the request for information. A violation of this
paragraph (5)
shall be an unclassified misdemeanor punishable by a fine of
$100.
(g) No person who works for an adult care
home and who is currently
licensed or registered by an agency of this state to provide
professional
services in the state and who provides such services as part of the
work
which such person performs for the adult care home shall be subject
to
the provisions of this section.
(h) A person who volunteers in an adult
care home shall not be sub-
ject to the provisions of this section because of such volunteer
activity.
(i) No person who has been employed by
the same adult care home
for five consecutive years immediately prior to the effective date
of this
act shall be subject to the provisions of this section while
employed by
such adult care home.
(j) The operator of an adult care home
shall not be required under
this section to conduct a background check on an applicant for
employ-
ment with the adult care home if the applicant has been the subject
of a
background check under this act within one year prior to the
application
for employment with the adult care home. The operator of an adult
care
home where the applicant was the subject of such background check
may
release a copy of such background check to the operator of an adult
care
home where the applicant is currently applying.
(k) No person who is in the custody of
the secretary of corrections
and who provides services, under direct supervision in nonpatient
areas,
on the grounds or other areas designated by the superintendent of
the
Kansas soldiers' home or the Kansas veterans' home shall be subject
to
the provisions of this section while providing such services.
(l) For purposes of this section, the
Kansas bureau of investigation
shall only report felony convictions, convictions under K.S.A.
21-3437
and, 21-3517 and 21-3701, and
amendments thereto, adjudications of a
juvenile offender which if committed by an adult would have been
a
felony conviction, and adjudications of a juvenile offender for an
offense
described in K.S.A. 21-3437 and, 21-3517
and 21-3701, and amendments
thereto, to the secretary of health and environment when a
background
check is requested.
(m) This section shall be part of and
supplemental to the adult care
home licensure act.
Sec. 2. K.S.A. 65-5117 is hereby
amended to read as follows: 65-
5117. (a) (1) No person shall knowingly operate a home health
agency if,
for the home health agency, there works any person who has been
con-
victed of or has been adjudicated a juvenile offender because of
having
committed an act which if done by an adult would constitute the
com-
mission of capital murder, pursuant to K.S.A. 21-3439 and
amendments
thereto, first degree murder, pursuant to K.S.A. 21-3401 and
amend-
ments thereto, second degree murder, pursuant to subsection (a)
of
K.S.A. 21-3402 and amendments thereto, voluntary manslaughter,
pur-
suant to K.S.A. 21-3403 and amendments thereto, assisting suicide,
pur-
suant to K.S.A. 21-3406 and amendments thereto, mistreatment of a
de-
pendent adult, pursuant to K.S.A. 21-3437 and amendments
thereto,
rape, pursuant to K.S.A. 21-3502 and amendments thereto, indecent
lib-
erties with a child, pursuant to K.S.A. 21-3503 and amendments
thereto,
aggravated indecent liberties with a child, pursuant to K.S.A.
21-3504 and
amendments thereto, aggravated criminal sodomy, pursuant to K.S.A.
21-
3506 and amendments thereto, indecent solicitation of a child,
pursuant
to K.S.A. 21-3510 and amendments thereto, aggravated indecent
solici-
tation of a child, pursuant to K.S.A. 21-3511 and amendments
thereto,
sexual exploitation of a child, pursuant to K.S.A. 21-3516 and
amend-
ments thereto, sexual battery, pursuant to K.S.A. 21-3517 and
amend-
ments thereto, or aggravated sexual battery, pursuant to K.S.A.
21-3518
and amendments thereto, an attempt to commit any of the crimes
listed
in this subsection (a)(1), pursuant to K.S.A. 21-3301, and
amendments
thereto, a conspiracy to commit any of the crimes listed in this
subsection
(a)(1), pursuant to K.S.A. 21-3302, and amendments thereto, or
criminal
solicitation of any of the crimes listed in this subsection (a)(1),
pursuant
to K.S.A. 21-3303, and amendments thereto, or similar statutes of
other
states or the federal government.
(2) A person operating a home health
agency may employ an appli-
cant who has been convicted of any of the following if five or more
years
have elapsed since the applicant satisfied the sentence imposed or
was
discharged from probation, a community correctional services
program,
parole, postrelease supervision, conditional release or a suspended
sen-
tence; or if five or more years have elapsed since the applicant
has been
finally discharged from the custody of the commissioner of juvenile
justice
or from probation or has been adjudicated a juvenile offender,
whichever
time is longer: A felony conviction for a crime which is described
in: (A)
Article 34 of chapter 21 of the Kansas Statutes Annotated and
amend-
ments thereto, except those crimes listed in subsection (a)(1); (B)
articles
35 or 36 of chapter 21 of the Kansas Statutes Annotated and
amendments
thereto, except those crimes listed in subsection (a)(1) and K.S.A.
21-
3605 and amendments thereto; (C) an attempt to commit any of
the
crimes listed in this subsection (a)(2) pursuant to K.S.A. 21-3301,
and
amendments thereto; (D) a conspiracy to commit any of the crimes
listed
in subsection (a)(2) pursuant to K.S.A. 21-3302, and amendments
thereto;
(E) criminal solicitation of any of the crimes listed in subsection
(a)(2)
pursuant to K.S.A. 21-3303, and amendments thereto; or (F) similar
stat-
utes of other states or the federal government.
(b) No person shall operate a home health
agency if such person has
been found to be a person in need of a guardian or a conservator,
or both,
as provided in K.S.A. 2002 Supp. 59-3050 through 59-3095, and
amend-
ments thereto. The provisions of this subsection shall not apply
to a minor
found to be in need of a guardian or conservator for reasons
other than
impairment.
(c) The secretary of health and
environment shall have access to any
criminal history record information in the possession of the Kansas
bureau
of investigation regarding felony convictions, convictions under
K.S.A. 21-
3437 and, 21-3517 and 21-3701, and
amendments thereto, adjudications
of a juvenile offender which if committed by an adult would have
been a
felony conviction, and adjudications of a juvenile offender for an
offense
described in K.S.A. 21-3437 and, 21-3517
and 21-3701, and amendments
thereto, concerning persons working for a home health agency. The
sec-
retary shall have access to these records for the purpose of
determining
whether or not the home health agency meets the requirements of
this
section. The Kansas bureau of investigation may charge to the
department
of health and environment a reasonable fee for providing criminal
history
record information under this subsection.
(d) For the purpose of complying with
this section, the operator of a
home health agency shall request from the department of health
and
environment information regarding only felony convictions,
convictions
under K.S.A. 21-3437 and, 21-3517 and
21-3701, and amendments
thereto, adjudications of a juvenile offender which if committed by
an
adult would have been a felony conviction, and adjudications of a
juvenile
offender for an offense described in K.S.A. 21-3437
and, 21-3517 and 21-
3701, and amendments thereto, and which relates to a person
who works
for the home health agency or is being considered for employment
by
the home health agency, for the purpose of determining whether
such
person is subject to the provisions of this section. For the
purpose of
complying with this section, information relating to convictions
and ad-
judications by the federal government or to convictions and
adjudications
in states other than Kansas shall not be required until such time
as the
secretary of health and environment determines the search for such
in-
formation could reasonably be performed and the information
obtained
within a two-week period. For the purpose of complying with this
section,
the operator of a home health agency shall receive from any
employment
agency which provides employees to work for the home health
agency
written certification that such employees are not prohibited from
working
for the home health agency under this section. For the purpose of
com-
plying with this section, a person who operates a home health
agency may
hire an applicant for employment on a conditional basis pending the
re-
sults from the department of health and environment of a request
for
information under this subsection. No home health agency, the
operator
or employees of a home health agency or an employment agency, or
the
operator or employees of an employment agency, which provides
em-
ployees to work for the home health agency shall be liable for
civil dam-
ages resulting from any decision to employ, to refuse to employ or
to
discharge from employment any person based on such home health
agency's compliance with the provisions of this section if such
home
health agency or employment agency acts in good faith to comply
with
this section.
(e) The secretary of health and
environment shall charge each person
requesting information under this section a fee equal to cost, not
to ex-
ceed $10, for each name about which an information request has
been
submitted under this section.
(f) (1) The secretary of health and
environment shall provide each
operator requesting information under this section with the
criminal his-
tory record information concerning felony convictions and
convictions
under K.S.A. 21-3437 and, 21-3517 and
21-3701, and amendments
thereto, in writing and within three working days of receipt of
such in-
formation from the Kansas bureau of investigation. The criminal
history
record information shall be provided regardless of whether the
infor-
mation discloses that the subject of the request has been convicted
of an
offense enumerated in subsection (a).
(2) When an offense enumerated in
subsection (a) exists in the crim-
inal history record information, and when further confirmation
regarding
criminal history record information is required from the
appropriate court
of jurisdiction or Kansas department of corrections, the secretary
shall
notify each operator that requests information under this section
in writ-
ing and within three working days of receipt from the Kansas bureau
of
investigation that further confirmation is required. The secretary
shall
provide to the operator requesting information under this section
infor-
mation in writing and within three working days of receipt of such
infor-
mation from the appropriate court of jurisdiction or Kansas
department
of corrections regarding confirmation regarding the criminal
history rec-
ord information.
(3) Whenever the criminal history record
information reveals that the
subject of the request has no criminal history on record, the
secretary
shall provide notice to each operator requesting information under
this
section, in writing and within three working days after receipt of
such
information from the Kansas bureau of investigation.
(4) The secretary of health and
environment shall not provide each
operator requesting information under this section with the
juvenile crim-
inal history record information which relates to a person subject
to a
background check as is provided by K.S.A. 38-1618 and
amendments
thereto, except for adjudications of a juvenile offender for an
offense de-
scribed in K.S.A. 21-3701, and amendments thereto. The
secretary shall
notify the operator that requested the information, in writing and
within
three working days of receipt of such information from the Kansas
bureau
of investigation, whether juvenile criminal history record
information re-
ceived pursuant to this section reveals that the operator would or
would
not be prohibited by this section from employing the subject of the
re-
quest for information and whether such information contains
adjudica-
tions of a juvenile offender for an offense described in K.S.A.
21-3701,
and amendments thereto.
(5) An operator who receives criminal
history record information un-
der this subsection (f) shall keep such information confidential,
except
that the operator may disclose such information to the person who
is the
subject of the request for information. A violation of this
paragraph (5)
shall be an unclassified misdemeanor punishable by a fine of
$100.
(g) No person who works for a home health
agency and who is cur-
rently licensed or registered by an agency of this state to provide
profes-
sional services in this state and who provides such services as
part of the
work which such person performs for the home health agency shall
be
subject to the provisions of this section.
(h) A person who volunteers to assist a
home health agency shall not
be subject to the provisions of this section because of such
volunteer
activity.
(i) No person who has been employed by
the same home health
agency for five consecutive years immediately prior to the
effective date
of this act shall be subject to the requirements of this section
while em-
ployed by such home health agency.
(j) The operator of a home health agency
shall not be required under
this section to conduct a background check on an applicant for
employ-
ment with the home health agency if the applicant has been the
subject
of a background check under this act within one year prior to the
appli-
cation for employment with the home health agency. The operator of
a
home health agency where the applicant was the subject of such
back-
ground check may release a copy of such background check to the
op-
erator of a home health agency where the applicant is currently
applying.
(k) For purposes of this section, the
Kansas bureau of investigation
shall only report felony convictions, convictions under K.S.A.
21-3437
and, 21-3517 and 21-3701, and
amendments thereto, adjudications of a
juvenile offender which if committed by an adult would have been
a
felony conviction, and adjudications of a juvenile offender for an
offense
described in K.S.A. 21-3437 and, 21-3517
and 21-3701, and amendments
thereto, to the secretary of health and environment when a
background
check is requested.
(l) This section shall be part of and
supplemental to the provisions of
article 51 of chapter 65 of the Kansas Statutes Annotated and acts
amen-
datory thereof or supplemental thereto.
Sec. 3. K.S.A. 65-5117 and K.S.A. 2002 Supp.
39-970 are hereby
repealed.
Sec. 4. This act shall take effect and be in force
from and after its
publication in the statute book.
Approved April 21, 2003.
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