Session Law

Identifying Information:L. 2003 ch. 091
Other Identifying Information:2003 House Bill 2254
Tax Type:Other
Brief Description: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.
Keywords:


Body:

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, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003