Session Law

Identifying Information:L. 2003 ch. 098
Other Identifying Information:2003 Senate Bill 14
Tax Type:Other
Brief Description: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.
Keywords:


Body:

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, 2002.


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