Session Law

Identifying Information:L. 2003 ch. 149
Other Identifying Information:2003 Senate Bill 261
Tax Type:Other
Brief Description:An Act concerning state officers and employees; concerning the transfer of certain powers, duties and functions between certain state agencies; transferring certain powers, duties and functions from the department of health and environment to the department on aging; concerning contracts involving state officers and employees; amending K.S.A. 39- 924, 39-925, 39-926, 39-930, 39-938, 39-940, 39-944, 39-945, 39-946, 39-947, 39-948, 39-950, 39-951, 39-952, 39-953a, 39-954, 39-958, 39-961, 39-963, 39-965, 39-969, 39- 1404, as amended by section 5 of 2003 House Bill No. 2254, 39-1405, as amended by section 6 of 2003 House Bill No. 2254, 39-1406, as amended by section 7 of 2003 House Bill No. 2254, 39-1409, as amended by section 10 of 2003 House Bill No. 2254, 39-1411 and 46-233 and K.S.A. 2002 Supp. 32-906, 39-923, 39-936 and 39-1402, as amended by section 3 of 2003 House Bill No. 2254, and repealing the existing sections.
Keywords:


Body:

CHAPTER 149

SENATE BILL No. 261

(Amends Chapter 91)


An Act concerning state officers and employees; concerning the transfer of certain powers,

duties and functions between certain state agencies; transferring certain powers, duties

and functions from the department of health and environment to the department on

aging; concerning contracts involving state officers and employees; amending K.S.A. 39-

924, 39-925, 39-926, 39-930, 39-938, 39-940, 39-944, 39-945, 39-946, 39-947, 39-948,

39-950, 39-951, 39-952, 39-953a, 39-954, 39-958, 39-961, 39-963, 39-965, 39-969, 39-

1404, as amended by section 5 of 2003 House Bill No. 2254, 39-1405, as amended by

section 6 of 2003 House Bill No. 2254, 39-1406, as amended by section 7 of 2003 House

Bill No. 2254, 39-1409, as amended by section 10 of 2003 House Bill No. 2254, 39-1411

and 46-233 and K.S.A. 2002 Supp. 32-906, 39-923, 39-936 and 39-1402, as amended by


section 3 of 2003 House Bill No. 2254, and repealing the existing sections.


Be it enacted by the Legislature of the State of Kansas:

Sec. 1. K.S.A. 2002 Supp. 32-906 is hereby amended to read as fol-

lows: 32-906. (a) Except as otherwise provided by law or rules and reg-

ulations of the secretary, a valid Kansas fishing license is required to fish

or to take any bullfrog in this state.

(b) The provisions of subsection (a) do not apply to fishing by:

(1) A person, or a member of a person's immediate family domiciled

with such person, on land owned by such person or on land leased or

rented by such person for agricultural purposes;

(2) a resident of this state who is less than 16 years of age or who is

65 or more years of age;

(3) a nonresident who is less than 16 years of age;

(4) a person fishing in a private water fishing impoundment unless

waived pursuant to K.S.A. 32-975 and amendments thereto;

(5) a resident of an adult care home, as defined by K.S.A. 39-923 and

amendments thereto, licensed by the secretary of health and environment

aging;

(6) an inmate in an honor camp operated by the secretary of correc-

tions, pursuant to an agreement between the secretary of corrections and

the secretary of wildlife and parks;

(7) a person on dates designated pursuant to subsection (f);

(8) a person fishing under a valid institutional group fishing license

issued pursuant to subsection (g); or

(9) a participant in a fishing clinic sponsored or cosponsored by the

department, during the period of time that the fishing clinic is being

conducted.

(c) The fee for a fishing license shall be the amount prescribed pur-

suant to K.S.A. 32-988 and amendments thereto.

(d) Unless otherwise provided by law or rules and regulations of the

secretary, a fishing license is valid throughout the state.

(e) Unless otherwise provided by law or rules and regulations of the

secretary, a fishing license is valid from the date of issuance and expires

on December 31 following its issuance, except that the secretary may

issue a:

(1) Permanent license pursuant to K.S.A. 32-929 and amendments

thereto;

(2) lifetime license pursuant to K.S.A. 32-930 and amendments

thereto;

(3) nonresident fishing license valid for a period of five days; and

(4) resident or nonresident fishing license valid for a period of 24

hours.

(f) The secretary may designate by resolution two days each calendar

year during which persons may fish by legal means without having a valid

fishing license.

(g) The secretary shall issue an annual institutional group fishing li-

cense to each facility operating under the jurisdiction of or licensed by

the secretary of social and rehabilitation services and to any veterans ad-

ministration medical center in the state of Kansas upon application by

such facility or center to the secretary of wildlife and parks for such li-

cense.

All applications for facilities under the jurisdiction of the secretary of

social and rehabilitation services shall be made with the approval of the

secretary of social and rehabilitation services and shall provide such in-

formation as the secretary of wildlife and parks requires. All applications

for any veterans administration medical center shall be made with the

approval of the director of such facility and shall provide such information

as the secretary of wildlife and parks requires. Persons who have been

admitted to and are currently residing at the facility or center, not to

exceed 20 at any one time, may fish under an institutional group fishing

license within the state while on a group trip, group outing or other group

activity which is supervised by the facility or center. Persons fishing under

an institutional group fishing license shall not be required to obtain a

fishing license but shall be subject to all other laws and to all rules and

regulations relating to fishing.

The staff personnel of the facility or center supervising the group trip,

group outing or other group activity shall have in their possession the

institutional license when engaged in supervising any activity requiring

the license. Such staff personnel may assist group members in all aspects

of their fishing activity.

(h) The secretary may issue a special nonprofit group fishing license

to any community, civic or charitable organization which is organized as

a not-for-profit corporation, for use by such community, civic or chari-

table organization for the sole purpose of conducting group fishing activ-

ities for handicapped or developmentally disabled individuals. All appli-

cations for a special nonprofit group fishing license shall be made to the

secretary or the secretary's designee and shall provide such information

as required by the secretary.

Handicapped or developmentally disabled individuals, not to exceed

20 at any one time, may fish under a special nonprofit group fishing

license while on a group trip, outing or activity which is supervised by the

community, civic or charitable organization. Individuals fishing under a

special nonprofit group fishing license shall not be required to obtain a

fishing license but shall be subject to all other laws and rules and regu-

lations relating to fishing.

The staff personnel of the community, civic or charitable organization

supervising the group trip, outing or activity shall have in their possession

the special nonprofit group fishing license when engaged in supervising

any activity requiring the special nonprofit group fishing license. Such

staff personnel may assist group members in all aspects of their fishing

activity.

Sec. 2. K.S.A. 2002 Supp. 39-923 is hereby amended to read as fol-

lows: 39-923. (a) As used in this act:

(1) ``Adult care home'' means any nursing facility, nursing facility for

mental health, intermediate care facility for the mentally retarded, as-

sisted living facility, residential health care facility, home plus, boarding

care home and adult day care facility, all of which classifications of adult

care homes are required to be licensed by the secretary of health and

environment aging.

(2) ``Nursing facility'' means any place or facility operating 24 hours

a day, seven days a week, caring for six or more individuals not related

within the third degree of relationship to the administrator or owner by

blood or marriage and who, due to functional impairments, need skilled

nursing care to compensate for activities of daily living limitations.

(3) ``Nursing facility for mental health'' means any place or facility

operating 24 hours a day, seven days a week caring for six or more indi-

viduals not related within the third degree of relationship to the admin-

istrator or owner by blood or marriage and who, due to functional im-

pairments, need skilled nursing care and special mental health services

to compensate for activities of daily living limitations.

(4) ``Intermediate care facility for the mentally retarded'' means any

place or facility operating 24 hours a day, seven days a week caring for

six or more individuals not related within the third degree of relationship

to the administrator or owner by blood or marriage and who, due to

functional impairments caused by mental retardation or related condi-

tions need services to compensate for activities of daily living limitations.

(5) ``Assisted living facility'' means any place or facility caring for six

or more individuals not related within the third degree of relationship to

the administrator, operator or owner by blood or marriage and who, by

choice or due to functional impairments, may need personal care and

may need supervised nursing care to compensate for activities of daily

living limitations and in which the place or facility includes apartments

for residents and provides or coordinates a range of services including

personal care or supervised nursing care available 24 hours a day, seven

days a week for the support of resident independence. The provision of

skilled nursing procedures to a resident in an assisted living facility is not

prohibited by this act. Generally, the skilled services provided in an as-

sisted living facility shall be provided on an intermittent or limited term

basis, or if limited in scope, a regular basis.

(6) ``Residential health care facility'' means any place or facility, or a

contiguous portion of a place or facility, caring for six or more individuals

not related within the third degree or relationship to the administrator,

operator or owner by blood or marriage and who, by choice or due to

functional impairments, may need personal care and may need supervised

nursing care to compensate for activities of daily living limitations and in

which the place or facility includes individual living units and provides or

coordinates personal care or supervised nursing care available on a 24-

hour, seven-day-a-week basis for the support of resident independence.

The provision of skilled nursing procedures to a resident in a residential

health care facility is not prohibited by this act. Generally, the skilled

services provided in a residential health care facility shall be provided on

an intermittent or limited term basis, or if limited in scope, a regular

basis.

(7) ``Home plus'' means any residence or facility caring for not more

than eight individuals not related within the third degree of relationship

to the operator or owner by blood or marriage unless the resident in need

of care is approved for placement by the secretary of the department of

social and rehabilitation services, and who, due to functional impairment,

needs personal care and may need supervised nursing care to compensate

for activities of daily living limitations. The level of care provided residents

shall be determined by preparation of the staff and rules and regulations

developed by the department of health and environment on aging. An

adult care home may convert a portion of one wing of the facility to a not

less than five-bed and not more than eight-bed home plus facility pro-

vided that the home plus facility remains separate from the adult care

home, and each facility must remain contiguous.

(8) ``Boarding care home'' means any place or facility operating 24

hours a day, seven days a week, caring for not more than 10 individuals

not related within the third degree of relationship to the operator or

owner by blood or marriage and who, due to functional impairment, need

supervision of activities of daily living but who are ambulatory and essen-

tially capable of managing their own care and affairs.

(9) ``Adult day care'' means any place or facility operating less than

24 hours a day caring for individuals not related within the third degree

of relationship to the operator or owner by blood or marriage and who,

due to functional impairment need supervision of or assistance with ac-

tivities of daily living.

(10) ``Place or facility'' means a building or any one or more complete

floors of a building, or any one or more complete wings of a building, or

any one or more complete wings and one or more complete floors of a

building, and the term ``place or facility'' may include multiple buildings.

(11) ``Skilled nursing care'' means services performed by or under the

immediate supervision of a registered professional nurse and additional

licensed nursing personnel. Skilled nursing includes administration of

medications and treatments as prescribed by a licensed physician or den-

tist; and other nursing functions which require substantial nursing judg-

ment and skill based on the knowledge and application of scientific prin-

ciples.

(12) ``Supervised nursing care'' means services provided by or under

the guidance of a licensed nurse with initial direction for nursing proce-

dures and periodic inspection of the actual act of accomplishing the pro-

cedures; administration of medications and treatments as prescribed by

a licensed physician or dentist and assistance of residents with the per-

formance of activities of daily living.

(13) ``Resident'' means all individuals kept, cared for, treated,

boarded or otherwise accommodated in any adult care home.

(14) ``Person'' means any individual, firm, partnership, corporation,

company, association or joint-stock association, and the legal successor

thereof.

(15) ``Operate an adult care home'' means to own, lease, establish,

maintain, conduct the affairs of or manage an adult care home, except

that for the purposes of this definition the word ``own'' and the word

``lease'' shall not include hospital districts, cities and counties which hold

title to an adult care home purchased or constructed through the sale of

bonds.

(16) ``Licensing agency'' means the secretary of health and environ-

ment aging.

(17) ``Skilled nursing home'' means a nursing facility.

(18) ``Intermediate nursing care home'' means a nursing facility.

(19) ``Apartment'' means a private unit which includes, but is not

limited to, a toilet room with bathing facilities, a kitchen, sleeping, living

and storage area and a lockable door.

(20) ``Individual living unit'' means a private unit which includes, but

is not limited to, a toilet room with bathing facilities, sleeping, living and

storage area and a lockable door.

(21) ``Operator'' means an individual who operates an assisted living

facility or residential health care facility with fewer than 61 residents, a

home plus or adult day care facility and has completed a course approved

by the secretary of health and environment on principles of assisted living

and has successfully passed an examination approved by the licensing

agency secretary of health and environment on principles of assisted living

and such other requirements as may be established by the licensing

agency secretary of health and environment by rules and regulations.

(22) ``Activities of daily living'' means those personal, functional ac-

tivities required by an individual for continued well-being, including but

not limited to eating, nutrition, dressing, personal hygiene, mobility, to-

ileting.

(23) ``Personal care'' means care provided by staff to assist an indi-

vidual with, or to perform activities of daily living.

(24) ``Functional impairment'' means an individual has experienced

a decline in physical, mental and psychosocial well-being and as a result,

is unable to compensate for the effects of the decline.

(25) ``Kitchen'' means a food preparation area that includes a sink,

refrigerator and a microwave oven or stove.

(26) The term ``intermediate personal care home'' for purposes of

those individuals applying for or receiving veterans' benefits means resi-

dential health care facility.

(b) The term ``adult care home'' shall not include institutions oper-

ated by federal or state governments, except institutions operated by the

Kansas commission on veterans affairs, hospitals or institutions for the

treatment and care of psychiatric patients, child care facilities, maternity

centers, hotels, offices of physicians or hospices which are certified to

participate in the medicare program under 42 code of federal regulations,

chapter IV, section 418.1 et seq. and amendments thereto and which

provide services only to hospice patients.

(c) Facilities licensed under K.S.A. 39-1501 et seq. and amendments

thereto or K.S.A. 75-3307b and amendments thereto or under this section

as an intermediate personal care home or with license applications on file

with the licensing agency as intermediate personal care homes on or be-

fore January 1, 1995, shall have the option of becoming licensed as either

an assisted living facility or a residential health care facility without being

required to add kitchens or private baths.

(d) (c) Nursing facilities in existence on the effective date of this act

changing licensure categories to become residential health care facilities

shall be required to provide private bathing facilities in a minimum of

20% of the individual living units.

(e) (d) Facilities licensed under the adult care home licensure act on

the day immediately preceding the effective date of this act shall continue

to be licensed facilities until the annual renewal date of such license and

may renew such license in the appropriate licensure category under the

adult care home licensure act subject to the payment of fees and other

conditions and limitations of such act.

(f) (e) Nursing facilities with less than 60 beds converting a portion

of the facility to residential health care shall have the option of licensing

for residential health care for less than six individuals but not less than

10% of the total bed count within a contiguous portion of the facility.

(g) (f) The licensing agency may by rule and regulation change the

name of the different classes of homes when necessary to avoid confusion

in terminology and the agency may further amend, substitute, change and

in a manner consistent with the definitions established in this section,

further define and identify the specific acts and services which shall fall

within the respective categories of facilities so long as the above categories

for adult care homes are used as guidelines to define and identify the

specific acts.

Sec. 3. K.S.A. 39-924 is hereby amended to read as follows: 39-924.

The purpose of this act is the development, establishment, and enforce-

ment of standards (1) for the care, treatment, health, safety, welfare and

comfort of individuals in adult care homes licensed by the secretary of

health and environment aging and (2) for the construction, general hy-

giene, maintenance and operation of said adult care homes, which, in the

light of advancing knowledge, will promote safe and adequate accom-

modation, care and treatment of such individuals in adult care homes.

Sec. 4. K.S.A. 39-925 is hereby amended to read as follows: 39-925.

(a) The administration of this the adult care home licensure act shall be

under the secretary of health and environment is hereby transferred from

the secretary of health and environment to the secretary of aging, except

as otherwise provided by this act. On the effective date of this act, the

administration of the adult care home licensure act shall be under au-

thority of the secretary of aging as the licensing agency in conjunction

with the state fire marshal, and shall have the assistance of the county,

city-county or multicounty health departments, local fire and safety au-

thorities and other agencies of government in this state. The secretary of

aging shall appoint an officer to administer the adult care home licensure

act and such officer shall be in the unclassified service under the Kansas

civil service act.

(b) The secretary of aging shall be a continuation of the secretary of

health and environment as to the programs transferred and shall be the

successor in every way to the powers, duties and functions of the secretary

of health and environment for such programs, except as otherwise pro-

vided by this act. On and after the effective date of this act, for each of

the programs transferred, every act performed in the exercise of such

powers, duties and functions by or under the authority of the secretary

of aging shall be deemed to have the same force and effect as if performed

by the secretary of health and environment in whom such powers were

vested prior to the effective date of this act.

(c) (1) No suit, action or other proceeding, judicial or administrative,

which pertains to any of the transferred adult care home survey, certifi-

cation and licensing programs, and reporting of abuse, neglect or exploi-

tation of adult care home residents, which is lawfully commenced, or could

have been commenced, by or against the secretary of health and environ-

ment in such secretary's official capacity or in relation to the discharge

of such secretary's official duties, shall abate by reason of the transfer of

such programs. The secretary of aging shall be named or substituted as

the defendant in place of the secretary of health and environment in any

suit, action or other proceeding involving claims arising from facts or

events first occurring either on or before the effective date of this act or

thereafter.

(2) No suit, action or other proceeding, judicial or administrative,

pertaining to the adult care home survey, certification and licensing pro-

grams or to the reporting of abuse, neglect or exploitation of adult care

home residents which otherwise would have been dismissed or concluded

shall continue to exist by reason of any transfer under this act.

(3) No criminal action commenced or which could have been com-

menced by the state shall abate by the taking effect of this act.

(4) Any final appeal decision of the department of health and envi-

ronment entered pursuant to K.S.A. 39-923 et seq., and amendments

thereto, K.S.A. 39-1401 et seq., and amendments thereto, or the act for

judicial review and civil enforcement of agency actions, K.S.A. 77-601 et

seq., and amendments thereto, currently pertaining to adult care home

certification, survey and licensing or reporting of abuse, neglect or ex-

ploitation of adult care home residents, transferred pursuant to this act

shall be binding upon and applicable to the secretary of aging and the

department on aging.

(5) All orders and directives under the adult care home licensure act

by the secretary of health and environment in existence immediately prior

to the effective date of the transfer of powers, duties and functions by this

act, shall continue in force and effect and shall be deemed to be duly issued

orders, and directives of the secretary of aging, until reissued, amended

or nullified pursuant to law.

(d) (1) All rules and regulations of the department of health and en-

vironment adopted pursuant to K.S.A. 39-923 et seq., and amendments

thereto, and in effect on the effective date of this act, which promote the

safe, proper and adequate treatment and care of individuals in adult care

homes, except those specified in subsection (d)(2) of this section, shall

continue to be effective and shall be deemed to be rules and regulations

of the secretary of aging, until revised, amended, revoked or nullified by

the secretary of aging, or otherwise, pursuant to law.

(2) The following rules and regulations of the department of health

and environment adopted pursuant to K.S.A. 39-923 et seq., and amend-

ments thereto, and in effect on the effective date of this act, shall remain

the rules and regulations of the secretary of health and environment:

K.A.R. 28-39-164 through 28-39-174.

(e) All contracts shall be made in the name of ``secretary of aging''

and in that name the secretary of aging may sue and be sued on such

contracts. The grant of authority under this subsection shall not be con-

strued to be a waiver of any rights retained by the state under the 11th

amendment to the United States constitution and shall be subject to and

shall not supersede the provisions of any appropriation act of this state.

Sec. 5. K.S.A. 39-926 is hereby amended to read as follows: 39-926.

It shall be unlawful for any person or persons acting jointly or severally

to operate an adult care home within this state except upon license first

had and obtained for that purpose from the secretary of health and en-

vironment aging as the licensing agency upon application made therefor

as provided in this act, and compliance with the requirements, standards,

rules and regulations, promulgated under its provisions.

Sec. 6. K.S.A. 39-930 is hereby amended to read as follows: 39-930.

The fee for license to operate an adult care home shall be a base amount

plus an additional amount for each bed of such home which shall be paid

to the secretary of health and environment aging before the license is

issued. The fee shall be fixed by rules and regulations of the secretary of

health and environment aging. The fee shall be deposited in the state

treasury and credited to the state general fund unless the evaluation and

inspection was made by a county, city-county or multicounty health de-

partment at the direction of the secretary of health and environment and

the papers required are completed and filed with the secretary, then 40%

of the fee collected shall be forwarded to such county, city-county or

multicounty health department. If a facility has a change of administrator

after the commencement of the licensing period, the fee shall be $15 and

shall be deposited in the state treasury and credited to the state general

fund.

Sec. 7. K.S.A. 2002 Supp. 39-936 is hereby amended to read as fol-

lows: 39-936. (a) The presence of each resident in an adult care home

shall be covered by a statement provided at the time of admission, or

prior thereto, setting forth the general responsibilities and services and

daily or monthly charges for such responsibilities and services. Each res-

ident shall be provided with a copy of such statement, with a copy going

to any individual responsible for payment of such services and the adult

care home shall keep a copy of such statement in the resident's file. No

such statement shall be construed to relieve any adult care home of any

requirement or obligation imposed upon it by law or by any requirement,

standard or rule and regulation adopted pursuant thereto.

(b) A qualified person or persons shall be in attendance at all times

upon residents receiving accommodation, board, care, training or treat-

ment in adult care homes. The licensing agency may establish necessary

standards and rules and regulations prescribing the number, qualifica-

tions, training, standards of conduct and integrity for such qualified per-

son or persons attendant upon the residents.

(c) (1) The licensing agency shall require unlicensed employees of

an adult care home, except an adult care home licensed for the provision

of services to the mentally retarded which has been granted an exception

by the licensing agency secretary of health and environment upon a find-

ing by the licensing agency that an appropriate training program for un-

licensed employees is in place for such adult care home, employed on

and after the effective date of this act who provide direct, individual care

to residents and who do not administer medications to residents and who

have not completed a course of education and training relating to resident

care and treatment approved by the licensing agency secretary of health

and environment or are not participating in such a course on the effective

date of this act to complete successfully 40 hours of training in basic

resident care skills. Any unlicensed person who has not completed 40

hours of training relating to resident care and treatment approved by the

licensing agency secretary of health and environment shall not provide

direct, individual care to residents. The 40 hours of training shall be su-

pervised by a registered professional nurse and the content and admin-

istration thereof shall comply with rules and regulations adopted by the

licensing agency secretary of health and environment. The 40 hours of

training may be prepared and administered by an adult care home or by

any other qualified person and may be conducted on the premises of the

adult care home. The 40 hours of training required in this section shall

be a part of any course of education and training required by the licensing

agency secretary of health and environment under subsection (c)(2).

(2) The licensing agency may require unlicensed employees of an

adult care home, except an adult care home licensed for the provision of

services to the mentally retarded which has been granted an exception

by the licensing agency secretary of health and environment upon a find-

ing by the licensing agency that an appropriate training program for un-

licensed employees is in place for such adult care home, who provide

direct, individual care to residents and who do not administer medications

to residents after 90 days of employment to successfully complete an

approved course of instruction and an examination relating to resident

care and treatment as a condition to continued employment by an adult

care home. A course of instruction may be prepared and administered by

any adult care home or by any other qualified person. A course of instruc-

tion prepared and administered by an adult care home may be conducted

on the premises of the adult care home which prepared and which will

administer the course of instruction. The licensing agency shall not re-

quire unlicensed employees of an adult care home who provide direct,

individual care to residents and who do not administer medications to

residents to enroll in any particular approved course of instruction as a

condition to the taking of an examination, but the licensing agency sec-

retary of health and environment shall prepare guidelines for the prep-

aration and administration of courses of instruction and shall approve or

disapprove courses of instruction. Unlicensed employees of adult care

homes who provide direct, individual care to residents and who do not

administer medications to residents may enroll in any approved course of

instruction and upon completion of the approved course of instruction

shall be eligible to take an examination. The examination shall be pre-

scribed by the licensing agency secretary of health and environment, shall

be reasonably related to the duties performed by unlicensed employees

of adult care homes who provide direct, individual care to residents and

who do not administer medications to residents and shall be the same

examination given by the licensing agency secretary of health and envi-

ronment to all unlicensed employees of adult care homes who provide

direct, individual care to residents and who do not administer medica-

tions.

(3) The licensing agency secretary of health and environment shall

fix, charge and collect a fee to cover all or any part of the costs of the

licensing agency under this subsection (c). The fee shall be fixed by rules

and regulations of the licensing agency secretary of health and environ-

ment. The fee shall be remitted to the state treasurer in accordance with

the provisions of K.S.A. 75-4215, and amendments thereto. Upon receipt

of each such remittance, the state treasurer shall deposit the entire

amount in the state treasury to the credit of the state general fund.

(4) The licensing agency secretary of health and environment shall

establish a state registry containing information about unlicensed em-

ployees of adult care homes who provide direct, individual care to resi-

dents and who do not administer medications in compliance with the

requirements pursuant to PL 100-203, Subtitle C, as amended November

5, 1990.

(5) No adult care home shall use an individual as an unlicensed em-

ployee of the adult care home who provides direct, individual care to

residents and who does not administer medications unless the facility has

inquired of the state registry as to information contained in the registry

concerning the individual.

(6) Beginning July 1, 1993, the adult care home must require any

unlicensed employee of the adult care home who provides direct, indi-

vidual care to residents and who does not administer medications and

who since passing the examination required under paragraph (2) of this

subsection has had a continuous period of 24 consecutive months during

none of which the unlicensed employee provided direct, individual care

to residents to complete an approved refresher course. The licensing

agency secretary of health and environment shall prepare guidelines for

the preparation and administration of refresher courses and shall approve

or disapprove courses.

(d) Any person who has been employed as an unlicensed employee

of an adult care home in another state may be so employed in this state

without an examination if the secretary of health and environment deter-

mines that such other state requires training or examination, or both, for

such employees at least equal to that required by this state.

(e) All medical care and treatment shall be given under the direction

of a physician authorized to practice under the laws of this state and shall

be provided promptly as needed.

(f) No adult care home shall require as a condition of admission to

or as a condition to continued residence in the adult care home that a

person change from a supplier of medication needs of their choice to a

supplier of medication selected by the adult care home. Nothing in this

subsection (f) shall be construed to abrogate or affect any agreements

entered into prior to the effective date of this act between the adult care

home and any person seeking admission to or resident of the adult care

home.

(g) Except in emergencies as defined by rules and regulations of the

licensing agency and except as otherwise authorized under federal law,

no resident may be transferred from or discharged from an adult care

home involuntarily unless the resident or legal guardian of the resident

has been notified in writing at least 30 days in advance of a transfer or

discharge of the resident.

(h) No resident who relies in good faith upon spiritual means or

prayer for healing shall, if such resident objects thereto, be required to

undergo medical care or treatment.

Sec. 8. K.S.A. 39-938 is hereby amended to read as follows: 39-938.

Adult care homes shall comply with all the lawfully established require-

ments and rules and regulations of the secretary of health and environ-

ment aging and the state fire marshal, and any other agency of govern-

ment so far as pertinent and applicable to adult care homes, their

buildings, operators, staffs, facilities, maintenance, operation, conduct,

and the care and treatment of residents. The administrative rules and

regulations of the state board of cosmetology and of the Kansas board of

barbering shall not apply to adult care homes.

Sec. 9. K.S.A. 39-940 is hereby amended to read as follows: 39-940.

(a) The secretary of health and environment aging may prescribe and

supply necessary forms for applications, reports, records and inspections

for adult care homes. All prescribed records shall be open to inspection

by the designated agents of the agencies administering this act.

(b) It shall be unlawful to:

(1) Make false entries in such records;

(2) omit any information required or make any false report concern-

ing any adult care home; or

(3) file or cause to be filed such false or incomplete records or reports

with the department of health and environment on aging or with any

agency administering this act, knowing that such records or reports are

false or incomplete.

Sec. 10. K.S.A. 39-944 is hereby amended to read as follows: 39-944.

Notwithstanding the existence or pursuit of any other remedy, the sec-

retary of health and environment aging, as the licensing agency, in the

manner provided by the act for judicial review and civil enforcement of

agency actions, may maintain an action in the name of the state of Kansas

for injunction or other process against any person or agency to restrain

or prevent the operation of an adult care home without a license under

this act.

Sec. 11. K.S.A. 39-945 is hereby amended to read as follows: 39-945.

A correction order may be issued by the secretary of health and environ-

ment aging or the secretary's designee to a person licensed to operate an

adult care home whenever the state fire marshal or the marshal's repre-

sentative or a duly authorized representative of the secretary of health

and environment aging inspects or investigates an adult care home and

determines that the adult care home is not in compliance with the pro-

visions of article 9 of chapter 39 of the Kansas Statutes Annotated or rules

and regulations promulgated thereunder which individually or jointly af-

fects significantly and adversely the health, safety, nutrition or sanitation

of the adult care home residents. The correction order shall be served

upon the licensee either personally or by certified mail, return receipt

requested. The correction order shall be in writing, shall state the specific

deficiency, cite the specific statutory provision or rule and regulation al-

leged to have been violated, and shall specify the time allowed for cor-

rection.

Sec. 12. K.S.A. 39-946 is hereby amended to read as follows: 39-946.

(a) If upon reinspection by the state fire marshal or the marshal's rep-

resentative or a duly authorized representative of the secretary of health

and environment aging, which reinspection shall be conducted within 14

days from the day the correction order is served upon the licensee, it is

found that the licensee of the adult care home which was issued a cor-

rection order has not corrected the deficiency or deficiencies specified in

the order, the secretary of health and environment aging may assess a

civil penalty in an amount not to exceed $500 per day per deficiency

against the licensee of an adult care home for each day subsequent to the

day following the time allowed for correction of the deficiency as specified

in the correction order that the adult care home has not corrected the

deficiency or deficiencies listed in the correction order, but the maximum

assessment shall not exceed $2,500. Prior to the assessment of a civil

penalty, the case shall be reviewed by a person licensed to practice med-

icine and surgery. A written notice of assessment shall be served upon

the licensee of an adult care home either personally or by certified mail,

return receipt requested.

(b) Before the assessment of a civil penalty, the secretary of aging

shall consider the following factors in determining the amount of the civil

penalty to be assessed: (1) The severity of the violation; (2) the good faith

effort exercised by the adult care home to correct the violation; and (3)

the history of compliance of the ownership of the adult care home with

the rules and regulations. If the secretary of health and environment aging

finds that some or all deficiencies cited in the correction order have also

been cited against the adult care home as a result of any inspection or

investigation which occurred within 18 months prior to the inspection or

investigation which resulted in such correction order, the secretary of

health and environment aging may double the civil penalty assessed

against the licensee of the adult care home, the maximum not to exceed

$5,000.

(c) All civil penalties assessed shall be due and payable within 10 days

after written notice of assessment is served on the licensee, unless a longer

period of time is granted by the secretary. If a civil penalty is not paid

within the applicable time period, the secretary of health and environ-

ment aging may file a certified copy of the notice of assessment with the

clerk of the district court in the county where the adult care home is

located. The notice of assessment shall be enforced in the same manner

as a judgment of the district court.

Sec. 13. K.S.A. 39-947 is hereby amended to read as follows: 39-947.

Any licensee against whom a civil penalty has been assessed under K.S.A.

39-946, and amendments thereto, may appeal such assessment within 10

days after receiving a written notice of assessment by filing with the sec-

retary of health and environment aging written notice of appeal specifying

why such civil penalty should not be assessed. Such appeal shall not op-

erate to stay the payment of the civil penalty. Upon receipt of the notice

of appeal, the secretary of health and environment aging shall conduct a

hearing in accordance with the provisions of the Kansas administrative

procedure act. If the secretary of aging sustains the appeal, any civil pen-

alties collected shall be refunded forthwith to the appellant licensee with

interest at the rate established by K.S.A. 16-204, and amendments

thereto, from the date of payment of the civil penalties to the secretary

of aging. If the secretary of aging denies the appeal and no appeal from

the secretary is taken to the district court in accordance with the provi-

sions of the act for judicial review and civil enforcement of agency actions,

the secretary of aging shall dispose of any civil penalties collected as pro-

vided in K.S.A. 39-949, and amendments thereto.

Sec. 14. K.S.A. 39-948 is hereby amended to read as follows: 39-948.

(a) A licensee may appeal to the district court from a decision of the

secretary of aging under K.S.A. 39-947, and amendments thereto. The

appeal shall be tried in accordance with the provisions of the act for

judicial review and civil enforcement of agency actions.

(b) An appeal to the district court or to an appellate court shall not

stay the payment of the civil penalty. If the court sustains the appeal, the

secretary of health and environment aging shall refund forthwith the pay-

ment of any civil penalties to the licensee with interest at the rate estab-

lished by K.S.A. 16-204, and amendments thereto, from the date of pay-

ment of the civil penalties to the secretary. If the court denies the appeal,

the secretary of health and environment aging shall dispose of any civil

penalties collected as provided in K.S.A. 39-949, and amendments

thereto.

Sec. 15. K.S.A. 39-950 is hereby amended to read as follows: 39-950.

The secretary of health and environment aging may adopt rules and reg-

ulations necessary to carry out the provisions of this act.

Sec. 16. K.S.A. 39-951 is hereby amended to read as follows: 39-951.

The authority granted to the secretary of health and environment aging

under this act is in addition to other statutory authority the secretary of

aging has to require the licensing and operation of adult care homes and

is not to be construed to limit any of the powers and duties of the secretary

of aging under article 9 of chapter 39 of the Kansas Statutes Annotated.

Sec. 17. K.S.A. 39-952 is hereby amended to read as follows: 39-952.

The secretary of health and environment aging or the secretary's designee

shall not issue a correction order to a person licensed to operate an adult

care home because of a violation of a provision of article 9 of chapter 39

of the Kansas Statutes Annotated or a rule and regulation adopted there-

under which was caused by any person licensed by the state board of

healing arts to practice a branch of the healing arts if such person licensed

by the state board of healing arts is not an owner, operator or employee

of the adult care home and if the person licensed to operate the adult

care home shows that such person has exercised reasonable diligence in

notifying the person licensed by the state board of healing arts to practice

a branch of the healing arts of such person's duty to the residents of the

adult care home.

Sec. 18. K.S.A. 39-953a is hereby amended to read as follows: 39-

953a. (a) At any time the secretary of health and environment aging ini-

tiates any action concerning an adult care home in which it is alleged that

there has been a substantial failure to comply with the requirements,

standards or rules and regulations established under the adult care home

licensure act, that conditions exist in the adult care home which are life

threatening or endangering to the residents of the adult care home, that

the adult care home is insolvent, or that the adult care home has defi-

ciencies which significantly and adversely affect the health, safety, nutri-

tion or sanitation of the adult care home residents, the secretary of aging

may issue an order, pursuant to the emergency proceedings provided for

under the Kansas administrative procedure act, prohibiting any new ad-

missions into the adult care home until further determination by the sec-

retary of aging. This remedy granted to the secretary of aging is in ad-

dition to any other statutory authority the secretary of aging has relating

to the licensure and operation of adult care homes and is not be construed

to limit any of the powers and duties of the secretary of aging under the

adult care home licensure act.

(b) This section shall be part of and supplemental to the adult care

home licensure act.

Sec. 19. K.S.A. 39-954 is hereby amended to read as follows: 39-954.

(a) The secretary of health and environment aging, the owner of an adult

care home, or the person licensed to operate an adult care home may file

an application with the district court for an order appointing the secretary

of health and environment aging or the designee of the secretary as re-

ceiver to operate an adult care home whenever: (1) Conditions exist in

the adult care home that are life threatening or endangering to the resi-

dents of the adult care home; (2) the adult care home is insolvent; or (3)

the secretary of health and environment aging has issued an order revok-

ing the license of the adult care home.

(b) The secretary of health and environment aging may adopt rules

and regulations setting forth the necessary qualifications of persons to be

designated receivers and a method for selecting designees.

Sec. 20. K.S.A. 39-958 is hereby amended to read as follows: 39-958.

(a) The application for receivership shall be given priority by the district

court and shall be heard no later than the seventh (7th) day following the

filing of the application. A continuance of no more than ten (10) 10 days

may be granted by the district court for good cause. The district court

shall give all parties who have filed an answer the opportunity to present

evidence pertaining to the application. If the district court finds that the

facts warrant the granting of the application, the court shall appoint the

secretary of health and environment aging or the designee of the secretary

as receiver to operate the home.

(b) Upon the appointment of a receiver under this section, the re-

ceiver shall be granted a license by the licensing agency to operate an

adult care home as provided under the provisions of article 9 of chapter

39 of the Kansas Statutes Annotated, and acts amending the provisions

thereof or acts supplemental thereto. The provisions of article 9 of chapter

39 of the Kansas Statutes Annotated, and acts amending the provisions

thereof and acts supplemental thereto, relating to inspection prior to

granting a license to operate an adult care home and relating to payment

of license fees shall not apply to a license granted to a receiver under this

section, and such license shall remain in effect during the existence of

the receivership and shall expire on the termination of the receivership.

The receiver shall make application for the license on forms provided for

this purpose by the licensing agency.

Sec. 21. K.S.A. 39-961 is hereby amended to read as follows: 39-961.

(a) The personnel and facilities of the department of health and environ-

ment on aging shall be available to the receiver for the purposes of car-

rying out the receiver's duties as receiver as authorized by the secretary

of health and environment aging.

(b) The department of health and environment on aging shall itemize

and keep a ledger showing costs of personnel and other expenses estab-

lishing the receivership and assisting the receiver and such amount shall

be owed by the owner or licensee to the department of health and en-

vironment on aging. Such department shall submit a bill for such expenses

to the receiver for inclusion in the receiver's final accounting. Any amount

so billed and until repaid shall constitute a lien against all non-exempt

personal and real property of the owner or licensee.

Sec. 22. K.S.A. 39-963 is hereby amended to read as follows: 39-963.

(a) The court shall terminate the receivership only under any of the fol-

lowing circumstances:

(1) Twenty-four months after the date on which the receivership was

ordered;

(2) a new license, other than the license granted to the receiver under

K.S.A. 39-958 and amendments thereto, has been granted to operate the

adult care home; or

(3) at such time as all of the residents in the adult care home have

been provided alternative modes of health care, either in another adult

care home or otherwise.

(b) (1) At the time of termination of the receivership, the receiver

shall render a full and complete accounting to the district court and shall

make disposition of surplus money at the direction of the district court.

(2) The court may make such additional orders as are appropriate to

recover the expenses and costs to the department of health and environ-

ment on aging and the secretary of social and rehabilitation services in-

curred pursuant to K.S.A. 39-960 or 39-961 and amendments thereto.

Sec. 23. K.S.A. 39-965 is hereby amended to read as follows: 39-965.

(a) If the secretary of health and environment aging determines that an

adult care home is in violation of or has violated any requirements, stan-

dards or rules and regulations established under the adult care home

licensure act which violation can reasonably be determined to have re-

sulted in, caused or posed serious physical harm to a resident, the sec-

retary of aging in accordance with proceedings under the Kansas admin-

istrative procedure act, may assess a civil penalty against the licensee of

such adult care home in an amount of not to exceed $1,000 per day per

violation for each day the secretary finds that the adult care home was

not in compliance with such requirements, standards or rules and regu-

lations but the maximum assessment shall not exceed $10,000.

(b) All civil penalties assessed shall be due and payable in accordance

with subsection (c) of K.S.A. 39-946 and K.S.A. 39-947 and amendments

thereto.

(c) The secretary of health and environment aging may adopt rules

and regulations which shall include due process procedures for the issu-

ance of civil penalties relating to nursing facilities.

(d) The authority to assess civil penalties granted to the secretary of

health and environment aging under this section is in addition to any

other statutory authority of the secretary relating to the licensure and

operation of adult care homes and is not to be construed to limit any of

the powers and duties of the secretary of aging under the adult care home

licensure act.

(e) This section shall be part of and supplemental to the adult care

home licensure act.

Sec. 24. K.S.A. 39-969 is hereby amended to read as follows: 39-969.

(a) The licensing agency secretary of health and environment shall upon

request receive from the Kansas bureau of investigation, without charge,

such criminal history record information relating to criminal convictions

as necessary for the purpose of determining initial and continuing qual-

ifications of an operator.

(b) This section shall be part of and supplemental to the adult care

home licensure act.

New Sec. 25. (a) On July 1, 2003, certain powers, duties and func-

tions of the secretary of health and environment under K.S.A.39-1401

through 39-1411, and amendments thereto, are hereby transferred from

the secretary of health and environment to the secretary of aging, as

provided by this act.

(b) No suit, action or other proceeding, judicial or administrative,

which pertains to any of the transferred reporting of abuse, neglect or

exploitation of adult care home residents, which is lawfully commenced,

or could have been commenced, by or against the secretary of health and

environment in such secretary's official capacity or in relation to the dis-

charge of such secretary's official duties, shall abate by reason of the

transfer of such program. The secretary of aging shall be named or sub-

stituted as the defendant in place of the secretary of health and environ-

ment in any suit, action or other proceeding involving claims arising from

facts or events first occurring either on or before the date the pertinent

program is transferred or on any date thereafter.

(c) No suit, action or other proceeding, judicial or administrative,

pertaining to the reporting of abuse, neglect or exploitation of adult care

home residents which otherwise would have been dismissed or concluded

shall continue to exist by reason of any transfer under this act.

(d) Any final appeal decision of the department of health and envi-

ronment entered pursuant to K.S.A. 39-1401 et seq., and amendments

thereto, or the act for judicial review and civil enforcement of agency

actions, K.S.A. 77-601 et seq., and amendments thereto, currently per-

taining to reporting of abuse, neglect or exploitation of adult care home

residents, transferred pursuant to this act shall be binding upon and ap-

plicable to the secretary of aging and the department on aging.

Sec. 26. K.S.A. 2002 Supp. 39-1402, as amended by section 3 of 2003

House Bill No. 2254, is hereby amended to read as follows: 39-1402. (a)

Any person who is licensed to practice any branch of the healing arts, a

licensed psychologist, a licensed master level psychologist, a licensed clin-

ical psychotherapist, a chief administrative officer of a medical care fa-

cility, an adult care home administrator or operator, a licensed social

worker, a licensed professional nurse, a licensed practical nurse, a licensed

marriage and family therapist, a licensed clinical marriage and family ther-

apist, licensed professional counselor, licensed clinical professional coun-

selor, registered alcohol and drug abuse counselor, a teacher, a bank trust

officer and any other officers of financial institutions, a legal representa-

tive or a governmental assistance provider who has reasonable cause to

believe that a resident is being or has been abused, neglected or exploited,

or is in a condition which is the result of such abuse, neglect or exploi-

tation or is in need of protective services, shall report immediately such

information or cause a report of such information to be made in any

reasonable manner to the department of health and environment on aging

with respect to residents defined under subsections subsection (a)(1) and

(a)(2) of K.S.A. 39-1401 and amendments thereto, to the department of

health and environment with respect to residents defined under subsection

(a)(2) of K.S.A. 39-1401, and amendments thereto, and to the department

of social and rehabilitation services and appropriate law enforcement

agencies with respect to all other residents. Reports made to one de-

partment which are required by this subsection to be made to the other

department shall be referred by the department to which the report is

made to the appropriate department for that report, and any such report

shall constitute compliance with this subsection. Reports shall be made

during the normal working week days and hours of operation of such

departments. Reports shall be made to law enforcement agencies during

the time the departments are not open for business. Law enforcement

agencies shall submit the report and appropriate information to the ap-

propriate department on the first working day that such department is

open for business. A report made pursuant to K.S.A. 65-4923 or 65-4924

and amendments thereto shall be deemed a report under this section.

(b) The report made pursuant to subsection (a) shall contain the

name and address of the person making the report and of the caretaker

caring for the resident, the name and address of the involved resident,

information regarding the nature and extent of the abuse, neglect or ex-

ploitation, the name of the next of kin of the resident, if known, and any

other information which the person making the report believes might be

helpful in an investigation of the case and the protection of the resident.

(c) Any other person, not listed in subsection (a), having reasonable

cause to suspect or believe that a resident is being or has been abused,

neglected or exploited, or is in a condition which is the result of such

abuse, neglect or exploitation or is in need of protective services may

report such information to the department of health and environment on

aging with respect to residents defined under subsections subsection

(a)(1) and (a)(2) of K.S.A. 39-1401 and amendments thereto, to the de-

partment of health and environment with respect to residents defined

under subsection (a)(2) of K.S.A. 39-1401, and amendments thereto, and

to the department of social and rehabilitation services with respect to all

other residents. Reports made to one department which are to be made

to the other department under this section shall be referred by the de-

partment to which the report is made to the appropriate department for

that report.

(d) Notice of the requirements of this act and the department to

which a report is to be made under this act shall be posted in a conspic-

uous public place in every adult care home and medical care facility in

this state.

(e) Any person required to report information or cause a report of

information to be made under subsection (a) who knowingly fails to make

such report or cause such report to be made shall be guilty of a class B

misdemeanor.

Sec. 27. K.S.A. 39-1404, as amended by section 5 of 2003 House Bill

No. 2254, is hereby amended to read as follows: 39-1404. (a) The de-

partment of health and environment or the department of social and

rehabilitation services upon receiving a report that a resident is being, or

has been, abused, neglected or exploited, or is in a condition which is the

result of such abuse, neglect or exploitation or is in need of protective

services shall:

(1) When a criminal act has occurred or has appeared to have oc-

curred, immediately notify, in writing, the appropriate law enforcement

agency;

(2) make a personal visit with the involved resident:

(A) Within 24 hours when the information from the reporter indi-

cates imminent danger to the health or welfare of the involved resident;

(B) within three working days for all reports of suspected abuse, when

the information from the reporter indicates no imminent danger; or

(C) within five working days for all reports of neglect or exploitation

when the information from the reporter indicates no imminent danger.

(3) Complete, within 30 working days of receiving a report, a thor-

ough investigation and evaluation to determine the situation relative to

the condition of the involved resident and what action and services, if

any, are required. The investigation shall include, but not be limited to,

consultation with those individuals having knowledge of the facts of the

particular case; and

(4) prepare, upon a completion of the evaluation of each case, a writ-

ten assessment which shall include an analysis of whether there is or has

been abuse, neglect or exploitation; recommended action; a determina-

tion of whether protective services are needed; and any follow up.

(b) The department which investigates the report shall inform the

complainant, upon request of the complainant, that an investigation has

been made and, if the allegations of abuse, neglect or exploitation have

been substantiated, that corrective measures will be taken if required

upon completion of the investigation or sooner if such measures do not

jeopardize the investigation.

(c) The department of health and environment on aging may inform

the chief administrative officer of a facility as defined by K.S.A. 39-923

and amendments thereto within 30 days of confirmed findings of resident

abuse, neglect or exploitation.

Sec. 28. K.S.A. 39-1405, as amended by section 6 of 2003 House Bill

No. 2254, is hereby amended to read as follows: 39-1405. (a) The sec-

retary of health and environment aging shall forward to the secretary of

social and rehabilitation services any finding that a resident with respect

to residents defined under (a)(1) of K.S.A. 39-1401, and amendments

thereto, who may be in need of protective services. The secretary of health

and environment shall forward to the secretary of social and rehabilitation

services any finding with respect to residents defined under (a)(2) of

K.S.A. 39-1401, and amendments thereto, who may be in need of protec-

tive services. If the secretary of social and rehabilitation services deter-

mines that a resident is in need of protective services, the secretary of

social and rehabilitation services shall provide the necessary protective

services, if a resident consents, or if the resident lacks capacity to consent,

the secretary may obtain consent from such resident's legal representa-

tive. If a resident or such resident's legal representative, or both, fails to

consent and the secretary of social and rehabilitation services has reason

to believe that such a resident lacks capacity to consent, the secretary of

social and rehabilitation services shall determine pursuant to K.S.A. 39-

1408 and amendments thereto whether a petition for appointment of a

guardian or conservator, or both, should be filed.

(b) If the caretaker or legal representative, or both, of a resident who

has consented to the receipt of reasonable and necessary protective serv-

ices refuses to allow the provision of such services to such resident, the

secretary of social and rehabilitation services may seek to obtain an in-

junction enjoining the caretaker or legal representative, or both, from

interfering with the provision of protective services to the resident. The

petition in such action shall allege specific facts sufficient to show that

the resident is in need of protective services and consents to their pro-

vision and that the caretaker or legal representative, or both, refuses to

allow the provision of such services. If the judge, by clear and convincing

evidence, finds that the resident is in need of protective services and has

been prevented by the caretaker or legal representative, or both, from

receiving such services, the judge shall issue an order enjoining the care-

taker or legal representative, or both, from interfering with the provision

of protective services to the resident. The court may appoint a new legal

representative if the court deems that it is in the best interest of the

resident.

Sec. 29. K.S.A. 39-1406, as amended by section 7 of 2003 House Bill

No. 2254, is hereby amended to read as follows: 39-1406. Any person,

department or agency authorized to carry out the duties enumerated in

this act, including investigating law enforcement agencies and the long-

term care ombudsman shall have access to all relevant records. The au-

thority of the secretary of social and rehabilitation services and, the sec-

retary of health and environment, and the secretary of aging under this

act shall include, but not be limited to, the right to initiate or otherwise

take those actions necessary to assure the health, safety and welfare of

any resident, subject to any specific requirement for individual consent

of the resident.

Sec. 30. K.S.A. 39-1409, as amended by section 10 of 2003 House

Bill No. 2254, is hereby amended to read as follows: 39-1409. In per-

forming the duties set forth in this act, the secretary of social and reha-

bilitation services, the secretary of health and environment, the secretary

of aging or an appropriate law enforcement agency may request the as-

sistance of the staffs and resources of all appropriate state departments,

agencies and commissions and local health departments and may utilize

any other public or private agency, group or individual who is appropriate

and who may be available to assist such department or agency in the

investigation and determination of whether a resident is being, or has

been, abused, neglected or exploited or is in a condition which is a result

of such abuse, neglect or exploitation, except that any internal investiga-

tion conducted by any caretaker under investigation shall be limited to

the least serious category of report as specified by the secretary of health

and environment, the secretary of aging or the secretary of social and

rehabilitation services, as applicable.

Sec. 31. K.S.A. 39-1411 is hereby amended to read as follows: 39-

1411. (a) The secretary of health and environment aging shall maintain a

register of the reports received and investigated by the department of

health and environment on aging under K.S.A. 39-1402 and 39-1403, and

amendments to such sections, and the findings, evaluations and actions

recommended by the department on aging with respect to such reports.

The secretary of health and environment shall maintain a register of the

reports received and investigated by the department of health and envi-

ronment under K.S.A. 39-1402 and 39-1403, and amendments thereto,

and the findings, evaluations and actions recommended by the depart-

ment of health and environment with respect to such reports. The find-

ings, evaluations and actions shall be subject to the Kansas administrative

procedure act and any requirements of state or federal law relating

thereto except that the secretary shall not be required to conduct a hear-

ing in cases forwarded to the appropriate state authority under subsection

(b). The register shall be available for inspection by personnel of the

department of health and environment or the department on aging as

specified by the secretary of health and environment or the secretary of

aging and to such other persons as may be required by federal law and

designated by the secretary of health and environment or the secretary

of aging by rules and regulations. Information from the register shall be

provided as specified in K.S.A. 2002 Supp. 65-6205 and amendments

thereto. The secretary of health and environment shall forward a copy of

any report of abuse, neglect or exploitation of a resident of an adult care

home to the secretary of aging.

(b) The secretary of health and environment aging shall forward any

finding of abuse, neglect or exploitation alleged to be committed by a

provider of services licensed, registered or otherwise authorized to pro-

vide services in this state to the appropriate state authority which regu-

lates such provider. The secretary of health and environment shall for-

ward any finding of abuse, neglect or exploitation alleged to be committed

by a provider of services licensed, registered or otherwise authorized to

provide services in this state to the appropriate state authority which

regulates such provider. The appropriate state regulatory authority, after

notice to the alleged perpetrator and a hearing on such matter if re-

quested by the alleged perpetrator, may consider the finding in any dis-

ciplinary action taken with respect to the provider of services under the

jurisdiction of such authority. The secretary of health and environment

aging may consider the finding of abuse, neglect or exploitation in any

licensing action taken with respect to any adult care home or medical care

facility under the jurisdiction of the secretary of aging. The secretary of

health and environment may consider the finding of abuse, neglect or

exploitation in any licensing action taken with respect to any medical care

facility under the jurisdiction of the secretary of health and environment.

(c) If the investigation of the department of health and environment

or the department on aging indicates reason to believe that the resident

is in need of protective services, that finding and all information relating

to that finding shall be forwarded by the secretary of health and environ-

ment or the secretary of aging to the secretary of social and rehabilitation

services.

(d) Except as otherwise provided in this section, the report received

by the department of health and environment or the department on aging

and the written findings, evaluations and actions recommended shall be

confidential and shall not be subject to the open records act. Except as

otherwise provided in this section, the name of the person making the

original report to the department of health and environment or the de-

partment on aging or any person mentioned in such report shall not be

disclosed unless such person specifically requests or agrees in writing to

such disclosure or unless a judicial or administrative proceeding results

therefrom. In the event that an administrative or judicial action arises, no

use of the information shall be made until the judge or presiding officer

makes a specific finding, in writing, after a hearing, that under all the

circumstances the need for the information outweighs the need for con-

fidentiality. Except as otherwise provided in this section, no information

contained in the register shall be made available to the public in such a

manner as to identify individuals.

Sec. 32. K.S.A. 46-233 is hereby amended to read as follows: 46-233.

(a) (1) No state officer or employee shall in the capacity as such officer

or employee be substantially involved in the preparation of or participate

in the making of a contract with any person or business by which such

officer or employee is employed or in whose business such officer or

employee or any member of such officer's or employee's immediate fam-

ily has a substantial interest and no such person or business shall enter

into any contract where any state officer or employee, acting in such

capacity, is a signatory to, has been substantially involved in the prepa-

ration of or is a participant in the making of such contract and is employed

by such person or business or such officer or employee or any member

of such officer's or employee's immediate family has a substantial interest

in such person or business.

(2) Except as otherwise provided in this subsection, whenever any

individual has participated as a state officer or employee in the making

of any contract with any person or business, such individual shall not

accept employment with such person or business as an employee, inde-

pendent contractor or subcontractor until two years after performance of

the contract is completed or until two years after the individual terminates

employment as a state officer or employee, whichever is sooner. This

prohibition on accepting employment shall not apply in any case in which:

(A) A state officer or employee who participated in making a contract

while employed by an institution that is subsequently closed or abolished

or otherwise ceases operations or that has budget reductions imposed

that are associated with such closure and who is laid off from employment

with such institution for the reason of such closure, abolition or cessation

of operations or such imposition of budget reductions; (B) a state officer

or employee who participated in making a contract while employed by

an institution that is scheduled to be closed or abolished or to cease

operations, who is scheduled to be laid off from employment with such

institution for the reason of the scheduled closure, abolition or cessation

of operations, and who voluntarily terminates such employment after re-

ceiving such state officer or employee's notice of the scheduled layoff;

(C) a state officer or employee who participated in making a contract

while employed by the department of corrections at the Topeka correc-

tional facility and who is laid off from such employment due to the trans-

fer of the reception and diagnostic center from the Topeka correctional

facility to the El Dorado correctional facility; (D) a state officer or em-

ployee who participated in making a contract while employed by the de-

partment of corrections at the Topeka correctional facility and who vol-

untarily terminates from such employment after receiving such state

officer or employee's notice of scheduled layoff due to the transfer of the

reception and diagnostic center from the Topeka correctional facility to

the El Dorado correctional facility; (E) a state officer or employee who

participated in making a contract while employed by the department of

social and rehabilitation services within the division of services for the

blind or at Kansas industries for the blind at facilities located on the

Topeka state hospital property, as defined by K.S.A. 2000 Supp. 75-

37,123 and amendments thereto, and who is laid off from such employ-

ment due to the closure, abolition or other cessation of operations of the

Kansas industries for the blind as a state program at such location; or (F)

a state officer or employee who participated in making a contract while

employed by the department of social and rehabilitation services within

the division of services for the blind or at Kansas industries for the blind

at facilities located on the Topeka state hospital property, as defined by

K.S.A. 2000 Supp. 75-37,123 and amendments thereto, and who volun-

tarily terminates from such employment after receiving such state offi-

cer's or employee's notice of scheduled layoff due to the closure, abolition

or other cessation of operations of the Kansas industries for the blind as

a state program at such location where a state officer or employee who

participated in making a contract while employed by the state of Kansas

is laid off or scheduled to be laid off from any state position on or after

July 1, 2002. As used in this subsection (a)(2), ``laid off'' and ``layoff'' mean,

in the case of a state officer or employee in the classified service under

the Kansas civil service act, being laid off under K.S.A. 75-2948, and

amendments thereto, and, in the case of a state officer or employee in

the unclassified service under the Kansas civil service act, being termi-

nated from employment with the state agency by the appointing authority,

except that ``laid off'' and ``layoff'' shall not include any separation from

employment pursuant to a budget reduction or expenditure authority

reduction and a reduction of F.T.E. positions under K.S.A. 75-6801, and

amendments thereto; ``institution'' means Topeka state hospital or Win-

field state hospital and training center.

(b) No individual shall, while a legislator or within one year after the

expiration of a term as legislator, be interested pecuniarily, either directly

or indirectly, in any contract with the state, which contract is funded in

whole or in part by any appropriation or is authorized by any law passed

during such term, except that the prohibition of this subsection (b) shall

not apply to any contract interest in relation to which a disclosure state-

ment is filed as provided by K.S.A. 46-239, and amendments thereto.

(c) No individual, while a legislator or within one year after the ex-

piration of a term as a legislator, shall represent any person in a court

proceeding attacking any legislative action taken or enactment made dur-

ing any term such individual served as a legislator as being unconstitu-

tional because of error in the legislative process with respect to such

action or enactment unless such legislator voted no upon the enactment

of the measure and declared on the record, during such term, that such

legislation was unconstitutional. The prohibition of this subsection (c)

shall not apply to a current or former legislator charged with a violation

of such legislative action or enactment.

(d) Subsections (a) and (b) shall not apply to the following:

(1) Contracts let after competitive bidding has been advertised for by

published notice; and

(2) contracts for property or services for which the price or rate is

fixed by law.

(e) When used in this section:

(1) ``Substantial interest'' shall have the same meaning ascribed

thereto by K.S.A. 46-229, and amendments thereto, and any such interest

held within the preceding 12 months of the act or event of participating

in the preparation of making a contract.

(2) ``Substantially involved in the preparation or participate in the

making of a contract'' means having approved or disapproved a contract

or having provided significant factual or specific information or advice or

recommendations in relation to the negotiated terms of the contract.

Sec. 33. K.S.A. 39-924, 39-925, 39-926, 39-930, 39-938, 39-940, 39-

944, 39-945, 39-946, 39-947, 39-948, 39-950, 39-951, 39-952, 39-953a,

39-954, 39-958, 39-961, 39-963, 39-965, 39-969, 39-1404, as amended by

section 5 of 2003 House Bill No. 2254, 39-1405, as amended by section

6 of 2003 House Bill No. 2254, 39-1406, as amended by section 7 of 2003

House Bill No. 2254, 39-1409, as amended by section 10 of 2003 House

Bill No. 2254, 39-1411 and 46-233 and K.S.A. 2002 Supp. 32-906, 39-

923, 39-936 and 39-1402, as amended by section 3 of 2003 House Bill

No. 2254, are hereby repealed.

Sec. 34. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 19, 2002.


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