REPORTING ABUSE, NEGLECT, OR EXPLOITATION OF CERTAIN PERSONS

Article 14. REPORTING ABUSE, NEGLECT, OR EXPLOITATION OF CERTAIN PERSONS

39-1401. Abuse, neglect or exploitation of residents; definitions.

As used in this act:

(a) “Resident” means:

Any resident, as defined by K.S.A. 39-923, and amendments thereto; or

any individual kept, cared for, treated, boarded or otherwise accommodated in a medical care facility; or

any individual, kept, cared for, treated, boarded or otherwise accommodated in a state psychiatric hospital or state institution for people with intellectual disability.

(b) “Adult care home” has the meaning ascribed thereto in K.S.A. 39-923, and amendments thereto.

(c) “In need of protective services” means that a resident is unable to perform or obtain services which are necessary to maintain physical or mental health, or both.

(d) “Services which are necessary to maintain physical and mental health” include, but are not limited to, the provision of medical care for physical and mental health needs, the relocation of a resident to a facility or institution able to offer such care, assistance in personal hygiene, food, clothing, adequately heated and ventilated shelter, protection from health and safety hazards, protection from maltreatment the result of which includes, but is not limited to, malnutrition, deprivation of necessities or physical punishment and transportation necessary to secure any of the above stated needs, except that this term shall not include taking such person into custody without consent, except as provided in this act.

(e) “Protective services” means services provided by the state or other governmental agency or any private organizations or individuals which are necessary to prevent abuse, neglect or exploitation. Such protective services shall include, but not be limited to, evaluation of the need for services, assistance in obtaining appropriate social services and assistance in securing medical and legal services.

(f) “Abuse” means any act or failure to act performed intentionally or recklessly that causes or is likely to cause harm to a resident, including:

Infliction of physical or mental injury;

any sexual act with a resident when the resident does not consent or when the other person knows or should know that the resident is incapable of resisting or declining consent to the sexual act due to mental deficiency or disease or due to fear of retribution or hardship;

unreasonable use of a physical restraint, isolation or medication that harms or is likely to harm a resident;

unreasonable use of a physical or chemical restraint, medication or isolation as punishment, for convenience, in conflict with a physician’s orders or as a substitute for treatment, except where such conduct or physical restraint is in furtherance of the health and safety of the resident or another resident;

a threat or menacing conduct directed toward a resident that results or might reasonably be expected to result in fear or emotional or mental distress to a resident;

fiduciary abuse; or

omission or deprivation by a caretaker or another person of goods or services which are necessary to avoid physical or mental harm or illness.

(g) “Neglect” means the failure or omission by one’s self, caretaker or another person with a duty to provide goods or services which are reasonably necessary to ensure safety and well-being and to avoid physical or mental harm or illness.

(h) “Caretaker” means a person or institution who has assumed the responsibility, whether legally or not, for the care of the resident voluntarily, by contract or by order of a court of competent jurisdiction.

(i) “Exploitation” means misappropriation of resident property or intentionally taking unfair advantage of an adult’s physical or financial resources for another individual’s personal or financial advantage by the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense by a caretaker or another person.

(j) “Medical care facility” means a facility licensed under K.S.A. 65-425 et seq., and amendments thereto, but shall not include, for purposes of this act, a state psychiatric hospital or state institution for people with intellectual disability, including Larned state hospital, Osawatomie state hospital and Rainbow mental health facility, Kansas neurological institute and Parsons state hospital and training center.

(k) “Fiduciary abuse” means a situation in which any person who is the caretaker of, or who stands in a position of trust to, a resident, takes, secretes, or appropriates the resident’s money or property, to any use or purpose not in the due and lawful execution of such person’s trust.

(l) “State psychiatric hospital” means Larned state hospital, Osawatomie state hospital and Rainbow mental health facility.

(m) “State institution for people with intellectual disability” means Kansas neurological institute and Parsons state hospital and training center.

(n) “Report” means a description or accounting of an incident or incidents of abuse, neglect or exploitation under this act and for the purposes of this act shall not include any written assessment or findings.

(o) “Law enforcement” means the public office which is vested by law with the duty to maintain public order, make arrests for crimes and investigate criminal acts, whether that duty extends to all crimes or is limited to specific crimes.

(p) “Legal representative” means an agent designated in a durable power of attorney, power of attorney or durable power of attorney for health care decisions or a court appointed guardian, conservator or trustee.

(q) “Financial institution” means any bank, trust company, escrow company, finance company, saving institution or credit union, chartered and supervised under state or federal law.

(r) “Governmental assistance provider” means an agency, or employee of such agency, which is funded solely or in part to provide assistance within the Kansas senior care act, K.S.A. 75-5926 et seq., and amendments thereto, including medicaid and medicare.

No person shall be considered to be abused, neglected or exploited or in need of protective services for the sole reason that such person relies upon spiritual means through

prayer alone for treatment in accordance with the tenets and practices of a recognized church or religious denomination in lieu of medical treatment.

History: L. 1980, ch. 124, § 1; L. 1983, ch. 149, § 1; L. 1989, ch. 128, § 1; L. 1990, ch. 153, § 1; L.

1998, ch. 200, § 4; L. 2003, ch. 91, §

2; L. 2012, ch. 91, § 30; July 1.

39-1402. Abuse, neglect or exploitation of residents; reporting abuse, neglect or exploitation or need of protective services; persons required to report; contents of report; posting notice of requirements of act; penalty for failure to report.

Any person who is licensed to practice any branch of the healing arts, a licensed psychologist, a licensed master level psychologist, a licensed clinical psychotherapist,

a chief administrative officer of a medical care facility, an adult care home administrator or operator, a licensed social worker, a licensed professional nurse, a licensed practical nurse, a licensed marriage and family therapist, a licensed clinical marriage and family therapist, licensed professional counselor, licensed clinical professional counselor, registered alcohol and drug abuse counselor, a teacher, a bank trust officer and any other officers of financial institutions, a legal representative or a governmental assistance provider who has reasonable cause to believe that a resident is being or has been abused, neglected or exploited, or is in a condition which is the result of such abuse, neglect or exploitation or is in need of protective services, shall report immediately such information or cause a report of such information to be made in any reasonable manner to the Kansas department for aging and disability services with respect to residents defined under subsection (a)(1) 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 Kansas department for children and families and appropriate law enforcement agencies with respect to all other residents. Reports made to one department which are required by this subsection to be made to the other department shall be referred by the department to which the report is made to the appropriate department for that report, and any such report shall constitute compliance with this subsection. 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 appropriate department on the first working day that such department is open for business. A report made pursuant to K.S.A. 65-4923 or 65-4924, and amendments thereto, shall be deemed a report under this section.

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 exploitation, 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.

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 Kansas department for aging and disability services with respect to residents defined under subsection (a)(1) 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 Kansas department for children and families with respect to all other residents. Reports made to one department which are to be made to the other department under this section shall be referred by the department to which the report is made to the appropriate department for that report.

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 conspicuous public place in every adult care home and medical care facility in this state.

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.

History: L. 1980, ch. 124, § 2; L. 1983, ch. 149, § 2; L. 1985, ch. 152, § 1; L. 1986, ch. 299, § 6; L. 1990, ch. 153, § 2; L. 1998, ch. 200, §

5; L. 2001, ch. 154, § 3; L. 2003, ch. 91, § 3; L. 2003, ch. 149, § 26; L. 2014, ch. 115, § 158; July 1.

39-1403. Same; immunity from liability of certain persons; employer prohibited from imposing sanctions on employee making report.

Anyone participating in the making of any report pursuant to this act, or in any follow-up activity to or investigation of such report or any other report of abuse, neglect or exploitation of an adult or who testifies in any administrative or judicial proceeding arising from such report shall not be subject to any civil liability on account of such report, investigation or testimony, unless such person acted in bad faith or with malicious purpose.

No employer shall terminate the employment of, prevent or impair the practice or occupation of or impose any other sanction on any employee solely for the reason that such employee made or caused to be made a report under this act.

History: L. 1980, ch. 124, § 3; L. 1983, ch. 149, § 3; L. 1990, ch. 153, § 3; L. 2003, ch. 91, § 4; July 1

39-1404. Same; duties of Kansas department for aging and disability services and department of health and environment; personal visit; investigation and evaluation; information provided to certain persons.

(a) The department of health and environment or the Kansas

department for aging and disability 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:

When a criminal act has occurred or has appeared to have occurred, immediately notify, in writing, the appropriate law enforcement agency;
make a personal visit with the involved resident:

Within 24 hours when the information from the reporter indicates imminent danger to the health or welfare of the involved resident;

within three working days for all reports of suspected abuse, when the information from the reporter indicates no imminent danger; or

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 thorough 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 written assessment which shall include an analysis of whether there is or has been abuse, neglect or exploitation; recommended action; a determination 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.

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.

History: L. 1980, ch. 124, § 4; L. 1983, ch. 149, § 4; L. 1990, ch. 153, § 4; L. 1997, ch. 161, § 5; L.

1998, ch. 200, § 6; L. 2003, ch. 91, § 5; L. 2003, ch. 149, § 27; L. 2014, ch. 115, § 159; July 1.

39-1405. Same; protective services; injunction.

The secretary for aging and disability services shall forward to the Kansas

department for children and families any finding 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 Kansas department for children and families 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 protective services.

If the secretary for children and families determines that a resident is in need of protective services, the secretary for children and families shall provide the necessary protective services, if a resident consents, or if the resident lacks capacity to consent, the secretary may obtain consent from such resident’s legal representative. If a resident or such resident’s legal representative, or both, fails to consent and the secretary for children and families has reason to believe that such a resident lacks capacity to consent, the secretary for children and families 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.

If the caretaker or legal representative, or both, of a resident who has consented to the receipt of reasonable and necessary protective services refuses to allow the provision of such services to such resident, the secretary for children and families may seek to obtain an

injunction 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 provision 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 caretaker 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. History: L. 1980, ch. 124, § 5; L. 1990, ch. 153, § 5; L. 2003, ch. 91, § 6; L. 2003, ch. 149, § 28; L. 2014, ch. 115, § 160; July 1.

39-1406. Same; persons authorized access to relevant records; authority to take actions to assist residents.

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 authority of the secretary for children and families, the secretary of health and environment, and the secretary for aging and disability services 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.

History: L. 1980, ch. 124, § 6; L. 1990, ch. 153, § 6; L. 2003, ch. 91, § 7; L. 2003, ch. 149, § 29; L.

2014, ch. 115, § 161; July 1.

39-1407. Consent of resident to protective services; court authorization.

If a resident does not consent to the receipt of reasonable and necessary protective services, or if such person withdraws the consent, such services shall not be provided or continued, except that if the secretary for children and families has reason to believe that such resident lacks capacity to consent, the secretary may seek court authorization to provide necessary services, as provided in K.S.A. 39-1408, and amendments thereto. History: L. 1980, ch. 124, § 7; L. 2003, ch. 91, § 8; L. 2014, ch. 115, § 162; July 1.

39-1408. Same; petition for appointment of guardian or conservator; appointment of attorney to represent resident, when.

If the secretary for children and families finds that a resident is being or has been abused, neglected or exploited or is in a condition which is the result of such abuse, neglect or exploitation and lacks capacity to consent to reasonable and necessary protective services, the secretary may petition the district court for appointment of a guardian or conservator, or both, for the resident pursuant to the provisions of the act for obtaining a guardian or conservator, or both, in order to obtain such consent.

In any proceeding in district court pursuant to provisions of this act, the district court shall appoint an attorney to represent the resident if the resident is without other legal representation.

History: L. 1980, ch. 124, § 8; L. 1990, ch. 153, § 7; L. 2003, ch. 91, § 9; L. 2014, ch. 115, § 163; July 1.

39-1409. Same; assistance of appropriate public or private agencies, groups or individuals.

In performing the duties set forth in this act, the secretary for children and families, the secretary of health and environment, the secretary for aging and disability services or an appropriate law enforcement agency may request the assistance of the staffs and resources of all appropriate state departments, agencies and commissions and local health departments and may utilize any other 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 investigation conducted by any caretaker under investigation shall be limited to the least serious category of report as specified by the secretary of health and environment, the secretary for aging and disability services or the secretary for children and families, as applicable.

History: L. 1980, ch. 124, § 9; L. 1990, ch. 153, § 8; L. 1998, ch. 200, § 7; L. 2003, ch. 91, § 10; L.

2003, ch. 149, § 30; L. 2014, ch. 115,

164; July 1.

39-1410. Review subsequent to authorization of protective services; continuation of protective services; reevaluations.

Subsequent to the authorization for the provision of necessary protective services, the secretary for children and families shall initiate a review of each case within 45 days, to determine whether continuation of, or modification in, the services provided is warranted. A decision to continue the provision of such services should be made in concert with appropriate personnel from other involved state and local groups, agencies and departments, and shall comply with the consent provisions of this act. Reevaluations of such case shall be made not less than every six months thereafter.

History: L. 1980, ch. 124, § 10; L. 2014, ch. 115, § 165; July 1.

39-1411. Register of reports; findings forwarded to certain state regulatory authorities; consideration of findings; certain information confidential and not subject to open records act; disclosure of certain individuals prohibited.

The secretary for aging and disability services shall maintain a register of the reports received and investigated by the Kansas department for aging and disability services under K.S.A. 39-1402 and 39-1403, and amendments thereto, and the findings, evaluations and

actions recommended by the Kansas department for aging and disability services 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 environment under K.S.A.

39-1402 and 39-1403, and amendments thereto, and the findings, evaluations and actions recommended by the department of health and environment with respect to such reports. The findings, 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 hearing 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 Kansas department for aging and disability services as specified by the secretary of health and environment or the secretary for aging and disability services and to such other persons as may be required by federal law and designated by the secretary of health and environment or the secretary for aging and disability services by rules and regulations. Information from the register shall be provided as specified in K.S.A. 65-6205, and amendments thereto.

The secretary for aging and disability services shall forward 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 secretary of health and environment shall forward 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 requested by the alleged perpetrator, may consider the finding in any disciplinary action taken with respect to the provider of services under the jurisdiction of such authority. The secretary for aging and disability services 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 for aging and disability services. 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.

If the investigation of the department of health and environment or the Kansas department for aging and disability services 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 environment or the secretary for aging and disability services to the secretary for children and families.

Except as otherwise provided in this section, the report received by the department of health and environment or the Kansas department for aging and disability services 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 Kansas department for aging and disability services 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 confidentiality. 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.

History: L. 1990, ch. 153, § 9; L. 1991, ch. 121, § 1; L. 1997, ch. 161, § 6; L. 2000, ch. 146, § 1; L.

2003, ch. 149, § 31; L. 2014, ch. 115,

166; July 1.

39-1412. Transfer of certain powers, duties and functions of secretary of health and environment to secretary of aging; preservation of certain actions.

On July 1, 2003, certain powers, duties and functions 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.

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 discharge of such secretary’s official duties, shall abate by reason of the transfer of such program. 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 date the pertinent program is transferred or on any date thereafter.

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.

Any final appeal decision of the department of health and environment entered pursuant to K.S.A. 39-1401 et seq., and amendments thereto, or the Kansas judicial review act, K.S.A. 77-601 et seq., and amendments thereto, currently pertaining to reporting of abuse, neglect or exploitation 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.

History: L. 2003, ch. 149, § 25; L. 2010, ch. 17, § 65; July 1