65-5117. Operation of home health agency precluded, when; access of secretary of health and environment to certain records; background check of employees, civil liability, fee for information request;
65-5117
65-5117. Operation of home health agency precluded,when; access ofsecretary of health and environment to certain records; background check ofemployees, civil liability, fee for information request; provision of criminalhistory record information by secretary; licensed or registeredprofessional service providers, volunteers and certain employees exempt; reportof convictions and adjudications by the Kansas bureau ofinvestigation.(a) (1) No person shall knowinglyoperate a home health agency if, for the home health agency,there works any person whohas been convicted of or has been adjudicated a juvenile offenderbecause of having committed an act which if done by an adult would constitutethe commission of capital murder, pursuant to K.S.A. 21-3439 and amendmentsthereto,first degree murder, pursuant to K.S.A. 21-3401 and amendments thereto, seconddegree murder, pursuant to subsection (a) of K.S.A. 21-3402 and amendmentsthereto, voluntary manslaughter, pursuant to K.S.A. 21-3403 and amendmentsthereto, assisting suicide, pursuant to K.S.A. 21-3406 and amendmentsthereto, mistreatment of a dependent adult, pursuant to K.S.A. 21-3437 andamendments thereto, rape, pursuant to K.S.A. 21-3502 and amendments thereto,indecent liberties with a child, pursuant to K.S.A. 21-3503 and amendmentsthereto, aggravated indecent liberties with a child, pursuant to K.S.A. 21-3504and amendments thereto, aggravated criminal sodomy, pursuant to K.S.A. 21-3506and amendments thereto, indecent solicitation of a child,pursuant to K.S.A. 21-3510 and amendments thereto, aggravated indecentsolicitation of a child, pursuant to K.S.A. 21-3511 and amendments thereto,sexual exploitation of a child, pursuant to K.S.A. 21-3516 and amendmentsthereto, sexual battery, pursuant to K.S.A. 21-3517 and amendments thereto, oraggravated sexual battery, pursuant to K.S.A. 21-3518 and amendments thereto,an attempt tocommit any of the crimes listed in this subsection (a)(1),pursuant to K.S.A. 21-3301, and amendments thereto, a conspiracy to commit anyof the crimes listed in this subsection (a)(1), pursuant to K.S.A. 21-3302, andamendments thereto, or criminal solicitation of any of the crimes listed inthis subsection (a)(1), pursuant to K.S.A. 21-3303, and amendments thereto,or similar statutes of other states or the federal government.
(2) A person operating a home health agency mayemploy an applicant who has been convicted of any of thefollowing if five or more years have elapsed since the applicant satisfied thesentence imposed or was discharged from probation, a community correctionalservices program, parole, postrelease supervision, conditional release or asuspended sentence; or if five or more years have elapsed since the applicanthas been finally discharged from the custody of the commissioner of juvenilejustice or from probation or has been adjudicated a juvenile offender,whichever time is longer: A felony conviction for a crime which is describedin: (A) Article 34 of chapter 21 of theKansas Statutes Annotated and amendments thereto, except those crimes listed insubsection (a)(1); (B) articles 35 or 36 ofchapter 21 of the Kansas Statutes Annotated and amendments thereto, exceptthose crimes listed in subsection (a)(1) and K.S.A. 21-3605 and amendmentsthereto; (C) an attempt to commit any of thecrimes listed in this subsection (a)(2) pursuant to K.S.A. 21-3301, andamendments thereto; (D) a conspiracy to commit any of the crimes listed insubsection (a)(2) pursuant to K.S.A. 21-3302, and amendments thereto; (E)criminal solicitation of any of the crimes listed in subsection (a)(2)pursuant to K.S.A. 21-3303, and amendments thereto; or (F) similar statutesof other states or the federal government.
(b) No person shall operate a home health agencyif such person has been found to be a personin need of a guardian or a conservator, or both, as provided inK.S.A. 59-3050 through 59-3095, and amendments thereto. Theprovisions of this subsection shall not apply to a minor found to be in need ofa guardian or conservator for reasons other than impairment.
(c) The secretary of health and environment shall have access to any criminalhistory record information in the possession of the Kansas bureau ofinvestigation regarding felony convictions, convictions under K.S.A.21-3437, 21-3517 and 21-3701, and amendmentsthereto, adjudications of a juvenile offender which if committed by an adultwould have been a felony conviction, and adjudications of a juvenile offenderfor an offense described in K.S.A. 21-3437, 21-3517 and21-3701, and amendmentsthereto, concerning persons working fora home health agency. The secretary shallhave access to these records for the purpose of determining whether or notthe home health agency meets the requirements of this section.The Kansas bureau of investigation may charge to the department of health andenvironment a reasonable fee for providing criminal history record informationunder this subsection.
(d) For the purpose of complying with this section, the operator of ahome health agency shall request from the department of health and environmentinformation regarding only felony convictions, convictions under K.S.A.21-3437, 21-3517 and 21-3701, and amendments thereto, adjudications of ajuvenile offender which if committed by an adult would have been a felonyconviction, and adjudications of a juvenile offender for an offense describedin K.S.A. 21-3437, 21-3517 and 21-3701, and amendments thereto, and whichrelates to a person who works for the home health agency or is being consideredfor employment by the home health agency, for the purpose of determiningwhether such person is subject to the provisions of this section. For thepurpose of complying with this section, information relating toconvictions and adjudications by the federal government or to convictions andadjudications in states other thanKansas shall not be required until such time as the secretary of health andenvironment determines the search for such information could reasonably beperformed and the information obtained within a two-week period. For thepurpose of complying with this section, the operator of a home health agencyshall receive from any employment agency which provides employees to work forthe home health agency written certification that such employees are notprohibited from working for the home health agency under this section.For the purpose of complying with this section, a person who operates a homehealth agency may hire an applicant for employment on a conditional basispending the results from the department of health and environment of a requestfor information under this subsection.No home health agency,the operator or employees of a home health agencyor an employment agency, or the operator or employees of an employment agency,which provides employees to work for the home health agencyshall be liable for civil damagesresulting from any decision to employ, to refuse to employ or to dischargefrom employment any person based onsuch home health agency's compliance with the provisions of this section ifsuch home health agency or employmentagency acts in goodfaith to comply with this section.
(e) The secretary of health and environment shall charge each personrequesting information under this section a fee equal to cost, not to exceed$10, for each name about whichan information request has been submitted under this section.
(f) (1) The secretary of health and environment shall provide eachoperator requesting information under this section with the criminal historyrecord information concerning felony convictions and convictions under K.S.A.21-3437, 21-3517 and 21-3701, and amendmentsthereto, in writing and within threeworking days of receipt of such information from the Kansas bureau ofinvestigation. The criminal history record information shall be providedregardless of whether the information discloses that the subject of the requesthas been convicted of an offense enumerated in subsection (a).
(2) When an offense enumerated in subsection (a) exists in thecriminal history record information, and when further confirmation regardingcriminal history record information is required from the appropriate court ofjurisdiction or Kansas department of corrections,the secretaryshall notify each operator that requests information under this section inwriting and within three working days of receipt from the Kansas bureau ofinvestigation that further confirmation is required.The secretary shall provideto the operator requesting information under this section information inwriting and within three working days of receipt of such information from theappropriate court of jurisdiction or Kansas department of corrections regardingconfirmation regarding the criminal history record information.
(3) Wheneverthe criminal history record information reveals that the subject of therequest has no criminal history on record,the secretary shall provide notice to each operator requestinginformation under this section, in writing and within three working days afterreceipt of such information from the Kansas bureau of investigation.
(4) The secretary of health and environment shall not provide each operatorrequesting information under this section with the juvenile criminal historyrecord information which relates to a person subject to a background check asis provided byK.S.A. 2009 Supp.38-2326, and amendments thereto,except foradjudications of a juvenile offender for an offense described in K.S.A.21-3701, and amendments thereto. The secretary shallnotify the operator that requested the information, in writing and within threeworking days of receipt of such information from the Kansas bureau ofinvestigation, whether juvenile criminal history record information receivedpursuant to this section reveals that the operator would or would not beprohibited by thissection from employing the subject of the request for information andwhether such information contains adjudications of a juvenile offender for anoffense described in K.S.A. 21-3701, and amendments thereto.
(5) An operator who receives criminal history record information under thissubsection (f) shall keepsuch information confidential, except that the operator may disclose suchinformation to the person who is the subject of the request for information. Aviolation of this paragraph (5) shall be anunclassified misdemeanor punishable by a fine of $100.
(g) No person who works for a home health agency and who iscurrentlylicensed or registered by an agency of this state to provide professionalservices in this state and who provides such services as part of the work whichsuch person performs for the home health agency shall be subject to theprovisions of this section.
(h) A person who volunteers to assist a homehealth agencyshall not be subject to the provisions of thissection because of such volunteer activity.
(i) No person who has been employed by the same home healthagency for fiveconsecutive years immediately prior to the effective date of this act shall besubject to the requirements of this section while employed by suchhome health agency.
(j) The operator of a home health agency shall not berequiredunder thissection to conduct a background check on an applicant for employment with thehome health agency if the applicant has been the subject of a background checkunder this act within one year prior to the application for employment with thehome health agency. The operator of a home health agency where the applicantwas the subject of such background check may release a copy of such backgroundcheck to the operator of a homehealth agency where the applicant is currently applying.
(k) For purposes of this section, the Kansas bureau of investigationshall only report felony convictions, convictions under K.S.A. 21-3437, 21-3517and 21-3701, and amendments thereto,adjudicationsof a juvenile offender which if committed by an adult would have been a felonyconviction, and adjudications of a juvenile offender for an offense describedin K.S.A. 21-3437, 21-3517 and 21-3701, andamendments thereto, to the secretary ofhealth and environment when a background check is requested.
(l) This section shall be part of and supplemental to theprovisionsof article 51 of chapter 65 of the Kansas Statutes Annotated and actsamendatory thereof or supplemental thereto.
History: L. 1997, ch. 161, § 2;L. 1998, ch. 144, § 2;L. 2001, ch. 197, § 2;L. 2002, ch. 114, § 75;L. 2003, ch. 98, § 2;L. 2006, ch. 169, § 118; Jan. 1, 2007.