65-516. Restrictions on persons maintaining or residing, working or volunteering at child care facility or family day care home; criminal history check by secretary of health and environment; informat
65-516
65-516. Restrictions on persons maintaining orresiding, working or volunteering at child care facility or family day carehome; criminal history check by secretary of health and environment;information to be provided sponsoring child placement agency.(a) No person shall knowingly maintain a childcare facility ormaintain a family day care home if, in the child carefacility or family daycare home, there resides, works or regularly volunteers any person who inthis state or in other states or the federal government:
(1) (A) Has a felony conviction for a crime against persons, (B)has a felony conviction underK.S.A. 2009 Supp. 21-36a01 through 21-36a17, and amendments thereto,(C) has a conviction of any act which is described in articles 34, 35 or 36of chapter 21 of the Kansas Statutes Annotated, and amendments thereto,or a conviction of anattempt under K.S.A. 21-3301,and amendments thereto, to commit any such act or a conviction ofconspiracyunder K.S.A. 21-3302, and amendments thereto, to commit such act, or similarstatutes of other states or the federal government, or (D) has beenconvicted ofany act which is described in K.S.A. 21-4301 or 21-4301a, and amendmentsthereto, or similar statutes of other states or the federal government;
(2) has been adjudicated a juvenile offender because of having committedan act which if done by an adult would constitute the commission of afelony and which is a crime against persons, is any act described inarticles 34, 35 or 36 of chapter 21 of the Kansas Statutes Annotated, andamendments thereto, or similar statutes of other states or the federalgovernment, or is any act described inK.S.A. 21-4301 or 21-4301a, and amendments thereto, or similarstatutes ofother states or the federal government;
(3) has committed an act of physical, mental or emotional abuse orneglect or sexual abuse and who is listed in the childabuse and neglect registry maintained by the department of social andrehabilitation services pursuant toK.S.A. 2009 Supp.38-2226, and amendments thereto,and (A) the person has failed to successfully complete a corrective action planwhich had been deemed appropriate and approved by the department of socialand rehabilitation services, or (B) the record has not been expungedpursuant to rules and regulations adopted by the secretary of social andrehabilitation services;
(4) has had a child removed from home based on acourt orderpursuant toK.S.A. 2009 Supp.38-2251, and amendments thereto, in thisstate,or a court order in any other state based upon a similar statute that finds thechildto be deprived or a child in need of care based on afinding ofphysical, mental or emotional abuse or neglect or sexual abuseand the child has not been returned to thehome or the child reaches majority before being returned to the home and theperson has failed to satisfactorily complete a corrective action plan approvedbythe department of health and environment;
(5) has had parental rights terminated pursuant to the Kansas juvenilecode orK.S.A. 2009 Supp.38-2266 through38-2270, andamendments thereto, or asimilar statute of other states;
(6) has signed a diversion agreement pursuant to K.S.A. 22-2906 etseq., and amendments thereto, or an immediate intervention agreementpursuant toK.S.A. 2009 Supp.38-2346, andamendments thereto, involving a charge of child abuse or a sexualoffense; or
(7) has an infectious or contagious disease.
(b) No person shall maintain a child care facility or afamily day care home if such person has been found to be aperson in need of a guardian or a conservator, or both, as provided inK.S.A. 59-3050 through 59-3095, and amendments thereto.
(c) Any person who resides in a child care facility orfamily day care home and who has been found to be in need of a guardian ora conservator, or both, shall becounted in the total number of children allowed in care.
(d) In accordance with the provisions of this subsection, thesecretary of health and environment shall have access to any courtorders or adjudications of anycourt of record, any records of such orders or adjudications, criminalhistory record information including, but not limited to, diversionagreements, in the possession of the Kansas bureau ofinvestigation and any report of investigations as authorized by K.S.A.2009 Supp. 38-2226, and amendmentsthereto,in the possession of thedepartment of social and rehabilitation services or court of this stateconcerning persons working, regularly volunteering or residing in a child carefacility or a family day care home. The secretary shall have access to theserecords for the purpose of determining whether or not the home meets therequirements of K.S.A. 59-2132, 65-503, 65-508, 65-516 and65-519, andamendments thereto.
(e) In accordance with the provisions of this subsection, the secretary isauthorized to conduct national criminal history recordchecks to determine criminal history on persons residing, working or regularlyvolunteering in a child care facility or family day care home. In order toconduct a national criminal history check the secretary shall requirefingerprinting for identification and determination of criminal history. Thesecretary shall submit the fingerprints to the Kansas bureau of investigationand to the federal bureau of investigation and receive a reply to enable thesecretary to verify the identity of such person and whether such person hasbeen convicted of any crime that would prohibit such person from residing,working or regularly volunteering in a child care facility or family day carehome. The secretary is authorized to use information obtained from the nationalcriminal history record check to determine such person's fitness to reside,work or regularly volunteer in a child care facility or family day carehome.
(f) The secretary shall notify the child careapplicant, licenseeor registrant, within seven days bycertified mail with return receipt requested, when the result of the nationalcriminal history record check or other appropriate review reveals unfitnessspecified in subsection (a)(1) through (7) with regard to the person who is thesubject of the review.
(g) No child care facility or family day care home or the employeesthereof,shall be liable for civil damages to any person refused employment ordischarged from employment by reason of such facility's or home's compliancewith the provisions of this section if such home acts in good faith to complywith this section.
(h) For the purpose of subsection (a)(3), a person listedin the child abuse and neglect central registry shall not be prohibited fromresiding, working or volunteering in a child care facility or family day carehome unless such person has: (1) Had anopportunity to be interviewed and present information during the investigationof the alleged act of abuse or neglect; and (2) been given notice of the agencydecision and an opportunity to appeal such decision to the secretary and to thecourts pursuant to the act for judicial review and civil enforcement of agencyactions.
(i) In regard to Kansas issued criminal history records:
(1) The secretary of health and environment shall provide in writinginformation available to the secretary to each child placement agencyrequesting information under this section, including the information providedby the Kansas bureau of investigation pursuant to this section, for the purposeof assessing the fitness of persons living, working or regularly volunteeringin a family foster home under the child placement agency's sponsorship.
(2) The child placement agency is considered to be a governmental entity andthe designee of the secretary of health and environment for the purposes ofobtaining, using and disseminating information obtained under this section.
(3) The information shall be provided to the child placement agencyregardless of whether the information discloses that the subject of the requesthas been convicted of any offense.
(4) Whenever the information available to the secretary reveals that thesubject of the request has no criminal history on record, the secretary shallprovide notice thereof in writing to each child placement agency requestinginformation under this section.
(5) Any staff person of a child placement agency who receives informationunder this subsection shall keep such information confidential, except thatthe staff person may disclose such information on a need-to-know basis to: (A)The person who is the subject of the request for information, (B) the applicantor operator of the family foster home in which the person lives, works orregularly volunteers, (C) the department of health and environment, (D) thedepartment of social and rehabilitation services, (E) the juvenile justiceauthority, and (F) the courts.
(6) A violation of the provisions of subsection (i)(5) shall be anunclassified misdemeanor punishable by a fine of $100 for each violation.
History: L. 1980, ch. 184, § 2;L. 1982, ch. 259, § 2;L. 1983, ch. 140, § 46;L. 1984, ch. 225, § 1;L. 1985, ch. 210, § 1;L. 1987, ch. 233, § 1;L. 1988, ch. 232, § 10;L. 1991, ch. 185, § 1;L. 1994, ch. 279, § 15;L. 1996, ch. 229, § 117;L. 2002, ch. 114, § 74;L. 2006, ch. 169, § 116;L. 2007, ch. 147, § 1;L. 2009, ch. 32, § 53; July 1.