Bill Summary – FastDemocracy

Special Session of 2020
                               HOUSE BILL No. 2019
                                 By Representative Ousley
                                           6-3

 AN ACT establishing the office of the child advocate for children's
   protection and services within the department of administration;
   prescribing certain powers, duties and functions; amending K.S.A.
   2019 Supp. 38-2211, 38-2212, 38-2213, 38-2309 and 38-2310 and
   repealing the existing sections.
 6
 Be it enacted by the Legislature of the State of Kansas:
    New Section 1. As used in sections 1 through 8, and amendments
 thereto:
    (a) "Office" means the office of the child advocate for children's
 protection and services within the department of administration and
 includes the child advocate and staff; and
    (b) "recipient" means any child who is receiving services from the
 Kansas department for children and families.
    New Sec. 2. (a) There is hereby established within the department of
 administration the office of the child advocate for children's protection and
 services for the purpose of assuring that children receive adequate
 protection and care through services offered by the Kansas department for
 children and families.
    (b) The office shall be administered by the child advocate, who shall
 be appointed by the governor, subject to confirmation by the senate as
 provided in K.S.A. 75-4315b, and amendments thereto. The child advocate
 shall report directly to the secretary of administration. The child advocate
 shall hold office for a term of six years and shall continue to hold office
 until a successor has been duly appointed. The child advocate shall act
 independently of the Kansas department for children and families in the
 performance of the child advocate's duties. The department of
 administration shall provide administrative support and staff to the office
 as deemed necessary by the child advocate.
    (c) For the fiscal year ending June 30, 2021, and for each fiscal year
 thereafter, the secretary of administration shall include the budget estimate
 of the office, as prepared and approved by the child advocate, with the
 budget estimate prepared and submitted to the division of the budget for
 the department of administration under K.S.A. 75-3717, and amendments
 thereto. Expenditures from appropriations to the department of
 administration for the office, made pursuant to budget estimates for the
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 office, shall be made on vouchers approved by the child advocate or the
 child advocate's designee. All vouchers for expenditures and all payrolls of
 the office shall be approved by the child advocate or the child advocate's
 designee.
     New Sec. 3. (a) The office of the child advocate for children's
 protection and services shall have access to the following information:
     (1) The names and physical location of all children in protective
 services, treatment or other programs under the jurisdiction of the Kansas
 department for children and families;
     (2) all written reports of child abuse and neglect; and
     (3) all current records required to be maintained pursuant to articles
 22 and 23 of chapter 38 of the Kansas Statutes Annotated, and
 amendments thereto.
     (b) The office shall have the authority to:
     (1) Communicate privately with any child under protective services
 and anyone working with the child, including the family, relatives,
 employees of the Kansas department for children and families and other
 persons or entities providing treatment and services;
     (2) access, including the right to inspect, copy and subpoena, relevant
 child records held by the clerk of any Kansas court, public or private
 institutions and other agencies or persons with whom a particular child has
 been either voluntarily or otherwise placed for care or from whom the
 child has received treatment within this state or in another state;
     (3) work in conjunction with guardians ad litem;
     (4) file any findings or reports of the child advocate regarding the
 parent or child with the appropriate court and issue recommendations
 regarding the disposition of an investigation to the court and to the
 investigating agency;
     (5) file amicus curiae briefs on behalf of the interests of the parent or
 child;
     (6) utilize the resources of the office of the attorney general, as
 necessary, to carry out any duties of the child advocate for children's
 protection and services that require legal counsel or services, as authorized
 pursuant to sections 1 through 8, and amendments thereto;
     (7) initiate meetings with personnel from the Kansas department for
 children and families;
     (8) take whatever steps are appropriate to ensure that individuals are
 made aware of the services of the office, its purpose and how it can be
 contacted;
     (9) apply for and accept grants, gifts and bequests of moneys from
 other state, interstate or federal agencies, independent authorities, private
 firms, individuals and foundations to carry out the child advocate's duties
 and responsibilities. The moneys shall be deposited in a dedicated account
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 established within the office to permit moneys to be expended in
 accordance with the provisions of the grant or bequest; and
     (10) subject to appropriations, establish local panels as needed on a
 regional or county basis to adequately and efficiently carry out the
 functions and duties of the office and address complaints in a timely
 manner.
     (c) (1) For any information obtained from a state agency or other
 entity under sections 1 through 8, and amendments thereto, the office shall
 be subject to the same state and federal statutory disclosure restrictions and
 confidentiality requirements that are applicable to the state agency or other
 entity providing such information to the office.
     (2) The provisions of this subsection providing for confidentiality of
 records shall expire on July 1, 2025, unless the legislature reenacts such
 provisions. The legislature shall review this subsection pursuant to K.S.A.
 45-229, and amendments thereto, prior to July 1, 2025.
     New Sec. 4. (a) The office of the child advocate for children's
 protection and services shall establish and implement procedures for
 receiving, processing, responding to and resolving complaints made by or
 on behalf of children who are recipients of services from the Kansas
 department for children and families. Such procedures shall address
 complaints relating to the actions, inactions or decisions of service
 providers, including contractors, subcontractors and any juvenile court,
 that may adversely affect the health, safety, welfare or rights of such
 recipient.
     (b) The office shall have the authority to make the necessary inquiries
 and review relevant information and records as the office deems necessary.
     (c) The office may recommend to any state or local agency changes
 in the rules and regulations adopted or proposed by such state or local
 agency that adversely affect or may adversely affect the health, safety,
 welfare or civil or human rights of any recipient. The office shall
 recommend changes to any current policies and procedures. The office
 shall analyze and monitor the development and implementation of federal,
 state and local laws, rules and regulations and policies with respect to
 services in the state and shall recommend to the Kansas department for
 children and families, courts, the legislature and the governor changes in
 such laws, rules and regulations and policies deemed by the office to be
 appropriate.
     (d) The office shall inform recipients, their guardians or their families
 of their rights and entitlements under state and federal laws and rules and
 regulations through the distribution of educational materials.
     (e) The office shall annually submit to the governor, the legislature
 and the supreme court a detailed report on the work of the office. Such
 report shall include, but not be limited to, the number of complaints
     HB 2019                            4
 received by the office, the disposition of such complaints, the number of
 recipients involved in such complaints, the state entities named in such
 complaints, whether such complaints were found to be substantiated and
 any recommendations for improving the delivery of services to reduce
 complaints or improving the function of the office.
     New Sec. 5. (a) The office of the child advocate for children's
 protection and services shall have the authority to and may conduct an
 independent review of any entity within a county that has experienced
 three or more reports of child abuse or neglect in a calendar year,
 including, but not limited to, the Kansas department for children and
 families or any guardian ad litem. The office shall establish and implement
 procedures for reviewing any such entity.
     (b) The office shall have the authority to make the necessary inquiries
 and review relevant information and records as the office deems necessary
 in order to conduct such reviews.
     (c) The office may recommend changes to any entity's policies and
 procedures based on the results of the review in order to improve the
 delivery of services or the function of the entity. Upon completing a
 review under this section, the office shall submit any findings and
 recommendations to the Kansas department for children and families.
     New Sec. 6. (a) The secretary for children and families shall enter
 into agreements with the office of the child advocate for children's
 protection and services for the provision of financial assistance to the
 office by the Kansas department for children and families from available
 state and federal funds of the Kansas department for children and families.
 This financial assistance shall be to assist the child advocate to provide
 child advocacy services in accordance with sections 1 through 8, and
 amendments thereto.
     (b) For the fiscal year ending June 30, 2021, and for each fiscal year
 thereafter, the secretary for children and families shall include in the
 budget estimates prepared and submitted to the division of the budget for
 the Kansas department for children and families under K.S.A. 75-3717,
 and amendments thereto, in addition to other amounts included in such
 budget estimates for the Kansas department for children and families,
 amounts to be provided to the office during such fiscal year pursuant to
 this section. The amounts included in each such budget estimate to be
 provided to the office shall include amounts to be appropriated from
 federal moneys provided to the Kansas department for children and
 families. Commencing in the fiscal year ending on June 30, 2022, in no
 case shall the aggregate of the amounts included in any such budget
 estimates of the Kansas department for children and families that are to be
 provided to the office be less than the aggregate of all moneys provided
 during the fiscal year ending June 30, 2021, by the Kansas department for
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 children and families for the office from appropriations to the Kansas
 department for children and families, including moneys received under
 federal programs for children. The aggregate amounts included in each
 such budget estimates of the Kansas department for children and families
 that are to be provided to the office shall be adjusted appropriately for
 increases attributable to inflation and other applicable factors.
     New Sec. 7. (a) The identity of any complainant or recipient shall not
 be disclosed by the office unless:
     (1) The complainant or recipient, respectively, or the complainant's or
 recipient's legal representative, consents in writing to such disclosure; or
     (2) such disclosure is required by court order.
     (b) Any statement or communication made by the office relevant to a
 complaint being addressed by the office and any complaint or information
 made or provided in good faith by any person shall be absolutely
 privileged, and such person shall be immune from suit for such statement,
 communication, complaint or information.
     (c) Any representative of the office conducting or participating in any
 examination of a complaint who knowingly and willfully discloses to any
 person other than the office, or those persons authorized by the office to
 receive it, the name of any witness examined or any information obtained
 or given during such examination shall be guilty of a class A nonperson
 misdemeanor. The office conducting or participating in any examination of
 a complaint shall disclose the final result of the examination with the
 consent of the recipient.
     (d) The office shall not be required to testify in any court with respect
 to matters held to be confidential in this section, except as the court may
 deem necessary to enforce the provisions of sections 1 through 8, and
 amendments thereto, or when otherwise required by court order.
     (e) The provisions of this section providing for confidentiality of
 records shall expire on July 1, 2025, unless the legislature reenacts such
 provisions. The legislature shall review this section pursuant to K.S.A. 45-
 229, and amendments thereto, prior to July 1, 2025.
     New Sec. 8. (a) Any employee of the office of the child advocate for
 children's protection and services shall be treated as a representative of the
 office. No representative of the office shall be held liable for the good faith
 performance of such representative's official duties under the provisions of
 sections 1 through 8, and amendments thereto, and such representative
 shall be immune from suit for the good faith performance of such duties.
 Every representative of the office shall be considered an employee of the
 state of Kansas.
     (b) (1) Except as provided in paragraph (2), no reprisal or retaliatory
 action shall be taken against any recipient or employee of the Kansas
 department for children and families for any communication made or
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 information given to the office. Any person who knowingly or willfully
 violates the provisions of this paragraph shall be guilty of a class A
 nonperson misdemeanor.
     (2) Paragraph (1) shall not apply to an employee who discloses:
     (A) Information that such employee knows to be false or who
 discloses information with disregard for the truth or falsity of the
 information; or
     (B) without lawful authority, information that is confidential under
 any other provision of law.
     (c) As used in this section, "reprisal or retaliatory action" includes,
 but is not limited to:
     (1) Letters of reprimand or unsatisfactory performance evaluations;
     (2) transfer;
     (3) demotion;
     (4) reduction in pay;
     (5) denial of promotion;
     (6) suspension;
     (7) dismissal; and
     (8) denial of employment.
     Sec. 9. K.S.A. 2019 Supp. 38-2211 is hereby amended to read as
 follows: 38-2211. (a) Access to the official file. The following persons or
 entities shall have access to the official file of a child in need of care
 proceeding pursuant to this code:
     (1) The court having jurisdiction over the proceedings, including the
 presiding judge and any court personnel designated by the judge.
     (2) The parties to the proceedings and their attorneys.
     (3) The guardian ad litem for a child who is the subject of the
 proceeding.
     (4) A court appointed special advocate for a child who is the subject
 of the proceeding or a paid staff member of a court appointed special
 advocate program.
     (5) Any individual, or any public or private agency or institution,
 having custody of the child under court order or providing educational,
 medical or mental health services to the child or any placement provider or
 potential placement provider as determined by the secretary or court
 services officer.
     (6) A citizen review board.
     (7) The secretary of corrections or any agents designated by the
 secretary of corrections.
     (8) Any county or district attorney from another jurisdiction with a
 pending child in need of care matter regarding any of the same parties.
     (9) Any other person when authorized by a court order, subject to any
 conditions imposed by the order.
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     (10) The commission on judicial performance in the discharge of the
 commission's duties pursuant to article 32 of chapter 20 of the Kansas
 Statutes Annotated, and amendments thereto.
     (11) The office of the child advocate for children's protection and
 services, pursuant to sections 1 through 8, and amendments thereto.
     (b) Access to the social file. The following persons or entities shall
 have access to the social file of a child in need of care proceeding pursuant
 to this code:
     (1) The court having jurisdiction over the proceeding, including the
 presiding judge and any court personnel designated by the judge.
     (2) The attorney for a party to the proceeding or the person or persons
 designated by an Indian tribe that is a party.
     (3) The guardian