SESSION OF 2021
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2026
As Amended by Senate Committee on Judiciary

Brief*
HB 2026, as amended, would establish a certified drug
treatment program (program) for certain persons who have
entered into a diversion agreement (divertees) pursuant to a
memorandum of understanding (MOU).
The bill would allow eligibility for participation in a
program for offenders who have entered into a diversion
agreement in lieu of further criminal proceedings on and after
July 1, 2021, for persons who have been charged with felony
possession of a controlled substance and whose criminal
history score is C or lower with no prior felony drug
convictions.
[Note: Under continuing law, Kansas’ sentencing
guidelines for drug crimes utilize a grid containing the crime
severity level (1 to 5, 1 being the highest severity) and the
offender’s criminal history score (A to I, A being the highest
criminal history score) to determine the presumptive sentence
for an offense. Felony drug possession is currently classified
as a drug severity level 5 felony. An offender is classified as
criminal history C if the offender has one person and at least
one nonperson felony.]
The bill would also provide that, as part of the
consideration of whether to allow a person to enter into such
a diversion agreement, a person who meets the criminal
charge and history requirements shall be subject to:

____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org
 ● A drug abuse assessment that would be required
to include a clinical interview with a mental health
professional and a recommendation concerning
drug abuse treatment for the divertee; and
● A standardized criminal risk-need assessment
specified by the Kansas Sentencing Commission
(Commission).
The bill would further require the diversion agreement to
include provisions that require the divertee to comply with and
participate in a program if the divertee meets the assessment
criteria set by the Commission, with a term of treatment not to
exceed 18 months.

Supervision
The bill would provide that divertees who are committed
to a program could be supervised by community correctional
services or court services pursuant to an MOU. A divertee
would be discharged from the program if the divertee:
● Is convicted of a new felony; or
● Has a pattern of intentional conduct that
demonstrates the divertee’s refusal to comply with
or participate in the program, in the opinion of the
county or district attorney.
If a divertee is discharged, such person would be
subject to the revocation provisions of the respective
diversion agreement.

Definitions
The bill would define “mental health professional” for this
purpose to include:
● Licensed social workers;
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 ● Persons licensed to practice medicine and surgery;
● Licensed psychologists;
● Licensed professional counselors; or
● Registered alcohol and other drug abuse
counselors licensed or certified as addiction
counselors who have been certified by the
Secretary of Corrections (Secretary) to treat
persons pursuant to continuing law.
The bill would define “divertee” to mean a person who
has entered into a diversion agreement pursuant to
continuing law and amendments made by the bill.

Memorandum of Understanding
The bill would amend law related to diversion
agreements by adding provisions related to an MOU.
The bill would allow a county or district attorney to enter
into an MOU with the chief judge of a judicial district or
community correctional services to assist with the supervision
and monitoring of persons who have entered into a diversion
agreement. The county or district attorney would retain
authority over whether a particular defendant may enter into a
diversion agreement or whether such agreement would be
revoked.
The bill would require an MOU to include provisions
related to:
● Determining the level of supervision needed for a
defendant;
● Use of a criminal-risk needs assessment;
● Payment of costs for supervision; and

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 ● Waiver of the supervision fee established by the
bill.
The bill would authorize the Office of Judicial
Administration (OJA) to adopt guidelines regarding the
content of an MOU between a county or district attorney and
the chief judge of a judicial district and the administration of a
supervision program operating pursuant to such MOU.
The bill would amend law regarding the contents of
diversion agreements to specify that such agreements may
include provisions related to the MOU.

Supervision Fees
The bill would provide that divertees who are supervised
pursuant to an MOU would be required to pay a supervision
fee in the amount established in continuing law for
misdemeanor or felony post-conviction supervision, as
appropriate for the crime charged. The bill would allow a
county or district attorney, in accordance with an MOU, to
reduce or waive the supervision fee.
The bill would require the county or district attorney to
collect supervision fees, with the moneys collected to be paid
into the county general fund and used to fund the costs of
diversion supervision performed pursuant to the MOU.
The bill would also require divertees who are supervised
pursuant to an MOU to pay the actual costs of urinalysis
testing required as a term of supervision. Payments for such
testing would be required to be remitted to the county
treasurer for deposit in the county general fund, and the cost
of such testing could be reduced or waived by the county or
district attorney.
The bill would further require county or district attorneys
to determine the extent, if any, that a divertee is able to pay
for assessment and treatment and the bill would require such
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payments to be used by the supervising agency to offset
costs to the State or county. If such financial obligations are
not met or cannot be met, the county or district attorney
would be required to be notified for the purpose of collection
or review and further action on the diversion agreement.

Conforming and Technical Changes
The bill would make conforming amendments to statutes
regarding community correctional services, certified drug
abuse treatment programs, and diversion agreements to
allow for implementation of the bill’s provisions.
The bill would make technical amendments to ensure
consistency in statutory phrasing and to remove outdated
language related to a previously allowed supervision of
certain adult offenders in Johnson County by court services
or community corrections, which expired on July 1, 2013.

Background
SB 123 (2003) created a nonprison sanction of certified
substance abuse treatment for certain drug offenders.
Commonly referred to as the “Senate Bill 123 Program,” this
program is administered by the Kansas Sentencing
Commission. This bill (HB 2026) would establish a similar
treatment program for divertees.
This bill was prefiled for introduction on December 31,
2020, at the request of the Joint Committee on Corrections
and Juvenile Justice Oversight.
[Note: 2021 HB 2026 contains provisions similar to 2020
HB 2708, as recommended by the House Committee on
Corrections and Juvenile Justice.]


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House Committee on Corrections and Juvenile Justice
In the House Committee hearing on January 20, 2021,
proponents testifying in support of the bill included
representatives of the Greater Kansas City Chamber of
Commerce and Kansas Sentencing Commission. The
proponents generally indicated the bill would expand the
availability of drug abuse treatment options across the state
for persons on diversion.
Written-only proponent testimony was provided by a
representative of the Kansas Criminal Justice Reform
Commission and by a representative of the Kansas
Association of Chiefs of Police, the Kansas Peace Officers
Association, and the Kansas Sheriffs Association.
Neutral testimony was provided by a representative of
the Behavioral Health Association of Kansas, who expressed
concern regarding the need for additional funding for drug
abuse treatment programs, if the bill were enacted.
Written-only neutral testimony was provided by
representatives of the American Civil Liberties Union of
Kansas and the Kansas Department of Corrections.
No other testimony was provided.

Senate Committee on Judiciary
In the Senate Committee hearing on January 2, 2021,
proponents testifying in support of the bill included
representatives of the American Civil Liberties Union of
Kansas, Greater Kansas City Chamber of Commerce, and
the Kansas Sentencing Commission (Commission).
Written-only proponent testimony was provided by a
representative of the Kansas Association of Chiefs of Police,
the Kansas Peace Officers Association, and the Kansas
Sheriffs Association.
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 Neutral testimony was provided by a representative of
the Kansas Community Corrections Association, who
suggested an amendment regarding proportional distribution
of supervision fee funds across drug abuse treatment
programs.
Written-only neutral testimony was provided by a
representative of the Kansas Department of Corrections.
No other testimony was provided.
On February 26, 2021, the Senate Committee adopted
an amendment based on the suggestion by the Kansas
Community Corrections Association.
Fiscal Information
According to the fiscal note prepared by the Division of
the Budget on the bill as introduced, the Office of Judicial
Administration (OJA) indicates enactment of the bill could
have a fiscal effect on the Judicial Branch operations;
however, OJA could not estimate how many district courts
would enter into an MOU, or how many cases would occur.
The Commission estimates enactment of the bill may result in
additional prison admissions and beds; however, the
Commission cannot determine the fiscal effect. The
Commission further estimates, based on three different
scenarios, enactment of the bill could increase the number of
Senate Bill 123 Program drug treatment cases by either 25,
50, or 75 cases in FY 2022.
Because of the potential increase of Senate Bill 123
Program drug treatment offenders, the Commission estimates
additional State General Fund expenditures of $88,368,
$176,736, or $265,104 in FY 2022, depending on which
scenario occurs.
Any fiscal effect associated with the bill is not reflected
in The FY 2022 Governor’s Budget Report.
Diversion; drug abuse treatment; supervision

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Statutes affected:
As introduced: 22-2909, 22-2907, 75-5291, 75-52
As Amended by Senate Committee: 22-2909, 22-2907, 75-5291, 75-52
{As Amended by Senate Committee of the Whole}: 22-2909, 21-6201, 75-5202, 21-6322, 21-6610, 21-6824, 22-2907, 8-1567, 75-5291, 75-52