SESSION OF 2023
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2443
As Amended by House Committee on Child
Welfare and Foster Care
Brief*
HB 2443, as amended, would establish the Office of the
Child Advocate (OCA) as an independent state agency with
the Child Advocate serving as head of the agency and would
establish the Child Advocate Advisory Board (Board) to
oversee the OCA. The bill would also amend law in the
Revised Kansas Code for Care of Children (CINC Code) and
the Revised Kansas Juvenile Justice Code (Juvenile Code) to
authorize the OCA to have access to certain records
concerning a child in need of care.
Definitions (New Section 1)
The bill would define “child” to mean any individual
under 18 years of age who:
●Is in the custody of the Secretary for Children and
Families (Secretary);
●May be alleged to be a child in need of care
pursuant to the CINC Code;
●Is alleged to be a child in need of care pursuant to
the CINC Code; or
●Is currently or was receiving services or treatment
from the Kansas Department of Corrections
(KDOC).
____________________
*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 The bill would define “office” to mean the OCA that
includes the Child Advocate and staff.
Office of the Child Advocate
Purpose (New Section 2)
The bill would state the purpose of the OCA is to ensure
that children and families receive adequate coordination of
child welfare services, child maltreatment prevention,
protection, and care through services offered by the
Department for Children and Families (DCF) or DCF’s
contractors; the Kansas Department for Aging and Disability
Services (KDADS); KDOC; the Kansas Department of Health
and Environment (KDHE); and juvenile courts.
Organization (New Sections 2 and 5)
The OCA would be established as an independent state
agency with the Child Advocate acting as head of the agency.
Selection and appointment of the Child Advocate would be
made pursuant to New Section 5 of the bill, and the Child
Advocate’s required duties would be performed
independently from state agencies and other entities under
review by the OCA and report directly to the OCA Advisory
Board, established by New Section 3 of the bill.
The OCA would be under the direct supervision of the
Child Advocate, and the Child Advocate could appoint
employees as the OCA may require to fulfill its duties.
Employees (New Sections 5 and 7)
Employees of the OCA would be unclassified
employees, with compensation fixed by the Child Advocate,
and would serve at the pleasure of the Child Advocate. Any
employee of the OCA would be immune from suit and liability,
both in their official capacity and personally, for the good faith
2- 2443 performance of duties described by the bill. However,
employees of the OCA would be prohibited from knowingly
disclosing false information or disclosing confidential
information without lawful authority. Disclosure or use of such
information received by the OCA for any purpose other than
that provided for in law would constitute grounds for removal
from office or termination of employment.
Child Advocate
The Child Advocate would be required to receive,
investigate, and attempt to resolve complaints from any
persons involved with the child welfare system alleging that
DCF or DCF’s contractors, KDOC, the Judicial Branch, or
another child welfare stakeholder has provided inadequate
protection or care of children and assist the State in
conducting oversight of the child welfare system to improve
the safety and well-being of children.
Appointment; Term; Qualifications (New Section 5)
The Child Advocate would be appointed by the Board
and subject to confirmation by the Senate for a term of four
years. The first Child Advocate would be required to be
appointed and confirmed by January 1, 2024, and the Child
Advocate would be required to be appointed and confirmed
on or before January 1 every four years thereafter.
The Child Advocate would be required to possess one of
the following qualifications:
●Holds a current relevant license that would
authorize them to work as a licensed professional
in the capacity of a case manager, behavioral
health professional, or attorney for a child in need
of care;
●Has seven or more years of experience in the field
of child welfare; or
3- 2443 ●Has demonstrated extensive experience in the
practice of child welfare in the field.
The Child Advocate could not be currently or within the
last twelve months employed as an executive or manager of
any program, agency, or contracting agency subject to
oversight by the OCA.
Duties of the Child Advocate (New Section 4)
In order to fulfill the purpose of the OCA, the bill would
direct the Child Advocate to:
●Independently and impartially investigate
complaints, which could include, but not be limited
to, referring such complaint to a state agency or
other entity for action;
●Address complaints made by or on behalf of a child
that relate to state agencies, service providers,
including contractors, subcontractors and any
juvenile court, that may adversely affect the health,
safety, welfare, permanency, or well-being of such
child;
●Establish a procedure for receiving, processing,
responding to, and resolving such complaints;
●Ensure confidentiality of all complaints, including
the identity of a complainant or reporter, unless
disclosure is deemed necessary for the Child
Advocate to perform the Child Advocate’s duties,
with consent from such complainant or reporter;
●Receive and exchange records as provided in the
CINC Code and Juvenile Code, to make inquiries
and review relevant information and records the
OCA deems necessary for investigations;
4- 2443 ●Compile, collect, and preserve a record of
complaints received and processed that may
reveal concerning patterns to be addressed;
●Submit any findings and recommendations to DCF
and recommend changes to policies and
procedures to improve the delivery of child welfare
services;
●Recommend changes to policies, procedures, or
adopted or proposed rules and regulations of any
state or local agency that adversely affect or may
adversely affect the health, safety, welfare,
permanency, or well-being of any child;
●Analyze and monitor the development and
implementation of federal, state, and local laws,
rules and regulations, and policies with respect to
child welfare services in the state and recommend
changes in such laws, rules and regulations, and
polices to DCF or its contractors, entities, KDADS,
KDOC, KDHE, juvenile courts, the Legislature, and
the Governor;
●Inform and educate children, their guardians, and
families of the child’s rights and entitlements
pursuant to state and federal laws; and
●Fulfill responsibilities in this section guided by
generally accepted principles of best practices in
child welfare.
Powers of the Child Advocate Related to Complaints
Received (New Section 4)
In order to fulfill the purpose of the OCA, the bill would
specify the Child Advocate could:
●Access records as provided in the CINC Code and
Juvenile Code related to complaints received;
5- 2443 ●Access all written reports of child abuse and
neglect maintained by the Secretary for Children
and Families related to complaints received;
●Communicate privately with any child or child’s
siblings, after consultation with treatment
professionals and service providers, and with
anyone working with the child, including the family,
relatives, employees of DCF or its contractors,
KDADS, juvenile courts, and other persons or
entities providing treatment and child welfare
services to such child;
●Work in conjunction with guardians ad litem;
●File any of the OCA’s findings or reports regarding
a parent or child with the appropriate court with
jurisdiction over a CINC case involving such child
and issue recommendations regarding the
disposition of an investigation to the court and to
the investigating agency, but the Child Advocate
could not intervene in certain judicial proceedings
or administrative hearings;
●File amicus curiae briefs of the findings and
recommendations of the OCA in appeals from
CINC matters;
●Utilize the resources of the Office of the Attorney
General, as necessary, to carry out any duties of
the Child Advocate and receive legal counsel or
services;
●Initiate meetings with personnel from DCF or its
contractors, KDADS, and juvenile courts;
●Apply for and accept grants, gifts, and bequests of
moneys from other state, interstate, or federal
agencies, independent authorities, private firms,
individuals, or foundations to carry out the Child
6- 2443 Advocate’s duties and responsibilities. Such
moneys would be deposited in the OCA Fund and
expended in accordance with the provisions of the
grant or bequest;
●Establish local panels on a regional or county basis
to adequately and efficiently carry out the functions
and duties of the OCA and address complaints in a
timely manner as appropriate; and
●Conduct an independent review of any policy,
procedure, or practice that is the subject of a
complaint received.
Limitations Related to Filing and Review of Complaints (New
Section 4)
The bill would state nothing in the bill related to the Child
Advocate’s powers and duties to fulfill the purpose of the
OCA could create a just cause for delay of court proceedings
or excuse any court, county attorney, or district attorney,
guardian ad litem, or other agency from their duties in
proceedings related to a child. The bill would specify that no
review of any complaint could require any licensed
professional to engage or not engage in conduct required or
prohibited by any governing professional code of
responsibility or conduct.
The bill would state the filing of a complaint to the OCA
would not establish any relationship between the Child
Advocate or an employee of the OCA and a complainant or
any other party involved in the complaint, and further specify
communications between the Child Advocate or employee of
the OCA and a complainant or other involved party would not
be privileged.
7- 2443 Advisory Board (New Section 3)
The bill would establish an independent and nonpartisan
Child Advocate Advisory Board (Board) to oversee the OCA
and Child Advocate. The Board would have the following
duties and responsibilities:
●On or before December 1, 2023, appoint the Child
Advocate, and as necessary thereafter pursuant to
New Section 5 of the bill;
●For good cause and subject to a 2/3 vote of the
Board, terminate the Child Advocate;
●Fill any vacancy of the Child Advocate;
●Evaluate and receive feedback on the Child
Advocate’s performance;
●Develop a public complaint process related to the
Child Advocate’s performance;
●Oversee and advise the Child Advocate on the
OCA’s purpose;
●Promote and ensure access to the OCA;
●Provide fiscal oversight of the OCA’s budget; and
●Ensure compliance with the provisions of the bill
and any state or federal laws relating to child
welfare.
Board members would be required to have experience
or expertise in the child welfare policy or system, and to the
extent practicable, the Board would include individuals from
across the state with different abilities and ethnic diversity.
Membership of the Board could not exceed 11 members. The
bill would direct the Board members to be appointed before
August 1, 2023, as follows:
8- 2443 ●The Chief Justice of the Kansas Supreme Court
would appoint:
○An individual with experience as a respondent
parent’s counsel; and
○An individual with legal experience in CINC
cases or who served as a guardian ad litem;
●The Governor would appoint:
○An individual with previous professional
experience with a social service agency in a
rural area;
○An individual with previous professional
experience with social service agency in an
urban area; and
○An individual with professional experience
providing mental health services to a child in
need of care;
●The President and Minority Leader of the Senate
would appoint:
○An individual who was a child in need of care;
○An individual who is a biological parent to a
child in need of care; and
○A member at-large;
●The Speaker and Minority Leader of the House of
Representatives would appoint:
○A current or former foster parent;
○An individual who has adopted a child through
a Kansas court; and
○A member at-large.
Board members would serve a term of four years,
except two members first appointed by the Chief Justice and
Governor would serve two-year terms, and one member
appointed by each chamber’s legislative leaders would serve
9- 2443 a two-year term, as determined by the appointing authority.
The Board could suspend or remove any member for failure
to perform such member’s duties by a majority vote of Board
members. Vacancies would be filled in same manner as the
vacated appointment, including a vacancy created by
removal.
The Board would be required to meet twice a year but
could meet additionally as needed, with at least one meeting
per year occurring somewhere other than the Topeka
metropolitan area. At the Board’s initial meeting, and annually
at the Board’s first meeting subsequent to July 1, the Board
would elect from its membership a chairperson, vice-
chairperson, and other officers as the Board deems
appropriate.
Members would not be compensated for their service
but could be reimbursed for actual and reasonable expenses
incurred in the performance of the member’s duties, paid by
the OCA from the OCA Fund.
The Board would be subject to the Kansas Open
Meetings Act, except to discuss personnel matters of non-
elected personnel and to discuss confidential records and
information involving a child in need of care pursuant to the
CINC Code and the federal Child Abuse Prevention and
Treatment Act. Records of the Board would also be subject to
the Kansas Open Records Act (KORA) to the extent no
KORA exception otherwise applies.
Annual Report (New Section 6)
The bill would provide on or before the first day of the
regular 2024 Legislative Session and each year thereafter,
the Child Advocate would be required to submit an annual
report to the Governor, the House Committee on Child
Welfare and Foster Care (or successor committee), the
Senate Committee on Public Health and Welfare (or
successor committee), the Joint Committee on Child Welfare
10- 2443 System Oversight, and the Office of Judicial Administration.
While the bill would prohibit such committees from changing
the OCA’s annual report, the committees could request
additional information that was gathered for the purposes of
making the report but not presented in the written report.
Such information could be added to subsequent copies of the
report or could be distributed separately.
The report would be required to include, but not be
limited to:
●The number of complaints received by the OCA;
●The disposition of such complaints;
●The number of children involved in such
complaints;
●Whether such complaints were found to be
supported or unsupported; and
●Any recommendations for improving the delivery of
child welfare services to reduce complaints or
improving the function of the OCA and
recommendations for changes in Kansas law.
The bill would specify that the report could not contain
names or personally identifiable information of children,
guardians, or families involved in complaints received by the
OCA.
Annual reports could not be disclosed pursuant to KORA
or other law until the time of the next scheduled meeting of
either the House Committee on Child Welfare and Foster
Care or the Senate Committee on Public Health and Welfare
(or respective successor committees) held after distribution of
the report to members of those committees. Alternatively, the
report could be disclosed at the time of the next scheduled
meeting of another legislative committee held after
distribution of the report to members of that committee if
11- 2443 authorized by the House Committee on Child Welfare and
Foster Care or Senate Committee on Public Health and
Welfare. The confidentiality provisions under New Section 6
would expire on July 1, 2028, unless the Legislature reviews
and reenacts such provisions pursuant to KORA prior to their
expiration.
For information or records obtained from a state agency
or other entity, the OCA would be subject to applicable
confidentiality provisions contained in the CINC Code,
Juvenile Code, and federal law applicable to the state agency
or other entity. Information or records obtained could not be
further disclosed.
Discovery and Admissibility of OCA Records (New
Section 7)
The bill would provide that all oral or written reports,
statements, witness testimony, affidavits, memoranda,
proceedings, findings, and other records or data submitted to,
considered by, or generated by the OCA would be privileged
and could not be:
●Disclosed to any person or entity;
●Admissible in any civil action, administrative
proceeding, or disciplinary board in the state; or
●Subject to discovery, subpoena, or other means of
legal compulsion for their release to any person or
entity or be admissible in evidence in any judicial or
administrative proceeding unless the Child
Advocate is already a party to such proceedings.
The bill would also specify that information contained in
such privileged records could not be discoverable or
admissible at trial in the form of testimony of:
●The Child Advocate;
12- 2443 ●An individual who is an employee of the OCA; or
●An individual acting on behalf of the Child
Advocate.
This restriction would not apply if an individual is already
a party to a proceeding described above.
Immunity; Reprisal or Retaliatory Action (New Section 7)
The Child Advocate, any employee of the OCA, or
person acting on behalf of the Child Advocate would be
immune from liability, both personally and in their official
capacity, for claims of property loss or damage or personal
injury caused by or arising out of the performance of the
duties of the OCA. The immunity could not be construed to
protect from suit or liability when intentional, willful, or wanton
misconduct is involved.
The bill would prohibit any person from taking “reprisal
or retaliatory action,” as defined by the bill, against a recipient
of child welfare services or an employee of DCF or its
contractors, KDADS, KDOC, KDHE, or juvenile courts for
communication made or information given to the OCA for the
purpose of compliance with the bill. A person violating this
section would be guilty of a Class A nonperson misdemeanor.
Annual Budget and Fund (New Section 8)
The bill would direct the Child Advocate to prepare and
present the annual budget request of the OCA to the Board,
and upon the Board’s approval, the Child Advocate would
then submit the request to the Director of the Budget in the
same manner as other agency budget requests are submitted
under Kansas law.
The bill would establish the OCA Fund in the State
Treasury, in which all moneys appropriated to the OCA would
13- 2443 be deposited. The Child Advocate would administer the Fund,
with expenditures from the Fund made only if approved by
the Child Advocate or Child Advocate’s designee.
Access to Information (Sections 9 - 13)
The bill would amend statutes in the CINC Code and
Juvenile Justice Code to add the OCA to the list of entities
with access to:
●Official files;
●Social files;
●Information from agency records;
●Information from law enforcement records;
●Records of law enforcement officers and agencies;
●Records of municipal courts; and
●Records, reports, and information obtained as part
of the juvenile intake and assessment process.
[Note: Such access would be subject to continuing limits
based on relevancy and other factors contained in these
statutes.]
Background
The bill was introduced by the House Committee on
Appropriations at the request of Representative Concannon.
House Committee on Child Welfare and Foster Care
In the House Committee meeting on March 6, 2023,
representatives of the Children’s Alliance of Kansas and
14- 2443 Kansas Appleseed Center for Law and Justice testified as
proponents of the bill. The proponents generally stated this
legislation is an attempt to strengthen current practices of the
Division of the Child Advocate by making the OCA an
independent state agency and by codifying in statute the
coordination of efforts to improve children’s welfare in the
state. Written-only proponent testimony was provided by
representatives of the Association of Community Mental
Health Centers of Kansas and the Center for the Rights of
Abused Children. No other testimony was provided.
The House Committee adopted amendments to:
●Modify membership of the Board;
●Allow for the suspension or removal of Board
members and for the filling of vacancies created by
such action;
●Provide for the election of Board leadership
positions;
●Add a limitation with respect to complaints filed and
reviewed by the Child Advocate; and
●Add an additional qualification that could be
considered when appointing the Child Advocate.
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 that enactment of the bill could
increase the number of cases filed in district courts because it
would create a new crime. This, in turn, would increase the
time spent by district court judicial and nonjudicial personnel
in processing, researching, and hearing cases. Since this
crime carries a misdemeanor penalty, there could also be
more supervision of offenders required to be performed by
court services officers. In addition, the bill could result in
15- 2443 some additional work for district court and OJA staff to
provide information requested by the Child Advocate. The bill
could result in the collection of supervision fees in those
cases filed under the provisions of the bill. Nevertheless, until
the courts have had an opportunity to operate under the
provisions of the bill, an accurate estimate of the fiscal effect
on expenditures and revenues by the Judicial Branch cannot
be given. The bill could result in the collection of docket fees,
fines, and supervision fees in those cases filed under the
provisions of the bill, which would be deposited in the State
General Fund or other state funds.
Currently, the Kansas Division of the Child Advocate
(KDCA) is a division within the Office of Public Advocates and
attached to the Department of Administration (DoA) for
technical assistance and advice to function independently.
Operating in calendar years 2022 and 2023 under Executive
Order No. 21-28, KDCA has focused on building a new
division. Future workload is expected to increase moving
forward as the Division is incorporated into statute, further
publicized, and in consideration of the number of children and
families involved in the child welfare system. KDCA indicates
that enactment of the bill would increase expenditures by
$104,200 from the State General Fund for 2.0 additional FTE
Case Investigative Analyst positions in anticipation of
workload increases. Also, KDCA currently receives
operational support services from the DoA for personnel
matters, budgeting, accounting, facility management, and
information technology. If that support were not to continue,
KDCA would have additional expenditures to cover the
services. The fiscal effect for additional support is unknown.
The bill states the OCA may utilize the resources of the
Office of the Attorney General (OAG), as necessary, to carry
out any duties of the Child Advocate and receive legal
counsel or services. It is unclear what that language would
require from the OAG, and as such, the OAG is unable to
determine a fiscal effect on expenditures.
16- 2443 The DCF and KDADS indicate that enactment of the bill
would not have a fiscal effect on either agency.
Any fiscal effect associated with the bill is not reflected
in The FY 2024 Governor’s Budget Report.
Child Advocate Act; Office of the Child Advocate; Child Advocate Advisory Board;
Child Advocate; Revised Kansas Code for Care of Children; Revised Kansas
Juvenile Justice Code; children and minors; children in need of care; confidential
records
17- 2443