Session of 2023
SENATE BILL No. 191
By Committee on Judiciary
2-7
AN ACT concerning the adult care home licensure act; relating to
involuntary transfer or discharge of residents from an adult residential
care facility; creating a right to appeal an involuntary transfer or
discharge; requiring the secretary for aging and disability services to
review notices and preside over appeals.
Be it enacted by the Legislature of the State of Kansas:
Section 1. (a) The administrator or operator of each adult residential
care facility shall ensure that a resident is not involuntarily transferred or
discharged from the adult residential care facility unless one or more of the
following conditions are met:
(1) The transfer or discharge is necessary for the resident's welfare
and the resident's needs cannot be met by the current adult residential care
facility;
(2) the health or safety of other individuals in the adult residential
care facility is endangered;
(3) the resident has failed, after reasonable and appropriate notice, to
pay the rates and charges imposed by the adult residential care facility; or
(4) the adult residential care facility ceases to operate.
(b) Before a resident may be transferred or discharged involuntarily,
the administrator or operator, or designee, shall:
(1) Notify the resident, and, if known, a representative or designated
family member, of the transfer or discharge and the reason for the transfer
or discharge;
(2) if the reason for transfer or discharge is specified in subsection (a)
(1) through (a)(3), record and substantiate in the resident's clinical record
as follows:
(A) The resident's physician shall document the rationale for transfer
or discharge in the resident's clinical record if the transfer or discharge is
necessary for the resident's welfare and the resident's needs cannot be met
by the adult residential care facility;
(B) the resident's physician shall document the rationale for transfer
or discharge in the resident's clinical record if the transfer or discharge is
appropriate because the resident's health has improved sufficiently so that
the resident no longer needs the services provided by the adult residential
care facility; or
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(C) a physician shall document the rationale for transfer or discharge
in the resident's clinical record if the transfer or discharge is necessary
because the health or safety of other individuals in the adult residential
care facility is endangered; and
(3) provide a written transfer or discharge notice that shall include the
following:
(A) The reason for the transfer or discharge;
(B) the effective date of the transfer or discharge;
(C) the contact information for the state long-term care ombudsman;
(D) the resident's right to appeal an involuntary transfer or discharge
established under this section and information as designated by the
secretary to assist the resident in exercising such right;
(E) for a resident with an intellectual or developmental disability,
dementia or another cognitive-limiting condition, the contact information
for the agency responsible for the protection and advocacy of individuals
with such conditions; and
(F) for a resident with a mental disorder or related disability, the
contact information for the agency responsible for protection and advocacy
of individuals with a mental disorder or related disability.
(c) The administrator or operator, or designee, shall provide the
notice of transfer or discharge required by subsection (b) to the resident, or
the resident's representative, at least 30 days in advance of the resident's
transfer or discharge, unless:
(1) The safety of other individuals in the adult residential care facility
would be endangered; or
(2) the resident's urgent medical needs require an immediate transfer
to another healthcare facility.
(d) The administrator or operator, or designee, shall provide sufficient
preparation and orientation to each resident before a resident's discharge,
including development of a discharge plan, with involvement of the
resident, the resident's representative and designated family and subject to
approval of the resident's physician, if practicable.
(e) (1) If a resident of an adult residential care facility receives notice
of a pending involuntary transfer or discharge in violation of this section,
such resident, or such resident's representative, may appeal the adult
residential care facility's determination to involuntarily transfer or
discharge the resident to the secretary for aging and disability services by
filing a notice of appeal in the office of administrative hearings within 15
days after the date of such notice. A presiding officer from the office of
administrative hearings shall hold a hearing, in accordance with the
provisions of the Kansas administrative procedure act, within 30 days after
the receipt of the notice of appeal.
(2) If a resident files an appeal pursuant to this section, the resident
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shall remain or be permitted to return and resume residence in the adult
residential care facility while the appeal is pending.
(f) As used in sections 1 through 10, and amendments thereto, "adult
residential care facility" means an assisted living facility, a residential
healthcare facility, home plus or a boarding care home as such terms are
defined in K.S.A. 39-923, and amendments thereto.
Sec. 2. (a) The secretary for aging and disability services shall make
available to all adult residential care facilities a 30-day involuntary transfer
or discharge notice form that shall include, but not be limited to, the
information in subsection (c).
(b) The administrator or operator of an adult residential care facility,
or designee, shall not be required to use the 30-day involuntary transfer or
discharge notice form prescribed by the secretary, but any form used by
the facility shall include, but not be limited to, the information in
subsection (c).
(c) A 30-day involuntary transfer or discharge notice shall be written
and include, but not be limited to:
(1) The reason for the transfer or discharge;
(2) facts and evidence supporting each reason for the transfer or
discharge, actions taken to avoid the transfer or discharge and the timing
of those actions;
(3) the name and contact information of the facility issuing the notice;
(4) the name and contact information of the person employed by the
facility with whom the resident or resident's representative may discuss the
notice;
(5) the issue date of the notice;
(6) the effective date of the transfer or discharge;
(7) the location where the resident will be transferred or discharged, if
known;
(8) a statement that the resident or resident's representative has the
right to appeal the involuntary transfer or discharge within 15 days after
the issue date contained in the notice;
(9) the procedure for the resident or resident's representative to file
the notice of appeal;
(10) a copy of the 30-day involuntary transfer or discharge notice of
appeal form;
(11) a list of the names and contact information of each recipient of
the notice and how the notice is being given to each recipient;
(12) the contact information for the state long-term care ombudsman;
(13) a section where the recipient of the notice signs the form to
acknowledge receipt of the form if receiving the form in person;
(14) for a resident with an intellectual or developmental disability,
dementia or another cognitive-limiting condition, the contact information
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for the agency responsible for the protection and advocacy of individuals
with such conditions; and
(15) for a resident with a mental disorder or related disability, the
contact information for the agency responsible for protection and advocacy
of individuals with a mental disorder or related disability.
(d) The form required by subsection (c) shall include a 30-day
involuntary transfer or discharge notice of appeal form that shall include,
but not be limited to, the information in subsection (e). Such form shall be
provided to all adult residential care facilities.
(e) The administrator or operator of an adult residential care facility
shall not be required to use the 30-day involuntary transfer or discharge
notice of appeal form prescribed by the secretary, but any form used by the
facility shall include, but not be limited to:
(1) The name and contact information of the resident;
(2) the name and contact information of the person appealing the 30-
day involuntary transfer or discharge notice and the person's relationship
to the resident;
(3) the name of the facility issuing the 30-day involuntary transfer or
discharge notice;
(4) the date the 30-day involuntary transfer or discharge notice was
issued;
(5) the date of the transfer or discharge listed on the 30-day
involuntary transfer or discharge notice; and
(6) whether the person appealing the 30-day involuntary transfer or
discharge notice requests the secretary to facilitate an informal conference
before the administrative hearing.
Sec. 3. Before issuing a 30-day involuntary transfer or discharge
notice in accordance with section 1, and amendments thereto, the
administrator or operator of an adult residential care facility, or designee,
shall:
(a) Notify the resident and the resident's representative in writing of
the transfer or discharge and the reason;
(b) hold a meeting with the resident and the resident's representative
regarding the reason for the involuntary transfer or discharge and attempt
to resolve the reason for the involuntary transfer or discharge;
(c) notify the resident and the resident's representative in writing that
the resident or the resident's representative may invite family members,
relevant health professionals, the state long-term care ombudsman, or
other persons of the resident's or the resident's representative's choosing to
participate in such meeting with the resident and the resident's
representative; and
(d) record the reason for the transfer or discharge under any of the
circumstances specified in section 1(a)(1) through (3), and amendments
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thereto, in the resident's clinical record and shall be substantiated as
follows:
(1) The resident's physician shall document the reason for transfer or
discharge in the resident's clinical record if the transfer or discharge is
necessary for the resident's welfare and the resident's needs cannot be met
by the adult residential care facility; or
(2) a physician shall document the reason for transfer or discharge in
the resident's clinical record if the transfer or discharge is necessary
because the health or safety of other individuals in the adult residential
care facility is endangered.
Sec. 4. (a) The administrator or operator of an adult residential care
facility, or designee, shall deliver the notice to the resident in person and
place a copy in the resident's record. On the same day, the administrator or
operator, or designee, shall send the notice to:
(1) The resident's representative in person, by return receipt delivery,
or by email, read receipt requested; and
(2) the state long-term care ombudsman in person or by email.
(b) The administrator or operator, or designee, shall document
acknowledgment of receipt of the 30-day involuntary transfer or discharge
notice by all required recipients by obtaining and maintaining:
(1) The recipient's signature on the 30-day involuntary transfer or
discharge notice form;
(2) the return receipt affirming delivery of the notice; or
(3) an electronic read receipt from the recipient's email.
(c) If the recipient refuses receipt of the notice, the administrator or
operator, or designee, shall give the document to the recipient through a
different method of delivery. The administrator or operator, or designee,
shall document the refusal. After attempting delivery by two different
methods, if the recipient refuses delivery through both methods, the notice
is deemed to be received by the recipient.
Sec. 5. (a) Except when a facility had its license revoked or not
renewed by the secretary for aging and disability services or voluntarily
surrendered a license, a resident who receives a 30-day involuntary
transfer or discharge notice shall be entitled to an administrative hearing if
the resident or the resident's representative requests an administrative
hearing in a timely manner.
(b) A resident who receives a 30-day involuntary transfer or discharge
notice, the resident's representative or the state long-term care
ombudsman, if requested and on behalf of the resident or the resident's
representative, may appeal such transfer or discharge by filing a notice of
appeal with the office of administrative hearings within 15 calendar days
after the issue date printed on the notice. The secretary may extend the
time allowed for requesting an administrative hearing if the secretary
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determines that good cause exists for the failure to make a timely request.
(c) If the resident is incapacitated and does not have a representative,
the state long-term care ombudsman may file a notice of appeal on behalf
of the resident.
(d) If the resident or the resident's representative files the notice of
appeal form to the office of administrative hearings, on the same day the
resident files the notice of appeal to the office of administrative hearings,
the resident shall give a copy of the completed notice of appeal to the
administrator or operator, or designee, and the state long-term care
ombudsman.
(e) If the state long-term care ombudsman completes or files the
notice of appeal form at the request of the resident or the resident's
representative, at the same time the state long-term care ombudsman files
the notice of appeal to the office of administrative hearings, the state long-
term care ombudsman shall give a copy of the completed notice of appeal
to the resident, and the administrator or operator, or designee, and with
resident's consent, to the resident's representative.
(f) Within 15 calendar days after the receipt of the notice of appeal,
the office of administrative hearings shall hold a hearing in accordance
with the provisions of the Kansas administrative procedure act.
(g) The office of administrative hearings shall issue a written decision
within 10 business days after the completion of the administrative hearing.
(h) The resident who has received a 30-day involuntary transfer or
discharge notice shall be allowed to continue to reside in the facility until
the hearing process is completed. The resident shall be responsible to pay
for any services provided by the facility to the resident until the hearing
process is completed.
Sec. 6. (a) After a notice of appeal has been filed but before the
administrative hearing, the following people may request the secretary to
facilitate an informal conference to discuss the transfer or discharge:
(1) The resident;
(2) the resident's representative;
(3) the administrator or operator of an adult residential care facility,
or designee; or
(4) the state long-term care ombudsman, if requested by the resident
or resident's representative and when applicable.
(b) The secretary shall accept a request for an informal conference
that is submitted by any means.
(c) If an informal conference is requested, the conference shall be
scheduled within five business days of the secretary receiving the request
for the informal conference.
(d) (1) The informal conference shall include:
(A) The secretary, or the secretary's designee;
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(B) the resident or the resident's representative; and
(C) the administrator or operator, or designee.
(2) The informal conference may include:
(A) Healthcare professionals; and
(B) the state long-term care ombudsman.
(e) The party filing the appeal shall provide notice to the office of
administrative hearings that such party is satisfied with the outcome of the
informal conference. Upon receipt of such notice, the office shall cancel
the administrative hearing.
(f) The scheduling or holding of an informal conference shall not
extend the number of days after the receipt of the notice of appeal in which
the office of administrative hearings shall hold a hearing.
Sec. 7. (a) In the case of an emergency transfer or discharge, the
administrator or operator of an adult residential care facility, or designee,
shall provide a notice of emergency involuntary transfer or discharge to
the resident, or the resident's representative, prior to or within 48 hours
following the transfer or discharge. A copy of the notice shall be provided
to the secretary and the state long-term care ombudsman.
(b) If the resident has already been transferred or discharged on an
emergency basis, the administrator or operator, or designee, shall hold a
space available for the resident pending receipt of an administrative
decision. If the resident appeals the transfer or discharge, the resident shall
be responsible to pay for the space held by the administrator or operator, or
designee, pursuant to this subsection.
(c) The secretary for aging and disability services shall adopt rules
and regulations to define an emergency or set criteria that the secretary
shall use to determine such emergency has occurred. Prior to adopting
rules and regulations pursuant to subsection (c), the secretary shall
determine whether an emergency occurred by considering the health,
safety and welfare of the resident being discharged or transferred, other
residents and facility staff.
(d) If the secretary has determined such discharge or transfer is an
emergency pursuant to subsection (c) or (d), sections 8 through 10, and
amendments thereto, shall apply. If the secretary has determined such
discharge or transfer is not an emergency, then sections 1 through 8, and
amendments thereto, shall apply.
Sec. 8. (a) The secretary for aging and disability services shall make
available to all adult residential care facilities an emergency involuntary
transfer or discharge notice form that shall include, but not be limited to,
the information in subsection (c).
(b) The administrator or operator of an adult residential care facility,
or designee, shall not be required to use the emergency involuntary
transfer or discharge notice form prescribed by the secretary, but any form
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used by the facility shall include, but not be limited to, the information in
subsection (c).
(c) An emergency involuntary transfer or discharge notice shall be
written and include, but not be limited to:
(1) A statement that the resident or resident's representative has the
right to appeal the emergency involuntary transfer or discharge within
seven calendar days after the receipt of the notice;
(2) the procedure for the resident or the resident's representative to
file the notice of appeal; and
(3) a copy of the adult residential care facility emergency involuntary
transfer or discharge notice of appeal form.
(d) The form required by subsection (a) shall include an emergency
involuntary transfer or discharge notice of appeal form that shall include,
but not be limited to, the information in subsection (e). Such form shall be
provided to all adult residential care facilities.
(e) The emergency involuntary transfer or discharge notice of appeal
form shall include, but not be limited to:
(1) The name and contact information of the resident;
(2) the name and contact information of the person appealing the
emergency involuntary transfer or discharge notice and the person's
relationship to the resident;
(3) the name of the facility issuing the emergency involuntary transfer
or discharge notice;
(4) the date the emergency involuntary transfer or discharge notice
was issued; and
(5) the date of transfer or discharge listed on the emergency
involuntary transfer or discharge notice.
Sec. 9. (a) Before the administrator or operator of an adult residential
care facility, or designee, issues an emergency involuntary transfer or
discharge notice to the resident, the administrator or operator, or designee,
shall first submit the written notice to the secretary for review and receive
a written response from the secretary stating whether the notice and other
documentation submitted by the administrator or operator, or designee,
complies with the requirements contained in this section.
(b) The administrator or operator, or designee, shall provide to the
secretary a copy of the proposed emergency involuntary transfer or
discharge notice that complies with the requirements listed in section 10,
and amendments thereto.
(c) Within two business days after receiving such copy of the
proposed emergency involuntary transfer or discharge notice, the secretary
shall provide written notice to the administrator or operator, or designee,
with a determination of whether the proposed transfer or discharge notice
complies with the requirements contained in section 8, and amendments
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thereto. If the secretary determines the requirements are not met, the
administrator or operator, or designee, shall not issue the emergency
transfer or discharge notice.
(d) If conditions exist that would immediately endanger the resident,
other residents or staff that cannot be mitigated by the facility, then the
resident may be removed prior to the review required by this section.
(e) Nothing in this section shall prohibit an administrator or operator,
or designee, from submitting or resubmitting an emergency or 30-day
involuntary transfer or discharge notice.
(f) The administrator or operator, or designee, may issue the notice if
the secretary determines the provisions of this section are met.
Sec. 10. (a) A resident who receives an emergency involuntary
transfer or discharge notice shall be entitled to an administrative hearing if
the resident or resident's representative requests an administrative hearing
in a timely manner.
(b) The filing of a notice of appeal or appeal process shall not delay
or change the date of the emergency involuntary transfer or discharge.
(c) A resident who receives an emergency involuntary transfer or
discharge notice, the resident's representative or the state long-term care
ombudsman, if requested and on behalf of the resident or the resident's
representative, may appeal such transfer or discharge by filing a notice of
appeal with the office of administrative hearings within seven calendar
days after receiving the written notice. The secretary may accept a notice
of appeal after seven calendar days if the secretary determines that good
cause exists for failure to make a timely request.
(d) If the resident is incapacitated and does not have a representative,
the state long-term care ombudsman may file a notice of appeal on behalf
of the resident.
(e) If the resident or the resident's representative files the notice of
appeal form to the office of administrative hearings, on the same day the
resident files the notice of appeal to the office of administrative hearings,
the resident shall give a copy of the completed notice of appeal to the
administrator or operator of an adult residential care facility, or designee,
and the state long-term care ombudsman.
(f) If the state long-term care ombudsman completes or files a notice
of appeal form at the request of the resident or the resident's representative,
on the same day the state long-term care ombudsman files the notice of
appeal to the office of administrative hearings, the state long-term care
ombudsman shall give a copy of the completed notice of appeal to the
resident, the administrator or operator, or designee, and with the resident's
consent, to the resident's representative.
(g) Within 14 calendar days after the receipt of the notice of appeal,
the office of administrative hearings shall hold a hearing in accordance
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with the provisions of the Kansas administrative procedure act.
(h) The office of administrative hearings shall issue a written decision
within five business days after the completion of the administrative
hearing.
Sec. 11. This act shall take effect and be in force from and after its
publication in the statute book.
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