§ 59-29a22 — Persons in custody of secretary for aging and disability services; rights and rules of conduct; definitions; application of Kansas administrative procedure act and Kansas judicial review act

Kansas § 59-29a22

• Jurisdiction: Kansas
• Ch. 59: PROBATE CODE
• Art. 29a: COMMITMENT OF SEXUALLY VIOLENT PREDATORS

Text

(a) As used in this section:
(1) "Person" means any individual:
(A) Who is receiving services for mental illness and who is admitted, detained, committed, transferred or placed in the custody of the secretary for aging and disability services under the authority of K.S.A. 22-3219, 22-3302, 22-3303, 22-3428a, 22-3429, 22-3430, 59-29a05, 75-5209 and 76-1306, and amendments thereto.
(B) In the custody of the secretary for aging and disability services after being found a sexually violent predator pursuant to the Kansas sexually violent predator act, including any sexually violent predator placed on transitional release.
(2) "Restraints" means the application of any devices, other than human force alone, to any part of the body of the person for the purpose of preventing the person from causing injury to self or others.
(3) "Seclusion" means the placement of a person, alone, in a room, where the person's freedom to leave is restricted and where the person is not under continuous observation.
(4) "Emergency lockdown" means a safety measure used to isolate all or a designated number of persons greater than one to their rooms for a period necessary to ensure a safe and secure environment.
(5) "Individual person management plan" means a safety measure used to isolate an individual person when the person presents a safety or security risk that cannot be addressed through routine psychiatric methods.
(b) Each person shall have the following statutory rights:
(1) Upon admission or commitment, to be informed orally and in writing of the person's rights under this section. Copies of this section shall be posted conspicuously in each facility, and shall be available to the person's guardian and immediate family.
(2) To refuse to perform labor which is of financial benefit to the facility in which the person is receiving treatment or service. Privileges or release from the facility may not be conditioned upon the performance of any labor which is regulated by this subsection. Tasks of a personal housekeeping nature are not considered compensable labor. A person may voluntarily engage in therapeutic labor which is of financial benefit to the facility if such labor is compensated in accordance with a plan approved by the department and if:
(A) The labor is an integrated part of the person's treatment plan;
(B) the labor is supervised by a staff member who is qualified to oversee the therapeutic aspects of the activity;
(C) the person has given written informed consent to engage in such labor and has been informed that such consent may be withdrawn at any time; and
(D) the labor involved is evaluated for its appropriateness by the staff of the facility at least once every 180 days.
(3) To receive adequate treatment appropriate for such person's condition.
(4) To be informed of such person's treatment and care and to participate in the planning of such treatment and care.
(5) To refuse to consent to the administration of any medication prescribed for medical or psychiatric treatment, except in a situation in which the person is in a mental health crisis and less restrictive or intrusive measures have proven to be inadequate or clinically inappropriate. Treatment for a mental health crisis shall include medication or treatment necessary to prevent serious physical harm to the person or to others. After full explanation of the benefits and risks of such medication, the medication may be administered over the person's objection, except that the objection shall be recorded in the person's medical record and at the same time written notice thereof shall be forwarded to the medical director of the treatment facility or the director's designee. Within five days after receiving such notice, excluding Saturdays, Sundays and legal holidays, the medical director or designee shall deliver to the person's medical provider the medical director's or designee's written decision concerning the administration of that medication, and a copy of that decision shall be placed in the person's medical record.
(A) Medication may not be used as punishment, for the convenience of staff, as a substitute for a treatment program or in quantities that interfere with a person's treatment program.
(B) A person will have the right to have explained the nature of all medications prescribed, the reason for the prescription and the most common side effects and, if requested, the nature of any other treatments ordered.
(6) To be subjected to restraint, seclusion, emergency lockdown, individual person management plan, or any combination thereof, only as provided in this subsection.
(A) Restraints, seclusion, or both, may be used in the following circumstances:
(i) If it is determined by medical staff to be necessary to prevent immediate substantial bodily injury to the person or others and that other alternative methods to prevent such injury are not sufficient to accomplish this purpose. When used, the extent of the restraint or seclusion applied to the person shall be the least restrictive measure necessary to prevent such injury to the person or others, and the use of restraint or seclusion in a treatment facility shall not exceed three hours without medical reevaluation. When restraints or seclusion are applied, there shall be monitoring of the person's condition at a frequency determined by the treating physician or licensed psychologist, which shall be no less than once per each 30 minutes. The superintendent of the treatment facility or a physician or licensed psychologist shall sign a statement explaining the treatment necessity for the use of any restraint or seclusion and shall make such statement a part of the permanent treatment record of the person.
(ii) For security reasons during transport to or from the person's unit, including, but not limited to, transport to another treatment or health care facility, another secure facility or court. Any person committed or transferred to a hospital or other health care facility for medical care may be isolated for security reasons within a locked area.
(B) Emergency lockdown may be used in the following circumstances:
(i) When necessary as an emergency measure as needed for security purposes, to deal with an escape or attempted escape, the discovery of a dangerous weapon or explosive device in the unit or facility or the receipt of reliable information that a dangerous weapon or explosive device is in the unit or facility, to prevent or control a riot or the taking of a hostage or for the discovery of contraband or a unit-wide search. An emergency lockdown order may be authorized only by the superintendent of the facility or the superintendent's designee.
(ii) During a period of emergency lockdown, the status of each person shall be reviewed every 30 minutes to ensure the safety of the person, and each person who is locked in a room without a toilet shall be given an opportunity to use a toilet at least once every hour, or more frequently if medically indicated.
(iii) The facility shall have a written policy covering the use of emergency lockdown that ensures the safety of the individual is secured and that there is regular, frequent monitoring by trained staff to care for bodily needs as may be required.
(iv) An emergency lockdown order may only be in effect for the period of time needed to preserve order while dealing with the situation and may not be used as a substitute for adequate staffing.
(C) Individual person management plan may be used in any of the following situations:
(i) As needed when a person demonstrates or threatens substantial injury to others, and routine psychiatric methods have been ineffective or are unlikely to be effective in reducing such risk.
(ii) As needed for safety or security purposes, for the behavioral management in situations including, but not limited to:
(a) Dealing with an escape or attempted escape;
(b) the discovery of a dangerous weapon or explosive device in the unit or facility or the receipt of reliable information that a dangerous weapon or explosive device is in the unit or facility;
(c) preventing or controlling a riot;
(d) the taking of a hostage;
(e) the disruption of the therapeutic environment on the unit; or
(f) for the discovery of contraband.
(iii) The status of the person shall be reviewed every 30 minutes to ensure the safety of the person.
(D) Restraint, seclusion, emergency lockdown, individual person management plan, or any combination thereof, may be used in any other situation deemed necessary by treatment staff for the safety of a person or persons, facility staff or visitors. In all situations, restraint, seclusion, emergency lockdown, or individual person management plan shall never be used as a punishment or for the convenience of staff.
(E) A person may be locked or restricted in such person's room during the night shift if such person resides in a unit in which each room is equipped with a toilet and sink or, if a person does not have a toilet in the room, if such person is given an opportunity to use a toilet at least once every hour, or more frequently if medically indicated.
(7) To not be subject to such procedures as psychosurgery, electroshock therapy, experimental medication, aversion therapy or hazardous treatment procedures without the written consent of the person or the written consent of a parent or legal guardian, if such person is a minor or has a legal guardian provided that the guardian has obtained authority to consent to such from the court which has venue over the guardianship following a hearing held for that purpose.
(8) To individual religious worship within the facility if the person desires such an opportunity, as long as it complies with applicable laws and facility rules and policies. The provisions for worship shall be available to all persons on a nondiscriminatory basis. No individual may be coerced into engaging in any religious activities.
(9) To a humane psychological and physical environment within the hospital facilities. All facilities shall be designed to afford patients with comfort and safety, to promote dignity and ensure privacy. Facilities shall also be designed to make a positive contribution to the effective attainment of the treatment goals of the hospital.
(10) To confidentiality of all treatment records and, as permitted by other applicable state or federal laws, to inspect and, upon receipt of payment of reasonable costs, to receive a copy of such records. The head of any treatment facility or designee who has the records may refuse to disclose portions of such records if the head of the treatment facility or designee states in writing that such disclosure will likely be injurious to the welfare of the person.
(11) Except as otherwise provided, to not be filmed or taped, unless the person signs an informed and voluntary consent that specifically authorizes a named individual or group to film or tape the person for a particular purpose or project during a specified time period. The person may specify in such consent periods during which, or situations in which, the person may not be filmed or taped. If a person is legally incompetent, such consent shall be granted on behalf of the person by the person's guardian. A person may be filmed or taped for security purposes without the person's consent.
(12) To be informed in writing upon or at a reasonable time after admission, of any liability that the patient or any of the patient's relatives may have for the cost of the patient's care and treatment and of the right to receive information about charges for care and treatment services.
(13) To be treated with respect and recognition of the patient's dignity and individuality by all employees of the treatment facility.
(14) To send and receive sealed mail to or from legal counsel, the courts, the secretary for aging and disability services, the superintendent of the treatment facility, the agency designated as the developmental disabilities protection and advocacy agency pursuant to P.L. 94-103, as amended, private physicians and licensed psychologists. A person who is indigent may have reasonable access to letter-writing materials.
(15) To send and receive mail with reasonable limitations. A person's mail is subject to physical examination and inspection for contraband, as defined by facility rules and policies.
(A) An officer or employee of the facility at which the person is placed may delay delivery of the mail to the person for a reasonable period of time to verify whether the mail contains contraband, as defined by facility rules and policies, or whether the person named as the sender actually sent the mail. If contraband is found, such contraband may be returned to the sender or confiscated by the facility. If the officer or staff member cannot determine whether the person named as the sender actually sent the mail, the officer or staff member may return the mail to the sender along with notice of the facility mail policy.
(B) The superintendent of the facility or the superintendent's designee may, in accordance with the standards and the procedure under subsection (c), authorize a member of the facility treatment staff to read the mail, if the superintendent or the superintendent's designee has reason to believe that the mail could pose a threat to security at the facility or seriously interfere with the treatment, rights, or safety of the person or others.
(C) A person may not receive through the mail any sexually explicit materials, items that are considered contraband, as defined by facility rules and policies, or items deemed to jeopardize the person's individual treatment, another person's treatment or the therapeutic environment of the facility.
(16) Reasonable access to a telephone to make and receive telephone calls within reasonable limits.
(17) To wear and use such person's own clothing and toilet articles, as long as such wear and use complies with facility rules and policies, or to be furnished with an adequate allowance of clothes if none are available.
(18) To possess personal property in a reasonable amount, as long as the property complies with state laws and facility rules and policies, and be provided a reasonable amount of individual storage space pursuant to facility rules and policies. In no event shall a person be allowed to possess or store contraband.
(19) Reasonable protection of privacy in such matters as toileting and bathing.
(20) To see a reasonable number of visitors who do not pose a threat to the safety and security or therapeutic climate of the person, other persons, visitors or the facility.
(21) To present grievances under the procedures established by each facility on the person's own behalf.
(22) To spend such person's money as such person chooses with reasonable limitations, except under the following circumstances: (A) When restricted by facility rules and policies; or (B) to the extent that authority over the money is held by another, including the parent of a minor, a court-appointed guardian of the person's estate or a representative payee. A treatment facility may, as a part of its security procedures, use a trust account in lieu of currency that is held by a person, and may establish reasonable policies governing account transactions.
(c) (1) A person's rights under subsections (b)(15) to (b)(22) may be denied for cause by the superintendent of the facility or the superintendent's designee, or when medically or therapeutically contraindicated as documented by the person's physician, licensed psychologist or licensed master's level psychologist in the person's treatment record. The individual shall be informed in writing of the grounds for withdrawal of the right and shall have the opportunity for a review of the withdrawal of the right in an informal hearing before the superintendent of the facility or the superintendent's designee. There shall be documentation of the grounds for withdrawal of rights in the person's treatment record.
(2) Notwithstanding subsection (c)(1), when the facility makes an administrative decision that applies equally to all persons and there is a legitimate governmental reason for the decision, notice of the decision is all that is required.
(d) The secretary for aging and disability services shall establish procedures to assure protection of persons' rights guaranteed under this section.
(e) No person may intentionally retaliate or discriminate against any person or employee for contacting or providing information to any state official or to an employee of any state protection and advocacy agency, or for initiating, participating in, or testifying in a grievance procedure or in an action for any remedy authorized under this section.
(f) (1) Proceedings under this section or any other appeal concerning an action by the Kansas department for aging and disability services shall be governed under the Kansas administrative procedure act and the Kansas judicial review act. A person appealing any alleged violations of this section or any other agency determination shall exhaust all administrative remedies available through the Larned state hospital, including the sexual predator treatment program, before having any right to request a hearing under the Kansas administrative procedure act.
(2) A final agency determination shall include notice of the right to appeal such determination only to the office of administrative hearings. Within 30 days after service of a final agency determination and the notice of right to appeal, the appellant may file a request for hearing in writing with the office of administrative hearings for a review of that determination. Any request for hearing must be accompanied by a copy of the final agency determination, including all documentation submitted through Larned state hospital and all agency responses. Failure to timely request a hearing constitutes a waiver of the right to any review. The request shall be examined by the presiding officer assigned. If the appellant seeks to challenge the final agency determination on any grounds other than material facts in controversy or agency violation of a relevant rule, regulation or statute, the appellant shall express such allegations with particularity within the request for hearing. If it plainly appears from the face of the request and accompanying final agency determination that the appellant failed to state a claim on which relief could be granted, or the appellant failed to demonstrate exhaustion, the request shall be dismissed. The burden shall be on the appellant to prove by a preponderance of the evidence that the agency action violated a specific rule, regulation or statute. If the request for hearing does not allege a violation of a specific rule, regulation or statute, the burden shall be on the appellant to prove by a preponderance of the evidence that the agency had no legitimate government interest in taking such action. Any dispositive ruling of the hearing officer assigned by the office of administrative hearings shall be deemed an initial order under the Kansas administrative procedure act.
(3) The person shall participate by telephone or other electronic means at any hearing before the office of administrative hearings or any proceeding under the Kansas judicial review act, unless the presiding officer or court determines that the interests of justice require an in-person proceeding. Notwithstanding K.S.A. 77-609, and amendments thereto, if an in-person proceeding is necessary, such proceeding shall be conducted at the place where the person is committed.
(4) Except as otherwise provided in the Kansas sexually violent predator act and notwithstanding K.S.A. 77-609, and amendments thereto, venue shall be in Pawnee county, Kansas, for all proceedings brought pursuant to the Kansas judicial review act.

Legislative History

L. 2007, ch. 170, § 1; L. 2014, ch. 115, § 217; L. 2015, ch. 95, § 11; L. 2018, ch. 94, § 6; July 1.