AGO 1989-008.

• Case Date: February 02, 1989
• Court: Kansas

Kansas Attorney General Opinions 1989. AGO 1989-008. February 2, 1989ATTORNEY GENERAL OPINION NO. 89-8The Honorable Winston BartonSecretary Social and Rehabilitation Services Docking State Office Bldg. 6th Floor Topeka, Kansas 66612 Re: Mentally Ill, Incapacitated and Dependent Persons; Social Welfare--Reporting Abuse or Neglect of Certain Persons--Reporting Abuse or Neglect of Residents; Reporting Abuse, Neglect or Need of Protective Services; Contents of Report; Evaluation of Reports; Statewide RegisterAmendments to the U.S. Constitution--Rights and Immunities of Citizens--Privileges or Immunities; Due Process Clause Synopsis: K.S.A. 39-1401 et seq. confidentialityprovisions do not prohibit due process procedures, but such procedures are not absolutely mandated if the placement of a name on a list by the State Department of Social and Rehabilitation Services pursuant to K.S.A. 39-1401 et seq. does not threaten or cause the loss of a constitutionally protected interest in liberty or property. Cited herein: K.S.A. 38-1523 (Ensley 1986); 39-938; 39-1401; 39-1404; 39-1422; K.S.A.1988 Supp. 65-516; K.S.A. 65-3508; K.A.R. 30-51-1; U.S. Const., Amend. XIV. * * * Dear Secretary Barton: You request our opinion regarding K.S.A. 39-1401 et seq. and the need for notice and hearing on findings of abuse or neglect of adults. You are concerned that providing notice and hearing opportunity to a person listed as an abuser pursuant to this act may be contrary to disclosure restrictions. You believe that providing such procedures represents a futile remedy while creating a great burden and expense to both the alleged perpetrator and the agency. It is your position that, under K.S.A. 39-1401 et seq., a finding of abuse by the Department of Social and Rehabilitation Services (SRS) has no practical effect and that due process procedures set forth in Attorney General Opinion No. 86-163 should not be applicable to K.S.A. 39-1401 et seq. procedures because entry or non-entry of a name on the statewide register is not controlling as to decisions or actions taken by other state authorities. K.S.A. 39-1401 et seq. establish the procedures whereby suspected cases of adult abuse are reported and investigated. K.S.A. 39-1404 and 39-1422 set forth the duties of SRS with regard to investigation, evaluation and written findings. These procedures provide that the secretary shall maintain a statewide register of the reports received, the findings, evaluations and the actions recommended. This register is available for inspection by SRS personnel. Additionally, pursuant to K.S.A. 39-1404(b), when the alleged abuse involves a resident (as defined under K.S.A. 39-1401) a copy of the report of abuse or neglect is forwarded to the secretary of the Department of Health and Environment (KDHE) and in some cases to the secretary of the Department on Aging (KDOA). You also inform us that local law enforcement officers may be contacted. K.S.A. 39-1404(c) and 39-1422(d) state that neither the report nor the written evaluation of findings shall be deemed a public record. K.S.A. 39-1404(c) also states that "[n]o information contained in the statewide register shall be made available to the public in such a manner as to identify individuals." K.S.A. 39-1422(d) provides that "the name of of the person making the original report or any person mentioned in such report shall not be disclosed unless the person making the original report specifically requests or agrees in writing to such disclosure or unless an administrative or judicial proceeding results therefrom." (Emphasis added). These confidentiality provisions limit dissemination of certain information to the general public. You are concerned that notice and hearing...