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HOUSE BILL No. 2557
AN ACT concerning children and minors; relating to the adoption and placement of a child
among states; enacting the interstate compact for the placement of children; declaring
legislative findings for the enactment of the compact; authorizing the administration
and implementation of such compact; allowing for supplementary or financial
agreements; requiring compliance with the compact and imposing a penalty for
noncompliance; repealing K.S.A. 38-1201, 38-1202, 38-1203, 38-1204, 38-1205 and
38-1206.
Be it enacted by the Legislature of the State of Kansas:
Section 1. (a) It is hereby found and declared:
(1) That finding suitable homes for children who have lost or
never had homes requires the full attention and resources of the state of
Kansas;
(2) that the needs of children and adults cannot be met by
restricting child placement services and supervision to the state of
Kansas;
(3) that would-be parents and children have a need for love,
security and fulfillment that can be met only when children in need of
placement are matched with adults who can care for them; and
(4) a variety of circumstances makes interstate placements of
children essential and offers compelling reasons for an interstate
compact under which the jurisdictional, administrative and human
rights and obligations involved can be protected.
(b) It shall be the policy of this state, in adopting the interstate
compact for the placement of children, to cooperate fully with other
states in providing that no children shall be sent or brought into any
other party state for placement in foster care or as a preliminary to a
possible adoption unless the sending state complies with each and
every requirement in this interstate compact.
Sec. 2. INTERSTATE COMPACT FOR THE PLACEMENT OF
CHILDREN
The contracting states solemnly agree that:
ARTICLE I. Purpose and Policy.
The purpose of this interstate compact for the placement of children
is to:
(a) Provide a process through which children subject to this
compact are placed in safe and suitable homes in a timely manner.
(b) Facilitate ongoing supervision of a placement, the delivery of
services and communication between the states.
(c) Provide operating procedures that will ensure that children are
placed in safe and suitable homes in a timely manner.
(d) Provide for the promulgation and enforcement of
administrative rules implementing the provisions of this compact and
regulating the covered activities of the member states.
(e) Provide for uniform data collection and information sharing
between member states under this compact.
(f) Promote coordination between this compact, the interstate
compact for juveniles, the interstate compact on adoption and medical
assistance and other compacts affecting the placement of and that
provide services to children otherwise subject to this compact.
(g) Provide for a state's continuing legal jurisdiction and
responsibility for placement and care of a child that it would have had
if the placement were intrastate.
(h) Provide for the promulgation of guidelines, in collaboration
with Indian tribes, for interstate cases involving Indian children as is or
may be permitted by federal law.
ARTICLE II. Definitions.
As used in this compact:
(a) "Approved placement" means the public child placing agency
in the receiving state that has determined that the placement is both safe
and suitable for the child.
(b) "Assessment" means an evaluation of a prospective placement
HOUSE BILL No. 2557—page 2
by a public child placing agency in the receiving state to determine if
the placement meets the individualized needs of the child, including,
but not limited to, the child's safety and stability, health and well-being
and mental, emotional and physical development. An assessment is
only applicable to a placement by a public child placing agency.
(c) "Child" means an individual who has not attained the age of
18.
(d) "Certification" means to attest, declare or swear to before a
judge or notary public.
(e) "Default" means the failure of a member state to perform the
obligations or responsibilities imposed upon it by this compact, the
bylaws or rules of the interstate commission.
(f) "Home study" means an evaluation of a home environment
conducted in accordance with the applicable requirements of the state
where the home is located, and documents the preparation and the
suitability of the placement resource for placement of a child in
accordance with the laws and requirements of the state where the home
is located.
(g) "Indian tribe" means any Indian tribe, band, nation or other
organized group or community of Indians recognized as eligible for
services provided to Indians by the U.S. secretary of the interior
because of their status as Indians, including any Alaskan native village
as defined in section 3(c) of the Alaska native claims settlement act, 43
U.S.C. §1602(c).
(h) "Interstate commission for the placement of children" means
the commission that is created under article VIII of this compact and is
generally referred to as the interstate commission.
(i) "Jurisdiction" means the power and authority of a court to hear
and decide matters.
(j) "Legal risk placement" and "legal risk adoption" mean a
placement made preliminary to an adoption where the prospective
adoptive parents acknowledge in writing that a child can be ordered to
return to the sending state or the birth mother's state of residence, if
different from the sending state, and a final decree of adoption shall not
be entered in any jurisdiction until all required consents are obtained or
are dispensed with in accordance with applicable law.
(k) "Member state" means a state that has enacted this compact.
(l) "Noncustodial parent" means a person who, at the time of the
commencement of court proceedings in the sending state, does not have
sole legal custody of the child or has joint legal custody of a child, and
who is not the subject of allegations or findings of child abuse or
neglect.
(m) "Nonmember state" means a state that has not enacted this
compact.
(n) "Notice of residential placement" means information regarding
a placement into a residential facility provided to the receiving state,
including, but not limited to, the name, date and place of birth of the
child, the identity and address of the parent or legal guardian, evidence
of authority to make the placement and the name and address of the
facility where the child will be placed. Notice of residential placement
shall also include information regarding a discharge and any
unauthorized absence from the facility.
(o) "Placement" means the act by a public or private child placing
agency intended to arrange for the care or custody of a child in another
state.
(p) "Private child placing agency" means any private corporation,
agency, foundation, institution or charitable organization or any private
person or attorney that facilitates, causes or is involved in the
placement of a child from one state to another and that is not an
instrumentality of the state or acting under color of state law.
(q) "Provisional placement" means a determination made by the
public child placing agency in the receiving state that the proposed
placement is safe and suitable, and, to the extent allowable, the
receiving state has temporarily waived its standards or requirements
HOUSE BILL No. 2557—page 3
otherwise applicable to prospective foster or adoptive parents so as to
not delay the placement. Completion of the receiving state
requirements regarding training for prospective foster or adoptive
parents shall not delay an otherwise safe and suitable placement.
(r) "Public child placing agency" means any government child
welfare agency or child protection agency or a private entity under
contract with such an agency, regardless of whether they act on behalf
of a state, county, municipality or other governmental unit and that
facilitates, causes or is involved in the placement of a child from one
state to another.
(s) "Receiving state" means the state to where a child is sent,
brought or caused to be sent or brought.
(t) "Relative" means someone who is related to the child as a
parent, stepparent, sibling by half or whole blood or by adoption,
grandparent, aunt, uncle or first cousin or a nonrelative with such
significant ties to the child that they may be regarded as relatives as
determined by the court in the sending state.
(u) "Residential facility" means a facility providing a level of care
that is sufficient to substitute for parental responsibility or foster care,
and is beyond what is needed for assessment or treatment of an acute
condition. For purposes of the compact, "residential facility" does not
include institutions primarily educational in character, hospitals or
other medical facilities.
(v) "Rule" means a written directive, mandate, standard or
principle issued by the interstate commission promulgated pursuant to
article XI of this compact that is of general applicability and that
implements, interprets or prescribes a policy or provision of the
compact. "Rule" has the force and effect of an administrative rule in a
member state, and includes the amendment, repeal or suspension of an
existing rule.
(w) "Sending state" means the state from where the placement of a
child is initiated.
(x) "Service member's permanent duty station" means the military
installation where an active duty armed services member is currently
assigned and is physically located under competent orders that do not
specify the duty as temporary.
(y) "Service member's state of legal residence" means the state
where the active duty armed services member is considered a resident
for tax and voting purposes.
(z) "State" means a state of the United States, the District of
Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, the Northern Marianas Islands and any other territory of the
United States.
(aa) "State court" means a judicial body of a state that is vested by
law with responsibility for adjudicating cases involving abuse, neglect,
deprivation, delinquency or status offenses of individuals who have not
attained the age of 18.
(bb) "Supervision" means monitoring provided by the receiving
state once a child has been placed in a receiving state pursuant to this
compact.
ARTICLE III. Applicability.
(a) Except as otherwise provided in subsection (b) of article III,
this compact shall apply to:
(1) The interstate placement of a child subject to ongoing court
jurisdiction in the sending state, due to allegations or findings that the
child has been abused, neglected or deprived as defined by the laws of
the sending state, provided, however, that the placement of such a child
into a residential facility shall only require notice of residential
placement to the receiving state prior to placement.
(2) The interstate placement of a child adjudicated delinquent or
unmanageable based on the laws of the sending state and subject to
ongoing court jurisdiction of the sending state if:
(A) The child is being placed in a residential facility in another
HOUSE BILL No. 2557—page 4
member state and is not covered under another compact; or
(B) the child is being placed in another member state and the
determination of safety and suitability of the placement and services
required is not provided through another compact.
(3) The interstate placement of any child by a public child placing
agency or private child placing agency as defined in this compact as a
preliminary step to a possible adoption.
(b) The provisions of this compact shall not apply to:
(1) The interstate placement of a child in a custody proceeding
when a public child placing agency is not a party, provided that the
placement is not intended to effectuate an adoption.
(2) The interstate placement of a child with a nonrelative in a
receiving state by a parent with the legal authority to make such a
placement provided, however, that the placement is not intended to
effectuate an adoption.
(3) The interstate placement of a child by one relative with the
lawful authority to make such a placement directly with a relative in a
receiving state.
(4) The placement of a child, not subject to subsection (a) of
article III, into a residential facility by their parent.
(5) The placement of a child with a noncustodial parent provided
that:
(A) The noncustodial parent proves to the satisfaction of a court in
the sending state a substantial relationship with the child; and
(B) the court in the sending state makes a written finding that
placement with the noncustodial parent is in the best interests of the
child; and
(C) the court in the sending state dismisses its jurisdiction in
interstate placements when the public child placing agency is a party to
the proceeding.
(6) A child entering the United States from a foreign country for
the purpose of adoption or leaving the United States to go to a foreign
country for the purpose of adoption in that country.
(7) Cases when a U.S. citizen child living overseas with their
family, at least one of whom is in the U.S. armed services, and who is
stationed overseas, is removed and placed in a state.
(8) The sending of a child by a public child placing agency or a
private child placing agency for a visit as defined by the rules of the
interstate commission.
(c) For purposes of determining the applicability of this compact
to the placement of a child with a family in the armed services, the
public child placing agency or private child placing agency may choose
the state of the service member's permanent duty station or the service
member's declared legal residence.
(d) Nothing in this compact shall be construed to prohibit the
concurrent application of the provisions of this compact with other
applicable interstate compacts including the interstate compact for
juveniles and the interstate compact on adoption and medical
assistance. The interstate commission may, in cooperation with other
interstate compact commissions having responsibility for the interstate
movement, placement or transfer of children, promulgate like rules to
ensure the coordination of services, timely placement of children and
the reduction of unnecessary or duplicative administrative or
procedural requirements.
ARTICLE IV . Jurisdiction.
(a) Except as provided in subsection (h) of article IV and
subsection (b)(2) and (b)(3) of article V concerning private and
independent adoptions, and in interstate placements when the public
child placing agency is not a party to a custody proceeding, the sending
state shall retain jurisdiction over a child with respect to all matters of
custody and disposition of the child that it would have had if the child
had remained in the sending state. Such jurisdiction shall also include
the power to order the return of the child to the sending state.
HOUSE BILL No. 2557—page 5
(b) When an issue of child protection or custody is brought before
a court in the receiving state, such court shall confer with the court of
the sending state to determine the most appropriate forum for
adjudication.
(c) In cases that are before courts and subject to this compact, the
taking of testimony for hearings before any judicial officer may occur
in person or by telephone, audio-video conference or such other means
as approved by the rules of the interstate commission and judicial
officers may communicate with other judicial officers and persons
involved in the interstate process as may be permitted by their canons
of judicial conduct and any rules promulgated by the interstate
commission.
(d) In accordance with its own laws, the court in the sending state
shall have authority to terminate its jurisdiction if:
(1) The child is reunified with the parent in the receiving state
who is the subject of allegations or findings of abuse or neglect, only
with the concurrence of the public child placing agency in the receiving
state;
(2) the child is adopted;
(3) the child reaches the age of majority under the laws of the
sending state;
(4) the child achieves legal independence pursuant to the laws of
the sending state;
(5) a guardianship is created by a court in the receiving state with
the concurrence of the court in the sending state;
(6) an Indian tribe has petitioned for and received jurisdiction
from the court in the sending state; or
(7) the public child placing agency of the sending state requests
termination and has obtained the concurrence of the public child
placing agency in the receiving the state.
(e) When a sending state court terminates its jurisdiction, the
receiving state child placing agency shall be notified.
(f) Nothing in this article shall defeat a claim of jurisdiction by a
receiving state court sufficient to deal with an act of truancy,
delinquency, crime or behavior involving a child as defined by the laws
of the receiving state committed by the child in the receiving state that
would be a violation of its laws.
(g) Nothing in this article shall limit the receiving state's ability to
take emergency jurisdiction for the protection of the child.
(h) The substantive laws of the state where an adoption will be
finalized shall solely govern all issues relating to the adoption of the
child and the court where the adoption proceeding is filed shall have
subject matter jurisdiction regarding all substantive issues relating to
the adoption, except:
(1) When the child is a ward of another court that established
jurisdiction over the child prior to the placement;
(2) when the child is in the legal custody of a public agency in the
sending state; or
(3) when a court in the sending state has otherwise appropriately
assumed jurisdiction over the child, prior to the submission of the
request for approval of placement.
(i) A final decree of adoption shall not be entered in any
jurisdiction until the placement is authorized as an approved placement
by the public child placing agency in the receiving state.
ARTICLE V . Placement Evaluation.
(a) Prior to sending, bringing or causing a child to be sent or
brought into a receiving state, the public child placing agency shall
provide a written request for assessment to the receiving state.
(b) For placements by a private child placing agency, a child may
be sent or brought or caused to be sent or brought, into a receiving
state, upon receipt and immediate review of the required content in a
request for approval of a placement in both the sending and receiving
state public child placing agency. The required content to accompany a
HOUSE BILL No. 2557—page 6
request for approval shall include all of the following:
(1) A request for approval identifying the child, birth parent(s), the
prospective adoptive parent(s) and the supervising agency, signed by
the person requesting approval;
(2) the appropriate consents or relinquishments signed by the birth
parents in accordance with the laws of the sending state, or where
permitted the laws of the state where the adoption will be finalized;
(3) certification by a licensed attorney or authorized agent of a
private adoption agency that the consent or relinquishment is in
compliance with the applicable laws of the sending state, or where
permitted the laws of the state where finalization of the adoption will
occur;
(4) a home study; and
(5) an acknowledgment of legal risk signed by the prospective
adoptive parents.
(c) The sending state and the receiving state may request
additional information or documents prior to finalization of an
approved placement, but they shall not delay travel by the prospective
adoptive parents with the child if the required content for approval has
been submitted, received and reviewed by the public child placing
agency in both the sending state and the receiving state.
(d) Approval from the public child placing agency in the receiving
state for a provisional or approved placement is required as provided
for in the rules of the interstate commission.
(e) The procedures for making and the request for an assessment
shall contain all information and be in such form as provided for in the
rules of the interstate commission.
(f) Upon receipt of a request from the public child placing agency
of the sending state, the receiving state shall initiate an assessment of
the proposed placement to determine its safety and suitability. If the
proposed placement is a placement with a relative, the public child
placing agency of the sending state may request a determination for a
provisional placement.
(g) The public child placing agency in the receiving state may
request from the public child placing agency or the private child
placing agency in the sending state, and shall be entitled to receive
supporting or additional information necessary to complete the
assessment or approve the placement.
(h) The public child placing agency in the receiving state shall
approve a provisional placement and complete or arrange for the
completion of the assessment within the timeframes established by the
rules of the interstate commission.
(i) For a placement by a private child placing agency, the sending
state shall not impose any additional requirements to complete the
home study that are not required by the receiving state, unless the
adoption is finalized in the sending state.
(j) The interstate commission may develop uniform standards for
the assessment of the safety and suitability of interstate placements.
ARTICLE VI. Placement Authority.
(a) Except as otherwise provided in this compact, no child subject
to this compact shall be placed into a receiving state until approval for
such placement is obtained.
(b) If the public child placing agency in the receiving state does
not approve the proposed placement then the child shall not be placed.
The receiving state shall provide written documentation of any such
determination in accordance with the rules promulgated by the
interstate commission. Such determination is not subject to judicial
review in the sending state.
(c) If the proposed placement is not approved, any interested party
shall have standing to seek an administrative review of the receiving
state's determination.
(1) The administrative review and any further judicial review
associated with the determination shall be conducted in the receiving
HOUSE BILL No. 2557—page 7
state pursuant to its applicable administrative procedures act.
(2) If a determination not to approve the placement of the child in
the receiving state is overturned upon review, the placement shall be
deemed approved, provided however that all administrative or judicial
remedies have been exhausted or the time for such remedies has
passed.
ARTICLE VII. Placing Agency Responsibility.
(a) For the interstate placement of a child made by a public child
placing agency or state court:
(1) The public child placing agency in the sending state shall have
financial responsibility for:
(A) The ongoing support and maintenance for the child during the
period of the placement, unless otherwise provided for in the receiving
state; and
(B) as determined by the public child placing agency in the
sending state, services for the child beyond the public services that the
child is eligible in the receiving state.
(2) The receiving state shall only have financial responsibility for:
(A) Any assessment conducted by the receiving state; and
(B) supervision conducted by the receiving state at the level
necessary to support the placement as agreed upon by the public child
placing agencies of the receiving and sending state.
(3) Nothing in this provision shall prohibit public child placing
agencies in the sending state from entering into agreements with
licensed agencies or persons in the receiving state to conduct
assessments and provide supervision.
(b) For the placement of a child by a private child placing agency
preliminary to a possible adoption, the private child placing agency
shall be:
(1) Legally responsible for the child during the period of
placement as provided for in the law of the sending state until the
finalization of the adoption.
(2) Financially responsible for the child absent a contractual
agreement to the contrary.
(c) The public child placing agency in the receiving state shall
provide timely assessments, as provided for in the rules of the interstate
commission.
(d) The public child placing agency in the receiving state shall
provide, or arrange for the provision of, supervision and services for
the child, including timely reports, during the period of the placement.
(e) Nothing in this compact shall be construed as to limit the
authority of the public child placing agency in the receiving state from
contracting with a licensed agency or person in the receiving state for
an assessment or the provision of supervision or services for the child
or otherwise authorizing the provision of supervision or services by a
licensed agency during the period of placement.
(f) Each member state shall provide for coordination among its
branches of government concerning the state's participation in, and
compliance with, the compact and interstate commission activities,
through the creation of an advisory council or use of an existing body
or board.
(g) Each member state shall establish a central state compact
office that shall be responsible for state compliance with the compact
and the rules of the interstate commission.
(h) The public child placing agency in the sending state shall
oversee compliance with the provisions of the Indian child welfare act,
25 U.S.C. 1901 et seq., for placements subject to the provisions of this
compact, prior to placement.
(i) With the consent of the interstate commission, states may enter
into limited agreements that facilitate the timely assessment and
provision of services and supervision of placements under this
compact.
HOUSE BILL No. 2557—page 8
ARTICLE VIII.
Interstate Commission for the Placement of Children.
The member states hereby establish, by way of this compact, a
commission known as the interstate commission for the placement of
children. The activities of the interstate commission are the formation
of public policy and are a discretionary state function. The interstate
commission shall:
(a) Be a joint commission of the member states and shall have the
responsibilities, powers and duties set forth herein, and such additional
powers as may be conferred upon it by subsequent concurrent action of
the respective legislatures of the member states.
(b) Consist of one commissioner from each member state who
shall be appointed by the executive head of the state human services
administration with ultimate responsibility for the child welfare
program. The appointed commissioner shall have the legal authority to
vote on policy related matters governed by this compact binding the
state.
(1) Each member state represented at a meeting of the interstate
commission is entitled to one vote.
(2) A majority of the member states shall constitute a quorum for
the transaction of business, unless a larger quorum is required by the
bylaws of the interstate commission.
(3) A representative shall not delegate a vote to another member
state.
(4) A representative may delegate voting authority to another
person from their state for a specified meeting.
(c) In addition to the commissioners of each member state, the
interstate commission shall include persons who are members of
interested organizations as defined in the bylaws or rules of the
interstate commission. Such members shall be ex officio and shall not
be entitled to vote on any matter before the interstate commission.
(d) Establish an executive committee that shall have the authority
to administer the day-to-day operations and administration of the
interstate commission. It shall not have the power to engage in
rulemaking.
ARTICLE IX.
Powers and Duties of the Interstate Commission.
The interstate commission shall have the following powers:
(a) To promulgate rules and take all necessary actions to effect the
goals, purposes and obligations as enumerated in this compact.
(b) To provide for dispute resolution among member states.
(c) To issue, upon request of a member state, advisory opinions
concerning the meaning or interpretation of the interstate compact, its
bylaws, rules or actions.
(d) To enforce compliance with this compact or the bylaws or
rules of the interstate commission pursuant to article XII.
(e) Collect standardized data concerning the interstate placement
of children subject to this compact as directed through its rules that
shall specify the data to be collected, the means of collection and data
exchange and reporting requirements.
(f) To establish and maintain offices as may be necessary for the
transacting of its business.
(g) To purchase and maintain insurance and bonds.
(h) To hire or contract for services of personnel or consultants as
necessary to carry out its functions under the compact and establish
personnel qualification policies, and rates of compensation.
(i) To establish and appoint committees and officers, including,
but not limited to, an executive committee as required by article X.
HOUSE BILL No. 2557—page 9
(j) To accept any and all donations and grants of money,
equipment, supplies, materials and services and to receive, utilize and
dispose thereof.
(k) To lease, purchase, accept contributions or donations of, or
otherwise to own, hold, improve or use any property, real, personal or
mixed.
(l) To sell, convey, mortgage, pledge, lease, exchange, abandon, or
otherwise dispose of any property, real, personal or mixed.
(m) To establish a budget and make expenditures.
(n) To adopt a seal and bylaws governing the management and
operation of the interstate commission.
(o) To report annually to the legislatures, governors, the judiciary
and state advisory councils of the member states concerning the
activities of the interstate commission during the preceding year. Such
reports shall also include any recommendations that may have been
adopted by the interstate commission.
(p) To coordinate and provide education, training and public
awareness regarding the interstate movement of children for officials
involved in such activity.
(q) To maintain books and records in accordance with the bylaws
of the interstate commission.
(r) To perform such functions as may be necessary or appropriate
to achieve the purposes of this compact.
ARTICLE X.
Organization and Operation of the Interstate Commission.
(a) Bylaws.
(1) Within 12 months after the first interstate commission meeting,
the interstate commission shall adopt bylaws to govern its conduct as
may be necessary or appropriate to carry out the purposes of the
compact.
(2) The interstate commission's bylaws and rules shall establish
conditions and procedures under which the interstate commission shall
make its information and official records available to the public for
inspection or copying. The interstate commission may exempt from
disclosure information or official records to the extent they would
adversely affect personal privacy rights or proprietary interests.
(b) Meetings.
(1) The interstate commission shall meet at least once each
calendar year. The chairperson may call additional meetings and, upon
the request of a simple majority of the member states shall call
additional meetings.
(2) Public notice shall be given by the interstate commission of all
meetings and all meetings shall be open to the public, except as set
forth in the rules or as otherwise provided in the compact. The
interstate commission and its committees may close a meeting, or a
portion thereof, when it determines by a 2/3 vote that an open meeting
would be likely to:
(A) Relate solely to the interstate commission's internal personnel
practices and procedures;
(B) disclose matters specifically exempted from disclosure by
federal law;
(C) disclose financial or commercial information that is
privileged, proprietary or confidential in nature;
(D) involve accusing a person of a crime or formally censuring a
person;
(E) disclose information of a personal nature when disclosure
would constitute a clearly unwarranted invasion of personal privacy or
physically endanger one or more persons;
(F) disclose investigative records compiled for law enforcement
purposes; or
(G) specifically relate to the interstate commission's participation
HOUSE BILL No. 2557—page 10
in a civil action or other legal proceeding.
(3) For a meeting, or a portion of a meeting, closed pursuant to
this provision, the interstate commission's legal counsel or designee
shall certify that the meeting may be closed and shall reference each
relevant exemption provision. The interstate commission shall keep
minutes that shall fully and clearly describe all matters discussed in a
meeting and shall provide a full and accurate summary of actions taken,
and the reasons therefore, including a description of the views
expressed and the record of a roll call vote. All documents considered
in connection with an action shall be identified in such minutes. All
minutes and documents of a closed meeting shall remain under seal,
subject to release by a majority vote of the interstate commission or by
court order.
(4) The bylaws may provide for meetings of the interstate
commission to be conducted by telecommunication or other electronic
communication.
(c) Officers and staff.
(1) The interstate commission may, through its executive
committee, appoint or retain a staff director for such period, upon such
terms and conditions and for such compensation as the interstate
commission may deem appropriate. The staff director shall serve as
secretary to the interstate commission, but shall not have a vote. The
staff director may hire and supervise such other staff as may be
authorized by the interstate commission.
(2) The interstate commission shall elect, from among its
members, a chairperson and a vice chairperson of the executive
committee and other necessary officers, each of whom shall have such
authority and duties as may be specified in the bylaws.
(d) Qualified immunity, defense and indemnification.
(1) The interstate commission's staff director and its employees
shall be immune from suit and liability, either personally or in their
official capacity, for a claim for damage to or loss of property or
personal injury or other civil liability caused or arising out of or
relating to an actual or alleged act, error or omission that occurred, or
that such person had a reasonable basis for believing occurred within
the scope of commission employment, duties or responsibilities,
provided, that such person shall not be protected from suit or liability
for damage, loss, injury, or liability caused by a criminal act or the
intentional or willful and wanton misconduct of such person.
(A) The liability of the interstate commission's staff director and
employees or interstate commission representatives, acting within the
scope of such person's employment or duties for acts, errors or
omissions occurring within such person's state shall not exceed the
limits of liability set forth under the constitution and laws of that state
for state officials, employees and agents. The interstate commission is
considered to be an instrumentality of the states for the purposes of any
such action. Nothing in this subsection shall be construed to protect
such person from suit or liability for damage, loss, injury or liability
caused by a criminal act or the intentional or willful and wanton
misconduct of such person.
(B) The interstate commission shall defend the staff director and
its employees and, subject to the approval of the attorney general or
other appropriate legal counsel of the member state shall defend the
commissioner of a member state in a civil action seeking to impose
liability arising out of an actual or alleged act, error or omission that
occurred within the scope of interstate commission employment, duties
or responsibilities, or that the defendant had a reasonable basis for
believing occurred within the scope of interstate commission
employment, duties or responsibilities, provided that the actual or
alleged act, error or omission did not result from intentional or willful
and wanton misconduct on the part of such person.
(C) To the extent not covered by the state involved, member state
or the interstate commission, the representatives or employees of the
interstate commission shall be held harmless in the amount of a
HOUSE BILL No. 2557—page 11
settlement or judgment, including attorney fees and costs, obtained
against such persons arising out of an actual or alleged act, error or
omission that occurred within the scope of interstate commission
employment, duties or responsibilities, or that such persons had a
reasonable basis for believing occurred within the scope of interstate
commission employment, duties or responsibilities, provided that the
actual or alleged act, error or omission did not result from intentional or
willful and wanton misconduct on the part of such persons.
ARTICLE XI.
Rulemaking Functions of the Interstate Commission.
(a) The interstate commission shall promulgate and publish rules
in order to effectively and efficiently achieve the purposes of the
compact.
(b) Rulemaking shall occur pursuant to the criteria set forth in this
article and the bylaws and rules adopted pursuant thereto. Such
rulemaking shall substantially conform to the principles of the model
state administrative procedures act, 1981 act, uniform laws annotated,
volume 15, page 1 (2000) or such other administrative procedure acts
as the interstate commission deems appropriate consistent with due
process requirements under the United States constitution as now or
hereafter interpreted by the U. S. supreme court. All rules and
amendments shall become binding as of the date specified, as published
with the final version of the rule as approved by the interstate
commission.
(c) When promulgating a rule, the interstate commission shall, at a
minimum:
(1) Publish the proposed rule's entire text stating the reason or
reasons for that proposed rule;
(2) allow and invite any and all persons to submit written data,
facts, opinions and arguments, and such information shall be added to
the record, and be made publicly available; and
(3) promulgate a final rule and its effective date, if appropriate,
based on input from state or local officials, or interested parties.
(d) Rules promulgated by the interstate commission shall have the
force and effect of administrative rules and shall be binding in the
compacting states to the extent and in the manner provided for in this
compact.
(e) Not later than 60 days after a rule is promulgated, an interested
person may file a petition in the U.S. district court for the District of
Columbia or in the federal district court where the interstate
commission's principal office is located for judicial review of such rule.
If the court finds that the interstate commission's action is not
supported by substantial evidence in the rulemaking record, the court
shall hold the rule unlawful and set it aside.
(f) If a majority of the legislatures of the member states rejects a
rule, those states may by enactment of a statute or resolution in the
same manner used to adopt the compact cause that such rule shall have
no further force and effect in any member state.
(g) The existing rules governing the operation of the interstate
compact on the placement of children superseded by this act shall be
null and void not less than 12, but not more than 24 months after the
first meeting of the interstate commission created hereunder, as
determined by the members during the first meeting.
(h) Within the first 12 months of operation, the interstate
commission shall promulgate rules addressing the following:
(1) Transition rules;
(2) forms and procedures;
(3) time lines;
(4) data collection and reporting;
(5) rulemaking;
(6) visitation;
HOUSE BILL No. 2557—page 12
(7) progress reports and supervision;
(8) sharing of information and confidentiality;
(9) financing of the interstate commission;
(10) mediation, arbitration and dispute resolution;
(11) education, training and technical assistance;
(12) enforcement; and
(13) coordination with other interstate compacts.
(i) Upon determination by a majority of the members of the
interstate commission that an emergency exists:
(1) The interstate commission may promulgate an emergency rule
only if it is required to:
(A) Protect the children covered by this compact from an
imminent threat to their health, safety and well-being;
(B) prevent loss of federal or state funds; or
(C) meet a deadline for the promulgation of an administrative rule
required by federal law.
(2) An emergency rule shall become effective immediately upon
adoption, provided that the usual rulemaking procedures provided
hereunder shall be retroactively applied to such rule as soon as
reasonably possible, but no later than 90 days after the effective date of
the emergency rule.
(3) An emergency rule shall be promulgated as provided for in the
rules of the interstate commission.
ARTICLE XII.
Oversight, Dispute Resolution and Enforcement.
(a) Oversight.
(1) The interstate commission shall oversee the administration and
operation of the compact.
(2) The executive, legislative and judicial branches of state
government in each member state shall enforce this compact and the
rules of the interstate commission and shall take all actions necessary
and appropriate to effectuate the compact's purposes and intent. The
compact and its rules shall be binding in the compacting states to the
extent and in the manner provided for in this compact.
(3) All courts shall take judicial notice of the compact and the
rules in any judicial or administrative proceeding in a member state
pertaining to the subject matter of this compact.
(4) The interstate commission shall be entitled to receive service
of process in any action when the validity of a compact provision or
rule is the issue that a judicial determination has been sought and shall
have standing to intervene in any proceedings. Failure to provide
service of process to the interstate commission shall render any
judgment, order or other determination, however so captioned or
classified, void as to the interstate commission, this compact, its bylaws
or rules of the interstate commission.
(b) Dispute resolution.
(1) The interstate commission shall attempt, upon the request of a
member state, to resolve disputes that are subject to the compact and
may arise among member states and between member and nonmember
states.
(2) The interstate commission shall promulgate a rule providing
for both mediation and binding dispute resolution for disputes among
compacting states. The costs of such mediation or dispute resolution
shall be the responsibility of the parties to the dispute.
(c) Enforcement.
(1) If the interstate commission determines that a member state
has defaulted in the performance of its obligations or responsibilities
under this compact, its bylaws or rules, the interstate commission may:
(A) Provide remedial training and specific technical assistance;
(B) provide written notice to the defaulting state and other
member states, of the nature of the default and the means of curing the
HOUSE BILL No. 2557—page 13
default. The interstate commission shall specify the conditions that the
defaulting state shall cure its default;
(C) by majority vote of the members, initiate against a defaulting
member state legal action in the United State district court for the
District of Columbia or, at the discretion of the interstate commission,
in the federal district where the interstate commission has its principal
office, to enforce compliance with the provisions of the compact, its
bylaws or rules. The relief sought may include both injunctive relief
and damages. In the event judicial enforcement is necessary, the
prevailing party shall be awarded all costs of such litigation including
reasonable attorney fees; or
(D) avail itself of any other remedies available under state law or
the regulation of official or professional conduct.
ARTICLE XIII. Financing of the Commission.
(a) The interstate commission shall pay or provide for the payment
of the reasonable expenses of its establishment, organization and
ongoing activities.
(b) The interstate commission may levy on and collect an annual
assessment from each member state to cover the cost of the operations
and activities of the interstate commission and its staff shall be in a
total amount sufficient to cover the interstate commission's annual
budget as approved by its members each year. The aggregate annual
assessment amount shall be allocated based upon a formula to be
determined by the interstate commission who shall promulgate a rule
binding upon all member states.
(c) The interstate commission shall not incur obligations of any
kind prior to securing the funds adequate to meet the same, nor shall
the interstate commission pledge the credit of any of the member states,
except by and with the authority of the member state.
(d) The interstate commission shall keep accurate accounts of all
receipts and disbursements. The receipts and disbursements of the
interstate commission shall be subject to the audit and accounting
procedures established under its bylaws. However, all receipts and
disbursements of funds handled by the interstate commission shall be
audited yearly by a certified or licensed public accountant and the
report of the audit shall be included in and become part of the annual
report of the interstate commission.
ARTICLE XIV . Member States, Effective Date and
Amendment.
(a) Any state is eligible to become a member state.
(b) The compact shall become effective and binding upon
legislative enactment of the compact into law by not less than 35 states.
The effective date shall be the later of July 1, 2007, or upon enactment
of the compact into law by the 35 th state. Thereafter it shall become
effective and binding as to any other member state upon enactment of
the compact into law by that state. The executive heads of the state
human services administration with ultimate responsibility for the child
welfare program of nonmember states or their designees shall be
invited to participate in the activities of the interstate commission on a
nonvoting basis prior to adoption of the compact by all states.
(c) The interstate commission may propose amendments to the
compact for enactment by the member states. No amendment shall
become effective and binding on the member states unless and until it
is enacted into law by unanimous consent of the member states.
ARTICLE XV . Withdrawl and Dissolution.
(a) Withdrawal.
(1) Once effective, the compact shall continue in force and remain
binding upon each and every member state, provided that a member
state may withdraw from the compact specifically repealing the statute
that enacted the compact into law.
HOUSE BILL No. 2557—page 14
(2) Withdrawal from this compact shall be by the enactment of a
statute repealing the same. The effective date of withdrawal shall be the
effective date of the repeal of the statute.
(3) The withdrawing state shall immediately notify the president
of the interstate commission in writing upon the introduction of
legislation repealing this compact in the withdrawing state. The
interstate commission shall then notify the other member states of the
withdrawing state's intent to withdraw.
(4) The withdrawing state is responsible for all assessments,
obligations and liabilities incurred through the effective date of
withdrawal.
(5) Reinstatement following withdrawal of a member state shall
occur upon the withdrawing state reenacting the compact or upon such
later date as determined by the members of the interstate commission.
(b) Dissolution of compact.
(1) This compact shall dissolve effective upon the date of the
withdrawal or default of the member state that reduces the membership
in the compact to one member state.
(2) Upon the dissolution of this compact, the compact becomes
null and void and shall be of no further force or effect, and the business
and affairs of the interstate commission shall be concluded and surplus
funds shall be distributed in accordance with the bylaws.
ARTICLE XVI. Severability and Construction.
(a) The provisions of this compact shall be severable, and if any
phrase, clause, sentence or provision is deemed unenforceable, the
remaining provisions of the compact shall be enforceable.
(b) The provisions of this compact shall be liberally construed to
effectuate its purposes.
(c) Nothing in this compact shall be construed to prohibit the
concurrent applicability of other interstate compacts to which the states
are members.
ARTICLE XVII. Binding Effect of Compact and Other
Laws.
(a) Other laws. Nothing in this compact prevents the enforcement
of any other law of a member state that is not inconsistent with this
compact.
(b) Binding effect of the compact.
(1) All lawful actions of the interstate commission, including all
rules and bylaws promulgated by the interstate commission, are binding
upon the member states.
(2) All agreements between the interstate commission and the
member states are binding in accordance with their terms.
(3) In the event any provision of this compact exceeds the
constitutional limits imposed on the legislature of any member state,
such provision shall be ineffective to the extent of the conflict with the
constitutional provision in question in that member state.
ARTICLE XVIII. Indian Tribes.
Notwithstanding any other provision in this compact, the interstate
commission may promulgate guidelines to permit Indian tribes to
utilize the compact to achieve any or all of the purposes of the compact
as specified in article I. The interstate commission shall make
reasonable efforts to consult with Indian tribes in promulgating
guidelines to reflect the diverse circumstances of the various Indian
tribes.
Sec. 3. Pursuant to the interstate compact for the placement of
children as adopted by this state, the governor is hereby authorized and
empowered to designate an officer who shall be the compact
administrator. The compact administrator:
(a) Acting jointly with like officers of other party states, shall
adopt rules and regulations to effectively carry out the terms of the
HOUSE BILL No. 2557—page 15
compact;
(b) shall serve at the pleasure of the governor; and
(c) is authorized, empowered and directed to cooperate with all
departments, agencies and officers of and in the government of this
state and the government's subdivisions in facilitating the proper
administration of the compact or of any supplementary agreement or
agreements entered into by this state pursuant to sections 1 through 6,
and amendments thereto.
Sec. 4. (a) The compact administrator is authorized and
empowered to enter into supplementary agreements with appropriate
officials of other states pursuant to the compact.
(b) In the event that a supplementary agreement shall require or
contemplate the use of any institution or facility of this state or require
or contemplate the provision of any service by this state, the
supplementary agreement shall have no force or effect until approved
by the head of the department or agency under whose jurisdiction the
institution or facility is operated or whose department or agency will be
charged with the rendering of the service.
Sec. 5. The compact administrator, subject to the approval of the
state director of accounts and reports, may make or arrange for any
payments necessary to discharge any financial obligations imposed
upon this state by the compact or by any supplementary agreement
entered into pursuant to sections 1 through 6, and amendments thereto.
Sec. 6. (a) The courts, departments, agencies and officers of this
state and its subdivisions shall enforce this compact and do all things
appropriate to the effectuate the compact's purposes and intent that may
be within their respective jurisdictions.
(b) Failure to comply with the provisions of the interstate compact
for the placement of children by any professional providing services
related to the placement of children is a class C misdemeanor.
(c) As used in this section, "professional" means any person who
receives payment or compensation for providing services related to the
placement of children for adoption.
HOUSE BILL No. 2557—page 16
Sec. 7. K.S.A. 38-1201, 38-1202, 38-1203, 38-1204, 38-1205 and
38-1206 are hereby repealed.
Sec. 8. This act shall take effect and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the
HOUSE, and passed that body
Speaker of the House.
Chief Clerk of the House.
Passed the SENATE ______________________________________________________________________________
President of the Senate.
Secretary of the Senate.
APPROVED __________________________________________________________________________________________________
Governor.