Kansas Attorney General Opinion 2016-007

April 28, 2016
ATTORNEY GENERAL OPINION NO. 2016- 7
The Honorable Laura Kelly
State Senator, 18th District
State Capitol, 125-E
300 S.W. 10th Avenue
Topeka, Kansas 66612
The Honorable Marci Francisco
State Senator, 2nd District
State Capitol, 134-E
300 S.W. 10th Avenue
Topeka, Kansas 66612
The Honorable Terry Bruce
State Senator, 34th District
State Capitol, 330-E
300 S.W. 10th Avenue
Topeka, Kansas 66612
Re: 	Public Health—Home Health Agencies—Home Health Agencies Required
To Be Licensed
Public 	Health—Miscellaneous 	Provisions—Individuals 	In 	Need 	Of 	In-
Home Care; Definitions
Synopsis: 	A private or public agency or organization that provides only attendant
care services may provide such services without being licensed as a
home health agency under K.S.A. 65-5101, et seq. 	The conclusions
regarding 	whether 	an 	attendant 	must 	be 	licensed 	stated 	in 	Attorney
General Opinion No. 2002-49 are affirmed. 	Cited herein: 	K.S.A. 2015
Supp. 65-5101; K.S.A. 65-5102; K.S.A. 2015 Supp. 65-5112; K.S.A. 65-
5115, 65-6201.

Dear Senators Kelly, Francisco, and Bruce:
As the Senators for the Eighteenth, Second, and Thirty-fourth District, respectively, you
request our opinion on whether the Kansas Department of Health and Environment
(KDHE) may require providers of attendant care services to obtain a home health
agency license. For the reasons further discussed below, we believe that it may not.
Attendant Care Services
Your question uses the example of businesses that “provide [only] attendant care
services.” We assume in every instance those services are limited to “those basic and
ancillary services which enable an individual in need of in-home care to live in the
individual’s home and community rather than in an institution and to carry out functions
of daily living, self-care and mobility.” 1
“Basic services” include, but are not limited to, such things as getting in and out of bed,
bathing and personal hygiene, dressing and grooming, and feeding. 2 “Ancillary services”
include assisting with housework and chores, providing transportation, and helping with
finances and decision-making. 3
In your letter, you indicate that in November 2015, KDHE sent cease and desist letters
to providers of attendant care services warning them that “providing home health
services and representing [themselves] as a home health agency” constitutes a Class B
misdemeanor. 4 KDHE instructed the providers to demonstrate they had not provided
home health services in the past or that they had ceased providing home health
services. 5 In a follow-up letter, KDHE confirmed that it was concerned with “hands on”
services such as bathing, dressing, feeding, grooming, incontinence care, medication
reminders, and help with mobility. 6 Essentially, KDHE announced that only “companion
or chore services” could be performed without a license unless performed by someone
meeting one or more of the statutory exceptions located at K.S.A. 2015 Supp. 65-5112.
Home Health Agencies
A “home health agency” is defined as “a public or private agency or organization . . .
that provides for a fee one or more home health services at the residence of a patient.”7
“Home health services” are “[n]ursing, physical therapy, speech therapy, nutritional or
dietetic 	consulting, 	occupational 	therapy, 	respiratory 	therapy, 	home 	health 	aid,
1 K.S.A. 65-6201(a).
2 K.S.A. 65-6201(b).
3 K.S.A. 65-6201(c).
4 Letter to Beverly Blassingame, Blassingame Home Care Owner from Joyce Smith, Health Facilities
Program Director, November 18, 2015.
5 Id.
6 Letter to Beverly Blassingame, Blassingame Home Care Owner from Joyce Smith, Health Facilities
Program Director, December 8, 2015.
7 K.S.A. 2015 Supp. 65-5101(b).

Senators Kelly, Francisco, and Bruce
Page 3
attendant care services [and] medical social service” 8 whenever those services are
provided within the patient’s residence. In this context, “attendant care services” has the
same definition provided above. 9
Home health agencies are required to be licensed prior to providing home health
services, other than attendant care services, or holding themselves out as providing
home health services, other than attendant care services.10
Analysis
Although there is overlap between the definitions set out above, we can find no support
for the assertion that attendant care service providers must be licensed if they provide
“hands-on” 	services, 	such 	as 	assisting 	with 	bathing 	and 	personal 	hygiene. 	That
interpretation omits the plain language of K.S.A. 65-5102 excepting attendant care
services from the licensing requirements.11 We also observe that interpretation explicitly
conflicts with statutes defining attendant care services as those which include such
“hands-on” activities as bathing and personal hygiene, 12 as well as performing wound
care and administering suppositories. 13
Attorney General Opinion No. 2002-49 answered a similar question regarding whether
an 	attendant 	care 	service 	provider 	was 	required 	to 	complete 	the 	instruction 	and
examination requirements 14 applicable to a home health aide:
Although it is clear from the definition of [home health services] that an
attendant performs some of the duties that are performed by a home
health aide, there is no requirement that an attendant who provides only
attendant care services pursuant to K.S.A 65-6201 . . . be similarly trained
and certified. Moreover, home health agencies that provide only attendant
care 	services 	pursuant 	to 	K.S.A. 	65-6201 	are 	not 	required 	to 	be
licensed. 15
8 K.S.A. 2015 Supp. 65-5101(c).
9 The term “‘attendant care services’ shall have the meaning ascribed to such term under K.S.A. 65-6201,
and amendments thereto.” K.S.A. 2015 Supp. 65-5101(j).
10 K.S.A. 65-5102.
11 “No home health agency . . . shall provide one or more of the home health services specified in
subsection (c) of K.S.A. 65-5101 and amendments thereto, other than attendant care services, or shall
hold itself out as providing one or more of such home health services, other than attendant care services,
or as a home health agency unless it is licensed in accordance with the provisions of this act.” (Emphasis
added.)
12 K.S.A. 65-6201(b).
13 K.S.A. 65-6201(d).
14 K.S.A. 65-5115.
15 Attorney General Opinion No. 2002-49 (citing K.S.A. 65-5102 and K.S.A. 65-5112).

Senators Kelly, Francisco, and Bruce
Page 4
We can find no court cases or statutory amendments which would make us question
affirming the analysis or the conclusion made in Attorney General Opinion No. 2002-49.
Because we affirm that portion of Attorney General Opinion No. 2002-49, we conclude
the answer to your question is “no”—KDHE may not require a business that provides
only attendant care services to be licensed as a home health agency pursuant to K.S.A.
65-5101, et seq.
Sincerely,
Derek Schmidt
Kansas Attorney General
Craig Paschang
Assistant Attorney General
DS:AA:CP:sb