340:110-1-47.2. Non-compliance with requirements
(a) Non-compliance documentation. Licensing staff clearly and concisely documents non-compliance areas on the monitoring checklist and summary, including operator discussion. • 1
(1) A plan of correction, including a specific agreed-on time period for non-compliance correction is documented on the monitoring summary. Each non-compliance or documentation indicates a plan of correction will be submitted by the executive or program director. When a previous non-compliance was not corrected by the agreed-on time period, the non-compliance is documented again with a shorter plan of correction date. • 2
(2) Immediate correction is required when the non-compliance directly impacts children's health, safety, or well-being.
(3) Licensing staff requests the operator's signature on the monitoring summary, explaining the signature indicates acknowledgment of recorded information.
(4) When the operator or individual in charge refuses to sign, the refusal is documented on the monitoring summary.
(5) The operator is provided a monitoring summary copy.
(6) Timeframes for filing a grievance regarding non-compliance with requirements are provided on the monitoring summary. Refer to grievance procedures, per Oklahoma Administrative Code (OAC) 340:110-1-54.
(b) Referrals to fire and health officials. When non-compliance regarding fire or health requirements places children at risk of harm or remains uncorrected, Licensing staff requests an inspection by a fire, health, or Oklahoma Department of Environmental Quality official.
(c) Repeated and serious non-compliance.
(1) Repeated non-compliance is three or more documented incidents of non-compliance with the same requirement within the last 12 months. • 3
(2) Serious non-compliance is non-compliance with Licensing requirements exposing children to conditions presenting an imminent risk of harm based on the child's age, the amount of time the program or agency was out of compliance, and the program or agency efforts to mitigate the risk. Serious non-compliance is identified through Licensing observations, and/or confirmed complaint investigations. Failure to comply with licensing requirements that may be considered as serious non-compliance include:
(A) when applicable, staff-child ratio;
(B) child supervision;
(C) infant sleep environments; • 4
(D) prohibited disciplinary actions;
(E) licensed capacity;
(F) transportation; • 5
(G) water activities; • 6
(H) pools and other water hazards;
(I) multiple hazards;
(K) failure to report child abuse or human trafficking;
(L) knowingly permitting access to children by individuals identified as restricted or Restricted Registry registrants;
(M) failure to obtain background investigations or Restricted Registry searches;
(N) medication administration; • 7
(O) room temperatures;
(P) heat sources and/or loss of any utility service;
(Q) cardio-pulmonary resuscitation and first aid training; or • 8
(R) required behavior management training.
(d) Case management responses to non-compliant facilities. One or more responses in this subsection are used when there is repeated or serious non-compliance. • 9
(1) Technical assistance. Licensing staff offers technical assistance, including referrals to consultants or professional development resources, assisting the operator in meeting and maintaining Licensing requirements.
(2) Follow-up phone call to the program. Phone calls are documented on Form 07LC080E, Licensing Services Supplemental Information, and a copy provided to the program.
(3) Non-compliance letter. A non-compliance letter may be written to the operator. Licensing staff provides a monitoring summary copy with the non-compliance letter to the governing board or owner, when applicable. • 10
(4) Return monitoring visit. A return monitoring visit may be conducted when there is repeated or serious non-compliance with Licensing requirements or when non-compliance places children at imminent risk of harm. When the non-compliance is associated with a specific time of day, such as understaffing after school or a lack of early morning supervision, the return monitoring visit is conducted at the approximate time. • 11
(5) Use of witnesses. A witness may accompany Licensing staff when the program had repeated or serious non-compliance or considered for request for license denial or license revocation. The witness may be an Oklahoma Department of Human Services employee, a representative from the fire or health department, or law enforcement. The witness signs the monitoring summary.
(6) Increased monitoring visits. Licensing staff may increase monitoring frequency plans when there was repeated or serious non-compliance or when the need for additional technical assistance is indicated.
(7) Notice to comply. Licensing staff provides the operator with Form 07LC037E, Notice to Comply, and the operator documents the plan of correction. Immediate correction may be required when the non-compliance places children's health, safety, or well-being at risk. • 12
(A) When the plan submitted is unacceptable, Licensing staff negotiates a revised plan and requests submission within 10-calendar days.
(B) When Form 07LC037E, Notice to Comply, is not submitted within the specified time period, Licensing staff contacts the operator and documents the conversation.
(C) When non-compliances continue to place children at risk, Licensing staff provides a letter stating non-compliances and/or continued failure to correct non-compliances may result in request for license denial, license revocation, filing of an injunction, or issuance of an Emergency Order.
(8) Office conference. Licensing staff may schedule an office conference with the program owner or operator. The programs manager is present at the office conference. Program status, non-compliance areas, and progress toward meeting the plan(s) of correction are reviewed and technical assistance is offered. The office conference is documented on Form 07LC080E, Licensing Services Supplemental Information and signed by Licensing staff, the operator, and witnesses. This documentation includes a list of individuals present, conference purpose, and re-verification of ownership documentation. Form 07LC037E, Notice to Comply, is completed when one addressing these issues was not previously completed.
(9) Consent agreement. Child Care Services (CCS) and the program owner may enter into a consent agreement when the program owner agrees to specific conditions in lieu of request for license denial or license revocation, per OAC 340:110-1-52.
(10) Revocation or denial. Licensing staff may recommend the request for license be denied or license revoked when repeated or serious non-compliance with requirements was observed and documented or the program failed to adequately protect children, per OAC 340:110-1-52. • 13
(11) Voluntary cease care. With CCS State Office approval, the owner is asked to voluntarily cease caring for children or child-placing activity. The programs manager is notified of every situation involving a request for voluntary cease care or child-placing activity.
(12) Voluntary closure. With CCS State Office approval, the owner is asked to voluntarily close the program.
(e) Case management responses when children are at risk. When Licensing staff documents non-compliance with requirements or is investigating a complaint that children may be at imminent risk of harm, options to consider with the operator and the programs manager are outlined in this subsection.
(1) The operator is asked to immediately correct the non-compliance; such as, the personnel will not be present or work alone with children at the program pending the outcome of an investigation.
(2) With CCS State Office approval, the owner is asked to voluntarily cease care until the non-compliance is corrected or the investigation is complete.
(3) With CCS State Office approval, the owner is asked to voluntarily close the program.
(4) When immediate action is needed to protect children, Licensing staff requests an Emergency Order, per OAC 340:110-1.52.
(5) CCS and the owner may enter into a consent agreement when the program owner agrees to specific conditions in lieu of request for license denial or license revocation, per OAC 340:110-1-52.
(6) Licensing staff may recommend the request for license be denied or license be revoked when repeated or serious non-compliance with requirements was observed and documented or the program failed to adequately protect children, per OAC 340:110-1-52.
(7) An injunction may be requested when the residential program or child-placing agency is:
(B) on request for license status;
(D) violating an Emergency Order;
(E) operating during an appeal following request for license denial or license revocation and children are at risk of harm; or
(F) violating the notice to cease and desist care following request for license denial or license revocation.
(f) Notification to programs manager when children are at risk. When during a monitoring visit Licensing staff is concerned the children's health, safety, or well-being is at imminent risk, the programs manager or CCS State Office staff is contacted immediately. • 14
(g) Alternative method of compliance. CCS may approve an alternative method of compliance to a minimum Licensing requirement. An alternative method of compliance may be authorized when Licensing determines the alternative method of compliance offers equal protection of children's health, safety, or well-being, meets the requirement's basic intent for the requested alternative compliance, and does not violate statutory requirements.
(1) An applicant or licensee submits a written request with supporting documentation on Form 07LC061E, Alternative Compliance Request, to Licensing staff. A separate alternative method of compliance request is submitted for each requirement identified. • 15
(2) Licensing staff completes Form 07LC105E, Alternative Compliance Referral, and submits all documentation to the statewide licensing coordinator or designee.
(3) Approval of an alternative method of compliance does not set a precedent, and is independently evaluated on the merits of each request.
(4) The program's compliance record is considered when determining approval.
(5) An alternative method of compliance is not authorized for requirements affecting children's health and safety, such as exceeding licensed capacity of a residential program, staff-child ratios, fire safety, or behavior and guidance.
(6) Form 07LC075E, Notice of Alternative Compliance, stating the nature of the exception, is posted with the license. • 16
1. When documenting non-compliance on the monitoring checklist, Licensing staff:
(1) documents what is observed rather than what is needed, such as Licensing staff documents "milk was not served with lunch" instead of "milk must be served at lunch";
(2) does not document personnel names associated with non-compliance on the monitoring checklist. Personnel names may be included in the monitoring summary discussion area and in the plan of correction as provided by the operator; and
(3) provides a monitoring summary copy to the operator and governing board or owner, as applicable.
2. Plan of correction.
(1) When thetime period suggested by the operator for non-compliance correction is unacceptable, Licensing staff discusses the expectation and negotiates an acceptable time period. Correction due dates are realistic. The following statement may be utilized when facilities are not meeting the plan of correction timeframes: "The program continues to be in non-compliance without an acceptable plan of correction," however, the program must meet and comply with Licensing requirements. Licensing staff discusses concerns with the programs manager.
(2) The plan of correction may include an agreement with the administrator or director to specific conditions, such as agreeing to restrict an individual, or agreeing not to allow certain personnel to transport children because of a prior conviction for driving under the influence (DUI). The agreement is placed in a prominent location in the program's file and includes conditions that must be complied with, but does not include confidential information.
3. When a non-compliance is documented a second time during an agreed-on plan of correction, it is not considered again in determining repeated or serious non-compliance.
4. Sleep environment may include developmentally appropriate activities and equipment.
5. Serious non-compliance includes passenger restraints, drivers without a valid driver license, and vehicle liability insurance.
6. Serious non-compliance includes swimming pools and certified life guard or water safety personnel per Licensing requirements.
7. Serious non-compliance includes medication:
(1) administration by non-designated staff;
(2) documentation; and
(3) accessible to children.
8. Serious non-compliance includes residential programs not having any personnel on facility premises or during a program sponsored field trip with current cardio-pulmonary resuscitation and first aid training.
9. Licensing staff assess the type of non-compliance observed during monitoring visits or substantiated complaint investigations. Response is based on the non-compliance seriousness and the operator's demonstrated ability and willingness to comply.
(1) Licensing staff responses go beyond non-compliance and plan of correction documentation for monitoring visits involving repeated or serious non-compliance.
(2) Licensing staff advises the programs manager of the planned response and, when the programs manager disagrees, the case history is reviewed and a different or additional response may be utilized.
10. Within 10-Department of Human Services business days, Licensing staff provides a non-compliance letter that includes the monitoring visit date, non-compliance area(s), and grievance timeframes. When a non-compliance remains uncorrected at the next monitoring visit, a letter documenting both monitoring visits and a follow-up monitoring visit are required.
11. The timing of a return monitoring visit is determined by the risk level to children, per Oklahoma Administrative Code (OAC) 340:110-1-47.2. A return monitoring visit does not routinely result in a change in the monitoring frequency plan. When subsequent monitoring visits require a follow-up:
(1) increased monitoring is discussed with the programs manager; and
(2) Licenisng staff conducts:
(A) a partial monitoring visit, per OAC 340:110-1-47(a) including documenting correction of previous non-compliance; or
(B) a full monitoring visit, per OAC 340:110-1-47(a), when repeated or serious non-compliance is observed.
12. When Form 07LC037E, Notice to Comply, is completed, the plan of correction on the monitoring summary is also completed. When an acceptable Form 07LC037E is completed during a monitoring visit, it is not necessary to include this with the non-compliance letter. Form 07LC037E may be completed for repeated non-compliances; however, completion is necessary for:
(1) serious non-compliances;
(2) substantiated complaint allegations; or
(3) additional non-compliances found during a complaint investigation.
13. Procedure and documentation for request for license denial or license revocation. Licensing staff:
(1) ensures the non-compliance and a plan of correction are clearly documented on the monitoring summaries, and the program's action to implement previous plans of correction.
(2) documents on the monitoring summary that failure to correct the non-compliance may result in request for license denial, license revocation, filing an injunction, or issuance of an Emergency Order, as applicable; and
(3) conducts monitoring visits at least monthly. Whenever possible, the same witness accompanies Licensing staff on monitoring visits.
14. Examples warranting supervisory contact include severe overcapacity, an incapacitated caregiver, a caregiver appearing under the influence of alcohol or drugs, or children appear to be left alone.
15. Licensing staff reviews all submitted documentation and may request additional information.
16. An alternative method of compliance does not replace plans of correction negotiated between Licensing staff and operators. Operators are not encouraged to request alternative methods of compliance when the non-compliance can feasibly be corrected in a reasonable time frame.