Library: Policy

340:2-3-2. Definitions

Revised 9-15-22

The following words and terms when used in this Subchapter have the following meanings, unless the context clearly indicates otherwise:

"Abuse" means, with regard to:

(A) children, per Section 1-1-105 of the Oklahoma Statutes (10A O.S. § 1-1-105) harm or threatened harm to the health, safety, or welfare of a child by a person responsible for the child's health, safety, or welfare (PRFC) including, but not limited to: ■ 1 non-accidental ■ 2 physical ■ 3 & 4 or mental injury, ■ 5 sexual abuse, or sexual exploitation.

(B) vulnerable adults, per 43A O.S. § 10-103, causing or permitting:

(i) the infliction of physical pain, injury, sexual abuse, sexual exploitation, unreasonable restraint or confinement, mental anguish, or personal degradation; or

(ii) deprivation of nutrition, clothing, shelter, health care, or other care or services without which serious physical or mental injury is likely to occur to a vulnerable adult by a caretaker or other person providing services to a vulnerable adult.

"Administrative information" means information reported to or obtained by Oklahoma Human Services (OKDHS) regarding the community services provider during the investigative process that may be appropriate for internal administrative action but does not have the potential to impact the immediate health, safety, or welfare of recipients of community services, has not been verified as true and is for informational purposes only, per 56 O.S. § 1025.1.

"Administrator" or "administrator's designee" means, with regard to:

(A) children in (OKDHS) custody living in a private, residential facility: the facility's chief administrative officer;

(B) children in OKDHS custody living in an OKDHS-operated shelter or group home, the shelter or group home director;

(C) children in OKDHS custody living in any other setting, including any type of out-of-home placement: the applicable OKDHS district director;

(D) foster care parents: the applicable OKDHS district director or deputy director;

(E) children in residential care facilities operated by the Oklahoma Department of Rehabilitation Services (ODRS); facilities that contract with, or are licensed by, the Oklahoma Office of Juvenile Affairs (OJA), with the exception of OJA-operated secure facilities, the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS); and the J.D. McCarty Center or OKDHS and other residential care facilities: the superintendent, director, chief administrative officer, or head of the facility regardless of the person's working title;

(F) day treatment programs: the person charged with responsibility for program administration;

(G) adults and children who are in OKDHS Developmental Disabilities Services (DDS) specialized foster care and DDS specialized foster care parents: the applicable DDS area manager;

(H) Robert M. Greer Center (Greer) residents: the facility director;

(I) providers of residential services, vocational services, or in-home paraprofessional supports to individuals with developmental disabilities living in the community: the provider's chief executive officer; and

(J) residents of group homes for persons with developmental disabilities: the group home director.

"Advocate" means an Office of Client Advocacy (OCA) employee who provides assistance to OCA clients in exercising their rights, listening to their concerns, encouraging them to speak for themselves, seeking to resolve their problems, helping protect their rights, and seeking to improve the quality of their lives and care.

"Age-appropriate" or "developmentally-appropriate" means:

(A) activities or items that are generally accepted as suitable for children of the same age or level of maturity or that are determined to be developmentally-appropriate for a child, based on the development of cognitive, emotional, physical, and behavioral capacities that are typical for an age group; and

(B) in the case of a specific child, activities or items that are suitable for that child based on the developmental stages attained by the child with respect to the cognitive, emotional, physical, and behavioral capacities of the specific child per 10A O.S. § 1-1-105.

"Agency companion" means a person who provides agency companion services, per OAC 317:40-5-3, to:

(a) members 18 years of age or older who are eligible for services through Community or Homeward Bound waivers, or

(b) persons under 18 years of age, with approval from the OKDHS Developmental Disability Services (DDS) director or designee.

"Area manager" means an administrator of one of the three service delivery areas designated by OKDHS DDS.

" Areas of Concern" or "(AOC)" means:

(A) with regard to children: issues that do not rise to the level of abuse or neglect, but may constitute possible deficiencies, irregularities, or deviations from policies and best practices. AOCs are brought to the provider's attention for informational purposes or for appropriate corrective action, when applicable; and

(B) with regard to individuals served by a community services worker, issues that do not rise to the level of a substantiated finding, but may constitute possible deficiencies, irregularities, or deviations from policies and best practices by the community services provider, which has the potential to impact the health, safety, or welfare of recipients of community-based services, and OKDHS has conducted sufficient inquiry into the issue to meet the probable cause investigative standard, per 56 O.S. § 1025.1.

"Behavioral health" means mental health, substance abuse, or co-occurring mental health and substance abuse diagnoses, and the continuum of mental health, substance use or abuse, or co-occurring mental health and substance abuse treatment, per 10A O.S. § 1-1-105.

"Caretaker" means, per 43A O.S. §10-103, a person who has:

(A) the responsibility for the care of a vulnerable adult or the financial management of the resources of a vulnerable adult as a result of a family relationship;

(B) assumed the responsibility for the care of a vulnerable adult voluntarily, by contract, or as a result of the ties of friendship; or

(C) was appointed a guardian, limited guardian, or conservator pursuant to the Oklahoma Guardianship and Conservatorship Act.

"Caretaker misconduct" means, per 10A O.S. § 1-9-112, an act or omission by a PRFC that does not rise to the level of abuse, neglect, sexual abuse, or sexual exploitation with regard to any child or resident:

(A) residing outside their own homes other than children in foster care or children in the custody of OJA and placed in an OJA secure facility;

(B) in a day treatment program as defined in 10 O.S. § 175.20;

(D) residing in a state institution listed in 10 O.S. § 1406. ■ 6

"Child" means any unmarried person younger than 18 years of age.

"Child-placing agency" means an agency that arranges for, or places a child in, a foster family home, family-style living program, group home, adoptive home, or a successful adulthood program per 10A O.S. § 1-1-105.

"Child with a disability" means any child who has a physical or mental impairment that substantially limits one or more of the major life activities of the child or who is regarded as having such impairment by a competent medical professional, per 10A O.S. § 1-1-105.

"Client" means, with regard to OCA:

(A) investigative services: individuals listed in OAC 340:2-3-32(a)(2);

(B) grievance services: individuals listed in OAC 340:2-3-45(a)(2); and

"Community services provider" means a community-based program, corporation, or individual who contracts with, or is licensed or funded by, OKDHS to provide residential or vocational services to persons who are elderly or persons with intellectual or developmental disabilities, or contracts with the Oklahoma Health Care Authority (OHCA) to provide services to individuals with intellectual disabilities through a Home and Community-Based Waiver, except a private Intermediate Care Facility for Individuals with Intellectual Disabilities, per 56 O.S. § 1025.1.

"Community services worker" or "(CSW)" means any person employed by or under contract with a community services provider who provides, for compensation or as a volunteer, health-related services, training, or supportive assistance to persons who are elderly or persons with developmental disabilities and who is not a licensed health professional or any person who contracts with the OHCA to provide specialized foster care, habilitation training specialist services, or homemaker services to persons with developmental disabilities, per 56 O.S. § 1025.1.

"Community Services Worker Registry" or "(CSW Registry)" means the Registry established by OKDHS per 56 O.S. § 1025.3.

"Complaint" means a report communicating a grievance, concern, or perceived harm, submitted by phone, email, or in writing by a foster parent or a child being served by Child Welfare Services (CWS) to the Oklahoma Commission of Children and Youth (OCCY) Office of Juvenile System Oversight (OJSO). If not submitted in writing, the complaint is entered into the written format established by OCA and OJSO.

"Custodian" means, per 10A O.S. § 1-1-105, an individual other than a parent, legal guardian, or Indian custodian, to whom legal custody of the child has been awarded by the court. The term "custodian" shall not mean OKDHS.

"Day treatment program" means non-residential, partial hospitalization programs, day treatment programs, and day hospital programs in which children and adolescents are placed for psychiatric or psychological treatment, per 10 O.S. §175.20.

"Disposition" means, with regard to OCA intake processes, the OCA intake unit action taken in response to a referral received, per OAC 340:2-3-35.

"Educational employee" means a school district employee, who provides contractual educational services on-site at a facility, who is either a witness or the alleged perpetrator in an OCA investigation.

" Exploitation" or " exploit" with regard to vulnerable adults means an unjust or improper use of the resources of a vulnerable adult for the profit or advantage, pecuniary or otherwise, of a person other than the vulnerable adult through the use of undue influence, coercion, harassment, duress, deception, false representation, or false pretense, per 43A O.S. § 10-103.

"Failure to protect" means, per 10A O.S. § 1-1-105, failure to take reasonable action to remedy or prevent child abuse or neglect, and includes the conduct of a non-abusing parent or guardian who knows the identity of the abuser or the person neglecting the child, but lies, conceals, or fails to report the child abuse or neglect or otherwise take reasonable action to end the abuse or neglect.

"Financial neglect" means, with regard to vulnerable adults, per 43A O.S. § 10-103, repeated instances by a caretaker or other person, who has assumed the role of financial management, of failure to use the resources available to restore or maintain the health and physical well-being of a vulnerable adult, including, but not limited to:

(A) squandering or negligently mismanaging the money, property, or accounts of a vulnerable adult;

(B) refusing to pay for necessities or utilities in a timely manner; or

"Force" means, as used by an alleged perpetrator with regard to a child residing outside of his or her home, other than in foster care:

(A) "authorized use of physical force" means using physical contact to control or contain a child when the alleged perpetrator reasonably considers the child to:

(i) pose a risk of inflicting harm to himself or herself or others; or

(ii) be in the process of leaving a facility without authorization; and

(iii) when physical force is authorized, the least force necessary under the circumstances is employed;

(B) "excessive use of force" means the failure to employ the least amount of physical force necessary under the circumstances, taking into consideration all of the circumstances surrounding the incident, including the:

(i) grounds for belief that force was necessary;

(ii) ages, genders, and strengths of the parties involved;

(iii) nature of the force employed;

(iv) alternative means of force or control available;

(v) extent of the inflicted harm; and

(vi) provider's established method(s) of restraint and intervention for the child against whom the force was used, consistent with the child's individualized plan, protective intervention plan, or treatment plan; and

(C) "unauthorized use of force" means force that is not authorized per this paragraph. Unauthorized use of force includes unacceptable physical contact with a child including, but not limited to:

(i) slapping;

(ii) kicking;

(iii) punching;

(iv) poking;

(v) pulling hair or an ear;

(vi) pinching;

(vii) using a chokehold;

(viii) smothering;

(ix) spitting;

(x) head butting; and

(xi) tugging.

"Foster care" or "foster care services" means continuous 24-hour care and supportive services provided for a child in a foster placement including, but not limited to, the care, supervision, guidance, and rearing of a foster child by the foster parent, per 10A O.S. § 1-1-105.

"Foster parent" means any person maintaining a therapeutic, emergency, specialized community, tribal, kinship, or foster family home, responsible for providing care, supervision, guidance, rearing, and other foster care services to a child.

"GARC" means the Grievance and Abuse Review Committee, per OAC 340:2-3-61.

"Group home for persons with developmental or physical disabilities" means any establishment for not more than 12 residents who are 18 years of age or older and who have developmental or physical disabilities, and which offers or provides supervision, residential accommodations, food service, and training and skill development opportunities designed to lead to increased independence of the residents and which offers or provides supportive assistance to residents requiring supportive assistance, per 10 O.S. § 1430.2.

"Guardian" or "guardian of an incapacitated person" means, per 30 O.S. § 1-111 a person who has been appointed by a court to serve as the guardian of an incapacitated person to assure that the essential requirements for the health and safety of the person are met, to manage the estate or financial resources of the person, or both. The term includes persons appointed as general or limited guardians of the person, general or limited guardians of property, and special guardian, but does not include a person appointed as guardian ad litem, per 30 O.S. § 1-106.

"Harm or threatened harm to the health or safety, of a child" means any real or threatened physical, mental, or emotional injury or damage to the body or mind that is not accidental including, but not limited to, sexual abuse, sexual exploitation, neglect, or dependency, per 10A O.S. § 1-1-105. ■ 2 & 7

"Heinous and shocking abuse" means abuse that includes, but is not limited to, aggravated physical abuse that results in serious bodily, mental, or emotional injury. Serious bodily injury means injury that involves:

(A) substantial risk of death;

(B) extreme physical pain;

(D) loss or impairment of a function of a body member, organ, or mental faculty;

(E) an injury to an internal or external organ or the body;

(F) bone fracture;

(G) sexual abuse or sexual exploitation;

(H) chronic abuse including, but not limited to, physical, emotional, or sexual abuse, or sexual exploitation that is repeated or continuing;

(I) torture including, but not limited to, inflicting, participating in or assisting in inflicting intense physical or emotional pain upon a child repeatedly over a period of time for the purpose of coercing or terrorizing a child or for the purpose of satisfying the craven, cruel, or prurient desires of the perpetrator or another person; or

(J) any other similar aggravated circumstance. ■ 8

"Hissom class member" means an individual certified by the United States District Court for the Northern District of Oklahoma as a member of the plaintiff class in Homeward Bound, Inc., et al. vs. Hissom Memorial Center, et al., Case No. 85-CV-437-GKF.

"Hotline" means the statewide Centralized Abuse and Neglect Hotline, toll-free phone number, maintained by OKDHS for the purpose of receiving reports of abuse, neglect, or exploitation of children and vulnerable adults. The Hotline operates 24 hours a day, seven days a week, 365 days a year.

"Incapacitated person" means, per 43 O.S. § 10-103:

(A) any person 18 years of age or older

(i) who is impaired by reason of mental or physical illness or disability, dementia, or related disease, intellectual disability, developmental disability, or other cause, and

(ii) whose ability to receive and evaluate information effectively or to make and communicate responsible decisions is impaired to such an extent that such person lacks the capacity to manage his or her financial resources or meet essential requirements for his or her mental or physical health or safety without assistance from others; or

(B) a person for whom a guardian, limited guardian, or conservator has been appointed pursuant to the Oklahoma Guardianship and Conservatorship Act.

"Indecent exposure" means, per 43A O.S. § 10-103, forcing or requiring a vulnerable adult to:

(A) look upon the body or private parts of another person or upon sexual acts performed in the presence of the vulnerable adult; or

(B) touch or feel the body or private parts of another.

"In-home supports" or " (IHS)" means services funded through Medicaid Home and Community-Based Waivers, per Section 1915(c) of the Social Security Act and administered by OKDHS DDS. Services are provided in the service recipient's home, that are not residential services, per OAC 340:100-5-22.1, or group home services per 10 O.S. § 1430.2.

"Injury" means any hurt, harm, appreciable physical pain, or mental anguish.

"Intermediate Care Facility for Individuals with Intellectual Disabilities" or "(IFC/IID)" or a "specialized facility for individuals with intellectual disabilities" means a private or public residential facility, licensed per state law and certified by the federal government as a Medicaid services provider, for individuals with intellectual disabilities as defined in Title XIX rules and regulations of the Social Security Act.

"Investigation" means, regarding a:

(A) child, per 10A O.S. § 1-1-105 a response to an allegation of abuse or neglect that involves a serious and immediate threat to the safety of a child, making it necessary to determine:

(i) the current safety of the child and the risk of subsequent abuse or neglect; and

(ii) whether child abuse or neglect occurred and whether the family needs prevention- and intervention-related services;

(B) vulnerable adult, a response to a maltreatment allegation, making it necessary to determine if maltreatment of the vulnerable adult occurred.

" Investigation results" means, per 10A O.S. § 1-1-105, a written response stating one of the following findings:

(A) regarding a child:

(i) "substantiated" means OCA determined, after an investigation of a report of child abuse or neglect and based upon some credible evidence, that child abuse or neglect occurred;

(ii) "unsubstantiated" means OCA determined, after an investigation of a report of child abuse or neglect, that insufficient evidence exists to fully determine whether child abuse or neglect occurred; or

(iii) "ruled out" means OCA determined, after an investigation of a report of child abuse or neglect that no child abuse or neglect occurred; or

(B) regarding a vulnerable adult:

(i) "substantiated" means that in OKDHS judgment, there appears to be probable cause to suspect the existence of abuse, neglect, or exploitation;

(ii) "not substantiated" means that OKDHS has found insufficient evidence of abuse, neglect, or exploitation

"Maltreatment" means, per 56 O.S. §1025.1, abuse, verbal abuse, sexual abuse, neglect, financial neglect, exploitation, or sexual exploitation of vulnerable adults, as those terms are defined in 43A O.S. § 10-103; or abuse, neglect, sexual abuse or sexual exploitation of children, per 10A O.S. § 1-1-105.

"Medicaid personal care assistant" means, per 56 O.S. § 1025.1, a person who provides Medicaid services funded under Oklahoma's personal care program and is not a certified nurse aide or a licensed professional.

"Medicaid personal care services provider" means, per 56 O.S. § 1025.1, a program, corporation, or individual who provides services under the state Medicaid program personal care program or ADvantage Waiver to individuals who are elderly, or who have a physical disability.

"Mental anguish" means, in regard to a vulnerable adult, mental damage evidenced by distress, depression, withdrawal, severe anxiety, or unusually aggressive behavior toward one's self or others.

"Mental health facility" means a public or private hospital or related institution, as defined by 63 O.S. § 1-701, offering or providing inpatient mental health services, a public or private facility accredited as an inpatient or residential psychiatric facility by the Joint Commission on Accreditation of Healthcare Organizations, or a facility operated by the Department of Mental Health and Substance Abuse Services (DMHSAS) and designated by the Commissioner of DMHSAS as appropriate for the inpatient evaluation or treatment of minors, per 43A O.S. § 5-502.

"Near death" means a child is in serious or critical condition as certified by a physician, as a result of abuse or neglect, per 10A O.S. § 1-1-105.

"Neglect" means in regard to:

(A) children, per 10A O.S. § 1-1-105: ■ 9

(i) the failure or omission to provide any of the following:

(I) adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or appropriate education;

(II) medical, dental, or behavioral health care; ■ 10

(III) supervision or appropriate caretakers to protect the child from harm or threatened harm of which any reasonable and prudent person responsible for the child's health, safety or welfare would be aware; or ■ 11

(IV) special care made necessary by the physical or mental condition of the child;

(ii) the failure or omission to protect a child from exposure to any of the following:

(I) the use, possession, sale, or manufacture of illegal drugs;

(II) illegal activities;

(III) sexual acts or materials that are not age-appropriate; or

(iii) abandonment; or

(B) vulnerable adults, per 43A O.S. § 10-103:

(i) the failure to provide protection for a vulnerable adult who is unable to protect his or her own interest; ■ 12 & 13

(ii) the failure to provide a vulnerable adult with adequate shelter, nutrition, health care, or clothing; or

(iii) negligent acts or omissions that result in harm or the unreasonable risk of harm to a vulnerable adult through the action, inaction, or lack of supervision by a caretaker providing direct services.

"OCA intake" means the OCA maintained centralized intake system that receives authorized referrals.

"Ombudsman" or "ombuds" means an advocate.

"Person responsible for the child's (PRFC) health, safety, or welfare" means, per 10A O.S. § 1-1-105, a parent; legal guardian; custodian; foster parent; person 18 years of age or older with whom the child's parent cohabitates or any other adult residing in the home of the child; an agent or employee of: a public or private residential home, institution, facility or day treatment program, as defined in 10 O.S. § 175.20; or an owner, operator, or employee of a child care facility, as defined by 10 O.S. § 402.

"Personal degradation" means, per 43A O.S. § 10-103, a willful act by a caretaker intended to shame, degrade, humiliate, or otherwise harm the personal dignity of a vulnerable adult, or where the caretaker knew or reasonably should have known the act would cause shame, degradation, humiliation, or harm to the personal dignity of a reasonable person. Personal degradation includes the taking, transmitting, or display of an electronic image of a vulnerable adult by a caretaker, where the caretaker's actions constitute a willful act intended to shame, degrade, humiliate, or otherwise harm the personal dignity of the dependent adult, or where the caretaker knew or reasonably should have known the act would cause shame, degradation, humiliation, or harm to the personal dignity of a reasonable person. Personal degradation does not include:

(A) the taking, transmission, or display of an electronic image or a vulnerable adult for the purpose of reporting vulnerable adult abuse to law enforcement, OKDHS, or other regulatory agency that oversees caretakers or enforces abuse or neglect laws or rules,

(B) the taking, transmission, or display of an electronic image of a vulnerable adult for the purpose of treatment or diagnosis, or

(C) the taking, transmission, or display of an electronic image of a vulnerable adult as part of an ongoing investigation.

"Personal support team" or "(team)," formerly known as the "interdisciplinary team," means the decision-making body for service planning, implementation, and monitoring of the individual plan, per OAC 340:100-5-52.

"Physical abuse" means, in regard to children, an injury resulting from punching, beating, kicking, biting, burning, or otherwise harming a child. Even when the injury is not an accident, the alleged perpetrator may not have intended to hurt the child.

(A) The injury may result from:

(i) extreme physical punishment inappropriate to the child's age or condition;

(ii) a single episode or repeated episodes that range in severity from significant bruising to death; or

(iii) any action that involves hitting with a closed fist, kicking, inflicting burns, shaking, or throwing the child, even when no injury is sustained, but the action places the child at risk of grave physical danger.

(B) A minor injury on a child older than 10 years of age is not considered physical abuse unless the actions that caused the injury placed the child in grave physical danger.

"Plan for Immediate Safety" means the plan for actions taken to immediately control any significant and clearly observable condition that is present and is endangering or threatening to endanger a child or vulnerable adult.

"Probable cause" means, in regards to vulnerable adults, information or evidence that would lead a reasonable person to believe that abuse, neglect, or exploitation has been committed.

"Problem resolution" means verbal or written communications that seek to resolve concerns, complaints, service inadequacies, or issues the client or the client's team members identify, including the client's guardian, OCA advocate, volunteer advocate, or other persons interested in the client's welfare.

"Protective custody" means custody of a child taken by law enforcement or designated court employee, without a court order.

"Reasonable and prudent parent standard" means, per 10A O.S. § 1-1-105, the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child. This standard is used by the child's caregiver when determining whether to allow a child to participate in extracurricular, enrichment, cultural, and social activities. For purposes of this definition, the term "caregiver" means a foster parent with whom a child in foster care has been placed, a representative of a group home where a child in foster care has been placed, or a designated official for a residential child care facility where a child in foster care has been placed.

"Referring party" means the individual who informs OCA, calls the Hotline, or reports in writing that an incident occurred.

"Reportable incident" means an incident that must be reported because the person reporting knows, or has reasonable cause to believe or suspect, that a child or vulnerable adult may have been subjected to abuse or neglect.

"Reporting party" means the individual who initially tells someone verbally or in writing that an incident occurred.

"Residential child care facility" means, per 10A O.S. § 1-1-105, a 24-hour residential facility where children live together with or are supervised by adults who are not their parents or relatives.

"Restricted registry" or "Joshua's List" means the registry created per 10 O.S. § 405.3, for the purpose of recording individuals who have:

(A) a substantiated finding of abuse or neglect, as defined in Section 1-1-105 of Title 10A of the Oklahoma Statutes, by an individual when the abuse or neglect occurred to a child while in the care of a facility licensed, certified, operated, or contracted by or with OKDHS or OJA. The provisions of this subparagraph shall apply to:

(i) the Central Oklahoma Juvenile Center, the Oklahoma Juvenile Center for Girls, and the Southwest Oklahoma Juvenile Center upon the effective date of this act; and

(ii) facilities licensed by, certified by, or contracting with the Office of Juvenile Affairs after November 1, 2018.

(B) revocation or denial of a child care facility license; and

"Safety threat" means the threat of serious harm due to child abuse or neglect occurring in the present or in the very near future that without another person's intervention, a child would likely or in all probability sustain severe or permanent disability or injury, illness, or death.

"Secure facility" means, per 10A O.S. § 1-1-105, a facility which is designed and operated to ensure all entrances and exits from the facility are subject to the exclusive control of the staff of the facility, whether or not the juvenile being detained has freedom of movement within the perimeter of the facility, or a facility that relies on locked rooms and buildings, fences, or physical restraint in order to control behavior of its residents. This definition excludes OJA-operated secure facilities.

"Self-neglect" means, per 43A O.S. § 10-103, the action or inaction of a vulnerable adult which causes that person to fail to meet the essential requirements for physical or mental health and safety due to the vulnerable adult's lack of awareness, incompetence, or incapacity.

"Sexual abuse" means, with regard to:

(A) children, per 10A O.S. § 1-1-105, conduct, that includes, but is not limited to, rape, incest, and lewd or indecent acts or proposals made to a child as defined by law, by a PRFC; or ■ 14

(B) vulnerable adults, per 43A O.S. § 10-103:

(i) oral, anal, or vaginal penetration of a vulnerable adult by or through the union with the sexual organ of a caretaker or other person providing services to the vulnerable adult, or the anal or vaginal penetration of a vulnerable adult by a caretaker or other person providing services to the vulnerable adult with any other object;

(ii) for the purpose of sexual gratification, the touching, feeling or observation of the body or private parts of a vulnerable adult by a caretaker or other person providing services to the vulnerable adult; or

(iii) indecent exposure by a caretaker or other person providing services to the vulnerable adult.

"Sexual exploitation" means, with regard to:

(A) children, per 10A O.S. § 1-1-105, conduct that includes, but is not limited to, allowing, permitting, encouraging, or forcing a child to engage in ■ 14 prostitution, as defined by law, by any person 18 years of age or older or by a PRFC, or allowing, permitting, encouraging, or engaging in the lewd, obscene, or pornographic, as defined by law, photographing, filming, or depicting of a child in those acts by a PRFC ; or

(B) vulnerable adults, per 43A O.S. § 10-103, conduct that includes, but is not limited to, a caretaker's causing, allowing, permitting, or encouraging a vulnerable adult to engage in prostitution or in the lewd, obscene, or pornographic photographing, filming, or depiction of the vulnerable adult, as those acts are defined by state law.

"Specialized foster care" means, per OAC 317:40-5-50, foster care that:

(A) provides up to 24 hours per day of in-home residential habilitation services funded through the Community Waiver or the Homeward Bound Waiver. Specialized foster care serves individual ages 3 and older, up to 24 hours per day of supervision, supportive assistance, and training in daily living skills.

(B) is provided in a setting that best meets the specialized needs of the service recipient.

"State Office administrator" means, with regard to grievances filed by a:

(A) foster parent, a child being served by CWS, or an individual filing on behalf of a child being served by CWS: the OKDHS CWS director, or his or her designee;

(B) DDS client or an individual filing on behalf of a DDS client: the DDS director, or his or her designee.

"Suspicious injury" means, regarding a vulnerable adult, an injury that includes, but is not limited to, an injury that:

(A) appears inconsistent with the offered explanation(s) for the injury;

(B) is unusual;

(D) is a minor injury located on or near a private body part or on a part of the body that makes it unlikely to have been the result of self-injury or an accident during daily living activities; or

(E) involves multiple abrasions, bruises, and minor injuries on the body of a person, identified around the same time or over a period of several weeks, but have no clear, known explanation.

"Verbal abuse" means the use of words, sounds, or other communication including, but not limited to, gestures, actions, or behaviors by a caretaker or other person providing services to a vulnerable adult that are likely to cause a reasonable person to experience humiliation, intimidation, fear, shame, or degradation, per 43A O.S. § 10-103.

"Vulnerable adult" means, per 43A O.S. § 10-103, an individual who is an incapacitated person or who because of physical or mental disability, including persons with Alzheimer's disease or other dementias, incapacity, or other disability, is substantially impaired in the ability to provide adequately for the care or custody of himself or herself, or is unable to manage his or her property and financial affairs effectively or to meet essential requirements for mental or physical health or safety or to protect himself or herself from abuse, verbal abuse, neglect, or exploitation without assistance from others.

"Ward" means a person over whom a guardianship has been given by the court.

INSTRUCTIONS TO STAFF 340:2-3-2

Revised 9-15-17

1. (a) Prior to substantiating abuse regarding a child, the Office of Client Advocacy (OCA) investigator considers the:

(1) impact on the child related to the child's age, physical condition, and vulnerability to the abuse;

(2) person responsible for the child of interest (PRFCI's) pattern of abusive behavior; and

(3) duration of the abuse.

(b) Prior to substantiating abuse regarding a child, not otherwise defined in the definitions of this Section under harm or threatened harm, physical abuse, mental injury/emotional abuse, sexual abuse, sexual exploitation, or failure to protect, the factors in (1) and (2) are present.

(1) Any action by a PRFCI that results in death, physical or emotional harm, sexual abuse, or exploitation.

(2) The child is harmed or threatened with substantial harm as the result of the PRFCI's behavior.

2. "Accident" means an event that could not be anticipated or prevented through the exercise of reasonable care.

3. "Physical injury" means temporary or permanent damage or impairment to the child's body by the PRFCI.

4. "Physical abuse" regarding children, means an injury resulting from punching, beating, kicking, biting, burning, or otherwise harming a child. Even when the injury is not an accident, the PRFCI may not have intended to hurt the child.

(A) The injury may result from:

(i) extreme physical punishment inappropriate to the child's age or condition;

(ii) a single episode or repeated episodes that range in severity from significant bruising to death; or

(B) A minor injury on a child older than 10 years of age is not considered physical abuse unless the actions that caused the injury placed the child in grave physical danger. Minor injury means belt marks, slap marks, or bruises on the child's buttocks, legs, shoulders, or arms that are not extensive, deep, or are located on multiple sites as a result of discipline to a child 10 years of age and older and are located on the legs, shoulders, arms, or buttocks. Minor injury examples may include, but are not limited to:

(i) fingertip bruising to the child's arm; and

(ii) belt marks, slap marks, or bruises on the child's buttocks or legs that are not extensive, deep, or are located on multiple sites.

(C) Prior to substantiating physical abuse, the OCA investigator:

(i) determines if the child sustained a physical injury;

(ii) assesses the severity of the injury;

(iii) obtains the explanation given by the PRFCI and child for the injury; and

(iv) determines the PRFCI's intent when physically disciplining the child.

(D) In general, to substantiate physical abuse the factors in (i) and (ii) are present.

(i) The child sustains a physical injury inflicted by the PRFCI resulting in temporary or permanent damage to the child's body from extreme physical punishment, punching, beating, kicking, biting, burning, or otherwise harming the child.

(ii) The injury is inflicted non-accidentally by the PRFCI.

(E) When the PRFCI does not admit inflicting the injury to the child, one or more pieces of evidence in (i) through (iii) is present.

(i) In the OCA investigator's professional judgment, the injury is clearly consistent with abuse based on credible evidence gathered regarding the cause of the injury.

(ii) It is the opinion of a licensed health care professional that the injury is consistent with abuse.

(iii) A witness statement corroborates the child's statement.

(F) Physical abuse may be substantiated without the presence of an injury when the PRFCI admits to an action that in the OCA investigator's professional judgment, based on professional training or on collaborating witness statements, constitutes the potential for substantial injury to the child, such as the child is:

(i) customarily hit in the face or head or receives extreme physical punishment inconsistent with the explanation; or

(ii) very young and frail and the alleged abuse described is inappropriate for the child's age or development.

5. Mental injury/emotional abuse is determined with reference to the following definitions and guidelines:

(A) "mental injury/emotional abuse" means an injury to the child's intellectual or psychological capacity:

(i) as evidenced by observable and substantial impairment in the child's ability to function within the child's normal range of performance and behavior with regard to the child's culture; and

(ii) resulting from a pattern of cruel and unconscionable acts upon the child, statements made or permitted to be made to the child, or within the child's environment, by the PRFCI.

(B) To substantiate mental injury, one or more of the factors in (i) through (iii) is present.

(i) The PRFCI demonstrates a pattern of emotionally abusive or neglectful behavior causing the child extreme unpleasant mental reactions, such as fright, horror, grief, shame, or humiliation.

(ii) A professional judgment indicating the PRFCI's behavior causes observable and substantial impairment of the child's intellectual or emotional functioning.

(iii) There is cumulative documentation of the child's impairment and the PRFCI's behaviors, such as:

(I) statements by the child and at least one competent witness;

(II) the PRFCI's description of a typical family interaction;

(III) the PRFCI's description of an attitude toward the child;

(IV) collaborative evidence provided by collateral sources familiar with the family; or

(V) the OCA investigator's observation and assessment of the child's behavior and demeanor.

(C) Mental injury examples include, but are not limited to:

(i) acts or repeated statements directed at the child that degrade or belittle the child;

(ii) exposure to repeated violent or intimidating acts or statements that may or may not be directed at the child, but have a harmful effect on the child;

(iii) ignoring or being psychologically unavailable to the child, ranging from a lack of sustained attention to a barrier of silence;

(iv) the PRFCI:

(I) showing little or no attachment to the child and failing to provide minimum levels of nurturing; or

(II) regularly ignoring, rejecting, or cursing the child when the child requires assistance from the PRFCI;

(III) confusing the child's gender identity by forcing the child to dress in clothing inappropriate for the gender of the child in order to shame the child;

(IV) exposing the child to maladaptive and harmful influences by engaging in serious criminal activity with the full awareness of the child, or by allowing or encouraging the child to engage in illegal acts, which may be considered mental injury/emotional abuse depending upon the child's age and maturity level; or

(V) consistently refusing to permit any professional to assess the child's serious emotional or behavioral problems, which may also be considered medical neglect.

6. To substantiate "caretaker misconduct," the act or omission by the PRFC:

(a) violates a statute; regulation; written rule, policy, procedure, or directive; or accepted professional standards and practices;

(b) is not found to be abuse or neglect; and

(c) results in, or creates the risk of harm to, a child or a vulnerable adult residing at Greer.

7. (a) To substantiate "threat of harm," the factors in (1) or (2) are present.

(1) The PRFCI either intended to act, acted, omitted to act, or knew about conditions that placed the child in imminent or impending danger and exhibited no protective capacities.

(2) The intentions, actions, omissions, or conditions could have resulted in physical injury, sexual abuse, or neglect.

(b) Examples of threat of harm may include, but are not limited to, the PRFCI:

(1) knowingly leaving a child in a potentially dangerous situation or with inappropriate caretakers;

(2) driving while under the influence of drugs or alcohol with the child in the car; or

(3) having the child in the PRFCI's direct care while under the influence of illegal drugs, prescription drugs, or alcohol that impairs his or her ability to care for the child.

8. Heinous and shocking finding of abuse. When OKDHS makes a recommendation for a finding of shocking and heinous abuse to a PRFC:

(1) the OCA investigator notifies the Programs Administrator for Investigations upon the closure of an investigation with a finding of heinous and shocking abuse;

(2) the Programs Administrator or designee places the case on the next scheduled Program Review Committee Docket. The Program Review Committee conducts a program review to determine if the finding is correct per policy;

(3) the Programs Administrator adds the PRFC's name with a finding of heinous and shocking abuse to a centralized location; and

(4) the Programs Administrator or designee is then responsible for providing the PRFC's name to Child Care Services within one-business day of the program review's completion.

9. Failure to protect and other neglect regarding a child not otherwise defined.

(1) "Failure to protect" regarding the child, means the PRFCI had knowledge or could have predicted the child would be:

(A) in imminent danger or in a high risk situation; or

(B) with a person who has a history of abusive, neglectful, or violent behavior; and

(C) failed to show regard for the child's need for safety.

(2) In order to substantiate failure to protect regarding a child, the OCA investigator considers:

(A) the PRFCI's knowledge of a potential safety threat to the child;

(B) the PRFCI's overall attitude regarding the child's need for safety; and

(C) if a reasonable adult could have predicted harm to the child in the situation. A reasonable person acts sensibly without serious delay and takes proper, but not excessive precautions.

(3) To substantiate failure to protect regarding a child, either or both of the factors in (A) and (B) of this paragraph are present.

(A) The PRFCI had knowledge or could have predicted the child would be:

(i) in an unsafe situation; or

(ii) with an individual who had a history of abusive, neglectful, or violent behavior.

(B) The PRFCI failed to show attention, care, or consideration for the child's need for safety.

(4) When someone other than the PRFCI is the perpetrator of the abuse or neglect to the child and:

(A) the PRFCI has protected the child and will continue to protect the child, a finding of Ruled Out is made; or

(B) it appears the abuse or neglect was attributable to the PRFCI's willful failure to protect the child, a finding of substantiated failure to protect is appropriate.

(5) Examples of failure to protect may include, but are not limited to:

(A) leaving a child in the care of an inappropriate caretaker or a caretaker with whom the PRFCI does not have a long-standing relationship;

(B) allowing a child to be left with caretakers who previously harmed a child and the PRFCI had knowledge of the previous abuse;

(C) remaining in an environment where a child is being abused and/or neglected by another caretaker; or

(D) permitting abuse and/or neglect to occur at the hands of another PRFCI or caretaker.

(6) For all other forms of neglect not otherwise defined under harm or threatened harm, failure to protect, medical neglect, or lack of supervision prior to substantiating neglect, the OCA investigator considers the:

(A) impact on the child related to the child's age, physical condition, and vulnerability to the conditions;

(B) PRFCI's pattern of neglectful behavior;

(C) duration of the neglect; and

(D) resources available to the PRFCI to assist the PRFCI to increase protective capacities.

(7) To substantiate neglect, the factors in (A) and (B) of this paragraph are present.

(A) The PRFCI does not provide basic food, clothing, shelter, supervision, or essential medical, dental, or behavioral health care necessary for the child's health or safety, due to the PRFCI's behaviors or refusal to use available resources.

(B) The child is harmed or threatened with substantial harm as the result of the PRFCI's behaviors.

(8) Examples of neglect may include, but are not limited to:

(A) dangerously inadequate supervision;

(B) extremely hazardous living conditions;

(C) malnutrition;

(D) failure to obtain or provide critically essential medical, dental, or behavioral health care;

(E) mental injury;

(F) seriously inadequate physical care;

(G) exposure to sexual acts or age-inappropriate material;

(H) failure to protect;

(I) use of a restraint by the PRFCI under circumstances the PRFCI knew or should have known:

(i) was not an authorized use of physical force;

(ii) the type of restraint used is not an approved method;

(iii) the physical surroundings where the restraint was executed would result in a risk of serious injury; or

(iv) the amount of force used was excessive;

(J) abandonment; or

(K) threat of harm.

10. "Medical neglect" means withholding medical treatment or prescription medication of any type that may result in significant harm to the child, when the:

(1) medical treatment is, in the opinion of a licensed health care professional required to safeguard the child from serious medical risk;

(2) child's medical condition is an emergency or a life-threatening condition, constituting such a serious risk to the child's health, safety, or welfare that a reasonable person would procure medical attention immediately and the PRFCI does not do so;

(3) withholding or refusal to administer or supply prescribed medications results in the child needing emergency medical services; or results in the child suffering for a period of time that would have been prevented with proper administration of prescribed medications;

(4) needed medical treatment is withheld from an infant born alive at any stage of fetal development; or is withheld from an infant born with disabilities, when the infant's life-threatening condition will most likely improve or be corrected with medical treatment per Oklahoma Administrative Code (OAC) 340:75-3-430;

(5) To substantiate medical neglect, consultation with licensed health care professionals occurs and either factors (A) and (B) are present or factor (C) of this paragraph is present.

(A) The child does not receive medical, dental, or behavioral health care for a documented serious health problem that when untreated, may place the child in imminent or impending jeopardy of limitation, incapacitation, or death.

(B) The PRFCI demonstrates a consistent refusal to obtain and follow through with specified medical care, including the supply and administration of prescribed medications.

(C) The child's health was significantly endangered by the PRFCI's failure to obtain medical treatment or supply and administer prescribed medications for the child.

(6) Examples of medical neglect include, but are not limited to, the PRFCI:

(A) not seeking medical attention for a child with an injury, especially to the face, head, neck, stomach, ears, or genitals;

(B) not administering prescribed medications, resulting in the child needing emergency medical care or prolonging suffering;

(C) not seeking medical care when the child is ill for a prolonged period of time; or

(D) consistently not following recommendations made by the child's licensed health care professional regarding treatment and/or care.

11. "Lack of supervision" regarding a child is determined using the following guidelines:

(1) Prior to substantiating lack of supervision, the OCA investigator considers the:

(A) child's competence;

(B) environment where the child is left unsupervised;

(C) duration and frequency when the child is left without supervision;

(D) child's accessibility to a capable adult;

(E) PRFCI's expectations of the child while child is alone;

(F) resources available to the PRFCI to improve the supervision plan; and

(G) PRFCI's ability to make safety-related decisions regarding the child.

(2) To substantiate lack of supervision the factors in (A) and (B) of this paragraph are present.

(A) The child is placed in situations beyond the child's developmental ability to manage without competent supervision, guidance, or protection.

(B) The circumstances of the supervision plan are such that a reasonable person would be expected to foresee that the child is placed in danger of physical harm, sexual abuse, or sexual exploitation.

(3) Examples of lack of supervision may include, but are not limited to:

(A) leaving a young child alone without appropriate supervision or access to an appropriate caretaker;

(B) leaving a young child without appropriate supervision in a potentially dangerous or hazardous environment;

(C) not providing appropriate supervision to young, disabled, or vulnerable children around roadways, bodies of water, or inside vehicles;

(D) allowing young or vulnerable children to freely play at a park, playground, school, and the like without an appropriate caretaker present to supervise; or

(E) leaving a child with physical, intellectual, or emotional disabilities without appropriate access to a capable adult or responsible caretaker to tend to his or her needs.

12. Neglect of a vulnerable adult may include neglect of a client's financial interests due to a breach of a fiduciary relationship.

13. Neglect regarding a vulnerable adult may result from lack of supervision appropriate under the circumstances and failure to report client maltreatment per OAC 340:2-3-33.

14. Sexual abuse includes any sexual activity, including sexual propositioning between the PRFCI and the child or any acts committed or permitted by the PRFCI including rape, sodomy, incest, and lewd or indecent acts or proposals. Sexual abuse and sexual exploitation of a child seldom result in physical evidence and often a child victim, due to the seriously troubling emotional aspects of sexual abuse, does not provide consistent reliable information. The absence of substantiation does not mean that sexual abuse or sexual exploitation did not occur. It means the information obtained during the investigation is not sufficient to substantiate the allegation.

(1) Prior to substantiating sexual abuse or sexual exploitation, the OCA investigator considers:

(A) the statements and behaviors of the child, which are usually the primary sources of documentation of sexual abuse;

(B) the child's ability to describe or demonstrate the specific sexual acts that must be present and supported by the child's description as to the context of the sexual abuse, to substantiate sexual abuse or sexual exploitation based solely on the child's statement and behavior; and

(C) when witnesses in the sexual abuse investigation provide information that supports the child's statement and behavior, the information may be used to support substantiation of sexual abuse.

(2) The aspects explored regarding the child's statement and behavior are listed in (A) through (C).

(A) The child's ability to describe verbally or behaviorally, the:

(i) sexual behavior by exhibiting sexual knowledge beyond what is expected for the child's developmental stage;

(ii) description of the sexual behavior from a child's viewpoint; and

(iii) explicit accounts of sex acts.

(B) A child may be able to provide three or more details about the context of the victimization, such as:

(i) where it happened;

(ii) when it happened;

(iii) what the perpetrator said to obtain the child's involvement;

(iv) where other individuals were;

(v) what the victim was wearing;

(vi) what the perpetrator was wearing;

(vii) what pieces of the child's clothing were removed;

(viii) what pieces of the perpetrator's clothing were removed;

(ix) the child's emotional state during the abuse, such as scared, feeling bad, or confused;

(x) if the perpetrator said anything about the child or perpetrator telling, or not telling;

(xi) if the child told anyone; and

(xii) the reactions of the persons the child told.

(C) The child's statement and behavior is explored regarding the child's affect or emotional reaction when recounting sexual abuse. Common emotional reactions to disclosure include:

(i) reluctance to disclose;

(ii) embarrassment;

(iii) anger;

(iv) anxiety;

(v) disgust;

(vi) sexual arousal; or

(vii) fear.

(3) Medical evidence of sexual abuse is seldom found in sexual abuse or sexual exploitation cases. The probability of medical findings is greater with younger children, in acute abuse, and the availability of a skilled, licensed health care professional. Most medical evidence is described as consistent with or suggestive of sexual abuse rather than conclusive.

(4) Complete confession by the perpetrator during the investigation rarely occurs. The perpetrator may:

(A) admit to some, but not all sexual abuse described by the child victim. Typically, the admission is to lesser acts; or

(B) indirectly admit to the sexual abuse without directly stating he or she sexually abused the child. For example, the perpetrator says the child is not lying, but the perpetrator does not admit his or her guilt.

(5) To substantiate sexual abuse, one or more of the factors in (A) through (C) of this paragraph are present:

(A) the child's statement and behavior including the ability to describe or demonstrate specific sexual acts and the ability to describe the context of the sexual abuse;

(B) medical evidence; or

(C) confession of the perpetrator, whether a:

(i) complete confession;

(ii) partial confession; or

(iii) indirect admission.

(6) A specific perpetrator does not need to be identified to substantiate sexual abuse or sexual exploitation.

(7) A child's recantation of a previous account of sexual abuse or sexual exploitation is not uncommon and does not automatically indicate the previous findings were inaccurate.

(8) Sexual behaviors that may be cause for concern include, but are not limited to:

(A) extreme preoccupation with masturbation;

(B) sexual interaction with peers that is not within normal developmental limits;

(C) sexual aggression toward younger or more naive children;

(D) sexual accosting of older children or adults;

(E) seductive behavior in younger children; and

(F) demonstration of sexual behavior, knowledge, or statements about sexual activity that indicates the child may have been exposed to adult sexuality or actual sexual molestation. Sexual knowledge beyond what would be expected for a child's normal developmental stage may signal possible sexual abuse, repeated exposure to adult sexuality, exposure to sexually explicit materials, or pornography.

15. When making the suspicious injury assessment, consideration is given to the credibility of the source of information as well as the information provided. "He fell in the shower" may be an excuse for abuse. "She tripped on her shoe laces" may be an excuse for lack of supervision. When determining if an injury is suspicious, a licensed health care professional's assessment that an injury is not suspicious is only one factor considered and is not conclusive.