340:2-3-38. Investigation of complaints made by foster parents or made by or on behalf of children being served by Child Welfare Services (CWS)
(a) Application. The Office of Client Advocacy (OCA) investigates allegations:
(1) that an employee of Oklahoma Human Services (OKDHS) or of a child-placing agency threatened a foster parent with removal of a child from the foster parent, harassed or refused to place a child in a licensed or certified foster home, or disrupted a child placement as retaliation or discrimination towards a foster parent who engaged in a protected act, per Sections 1-9-112 and 1-9-117 of Title 10A of the Oklahoma Statutes (10A O.S. §§ 1-9-112 and 1-9-117); and
(2) that any OKDHS or child-placing agency employee retaliated or discriminated against a child being served by CWS for engaging in a protected act, per 10A O.S. § 1-9-119.1 and 10A O.S. § 1-9-120.
(b) Definitions. The following words and terms when used in this Section shall have the following meanings unless the context clearly indicates otherwise:
(1) "Administrator" with regard to a child-placing agency, means the chief administrative officer of the agency.
(2) "Child-placing agency" means an agency that arranges for or places a child in a foster family home, group home, adoptive home, or successful adulthood program, per 10 O.S. §§ 401 through 418.
(3) "Discrimination" means differential treatment by an OKDHS or child-placing agency employee of similarly situated foster parents or similarly situated children being served by CWS that in reprisal for engaging in a protected activity.
(4) "Harassment" means a knowing and willful pattern of conduct, statements, or behaviors that serve no legitimate purpose, directed at a foster parent or child being served by CWS that a reasonable person in the same or similar circumstances would find intimidating or substantially distressing.
(5) "Protected activity" means a foster parent or child being served by CWS engaged in:
(A) filing a grievance with OKDHS or the Oklahoma Commission on Children and Youth (OCCY) Office of Juvenile System Oversight (OJSO), or with a child-placing agency, per 10A O.S. § 1-9-120;
(B) providing information regarding foster care services to any state official or OKDHS employee; or
(C) testifying, assisting, or otherwise participating in an investigation, proceeding, or hearing against OKDHS or a child-placing agency.
(6) "Retaliation" means:
(A) with regard to a child being served by CWS, in reprisal for the child engaging in a protected activity, an OKDHS or child-placing agency employee took an adverse action against the child including, but not limited to, punishment, interference, or coercion; or
(B) with regard to a foster parent, in reprisal for the foster parent engaging in a protected activity, an OKDHS or a child-placing agency employee:
(i) threatened a foster parent with a child's removal from the foster parent's care;
(ii) refused or failed to place a child in a licensed or certified foster home; or
(iii) disrupted a child placement.
(c) Scope. A foster parent or a child being served by CWS has the right, without fear of reprisal or discrimination, to lodge concerns and complaints with respect to the provision of foster care services to OJSO. OJSO forwards complaints to OCA. OCA determines if foster parent or child being served by CWS complaints meet criteria for a formal investigation. OCA:
(1) initiates investigations that meet the criteria, per Oklahoma Administrative Code (OAC) 340:2-3-38(a); and • 1
(2) forwards discrimination allegations to the Office for Civil Rights when the alleged discrimination includes actions or decisions based on race, color, national origin, sex, religion, age, or disability, unless authorized by law.
(d) Exclusions. The provisions of this Section do not apply to:
(1) a complaint by a foster parent or by a child being served by CWS regarding the result of a criminal, administrative, or civil proceeding for a violation by that foster parent or child being served by CWS of a law, rule, or contract provision, or an action taken by OKDHS or a child-placing agency in conformity with the result of such proceedings;
(2) allegations of acts of retaliation, discrimination, or harassment that occurred more than one year prior to the date of the foster parent or child being served by CWS complaint; or
(3) allegations of a pattern of retaliation, discrimination, or harassment, the last incident that occurred more than one year after the foster parent or child being served by CWS participated in a protected activity.
(e) Protections for foster parents filing complaints in good faith. 10A O.S. § 1-9-117 provides that any foster parent who has reasonable cause to believe he or she was threatened with removal of a foster child, refused placement of a child, or had a placement disrupted in retaliation, discrimination, or harassment by an OKDHS or a child-placing agency employee, as outlined in (c) of this Section, may file a complaint with OJSO. The law provides that persons making a report in good faith under this Section may not be adversely affected solely on the basis of having made such report. The law also provides that any person who knowingly and willfully makes a false or frivolous report or complaint may be subject to loss of foster parent approval or licensure status.
(f) Reporting procedure. Foster parents or children being served by CWS may file complaints by calling OCA or using the OCCY website at okfosterparentvoices.org or okfosteryouthmatters.org.
(g) Confidentiality. OCA maintains confidentiality regarding the reporter's identity . OCA must prepare and maintain written records from the reporting source including the:
(1) names and addresses of the child being served by CWS and the person(s) responsible for the child's welfare;
(2) nature of the complaint; and
(3) names of the persons or agencies responsible for the allegations contained in the complaint.
(h) Prohibition against interference.
An OKDHS employee who interferes with a foster parent's or child being served by CWS's grievance rights or an OCA investigation may be subject to administrative action for misconduct per OKDHS personnel rules relating to cause for disciplinary action.
(i) Initiation of OCA investigation. Upon disposition of a report of retaliation, discrimination, or harassment against a foster parent or child being served by CWS, OCA assigns an OCA investigator to investigate the allegations per this Section. The OCA investigation does not duplicate and is separate from any investigation mandated by the Oklahoma Child Abuse Reporting and Prevention Act or other investigations having formal notice or hearing requirements.
(j) Rights and responsibilities of employees. The rights and responsibilities of OKDHS employees or agents in an OCA foster parent or child being served by CWS investigation are listed in (1) through (7) of this subsection. OKDHS employees or agents:
(1) make themselves available for interviews and accommodate the OCA investigator in scheduling interviews;
(2) provide pertinent information and respond fully and truthfully to questions asked;
(3) may submit written statements relating to the events in question in addition to being interviewed;
(4) may seek advice concerning their rights and responsibilities from other parties within, or outside of OKDHS;
(5) prepare written statements or reports relevant to the investigation upon request;
(6) who reasonably believe answers to official inquiries regarding the events in question may incriminate them in a criminal prosecution, may decline to answer those questions; and
(7) when interviewed do not discuss their interviews with anyone outside of OCA.
(k) Access. At all times, OCA is granted access to any foster home or facility approved, authorized, or funded by OKDHS, or a child-placing agency.
(l) Investigation procedures. Investigations are conducted, per OAC 340:2-3-36, unless otherwise provided in this Subchapter.
(1) Notifying administrators and accused caretakers. The assigned OCA investigator notifies the applicable administrator or State Office administrator of the investigation and arranges for document production, site visits, and interviews. The administrator or State Office administrator who employed an accused employee at the time of an alleged incident promptly informs the accused employee of:
(A) the OCA investigator's name and phone numbers;
(B) the investigative process;
(C) his or her rights and responsibilities relating to the investigation described in (j) of this Section, using Form 15IV006E, Investigations of Foster Parent Retaliation Complaints - Rights and Responsibilities of Accused OKDHS Employees, a copy of which is provided by the OCA investigator; and
(D) the nature of the allegation(s) made against the employee; however, at this time the employee is not provided the details of the allegations or the substance of the evidence.
(2) OCA access to evidence. Applicable administrators and State Office administrators cooperate and facilitate with the OCA investigation by:
(A) providing access to requested information;
(B) producing relevant documents, files, and records;
(C) accompanying the OCA investigator on foster home visits, when requested by OCA; and
(D) providing access to accused employees and others who have knowledge of relevant information.
(3) OCA findings regarding foster parent or child being served by CWS retaliation, discrimination, or harassment and completion timeframes. The OCA investigator conducts a prompt and thorough investigation within 60-calendar days from the date of the referral, stating one of the following findings.
(A) "Substantiated" means OCA determined, based on the preponderance of the evidence that foster parent retaliation, discrimination, or harassment occurred or that a child being served by CWS was subject to retaliation or discrimination.
(B) "Unsubstantiated" means OCA determined, based on the preponderance of the evidence, that insufficient evidence exists to determine foster parent retaliation, discrimination, or harassment occurred or that a child being served by CWS was subject to retaliation or discrimination. • 3
(4) The written investigation report. After completing the information-gathering portion of the investigative process, the OCA investigator prepares a written report containing: • 2
(A) the allegations investigated, including the date, time, and location of the alleged incident, the date the allegation was reported to OCA, the OCA case number, and the assigned OCA investigator;
(B) a list of the involved parties, and their titles and roles in the alleged incident;
(C) the applicable definition of the type of conduct at issue, such as retaliation, discrimination, or harassment, or any combinations thereof;
(D) if the foster parent or child being served by CWS engaged in a protected activity listed in (c)(2) of this Section and, if so, a description of the activity;
(E) the findings, per (l)(3) of this Section;
(F) an explanation of the basis for the finding;
(G) a summary, in cases involving a substantiated finding, of each interview conducted during the investigation, including the date and location of the interview;
(H) areas of concern identified during the investigation regarding OKDHS or child-placing agency practices or procedures;
(I) a list of documents and records reviewed during the investigation; and
(J) a list of attachments submitted with the final report.
(5) OCA investigative report dissemination.
(A) In cases involving allegations against an OKDHS employee, the advocate general submits a copy of the final OCA investigation report to the OKDHS Director and applicable State Office administrators.
(B) In cases involving a child-placing agency employee, the advocate general sends a letter summarizing the allegation and the OCA finding to the agency administrator and sends a copy of the report to the appropriate State Office administrator. When the child-placing agency administrator is the subject of the investigation, the letter summarizing the allegation and the OCA finding is sent to the agency's board of directors.
(C) OCA sends the foster parent or child being served by CWS and each accused OKDHS employee a letter summarizing the allegation and the OCA finding.
(D) All parties receiving copies of the investigative reports are bound by the confidentiality provisions, per 10A O.S. § 1-9-112 and 43A O.S. § 10-110.
(m) Request for reconsideration by the advocate general. Within 15-calendar days of receipt of the final OCA investigative report or summary, the CWS State Office administrator or the administrator's designee, the child-placing agency administrator, or the employee may request reconsideration by the advocate general.
(n) OKDHS Director's request for reconsideration by the advocate general. Within 30-calendar days of receipt of the final OCA investigative report, the OKDHS Director may request reconsideration by the advocate general.
(o) Response to a substantiated finding by a State Office administrator or child-placing agency administrator.
(1) When a State Office administrator receives a copy of an OCA investigative report containing a substantiated finding and reconsideration was not timely requested within 30-calendar days of receipt of the OCA report, the State Office administrator notifies the advocate general in writing of any personnel action taken, or to be taken, with regard to the employee, or any corrective action taken, or to be taken, regarding the areas of concern noted in the OCA report.
(2) When the OKDHS Director refers the matter to the advocate general for reconsideration, the State Office administrator's response to the advocate general regarding corrective action is due within 30-calendar days of the advocate general's final finding on reconsideration.
(3) When a child-placing agency administrator receives a letter summarizing the allegations and the OCA finding against a child-placing agency employee, the child-placing agency administrator notifies the advocate general in writing within 30-calendar days of the final report of any personnel action taken, or to be taken, with regard to each employee named in the report, and of the status of areas of concern noted in the OCA report.
INSTRUCTIONS TO STAFF 340:2-3-38
1. Any complaint communicated by a foster parent or child being served by Child Welfare Services (CWS) either verbally or in writing to an Oklahoma Human Services (OKDHS) employee, agent, or state official is considered when determining if an investigation is warranted.
2. "Identified opportunities for improvement" means the Office of Client Advocacy determined that foster parent or child being served by CWS retaliation, discrimination, or harassment did not occur, OCA identified possible opportunities for an employee of OKDHS or a child-placing agency to improve in his or her implementation of OKDHS rules or practices. Once identified, opportunities for improvement are forwarded for review to the CWS State Office administrator or the administrator's designee for review to determine if personnel action is appropriate.
3. Proving retaliation. The elements in (a) through (c) are required for a substantiated finding.
(a) Protected activity by the foster parent or child being served by CWS.
(b) Adverse action by an employee of OKDHS or of a child-placing agency, including any action that may deter a child under similar circumstances from engaging in a protected activity.
(c) Causal connection between the protected activity and the adverse action, consisting of evidence that must be present showing the adverse action was taken in response to the protected activity. Examples of a causal connection include, but are not limited to:
(1) a written or verbal statement by an official that the official took the challenged action in response to the complaining party's protected activity;
(2) evidence that a false reason was given for taking the action;
(3) evidence of disparate treatment between those who did and did not engage in the protected activity; or
(4) evidence that the decision was made soon after the protected activity.