Library: Policy

340:2-3-39.1. Reconsideration process for substantiated findings of vulnerable adult maltreatment in Office of Client Advocacy (OCA) investigations and Community Services Worker Registry (CSWR) procedures

Revised 9-15-23

(a) Notice of Reconsideration process for substantiated findings of vulnerable adult maltreatment by vulnerable adult caretakers (VAC) not eligible for CSWR placement.

(1) The OCA administrative programs officer (APO) or designee sends the VAC a notification of findings of vulnerable adult abuse/neglect and request for reconsideration within 10-calendar days of approval of a substantiated investigation finding by the OCA programs manager or supervisor.

(2) The notification of findings informs the VAC of:

(A) any substantiated vulnerable adult abuse or neglect findings in the investigation;

(B) the abuse or neglect referral, allegations, and findings dates;

(D) instructions regarding the request for reconsideration, specifying that:

(i) the VAC may request reconsideration by mailing a request to the OCA Reconsideration Committee within 20-calendar days of the date the notification of findings was sent;

(ii) the VAC has the right to provide additional written documentation to support a change of finding within 20-calendar days of the mailing date of the notification of findings.

(iii) if the VAC requests an attorney be notified of the determination results, verification of representation must first be established via submission of a statement of representation from the attorney on his or her official letterhead; and

(iv) failure to submit a request for reconsideration within 20-days of the date the notification of findings was sent may result in the finding becoming final. In this case, the VAC may only contest the finding upon a showing of good cause.

(3) The notification of findings does not include the reporting party's identity.

(b) Review procedure for substantiated findings of vulnerable adult maltreatment by VAC not eligible for CSWR placement.

(1) When the VAC requests reconsideration, within 45-calendar days of accepting the request, the OCA Reconsideration Committee determines whether the substantiated maltreatment finding is supported by a preponderance of the evidence and meets the relevant definition, per Section 10-103 of Title 43A of the Oklahoma Statutes (43A O.S. § 10-103).

(2) If the VAC does not request reconsideration, within 45-calendar days of the date the notification of findings was sent, the OCA Reconsideration Committee determines whether the substantiated finding is supported by a preponderance of the evidence and meets the relevant definition, per 43A O.S. § 10-103.

(3) Regardless of whether reconsideration is requested:

(A) the decision to uphold, modify, or reverse the investigative finding or to remand for further investigation is made by reviewing:

(i) the Report to District Attorney, including attachments and relevant OCA documentation, OCA history, Adult Protective Services (APS) history, criminal history, and referral history; and

(ii) any written documents submitted by the VAC;

(B) to ensure that no conflict of interest exists, individuals with direct decision-making power regarding a case are not authorized to vote in connection with its reconsideration, and recuse themselves; • 1

(D) within 15-calendar days of the OCA Reconsideration Committee's decision, the APO or designee provides notification to the:

(i) VAC;

(ii) advocate general;

(iii) programs administrator;

(iv) programs manager;

(v) OCA social services inspector;

(vi) district attorney's office in the county where the finding originated;

(vii) Developmental Disabilities Services (DDS), when applicable;

(viii) Aging Services (AS), when applicable;

(ix) facility administrator; and

(x) guardian for the vulnerable adult, when applicable.

(c) Notice of reconsideration process for substantiated findings of vulnerable adult maltreatment by community services worker (CSW)s eligible for CSWR placement.

(1) The OCA APO or designee sends the CSW a notification of findings of vulnerable adult abuse/neglect and request for reconsideration within 10-calendar days of a substantiated investigation finding approval by the OCA programs manager or supervisor.

(2) The CSW may be added to the CSWR when Oklahoma Human Services (OKDHS) sent proper notice:

(A) to his or her last known address by certified mail, return receipt requested, and regular mail;

(B) to his or her email as provided to OKDHS; or

(3) The notice informs the CSW of:

(A) the dates of the abuse or neglect referral, allegation, and finding; and

(B) instructions regarding the request for reconsideration, specifying that:

(i) he or she may request reconsideration of the investigative findings by submitting a detailed written statement with the request within 20-calendar days of the mailing date of the notice;

(ii) he or she has the right to provide additional written documentation to support a change of finding within 20-calendar days of the mailing date of the findings letter;

(iii) that when a VAC requests an attorney be notified of the determination results, verification of representation must first be established via submission of a statement of representation from the attorney on his or her official letterhead; and

(iv) absent good cause shown, failure by the CSW to submit a request for reconsideration within 20-calendar days of the mailing date of the notice:

(I) may result in the finding becoming final;

(II) waives the right to further administrative or judicial review; and

(III) authorizes entry of his or her name in the CSWR and disclosure, per Oklahoma Administrative Code (OAC) 340:100-3-39, to any person requesting such information.

(4) The notice does not contain the reporting party's identity.

(d) Review procedure for substantiated findings of vulnerable adult maltreatment by CSWs eligible for CSWR placement.

(1) If the CSW requests reconsideration, within 20-calendar days of the date the notification of findings was sent, the OCA Reconsideration Committee determines whether the substantiated maltreatment finding is supported by a preponderance of the evidence and meets the relevant definition, per 43A O.S. §10-103.

(2) If the CSW does not request reconsideration, within 20-calendar days of the date the notification of findings was sent, the OCA Reconsideration Committee determines whether the substantiated finding is supported by a preponderance of the evidence and meets the relevant definition, per 43A O.S. § 10-103.

(3) Regardless of whether reconsideration is requested:

(A) the decision to uphold, modify, or reverse the investigative finding or to remand for further investigation is made by reviewing:

(i) the Report to District Attorney, including attachments and relevant OCA documentation, OCA history, APS history, criminal history, and referral history; and

(ii) any written documents submitted by the CSW;

(C) the OCA Reconsideration Committee informs the APO by email of its decision to uphold, modify, or reverse the finding; and

(D) within 15-calendar days of the OCA Reconsideration Committee's decision the APO or designee provides notification to the:

(i) CSW;

(ii) advocate general;

(iii) programs administrator;

(iv) programs manager;

(v) OCA social services inspector;

(vi) district attorney's office in the county where the finding originated;

(vii) DDS, when applicable;

(viii) child care services (CCS), when applicable;

(ix) AS, when applicable;

(x) facility administrator; and

(xi) guardian for the vulnerable adult, when applicable.

(e) Upheld substantiated findings for CSWs eligible for CSWR placement.

(1) When the OCA Reconsideration Committee makes a determination to uphold a substantiated finding of maltreatment of a vulnerable adult by a CSW eligible for CSWR placement, the OCA Reconsideration Committee immediately conducts a CSWR review to determine potential registry placement based on criteria in (A) and (B) of this paragraph. Whether the CSW's wrongful conduct:

(A) results in, or creates a substantial risk of serious physical or emotional injury to a service recipient; or

(B) was the result of intentional, willful, or reckless disregard for the service recipient's health or safety.

(2) When the OCA Reconsideration Committee upholds a substantiated finding under a preponderance of the evidence standard, but the CSW's conduct does not meet the criteria required for potential registry placement, the committee chair notifies the APO.

(3) The APO or designee provides written notification of the reconsideration determination within 15-calendar days of the decision. This time period runs concurrent with the 15-calendar day deadline for sending notice of the reconsideration results. The notice is provided to the:

(A) CSW;

(B) advocate general;

(D) programs manager;

(E) OCA social services inspector;

(F) district attorney’s office in the county where the finding originated;

(G) DDS, when applicable;

(H) CCS, when applicable;

(I) AS, when applicable;

(J) facility administrator; and

(K) guardian for the vulnerable adult, if applicable.

(4) When the registry review affirms or modifies the findings and determines the CSW warrants potential placement on the CSWR, the OCA APO notifies OKDHS Legal Services (LS).

(5) OKDHS LS has prosecutorial discretion and determines whether to pursue CSWR placement.

(A) When OKDHS LS decides not to pursue CSWR placement, LS staff sends a Determination Letter to the CSW, copied to the OCA APO, and OCA takes no further action.

(B) When OKDHS LS staff decides to pursue CSWR placement, LS staff notifies the OCA APO or designee. The APO then notifies the CSW, as provided in (c)(2) of this Section that:

(i) if the CSW is aggrieved by the decision, an administrative hearing may be requested in writing via mail sent to OKDHS within 20-calendar days of the date the reconsideration decision was sent; and

(ii) absent a finding of good cause by an administrative law judge (ALJ), the failure to timely request a hearing:

(I) results in the reconsideration decision becoming final;

(II) waives any right to an administrative hearing or judicial review; and

(III) authorizes entry of the CSW's name in the CSWR, and disclosure to any person requesting the information per this subsection.

(f) Hearing Notice. When the CSW submits a timely written request for hearing, or upon the ALJ finding of good cause for a request that was not timely, OKDHS LS sends a hearing notice as provided in (c)(2) of this Section within 10-business days of receipt of the request. The hearing notice is dated and states:

(1) the administrative law judge's (ALJ) name;

(2) the hearing date and time;

(3) the street and city address and room number where the hearing is scheduled;

(4) that his or her failure to attend the hearing, absent a finding of good cause by an ALJ:

(A) waives any right to either an administrative hearing or judicial review; and

(B) authorizes entry of his or her name in the CSWR, and disclosure to any person requesting the information, per OAC 340:100-3-39;

(5) the CSW may be represented by an attorney;

(6) requests by the CSW or his or her attorney for witnesses or records, relevant to the proceeding must be directed to OKDHS LS staff, who forward requests to the relevant persons, OKDHS programs, and provider, per OAC 340:100-3-39; and

(7) a final proposed list of evidence, witnesses, and summary of anticipated testimony must be submitted to the administrative law judge designated on the notice of hearing at least 10-calendar days prior to the hearing.

(g) Hearing.

(1) The hearing is:

(A) held no earlier than 15-calendar days and no later than 90-calendar days after the date the request for hearing was received by OKDHS. Upon request by the CSW or OKDHS, and for good cause shown, a hearing may be held more than 90-calendar days after the date the request for hearing was received by OKDHS, when approved by the ALJ;

(B) closed and all information presented therein is confidential; and

(2) The CSW or his or her attorney is allowed to cross-examine witnesses called by the OKDHS attorney, who is allowed to cross-examine any witnesses called by the CSW or his or her attorney.

(3) The ALJ has final decision on the specific persons allowed to testify, the scope of direct testimony and cross-examination, and admissibility of exhibits, except all OKDHS and provider records pertaining to a finding of confirmed maltreatment are admissible.

(4) The formal rules of evidence and procedure under Oklahoma law are not controlling, the burden of persuasion and initially coming forward with evidence is on OKDHS through its attorney, and the standard of proof is clear and convincing evidence.

(h) Hearing decision. A written decision by the ALJ:

(1) is issued placing the CSW on the CSWR when the ALJ finds by clear and convincing evidence that maltreatment occurred. Despite a finding by the ALJ that maltreatment occurred, the CSW is not added to the CSWR when the ALJ makes a finding that the the act or omission that is the basis for the confirmed finding either:

(A) did not result in, or create a substantial risk of, serious physical or emotional injury to a vulnerable adult; or

(B) was not the result of intentional, willful, or reckless disregard for the service recipient's health or safety;

(2) is issued denying placement of the CSW on the CSWR if the ALJ finds that there is not clear and convincing evidence that maltreatment occurred;

(3) contains findings of fact and conclusions of law;

(4) contains appeal rights, the action required to appeal, and the time within which such actions must be taken;

(5) is issued within 30-calendar days of the hearing; and

(6) is sent to the CSW by certified mail, return receipt requested or email as applicable no later than the third business day following the date the decision is signed by the ALJ.

(i) Appeal rights. A CSW aggrieved by a decision of the ALJ may seek judicial review of the decision. A judicial review, based solely on the administrative record, may be initiated by filing a petition in the Oklahoma district court with jurisdiction within 30-calendar days from the date the decision is signed by the administrative law judge, per 56 O.S. § 1025.3 and 75 O.S. § 318. A copy of the petition and summons filed in district court must be served on OKDHS LS.

(j) Request for CSWR removal. A registrant may request removal after 60 months from the date of placement on the CSWR. A request for removal from the CSWR is forwarded to the OCA Reconsideration Committee. The OCA Reconsideration Committee makes a determination within 30-calendar days of receipt of the CSW's request.

(1) Criteria considered for removal includes, but are not limited to:

(A) the individual's age at the time of the offense(s);

(B) the number and types of maltreatment incidents for which the individual has findings made against them;

(D) the likelihood the individual will maltreat again;

(E) other documentation submitted indicating the vulnerable adult's health, safety, and well-being are, or are not endangered;

(F) a current criminal background review, conducted within 30-calendar days of the date of the removal request;

(G) work and training histories, since registration;

(H) a personal statement of rehabilitative efforts; and

(I) the length of time on the CSWR.

(2) A decision to remove a registrant from the CSWR is based on an OCA Reconsideration Committee majority decision. • 2

(3) OCA Reconsideration Committee staff notifies the registrant of the OCA Reconsideration Committee decision.

(k) Service. If Form 15IV004E, Address Information Notice, is not obtained during the investigative process found in OAC 340:2-3-36.1. OKDHS may obtain service on a CSW by any means authorized by the Rules for the District Courts of Oklahoma as found in Title 12 of the Oklahoma Statutes (12 O.S. § Rule 1, et. seq.).

INSTRUCTIONS TO STAFF 340:2-3-39.1

Revised 9-15-23

1. The Office of Client Advocacy (OCA) Reconsideration Committee is comprised of:

(1) the grievance program supervisor or designee;

(2) a programs manager or designee for OCA Advocacy;

(3) a programs manager or designee from Developmental Disability Services; and

(4) a programs manager or designee from Adult Protective Services.2. When the Reconsideration Committee decision is to remove the registrant, OCA Reconsideration Committee staff notifies Oklahoma Human Services to update the Community Services Worker Registry database within five-business days.

2. When the Reconsideration Committee decision is to remove the registrant, OCA Reconsideration Committee staff notifies Oklahoma Human Services to update the Community Services Worker Registry database within five-business days.