340:2-3-71. Office of Client Advocacy (OCA) general advocacy services
(a) Legal authority and scope. OCA provides advocacy services to recipients of Developmental Disabilities Services (DDS) listed in this subsection, who are collectively referred to as "clients," per Oklahoma Administrative Code (OAC) 340:2-3-71 through 340:2-3-75.
(1) Section 1415.1(A)(2) of Title 10 of the Oklahoma Statutes (10 O.S. § 1415.1(A)(2)) requires the Oklahoma Department of Human Services (OKDHS) to establish an ombudsman program for each institution and residential facility for persons with intellectual disabilities operated by OKDHS. OKDHS conferred this responsibility on OCA. The advocacy services provided to Robert M. Greer Center (Greer) and Laura Dester Children’s Center (SHIELD) residents are outlined in OAC 340:2-3-71 and 340:2-3-72.
(2) Orders of the United States District Court for the Northern District of Oklahoma in Homeward Bound, Inc., et al. v. Hissom Memorial Center, et al., Case No. 85-C-437-TCK-SAJ, require OKDHS and OCA to provide advocacy services to individuals certified by the court as members of the plaintiff class, known as Hissom Class Members (HCM)s. These services are outlined in OAC 340:2-3-71 and 340:2-3-73.
(3) Former Northern Oklahoma Resource Center of Enid (NORCE) and the Southern Oklahoma Resource Center (SORC) residents, who transitioned after the Oklahoma Commission for Human Services resolution of November 1, 2012, which closed the facilities, are provided with advocacy services pursuant to that resolution and consistent with the obligation to serve persons with disabilities in the most integrated setting appropriate to their needs. 28 CFR §35.130(d). Olmstead v. L.C., 527 U.S. 581 (1999). These services are outlined in OAC 340:2-3-71 and 340:2-3-73.
(4) Consistent with the requirements of Olmstead, OCA provides special advocacy services on an as-needed basis to other DDS clients. These services are outlined in OAC 340:2-3-71 and OAC 340:2-3-75.
(b) Definitions. The following words and terms, when used in OAC 340:2-3-71 through 340:2-3-75 shall have the following meaning unless the context clearly indicates otherwise:
(1) "Capacity assessment" means the process of determining an individual's ability to make informed decisions and the need for assistance with decision-making regarding personal and financial matters, per OAC 340:100-3-5.
(2) "Human Rights Committee" or "HRC" means the committee charged with the responsibility for external monitoring and advocacy to address protection of individual rights.
(3) "Individual plan" or "IP" means a written document developed by the Personal Support Team based upon assessment of need. The IP specifies outcomes pursued on behalf of the individual, steps taken to achieve outcomes, and all services and supports necessary to achieve outcomes.
(4) "Informed consent" means the ability to make and express voluntary decisions, given correct and sufficient information about the nature, purpose, risks, benefits, and alternatives of a proposed service or action. Individuals, 18 years of age and older, are presumed to have capacity to give informed consent except to the extent adjudicated incapacitated by the court. An individual is not considered incapacitated solely by reason of his or her diagnosis. Individuals may be adjudicated incapacitated in one area, while being fully capable of understanding and exercising rights in other areas. Individuals have the right to exercise judgment in all areas of capacity.
(5) "Personal Support Team (PST)" means the participants in the individual's assessment and planning process. The PST includes the service recipient, case manager, legal guardian, OCA advocate, service providers, and others whose participation is necessary to achieve the outcomes desired by the service recipient.
(6) "Program coordinator" or "PC" means a person employed by a DDS residential or group home contract provider agency responsible for the supervision, coordination, and monitoring of services provided by the contract provider agency to a service recipient.
(7) "Service review" means an assessment by an OCA advocate of a client's health, living circumstances, and the delivery of supportive services. The service review documents the extent of services provided to an individual client and identifies problem areas in service delivery. Each service review is a snapshot of an individual's life at the time the review is completed.
(8) "Statewide Behavior Review Committee" or "SBRC" means the committee established, per OAC 340:100-3-14 that reviews each protective intervention plan with restrictive or intrusive procedures. The review ensures the plan complies with DDS policy on the use of restrictive or intrusive procedures, per OAC 340:100-5-57. .
(c) Client records. Information in OCA records relating to advocacy services provided to the clients listed in (b) of this Section is confidential and protected from unauthorized use. Only authorized individuals are given access to client records or provided information from those records. • 1
(1) The confidentiality provisions of OAC 340:100-3-2 apply to OCA client files.
(3) A breach of confidentiality may result in criminal prosecution. Violations by OKDHS employees may also result in personnel action.
(e) Client representation.
(1) OCA assigns OCA advocates to represent:
(A) Greer residents, per Title 10, Section 1415.1(A)(2); and
(B) specific DDS clients living in Oklahoma and former NORCE and SORC residents, per Part 9, OAC 340:2-3-71 through 340:2-3-75. • 5
(2) An OCA advocate is knowledgeable about the clients he or she represents and seeks to understand each client's specific challenges and communication styles, needs, interests, and goals. • 4 An OCA advocate ascertains the client's preferences and choices and becomes familiar with a client by:
(A) reviewing relevant client records and files;
(B) conducting in-person visits and other contacts with the client at home, at work, and in other contexts; and
(C) communicating with the client's program coordinator and provider staff, case manager, and others in the client's circle of support, such as relatives, loved ones, and guardians.
(f) OCA advocacy services.
(1) Advocacy. Advocacy is assisting an individual in voicing his or her interests. Clients are encouraged to engage in self-determination and are assisted to the extent they need and desire. When a client has a limitation in voicing his or her own interests, needs, and preferences, an OCA advocate seeks to speak on behalf of the client. Advocacy services provided by OCA advocates include, but are not limited to:
(A) supporting the implementation of the least restrictive alternative in residential, vocational, therapeutic, and medical settings;
(B) supporting the most appropriate living environment for each client consistent with the client's needs and objectives;
(C) encouraging the development of natural supports including friends, coworkers, and neighbors in the community where the individual lives; and
(D) bringing performance issues or service deficiencies to the attention of those who are responsible for correcting the situation. • 6
(2) Monitoring. OCA monitors the well-being and provision of services to a client.
(A) Monitoring is done by means of:
(i) visits and other forms of contact with the client, staff, family members, and those who know the client;
(ii) reviewing records, documentation, contracts, and financial agreements between clients and providers of services, incident reports, and professional assessments; and
(iii) attendance at IP and other PST meetings.
(B) OCA advocates cooperate with and, render assistance to outside monitoring and advocacy entities as provided for by federal and state laws, relating to client confidentiality and release of information protocols.
(C) The monitoring role of an OCA advocate ensures the client's:
(i) individual needs, preferences, and choices are identified and met appropriately and consistently;
(ii) health, safety, and welfare standards and safeguards are maintained; and
(iii) problems and issues are addressed at the earliest juncture by appropriate persons and entities in a prompt manner.
(3) Informal problem resolution. An OCA advocate seeks to resolve issues and client concerns at the lowest level of administrative responsibility or decision-making. Informal problem resolution seeks to resolve issues and reach a consensus with the client on a plan of action. An OCA advocate seeks to apply an appropriate problem resolution activity that most effectively addresses the nature and imminence of the problem. An OCA advocate assists a client in the development of problem resolution skills and self-advocacy. • 6 & 7
(4) Grievances. An OCA advocate advises clients and assists them in filing grievances on their own behalf. An OCA advocate may also file grievances on behalf of clients as circumstances require. Grievance policies are found in OAC 340:2-3-45 through 340:2-3-55. • 8
(5) Protection and safety. OCA staff takes appropriate action to protect the client's health, safety, and welfare, including reporting allegations of abuse, neglect, maltreatment, and exploitation, per OAC 340:2-3-32 through 340:2-3-39.
(A) OCA advocates assist OCA staff, Adult Protective Services investigators, and law enforcement officers in obtaining information necessary to complete investigations when a client is an alleged victim.
(B) OCA advocates engage in appropriate follow-up activity in response to a referral from the OCA Intake Unit, per OAC 340:2-3-35. • 9
(C) When an OCA advocate has a concern related to a client's health, safety, welfare, or program implementation, he or she advises the client's case manager or designated qualified intellectual disabilities professional (QIDP), as applicable, and others, such as DDS staff, provider or facility staff, treatment staff, or health care professionals as circumstances warrant.
(D) Immediately upon becoming aware of concerns regarding imminent risk of harm, an OCA advocate advises the applicable residential or vocational provider and the client's case manager.
(E) An OCA advocate ensures that abuse, neglect, maltreatment, and/or exploitation allegations are reported to the OCA Intake Unit, per OAC 340:2-3-33.
(6) Promoting informed choice. An OCA advocate promotes informed decision-making, consistent with a client's unique strengths, resources, priorities, concerns, abilities, capabilities, and interests through provision of necessary information and assistance to a client to understand his or her options and potential consequences of a decision. When a client is unable to make an informed choice, the OCA advocate seeks to provide the client's legal guardian, guardian ad litem, volunteer advocate, and other representative(s) with access to information to assist him or her to make an informed decision on the client's behalf. The advocate general does not provide legal advice to clients but may provide information about the law.
(7) Protection of rights. An OCA advocate promotes the full exercise of legal rights guaranteed clients under federal and state laws. An OCA advocate takes appropriate steps to protect a client's rights including ensuring those rights are considered in PST decisions and in the manner PST decisions are carried out. An OCA advocate seeks to ensure the application of due process in administrative, quasi-judicial, and judicial proceedings involving a client that might result in a rights restriction or a reduction in services. When a rights restriction is absolutely necessary, OCA supports the least restriction necessary for the shortest period of time possible, with a plan to remove the restriction as soon as possible.
(8) Access to services. An OCA advocate promotes client access to the full range of supports per federal and state requirements. Although an OCA advocate takes a position with regard to services needed by a client, an OCA advocate does not have authority to approve services.
(9) Guardianship issues. The Oklahoma Guardianship and Conservatorship Act promotes the participation of persons as fully as possible in the decisions that affect them, in the development of maximum self-reliance and independence, and the appointments of guardians and others, only to the extent necessitated by the mental and adaptive limitations or other conditions of individuals, per 30 O.S. § 1-103. Because a full guardianship of the person and his or her estate is the most restrictive intrusion on an individual's decision-making, OCA advocates for the least restrictive alternative to a full guardianship feasible under the circumstances including, but not limited to:
(A) a limited guardianship;
(B) a representative payee for financial benefits;
(C) a volunteer advocate;
(D) a supportive friends and family;
(E) a health care proxy;
(F) a durable power of attorney; and
(G) advance directives.
(10) Promoting inclusion. An OCA advocate:
(A) promotes the realization of active citizenship and inclusion in the community. This includes, but is not limited to, encouraging clients to:
(i) learn the rights and responsibilities of good citizenship;
(iii) take classes;
(iv) participate in volunteer services organizations;
(v) attend religious services of his or her choice;
(vi) attend recreational, cultural, and social events; and
(vii) join citizen advocacy organizations that promote inclusion in the community;
(B) encourages the development of friends who can serve as natural supports for a client; and
(C) assists a client in locating relatives who are not currently active in the client's life and encourages relationship building between him or her and family members.
(11) End-of-life issues. End-of-life issues for an individual with a developmental or intellectual disability do not differ from those of other individuals. Regardless of the medical circumstance that brought end-of-life issues to the forefront, an OCA advocate seeks to have a client's physicians, guardians, and loved ones adhere to Oklahoma laws relating to do-not-resuscitate orders, withdrawal or denial of nutrition or hydration, and withdrawal or termination of medical treatment. In the absence of clear and convincing evidence of a client's choices, an OCA advocate presumes the client would choose life-sustaining measures. • 10
(g) Contacting an OCA advocate. When an OCA advocate is not available during office hours, his or her supervisor serves as back-up. Information about the name of the OCA advocate assigned to a client, the OCA advocate's contact information, and the name of the advocate's supervisor is obtained by phoning OCA at 1-800-522-8014.
(h) OCA access to client records and information. OCA staff is provided access to all records, files, documents, and information needed to fulfill OCA responsibilities regarding a client. DDS case managers, employees, and provider agency staff send the assigned OCA advocate copies of documents and notices sent to the client.
1. Office of Client Advocacy (OCA) files. OCA maintains a client file for each Hissom Class Member (HCM) and other Developmental Disabilities Services (DDS) service recipient it serves, including former Northern Oklahoma Resource Center of Enid (NORCE) and Southern Oklahoma Resource Center (SORC) residents, Robert M. Greer Center (Greer) and Laura Dester Children’s Center (SHIELD) residents, and persons provided short-term OCA advocacy services, per Oklahoma Administrative Code (OAC) 340:2-3-75. Each client's paper file contains legal documents, documents that OCA originated, and documents that do not exist in electronic format. The OCA advocate ensures all service reviews, Form 06CB035E, Site Visit Report (multiple reports may be included), Form 15GR006E, Notice of Grievance Rights DDS Service Recipients, and Form 15GR007E, Notice of Grievance Rights - Hissom Class Members, are completed and stored in the Document section of OCA's Client Contact Manager (CCM). OCA advocates complete all required documentation ensuring it is concise, accurate, and timely.
2. OCA advocate training.
(1) Before a new OCA advocate is assigned to represent clients, the OCA advocate attends DDS Foundations Training or its equivalent, unless the OCA advocate previously completed training and receives on-the-job training.
(2) Before an OCA advocate assumes responsibility for a client, the OCA advocate reviews the OCA client file, discusses the case with the previous OCA advocate, when possible, and becomes familiar with essential information about the client including specialized supports, rights, restrictions, intrusive procedures, and pending informal problem resolution activities and grievances. The OCA advocate also completes individual-specific training when his or her supervisor or the OCA advocacy programs administrator determines it is warranted.
(3) OCA advocates avail themselves of appropriate opportunities for professional development and remain current in knowledge regarding relevant laws, policies, procedures, and best practices. OCA advocates complete required training, per Oklahoma Human Services (OKDHS) policy and the OCA "Training Guide for Community Advocates." OCA advocates complete a minimum of 20 hours of training per year.
3. Client rights. Sources of information regarding clients' rights include, but are not limited to: OAC 340:2-5-40; OAC 340:100-3-1.2; OAC 317:35-13-1; and OAC 612:10-1-6; the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C. § 6000 et seq.); Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794); the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.); and the Civil Rights of Institutionalized Persons Act (42 U.S.C. § 1997 et seq.).
4. Scope of representation. In assigning OCA advocates to represent clients, OCA avoids actual or perceived conflicts of interest that could prevent an OCA advocate from being objective about the client's interests and preferences. For example, an OCA advocate is not assigned to represent an individual related to the OCA advocate by blood or marriage, or to represent an individual receiving services from a person related to the OCA advocate. OCA advocates comply with OAC 340:2-1-8, the Rules of the Ethics Commission, and Chapter 62 of Title 74 of the Oklahoma Statutes. An OCA advocate represents the client's interests independent of the OCA advocate's own biases, preferences, and belief systems. In advocating for the client's interests and preferences, an OCA advocate does not support any action by the client or others that constitutes criminal activity or places the client at imminent risk of serious harm. OCA advocates provide clients with information necessary for informed and voluntary decision-making with knowledge of the potential consequences of a decision. The OCA advocate with the client and the client's Personal Support Team (PST), explores alternatives that minimize risk of harm to the client's health, safety, or well-being.
5. OCA advocate changes. OCA advocacy caseloads are assigned geographically to maximize the OCA advocate's time. Some clients require more advocacy services than others and consideration is made when assigning caseloads. Caution is exercised when changing assigned OCA advocates in order to foster continuity and promote relationships. OCA cannot guarantee the availability of a particular OCA advocate to provide services to a specific client. Requests made by a client or client's representative to change an assigned OCA advocate are reviewed by the advocacy programs administrator and decided on a case-by-case basis. Requests are referred to the OCA advocate's supervisor to evaluate the basis for the request and determine if another action may resolve the matter. When the request to change OCA advocates cannot be resolved informally, the programs administrator determines the response to the request. OCA complies with all federal and state laws prohibiting discrimination based on race, color, national origin, sex, age, religion, or disability, unless authorized by law. In order to ensure OCA advocates are given timely and adequate notice of PST meetings, emergency meetings, and similar meetings, appropriate persons are informed when there is a change in OCA advocate assignment. When a client is transferred from one OCA advocate to another, protocols in (1) through (6) of this Instruction are followed.
(1) The transferring OCA advocate completes the "OCA Case File Transfer" and organizes the client case file.
(2) The transferring OCA advocate is responsible for documenting and entering a summary of the client's current status, including any pending issues or concerns, into the OCA database.
(3) The transferring OCA advocate briefs the receiving OCA advocate on the case and any pending matters or concerns and documents this in a contact sheet.
(4) The transferring OCA advocate notifies the client of the change of advocate. When feasible, the transferring and receiving advocate visit the client together to introduce the client to the receiving OCA advocate and explain the change.
(5) When the case is ready for transfer, the transferring OCA advocate's supervisor reviews the case for approval and transfers the case to the receiving OCA advocate's supervisor. The receiving supervisor is responsible for reviewing the case to ensure it is complete. The receiving supervisor is responsible for making the case change in the OCA database. The receiving OCA advocate is responsible for providing advocacy beginning on the date the receiving supervisor assigns the case in the database.
(6) Upon receipt of the case, the receiving OCA advocate sends an email or letter to the case manager, guardians, or family informing them of the change.
6. OCA advocate role in resolving problems. The OCA advocate utilizes the client's case manager as a primary resource for resolving a client's support deficiencies. The OCA advocate's role is to report service deficiencies to those responsible for providing services. An OCA advocate takes immediate action, appropriate under the circumstances, in situations where the client is at imminent risk of harm, such as preventing staff from using a defective piece of adaptive equipment. Following an action of this nature the OCA advocate immediately notifies the DDS case manager, the case manager's supervisor, or the DDS on-call administrator to report the circumstances that prompted the OCA advocate's action; and requests prompt follow-up to address the situation and prevent a reoccurrence. An OCA advocate does not function as a case manager or a provider of direct contact services for a client.
7. Informal problem resolution. The OCA advocate attempts to resolve all identified issues requiring informal problem resolution within 30-calendar days. Issues not resolved within 30-calendar days must be staffed with the OCA advocate's supervisor and documented in the OCA database. Informal problem resolution activities include, but are not limited to:
(1) contacting the case manager, seeking to resolve problems at the lowest possible level of administrative responsibility;
(2) requesting a PST meeting;
(3) identifying and articulating client concerns during PST meetings;
(4) acting to facilitate problem resolution;
(5) representing the preferences of the client in PST meetings, when known, and when capacity is not an issue;
(6) facilitating informed-consent decision-making by the client or guardian(s);
(7) identifying acceptable alternatives;
(8) filing an OCA advocate's inquiry, per OAC 340:2-3-51 or 340:2-3-52, as applicable;
(9) advocating for proper implementation of federal and state laws and changes to OKDHS rules;
(10) facilitating information and referral on the client's behalf with OKDHS staff or other persons or entities who can provide problem resolution or support services; and
(11) assisting with mediation arrangements.
(1) When an OCA advocate files a grievance against OKDHS on behalf of a DDS service recipient, the grievance format includes at a minimum, the:
(A) client's name;
(B) grievant, when other than the client;
(C) client's guardian, when applicable, provider, case manager, and OCA advocate;
(D) issue grieved;
(E) facts relevant to the grievance;
(F) grievant's contentions;
(G) relevant statutes, policies, and other authorities;
(H) proposed solution; and
(I) OCA advocacy position.
(2) For each subsequent level the grievance is submitted for resolution, the grievance format used also provides the procedural history of the grievance including a summary of the responses to the grievance at each level it was considered and relevant documentation.
9. Referral to OCA advocate. The OCA Intake Unit may refer allegations to the OCA advocate when the alleged facts are insufficient to warrant an investigation. These referrals are sent to the OCA advocate to assess client safety, obtain additional information to determine if an investigation is warranted, and respond with appropriate advocacy follow-up to the allegations. OCA advocates adhere to the procedures listed in (1) through (4) of this Instruction.
(1) Within five-business days of the intake date, the OCA advocate:
(A) conducts a face-to-face visit with the victim, unless the OCA Intake Unit requests additional information in order to make an appropriate case disposition or a safety concern exists, in which case the response time is determined by the OCA advocate's supervisor;
(B) researches the referral to determine if any additional information exists that may warrant a change in disposition to investigate. This includes reviewing the:
(i) entire referral in the OCA database; and
(ii) DDS CCM for any related documentation, such as incident reports, medical records, and client records in the home;
(C) staffs the case immediately with his or her supervisor when any information obtained may warrant a change in disposition. When information is obtained that warrants a change in disposition, the OCA advocate's supervisor immediately notifies the OCA Intake Unit supervisor. The OCA advocate develops an advocacy plan with his or her supervisor that includes target dates when information is not obtained that warrants a change in disposition; and
(D) notifies the guardian or next of kin of OCA's receipt of the allegation.
(2) The OCA advocate does not disclose the reporting party's identity.
(3) The OCA advocate documents all work on the referral in OCA CCM.
(4) The OCA advocate informs his or her supervisor when all issues identified in the referral are resolved. When the supervisor agrees all issues are sufficiently resolved, the supervisor instructs the OCA advocate to provide a summary of the findings to the guardian or next of kin and closes the "Refer to Advocate" case. "Refer to Advocate" cases must be resolved and closed within 30-calendar days of the intake date. Extensions may be approved by the OCA advocate's supervisor, when warranted.
10. Guardian's authority to make end-of-life decisions. A guardian does not have authority to consent to a do-not-resuscitate (DNR) order merely because he or she is a ward's guardian. Oklahoma's Guardianship and Conservatorship Act requires a guardian to obtain a court order that authorizes the guardian to make DNR decisions on behalf of a ward, per 30 O.S. § 3-119(1). In the absence of an order, a guardian can only communicate to a physician, facts about the known values and preferences of the ward, on the basis of which the physician can determine if there is clear and convincing evidence of the client's desires regarding a DNR order. When a client has never had the ability to communicate, verbally or non-verbally, his or her preferences with regard to end-of-life issues, then clear and convincing evidence does not exist.