COMMENT DUE DATE:
February 14, 2020
DATE:
January 15, 2020
Natascha Ferguson, Public Guardian 405-522-8190
Dena Thayer, Programs Administrator, Legal Services - Policy 405-521-4326
Nancy Kelly, Policy Specialist, Legal Services - Policy 405-522-6703
RE:
APA WF 20-2F
The proposed policy is Permanent . This proposal is subject to Administrative Procedures Act
It is important that you provide your comments regarding the draft copy of policy by the comment due date.Comments are directed to *STO.LegalServices.Policy@okdhs.org.The proposed amendments are permanent.
A public hearing is scheduled for 10:00 a.m. on February 24, 2020, at DHS, Sequoyah Memorial Office Building, 2400 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105, Room C-48.Anyone who wants to speak must sign in at the door by 10:05 a.m.
SUBJECT:CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 4. The Office of the Public Guardian [NEW]
340:2-4-1. [NEW]
340:2-4-3. [NEW]
340:2-4-5. [NEW]
(Reference WF 20-2F)
SUMMARY:
The proposed creation of Subchapter 4, implement rules to describe The Office of the Public Guardian and its purpose.The proposed rules, detailing this legislatively created program follow and maintain records of the placement of a specifically cited group of citizens requiring assistance and their tenure with the State of Oklahoma.
PERMANENT APPROVAL:Permanent rulemaking is requested.
LEGAL AUTHORITY:Director of Human Services; Section 162 of Title 56 of the Oklahoma Statutes (56 O.S. § 162), 22 O.S. § 1175.6b, and 56 O.S. § 1020.
Rule Impact Statement
To:Programs administrator
Legal Services Policy
From:Natascha Ferguson, Public Guardian
The Office of the Public Guardian
Date:December 13, 2019
Re:CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 4. The Office of the Public Guardian [NEW]
340:2-4-1. [NEW]
340:2-4-3. [NEW]
340:2-4-5. [NEW]
(Reference WF 20-2F)
Contact: Natascha Ferguson, Public Guardian, 522-8190
A.Brief description of the purpose of the proposed rule:
Purpose.The proposed creation of Subchapter 4, implement rules to describe The Office of the Public Guardian and its purpose.
Strategic Plan Impact.
The proposed rules, detailing this legislatively created program follow and maintain records of the placement of a specifically cited group of citizens requiring assistance and their tenure with the State of Oklahoma.
Substantive changes.
Subchapter 4. The Office of the Public Guardian [NEW]
Oklahoma Administrative Code (OAC) 340:2-4-1 is created to define the purpose, legal basis, and list definitions of The Office of the Public Guardian.
OAC 340:2-4-3 is created to list the requirements for placement, the placement procedure, required reports, outline conditional release, procedures, the public guardian's role, and conditional release status reports.
OAC 340:2-4-5 is created to outline when a ward regains competency, his or her conditional release, and case dismissal by court.
Reasons.
The proposed rules are created, per Section 1020 of Title 56 of the Oklahoma Statutes (56 O.S. § 1020).
Repercussions.
The proposed amendments contribute to the health and safety of vulnerable Oklahomans and position Oklahoma to continue to improve service provisions.
Legal authority.
Director of Human Services; Section 162 of Title 56 of the Oklahoma Statutes (56 O.S. § 162), 22 O.S. § 1175.6b, and 56 O.S. § 1020.
Permanent rulemaking approval is requested.
B.A description of the classes of persons who most likely will be affected by the proposed rule, including classes that will bear the costs of the proposed rule, and any information on cost impacts received by the Agency from any private or public entities:These rules are created for a specifically designated class of individuals and The Office of the Public Guardian actively supports the entitled class of individuals, per 22 O.S. § 1175.6b.
C.A description of the classes of persons who will benefit from the proposed rule:The class of persons supported by The Office of the Public Guardian are individuals, who were:(1) charged with a crime in district court in any county in the State of Oklahoma; (2) found to be incompetent to stand trial due to intellectual disability, per 10 O.S. § 1408; and (3) found to be dangerous (Public Guardian) or not dangerous (Conditional Release) by evaluation of a licensed, medical professional.
D.A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change:There is no economic impact on individuals who receive services.
E.The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency:There are no costs associated with these rules.
F.A determination whether implementation of the proposed rule will have an impact on any political subdivisions or require their cooperation in implementing or enforcing the rule:The proposed amendments do not have an impact on any political subdivisions or require their cooperation in enforcing the rules.
G.A determination whether implementation of the proposed rule will have an adverse economic effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act:The proposed amendments do not have an adverse effect on small business as provided by the Oklahoma Small Business Regulatory Flexibility Act.
H.An explanation of the measures the Agency has taken to minimize compliance costs and a determination whether there are less costly or nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule:There are no less costly, non-regulatory, or less intrusive methods.
I.A determination of the effect of the proposed rule on the public health, safety, and environment and, if the proposed rule is designed to reduce significant risks to the public health, safety, and environment, an explanation of the nature of the risk and to what extent the proposed rule will reduce the risk:The Office of Public Guardian was created to protect a class of citizens from exploitation by placement in prison for crimes; and to protect the public from this narrowly protected class of citizens found to be intellectually disabled.
J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented:This program was implemented to protect a narrow class of citizens and the public as a whole.There would be a detrimental effect on the public health, safety, and environment in that this protected class would be sentenced to jail or prison for crimes, even though intellectually disabled, and would then be released into the public after serving the imposed sentence.The public would be at risk again for the perpetration of crime as the class of persons would not receive services, assistance, and would not be kept secure in a humane fashion from exploitation by placement in prison for crimes; and to protect the public from this narrowly protected class of citizens found to be intellectually disabled.
K.The date the rule impact statement was prepared and, if modified, the date modified:Prepared June 28, 2019; modified December 13, 2019.
SUBCHAPTER 4. OFFICE OF THE PUBLIC GUARDIAN
340:2-4-1. Purpose, legal basis, and definitions
(a) Purpose.The Oklahoma Department of Human Services (DHS) Office of the Public Guardian provides guardianship services throughout Oklahoma to criminal defendants, who are deemed incompetent to stand trial due to intellectual disability, per Section 1408 of Title 10 of the Oklahoma Statutes (10 O.S. § 1408), and were found by the Court to be dangerous, per 22 O.S. § 1175.1.The DHS Office of the Public Guardian must place wards in the least restrictive placement, which ensure appropriate levels of supervision and supports, sufficient to keep the ward and public safe.
(b) Legal basis. Statutory authority for the DHS Office of the Public Guardian is derived from 22 O.S. § 1175.6b.
(c) Definitions.The following words and terms, when used in this Subchapter shall have the following meanings unless the context clearly indicates otherwise:
(1) "Court" means the district court assigned to hear criminal matters in the jurisdiction where the crime was committed and the ward was charged.
(2) "Public guardian" means the attorney who is the DHS administrator of the Office of the Public Guardian.
(3) "Ward" means a person placed in the custody of the DHS Office of the Public Guardian by court order, per requisite statutory requirements.
340:2-4-3. Ward placement requirements
(a) Placement requirements. To place a ward into the Oklahoma Department of Human Services (DHS) Office of the Public Guardian, he or she must be:
(1) a defendant in a criminal matter, misdemeanor or felony, in any Oklahoma district court;
(2) found incompetent to stand trial in a criminal matter due to intellectual disability, per Section 1408 of Title 10 of the Oklahoma Statutes (10 O.S. § 1408); and
(3) deemed dangerous by the court, per 22 O.S. § 1175.1.
(b) Ward placement procedure.When a valid order placing an individual in the custody of the DHS Office of the Public Guardian is received by DHS Legal Services (LS), LS forwards the order and all information on him or her to the Office of the Public Guardian.
(1) When the Office of the Public Guardian receives the information from LS, Office of the Public Guardian staff meetswith Developmental Disabilities Services (DDS) staffto begin the evaluation process to determine what level of DDS placement best meets his or her service and supervision needs.Office of the Public Guardian staff accompanies DDS intake staff for the initial assessment, when possible.
(2) Ward placement is at the Office of the Public Guardian's sole discretion, per 22 O.S. 1175.6b(A)(2).All placements must be made within six months of the date of the order placing the ward in the custody of the Office of the Public Guardian.
(3) Any extension past the six months must be approved by the court.
(c) Public guardian status reports.The Office of the Public Guardian reports to the court of jurisdiction at least once every six months.The information for these reports are obtained from the individual's DDS case manager and include:
(1) the placement type;
(2) the services provided;
(3) the supervision level;
(4) his or her medical and psychological health;
(5) if he or she would be dangerous if conditionally released into a non-secure environment;
(6) the assistance and services that are required for such conditional release and if he or she has achieved competency; and
(7) other information the Office of the Public Guardian deems important or pertinent.
(d) Conditional Release.When a criminal defendant is found incompetent to stand trial due to intellectual disability, per 10 O.S. § 1408, and is deemed not dangerous, per 22 O.S. § 1175.1, he or she may be referred to DHS for consideration of voluntary assistance or conditional release.
(e) Procedure.When a valid order for conditional release is entered and received by DHS LS, the order and information pertaining to the individual is forwarded to the Office of the Public Guardian.
(f) Public guardian role.When a conditional release individual is in a DDS placement or receives DDS services, the Office of the Public Guardian assists the individual's personal support team, when necessary, regarding the conditional release order or requests to modify orders.
(g) Conditional release status reports. The Office of the Public Guardian submits annual reports regarding an individual's compliance with the conditions of release and overall progress.When the individual receives DDS services, the information is obtained from the DDS case manager and, when he or she is in any other placement, the information is obtained from the person responsible for the individual's care.When there are major non-compliances between annual reports, the Office of the Public Guardian notifies the court of jurisdiction.
340:2-4-5. Ward removed from public guardianship
(a) Regaining competency.When the Office of the Public Guardian determines a ward has regained competency, the Office of the Public Guardian notifies the court of jurisdiction.
(b) Conditional Release.When the Office of the Public Guardian determines a ward is no longer dangerous and release to a private guardian or other caretaker is appropriate, the Office of the Public Guardian notifies the court of jurisdiction.
(c) Case dismissal by court.When the court of jurisdiction dismisses the underlying charges, the Office of the Public Guardian no longer has jurisdiction or guardianship of the individual.
