COMMENT DUE DATE:
June 3, 2019
May 24, 2019
Nancy Kelly, Legal Services - Policy, Policy Specialist (405) 522-6703
Dena Thayer, Legal Services - Policy, Programs Administrator (405) 521-4326
Non-APA WF 19-E
The proposed policy is Non-APA . This proposal is not subject to Administrative Procedures Act
It is important that you provide your comments regarding the proposal to amend Oklahoma Department of Human Services (DHS) Regulations (REGS), Chapter 2. Administrative Components, Subchapter 25. Office of General Counsel.
SUBJECT:CHAPTER 2. ADMINISTRATIVE COMPONENTS
OFFICE OF GENERAL COUNSELLEGAL SERVICES
DHS:2-25-1. Purpose [AMENDED]
DHS:2-25-2. Definitions [AMENDED]
DHS:2-25-3. Legal opinions [AMENDED]
Review and drafting of contractsContracts [AMENDED]
Review of legislationLegislation reviews [AMENDED]
ReviewPolicy review and drafting of policy [AMENDED]
Initiation of litigationLitigation initiation [AMENDED] OKDHSDHS:2-25-8. Representation of the Oklahoma Department of Human Services (OKDHS)(DHS) and DHS employees in legal and administrative proceedings [AMENDED]
DHS:2-25-9. Privileged/confidential communications [AMENDED]
DHS:2-25-10. Subpoenas and records requests [AMENDED]
DHS:2-25-11. Miscellaneous provisions [REVOKED]
(Reference WF 19-E)
DHS:2-25-1 through DHS:2-25-10 are amended and DHS:2-25-11 is revoked to update the DHS Regulations to reflect current practices, language, and citations.
LEGAL AUTHORITY:Director of Human Services; Section 162 of Title 56 of the Oklahoma Statutes.
OFFICE OF GENERAL COUNSELLEGAL SERVICES
Issued 4-12-94Revised 6-5-19
The purpose of this Subchapter is to describe the functions and responsibilities of
theOklahoma Department of Human Services (DHS) Legal Unit in the Office of General CounselServices (LS) as well as client/employeethe responsibilities of clients and DHS employees in the context of legally-related matters. The Legal UnitDHS LS is composed of the General Counsel, and assistant general counselsDeputy General Counsel, attorneys, administrative law judges, legal assistants, legal secretaries, and other support staff. The Legal UnitDHS LS provides legal opinions, consultation, representation, and other legal services to the Oklahoma Commission for Human Services, the Director of Human Services, and the Department of Human Servicesboth DHS and its employees. In addition, in those situations specifically set forth in this section, the Legal Unit may representThis includes representation provided in legal actions of both present and former employees sued, in their individual capacity, in legal actions arising from conduct while inas a consequence of performing work within the scope of their employment with the Department of Human ServicesDHS.
Issued 4-12-94Revised 6-5-19
The following words or terms, when used in this Subchapter, shall have the following meaning unless the context clearly indicates otherwise:
"Action" means any proceeding in a court of competent jurisdiction by which one party brings a suit against another, as defined by the Oklahoma Governmental Tort Claims Act, per Section 152(1) of Title 51 of the Oklahoma Statutes (51 O.S. § 152(1).
"Claim" means any written demand presented by
a personan individual or his or her authorized representative to recover money or to obtain other relief for an act or omission of the agencyOklahoma Department of Human Services (DHS) or its officials and employees, as defined by the Oklahoma Governmental Tort Claims Act, per 51 O.S. § 152(4).
"Declaratory relief" means a court order
whichthat attempts to define what was uncertain or doubtful.
"Governmental Tort Claims Act"refers to 51 O.S. §§ 151 et seq. and means an Act passed by the state legislature in l985
which makesadopting the doctrine of sovereign immunity and making the state of Oklahoma liable for money damages for certain negligent acts of state employeesonly to the extent the Act specifically waives its immunity.
"Injunctive relief" means a court order
whichthat directs the agency to perform or to refrain from performing certain acts.
"Lawsuit" see "Action."
Communicationcommunication" means communications passing between persons who stand in a confidential or fiduciary relation to each other, which the law will not permit to be divulged or allow them to inquire into in a court of justice, for the sake of public policy and the good order of society.
"Scope of employment" means
performance by an employee acting in good faith within the duties of his/her office or employment or of tasks lawfully assigned by a competent authority, but shall not include corruption or fraudas defined for purposes of this policy exactly as it is defined in the Oklahoma Governmental Tort Claims Act.
DHS:2-25-3. Legal opinions
Issued 4-12-94Revised 6-5-19
(a) Formal legal opinions.Formal legal opinions are written opinions issued by
the Legal UnitOklahoma Department of Human Services (DHS) Legal Services (LS) at the request of appropriate administratorsGeneral Counsel's direction.Such opinions should be requested for the purpose ofare sought to:
definingdefine the legality of a contemplated action or inaction; or ,
interpreting state andinterpret federal and state regulatory or statutory law, agency policy or commission bylawsor DHS rules and regulations.
for obtainingto obtain a legal opinionsopinion.Legal opinions may be requested by the Commission, theDHS Director, the Chief Financial Officer, Associate Directorsof Staff, or Division Administratorsexecutive-level leadership. It is the obligation of the Associate Directors to ensure that a process exists which gives line staff access to legal opinions through their office.DHS LS is responsible for providing any legal opinion to the individual requesting the opinion and is not responsible for ensuring the legal opinion is disseminated to any other staff.
(1) Requests for LS legal opinions
shall beare directed to the General Counsel, in writing for assignment, and a copy of the notice of assignment shall beis forwarded to the person making the request.All requests must contain: (2)(A) All requests for legal opinions shall be in writing and must contain a precise statement of the issueissues(s) to be addressed, as well asand a complete statement of all relevant facts .;
If known, relevant documents, citations to/orto and or copies of applicable federal or state statutes and regulations, or DHS policyrules and regulations, and prior legal opinions, if any, shall be included in the requestwhen known .; and
All requests shall contain the name and phone number of a divisionprogram contact person who can provide additional information , if necessary. (3)(2) The General Counsel shall assignassigns each request to an attorney for disposition.The General Counsel and the assigned attorney shall make a threshold determination as to whetherdetermine if the request warrants a formal legal opinion.When the request does not warrant a formal legal opinion, the assigned attorney shall respond to the requestresponds within 20-calendar days either in writing or verbally, depending on the needs of the requesting administratorrequestor's needs or circumstance of the particular requestcircumstances. (4)(3) Responses to formal legal opinions shall ordinarily beare completed within 45-calendar days of assignment.Response time may be shortened in exigent circumstances or lengthened with the General Counsel's approval of the General Counsel where additional time is needed. In the eventWhen additional time is approved, the person making the request shall berequestor is notified of the new completion date by the assigned attorney. The Legal Unit shall docket all requests and response dates and maintain an indexed file in book form of copies of opinions, prepared by the Legal Unit as well as Attorney General opinions.These files shall be maintained in the Legal Unit library. (5) Upon completion of a formal opinion and prior to its dissemination, an opinion conference will be held with not less than three attorneys and the General Counsel.The formal opinion will be discussed and a determination will be made to either issue the opinion or incorporate specific changes or additional matters. (6)(4) AllLS legal opinions are advisory.However, where an administrator has requested a legal opinion on a matter andin the event a requestor contemplates action contrary to the formal opinion, the administrator must adviseboth the Director and General Counsel must be advised in writing of the formal opinion and the contemplatedits determinations as well as the contrary action.
Review and drafting of contractsContracts Issued 4-12-94Revised 6-5-19
Review of contractsContract review. Review of contracts submitted to the Legal Unit shall beServices (LS) contract reviews are limited to a determination of whether the contract is legally sufficient to accomplish its stated objectives.
The Legal UnitLS does not review contracts for the purpose of determining if the agreement is fiscally or programmatically sound unless specifically requested to do so by the Director.Any recommendations arising from such a review are advisory only.
The Legal Unit will complete its review of aLS completes contract reviews within 30-calendar days of its submission. Divisions or unitsPrograms submitting contracts for legalLS review, shall take intomust account for the 30-calendar day review period when determining the date a contract should be submitted to the Legal Unit for review prior to the date the contract is to be performedinitiated or executed.
(b) Provider contracts.Annual provider contracts
which have been reviewed by the Legal UnitLS during the prior fiscal year needare not be submitted to the Legal UnitLS for formal review unless:
there has been a substantive change in federal or state or federal law regarding a particular programoccurred that may affect the parties' obligations of the parties or the service to be delivered; or,
(2) the proposed contract contains substantive changes from the preceding year regarding
theeither parties' obligations to be performed by either party; and,or
there is a request foran administrator requests a review by the Director or a Division Administrator.
Requests forContract review requests. Each request for legal review of a proposed contract shall beRequests for LS contract reviews are submitted in writing and, contain:
(1) a concise statement reflecting the nature and purpose of the contract;
authorityauthorities, ifwhen known , forthat support or authorize entering into the contract; and ,
whetherif there have been priornotitifaction whether previous contracts exist with the same entity of the same or a similar nature with the same entity, and, ifwhen so, include a:
a copy of the priorprevious contract; and
a description of performance problem, if any , encountered with the entityidentified deficiency with the previous contract.
Review of legislationLegislation reviews Issued 4-12-94Revised 6-5-19
Legal UnitOklahoma Department of Human Services (DHS) Legal Services (LS) may provide, upon request,assist with two separate functions in regard to legislation. The Legal UnitUpon a program's request, LS may review proposed legislation already drafted by athe program division or may draftparticipate in initial drafting of proposed legislation based upon a request by a division. The procedure for either of these functions is described in (1) - (4) of this subsection.The request for legislative assistance:
The request for review is made by a Division Administratoran administrator and/or the agency'sDHS legislative review committeeliaison.
The request must explainexplains the need for legislation, and showprovides the intended purpose sought byof the legislation, or, in the alternative containand when only a review is sought, contains a copy of the drafted legislation already drafted.
The request shall containcontains the program contact's name of a contact person from the requesting division towho will assist the lawyer in theLS review or drafting ofdraft the proposed legislation.
The request should also containcontains a date certain for the requested completion of the projectdesired deadline.
Once received by the Legal Unit,Upon receipt the request will be assigned by the General Counsel assigns the request to one or more attorneys, with a determines an estimated due date for completion and communicates that back to the requesting party will be advised accordingly.
ReviewPolicy review and drafting of policy Issued 4-12-94Revised 6-5-19
Legal UnitOklahoma Department of Human Services (DHS) Legal Services (LS) may provide, upon a program's request, both informal and formal and informal review of proposed policyrule and regulation reviews or actually draftassist in drafting proposed policyrules and regulations. (1) Informal review.Informal review consists of a general review of policy per the request of the Policy Development Unit or other units seeking comment.This review is general in nature and only identifies gross conflict with federal or state law and the form of the policy. (2) Formal review.Upon request by any Division Administrator, the Legal Unit will review drafted policy or existing policy.The request should include the existing policy and the proposed policy with a brief statement of the concern of the Administrator.For example, if Congress changes the mandates in a certain area of a program, review may be sought to examine whether the proposed policy meets the revised mandate.This could also exist with regard to state law.
Initiation of litigationLitigation initiation Issued 4-12-94Revised 6-5-19 Upon the request and/or approval of the Director, the Legal Unit may initiate on behalf of and, represent DHS in any legal actionsOnly the Oklahoma Department of Human Services Director may initiate or approve the initiation of any legal action by Legal Services in any federal or state or federal court, or any state or federal agency, commission, or board. OKDHSDHS:2-25-8. Representation of the Oklahoma Department of Human Services (OKDHS)(DHS) and DHS employees in legal and administrative proceedings
Representation of OKDHSDHS representation.When OKDHSDHS is a real party in interest to any action, including as a named defendant or the real party in interest in an action, theDHS Legal DivisionServices (LS) provides representation.
(b) Representation of DHS employees.
OKDHSDHS employee upon being served with a summons, petition, complaint, or other legal notice, except a subpoena or notice of deposition, of any legal or administrative proceeding involving OKDHSDHS or its employees, must immediately provides the Legal Divisionprovide LS with all of the documents received.
(A) Time.When an employee is a named defendant in the proceeding and the employee desires legal representation by
the Legal DivisionLS, the employee makes a request for representation no later than ten10-calendar days after receipt of summons. Such aThe request is made on Form 13LE002E, Employee Request for Legal Representation, and is directed to the general counselLS General Counsel for approval.In any legal proceeding when an employee is named as a party, the employee may arrange for private counsel at the employee's ownhis or her personal expense .OKDHSand DHS is not obligated to reimburse the employeehim or her for the expense of such representation.
(B) Determination.Prior to the filing of a responsive pleading,
the general counselLS General Counsel determines, per Section 162(A) of Title 51 of the Oklahoma Statutes (51 O.S. § 162(A)), 74 O.S. § 20f, and (i) - (iii) of this subparagraph, whether the Legal Divisionif LS can provide representation to anthe employee.When an employee is sued in the employee'san individual capacity, the Legal DivisionLS provides representation, per 74 O.S. § 20f(A), when the preliminary investigation determines that:
(i) the employee's act or omission
that formsforming the basis of the legal action brought against the employee was done or omitted in the course of his or her employment;
(ii) the employee's actions or inactions were made in good faith; and
(iii) there is no conflict of interest between the employee and another-named defendant represented by
the Legal DivisionLS.
(2) Procedures for representation determination
of representation.Upon the timely receipt of Form 13LE002E, the general counselLS General Counsel initiates an investigation of the facts surrounding the lawsuit on behalf of OKDHSDHS in order to make a preliminary determination of whether the requirements for representation are met.The preliminary investigation must be concludedconclude prior to the date of any responsive pleading.Upon completion of the preliminary investigation, the findings are presented to the general counselLS General Counselor the Litigation Section Chief for the purpose of making a preliminary determination regarding representation.The attorney assigned to the case notifies the employee of the general counsel'spreliminary investigation's determination.
(A) Conflict of interest.When it is determined that a conflict of interest exists, but the employee was acting in the course of his or her employment and in good faith, a request for representation may be made by
the general counselLS General Counsel or the Litigation Section Chief to the Attorney General's Office.
(B) Denial of representation.When it is determined the employee acted outside of the course of his or her employment and/or the employee's acts or omissions were done in bad faith, the
OKDHSDHS Director and employee are informed the Legal Division cannot representrepresentation of the employee and acannot occur.A recommendation is then made to the employee, thatrecommending he or she engage private counsel at his or her own expense. OKDHS is not obligated to reimburse the employee for the expense of such private counsel.
(3) Defense of actions.
The Legal DivisionDHS LS determines the method of preparation and presentation of any defense or prosecution of an action available to its clients.
(4) Employee duty to assist in defense.An employee represented by
the Legal DivisionDHS LS has a good faith obligation to provide assistance in the preparation, prosecution, or defense of a claim.Failure to provide such assistance may result in termination of representation and possible increased exposure to personal liability.
(5) Employee duty to provide information.Employees have a duty by virtue of their
OKDHSDHS employment to provide all information to the Legal DivisionDHS LS that is reasonably necessary for the investigation, prosecution, or defense of any actual or anticipated legal action involving OKDHSDHS.Employees who are witnesses in a legal action have a continuing duty to provide information and be available to testify in legal proceedings.
(6) Criminal and grand jury proceedings.In no event does
the Legal DivisionDHS LS represent an employee in a criminal or grand jury proceeding.
(7) Attorney contact with
OKDHSDHS employees.Contacts by private attorneys outside of those that may routinely occur in connection with normal job functions are referred to the Legal DivisionDHS LS.When an employee is contacted by a private attorney regarding pending litigation, the employee refers the attorney to the Legal Division prior toDHS LS without providing any information.
(c) Representation of former employees.
The Legal DivisionDHS LS may represent former OKDHSDHS employees in lawsuits provided the action is based on the individual's conduct while an OKDHSa DHS employee and the former employeehe or she meets all other representation requirements.Procedures set forth in this Section for representation of current OKDHSDHS employees also apply to representation of former employees.
(d) Representation in the event of a conflict of interest. When a lawsuit names both
OKDHSDHS and an OKDHSa DHS employee and there existsit is determined by DHS LS a conflict of interest exists, the Legal DivisionDHS LS represents OKDHSDHS.
(e) Duty to inform. It is the responsibility of
the Legal DivisionDHS LS to inform appropriate OKDHSDHS administrators of any information gathered as a result of its investigations or defense of legal actions that had, has, or could have an adverse impact on OKDHSDHS operations or programs.Information regarding inappropriate employee conduct, including violations of law or policyrules or regulations, may be reported to appropriate administrators.
(e) Procedures for settlement of claims and lawsuits.In addition to any approval required by any applicable federal or state
or federal statute, rule, or regulation the settlement procedures set out in this subsection are followed.
(1) Money damage settlements.Settlements of claims or lawsuits seeking money damages brought by or against
OKDHSDHS or its employees are approved by the OKDHSDHS Director or his or her designee.
(2) Declaratory, injunctive, or other equitable relief settlements.Settlements of claims or lawsuits seeking declaratory, injunctive, or other equitable relief brought by or against
OKDHSDHS or its employees are approved by the OKDHSDHS Director or the Director'shis or her designee.
(3) Settlement conference, mediation session, or other method of alternative dispute resolution.For the purpose of a settlement conference, mediation session, or other method of alternative dispute resolution conducted in any lawsuit in federal or state
or federal court, or in any administrative proceeding brought by or against OKDHSDHS or its employees, the OKDHSDHS Director may designate an appropriate representative to attend with full-settlement authority.
Issued 4-12-94Revised 6-5-19
(a) Communications between Oklahoma Department of Human Services (DHS) Legal
UnitServices (LS) personnel and AgencyDHS officials and employees are privileged to the maximum extent allowed by law when made for the purpose of securing or rendering legal advice or professional legal services on behalf of the agencyDHS and the:
the communication concerns a pending investigation, claim, action, or proceeding;
the communication is made as directed by agency policyDHS rules or regulations or by an agencya DHS official authorized to request legal services;
the subject matter of the communication is within the scope of the duties of the agencyDHS official or employee making the communication; and
the communication is intended to be kept confidential and is disclosed only to those persons reasonably necessary for the transmission of the communication or those persons who, because of the agencyDHS structure, need to know its contents.
(b) The legal privilege
attachingattached to certain communications, as described in this sectionSection, is held by the agencyDHS and may be waived only by the DHS Director.Unauthorized disclosure of privileged communications is strictly prohibited.All documents containing privileged communications should beare clearly marked or otherwise identified as " attorney-client privilegeprivileged" or "confidential." .
(c) Documents prepared in anticipation of litigation or for trial by or for a
Legal UnitLS attorney, an agencya DHS official authorized to request legal services, or a person engaged to assist in the legal defense of the agencyDHS, are confidential. Legal UnitLS litigation files and investigative reports are not subject to disclosure under the Oklahoma Open Records Act, per Section 25A.12 of Title [51 O.S. 1991, '25A.12, as amended]of the Oklahoma Statutes.Documents obtained by Legal UnitLS personnel in the course of their official duties may be confidential pursuant to other law.
DHS:2-25-10.Subpoenas and records requests
Issued 4-12-94Revised 6-5-19
(a) Subpoenas.A subpoena is a command to appear at a certain time and place to give testimony regarding a certain matter.
One form of a subpoena is called a subpoena duces tecum.A subpoena duces tecum is a command to appear and testify with certainand produce records, books, or papers, and any other items identified in the subpoena.
A SUBPOENA DUCES TECUM IS NOT A COURT ORDER TO PRODUCE RECORDS.IT IS SIMPLY A LEGAL REQUEST FOR RECORDS.A subpoena duces tecum is not a court order to produce records.It is a legal request for records.
WHEN AN EMPLOYEE THINKS HE/SHE HAS A COURT ORDER TO PRODUCE OR A SUBPOENA, THE PROCEDURE IN (b) OF THIS SECTION SHOULD BE FOLLOWED.When an employee believes he or she has a court order to produce records or a subpoena to appear personally, the procedure in (b) of this Section is followed.
(b) Receipt of subpoena.When
aan Oklahoma Department of Human Services (DHS) employee receives a subpoena or a subpoena duces tecum, it is likely that the sender of the issuer of the subpoena is requestingseeking information about certain clients and/or is desiringrequesting DHS records contained in welfare case records.For example, in a divorce action one spouse may desirewant financial information he/shehe or she believes is contained in an application for assistance. Because in almost every DHS program there areprograms have confidentiality requirements regarding client information and client records. , and itIt is imperative that any DHS employeesemployee who receive subpoenasreceives a subpoena, immediately contact their supervisorcontacts a supervisor and consultconsults program policyrules about disclosure of records or information. IfWhen program policy doesrules do not answer questions regarding confidentiality, an immediate request to the Legal Unit should beLS is made to ensure that confidentiality requirements are met.
RequestsWhen a subpoena or a subpoena duces tecum is received, time may be of the essence.Consequently, requests to the Legal Unit may be madeLSconcerning a subpoena or a subpoena duces tecum are submitted by telephone and should be made within (2)phone or email as soon as possible but no more than two-calendardays of receiving the subpoenareceipt. The reason for the short request time is that many times DHS employees are given little time to respond to the subpoena.Time is of the essence because in most cases a conference will need to be held between the requestor and DHS attorneys and in most cases a motion will need to be prepared.In some cases an immediate hearing will need to be conducted.
(d) Procedure.When the LS request
of the Legal Unit is made, the following information should be given:submitted, a copy of the subpoena or subpoena duces tecum is provided at the time of the request or shortly thereafter along with information about the type of DHS case involved, such as Child Welfare, Adult and Family Services, or Adult Protective Services. (1) The court case number of the case for which the information is being requested;. (2) The type of DHS case involved (i.e. AFDC, Food Stamps, Child Abuse, Adult Adult Protective Services, Medicaid, LIHEAP etc.); (3) What information is being requested; (4) When does the subpoena request the information; and, (5) The name and telephone number of the attorney requesting information.
Issued 4-12-94Revised 6-5-19 (a)Litigation fund. Pursuant to 62 O.S. 1991 and Supp. 1993, '195(B), as amended, the Legal Unit shall maintainThe Oklahoma Department of Human Services (DHS)Legal Services (LS) maintains a petty cash fund to be used solely to pay court costs, filing fees, witness fees, and expenses related to any case or proceeding within the responsibility of the Legal UnitLS, per Section 1991 of Title 62 of the Oklahoma Statutes (62 O.S. § 1991).Payments from this fund shall beare made at the discretion of the General CounselCounsel's discretion and in accordance with any state statutestatutes, rulerules, or regulationregulations governing such funds. (b) Travel expenses.Pursuant to 74 O.S. 1991 and Supp. 1993, '500.18(B)(13)(a), as amended, the actual and necessary expenses of travel, lodging and subsistence incurred by employees of the Legal Unit in the performance of their duties for the purpose of representing the Department of Human Services or any of its officials, employees, institutions or hospitals at any proceeding, including depositions, held before any court, administrative body or representative thereof, shall be reimbursed to the employee incurring such expenses.Such expenses claimed shall be approved by the General Counsel and the Director of Human Services prior to reimbursement.In addition, the General Counsel shall report annually to the Office of Finance all expenses under this section which the Agency is required to report in accordance with 74 O.S. 1991 and Supp. 1993, '500.18(C), as amended.