COMMENT DUE DATE:
February 3, 2010
January 26, 2010
Travis Smith Legal (405) 521-3638
Dena Thayer PMU Manager (405) 521-4326
Pat McCracken PMU Specialist (405) 522-1017
APA WF 09-30
The proposed policy is Permanent . This proposal will go to the Commission meeting on
CHAPTER 2. ADMINISTRATIVE COMPONENTS
Subchapter 5. Fair Hearings
OAC 340:2-5-91 [AMENDED]
(Reference APA WF 09-30)
PERMANENT RULEMAKING APPROVAL IS REQUESTED.
LEGAL AUTHORITY:Commission for Human Services, Article XXV, Sections 2, 3, and 4 of the Oklahoma Constitution; and Title 10A of the Oklahoma Statutes.
OKLAHOMA DEPARTMENT OF HUMAN SERVICES
Rule Impact Statement
To:Dena Thayer, Programs Administrator
Policy Management Unit
From:Charles Waters, General Counsel
Date:January 16, 2010
Re:CHAPTER 2. ADMINISTRATIVE COMPONENTS
SUBCHAPTER 5. FAIR HEARINGS
OAC 340:2-5-91 [AMENDED]
(Reference APA WF 09-30)
Contact:Travis Smith, Assistant General Counsel405-521-3638
A.Brief description of the purpose of the proposed rule:
Purpose.The proposed revisions to Subchapter 5 of Chapter 2 amend the rules
for consistency revision to Subchapter 1 of Chapter 75.
Strategic Plan impact.The proposed rules achieve OKDHS goals by improving the systems and processes to achieve OKDHS goals.
340:2-5-91 is amended to remove requirement for fair hearing for foster parents when a child, who was removed, is not returned to a foster home due to a child abuse or neglect investigation.
Reasons.The revision is proposed as the foster parent has a statutorily mandated opportunity to be heard in deprived proceedings and in certain circumstances, has the ability to file an objection to the removal of a child which triggers a related hearing on the matter.A fair hearing in these situations is duplicative.
Repercussions. The proposed rules will eliminate a requirement for an administrative law judge to hear and attempt to resolve a matter that can and should be addressed by the judge who has jurisdiction over the child and parties and who is most familiar with the parties and related circumstances.If the proposed revisions are not implemented, duplicate resources will continue to be used to resolve the same issue without one court having knowledge of the other court’s actions.
Legal authority. Commission for Human Services, Article XXV, Sections 2, 3, and 4 of the Oklahoma Constitution and Title 10A of the Oklahoma Statutes.
Permanent approval. 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: The classes of persons most likely to be affected by the proposed rules are placement providers and judges. The affected classes of persons will bear no costs associated with implementation of the rules.
C.A description of the classes of persons who will benefit from the proposed rule: The classes of persons who will benefit are children in OKDHS custody who and placement providers.
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: The revised rules do not have an economic impact on the affected entities. There are no fee changes associated with the revised rules.
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: The probable cost to OKDHS includes the cost of printing and distributing the rules, which is estimated to be less than $20.The revised rules will result in enhanced delivery of services for children and placement providers by eliminating duplicate services.
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 rules do not have an economic impact on any political subdivision, nor will the cooperation of any political subdivisions be required in implementation or enforcement of 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: There are no anticipated adverse effects 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 non-regulatory methods or less intrusive methods for achieving the purpose of the proposed rule: There are no less costly or nonregulatory methods or less intrusive methods for implementing the rule revision.
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:
J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented: If the proposed rules are not implemented, duplicative services will continue.Implementation of the proposed rules will eliminate the non-mandated requirement for an administrative law court to review an issue that can be heard before a court that is mandated to review the matter.
K.The date the rule impact statement was prepared and, if modified, the date modified: Prepared December 18, 2009.Modified January 12, 2010.
Hearings Fair hearings conducted by the Appeals Unit Issued 6-27-02 Revised 6-1-10
(a) Purpose.The primary purpose of the fair hearing is to safeguard the rights of clients and provide recourse to address infractions of individual rights and interests.Administrative fair hearing may be granted to foster parents, adoptive parents, or kinship guardians.
(b) Foster parents.An administrative hearing is granted to foster parents
if the when Oklahoma Department of Human Services ( DHS OKDHS) has:
denied their denies the foster parent’s claim for foster care maintenance payments;
paid pays foster care maintenance payments in an amount lower than the amount claimed;
(3) does not
paid pay the foster care maintenance payments to the foster parent in a timely manner;
closed closes the foster home or has not returned a child removed from a foster home due to a child abuse or neglect investigation, unless the court ordered the child removed from the foster home or upheld a decision removing the child from the foster home; or
(5) does not return a child in OKDHS custody removed from the foster home due to a child abuse or neglect investigation, and the foster parent:
(A) was not provided notice of the foster parent’s right to be heard during proceedings before the court; or
(B) received the notice, attempted to have the court hear the question but was denied a right to be heard by the court regarding the decision not to return the child during a hearing, and the court never heard the question about whether the child should be returned; or
56) notified notifies the foster home parent of an overpayment which the foster home parent disputes.
bc) Adoptive parents.An administrative hearing is granted to adoptive parents if DHS has when OKDHS:
denied theirdenies the adoptive parent’s application for adoption assistance;
approved their approves the adoptive parent’s application for adoption assistance in an amount less than requested;
modified modifies or terminated terminates adoption assistance without the concurrence of the adoptive parents; or
delayed delays or denied denies an authorized adoptive placement with an out-of-state family; or
(5) notifies the adoptive parent of an overpayment the adoptive parent disputes.
(d) Kinship guardians.An administrative fair hearing may be granted to kinship guardians when OKDHS:
(1) denies a kinship guardianship assistance payment as indicated on Form 04AN011E, Request for Review of Denial;
(2) approves the kinship guardianship payment in an amount less than requested;
(3) delays or denies an authorized kinship guardian placement out-of-state with the kinship guardian; or
(4) notifies the kinship guardian of an overpayment the kinship guardian disputes.