COMMENT DUE DATE:
February 16, 2012
DATE:
January 11, 2012
Steven Mitchell OCA (405) 525-4850
Dena Thayer OIRP Programs Administrator (405) 521-4326
Pat McCracken OIRP (405) 522-1017
RE:
APA WF 11-12
The proposed policy is Permanent . This proposal will go to the Commission meeting on
Chapter 2. Administrative Components
Subchapter 3. Office of Client Advocacy
Part 3. Investigations
OAC 340:2-3-2 [AMENDED]
OAC 340:2-3-32 through 340:2-3-33 [AMENDED]
OAC 340:2-3-35 through 340:2-3-37 [AMENDED]
SUMMARY: Proposed amendments to Chapter 2 of Subchapter 3: (1) amend definitions contained in the recodification of the Oklahoma Children's Code enacted by the Legislature in 2009 and 2010 and add definitions contained in the Oklahoma Protective Services for Vulnerable Adults Act; (2) expand legal authority and scope for investigating abuse, neglect, and exploitation of vulnerable adults receiving care from a community services worker, employee of a community services provider, Medicaid personal care assistant; or employee of a Medicaid personal care services provider; (3) update reporting requirement no longer required to the district attorney; (4) clarify caretaker misconduct reviews apply only to vulnerable adults at Northern Oklahoma Resource Center of Enid (NORCE), Southern Oklahoma Resource Center (SORC) of Pauls Valley, and the Robert M. Greer Center in Enid (Greer); (5) remove reference to Office of Client Advocacy (OCA) investigations in Adult Protective Services (APS) substantiated cases; (6) add clarifying language regarding distribution of investigation reports when the accused caretaker is and is not subject to the Community Services Worker Registry; (7) add language the OCA finding will be sent to a vulnerable adult's caretaker, guardian, and next of kin; (8) eliminate the requirement to send certified letters to accused caretakers who cannot be reached for interview; (9) add Medicaid personal care assistant when referencing caretakers subject to the Community Services Worker Registry; and (10) update language to current terminology and for clarification.
340:2-3-2 revisions amend definitions contained in the recodification of the Oklahoma Children's Code enacted by the Legislature in 2009 and 2010, as well as moving the definitions contained in the Oklahoma Protection of Vulnerable Adults Act, Section 10-103 of Title 43A of the Oklahoma Statutes (43A O.S. § 10-103), from the Instructions to Staff (ITS) and restating them in the definitions.
340:2-3-32 revisions amend the investigative rules to expand OCA legal authority and scope to include investigations of abuse, neglect, and exploitation of vulnerable adults who receive services from a community services worker, employee of a community services provider, Medicaid personal care assistant, or employee of a Medicaid personal care services provider, as those terms are defined in 56 O.S. § 1025.1.
340:2-3-33 revisions reflect changes in the Oklahoma Protective Services for Vulnerable Adults Act which removed the requirement to notify the district attorney's office of allegations of maltreatment.
340:2-3-35 revisions note that caretaker misconduct reviews are not within OCA purview of vulnerable adult investigations except for the residents of the state-operated facilities of NORCE, SORC, and Greer.
340:2-3-36 revisions remove dissemination of the investigation report to the APS program manager and add that the report will go to the Aging Services Division director or designee if the accused is a Medicaid personal care assistant or employee of a Medicaid personal care services provider.Distribution of a report when the accused is not a community services worker or Medicaid personal care assistant is moved to the Section addressing caretakers not subject to the Community Services Worker Registry.As required in the Oklahoma Protective Services for Vulnerable Adults Act, language is also added that OCA will notify the caretaker, guardian, and next of kin of a vulnerable adult of the OCA investigation finding once the finding is final and the caretaker's due process rights are completed.Also revisions eliminate the requirement for certified letters to be sent to accused caretakers who cannot be reached for interview.Instructions to Staff are revised to: (1) address that only vulnerable adults who are Hissom Class members and who can contribute to an investigation are contacted by the investigator within five working days; (2) include special circumstances when interviews by telephone may be authorized; and (3) eliminate the requirement for certified letters to be sent to accused caretakers who cannot be reached for interview.
340:2-3-37 revisions state that caretaker misconduct reviews are not applicable to vulnerable adults other than residents of NORCE, SORC, and Greer.
PERMANENT RULEMAKING APPROVAL IS REQUESTED.
LEGAL AUTHORITY:Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution; Section 1-1-101 et seq. of Title 10A of the Oklahoma Statutes; Section 10-102 et seq. of Title 43A of the Oklahoma Statutes; and Section 1025.1 of Title 56 of the Oklahoma Statutes.
| OKLAHOMA DEPARTMENT OF HUMAN SERVICES Rule Impact Statement |
To:Dena Thayer, Programs Manager
Office of Intergovernmental Relations and Policy (OIRP)
From:Diana L. Smith, Interim Advocate General
Office of Client Advocacy
Date:January 11, 2012
Re:Chapter 2. Administrative Components
Subchapter 3. Office of Client Advocacy
Part 3. Investigations
OAC 340:2-3-2 [AMENDED]
OAC 340:2-3-32 through 340:2-3-33 [AMENDED]
OAC 340:2-3-35 through 340:2-3-37 [AMENDED]
(Reference APA WF 11-12)
Contact:Diana L. Smith (405) 525-4850
A.Brief description of the purpose of the proposed rule:
Purpose.Proposed amendments to Chapter 2 of Subchapter 3: (1) amend definitions contained in the recodification of the Oklahoma Children's Code enacted by the Legislature in 2009 and 2010 and add definitions contained in the Oklahoma Protective Services for Vulnerable Adults Act; (2) expand legal authority and scope for investigating abuse, neglect, and exploitation of vulnerable adults receiving care from a community services worker, employee of a community services provider, Medicaid personal care assistant; or employee of a Medicaid personal care services provider; (3) update reporting requirement no longer required to the district attorney; (4) clarify caretaker misconduct reviews apply only to vulnerable adults at Northern Oklahoma Resource Center of Enid (NORCE), Southern Oklahoma Resource Center (SORC) of Pauls Valley, and the Robert M. Greer Center in Enid (Greer); (5) remove reference to Office of Client Advocacy (OCA) investigations in Adult Protective Services (APS) substantiated cases; (6) add clarifying language regarding distribution of investigation reports when the accused caretaker is and is not subject to the Community Services Worker Registry; (7) add language the OCA finding will be sent to a vulnerable adult's caretaker, guardian, and next of kin; (8) eliminate the requirement to send certified letters to accused caretakers who cannot be reached for interview; (9) add Medicaid personal care assistant when referencing caretakers subject to the Community Services Worker Registry; and (10) update language to current terminology and for clarification.
Strategic Plan impact.The proposed rules achieve Oklahoma Department of Human Services (OKDHS) goals by improving processes, and administering public resources in a fiscally responsible manner.
Substantive changes.
OAC 340:2-3-2 revisions amend definitions contained in the recodification of the Oklahoma Children's Code enacted by the Legislature in 2009 and 2010, as well as adding definitions contained in the Oklahoma Protective Services for Vulnerable Adults Act.
OAC 340:2-3-32 revisions amend the investigative rules to expand OCA legal authority and scope to include investigations of abuse, neglect, and exploitation of vulnerable adults who receive services from a community services worker, employee of a community services provider, Medicaid personal care assistant, or employee of a Medicaid personal care services provider, as those terms are defined in Section 1025.1 of Title 56 of the Oklahoma Statutes.
OAC 340:2-3-33 revisions reflect changes in the Oklahoma Protective Services for Vulnerable Adults Act which removed the requirement to notify the district attorney's office of allegations of maltreatment.
OAC 340:2-3-35 revisions note that caretaker misconduct reviews are not within OCA purview of vulnerable adult investigations except for the residents of the state-operated facilities of NORCE, SORC, and Greer.
OAC 340:2-3-36 revisions remove dissemination of the investigation report to the APS program manager and add that the report will go to the Aging Services Division director or designee if the accused is a Medicaid personal care assistant or employee of a Medicaid personal care services provider.Distribution of a report when the accused is not a community services worker or Medicaid personal care assistant is moved to the section addressing caretakers not subject to the Community Services Worker Registry.As required in the Oklahoma Protective Services for Vulnerable Adults Act, language is also added that OCA will notify the caretaker, guardian, and next of kin of a vulnerable adult of the OCA investigation finding once the finding is final and the caretaker's due process rights are completed.Also revisions eliminate the requirement for certified letters to be sent to accused caretakers who cannot be reached for interview.
OAC 340:2-3-37 revisions state that caretaker misconduct reviews are not applicable to vulnerable adults other than residents of NORCE, SORC, and Greer.
Reasons.The proposed revisions reflect: (1) OKDHS decision to confer on OCA, and remove from APS, the responsibility to conduct investigations that involve vulnerable adults receiving services from a community services worker, employee of a community services provider, Medicaid personal care assistant, or employee of a Medicaid personal care services provider; and (2) update definitions contained in the Oklahoma Children's Code 2009 and 2010 recodifications.
Repercussions. The proposed rules will achieve OKDHS goals of protecting vulnerable adults by eliminating the current duplicate OCA and APS investigations involving accused caretakers who are subject to the Community Services Worker Registry, and expedite the Registry process.If the proposed rules are not implemented, duplicate investigations will continue, resulting in a longer process for placing on the Community Services Worker Registry those caretakers who are found to have abused, neglected, or exploited a vulnerable adult, and conversely, delaying the caretaker's ability to invoke their due process rights.
Legal authority.Commission for Human Services, Article XXV, Sections 2 and 4 of the Oklahoma Constitution; Section 1-1-101 et seq. of Title 10A of the Oklahoma Statutes; Section 10-102 et seq. of Title 43A of the Oklahoma Statutes; and Section 1025.1 of Title 56 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 vulnerable adults, accused caretakers of vulnerable adults, and community service providers contracted with OKDHS. 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 by the proposed rules are vulnerable adults, accused caretakers of vulnerable adults, and community service providers contracted with OKDHS.
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 costs and benefits to OKDHS are the OCA investigator positions have a lower state match in funds than the APS investigator positions so there may be a minimal cost savings from reallocating three APS positions to OCA.If the actual number of investigations proves greater than what was projected and additional positions need to be allocated from another division to OCA, it is unknown at this time if those positions might also have a lower state match in funds.The savings associated with not mailing certified letters to accused caretakers who cannot be located for interview is $5.59 per letter or at a minimum approximately $1,000 per year.The probable cost to OKDHS includes the cost of printing and distributing the rules, which is estimated to be less than $20.
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 non-regulatory methods or less intrusive methods for complying with state law.
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: Implementation of the proposed rules will eliminate duplicate investigations which will have a positive impact on the health, safety, and well-being of vulnerable adults.
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, the investigations and Community Services Worker Registry process will remain as is and take longer, which may make it more difficult to reach witnesses or obtain their cooperation in the separate OCA investigations.
K.The date the rule impact statement was prepared and, if modified, the date modified: Prepared: November 30, 2011.Modified December 16, 2011.
Subchapter 3. Office of Client Advocacy
Part 1. ADMINISTRATION
340:2-3-2. Definitions
Revised 7-1-09 7-1-12
The following words and terms when used in this Subchapter shall have the following meanings, unless the context clearly indicates otherwise.
"Abandonment" means the willful intent by words, actions, or omissions not to return for a child.
"Abuse" means, with regard to:
(A) minors and youth, the causing or permitting harm or threatened harm to the health, safety, or welfare of the minor or youth by a caretaker responsible for the minor's or youth's health, safety, or welfare, including but not limited to sexual abuse, sexual exploitation, and the intentional use of excessive or unauthorized force aimed at hurting or injuring the minor or youth; or harm or threatened harm or failure to protect from harm or threatened harm to the health, safety, or welfare of a child by a person responsible for the child's health, safety, or welfare, including but not limited to:
(i) nonaccidental physical or mental injury; ¢ 1
(ii) sexual abuse; or
(iii) sexual exploitation; or
(B) vulnerable adults, abuse as defined by Section 10-103(8) of Title 43A of the Oklahoma Statutes. causing or permitting the:
(i) infliction of physical pain, injury, sexual abuse, sexual exploitation, unreasonable restraint or confinement, or mental anguish; or
(ii) deprivation of nutrition, clothing, shelter, health care, or other care or services without which serious physical or mental injury is likely to occur to a vulnerable adult by a caretaker or other person providing services to a vulnerable adult.¢ 1
"Administrator,"including the person designated by an administrator to act on the administrator's behalf, means, with regard to:
(A) minors in Oklahoma Department of Human Services (OKDHS) custody living in a private residential facility, the chief administrative officer of the facility;
(B) minors in OKDHS custody in an OKDHS operated shelter or group home, the director of the shelter or group home;
(C) minors in OKDHS custody and youth in voluntary care of OKDHS who live in any other setting, including any type of out-of-home placement, the applicable OKDHS county director;
(D) foster parents, the applicable OKDHS county director or area director, as appropriate;
(E) minors and youth in residential care facilities operated by Office of Juvenile Affairs (OJA) or Department of Rehabilitation Services (DRS), facilities which contract with or are licensed by OJA, Oklahoma Department of Mental Health and Substance Abuse Services (DMHSAS ODMHSAS), the J.D. McCarty Center, or OKDHS, and other residential care facilities, the superintendent, director, chief administrative officer, or head of the facility regardless of the person's working title;
(F) day treatment programs, the person charged with responsibility for administering the program;
(G) adults and minors who are in Developmental Disabilities Services Division (DDSD) specialized foster care and DDSD specialized foster parents, the applicable DDSD area manager;
(H) residents of Southern Oklahoma Resource Center (SORC), the Northern Oklahoma Resource Center of Enid (NORCE), or the Robert M. Greer Center Facility (Greer), the facility director;
(I) providers of residential services, vocational services, or in-home paraprofessional supports to individuals with developmental disabilities living in the community, the chief executive officer of the provider; and
(J) residents of group homes for persons with developmental disabilities, the director of the group home.
"Adult Protective Services" or "APS" means the Adult Protective Services Unit of OKDHS.
"Advocate," means an Office of Client Advocacy (OCA) employee who provides assistance to OCA clients in exercising their rights, listening to their concerns, encouraging them to speak for themselves, seeking to resolve problems, helping protect their rights, and seeking to improve the quality of their life and care.
"Advocate general" means the chief administrative officer of the OCA designated in Section 7004-3.4(B)(1) 1-9-112(A)(2) of Title 10 10A of the Oklahoma Statutes (10A O.S. § 1-9-112(A)(2)).The e-mail email address for the advocate general is *oca.advocategeneral@okdhs.org oca.advocategeneral@okdhs.org.
"Authorized use of physical force" by a caretaker of minors and youths residing outside their homes, other than minors and youth in foster care means:
(A) the use of physical contact to control or contain a person when the caretaker reasonably considers that person to:
(i) pose a risk of inflicting harm to self or others; or
(ii) be in the process of leaving a facility without authorization; and
(B) when the use of physical force is authorized, the least force necessary under the circumstances is employed.In determining whether excessive force has been used, all of the circumstances surrounding the incident are taken into consideration, including:
(i) the grounds for belief that force was necessary;
(ii) the age, gender, and strength of the parties involved;
(iii) the nature of the force employed;
(iv) the availability of alternative means of force or control; and
(v) the extent of the harm inflicted.
"Caretaker" means, with regard to:
(A) minors and youth, a person responsible for a child's health, safety, or welfare who isan agent or employee of:
(i) a public or private residential home, institution, or facility above the level of foster family care; or
(ii) a day treatment program as defined in Section 10 O.S. §175.20 of Title 10 of the Oklahoma Statutes; and
(B) vulnerable adults, caretaker as defined in Section 10-103(6) of Title 43A of the Oklahoma Statutes. ¢ 2 a person who has:
(i) the responsibility for the care of a vulnerable adult or the financial management of the resources of a vulnerable adult as a result of a family relationship;
(ii) assumed the responsibility for the care of a vulnerable adult voluntarily, by contract, or as a result of the ties of friendship; or
(iii) been appointed a guardian, limited guardian, or conservator pursuant to the Oklahoma Guardianship and Conservatorship Act.
"Caretaker misconduct":
(A) means an act or omission that:
(i) violates a statute, regulation, written rule, procedure, directive, or accepted professional standards and practices;
(ii) is not found to be abuse or neglect; and
(iii) results in or creates the risk of harm to a minor, or a vulnerable adult residing at the Southern Oklahoma Resource Center (SORC), the Northern Oklahoma Resource Center of Enid (NORCE), or the Robert M. Greer Center (Greer).
(B) includes, but is not limited to:
(i) acts or omissions that contribute to the delinquency of a minor;
(ii) unintentional excessive or unauthorized use of force not rising to abuse or neglect;
(iii) unintentionally causing mental anguish;
(iv) other acts exposing a client to harm or threatened harm to the health, safety, or welfare of the client; or
(v) use of abusive or professionally inappropriate language not rising to the level of verbal abuse.
"Case manager" means the person assigned by DDSD who has the responsibility for ensuring that services to an individual are planned and provided in a coordinated fashion.
"Child" means any unmarried person under 18 years of age.
"Child placing agency" means an agency that provides social services to children and their families that supplement, support, or substitute parental care and supervision for the purpose of safeguarding and promoting the welfare of children.The agency may provide full time placement services for children away from their own homes, such as adoptive homes, foster family homes, group homes, and transitional or independent living programs.
"Client" means, with regard to OCA:
(A) OCA investigation services, those individuals listed in OAC 340:2-3-32(a)(2);
(B) OCA grievance services, those individuals listed in OAC 340:2-3-45(a)(2); and
(C) OCA advocacy program, those individuals listed in OAC 340:2-3-71(b).
"Community services worker" or "CSW" means any person not a licensed health professional who is employed by or under contract with a community services provider to provide, for compensation or as a volunteer, health-related services, training, or supportive assistance as those terms are defined in Section 56 O.S. §1025.1 of Title 56 of the Oklahoma Statutes.
"Community Services Worker Registry" or "CSW Registry" means the Community Services Worker Registry established by OKDHS in accordance with Section 56 O.S. §1025.3 of Title 56 of the Oklahoma Statutes.
"Day treatment program" means a non-residential, partial hospitalization program, day treatment program, or day hospital program in which minors are provided intensive services, psychiatric, or psychological treatment.
"DDSD" means the Developmental Disabilities Services Division of OKDHS.
"DHS" or "Department" or "OKDHS" means the Oklahoma Department of Human Services.
"Disposition," with regard to OCA intake processes, means the action taken by OCA intake in response to a referral received, pursuant to OAC 340:2-3-35.
"DMHSAS" or "ODMHSAS" means the Oklahoma Department of Mental Health and Substance Abuse Services.
"DRS" means the Oklahoma Department of Rehabilitation Services.
"E-mail Email" means:
(A) with regard to the advocate general, an e-mail email sent to *oca.advocategeneral@okdhs.org oca.advocategeneral@okdhs.org;
(B) with regard to OCA grievance matters, an e-mail email sent to *oca.advocategeneral@okdhs.org oca.advocategeneral@okdhs.org;
(C) with regard to OCA investigation matters, an e-mail email sent to *oca.advocategeneral@okdhs.org oca.advocategeneral@okdhs.org; and
(D) with regard to OCA intake matters, *oca.advocategeneral@okdhs.org oca.advocategeneral@okdhs.org.
"Emergency" means a situation in which a person is likely to suffer death or serious physical harm without immediate intervention.
"Excessive use of force" by a caretaker, with regard to minors and youths residing outside their homes, other than minors and youth in foster care, means the failure to employ the least amount of physical force necessary under the circumstances, taking into consideration all of the circumstances surrounding the incident, including:
(A) the grounds for belief that force was necessary;
(B) the age, gender, and strength of the parties involved;
(C) the nature of the force employed;
(D) the availability of alternative means of force or control;
(E) the extent of the harm inflicted; and
(F) the method(s) of restraint and intervention approved for use with the person against whom the force was used.
"Exploitation" or "exploit" with regard to vulnerable adults, means exploitation or exploit as defined in Section 10-103(9) of Title 43A of the Oklahoma Statutes an unjust or improper use of the resources of a vulnerable adult for the profit or advantage, pecuniary or otherwise, of a person other than the vulnerable adult through the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense.¢ 3
"Facility" means:
(A) a public or private agency, corporation, partnership, or other entity which:
(i) operates a residential child care center; or
(ii) contracts with or is licensed or funded by OKDHS, OJA, or DMHSAS ODMHSAS for the physical custody, detention, or treatment of minors;
(B) an OKDHS operated shelter;
(C) an OKDHS, OJA, DMHSAS ODMHSAS, or DRS operated residential child care center;
(D) a community-based youth services shelter or community intervention center;
(E) the J.D. McCarty Center;
(F) a day treatment program;
(G) a private psychiatric facility for minors;
(H) sanctions programs certified by OJA to provide programming for minors who are court ordered to participate in that program; or
(I) SORC, NORCE, and Greer.
"Financial neglect" with regard to vulnerable adults, means financial neglect as defined in Section 10-103(10) of Title 43A of the Oklahoma Statutes repeated instances by a caretaker, or other person, who has assumed the role of financial management, of failure to use the resources available to restore or maintain the health and physical well-being of a vulnerable adult, including but not limited to:
(A) squandering or negligently mismanaging the money, property, or accounts of a vulnerable adult;
(B) refusing to pay for necessities or utilities in a timely manner; or
(C) providing substandard care to a vulnerable adult despite the availability of adequate financial resources.¢ 4
"Foster care" or "foster care services" means continuous 24-hour care and supportive services provided for an individual in a foster placement, including but not limited to the care, supervision, guidance, and rearing of a foster child by the foster parent.
"Foster child" means a child placed in a foster family placement.
"Foster parent" means an individual maintaining a foster family home who is responsible for the care, supervision, guidance, rearing, and other foster care services provided to another individual.
"GARC" means the Grievance and Abuse Review Committee described in OAC 340:2-3-61.
"Guardian" means a person appointed by a court to ensure that the essential requirements for the health and safety of an incapacitated or partially incapacitated person, the ward, are met, to manage the estate or financial resources of the ward, or both.As used in this Subchapter, guardian includes: a general or limited guardian of the person; a general or limited guardian of the estate; a special guardian; and a temporary guardian.The term does not include a person appointed as guardian ad litem.
"Guardian ad litem" or "GAL" means a person appointed by a court, pursuant to Section 10 O.S. §1415 of Title 10 of the Oklahoma Statutes, to represent the interests of an individual as specified in the court order.
"Harm or threatened harm to the health, safety, or welfare" includes but is not limited to:means, with regard to minors and youth,any real or threatened physical, mental, or emotional injury or damage to the body or mind that is not accidental, including but not limited to, sexual abuse, sexual exploitation, neglect, or dependency.¢ 1
(A) non-accidental physical injury or mental anguish;¢ 5
(B) sexual abuse;
(C) sexual exploitation;
(D) failure to provide protection from harm or threatened harm;
(E) the unauthorized use of force; or
(F) the use of excessive force.
"Hissom class member" means an individual certified by the United States District Court for the Northern District of Oklahoma as a member of the plaintiff class in Homeward Bound, Inc., et al. vs. Hissom Memorial Center, et al., Case No. 85‑C‑437‑TCK-SAJ.
"Hotline" means the statewide, toll free hotline, 1-800-522-3511, maintained by OKDHS for the purpose of receiving reports of abuse, neglect, or exploitation of children and adults.The hotline is in operation 24 hours a day, 7 days a week.
"ICF/MR" or "Intermediate Care Facility for the Mentally Retarded," also known as a "specialized facility for the mentally retarded," means a private or public residential facility, licensed in accordance with state law and certified by the federal government as a provider of Medicaid services, for mentally retarded persons as that term is defined in Title XIX rules and regulations of the Social Security Act.
"Incapacitated person" means:
(A) any person 18 years of age or older who is impaired by reason of mental or physical illness or disability, dementia, or related disease, mental retardation, developmental disability, or other cause, and whose ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired to such an extent that the person lacks the capacity to manage financial resources or to meet essential requirements for mental or physical health or safety without assistance from others; or
(B) a person for whom a guardian, limited guardian, or conservator has been appointed pursuant to the Oklahoma Guardianship and Conservatorship Act, (Title 30 of the Oklahoma Statutes).
"Indecent exposure" means indecent exposure as defined by Section 10-103(12) of Title 43A of the Oklahoma Statutes forcing or requiring a vulnerable adult to:
(A) look upon the body or private parts of another person or upon sexual acts performed in the presence of the vulnerable adult; or
(B) touch or feel the body or private parts of another.¢ 6
"In-home supports" and "IHS" means services funded through Medicaid Home and Community-Based Waivers (HCBW) as defined in Section 1915(c) of the Social Security Act and administered by OKDHS DDSD, which are provided in the service recipient's home and are not residential services as defined in OAC 340:100-5-22.1 or group home services as defined in Title 10, Section O.S. § 1430.2 of the Oklahoma Statutes.
"Injury" means any hurt, harm, appreciable physical pain, or mental anguish.
"Maltreatment" means abuse, verbal abuse, sexual abuse, neglect, financial neglect, exploitation or sexual exploitation of vulnerable adults as defined in Section 43A O.S. §10‑103 of Title 43A of the Oklahoma Statutes; or abuse, neglect, sexual abuse or sexual exploitation of children as defined in Section 7102 10A O.S. § 1-1-105 of Title 10 of the Oklahoma Statutes.
"Medicaid personal care assistant" or "MPCA" means a person who provides Medicaid services funded under Oklahoma's personal care program who is not a certified nurse aide or a licensed professional.
"Mental anguish" means mental damage evidenced by distress, depression, withdrawal, severe anxiety, or unusually aggressive behavior toward self or others.
"Minor" means any person under the age of 18 years of age except any person convicted of a crime specified in Section 7306-1.1 10A O.S. § 2-5-101 of Title 10 of the Oklahoma Statutes or any person certified as an adult pursuant to Section 7303-4.3 10A O.S. § 2-2-403 of Title 10 and convicted of a felony.
"Minor physical injury" means a demonstrable injury reasonably expected to be treated with the administration of first aid, over the counter remedies, or both. A demonstrable injury includes damage to bodily tissue caused by non-therapeutic conduct, illness, new or an increased impairment of physical or cognitive functioning, evidence of a physical injury (for example, a laceration, bruise, or burn), and an injury which is confirmed by a physician, dentist, nurse, or other health care professional.
"Neglect" means,¢ 7 2 with regard to:
(A) minors and youth, the failure of a caretaker to provide:
(i) adequate food, clothing, shelter, medical care, or supervision which includes, but is not limited to, lack of appropriate supervision which results in sexual activity between minors; or the failure or omission to provide any of the following:
(I) adequate nurturance and affection, food, clothing, shelter, sanitation, hygiene, or appropriate education;
(II) medical, dental, or behavioral health care;
(III) supervision or appropriate caretakers; or
(IV) special care made necessary by the physical or mental condition of the child; ¢ 3
(ii) special care made necessary by the physical or mental condition of the minor or youth;¢ 8the failure or omission to protect a child from exposure to any of the following:
(I) the use, possession, sale, or manufacture of illegal drugs;
(II) illegal activities; or
(III) sexual acts or materials that are not age-appropriate; or
(iii) abandonment; or
(B) vulnerable adults, neglect as defined in Section 10-103(10) of Title 43A of the Oklahoma Statutes.:
(i) the failure to provide protection for a vulnerable adult who is unable to protect his or her own interest;
(ii) the failure to provide a vulnerable adult with adequate shelter, nutrition, health care, or clothing; or
(iii) negligent acts or omissions that result in harm or the unreasonable risk of harm to a vulnerable adult through the action, inaction, or lack of supervision by a caretaker providing direct services.¢ 94
"OCA" means the Office of Client Advocacy of OKDHS.
"OCA intake" means the centralized intake system maintained by OCA in its Oklahoma City office that receives referrals of alleged abuse, neglect, verbal abuse, and financial exploitation.
"OJA" means the Oklahoma Office of Juvenile Affairs.
"Ombudsman" or "ombuds," means "advocate" as defined in this subsection.
"Personal support team" or "team," formerly known as the "interdisciplinary team," means the decision-making body for service planning, implementation, and monitoring of the individual plan, as more fully described in OAC 340:100-5-52.
"Preponderance of the evidence" means information or evidence that is of a greater weight or more convincing than the information or evidence offered in opposition.It is that degree of proof which is more probable than not.
"Problem resolution" means verbal or written communications which seek to resolve concerns, complaints, service inadequacies, or issues identified by the client or members of the client's team, including the client's guardian, the OCA advocate for the client, a volunteer advocate for the client, or other persons interested in the welfare of the client.
"Provider" means a program, corporation, partnership, association, individual, or other entity that contracts with, or is licensed or funded by, OKDHS to provide community-based residential or vocational services to persons with mental retardation or developmental disabilities, or which contracts with the Oklahoma Health Care Authority to provide residential or vocational services or in-home supports to individuals with mental retardation through the Home and Community-Based Waiver.
"Referring party" means the individual who informs OCA verbally or in writing that an incident occurred.
"Reporting party" means the individual who initially tells someone verbally or in writing that an incident occurred.
"Residential child care center" means a 24-hour-a-day residential group care facility at which a specified number of minors, normally unrelated, reside with adults other than their parents.
"Self-neglect" means self-neglect as defined in Section 10-103(13) of Title 43A of the Oklahoma Statutes the action or inaction of a vulnerable adult which causes that person to fail to meet the essential requirements for physical or mental health and safety due to the vulnerable adult's lack of awareness, incompetence or incapacity.¢ 10
"Serious physical injury" means a physical injury to a person's body determined to be serious by a physician, dentist, or nurse.It includes, but is not limited to, death, suicide attempt, fracture, dislocation of any major joint, internal injury, concussion, head injury with loss of consciousness, ingestion of foreign substances and objects that are harmful; near drowning, lacerations involving injuries to tendons or organs and those for which complications are present, lacerations requiring four or more stitches or staples to close, heat exhaustion or heatstroke, injury to an eyeball, irreversible loss of mobility, permanent damage to or loss of a tooth, skin deterioration, and a second or third degree burn and other burns for which complications are present.It also includes multiple abrasions, bruises, and minor physical injuries on the body of a person, identified around the same time or over a period of several weeks, that have no clear, known explanation.
"Sexual abuse" means, with regard to:
(A) minors and youth, rape, incest, and lewd or indecent acts or proposals, as defined by state law, by a caretaker responsible for the health, safety, or welfare of the minor or youth; or
(B) vulnerable adults, sexual abuse as defined by Section 10-103(11) of Title 43A of the Oklahoma Statutes.:
(i) oral, anal, or vaginal penetration of a vulnerable adult by or through the union with the sexual organ of a caretaker or other person providing services to the vulnerable adult, or the anal or vaginal penetration of a vulnerable adult by a caretaker or other person providing services to the vulnerable adult with any other object;
(ii) for the purpose of sexual gratification, the touching, feeling or observation of the body or private parts of a vulnerable adult by a caretaker or other person providing services to the vulnerable adult; or
(iii) indecent exposure by a caretaker or other person providing services to the vulnerable adult.¢ 11
"Sexual exploitation" means, with regard to:
(A) minors and youth:
(i) allowing, permitting, or encouraging a minor or youth to engage in sexual acts with others or prostitution, as defined by state law, by a caretaker responsible for the minor's or youth's health, safety, or welfare; or
(ii) allowing, permitting, encouraging, or engaging in the lewd, obscene, or pornographic photographing, filming, or depicting of a minor or youth in those acts as defined by the state law, by a caretaker responsible for the minor's health, safety, or welfare; or
(B) vulnerable adults, sexual exploitation as defined by Section 10-103(14) of Title 43A of the Oklahoma Statutes includes, but is not limited to, a caretaker's causing, allowing, permitting or encouraging a vulnerable adult to engage in prostitution or in the lewd, obscene, or pornographic photographing, filming or depiction of the vulnerable adult as those acts are defined by state law.¢ 12
"Specialized foster care" means foster care provided to a minor or adult in a specialized foster home or agency-contracted home which has been certified by DDSD, is monitored by DDSD, and is funded through the Home and Community-Based Waiver Services Program administered by DDSD.
"State office" means the administrative offices of OKDHS in Oklahoma City.
"State office administrator," including the person designated by a state office administrator to act on the state office administrator's behalf, means, with regard to:
(A) grievances of minors, youths, and foster parents regarding the substance or application of any policy, rule, or regulation, written or unwritten, of OKDHS or an OKDHS operated shelter or residential facility, or of an agent or contractor of OKDHS, or a child placement agency, the director of OKDHS Children and Family Services Division (CFSD);
(B) grievances regarding a decision, behavior, or action by an OKDHS employee, agent, contractor, foster parent, or by any person residing in the same placement setting, the director of the OKDHS Field Operations Division;
(C) DDSD clients, the director of DDSD; and
(D) other OKDHS clients, the appropriate chief officer or division director.
"Subpoena" means a command to appear at a certain time and place to give testimony.A "subpoena duces tecum" is a command requiring the person subpoenaed to bring records with them.
"Suspicious injury" means an injury for which there is no credible explanation that makes it unlikely to be the result of client maltreatment.
(A) It includes, but is not limited to, an injury that:
(i) appears inconsistent with the offered explanation(s) for the injury;
(ii) is unusual;
(iii) cannot be explained as the result of an accident, self-injurious behavior or normal activities of daily living;¢ 51
(iv) is a minor injury located on or near a private part of the body or on a part of the body that makes it unlikely to have been the result of self-injury or an accident during the course of daily living activities; and
(v) involves multiple abrasions, bruises, and minor injuries on the body of a person, identified around the same time or over a period of several weeks, but have no clear, known explanation.
(B) The determination whether an injury is suspicious is made from the point of view of an independent skeptical reviewer.An injury is suspicious if there is no credible explanation for it consistent with the injury not being the result of maltreatment.¢ 135
"Unauthorized use of force" means, with regard to minors and youths residing outside their homes, other than minors and youth in foster care, a use of force that is not an authorized use of physical force as defined in this subsection.It includes unacceptable physical handling of and contact with clients including, but not limited to, slapping, kicking, punching, poking, pulling hair or an ear, pinching, using a choke hold, smothering, spitting, head butting, and tugging.
"Unexplained injury" means an injury for which there is no known credible origin or cause, even though a possible explanation for the injury may be offered.
"Verbal abuse" means verbal abuse as defined in Section 10-103(15) of Title 43A of the Oklahoma Statutes the use of words, sounds, or other communication including, but not limited to, gestures, actions or behaviors, by a caretaker or other person providing services to a vulnerable adult that are likely to cause a reasonable person to experience humiliation, intimidation, fear, shame or degradation.¢ 14
"Vulnerable adult" means vulnerable adult as defined by Section 10-103(5) of Title 43A of the Oklahoma Statutes an individual who is an incapacitated person or who, because of physical or mental disability, incapacity, or other disability, is substantially impaired in the ability to:
(A) provide adequately for the care or custody of himself or herself;
(B) manage his or her property and financial affairs effectively;
(C) meet essential requirements for mental or physical health or safety; or
(D) protect himself or herself from abuse, verbal abuse, neglect, or exploitation without assistance from others.¢ 15
"Ward" means a person over whom a guardianship has been given by the court.
"Youth" means, with regard to:
(A) OCA investigation programs, a person over the age of 18 years of age in OJA custody and residing in an OJA operated facility or a facility which contracts with OJA; or
(B) OCA grievance programs, a person over the age of 18 years of age in OJA custody or voluntary care of OKDHS.
INSTRUCTIONS TO STAFF 340:2-3-2
Revised 7-1-08 7-1-12
1.The definition of abuse in Section 10-103(8) of Title 43A of the Oklahoma Statutes is:"Abuse" means causing or permitting:a. the infliction of physical pain, injury, sexual abuse, sexual exploitation, unreasonable restraint or confinement, or mental anguish, or b. the deprivation of nutrition, clothing, shelter, health care, or other care or services without which serious physical or mental injury is likely to occur to a vulnerable adult by a caretaker or other person providing services to a vulnerable adult.
2.The definition of caretaker in Section 10-103(6) of Title 43A of the Oklahoma Statutes is:"Caretaker" is a person who has:a. the responsibility for the care of a vulnerable adult or the financial management of the resources of a vulnerable adult as a result of a family relationship; b. assumed the responsibility for the care of a vulnerable adult voluntarily, by contract, or as a result of the ties of friendship; or c. been appointed a guardian, limited guardian, or conservator pursuant to the Oklahoma Guardianship and Conservatorship Act.
3.The definition of exploitation or exploit in Section 10-103(9) of Title 43A of the Oklahoma Statutes is: "Exploitation" or "exploit" means an unjust or improper use of the resources of a vulnerable adult for the profit or advantage, pecuniary or otherwise, of a person other than the vulnerable adult through the use of undue influence, coercion, harassment, duress, deception, false representation or false pretense.
4.The definition of financial neglect in Section 10-103(10) of Title 43A of the Oklahoma Statues is: "Financial neglect" means repeated instances by a caretaker, or other person, who has assumed the role of financial management, of failure to use the resources available to restore or maintain the health and physical well-being of a vulnerable adult, including but not limited to: a. squandering or negligently mismanaging the money, property, or accounts of a vulnerable adult; b. refusing to pay for necessities or utilities in a timely manner; or c. providing substandard care to a vulnerable adult despite the availability of adequate financial resources.
51."Accident" means an event that could not be anticipated or prevented through the exercise of reasonable care.
6.The definition of indecent exposure in Section 10-103(12) of Title 43A of the Oklahoma Statutes is: "Indecent exposure" means forcing or requiring a vulnerable adult to:a. look upon the body or private parts of another person or upon sexual acts performed in the presence of the vulnerable adult, or b. touch or feel the body or private parts of another.
72.Neglect can result from lack of supervision appropriate under the circumstances and failure to report client maltreatment pursuant to OAC 340:2-3-33.
83.Neglect includes, but is not limited to, use of a restraint under circumstances that the person(s) involved in executing the restraint knew or should have known that:
(1) the restraint was not an authorized use of physical force;
(2) the type of restraint used is not an approved method;
(3) the physical surroundings where the restraint was executed would result in a risk of serious injury; or
(4) the amount of force used was excessive.
94.The definition of neglect in Section 10-103(10) of Title 43A of the Oklahoma Statutes is: "Neglect" means:a. the failure to provide protection for a vulnerable adult who is unable to protect his or her own interest, b. the failure to provide a vulnerable adult with adequate shelter, nutrition, health care, or clothing, or c. negligent acts or omissions that result in harm or the unreasonable risk of harm to a vulnerable adult through the action, inaction, or lack of supervision by a caretaker providing direct services.It may include neglect of a client's financial interests due to a breach of a fiduciary relationship.
10.The definition of self-neglect in Section 10-103(13) of Title 43A of the Oklahoma Statutes is:"Self-neglect" means the action or inaction of a vulnerable adult which causes that person to fail to meet the essential requirements for physical or mental health and safety due to the vulnerable adult's lack of awareness, incompetence or incapacity.
11.The definition of sexual abuse in Section 10-103(11) of Title 43A of the Oklahoma Statutes is:"Sexual abuse" means:a. oral, anal, or vaginal penetration of a vulnerable adult by or through the union with the sexual organ of a caretaker or other person providing services to the vulnerable adult, or the anal or vaginal penetration of a vulnerable adult by a caretaker or other person providing services to the vulnerable adult with any other object; b. for the purpose of sexual gratification, the touching, feeling or observation of the body or private parts of a vulnerable adult by a caretaker or other person providing services to the vulnerable adult; or c. indecent exposure by a caretaker or other person providing services to the vulnerable adult.
12.The definition of sexual exploitation in Section 10-103(14) of Title 43A of the Oklahoma Statutes is: "Sexual exploitation" includes, but is not limited to, a caretaker's causing, allowing, permitting or encouraging a vulnerable adult to engage in prostitution or in the lewd, obscene, or pornographic photographing, filming or depiction of the vulnerable adult as those acts are defined by state law.
135.In making that assessment, consideration is given to the credibility of the source of information as well as the information provided."He fell in the shower" may be an excuse for abuse."She tripped on her shoe laces" may be an excuse for lack of supervision.In making a determination whether an injury is suspicious, a nurse's assessment that an injury is not suspicious is only one factor considered but is not conclusive.
14.The definition of verbal abuse in Section 10-103(15) of Title 43A of the Oklahoma Statutes is:"Verbal abuse" means the use of words, sounds, or other communication including, but not limited to, gestures, actions or behaviors, by a caretaker or other person providing services to a vulnerable adult that are likely to cause a reasonable person to experience humiliation, intimidation, fear, shame or degradation.
15.The definition of vulnerable adult in Section 10-103(5) of Title 43A of the Oklahoma Statutes is:"Vulnerable adult" means an individual who is an incapacitated person or who, because of physical or mental disability, incapacity, or other disability, is substantially impaired in the ability to provide adequately for the care or custody of himself or herself, or is unable to manage his or her property and financial affairs effectively, or to meet essential requirements for mental or physical health or safety, or to protect himself or herself from abuse, verbal abuse, neglect, or exploitation without assistance from others.
Part 3. INVESTIGATIONS
340:2-3-32. Office of Client Advocacy (OCA) investigation protocols
Revised 7-1-11 7-1-12
(a) Legal authority, scope, and purpose.
(1) Legal authority.
(A) Section 1-9-112(A)(3)(d) and (e) of Title 10A of the Oklahoma Statutes (10A O.S. § 1-9-112(A)(3)(d) and (e)) gives the Office of Client Advocacy (OCA) the responsibility to investigate allegations of caretaker abuse, neglect, sexual abuse, sexual exploitation, and misconduct by a person responsible for a child:
(i) residing outside their own homes regardless of custody, other than children in foster care;
(ii) receiving services from a community services provider or a community services worker, as defined in Section 56 O.S. §1025.1 of Title 56 of the Oklahoma Statutes; ¢ 1
(iii) in a day treatment program as defined in Section 10 O.S. § 175.20 of Title 10 of the Oklahoma Statutes; and
(iv) residing in a state institution listed in Section 10 O.S. §1406 of Title 10 of the Oklahoma Statutes.¢ 1 2
(B) Section 43A O.S. §10-105 of Title 43A of the Oklahoma Statutes gives the Oklahoma Department of Human Services (OKDHS) responsibility to investigate allegations of caretaker abuse, neglect, verbal abuse, and exploitation of vulnerable adults.OKDHS confers on OCA the responsibility to conduct those investigations that involve:
(i) Hissom class members and;
(ii) residents of the Southern Oklahoma Resource Center (SORC), the Northern Oklahoma Resource Center of Enid (NORCE), and the Robert M. Greer Center (Greer); and
(iii) vulnerable adults receiving services from a community services provider, a community services worker, a Medicaid personal care services provider, or a Medicaid personal care assistant, as those terms are defined in 56 O.S. § 1025.1.¢ 1
(C) OCA investigates, pursuant to OAC 340:75-3-8.3(3), reports alleging denial of medically beneficial treatment by a medical provider to a handicapped infant.
(2) Scope.OCA conducts administrative investigations of allegations of maltreatment listed in this subsection.All of the individuals listed, who are clients of the facilities and providers that provide them residential care, vocational services, or day treatment, are referred to as the "client" throughout this Section and OAC 340:2-3-33 through 340:2-3-37.OCA investigates allegations of:
(A) abuse and neglect of children by persons responsible for a child's health, safety, or welfare, and caretaker misconduct with regard to children in residential care above the level of foster care regardless of custody, including but not limited to:
(i) children in OKDHS operated or licensed shelters and group homes;
(ii) children and youth in facilities operated by, licensed by, or contracting with OJA;
(iii) children in community-based youth services shelters and community intervention centers that contract with Office of Juvenile Affairs (OJA) pursuant to Section 10A O.S. §2-7-305 of Title 10A of the Oklahoma Statutes;
(iv) children in facilities operated by or contracting with Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS);
(v) children in facilities operated by the J.D. McCarty Center of Oklahoma;
(vi) children residing in or attending educational classes at facilities operated by the Oklahoma Department of Rehabilitation Services (ODRS): the Oklahoma School for the Blind and the Oklahoma School for the Deaf; and
(vii) children receiving services from a community services worker or a community services provider as that term is those terms are defined in Section 56 O.S. §1025.1 of Title 56 of the Oklahoma Statutes;¢ 1
(B) abuse and neglect of, and caretaker misconduct with regard to, children in day treatment programs as defined in Section 10 O.S. §175.20 of Title 10 of the Oklahoma Statutes, including sanctions programs certified by OJA to provide programming for children who are court ordered to participate in that program;
(C) abuse, neglect, and verbal abuse of, and caretaker misconduct with regard to, residents of SORC, NORCE, and Greer;
(D) abuse, neglect, verbal abuse, and exploitation of Hissom class members who live in Oklahoma and who do not reside in a private intermediate care facility for the mentally retarded (ICF/MR); and
(E) abuse, neglect, verbal abuse, and exploitation of vulnerable adults receiving services from a community services worker, a community services provider, or a SoonerCare (Medicaid) personal care assistant services provider, or a Medicaid personal care assistant, as those terms are defined in Section 56 O.S. §1025.1 of Title 56 of the Oklahoma Statutes, on request of the Adult Protective Services Unit of OKDHS.¢ 21
(3) Purpose. OCA conducts independent and objective administrative investigations of suspected maltreatment of clients by caretakers in order to:
(A) protect clients from further maltreatment;
(B) deter and prevent maltreatment;
(C) provide relevant evidence in administrative and judicial proceedings;
(D) rule out unfounded allegations; and
(E) hold violators accountable.
(b) Confidentiality.State and federal statutes and regulations, including but not limited to, Section 10A O.S. §1-9-112(C) of Title 10A of the Oklahoma Statutes; Section10A O.S. §1-6-102 of Title 10A of the Oklahoma Statutes; Section 56 O.S. §183 of Title 56 of the Oklahoma Statutes; Section 43A O.S. §10-110 of Title 43A of the Oklahoma Statutes; and OAC 340:65-1-2, require confidentiality for many OKDHS records.Information about clients is confidential and is protected from unauthorized use.Only authorized individuals are given access to case records or provided information from those records.¢ 3
(1) OCA investigations involving children and youth. Statutes and policies regarding the confidentiality of OCA files, records, and reports relating to investigations involving children and youth include, but are not limited to, the confidentiality provisions of the statutes and policies listed in (A) through (C) of this paragraph.
(A) Sections 10A O.S. §§2-6-102 through 106 of Title 10A of the Oklahoma Statutes apply to OCA investigations involving children and youth in OJA custody and in facilities that contract with OJA.
(B) Sections 10A O.S. §§ 1-2-106, 1-2-107, and 1-6-102 et seq., and 1-6-107, of Title 10A of the Oklahoma Statutes apply to investigations involving children, regardless of custody, residing outside their own homes.
(C) OAC 340:75-1-42 through 340:75-1-46 apply to OCA investigations involving children in OKDHS custody, including information regarding placement.
(2) OCA investigations involving vulnerable adults.Statutes and policies regarding the confidentiality of OCA files, records, and reports relating to investigations involving vulnerable adults, include but are not limited to (A) through (C) of this paragraph.
(A) When consulting persons knowledgeable of the circumstances of an alleged victim of abuse, neglect, or exploitation, or when making other contacts as part of the investigation or service planning process, OCA staff may disclose information necessary to ensure that the client is protected and the client's needs are met.Information may be disclosed for this purpose without a court order to specific persons acting in an official capacity with regard to the investigation, including:
(i) a district attorney or employees of the district attorney's office;
(ii) the attorney representing an alleged victim in the matter under investigation;
(iii) staff of an Oklahoma law enforcement agency or a law enforcement agency of another state;
(iv) physical or mental health care professionals involved in the evaluation or treatment of the vulnerable adult;
(v) the guardian of the vulnerable adult, in the form of a summary of the allegations in the referral;
(vi) the provider for a vulnerable adult; and
(vii) other public or private agencies or persons authorized by OKDHS to diagnose, or provide care, treatment, supervision, or other services to a person who is the subject of an OCA investigation.
(B) District attorneys, their staff, the attorney representing the alleged victim, and law enforcement agencies may receive information from or review the entire case record.All other disclosures are limited to summaries of information provided for a specific purpose.Case information from OCA records is not released for research purposes without the prior approval of the advocate general.
(C) In other situations, OCA investigative information is considered confidential under Section 43A O.S. §10-110(A) of Title 43A of the Oklahoma Statutes and may be disclosed only by court order.Confidentiality applies to members of the news media as well as the general public.News media representatives requesting information on a specific case are referred to the advocate general, the OCA programs administrator for investigations, or the OKDHS Office of Communications for a detailed explanation of OKDHS confidentiality rules.
INSTRUCTIONS TO STAFF 340:2-3-32
Revised 7-1-11 7-1-12
1.The Office of Client Advocacy (OCA) investigates the death of a vulnerable adult living in the community who is not a Hissom Class Member on request of the Oklahoma Department of Human Services (OKDHS) Adult Protective Services Unit.Definitions are in Section 1025.1 of Title 56 of the Oklahoma Statutes (56 O.S. § 1025.1).
2.Existing state institutions indicated in 10 O.S. §1406 are the Northern Oklahoma Resource Center of Enid (NORCE) and the Southern Oklahoma Resource Center of Pauls Valley (SORC).
23.(a) Staff responsibilities.Office of Client Advocacy (OCA) staff are familiar with relevant OKDHS policies, including but not limited to OAC 340:2-3-1 et seq., 340:75-1-42 through 340:75-1-45, 340:5, and 340:100-3-2.All staff members are responsible for ensuring case information, whether recorded or unrecorded, is treated in a professional manner consistent with OKDHS policy.Failure to comply with OKDHS policies, and state and federal laws regarding confidentiality, including the Health Insurance Portability and Accountability Act (HIPAA) and The Privacy Rule, may result in criminal and administrative sanctions.
(b) Computer data.Client and case record data stored in computer systems and available through computer screens, reports, and other printouts is confidential and is protected in the same manner as other confidential information.Passwords and sign-on codes are confidential and are not exchanged among staff or routinely posted.Terminals are not left unattended and confidential information is not left showing on a screen in view of unauthorized persons.
(c) Subpoenas.A state court subpoena or subpoena duces tecum purporting to compel disclosure of OCA records is not valid per Section 10A O.S. § 1-6-102 of Title 10A of the Oklahoma Statutes.When a petition, motion, subpoena, subpoena duces tecum, or any other request or application for release of an OKDHS record is received by an OCA employee, the employee immediately notifies the OCA programs administrator for investigations and the advocate general.
340:2-3-33.Procedure for reporting suspected abuse, neglect, verbal abuse, caretaker misconduct, and exploitation
Revised 7-1-117-1-12
(a) Reporting requirements and reportable incidents.
(1) Persons having reason to believe that a child is a victim of abuse or neglect are required by Section 1-2-101 of Title 10A of the Oklahoma Statutes (10A O.S. § 1-2-101) to promptly report it to the Oklahoma Department of Human Services (OKDHS).
(2) Persons having reason to believe that a vulnerable adult is a victim of abuse, neglect, verbal abuse, or exploitation are required by Section 43A O.S. §10-104 of Title 43A of the Oklahoma Statutes to promptly report it to OKDHS.This reporting requirement applies to providers, as defined in OAC 340:2-3-2, and their employees and agents.
(3) Employees of OKDHS, Oklahoma Department of Rehabilitation Services(ODRS), Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS), Office of Juvenile Affairs (OJA), and the J.D. McCarty Center who have reason to believe that caretaker misconduct, as defined in OAC 340:2‑3‑2, with regard to a client has occurred promptly refer it to OCA intake.This referring requirement also extends to employees of private facilities that contract with OKDHS, ODRS, ODMHSAS, and OJA to provide residential services to these clients.
(4) A person may have reason to believe that maltreatment or caretaker misconduct has occurred based on information he or she has learned directly or indirectly, including information provided by the alleged victim or witnesses to an incident.When an allegation of maltreatment is made by the alleged victim or the guardian or parent of the alleged victim, it is referred to OCA intake.Persons unsure of what to report or to refer call OCA intake, 1-800-522-8014, during business hours, and after hours call the Abuse Hotline, 1‑800-522-3511.
(5) Knowledge of circumstances that may constitute maltreatment is reported even if the person reporting it cannot substantiate the information.
(6) In addition to the reportable incidents in paragraphs (1), (2), and (3) of this subsection, employees and agents of OKDHS, ODRS, ODMHSAS, OJA, the J.D. McCarty Center, facilities, and providers report to OCA events listed in (A) through (G) of this paragraph involving a person listed in OAC 340:2-3-32(a)(2):
(A) a violent death, whether apparently homicidal, suicidal, or accidental;¢ 1
(B) a death under suspicious, unusual, or unnatural circumstances;
(C) the death of a resident of the Southern Oklahoma Resource Center (SORC), the Northern Oklahoma Resource Center of Enid (NORCE), or the Robert M. Greer Center (Greer);
(D) the death of a Hissom class member;
(E) a serious physical injury, as defined in OAC 340:2-3-2;
(F) any physical injury if it is:
(i) unexplained; and
(ii) suspicious; or
(G) rape, sodomy, or other sexual activity prohibited by state law.
(7) "Promptly" reporting as used in this Subchapter means the same day or the next working day.
(8) The reporting obligations under this Section are individual. Employers, supervisors, and administrators do not impede or inhibit the reporting obligations of any employee or other person.
(b) Reporting responsibilities.
(1) Reportable incidents.Reportable incidents are defined in subsection (a) of this Section.
(2) Children and youth.An OKDHS employee with knowledge of a reportable incident involving a child or youth who is an OCA client, as defined in OAC 340:2‑3‑32(a)(2), is required to make an immediate referral to OCA intake.Any other person who has knowledge of this type of reportable incident involving an OCA client is required by law to make a prompt report to OCA intake, Child Welfare in an OKDHS local county office, or the statewide, toll free hotline (the "Abuse Hotline"), 1‑800-522-3511.Referrals to OCA intake are made per subsection (e) of this Section.
(3) Vulnerable adults.An OKDHS employee who has knowledge of a reportable incident involving a vulnerable adult who is an OCA client, as defined in OAC 340:2‑3-32(a), is required to make an immediate referral to OCA intake.Any other person who has knowledge of this type of reportable incident is required by law to make a report as soon as possible to OCA intake, the office of the district attorney in the county that the alleged incident happened, or the local municipal police or sheriff's department.
(4) Immunity from liability.Oklahoma law provides that any person exercising good faith and due care in making a report of alleged abuse, neglect, verbal abuse, or exploitation pursuant to the Oklahoma Child Abuse Reporting and Prevention Act Children's Code or the Oklahoma Protective Services for Vulnerable Adults Act shall have immunity from any civil or criminal liability the person might otherwise incur.
(5) Questions about reporting.A person who is uncertain if a particular incident is reportable contacts OCA intake, 1-800-522-8014, during business hours, and after hours call calls the Abuse Hotline, 1‑800-522-3511.
(c) Failure to report.Any person who knowingly and willfully fails to promptly report a reportable incident as provided for in this Section may be subject to administrative action or criminal sanctions.Section 43A O.S. §10-104(E) of Title 43A and Section 10A O.S. §1-2-101(C) of Title 10A of the Oklahoma Statutes makes failure to report a misdemeanor, upon conviction.In addition, failure to report by an OKDHS employee may result in disciplinary action.
(d) False reporting.
(1) Any person who knowingly and willfully makes a false report regarding alleged maltreatment of a minor child, or a report that the person knows lacks factual foundation, may be reported by OKDHS to local law enforcement for criminal investigation and, upon conviction, is guilty of a misdemeanor.
(2) With regard to vulnerable adults, any person who willfully or recklessly makes a false report may be liable in a civil action for any actual damages suffered by the person(s) being reported and for any punitive damages set by the court or jury.
(e) Method of reporting.
(1) Any person obligated to report an allegation of suspected abuse, neglect, verbal abuse, or exploitation of an OCA client, or caretaker misconduct towards an OCA client, contacts OCA intake in Oklahoma City by telephone at 1-405-525-4850 or 1‑800-522-8014, between 8:00 a.m. and 5:00 p.m. on normal business days.At all other times, the Abuse Hotline, 1‑800-522-3511 accepts referrals on behalf of OCA.Referrals also are made by completing Form 15GN001E, Office of Client Advocacy Intake Referral, and transmitting it by fax 1‑405‑525‑4885, to OCA, Attn: OCA intake, or sending the same information in an e-mail email addressed to *oca.advocategeneral@okdhs.org oca.advocategeneral@okdhs.org.
(2) Allegations of exploitation of residents of SORC, NORCE, and Greer are reported to the person designated by the facility administrator to receive and investigate reports of those allegations.
(3) In lieu of contacting OCA intake, employees of SORC, NORCE, and Greer also have the option of contacting the quality assurance staff at those facilities.In this event, the reporting staff also notifies the OCA facility advocate staff assigned to the facility.OCA employees and facility staff who receive information about a reportable incident promptly contact OCA intake to transmit that information.
(f) Confidentiality of reporting party's identity.OCA keeps confidential the identity of a person who reports an incident involving a vulnerable adult per Section 43A O.S. §10-105(C)(2) of Title 43A of the Oklahoma Statutes, and of a person who reports an incident involving a child or youth per Section 10A O.S. §1-6-102(H)(7) of Title 10A of the Oklahoma Statutes.OCA accepts anonymous referrals.
(g) Retaliation prohibited.Section 43A O.S. § 10-104(K) of Title 43A of the Oklahoma Statutes states that an employer shall not terminate the employment, prevent or impair the practice or occupation of or impose any other sanction on any employee solely for the reason that the employee made or caused to be made a report or cooperated with an investigation pursuant to the Protective Services for Vulnerable Adults Act, Section 43A O.S. §10-101 et seq. of Title 43A of the Oklahoma Statutes.
(h) Staff training.All administrators ensure their employees receive relevant training regarding their reporting responsibilities detailed in this Section.Except for employees of a Developmental Disabilities Services Division (DDSD) provider, employees receive this training within 30 calendar days of initial employment and subsequent training annually.The training for employees of DDSD providers is per OAC 340:100-3-38 et seq.
INSTRUCTIONS TO STAFF 340:2-3-33
Revised 7-1-07
1.The death of a Developmental Disabilities Services Division (DDSD) client is reviewed pursuant to OAC 340:100-3-35.
340:2-3-35.Processing referrals received by the Office of Client Advocacy (OCA)
Revised 7-1-117-1-12
(a) Disposition options.The Office of Client Advocacy (OCA) intake records on Form 15GN001E, Office of Client Advocacy Intake Referral, or its electronic equivalent, the specifics of each referral received and makes an appropriate disposition regarding how the referral is to be handled.Consideration is given to all known information to determine an appropriate disposition and course of action.The disposition options and criteria include, but are not limited to, the options described in (1) through (7) of this subsection.
(1) OCA investigation.This disposition means OCA opens an investigation of an allegation of caretaker maltreatment.¢ 1
(2) Assign for caretaker conduct review.This disposition means the facility or provider named in the referral is given responsibility to conduct an internal caretaker conduct review per OAC 340:2-3-37.Within one working day of receiving a referral given this disposition, OCA intake notifies the administrator or designated contact person.OCA intake documents the notification on Form 15GN001E or its electronic equivalent.This disposition does not apply to allegations involving Developmental Disabilities Services Division (DDSD) clients vulnerable adults other than residents of Southern Oklahoma Resource Center (SORC), Northern Oklahoma Resource Center of Enid (NORCE), and the Robert M. Greer Center (Greer).
(3) Refer to advocate.This disposition is made when the referral involves a Hissom class member or a resident of SORC, NORCE or Greer, and involves a concern that, based on the information provided, does not rise to the level of maltreatment.Within one working day of receipt of the reported incident, the applicable OCA advocate and his or her supervisor are notified of the matter by e-mail email or telephone for appropriate follow-up inquiry.If the advocate knows or learns of facts that indicate a more appropriate disposition, the advocate immediately notifies OCA intake.¢ 1 & 2
(4) Refer to another administrative entity for handling.This disposition means OCA intake forwards the information to another state agency or Oklahoma Department of Human Services (OKDHS) division or office for handling.This disposition is appropriate when information provided by the reporting party does not include an allegation of caretaker maltreatment within the purview of OCA, but rather involves complaints about employee performance or allegations within the scope of another administrative entity.When this disposition is made, OCA intake makes the referral within one working day of receipt of the reported incident.These referrals are not assigned to OCA investigators for handling or intervention.
(5) Refer to law enforcement.This disposition is used when the referral involves possible criminal activity and it is not within OCA investigative authority as described in OAC 340:2-3-32(a).This disposition is not used when OCA opens an investigation on a referral even though a law enforcement agency also is investigating the matter.
(6) Refer for grievance.When a referral to a grievance system is made, OCA intake notes the specifics of that referral on Form 15GN001E, or its electronic equivalent.The referral is directed to the appropriate entity for handling as a grievance when the content of the referral is not caretaker maltreatment, but a complaint or concern that can be addressed by a grievance.If the complaint can be addressed as a grievance and is referred for grievance by OCA, the entity promptly notifies its local grievance coordinator.A referral may be appropriate for handling as a grievance when the complaint(s) concerns:
(A) conditions that do not endanger clients or residents;
(B) staff improprieties that do not constitute maltreatment; and
(C) privileges and restrictions not involving the use of isolation, force, or restraints.
(7) No action required.This disposition is made when OCA takes no action in response to the referral because the information provided is for notification purposes only and does not include an allegation, complaint, or concern appropriate for another disposition.This disposition is also made when an OCA investigation is not warranted in an Adult Protective Services substantiated case.
(8) Refer to administration.This disposition means the matter is not within the purview of OCA, another OKDHS unit, or another state agency but is relevant to the operations of a facility or provider.When this disposition is used, OCA intake contacts the administrator of the facility or provider to inform the administrator of relevant information relating to the referral. ¢ 3
(9) Refer to DDSD Quality Assurance (QA).This disposition is made when an allegation involves an alleged contract violation that does not involve caretaker maltreatment.
(10) Refer for special advocacy. This disposition is made when the referral constitutes a request for advocacy services under OAC 340:2-3-75.
(b) Notifying law enforcement.If a referral opened as an OCA investigation involves possible criminal activity on the part of a caretaker or a person responsible for a child's health, safety, or welfare, OCA intake determines from the reporting party or the designated contact person for the facility or provider whether law enforcement was notified.If law enforcement has already been notified, OCA intake documents that information on Form 15GN001E or its electronic equivalent.OCA intake also notifies the appropriate law enforcement authority and notes the specifics on Form 15GN001E or its electronic equivalent.¢ 4
(c) Assignment process for referrals opened for investigation.A referral accepted for investigation is assigned to a specific OCA investigator.¢ 5Investigations involving Hissom class members are assigned within one working day of making a disposition to investigate the allegation.When urgent circumstances exist in a case opened for investigation, an assignment is made and the investigation commenced immediately.¢ 6
INSTRUCTIONS TO STAFF 340:2-3-35
Revised 7-1-11 7-1-12
1.Hissom referrals.The only dispositions used for referrals regarding a Hissom class member are "Office of Client Advocacy (OCA) investigation," "refer to advocate," and "refer to administration."When appropriate, intake also refers to law enforcement and to the Oklahoma Department of Human Services (OKDHS) Adult Protective Services (APS) Unit.Regardless the disposition given to a referral involving a Hissom class member, OCA intake notifies the OCA advocate assigned to the class member by e-mail email copied to the advocate's supervisor and the OCA programs administrator for community ombuds advocacy programs.OCA intake promptly notifies these same individuals when there is a change in the disposition.OCA intake also notifies by e-mail email the appropriate Developmental Disabilities Services Division (DDSD) area manager and other persons designated in OCA directives.If the disposition subsequently changes, OCA intake notifies the same individuals in writing of the change.
2.Identifying emergency situations.OCA intake determines from available information whether the situation presents a serious risk to the victim that requires immediate attention.If an emergency response appears to be indicated, OCA arranges for an OCA investigator, an APS investigator, a law enforcement officer, or other appropriate person, such as an OCA advocate, to personally visit with the victim immediately and no later than within 24 hours.Emergency situations are those that a person is likely to suffer death or serious physical harm without intervention.
3.When a referral from Southern Oklahoma Resource Center (SORC), Northern Oklahoma Resource Center of Enid (NORCE), or the Robert M. Greer Center (Greer) is given a "refer to administration" disposition, the facility sends OCA a copy of the incident reports, five-day reports, and final reports sent to the Oklahoma State Department of Health (OSDH) within one business day of submission of the report to the OSDH.
4.Criminal activity.The types of criminal activity that are reported to law enforcement include, but are not limited to, illegal drug use or possession, domestic abuse, illegal sexual activity, illegal use of alcohol, theft of money, property or medicine that is a controlled substance, and when someone other than a caretaker is involved in the allegation.When a reporting party indicates that law enforcement has been contacted, OCA intake documents on Form 15GN001E, Office of Client Advocacy Intake Referral, or its electronic equivalent, the particulars regarding what law enforcement agency was contacted, the date and time it was contacted, and with whom the reporting party spoke.
5.In making assignments, consideration is given to the status of the investigators' workloads, efficient use of travel resources, planned and unplanned absences of investigators, and investigator areas of expertise.
6.Following the assignment of a referral, the name of the investigator to whom a referral has been assigned is noted on Form 15GN001E or its electronic equivalent.
340:2-3-36. Investigation procedures
Revised 7-1-11 7-1-12
(a) Initiation of Office of Client Advocacy (OCA) investigation.The assigned OCA investigator conducts a prompt investigation of the referral.The investigator contacts the applicable administrator or designee to arrange for document production, site visits, and interviews.
(1) The facility or provider administrator who employed an accused caretaker at the time of the alleged incident informs that employee of:
(A) the name and telephone number of the OCA investigator;
(B) the investigative process described in this Section;
(C) except as stated in paragraph (2) of this subsection, the employee's rights and responsibilities relating to the investigation described in subsection (d) (e) of this Section, using Form 15IV005E, Investigations of Client Maltreatment - Rights and Responsibilities of Accused Caretakers, Form 15IV006E, Investigations of Foster Parent Retaliation Complaints - Rights and Responsibilities of Accused OKDHS Employees, or a substantially similar provider or agency form, a copy of which is provided to the OCA investigator except as stated in paragraph (2) of this subsection; and
(D) the allegation made against the accused caretaker without divulging the identity of the reporting party or the substance of the evidence.
(2) In cases involving caretakers subject to the Community Services Worker (CSW) Registry maintained by DDSD, the rights and responsibilities of accused community services workers and Medicaid personal care assistants are found in OAC 340:100-3-39.The facility or provider administrator or designee promptly completes Form 06PE059E, Rights and Responsibilities of Community Services Worker or Medicaid personal care assistant in an Investigation of Abuse, Neglect, or Exploitation, per OAC 340:100-3-39(e)(2)(C). The facility or provider administrator or designee mails Form 06PE059E to the worker when it is not possible to personally give it to a worker who is no longer employed by the provider.
(3) On request and for good cause shown, OCA expedites the time frames contained in this subsection for conducting an investigation.
(b) Notice of Investigation. The assigned OCA investigator provides notice to the caretaker of the alleged victim, the legal guardian, and next of kin of a vulnerable adult as provided by Section 10-105.1 of Title 43A of the Oklahoma Statutes (43A O.S. § 10-105.1). The assigned OCA investigator provides notice to a person responsible for the health, safety, or welfare of a child who is the subject of an investigation as provided by Section 10A O.S. §1-2-106 of Title 10A of the Oklahoma Statutes.
(c) Access.The applicable facility or provider administrator arranges for the OCA investigator to have immediate and direct access to any alleged victim in the referral who is still a client of the facility or provider.During an OCA investigation, Oklahoma Department of Human Services (OKDHS), Office of Juvenile Affairs (OJA), Oklahoma Department of Rehabilitation Services (ODRS), Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS), the J.D. McCarty Center, providers, and facilities, and persons who contract with them, provide OCA access to all employees, clients, facilities, locations, files, and records of any nature that may pertain to the investigation.Denial of access may be grounds for termination of a contract between OKDHS and a contractor.
(d) Interference prohibition.
(1) Section 10A O.S. §1-2-101(B)(4) of Title 10A of the Oklahoma Statutes prohibits discrimination or retaliation against a person who in good faith provides information about a reportable incident or testifies in a proceeding.
(2) Section 21 O.S. §455 of Title 21 of the Oklahoma Statutes makes it a felony to interfere with a child abuse investigation or a vulnerable adult investigation under Title 43A O.S.An OKDHS employee who interferes with an OCA investigation also may be subject to administrative action.Interference includes but is not limited to:
(A) intimidating, harassing, or threatening a party to the investigation;
(B) retaliation against an employee for reporting an allegation; or
(C) denial of access to clients, employees, facilities, witnesses, records, or evidence.
(3) Section 43A O.S. §10-104(K) of Title 43A of the Oklahoma Statutes states that an employer shall not terminate the employment, prevent or impair the practice or occupation of or impose any other sanction on any employee solely for the reason that the employee made or caused to be made a report or cooperated with an investigation pursuant to the Protective Services for Vulnerable Adults Act, Section 43A O.S. §§10-101 et seq. of Title 43A of the Oklahoma Statutes.
(e) Rights and responsibilities of accused caretakers.The rights and responsibilities of an accused caretaker during an OCA investigation are outlined in this subsection, except those of a caretaker who is a community services worker or a SoonerCare (Medicaid) personal care attendant assistant, whose rights and responsibilities are found at OAC 340:100-3-39.
(1) Rights.During the investigation process, an accused caretaker has the right to:
(A) be advised by the facility or provider administrator of the nature of the allegation(s) made against him or her in the referral;
(B) be advised by OCA of the investigative process involving caretaker maltreatment;
(C) be interviewed by the investigator and allowed to give his or her position regarding the referral;
(D) be advised by the investigator of the substance of the evidence against him or her, but not the identity of the person reporting the allegation;
(E) submit or supplement a written statement relating to the allegations;
(F) seek advice from other parties concerning a caretaker's rights and responsibilities in OCA investigations;
(G) decline to answer any question when he or she reasonably believes the answer to the question may incriminate him or her in a criminal prosecution; and
(H) be notified in writing by his or her employer of the outcome of the investigation.
(2) Responsibilities.During the investigative process, an accused caretaker has the responsibility to:
(A) prepare written statements and reports relevant to the investigation upon request;
(B) be available for interviews and accommodate the investigator in scheduling of interviews;
(C) refrain from any action that interferes with the investigation, including any action that intimidates, threatens, or harasses any person who has or may provide information relating to the allegation; and
(D) provide pertinent information and respond fully and truthfully to questions asked.
(f) Educational employees.This subsection applies to an employee of a school district providing contract educational services on-site at a facility, as defined in OAC 340:2-3-2, who is either a witness or an accused caretaker in an investigation opened by OCA.
(1) The administrator of the facility where the incident took place notifies the principal of the school of the nature of the allegation and the name of the assigned OCA investigator.
(2) The principal of the school is responsible for notifying the school employee of the reason for the investigative interview, advising the employee of his or her rights and responsibilities relating to the OCA investigation, and arranging for the employee's appearance at an investigative interview.This requirement is for purposes of notification and coordination of the investigative process and does not extend to ensuring the protection of the alleged victim(s) or other clients at the facility where the educational services are provided.The administrator of the facility where the alleged incident took place is responsible for protection of clients.
(3) OCA investigates educational employees who meet the definition of a caretaker in OAC 340:2-3-2.
(g) Contractor's employees.This subsection applies to an employee of a contractor of a provider or facility when the employee is an accused caretaker in an investigation opened by OCA.
(1) The facility or provider administrator where the incident took place notifies the chief administrative officer of the contractor of the nature of the allegation against the contractor's employee and the name of the assigned OCA investigator.
(2) The chief administrative officer of the contractor is responsible for notifying the contract employee of the reason for the investigative interview, advising the employee of his or her rights and responsibilities relating to the OCA investigation, and arranging for the employee's appearance at an investigative interview.This requirement is for purposes of notification and coordination of the investigative process.The facility or provider administrator where the alleged incident took place is responsible for protection of clients.
(h) Document collection and review.
(1) The investigator gathers and reviews relevant documents including, but not limited to:
(A) incident reports and other written reports, accounts, and statements prepared during the preliminary assessment;
(B) medical records;
(C) photos;¢ 1 and
(D) facility or provider logs, activity and tracking documents.
(2) If the OCA investigator is denied access to records, documentation, or other information relevant to an investigation involving a vulnerable adult, OKDHS Adult Protective Services is contacted for assistance in petitioning the court for an order allowing access.
(3) If the OCA investigator is denied access to the place where the child is located, access to records or treatment plans, or other documentation relevant to the alleged abuse or neglect of a child, the investigator contacts the district attorney.The district attorney may make application to the district court for an order allowing access.
(i) Investigative interviews.The investigator interviews or attempts to interview persons known or identified to have information about the referral.¢ 2If an injury is alleged, the investigator or other appropriate person observes, notes, and documents apparent injuries, and obtains pertinent medical documentation, including photographic evidence.¢ 3Interviews are conducted in private.No person other than the investigator and the person interviewed is allowed to attend an interview except a person necessary to facilitate communication.An attorney or other representative of the person interviewed attends an interview only as a silent observer with prior permission of the advocate general or designee.¢ 2
(j) Interview protocols.The OCA investigator conducts a separate private interview with each alleged victim, available witnesses to the alleged maltreatment, and persons who allegedly were directly or indirectly involved in the allegation, persons with knowledge of relevant information, and each caretaker accused of the maltreatment.¢ 4When possible, all other witnesses are interviewed prior to interviewing the accused caretaker(s).
(1) Recording interviews.OCA investigators record every interview.To maintain confidentiality of the information provided in an interview, no recording by the person interviewed or by anyone else in attendance is permitted.Recordings of interviews remain with the OCA investigative file.OCA files and recordings are not public documents.¢ 5
(2) Explanation of the process.The investigator informs persons interviewed of the investigative process.
(3) Presentation of the allegation.The OCA investigator verbally informs each accused caretaker of the substance of the allegation(s).In general, the investigator discloses only the nature of information learned during the investigation and does not identify the persons who provided information.The identity of the reporter of the allegation is never disclosed during the investigation.If during the course of an investigation a witness is identified as a potential accused caretaker, the investigator interviews the witness again to inform the witness that he or she is a potential accused caretaker.At that time, the witness is informed of the substance of the evidence and relevant information learned during the investigation and provided an opportunity to respond. The OCA investigator informs the administrator of the facility or provider of the new allegation and the new potential accused caretaker.
(4) Opportunity for accused caretakers to respond.During the interview with an accused caretaker, the OCA investigator provides the caretaker an opportunity to respond to the allegation(s) and to supplement any information previously provided in written statements.Following the initial interview of the accused caretaker, if the investigator obtains information that the accused caretaker did not have an opportunity to respond, the investigator conducts another interview with the caretaker.The investigator advises the accused caretaker of the substance of the new information and provides an opportunity to present a response.
(5) Interpreter services for persons who are deaf or hard of hearing.When the investigator needs to interview a person who is deaf or hard of hearing, the facility or provider agency that employed the person at the time of the alleged incident provides, at no cost to OCA, oral or sign language interpreter services by an independent and qualified interpreter.Interpreter services for OKDHS employees and clients are provided per OAC 340:1-11-10.
(6) Scheduling interviews.To schedule an interview with an accused caretaker, the investigator contacts by phone or regular mail the facility, provider administrator, or designee that employs the caretaker.If a reasonable time has passed without being able to schedule an interview, the investigator contacts the facility or provider administrator to request the administrator to compel the employee to participate.If unsuccessful, the investigator sends both a certified letter and a letter by regular mail to the caretaker's last known address notifying the caretaker of the investigation and offering an opportunity to be interviewed, setting a date and time for a response.The letter informs the caretaker that the consequence of failure to participate is for the OCA investigative report to be completed without the caretaker's statement and a finding is made based on available information.For other persons needing to be interviewed, the investigator follows the same sequence as for an accused caretaker, but the certified letter only requests their participation in an interview.
(7) Failure to appear.If a person fails to appear for a scheduled interview without good cause, as determined by the advocate general, the investigator completes the investigative report without interviewing that person.The investigative report includes an explanation of why the interview was not conducted, including documentation of efforts to interview the person.
(k) Exit notice.Within 30 calendar days of assignment of a referral to be investigated, the assigned OCA investigator contacts by e-mail email the applicable facility or provider administrator or designee when the information gathering portion of the investigative process is completed.The investigator informs the facility or provider administrator of any areas of concern identified and that a written report will be prepared with the final finding.Preliminary findings are not required.
(l) The written investigative report.After completing the information gathering portion of the investigative process the investigator prepares a written investigative report containing:
(1) the allegation(s) contained in the referral investigated including the date, time, and location of the alleged incident(s), the date the allegation was reported to OCA, and the assigned OCA case number;¢ 6
(2) a statement of any physical injuries sustained by the alleged victim(s);
(3) information regarding any involved law enforcement entities;
(4) a recommendation for the district attorney whether to consider further investigation;
(5) the applicable definition(s) of caretaker misconduct or the type of maltreatment at issue, such as abuse, neglect, verbal abuse, exploitation, or caretaker misconduct;
(6) the finding(s) per subsection (m) of this Section;
(7) a list of the involved parties, their titles and role in the matter, if they were interviewed and, if so, when, and whether interviewed face-to-face or by telephone;
(8) the name, address, and telephone numbers of any interpreter used during the investigation;
(9) an explanation of the basis for the finding(s);
(10) a summary of relevant information obtained during each interview conducted during the investigation;
(11) any areas of concern relating to the referral identified during the investigation regarding facility, provider, or OKDHS practices or procedures that have implications for the safety, health, or welfare of clients but do not rise to the level of abuse or neglect;¢ 7
(12) a list of relevant documents and records reviewed during the investigation;
(13) a list of attachments to the report that are provided upon request; and
(14) an explanation for any delays in meeting the time frames for completing the investigation report contained in this Section.¢ 8
(m) Investigative findings.The OCA investigator determines the appropriate finding for each allegation contained in the referral investigated.Findings are made based on a greater weight of the evidence standard.The finding options are:
(1) "confirmed" means that the greater weight of the available evidence establishes the alleged maltreatment occurred;¢ 9
(2) "not confirmed" means the greater weight of the available evidence indicates the alleged maltreatment did not occur; or
(3) "ruled out" means no evidence was discovered that indicates the alleged maltreatment occurred.
(4) "defer" means OCA will defer the completion of an investigation and the issuance of a finding upon reasonable request to do so by a law enforcement agency having investigative authority.
(n) Identification of the responsible caretaker.When a confirmed finding is made, the investigator determines the caretaker(s) responsible for the maltreatment.If the evidence is sufficient to confirm maltreatment but the person responsible for the maltreatment cannot be identified by the greater weight of the evidence, the confirmed finding is made on an unknown caretaker.The administration may be named as responsible when the policies, procedures, or practices adopted by the administration of a facility, provider, or day treatment program are the primary factor resulting in the maltreatment of individual clients.¢ 10
(o) Dissemination of the OCA investigative reports involving caretakers not subject to the Community Services Worker Registry. Within 60 calendar days from the assignment of a referral to be investigated, the OCA written investigative report is completed.
(1) Except as provided in subsection (p) of this Section, a copy of the final OCA investigation report is sent to the administrator of an affected facility or provider agency. The administrator is responsible for notifying the client or the client's legal representative of the OCA finding.OCA notifies the caretaker, legal guardian and next of kin of a vulnerable adult of the OCA finding.
(2) If the referral alleged abuse, verbal abuse, sexual abuse, neglect, financial neglect, or exploitation, a copy also is sent to the applicable district attorney.
(3) A copy is sent to the appropriate OKDHS state office administrator, executive director of OJA, the director of ODRS, the director of ODMHSAS, or the director of the J.D. McCarty Center, whichever is applicable.
(4) When a facility or provider administrator is named as an accused caretaker in the allegation, OCA forwards the investigative report to the chair of the board of directors of the facility or provider agency, or to the director of the state agency operating the facility, whichever is applicable.
(5) A copy of the OCA report is sent to the Oklahoma State Department of Health (OSDH) if the investigation involved a day treatment program.
(6) The administrator of an OKDHS operated facility provides accused OKDHS employees who work at the facility a letter that summarizes the allegation and states the OCA finding.If an accused caretaker is an OKDHS employee, the applicable OKDHS division director or designee is responsible for providing the employee with a letter that summarizes the allegation and states the OCA finding.
(7) If client maltreatment by a licensed nurse is confirmed, a copy of the OCA report is submitted to the Oklahoma State Board of Nursing.
(8) When appropriate in cases involving a vulnerable adult, a copy of the OCA report is sent to any state agency with concurrent jurisdiction over persons or issues identified in the investigation, including but not limited to OSDH and any appropriate state licensure or certification board, agency, or registry.This includes sending OSDH a copy of any report when at least one of the accused caretakers is a certified nurse aide (CNA).
(9) OCA distributes its investigation reports by United States mail, fax, or e-mail email, whichever is appropriate.
(10) If maltreatment by a guardian is confirmed, a copy of the OCA investigation report is submitted to the applicable guardianship court.
(p) Dissemination of reports involving Hissom class members and caretakers subject to the Community Services Worker (CSW) Registry or the Child Care Restricted Registry.
(1) All OCA investigations involving a confirmed finding against a community services worker, or a SoonerCare (Medicaid) personal care assistant employed by a SoonerCare (Medicaid) personal care services provider are processed per OAC 340:100-3-39 and 317:35-15.
(2) All OCA investigations involving a confirmed finding against a caretaker of a child while in the care of a child care facility are processed per OAC 340:110-1-10.1.
(3) After the OCA investigation report has been approved, an e-mail email notice of the areas of concern in the report is sent to the facility or provider administrator, the APS programs manager, Aging Services Division (ASD) director or designee, the Oklahoma Child Care Services (OCCS) director or designee, and the DDSD director or designee, whichever are applicable.
(4) When the OCA finding does not confirm an allegation, OCA sends a copy of the report to the facility or provider administrator, the DDSD director or designee, the Aging Services Division (ASD) director or designee, or the OCCS director or designee, or the APS programs manager, whichever is applicable.A copy of the report is sent to the district attorney in the county where the suspected maltreatment or abuse or neglect occurred pursuant to Section 43A O.S. §10-104(I) of Title 43A of the Oklahoma Statutes if the victim is a vulnerable adult, or Section 10A O.S. § 1-2-105(E) of Title 10A of the Oklahoma Statutes if the victim is a child.¢ 11 10
(5) When the OCA finding confirms an allegation against an accused caretaker who is not a community services worker, OCA sends a copy of the report to the facility or provider administrator, the DDSD director, the ASD director, the OCCS director or designee, or the APS programs manager, whichever is applicable, and to the applicable district attorney.¢ 11
(6) (5) When the OCA finding confirms an allegation against a caretaker who is a community services worker or a SoonerCare (Medicaid) personal care assistant, OCA submits a copy of the report to the DDSD director or designee or the APS ASD programs manager director or designee, whichever is applicable, and the applicable district attorney and processes the report per OAC 340:100-3-39.When the due process procedures relating to the CSW Registry have been completed, OCA sends a copy of the report to the applicable facility or agency administrator and the assigned OKDHS long-term care nurse if applicable. OCA also notifies the caretaker, legal guardian and next of kin of a vulnerable adult of the result of the investigation when the investigative finding has become final.¢ 10 &¢ 11
(7)(6) When the OCA finding confirms an allegation against a caretaker when the abuse or neglect occurred to a child when in the care of a child care facility, OCA submits a copy of the report to the OCCS Licensing Records Office per OAC 340:110-1-10.1(e).OCA also submits a copy of the report to the OCCS director or designee, the facility or agency administrator, and the applicable district attorney.
(8)(7) The Hissom class member's assigned OCA advocate notifies the class member and the class member's guardian or close family member of the result of the investigation when the investigative finding has become final.¢ 1211
(9)(8) If maltreatment by a guardian is confirmed, a copy of the OCA investigation report is submitted to the applicable guardianship court.
(q) Confidentiality of OCA investigative reports.Persons receiving copies of OCA investigative reports are bound by the confidentiality provisions of Sections 10A O.S. §§ 1-6-102 through 1-6-107 of Title 10A, and Section 43A O.S. § 10-110 of Title 43A of the Oklahoma Statutes, whichever is applicable.
(r) Confirmed findings involving OKDHS operated facilities.The findings of an OCA investigation report involving client maltreatment at an OKDHS operated facility are considered final when the time for requesting Grievance and Abuse Review Committee (GARC) review pursuant to OAC 340:2-3-62(b) has expired and review has not been requested, or that review was timely requested and has concluded.
(1) When the Children and Family Services Division (CFSD), the Field Operations Division, or DDSD receives a copy of a final OCA investigative report or notice that a review pursuant to OAC 340:2-3-62 has been concluded, within 60 working days, the applicable division director notifies the advocate general in writing of:
(A) any personnel action taken or to be taken with regard to each accused caretaker named in the report;
(B) any corrective action taken or to be taken regarding areas of concern noted in the report; and
(C) for each worker found to have engaged in maltreatment, whether there have been any prior confirmations by OCA or the facility for client maltreatment by the worker and, if so, the basis for each such finding, and the personnel action taken in response.
(2) If personnel action has or will be taken, the division director also notifies the OKDHS Human Resources Management Division director.If the final OCA finding does not confirm maltreatment, no information or material pertaining to the allegation or the investigation is placed in the personnel file of an accused caretaker.
(3) OCA reports information regarding confirmed findings to the Oklahoma Commission for Human Services (Commission) during executive session.
(s) Findings involving a Hissom class member.This subsection applies to the administrator of a provider that employed, or contracted with a contractor that employed, an accused caretaker named in an OCA investigation report.
(1) Within 60 calendar days of receipt of a final OCA investigation report, the DDSD director or designee notifies the advocate general in writing:
(A) if any personnel action has or will be taken with regard to each accused caretaker named in the report; and
(B) of any corrective action taken or to be taken regarding areas of concern noted in the report.
(2) OCA reports information regarding confirmed findings to the Commission during executive session.
(t) Storage and retention of OCA investigative records.OCA maintains the original report, supporting documents, and applicable recordings per the applicable OKDHS records management and disposition plan.Access to investigative files and records is limited to OCA employees on a need to know basis.Requests by OKDHS employees for access to or copies of OCA investigative reports are made to the advocate general.
INSTRUCTIONS TO STAFF 340:2-3-36
Revised 7-1-11 7-1-12
1.Photographs.
(1) The investigator:
(A) obtains a copy of each photograph and document pertinent to an investigation;
(B) clearly labels the date, time, and by whom the photographs were taken; and
(C) secures them in a separate envelope or folder labeled with the investigative case number, name(s) of victim, and any other pertinent information related to the injury.
(2) The photographs are attached to the written investigative report and the photographic evidence is referenced in the investigative report.
(3) If photographs necessary to document injuries or conditions that have resulted or may result in an injury or serious harm to the person have not been taken by the time the Office of Client Advocacy (OCA) investigator initiates the investigation, the OCA investigator takes the photographs.
2.Interviews.
(1) When the alleged victim or an essential witness is a Hissom Class member person with a developmental disability and can contribute to the investigation, the investigator interviews that person within five working days after OCA opens the investigation.
(2) Telephonic interviews.Interviews are conducted face-to-face with each person interviewed.An investigator obtains prior approval from the investigator's supervisor to conduct an interview by telephone.When permission to conduct a telephonic interview is granted, the telephonic interview is recorded and conducted in a manner to verify the identity of the person interviewed.Absent special circumstances, each alleged victim, each accused caretaker, and each eyewitness is interviewed in person by the investigator assigned to the case.Examples of a special circumstance are the person to be interviewed:
(A) the person to be interviewed has moved to another state;
(B) the person to be interviewed has moved to a location other than where the majority of witnesses are located, necessitating additional travel expense and time for a single interview;
(B)(C) the person to be interviewed adamantly refuses to be interviewed other than by telephone and a good faith effort was made unsuccessfully to overcome that resistance; and
(C)(D) the person to be interviewed is a collateral witness who is not anticipated to possess information regarding a material issue in the case when no credibility issues are anticipated.An example of the latter is a Developmental Disabilities Services Division (DDSD) case manager interviewed to obtain routine information from the client's file.; or
(E) times when there is a shortage of investigators as determined by the advocate general.
(3) Peer interviews.The OCA investigator assigned to the case is responsible for all interviews needed to complete the investigation.An investigator may request approval from the investigator's supervisor for another OCA investigator to conduct an interview when the person to be interviewed lives over 100 miles from the assigned investigator's duty station.However, if the person to be interviewed is an alleged victim, an accused caretaker, or an eyewitness to the events, all efforts for the assigned investigator are exhausted before approval is given.When approval is given, the assigned investigator provides the assisting investigator with all relevant information to conduct an effective interview and listens to the recording of the interview.
(4) Attorney requests to be present during an interview.An interviewee may arrange for the attorney to be on-call in the attorney's office during the interview; the interviewee could then call the attorney during the interview in the event there is a felt need for legal advice.An attorney's request to be present with a person being interviewed, if the attorney represents the person, may be granted if the attorney agrees to the conditions listed in (A) through (H) of this Instruction.
(A) The interview takes place in an OKDHS building or some neutral location selected by the investigator, not the attorney's office.
(B) The attorney and the person interviewed understand the attorney does not say anything during the interview, other than request a break to consult privately with the person interviewed or as otherwise provided in this Instruction to Staff.
(C) The attorney does not make an opening statement or closing argument, and does not ask questions, or make any suggestions, directly or indirectly, about how the interviewee should answer a question other than indicate when the attorney is advising the interviewee to decline to answer the question based on the Fifth Amendment or a recognized privilege.
(D) The attorney does not record the interview by audio or video, and may not obtain a copy of the recording made by the investigator except pursuant to Oklahoma laws relating to the confidentiality of OCA investigation records.
(E) The attorney acknowledges on the record at the beginning of the interview that anything said during the interview is protected by federal and state law relating to confidentiality, and that the attorney will not violate the confidentiality of communications during the interview.
(F) The attorney is not provided discovery in connection with the interview; in other words, the attorney will not be supplied with any information, such as documents and reports relating to the case.
(G) The request to have an attorney present does not delay the interview absent good cause.In general, interviews take place within seven to ten days after the investigator contacts the interviewee to schedule the interview.The attorney needs to be able to accommodate the investigator's schedule.
(H) At any time during the interview, the interviewee or the attorney may ask to be excused to consult privately.
3.Injuries.If the nature and circumstances of the injury create a concern for the continuing safety of a child or vulnerable adult, the investigator promptly informs a person with authority to resolve the matter.In cases involving a Hissom class member or client receiving DDSD services, the investigator contacts the DDSD case manager or other DDSD staff, or the OCA advocate and other OCA staff, and remains on the scene as indicated.In other cases, the investigator contacts the OCA programs administator for investigations or an OCA supervisor for guidance.Law enforcement is contacted when warranted.
4.Emergency situations.If during the course of an investigation the OCA investigator becomes aware of facts creating a concern for the continuing safety of an alleged victim, the investigator takes appropriate action warranted by the situation.In cases involving a Hissom class member or DDSD client, the investigator contacts the DDSD case manager or other DDSD staff, the OCA advocate, and other OCA staff as warranted.In other cases, the investigator contacts the OCA investigations programs administator or an OCA supervisor for guidance.The investigator contacts law enforcement when warranted.The investigator remains on the scene as needed to ensure the protection and safety of the client.
5.Recordings.In the written investigative report, the investigation clearly identifies any persons, other than the investigator and the interviewee, present in the interview, and explains their purpose for attending.During each interview, the investigator explains to the interviewee while recording that the interview is being recorded.Investigators include in their written report the time, date, and location of each interview conducted.
6.If the original allegation was factually inaccurate with regard to date, time, place, or identity of individuals, the report includes the allegation as corrected or expanded as a result of the investigation.
7.During the course of the investigation, when the investigator becomes aware of a significant health or safety issue regarding the alleged victim, the investigator timely informs a person with the authority to resolve the matter.In cases involving Hissom class members and DDSD clients, this may include contacting DDSD staff, the OCA advocate assigned to the class member, the advocate's supervisor, or the OCA community ombuds advocacy programs administrator.
8.Review of OCA investigative reports.OCA supervisors monitor timely completion of OCA investigation reports and regularly discuss with each investigator supervised referrals assigned to the investigator that are pending over 30 days.The investigator submits the written report to an OCA supervisor for review.The OCA supervisor reviews the investigative report for completeness, accuracy, appropriate analysis, proper inclusion of areas of concern, timeliness, and acceptable presentation.An investigative report approved by the investigator's supervisor is reviewed by the advocate general or designee.
9.If the investigator confirms abuse by an accused caretaker, and the investigator knows that the caretaker is a person responsible for a child not within OCA's purview to investigate, and circumstances give cause to believe the child may be the victim of abuse or neglect by the caretaker, the investigator makes a referral to Child Welfare, pursuant to Section 1-2-101 of Title 10A of the Oklahoma Statutes, if the circumstances give cause to believe the minor may be the victim of abuse or neglect.
10.If the evidence is sufficient to confirm maltreatment but the person responsible for the maltreatment cannot be identified by the greater weight of the evidence, the confirmed finding is made on an unknown caretaker.
1110.OCA also sends a copy of each final report involving a Hissom class member to all parties designated in OCA directives regarding document distribution.
1211.An OCA investigative finding in a case not involving a community services worker (CSW) or Medicaid personal care assistant (MPCA) becomes final upon completion of review by Grievance and Abuse Review Committee (GARC) and the OKDHS Director per OAC 340:2-3-62 or when a timely request for GARC review has not been received.In cases involving a CSW or MPCA, the finding is final if the investigation report does not contain a confirmed finding.In cases involving a CSW or MPCA and a confirmed finding, the OCA finding is final upon completion of the review process described in OAC 340:100-3-39.
340:2-3-37. Caretaker conduct review (CCR)
Revised 7-1-117-1-12
(a) Application.This Section applies to referrals received by the Office of Client Advocacy (OCA) that OCA refers to a facility for an internal caretaker conduct review (CCR) per OAC 340:2-3-35(a)(2).This Section does not apply to allegations involving maltreatment caretaker misconduct of a Hissom class member or person receiving Developmental Disabilities Services Division (DDSD) waiver services a vulnerable adult, other than a resident of Southern Oklahoma Resource Center (SORC), Northern Oklahoma Resource Center of Enid (NORCE), and the Robert M. Greer Center (Greer).
(b) Assignment to a facility to conduct a CCR.
(1) When OCA receives a referral that indicates possible caretaker misconduct, in lieu of an investigation OCA intake may refer it to the facility where it allegedly occurred for handling as a CCR if:
(A) there is no injury or evidence that the client might have been exposed to a significant risk of harm;
(B) there is a minor physical injury and it is not a suspicious injury;
(C) there is a serious physical injury and the known credible information makes it unlikely that the serious injury was the result of abuse or neglect;¢ 1 or
(D) excessive or unauthorized use of force is alleged and there is no injury or only a minor injury that is not suspicious.
(2) In addition to the referrals in subsection (b)(1) of this Section, at Oklahoma Department of Human Services (OKDHS) operated facilities, a referral indicating possible maltreatment may be referred to the facility for handling as a CCR if the allegation involves a serious physical injury that occurred under unexplained or unusual circumstances.
(c) Protocol for conducting a CCR.When OCA intake assigns a facility the responsibility to conduct a CCR, the administrator or designee takes necessary steps to ensure the safety of all clients and to protect the integrity of all evidence.A facility employee designated to conduct a CCR follows the investigative procedures described in OAC 340:2-3-36, with the exception of recording the interviews in OAC340:2‑3‑36(j)(1), ¢ 2including:
(1) reviewing pertinent documentation, records, and evidence collected;
(2) viewing any injuries and photos of injuries, and obtaining photos of injuries;
(3) obtaining written statements and conducting interviews with:
(A) each alleged victim;
(B) each eyewitness;
(C) other persons with knowledge relevant to the allegation; and
(D) each accused caretaker;
(4) reviewing statutes, policies, directives, standards, rules, or practices relevant to the allegation;
(5) analyzing the accused caretaker's actions in relation to relevant statutes, policies, directives, standards, rules and practices; and
(6) determining the appropriate finding(s) per OAC 340:2‑3‑36(m).
(d) Returning the investigation responsibility to OCA.If at any time during the CCR information is learned that gives cause to believe that a client was the victim of caretaker misconduct resulting in a serious injury, abuse or neglect, the administrator immediately discontinues the CCR and contacts OCA intake to report the new information warranting an OCA investigation.OCA intake notes the new information and changes the disposition on Form 15GN001E, Office of Client Advocacy Intake Referral, or its electronic equivalent, and the case is assigned to an OCA investigator for investigation per OAC 340:2-3-35(c).
(e) Written report of CCR.After completion of the CCR process and determination of the appropriate finding, the person conducting the CCR prepares a written report.Facilities are encouraged, but not required, to use the OCA format for CCR reports, Form 15IV007E, Caretaker Conduct Review Report.The written report contains:
(1) the allegation(s), including the dates, times, and location of the alleged incident(s), the date the allegation was reported to OCA, and the OCA case number;
(2) a statement of any injury sustained by the alleged victim(s) and, in cases involving an injury, a statement whether photographs were taken of the injury and if so, the date they were taken;
(3) the finding(s), whether caretaker misconduct did or did not occur, per OAC340:2‑3‑36(n);
(4) a list of the involved parties, their titles and role in the matter, whether they were interviewed and, if so, when;
(5) citation to pertinent statutes, policies, directives, standards, rules, and practices, when applicable;
(6) an explanation of the basis for the finding(s);
(7) a summary of pertinent information obtained in interviews conducted during the review;
(8) a list of relevant documents and records reviewed;
(9) a list of attachments to the report;
(10) a list of areas of concern identified during the course of the investigation regarding facility or OKDHS practices or procedures that have implications for the safety, health, or welfare of clients but that do not rise to the level of abuse or neglect; and
(11) either on a cover memo or at the end of the report, the date and signature of the person who conducted the CCR, and the signature of the person who reviewed and approved the report.
(f) Time for completion of report.The final written report is submitted to the advocate general within 30 calendar days from the date that OCA intake notified the administrator that an allegation is referred for CCR.
(g) OCA processing of CCR reports.The administrator transmits the completed CCR to the advocate general.The advocate general or designee reviews the CCR report for completeness and appropriateness of the finding.If a report is incomplete or the finding is questionable, OCA contacts the administrator to request further inquiry into the allegation.OCA opens an investigation if a report indicates the need.
(h) Final CCR report.If a final CCR report is not submitted to the advocate general within 45 calendar days from the date that OCA notifies the facility or provider administrator that the allegation is referred for CCR, OCA notifies the appropriate state agency, division, or regulatory entity that contracts with the facility or agency for the delivery of services.
(i) Review by DDSD director.Within five working days of completion of a CCR report at the Southern Oklahoma Resource Center (SORC), the Northern Oklahoma Resource Center of Enid (NORCE), or the Robert M. Greer Center (Greer), the facility administrator or designee informs the client and the client's guardian or parent of the result of the CCR.If the client or the guardian or parent does not concur with the finding(s), the facility administrator or designee notifies the advocate general in writing by e-mail email or letter.The advocate general refers the matter to the OCA grievance coordinator to process for review by the DDSD director as a contested grievance per OAC 340:2-3-46 and 340:2‑3‑51(g) and the client or guardian or parent who did not concur with the finding(s) is considered the grievant for purposes of the review.If the grievant does not concur with the proposed resolution of the division director or designee, the matter is reviewed by the Grievance and Abuse Review Committee (GARC) per OAC 340:2-3-62 and 340:2-3-64.
(j) State office administrator's report.The findings in a CCR are considered final when the time for requesting review pursuant to the paragraph (i) of this Section has expired and review has not been requested, or the review was timely requested and has concluded.
(1) Within 60 calendar days of the finding becoming final, the state office administrator or designee informs the advocate general in writing of:
(A) any personnel action taken or to be taken;
(B) any corrective action taken or to be taken; and
(C) for each worker found to have engaged in caretaker misconduct, whether there has been any prior confirmation by OCA or the facility for client maltreatment by the worker and, if so, the basis for each finding and the personnel action taken in response.
(2) If personnel action is involved, the state office administrator also notifies the OKDHS Human Resources Management Division director.
(3) If a CCR has not resulted in a confirmed finding, no information or material pertaining to the allegation or the investigation is placed in the personnel files of any employee named in the report.
INSTRUCTIONS TO STAFF 340:2-3-37
Revised 7-1-11
1.Serious injuries.When an allegation involves a serious injury, there is a presumption that Office of Client Advocacy (OCA) intake assigns it for investigation by OCA.If known credible facts provide an explanation for the injury that makes it unlikely the injury is the result of abuse, neglect, or negligent supervision, OCA intake may refer it to the facility for handling as a caretaker conduct review CCR.For example, if a client with severe osteoporosis suffers a bone fracture (a serious injury) and the treating physician reports the fracture is consistent with the osteoporosis, and it is not otherwise a suspicious injury, an OCA investigation is not required.
2.Interviews.Facilities are encouraged, but not required, to record interviews with alleged victims, accused caretakers, and eyewitnesses to incidents, and to preserve the recording from these interviews for three years.
