COMMENT DUE DATE:
January 2, 2013
DATE:
December 4, 2012
Steve Mitchell, OCA 405-525-4881
Nancy Kelly, OIRP 405-522-6703
Dena Thayer, OIRP Programs Administrator 405-521-4326
RE:
APA WF 12-09
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 1. Administration
OAC 340:2-3-1 [AMENDED]
OAC 340:2-3-2 [AMENDED]
OAC 340:2-3-12 [AMENDED]
OAC 340:2-3-26 [AMENDED]
Part 3. Investigations
OAC 340:2-3-32 through 340:2-3-37 [AMENDED]
Part 5. Grievances
OAC 340:2-3-45 [AMENDED]
OAC 340:2-3-47 [AMENDED]
OAC 340:2-3-50 [AMENDED]
Part 7. Grievance and Abuse Review Committee
OAC 340:2-3-62 [AMENDED]
(Reference WF 12-09)
SUMMARY:The proposed amendments to Chapter 2 Subchapter 3 amend the rules to:(1) comply with statutory changes effective January 1, 2013, created as a result of the child welfare lawsuit settlement and related Oklahoma Department of Human Services (OKDHS) Pinnacle Plan; and (2) reflect clarification on processing grievances.
SUBSTANTIVE CHANGES:
OAC 340:2-3-1 is amended to add the additional purpose of OCA conducting OKDHS Director requested administrative investigations of the death or near death of a child known to OKDHS.
OAC 340:2-3-2 is amended to:(1) redefine caretaker of a child to a person responsible for a child of interest (PRFCI); (2) add owner and operator of a child care facility as defined in the Oklahoma Children's Code; (3) define caretaker misconduct regarding a child to violation of a licensing or contract requirement (Pinnacle Plan); and (4) add definitions from the Oklahoma Children's Code, including definitions of serious abuse and neglect that warrant joint investigations with law enforcement (Pinnacle Plan).
OAC 340:2-3-12 is amended to change disciplinary guidelines regarding OKDHS employees by removing caretaker misconduct offenses regarding a child (Pinnacle Plan).
OAC 340:2-3-32 is amended to change the terminology of accused caretaker to alleged person responsible for a child of interest (PRFCI) or vulnerable adult caretaker.
OAC 340:2-3-33 is amended to:(1) change the reporting requirements for child abuse, neglect, and caretaker misconduct from Office of Client Advocacy (OCA) Intake to the OKDHS Abuse and Neglect Hotline (Pinnacle Plan); (2) clarify that death, serious physical injury, or sexual assault regarding a vulnerable adult is reported to OCA intake when the caretaker is alleged to be involved; (3) move certain language from rules to Instructions to Staff (ITS); and (4) clarify when abuse, neglect or exploitation of vulnerable adults is reported to OCA Intake or the OKDHS Abuse and Neglect Hotline, depending on the alleged caretaker's employer.
OAC 340:2-3-34 is amended to:(1) remove OCA Intake notification responsibility to a facility administrator when the allegation involves a child; and (2) clarify that the designated contact person at a facility or provider responsible for the care of a child is reasonably available by telephone, pager, or email at all times.
OAC 340:2-3-35 is amended to note that misconduct allegations regarding a child are screened by the OKDHS Abuse and Neglect Hotline and sent to the appropriate entity to address as a contract or licensing requirement violation (Pinnacle Plan).Instructive information to staff was moved from rules to ITS.
OAC 340:2-3-36 is amended to:(1) add statutory language regarding joint investigations with law enforcement when serious physical abuse and neglect of a child is reported; (2) add a written description of the investigation process to the person responsible for the child of interest (PRFCI) who is the subject of the investigation; (3) add notification by the investigator to law enforcement when the reportable incident involves a vulnerable adult; (4) expand statutory language regarding court orders allowing OCA entrance to premises, access to the child, access to PRFCI's medical records, and access to vulnerable adult and records; (5) add a rights and responsibilities of accused OKDHS employees form to the forms a facility administrator is to provide an accused; (6) move certain investigative interviews and interview protocols paragraphs from rules to ITS; (7) remove identification of facility administration as possible responsible caretaker in an investigation involving a child; (8) change the finding terminology regarding investigations involving a child in OKDHS custody and the burden of proof standard (Pinnacle Plan); (8) change the finding terminology regarding investigations involving a child not in OKDHS custody and the burden of proof standard; (9) change the finding terminology from confirmed to substantiated when the investigation involves a vulnerable adult; (10) add the statutory requirement that investigations involving a child in OKDHS custody be completed within 30 calendar days; (11) add the new requirement that investigations involving a child not in OKDHS custody be completed within 30 calendar days; (12) add that the PRFCI is notified in writing by OCA of the finding in an investigation involving a child; (13) add notice of findings to the alleged PRFCI and the facility administration in an investigation involving a child; (14) add the notice of findings to the board of directors' chairman or director of the state agency operating the facility when the facility administrator is an alleged PRFCI in an investigation involving a child; (15) add verbal notice of findings to the child victim's parents; (15) remove distribution of final notices of areas of concern after the investigation report is approved, as OCA is providing to the provider the final report after it is approved; (16) remove dissemination of the investigation report involving a PRFCI to the administrator of a facility, unless the facility is operated by OKDHS; (17) remove dissemination of the investigation report to the administrator of the facility when there is a substantiated finding on a PRFCI subject to the Child Care Restricted Registry or Community Services Worker Registry; (18) add appeal process to Child Welfare Services (CWS) for PRFCI with substantiated findings of child abuse or neglect; (19) add statutory language that an investigation report concerning a child in OKDHS legal custody is submitted to the CWS director within 30 calendar days; (20) change the dissemination of reports involving vulnerable adult caretakers subject to the Community Service Worker Registry from when the investigative finding is final to when the investigation report is approved; (21) change the notification to a vulnerable adult's caretaker, legal guardian, and next of kin of the investigative finding from when the finding is final to when the investigation report is approved; (22) add that when investigative records received by OKDHS were created by other local or state agencies the reports must be obtained directly from those agencies; (23) add that requests for records involving an investigation of a vulnerable adult may be disclosed to a vulnerable adult's caretaker, legal guardian, and next of kin without a court order in a separately created summary that redacts identifying information; and (24) add that alleged caretakers have the right to seek legal counsel.
OAC 340:2-3-37 is amended to:state caretaker misconduct allegations regarding a child are screened by the OKDHS Abuse and Neglect Hotline and referred to the appropriate contracting and licensing entities of the facility where the child resides (Pinnacle Plan).
OAC 340:2-3-45 is amended to:(1) change definitions of area director to deputy director and OKDHS Children and Family Services Division (CFSD) to OKDHS Child Welfare Services (CWS); (2) add the definition regarding district director; (3) remove Field Operations Division (FOD); (4) revise wording to reflect Pinnacle Plan requirements; (5) add for clarification purposes, all allegations of retaliation for either filing a grievance, sought advice, or inquiry about filing a grievance are reported to the OCA grievance unit that may result in an OCA investigation, an Advocate General inquiry, or an Advocate General grievance; (6) add for clarification purposes, each provider or facility notifies the client and the guardian in writing annually of the right to file a grievance, when applicable, and how to access the grievance resolution procedures; and (7) that providers or facilities may use the applicable form 15GR004E or 15GR006E or develop an equivalent specific to the agency.
OAC 340:2-3-47 is amended to change the word liaison to staff.
OAC 340:2-3-50 is amended to change the word county director to district director.
OAC 340:2-3-62 is amended to:(1) remove requested review of an OCA investigation to the Grievance and Abuse Review Committee (GARC) by the administrator of a facility operated by the Office of Juvenile Affairs, a facility contracted with OKDHS, a facility operated by the Oklahoma Department of Rehabilitation Services (ODRS), or any other facility responsible for a child within OCA's scope of investigative authority that is not operated by OKDHS; and (2) add that state office administrator or the OKDHS Director may request an investigation involving an OKDHS employee not working at an OKDHS operated facility be reviewed by GARC.
LEGAL AUTHORITY:Director of Human Services; Section 162 of Title 56 of the Oklahoma Statutes (10A O.S. § 162); 10A O.S. § 1-1-101 et seq.; 43A § 10-102 et. seq.; and Section 5101 et seq. of Title 42 of the United States Code.
Rule Impact Statement
To:Programs administrator
Office of Intergovernmental Relations and Policy
From:Kathryn Boyle Brewer, Advocate General
Office of Client Advocacy
Date:December 3, 2012
Re:Chapter 2. Administrative Components
Subchapter 3. Office of Client Advocacy
Part 1. Administration
OAC 340:2-3-1 [AMENDED]
OAC 340:2-3-2 [AMENDED]
OAC 340:2-3-12 [AMENDED]
OAC 340:2-3-26 [AMENDED]
Part 3. Investigations
OAC 340:2-3-32 through 340:2-3-37 [AMENDED]
Part 5. Grievances
OAC 340:2-3-45 [AMENDED]
OAC 340:2-3-47 [AMENDED]
OAC 340:2-3-50 [AMENDED]
Part 7. Grievance and Abuse Review Committee
OAC 340:2-3-62 [AMENDED]
(Reference WF 12-09)
Contact:Steve Mitchell 405-525-4881
A. Brief description of the purpose of the proposed rule:
Purpose.The proposed amendments to Chapter 2 Subchapter 3 amend the rules to:(1) comply with statutory changes effective January 1, 2013, created as a result of the child welfare lawsuit settlement and related Oklahoma Department of Human Services (OKDHS) Pinnacle Plan; and (2) reflect clarification on processing grievances.
Strategic Plan impact.The proposed rules achieve OKDHS goals by ensuring the health and safety of children and vulnerable adults, improving processes, and administering public resources in a fiscally responsible manner.
Substantive changes.
OAC 340:2-3-1 is amended to add the additional purpose of OCA conducting OKDHS Director requested administrative investigations of the death or near death of a child known to OKDHS.
OAC 340:2-3-2 is amended to:(1) redefine caretaker of a child to a person responsible for a child of interest (PRFCI); (2) add owner and operator of a child care facility as defined in the Oklahoma Children's Code; (3) define caretaker misconduct regarding a child to violation of a licensing or contract requirement (Pinnacle Plan); and (4) add definitions from the Oklahoma Children's Code, including definitions of serious abuse and neglect that warrant joint investigations with law enforcement (Pinnacle Plan).
OAC 340:2-3-12 is amended to change disciplinary guidelines regarding OKDHS employees by removing caretaker misconduct offenses regarding a child (Pinnacle Plan).
OAC 340:2-3-32 is amended to change the terminology of accused caretaker to alleged person responsible for a child of interest (PRFCI) or vulnerable adult caretaker.
OAC 340:2-3-33 is amended to:(1) change the reporting requirements for child abuse, neglect, and caretaker misconduct from Office of Client Advocacy (OCA) Intake to the OKDHS Abuse and Neglect Hotline (Pinnacle Plan); (2) clarify that death, serious physical injury, or sexual assault regarding a vulnerable adult is reported to OCA intake when the caretaker is alleged to be involved; (3) move certain language from rules to Instructions to Staff (ITS); and (4) clarify when abuse, neglect or exploitation of vulnerable adults is reported to OCA Intake or the OKDHS Abuse and Neglect Hotline, depending on the alleged caretaker's employer.
OAC 340:2-3-34 is amended to:(1) remove OCA Intake notification responsibility to a facility administrator when the allegation involves a child; and (2) clarify that the designated contact person at a facility or provider responsible for the care of a child is reasonably available by telephone, pager, or email at all times.
OAC 340:2-3-35 is amended to note that misconduct allegations regarding a child are screened by the OKDHS Abuse and Neglect Hotline and sent to the appropriate entity to address as a contract or licensing requirement violation (Pinnacle Plan).Instructive information to staff was moved from rules to ITS.
OAC 340:2-3-36 is amended to:(1) add statutory language regarding joint investigations with law enforcement when serious physical abuse and neglect of a child is reported; (2) add a written description of the investigation process to the person responsible for the child of interest (PRFCI) who is the subject of the investigation; (3) add notification by the investigator to law enforcement when the reportable incident involves a vulnerable adult; (4) expand statutory language regarding court orders allowing OCA entrance to premises, access to the child, access to PRFCI's medical records, and access to vulnerable adult and records; (5) add a rights and responsibilities of accused OKDHS employees form to the forms a facility administrator is to provide an accused; (6) move certain investigative interviews and interview protocols paragraphs from rules to ITS; (7) remove identification of facility administration as possible responsible caretaker in an investigation involving a child; (8) change the finding terminology regarding investigations involving a child in OKDHS custody and the burden of proof standard (Pinnacle Plan); (8) change the finding terminology regarding investigations involving a child not in OKDHS custody and the burden of proof standard; (9) change the finding terminology from confirmed to substantiated when the investigation involves a vulnerable adult; (10) add the statutory requirement that investigations involving a child in OKDHS custody be completed within 30 calendar days; (11) add the new requirement that investigations involving a child not in OKDHS custody be completed within 30 calendar days; (12) add that the PRFCI is notified in writing by OCA of the finding in an investigation involving a child; (13) add notice of findings to the alleged PRFCI and the facility administration in an investigation involving a child; (14) add the notice of findings to the board of directors' chairman or director of the state agency operating the facility when the facility administrator is an alleged PRFCI in an investigation involving a child; (15) add verbal notice of findings to the child victim's parents; (15) remove distribution of final notices of areas of concern after the investigation report is approved, as OCA is providing to the provider the final report after it is approved; (16) remove dissemination of the investigation report involving a PRFCI to the administrator of a facility, unless the facility is operated by OKDHS; (17) remove dissemination of the investigation report to the administrator of the facility when there is a substantiated finding on a PRFCI subject to the Child Care Restricted Registry or Community Services Worker Registry; (18) add appeal process to Child Welfare Services (CWS) for PRFCI with substantiated findings of child abuse or neglect; (19) add statutory language that an investigation report concerning a child in OKDHS legal custody is submitted to the CWS director within 30 calendar days; (20) change the dissemination of reports involving vulnerable adult caretakers subject to the Community Service Worker Registry from when the investigative finding is final to when the investigation report is approved; (21) change the notification to a vulnerable adult's caretaker, legal guardian, and next of kin of the investigative finding from when the finding is final to when the investigation report is approved; (22) add that when investigative records received by OKDHS were created by other local or state agencies the reports must be obtained directly from those agencies; (23) add that requests for records involving an investigation of a vulnerable adult may be disclosed to a vulnerable adult's caretaker, legal guardian, and next of kin without a court order in a separately created summary that redacts identifying information; and (24) add that alleged caretakers have the right to seek legal counsel.
OAC 340:2-3-37 is amended to:state caretaker misconduct allegations regarding a child are screened by the OKDHS Abuse and Neglect Hotline and referred to the appropriate contracting and licensing entities of the facility where the child resides (Pinnacle Plan).
OAC 340:2-3-45 is amended to:(1) change definitions of area director to deputy director and OKDHS Children and Family Services Division (CFSD) to OKDHS Child Welfare Services (CWS); (2) add the definition regarding district director; (3) remove Field Operations Division (FOD); (4) revise wording to reflect Pinnacle Plan requirements; (5) add for clarification purposes, all allegations of retaliation for either filing a grievance, sought advice, or inquiry about filing a grievance are reported to the OCA grievance unit that may result in an OCA investigation, an Advocate General inquiry, or an Advocate General grievance; (6) add for clarification purposes, each provider or facility notifies the client and the guardian in writing annually of the right to file a grievance, when applicable, and how to access the grievance resolution procedures; and (7) that providers or facilities may use the applicable form 15GR004E or 15GR006E or develop an equivalent specific to the agency.
OAC 340:2-3-47 is amended to change the word liaison to staff.
OAC 340:2-3-50 is amended to change the word county director to district director.
OAC 340:2-3-62 is amended to:(1) remove requested review of an OCA investigation to the Grievance and Abuse Review Committee (GARC) by the administrator of a facility operated by the Office of Juvenile Affairs, a facility contracted with OKDHS, a facility operated by the Oklahoma Department of Rehabilitation Services (ODRS), or any other facility responsible for a child within OCA's scope of investigative authority that is not operated by OKDHS; and (2) add that state office administrator or the OKDHS Director may request an investigation involving an OKDHS employee not working at an OKDHS operated facility be reviewed by GARC.
Reasons.The proposed revisions regarding OAC 340:2-3-1, OAC 340:2-3-2, OAC 340:2-3-12, OAC 340:2-3-26, OAC 340:2-3-32 through 340:2-3-37, and OAC 340:2-3-62 regarding the OCA Investigations Unit reflect requirements in the Pinnacle Plan for screening, prioritizing, investigating, and reporting findings of investigations regarding children in OKDHS custody, as well as the OKDHS decision to treat children not in OKDHS custody the same as those in OKDHS custody.Instructions to staff were moved from rules.Proposed revisions regarding OAC 340:2-3-45, 340:2-3-47, and OAC 340:2-3-50 regarding the OCA Grievance Unit reflect clarification on the grievance processing and updating classification titles.
Repercussions.If the proposed rules are not implemented, noncompliance with the child welfare lawsuit settlement agreement could be perceived.
Legal authority.Director of Human Services; Section 162 of Title 56 of the Oklahoma Statutes (10A O.S. § 162); 10A O.S. § 1-1-101 et seq.; 43A § 10-102 et. seq.; and Section 5101 et seq. of Title 42 of the United States Code.
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 children, the facilities where the children reside or are present, and the contracting and licensing entities of those facilities.The contracting and licensing entities will bear some costs associated with implementation of the rules with the shift from caretaker misconduct reviews being managed by OCA.
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 children and vulnerable adults.
D. A description of the probable economic impact of the proposed rule upon the affected classes of persons or political subdivisions, including a listing of all fee changes and, whenever possible, a separate justification for each fee change:There are no fee changes associated with the revised rules.
E. The probable costs and benefits to the Agency and to any other agency of the implementation and enforcement of the proposed rule, the source of revenue to be used for implementation and enforcement of the proposed rule and any anticipated effect on state revenues, including a projected net loss or gain in such revenues if it can be projected by the Agency:The probable cost to OKDHS includes the cost of printing and distributing the rules estimated to be less than $20.OCA will have increased costs in mailing letters to the custodians and printing the notice pamphlet amounting to approximately $500 per year.OKDHS Child Welfare Services will bear costs in screening all allegations involving a child that were previously reported to OCA.Amendments add:(1) one new program manager II for the Advocacy Unit to manage the expansion of the special advocacy program for OKDHS custody children, including working with the child's team to develop placement from congregate care to an acceptable family-like setting; (2) one new program manager II position to the OCA Investigations Unit; and (3) two new social services inspector II (OCA investigators) positions to meet Pinnacle Plan requirements.The $309,518 budget for the four positions is included in Senate Bill 1979 funding.
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.Removing misconduct from ODRS requires ODRS and the Oklahoma State Department of Health to be involved.
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 nonregulatory methods or less intrusive methods for achieving the purpose of the proposed rule:The changes are the result of the child welfare lawsuit settlement.
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 have a positive impact on the health, safety, and well-being of vulnerable children and 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, OKDHS will not be in compliance with the child welfare lawsuit settlement agreement or statutory requirements effective January 1, 2013.
K. The date the rule impact statement was prepared and, if modified, the date modified:Prepared: October 19, 2012; modified December 3, 2012.
