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COMMENT DUE DATE:  

March 20, 2014

DATE: 

February 21, 2014

Steven Mitchell, OCA (405) 522-2754

Dena Thayer, OIRP Programs Administrator (405) 521-4326

Nancy Kelly, OIRP Policy Specialist (405) 522-6703

RE:  

APA WF 13-08

It is very important that you provide your comments regarding the DRAFT COPY of policy by the comment due date. Comments are directed to *STO.LegalServices.Policy@okdhs.org

The proposed policy is  Permanent .  This proposal is subject to the Administrative Procedures Act

SUBJECT:

Chapter 2. Administrative Components

Subchapter 3. Office of Client Advocacy

Part 1. Administration

OAC 340:2-3-2 [AMENDED]

Part 3. Investigations

OAC 340:2-3-32 through 340:2-3-33 [AMENDED]

OAC 340:2-3-36 [AMENDED]

OAC 340:2-3-39 [NEW]

Part 5. Grievances

OAC 340:2-3-45 [AMENDED]

OAC 340:2-3-53 [AMENDED]

OAC 340:2-3-55 [AMENDED]

Part 7. Grievance and Abuse Review Committee

OAC 340:2-3-61 [AMENDED]

OAC 340:2-3-62 [AMENDED]

(Reference WF 13-08)

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, the 2010 Child Abuse Prevention and Treatment Act (CAPTA), Section 5101 et seq. of Title 42 of the United States Code (U.S.C. 42 §§ 5101 et seq.), and related Oklahoma Department of Human Services (DHS) Pinnacle Plan; and (2) reflect clarification on programs reviews regarding the person responsible for the child of interest (PRFCI) and the vulnerable adult caretaker (VAC).

Oklahoma Administrative Code (OAC) 340:2-3-2 is amended to: (1) add the definition of vulnerable adult caretaker; (2) add the definition of contractor's employee; (3) add the definition of educational employee; (4) delete the wording "encouraging a child or youth to engaging sexual acts with others or" in reference to the sexual exploitation definition; (5) delete the definition of youth; and (6) revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-32 is amended to: (1) delete the word administrative from administrative investigations; and (2) revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-33 is amended to:(1) add the Office of Juvenile Affairs in reference to the reporting of caretaker misconduct regarding a child; (2) add that if a pattern of misconduct exists at a facility or facility administration fails to take appropriate corrective action in response to an investigation or written plan of compliance, a report should be made to the Hotline; (3) revise certain wording in the rule, which does not change the meaning of the rule; and (4) update DHS division acronyms, Office of Client Advocacy (OCA) telephone numbers and fax numbers.

OAC 340:2-3-36 is amended to: (1) change a citation from OAC 340:75-3-20 to proposed OAC 340:2-3-39 regarding the appeal process available to PRFCIs for substantiated findings of child abuse or neglect; (2) add language to the definition of substantiated; and (3)revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-39 is created to add a program review process regarding PRFCIs for substantiated findings of child abuse or neglect in OCA investigations.This proposed rule will provide an appeal process for persons who disagree with a substantiated finding of child abuse or neglect.The appeal process: (1) provides PRFCIs with a substantiated finding of child abuse or neglect an opportunity for due process; (2) serves as a quality assurance mechanism to assess findings compliance with OCA standards per OAC 340:2-3-2; and (3) provides substantiated findings review by a team of reviewers as designated by the Advocate General consisting of personnel not involved in any other stage of the case.Also included in the policy is the wording, "No individual with direct decision making regarding a case being reviewed will be authorized to vote to ensure that there is no conflict of interest."

OAC 340:2-3-45 is amended to:(1) update telephone numbers regarding the OCA Advocate General and OCA fax and provide a new email address for the OCA Grievance Unit; (2) revise certain wording in the rule, which does not change the meaning of the rule; and (3) offer Northern Oklahoma Resource Center at Enid (NORCE) and Southern Oklahoma Resource Center (SORC) residents transitioning into the community after November 1, 2012, after the decision was made to close the facilities, the same grievance rights afforded to Hissom class members.

OAC 340:2-3-53 is amended to: (1) offer the same grievance rights to NORCE and SORC residents transitioning into the community after November 1, 2012, after the decision was made to close the facilities, afforded to Hissom class members; and (2)revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-55 is amended to: (1) update telephone numbers regarding the OCA grievance liaison and OCA fax; and (2) revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-61 is amended to: (1) delete caretaker misconduct as a finding regarding Grievance and Abuse Review Committee (GARC); and (2) revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-62 is amended to add a program review process through GARC regarding VACs for substantiated findings of abuse or neglect of a vulnerable adult in OCA investigations.This rule will provide an appeal process for VACs who disagree with a substantiated finding of abuse or neglect of a vulnerable adult.The appeal process:(1) provides VACs with a substantiated finding of abuse or neglect of a vulnerable adult an opportunity for due process; (2) serves as a quality assurance mechanism to assess findings compliance with OCA standards, per OAC 340:2-3-2; and (3) provides substantiated findings review by a team of reviewers as designated by the DHS Director consisting of personnel not involved in any other stage of the case. Alsocertain wording, which does not change the meaning of the rule, is revised.

PERMANENT APPROVAL:

Permanent rulemaking is requested.

LEGAL AUTHORITY:

Director of Human Services; O.S. 56 § 162; 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:January 24, 2014

Re:Chapter 2. Administrative Components

Subchapter 3. Office of Client Advocacy

Part 1. Administration

OAC 340:2-3-2 [AMENDED]

Part 3. Investigations

OAC 340:2-3-32 through 340:2-3-33 [AMENDED]

OAC 340:2-3-36 [AMENDED]

OAC 340:2-3-39 [NEW]

Part 5. Grievances

OAC 340:2-3-45 [AMENDED]

OAC 340:2-3-53 [AMENDED]

OAC 340:2-3-55 [AMENDED]

Part 7. Grievance and Abuse Review Committee

OAC 340:2-3-61 [AMENDED]

OAC 340:2-3-62 [AMENDED]

Contact: Steven Mitchell (405) 522-2754

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, the 2010 Child Abuse Prevention and Treatment Act (CAPTA), Section 5101 et seq. of Title 42 of the United States Code (U.S.C. 42 §§ 5101 et seq.), and related Oklahoma Department of Human Services (DHS) Pinnacle Plan; and (2) reflect clarification on programs reviews regarding the person responsible for the child of interest (PRFCI) and the vulnerable adult caretaker (VAC).

Strategic Plan impact.The proposed amendments achieve DHS goals by ensuring the health and safety of children and vulnerable adults, improving processes, ensuring due process regarding PRFCIs and VACs, and administering public resources in a fiscally responsible manner.

Substantive changes.

Oklahoma Administrative Code (OAC) 340:2-3-2 is amended to: (1) add the definition of vulnerable adult caretaker; (2) add the definition of contractor's employee; (3) add the definition of educational employee; (4) delete the wording "encouraging a child or youth to engaging sexual acts with others or" in reference to the sexual exploitation definition; (5) delete the definition of youth; and (6) revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-32 is amended to: (1) delete the word administrative from administrative investigations; and (2) revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-33 is amended to:(1) add the Office of Juvenile Affairs in reference to the reporting of caretaker misconduct regarding a child; (2) add that if a pattern of misconduct exists at a facility or facility administration fails to take appropriate corrective action in response to an investigation or written plan of compliance, a report should be made to the Hotline; (3) revise certain wording in the rule, which does not change the meaning of the rule; and (4) update DHS division acronyms, Office of Client Advocacy (OCA) telephone numbers and fax numbers.

OAC 340:2-3-36 is amended to: (1) change a citation from OAC 340:75-3-20 to proposed OAC 340:2-3-39 regarding the appeal process available to PRFCIs for substantiated findings of child abuse or neglect; (2) add language to the definition of substantiated; and (3)revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-39 is created to add a program review process regarding PRFCIs for substantiated findings of child abuse or neglect in OCA investigations.This proposed rule will provide an appeal process for persons who disagree with a substantiated finding of child abuse or neglect.The appeal process: (1) provides PRFCIs with a substantiated finding of child abuse or neglect an opportunity for due process; (2) serves as a quality assurance mechanism to assess findings compliance with OCA standards per OAC 340:2-3-2; and (3) provides substantiated findings review by a team of reviewers as designated by the Advocate General consisting of personnel not involved in any other stage of the case.Also included in the policy is the wording, "No individual with direct decision making regarding a case being reviewed will be authorized to vote to ensure that there is no conflict of interest."

OAC 340:2-3-45 is amended to:(1) update telephone numbers regarding the OCA Advocate General and OCA fax and provide a new email address for the OCA Grievance Unit; (2) revise certain wording in the rule, which does not change the meaning of the rule; and (3) offer Northern Oklahoma Resource Center at Enid (NORCE) and Southern Oklahoma Resource Center (SORC) residents transitioning into the community after November 1, 2012, after the decision was made to close the facilities, the same grievance rights afforded to Hissom class members.

OAC 340:2-3-53 is amended to: (1) offer the same grievance rights to NORCE and SORC residents transitioning into the community after November 1, 2012, after the decision was made to close the facilities, afforded to Hissom class members; and (2)revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-55 is amended to: (1) update telephone numbers regarding the OCA grievance liaison and OCA fax; and (2) revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-61 is amended to: (1) delete caretaker misconduct as a finding regarding Grievance and Abuse Review Committee (GARC); and (2) revise certain wording in the rule, which does not change the meaning of the rule.

OAC 340:2-3-62 is amended to add a program review process through GARC regarding VACs for substantiated findings of abuse or neglect of a vulnerable adult in OCA investigations.This rule will provide an appeal process for VACs who disagree with a substantiated finding of abuse or neglect of a vulnerable adult.The appeal process:(1) provides VACs with a substantiated finding of abuse or neglect of a vulnerable adult an opportunity for due process; (2) serves as a quality assurance mechanism to assess findings compliance with OCA standards, per OAC 340:2-3-2; and (3) provides substantiated findings review by a team of reviewers as designated by the DHS Director consisting of personnel not involved in any other stage of the case. Alsocertain wording, which does not change the meaning of the rule, is revised.

Reasons.If proposed revisions are not implemented, DHS would not be in compliance with federal and state statute and lack of due process regarding PRFCIs and VACs could be perceived.

Repercussions.If the proposed rules are not implemented, noncompliance with the 2010 Child Abuse Prevention and Treatment Act (CAPTA), Section 5101 et seq. of Title 42 of the United States Code and lack of due process regarding PRFCIs and VACs could be perceived.

Legal authority.Director of Human Services; O.S. 56 § 162; 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 PRFCIs, VACs, and NORCE and SORC residents transitioning into the community after November 1, 2012.Minimum costs are associated with implementation of the rules; the bulk of which are postage costs associated with letters the PRFCIs and VACs.

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 PRFCIs, VACs, and NORCE and SORC residents transitioning into the community after November 1, 2012.

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 proposed 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 DHS includes the cost of printing and distributing the rules estimated to be less than $20.OCA will have increased costs in mailing letters to PRFCIs and VACs amounting to approximately $500 per year.

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.Adding OAC 340:2-3-39 requires Child Welfare Services and Developmental Disabilities Services involvement.

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:There are neither less costly or non-regulatory methods nor less intrusive methods to achieve compliance.

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 due process afforded to PRFCIs and VACs and will have a positive impact on NORCE and SORC residents transitioning into the community after November 1, 2012.

J.A determination of any detrimental effect on the public health, safety, and environment if the proposed rule is not implemented:Although there would be no detrimental effect on the public health, safety, and environment if the proposed rules were not implemented, the due process of the PRFCIs and VACs would be negatively affected.In addition, NORCE and SORC residents will have the same grievance rights afforded to Hissom class members.

K.The date the rule impact statement was prepared and, if modified, the date modified:Prepared: August 5, 2013, modified December 16, 2013; modified January 24, 2014.

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