The following words and terms when used in this Subchapter shall have the following meanings, unless the context clearly indicates otherwise.
"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
- (B) vulnerable adults, abuse as defined by Section 10-103(8) of Title 43A of the Oklahoma Statutes. • 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, Department of Mental Health and Substance Abuse Services (DMHSAS), 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 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) of Title 10 of the Oklahoma Statutes. The e-mail address for the advocate general is *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, an 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 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
"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 vulnerable adult.
- (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 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:
- (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 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 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" means the Oklahoma Department of Mental Health and Substance Abuse Services.
"DRS" means the Oklahoma Department of Rehabilitation Services.
"E-mail" means:
"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. • 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 for the physical custody, detention, or treatment of minors;
- (B) an OKDHS operated shelter;
- (C) an OKDHS, OJA, DMHSAS, 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. • 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 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:
- (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. • 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 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 10-103 of Title 43A of the Oklahoma Statutes; or abuse, neglect, sexual abuse or sexual exploitation of children as defined in Section 7102 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 except any person convicted of a crime specified in Section 7306-1.1 of Title 10 of the Oklahoma Statutes or any person certified as an adult pursuant to Section 7303-4.3 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 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
- (ii) special care made necessary by the physical or mental condition of the minor or youth; • 8 or
- (B) vulnerable adults, neglect as defined in Section 10-103(10) of Title 43A of the Oklahoma Statutes. • 9
"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. • 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. • 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. • 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; • 5
- (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. • 13
"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. • 14
"Vulnerable adult" means vulnerable adult as defined by Section 10-103(5) of Title 43A of the Oklahoma Statutes. • 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 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 in OJA custody or voluntary care of OKDHS.