(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 administrator for the facility or provider 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) 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, the rights and responsibilities of accused community services workers are found in OAC 340:100-3-39.  The administrator or designee promptly completes Form 06PE059E, Rights and Responsibilities of Community Services Worker in an Investigation of Abuse, Neglect, or Exploitation, in accordance with OAC 340:100-3-39(d)(2)(C).  The 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) Access.  The applicable 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), Department of Rehabilitation Services (DRS), Department of Mental Health and Substance Abuse Services (DMHSAS), 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.

(c) Interference prohibition.

• (1) Section 7103 of Title 10 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 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.  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 10-104(G) 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 Vulnerable Adults Act, Section 10-101 et seq. of Title 43A of the Oklahoma Statutes.

(d) Rights and responsibilities of accused caretakers.  The rights and responsibilities of an accused caretaker during an OCA investigation are outlined in this subsection.  The rights and responsibilities of a community services worker 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 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.

(e) 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.

(f) 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 administrator of the provider agency or facility 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 administrator of the provider agency or facility where the alleged incident took place is responsible for protection of clients.

(g) 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.

(h) Investigative interviews.  The investigator interviews or attempts to interview persons known or identified to have information about the referral.  • 2  If an injury is alleged, the investigator or other appropriate person observes, notes, and documents apparent injuries, and obtains pertinent medical documentation, including photographic evidence.  • 3  Interviews are conducted in private.  No person other than the investigator and the person being interviewed is allowed to attend an interview except a person necessary to facilitate communication.  An attorney or other representative of the person being interviewed attends an interview only as a silent observer with prior permission of the advocate general or designee.  • 2

(i) 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.   • 4  When possible, all other witnesses are interviewed prior to interviewing the accused caretaker(s).

• (1) Tape recording of interviews.  OCA investigators tape record every interview.  To maintain confidentiality of the information provided in an interview, no tape recording by the person being interviewed or by anyone else in attendance is permitted.  Tape recordings of interviews remain with the OCA investigative file.  OCA files and tape 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.
• (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 to which 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 who 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 in accordance with 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 administrator of the facility or provider that employs the caretaker.  If a reasonable time has passed without being able to schedule an interview, the investigator contacts the administrator of the facility or provider 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.

(j) Exit notice.  Within 30 calendar days of assignment of a referral to be investigated, the assigned OCA investigator contacts by e‑mail the applicable administrator or designee, or OKDHS long-term care nurse, whichever is applicable, when the information gathering portion of the investigative process is completed.  The investigator informs the administrator of any areas of concern identified and that a written report will be prepared with the final finding.  Preliminary findings are not required.

(k) 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 the type of maltreatment at issue, such as abuse, neglect, verbal abuse, exploitation, or caretaker misconduct;
• (6) the finding(s) in accordance with subsection (l) 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 which have implications for the safety, health, or welfare of clients but which 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

(l) 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 that the alleged maltreatment occurred;  • 9
• (2) "not confirmed" means the greater weight of the available evidence indicates that 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.

(m) Identification of the responsible caretaker.  When a confirmed finding is made, the investigator determines the caretaker(s) responsible for the maltreatment.  The administration can 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

(n) 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 (o) 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.
• (2) If the referral alleged abuse, verbal abuse, neglect, financial neglect, or exploitation, a copy also is sent to the applicable district attorney.
• (3) A copy also is sent to the appropriate OKDHS state office administrator, executive director of OJA, the director of DRS, the director of DMHSAS, or the director of the J.D. McCarty Center, whichever is applicable.
• (4) When an 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 OCA's 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 which 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 which summarizes the allegation and states the OCA finding.
• (7) If client maltreatment by a licensed nurse is confirmed, a copy of OCA's report is submitted to the Oklahoma State Board of Nursing.
• (8) When appropriate in cases involving a vulnerable adult, a copy of OCA's 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 in which 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, whichever is appropriate.
• (10) If maltreatment by a guardian is confirmed, a copy of OCA's investigation report is submitted to the applicable guardianship court.

(o) Dissemination of reports involving Hissom class members and caretakers subject to the Community Services Worker (CSW) Registry.

• (1) All OCA investigations involving a confirmed finding against a community services worker, or a Medicaid personal care assistant employed by a Medicaid Personal Care Services Provider are processed in accordance with OAC 340:100-3-39 and OAC 317:35-15.
• (2) After the OCA investigation report has been approved, an e-mail notice of the areas of concern in the report is sent to the administrator, the applicable DDSD area manager, and the OKDHS long-term care nurse, whichever are applicable.
• (3) When the OCA finding does not confirm an allegation, OCA sends a copy of the report pursuant to Section 10-110(B) of Title 43A of the Oklahoma Statutes, to the administrator, the DDSD director or the APS programs manager, whichever is applicable, the assigned OKDHS long-term care nurse when applicable, and the applicable district attorney.  • 11
• (4) 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 administrator, the DDSD director, and the applicable district attorney.  • 11
• (5) When the OCA finding confirms an allegation against a caretaker who is a community services worker or a Medicaid personal care assistant, OCA submits a copy of the report to the DDSD director or the APS programs manager, whichever is applicable, and the applicable district attorney and processes the report in accordance with 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 administrator and the assigned OKDHS long-term care nurse if applicable.  • 11
• (6) 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.  • 12
• (7) If maltreatment by a guardian is confirmed, a copy of OCA's investigation report is submitted to the applicable guardianship court.

(p) Confidentiality of OCA investigative reports.  Persons receiving copies of OCA investigative reports are bound by the confidentiality provisions of Sections 7005-1.2 through 7005-1.4 and 7107 et seq. of Title 10, and Section 10-110 of Title 43A of the Oklahoma Statutes, whichever is applicable.

(q) 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 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.

(r) 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.

(s) Storage and retention of OCA investigative records.  OCA maintains the original report, supporting documents, and applicable recorded tapes in locked file cabinets in accordance with 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 on a need to know basis.