OKDHS - OAC 340:110-1-47.1. Complaint investigations

340:110-1-47.1. Complaint investigations

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Revised 7-1-11

(a) Legal basis. The Child Care Facilities Licensing Act (Act), Sections 401 et seq. of Title 10 of the Oklahoma Statutes, mandates that the Oklahoma Department of Human Services (OKDHS) conduct a full investigation of a complaint alleging a violation against the Act or any licensing requirement.

(b) Receipt of the complaint. Complaints may be made to Licensing Services, in writing, in person, by telephone, or electronically. • 1

(c) Complaint information. The licensing staff obtains as much relevant information as possible from the complainant. • 2

(d) Screening complaints. The licensing staff accepts a complaint for investigation when it alleges:

(1) non-compliance with licensing requirements;
(2) operation of an unlicensed facility in violation of the Act; or
(3) abuse or neglect of a child in care.

(e) Disposition of complaints. Upon receipt of a complaint, the licensing staff determines a disposition, as described in this subsection.

(1) A complaint that does not meet the criteria in (d) is discussed with the complainant, and, if appropriate, a referral is made to another entity, such as law enforcement, Office of Juvenile Affairs, Office of Client Advocacy (OCA), OKDHS Children and Family Services Division, or OKDHS Office for Civil Rights.
(2) A complaint alleging violation of licensing requirements or operation of an unlicensed facility is investigated by Licensing Services. • 3
(3) A complaint alleging child abuse or neglect is immediately referred to OCA with a copy of Form 07LC012E, Licensing Complaint. • 4 If an immediate response to the referral is not received, the licensing staff follows up the next working day to obtain a response.
(4) When a complaint alleges commission of a crime, including illegal drug activity in the child care facility, it is immediately referred to Office of Inspector General (OIG) and local law enforcement where the facility is located.

(A) The referral is followed up in writing; a copy is filed in the facility record; and the programs manager is notified.
(B) It is the responsibility of the licensing staff to follow up with local law enforcement officials to determine and document the outcome of the investigation.
(C) A referral to OIG is documented on Form 19MP001E, Referral Form. • 5

(5) A complaint received from another division within OKDHS or an agency responsible for monitoring residential child care facilities or child-placing agencies, such as the Oklahoma Commission on Children and Youth (OCCY), OCA, or the local health or fire department, is deemed valid if documented in writing by the agency representative. Licensing staff determines whether the observation is a non‑compliance. The facility is advised of the report and given an opportunity to respond.
(6) The programs manager is notified of any complaint:

(A) in which the alleged non-compliance caused or could cause imminent risk of harm to a child in care;
(B) when the facility has numerous, repeated, or serious non‑compliance with requirements;
(C) when the alleged non-compliance has been addressed in a previous Form 07LC037E, Notice to Comply;
(D) that was referred to OCA or law enforcement; or
(E) that is receiving special attention, such as from the media or a legislator.

(f) Complaint risk levels. Risk levels are determined by the licensing staff based upon the degree of harm or danger to children in care. Risk levels are used to ensure that investigations occur in a timely manner and to track types of complaints.

(1) Risk level I complaints. Risk level I complaints indicate a child is in imminent danger of serious physical injury. The level of risk is not influenced by the removal of a child from the facility if other children remain in care. Investigations are initiated immediately or no later than 24 hours after receipt of the complaint by the licensing staff unless awaiting investigation by OCA or law enforcement. Examples of risk level I complaints include:

(A) alleged physical or sexual abuse;
(B) presence or use of illegal drugs while children are in care;
(C) distribution of drugs;
(D) children left alone in the facility or in a vehicle;
(E) extreme facility temperatures;
(F) an infant placed on the stomach for sleeping;
(G) threatening or impaired behavior of a caregiver;
(H) severe understaffing or over licensed capacity;
(I) unlicensed facility;
(J) violating an Emergency Order;
(K) required staff without current cardio-pulmonary resuscitation and first aid training;
(L) failure to obtain background investigations; or
(M) knowingly permitting access to children by persons identified as restricted or registrants.

(2) Risk level II complaints. Risk level II complaints do not indicate there is imminent danger of injury, but without intervention a child may not be safe. Investigations are initiated within 15 calendar days of receipt of the complaint by the licensing staff, or sooner, depending on the degree of risk, unless advised by OCA or law enforcement to delay the investigation. Examples of risk level II complaints include:

(A) leaving children with an underage staff person;
(B) alleged physical abuse from a staff person no longer working in the facility;
(C) inappropriate discipline where no injury is reported;
(D) broken playground equipment;
(E) injury caused by lack of supervision; or
(F) minor understaffing.

(3) Risk level III complaints. Risk level III complaints do not indicate imminent danger and there are no injuries alleged. Investigations are initiated within 30 calendar days of the date of receipt of the complaint by the licensing staff or immediately if a telephone investigation is appropriate. Examples of risk level III complaints include:

(A) inadequate meal service;
(B) inappropriate use of television or videos; or
(C) inadequate cleanliness of the facility.

(g) The investigation. The licensing staff conducts a full investigation, obtaining sufficient information to make a finding. • 6

(h) Telephone investigation. With supervisory approval, the licensing staff may investigate a complaint by telephone. The discussion and, if necessary, an agreed‑upon plan of correction is documented on Form 07LC080E, Licensing Services Supplemental Information. A copy is sent to the operator. A complaint may be investigated by telephone only if:

(1) the alleged non-compliance does not place children at risk of harm, for example, the facility did not serve milk one day or children have head lice;
(2) the facility has not had numerous, repeated, or serious non-compliance; and
(3) a monitoring visit has been made in the last three months during which substantial compliance was documented.

(i) Procedure for investigating allegations of operating an unlicensed facility. When allegations of operating an unlicensed facility are investigated, the procedures contained in OAC:340:110-1-54.1 are also followed.

(j) Child abuse and neglect complaints. Upon receipt of a complaint alleging abuse of a child in care, the licensing staff immediately notifies the programs manager and makes a referral to the Office of Client Advocacy.

(k) Findings. After the investigation is completed, the licensing staff, in consultation with the programs manager, as appropriate, makes a finding as to whether the complaint is substantiated, unsubstantiated, or ruled out.

(1) Substantiated. A finding of substantiated is made when a weighing of the information obtained during the investigation clearly indicates that the facility violated a licensing requirement or the Act.
(2) Unsubstantiated. A finding of unsubstantiated is made when the information does not lead to a definite conclusion, for example:

(A) there is insufficient or conflicting information on which to conclude that a violation occurred; or
(B) information required to make a finding is unavailable.

(3) Ruled out. A finding of ruled out is made when a weighing of the information clearly indicates there was not a violation of a licensing requirement or the Act. • 7

(l) Documentation of findings. Upon completion of the investigation, the licensing staff documents the complaint allegations, findings, notifies the provider in writing, and enters the complaint information on the licensing database using complaint key words. • 7

(m) Notice to Comply. When a serious complaint is substantiated, the licensing staff advises the facility to correct the violations immediately, using Form 07LC037E, Notice to Comply. The facility must complete a plan of correction.

(n) Summary of facts. Facility or agency owners or program directors may submit a written request for a summary of the facts used to evaluate and determine the licensing complaint findings. • 8

(o) Complaint overview. Licensing staff provide an overview of completed complaint investigations on Form 07LC080E. This provides an overview of the investigation, how the complaint findings were determined, and is filed in the confidential section. • 9

INSTRUCTIONS TO STAFF 340:110-1-47.1

Revised 7-1-11

1. When the complaint is made in person or by telephone, the licensing staff assists the complainant by:

(1) advising the complainant as to which allegations represent non‑compliance and are enforceable;

(2) responding to the concerns of the complainant; and

(3) discussing confidentiality. For example, the identity of the complainant is kept confidential unless legal action or a referral to law enforcement officials becomes necessary;

(4) eliciting appropriate information. When subjective terms such as "drunk" or "crazy" are used, the licensing staff attempts to obtain and record specific information on the behavior observed by the complainant;

(5) informing the complainant about what action will be taken, such as the licensing staff will make an unannounced visit or a referral of child abuse will be made to Office of Client Advocacy (OCA) for investigation; and

(6) requesting a signed, statement from the complainant when serious violations are involved or a negative action may result.

2. The information requested is recorded on Form 07LC012E, Licensing Complaint, and entered into the database system. The information requested includes:

(1) date and time the complaint was received;

(2) name of the facility, address, and telephone number;

(3) the complainant's name, address, telephone number, and relationship to the facility, such as employee, parent of a child in care, or neighbor;

(4) the complainant's source of information; for example, personal observation or information from another person; and

(5) specific information regarding the allegations, including:

(A) a description of the circumstances;

(B) name or identity of staff involved;

(C) child(ren) involved or affected by the alleged non-compliance and the child(ren)'s age(s);

(D) date(s), time(s), and place(s) the alleged non-compliance(s) occurred;

(E) names of other persons with relevant information; and

(F) whether the complaint has been discussed with the facility director.

3. This information is recorded as a complaint, regardless of the purpose of the caller. The licensing staff in whose area the facility is located is notified as soon as possible, and Form 07LC012E, Licensing Complaint, is forwarded to the licensing staff.

4. The referral is documented on the bottom of Form 07LC012E, Licensing Complaint. Complaints referred to OCA include those that allege harm or threatened harm to a child that occurs through non‑accidental physical or mental injury, sexual abuse, neglect, or failure or omission to provide protection from harm or threatened harm.

(1) If the licensing staff is unsure whether a complaint meets the criteria for investigation by OCA, the complaint is referred to OCA and the decision whether to accept the referral is made by OCA staff.

(2) Sex play between children is referred to OCA for investigation. Licensing investigates this type of allegation with regard to supervision of the children.

5. It is the responsibility of the licensing staff to follow up with law enforcement and OIG to determine and document the outcome of the investigation. Licensing specialists inform OIG prior to any visits to the facility.

6. (a) The investigation includes:

(1) a review of the allegations to ensure that investigating staff is thoroughly familiar with the details and specific information, and, whenever possible, a review of all appropriate agency records to obtain other preliminary information as appropriate prior to making the initial contact;

(2) an unannounced visit to the facility. The purpose of the visit and the nature of the complaint are discussed with the operator. The licensing staff does not identify the complainant;

(3) a review of available records, such as the licensing record, children's files, restraint and injury logs, medical and transportation records, food program records, and police reports;

(4) interviews with the complainant and residents of the facility, if applicable, and others who may have relevant information, such as facility staff or food program employees. The interview:

(A) is conducted when it appears it would provide more complete or accurate information than observation alone;

(B) is usually a face-to-face contact between the licensing staff and a person who may have relevant information. If a person's comments and signature are recorded on Form 07LC080E, Licensing Services Supplemental Information, he or she is given a copy of the report. A copy of the report is not provided to the operator;

(C) is usually conducted in private and with one person at a time. An exception may be made when a witness accompanies the licensing staff, a parent wishes to be present when his or her child is interviewed, or a person elects to have his or her attorney present;

(D) may be conducted outside the facility if the director is uncooperative, if an on-site interview places the interviewee at risk, or if information is to be gathered prior to discussion with the operator. Interviews with persons outside the facility are documented on Form 07LC080E, and the person interviewed is given a copy of the report;

(E) when with a child, takes into consideration the age and verbal ability of the child. It is preferable that the licensing staff is accompanied by a witness. Parental permission prior to interviewing a child in care is not required when investigating a complaint alleging non-compliance with licensing requirements;

(5) observations at the facility.

(A) When an investigation is associated with a specific time of day, for example, early morning understaffing, the visit to the facility is made at the time the incident is alleged to have occurred. The licensing staff documents observations by citing the specific conditions observed; for example, the director refused to allow the licensing staff to view the facility's records of staff criminal history investigations or there were 16 residents monitored by one staff.

(B) When investigating a complaint at a facility that is time-consuming, stressful, or involves OCA or other auditing entities, or if a full monitoring visit was made within the last month to a facility with a record of compliance, a complete monitoring visit is not required. Staff-child ratios and supervision are documented on each visit on the monitoring report. Should numerous, repeated, and/or serious non-compliance be observed a full monitoring visit is conducted. The licensing staff documents compliance with those areas relating to the allegation; and

(6) documentary evidence, which is entered in the facility record. Documentary evidence is information that has been recorded, such as an Oklahoma Commission on Children and Youth report, medical and police records, signed statements or photographs.

(b) If sufficient information is obtained through interviews, observations, or documentary evidence that supports an allegation that children are at risk of harm, the licensing staff requests that the owner voluntarily cease care or prohibit the alleged perpetrator from having any contact with children pending the outcome of the investigation. The owner is advised of the possibility of an injunction or Emergency Order if he or she refuses and children are considered at risk of harm.

(c) Following completion of the investigation, the licensing staff sends a letter to the operator that includes the findings of the investigation and notice of further action that will be taken, if indicated.

7. After initiating the complaint, licensing staff must continue to make progress with the investigation in efforts to complete it as soon as possible. The licensing staff enters the findings on the data base and completes Form 07LC081E, Licensing Complaint Report Summary, using specific language that will be informative to anyone who may review the file.

(1) When a non-compliance other than the original complaint allegation(s) is identified, staff document non-compliances:

(A) on the complaint summary above the plan of correction citation as "additional non-compliances found during the investigation"; and

(B) on the licensing database in investigative comments; and

(C) in the plan of correction.

(2) When a specific allegation within a key word is unsubstantiated, but a different non-compliance(s) within a key word category is identified, staff unsubstantiate the specific allegation and document the new non-compliance. Confirm understaffing even if understaffing is in an age group different than the allegation. Document this circumstance as in paragraph (1) of this Instruction.

(3) Names or identifying information of the complainant, children, and their families are not included on Form 07LC081E. When OCA is not involved, names of staff may be used in complaint findings regarding non‑compliance with licensing requirements. When a child care provider is identified on Form 07LC081E, it is even more critical to have strong evidence before substantiating the complaint.

(4) When a child abuse investigation has been conducted by OCA, Form 07LC081E contains a summary of allegations and findings that does not disclose the identity of the alleged perpetrator or victim, but does allow persons who are interested to evaluate the facility.

(5) Form 07LC081E, is made a part of the open record. Form 07LC012E, Licensing Complaint, is placed in a confidential file. If the allegations and findings have not been given to the provider in writing, a letter is sent to the provider. Interviews with staff, children, collateral witnesses, and complainants are not made part of the public record.

(6) If information regarding a complaint is requested by the public prior to completion of the investigation, the licensing staff explains that information regarding the allegation and findings will be released after the investigation is complete.

8. When requested in writing, a summary of facts is provided on division letterhead and indicates documents reviewed and the total number of persons interviewed while identifying the relationship to facility such as parents, staff, children, collateral or other agency personnel. Information is provided while protecting confidentiality of all parties. Programs manager approval is necessary before providing the written summary to the facility.

9. The overview is used for review by supervisors and state office personnel and includes:

(1) number of persons interviewed and their relationship to the facility;

(2) observations regarding the allegations;

(3) documents and records reviewed; and

(4) information used to determine the findings.

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