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340:110-1-47.2. Non-compliance with requirements

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Revised 11-20-08

(a) Documentation of non-compliance. The licensing staff documents clearly and concisely on the monitoring report areas of non-compliance and the discussion with the operator. • 1

(1) A plan of correction, including an agreed-upon time period for correction of the non-compliance, is documented on the monitoring report for each non-compliance. • 2
(2) Immediate correction is required when the non-compliance has a direct impact on the health, safety, or well-being of a child(ren) in care.
(3) The licensing staff requests that the operator sign the monitoring report, explaining that the operator's signature indicates acknowledgment of information recorded.
(4) If the person in charge refuses to sign, the refusal is documented on the report.
(5) The operator is given a copy of the completed monitoring report.

(b) Referrals to fire and health officials. If non-compliance regarding fire or health requirements places children at risk of harm or remains uncorrected, the licensing staff requests an inspection by a fire, health, or Oklahoma Department of Environmental Quality (ODEQ) official.

(c) Case management responses to non-compliant facilities. The responses in this subsection may be used when there is repeated, numerous, or serious non‑compliance. • 3

(1) Technical assistance. Technical assistance is offered along with referrals to consultants or training resources, if necessary, to assist the operator in meeting and maintaining licensing requirements.
(2) Follow-up phone call. Phone calls are documented on Form 07LC080E, Licensing Services Supplemental Information, and a copy is mailed to the facility.
(3) Non-compliance letter. A non-compliance letter may be written to the operator. The licensing staff sends a copy of the monitoring report and non‑compliance letter to the governing board or owner, if applicable. • 4
(4) Return monitoring visit. A return monitoring visit may be made if there is repeated, numerous, or serious non-compliance with licensing requirements or when non-compliance places children at imminent risk of harm. If the non‑compliance is associated with a specific time of day, such as understaffing after school or a lack of early morning supervision, the return visit is made at that approximate time. • 5
(5) Use of witnesses. The licensing staff may be accompanied by a witness during monitoring visits if the facility has had numerous, repeated, or serious non‑compliances or if denial or revocation of the license is being considered. The witness may be an Oklahoma Department of Human Services (OKDHS) employee or a representative from the health or fire department. The witness signs the monitoring report in the space provided.
(6) Increased monitoring visits. Licensing staff may increase the frequency of monitoring when there has been numerous, repeated, or serious non-compliance or when the need for additional technical assistance is indicated.
(7) Notice to comply. The licensing staff provides the facility with Form 07LC037E, Notice to Comply, on which the facility documents the plan of correction. Immediate correction may be required if the non-compliance places the health, safety, or well‑being of a child(ren) in care at risk.

(A) If the plan submitted by the operator is unacceptable to the licensing staff, the staff negotiates and documents a revised plan.
(B) If the operator does not submit the response to Form 07LC037E within the specified time period, the licensing staff contacts the operator and documents the conversation. If concerns exist or the operator is uncooperative, the licensing staff sends a letter stating that failure to complete Form 07LC037E may result in revocation of license, denial of the application, the filing of an injunction, or Emergency Order.

(8) Office conference. The licensing staff may schedule an office conference with the operator of the facility. The programs manager is present at the office conference. Areas of non-compliance and progress toward meeting the plan(s) of correction are reviewed and technical assistance is offered. The conference is documented on Form 07LC080E, which is signed by the licensing staff, the operator, and any witnesses present. Form 07LC037E is completed if one addressing these issues has not been completed recently.
(9) Consent agreement. OKDHS and the operator of the facility may enter into a consent agreement whereby the facility agrees to specific conditions in lieu of license denial or revocation.
(10) Revocation. The licensing staff recommends that the application for licensure be denied or license revoked when numerous, repeated, or serious non-compliance with requirements has been observed and documented or the facility has failed to adequately protect children. • 6
(11) Voluntary cease care. With State Office approval, the operator is asked to voluntarily cease caring for children.
(12) Voluntary closure. The operator is asked to voluntarily close the facility. • 7

(d) Case management responses when children are at risk. If the licensing staff documents non-compliance with requirements or is investigating a complaint that children may be at imminent risk of harm, options to consider during consultation with the operator and the programs manager are outlined in this subsection.

(1) The operator is asked to immediately correct the non-compliance; for example, the staff person will not work at the facility pending the outcome of an investigation.
(2) The operator is asked to voluntarily close the facility.
(3) The licensing staff requests an Emergency Order when immediate action is needed to protect children in a child care facility that is on permit, licensed, on notice of revocation or denial, or operating during an appeal following revocation or denial.
(4) The operator agrees to enter into a consent agreement whereby the facility agrees to specific conditions in lieu of license denial or revocation.
(5) The licensing staff recommends that the license be denied or revoked when numerous, repeated, or serious non-compliance with requirements has been observed and documented or the facility has failed to adequately protect children.
(6) An injunction may be requested when the residential facility or child-placing agency is:

(A) unlicensed;
(B) on application status;
(C) licensed;
(D) violating an Emergency Order;
(E) operating during an appeal following revocation or denial and children are at risk of harm; or
(F) violating the notice to cease care following denial or revocation of license.

INSTRUCTIONS TO STAFF 340:110-1-47.2

Revised 7-1-08

1. When documenting non-compliance on the monitoring report, the licensing staff:

(1) documents what is observed rather than what is needed. For example, the licensing staff writes "milk was not served with lunch" instead of "milk must be served at lunch;"

(2) discusses areas of non-compliance with the operator and documents the discussion in writing on the monitoring report;

(3) provides a copy of the monitoring report to the operator and governing board or owner, as applicable; and

(4) if the person in charge refuses to sign the monitoring report, documents the refusal on the report.

2.   Plan of correction.

(1) If the time period suggested by the operator for correction of non‑compliance is unacceptable to the licensing staff, the licensing staff states his or her expectation and negotiates an acceptable time period.

(2) The plan of correction may include an agreement by the administrator or director to specific conditions, such as agreeing to restrict a person convicted of child abuse from the premises or agreeing not to allow certain staff to transport children because of a prior conviction for driving under the influence (DUI). The agreement:

(A) is placed in a prominent location in the facility's file, such as stapled inside the front cover, so it is readily seen by anyone reviewing the case record; and

(B) includes the conditions that must be complied with, but does not include confidential information; for example, the caregiver has three DUI convictions or the person restricted from the premises has a child abuse conviction.

3. Licensing staff assesses both the number and type of non-compliance observed during monitoring visits or substantiated as a result of a complaint investigation. Response is based on the seriousness of the non‑compliance and the demonstrated ability and willingness of the provider to comply.

(1) The licensing staff response goes beyond documentation of the non‑compliance and a plan of correction on the monitoring report when a monitoring visit involves:

(A) five or more areas of non‑compliance;

(B) areas of non-compliance that have been repeated three or more times during a 12-month period; or

(C) non-compliance that is serious or places children in danger.

(2) The licensing staff advises the programs manager of the planned response and, if the supervisor disagrees, the case history is staffed and a different or additional response may be utilized.

4.   A non-compliance letter is sent by licensing staff within ten working days, and includes the date of the monitoring visit and the area(s) of non-compliance. If a critical non-compliance remains uncorrected at the next monitoring visit, a letter documenting both visits and a follow-up visit are required.

5.  The timing of a return visit is determined by the risk level to children. A return visit does not routinely result in a change in the monitoring frequency plan. If subsequent visits require a follow-up, increased monitoring is discussed with the programs manager.

6.   Procedure and documentation for denial or revocation of license.

(1) The licensing staff ensures that the non-compliance and a plan of correction are clearly documented on the monitoring report, and the facility's action to implement any previous plans of correction. It is noted on the monitoring report that failure to correct the non-compliance may result in, denial of application, revocation of license, filing an injunction, or issuance of an Emergency Order, as applicable.

(2) The licensing staff conducts monitoring visits at least monthly to monitor compliance and the plan(s) of correction. The same witness accompanies the licensing staff on monitoring visits whenever possible.

7.   Notification is documented by the licensing staff when the provider voluntarily ceases to operate until the investigation is completed or voluntarily closes the facility, or the district attorney issues an injunction.

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