Okla. Admin. Code § 310:678-3-5

Current through Vol. 42, No. 7, December 16, 2024

Section 310:678-3-5 - [Effective until 9/14/2025] OCA investigation procedures for cases involving child victims

(a)OCA investigation initiation. Per 10A O.S. § 1-9-112, OCA within its investigative scope and authority, conducts a prompt and thorough investigation upon receiving a report of abuse, neglect, sexual abuse, or sexual exploitation of a child within priority guidelines.

(b)Joint investigations with law enforcement. In accordance with 10A O.S. § 1-9-102, the multidisciplinary team (MDT) approach is used:

(1) whenever feasible for investigations involving cases of child sexual abuse, sexual exploitation, physical abuse, and neglect cases;

(2) to enhance the investigative process and maximize services provided to affected children and families; and

(3) to consult with other MDT team members, as appropriate.

(c)Investigation notice and written description of investigation process provided to alleged perpetrator. Per 10A O.S. § 1-2-106, at initial contact with an alleged perpetrator who is the subject of an investigation, OCA advises the alleged perpetrator of the specific complaint or allegation made against him or her. If OCA is unable to locate the alleged perpetrator, as soon as possible after initiating the investigation, OCA provides him or her a brief and easily understood written description of the investigation process, per 10A O.S. § 1-2-106.

(d)Facility or provider administrator responsibility to arrange document production, visits, and interviews. The applicable facility or provider agency administrator or the administrator's designee arranges document production, site visits, and interviews per OCA request.

(1) The facility or provider administrator or the administrator's designee who employed the alleged perpetrator at the time of the alleged incident informs the employee of:

(A) the OCA investigator's name and phone number;

(B) the investigative process described in this Section;

(C) the employee's rights and responsibilities relating to the investigation described in (l) of this Section, except as stated in (2) of this subsection using the prescribed form or forms approved by OSDH, a copy of which is provided to the OCA investigator; and

(D) the allegation made against the alleged perpetrator without divulging the reporting party's identity or the substance of the evidence.

(2) When the alleged perpetrator is subject to the Community Services Worker (CSW) Registry, the rights and responsibilities of the accused community services worker and Medicaid personal care assistant are found in OAC 310:678-3-10.

(A) The facility or provider administrator or the administrator's designee promptly completes the prescribed form or forms approved by OSDH.

(B) The facility or provider administrator or the administrator's designee mails the prescribed form or forms approved by OSDH to the worker when it is not possible to hand-deliver it to the worker who is no longer employed by the provider.

(e)OCA access to victims, employees, clients, facilities, files, and other records.

(1) The applicable facility or provider administrator or the administrator's designee arranges for the OCA investigator to have immediate and direct access to any alleged victim in the referral who is still the facility's or provider's client.

(2) During an OCA investigation, OKDHS, OJA, ODRS, ODMHSAS, 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.

(3) Denial of access may be grounds for a contract termination between OKDHS and the contractor or for other courses of action.

(f)Discrimination, retaliation, or interference in an OCA investigation prohibited and subject to criminal penalties.

(1) An employer, supervisor, administrator, or governing body or entity must not interfere with the any employee's or other person's reporting obligations or in any manner discriminate or retaliate against a person who in good faith reports suspected child abuse or neglect or provides testimony in any proceeding involving child abuse or neglect, per 10A O.S. § 1-2-101.

(2) 21 O.S. § 455 states it is a felony to:

(A) willfully prevent or attempt to prevent, any person who makes an abuse or neglect report, pursuant to 10A O.S. § 1-2-101 from giving testimony or producing any record document or other object; or

(B) threaten physical harm through force or fear, cause or procure physical harm, harass or cause a person to be harassed because of testimony in a civil or criminal trial proceeding or because of making a report of child abuse or neglect.

(g)and responsibilities. The alleged perpetrator's rights and responsibilities during an OCA investigation are outlined in this subsection.

(1)Rights. During the investigation process, an alleged perpetrator has the right to:

(A) be advised by OCA of the nature of each allegation made against him or her;

(B) be advised by OCA of the investigative process;

(C) be interviewed by the OCA investigator and allowed to give his or her position regarding the allegation;

(D) be advised by the OCA 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 his or her rights and responsibilities in OCA investigations, including the right to seek counsel;

(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 OCA of the outcome of the investigation.

(2)Responsibilities. During the investigative process, the alleged perpetrator has the responsibility to:

(A) prepare written statements and reports relevant to the investigation, upon request;

(B) be available for interviews and accommodate the OCA investigator with scheduling interviews;

(C) refrain from 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.

(h)Educational employees. This subsection applies to an educational employee, who is either a witness or the alleged perpetrator in an OCA investigation.

(1) The facility or provider administrator where the incident took place notifies the school principal of the nature of the allegation and the assigned OCA investigator's name.

(2) OCA investigates educational employees who meet the definition of a caretaker, per OAC 310:6781-2.

(i)Contractor's employees. This subsection applies to an employee of a contractor of a provider or facility when the employee is an alleged perpetrator in an OCA investigation.

(1) The facility or provider administrator where the incident took place notifies the contractor chief administrative officer of the nature of the allegation against the contractor's employee and the assigned OCA investigator's name.

(2) The contractor chief administrative officer 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 notification purposes and to coordinate with the investigative process. The facility or provider administrator where the alleged incident took place is responsible for client protection.

(j)Document collection and review. The OCA investigator gathers and reviews relevant documents including, but not limited to:

(1) incident reports and other written reports, accounts, and statements prepared during the preliminary assessment;

(2) medical records;

(3) photographs or video;

(4) facility or provider logs; and

(5) activity and tracking documents.

(k)Investigative interviews. When an injury is alleged, the OCA investigator or other appropriate person observes, notes, and documents apparent injuries and obtains pertinent medical documentation, including photographic evidence.

Interviews are conducted in private. No person, other than the OCA investigator and the person interviewed, is allowed to attend an interview except for a person necessary to facilitate communication. An attorney or other representative of the person interviewed may attend an interview only as a silent observer with OSDH's prior permission.

(l)Interview protocols. The OCA investigator conducts a separate private interview with each alleged victim, available witnesses to the alleged maltreatment, persons allegedly directly or indirectly involved in the allegation, persons with relevant knowledge, and each alleged perpetrator.

(m)Recording investigation interviews. OCA interviews are audio-recorded. To maintain information confidentiality provided in an interview, the person interviewed or anyone in attendance is not permitted to record. Interview recordings remain with the OCA investigative file.

(n)"Plan for Immediate Safety" means the plan for actions taken to immediately control any significant and clearly observable condition that is present and is endangering or threatening to endanger a child.

(o)Allegation presentation for witnesses later identified as alleged perpetrators. During an investigation, when a witness is identified as an alleged perpetrator, the OCA investigator interviews the witness again to inform the witness that he or she is an alleged perpetrator. 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. The OCA investigator informs the facility or provider agency administrator of the new allegation and of the potential, additional alleged perpetrators.

(p)Opportunity for alleged perpetrators to respond. Following the alleged perpetrator's initial interview, if the OCA investigator obtains information the alleged perpetrator did not have an opportunity to respond to, the OCA investigator conducts another interview with the alleged perpetrator. The OCA investigator advises the alleged perpetrator of the substance of the new information and provides an opportunity to present a response.

(q)Interpreter services for persons who are deaf or hard of hearing or have limited English proficiency. When OCA interviews a person who is deaf or hard of hearing or with limited English proficiency, OCA provides oral or sign language interpreter services by an independent and qualified interpreter.

(r)Scheduling interviews. To schedule an interview with an alleged perpetrator, the OCA investigator phones, emails, or mails the facility or provider agency administrator or the administrator's designee that employs the alleged perpetrator. After two documented attempts to schedule an interview, the OCA investigator, contacts the facility or provider agency administrator or the administrator's designee in writing advising the administrator of his or her responsibility to compel the employee to participate. The OCA investigator notifies OKDHS DDS Quality Assurance or Child Welfare Services Specialized Placements and Partnerships Unit staff to ensure compliance with contract provisions. If unsuccessful, the OCA investigator sends a letter by mail to the alleged perpetrator's last known address notifying the alleged perpetrator of the investigation, offering an opportunity to be interviewed, and setting a date and time for a response. The letter informs the alleged perpetrator of the consequence of failing to participate. The OCA investigative report is completed without the alleged perpetrator's statement, and a finding is made based on the available information. For other persons needing to be interviewed, the OCA investigator follows the same protocol for an alleged perpetrator, but the letter only requests his or her participation in an interview.

(s)Areas(s) of concern (AOC) notification. During the investigation, the assigned OCA investigator emails or phones the applicable facility or provider administrator or the administrator's designee and informs him or her of AOCs. Upon the investigation's completion, all identified AOCs are provided in writing to the facility or agency provider administrator.

(t)The written investigative report. After completing the information-gathering portion of the investigative process, the OCA investigator prepares a written investigative report containing:

(1) the referral allegation(s) 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;

(2) a statement of any physical injuries the alleged victims sustained;

(3) information regarding involved law enforcement entities;

(4) a recommendation for the district attorney to consider further investigation;

(5) the applicable definition(s) of caretaker misconduct or the maltreatment type at issue, such as abuse, neglect, verbal abuse, exploitation, or caretaker misconduct;

(6) the finding(s), per (x) of this Section;

(7) a list of the involved parties, titles and roles in the matter, if they were interviewed and, when interviewed, whether the interviews face-to-face or by phone;

(8) the name, address, and phone numbers of any interpreter employed 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) a list of relevant documents and records reviewed during the investigation;

(12) a list of attachments to the report provided upon request; and

(13) an explanation for any delays in meeting the time requirements for completing the investigation report contained in this Section.

(u)OCA findings and completion time requirements regarding investigations involving a child. Per 10A O.S. § 1-9112.1, the OCA investigation of a child abuse or neglect report results in a written report, with findings, within thirty (30) calendar days from the referral date.

(v)Notice of child abuse or neglect findings.

(1) After completing the OCA investigation, a findings letter is sent to the:

(A) alleged perpetrator; and

(B) facility or provider administrator.

(2) When a facility or provider administrator is named as an alleged perpetrator, a findings letter is mailed to the facility's or provider's chair of the board of directors or governing entity, or to the director of the state agency operating the facility, as applicable.

(3) The OCA investigator verbally provides the findings to the child victim's parents or legal guardian.

(w)Appeal process for substantiated child abuse or neglect findings. The 2010 Child Abuse Prevention and Treatment Act, Section 5101 et seq. of Title 42 of the United States Code, requires that the State of Oklahoma provide persons who disagree with a substantiated finding of child abuse or neglect with a procedure for appealing and responding to appeals of those findings.

(x)OCA investigation report submitted to OKDHS CWS. Per 10A O.S. § 1-9-112.1, the OCA abuse or neglect investigation report concerning a child in OKDHS custody is submitted to the CWS director or the director's designee within thirty (30) calendar days from the referral date.

(y)Dissemination of investigation reports involving persons subject to the OKDHS Community Services Worker (CSW) Registry.

(1) All OCA investigations involving a substantiated finding against a CSW or Medicaid personal care assistant are processed for the CSW Registry.

(2) A copy of the investigative report is sent to the district attorney in the county where the suspected maltreatment occurred.

(3) OCA sends an investigation summary to the designated leadership within the facility or provider administrator within five business days of the investigation closing. Nothing in this subsection is construed as an OCA determination that the subject of the investigation report may be placed on the CSW Registry.

(4) The investigation report is sent to the OKDHS DDS director or designee.

(z)Dissemination of reports involving alleged perpetrators subject to the Restricted Registry, Joshua's List.

(1) All OCA investigations involving a substantiated abuse or neglect finding against an alleged perpetrator when the abuse or neglect occurred to a child while in the care of a facility licensed, certified, operated, or contracted with OKDHS or OJA are processed for the Restricted Registry, per OAC 340:110-1-10.1; and OCA submits a copy of the report to the Office of Background Investigations.

(2) A copy of the investigation report is sent to the district attorney in the county where the suspected abuse or neglect occurred, per 10A O.S. § 1-2-105.

(3) When the victim is a child receiving OKDHS DDS services, OCA sends a copy of the report to the DDS director or the director's designee.

(aa)OCA investigative reports confidentiality. Persons receiving copies of OCA investigative reports regarding a child are bound by confidentiality provisions of 10A O.S. §§ 1-6-102 through 1-6-107.

Okla. Admin. Code § 310:678-3-5

Adopted by Oklahoma Register, Volume 42, Issue 7, December 16, 2024, eff. 11/1/2024, exp. 9/14/2025 (Emergency)