Library: Policy

340:110-1-47.1. Complaint investigations

Revised 6-1-22

(a) Legal basis. The Oklahoma Child Care Facilities Licensing Act (Act), Section 406 of Title 10 of the Oklahoma Statutes (10 O.S. § 406), mandates that Oklahoma Human Services (OKDHS) conduct a full complaint investigation alleging violation against the Act or Licensing requirements.

(b) Complaint receipt. Complaints may be made to Licensing, in writing, in person, by phone, or electronically. • 1

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

(d) Screening complaints. Licensing staff accepts a complaint for investigation when alleging:

(1) non-compliance with Licensing requirements;

(2) violation of the Act;

(3) unlicensed program operation; or

(4) abuse or neglect of a child in care.

(e) Disposition of complaints. On receipt of a complaint, Licensing staff determines a disposition, as described in (1) through (6) of this subsection.

(1) A complaint not meeting the criteria in (d) of this Section is discussed with the complainant and, when appropriate, a referral is submitted to another entity, such as local law enforcement, the Office of Juvenile Affairs (OJA), the Office of Client Advocacy (OCA), Child Welfare Services (CWS), or the Office for Civil Rights.

(2) A complaint alleging non-compliance with Licensing requirements or unlicensed program operation is investigated by Licensing. • 3

(3) A complaint alleging child abuse or neglect is immediately referred to the Child Abuse and Neglect Hotline with a copy of Form 07LC012E, Licensing Complaint. The referral is documented on the form. • 4 When an immediate response is not received, Licensing staff follows up the next OKDHS-business day to obtain a response.

(4) When a complaint alleges illegal activity by program personnel, including illegal drug activity in the child care facility, all referral information, including the complainant's name, is immediately referred to the OKDHS Office of Inspector General (OIG) and local law enforcement where the program is located.

(A) Referral follow ups are documented in writing, a copy is maintained in the program case record, and the programs supervisor is notified.

(B) Licensing staff follows-up with local law enforcement officials to determine and document the investigation's outcome.

(5) Information in a complaint received from another division within OKDHS or an agency responsible for monitoring residential child care programs or child-placing agencies, such as the Oklahoma Commission on Children and Youth (OCCY), OCA, the local health, or fire department, may be deemed valid when documented in writing by the agency representative. Licensing staff determines when the observation is a non-compliance. The program is advised of the report, requested to complete Form 07LC037E, Notice to Comply, when applicable, per Oklahoma Administrative Code (OAC) 340:110-1-47.2, and given an opportunity to respond.

(6) The programs supervisor is notified of a complaint when:

(A) the alleged non-compliance caused or could cause imminent risk of harm to a child in care;

(B) the program has repeated or serious non-compliance with requirements;

(D) referred to the Child Abuse and Neglect Hotline or local law enforcement; or

(E) receiving special attention, such as from the media or a legislator.

(f) Complaint risk levels. Licensing staff determines risk levels based on the degree of harm or danger to children in care. Risk levels are used to ensure investigations occur in a timely manner. • 6

(1) Risk level I complaints. Risk level I complaints indicate a child is in imminent risk of serious physical injury. The risk level is not influenced by the removal of a child from the program when other children remain in care. Investigations are initiated immediately or no later than 24-hours after receipt by Licensing unless awaiting OCA or local law enforcement investigation; excluding weekends and holidays when the program or agency is closed. Examples of non-compliances with licensing requirements include:

(A) alleged physical or sexual abuse;

(B) presence or use of illegal drugs while children are in care;

(D) children alone in the facility or in a vehicle without anyone present;

(E) facility temperatures;

(F) infant sleep environments;

(G) caregiver's threatening or impaired behavior;

(H) severe understaffing or severe over licensed capacity;

(I) child passenger restraints;

(J) Emergency Order violation;

(K) required personnel without current cardio-pulmonary resuscitation and first aid training;

(L) failure to obtain background investigations; or

(M) knowingly permitting access to children by individuals identified as restricted or Restricted Registry 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 10-calendar days of receipt by Licensing, unless requested by OCA or local law enforcement to delay the investigation. Examples of non-compliances with requirements include:

(A) leaving children with underage personnel;

(B) alleged physical abuse from personnel no longer working in the program;

(D) diapering or toileting;

(E) hazardous equipment;

(F) transporting without a valid driver license or liability insurance;

(G) lack of supervision; or

(H) minor understaffing or minor over licensed capacity.

(3) Risk level III complaints. Risk level III complaints do not indicate imminent danger and there are no injuries alleged. Serious non-compliances, per OAC 340:110-1-47.2, are not considered risk level III complaints. Investigations are initiated within 15-calendar days of receipt by Licensing including when a phone investigation is appropriate, per (h) of this Section. Examples of non-compliances with requirements include:

(A) inadequate meal service;

(B) quarterly vehicle maintenance;

(D) inappropriate use of television or videos; or

(E) inadequate facility cleanliness.

(g) The investigation. Licensing staff conducts a full investigation, obtaining sufficient information to determine a finding. • 7

(h) Phone or written investigation. With supervisory approval, Licensing staff may investigate a complaint by phone or written correspondence. The investigation discussion is documented on Form 07LC080E, Licensing Services Supplemental Information, including an agreed-on plan of correction, when necessary. A copy is provided to the operator.

(i) Unlicensed program investigations. When a complaint alleging operation of an unlicensed program is received, procedures, per OAC 340:110-1-54.1, are also followed.

(j) Child abuse and neglect complaints. On receipt of abuse or neglect allegations of a child in care, Licensing staff immediately notifies the programs supervisor and submits a referral to the Child Abuse and Neglect Hotline.

(k) Findings. After investigation completion, Licensing staff, in consultation with the programs supervisor, as appropriate, determines the complaint finding as substantiated or unsubstantiated.

(1) Substantiated. A substantiated finding is determined when some credible evidence indicates the program violated a Licensing requirement or the Act.

(2) Unsubstantiated. An unsubstantiated finding is determined when:

(A) insufficient evidence exists to fully determine whether a violation occurred; or

(B) no violation of a Licensing requirement or the Act occurred. • 8

(l) Documentation of findings. Upon investigation completion, Licensing staff:

(1) informs the programs supervisor the complaint investigation is ready for review;

(2) documents the findings; and

(3) notifies the provider of the findings in writing including:

(A) a summary of facts, per (o) of this Section; and

(B) Form 07LC037E, Notice to Comply; when applicable. • 8

(m) Heinous and shocking abuse findings. Per 10 O.S. § 406, when Licensing receives notification from OCA or CWS of heinous and shocking abuse findings by a person responsible for a child's health, safety, or welfare as defined, per 10A O.S. § 1-1-105, Licensing contacts the program or child-placing agency by email immediately or not later than one-business day after the substantiated finding notification. • 9

(n) Notice to Comply. When a complaint allegation is substantiated, Licensing staff advises the program to correct the violations immediately, using Form 07LC037E, following procedure, per OAC 340:110-1-47.2(c)(7). Licensing staff update the Licensing database with plan of correction information.

(o) Summary of facts. Licensing provides program directors or agency owners a summary of the facts used to evaluate and determine the complaint findings. • 10

(p) Complaint overview. Licensing staff completes an overview of completed complaint investigations in the Licensing database. This overview provides an investigation summary of how the complaint findings were determined, and is maintained in the case record's confidential section. • 11

INSTRUCTIONS TO STAFF 340:110-1-47.1

Revised 6-1-22

1. (a) When the complaint is made in person or by phone, Licensing staff assists the complainant by:

(1) advising of allegations representing non-compliance;

(2) responding to complainant's concerns; and

(3) discussing confidentiality, such as, the complainant's identity is kept confidential unless legal action or a referral to local law enforcement becomes necessary;

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

(5) informing the complainant about what action will be taken, such as Licensing staff making an unannounced visit or a referral to Office of Client Advocacy (OCA).

(b) When a referral is received from the Child Abuse and Neglect Hotline, Licensing staff reviews the information to determine if the referral was screened-out or accepted by OCA for investigation.

(1) When a referral is screened-out, Licensing staff determines if the:

(A) report was made by an outside entity. Allegations of non-compliance with Licensing requirements are considered a Licensing complaint, per Oklahoma Administrative Code (OAC) 340:110-1-47.1; or

(B) information was self-reported. Licensing staff follows up with the program to address possible areas of non-compliance using case management responses to non-compliant programs, per OAC 340:110-1-47.2.(d).

(2) When OCA accepts a referral for investigation, Licensing staff assists with the investigation when requested by the OCA investigator. The final report is reviewed for substantiated findings, personnel misconduct, and areas of concern violating Licensing requirements. Licensing staff follows up with the program using case management responses to non-compliant programs, per OAC 340:110-1-47.2(d).

2. The information requested is documented on Form 07LC012E, Licensing Complaint, and entered in the Licensing database by using complaint key words. The requested information includes the:

(1) date and time the complaint was received;

(2) program name, address, and phone number;

(3) complainant's name, address, phone number, and program relationship, such as personnel, parent of a child in care, or neighbor;

(4) complainant's source of information, such as a personal observation or information from another individual; and

(5) specific information regarding the complaint allegations including:

(A) a description of the circumstances;

(B) the names or identities of personnel involved;

(C) the name and age of the child involved or affected by the alleged non-compliance;

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

(E) the names of other individuals with relevant information; and

(F) if the complaint was discussed with the program.

3. The information is recorded as a complaint regardless of the caller's purpose. Licensing staff in the area where the program is located are notified as soon as possible, and Form 07LC012E, Licensing Complaint, is forwarded to Licensing staff. When referrals are received from Child Welfare Services (CWS) or OCA, Form 07LC012E is not completed.

4. The referral is documented on the bottom of Form 07LC012E, Licensing Complaint. Complaints referred to the Child Abuse and Neglect Hotline include those alleging harm or threatened harm to a child occurring through non-accidental physical or mental injury, sexual abuse, neglect, or failure or omission to provide protection from harm or threatened harm.

(1) When Licensing staff is unsure a complaint meets the criteria for an OCA investigation, the complaint is referred to the Child Abuse and Neglect Hotline and the decision to accept the referral is made by OCA staff.

(2) Sex play between children is referred to the Child Abuse and Neglect Hotline for investigation. Licensing investigates this type of allegation with regard to children's supervision.

5. Licensing staff follows-up with local law enforcement officials and the Office of Inspector General (OIG) to determine and document the investigation outcome. Prior to facility visits, Licensing staff informs and consults with OIG regarding the restrictions of individuals involved in the allegation.

6. When necessary, Licensing staff consults with the programs supervisor to determine the appropriate risk level, complaint initiation time frame, or follow-up based on:

(1) the program's case history;

(2) the length of time since the alleged incident occurred;

(3) the allegation's severity; including number and ages of children involved;

(4) Licensing staff's current workload and other pending complaint investigations; and

(5) necessary coordination with other agencies.

7. (a) The investigation includes (1) through (7) of this subsection.

(1) Licensing staff reviews complaint allegations. Whenever possible, prior to making program contact, Licensing staff reviews all appropriate Oklahoma Human Services (OKDHS) records to obtain other appropriate preliminary information.

(2) An unannounced visit to the program is conducted when risk level one complaints are identified, unless OCA has initiated a visit. The purpose of the visit and allegation descriptions are initially discussed with the operator using "key words." Licensing documents in discussion key words were discussed with the director, owner, or both, when applicable. Prior to the complaint investigation conclusion, the full allegation is explained and discussed with the operator. Licensing staff does not identify the complainant. Other acceptable follow up, as determined appropriate by Licensing staff, may include a phone call or email.

(3) Licensing staff considers necessity of a safety plan. Based on allegation severity or information gathered during the complaint investigation, Licensing staff discusses with the operator and documents on Form 07LC080E, Licensing Services Supplemental Information, appropriate methods of protecting children during the investigation. With State Office approval, Licensing staff may request the owner to voluntarily cease care, or require specific restrictions of contact with children for the alleged perpetrator pending the investigation outcome. The programs supervisor or designee is notified of all situations involving a request for voluntary cease care. When the owner refuses to cease care or adequately protect children and children are considered at imminent risk of harm, Licensing staff discusses and documents in discussion the possibility of an injunction or an Emergency Order.

(4) Licensing staff reviews available records, such as the case file, children's and personnel files and attendance records, restraint and injury logs, medical and transportation records, food program records, or local law enforcement reports.

(5) Interviews are conducted with the complainant, witnesses, and program residents, when necessary and appropriate, and others having relevant information, such as program personnel. Additional resident interviews are not conducted for Risk Level III complaints. When sufficient investigative information for determination of a finding is obtained through personnel interviews, observation, or available records and documents, additional resident interviews are not conducted. Interviews are no longer conducted when sufficient information is obtained to determine a finding. An interview:

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

(B) is scheduled at a time and location as to not present an undue hardship for the interviewee;

(C) is limited to questions relating to current complaint allegations;

(D) is generally a face-to-face contact between Licensing staff and an individual having relevant information. When an individual's comments and signature are documented on Form 07LC080E, Licensing Services Supplemental Information, a copy is provided to adult interviewees. A copy is not provided to the operator. All interviews are maintained in a confidential manner;

(E) is usually conducted in private and with one individual at a time. An exception may be made when:

(i) a witness accompanies Licensing staff;

(ii) a parent requests to be present when his or her child is interviewed; or

(iii) an individual chooses to have his or her attorney present; and

(F) may be conducted outside of the facility when:

(i) the director or operator is uncooperative;

(ii) an on-site interview places the interviewee at risk; or

(iii) information is gathered prior to discussion with the operator. Interviews with individuals outside of the facility are documented on Form 07LC080E, Licensing Services Supplemental Information, with copies provided to adult interviewees; and

(G) with a child is conducted after Licensing staff considers the child's age and verbal ability. It is preferable a witness accompany Licensing staff. Parental permission prior to interviewing a child in care is not required when investigating a complaint alleging non-compliance with licensing requirements.

(6) Facility observations in (A) and (B) are considered.

(A) When an allegation is associated with a specific time of day, for example, early morning understaffing, the facility visit is conducted at the time the incident is alleged to have occurred. Licensing staff documents observations by citing the specific conditions observed; such as, the director refused to allow Licensing staff to view the program's records, or there were 16 residents monitored by one personnel.

(B) When investigating a complaint at a facility, a complete monitoring visit is not required unless one is due. Staff-child ratios and supervision are documented on each visit on the monitoring checklist. When repeated or serious non-compliance are observed, a full-monitoring visit is conducted. Licensing staff documents compliance with those areas relating to the allegation.

(7) Documentary evidence obtained is entered in the program record and includes information, such as an Oklahoma Commission on Children and Youth (OCCY) report, medical and local law enforcement records, a signed statement, or photographs. When documentary evidence is obtained, it is entered in the case file.

(b) Following completion, Licensing staff provides a letter to the operator including the investigation findings and notice of further action, when applicable.

8. After initiating the complaint, Licensing staff continues to make progress in efforts to complete the investigation within 45-calendar days of receipt. The programs supervisor is consulted regarding extended time frames and documents the discussion on Form 07LC080E, Licensing Services Supplemental Information. Licensing staff enters the findings in the Licensing database.

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

(A) documents non-compliances in the Licensing database in investigative comments identifying items as "additional non-compliances";

(B) notifies the programs in writing of additional non-compliances; and;

(C) completes Form 07LC037E, Notice to Comply, when applicable.

(2) When a specific allegation within a "key word" is unsubstantiated, but a different non-compliance(s) within a "key word" category is identified, Licensing staff unsubstantiates the specific allegation and documents the new non-compliance. Understaffing is confirmed even when it is in an age group different from the allegation. Refer to (1) of this Instruction to document this circumstance.

(3) When the complaint allegations and findings were not given to the provider in writing, a letter is provided to the program or agency.

(4) Information not made part of the public file includes:

(A) Form 07LC012E, Licensing Complaint;

(B) CWS and OCA referrals; and

(C) interviews with personnel, children, collateral witnesses, and complainants.

(5) When information regarding a complaint, including complaint allegations, is requested by the public prior to completion of the investigation, Licensing staff explains that information regarding the allegation and findings is released after the investigation is complete.

(6) After the database is updated, indicating the investigation completion, complaint information including drug activity is available to the public, per OAC 340:110-1-55.

9. OCA or CWS notifies the statewide licensing coordinator and program supervisor of substantiated heinous and shocking abuse findings.

(1) Upon OCA or CWS notification, the program supervisor immediately:

(A) verifies the individual's program or agency association; and

(B) notifies the Licensing staff of the substantiated findings.

(2) Licensing staff:

(A) notifies the program or agency owner and operator of the findings by email and, when applicable, includes Form 07LC130E, Heinous and Shocking Abuse Notification;

(B) contacts the program or agency the next business day verifying:

(i) email receipt;

(ii) prohibitions for the perpetrator;

(iii) understanding of program or agency responsibility, and, when applicable:

(I) parent and legal guardian notification; and

(II) time frame for notifying Licensing of date of parent and legal guardian notification; and

(C) documents program or agency contacts on Form 07LC080E, Licensing Services Supplemental Information.

(3) If programs or agencies do not notify Licensing of parent and legal guardian notification within two-business days after expiration of the 72-hour time frame, Licensing staff contacts the program or agency to verify certified mail notification. Licensing documents program or agency contacts on Form 07LC080E, Licensing Services Supplemental Information.

(4) If programs or agencies have not notified parents and legal guardians within the 72-hour time frame, Licensing consults with the programs supervisor for appropriate action.

10. The summary of facts, on CCS letterhead, is approved by the supervisor before it is provided to the program, and indicates the:

(1) documents reviewed; and

(2) total number of individuals interviewed while identifying the program relationships, such as parents, personnel, children, and collateral or other agency personnel. Information provided protects the confidentiality of all individuals.

11. The overview is used by supervisors and State Office to review how Licensing staff determined the findings. The overview includes, the:

(1) number of individuals interviewed and program relationships;

(2) observations regarding the complaint allegations;

(3) documents and records reviewed;

(4) information used to determine the findings; and

(5) explanation of timeframes not within 45-calendar days.