Permanent Final Adoptions
TITLE 340. Department of Human Services
CHAPTER 5. Adult Protective Services
[OAR Docket #13-594]
RULEMAKING ACTION:
PERMANENT final adoption
RULES:
Subchapter 1. General Provisions
340:5-1-3 [AMENDED]
340:5-1-8 [AMENDED]
Subchapter 3. Reports of Maltreatment of Vulnerable Adults
340:5-3-4 [AMENDED]
340:5-3-6 [AMENDED]
Subchapter 5. Investigation of Adult Protective Services Referrals
340:5-5-3 through 340:5-5-4 [AMENDED]
340:5-5-6 [AMENDED]
(Reference APA WF 12-16)
AUTHORITY:
Director of Human Services; Section 162 of Title 56 of the Oklahoma Statutes (10A O.S. Section 162); and 43A O.S. Sections 10-105 and 10-108.
DATES:
Comment period:
January 2, 2013 through February 1, 2013
Public hearing:
None requestedAdoption:
February 8, 2013
Submitted to Governor:
February 14, 2013
Submitted to House:
February 14, 2013
Submitted to Senate:
February 14, 2013
Gubernatorial approval:
March 25, 2013Legislative approval:
Failure of the Legislature to disapprove the rule(s) resulted in approval on April 12, 2013.
Final adoption:
April 12, 2013Effective:
June 1, 2013SUPERSEDED EMERGENCY ACTIONS:
n/aINCORPORATIONS BY REFERENCE:
n/aANALYSIS:
The proposed permanent rule amendments to Subchapters 1, 3 and 5 of Chapter 5 amend the rules to: (1) change the division name and line of authority staff titles due to the reorganization of the Oklahoma Department of Human Services (OKDHS); (2) update terminology; (3) change timely completion of Adult Protective Services (APS) investigative reports for self-neglect referrals from 30 to 60 calendar days; and (4) add a notification requirement upon substantiated findings involving an administrator of a facility.
CONTACT PERSON:
Dena Thayer, Programs Administrator, Policy Management Unit, OKDHS, P.O. Box 25352, Oklahoma City, OK 73125, 405-521-4326.
PURSUANT TO THE ACTIONS DESCRIBED HEREIN, THE FOLLOWING RULES ARE CONSIDERED FINALLY ADOPTED AS SET FORTH IN 75 O.S., SECTION 308.1(A), WITH AN EFFECTIVE DATE OF JUNE 1, 2013:
SUBCHAPTER 1. General Provisions
340:5-1-3. Program coordination
Adult and Family Support Services Division, Adult Protective Services (APS) Unit, has responsibility for program planning, staff training, technical assistance, quality assurance, and policy development. Field Operations Division, area APS program field representatives (PFR)s district supervisors assist in this process by providing local support for APS staff. The APS program is implemented in the field through APS specialists in local Oklahoma Department of Human Services offices.
340:5-1-8. Complaints concerning the APS program
Complaints regarding an investigation or the provision of services may be submitted to the Oklahoma Department of Human Services (OKDHS) by telephone or in written form, including e-mailemail. Complaints regarding:
(1) Adult Protective Services (APS) policy and procedure are referred to the county district director who performs a case review. The countydistrict director sends a written response to the complainant within 45 calendar days stating the general findings of the review. If not satisfied with the countydistrict director's findings, the complainant may, within 30 calendar days of the date of the letter, submit a written appeal to the, OKDHS Adult and Family Support Services Division(AFS), APS Unit, P. O.PO Box 25352, Oklahoma City, OK 73125. A committee composed of Family Support Services Division and Field Operations DivisionAFS staff reviews the appeal and sends the complainant its the decision within 30 calendar days;
(2) possible inappropriate treatmentconduct by an APS specialist or APS specialist IV are referred to the appropriate countydistrict director for action; and
(3) involuntary services are handled through the appropriate judicial system.
SUBCHAPTER 3. Reports of Maltreatment of Vulnerable Adults
340:5-3-4. Reports under the jurisdiction of agencies other than local Adult Protective Services (APS)
Some reports of alleged maltreatment of vulnerable adults are not investigated by local Adult Protective Services (APS) staff.
(1) Reports of alleged victims who are residents of Northern Oklahoma Resource Center of Enid (NORCE), Robert M. Greer Center (Greer), or Southern Oklahoma Resource Center (SORC) of Pauls Valley, or former residents of Hissom Memorial Center. APS staff refer reports that allege a current resident of NORCE, Greer Center, or SORC has suffered maltreatment by an employee of the facility or maltreatment of a former resident of Hissom Memorial Center by a current caretaker to the Oklahoma Department of Human Services (OKDHS) Office of Client Advocacy (OCA).
(2) Reports of maltreatment by persons providing services to alleged victims receiving services from a community services worker, a community services provider, a SoonerCare (Medicaid) personal care services provider, aor Medicaid personal care assistant (MPCA). APS staff refer reports to the OKDHS OCA when the alleged victim receives services from a community services worker, a community services provider, a SoonerCare (Medicaid) personal care services provider, or a MPCA, as those terms are defined in Section 1025.1 of Title 56 of the Oklahoma Statutes.
(3) Alleged victims of maltreatment in hospital settings. APS staff referrefers reports of alleged maltreatment of vulnerable adults who are receiving services in medical hospitals, rehabilitation facilities, or private psychiatric hospitals by staff of the facility to the Oklahoma State Department of Health (OSDH), Protective Health Services, Medical Facilities Service
(4) Alleged victims of maltreatment by staff of the Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) and its contracted providers. APS staff refer reports of alleged maltreatment of a vulnerable adult by staff of a public or private community mental health agency to the Advocacy Division of ODMHSAS. If ODMHSAS declines to conduct an investigation, the report may be referred back to the local APS office.
(5) Reports alleging maltreatment of residents by staff of nursing facilities. APS staff send reports of alleged maltreatment of nursing facility residents to the Adult and Family Support Services Division(AFS), APS Unit, Long Term Care Investigations Section. These reports are also sent to the OSDH, Protective Health Services.
(6) Reports involving local, state, or federal correctional facilities. APS staff refer reports of abuse, neglect, or exploitation of residents by staff of state or federal public hospitals, jails, prisons, or similar facilities to the facility's regulatory department for investigation and to the local district attorney.
(7) Reports involving deceased alleged victims. Reports of maltreatment of persons who are already deceased at the time the report is made are not accepted by APS. Reporters are referred to the state or local Office of the Medical Examiner, local law enforcement, or, if the death occurred in a nursing facility, to the Medicaid Fraud Control Unit in the Office of the Attorney General.
340:5-3-6. Screening APS reports
(a) Time frame for screening Adult Protective Services (APS) reports. APS specialist IVs are responsible for screening new reports on the APS Computer System on a regular basis throughout the day to identify emergency situations and to ensure assignment to the correct human services center (HSC)county office.
(b) Responsibility for screening reports. APS specialist IVs are responsible for screening reports and either accepting them as APS referrals or classifying them as Information and Referral. When a request is accepted as an APS referral, the APS specialist IV determines whether an emergency response is indicated, whetherif the referral is employee related, and which APS specialist is assigned the referral. APS specialist IVs complete screening in a manner to facilitate the timely initiation of the investigation as defined inper OAC 340:5-5-2.
(c) Reports involving domestic violence. APS situations are often forms of domestic violence. Reports received alleging maltreatment of an adult by a spouse or other family or household member are considered protective services requests ifwhen the alleged victim is vulnerable as defined inper OAC 340:5-1-6.
(d) Reports involving OKDHS employees or their families. Specific procedures are followed when a report of maltreatment is received whichthat involves an employee of the Oklahoma Department of Human Services (OKDHS)employees.
SUBCHAPTER 5. Investigation of Adult Protective Services Referrals
340:5-5-3. Elements of an investigation
Although the investigation process may vary depending on the initial allegations and other factors, all Adult Protective Services (APS) investigations include paragraphs (1) through (10).
(1) Notification of local law enforcement. Local law enforcement is provided notification of all APS referrals assigned for investigation.
(2) Efforts to locate and notify others. APS specialists must make every reasonable effort to locate and notify the alleged victim's (AV's) caretaker, guardian, and next of kin.
(3) Visits to and interviews with the vulnerable adult. As mandated by Section 10-105(C)(1)(a) of Title 43A of the Oklahoma Statutes (43A O.S. Section 10-105(C)(1)(a)) each APS investigation includes at least one visit and private interview with the vulnerable adult, and may include as many as are necessary to reach a conclusion and determine what, if any, protective services are needed.
(4) Consultation with others. The APS specialist interviews other people who have or can reasonably be expected to have pertinent knowledge about the AV's circumstances during the investigation, including any alleged perpetrator (AP) of maltreatment.
(A) Consultation includes medical, psychiatric, or other evaluations as necessary to assist in the determination of a vulnerable adult's decision-making capacity and need for services.
(B) The AV's permission is not required for these contacts.
(5) Photographs. The APS specialist may take still photographs or video recordings to document injuries to the vulnerable adult, or conditions in the adult's residential environment which have resulted or may result in an injury or serious harm to the adult.
(6) Other relevant data. The APS specialist collects any data relevant to the situation being investigated; including records, to arrive at a finding on the referral. If the APS specialist is denied access to pertinent records, documentation, or other information relevant to the investigation, the Oklahoma Department of Human Services (OKDHS) may petition the court for an order allowing access.
(7) Determining the adult's decision-making capacity. OKDHS is mandated by 43A O.S. Section 10-106(C) to determine a vulnerable adult's risk and needs along with the vulnerable adult's capacity to consent to receive services, especially with regard to the need for involuntary services. Each investigation includes an evaluation of the vulnerable adult's decision-making capacity.
(A) Information is obtained from medical or psychiatric sources, ifwhen available, to assist in the determination. In making thisthe determination, the APS specialist assesses and considers:
(i) the vulnerable adult's short and long term memory;
(ii) the vulnerable adult's executive functioning by theirhis or her ability to plan and execute a plan;
(iii) the vulnerable adult's ability to recognize risk factors;
(iv) denial of problems by the vulnerable adult or caretaker;
(v) the vulnerable adult's executive functioning by his or her ability to understand and follow directions;
(vi) indicators of affective disorders, such as depression or bipolar disorder; and
(vii) indicators of substance abuse, dementia, delirium, psychosis, traumatic brain injury, uncharacteristic socially inappropriate behaviors, impaired decision-making, and other factors.
(B) The APS specialist's assessment of a vulnerable adult's mental capacity to consent to protective services takes into account the vulnerable adult's awareness of the:
(i) the limitations and deficiencies in the physical environment;
(ii) the vulnerable adult's own physical or mental limitations;
(iii) resources available to assist in meeting the vulnerable adult's needs; and
(iv) the consequences to the vulnerable adult if nothing is done to improve the situation.
(C) If a vulnerable adult is deficient in all or most of the areas in (B) of this paragraph, he or she may lack the capacity to consent to protective services and it may be appropriate to petition the district court for an order authorizing the provision of needed services.
(D) If a vulnerable adult expresses awareness of all four areas in (B) of this paragraph, it is likely that the present circumstances are the vulnerable adult's choice, though in some cases a vulnerable adult might express awareness in these areas and still lack the capacity to consent to provision of services.
(E) If a vulnerable adult appears unaware of the consequences of the present situation, and an emergency exists, legal intervention is appropriate.
(8) Evaluation to determine the need for protective services. The evaluation consists of the APS specialist's analysis and consultation with the APS specialist IV of all evidence gathered during the initial phases of the investigation. The evaluation includes consideration of whether:
(A) the vulnerable adult needs protective services. If so, the need for protective services is documented to include the least restrictive services that will meet the person's needs;
(B) services that are identified as needed are available through OKDHS or in the community, and the sources and manner in which they can be provided. Options are explored with the vulnerable adult;
(C) the vulnerable adult is capable and willing to obtain services for himself or herself;
(D) the vulnerable adult can pay for needed services or is eligible for public assistance programs;
(E) a caretaker or guardian is willing to provide or agree to the provision of needed services; and
(F) the vulnerable adult desires the services.
(9) Completion of investigative report. From the date an APS referral is received, the APS specialist completes the investigative report within 30 calendar days for self neglect referrals and 60 calendar days for referrals involving an AP. The APS specialist IV may extend the time frame for completion of an investigation for an additional 30 calendar day period when it is in the vulnerable adult's best interest to do so. To complete the investigation, the APS specialist:
(A) completes necessary interviews and assessments including identification of any immediate service needs;
(B) completes all final documentation;
(C) submits a report to the local district attorney; and
(D) submits a report to the court of jurisdiction if the alleged victim is currently under guardianship or conservatorship; and
(DE) makes a determination of substantiated or unsubstantiated based on the definitions of terms in OAC 340:5-1-6.
(10) Findings. The APS specialist, in conjunction with the APS specialist IV, makes a final determination of the investigative process on each allegation contained in the APS referral. Each allegation is determined to be substantiated or unsubstantiated and the investigation documented in accordance withper OAC 340:5-5-5. The APS specialist IV notifies the appropriate areadistrict director and the APS field administrator immediately of substantiated referrals in which an OKDHS employee is named as perpetrator.
(11) Follow-up. The APS specialist, in consultation with the APS specialist IV, is responsible for determining what follow-up is needed in each case investigated.
(A) On cases not requiring court-ordered involuntary services, follow-up needs are determined on a case-by-case basis.
(B) For referrals that resulted in a vulnerable adult receiving involuntary services, OKDHS is responsible for ensuring basic needs for safety and security are met as required by the court. The APS specialist monitors the delivery of court-ordered protective services and continues to assess the need for additional services determined by the changing needs of the vulnerable adult. At least one follow-up visit is made at 30 calendar days regardless of whether OKDHS continues to hold temporary guardianship.
(i) If the vulnerable adult's situation is stable or improving after 30 calendar days and OKDHS no longer holds guardianship, the case is closed.
(ii) If OKDHS continues to hold guardianship after 30 calendar days, a follow-up visit to the vulnerable adult is required at least once each 30 calendar days for the duration of the temporary guardianship.
(iii) If the vulnerable adult's situation is deteriorating at any time during the follow-up period, the service plan is reassessed and changed as needed with the concurrence of the court.
(iv) Follow-up visits to vulnerable adults receiving involuntary services are made at least every 30 calendar days, but may be made as often as needed to comply with APS specialist guardianship responsibilities and to monitor the vulnerable adult's situation.
(v) If an out-of-home placement is used as a temporary or long term solution to identified needs, the APS specialist has regular contact with the vulnerable adult for the duration of the court ordered temporary guardianship. The frequency of this contact is determined by the APS specialist and APS specialist IV's determination of the specific situation and the availability of an independent objective third party to provide follow-up and notification to the APS specialist. The APS specialist visits the vulnerable adult at least once every 30 calendar days while the vulnerable adult is under APS guardianship. The APS specialist documents information from follow-up visits in the APS Computer System and makes it available to the court on review of the guardianship. Follow-up visits may be made as frequently as the APS specialist and specialist IV determine they are needed, based on an individual vulnerable adult's situation. For vulnerable adults placed:
(I) in medical facilities, such as geriatric psychiatric units or medical hospital for care, the worker follows-up with the vulnerable adult's assigned social worker;
(II) in group homes, residential care facilities, and assisted living centers, the APS specialist may contact other professionals not associated with the facility who provide treatment or services to the vulnerable adult for follow-up information every 30 calendar days or more often as indicated;
(III) at any facility owned or operated by OKDHS, the APS specialist makes face-to-face visits every 30 calendar days with interim contacts with the social work staff or more often as indicated; and
(IV) at any type of nursing home, the APS specialist visits the vulnerable adult, at least once every two weeks during the first month of placement to check for changes in the vulnerable adult's condition, such as injuries, signs of over-medication, and cognitive state. The APS specialist discusses concerns with the nursing home administrator or director of nursing, and the APS specialist IV. After the first month, the APS specialist visits the vulnerable adult at least once every 30 calendar days, reviews the nursing home charts and incident reports, and discusses care needs with the staff and vulnerable adult's family, if available.
(C) The APS specialist may determine, as a result of follow-up contacts, that further placement options need exploring. This may be the result of inappropriate action on the part of the provider, current information about the facility's ability to provide care for the vulnerable adult, or the facility's request to relocate the vulnerable adult.
(i) Placement alternatives are determined in accordance with this Section and approved by the specialist IV, countyand the district director, and the area APS program field representative (PFR).
(ii) The court appointed attorney for the vulnerable adult and the family is notified of the problems and the alternatives that have been developed.
(iii) The APS specialist submits a written report of the change of placement to the court, with a copy of the motion to the vulnerable adult's family and attorney of record.
(D) The APS specialist makes frequent contact with vulnerable adults remaining at home in temporary guardianship at a minimum of every 30 calendar days to assure thatensure the established service plan meets vulnerable adult's safety and needs are being met by the established service plan. The APS specialist:
(i) makes modifications as needed to the service plan as well as provision of services by providers;
(ii) evaluates the quality of care and the method of contact on a case-by-case basis depending on the individual needs of the specific vulnerable adult including a face-to-face visit every 30 calendar days; and
(iii) submits reports at the request of the court or a minimum of every 30 calendar days.
(E) In the event the vulnerable adult is placed in a facility out-of-county, the APS specialist IV immediately contacts the APS specialist IV in the county of placement to notify the receiving county of the placement and that follow-up activities pursuant to this paragraph must be provided by the receiving county.
(i) The APS specialist in the county where the vulnerable adult is residing is the workerspecialist designated to provide follow-up services for temporary guardianship cases.
(ii) The resident county APS specialist is responsible for all issues that require written consent and other problems or concerns and acts in coordination with the APS specialist in the county of court jurisdiction for reporting to the court as required by the court order with a minimum of every 30 calendar days.
(iii) The APS specialists and specialist IVs from both counties discuss and determine the best course of action for renewals of temporary guardianships.
(I) The decision takes into account the vulnerable adult's specific situation, the family and their desires, the availability of the courts in the two counties, and the advice of the vulnerable adult's court appointed attorney, and the attorney(s) representing OKDHS in the matter.
(II) The area APS PFRdistrict director, FSSDAdult and Family Services (AFS) APS Unit, and attorneys for the OKDHS Office of General Counsel are consulted as needed for assistance in determining the best course of action.
340:5-5-4. Special considerations during investigations
(a) Referrals regarding members of Indian tribes. Referrals are accepted for an alleged victim (AV) who is a tribal member according to the Protective Services for Vulnerable Adults Act as set forth in Sections 10-101 through 10-110 of Title 43A of the Oklahoma Statutes (43A O.S. Sections10-101 through 10-111). The Adult Protective Services (APS) specialist provides or arranges voluntary or involuntary services as indicated for a vulnerable adult regardless of whether the adult resides on tribal land.
(b) Referrals involving two or more counties. If a referral involves two or more counties, as when the AV lives in one county and the alleged perpetrator (AP) in another or when the AV moves either temporarily or permanently to another county before the investigation has been completed, local APS staff from both human services centers (HSCs)county offices are involved in the investigation.
(c) Referrals involving Soonercare (Medicaid) fraud. When an APS investigation indicates fraud by a provider receiving Medicaid funds, APS staff immediately notifies the Medicaid Fraud Control Unit (MFCU) in the Office of the Oklahoma Attorney General. APS cooperates with any investigation by MFCU. If MFCU declines to investigate, APS staff completes the investigation and sends a summary report to MFCU upon completion of the investigation.
(d) Referrals involving persons and provider agency employees. Care providers who may be subject to APS investigation include, but are not limited to, home health providers, adult day care centers, independent living centers, residential care facilities, and assisted living centers.
(1) These agency investigations include all the elements of an APS investigation, with special emphasis placed on:
(A) interviewing agency staff and other residents or participants who may have knowledge of the reported incident;
(B) obtaining copies of applicable charts and records;
(C) reviewing medication lists and schedules;
(D) taking photographs;
(E) examining habilitation or other care plans;
(F) examining financial records and other money management documentation;
(G) reviewing time schedules and time sheets; and
(H) requesting any other information needed to complete the investigation.
(2) If assistance is needed in assessing medical issues in these cases, involvement of the OKDHS long-term care nurse may be requested.
(3) Any corrective action plan on the part of the provider agency becomes a part of the APS case record. If the provider agency fails to cooperate in addressing the substantiated elements of the investigation, APS staff notifies the licensing agency, any appropriate governing board, and the district attorney's (DA's) office of the failure to cooperate.
(e) Referrals involving other licensed or certified persons. APS staff sends findings to any state agency with concurrent jurisdiction over persons or issues identified in the investigation, including, where appropriate, the Oklahoma State Department of Health (OSDH), the Oklahoma Board of Nursing, and any other appropriate state licensure or certification boardboards, agency agencies, or registryregistries.
(f) Referrals alleging exploitation. When referrals involve large amounts of funds,resources, or the need to access complex records regarding financial transactions, the APS specialist is authorized to request assistance from the OKDHS Office of Inspector General (OIG). If OIG declines to investigate, the APS specialist completes the investigation. Protective services that may be provided in cases of exploitation include:
(1) changing the representative payee;
(2) freezing all assets of the vulnerable adult;
(3) petitioning the court for an order allowing access to records;
(4) redirecting or stopping the flow of the vulnerable adult's assets into the alleged perpetrator's accounts; and
(5) stopping perpetrator access to the alleged victim's account(s).
(g) Persons referred to OKDHS by the courts. Courts are not authorized to remand criminal defendants to OKDHS based on a finding of lack of competency. Courts are authorized to refer the alleged incompetent defendant to OKDHS for consideration of voluntary assistance or conditionally release the incompetent defendant according to 22 O.S. Section 1175.6(b)(B). In order to qualify for such disposition, the court must make findings described in (1) or (2) of this subsection.
(1) Referral for voluntary services or conditional release occurs when the court finds that the person is incompetent for reasons other than the AV is a person requiring treatment under 43A O.S. and is found not to be dangerous.
(2) When a court, the DA, or the attorney for a criminal defendant notifies the APS specialist that a referral for voluntary OKDHS services or conditional release has been made, the APS specialist obtains a copy of the order from the person making the referral. If, after evaluation, it appears to the APS specialist the AV may also be developmentally disabled, the APS specialist immediately contacts the Developmental Disability Disabilities Services Division (DDSD) Area Intake office and requests their involvement in the process of determining in consultation with the Office of General Counsel if voluntary services are available and adequate or whether to propose a plan of services for conditional release. This is a joint effort between the APS specialist and the DDSD case manager.
(h) AV receiving services from DDSD. When an AV is receiving or may be eligible for services from DDSD, the APS specialist contacts the appropriate DDSD Area Intake office to coordinate activities to enhance the AV's safety.
(i) Referrals involving residents of residential care facilities, assisted living facilities, and continuum ofadult day care facilities. The APS specialist sends a copy of the final investigative report to OSDH. Upon completion of an investigation involving an administrator named as the alleged perpetrator and the findings are substantiated, the APS specialist IV notifies the Oklahoma State Board of Examiners for Long Term Care Administrators (OSBELTCA).
340:5-5-6. Provision of adult protective services (APS) to vulnerable adults receiving APS services
(a) Voluntary protective services. Protective services may be provided on a voluntary basis when a vulnerable adult consents to provision of services, requests services, and is willing to allow the Adult Protective Services (APS) specialist to provide or arrange for services as authorized by Section 10-106 of Title 43A of the Oklahoma Statutes (43A O.S. Section 10-106).
(b) Payment for protective services. The cost of providing voluntary or involuntary protective services is borne by the vulnerable adult if the APS specialist determines that the person is financially able to make payment or by any private or public programs for which the vulnerable adult is eligible. If a caretaker controls the person's funds and refuses to pay for necessary services, this may be construed as caretaker interference and is handled as described in (3) of this subsection.
(1) Payment for voluntary services. If voluntary services are required to meet an emergency need and no other payment source is available, the APS specialist follows procedures described in (3) of this subsection. In cases where the services are not to meet an emergency need, the APS specialist arranges for voluntary services if:
(A) services can be provided free of charge;
(B) the vulnerable adult has funds and agrees to pay for the services; or
(C) there is a public or private assistance program available to pay for the services.
(2) Payment for involuntary services. Payment for involuntary protective services is made from the vulnerable adult's funds only upon order of the court. If payment is required for involuntary services, procedures described in (3) of this subsection are followed if:
(A) no funds are available from the vulnerable adult's assets; and
(B) no private or public payment source is available.
(3) Payment for emergency protective services. The Oklahoma Department of Human Services (OKDHS) maintains a limited APS Emergency Fund that may be accessed only when specific criteria are met. This fund is used as a short-term measure for crisis situations until other arrangements are made.
(c) Court-related services. All petitions or motions filed with the court regarding a vulnerable adult require the signature of the district attorney (DA), assistant district attorney (ADA), or OKDHS Office of General Counsel attorney.
(d) Non-cooperation of caretaker. When a vulnerable adult consents to receive protective services, but the caretaker refuses to allow the provision of services, OKDHS may petition the court for an injunction prohibiting the caretaker from interfering with the provision of protective services in accordance with subsection (e).
(e) Petitioning the court - order enjoining caretaker. When the vulnerable adult's caretaker refuses to allow the provision of protective services to which the vulnerable adult has consented or otherwise interferes in the provision of services, OKDHS may petition the court for an Order to Enjoin Caretaker.
(f) Refusal to consent to protective services. If a vulnerable adult does not consent to the provision of needed services, or withdraws consent after it is given, the APS specialist documents the vulnerable adult's refusal in the case narrative or on Form 08AP002E, Adult Protective Services Report of Investigation. Services are terminated unless OKDHS determines that the person lacks capacity to consent. In that case, the APS specialist considers action as outlined inper OAC 340:5-1-4.
(g) Religious beliefs. A vulnerable adult has the right to depend on spiritual means for healing through prayer, in accordance with the practices of a recognized religious method in accordance with the tenets and practices of said place of worship as mandated by 43A O.S. Section 10-103(B).
(h) Involuntary protective services. Involuntary protective services are authorized by 43A O.S. Section 10-107. If a vulnerable adult is suffering from abuse, neglect, or exploitation that presents a substantial risk of death or immediate and serious physical harm to self, or significant and unexplained depletion of the adult's estate, but lacks the capacity to consent to receive protective services and no consent can be obtained from anyone acting as caretaker, the services may be ordered by the court on an involuntary basis. In accordance with 43A O.S. Section 10-107(B)(1), the court authorizes provision of specific services that the court finds least restrictive of the rights and liberty while consistent with the welfare and safety of the person involved.
(i) Petitioning the court - emergency order for involuntary protective services. OKDHS may petition the court for an order to provide emergency protective services. The petition is made in the county of the vulnerable adult's residence or in a county where any of the protective services are provided.
(1) If the court issues an emergency order to provide protective services, the order includes the appointment of a temporary guardian for the person in need of services. The temporary guardian may be either OKDHS or an interested person. The order gives the temporary guardian authority only to consent to the specified protective services on behalf of the person.
(2) The vulnerable adult, temporary guardian, or any other interested person may at any time petition the court to have the emergency order set aside or modified.
(j) Do not resuscitate (DNR). In accordance with 43A O.S. Section 10-108(A), only the court may make decisions regarding the granting or denying of consent for a DNR order, the withdrawal of hydration or nutrition, or other life-sustaining treatment.
(k) Notice to recipient. The court sets a date to hear the case. The hearing is scheduled within five days of the date the judge signs the notice to the recipient of protective services. The vulnerable adult must receive notice 48 hours in advance of the hearing. Notice may be waived by the court in emergency cases, as described in (2) of this subsection.
(1) A court order is issued showing OKDHS has petitioned the court for an order to provide protective services, and giving the date, time, and place of the hearing. The order specifies who serves the notice to the vulnerable adult.
(2) When petitioning the court for an order for emergency protective services, OKDHS may file a motion to waive notice if there is a risk that immediate and reasonably foreseeable death or serious physical harm to the person will result from a delay. This action is authorized by 43A O.S. Section 10-108(D). In response, the court may enter a 72-hour verbal order if not during regular court hours or issue a limited order during regular hours and order written notice be served on the vulnerable adult and attorney, if known, of a hearing to be held within that 72-hour period.
(3) If the hearing is declined, the court may either terminate the emergency temporary guardianship or enter a temporary 30-day order to provide involuntary protective services.
(l) Emergency services responsibilities for out-of-home placements. As a result of a substantiated investigation, the APS specialist develops a service plan to address the identified needs and safety issues.
(1) All out-of-home placements, including any change of placement, of vulnerable adult's under APS guardianship, are reported to and subject to approval of the court. Only protective services that are necessary to remove the conditions immediately threatening the life and well-being of the person are ordered.
(A) Protective services that may be authorized by an emergency court order may include a change of residence only if the court gives specific approval for such action and names the facility in its order.
(B) Emergency placements may be made to nursing homes, personal medical institutions, other home placements, or other appropriate facilities that provide services appropriate for the vulnerable adult's age and condition.
(C) Emergency placement shallis not be made or construed as an alternative to emergency detention and protective custody as authorized under 43A O.S. Section 5-206, et seq., or made or construed as an alternative to involuntary commitment under 43A O.S. Section 5-410, et seq., when the person otherwise meets the criteria for involuntary commitment.
(D) Services provided to vulnerable adults are provided in a setting that is segregated from residents of a facility who have been determined to be a danger to others.
(2) When the service plan recommends out-of-home placement for safety, health, and care needs, the APS specialist discusses thisthe plan with the vulnerable adult. The vulnerable adult is provided with all the information necessary to make an informed decision. This may include visits to a variety of placement options arranged or facilitated by the APS specialist. The vulnerable adult's family, if appropriate and approved by the vulnerable adult, is included in the planning stages. The vulnerable adult or family is provided with all the information available to the APS specialist regarding the quality of care provided by the identified and selected placement.
(3) Information on current quality issues of specific nursing facilities are obtained from a variety of sources to determine the appropriateness of a facility for a vulnerable adult receiving APS services. Placements are determined by the local APS specialist and APS specialist IV, with approval from the countydistrict director and area APS program field representative (PFR). If a facility has any Oklahoma State Department of Health (OSDH) deficiencies at or above the actual harm level, or has had more than three substantiated Long Term Care Investigations (LTCI) reports in the past year, the placement must be approved by the Adult and Family Support Services Division (FSSD)(AFS)APS Unit.
(m) Restricted visitation. Supervised or restricted visitation with the vulnerable adult may be put in place only by court order as mandated in 43A O.S. Section 10-111 when:
(1) consistent with the welfare and safety of a vulnerable adult; or
(2) the vulnerable adult needs protection as the OKDHS investigation determined that maltreatment occurred.
(n) Time limits for providing involuntary emergency protective services. Protective services under an emergency court order other than a 72-hour order may be provided for 30 calendar days. If the APS specialist determines protective services are required past this 30-day period, a petition is filed for continuation of involuntary protective services in accordance with (o) of this Section.
(o) Continuation of services. Continuation of services is authorized by 43A O.S. Section 10-108(L).
(1) If, upon expiration of the original 30-day30 calendar day order, the vulnerable adult continues to require protective services, OKDHS immediately files a motion for the court to order either or both:
(A) appointment of a guardian; and
(B) placement of the vulnerable adult in a nursing home, personal medical institution, home placement, or other appropriate facility.
(i) Emergency placement shallis not be made or construed as an alternative to emergency detention and protective custody as authorized under 43A O.S. Section 5-206, et seq., or made or construed as an alternative to involuntary commitment under 43A O.S. Section 5-410, et seq., when the person otherwise meets the criteria for involuntary commitment.
(ii) Services provided to vulnerable adults are provided in a setting that is segregated from residents of a facility who have been determined to be a danger to others.
(2) Before the court enters a 180 calendar day order for continued protective services, the court directs that an evaluation of the vulnerable adult is conducted and submitted to the court within 30 calendar days at a review hearing. The evaluation shall includeincludes at least:
(A) the address where the person resides and the name of any persons or agencies presently providing care, treatment, or services;
(B) a summary of the professional treatment and services provided the person by OKDHS or other agency, if any, in connection with the problem creating the need for protective services; and
(C) a medical, psychological or psychiatric, and social evaluation and review, including recommendations for or against maintenance of partial legal rights and recommendations for placement consistent with the least restrictive environment required.
(3) The original order continues in effect until the evaluation is submitted and the hearing is held on the motion.
(4) Notice of this hearing is served as described in subsection (k) of this Section.
(5) The APS specialist is responsible for assembling the required information and submitting it to the court of jurisdiction.
(6) When an investigation indicates that the vulnerable adult is likely to need assistance with his or her affairs for an extended period of time, consideration is given to identifying a relative, friend, or other person interested in the well-being of the vulnerable adult to serve as permanent guardian. Any person interested in the welfare of a person believed incapacitated or partially incapacitated may file a guardianship petition with the court. Procedures for filing the petition are given in 30 O.S. Section 3-101, the Oklahoma Guardianship and Conservatorship Act. Interested persons are referred to the office of the district court for further information and assistance.
(7) If the alleged victim's mental state is in question, the APS specialist may request the court to order a psychological or psychiatric evaluation.
(p) Continuation of services for an additional period. If after the hearing the vulnerable adult is found in need of continued protective services, the court issues an order to continue the temporary guardianship to provide specified protective services for an additional period not to exceed 180 calendar days, as authorized by 43A O.S. Section 10-108. If after the 180 calendar days the vulnerable adult is still found in need of protective services, the court may renew the order every 180 days as needed.
(q) Sale of real property. In the event that temporary guardianship extends for more than one year or the vulnerable adult owns real property that must be sold in order to qualify for SoonerCare (Medicaid), OKDHS may as temporary guardian sell the real property of the vulnerable adult pursuant to the provisions of the Oklahoma Guardianship and Conservatorship Act and as directed by the OKDHS Office of General Counsel. The fact that the vulnerable adult would be in jeopardy for receipt of SoonerCare (Medicaid) if the property was not sold shall beis stated in the court order directing the sale of the real property.
(r) Sale of personal property. The court may issue an order authorizing OKDHS to sell personal property of a vulnerable adult when additional resources are required to pay for necessary care for the vulnerable adult.
(s) Responsibilities of the temporary guardian of the person or estate. The APS specialist as temporary guardian is responsible for ensuring, to the extent possible, protection of the vulnerable adult residence, resources, and belongings. This includes:
(1) securing the residence, checking and gathering the mail, and feeding or arranging for care for the vulnerable adult's domestic animals or livestock;
(2) inventorying the vulnerable adult's home and personal property, using a camera where available.
(A) For enhanced accountability a minimum of two people must be present during the inventory, one of whom is a law enforcement representative or non-OKDHS employee.
(B) All persons present during the inventory must sign a document attesting to the authenticity of the inventory and/or the photographic record noting the date and their professional affiliation;
(3) establishing an account at a local financial institution and depositing any cash and uncashed checks; and
(4) securing other valuables located during the inventory. The APS specialist:
(A) arranges to have the locks changed or padlocks the residence to secure it from intrusion, if necessary; and
(B) advises all parties that no one is allowed to enter the residence unless accompanied by aan OKDHS representative of OKDHS, for as long as the temporary guardianship is in effect.
(t) Additional responsibilities of temporary guardian of the estate. The APS specialist responsible for the temporary guardianship of the estate:
(1) opens a guardianship account in a local financial institution and regularly collects and deposits monies due to the vulnerable adult;
(2) submits an accounting to the court as ordered by the court, no less than annually;
(3) works with the court, the vulnerable adult's attorney, the DA, and the OKDHS Office of General Counsel to obtain a professional accountant to manage the estate; and
(4) absent the availability of professional financial management, is responsible for regular financial activities as dictated by the vulnerable adult's circumstances that include, but are not limited to, the timely:
(A) payment and documentation of the vulnerable adult's expenses, and other bills as they occur.
(B) deposit of funds received;
(C) redirection of incoming funds to the new account; and
(D) protection of existing accounts.
(u) Responsibility of APS specialist - involuntary protective services. In cases where temporary guardianship of the person has beenwas granted to OKDHS, the APS specialist provides, arranges, or facilitates the protective services ordered by the court. This may include, but is not limited to:
(1) hiring of in-home caregivers to provide in-home care and protection for the vulnerable adult;
(2) placement in a medical facility for treatment of health related problems;
(3) placement in a safe and anonymous location;
(4) placement in a facility for either short or long term care needs. Long term care facilities include:
(A) residential care facilities;
(B) group homes;
(C) nursing homes;
(D) intermediate care facilities for persons with mental retardation;
(E) assisted living centers;
(F) skilled nursing facilities; or
(G) any other type of facility licensed to provide 24-hour care and/or services for vulnerable adults;
(5) making application or completing reviews for any state or federal programs on behalf of the vulnerable adult for which he or she is or may be eligible to receive; or
(6) making arrangements for facilities to be paid from the vulnerable adult's funds or resources.
(v) Responsibility of APS specialist - emergency out-of-home placement - ex-parte hearing. When an emergency situation requires immediate placement, the APS specialist places the vulnerable adult in a licensed facility that, to the best of the APS specialist's knowledge, provides the required services needed to ameliorate the current emergency situation. Reasons for this choice are documented in the case record and provided to the court at the 72-hour hearing.
(w) Enforcement of involuntary court orders. To enforce an involuntary order of protective services, 43A O.S. Section 10-108 provides that the court may order:
(1) forcible entry of the premises of the vulnerable adult to be protected;
(2) transportation by law enforcement of the vulnerable adult to another location; or
(3) the eviction of a person from any property owned, leased, or rented by the vulnerable adult and restricting that person from further access to any property of the vulnerable adult.
(x) Dismissal of involuntary court orders. When the vulnerable adult is subject to an involuntary court order and OKDHS serves in the role of temporary guardian, after the temporary order has expired, the APS specialist is responsible for responding to a court's request to dismiss the guardianship by preparing a motion for the OKDHS attorney's consideration for an order of dismissal when it is no longer needed.
[OAR Docket #13-594; filed 4-15-13]