SECTION 340:2-3-38. Investigation of foster parent complaints of retaliation, discrimination, or harassment

(a)   Application. This Section describes processes relating to allegations of retaliation, discrimination, or harassment against a foster parent by an employee or agent of the Oklahoma Department of Human Services (DHS) or a child-placing agency. The Office of Client Advocacy (OCA) is designated by Sections 1-9-112 and 1-9-117 of Title 10A of the Oklahoma Statutes (O.S. 10A §§ 1-9-112 and 1-9-117) to conduct investigations into these allegations.

(b)   Definitions. The following words and terms when used in this Section shall have the following meanings unless the context clearly indicates otherwise:

(1)   "Administrator" with regard to a child-placing agency, means the chief administrative officer of the agency.

(2)   "Child-placing agency" means an agency that arranges for or places a child in a foster family home, group home, adoptive home, or successful adulthood program per 10 O.S. §§ 401 through 418.

(3)   "Discrimination" means actions taken by a DHS employee or child-placing agency against a foster parent that result in differential treatment, such as conduct, actions, or decisions based on race, color, national origin, sex, religion, age, or disability, unless authorized by law.

(4)   "Harassment" means a knowing and willful pattern of conduct, statements, or behaviors that serve no legitimate purpose, directed at a foster parent that a reasonable person in the same or similar circumstances would find intimidating or substantially distressing.

(5)   "OJSO" means the Office of Juvenile Systems Oversight of the Oklahoma OCCY.

(6)   "Protected activity" means a foster parent engaged in:

(A)   filing a grievance with DHS, OJSO, or with a child-placing agency, per 10A O.S. § 1-9-120;

(B)   providing information regarding foster care services to any state official or DHS employee; or

(C)   testifying, assisting, or otherwise participating in an investigation, proceeding, or hearing against DHS or a child-placing agency.

(7)   "Retaliation" means that, in reprisal for the foster parent engaging in a protected activity, an employee of DHS or a child-placing agency has:

(A)   threatened a foster parent with removal of a child from the foster parent's care;

(B)   refused or failed to place a child in a licensed or certified foster home; or

(C)   disrupted a child placement.

(8)   "State Office administrator" means the CWS and DDS directors, or the directors' designees.

(c)   Scope. A foster parent has the right, without fear of reprisal or discrimination, to lodge concerns and complaints with respect to the provision of foster care services to OJSO. OJSO forwards complaints to OCA. OCA determines if foster parent complaints meet criteria for a formal investigation. OCA:

(1)   initiates investigations, when a DHS employee or a child-placing agency has participated in:

(A)   retaliation;

(B)   discrimination; or

(C)   harassment against a foster parent who engaged in a protected activity; and

(2)   forwards discrimination allegations to the Office for Civil Rights (OCR). When the alleged discrimination includes allegations of retaliation or harassment, OCA coordinates with OCR.

(d)   Exclusions. The provisions of this Section do not apply to:

(1)   a complaint by a foster parent regarding the result of a criminal, administrative, or civil proceeding for a violation by that foster parent of a law, rule, or contract provision, or an action taken by DHS or a child-placing agency in conformity with the result of such proceedings;

(2)   allegations of acts of retaliation, discrimination, or harassment that occurred more than one year prior to the date of the foster parent complaint; or

(3)   allegations of a pattern of retaliation, discrimination, or harassment, the last incident which occurred more than one year after the foster parent participated in a protected activity.

(e)   Reportable allegations. Section 1-9-117 of Title 10A of the Oklahoma Statutes provides that any foster parent who has reasonable cause to believe he or she was threatened with removal of a foster child, refused placement of a child, or had a placement disrupted in retaliation, discrimination, or harassment by a DHS employee or a child-placing agency, as outlined in subsection (c) of this Section, may file a complaint with OJSO. The law provides that persons making a report in good faith under this Section may not be adversely affected solely on the basis of having made such report. The law also provides that any person who knowingly and willfully makes a false or frivolous report or complaint may be subject to loss of foster parent approval or licensure status.

(f)   Reporting procedure. Foster parents may file complaints by calling OJSO or using the OCCY website at okfosterparentvoices.org.

(g)   Confidentiality. OCA maintains confidentiality regarding the identity of the reporter. OCA must prepare and maintain written records from the reporting source including the:

(1)   names and addresses of the foster child and the person(s) responsible for the child's welfare;

(2)   nature of the complaint; and

(3)   names of the persons or agencies responsible for the allegations contained in the complaint.

(h)   Prohibition against interference.

(1)   A DHS employee who interferes with a foster parent's grievance rights or an OCA investigation may be subject to administrative action for misconduct per the DHS personnel policy relating to cause for disciplinary action.

(2)   Interference includes, but is not limited to:

(A)   intimidating, harassing, or threatening a party to the investigation;

(B)   retaliation against an employee for cooperating during an OCA investigation;

(C)   denial of access to clients, employees, facilities, witnesses, records, or evidence; and

(D)   causing or influencing another person to provide false information during the investigation.

(i)   Initiation of OCA investigation. Upon disposition of a report of retaliation, discrimination, or harassment against a foster parent, OCA assigns an OCA investigator to investigate the allegations per this Section. The OCA investigation does not duplicate and is separate from any investigation mandated by the Oklahoma Child Abuse Reporting and Prevention Act or other investigations having formal notice or hearing requirements.

(j)   Rights and responsibilities of employees. The rights and responsibilities of DHS employees or agents in an OCA foster parent investigation are listed in (1) through (7) of this subsection. DHS employees or agents:

(1)   make themselves available for interviews and accommodate the OCA investigator in scheduling interviews;

(2)   provide pertinent information and respond fully and truthfully to questions asked;

(3)   may submit written statements relating to the events in question in addition to being interviewed;

(4)   may seek advice concerning their rights and responsibilities from other parties within or outside of DHS;

(5)   prepare written statements or reports relevant to the investigation upon request;

(6)   who reasonably believe answers to official inquiries regarding the events in question may incriminate them in a criminal prosecution, may decline to answer those questions; and

(7)   when interviewed do not discuss their interviews with anyone outside of OCA.

(k)   Access. OCA at all times is granted access to any foster home approved, authorized, or funded by DHS, or a child-placing agency.

(l)   Investigation procedures. Investigations are conducted per Oklahoma Administrative Code (OAC) 340:2-3-36 unless otherwise provided in this Subchapter.

(1)   Notifying administrators and accused caretakers. The assigned OCA investigator notifies the applicable administrator or State Office administrator of the investigation and arranges for document production, site visits, and interviews. The administrator or State Office administrator who employed an accused employee at the time of an alleged incident promptly informs the accused employee of the:

(A)   name and phone number of the OCA investigator;

(B)   investigative process;

(C)   employee's rights and responsibilities relating to the investigation described in subsection (j) of this Section, using Form 15IV006E, Investigations of Foster Parent Retaliation Complaints - Rights and Responsibilities of Accused DHS Employees, a copy of which is provided by the OCA investigator; and

(D)   nature of the allegation(s) made against the employee; however, at this time the employee is not provided the details of the allegations or the substance of the evidence.

(2)   OCA access to evidence. Applicable administrators and State Office administrators facilitate and cooperate with the OCA investigation by:

(A)   providing access to requested information;

(B)   producing relevant documents, files, and records;

(C)   accompanying the OCA investigator on foster home visits, when requested by OCA; and

(D)   providing access to accused employees and others who have knowledge of relevant information.

(3)   OCA findings regarding foster parent retaliation, discrimination, or harassment and completion timeframes. The OCA investigator conducts a prompt and thorough investigation within 60-calendar days from the date of the referral, stating one of the following findings.

(A)   "Substantiated" means OCA determined, based on the preponderance of the evidence that foster parent retaliation, discrimination, or harassment occurred.

(B)   "Unsubstantiated" means OCA determined, based on the preponderance of the evidence that foster parent retaliation, discrimination, or harassment did not occur.

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

(A)   the allegations investigated, including the date, time, and location of the alleged incident, the date the allegation was reported to OCA, the OCA case number, and the assigned OCA investigator;

(B)   a list of the involved parties, their titles and roles in the alleged incident;

(C)   the applicable definition of the type of conduct at issue, such as retaliation, discrimination, or harassment, or combinations thereof;

(D)   if the foster parent engaged in a protected activity listed in (c)(2) in this Section and, if so, a description of the activity;

(E)   the findings per (l)(3) of this Section;

(F)   an explanation of the basis for the finding;

(G)   a summary, in cases involving a substantiated finding, of each interview conducted during the investigation, including the date and location of the interview;

(H)   AOCs identified during the investigation regarding DHS or child-placing agency practices or procedures;

(I)   a list of documents and records reviewed during the investigation; and

(J)   a list of attachments submitted with the final report.

(5)   Dissemination of the OCA investigative report.

(A)   In cases involving allegations against a DHS employee, the advocate general submits a copy of the final OCA investigation report to the DHS Director, applicable State Office administrators.

(B)   In cases involving an employee of a child-placing agency, the advocate general sends a copy of the OCA report to the agency administrator, the appropriate State Office administrator. When the child-placing agency administrator is the subject of the report, the report is sent to the agency's board of directors.

(C)   OCA sends the foster parent and each accused DHS employee a letter summarizing the allegation and the OCA finding.

(D)   All parties receiving copies of the investigative reports are bound by the confidentiality provisions per O.S. 10A § 1-9-112 and O.S. 43A § 10-110.

(m)   Request for reconsideration by the advocate general. Within 15-calendar days of receipt of the final OCA investigative report, the CWS State Office administrator or the administrator's designee, the child-placing agency administrator, or the employee may request reconsideration by the advocate general.

(n)   DHS Director's request for review by the Grievance and Abuse Review Committee (GARC). Within 30-calendar days of receipt of the final OCA investigative report, the DHS Director may request that GARC review the allegations and submit a report of its findings per OAC 340:2-3-63.

(o)   State Office administrator's response to a substantiated finding.

(1)   When a State Office administrator receives a copy of an OCA investigative report containing a substantiated finding that a DHS employee engaged in retaliation, discrimination, or harassment against a foster parent, within 30-calendar days of receipt of the OCA report, the State Office administrator notifies the advocate general in writing of any personnel action taken or to be taken with regard to the employee, or any corrective action taken or to be taken regarding the AOCs noted in the OCA report.

(2)   When the DHS Director refers the matter for GARC review per (m) of this Section, the State Office administrator's response is due within 30-calendar days of GARC's written report to the DHS Director.

(3)   When an administrator of a child-placing agency receives a copy of an OCA investigative report containing a substantiated finding that an employee of the child-placing agency engaged in retaliation, discrimination, or harassment against a foster parent, he or she notifies the advocate general in writing within 30-calendar days of the final report of any personnel action taken or to be taken with regard to each employee named in the report as having engaged in retaliation, discrimination, or harassment against a foster parent, and the status of AOCs noted in the OCA report.

[Source: Added at 18 Ok Reg 3435, eff 7-1-01 (emergency); Added at 19 Ok Reg 1117, eff 5-13-02; Amended at 20 Ok Reg 1994, eff 7-1-03; Amended at 21 Ok Reg 2330, eff 6-25-04; Amended at 22 Ok Reg 1180, eff 5-26-05; Amended at 23 Ok Reg 1776, eff 6-11-06; Amended at 24 Ok Reg 978, eff 7-1-07; Amended at 28 Ok Reg 1681, eff 7-1-11; Amended at 32 Ok Reg 1800, eff 9-15-15; Amended at 34 Ok Reg 1402, eff 9-15-17]