SECTION 340:5-5-6. Provision of protective services to vulnerable adults

(a)   Voluntary protective services. Voluntary services are arranged 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, per Section 10-106 of Title 43A of the Oklahoma Statutes (43A O.S. § 10-106).

(b)   Payment for voluntary or involuntary protective services. The cost of providing voluntary or involuntary protective services is borne by the vulnerable adult when the APS specialist determines the person is financially able to make payment or by any private or public programs for which the vulnerable adult is eligible. When a caretaker controls the person's funds and refuses to pay for necessary services, caretaker interference may be construed and is addressed in (3) of this subsection. An allegation of financial neglect may be considered, along with asset management remedies available through temporary guardianship, or an Order to Enjoin Caretaker. Refer to (d) of this Section.

(1)   Payment for voluntary services. When voluntary services are required to meet an urgent need and no other payment source is available, the APS specialist follows procedures in (3) of this subsection. In cases where the services do not meet an urgent need, the APS specialist arranges for voluntary services, that:

(A)   can be provided free of charge;

(B)   the vulnerable adult is able to and agrees to pay for; or

(C)   can be paid for by a public or private assistance program.

(2)   Payment for involuntary services. Vulnerable adults are expected to pay for services. Payment for involuntary protective services is made from the vulnerable adult's funds upon court order. When payment is required for involuntary services, procedures in (3) of this subsection are followed,when:

(A)   funds are not available from the vulnerable adult's assets; and

(B)   a private or public payment source is not available.

(3)   Payment for emergency protective services. The Oklahoma Department of Human Services (DHS) 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 a DHS Legal Services 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, DHS may petition the court for an injunction prohibiting the caretaker from interfering with the provision of protective services per 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, DHS may petition the court for an Order to Enjoin Caretaker.

(f)   Refusal to consent to protective services. When 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 service plan and on Form 08AP002E, Adult Protective Services Report of Investigation. Level 2 refusals are documented in the service plan and case conclusion. Services are terminated unless DHS determines the vulnerable adult lacks capacity to consent. In that case, the APS specialist considers action, per Oklahoma Administrative Code (OAC) 340:5-1-4.

(g)   Religious beliefs. A vulnerable adult has the right to depend on spiritual means for healing through prayer, within 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. § 10-103(B).

(h)   Involuntary protective services. Involuntary protective services are authorized per 43A O.S. § 10-107. When 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 consent cannot be obtained from anyone acting as caretaker, the services may be ordered by the court on an involuntary basis. Per 43A O.S. § 10-107(B)(1), the court authorizes provision of specific services the court finds least restrictive of rights and liberty while consistent with the welfare and safety of the vulnerable adult.

(i)   Petitioning the court - Emergency Order for involuntary protective services. DHS 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 the vulnerable adult is located.

(1)   When the court issues an emergency order to provide protective services, the order includes the appointment of a temporary guardian for the vulnerable adult in need of services. The temporary guardian may be DHS or an interested person. The order gives the temporary guardian authority only to consent to the specified protective services on behalf of the vulnerable adult.

(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). Per 43A O.S. § 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)   Guardianship notification. When APS seeks guardianship, the court sets a date to hear the case. The hearing is scheduled within five-calendar days of the date the judge signs the notice of proposed protective services. The vulnerable adult must receive notice 48 hours in advance of the hearing, unless notice is waived. Notice may be waived by the court in emergency cases, per (2) of this subsection.

(1)   A court order is issued showing DHS 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, DHS may file a motion to waive notice when there is a risk that immediate and reasonably foreseeable death or serious physical harm to the person will result from a delay, per 43A O.S. § 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, when 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-calendar day order to provide involuntary protective services.

(l)   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 adults under APS guardianship, are reported to and subject to, approval of the court. Only protective services necessary to remove the conditions immediately threatening the life and well-being of the vulnerable adult are ordered.

(A)   Protective services authorized by court order may include a change of residence only when 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 facilities that provide services appropriate for the vulnerable adult's age and condition.

(C)   Emergency placement is not made or construed as an alternative to emergency detention and protective custody, per 43A O.S. §§ 5-206, et seq. or made or construed as an alternative to involuntary commitment, per 43A O.S. §§ 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 are 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 the plan with the vulnerable adult. The vulnerable adult is provided with all of 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, when appropriate and approved by the vulnerable adult, is included in planning. The vulnerable adult or his or her family is provided with all of 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 is 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 or designee, with approval from the any APS district director or program field representative. When a facility has any Oklahoma State Department of Health (OSDH) deficiencies at or above the actual harm levelor has more than three substantiated Long-Term Care Investigations (LTCI) reports in the past year, the placement must be approved by the APS director or designee.

(m)   Restricted or supervised visitation. Restricted or supervised visitation with the vulnerable adult requires a court order, per 43A O.S. § 10-111. A restricted or supervised visitation order is requested, when:

(1)   it is consistent with the vulnerable adult's welfare and safety; or

(2)   the DHS investigation determined that maltreatment occurred and the vulnerable adult needs protection.

(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. When the APS specialist determines protective services are required past this 30-calendar day period, a petition is filed for continuation of involuntary protective services, per (o) of this Section.

(o)   Continuation of services. Continuation of services is authorized,per 43A O.S. § 10-108(L).

(1)   When the vulnerable adult continues to require protective services beyond the original 30-calendar day order, DHS immediately files a motion for the court to order:

(A)   an appointment of a guardian; and/or

(B)   placement of the vulnerable adult in a nursing home, personal medical institution, home placement, or other appropriate facility.

(i)   Emergency placement is not made or construed as an alternative to emergency detention and protective custody, per 43A O.S. §§ 5-206, et seq., or made or construed as an alternative to involuntary commitment, per 43A O.S. §§ 5-410, et seq., when the person otherwise meets the criteria for involuntary commitment.

(ii)   Services are provided to a vulnerable adult in a setting that is segregated from residents of a facility who are 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 includes, at least:

(A)   the address where the vulnerable adult resides and the names of any persons or agencies presently providing care, treatment, or services;

(B)   a summary of the professional treatment and services provided for the vulnerable adult by DHS or other agency, when 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 a hearing is held on the motion.

(4)   Notice of the hearing is served per (k) of this Section.

(5)   The APS specialist is responsible for obtaining the required information and submitting it to the court of jurisdiction.

(6)   When an investigation indicates 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 vulnerable adult's well-being to serve as permanent guardian. Any person interested in the welfare of a vulnerable adult believed incapacitated or partially incapacitated, may file a guardianship petition with the court. Procedures for filing the petition are found in the Oklahoma Guardianship and Conservatorship Act, 30 O.S. § 3-101. Interested persons are referred to the office of the district court for further information and assistance.

(7)   When the alleged victim's mental state is in question, the APS specialist may request that the court order a psychological or psychiatric evaluation.

(p)   Continuation of services for an additional period. After the hearing, when 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, per 43A O.S. § 10-108. After 180-calendar days, when the vulnerable adult is still found in need of protective services, the court may renew the order every 180-calendar 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), DHS may, as temporary guardian, sell the vulnerable adult's real property per provisions of the Oklahoma Guardianship and Conservatorship Act, 30 O.S. § 3-101, and as directed by DHS Legal Services. The fact that the vulnerable adult is in jeopardy for receipt of SoonerCare (Medicaid) if the property is not sold is stated in the court order directing the sale of the real property.

(r)   Sale of personal property. The court may issue an order authorizing DHS to sell the vulnerable adult's personal property when additional resources are required to pay for his or her necessary care.

(s)   APS specialist responsibilities as 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's 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 and photographing the vulnerable adult's home and personal property.

(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-DHS 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, when necessary; and

(B)   advises all parties that no one is allowed to enter the residence unless accompanied by a DHS representative while the temporary guardianship is in effect.

(t)   Additional APS specialist responsibilities as temporary guardian of the estate. The APS specialist, as temporary guardian 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)   freezes existing accounts as necessary;

(3)   transfers existing accounts to the long-term care facility to facilitate payment;

(4)   submits an accounting to the court as ordered by the court, no less than annually;

(5)   works with the court, the vulnerable adult's attorney, the DA, and DHS Legal Services to obtain a professional accountant to manage the estate; and

(6)   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)   APS specialist responsibilities - involuntary protective services. In cases where temporary guardianship of the person was granted to DHS, the APS specialist arranges or facilitates the protective services ordered by the court. This may include, but is not limited to:

(1)   hiring 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 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 intellectual disabilites;

(E)   assisted living centers;

(F)   skilled nursing facilities; or

(G)   other types of facilities licensed to provide 24-hour care and/or services for vulnerable adults;

(5)   making application or completing reviews for federal or state 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)   APS specialist responsibilities - 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 alleviate 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 court orders for involuntary services. To enforce a court order for involuntary protective services, 43A O.S. § 10-108 provides that the court may also order:

(1)   forcible entry of the vulnerable adult's premises;

(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 restriction of that person from further access to any of the vulnerable adult's property.

(x)   Dismissal of court orders for involuntary services. When the vulnerable adult is subject to a court order for involuntary services and DHS serves in the role of temporary guardian, the APS specialist is responsible for responding to a court's request to dismiss the guardianship by preparing a motion to dismiss and submitting the motion to DHS Legal Services or the local district attorney according to county practice.

[Source: Added at 20 Ok Reg 840, eff 6-1-03; Amended at 21 Ok Reg 3082, eff 6-7-04 (emergency); Amended at 22 Ok Reg 1211, eff 5-26-05; Amended at 25 Ok Reg 892, eff 6-1-08; Amended at 27 Ok Reg 990, eff 6-1-10; Amended at 29 Ok Reg 104, eff 10-28-11 (emergency); Amended at 29 Ok Reg 742, eff 7-1-12; Amended at 30 Ok Reg 624, eff 6-1-13; Amended at 35 Ok Reg 1592, eff 9-17-18]