Human Services, Administration

Rule R495-890

Department of Human Services Related Parties Conflict Investigation Procedure for Non Contracted Private Sector Independent Child Protective Services

Notice of Proposed Rule

(Amendment)

DAR File No.: 36911
Filed: 10/02/2012 12:10:30 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this rule is to reflect changes to Utah statute made by H.B. 237 from the 2012 Legislative General Session. These changes are noted in Section 62A-4a-202.6.

Summary of the rule or change:

The rule establishes criteria used to determine when conflict investigations are necessary in the Department of Human Services and who will conduct the investigations. It is clarified what will happen if there is a lapse in the contract with a private provider.

State statutory or constitutional authorization for this rule:

• Section 62A-1-115
• Section 62A-1-110
• Section 62A-4a-202.6
• Section 62A-4a-101
• Section 62A-1-111

Anticipated cost or savings to:

the state budget:

There will be no increase in costs or saving to the state budget because these proposed changes clarify practice, but do not increase the work already being accomplished by workers.

local governments:

Local government is not a part of the state agency which is affected by this rule; therefore there will be no increase in costs or saving to local government. These proposed changes clarify practice for the state agency on work already being done and local government is not responsible for conflict investigations.

small businesses:

Small businesses are not a part of the state agency which is affected by this rule; therefore there will be no increase in costs or saving to local government. These proposed changes clarify practice for the state agency on work already being done and small businesses are not responsible for conflict investigations.

persons other than small businesses, businesses, or local governmental entities:

There are no costs or savings to any other persons or government entities because this rule does not apply to them. They are not a part of the state agency which is affected by this rule.

Compliance costs for affected persons:

These proposed changes clarify practice for the state agency on work already being done. Affected persons have no compliance costs associated with implementing this rule because they are not part of the agency.

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no costs or savings on businesses associated with implementing this rule.

Palmer DePaulis, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Administration
Room DHS ADMINISTRATIVE OFFICE MULTI STATE OFFICE BUILDING
195 N 1950 W
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Julene Jones at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

12/03/2012

This rule may become effective on:

12/10/2012

Authorized by:

Palmer DePaulis, Executive Director

R495. Human Services, Administration.

R495-890. Department of Human Services Conflict Investigation Procedure.[Related Parties Conflict Investigation Procedure for Non Contracted Private Sector Independent Child Protective Services.]

R495-890-1. Authority.

(1) This rule is authorized by Sections 62A-1-110, 62A-1-111, [62A-4a-409]62A-4a-202.6(4).

 

R495-890-2. Definitions.

(1) The definitions contained in [Title 62A apply]Sections 62A-4a-101, 62A-4a-402 and 62A-4a-1002 apply[.] to this rule and to the child abuse, neglect, or dependency DHS conflict investigations. The definitions contained in Section 62A-3-301 apply to this rule and to the vulnerable adult abuse, neglect, or exploitation DHS conflict investigations. In addition, the following terms are defined for the purposes of this Rule:

(a) "Accepted referral" means a referral that has been screened by APS or DCFS intake and has met the agency's requirements for accepting a referral.

(b) "APS" means Adult Protective Services.

(c) "Case" means a referral that has been accepted for an investigation.

(d) "Child" means a person under eighteen years of age.

(e) "Client" means any person receiving services from DHS.

(f) "Conflict" means[:] that there is an accepted referral alleging child abuse neglect and dependency OR abuse, neglect or exploitation of a vulnerable adult, and DHS has a relationship with either the victim, alleged perpetrator, or another person named in the investigation such that there might be a perceived or actual conflict of interest or a perceived or actual appearance of impropriety if the referral is investigated by DCFS or APS. Potential conflicts of interest include:

(i) There is [a]an accepted referral alleging child abuse, neglect or dependency and an employee, volunteer, board member, provider, or contractor of DHS either is the alleged perpetrator or has a relationship with the alleged victim, alleged perpetrator, or another person named in the investigation[ such that there is or might be a conflict of interest, the appearance of a conflict of interest, impropriety, or the appearance of impropriety if CPS or DCFS performed the investigation where a child is not in the custody of the Division of Child and Family Services; or].

(ii) There is [a]an accepted referral alleging abuse, neglect or exploitation of a vulnerable adult, and an employee, volunteer, board member, provider, or contractor of DHS either is the alleged perpetrator or has a relationship with the alleged victim, alleged perpetrator, or another person named in the investigation[ such that there is or might be a conflict of interest, the appearance of a conflict of interest, impropriety, or the appearance of impropriety if APS or DAAS performed the investigation;].

(iii) There is [a]an accepted referral [alleging]and a person's relationship with DHS may influence an investigation of abuse, neglect or dependency of a [minor]child, or abuse, neglect or exploitation of a vulnerable adult.[that is in the custody and/or guardianship of DJJS or DSPD and the alleged perpetrator is an employee, volunteer, board member, provider, or contractor of DHS.]

(iv) An accepted referral alleges child abuse, neglect, or dependency by a professional partner of DCFS, including but not limited to: an Assistant Attorney General, a Guardian ad Litem, or a law enforcement officer who works directly with DCFS.

(v) An accepted referral alleges that a child in the custody of DCFS has been abused or neglected, and there is a lapse in the contract for an independent CPS investigation from the private sector.

(vi) An accepted referral alleges that a child has been abused and/or neglected while in the custody or guardianship of DJJS, while placed in the USH or USDC, or while placed with a contracted provider of any of these agencies, and the alleged perpetrator is an employee, volunteer or board member with DHS, or a provider or contractor of DCFS.

(vii) An accepted referral alleges that an adult has been abused, neglected or exploited while in the guardianship of OPG, placed at the USH or the USDC, or placed with a DHS contracted provider of any of these agencies, and the alleged perpetrator is an employee, volunteer, or board member of DHS, or a provider, or contractor of DAAS.

(viii) Any other conflict exists that may prevent the assigned agency from making an objective determination based on the facts of the case.

(ix) The Executive Director of DHS designates a case a "DHS Conflict Investigation" and directs that the case be assigned to a DHS Conflict Investigator.

(g) "DHS Conflict Case" means that a conflict has been identified, and the case has been referred to a DHS Conflict Investigator for a DHS Conflict Investigation.

(h) "DHS Conflict Investigation" means the investigation of a CPS case by a DHS Conflict Investigator or the screening of an APS case to determine whether a conflict exists.

(i) "DHS Conflict Investigator" means an employee of DHS assigned to OSR to conduct DHS Conflict Investigations.

(j) "CPS" means Child Protective Services.

[(h)](k) "DHS" means the Department of Human Services, and includes all of the agencies and offices within the Department.

[(i)](l) "DCFS" means the Division of Child and Family Services, including its regional offices.

[(j)](m) "DAAS" means the Utah Division of Aging and Adult Services.

[(k)](n) "DJJS" means the Division of Juvenile Justice Services.

[(l)](o) "DJJS Investigator" means an employee of DJJS who conducts internal affairs investigations for DJJS.

[(m)](p) "DSPD" means the Division of Services for People with Disabilities.

[(n)](q) "Executive Director" is as defined in 62A-1-104 and includes the designee of the Executive Director.

[ (o) "Minor" means a child, or a person at least eighteen years of age and younger than twenty-one years of age who is in the custody and guardianship of the Division of Child and Family Services or the Division of Juvenile Justice Services.

] [(p)](r) "OPG" means the Office of the Public Guardian.

[(q)](s) "OSR" means the Office of Services Review within the Utah Department of Human Services.

[(r)](t) "Reasonable Restraint" means: Justifiable restraint to protect the client or to protect others from the client's acts. Supported physical abuse does not include the use of reasonable and necessary physical restraint by an educator in accordance with Section 53A-11-802(2) or 76-2-401. Nor does it include conduct that constitutes the use of reasonable and necessary physical restraint or force in self-defense or otherwise appropriate to the circumstances to obtain possession of a weapon or other dangerous object in the client's possession or control, or to protect the client or another person from physical injury.

(i) In determining whether "reasonable restraint" was used in a [department]DHS facility, the [Related Party]DHS Conflict Investigator shall take into account the nature and purpose of the facility.

[(s)](u) "Referral" means information provided to DCFS intake alleging abuse, neglect, or dependency of a child, or to APS intake alleging abuse, neglect or exploitation of a vulnerable adult.

[(t) "Related Party Conflict Case" means that a conflict has been identified, and the case has been referred to a Related Party Conflict Investigator for a related party conflict investigation where the child is not in the custody of the DCFS.

(u) "Related Parties Conflict Investigation" means the investigation of a conflict case by a Related Parties Conflict Investigator.

(v) "Related Parties Conflict Investigator" means an employee of DHS assigned to OSR to conduct related parties conflict investigations.

(w)](v) "Secondary worker" means a DCFS employee or an APS employee assigned to a [related parties conflict investigation]DHS Conflict Investigation to conduct limited casework activities requested by the [Related Parties]DHS Conflict Investigator, including but not limited to the following: making priority face to face contact when the [Related Parties]DHS Conflict Investigator is unable to do so; assisting with the removal of a child; booking the child into a shelter facility; and filing a petition for ongoing In-Home or Out-of-Home services.

[(x)](w) "USDC" means the Utah State Developmental Center.

[(y)](x) "USH" means the Utah State Hospital.

[(z)](y) "Vulnerable Adult" is the same as defined in 62A-3-301(28).

 

R495-890-3. Purpose.

(1) The purpose of this rule is to establish the criteria used to determine:

(a) when a [related party]conflict investigation is necessary; and

(b) how [related party]conflict investigations will be conducted;[ and]

[(c) how on-going services will be provided to clients.

](2) It is the Department of Human Services' goal to avoid any impropriety or appearances of impropriety that may arise when a conflict exists and to ensure that investigations involving an employee, volunteer, board member, provider, or contractor of DHS are conducted fairly. [Related party]DHS conflict investigations shall be conducted in a manner consistent with CPS and APS procedures and policies.

 

R495-890-4. [Criteria Used to Determine When a Related Party Investigation Is Necessary.]Procedure Used When a DHS Conflict Investigation Is Necessary for Children.

(1) In general ,[:] OSR shall be notified [that a potential conflict exists whenever:] whenever a conflict, as defined above, exists.

(2) When a CPS intake worker identifies a potential conflict, the intake worker shall staff the referral with OSR to determine if a conflict exists. OSR shall determine whether there is a conflict, and will notify the CPS Intake Worker of its decision.

(a) [a referral has been accepted and a person's relationship with DHS may influence an investigation of abuse, neglect or dependency of a child, or abuse, neglect or exploitation of a vulnerable adult, or

(b) a]If OSR determines that no conflict exists[ that may prevent the assigned agency from making an objective], the case shall be referred back to CPS intake for investigation by DCFS no later than the next business day after OSR's determination[based on the facts of the case].

[ (c) an accepted referral alleges child abuse, neglect, or dependency by a DHS employee where the child is not in the custody of the DCFS.

(d) an accepted referral alleges child abuse, neglect or dependency by a professional partner of DCFS, including but not limited to: an Assistant Attorney General, a Guardian ad Litem, or a law enforcement officer who works directly with DCFS.

(e) an accepted referral alleges that a child has been abused and/or neglected while in the custody or guardianship of DJJS, while placed in the USH or USDC or while placed with a contracted provider of any of these agencies, and the alleged perpetrator is an employee, volunteer or board member with DHS, or a provider, or contractor of DCFS.

(f) an accepted referral alleges abuse, neglect, or exploitation of a vulnerable adult by a DHS employee.

(g) an accepted referral alleges that an adult has been abused, neglected or exploited while in the guardianship of OPG, placed at the USH or the USDC, or placed with a DHS contracted provider of any of these agencies, and the alleged perpetrator is an employee, volunteer, or board member of DHS, or a provider, or contractor of DAAS.

(2) The Executive Director of DHS may, at any time, designate a case a "related party conflict investigation" and direct that the case be assigned to a Related Party Conflict Investigator.

] [(3)](b) If [the]a conflict is identified after [DCFS or APS has initiated an investigation]the initial referral, OSR shall be notified on the next business day after the conflict is identified. If the DCFS or APS worker is responding to an emergency or priority one call, the worker shall complete whatever protective actions are necessary and then staff the conflict with a supervisor. The assigned CPS worker and/or the CPS worker's supervisor shall notify OSR no later than the next business day after the conflict is identified.[

 

R495-890-5. Procedure Used When a Related Party Investigation Is Necessary for Children.

(1) When a CPS intake worker identifies a potential conflict where the child is not in the custody of the DCFS, the intake worker shall staff the referral with the OSR Services Review Manager to determine if a conflict exists. The OSR Services Review Manager shall determine whether there is a conflict, and will notify the CPS Intake Worker of its decision.

(2) If a conflict is identified after the initial referral where the child is not in the custody of the DCFS, the assigned CPS worker and/or the CPS worker's supervisor shall notify the OSR Services Review Manager no later than the next business day after the conflict is identified.]

[(3)](c) Once the accepted case is assigned to OSR, [the case]a conflict investigator shall be assigned[ by OSR to a Related Party Conflicts Investigator,] and [the]all investigation activities from that point forward shall be supervised by [the OSR Services Review Manager.]OSR.

[(4 ) ](3) If the conflict case involves a child in the custody of DCFS it shall be assigned to an independent CPS investigator from the private sector. If there is a lapse in the contract for an independent CPS investigator from the private sector, the case will be assigned to a DHS Conflict Investigator.

(4) [A Related Party]DHS Conflict Investigator shall have training that is substantially similar to the training received by CPS workers.

(5) [Related Parties]DHS Conflict Investigators have the same rights, duties, and authority to investigate referrals as CPS workers.

(6) The following duties are to remain the duties of CPS Intake: receipt of the referral; research; disposition of the referral; establish priority of the referral; and, establish allegation categories.

[(7) DCFS shall review unaccepted Related Parties referrals in accordance with DCFS Practice Guidelines.

][(8)](7) A DCFS investigator may act as a secondary worker and assist the [Related Parties]DHS Conflict Investigator.

[(9)](8) The [Related Party]DHS Conflict Investigator shall determine whether the allegations are supported, unsupported, or without merit,[ or false. The Related Parties Conflict Investigator shall report its findings to the appropriate DCFS employee to ensure that the findings are entered into the Licensing or Management Information System and that the appropriate Notices of Agency Action are issued].

[(10) If the OSR Services Review Manager determines that no conflict exists, the case shall be referred back to CPS intake for investigation by DCFS.

][(11)](9) If the Executive Director has designated a case as a [related party] conflict case, [the ]OSR [Services Review Manager] shall assign the case to a [Related Parties](DHS) Conflict Investigator.

 

[R495-890-6. Procedure Used When a Related Party Investigation Is Necessary for Adults.]R495-890-5. Procedure Used When a DHS Conflict Investigation Is Necessary for Adults.

(1) Allegations of abuse, neglect, or exploitation of a vulnerable adult shall be referred to APS Intake.

[(2)](a) If APS Intake accepts the referral and identifies a potential conflict, the Intake worker shall staff the referral with [the OSR Services Review Manager]OSR to determine if a conflict exists.

[(3)](b) [The OSR Services Review Manager]OSR shall determine whether there is a conflict and will notify APS intake of its decision.

[(4)](c) In cases where a conflict exists, [the OSR Services Review Manager]OSR shall accept the case, [and assign the case to a Related Parties Conflict Investigator.]and consult with the APS Director or designee in determining the appropriate APS investigator that APS intake will assign to the case.

[ (5) A Related Parties Conflict Investigator shall have training that is substantially similar to the training received by APS investigators.

(6) Related Parties Conflict Investigators have the same rights, duties, and authority to investigate referrals as APS investigators and shall perform its investigation using the same policies, procedures, rules and laws that apply to APS investigations.

(7) An APS investigator may act as a secondary worker and assist the Related Parties Conflict Investigator.

(8) The Related Party Conflict Investigator shall determine whether the referral is supported, inconclusive or without merit. OSR will work with DAAS to ensure that the investigative finding is entered into the Statewide Database created in Section 62A-3-311.1, and that the appropriate Notices of Agency Action are issued.

] [(9)](d) If [the OSR Services Review Manager]OSR determines that no conflict exists, the case shall be referred back to APS intake for investigation by APS no later than the next business day after OSR's determination.

(2) If any concerns arise during the investigation around conflict issues, APS may consult with OSR as how to handle the conflict.

(3) If a conflict is identified after APS has initiated an investigation, OSR shall be notified on the next business day after the conflict is identified. If the APS worker is responding to an emergency, the worker shall complete whatever protective actions are necessary and then staff the conflict with a supervisor. The supervisor shall notify OSR of the conflict and OSR shall consult with the APS Director or designee in determining the appropriate APS investigator that APS intake will assign to the case.

[(10)](4) If the Executive Director has designated a case as a [related party] conflict case, [the OSR Services Review Manager shall assign the case to a Related Parties Conflict Investigator.]OSR shall consult with the APS Director or designee in determining the appropriate APS investigator that APS intake will assign to the case.

 

[R495-890-7. Special Procedures for Related Parties Conflict Investigations.]R495-890-6. Special Procedures for DHS Conflict Investigations.

(1) Nothing in this rule is intended to limit an agency's ability to conduct its own internal investigation of any incident that occurs in a facility or by an employee during working hours.

(2) The [related parties']DHS conflict investigation is meant to determine whether abuse, neglect or dependency of a child, or abuse, neglect or exploitation of an adult occurred. If, during the course of the investigation, the [Related Parties]DHS Conflict Investigator or APS investigator believes that a separate investigation into policy or personnel matters is warranted, the [Related Parties]DHS Conflict Investigator or APS investigator may notify the agency of its concerns.

(3) A [Related Parties]DHS Conflict Investigator or APS investigator may determine that a person was not abused or neglected if reasonable restraint was used in a DJJS facility, the USH, the USDC, or other contracted facility or program of DJJS or DSPD.

(4) The [Related Parties]DHS Conflict Investigator or APS investigator may notify the agency of the initiation of an investigation and/or the conclusion of an investigation.

 

KEY: [related parties, ]investigations, conflict

Date of Enactment or Last Substantive Amendment: [August 23, 2010]2012

Authorizing, and Implemented or Interpreted Law: 62A-1-110; 62A-1-111; 62A-1-115; 62A-4A-101; 62A-4a-202.6; [62A-4a-409]62A-4a-202.6(4)