500 KAR 13:020. Office of Investigations.

 

      RELATES TO: KRS 15A.065

      STATUTORY AUTHORITY: KRS 15A.160

      NECESSITY, FUNCTION, AND CONFORMITY: KRS 15A.160 authorizes the Secretary to promulgate administrative regulations for the proper administration of the Cabinet and its programs. This administrative regulation establishes the procedures for investigations by the Office of Investigations, Office of the Secretary.

 

      Section 1. Definitions. (1) "Exonerated" means the incident occurred, but the accused’s actions were justified or proper.

      (2) "Facility" means a group home, day treatment, residential treatment, or youth development center, a detention center, or any other entity or location for juvenile care operated by or contracted with the Department of Juvenile Justice for the placement of youth.

      (3) "Initiation" means any action by the Office of Investigations intended to ensure the immediate safety of the alleged victim or to obtain evidence or information relevant to the investigation.

      (4) "Not substantiated" means there is insufficient evidence to determine if an incident occurred or if the accused was involved in the incident.

      (5) "Offender" means a person:

      (a) Who is employed at, volunteers in, visits, or contracts with a facility; and

      (b) Against whom an allegation of a special incident has been made.

      (6) "OOI" means Office of Investigations, Office of the Secretary, Justice and Public Safety Cabinet.

      (7) "Pending further investigation" means a critical witness or offender can not be located or refuses to cooperate with the initial investigation, or there is other interference with the investigation, beyond the control of OOI, that prevents OOI from making a final determination for its finding.

      (8) "Special incident" means an act in which the health or welfare of a resident is harmed or threatened with harm by an offender, including if an offender:

      (a) Uses inappropriate or excessive force that results in injury;

      (b) Uses inappropriate or excessive force that could result in an injury;

      (c) Engages in any sexual activity to include any contact or interaction, which uses or allows, permits or encourages the use of a resident for the sexual gratification of the offender or another person;

      (d) Uses inappropriate consequences as punishment such as exercise, harsh physical labor, or other physical consequences outside accepted practices in accordance with 505 KAR Chapters 1 and 2 of the Department for Juvenile Justice;

      (e) Allows or encourages a resident to:

      1. Use drugs or alcohol;

      2. Gamble; or

      3. Engage in other illegal activity;

      (f) Does not provide appropriate supervision, medical care, food, clothing, shelter, or education;

      (g) Uses humiliating, demeaning, profane, or racially charged language directed at a resident;

      (h) Uses verbal threats of harm directed at a resident;

      (i) Exhibits a pattern of harassing conduct directed at a resident;

      (j) Uses or attempts to use a resident in the pursuit of the staff’s own personal gain;

      (k) Accepts a bribe from a resident or indicates a bribe would be accepted;

      (l) Enters into any unlawful transaction with a youth as set forth in KRS 530.064, 530.065, or 530.070;

      (m) Enters into a business relationship with a resident; or

      (n) Extends unearned special privileges to a resident in return for something done for staff.

      (9) "Substantiated" means that an incident occurred:

      (a) By an admission of the person responsible; or

      (b) By a preponderance of the evidence.

      (10) "Unfounded" means the charges are false or the employee was not involved in the incident.

 

      Section 2. Receiving a Report. The Office of Investigations shall accept reports of special incidents involving residents in a facility.

      (1)(a) A toll-free number shall be made available to all staff and residents in facilities to report special incidents. A voice mailbox system shall be available for reporting special incidents after normal work hours.

      (b) The investigator shall attempt to elicit from the person reporting the special incident as much information about the incident as possible, including:

      1. The nature and extent of the special incident;

      2. The causes of the special incident;

      3. The location of the alleged victim;

      4. Any witnesses to the alleged special incident;

      5. The present danger to the alleged victim;

      6. The offender; and

      7. The reporting person’s identity and relationship to the victim.

      (2) Anonymous reports which give sufficient information and allege a special incident shall be accepted.

      (3) Referrals from any other source which give sufficient information and allege a special incident shall be accepted.

 

      Section 3. Investigation of Reports and Special Incidents. (1) If OOI receives a report of a special incident as defined by Section 1(8)(a) through (e) of this administrative regulation, OOI shall:

      (a) Conduct an investigation in accordance with Sections 5 and 6 of this administrative regulation; or

      (b) Conduct a preliminary inquiry to determine if further investigation is warranted.

      (2) If OOI receives a report of a special incident as defined by Section 1(8)(f) through (n) of this administrative regulation, OOI may conduct an investigation.

      (a) Any allegation of an alleged special incident not investigated by OOI shall be referred by the Executive Director of OOI to another appropriate individual or agency for investigation.

      (b) If a report is referred to the Department of Juvenile Justice pursuant to paragraph (a) of this subsection, OOI shall review the investigative report and any supporting documentation.

      (3) The OOI may investigate a report or allegation involving a person who is employed at, volunteers in, visits, or contracts with a facility that does not meet the definition of a special incident at the request of the Department of Juvenile Justice Commissioner or with the approval or the Executive Director of OOI. A report or allegation not investigated by OOI may be referred by the Executive Director of OOI to another appropriate individual or agency.

 

      Section 4. Time Frames for Investigating Reports of Suspected Special Incidents. Following the receipt of the report, the OOI-2, Special Incident Reporting Form, shall be completed and the report investigated or referred in accordance with Section 3 of this administrative regulation. OOI Investigations shall be conducted according to the following time frames:

      (1) If the report indicates the resident is in imminent danger, the investigation shall be initiated within one (1) hour and personal contact made with the alleged victim within twenty-four (24) hours;

      (2) If the report does not indicate imminent danger, the investigation shall be initiated within twenty-four (24) hours and personal contact made with the victim within seventy-two (72) hours.

      (a) Issues to be considered in determining how soon personal contact is made shall include:

      1. The nature of the allegation;

      2. How recently the alleged incident occurred; and

      3. The measures taken by the facility to ensure the safety of the resident.

      (b) Any deviation from the time frames shall require supervisory approval and be documented in the investigative file.

      (3) If the report indicates that the victim is no longer in a facility, the investigation shall be initiated within forty-eight (48) hours and every effort made to have personal contact with the victim within three (3) workdays. Unsuccessful efforts to make personal contact shall be documented in the investigative file.

      (4) The time frames shall begin when the report is received by the OOI staff.

 

      Section 5. Initial Investigation. If investigating an allegation or report, an OOI investigator shall:

      (1) Complete the OOI-2;

      (2) Report any special incidents as required by KRS 620.030 and 620.040;

      (3) Notify the Commissioner of the Department of Juvenile Justice or designee of the report;

      (4) Interview the victim privately;

      (5) Interview the alleged offender;

      (6) Interview appropriate witnesses;

      (7) Review documentation relevant to the incident; and

      (8) Take possession of and preserve appropriate evidence.

 

      Section 6. Determining the Validity of the Report. After the initial investigation the investigator shall:

      (1) Complete a written report within thirty (30) days of receipt of the allegation, unless there are extenuating circumstances which are documented, such as law enforcement action, court proceedings, or investigator workload issues. The report shall contain:

      (a) The information gathered during the investigation; and

      (b) A recommendation regarding the validity of the allegation as substantiated, unfounded, exonerated, not substantiated, or pending further investigation;

      (2) Submit the report through supervisory channels within OOI and legal counsel for the Justice and Public Safety Cabinet for review and approval;

      (3) Forward all completed investigations to the Commissioner of the Department of Juvenile Justice;

      (4) Forward all completed investigations that are substantiated acts of abuse or neglect of a child:

      (a) In accordance with KRS 620.030 to the Cabinet for Health and Family Services; and

      (b)

       To the local county attorney, law enforcement, or the Kentucky State Police.

 

      Section 7. Incorporation by Reference.

      (1) "OOI-2, Special Incident Reporting Form", 11/06, is incorporated by reference.

      (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Justice and Public Safety Cabinet, 125 Holmes Street, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. (16 Ky.R. 704; eff. 12-15-89; Am. 16 Ky.R. 2468; eff. 7-9-90; 18 Ky.R. 184; eff. 9-6-91; 1950; eff. 2-7-92; 19 Ky.R. 1892; eff. 4-7-93; 20 Ky.R. 645; eff. 11-8-93; 2705; eff. 5-11-94; 21 Ky.R. 119; eff. 9-12-94; 2261; eff. 4-20-95; 22 Ky.R. 1149; 1473; eff. 2-12-96; 23 Ky.R. 1734; eff. 12-13-96; 3939; eff. 7-17-97; 24 Ky.R. 1156; eff. 1-12-98; 25 Ky.R. 1168; eff. 1-19-99; 2458; eff. 6-16-99; 32 Ky.R. 559; 877; eff. 12-2-2005; 33 Ky.R. 531; 1378; 1526; eff. 1-5-07.)