Chapter 173-14 State Long Term Care Ombudsman

173-14-01 Definitions.

As used in this chapter:

(A) "Action plan" means a plan developed by an ombudsman in conjunction with the consumer as part of the complaint-handling process. The plan includes strategies and actions to be taken by the representative including target dates.

(B) "Advocacy" means planning, preparing, and conducting community education programs, training events, and legislative and other public relations contacts; influencing the formation, implementation, and outcome of public policy affecting consumers; representing consumers, both individually and collectively, to effect a positive change.

(C) "Affiliation" means being or having a parent, child, sibling, spouse, or household member who is a board member of, a consultant to, or has another relationship by which they may profit from a provider.

(D) "Area agency on aging" (AAA) means an entity ODA designates to be an AAA under rule 173-2-04 of the Administrative Code.

(E) "Client" means the consumer of long-term care services for whom an ombudsman representative has a case.

(F) "Clock hour" means a period of sixty minutes.

(G) "Complaint case records" means those confidential records kept by the office of the state long-term care ombudsman for complaints handled by the program.

(H) "Complaint handling" means all the processes used to handle a complaint, including intake, screening, opening a case, assigning, investigating, attempting resolution, referring, performing follow-up activities, closing a case, and documenting and record keeping.

(I) "Complex complaint" means a complaint involving a greater depth of investigation, including research and multiple contacts with provider staff or consumers, and which require the development of an action plan as a part of opening a case.

(J) "Community-based long-term care services" means health and social services provided to persons in their own homes or in community care settings, and includes any of the following:

(1) Case management.

(2) Home health care.

(3) Homemaker services.

(4) Chore services.

(5) Respite care.

(6) Adult day care.

(7) Home-delivered meals.

(8) Personal care.

(9) Physical, occupational, and speech therapy.

(10) Transportation.

(11) Any other health and social services provided to persons that allow them to retain their independence in their own homes or in community care settings.

(K) "Consumer" means a resident of a long-term care facility or the recipient of community-based long-term care services. Where appropriate, the term includes a prospective, previous, or deceased resident or recipient.

(L) "Core ombudsman services" means complaint handling; providing general information; providing advocacy services; providing public or community education and information; monitoring the implementation of laws; providing professional development for representatives of the office; establishing a presence in long-term care facilities with consumers and with long-term care providers; managing volunteer resources; program supervision; and program administration.

(M) "Designated entity" means a sponsoring agency designated to provide ombudsman services in a particular region of the state.

(N) "Direct supervision" means in-person instruction and observation followed by discussion of a representative's activity within five business days after the activity was performed.

(O) "Follow-up activities" means site visits, phone calls, letters, or interviews completed by an ombudsman after investigation and attempted resolution of a complaint.

(P) "General information" means researching and providing information on matters such as entitlement and public benefits programs, access to long-term care services, providing information to prospective consumers on the selection of long-term care services using verified and objective information, and referrals to other sources of assistance in those situations where a case is not being opened for complaint handling.

(Q) "Immediate family member" means a member of the household or a relative with whom there is a close personal or significant financial relationship.

(R) "Legal representative" means a court-appointed guardian, conservator, attorney-in-fact, or executor or administrator of the estate of a deceased consumer who can give consent or authorization in the matter.

(S) "Long-term care facility":

(1) Except as otherwise provided in paragraph (S)(2) of this rule, "long-term care facility" includes any residential facility that provides personal care services for more than twenty-four hours for one or more unrelated adults, including all of the following:

(a) A "nursing home," "residential care facility," or "home for the aging" as those terms are defined in section 3721.01 of the Revised Code.

(b) A facility authorized to provide extended care services under Title XVIII of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301 including a long-term acute care hospital that provides medical and rehabilitative care to patients who require an average length of stay greater than twenty-five days and is classified by the centers for medicare and medicaid services as a long-term care hospital pursuant to 42 C.F.R. 412.23(e).

(c) A county home or district home operated pursuant to Chapter 5155. of the Revised Code.

(d) A residential facility licensed under section 5119.34 of the Revised Code that provides accommodations, supervision, and personal care services for three to sixteen unrelated adults or accommodations and personal care services for only one or two adults who are receiving payments under the residential state supplement program established under section 5119.41 of the Revised Code.

(e) A facility approved by the veterans administration under section 104(a) of the "Veterans Health Care Amendments of 1983," 97 Stat. 993, 38 U.S.C. 630 and used exclusively for the placement and care of veterans.

(2) "Long-term care facility" does not include a residential facility licensed under section 5123.19 of the Revised Code.

(T) "Long-term care services" means the services provided by long-term care facilities or provided by community-based long-term care providers.

(U) "ODA" means "the Ohio department of aging."

(V) "ODIS" means "ombudsman documentation and information system for Ohio."

(W) "Office" means the state long-term care ombudsman, the ombudsman's staff and volunteers, and the staff and volunteers of designated regional long-term care ombudsman programs.

(X) "Older Americans Act" means the "Older Americans Act of 1965," 79 Stat. 219, 42 U.S.C. 3001, as amended by the "Older Americans Act Reauthorization Act of 2016."

(Y) "Ombudsman services" means those core ombudsman services and optional ombudsman services provided by the office of the state long-term care ombudsman.

(Z) "Optional ombudsman services" means any service, other than a core service, approved by the state long-term care ombudsman.

(AA) "Personal care services":

(1) Except as otherwise provided in paragraph (AA)(2) of this rule, "personal care services" means services including, but not limited to, the following:

(a) Assisting consumers with activities of daily living.

(b) Assisting consumers with self-administration of medication, according to rules adopted under section 3721.04 of the Revised Code.

(c) Preparing special diets, other than therapeutic diets, for consumers pursuant to the instructions of a physician or a licensed dietitian, according to rules adopted under section 3721.04 of the Revised Code.

(2) "Personal care services" does not include "skilled nursing care" as defined in division (A)(4) of section 3721.01 of the Revised Code.

(3) A facility need not provide more than one of the services listed in paragraph (AA) (1) of this rule to be considered to be providing personal care services.

(BB) "Provider" means the facility or community-based entity providing long-term care services and any corporation, partnership, or person operating the facility or entity.

(CC) "Provider orientation" means structured observation, including instruction in and observation of basic nursing care or personal care services and long-term care provider operations and procedures.

(DD) "Resident" means a resident of a long-term care facility and, where appropriate, includes a prospective, previous, or deceased resident of a long-term care facility.

(EE) "Recipient" means a recipient of community-based long-term care services, and where appropriate, includes a prospective, previous, or deceased recipient of community-based long-term care services.

(FF) "Regional program," "regional long-term care ombudsman program," and "program" mean an entity, either public or private and nonprofit, designated as a regional long-term care ombudsman program by the state long-term care ombudsman.

(GG) "Representative of the office of the state long-term care ombudsman," "representative of the office," and "representative," mean one of the categories of ombudsman whose duties are described in rule 173-14-03 of the Administrative Code.

(HH) "Resolved" means a complaint was addressed to the satisfaction of the consumer or complainant.

(II) "SLTCO" means the state long-term care ombudsman and may include state-office staff and volunteers to whom responsibilities are delegated.

(JJ) "Sponsor" means an adult relative, friend, or guardian who has an interest in or responsibility for the welfare of the consumer, but is not a representative performing ombudsman services for the consumer. A sponsor is identified by a representative's reasonable effort to identify a sponsor chosen by the consumer.

(KK) "Sponsoring agency" means the agency or organization that houses the state office or regional program.

(LL) "State office" means the SLTCO and those staff members and volunteers of the SLTCO's office at the department of aging.

(MM) "Verified" means it is determined after work (i.e., interviews, record review, observations, etc.), that the circumstances described in the complaint are generally accurate.

Replaces: 173-14-01

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 42 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.14 ; 42 U.S.C. 3058f; 45 C.F.R. 1324.1
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006, 09/29/2011, 09/10/2012, 12/19/2013

173-14-02 Types of representatives.

(A)

(1) There shall be three categories of representatives of the office :

(a) Ombudsman associate;

(b) Ombudsman specialist; and,

(c) Ombudsman program director.

(2) Paid staff of the office shall be certified as either ombudsman specialists or ombudsman program directors. A regional program may pay staff who perform only the duties of an associate with the approval of the SLTCO based on a position description and consideration of program effectiveness. Only paid staff members shall be eligible to serve as ombudsman program directors. The SLTCO shall be a certified program director .

(3) The SLTCO shall issue certificates in the form of identification cards to all representatives of the office . The identification cards shall contain:

(a) The name of the representative;

(b) The representative's picture;

(c) The category of the representative and whether the representative is certified;

(d) The ombudsman program with which the representative is associated; and,

(e) The expiration date.

(B) Non-representative staff within the office are those staff members of the office who have not been certified to perform the duties of representatives outlined in paragraph (A) of this rule and may include support staff, organizational volunteers, and non-practice managers among others. Non-representative staff members of the office are prohibited from performing any complaint-handling function, but they may perform duties in conjunction with the program for which they are trained or hold an appropriate license.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.16 , 173.17 ; 42 U.S.C. 3058f; 45 C.F.R. 1321.11, 1324.11(e)
Prior Effective Dates: 06/15/1991, 12/27/2001, 12/28/2006, 01/02/2012

173-14-03 Duties of the representatives of the office.

(A) Ombudsman associate:

(1) An ombudsman associate may do the following:

(a) Provide outreach to consumers and sponsors.

(b) Observe in facilities, homes, and service sites.

(c) Perform intake of complaints.

(d) Provide information to the public about the ombudsman program and consumer rights.

(e) Make requests of provider staff on behalf of, and with the consent of, a consumer.

(f) Assist with handling complaints while under the supervision of a certified ombudsman specialist, a certified ombudsman program director, or candidates for certified ombudsman specialist or certified ombudsman program director who have completed the first forty hours of professional development, as specified in rule 173-14-04 of the Administrative Code.

(2) An ombudsman associate shall provide written reports of their activities to the regional ombudsman program or record their activities in ODIS, as required by the regional program. Paid and unpaid associates may enter other associates' reports into ODIS if approved to do so by the regional program director and granted access to ODIS by the state ombudsman.

(B) An ombudsman specialist may do the following:

(1) Perform the duties of an ombudsman associate.

(2) Handle complaints.

(3) Provide complaint supervision after completing the first forty hours of professional development and achieving a minimum score of seventy per cent on the ombudsman deployment examination.

(4) Review complaints to set complaint-handling priorities.

(5) Assign complaints.

(6) Manage volunteer resources, which may include recruiting, screening, training, supervision, evaluation, and recognition of volunteers.

(7) Record in ODIS those activities performed by other representatives on their behalf.

(C) A certified ombudsman program director serving as a program manager shall perform the following duties and a certified ombudsman program director who is not serving as a program manager may perform the following duties as assigned:

(1) Perform the duties of an ombudsman specialist.

(2) Assume responsibility for the overall administration and management of the program's core and optional ombudsman services.

(3) Assume responsibility for overall supervision of staff.

(4) Participate in hiring staff.

(5) Establish and review policies and procedures required in rule 173-14-22 of the Administrative Code.

(6) Perform quality assurance of core and optional services.

(7) Develop, obtain SLTCO approval of, and implement the ombudsman plan and program budget according to rule 173-14-24 of the Administrative Code.

(8) Identify where additional resources are needed and develop strategies for raising funds to meet those needs.

(D) Ombudsman specialists and ombudsman program directors shall record all reportable ombudsman activity in ODIS.

Replaces: 173-14-03

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 1324.11(e), 1324.19, 173.17 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11
Prior Effective Dates: 06/15/1991, 12/27/2001, 12/28/2006, 01/02/2012

173-14-04 Hours of professional development required for representatives of the office, certification.

(A) Representatives of the office shall complete the following professional development:

(1) A candidate for certification as ombudsman associate shall complete at least fourteen clock hours of professional development and pass the certification examination before performing any ombudsman duties. These fourteen hours of professional development shall include observation of, and participation in, a complaint-handling experience. That experience may be done after passing the certification examination, but an associate shall shall not perform any ombudsman duties before passing the certification examination and observing a complaint-handling experience. Within sixty days after completing the required professional development, the candidate shall take the ombudsman associate examination. A candidate who passes the examination and completes the required observation shall be certified as an ombudsman associate and may perform the duties of an ombudsman associate without direct supervision.

(2) A candidate for certification as an ombudsman specialist shall complete forty clock hours of professional development and pass an ombudsman deployment examination administered by the SLTCO before handling complaints without direct supervision by a certified ombudsman specialist or a certified ombudsman program director. After the initial forty clock hours of professional development, the candidate shall complete all the following:

(a) Sixty additional clock hours of professional development within the first fifteen months of employment.

(b) A twenty-clock-hour orientation within the first

fifteen months of employment. This orientation shall be performed at a site approved by the SLTCO according to rule 173-14-08 of the Administrative Code.

(c) Observation of a survey or inspection as defined in division (B)(4) of section 173.21 of the Revised Code within the first twenty-four months of employment.

(d) Any other professional development considered appropriate by the SLTCO.

Within sixty days after completing the required professional development, the candidate shall take the ombudsman specialist examination. All candidates who pass the examination shall be certified as ombudsman specialists.

(3) The professional development requirements for an ombudsman program director candidate are the same as for an ombudsman specialist with the addition of six clock hours of education on program management and administration to be completed as soon as feasible. An ombudsman program director candidate shall work under the supervision of the SLTCO until the candidate has completed the initial forty clock hours of professional development and the six clock hours on program management and administration.

Within sixty days after completing the required professional development, the candidate shall take the ombudsman program director examination. All candidates who pass the examination shall be certified as ombudsman program directors.

(B) Candidates for ombudsman specialist and ombudsman program director certification shall be assigned a caseload of no fewer than five cases throughout their enrollment in professional development.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16, 173.21 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b), (k)(4)
Rule Amplifies: 173.16, 173.17, 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.13(c)(2), 1324.15(c), (k)(4)
Prior Effective Dates: 06/15/1991, 12/27/2001, 12/28/2006, 01/02/2012

173-14-05 The administration of ombudsman professional development.

(A) The SLTCO shall provide the professional development required in rule 173-14-04 of the Administrative Code to all ombudsman program directors and all ombudsman specialists .

(B) The regional programs shall provide, at their own expense, the professional development required in rule 173-14-04 of the Administrative Code to the ombudsman associates working for their respective programs.

(C) All professional development conducted under this rule shall be based upon a curriculum developed by the SLTCO.

(D) The SLTCO may give credit for any part of professional development. Any application for approval of credit shall demonstrate the candidate has previously received the required training or has experience or knowledge in a content area.

All requests for credit shall come from the applicant's ombudsman program director if the applicant is a representative from a regional program or from the applicant if the applicant is a representative of the office. All requests for credit shall include documentation of the training or experience described in the application. The SLTCO shall notify the applicant of the SLTCO's decision as soon as practicable.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16, 173.21 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b), (k)(4)
Rule Amplifies: 173.16, 173.17, 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.13(c)(2), 1324.15(c), (k)(4)
Prior Effective Dates: 06/15/1991, 12/27/2001, 12/28/2006

173-14-06 Professional development deadlines.

(A) Candidates shall complete the professional development required under rule 173-14-04 of the Administrative Code within the following time frames:

(1) Ombudsman associates: three months after joining the program.

(2) Ombudsman specialists and ombudsman program directors: as soon as practicable and no later than fifteen months after the date of employment.

(B) A candidate may apply for an extension of time to complete the required professional development.

For an extension of time to complete professional development, the candidate shall apply through the regional program director or, if the candidate is the program director or staff or volunteer of the state office, directly to the SLTCO. The application must be received at least thirty days before the end of the period allotted for professional development, or as soon as is practicable given the occurrence of extenuating circumstances, and must state the applicant's reasons for requesting an extension of time to complete the required professional development.

The SLTCO shall approve an application if the candidate demonstrates an acceptable reason for extending the time for professional development and the candidate shows probable success for becoming certified. Acceptable reasons include, but are not limited to, illness in the immediate family, unexpected changes in the candidate's living circumstances, employment conflicting with the professional development program, and time constraints. The SLTCO shall approve or disapprove an application as soon as practicable.

(C) Except as provided in paragraph (B) of this rule, a candidate's failure to complete the required professional development, to take an examination in a timely manner, or to present an acceptable request for an extension is cause for removal as a candidate. For paid candidates, the SLTCO shall provide a notice and hearing process in accordance with the requirements found in rule 173-14-27 of the Administrative Code before removing a candidate for failure to complete the required professional development or to take an examination in a timely manner.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16, 173.21 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b), (k)(4)
Rule Amplifies: 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.13(c)(2), 1324.15(c), 173.16, (k)(4)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-07 Professional development curricula.

(A) The professional development curriculum for all candidates seeking certification as ombudsman associates shall include instruction in all the following areas:

(1) An introduction to the office, including a discussion of the scope of work of the office.

(2) An overview of the long-term care system, including a discussion of all the following:

(a) The types of long-term care providers.

(b) Federal and state regulations applicable to long-term care providers, with an emphasis on consumer rights.

(c) Long-term care consumer profiles and methods of payment for long-term care services.

(d) Aging and disability.

(e) The aging and disability networks and the relationship between the aging and disability networks, the office, and various regulatory agencies.

(3) Ombudsman skills, including all the following:

(a) Interpersonal, communication, observation, and interviewing.

(b) Building working relationships with providers.

(c) Complaint handling.

(4) An overview of complaint-resolution skills and follow-up activities, with an emphasis on advocacy, negotiating, and empowering consumers.

(5) Documentation of activities.

(6) Program policies and procedures, on all the following topics:

(a) Confidentiality.

(b) Access to providers and consumers.

(c) Reporting.

(d) Ethics.

(e) Complaint investigation and resolution.

(7) Any additional topic deemed appropriate by the SLTCO.

(B)

(1) The professional development content for the initial forty clock hours of professional development required of all candidates for certification as ombudsman specialist or ombudsman program director shall include the following:

(a) A more in-depth review of the content areas covered for candidates for certification as ombudsman associates, including written exercises, case studies, role plays, research exercises, and analysis of systemic issues.

(b) Complaint-handling protocol, as outlined in rule 173-14-16 of the Administrative Code.

(c) Investigation and resolution skills.

(d) Consumer decision-making principles.

(e) The provision of program management, case consultation, and an overview of supervision.

(f) Advocacy skills.

(g) Any additional topic deemed appropriate by the SLTCO.

(2) The sixty additional clock hours of professional development required under paragraph (A)(2)(a) of rule 173-14-04 of the Administrative Code shall include the following:

(a) How and when it is permissible to represent a consumer in a hearing, to appeal a proposed transfer, discharge, service/benefit denial, or termination.

(b) How to supervise.

(c) How to handle complaints taking into consideration an individual's abilities, condition, illness, or disability.

(d) How to recruit and supervise volunteers.

(e) Actions regarding public disclosure, including appropriateness, confidentiality of certain information, and how to work with the media.

(f) Systems advocacy.

(g) Ohio ethics law.

(h) Any additional topic deemed appropriate by the SLTCO.

(C) In addition to the professional development required by paragraph (B) of this rule, the professional development content for all candidates seeking certification as an ombudsman program director shall include how to administer the program, including the following:

(1) Management of core ombudsman services and data.

(2) Prioritization of regional program services and activities.

(3) Development of the ombudsman plan.

(4) Fiscal management.

(5) Policy development.

(6) Any additional topic deemed appropriate by the SLTCO.

Replaces: 173-14-07

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 1324.15(b), (k)(4), 173.01, 173.02, 173.21 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1)
Rule Amplifies: 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.13(c)(2), 1324.15(c), (k)(4)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-08 Content of orientation; approval of orientation sites.

(A) The twenty-clock-hour orientation required in rule 173-14-04 of the Administrative Code acquaints candidates for certification as ombudsman specialist or ombudsman program director with the day-to-day operation of long-term care providers. The SLTCO shall approve orientation sites as soon as practicable. The candidate shall observe and receive instruction in basic nursing care or personal care services and the provider's operation and procedures. The observation and instruction shall be conducted in a manner consistent with the respect and privacy requirements established in division (A) of section 3721.13 of the Revised Code.

(B) No long-term care provider shall serve as an ombudsman orientation site unless approved by the SLTCO.

(C) The regional ombudsman program director, on behalf of the staff of the regional program and the staff of the state office, shall submit requests for the approval of an ombudsman orientation site to the SLTCO. No site shall be approved as an orientation site unless the site:

(1) Has been licensed and certified according to all applicable state laws;

(2) Is in substantial compliance with any applicable state or federal laws;

(3) Has agreed to serve as an ombudsman orientation site; and,

(4) Has agreed to provide an orientation satisfactory to the SLTCO.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 1324.13(b)(1), 1324.15(b), 173.01, 173.02, 173.21 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), (k)(4)
Rule Amplifies: 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.13(c)(2), 1324.15(c), (k)(4)
Prior Effective Dates: 06/15/1991, 12/27/2001, 12/28/2006

173-14-09 Observation of survey or inspection.

The types of surveys or inspections that may be observed by candidates for certification as an ombudsman specialist and ombudsman program director, pursuant to paragraph (A)(2)(c) of rule 173-14-04 of the Administrative Code, include nursing home licensure and certification surveys, life safety code inspections conducted under section 3721.02 of the Revised Code, adult care facility licensure inspections, and regulatory surveys of home health care agencies.

Before scheduling any observation of a survey or inspection, the SLTCO shall obtain permission to have the survey or inspection observed by candidates for certification from both the director or director's designee of the appropriate agency and the administrator or the director of the long-term care facility or provider at which the survey or inspection is to take place.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16, 173.21 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b), (k)(4)
Rule Amplifies: 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.13(c)(2), 1324.15(c), (k)(4)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-10 Content and administration of examinations.

(A) The SLTCO shall develop the deployment and certification examinations. The examinations shall be fair and shall test candidates on material received through the professional development sessions provided according to rule 173-14-05 of the Administrative Code. The SLTCO shall validate the examinations to the extent practicable. Any time curriculum is modified, and at least once per year, the SLTCO shall validate the examinations to ensure they are fair and test candidates on material received through the professional-development sessions provided under rule 173-14-05 of the Administrative Code.

(B) The deployment examination shall be administered after a candidate for specialist or program director certification has completed the first forty hours of professional development required by paragraph (B) of rule 173-14-07 of the Administrative Code.

(1) A candidate shall achieve a score of seventy per cent before performing core ombudsman services without direct supervision and may retake the deployment exam until a passing score is achieved.

(2) The SLTCO shall notify the candidate and the candidate's regional director in writing of the SLTCO's approval of deployment.

(C) Before administering the certification examination, the state office shall provide a review of the curriculum being tested to candidates who are eligible to take the examinations and who have been trained by the state office.

(D) The regional programs shall proctor any examination given to candidates for associate certification. The state office shall proctor all examinations given to candidates for specialist, program director certification, and associates affiliated with the state office.

(E) The SLTCO shall score the examination in a way that will protect the identity of the candidate taking the examination from the person scoring the examination whenever possible. The examination shall be scored as soon as practicable. A score of seventy or higher on a one-hundred-point scale shall be a passing score.

(F) The SLTCO shall notify the candidate and, where appropriate, the regional program director of the result. The SLTCO may provide a list of suggested continuing education topics to the candidate and, where appropriate, to the regional program director.

(G) The SLTCO shall provide each candidate and the candidate's supervisor with an opportunity to review the candidate's examination during the thirty-day review period after the SLTCO releases the candidate's results. Once the thirty days for review have passed, the SLTCO shall destroy the examination papers according to state records retention schedules.

(H) A candidate who fails an examination may request technical assistance to prepare for the next examination. The SLTCO shall be responsible for providing the technical assistance to paid staff of the office and to volunteers of the state office. The regional programs may provide technical assistance to their volunteers.

No candidate who fails an examination may retake the examination more than two times. Retakes of the examination shall be offered as soon as practicable, but both retakes must be taken within the first three months following receipt of notification that the candidate has failed the first examination. After failing the examination three times, the regional director shall remove the individual from the provision of core services.

A volunteer representative who has failed the specialist examination may take an associate examination.

No candidate who is currently certified as a representative of the office shall lose the certification status currently assigned to that representative based upon a failure to pass any higher-level certification examination.

Replaces: 173-14-10

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b), (k)(4)
Rule Amplifies: 173.16 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.13(c)(2), 1324.15(c), (k)(4)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-11 Registration of representatives.

(A) Before offering employment to an applicant for an ombudsman specialist position, a regional director shall submit to the SLTCO and await the SLTCO's review of the applicant's resume, position description, and conflict of interest screen required by rule 173-14-15 of the Administrative Code.

(1) The SLTCO will review the applicant's qualifications required by rule 173-14-14 of the Administrative Code and any proposed conflict of interest remedy and respond within five business days.

(2) ODA, SLTCO, and the sponsoring agency shall not approve an applicant who was employed by, or participated in, the management of a provider of long-term services and supports within the two-year period before being employed by or associated with the office pursuant to section 173.15 of the Revised Code.

(B) Before offering employment to an applicant for a program director position, a sponsoring agency shall submit to the SLTCO and await the SLTCO's review of the applicant's resume, position description, and conflict of interest screen required by rule 173-14-15 of the Administrative Code.

(1) The SLTCO may request to interview the applicant and provide feedback to the sponsoring agency about the applicant's suitability. The sponsoring agency shall consider the feedback of the SLTCO but assuming agreement on prescribed qualifications and conflict of interest remedies, if any, the sponsoring agency's decision as to employment is final.

(2) ODA, SLTCO, and the regional office shall not approve an applicant who was employed by, or participated in the management of a provider of long-term services and supports within the two-year period before being employed by or associated with the office pursuant to section 173.15 of the Revised Code.

(C) The SLTCO shall maintain a central registry of all representatives of the office. The registry shall retain the following information on each representative until twelve months after the date of separation from the office:

(1) The representative's name, address, and telephone number.

(2) The representative's qualifications.

(3) The representative's classification.

(4) The designated ombudsman region or state program with which the representative is associated.

(5) Whether or not the representative is certified.

(6) Any prohibitions applicable to the representative. Prohibitions may include limitations on the duties the representative may perform and limitations on the providers with which the representative may provide core ombudsman services due to a conflict of interest.

(D) The regional program director or designee, or the state office, whichever is appropriate, shall register paid representatives with the SLTCO before the representative's first day of employment.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)
Prior Effective Dates: 06/15/1991, 12/27/2001, 12/28/2006

173-14-12 Separation of representatives from the office.

The separation of a representative from the office may occur through termination by the regional program or sponsoring agency with which the ombudsman is employed, decertification, voluntary resignation, or removal of the candidate for certification.

(A)

(1) No representative of the office shall be decertified or removed as a candidate for certification without cause. Cause shall include, but shall not be limited to, the following:

(a) Failure to follow policies and procedures that conform to sections 173.14 to 173.27 of the Revised Code and this chapter.

(b) Failure to provide services according to sections 173.14 to 173.27 of the Revised Code, this chapter, the service contract, and the approved ombudsman plan.

(c) Performing a function not recognized or sanctioned by the office.

(d) Failure to meet the required qualifications.

(e) Failure to meet continuing education requirements.

(f) Intentional failure to reveal a conflict of interest.

(g) The misrepresentation of the representative's category of certification or the duties the representative is certified to perform.

(h) Failure to perform official duties in good faith.

(i) Conduct unbecoming a representative of the office.

(j) Violations of Ohio ethics laws.

(2) The SLTCO and sponsoring agencies may attempt to assure satisfactory job performance through professional development, supervision, or other remedial actions before recommending decertification.

(3) Regional program directors, sponsoring agencies, and SLTCO staff recommending decertification or removal shall state their reasons in writing and shall provide any relevant documentation to support the recommendation to the SLTCO.

(4) The SLTCO shall review the recommendation and make a determination to accept or deny the recommendation in the form of a written notice to the sponsoring agency, regional program director, and the representative. A paid representative may appeal the the notice according to rule 173-14-27 of the Administrative Code.

(5) When the SLTCO initiates a decertification action against a representative of the office, the SLTCO shall provide written notification to the sponsoring agency, the regional program, and the representative. A paid representative may appeal the notice according to rule 173-14-27 of the Administrative Code.

(B)

(1) Any person who separates from the office shall cease to be a representative of the office. The identification card of a person separated from the office must be surrendered to the SLTCO. The SLTCO or regional program director shall notify the person in writing that the identification card must be surrendered within seven days after receiving the notice.

(2) Regional programs shall notify the SLTCO of the separation of any representative from the office and the reason for the separation no later than thirty days after the separation of a volunteer and immediately after the separation of a paid representative.

(3) As appropriate, regional programs shall notify affected long-term care providers of the representative's separation from the office.

(C)

(1) A certified representative of the office who voluntarily separates from the office may, within one year after separation, apply for reinstatement of certification when the representative becomes reemployed by or accepted as a volunteer of the office. Any person seeking recertification shall apply in writing to the SLTCO. The application shall provide the date of separation and a summary of any professional development in or experience with ombudsman skills, long-term care services, problem resolution skills, or related skills the applicant may have received since voluntarily separating from the office.

(2) The SLTCO shall review the application and may require the applicant to receive additional professional development, and/or take an appropriate examination based upon the length of time the applicant has been away from the field, and the experience or professional development the applicant has accumulated in the interim. The SLTCO shall make the decision no later than five business days after receipt of the request.

Replaces: 173-14-12

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16, 173.21 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.16, 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-13 Continuing education requirements, approval of clock hours, certifying fulfillment.

(A) Representatives of the office shall complete the following annual continuing education requirements:

(1) Ombudsman associate: six clock hours.

(2) Ombudsman specialists: sixteen clock hours, of which a minimum of eight clock hours shall be earned through attendance at state ombudsman-sponsored education.

(3) Ombudsman program directors: eighteen clock hours, of which a minimum of nine clock hours shall be earned through attendance at state ombudsman-sponsored education; at least one session must include the training outlined in paragraph (C) of rule 173-14-07 of the Administrative Code. Topics of sessions may include, but are not limited to, supervision of staff, quality assurance practices, strategic planning, and interviewing, hiring, and retention of potential staff.

The required clock hours of continuing education shall be prorated for any representative of the office who has been certified for fewer than twelve months.

(B) The SLTCO shall approve only those continuing education sessions meeting the following requirements:

(1) The individual(s) presenting the session has documented expertise in the content area.

(2) The session transmits knowledge relevant to the duties of a long-term care ombudsman.

(3) The session has not been held for the purpose of individual or group supervision.

(C)

(1) The SLTCO has discretion to assign credit for any continuing education session that is sponsored directly by the SLTCO and shall notify each representative of the credits that may be earned through attendance at the session in advance of the date on which the session is scheduled.

(2) Representatives shall submit all requests for credit toward their continuing education requirements to the SLTCO.

All requests for continuing education credit shall contain the following:

(a) The name of the session and the name of the entity that organized or sponsored the session.

(b) A brief summary of the session's content.

(c) The name of the presenters at the session and a statement addressing their expertise in the content of the session.

(d) The length of the session, including the length of any time the representative spent presenting.

(e) An explanation of how the session relates to the duties of the representative.

Requests for continuing education credits may be submitted before, or as soon as practicable after, actual attendance at the session. The SLTCO shall approve continuing education credits in terms of face-to-face contact clock hours or one-tenth parts of a clock hour earned. The SLTCO shall approve or disapprove of all requests, in writing, as soon as practicable.

No representative shall be precluded from meeting continuing education requirements with credits that were also counted toward the continuing education requirements of other professional organizations or boards.

(D)

(1) The regional programs shall track the hours of continuing education accumulated by their volunteers and the SLTCO shall track the hours of continuing education accumulated by the paid and volunteer staff of the state office. If an electronic registry system is implemented by the state office, all continuing education shall be reported through that system according to instructions provided by the state office upon implementation.

(2) By December first of each year, a state review shall be completed to ensure the continuing education requirements for each representative have been fulfilled.Regional programs shall submit documentation of volunteer continuing education to the state office by December fifteenth of each year and shall retain documentation of continuing education as long as the representative remains affiliated with the office. If an electronic registry system is implemented by the state office, all continuing education shall be reported through that system according to instructions provided by the state office upon implementation. After documentation is submitted in the electronic system, physical records may be destroyed.

(E) If continuing education requirements cannot be fulfilled within the given timeframe, a representative may demonstrate extenuating circumstances or give an explanation to the ombudsman program director, for volunteers of that program, or to the SLTCO, for paid staff of the office and volunteers of the state office.

(1) In the case of a regional program volunteer, if the explanation or extenuating circumstances are not acceptable to the ombudsman program director, the program director shall notify the SLTCO.

(2) In the case of a paid representative, if the explanation or extenuating circumstances are not acceptable to the SLTCO, the SLTCO shall notify the representative and program director or sponsoring agency director, as appropriate.

(3) The SLTCO may consider the performance of the representative and allow the representative to obtain the missing clock hours of continuing education by March thirty-first of the subsequent year. Any hours carried over from a previous year do not count toward the continuing education requirements of the subsequent year.

(F) A representative of the office who does not meet the continuing education requirement annually, or within the extension period if approved based upon a demonstration of extenuating circumstances, shall be decertified according to rule 173-14-12 of the Administrative Code. The notice and hearing process for a paid representative shall adhere to the requirements established in rule 173-14-27 of the Administrative Code.

Replaces: 173-14-13

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16, 173.21 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.16, 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006, 01/02/2012

173-14-14 Staffing requirements, staff qualifications, and background checks.

(A) Staffing requirements: Each regional program shall employ one paid, full-time employee to serve as the program's ombudsman program director. If a sponsoring agency administers more than one regional program, each regional program shall have full-time supervision provided by a certified ombudsman program director in that region.

(B) Staff qualifications:

(1) Representative: To accept a candidate for certification as a representative of the office, the state or regional program shall either hire a person as a paid staff member or accept the person as a volunteer staff member. The state or regional program shall only hire or accept a person who:

(a) Is at least eighteen years of age; and,

(b) Has the ability to understand and empathize with the concerns of consumers of long-term care services.

(2) Ombudsman specialist: A regional program shall only hire a person to be an ombudsman specialist if the person is at least a registered nurse or has earned a bachelor of science degree in nursing, or a bachelor of arts or bachelor of science degree in social work, social services, a health-related field. Any paid representative who does not meet this requirement may substitute commensurate experience or education to meet the education qualification with the approval of the SLTCO.

(3) Ombudsman program director: A regional program shall only hire a person to be the ombudsman program director if the person meets both of the following requirements:

(a) The person is at least a registered nurse or has earned a bachelor of science degree in nursing, or a bachelor of arts degree or a bachelor of science degree in social work, social services, a health-related field, or any other related field. Any paid representative who does not meet this requirement may substitute commensurate experience or education to meet the education qualification.

(b) The person has one year's experience in supervision/management in the fields of aging, long-term care, health care, social services, advocacy, or investigation with the approval of the SLTCO.

(4) Background checks: Section 173.27 of the Revised Code and paragraph (C) of this rule require meeting background-check requirements when hiring an applicant for, or retaining an employee in, a paid ombudsman position.

(C) Background checks for paid ombudsman positions:

(1) Definitions for paragraph (C) of this rule:

"Applicant" means a person that a responsible party is giving final consideration for hiring into a paid ombudsman position that is full-time, part-time, or temporary, including the position of state long-term care ombudsman or regional director. "Applicant" does not include a volunteer.

"BCII" means "the bureau of criminal identification and investigation" and includes the superintendent of BCII.

"Criminal records" has the same meaning as "results of the criminal records check," "results," and "report" in section 173.27 of the Revised Code when the section uses "results of the criminal records check," "results," and "report" to refer to the criminal records that BCII provides to responsible parties that conduct criminal records checks. Criminal records originate from BCII unless the context indicates that the criminal records originate from the FBI.

"Criminal records check" ("check") means the criminal records check described in section 173.27 of the Revised Code.

"Disqualifying offense" means any offense listed or described in divisions (A) (3)(a) to (A)(3)(e) of section 109.572 of the Revised Code.

"Employee" means a person that a responsible party hired into a paid ombudsman position that is full-time, part-time, or temporary, including the position of the state long-term care ombudsman or regional director. "Employee" does not include a volunteer.

"FBI" means "federal bureau of investigation."

"Fire" has the same meaning as "terminate" in section 173.27 of the Revised Code when the "terminate" regards firing an employee.

"Hire" has the same meaning as "employ" in section 173.27 of the Revised Code when "employ" regards hiring an applicant.

"Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

"ODA" means "the Ohio department of aging."

"Ombudsman position" has the same meaning as "position that involves providing ombudsman services to residents and recipients" in section 173.27 of the Revised Code. "Ombudsman position" includes the positions of ombudsman associate, ombudsman specialist, and ombudsman program director.

"Release" has the same meaning as "terminate" in section 173.27 of the Revised Code when "terminate" regards releasing a conditionally-hired applicant.

"Responsible party": When hiring an applicant for, or retaining an employee in, a paid ombudsman position as the state long-term care ombudsman, "responsible party" means ODA's director. When hiring an applicant for, or retaining an employee in, a paid ombudsman position in the office of the state long-term care ombudsman, "responsible party" means the state long-term care ombudsman. When hiring an applicant for, or retaining an employee in, a paid ombudsman position as the director of a regional program, "responsible party" means the regional program. When hiring an applicant for, or retaining an employee in, a paid ombudsman position in the regional program, "responsible party" means the regional program.

"Retain" has the same meaning as "continue to employ" in section 173.27 of the Revised Code.

"Volunteer" means a person who serves in an ombudsman position without receiving, or expecting to receive, any form of remuneration other than reimbursement for actual expenses.

(2) Reviewing databases:

(a) Databases to review: Any time this rule requires a responsible party to review an applicant's (pre-hire) or employee's (post-hire) status in databases, the responsible party shall review the six databases listed in paragraphs (C)(2)(a)(i) to (C)(2)(a)(vi) of this rule. In the table below, ODA listed the web address (URL) on which each database was accessible to the public at the time of this rule's adoption. If a URL listed in the table becomes obsolete, please consult with the government entity publishing the database for an updated URL.

DATABASES TO REVIEW

SAM

https://www.sam.gov/

OIG

https://exclusions.oig.hhs.gov/

Abuser Registry

https://its.prodapps.dodd.ohio.gov/ABR_Default.aspx

Sex-Offender Search

http://www.icrimewatch.net/index.php?AgencyID=55149&disc=

Offender Search

https://appgateway.drc.ohio.gov/OffenderSearch

Nurse-Aide Registry

https://odhgateway.odh.ohio.gov/nar/nar_registry_search.aspx

(i) The United States general services administration's system for award management, which is maintained pursuant to subpart 9.4 of the federal acquisition regulation.

(ii) The office of inspector general of the United States department of health and human services' list of excluded individuals and entities, which is maintained pursuant to sections 1128 and 1156 of the "Social Security Act," 42 U.S.C. 1320a-7 and 1320c-5.

(iii) The department of developmental disabilities' online abuser registry, established under section 5123.52 of the Revised Code, whichlists people cited for abuse, neglect, or misappropriation.

(iv) The Ohio attorney general's sex offender and child-victim offender database, established under division (A)(1) of section 2950.13 of the Revised Code.

(v) The department of rehabilitation and correction's database of inmates, established under section 5120.66 of the Revised Code.

(vi) The department of health's state nurse aide registry, established under section 3721.32 of the Revised Code. If the applicant or employee does not present proof that he or she has been a resident of Ohio for the five-year period immediately preceding the date of the database review, the responsible party shall conduct a database review of the nurse aide registry in the state or states in which the applicant or employee lived.

(b) When to review databases:

(i) Applicants (pre-hire): The responsible party shall review each applicant's (pre-hire) status in the databases before conducting the criminal records check that paragraph (C)(3) of this rule requires for applicants.

(ii) Employees (post-hire): The responsible party shall review each employee's (post-hire) status in the databases before conducting the criminal records check that paragraph (C)(3) of this rule requires for employees.

(c) Disqualifying status:

(i) No responsible party shall hire an applicant or retain an employee if the applicant's or employee's status in the databases reveals that one or more of the databases in paragraphs (C)(2)(a)(i) to (C)(2) (a)(v) of this rule lists the applicant or employee or the database in paragraph (C)(2)(a)(vi) of this rule lists the applicant or employee as a person who abused, neglected, or exploited a long-term care facility resident or misappropriated such a resident's property.

(ii) If the responsible party's database reviews reveal that the applicant or employee is disqualified, the responsible party shall inform the applicant or employee of the disqualifying information.

(3) Criminal records checks: when to check criminal records, inform applicants, charge fees, and use forms.

(a) Database reviews first: The responsible party shall conduct database reviews on each applicant (pre-hire) and each employee (post-hire) before conducting a criminal records check. If the database reviews disqualify the applicant or employee, the responsible party shall not conduct a criminal records check. If the database reviews do not disqualify the applicant or employee, the responsible party shall conduct a criminal records check.

(b) When to check criminal records:

(i) Applicants (pre-hire): The responsible party shall conduct a criminal records check on each applicant.

(ii) Employees (post-hire): According to one of the following three schedules, the responsible party shall conduct a post-hire criminal records check on each employee at least once every five years:

(a) Five-year schedule for pre-2008 hire dates: If the responsible party hired the employee before January 1, 2008, the responsible party shall conduct a criminal records check on the employee no later than thirty days after the 2013 anniversary of the employee's date of hire and no later than thirty days after each five-year anniversary. A responsible party that follows this schedule is not required to wait until the employee's anniversary to conduct a criminal records check. The responsible party has five years, plus thirty days, to conduct the next check.

(b) Five-year schedule for 2008-present hire dates: If the responsible party hired the employee on or after January 1, 2008, the responsible party shall conduct a criminal records check on the employee no later than thirty days after the fifth anniversary of the employee's date of hire and no later than thirty days after each five-year anniversary. A responsible party that follows this schedule is not required to wait until the employee's five-year anniversary to conduct a criminal records check. The responsible party has five years, plus thirty days, to conduct the next check.

(c) Less-than-five-year schedule: The responsible party may conduct criminal records checks on an employee more frequently than every five years. If the responsible party checks more frequently than every five years, the responsible party is not required to conduct criminal records checks according to the five-year schedules. If a responsible party complies with the requirements for rapback, the responsible party is conducting criminal records checks on a daily basis, which is a less-than-five-year schedule.

(iii) Reverification: If any person has requested a criminal records check on an applicant or employee in the past year that, according to division (B)(1) of section 109.572 of the Revised Code, requires BCII to include sealed criminal records in the criminal records that it returns to the person, the responsible party may request a reverification of that criminal record from BCII to determine if an applicant's or employee's criminal records disqualifies him or her from being hired into, or retaining, a paid ombudsman position. The reverification of the criminal record has the same validity as the criminal records received during the past year.

(c) Sealed records: Division (B)(1) of section 109.572 of the Revised Code requires BCII to include sealed criminal records in its criminal records reports for criminal records checks conducted under section 173.27 of the Revised Code.

(d) When to check FBI's criminal records:

(i) Residency: If an applicant or employee does not provide the responsible party with evidence that he or she has been a resident of Ohio for the five-year period immediately preceding the date the responsible party must request a criminal records check, or if the applicant or employee does not provide the responsible party with evidence that BCII has requested his or her criminal records from the FBI within the five-year period immediately preceding the date the responsible party requests the criminal records check, the responsible party shall request that BCII obtain criminal records from the FBI as part of the criminal records check.

(ii) Will of the responsible party: If an applicant or employee provides the responsible party with evidence that he or she has been a resident of Ohio for the five-year period immediately preceding the date the responsible party requests the criminal records check, the responsible party may request that BCII obtain criminal records from the FBI as part of the criminal records check.

(e) Inform applicant: When an applicant initially applies for a paid ombudsman position, the responsible party shall inform the applicant of the following:

(i) If the responsible party gives the applicant final consideration for hiring into the position, the following shall happen:

(a) The responsible party shall review the applicant's status in the databases listed in paragraph (C)(2)(a) of this rule.

(b) Unless the database reviews reveal that the responsible party shall not hire the applicant, the responsible party shall conduct a criminal records check and the applicant shall provide a set of his or her fingerprints as part of the criminal records check.

(ii) If the responsible party hires the applicant, as a condition to retain the position, the responsible party shall conduct post-hire database reviews and criminal records checks according to one of the three schedules listed under paragraph (C)(3)(b)(ii) of this rule.

(iii) If the responsible party intends to charge the applicant the fees divisions (C)(2) and (C)(3) of section 109.572 of the Revised Code authorize the responsible party to charge, the responsible party shall inform the applicant of the fees at the time of application.

(f) Investigation fees:

(i) The responsible party shall pay BCII the fees that divisions (C)(2) and (C)(3) of section 109.572 of the Revised Code authorize for each criminal records check.

(ii) The responsible party may charge the applicant a fee for checking criminal records so long as the fee does not exceed the amount the responsible party pays to BCII; and, if at the time of initial application, the responsible party informed the applicant of the fee's amount and that the responsible party would not hire the applicant if the applicant did not pay the fee.

(g) Forms: Unless the applicant or employee follows the procedures that BCII established in rule 109:5-1-01 of the Administrative Code for providing fingerprints electronically and requesting criminal records electronically, the responsible party shall complete the following two tasks:

(i) The responsible party shall provide each applicant or employee with the form(s) that BCII requires in division (C)(1) of section 109.572 of the Revised Code.

(ii) The responsible party shall forward the completed fingerprints and forms to BCII for processing.

(4) Conditional hiring: This paragraph addresses the conditional hiring of applicants for paid ombudsman positions. This paragraph does not require employees who hold paid ombudsman positions to enter a conditional status when they undergo post-hire criminal records checks

(a) Sixty-day period: A responsible party may conditionally hire an applicant for up to sixty days while it waits for the applicant's criminal records, but only if the responsible party complies with the following requirements:

(i) Database reviews: The responsible party shall not conditionally hire an applicant unless the responsible party conducted database reviews and the applicant's status in the databases was not disqualifying.

(ii) Criminal records check: The responsible party shall not conditionally hire an applicant unless the responsible party requests a criminal records check before the following deadlines:

(a) "WebCheck": If the responsible party requires the applicant to provide his or her fingerprints directly to BCII by using "WebCheck," the responsible party shall not conditionally hire the applicant until the applicant provides his or her fingerprints to a "WebCheck" vendor.

(b) Fingerprint impression sheet: If the responsible party does not require the applicant to provide his or her fingerprints directly to BCII by using "WebCheck," the responsible party shall not conditionally hire the applicant until the responsible party receives the applicant's fingerprints on a completed fingerprint impression sheet. If the responsible party conditionally hires the applicant after receiving the fingerprint impression sheet, the responsible party shall provide the sheet to BCII no later than five business days after the responsible party conditionally hires the applicant.

(b) Three reasons to release an applicant:

(i) Sixty-day period ends:

(a) Only BCII check required: The responsible party shall release the conditionally-hired applicant from a paid ombudsman position if more than sixty days passed since the day the responsible party requested a criminal records and the responsible party has not yet received the criminal records.

(b) BCII and FBI checks required: The responsible party is not required to release the conditionally-hired applicant if more than sixty days passed since the responsible party requested criminal records from the FBI and the responsible party has not yet received the FBI's criminal records, but only if section 173.27 of the Revised Code required the responsible party to request criminal records from the FBI, and one of the following two conditions exist:

(i) The responsible party received criminal records from BCII before the sixty-day period ended and the criminal records from BCII did not list a disqualifying offense.

(ii) The responsible party received criminal records from BCII before the sixty-day period ended and the criminal records from BCII listed a disqualifying offense, but the terms of paragraph (C)(6) of this rule would allow the responsible party to hire the applicant, and the responsible party would be willing to hire the applicant under the terms of paragraph (C)(6) of this rule if the forthcoming criminal records from the FBI would not prohibit the responsible party from doing so.

(ii) Disqualifying offense on record: The responsible party shall release the conditionally-hired applicant if the applicant's criminal record lists a disqualifying offense, unless the responsible party is able and willing to hire the applicant under the terms of paragraph (C) (6) of this rule. If the responsible party is unable or unwilling to hire an applicant with a disqualifying offense on his or her criminal record, the responsible party shall release the conditionally-hired applicant regardless of the day during the sixty-day period that the responsible party received the criminal records.

(iii) Deception: If a conditionally-hired applicant made any attempt to deceive the responsible party about his or her criminal record, the attempt is just cause for the responsible party to release the conditionally-hired applicant.

(c) Hiring released applicants: If a responsible party released a conditionally-hired applicant to comply with the sixty-day limit in paragraph (C)(4)(a) of this rule, the responsible party may resume hiring the released applicant after the responsible party receives the criminal records if either one of the following two conditions exist:

(i) The applicant's criminal record does not list a disqualifying offense.

(ii) The applicant's criminal record lists a disqualifying offense, but the responsible party is able and willing to hire the applicant under the terms of paragraph (C)(6) of this rule.

(5) Disqualifying offenses:

(a) Except as established in paragraph (C)(6) of this rule, no responsible party shall hire an applicant or retain an employee if the applicant or employee was convicted of, or pleaded guilty to, a violation of any of the following sections of the Revised Code:

(i) 959.13 (cruelty to animals);

(ii) 959.131 (prohibitions concerning companion animals);

(iii) 2903.01 (aggravated murder);

(iv) 2903.02(murder) ;

(v) 2903.03 (voluntary manslaughter);

(vi) 2903.04 (involuntary manslaughter);

(vii) 2903.041 (reckless homicide);

(viii) 2903.11 (felonious assault);

(ix) 2903.12 (aggravated assault);

(x) 2903.13(assault) ;

(xi) 2903.15 (permitting child abuse);

(xii) 2903.16 (failing to provide for a functionally-impaired person);

(xiii) 2903.21 (aggravated menacing);

(xiv) 2903.211 (menacing by stalking);

(xv) 2903.22(menacing) ;

(xvi) 2903.34 (patient abuse and neglect);

(xvii) 2903.341 (patient endangerment);

(xviii) 2905.01(kidnapping) ;

(xix) 2905.02(abduction) ;

(xx) 2905.04 (child stealing, as it existed before July 1, 1996);

(xxi) 2905.05 (criminal child enticement);

(xxii) 2905.11(extortion) ;

(xxiii) 2905.12(coercion) ;

(xxiv) 2905.32 (trafficking in persons);

(xxv) 2905.33 (unlawful conduct with respect to documents);

(xxvi) 2907.02(rape) ;

(xxvii) 2907.03 (sexually battery);

(xxviii) 2907.04 (unlawful sexual conduct with a minor, formerly corruption of a minor);

(xxix) 2907.05 (gross sexual imposition);

(xxx) 2907.06 (sexual imposition);

(xxxi) 2907.07(importuning) ;

(xxxii) 2907.08(voyeurism) ;

(xxxiii) 2907.09 (public indecency);

(xxxiv) 2907.12 (felonious sexual penetration, as it existed before July 1, 1996);

(xxxv) 2907.21 (compelling prostitution);

(xxxvi) 2907.22 (promoting prostitution);

(xxxvii) 2907.23 (enticement or solicitation to patronize a prostitute; procurement of a prostitute for another);

(xxxviii) 2907.24 (soliciting, engaging in solicitation after a positive HIV test);

(xxxix) 2907.25(prostitution) ;

(xl) 2907.31 (disseminating matter harmful to juveniles);

(xli) 2907.32 (pandering obscenity);

(xlii) 2907.321 (pandering obscenity involving a minor);

(xliii) 2907.322 (pandering sexually-oriented matter involving a minor);

(xliv) 2907.323 (illegal use of a minor in nudity-oriented material or performance);

(xlv) 2907.33 (deception to obtain matter harmless to juveniles);

(xlvi) 2909.02 (aggravated arson);

(xlvii) 2909.03(arson) ;

(xlviii) 2909.04 (disrupting public services);

(xlix) 2909.22 (soliciting or providing support for act of terrorism);

(l) 2909.23 (making terroristic threat);

(li) 2909.24(terrorism) ;

(lii) 2911.01 (aggravated robbery);

(liii) 2911.02(robbery) ;

(liv) 2911.11 (aggravated burglary);

(lv) 2911.12(burglary) ;

(lvi) 2911.13 (breaking and entering);

(lvii) 2913.02(theft) ;

(lviii) 2913.03 (unauthorized use of a vehicle);

(lix) 2913.04 (unauthorized use of computer, cable, or telecommunication property);

(lx) 2913.05 (telecommunications fraud);

(lxi) 2913.11 (passing bad checks);

(lxii) 2913.21 (misuse of credit cards);

(lxiii) 2913.31 (forgery, forging identification cards);

(lxiv) 2913.32 (criminal simulation);

(lxv) 2913.40 (medicaid fraud);

(lxvi) 2913.41 (defrauding a rental agency or hostelry);

(lxvii) 2913.42 (tampering with records);

(lxviii) 2913.43 (securing writings by deception);

(lxix) 2913.44 (personating an officer);

(lxx) 2913.441 (unlawful display of law enforcement emblem);

(lxxi) 2913.45 (defrauding creditors);

(lxxii) 2913.46 (illegal use of SNAP or WIC program benefits);

(lxxiii) 2913.47 (insurance fraud);

(lxxiv) 2913.48 (workers' compensation fraud);

(lxxv) 2913.49 (identify fraud);

(lxxvi) 2913.51 (receiving stolen property);

(lxxvii) 2917.01 (inciting to violence);

(lxxviii) 2917.02 (aggravated riot);

(lxxix) 2917.03(riot) ;

(lxxx) 2917.31 (inducing panic);

(lxxxi) 2919.12 (unlawful abortion);

(lxxxii) 2919.121 (unlawful abortion upon minor);

(lxxxiii) 2919.123 (unlawful distribution of an abortion-inducing drug);

(lxxxiv) 2919.22 (endangering children);

(lxxxv) 2919.23 (interference with custody);

(lxxxvi) 2919.24 (contributing to unruliness or delinquency of child);

(lxxxvii) 2919.25 (domestic violence);

(lxxxviii) 2921.03(intimidation) ;

(lxxxix) 2921.11(perjury) ;

(xc) 2921.12 (tampering with evidence);

(xci) 2921.13 (falsification, falsification in a theft offense, falsification to purchase a firearm, or falsification to obtain a concealed handgun license);

(xcii) 2921.21 (compounding a crime);

(xciii) 2921.24 (disclosure of confidential information);

(xciv) 2921.32 (obstructing justice);

(xcv) 2921.321 (assaulting or harassing a police dog, horse, or service animal);

(xcvi) 2921.34(escape) ;

(xcvii) 2921.35 (aiding escape or resistance to lawful authority);

(xcviii) 2921.36 (illegal conveyance of weapons, drugs or other prohibited items onto grounds of detention facility or institution);

(xcix) 2921.51 (impersonation of peace officer);

(c) 2923.01 (conspiracy, related to another disqualifying offense);

(ci) 2923.02 (attempt to commit an offense, related to another disqualifying offense);

(cii) 2923.03 (complicity, related to another disqualifying offense);

(ciii) 2923.12 (carrying concealed weapons);

(civ) 2923.122 (illegal conveyance or possession of deadly weapon or dangerous ordnance in a school safety zone, illegal possession of an object indistinguishable from a firearm in a school safety zone);

(cv) 2923.123 (illegal conveyance, possession, or control of deadly weapon or ordnance into a courthouse);

(cvi) 2923.13 (having weapons while under disability);

(cvii) 2923.161 (improperly discharging a firearm at or into a habitation or school);

(cviii) 2923.162 (discharge of firearm on or near prohibited premises);

(cix) 2923.21 (improperly furnishing firearms to minor);

(cx) 2923.32 (engaging in a pattern of corrupt activity);

(cxi) 2923.42 (participating in criminal gang);

(cxii) 2925.02 (corrupting another with drugs);

(cxiii) 2925.03 (trafficking in drugs);

(cxiv) 2925.04 (illegal manufacture of drugs or cultivation of marijuana);

(cxv) 2925.041 (illegal assembly or possession of chemicals for the manufacture of drugs);

(cxvi) 2925.05 (funding of drug or marijuana trafficking);

(cxvii) 2925.06 (illegal administration or distribution of anabolic steroids);

(cxviii) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous veterinary drug);

(cxix) 2925.11 (possession of drugs);

(cxx) 2925.13 (permitting drug abuse);

(cxxi) 2925.14 (illegal use, possession, dealing, selling, or advertising of drug paraphernalia);

(cxxii) 2925.141 (illegal use or possession of marihuana drug paraphernalia);

(cxxiii) 2925.22 (deception to obtain dangerous drugs);

(cxxiv) 2925.23 (illegal processing of drug documents);

(cxxv) 2925.24 (tampering with drugs);

(cxxvi) 2925.36 (dispensing drug samples);

(cxxvii) 2925.55 (unlawful purchase of a pseudoephedrine product, underage purchase of a pseudoephedrine product, using false information to purchase a pseudoephedrine product, improper purchase of a pseudoephedrine product);

(cxxviii) 2925.56 (unlawfully selling a pseudoephedrine product; unlawfully selling a pseudoephedrine product to a minor; improper sale of a pseudoephedrine product);

(cxxix) 2927.12 (ethnic intimidation); or,

(cxxx) 3716.11 (placing harmful objects in food or confection).

(b) Except as established in paragraph (C)(6) of this rule, no responsible party shall hire an applicant or retain an employee if the applicant or employee was convicted of a violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraph (C)(5)(a) of this rule.

(6) Hiring an applicant, or retaining an employee, who has a disqualifying offense on criminal record: There are four possible ways to hire an applicant, or retain an employee, if the applicant's or employee's criminal record contains a disqualifying offense: not being in an exclusionary period under paragraph (C)(6)(a) of this rule, limited grandfathering under paragraph (C)(6)(b) of this rule, obtaining a certificate under paragraph (C)(6)(c) of this rule, or obtaining a pardon under paragraph (C)(6)(d) of this rule.

(a) Disqualifying offense exclusionary periods: A responsible party may hire an applicant or retain an employee who was convicted of, or pleaded guilty to, an offense listed in paragraph (C)(5) of the rule unless an exclusionary period in paragraph (C)(6)(a)(i), (C)(6)(a)(ii), (C)(6)(a)(iii), or (C)(6)(a) (iv) of this rule prohibits hiring the applicant or retaining the employee.

(i) Tier I: Permanent exclusion: No responsible party shall hire an applicant or retain an employee if the applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2903.01 (aggravated murder);

(b) 2903.02(murder) ;

(c) 2903.03 (voluntary manslaughter);

(d) 2903.11 (felonious assault);

(e) 2903.15 (permitting child abuse);

(f) 2903.16 (failing to provide for a functionally-impaired person);

(g) 2903.34 (patient abuse or neglect);

(h) 2903.341 (patient endangerment);

(i) 2905.01(kidnapping) ;

(j) 2905.02(abduction) ;

(k) 2905.32 (human trafficking);

(l) 2905.33 (unlawful conduct with respect to documents);

(m) 2907.02(rape) ;

(n) 2907.03 (sexual battery);

(o) 2907.04 (unlawful sexual conduct with a minor, formerly corruption of a minor);

(p) 2907.05 (gross sexual imposition);

(q) 2907.06 (sexual imposition);

(r) 2907.07(importuning) ;

(s) 2907.08(voyeurism) ;

(t) 2907.12 (felonious sexual penetration);

(u) 2907.31 (disseminating matter harmful to juveniles);

(v) 2907.32 (pandering obscenity);

(w) 2907.321 (pandering obscenity involving a minor);

(x) 2907.322 (pandering sexually-oriented matter involving a minor);

(y) 2907.323 (illegal use of a minor in nudity-oriented material or performance);

(z) 2909.22 (soliciting or providing support for an act of terrorism);

(aa) 2909.23 (making terroristic threats);

(bb) 2909.24(terrorism) ;

(cc) 2913.40 (medicaid fraud);

(dd) If related to another offense in this paragraph, 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity) ;

(ee) A conviction related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct involving a federal or state-funded program, excluding the disqualifying offenses listed in section 2913.46 (illegal use of SNAP or WIC program benefits); or,

(ff) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in this paragraph.

(ii) Tier II: Ten-year exclusionary period:

(a) No responsible party shall hire an applicant or retain an employee for a period of ten years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(i) 2903.04 (involuntary manslaughter);

(ii) 2903.041 (reckless homicide);

(iii) 2905.04 (child stealing, as it existed before July 1, 1996);

(iv) 2905.05 (child enticement);

(v) 2905.11(extortion) ;

(vi) 2907.21 (compelling prostitution);

(vii) 2907.22 (promoting prostitution);

(viii) 2907.23 (enticement or solicitation to patronize a prostitute; procurement of a prostitute for another);

(ix) 2909.02 (aggravated arson);

(x) 2909.03(arson) ;

(xi) 2911.01 (aggravated robbery);

(xii) 2911.11 (aggravated burglary);

(xiii) 2913.46 (illegal use of SNAP or WIC program benefits);

(xiv) 2913.48 (worker's compensation fraud);

(xv) 2913.49 (identity fraud);

(xvi) 2917.02 (aggravated riot);

(xvii) 2923.12 (carrying concealed weapons);

(xviii) 2923.122 (illegal conveyance or possession of deadly weapon or dangerous ordnance in a school safety zone, illegal possession of an object indistinguishable from a firearm in a school safety zone);

(xix) 2923.123 (illegal conveyance, possession, or control of deadly weapon or ordnance into a courthouse);

(xx) 2923.13 (having weapons while under disability);

(xxi) 2923.161 (improperly discharging a firearm at or into a habitation or school);

(xxii) 2923.162 (discharge of firearm on or near prohibited premises);

(xxiii) 2923.21 (improperly furnishing firearms to a minor);

(xxiv) 2923.32 (engaging in a pattern of corrupt activity);

(xxv) 2923.42 (participating in a criminal gang);

(xxvi) 2925.02 (corrupting another with drugs);

(xxvii) 2925.03 (trafficking in drugs);

(xxviii) 2925.04 (illegal manufacture of drugs or cultivation of marijuana);

(xxix) 2925.041 (illegal assembly or possession of chemicals for the manufacture of drugs);

(xxx) 3716.11 (placing harmful or hazardous objects in food or confection);

(xxxi) If related to another offense listed under paragraph (C) (6)(a)(ii)(a) of this rule, 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity) ; or,

(xxxii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (C)(6)(a)(ii)(a) of this rule.

(b) An applicant or employee is subject to a fifteen-year exclusionary period if the applicant, or employee was convicted of multiple disqualifying offenses, including an offense listed in paragraph (C)(6)(a)(ii)(a) of this rule, and another offense or offenses listed under paragraph (C)(6)(a) (ii)(a), (C)(6)(a)(iii)(a), or (C)(6)(a)(iv)(a) of this rule, and if the multiple disqualifying offenses are not the result of, or connected to, the same act.

(iii) Tier III: Seven-year exclusionary period:

(a) No responsible party shall hire an applicant or retain an employee for a period of seven years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty to, any offense in any of the following sections of the Revised Code:

(i) 959.13 (cruelty to animals);

(ii) 959.131 (prohibitions concerning companion animals);

(iii) 2903.12 (aggravated assault);

(iv) 2903.21 (aggravated menacing);

(v) 2903.211 (menacing by stalking);

(vi) 2905.12(coercion) ;

(vii) 2909.04 (disrupting public services);

(viii) 2911.02(robbery) ;

(ix) 2911.12(burglary) ;

(x) 2913.47 (insurance fraud);

(xi) 2917.01 (inciting to violence);

(xii) 2917.03(riot) ;

(xiii) 2917.31 (inducing panic);

(xiv) 2919.22 (endangering children);

(xv) 2919.25 (domestic violence);

(xvi) 2921.03(intimidation) ;

(xvii) 2921.11(perjury) ;

(xviii) 2921.13 (falsification, falsification in a theft offense, falsification to purchase a firearm, or falsification to obtain a concealed handgun license);

(xix) 2921.34(escape) ;

(xx) 2921.35 (aiding escape or resistance to lawful authority);

(xxi) 2921.36 (illegal conveyance of weapons, drugs, or other prohibited items onto the grounds of a detention facility or institution);

(xxii) 2925.05 (funding drug trafficking);

(xxiii) 2925.06 (illegal administration of distribution of anabolic steroids);

(xxiv) 2925.24 (tampering with drugs);

(xxv) 2927.12 (ethnic intimidation);

(xxvi) If related to another offense listed under paragraph (C) (6)(a)(iii)(a) of this rule, 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity) ; or,

(xxvii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (C)(6)(a)(iii)(a) of this rule.

(b) An applicant or employee is subject to a ten-year exclusionary period if the applicant or employee was convicted of multiple disqualifying offenses, including an offense listed in paragraph (C)(6)(a)(iii)(a) of this rule, and another offense or offenses listed in paragraph (C)(6)(a)(iii)(a) or (C)(6)(a)(iv) (a) of this rule, and if the multiple disqualifying offenses are not the result of, or connected to, the same act.

(iv) Tier IV: Five-year exclusionary period:

(a) No responsible party shall hire an applicant or retain an employee for a period of five years from the date the applicant or employee was fully discharged from all imprisonment, probation, or parole, if the applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(i) 2903.13(assault) ;

(ii) 2903.22(menacing) ;

(iii) 2907.09 (public indecency);

(iv) 2907.24 (soliciting, engaging in solicitation after a positive HIV test);

(v) 2907.25(prostitution) ;

(vi) 2907.33 (deception to obtain matter harmful to juveniles);

(vii) 2911.13 (breaking and entering);

(viii) 2913.02(theft) ;

(ix) 2913.03 (unauthorized use of a vehicle);

(x) 2913.04 (unauthorized use of computer, cable, or telecommunication property);

(xi) 2913.05 (telecommunications fraud);

(xii) 2913.11 (passing bad checks);

(xiii) 2913.21 (misuse of credit cards);

(xiv) 2913.31 (forgery, forging identification cards);

(xv) 2913.32 (criminal simulation);

(xvi) 2913.41 (defrauding a rental agency or hostelry);

(xvii) 2913.42 (tampering with records);

(xviii) 2913.43 (securing writings by deception);

(xix) 2913.44 (personating an officer);

(xx) 2913.441 (unlawful display of law enforcement emblem);

(xxi) 2913.45 (defrauding creditors);

(xxii) 2913.51 (receiving stolen property);

(xxiii) 2919.12 (unlawful abortion);

(xxiv) 2919.121 (unlawful abortion upon minor);

(xxv) 2919.123 (unlawful distribution of an abortion-inducing drug);

(xxvi) 2919.23 (interference with custody);

(xxvii) 2919.24 (contributing to the unruliness or delinquency of a child);

(xxviii) 2921.12 (tampering with evidence);

(xxix) 2921.21 (compounding a crime);

(xxx) 2921.24 (disclosure of confidential information);

(xxxi) 2921.32 (obstructing justice);

(xxxii) 2921.321 (assaulting or harassing a police dog, horse, or service animal);

(xxxiii) 2921.51 (impersonation of peace officer);

(xxxiv) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous veterinary drug);

(xxxv) 2925.11 (drug possession), unless a minor drug possession offense;

(xxxvi) 2925.13 (permitting drug abuse);

(xxxvii) 2925.22 (deception to obtain a dangerous drug);

(xxxviii) 2925.23 (illegal processing of drug documents);

(xxxix) 2925.36 (illegal dispensing of drug samples);

(xl) 2925.55 (unlawful purchase of a pseudoephedrine product, underage purchase of a pseudoephedrine product, using false information to purchase a pseudoephedrine product, improper purchase of a pseudoephedrine product);

(xli) 2925.56 (unlawfully selling a pseudoephedrine product; unlawfully selling a pseudoephedrine product to a minor; improper sale of a pseudoephedrine product);

(xlii) If related to another offense listed under paragraph (C) (6)(a)(iv)(a) of this rule, 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity) ; or,

(xliii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (C)(6)(a)(iv)(a) of this rule.

(b) An applicant, or employee is subject to a seven-year exclusionary period if the applicant or employee was convicted of multiple disqualifying offenses listed in paragraph (C)(6)(a)(iv)(a) of this rule, and if the multiple disqualifying offenses are not the result of, or connected to, the same act.

(v) Tier V: No exclusionary period: A responsible party may hire an applicant or retain an employee if the applicant or employee was convicted of, or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2925.11 (drug possession), but only if a minor drug possession offense;

(b) 2925.14 (illegal use, possession, dealing, selling, or advertising of drug paraphernalia); or,

(c) 2925.141 (illegal use or possession of marihuana drug paraphernalia);

(d) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violation described under paragraph (C)(6)(a)(v) of this rule.

(b) Limited grandfathering: A responsible party may have chosen to retain an employee if the employee would otherwise have been excluded from a paid ombudsman position because the employee was convicted of, or pleaded guilty to, an offense(s) listed under paragraph (C)(6)(a)(iv) of this rule, but only if all of the following three requirements were met:

(i) The responsible party hired the employee before January 1, 2013.

(ii) The employee's conviction or guilty plea occurred before January 1, 2013.

(iii) The responsible party considered the nature and seriousness of the offense(s), and attested in writing before April 1, 2013, to the character and fitness of the employee based upon the employee's demonstrated work performance.

(c) Certificates: A responsible party may hire an applicant or retain an employee with a disqualifying offense that is not one of the offenses listed under paragraph (C)(6)(a)(i) of this rule if the applicant or employee was issued either of the following:

(i) Certificate of qualification for employment issued by a court of common pleas with competent jurisdiction pursuant to section 2953.25 of the Revised Code (A person may petition for a certificate of qualification for employment on "The Ohio Certificate of Qualification for Employment Online Petition Website" or https://www.drccqe.com/).

(ii) Certificate of achievement and employability in a home and community-based service-related field, issued by the department of rehabilitation and corrections pursuant to section 2961.22 of the Revised Code.

(d) Pardons: A responsible party may hire an applicant or retain an employee if the applicant or employee has a conviction or a plea of guilty to an offense listed or described in paragraph (C)(5) of this rule under any of the following circumstances:

(i) The applicant or employee was granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code.

(ii) The applicant or employee was granted an unconditional pardon for the offense pursuant to an existing or former law of this state, any other state, or the United States, if the law is substantially equivalent to Chapter 2967. of the Revised Code.

(iii) The conviction or guilty plea was set aside pursuant to law.

(iv) The applicant or employee was granted a conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the conditions under which the pardon was granted have been satisfied.

(7) Confidentiality: Criminal records are not public records. The responsible party shall only make criminal records available to the following people:

(a) The applicant or employee who is the subject of the criminal records check or the applicant's or employee's representative.

(b) The responsible party or the responsible party's designee.

(c) The state long-term care ombudsman or a representative of the office of the state long-term care ombudsman program who is responsible for monitoring the regional program's compliance.

(d) A court, hearing officer, or other necessary individual involved in a case dealing with any of the following:

(i) A denial of employment of the applicant or employee.

(ii) Employment or unemployment benefits of the applicant or employee.

(iii) A civil or criminal action regarding the medicaid program or an ODA-administered program.

(8) Records retention:

(a) Personnel files:

(i) What to retain: To verify compliance with this rule, for each applicant the responsible party hired and each employee the responsible party retained, the responsible party shall retain electronic or paper copies of the following records:

(a) The result of each of the database reviews.

(b) Any criminal records including reverified records received as a result of a check conducted to comply with section 173.27 of the Revised Code.

(c) The written attestation to the character and fitness of the employee, if the responsible party completed a written attestation before April 1, 2013 to comply with paragraph (C) (6)(c)(1) of this rule.

(d) A certificate of qualification for employment, if a court issued a certificate of qualification for employment to the employee.

(e) A certificate of achievement and employability, if the department of rehabilitation and corrections issued a certificate of achievement and employability to the employee.

(f) A pardon, if a governor pardoned the employee. The date the responsible party hired the employee.

(ii) Sealed files: To comply with paragraph (C)(7) of this rule, the responsible party shall retain the records that paragraph (C)(8)(a) (i) of this rule requires the responsible party to retain by sealing the records within each applicant's or each employee's personnel files or by retaining the records in separate files from the personnel files. Regarding a self-employed person, the responsible party shall simply retain the records.

(b) Roster: A responsible party shall maintain a roster of applicants and employees, accessible by ODA's director (or the director's designees), that includes all the following:

(i) The name of each applicant and employee.

(ii) The date the responsible party hired the employee.

(iii) The date the responsible party requested criminal records from BCII.

(iv) The date the responsible party received criminal records from BCII.

(v) A determination of whether the criminal records revealed that the applicant or employee committed a disqualifying offense(s).

(9) Immunity from negligent hiring: In a tort or other civil action for damages that is brought as the result of an injury, death, or loss to person or property caused by an applicant or employee, all of the following apply:

(a) If the responsible party hired the applicant or retained the employee in good faith and reasonable reliance upon the applicant's or employee's criminal record, the responsible party shall not be found negligent solely because of its reliance on the criminal record, even if the criminal record is later determined to have been incomplete or inaccurate.

(b) If the responsible party conditionally hired the applicant in good faith and in compliance with paragraph (C)(4) of this rule, the responsible party shall not be found negligent solely because it hired the applicant before receiving the applicant's criminal record.

(c) If the responsible party in good faith hired an applicant or retained an employee because paragraph (C)(6) of this rule allows the responsible party to hire an applicant or retain an employee with a disqualifying offense on his or her criminal record, the responsible party shall not be negligent solely because the applicant or employee has been convicted of, or pleaded guilty to, a disqualifying offense.

(D) Background checks for volunteers in ombudsman positions: Because section 173.27 of the Revised Code excludes volunteers from the definitions of "applicant" and "employee," volunteers are not subject to the background check requirements in section 173.27 of the Revised Code or paragraph (C) of this rule when they apply to volunteer or after they become volunteers. A responsible party may conduct a criminal records check on a volunteer if the responsible party complies with rule 109:5-1-01 of the Administrative Code, but the check may only involve reviewing sealed records if the volunteer who is the subject of the check authorizes the responsible party to view sealed records according to division (D)(3) of section 2953.32 of the Revised Code.

Effective: 4/1/2018
Five Year Review (FYR) Dates: 1/10/2018 and 04/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.21, 173.27 ; 42 U.S.C. 3025(a)(1) (C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b), (k)(4)
Rule Amplifies: 173.21, 173.27 ; 42 U.S.C. 3058g(a)(5); 45 C.F.R. 1324.11(d)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006, 02/15/2009, 01/01/2013, 04/01/2014, 02/01/2015, 08/01/2017

173-14-15 Conflicts of interest.

(A) Definitions for this rule:

(1) "Financial interest" means an ownership interest or investment in a provider by a representative of the office or the immediate family member of the representative of the office.

(2) "Remedy" means an action, restriction of action, restriction of contact, or other means proposed to the SLTCO that would neutralize a conflict of interest and ensure the conflict shall not adversely influence the activities of the representative on behalf of the office.

(3) "Waiver" means the SLTCO has determined sufficient circumstances exist to eliminate a conflict of interest and the need to remedy a conflict of interest.

(B) No employee or representative of the office, no individual involved in designating, hiring, evaluating, or terminating the head of any regional program, and no policy board members may have an unremedied conflict of interest. Conflicts of interest shall include, but shall not be limited to, the following:

(1) Direct involvement in the licensing or certification of a long-term care provider during the last two years.

(2) Ownership, operational, or investment interest (represented by equity, debt, or other financial relationship) in an existing or proposed long-term care provider during the last two years.

(3) Employment by a long-term care provider or by the owner or operator of any long-term care provider during the last two years.

(4) Participation in the management of a long-term care provider during the last two years.

(5) Receipt of, or right to receive, directly or indirectly, remuneration (in cash or in kind) under a compensation arrangement with an owner or operator of a long-term care provider.

(6) Accepting gifts or gratuities of significant value from a long-term care provider or its management, a long-term care consumer or a consumer's sponsor (except where there is a personal relationship with a consumer or consumer's sponsor which is separate from the individual's role as a representative of the office.

(7) Accepting money or any other consideration from anyone other than the office or sponsoring agency for the performance of an act in the regular course of the duties of the representative.

(8) Serving as a guardian, conservator, or in another fiduciary or surrogate decision- making capacity for a consumer of long-term services and supports where the representative provides ombudsman services.

(9) Having an immediate family member receiving long-term services and supports.

(C) Actions prohibited by someone holding a conflict of interest shall include, but shall not be limited to, actions taken to influence any decision or action of a representative of the office which could be characterized as interference with or reprisals against a representative, or as causing reticence on the part of a representative to pursue vigorously a complaint or concern of a client.

Absent a waiver granted by the SLTCO, no representative of the office shall be permitted to provide core ombudsman services involving a long-term care provider with which the representative was formerly employed, with which the representative was formerly or is currently affiliated or associated, from which an immediate family member receives long-term care services, or that poses any other conflict of interest.

(D) The SLTCO, the regional programs, and the sponsoring agencies shall screen potential and existing non-representative employees of the program, potential candidates and existing representatives of the office, individuals involved in designating, hiring, evaluating, or terminating the head of any regional program, and potential and existing policy board members for conflicts of interest. The screen shall be applied initially and annually thereafter. When completed, the person who conducted the screen and the person screened shall acknowledge the completion of the screen in writing. The completed screening instrument and a resumé shall be transmitted to the state office and made a record of the program and shall be subject to program review.

(E) Before offering an ombudsman position to an applicant or training a volunteer, the sponsoring agencies and/or regional program directors shall report any identified conflict of interest, and may propose a remedy, to the SLTCO. The SLTCO shall report any identified conflict of interest in the state office and propose a remedy to ODA's director. Within five business days after receiving a proposed remedy, the SLTCO or ODA's director shall review the nature, scope, and extent of the conflict and shall determine whether or not to allow the proposed remedy.

The proposed remedy shall be submitted to the SLTCO in writing and shall reveal the nature, extent, and potential impact of the conflict of interest, and shall be a remedy that neutralizes the conflict of interest. Current employment with any type of provider is a conflict of interest that cannot be remedied. Any remedy granted shall remain in effect for as long as the conflict continues to exist to the same extent as reported and for as long as the remedy continues to work. If the state office implements an electronic registry, submission of conflict of interest screens and proposed remedies or waiver requests shall be made through the registry.

Examples of remedies which may be approved include, but are not limited to, remedies that assure the following:

(1) The independence of the representative of the office to provide unbiased investigations, successful problem resolution, advocacy services, and other ombudsman services.

(2) That no employee, representative of the office, or policy board member having a conflict of interest is involved with or influences any decision to hire, appoint, evaluate, or terminate a representative of the office.

(3) That no employee, representative of the office, or policy board member having a conflict of interest is involved with or influences the designation of any regional program.

(4) That no policy board members having a conflict of interest in their capacity as board members are involved in a complaint being handled by the program involving the entity that is the source of the conflict of interest.

(5) That any policy board members having a conflict of interest in their capacity as board members shall declare any conflict of interest as regards a complaint or advocacy issue, and shall excuse themselves from deliberations and voting on the issue.

(6) That the policy board's by-laws, the organization's position descriptions, and personnel policies reflect procedures to identify and remedy conflicts of interest and ensure independence of action for the program and its representatives.

(F) Before offering an ombudsman position to an applicant or training a volunteer, the sponsoring agencies and/or regional program directors shall report any identified conflict of interest to, and may request a waiver of a conflict of interest, in writing, to the SLTCO, or in the case of the SLTCO making the request, to ODA's director. Within five business days after receiving a waiver request, the SLTCO or ODA's director, as appropriate, shall review the nature, scope, and extent of the conflict and shall determine whether or not to approve the waiver. A waiver request shall reveal the nature, extent, and potential impact of the conflict of interest, and shall request to determine whether sufficient circumstances exist to eliminate a conflict of interest.

(1) Any conflict of interest not waived or remedied, and any prohibition resulting therefrom, shall be recorded in the central registry.

(2) The SLTCO may take into consideration the following when determining whether to grant a waiver:

(a) The length of time an individual was affiliated with a provider.

(b) The view of the SLTCO of the objectivity of the individual.

(c) The position held by the individual when working for a provider.

(d) The change in the ownership and/or management of a facility and the length of time since the change in ownership and/or management.

(G) No representatives of the office shall be required or permitted to hold positions or perform duties that would constitute a conflict of interest.

(H) Deliberate failure to disclose any conflict of interest or any prohibition shall be sufficient grounds for the removal of the candidate from the professional development program, the decertification of the representative, or the withdrawal of the designation of the regional program involved.

Replaces: 173-14-15

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.15 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(4), 1324.21
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-16 Complaint-handling protocol.

Representatives shall identify, investigate, and resolve complaints made by, or on behalf of, consumers and relate to the action, inaction, or decisions of providers or representatives of providers of long-term care services, public agencies, or health and social services agencies that may adversely affect the health, safety, welfare, or rights of consumers (including the welfare and rights of consumers with respect to the appointment and activities of guardians and representative payees).

Except as otherwise provided in division (C) of section 173.19 of the Revised Code, representatives shall open a case and attempt to resolve all complex complaints according to the following protocol:

(A) Complaint intake:

(1) Any representative may receive a complaint over the telephone, in person, or through postal or electronic mail. A complaint generated by the office itself shall be considered a received complaint.

The representative shall explain to a complainant who uses electronic mail that electronic mail may not be a secure mode for sharing confidential information and shall document the individual's consent to use electronic mail.

(2) A representative shall explain to the complainant the ombudsman process generally and options for handling the specific complaint presented according to guidance presented by the SLTCO. The representative shall also gather information needed to determine response time and whether there is a conflict of interest and what, if any, steps have been taken previously.

(3) A representative shall refer complaints to the SLTCO according to the protocol in rule 173-14-17 of the Administrative Code.

(4) In determining the response time for initiating an investigation, the representative shall analyze the urgency of the complaint based upon the information received at the time of intake. The response time shall be commensurate with the potential harm posted to the consumer. If there is probable physical harm to the consumer, the program that received the complaint shall respond by the end of the next working day. If the next day is not a working day for the program and the representative is unable to respond before the next day, the representative shall notify the SLTCO immediately. In all other cases, the program shall respond as appropriate to the complaint.

(B) Investigation:

(1) Representatives shall investigate complaints in order to determine if complaints are verified. The principle steps in an investigation shall include, but are not limited to, the following:

(a) A face-to-face interview with the consumer.

(b) An on-site visit to where the services that are the subject of the complaint were provided.

(c) Direct contact, be it by face-to-face contact, a telephone call, or by letter, with the complainant if the complainant is different from the consumer.

(d) Obtaining consent from the consumer.

(e) Obtaining a clear statement of the problem(s).

(f) Informing the consumer of the ombudsman process and possible steps in the investigation, as described in paragraph (A)(2) of this rule, and developing an action plan.

(g) Revealing known any conflict(s) of interest.

(h) Obtaining a statement of the consumer's goals.

(i) Identifying the participants and relevant agencies.

(j) Identifying any steps already taken to handle or resolve the complaint.

(k) Determining gaps in the information.

(l) Gathering factual information through interviews with those persons with potential knowledge including, but not limited to, the complainant, the consumer, other agencies, and the provider's staff, management, or owners.

(m) Observing in a facility, in a location where services are delivered, or in a consumer's own home.

(n) Researching regulations and laws.

(o) Reviewing relevant consumer, provider, or government records.

(p) Engaging volunteer representatives when available.

(2) The investigating representative(s) need not exhaust one principal step before starting another, need not use only those principal steps necessary, and need not follow them in the order given in paragraph (B)(1) of this rule.

(C) Complaint resolution:

Strategies for the resolution of a complaint shall be established in action plans developed in conjunction with the consumer and may include, but are not limited to, the following:

(1) Consumer empowerment.

(2) Negotiation.

(3) Mediation.

(4) Referral to other agencies.

(5) Education.

(6) Advocacy for consumers at involuntary discharge hearings, navigating grievance and appeal processes, and appealing adverse benefit determinations, but not representation at a state hearing held according to Chapter 119. of the Revised Code.

(7) Legislative advocacy after consultation with the SLTCO.

(8) Public disclosure after consultation with the SLTCO.

(D) Complaint follow-up activities:

Representatives shall perform follow-up activities on complaints in a timeframe appropriate to the complaint and resolution.

(E) Closing a case:

Before closing a case, the representative shall inform the consumer and, if appropriate, the complainant, that ombudsman activity will cease. A representative may cease activity when any of the following occurs:

(1) The complaint has been resolved or explained to the consumer's satisfaction.

(2) The representative determines that no further activity by the representative will produce satisfaction for the consumer.

(3) The complaint has been withdrawn.

(F) Conflict of interest:

(1) Representatives shall comply with Ohio's ethics laws and this rule when handling complaints.

(a) A representative who has been assigned a complaint shall reveal to the program director and the consumer and/or complainant any other relationship with the provider, public agency, or person involved that may call into question the representative's objectivity or effectiveness in handling the complaint. These types of relationships may include, but are not limited to, having previously worked for or with a current employee of the provider, having an immediate family member who works for the provider, or having worked for the public agency involved in the complaint.

(b) A representative who has a conflict of interest shall disclose the conflict to the regional program director, or if a representative of the state office has the conflict of interest, to the SLTCO.

(c) Upon receiving notice of the potential conflict of interest, the SLTCO or the regional program director involved shall review the facts of the relationship to determine whether the representative is able to handle the complaint in an objective and effective manner.

If the director of the regional program has a conflict of interest, the review shall be completed by the SLTCO.

When the SLTCO has a conflict of interest, the review shall be completed by ODA's director or the director's designated senior staff member.

(2) The regional programs shall develop policies and procedures consistent with rule 173-14-22 of the Administrative Code to prohibit any representative of a regional program from handling a complaint involving a service directly delivered by the program's sponsoring agency. The policy shall provide that when the regional program is part of an AAA and the complaint concerns screening, assessments, care coordination, case management, or other decisions on consumer-specific services made by the AAA, the representative shall reveal the relationship to the consumer and/or complainant and obtain the approval of the SLTCO. The decision to permit a representative to handle such a complaint shall be documented in the case record. The consumer and/or complainant shall be informed of any decision to refer the complaint to the SLTCO and shall be informed of the reasons for the referral.

(G) Confidentiality:

(1) The regional programs shall develop policies and procedures to maintain complaint and advocacy and general information records, including, but not limited to, volunteer reports, in a confidential manner. The policies and procedures shall address the storage, maintenance, and physical access to all written and electronic complaint and advocacy and general information records and shall assure that such records are in a secure location and that access to the files is limited to those personnel authorized to review records. All authorized personnel shall treat records in a confidential manner. Regional program policies shall be consistent with paragraph (B)(6)(d) of rule 173-14-22 of the Administrative Code.

(2) No employee or representative who has a conflict of interest may review a complaint case record if the conflict of interest is of a type which would have kept a representative from handling the complaint.

(3) Representatives shall not reveal identifying information about individuals providing information about a complaint without their consent unless facilitated by state legal counsel in response to a court order.

(4) Any representative who receives a subpoena or other request for ombudsman records, to attend a deposition, or to give testimony in court shall notify the SLTCO immediately. The SLTCO shall shall engage legal counsel to take appropriate legal action to protect the confidentiality of information, the persons who provided information, public entities, and the confidential records of consumers and of providers.

(5) Except as otherwise provided by rule 173-14-15 of the Administrative Code, at the request of the provider, person, or parties against whom the complaint has been filed, and subject to paragraphs (G)(1), (G)(2), and (G)(4) of this rule, representatives shall state the verification status of the complaint in question and whether or not the case has been opened or closed.

(H) Consent:

(1) Representatives shall conduct ombudsman services in a manner that protects the identity of the consumer, complainant, or individual providing information about a complaint, unless the consumer, complainant, or individual providing information about a complaint has provided consent to reveal their identity. Consent may be given:

(a) In writing by the complainant, for the complainant, or by the consumer, for the consumer. Representatives shall use a written consent form provided by the SLTCO.

(b) Verbally, when the urgency of the complaint makes receiving written consent before an investigation impracticable. Verbal consent shall be documented in the case record.

(2) When the complainant or consumer is unable to give consent due to diminished capacity or death, consent may be given:

(a)

(i) In writing by the legal representative of the complainant or consumer on a written consent form provided by the SLTCO, or through the use of auxiliary aids and services;

(ii) Verbally, by the legal representative of the complainant or consumer, when receiving written consent from the appropriate person is not practicable. Verbal consent shall be documented in the case record.

(b) When there is no legal representative, when the legal representative is unknown to the representative or the provider, when the legal representative cannot be reached within three business days after the date upon which a complaint was received, or when the estate of a deceased consumer has no legal representative, consent may be given by the sponsor the representative determines the consumer would have chosen. If there is no sponsor, the representative may proceed with the approval of the SLTCO.

(3) In the event that the legal representative or the sponsor refuses to authorize an investigation and the representative has reasonable cause to believe the legal representative or the sponsor is not acting in the best interest of the consumer, the representative may proceed with the investigation if approved by the SLTCO.

(4)

(a) A representative shall obtain consent to review consumer medical records. Consent may be given in any of the following ways:

(i) In writing by the consumer.

(ii) Verbally by the consumer, witnessed in writing at the time it is given by one other person, and, if the records involved are being maintained by a long-term care provider, also by an employee of the long-term care provider designated under division (E) of section 173.20 of the Revised Code.

(iii) In writing by the guardian of the consumer.

(iv) In writing by the attorney-in-fact of the consumer, if the consumer has authorized the attorney in fact to give such consent.

(v) In writing by the executor or administrator of the estate of a deceased consumer.

(vi) Through the use of auxiliary aids or services.

(b) If consent to access records is not refused by a consumer or the consumer's legal representative, but cannot be obtained, a representative, on approval of the SLTCO, may inspect the consumer's records, including medical records, if reasonably necessary to investigate a complaint in any of the following circumstances:

(i) The consumer is unable to express written or verbal consent and there is no guardian or attorney-in-fact.

(ii) The consumer has a guardian or attorney-in-fact, but the guardian or attorney-in-fact cannot be contacted within three business days.

(iii) The consumer has a guardianship or durable power of attorney, but its existence is unknown by the long-term care provider and the representative at the time of the investigation.

(iv) There is no executor or administrator of the estate of a deceased consumer.

(c) The representative shall demonstrate to the SLTCO that the representative consulted with a sponsor chosen by the consumer about access to records whenever possible.

(5) When the SLTCO or representative personally witnesses suspected abuse, gross neglect, or exploitation of a consumer, the SLTCO or representative shall seek informed consent from such consumer to disclose identifying information to appropriate agencies.

(a) If the consumer is able to communicate informed consent, or has a sponsor chosen by the consumer available to provide informed consent, the SLTCO or representative shall follow the direction of the consumer or sponsor.

(b) If the consumer is unable to communicate informed consent, and has no sponsor available to provide informed consent, the SLTCO or representative shall open a case with the SLTCO or representative as the complainant, follow the complaint-handling protocol and refer the matter and disclose identifying information to the management of the long-term care provider and/or to the appropriate investigative entity in the following circumstances:

(i) The SLTCO or representative has no evidence indicating the consumer would not want a referral to be made.

(ii) The SLTCO or representative has reasonable cause to believe disclosure would be in the best interest of the consumer.

(iii) The representative obtains the approval of the SLTCO.

Replaces: 173-14-16

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(2), 1324.11(e)(4), 1324.13(b)(1), 1324.15(b), 1324.11(e)(3)
Rule Amplifies: 173.15, 173.19, 173.20, 173.22 ; 42 U.S.C. 3058g; 45 C.F.R. 1324.11(e)(2), 1324.11(e)(3), 1324.11(3)(4), 1324.19(b)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-17 Referral of complaints to the state long-term care ombudsman.

(A) Representatives of the office shall refer to the SLTCO, in a manner established by the SLTCO, any of the following complaints:

(1) A complaint posing a conflict of interest that cannot be remedied by reassigning the complaint to another representative.

(2) A complaint the consumer wants the SLTCO to handle.

(3) A complaint that is frivolous, vexatious, or not made in good faith.

(4) A complaint made so long after the actual occurrence that it is no longer reasonable to conduct an investigation.

(5) A complaint for which an adequate investigation cannot be conducted because of insufficient funds, staff, expertise, or other factor that could result in an inadequate investigation .

(6) A complaint for which an injunction is sought against a long-term care facility for a violation of the residents' bill of rights pursuant to sections 3721.10 to 3721.18 of the Revised Code.

(B) The SLTCO shall determine whether complaints warrant investigation. The STLCO's determination in this matter is final.

(C) The SLTCO shall provide updates on the progress and disposition of a case to the referring regional program. For those complaints which the SLTCO determines do not warrant handling, the SLTCO shall notify the consumer and/or complainant, if possible, and the regional program of the reasons the complaint shall not be handled.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.20 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(2), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.15 ; 173.20 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(2), 1324.19(b)
Prior Effective Dates: 06/15/1991, 12/27/2001, 12/28/2006

173-14-18 Referrals of complaints to other agencies.

(A) All referrals made by representatives of the office shall contain the pertinent facts known to the representative and shall be subject to the confidentiality and consent requirements established in rule 173-14-16 of the Administrative Code. Any confidential information transmitted in a written document shall be marked as confidential.

(B)

(1) Representatives of the office may report any violation of provider licensing laws or standards, or medicare/medicaid certification laws or standards, discovered during the course of complaint handling to the agency responsible for enforcing those laws or standards.

(2) Representatives of the office may report any violations of professional licensing laws or standards discovered during the course of complaint handling to the appropriate professional board or organization.

(3) Representatives of the office may report any violation of the provider agreement, medicaid discrimination laws, nursing home waiting list requirements, personal needs allowance laws, medicaid covered services provisions, or facility transfer plans discovered during the course of complaint handling to the department of medicaid.

(4) To the extent permitted by federal law, a representative of the office may report to an appropriate authority any suspected violation of state law discovered during the course of an advocacy visit or investigation.

(C) Any public agency that receives a referral from a representative of the office shall acknowledge receipt of the referral within thirty days after the date on which the agency received the referral and, except as otherwise provided by law, shall notify the representative of the results of its investigation within thirty days after the date on which the agency completes its investigation.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 1/30/2018 and 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.22 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(2), 1324.11(e)(3), 1324.11(e)(4), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.22 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(2), 1324.11(e)(3), 1324.19(b)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-19 Case records and reporting of core services.

(A) The complaint case record shall include only objective observations of items such as the consumer's physical condition, behavior, conversations, and other facts that are revealed during the course of the investigation. In addition, where appropriate to the complaint, all complex complaint case records shall contain the data required in ODIS.

(B) Documentation of advocacy and general-information services shall include only objective information required in ODIS.

(C) All records shall be retained by the SLTCO or regional programs for three years after the case is closed.

(D) Representatives shall contemporaneously document all activity in ODIS within six days after the activity is performed. For the purposes of this paragraph, "contemporaneously" means activity is documented within six days after the activity is performed.

(E) Access to case records and other reports of ombudsman activity contained in ODIS is limited to representatives.

(F) Information contained in the records maintained by the office and the regional programs shall be released only at the discretion of the SLTCO. Identities of consumers, witnesses, and complainants shall not be released absent a court order.

(1) When a record, either in whole or in part, or a request to submit to deposition or to testify in an administrative or judicial proceeding, is requested by a party outside of the office, the request must be submitted upon receipt to the office or the regional program in writing for consideration.

(2) When any representative receives a request for a record, either in whole or in part, the representative shall notify the SLTCO in writing within one business day. When any representative receives a request to submit to deposition or to testify in an administrative or judicial proceeding, the representative shall notify the SLTCO immediately, by telephone.

(3) Within one business day after notification, the ombudsman shall submit the written request and complete and submit a form approved by the SLTCO to the SLTCO or the designee of the SLTCO by facsimile transmission (in the case of a regional ombudsman receiving the request) describing the case involved, the circumstance for the request, and other required information in a format prescribed by the SLTCO.

(4) The SLTCO or the designee of the SLTCO shall review the records requested and discuss the circumstance with the ombudsman to discuss whether to release or withhold records.

(5) As appropriate, the SLTCO or the designee of the SLTCO shall secure permission from the consumer or complainant to release identity. Names and identifying information about consumers, complaints, and/or witnesses shall not be released without written consent of the affected individuals or their legally authorized representatives who have the proper scope of authority to provide such consent, unless required by court order. The SLTCO may request that the regional ombudsman seek the required consent.

(6) The SLTCO or the designee of the SLTCO shall consult with legal counsel as needed.

(7) As necessary, and as requested by the SLTCO, the role of the SLTCO's legal counsel shall include the following:

(a) Negotiating with the party issuing the request in order to implement the SLTCO determination.

(b) Explaining the confidentiality restrictions.

(c) Advising the SLTCO on the risks and benefits of disclosure.

(d) Taking action to quash the request.

(e) Being present during deposition or testimony.

(8) When an ombudsman advocates for a consumer at an administrative hearing (e.g., discharge hearing, medicare/medicaid appeal hearing) according to an established action plan, the ombudsman may present copies of consumer medical records obtained during the course of the investigation with consumer consent as it is determined necessary to advocate for the consumer and according to ombudsman laws, rules, and policies to protect confidentiality.

Replaces: 173-14-19

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.19 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(2), 1324.11(e)(3), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.19 , 173.20 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(2), 1324.11(e)(3), 1324.19(b)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-20 System advocacy.

(A) Systems advocacy includes, but it not limited to, evaluating and making known concerns and issues regarding long-term care by doing all of the following:

(1) Preparing an annual report containing information and findings regarding the types of problems experienced by consumers and the complaints made by or on behalf of consumers. The report shall include recommendations for policy, regulatory, and legislative changes to solve problems, resolve complaints, and improve the quality of care and life for consumers and shall be submitted to the governor, the speaker of the house of representatives, the president of the senate, the directors of health and of job and family services, and the commissioner of the administration on aging of the United States department of health and human services.

(2) Monitoring and analyzing the development and implementation of federal, state, and local laws, regulations, and policies regarding long-term care services in this state and recommending to officials changes the office considers appropriate in these laws, regulations, and policies.

(3) Providing information and making recommendations to public agencies, members of the general assembly, and others regarding problems and concerns of consumers.

(B) The SLTCO shall personally, or through representatives, analyze, comment on, and monitor the development and implementation of federal, state, and local laws, regulations, and other government policies and actions pertaining to long-term care providers and services and to the health, safety, welfare, and rights of consumers, and to recommend any changes in such laws, regulations, and policies as the office determines appropriate.

(C) The SLTCO, as head of the office, shall be able to independently make determinations and establish positions of the office, without representing the determinations or positions of ODA or other state agency, regarding the following:

(1) Recommendations to changes in federal, state, and local laws, regulations, policies, and actions pertaining to the health, safety, welfare, and rights of consumers.

(2) Provision of information to public and private agencies, legislators, the media, and other persons, regarding the problems and concerns of consumers and recommendations related to the problems and concerns.

(D) The SLTCO shall seek input from representatives and stakeholders and may consult with ODA and stakeholders in making determinations and establishing positions of the office. Methods may include the following:

(1) Providing for public forums to discuss concerns and problems relating to action, inaction, or decisions that may adversely affect the health, safety, welfare, or rights of consumers by providers of long-term care and their representatives, public agencies and entities, and social service agencies.

(2) Conducting public hearings.

(3) Sponsoring workshops and conferences.

(4) Holding meetings for the purpose of obtaining information about consumers, discussing and publicizing their needs, and advocating solutions to their problems.

(5) Promoting the development of citizen organizations.

(E) Representatives shall adhere to the determinations and positions of the office as established by the SLTCO.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.14, 173.7, 173.19, 173.20, 173.22 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.15

173-14-21 Designated long-term care ombudsman regions.

(A) The regional long-term care ombudsman programs shall serve the following regions of the state:

(1) Region 1: Butler, Warren, Clinton, Hamilton, and Clermont counties.

(2) Region 2: Montgomery, Darke, Shelby, Logan, Miami, Preble, Clark, Greene, and Champaign counties.

(3) Region 3: Van Wert, Putnam, Hancock, Mercer, Auglaize, Hardin, and Allen counties.

(4) Region 4: Williams, Fulton, Lucas, Defiance, Henry, Wood, Ottawa, Sandusky, Erie, and Paulding counties.

(5) Region 5: Seneca, Huron, Wyandot, Crawford, Richland, Ashland, Marion, Morrow, and Knox counties.

(6) Region 6: Union, Delaware, Licking, Madison, Franklin, Fairfield, Fayette, and Pickaway counties.

(7) Region 7: Highland, Ross, Vinton, Jackson, Gallia, Pike, Brown, Adams, Scioto, and Lawrence counties.

(8) Region 8: Perry, Morgan, Noble, Monroe, Hocking, Athens, Washington, and Meigs counties.

(9) Region 9: Muskingum, Guernsey, Belmont, Coshocton, Harrison, Jefferson, Carroll, Tuscarawas, and Holmes counties.

(10) Region 10A: Lake, Cuyahoga, Geauga, Medina, and Lorain counties.

(11) Region 10B: Wayne, Stark, Portage, and Summit counties.

(12) Region 11: Ashtabula, Trumbull, Mahoning, and Columbiana counties.

(B) When requested by the SLTCO, nothing in this rule shall prohibit one regional program from providing ombudsman services in another region if adequate resources are made available.

Replaces: 173-14-20

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(6), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.19, 173.20 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(6)
Prior Effective Dates: 6/15/1991, 12/27/2001, 12/28/2006

173-14-22 Initial designation of regional long-term care ombudsman programs: standards.

(A) No sponsoring agency shall serve as a regional long-term care ombudsman program unless it has been designated as such by the SLTCO.

(B) Except as otherwise provided in paragraph (A) of this rule, no sponsoring agency shall be fully designated as a regional program unless it has complied with all the following required structural standards:

(1) The sponsoring agency shall be a tax-exempt organization.

(2) The sponsoring agency shall have a governing board with responsibility to set policy for the regional program; provide ongoing leadership; ensure compliance with all program and contract requirements, all relevant federal and state statutes, regulations, and policies; and ensure program integrity and stability. A majority of the members on the sponsoring agency's governing board shall not have a conflict of interest.

(3) No sponsoring agency, nor any member of its administrative staff that has responsibilities related to the ombudsman program, shall hold an unremedied conflict of interest.

(4) The sponsoring agency shall retain the type of staff required under rule 173-14-14 of the Administrative Code.

(5) The sponsoring agency shall maintain an incoming toll-free telephone line dedicated to the regional ombudsman program to be answered during normal business hours by a representative of the office.

(6) The sponsoring agency shall have the capacity to develop policies and procedures that conform to all federal and state statutes, regulations, and policies. Within six months of designation, the sponsoring agency shall submit all such regional program policies and procedures to the SLTCO. The SLTCO shall review for approval all regional program policies and procedures. The sponsoring agency shall make all the following regional program policies and procedures available to all representatives in the regional program:

(a) Complaint prioritization.

(b) Case assignment.

(c) Recruiting, screening, training, and supervising volunteers.

(d) Implementation of the conflict of interest remedies for potential employees, representatives, and policy board members, if those remedies are approved by the SLTCO.

(e) Procedures for handling conflicts of interest that arise during the course of providing core ombudsman services.

(f) Participation in the regulatory agencies' survey and certification processes, including performance within the federal regulations; balancing program priorities; and specifying when to attend an exit conference; a statement of the information the ombudsman will give to the survey team; specifying that representatives with a noted conflict of interest may not participate in the certification process of that provider.

(g) Personnel policies for representatives of the office.

Replaces: 173-14-21

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(6), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.19, 173.20 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(6)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-23 Initial designation of regional long-term care ombudsman programs: process.

The SLTCO shall not designate an agency as a new regional long-term care ombudsman program (regional program) unless the agency has complied with all the required structural standards established in paragraph (B) of rule 173-14-22 of the Administrative Code, and has completed an ombudsman plan acceptable to the SLTCO. The SLTCO shall temporarily designate a new regional program as needed.

(A) The SLTCO shall adhere to the following process when designating a sponsoring agency to serve as a new regional program:

(1) In consultation with the AAA, the SLTCO shall issue a request for proposal (RFP) seeking a sponsoring agency to serve as the regional program. The RFP shall identify all requirements that a sponsoring agency shall meet in order to be designated as a regional program and shall request the submission, within thirty days, of an ombudsman plan and documents to support the sponsoring agency's claim to meet these requirements.

(2) The SLTCO shall conduct an on-site visit to each of the eligible agencies responding to the RFP to verify the facts presented in each proposal.

(3) The SLTCO shall review the ombudsman plans of all proposals submitted and shall choose the agency most appropriate to serve as the regional program. When making a decision, the SLTCO shall take into consideration the recommendation of the AAA.

(4) The SLTCO shall notify the AAA and responding agencies of the decision. The SLTCO shall include in the notification the right of every agency not chosen to request a hearing to appeal the SLTCO's decision. The notice and hearing process shall follow the procedures established in Chapter 119. of the Revised Code.

(5) The SLTCO shall notify the agency of its designation year.

(B) Any sponsoring agency receiving full or provisional designation as a regional program shall enter into a contract with the AAA or the SLTCO. At a minimum, the contract shall specify the following:

(1) The geographical region to be served by the regional program.

(2) A requirement that the regional program shall abide by all state and federal laws, regulations, policies and procedures governing the office of the SLTCO.

(3) A requirement that the regional program shall abide by all ODA policies and procedures relating to contractors.

(4) A requirement that the regional program shall comply with all of the reporting requirements in rule 173-14-19 of the Administrative Code.

(C)

(1) The SLTCO shall develop a summary and action plan in conjunction with the full or provisional designation of each newly designated regional program.

The summary and action plan shall address areas of positive practices and concern. In addition, the summary and action plan shall specify actions to be taken by the regional program to correct problem areas or any violation of the law or the structural standards that are discovered during the initial designation process.

(2) The summary and action plan shall be developed by the regional program then reviewed and finalized by the SLTCO.

(3) Once the summary and action plan has been issued, the regional program's director, AAA, or sponsoring agency involved in the designation process shall be given thirty days to provide written comments to the SLTCO on the content of the summary and action plan. If these parties do not provide written comments to the SLTCO within thirty days, the summary and action plan shall go into effect. If these parties provide written comments to the SLTCO within thirty days, the SLTCO shall take the comments into consideration when finalizing the summary and action plan.

(4) The AAA and the SLTCO shall provide the technical assistance or contacts, or conduct the visits required under the terms of the summary and action plan. If appropriate, the SLTCO may perform a program review to monitor the implementation of the summary and action plan.

Replaces: 173-14-22

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(6), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.16 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(6)
Prior Effective Dates: 12/27/2001, 12/28/2006

173-14-24 Development of ombudsman plans by all programs.

(A)

(1) Each regional program shall develop an ombudsman plan that describes short- term activities to cover one year and long-term activities on strategic areas to cover two years or more. Long-term components shall address strategic program development, such as the future development of funding sources or the future direction of the program. The requirement to develop such an ombudsman plan may be waived by the SLTCO, as the SLTCO deems appropriate.

(2) The plan shall be approved by the SLTCO using the following requirements:

(a) Goals are useful, achievable, and in keeping with the core services and thrust of the SLTCO office's goals.

(b) Objectives are rational to the goals.

(c) Action steps shall lead to achieving the stated objectives.

(d) Time lines are reasonable.

(e) Outcome standards are rational to the service, measurable, and quantified as much as possible.

(f) Potential impact is clearly described.

(g) Budget supports the plan.

(B) The ombudsman plans for regional programs seeking initial designation and for those programs deemed to need additional oversight by the SLTCO shall address the following:

(1) Complaint handling, including, intake, screen, complaint investigation, complaint resolution, and follow-up activities.

(2) Providing a regular presence, including increasing awareness by consumers, sponsors, providers, social services, and the aging network of the program and its functions; and increasing the number of complaints received directly from consumers.

(3) Public education and information, including increasing awareness of the program and long-term care issues.

(4) Identifying systemic issues, monitoring the development and implementation of policy by agencies that have an effect on the lives of consumers, coordinating and advocating with agencies and the legislature, and documenting the progress of systemic reform.

(5) Representation at hearings and legal representation, including defining the types of hearings in which the regional program representatives shall provide representation and developing how the regional program shall ensure legal representation is provided to clients in other cases.

(6) Professional development and continuing education for representatives, including assuring that volunteer representatives can pass the appropriate certification exam, and developing a continuing education program targeted at the needs of representatives.

(7) Recruitment, screening, retention, and supervision of volunteer representatives, including increasing the number of volunteer hours and increasing the capacity of volunteers to do such activities as complaint handling, establishing presence, observing, and monitoring issues and providers, and providing information to the public.

(8) Fund raising, including identifying where additional resources are needed, and developing strategies for raising funds to meet those needs.

(9) Program administration, including developing the ombudsman plan; increasing the skills of administrative staff in such areas as fund-raising, accounting methods, performance appraisals, supervision of personnel, and similar administrative activity.

(10) Internal quality assurance process, including identifying problems in the delivery of core ombudsman services and developing objectives, action steps with time lines, and outcome standards for correcting the problems.

(11) Optional services, including defining those services delivered by the regional program that are not core services and developing goals, objectives, action steps with time lines, and outcome standards for measuring the success and impact of the services.

(12) Each provision under paragraph (A) of this rule.

(13) Other areas of program operation identified by the SLTCO.

Replaces: 173-14-23

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.16 , 173.18 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e), 1324.17
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-25 Program review for continued designation.

(A) The SLTCO shall conduct an annual program review, no less frequently than every two years, to determine whether the regional program may continue its designation as a regional long-term care ombudsman program. In addition to the regular program review, the SLTCO may conduct additional program reviews whenever service delivery problems occur within the region served by a regional program.

The AAA having jurisdiction in the designated region may participate in the program review to the extent possible without access to confidential information.

Nothing in this rule shall prohibit the AAA from conducting a fiscal review independent of the SLTCO's program review, except that the AAA shall inform the SLTCO of the results of any such review.

(B)

(1) When conducting any program review, the SLTCO shall review the following:

(a) The program's continued compliance with the structural standards established in paragraph (B) of rule 173-14-22 of the Administrative Code.

(b) The program's continued compliance with all state and federal laws, regulations, policies, and procedures governing the office of the SLTCO.

(c) The program's continued compliance with the requirements pertaining to the maintenance of program policies and procedures as established in paragraph (B)(6) of rule 173-14-22 of the Administrative Code.

(d) The program's complaint case records to determine the quality of the program's complaint-handling efforts and to determine whether the program complies with the case handling protocol established in rule 173-14-16 of the Administrative Code.

(e) The program's attainment of the outcomes and objectives provided for under its current ombudsman plan.

(f) The program's ombudsman plan for the ensuing year. The plan shall be prepared according to paragraph (A) of rule 173-14-24 of the Administrative Code.

(g) The program's performance on quality measures established by the SLTCO with input from regional program directors.

(h) The program's advocacy and information service.

(2) If the AAA chooses to participate in a program review, the AAA may take the lead in conducting the reviews required under paragraphs (B)(1)(a) to (B)(1)(c) of this rule and the SLTCO may be present and offer comments. The SLTCO shall take the lead in conducting the reviews required under paragraphs (B)(1) (d) to (B)(1)(f) of this rule and the AAA may be present and offer comments, except that the AAA may not be present or offer comments during any part of the review includes confidential information.

(3) The AAA involved in the program review shall have access to all necessary program administrative records and the SLTCO shall have access to all necessary records. Program administrative records include, but are not limited to, governing board minutes; conflict of interest screening forms; quality assurance documents; client satisfaction surveys; and professional development documents.

(4) When conducting reviews under paragraph (B)(1)(d) of this rule, the SLTCO shall review a minimum of fifteen cases, drawn from a random sampling of cases documented by the regional program.

(C) If appropriate, upon the completion of any program review the SLTCO shall develop an action plan for quality (APQ) in conjunction with the regional program. The APQ shall be developed according to paragraph (C) of rule 173-14-23 of the Administrative Code.

(D)

(1) Within twenty business days after completing any program review, the SLTCO shall provide the regional program and the AAA having jurisdiction in the designated region with written notification of the results. The date of notification shall begin the new designation period which shall not exceed one year.

(2) If the SLTCO withdraws the regional program's designation or grants the regional program only provisional designation status, the SLTCO and the AAA shall follow the notice and hearing requirements set forth in Chapter 119. of the Revised Code. The sponsoring agency may appeal the SLTCO's decision.

Replaces: 173-14-24

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.16 , 173.18 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)
Prior Effective Dates: 06/15/1997, 12/27/2001, 12/28/2006, 02/13/2009, 08/01/2015

173-14-26 Changes in a regional program's designation status; notice rights; and hearing requirements.

(A) The SLTCO may change the designation of a fully-designated regional program to a provisional designation, or may withdraw the designation of a fully or provisionally-designated regional program for cause. Cause may include any of the following:

(1) The regional program's failure to follow policies and procedures that conform comply with sections 173.14 to 173.27 of the Revised Code, this chapter, all relevant sections of the Older Americans Act, or other related federal laws regulating the activities of the office.

(2) The regional program's failure to meet structural standards.

(3) The regional program's failure to provide services according to sections 173.14 to 173.27 of the Revised Code, this chapter, all relevant sections of the Older Americans Act, other related federal laws, the policies and procedures of the office, the service contract, or an approved ombudsman plan.

(4) The development of an unremedied conflict of interest involving the regional program, its sponsoring agency, or an individual associated with either.

(5) The misfeasance, malfeasance, or nonfeasance of an employee of the program or a representative of the office.

(B) When provisionally designating a fully-designated regional program, the SLTCO shall provide the regional program with notice of the decision to provisionally designate the program. The notice shall contain an explanation of the SLTCO's reason for the provisional designation, specify the changes or corrections necessary for the program to come into compliance with the program review standards or conflict of interest provisions, define the length of time the regional program will be given to come into compliance, and shall explain that failure to implement the requirements of the notice shall lead to a withdrawal of designation. A regional program may appeal the SLTCO's decision to provisionally designate the program. The appeal shall be conducted according to Chapter 119. of the Revised Code.

(C) The SLTCO may withdraw the designation of a regional program when the scope and severity of the cause is of such a nature that corrections are not likely to be successfully implemented. The SLTCO may presume such failures when any of the following occurs:

(1) The cause is found to involve a disregard of the office's policies and procedures, structural standards, or federal or state law.

(2) The pattern of problems are repeated and correction is unlikely.

(3) Attempted corrections of problems by the regional program have not been successful.

(D) The SLTCO shall give the regional program notice of the decision to withdraw the regional program's designation. The notice shall contain an explanation of the SLTCO's reason for the withdrawal of the designation. The sponsoring agency may appeal the SLTCO's decision according to Chapter 119. of the Revised Code.

(E) A regional program may voluntarily withdraw its designation as a regional long-term care ombudsman program by providing the AAA with jurisdiction in the designated region and by providing the SLTCO with a written notice of its intent ninety days before the date upon which the program expects the withdrawal of designation to take place.

(F) The sponsoring agency of a regional program that voluntarily withdraws its designation or that has had its designation withdrawn by the SLTCO shall surrender intact to the SLTCO all ombudsman case records; documentation of core services in ODIS according to rule 173-14-19 of the Administrative Code; the identification cards of all of its representatives; any equipment purchased with title III or title VII funds awarded under the Older Americans Act, the long-term care ombudsman state subsidy, bed fee monies; and the balance of any state, federal, or bed fee monies it has been allocated as a result of its designation as a regional ombudsman program on the effective date of the regional program's de-designation or voluntary withdrawal of designation, or as otherwise agreed to by the AAA, the regional program, and the SLTCO.

(G) The SLTCO shall ensure the continuation of ombudsman services in any designated region where a regional program has voluntarily withdrawn its designation from the office or been de-designated.

(H) In all cases where the SLTCO seeks to provisionally designate a fully-designated regional program, or to withdraw the designation of a provisionally-designated or fully-designed regional program, the SLTCO shall follow the notice and hearing procedures established in Chapter 119. of the Revised Code.

(I) Notice: SLTCO shall give notice of a change in designation to the regional program's sponsoring agency. The notice shall be given by registered mail with a return receipt and shall include all of the following:

(1) The charges or other reasons for the proposed action.

(2) The law or rule directly involved in regard to the charges or reasons for the proposed action.

(3) A request that any explanation or extenuating circumstances regarding the SLTCO's decision be provided in writing to the SLTCO.

(4) A statement informing the sponsoring agency it is entitled to a hearing if it so requests such a hearing within thirty days after the mailing date of the notice.

(5) A statement informing the sponsoring agency that, at the hearing, the sponsoring agency may be represented by its board, director, attorney, or other such representative as is permitted to practice before the agency; or, that the sponsoring agency may present its position, arguments, or contentions in writing; and, that the representative of the sponsoring agency may present evidence and examine witnesses appearing for and against the sponsoring agency at the hearing.

(J) Whenever a sponsoring agency requests a hearing in accordance with this rule, the SLTCO shall immediately set the date, time, and place of the hearing and forthwith notify the sponsoring agency thereof. The date set for the hearing shall be within ten days, but not earlier than seven days, after the sponsoring agency requested the hearing, unless otherwise agreed to by the department and the sponsoring agency. The SLTCO shall conduct all appeal hearings according to Chapter 119. of the Revised Code.

Replaces: 173-14-25

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.16 , 173.18 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-27 Decertification of a representative or removal of a candidate for certification.

(A) In all cases where the SLTCO seeks to decertify a representative of the office, or to remove a candidate for certification, the SLTCO shall give notice to the party against whom action is to be taken, as well as to the regional program with which the party is affiliated and the regional program's sponsoring agency, if applicable.

Upon receipt of the notice, the sponsoring agency shall ensure the representative or the candidate is relieved of all complaint-handling duties requiring contact with consumers or providers until such time as all appeals have been exhausted and a final determination has been made.

Notice shall be given by registered mail, return receipt requested, and shall include all of the following:

(1) The charges or other reasons for the proposed action.

(2) The law or rule directly related to the charges or reasons for the proposed action.

(3) A request that any explanation or extenuating circumstances connected to the SLTCO's decision be provided in writing to the SLTCO.

(4) A request for the return of the representative's or candidate's identification card after all appeals have been exhausted, and a statement as to the consequences for failure to return the card.

(5) A statement informing the representative or candidate that the representative or candidate is entitled to a hearing if the representative or candidate so requests such a hearing within thirty days after receiving the notice.

(6) A statement informing the representative or candidate that, at the hearing, the representative or candidate may be represented by the regional program board, director, attorney, or other such representative as is permitted to practice before the agency; or, that the representative or candidate may present its position, arguments, or contentions in writing; and, that the representative or candidate may present evidence and examine witnesses appearing for and against the representative or candidate at the hearing.

(B) Whenever a party requests a hearing in accordance with this rule, the SLTCO shall set the date, time, and place for the hearing and shall notify the party thereof within ten business days after receiving the request for a hearing. The date set for the hearing shall be within fifteen days after the date on which the party requested the hearing unless otherwise agreed to by the parties.

(C) ODA's director shall designate a hearing officer who has not participated in the decision to decertify the representative or candidate to preside over the hearing. Upon completion of the hearing, the hearing officer shall make a recommendation and forward it to the SLTCO. The SLTCO shall make the final decision within thirty days after the hearing concludes. The SLTCO shall inform the candidate or representative who made the request for the hearing, of the decision through registered mail, return receipt requested. The SLTCO's decision shall be the final administrative form of appeal. If the representative's appeal is successful, the representative shall be reinstated to the performance of all duties of the office.

Replaces: 173-14-26

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(6), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.15, 173.17, 173.21 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(6)
Prior Effective Dates: 07/11/1991, 12/27/2001, 12/28/2006

173-14-28 Bed fee collection guidelines.

(A) The department of aging shall collect an annual bed fee of six dollars for each bed maintained for resident use by each of the facilities listed in division (A) of section 173.26 of the Revised Code.

(B) Annually, the department shall provide each of the facilities described in paragraph (A) of this rule with an invoice requesting payment of the bed fee. The invoice shall include all the following information:

(1) The time period covered by the invoice.

(2) The basis for calculating the amount owed by the facility.

(3) The deadline for receipt of payment, which shall be thirty days after the mailing date indicated on the invoice.

(4) The available methods of payment.

(5) The address where payment shall be submitted.

(6) The consequences of non-payment.

(C) Division (A) of section 173.26 of the Revised Code requires a facility that fails, within ninety days after the deadline for receipt of payment, to pay the bed fee to be assessed at two times the original invoiced amount.

(D) For purposes of section 131.02 of the Revised Code, the department shall certify to the attorney general any payment not received by the department within one hundred and twenty days after the mailing date indicated on the invoice.

Replaces: 173-14-27

Effective: 8/1/2017
Five Year Review (FYR) Dates: 08/01/2022
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.26 ; Section 305(a)(1)(C) Older Americans Act of 1965, as amended by the Older Americans Act Reauthorizaton Act of 2016, 79 Stat. 210, 42 USC 3001; 45 CFR 1321.11, 1324.11(e), 1324.13(b)(1), 1324.15(b).
Rule Amplifies: 173.26
Prior Effective Dates: 07/11/1991, 12/27/2001, 10/31/2003, 12/28/2006.

173-14-29 Response to allegations about ombudsman performance.

(A) Any individual or organization may make a complaint about the action or inaction of a representative.

(B) The SLTCO shall provide each representative with standard written information about the process outlined in this rule.

(C) The office will investigate and attempt to resolve complaints in the following order of responsibility:

(1) Either of the following:

(a) Regional ombudsman program director when the complaint is about a representative affiliated with the respective regional program; or,

(b) Sponsoring agency director when the complaint is about the regional program director.

(2) SLTCO's quality improvement coordinator.

(3) SLTCO.

(D) The protocol for investigation and resolution shall include the following steps in the order determined to be appropriate by the ombudsman responding to the complaint:

(1) Interview complainant to gather facts of the allegation.

(2) Interview witnesses if any identified by the complainant.

(3) Review documentation of the performance in question.

(4) Interview the representative who is the subject of the complaint.

(5) Make a determination of any remedial action needed, including but not limited to additional education or supervision.

(6) Consultation with the sponsoring agency and/or SLTCO staff.

(7) Documentation of the outcome in the representative's personnel file.

(8) Documentation of training or technical assistance provided in ODIS.

Effective: 5/1/2018
Five Year Review (FYR) Dates: 05/01/2023
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.16 ; 42 U.S.C. 3025(a)(1)(C), 3058g(a)(5)(D); 45 C.F.R. 1321.11, 1324.11(e)(7), 1324.13(b)(1), 1324.15(b)
Rule Amplifies: 173.16 , 173.18 ; 42 U.S.C. 3058g; 45 C.F.R. 1321.11, 1324.11(e)(7)