Chapter 173-3 Provider Agreements

173-3-01 Older Americans Act: introduction and definitions.

(A) Introduction to Chapter 173-3 of the Administrative Code: This chapter regulates AAA provider agreements for goods and services paid, in whole or in part, with Older Americans Act funds.

(B) Definitions for Chapters 173-3 and 173-4 of the Administrative Code:

"AAA-provider agreement" ("agreement") means a contract between an AAA and a provider for the provision of goods or services to consumers

"Activities of daily living" ("ADLs") means bathing; dressing; eating; grooming; toileting; transferring in and out of a bed or chair; and walking.

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

"Assessment" means a gathering of information about a person's strengths, problems, financial resources, and care needs in the following major functional areas: physical health, utilization of medical care, ADLs, IADLs, mental and social functioning, physical environment, and utilization of services and supports.

"Assistance with self-administration of medication" has the same meaning as in as in paragraph (C) of rule 4723-13-02 of the Administrative Code when the assistance is provided by an unlicensed person.

"Care-coordination program" means a program coordinating and monitoring the provision of goods and services.

"Caregiver" and "family caregiver" have the same meaning as "family caregiver" in Section 302 of the Older Americans Act.

"Consumer" means, for the purposes of goods or services paid for, in whole or in part, with Older Americans Act funds, any person sixty years of age or older, unless a different age is required by a state or federal law.

"Consumer's signature" means the signature, mark, or electronic signature of a consumer, or the consumer's caregiver verifying the provision of goods and services. Examples of technologies used to record electronic signatures are "Co-Pilot," "MealService," "MJM," "MySenior Center," "SAMS Scan," "Santrax," "SeniorDine," "SERVtracker," "SSAID," and call-in verification.

"Contract" has the same meaning as "AAA-provider agreement," unless the context clearly indicates otherwise.

"Day" means a twenty-four-hour period beginning and ending at midnight.

"Incident" means an event that is inconsistent with the routine care or routine provision of goods and services to a consumer. An incident may involve a consumer, caregiver (to the extent it impacts a consumer), provider, provider's staff or facility, another facility, an AAA's staff, ODA's staff, or other administrative authorities. Examples of an incident are abuse, neglect, abandonment, an accident, or an unusual situation resulting in an injury to a person or damage to the person's property or equipment.

"Instrumental activities of daily living" ("IADLs") means preparing meals, shopping for personal items, medication management, managing money, using the telephone, doing heavy housework, doing light housework, and the ability to get and use available transportation without assistance.

"Licensed practical nurse" ("LPN") has the same meaning as in section 4723.01 of the Revised Code.

"ODA" means the Ohio department of aging.

"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."

"Older Americans Act funds" means the federal funds awarded to ODA through Title III of the Older Americans Act and any state or local funds used to match those federal funds, regardless of whether the local funds are public or private funds. For the purposes of this chapter and Chapter 173-4 of the Administrative Code, "Older Americans Act funds" does not mean funds for an ombudsman program.

"Planning and service area" ("PSA") means a geographic region of Ohio that ODA designated as a planning and service area under rule 173-2-02 of the Administrative Code.

"Provider" means a person or entity entering into an AAA-provider agreement with an AAA to provide goods or services to consumers. The three categories of providers are agency providers, self-employed providers, and consumer-directed providers. "Agency provider" means a provider hiring persons to provide goods and services to consumers. "Self-employed provider" means a provider who provides goods and services to consumers and who does not hire, or contract with, other persons to provide those goods or services. "Consumer-directed individual provider" means a provider (e.g., relative, friend, neighbor, or other person) a consumer hired and directs to provide goods and services to the consumer.

"Registered nurse" ("RN") has the same meaning as in section 4723.01 of the Revised Code.

"RFP" means "request for proposal."

"Service plan" means a written outline of goods and services authorized for a consumer regardless of the funding source for the goods or services.

Replaces: 173-3-01

Effective: 8/1/2016
Five Year Review (FYR) Dates: 08/01/2021
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392, Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2015 edition).
Rule Amplifies: 173.392, Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016.
Prior Effective Dates: 02/19/2009, 06/01/2014.

173-3-02 Transportation service. [Rescinded].

Rescinded eff 2-15-09

173-3-04 Older Americans Act: general requirements for AAA-provider agreements.

(A) Authority: Each AAA shall enter into AAA-provider agreements ("agreements") to develop and implement a comprehensive and coordinated system of services for consumers and their caregivers. Each AAA is ultimately responsible to ODA for ensuring that all state and federal funds received from ODA are used in a manner that complies with this chapter and the uniform administrative requirements, cost principles, and audit requirements for federal awards under 45 C.F.R. Part 75 (December 26, 2014).

(B) Purchase-of-service agreements:

(1) The AAA shall only enter into purchase-of-service agreements, unless the requirements of paragraph (C) of this rule are met.

(2) As used in this rule, "purchase-of-service agreements" means an agreement through which a provider is paid, wholly or in part, with Older Americans Act funds a pre-determined unit rate for only the goods or services it actually provides in accordance with the agreement.

(C) Time-and-materials agreements:

(1) The AAA is not required to obtain written permission from ODA before entering into a time-and-materials agreement if the agreement only pertains to the provision of one or more of the following: a chore service; client finding; home maintenance, modification, or repair; information and assistance (referrals); mass outreach; socialization; telephoning; visiting; or goods or services provided through the national family caregiver support program.

(2) The AAA shall obtain written permission (hard copy or electronic) from ODA before entering into a time-and-materials agreement if the agreement pertains to the provision of a good or service ODA did not list in paragraph (C)(1) of this rule.

(3) If an AAA enters into a time-and-materials agreement, in the agreement, the AAA shall place a limit on the dollar amount of the AAA's obligation under the agreement, and the provider shall submit evidence to verify its costs before the AAA pays the provider. Only expenses that are reasonable under 45 C.F.R. Part 75 (December 26, 2014) are allowable for payment using Older Americans Act funds. The AAA shall monitor providers with whom it has entered into time-and-materials agreements to ensure that the providers' expenses do not exceed the limits that the AAA established in the agreements.

(4) As used in this rule, "time-and-materials agreement" means a agreement through which a provider is paid, in whole or in part, with Older Americans Act funds for the goods and services it provides to consumers based upon their actual costs (i.e., time and materials) to the provider and not upon a pre-determined unit rate.

(D) Retroactive: The AAA shall not pay a provider for any goods or services unless a valid agreement is in place before the provider begins to provide the goods or services. No agreement is valid unless, and until, it is signed by authorized representatives from both the AAA and the provider.

(E) Ineligible providers: The AAA shall comply with 2 C.F.R. Part 180 (December 26, 2014), as supplemented by 2 C.F.R. Part 376 (December 26, 2014), which prohibits the AAA from entering into an agreement with any provider the SAM database lists as excluded or disqualified from agreements involving federal funds. As used in this paragraph, "SAM database" means the general service administration's "System for Award Management," which is available to the general public for free on www.sam.gov.

(F) Not earning funds: An AAA shall only make a portion of the funds awarded to a provider available for use by one or more other existing providers without first going through one of the competitive procurement processes under 45 C.F.R. 75.329 (December 26, 2014) if, in the agreement, the AAA stated that it may redistribute funds if a provider is not, in a timely manner, earning the funds it was awarded and if the AAA determines that the provider is not, in a timely manner earning the funds it was awarded in an existing agreement. A provider may appeal an AAA's decision to redistribute funds under rule 173-3-09 of the Administrative Code.

Replaces: 173-3-04

Effective: 8/1/2016
Five Year Review (FYR) Dates: 08/01/2021
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392 ; Section 305(a)(1)(C) of the Older Americans Act of 1965, 70 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2015 edition).
Rule Amplifies: 173.392 ; Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016.
Prior Effective Dates: 02/19/2009, 06/01/2014.

173-3-05 Older Americans Act: procurement standards.

(A) Federal requirements: When an AAA procures goods or services paid, in whole or in part, with Older Americans Act funds, the AAA shall comply with the requirements under 45 C.F.R. 75.327 to 75.335 (December 26, 2014).

(1) 48 C.F.R. Subpart 2.1 (December 26, 2014) establishes the federal micro-purchase threshold at three thousand dollars, except as otherwise discussed in Subpart 2.1. An AAA shall not use micro-purchase procurement for AAA-provider agreements ("agreements") worth more than three thousand dollars.

(2) 2 C.F.R. Part 300 (December 26, 2014) establishes the federal simplified acquisition threshold at one hundred fifty thousand dollars. An AAA shall not use small-purchase procurement for agreements worth more than one hundred fifty thousand dollars.

(B) Additional state requirements: If an AAA submits a written request to ODA seeking permission to use a non-competitive procurement process, the AAA shall comply with paragraph (A) of this rule and the following:

(1) The AAA shall submit its written request to ODA no fewer than thirty days before the AAA needs a decision from ODA.

(2) The AAA's written request shall not consider a public exigency or emergency to be a basis for non-competitive procurement if the AAA created the exigency or emergency.

(3) The AAA's request shall provide ODA with evidence to verify that the circumstances in 45 C.F.R. 75.329(f) (December 26, 2014) exist.

(4) If the AAA wants to procure goods or services from a single source, the AAA's request shall verify that the circumstances in 45 C.F.R. 75.329(f)(1) (December 26, 2014) exist by including the names of all known providers of the goods or services that are located in, or willing to do business in, the planning and service area. The AAA's request shall also include emails or letters from each of those providers to verify that the providers are unable to provide the goods or services that the AAA wants to procure.

Replaces: 173-3-05

Effective: 8/1/2016
Five Year Review (FYR) Dates: 08/01/2021
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392 ; Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2015 edition).
Rule Amplifies: 173.392 ; Section 321 of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001
Prior Effective Dates: 02/15/2009, 06/01/2014.

173-3-05.1 Older Americans Act: procurement standards for renewable and multi-year AAA-provider agreements.

(A) An AAA shall not offer a provider a renewable or multi-year AAA-provider agreement ("agreement") unless the AAA procured for the agreement according to rule 173-3-05 of the Administrative Code and this rule.

(B) Renewable:

(1) If an agreement is to be renewable after the agreement's initial term, the AAA shall clearly state the following in the RFP for the renewable agreement:

(a) The AAA shall state that the agreement is renewable after the initial term.

(b) The AAA shall state that it retains the right to decline to renew the agreement.

(c) If the agreement upon which providers would bid includes an opportunity for rate increases upon renewal, the AAA shall state the methodology by which the AAA would determine the amount, if any, of rate increases upon renewal. If the agreement upon which providers would bid does not include an opportunity for rate increases upon renewal, the AAA shall state that the agreement would not include an opportunity for rate increases upon renewal.

(d) The AAA shall state the circumstances, if any, under which it may terminate a renewed agreement.

(2) The AAA shall clearly state the following in each renewable agreement:

(a) The AAA shall state that the agreement is renewable after the initial term.

(b) The AAA shall state that it retains the right to decline to renew the agreement.

(c) If the agreement includes an opportunity for rate increases upon renewal, the AAA shall state the methodology by which the AAA would determine the amount, if any, of rate increases upon renewal. If the agreement does not include an opportunity for rate increases upon renewal, the AAA shall state that the agreement does not include an opportunity for rate increases upon renewal.

(d) A statement indicating the circumstances, if any, under which the AAA may terminate a renewed agreement.

(3) An AAA shall not award a renewable agreement that would remain in effect, whether in its initial term or a renewed term, after the last day the AAA's approved area plan is in effect.

(C) Multi-year term:

(1) If the agreement is for a multi-year term, the AAA shall clearly state the following in the RFP:

(a) The AAA shall state that the agreement is for a multi-year term.

(b) The AAA shall state that it may terminate the agreement, rather than fulfill all years of the multi-year term, under the any one or more of the following circumstances:

(i) The provider does not demonstrate satisfactory performance.

(ii) The AAA does not have funds to pay for the goods or services for a subsequent year.

(iii) A situation arises that was unforeseen at the time the AAA and the provider entered into the agreement. Examples of unforeseen situations are changes in market conditions or changes in the law regulating the goods or services the agreement covers.

(c) If the agreement upon which providers would bid includes an opportunity for rate increases during the multi-year term, the AAA shall state the methodology by which the AAA would determine the amount, if any, of rate increases during the multi-year term. If the agreement upon which providers would bid does not include an opportunity for rate increases during the multi-year term, the AAA shall state that the agreement would not include an opportunity for rate increases.

(2) The AAA shall clearly state the following in each agreement with a multi-year term:

(a) The AAA shall state that the agreement is for a multi-year term.

(b) The AAA shall state that it may terminate the agreement, rather than fulfill all the years of the multi-year term, under any one or more of the following circumstances:

(i) The provider does not demonstrate satisfactory performance.

(ii) The AAA does not have funds to pay for the goods or services for a subsequent year.

(iii) A situation arises that was unforeseen at the time that the AAA and the provider entered into the agreement. Examples of unforeseen situations are changes in market conditions or changes in the law that regulates the goods or services the agreement covers.

(c) If the agreement upon which providers would bid includes an opportunity for rate increases during the multi-year term, in the agreement, the AAA shall include the methodology by which the AAA would determine the amount, if any, of rate increases during the multi-year term. If the agreement does not include an opportunity for rate increases during the multi-year term, in the agreement, the AAA shall state that it does not include an opportunity for rate increases.

(3) An AAA shall not award a multi-year agreement that would remain in effect after the last day the AAA's approved area plan is in effect.

Replaces: 173-3-04, 173-3-06.

Effective: 8/1/2016
Five Year Review (FYR) Dates: 08/01/2021
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392 ; Section 305(a)(1)(C) of the Older Americans Act of 1965, 70 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2015 edition).
Rule Amplifies: 173.392 ; Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016.
Prior Effective Dates: 173-3-04: 02/19/2009, 06/01/2014. 173-3-06: 02/15/2009, 02/14/2010, 08/30/2010, 01/01/2013, 12/19/2013.

173-3-06 Older Americans Act: requirements to include in every AAA-provider agreement.

(A) Federal requirements: An AAA shall comply with the following federal requirements when entering into an AAA-provider agreement ("agreement") for goods or services paid, in whole or in part, with Older Americans Act funds, the AAA shall comply with the following:

(1) Uniform administrative requirements, cost principles, and audit requirements for federal awards: The agreement shall comply with 45 C.F.R. 75.327 to 75.335 (December 26, 2014), including Appendix II to 45 C.F.R., Part 75 (December 26, 2014).

(2) Targeting:

(a) In the agreement, the AAA shall list the focal points in the service area covered by the agreement that the AAA designated under Section 306(a)(3)(B) of the Older Americans Act.

(b) In the agreement, the AAA shall require the following:

(i) The provider shall specify how it intends satisfy the need for services by consumers with the greatest economic and social needs with particular attention to consumers who are low-income, who are low-income minorities, who have limited proficiency in the English language, who reside in rural areas, and who are at risk for institutional placement.

(ii) The provider shall meet the AAA's specific objectives for giving services to specific consumer groups.

(3) Additional federal laws: The agreement shall comply with the Older Americans Act and any additional federal law governing, or federal rule regulating, the agreement.

(B) Additional state requirements: Every agreement for goods or services paid, in whole or in part, with Older Americans Act funds shall comply with the following:

(1) Program and funding identification:

(a) In the agreement, the AAA shall identify the names of the federal and state programs that are sources for the Older Americans Act funding being used for the procurement of the goods and services being procured through the agreement.

(b) In the agreement, the AAA shall contain the following statement:

"This agreement is for the provision of goods or services paid with federal funds that the United States Department of Health and Human Services appropriated to the Ohio Department of Aging (ODA). ODA, in turn, allocated the federal funds to the area agency on aging. The agreement is subject to federal laws and rules, state laws, and ODA's rules."

(2) Additional state laws:

(a) The agreement shall comply with any rule in Chapters 173-3 or 173-4 of the Administrative Code regulating agreements in general or the provision of specific goods or services being procured through the agreement.

(b) The agreement shall comply with any additional state law governing, or state rule regulating agreements in general or the provision of specific goods or services being procured through the agreement.

(3) Safety:

(a) Disasters: In the agreement, the AAA shall require the provider to cooperate with the AAA and ODA to assess disaster impact upon consumers and to coordinate with public and private resources in the field of aging to assist consumers whenever the president of the United States declares that the provider's service area is a disaster area.

(b) Significant changes: If the provider provides goods and services to a consumer that the AAA case manages through a care-coordination program, in the agreement, the AAA shall require the provider to notify the AAA of any significant change that may necessitate a reassessment the case-managed consumer's need for goods and services no later than one day after the provider is aware of a repeated refusal to receive goods or services; changes in the consumer's physical, mental, or emotional status; documented changes in the consumer's environmental conditions; or, other significant, documented changes to the consumer's health and safety. If "one day after" falls on a weekend or legal holiday, as defined in section 1.14 of the Revised Code, the deadline is extended to the day immediately following "one day after" that is not on a weekend or legal holiday.

(c) APS: In the agreement, the AAA shall require the provider to immediately report any reasonable cause to believe a consumer is the victim of abuse, neglect, or exploitation to the local adult protective services program in accordance with section 5101.61 of the Revised Code.

(d) Terminating the provision of goods and services: If the provider provides goods or services to a consumer that the AAA case manages through a care-coordination program, the agreement shall require the provider to notify the AAA and the case-managed consumer in writing of the anticipated last day of goods or services to the case-managed consumer no later than thirty days before the anticipated last day of goods or services, unless the reason for discontinuing the goods or services is the hospitalization, institutionalization, or death of the consumer; serious risk to the health or safety of the provider; the consumer's decision to discontinue the goods or services; or a similar reason why the provider is unable to notify the AAA thirty days before the anticipated last day of goods or services. The provider shall also notify the case-managed consumer how he or she may reach a long-term care ombudsman. If the thirtieth day falls on a weekend or legal holiday, as defined in section 1.14 of the Revised Code, the deadline is extended to the day immediately after the thirtieth day that is not on a weekend or a legal holiday.

(4) Confidentiality: In the agreement, the AAA shall include any federal or state confidentiality requirements and also the following requirements:

(a) The provider shall not disclose information concerning a consumer unless the provider obtains and retains the consumer's written, informed consent to do so and the purpose for the disclosure is associated with the provider's provision of goods and services to the consumer.

(b) The provider shall not disclose information concerning a consumer for a purpose unassociated with the provider's provision of goods and services even if the provider obtains and retains the consumer's written, informed consent to do so.

(c) If the provider retains consumers' records electronically, the provider shall store the records in a password-protected file. If the provider does not retain records electronically, the provider shall store consumers' records in a designated, locked storage space.

(5) Provider qualifications: In the agreement, the AAA shall include the following requirements:

(a) When hiring an applicant for, or retaining an employee in, a paid direct-care position, the provider shall review databases and check criminal records according to section 173.38 of the Revised Code and Chapter 173-9 of the Administrative Code, unless the provider is self-employed. If the provider is self-employed, the AAA shall review databases and check criminal records of the provider according to section 173.381 of the Revised Code and Chapter 173-9 of the Administrative Code. Division (B)(1) of section 109.572 of the Revised Code requires the bureau of criminal identification and investigation to include sealed criminal records in its criminal records reports for criminal records checks conducted under sections 173.38 and 173.381 of the Revised Code.

(b) If a federal, state, or local government regulatory authority prohibits the provider from providing the goods or services required by the agreement, the provider shall notify the AAA of the disciplinary action and the AAA shall, simultaneous to the date of the regulatory authority's disciplinary action, deem the provider to be ineligible to be paid with Older Americans Act funds for providing goods or services to consumers.

(6) Sub-contracting: In the agreement, the AAA shall prohibit the provider from sub-contracting any of its duties under the agreement to another provider unless the provider obtains authorization from the AAA before sub-contracting.

(7) Modification:

(a) In the agreement, the AAA shall describe the grounds (and the process) for modifying the agreement.

(b) In the agreement, the AAA shall state that any amendments to the laws, rules, or regulations the AAA cites in the agreement will result in a correlative modification to the agreement without the necessity of executing a written amendment.

(8) Renewable and multi-year: If the agreement is renewable or covers a multi-year term, the agreement shall comply with rule 173-3-05.1 of the Administrative Code.

(9) Service verification and records retention:

(a) In no agreement, shall an AAA prohibit a provider from using electronic systems to verify the provision of goods or services or to retain records.

(b) In the agreement, the AAA shall require providers to retain any record relating to costs, goods and services provided, supporting documentation for payment of goods and services provided, and all deliverables until the last of the following dates:

(i) Three years after the date the provider receives payment for the goods or services.

(ii) The date on which ODA, the AAA, or a duly-authorized law enforcement official concludes monitoring the records and any findings are finally settled.

(iii) The date on which the auditor of the state of Ohio, the inspector general, or a duly-authorized law enforcement official concludes an audit of the records and any findings are finally settled.

(10) Payment:

(a) In the agreement, the AAA shall describe how it shall pay the provider, including the amount and payment method.

(b) In the agreement, the AAA shall include the following requirements:

(i) The provider shall comply with rule 173-3-07 of the Administrative Code.

(ii) The provider shall return any Older Americans Act funds payments for its goods or services, if the provider's provision of the goods or services did not comply with the Administrative Code, the Revised Code, or any other law.

(11) Administrative hearings:

(a) In the agreement, the AAA shall state that the provider may appeal a decision the AAA takes against the provider according to rule 173-3-09 of the Administrative Code.

(b) If the AAA intends to redistribute unearned funds to other providers, in the agreement, the AAA shall state that it may redistribute funds if a provider is not, in a timely manner, earning the funds it was awarded and if the AAA determines the provider is not, in a timely manner earning the funds it was awarded in the agreement.

(C) An AAA may add requirements into an agreement in addition to the requirements in paragraphs (A) ad (B) of this rule if the additional requirements do not conflict with any federal or state law.

Replaces: 173-3-06

Effective: 8/1/2016
Five Year Review (FYR) Dates: 08/01/2021
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392 ; Section 305(a)(1)(C) of the Older Americans Act of 1965, 70 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2015 edition).
Rule Amplifies: 173.392 ; Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016.
Prior Effective Dates: 02/15/2009, 02/14/2010, 08/30/2010, 01/01/2013; 08/30/2015.

173-3-06.1 Adult day service.

(A) "Adult day service" ("ADS") means a regularly-scheduled service delivered at an ADS center, which is a non-institutional, community-based setting. ADS includes recreational and educational programming to support a consumer's health and independence goals; at least one meal, but no more than two meals per day that meet the consumer's dietary requirements; and, sometimes, health status monitoring, skilled therapy services, and transportation to and from the ADS center.

(B) Requirements for ADS in addition to the mandatory clauses under rule 173-3-06 of the Administrative Code:

(1) In general:

(a) Service levels: The required components of the three service levels are presented below and in "Table 1" to this rule:

(i) Basic ADS shall include structured activity programming, health assessments, and the supervision of one or more ADL.

(ii) Enhanced ADS shall include the components of basic ADS, plus hands-on assistance with one or more ADL (bathing excluded), supervision of medication administration, assistance with medication administration, comprehensive therapeutic activities, intermittent monitoring of health status, and hands-on assistance with personal hygiene activities (bathing excluded).

(iii) Intensive ADS shall include the components of enhanced ADS, plus hands-on assistance with two or more ADLs, regular monitoring of health status, hands-on assistance with personal hygiene activities (bathing included, as needed), social work services, skilled nursing services (e.g., dressing changes), and rehabilitative services, including physical therapy, speech therapy, and occupational therapy.

Table 1: Levels and Components of ADS

  

BASIC ADS

ENHANCED ADS

INTENSIVE ADS

Structured activity programming

Yes

Yes

Yes

Health assessments

Yes

Yes

Yes

Supervision of ADLs

One or more ADL

One or more ADL

All ADLs

Hands-on assistance with ADLs

No

Yes, one or more ADL (bathing excluded)

Yes, minimum of two ADLs (bathing included)

Hands-on assistance with medication administration

No

Yes

Yes

Comprehensive therapeutic activities

No

Yes

Yes

Monitoring of health status

No

Intermittent

Regular

Hands-on assistance with personal hygiene activities

No

Yes (bathing excluded)

Yes (bathing included, as needed)

Social work services

No

No

Yes

Skilled nursing services

No

No

Yes

Rehabilitative services

No

No

Yes

(b) Transportation: The provider shall transport each consumer to and from the ADS center by performing a transportation service that complies with rule 173-3-06.6 of the Administrative Code, unless the provider enters into a contract with another provider who complies with rule 173-3-06.6 of the Administrative Code, or unless the caregiver provides or designates another person or non-provider, other than the ADS center provider, to transport the consumer to and from the ADS center.

(c) Case manager's assessment: If the consumer receives a case management service, as defined under section 102(a)(11) of the Older Americans Act, as part of care coordination:

(i) The case manager shall assess each consumer's needs and preferences then specify which service level will be approved for each consumer; and,

(ii) The provider shall retain records to show that it furnishes the service at the level that the case manager authorized.

(d) Provider's initial assessment:

(i) The provider shall assess the consumer before the end of the consumer's second day of attendance at the center. If the consumer is enrolled in care coordination, the provider may substitute a copy of the case manager's assessment of the consumer if the case manager assessed the consumer no more than thirty days before the consumer's first day of attendance at the center.

(ii) The initial assessment shall include both of the following components:

(a) Functional and cognitive profiles that identify the ADLs and IADLs that require attention or assistance of ADS center staff; and,

(b)Social profile including social activity patterns, major life events, community services, caregiver data, formal and informal support systems, and behavior patterns.

(e) Health assessment: No later than thirty days after the consumer's initial attendance at the ADS center or before the consumer receives the first ten units of service at the ADS center, whichever comes first, the provider shall either obtain a health assessment of each consumer from a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, or RN, or require a staff member who is a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, or RN to perform a health assessment of each consumer. The health assessment shall include the consumer's psychosocial profile and shall identify the consumer's risk factors, diet, and medications. If a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, or RN who is not a staff member of the provider performs the health assessment, the provider shall retain a record of the professional's name and phone number.

(f) Activity plan: No later than thirty days after the consumer's initial attendance at the ADS center or before the consumer receives the first ten units of service at the ADS center, whichever comes first, the provider shall either obtain the services of a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, or RN to draft an activity plan for each consumer or the provider shall require a staff member who is a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, or RN to draft an activity plan for each consumer. The plan shall identify the consumer's strengths, needs, problems or difficulties, goals, and objectives. The plan shall describe the consumer's:

(i) Interests, preferences, and social rehabilitative needs;

(ii) Health needs;

(iii) Specific goals, objectives, and planned interventions of ADS that meet the goals;

(iv) Level of involvement in the drafting of the plan, and, if the consumer has a caregiver, the caregiver's level of involvement in the drafting of the plan; and,

(v) Ability to sign his or her signature versus alternate means for a consumer signature.

(g) Plan of treatment: Before administering medication or meals with a therapeutic diet, and before providing a nursing service, nutrition consultation, physical therapy, or speech therapy, the provider shall obtain an order from a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, or certified nurse-midwife. The provider shall obtain the order for the plan of treatment at least every ninety days for each consumer that receives medication, meals with a therapeutic diet, a nursing service, nutrition consultation, physical therapy, or speech therapy. The provider shall comply with the requirements for meals with a therapeutic diet under rule 173-4-05.2 of the Administrative Code.

(h) Interdisciplinary care conference:

(i) Frequency: The provider shall conduct an interdisciplinary care conference for each consumer at least once every six months.

(ii) Participants: The provider shall conduct the conference between the provider's staff members and invitees who choose to participate. If the consumer receives case management as part of care coordination, the provider shall invite the case manager to participate in the conference. The provider shall invite any physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, or RN who does not work for the provider, but who furnished the provider with a health assessment of the consumer or an activity plan for the consumer, to participate in the conference. If the consumer has a caregiver, the provider shall invite the caregiver to the conference. The provider may also invite the consumer to the conference. The provider shall invite the case manager, physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, RN, caregiver, or consumer by furnishing the date and time to the case manager seven days before the conference begins.

(iii) Revise activity plan: If the conference participants identify changes in the consumer's health needs, condition, preferences, or responses to the service, the provider shall obtain the services of a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, RN to revise the activity plan accordingly or shall require a staff member who is a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, certified nurse-midwife, RN to revise the activity plan accordingly.

(iv) Records: The provider shall retain records on each conference's determinations.

(i) Activities: The provider shall post daily and monthly planned activities in prominent locations throughout the center.

(j) Lunch and snacks:

(i) The provider shall provide lunch and snacks to each consumer who is present during lunchtime or snacktime.

(ii) The provision of lunch shall comply with the meal service requirements of rule 173-4-05 of the Administrative Code.

(2) Center requirements:

(a) Specifications: The provider shall only perform ADS in a center with the following specifications:

(i) If the center is housed in a building with services or programs other than ADS, the provider shall assure that a separate, identifiable space and staff are available for ADS activities during all hours in which the provider furnishes ADS in the center.

(ii) The center shall comply with the "ADA Accessibility Guidelines for Buildings and Facilities" in appendix A to 28 C.F.R. Part 36 (July 1, 2012 edition).

(iii) The center shall have at least sixty square feet per individual that it serves, excluding hallways, offices, rest rooms, and storage areas.

(iv) The provider shall store consumers' medications in a locked area that the provider maintains at a temperature that meets the storage requirements of the medications.

(v) The provider shall store toxic substances in an area that is inaccessible to consumers.

(vi) The center shall have at least one toilet for every ten individuals present that it serves and at least one wheelchair-accessible toilet.

(vii) If the center provides intensive ADS, the center shall have bathing facilities suitable to the needs of consumers who require intensive ADS.

(b) Emergency safety plan:

(i) The provider shall develop and annually review a fire inspection and emergency safety plan.

(ii) The provider shall post evacuation procedures in prominent locations throughout the center.

(c) Evacuation drills:

(i) At least quarterly, the provider shall conduct an evacuation drill from the center while consumers are present.

(ii) The provider shall retain records on the date and time it completes each evacuation drill.

(d) Fire extinguishers and smoke alarms:

(i) The provider shall have fire extinguishers and smoke alarms in the center and shall provide routine maintenance to them.

(ii) At least annually, the provider shall conduct an inspection of the fire extinguishers and smoke alarms and shall document the completion of each inspection.

(3) Staffing levels:

(a) The provider shall have at least two staff members present whenever more than one consumer is present, including one who is a paid personal care staff member and one who is certified in CPR.

(b) The provider shall maintain a staff-to-consumer ratio of at least one staff member to every six consumers at all times.

(c) The provider shall have one RN, or LPN under the direction of an RN, present whenever a consumer who receives enhanced ADS or intensive ADS requires components of enhanced ADS or intensive ADS that fall within a nurse's scope of practice.

(d) The provider shall employ an activity director to direct consumer activities.

(4) Provider qualification:

(a) Type of provider: A provider shall only furnish ADS if the provider is an agency provider.

(b) Staff qualifications:

(i) Every RN, LPN under the direction of an RN, social worker, physical therapist, physical therapy assistant, speech therapist, dietitian, occupational therapist, or occupational therapy assistant planning to practice as a personal care staff member shall possess a current, and valid license to practice in their profession.

(ii) The activity director shall possess at least one of the following:

(a) A baccalaureate or associate degree in recreational therapy or a related degree;

(b) At least two years of experience as an activity director or activity assistant in a related position; or,

(c)Compliance with the qualifications required to direct consumer activities in a nursing facility under paragraph (G) of rule 3701-17-07 of the Administrative Code.

(iii) Each activity assistant shall possess at least one of the following:

(a) A high school diploma;

(b) A high school equivalence diploma as defined in section 5107.40 of the Revised Code; or,

(c)At least two years of employment in a supervised position to furnish personal care, to furnish activities, or to assist with activities.

(iv) Each personal care aide shall possess at least one of the following:

(a) A high school diploma;

(b) A high school equivalence diploma as defined in section 5107.40 of the Revised Code;

(c) At least two years of employment in a supervised position to furnish personal care, to furnish activities, or to assist with activities; or,

(d)The successful completion of a vocational program in a health or human services field.

(v) Each staff member who provides transportation to consumers shall comply with all requirements under rule 173-3-06.6 of the Administrative Code.

(vi) The provider shall retain records to show that each staff member who has in-person interaction with consumers complies with the staff qualifications under paragraph (B)(4)(b) of this rule.

(c) Staff training:

(i) Orientation: Before each new personal care aide furnishes an ADS, the provider shall train the staff member on all of the following:

(a) The expectation of employees;

(b) The provider's ethical standards;

(c) An overview of the provider's personnel policies;

(d) A description of the provider's organization and lines of communication;

(e) Incident reporting procedures; and,

(f)Universal precautions for infection control.

(ii) Task-based training: Before each new personal care aide furnishes an ADS, the provider shall furnish task-based training.

(iii) Continuing education: Each staff member shall complete at least eight hours of in-service or continuing education on appropriate topics each calendar year, unless the staff person holds a professional certification that requires at least eight hours in order to maintain the certification.

(iv) Records: The provider shall retain records showing that it complies with the training requirements under paragraph (B)(4)(c) of this rule. In doing so, the provider shall list the instructor's title, qualifications, and signature; date and time of instruction; content of the instruction; and name and signature of ADS personal care staff completing the training.

(d) Performance reviews:

(i) The provider shall complete a performance review of each staff member in relation to the staff member's job description.

(ii) The provider shall retain records to show that it complies with paragraph (B)(4)(d)(i) of this rule.

(5) Service verification:

(a) For each service furnished, the provider shall retain a record of all of the following:

(i) Consumer's name;

(ii) Date of service;

(iii) Consumer's arrival and departure times;

(iv) Consumer's mode of transportation;

(v) Name of each staff member having contact with the consumer;

(vi) The consumer's signature (The activity plan shall note if the consumer is unable to sign. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic signature.); and,

(vii) ADS staff person's signature.

(b) The provider may use a daily attendance roster to retain the records required under paragraph (B)(5)(a) of this rule.

(c) The provider may use a technology-based system to collect or retain the records required under this rule.

(d) The provider shall retain records required under this rule and furnish access to those records for monitoring according to paragraph (A)(21) of rule 173-3-06 of the Administrative Code.

(C) Units of service:

(1) Units of ADS are calculated as follows:

(a) One-half unit is less than four hours of ADS per day.

(b) One unit is four to eight hours of ADS per day.

(c) A fifteen-minute unit is each fifteen-minute period of time over eight hours up to, and including, a maximum of twelve hours of ADS per day.

(2) A unit of ADS does not include a transportation service, as defined by rule 173-3-06.6 of the Administrative Code, even if the transportation service is provided to transport the consumer to or from the ADS center.

Replaces: 173-3- 02.1

Effective: 11/01/2013
R.C. 119.032 review dates: 11/01/2018
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.04, 173.392, Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (October 1, 2012 edition)
Rule Amplifies: 173.04, 173.392, Sections 321(a)(2), (a)(5), (a)(7), and (A)(8) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006
Prior Effective Dates: 02/15/2009, 02/14/2010, 04/24/2011

173-3-06.2 Chore service.

(A) "Chore service" means a service that improves, restores, or maintains a clean, sanitary, and safe living environment through the performance of tasks on the property where the consumer resides that are beyond the consumer's capability, and the removal of hazards posing a threat to the consumer's health and welfare. Examples of tasks that comprise a chore service are:

(1) Heavy household cleaning: washing walls and ceilings; washing the outside of windows, washing the inside of windows that are difficult to reach; removing, cleaning, and re-hanging curtains or drapery; and, shampooing carpets or furniture;

(2) Simple household maintenance: replacing light bulbs; unclogging a drain; lighting and relighting a pilot light; and, replacing a furnace filter;

(3) Pest control;

(4) Disposal of garbage or recyclable materials; and,

(5) Seasonal maintenance: cleaning gutters and downspouts; removing snow or ice; trimming shrubs, cutting grass, and removing leaves; and installing existing storm windows.

(B) Eligibility: A consumer is only eligible if no other person (e.g., a landlord) has a legal or contractual responsibility to perform the service.

(C) In addition to complying with the mandatory clauses for provider agreements described in rule 173-3-06 of the Administrative Code, a chore service provider shall comply with the following requirements:

(1) Safety:

(a) The provider shall retain a record of the chemicals or substances used for each job order. The provider shall furnish the list to the AAA upon request.

(b) The provider shall inform the consumer and the AAA of any specific health or safety risks expected during the job and coordinate times and dates to provide the service to ensure minimal risk of hazard to the consumer.

(c) The provider shall comply with any applicable local codes or ordinances in the performance of each job order.

(2) Service verification:

(a) For each service performed, the provider shall retain a record of the consumer's name; service date; service description, including a comparison between tasks in the service plan and tasks provided, and whether the consumer of family caregiver consented to the service before it was provided; service units; name of each person in contact with the consumer; provider's signature; and consumer's signature.

(b) The provider may use a technology-based system to collect or retain the records required under this rule.

(c) The provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (A)(20) of rule 173-3-06 of the Administrative Code.

(D) Unit of service: One unit of chore service is one completed job order.

Effective: 12/01/2013
R.C. 119.032 review dates: 09/03/2013 and 12/01/2018
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392, Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (October 1, 2012 edition)
Rule Amplifies: 173.392, Section 321(a)(5)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006
Prior Effective Dates: 02/15/2009

173-3-06.3 Home maintenance, modification, and repair services.

(A) Definitions for this rule:

(1) "Home-maintenance service" means a service that provides critical maintenance of elements necessary to preserve the health and safety of a consumer in the consumer's home. Examples of the service are the inspection of a furnace, water heater, or water pump, plumbing and electrical maintenance; maintenance or replacement of screens or broken window panes; and, replacement or installation of electrical fuses.

(2) "Home-modification service" means a service that adapts elements of the interior or exterior of a consumer's residence to increase accessibility and enable the consumer to function with greater independence in the residence. Examples of the service are the installation of a device to improve the consumer's ability to perform ADLs; a minor interior or exterior modification to improve the health and safety of the consumer; or a ramp to a doorway or another modification to enhance accessibility.

(3) "Home-repair service" means a service that provides critical repair to elements necessary to preserve the health and safety of a consumer in the consumer's home. Examples of this service are the repair or installation of HVAC equipment; minor plumbing or electrical repair; repair or replacement of gutters, shingles, flashings, or other roofing materials; or, repairs to eliminate holes of other hazards in flooring or stairs.

(B) Eligibility: A consumer is eligible for a home-maintenance, home-modification, or home-repair service only if no other person (e.g., a landlord) has a legal or contractual responsibility to perform the job.

(C) In addition to complying with the mandatory clauses for provider agreements described in rule 173-3-06 of the Administrative Code, a provider of a home-modification, home-maintenance, or home-repair service shall comply with the following requirements:

(1) Licensure or accreditation: The provider may only perform a service that requires a license or credentials (e.g., an electrician, a HVAC specialist, a plumber) if the provider possesses a current, valid license or credentials to perform the service.

(2) Before performing a home-maintenance, home-modification, or home-repair service, the provider shall:

(a) Provide a written or electronic estimate to the AAA on the cost of the job;

(b) Obtain the AAA's written or electronic authorization to begin the service;

(c) Obtain the written consent of the property owner. If the service is a home-modification service, the provider shall obtain the written consent that indicates that the owner understands that the property will remain in the modified state after the consumer leaves the residence;

(d) Obtain any permit required by law;

(e) Inform the consumer, any other resident residing with the consumer, and the AAA of any health or safety risks expected during the performance of the service; and,

(f) Schedule a date and time to perform the service that assures a minimal risk of hazard to the consumer and any other resident residing with the consumer.

(3) Additional problems: If, while performing a home-modification, home-maintenance, or home-repair service, the provider identifies an additional problem that requires immediate maintenance or repair that the provider should service in conjunction with the AAA's original job order, the provider shall obtain additional authorization from the AAA before performing the additional job. To obtain additional authorization, the provider shall notify the AAA of the nature of the problem, how the provider plans to remedy the problem, and the estimated cost to remedy the problem. The AAA has discretion to determine whether or not to authorize an additional unit of service for the additional job and shall notify the provider in writing or electronically if it authorizes an additional unit of service.

(4) After the provider completes the service, but before billing the AAA, the provider shall:

(a) Furnish a warranty to the AAA that covers the workmanship and materials involved in the service provided; and,

(b) Obtain any necessary inspection, inspection report, or permit required by federal, state, and local laws to verify that the service was properly completed.

(5) Service verification:

(a) For each service performed, the provider shall retain a record of the consumer's name; service date; service description, including a comparison between tasks in the job order and tasks provided, and whether the consumer or family caregiver consented to the service before it was provided; service units; name of each person in contact with the consumer; provider's signature; and consumer's signature.

(b) The provider may use a technology-based system to collect or retain the records required under this rule.

(c) The provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (A)(20) of rule 173-3-06 of the Administrative Code.

(D) Unit of service:

(1) A unit of service is one completed job order.

(2) The per-job rate for a service is negotiable and is subject to the approval of the AAA before the service is provided. It includes assessment, materials, and labor.

(E) Sub-contractor: If a sub-contractor performs a unit of the service, the sub-contractor is subject to this rule. In paragraphs (C)(2)(a), (C)(3), (C)(4), (C)(4)(a), (C)(5), and (D)(2) of this rule, references to "provider" in relation to "AAA" has the same meaning as "sub-contractor" in relation to "provider."

Effective: 12/01/2013
R.C. 119.032 review dates: 09/03/2013 and 12/01/2018
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392, Section 305(a)(1)(C) of the
Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (October 1, 2012 edition)
Rule Amplifies: 173.392, Sections 321(a)(4)(A) and (a)(4)(B) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006
Prior Effective Dates: 02/15/2009

173-3-06.4 Homemaker service.

(A) Definitions for this rule:

(1) "Homemaker service" means a service that provides routine tasks to help a consumer to achieve and maintain a clean, safe, and healthy environment. Examples of components of a homemaker service are:

(a) Routine meal-related tasks: Planning a meal, preparing a meal, and planning a grocery purchase;

(b) Routine household tasks: Dusting furniture, sweeping, vacuuming, mopping floors, removing trash, and washing the inside of windows that are reachable from the floor, kitchen care (washing dishes, appliances, and counters), bedroom and bathroom care (changing bed linens and emptying and cleaning bedside commodes), and laundry care (folding, ironing, and putting the laundry away); and,

(c) Routine transportation tasks: Performing an errand outside of the presence of the consumer (e.g., picking up a prescription), grocery shopping assistance, or transportation assistance, but not a transportation service under rule 173-3-06.6 of the Administrative Code.

(2) "Aide" means the person who performs the activities of a homemaker service.

(B) Agency providers: In addition to complying with the mandatory clauses for provider agreements described in rule 173-3-06 of the Administrative Code, an agency that provides a homemaker service shall comply with the following requirements:

(1) In general:

(a) In home: The provider shall only perform a homemaker service in the consumer's home, with the exception of routine transportation tasks.

(b) Availability: The provider shall maintain the capacity to provide a homemaker service at least five days per week and possess a back-up plan for providing the service when the provider has no aide available.

(2) Aide qualifications: The provider may only allow an aide to provide the service if the provider retains a record to show that the aide successfully completed at least twenty hours of training on the following topics that included successful passage of written testing and skill testing by return demonstration:

(a) Communications skills, including the ability to read, write, and make brief and accurate oral/written reports;

(b) Universal precautions for infection control, including hand washing and the disposal of bodily waste;

(c) A homemaker service;

(d) Recognition of emergencies, knowledge of emergency procedures, and basic home safety; and,

(e) Record-keeping skills.

(3) Policies and procudures:

(a) The provider shall maintain, and comply with, its policies and procedures.

(b) At a minimum, the policies and procedures shall address:

(i) The procedure for reporting and documenting an incident;

(ii) The need to obtain the consumer's written permission before releasing information concerning the consumer to anyone;

(iii) The required content, handling, storage, and retention of consumer records; and,

(iv) Personnel matters, including job descriptions, qualifications to provide the service, performance appraisals, retaining records of orientation training, and employee ethical standards.

(c) The provider shall make its policies and procedures available to any employee and to ODA (or ODA's deisgnee) any time an employee or ODA (or ODA's designee) requests a policy or procedure.

(4) Aide training:

(a) Orientation training: Before allowing an employee to have direct, face-to-face contact with a consumer, the provider shall provide orientation training to the aides or other employee that, at a minimum, addresses the expectations of employees, the employee code of ethics, an overview of the provider's personnel policies, incident reporting procedures, the agency's organization and lines of communication, and emergency procedures.

(b) Continuing education: The provider shall retain records to show that each aide successfully completes eight hours of continuing education every twelve months, excluding agency orientation and program-specific orientation.

(5) Aide supervision:

(a) The provider shall employ at least one aide supervisor who:

(i) Is an RN;

(ii) Is an LPN who works under the supervision of a RN;

(iii) Has successfully completed a baccalaureate or associate degree in a health and human services field; or,

(iv) Has completed at least two years of work as an aide.

(b) Before allowing an aide to begin providing a homemaker service to an individual consumer, the aide supervisor shall visit the consumer's home to define the expected activities of the aide and prepare a written care plan for consumer. The visit may occur at the aide's initial visit to the consumer.

(c) After the aide provides subsequent homemaker services to the individual consumer, the aide supervisor shall evaluate compliance with the care plan, the consumer's satisfaction, and the aide's performance by conducting a visit to the consumer at least once every ninety-three days and retaining a record of this evaluation. The supervisor may do this without the presence of the aide being evaluated. In the record, the supervisor shall include the date of the visit, supervisor's name, the consumer's name, the consumer's signature, and supervisor's signature.

(6) Service verification:

(a) For each service provided, the provider shall retain a record of the consumer's name; service date, arrival time, and departure time; service description; service units; name of each aide in contact with the consumer; provider's signature; and consumer's signature.

(b) The provider may use a technology-based system to collect or retain the records required under this rule.

(c) The provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (A)(20) of rule 173-3-06 of the Administrative Code.

(C) Self-employed (non-agency) providers: In addition to complying with the mandatory clauses for provider agreements described in rule 173-3-06 of the Administrative Code, a self-employed provider that provides a homemaker service shall comply with the following requirements:

(1) Availability: The provider shall maintain the capacity to provide a homemaker service at least five days per week and possess a back-up plan for providing the service when he or she is unavailable.

(2) Service verification:

(a) The provider shall record each episode of a homemaker service, including the date of service, the time of arrival, the time of departure, a description of the tasks performed, his or her signature, and the consumer's signature.

(b) The provider may use a technology-based system to collect or retain the records required under this rule.

(c) The provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (A)(20) of rule 173-3-06 of the Administrative Code.

(D) Self-directed (consumer-directed) providers: In addition to complying with the mandatory clauses for provider agreements described in rule 173-3-06 of the Administrative Code, a self-directed provider that provides a homemaker service shall comply with the following requirements:

(1) Availability: The provider shall maintain the capacity to provide a homemaker service at least five days per week and possess a back-up plan for providing the service when he or she is unavailable.

(2) Service verification:

(a) The provider shall record each episode of a homemaker service, including the date of service, the time of arrival, the time of departure, a description of the tasks performed, his or her signature, and the consumer's signature.

(b) The provider may use a technology-based system to collect or retain the records required under this rule.

(c) The provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (A)(20) of rule 173-3-06 of the Administrative Code.

(E) Unit of service: A unit of homemaker service is one hour of homemaker service.

Effective: 12/01/2013
R.C. 119.032 review dates: 09/03/2013 and 12/01/2018
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.04, 173.392, Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (October 1, 2012 edition)
Rule Amplifies: 173.04, 173.392, Sections 321(a)(1) and (a)(5)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006
Prior Effective Dates: 02/15/2009

173-3-06.5 Personal care.

(A) Definitions for this rule:

(1) "Personal care" means a service that is comprised of tasks that help a consumer to achieve optimal functioning with ADLs and IADLs. Some examples of components of personal care are:

(a) Tasks that are components of the homemaker service under rule 173-3-06.4 of the Administrative Code, if the tasks of the homemaker service are specified in the consumer's service plan and are incidental to the services furnished, or are essential to the health and welfare of the consumer, rather than the consumer's family. The tasks include routine meal-related tasks, routine household tasks, and routine transportation tasks;

(b) Tasks that assist the consumer with managing the household, handling personal affairs, and providing assistance with self-administration of medications;

(c) Tasks that assist the consumer with ADLs and IADLs; and,

(d) Respite services.

(2) "PCA" means "personal care aide."

(B) In addition to the requirements for all provider agreements under rule 173-3-06 of the Administrative Code, a personal care provider shall comply with the following requirements:

(1) In general:

(a) In home: With the exception of any transportation services that are components of personal care, a provider shall only perform personal care in the consumer's home.

(b) Availability: The provider shall maintain the capacity to provide personal care at least five days a week and possess a back-up plan for providing the service when the provider has no PCA available.

(2) PCA qualifications: A provider shall not allow a person serve as a PCA unless the provider retains records to show that the person satisfies the requirements of paragraphs (B)(2)(a), (B)(2)(b), and (B)(2)(c) of the rule.

(a) Required subjects: To qualify to be a PCA, the person shall complete the training and pass the evaluations in a nurse aide training and competency evaluation program (NATCEP) that addresses the nine subject areas outlined in 42 C.F.R. 484.36 (October 1, 2012 edition), each of which are repeated below:

(i) Communications skills, including the ability to read, write, and make brief and accurate reports (oral, written, or electronic).

(ii) Observation, reporting, and retaining records of a consumer's status and services provided to the consumer.

(iii) Reading and recording a consumer's temperature, pulse, and respiration.

(iv) Universal precautions for infection control, including hand washing and the disposal of bodily waste.

(v) Basic elements of bodily functioning and changes in body function that should be reported to a supervisor.

(vi) The homemaker service under rule 173-3-06.4 of the Administrative Code, which includes routine meal-related tasks, routine household tasks, and routine transportation tasks.

(vii) Recognition of emergencies, knowledge of emergency procedures, and basic home safety.

(viii) Physical, emotional, and developmental needs of consumers, including the need for privacy and respect for consumers and their property.

(ix) Techniques in personal hygiene and grooming that include bed, tub, shower, and partial bath techniques; shampoo in sink, tub, or bed; nail and skin care; oral hygiene; toileting and elimination; safe transfer and ambulation; normal range of motion and positioning; and adequate nutrition and fluid intake.

(b) Approved NATCEPs: To satisfy paragraph (B)(2)(a) of the rule, the person shall complete the training and pass the evaluations in one or more of the following five categories of NATCEPs:

(i) STNA: A NATCEP approved by the Ohio department of health under section 3721.31 of the Revised Code.

(ii) COALA: The "Council on Aging Learning Advantages Program" ("COALA Program"), which is a trademark of the council on aging of southwestern Ohio, inc.

(iii) Medicare: The medicare NATCEP for home health aides that complies with 42 C.F.R., Part 484 (October 1, 2012 edition), but only if the provider retains records (e.g., verification of employment history on job application) to verify that the person has furnished home health care for compensation at least once during the previous twenty four months. (cf., 42 C.F.R. 484.4 (October 1, 2012 edition))

(iv) Vocational school: A NATCEP offered by a vocational school that included at least sixty hours of training on the subject areas listed under paragraph (B)(2)(a) of the rule.

(v) The provider's NATCEP: The provider conducted its own NATCEP, but only if the provider retains records to verify the following:The NATCEP included at least sixty hours of training on the subject areas listed under paragraph (B)(2)(a) of the rule. The provider shall verify this by retaining the records of the site, dates and times of training, and a list of the instructional materials. Each trainer and tester was a RN (or LPN under the direction of a RN). The provider shall verify this by retaining the names and credentials of each trainer and tester.The person completed the training and passed the testing. The provider shall verify this by retaining records of the testing results, the trainer's signature, and the tester's signature.

(c) Competency verification: Before allowing a person to begin serving as a PCA for the agency, the provider shall verify that the person is competent in the subject areas listed under paragraph (A)(2)(a) of the rule, as follows:

(i) STNA: If a NATCEP listed in paragraph (B)(2)(b)(i) of the rule trained the person, being listed as "active" on the state-tested nurse aide registry verifies the person's competency. (https://odhgateway.odh.ohio.gov/nar/nar_registry_search.aspx) The provider does not need to conduct additional testing to re-verify the person's competency.

(ii) Not in-house NATCEP: Except as permitted in paragraph (B)(2)(c)(iii) of the rule, if a NATCEP listed in paragraphs (B)(2)(b)(ii) to (B)(2)(b)(v) of the rule trained the person, a RN (or LPN under the direction of an RN) who works for the provider shall verify the person's competency by conducting written testing and skill testing by return demonstration upon the person. A passing score on the testing verifies the person's competency. For each person the provider tests under this paragraph, the provider shall retain records to verify the testing site, the testing date, the testing results, the name and credentials of the tester, and the tester's name, credentials, and signature.

(iii) In-house NATCEP: If a provider operated an in-house NATCEP listed under paragraph (B)(2)(b)(i), (B)(2)(b)(iii), or (B)(2)(b)(v) of the rule, and if the person completed the training and passed the competency evaluations, the provider does not need to conduct additional testing to re-verify the person's competency before allowing the person to begin serving as a PCA.

(3) Policies and procedures:

(a) The provider shall maintain, and comply with, its policies and procedures.

(b) At a minimum, the policies and procedures shall addresses:

(i) The procedure for reporting and retaining a record of an incident;

(ii) The need to obtain the consumer's written permission before releasing information concerning the consumer to anyone;

(iii) The content, handling, storage, and retention of consumer records; and,

(iv) Personnel matters, including job descriptions, qualifications to provide the service, performance appraisals, retaining records of orientation training, and employee ethical standards.

(c) The provider shall make its policies and procedures available to any employee and to ODA (or ODA's designee) any time an employee or ODA (or ODA's designee) requests a policy or procedure.

(4) PCA training:

(a) Orientation training: Before allowing an employee to have direct, face-to-face contact with a consumer, the provider shall provide the PCA or other employee with orientation training that, at a minimum, addresses the expectations of employees, employee ethical standards, an overview of the provider's personnel policies, incident reporting procedures, the provider's organization and lines of communication, and emergency procedures.

(b) Additional training: The provider shall conduct additional training and skill testing by return demonstration of PCAs who are expected to provide tasks that are not included in the subject areas listed under paragraph (B)(2)(a) of the rule.

(c) Continuing education: The provider shall retain records to show that each PCA successfully completes eight hours of in-service continuing education every twelve months, excluding agency orientation and program-specific orientation.

(5) PCA supervision:

(a) The provider shall ensure that a PCA supervisor is available to respond to emergencies when the PCAs are scheduled to work.

(b) The provider shall only allow a RN (or a LPN under the direction of a RN) to be the PCA supervisor, trainer, or tester.

(c) Before allowing a PCA to begin providing personal care to an individual consumer, the PCA supervisor shall visit the consumer's home to define the expected activities of the PCA and prepare a written activity plan for consumer. The visit may occur at the PCA's initial visit to the consumer.

(d) After the PCA's initial visit to the individual consumer, the PCA supervisor shall evaluate compliance with the activity plan, the consumer's satisfaction, and the PCA's performance by conducting a visit to the consumer at least once every sixty-two days and retaining a record of this evaluation. The PCA supervisor may do this without the presence of the PCA being evaluated. In the record, the PCA supervisor shall include the date of the visit, the PCA supervisor's name and signature, and the consumer's name and signature.

(6) Service verification:

(a) To effectively monitor the delivery of services by its employees, each provider that is an agency provider shall use a monitoring system that complies with section 121.36 of the Revised Code.

(b) For each service performed, the provider shall retain a record of the consumer's name; service date, arrival time, and departure time; service description; service units; name of each PCA in contact with the consumer; PCA's signature; and consumer's signature.

(c) The provider may use a technology-based system to collect or retain the records required under this rule.

(d) The provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (A)(20) of rule 173-3-06 of the Administrative Code.

(C) Unit of service: A unit of personal care is one hour of personal care.

Replaces: 173-3- 06.5

Effective: 01/01/2014
R.C. 119.032 review dates: 01/01/2019
Promulgated Under: 119.03
Statutory Authority: 121.36, 173.01, 173.02, 173.04, 173.392, Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (October 1, 2012 edition)
Rule Amplifies: 121.36, 173.04, 173.392, Section 321(a)(5)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006
Prior Effective Dates: 02/23/2009, 02/14/2010

173-3-06.6 Transportation service.

(A) "Transportation service" means a service that transports a consumer from one place to another through the use of a provider's vehicle and driver. Examples of places to which the service may transport a consumer are a medical office, congregate nutrition program site, grocery store, senior center, or government office.

(B) Minimum requirements for a transportation service:

(1) In general:

(a) Availability: An agency provider shall possess a back-up plan for times when a driver or vehicle is unavailable. A self-employed provider shall possess a back-up plan for times when he/she or his/her vehicle is unavailable. The back-up plan may describe the process for providing the service when the driver or vehicle is unavailable or it may describe the process for notifying the consumer that a driver or vehicle is unavailable.

(b) Into and out of vehicle: As part of each service provided, the driver shall help the consumer to safely enter and exit the vehicle. The agency provider shall maintain a policy for drivers that lists any additional responsibilities assigned to the driver by the provider agreement (e.g., helping a consumer from the door of their home to the vehicle or helping a consumer from inside their home to the vehicle). The agency provider shall inform every consumer of this policy before providing the service to the consumer (e.g., "Our driver will only pick you up if you meet him/her at the curb" or "Our driver will only pick you up if you meet him/her at the door of your home"). The self-employed provider shall maintain a policy that lists any additional responsibilities assigned to him/her by the provider agreement. The self-employed provider shall inform every consumer of this policy before providing the service to the consumer (e.g., "I will only pick you up if you meet me at the curb" or "I will only pick you up if you meet me at the door of your home").

(c) Records: For each service provided, the driver shall document the consumer's name; service date; pick-up point and time of the pick up; destination point and time of the drop off; service units; driver's name; and driver's signature.

(2) Vehicle inspections:

(a) The provider shall create a written plan for preventative maintenance and inspection of each vehicle and wheelchair lift used for this service which shall include the recommended preventative-maintenance schedule of the vehicle or wheelchair lift and the:

(i) "Annual Vehicle Inspection" on form ODA0004 (http://www.aging.ohio.gov/information/rules/forms.aspx). The provider shall only use a vehicle for the service if a mechanic who is certified by the national institute for automotive service excellence (i.e., "ASE-certified"), or another mechanic approved by the AAA, inspected it no more than twelve months beforehand and the answers to all questions on the form were "yes"; and,

(ii) "Pre-Trip Vehicle Inspection" on form ODA0008 (http://www.aging.ohio.gov/information/rules/forms.aspx). The provider shall only use a vehicle if, before providing the first service of the day, the driver inspected it and the answers to all questions required by the form were "yes."

(b) The provider shall deem that a vehicle that holds a current, valid license from the Ohio medical transportation board to operate as an ambulette is a vehicle that complies with paragraph (B)(2)(a)(i) of this rule.

(c) The provider shall maintain documentation on compliance with paragraph (B)(2)(a) of this rule.

(3) Driver qualifications:

(a) Only a driver employed by, or volunteering for, an agency provider or a driver who is a self-employed provider may provide the service. A consumer-directed individual provider shall not provide the service.

(b) Before providing the first service, the driver shall:

(i) Hold a current, valid driver's license for at least two years, hold any driver's license endorsement that is necessary to operate the type of vehicle used for the service, and have fewer than six points issued under Chapter 4506. or 4507. of the Revised Code (or have points issued under statutes of the driver's home state that are substantially equivalent to six points issued under Chapter 4506. or 4507. of the Revised Code if the driver is a resident of another state);

(ii) Obtain a signed statement from a licensed physician acting within the scope of the physician's practice that states that the driver has no medical or physical condition, including an incurable vision impairment, that may impair safe driving, passenger assistance, emergency treatment, or the health and welfare of a consumer or the general public;

(iii) Pass drug and alcohol tests. The drug tests check for the use or abuse of amphetamines, cannabinoids (THC), cocaine, opiates, and phencyclidine (PCP). The driver receives a passing score if the drug tests do not find the drugs in his/her blood, breath, or urine. The alcohol tests check blood-alcohol content. The driver receives a passing score if the alcohol tests do not find a blood-alcohol content in the driver's blood that is higher than Ohio's maximum blood-alcohol content. The driver shall obtain the drug and alcohol tests from a hospital or another entity that the Ohio department of health permits to conduct the tests;

(iv) Pass a training course in first aid and CPR offered by the American red cross, the American heart association, the national safety council, medic first aid international, American safety and health institute, or an equivalent organization approved by ODA;

(v) Possess the ability to understand written and oral instructions;

(vi) Possess the ability to comply with paragraph (B)(1)(b) of this rule; and,

(vii) Possess the ability to comply with the documentation requirement and the "Pre-Trip Vehicle Inspection" requirement under paragraphs (B)(1)(c) and (B)(2)(a)(ii) of this rule.

(c) No later than six months after a driver provides his/her first service or no later than six months after the effective date of this rule, whichever occurs later, the driver shall:

(i) Complete a defensive-driving course sponsored or endorsed by the national safety council or the Ohio department of transportation. The driver shall also complete a defensive-driving course every three years thereafter; and,

(ii) Complete an introductory course approved by ODA on passenger-assistance training that includes the following topics:

(a) Sensitivity to aging;

(b) Overview of diseases and functional factors commonly affecting older adults;

(c) Environmental considerations affecting consumers (e.g., ice on steps);

(d) Consumer assistance and transfer techniques;

(e) Management of a wheelchair, including the proper methods for securing a wheelchair;

(f) Inspection and operation of a wheelchair lift and other types of assistive equipment; and,

(g) Emergency procedures.

(d) Exceptions:

(i) Any driver for an urban or rural transit system is deemed to comply with paragraph (B)(3)(b) of this rule.

(ii) Any driver who successfully passed the defensive-driving course required under paragraph (B)(3)(c)(i) of this rule no more than three years before the effective date of this rule is deemed to comply with paragraph (B)(3)(c)(i) of this rule. (For example, a driver for an urban or rural transit system may have recently completed a defensive-driving course in order to qualify for his/her job. Therefore, he/she is not required to take another defensive-driving course before transporting a consumer under this rule. He/she is only required to complete a defensive-driving course every three years after the date he/she most recently passed a defensive-driving course.)

(iii) Any driver who successfully passed the introductory course required under paragraph (B)(3)(c)(ii) of this rule no more than three years before the effective date of this rule is deemed to comply with paragraph (B)(3)(c)(ii) of this rule. (For example, a driver for an urban or rural transit system may have recently completed the introductory course in order to qualify for his/her job. Therefore, he/she is not required to take another introductory course on transporting older persons and people with disabilities before transporting a consumer under this rule. He/she is only required to complete the refresher course every three years after the date he/she most recently passed the introductory course.)

(e) The agency provider shall maintain documentation on the compliance of each driver (or the self-employed provider shall maintain documentation on his/her compliance) with the driver qualifications in paragraph (B)(3) of this rule.

(C) Unit of service:

(1) A one-way trip constitutes one unit of transportation service.

(2) The unit rate in a provider agreement shall reflect the provider's fully-allocated costs, including administrative costs, training costs, and documentation costs.

Effective: 03/12/2011
R.C. 119.032 review dates: 11/30/2010 and 03/12/2016
Promulgated Under: 119.03
Statutory Authority: 173.02 ; 173.392 ; Section 305 (a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11
Rule Amplifies: 173.392 ; Sections 321, 414, and 416 of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006
Prior Effective Dates: 12/16/2005 (Emer.), 03/30/2006, 02/15/2009, 09/24/2009, 02/14/2010, 09/02/2010

173-3-07 Older Americans Act: consumer contributions.

(A) Introduction: All goods or services paid, in whole or in part, with Older Americans Act funds are subject to voluntary contributions. All services paid, in whole or in part, with Older Americans Act funds are subject to cost sharing, except for goods or services excluded by paragraph (C)(1) of this rule.

(B) Voluntary contributions:

(1) Each provider shall allow consumers to contribute towards the provision of goods or services paid, in whole or in part, with Older Americans Act funds, pursuant to section 315(b)(1) of the Older Americans Act and 45 C.F.R. 1321.67(a)(1) (October 1, 2015 edition). The provider may solicit consumers to contribute toward the cost of the goods and services they receive and shall encourage any consumer to contribute if the consumer's self-declared income is at, or above, one hundred eighty-five per cent of the federal poverty level.

(2) The provider shall clearly inform each consumer that contributions are purely voluntary.

(3) The provider shall protect the privacy of each consumer with respect to his or her contribution.

(4) The provider shall safeguard and account for all voluntary contributions.

(5) The provider may develop a suggested contributions schedule for voluntary contributions according to 45 C.F.R. 1321.67(c) (October 1, 2015 edition).

(6) The provider shall use collected voluntary contributions to expand the goods or services for which consumers contributed and supplement (not supplant) Older Americans Act funds for those goods or services.

(C) Cost sharing:

(1) All good and services paid, in whole or in part, with Older Americans Act funds are subject to cost sharing, except for the following goods and services:

(a) Information and assistance, outreach, benefits counseling, case management, disease prevention, health promotion, or volunteer placement.

(b) Education, training, or a support group provided through the national family caregiver support program.

(c) Congregate and home-delivered meals.

(d) Ombudsman, elder abuse prevention, legal assistance, or another consumer-protection service.

(e) Transportation, although the AAA may apply to ODA for a waiver of this exemption if the transportation is coordinated with other services and is paid, in whole or in part, with Older Americans Act funds.

(2) Each AAA shall implement and administer a cost-sharing policy that includes all of the following:

(a) The policy shall include the sliding-fee schedule below, which determines the percentage of the actual (or partial) contracted cost of a unit of a good or a service provided that the AAA shall suggest that a consumer pay based upon the consumer's individual income as a percentage of the federal poverty level. Under no circumstances shall an AAA permit or require a consumer to participate in cost sharing when the consumer's income level is below one hundred fifty per cent of the federal poverty level.

Sliding-fee Schedule

INCOME LEVEL

SUGGESTED COST SHARE

149% and below

0%

150-174%

10%

175-199%

20%

200-224%

30%

225-249%

40%

250-274%

50%

275-299%

60%

300-324%

70%

325-349%

80%

350-374%

90%

375% and above

100%

(b) The policy shall include a requirement to determine the consumer's income solely by the consumer's self-declaration of income with no requirement for verification, and no consideration of the consumer's assets, savings, or other property.

(c) The policy shall include a procedure for collecting cost-sharing payments from consumers, including from consumers receiving consumer-directed services.

(d) The policy shall include a requirement to widely distribute written materials to consumers that describe the requirements for cost sharing, the services subject to cost sharing, the procedure for cost sharing, and the sliding-fee schedule published in this rule. The written materials shall also state that a provider shall not deny any goods or services paid, in whole or in part, by Older Americans Act funds if the consumer fails to make a cost sharing payment towards those goods or services.

(e) The policy shall include a requirement to provide a receipt to a consumer or caregiver who makes a payment.

(f) The policy shall include a procedure for safeguarding and accounting for all cost-sharing funds collected.

(g) The policy shall include a requirement to retain records of all cost-sharing funds collected.

(h) The policy shall include a requirement to keep the consumer's declaration of income (or non-declaration of income) and cost-sharing payment history confidential.

(i) The policy shall include a requirement to use the funds collected from cost sharing to expand the capacity to provide the service for which the funds were given, unless the funds are used to expand the pool of funds from which the care-coordinated services are paid.

(3) The AAA may delegate the administration of its cost-sharing policy to providers with whom it enters into an AAA-provider agreement under rule 173-3-06 of the Administrative Code.

(4) The AAA may request a waiver from paragraph (C)(3) of this rule to implement and administer a cost-sharing policy. ODA shall approve the request if the AAA demonstrates to ODA, by a preponderance of the evidence, one or more of the following:

(a) At least eighty per cent of the consumers in the PSA have incomes below one hundred fifty per cent of the federal poverty level.

(b) Cost sharing generates fewer funds in the PSA than the funds required to cover its annual, ongoing administrative expenses.

(c) A waiver is necessary in order for the services normally subject to this rule to be coordinated with other service systems.

(D) Definition for this rule: "Federal poverty level" means the income level represented by the poverty guidelines as revised annually by the United States department of health and human services in accordance with section 673(2) of the "Omnibus Reconciliation Act of 1981," 95 Stat. 511, 42 U.S.C. 9902, as was in effect on January 25, 2016.

Replaces: 173-2-01, 173-3-01, 173-3-07.

Effective: 8/1/2016
Five Year Review (FYR) Dates: 08/01/2021
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392 ; Section 305(a)(1)(C) of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended in 2006; 45 C.F.R. 1321.11 (October, 2015 edition).
Rule Amplifies: 173.392 ; Section 315 of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; Omnibus Reconciliation Act of 1981, 95 Stat. 511, 42 U.S.C. 9902 (as was in effect on January 25, 2016); 45 C.F.R. 1321.67 (October, 2015 edition).
Prior Effective Dates: 173-2-02: 01/17/1999. 173-3-01: 05/15/2000, 09/30/2001, 05/16/2005. 173-3-07: 02/15/2009, 10/01/2013.

173-3-09 Older Americans Act: administrative hearings for adversely-affected providers.

(A) Introduction:

(1) A provider may request an administrative hearing ("hearing") to appeal any adverse action that an AAA has taken against the provider.

(2) AAAs and ODA shall honor all written hearing requests subject to the conditions in this rule.

(3) A hearing under this rule is not an adjudication hearing under Chapter. 119 of the Revised Code.

(B) AAA-level hearings:

(1) Written process: Each AAA shall maintain in writing a process that allows a provider to appeal an adverse action related to an AAA-provider agreement ("agreement") paid, in whole or in part, with Older Americans Act funds.

(2) Final AAA decision: An AAA that conducts an administrative hearing shall forward a copy of the provider's written request for the hearing and a copy of the AAA's final decision on the matter to ODA no later than five days after the date the AAA renders its final decision. If the fifth day falls on a weekend or legal holiday, as defined in section 1.14 of the Revised Code, the deadline is extended to the day immediately following the fifth day that is not on a weekend or legal holiday.

(C) ODA-level hearings:

(1) AAA first: ODA shall only honor a request for an administrative hearing before ODA if the provider has fully complied with the written process for appealing an adverse action by the AAA that committed the adverse action and if that AAA has rendered its final decision on the appeal.

(2) Request a hearing: To request a hearing before ODA, the provider shall submit a written request to ODA's director no later than fifteen days after the date the AAA renders its final decision. In the request, the provider shall describe the adverse action the provider is appealing and why the provider believes the AAA's decision on the matter was inappropriate. If the fifteenth day falls on a weekend or legal holiday, as defined in section 1.14 of the Revised Code, the deadline is extended to the day immediately following the fifteenth day that is not on a weekend or legal holiday.

(3) Scheduling a hearing: After ODA receives the request for an administrative hearing, ODA shall, in a timely manner, schedule a hearing and select a hearing officer to preside over the hearing.

(4) Hearing process:

(a) The hearing officer shall afford an adequate opportunity for both the provider and the AAA to present their positions and provide evidence, but may limit or terminate the discussion/testimony under any one or more of the following conditions:

(i) The provider or the AAA is unruly or combative .

(ii) The provider's or AAA's discussion/testimony is unnecessarily redundant .

(iii) The provider or the AAA negotiate a written agreement that resolves the adverse action(s) that prompted the hearing .

(iv) The provider, in a written statement, withdraws its request for the hearing.

(b) The hearing officer shall make an audio recording of the hearing or ODA shall pay a court reporter to record the hearing.

(5) Final ODA decision: The hearing officer shall review the testimony or evidence collected at the hearing and shall make a written recommendation to ODA regarding whether the AAA's action was appropriate. ODA shall render its final decision on the appeal no later than thirty days after the date of the hearing and shall send a copy of the decision, and the rationale for the decision, to the provider and the AAA. If the thirtieth day falls on a weekend or legal holiday, as defined in section 1.14 of the Revised Code, the deadline is extended to the day immediately following the thirtieth day that is not on a weekend or legal holiday.

(D) Hearings vs. court cases:

(1) A provider may seek redress from a court without waiting for the final decision of an AAA-level hearing or ODA-level hearing.

(2) If a provider enters a lawsuit against the AAA or ODA, the AAA or ODA may cease continuing with any in-progress hearing that the provider requested.

(E) As used in this rule, "adverse action" means an AAA's action concerning a particular provider to not award an agreement ; to not renew a renewable agreement; to prematurely terminate an agreement ; or to terminate a multi-year agreement for the agreement's second, third, or fourth year .

Effective: 8/1/2016
Five Year Review (FYR) Dates: 04/20/2016 and 08/01/2021
Promulgated Under: 119.03
Statutory Authority: 173.01, 173.02, 173.392 ; Section 305(a)(1)(C) of the Older Americans Act of 1965, 70 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016; 45 C.F.R. 1321.11 (October, 2015 edition).
Rule Amplifies: 173.392 ; Section 212 of the Older Americans Act of 1965, 79 Stat. 210, 42 U.S.C. 3001, as amended by the Older Americans Act Reauthorization Act of 2016.
Prior Effective Dates: 02/19/2009, 06/01/2014.