Chapter 173-39 Certification of Community-Based Long-Term Care Service Providers

173-39-01 Introduction and definitions.

(A) Introduction:

(1) This chapter establishes the certification requirements for providers who furnish services to consumers through an ODA-administered medicaid waiver program or the state-funded components of the assisted living or PASSPORT programs; the minimum requirements for furnishing services through those programs; disciplinary action against providers who do not comply with the minimum requirements; and appeal hearings for providers receiving disciplinary action.

(2) Rule 5160-58-04 of the Administrative Code requires providers to comply with many of the minimum requirements for furnishing services in this chapter when the provider furnishes those services to consumers in the "MyCare Ohio" program.

(3) If a provider furnishes services to consumers through a medicaid waiver program and also furnishes services to consumers through an Older Americans Act program or the Alzheimer's respite program, the provider shall also comply with Chapter 173-3 of the Administrative Code. If a provider furnishes services to consumers through a medicaid waiver program and also furnishes nutrition services to consumers through an Older Americans Act program, the provider shall also comply with Chapters 173-3 and 173-4 of the Administrative Code.

(B) Definitions for this chapter:

(1) "Activity of daily living" ("ADL") has the same meaning as in rule 5160-3-06 of the Administrative Code.

(2) "Activity plan" means a description of the interventions and the dates and times that the provider will furnish the interventions.

(3) "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 furnished by an unlicensed person.

(4) "Authorized representative" has the same meaning as in rule 5160:1-1- 55.1 of the Administrative Code.

(5) "Caregiver" means a relative, friend, or significant other who voluntarily furnishes assistance to the consumer and is responsible for the consumer's care on a continuing basis.

(6) "Case manager" means the registered nurse or licensed social worker that ODA's desingee employs to plan, coordinate, monitor, evaluate, and authorize services for ODA-administered programs that require provider certification under this chapter.

(7) "CDJFS" means "county department of job and family services."

(8) "Certification" means ODA's approval of a provider to furnish one or more of the services that this chapter regulates.

(9) "Consumer" means an individual who receives services as an enrollee in ODA-administered programs that requires provider certification under this chapter.

(10) "Consumer's signature" means the consumer's signature or that of the consumer's caregiver, which may include a handwritten signature; initials; stamp or mark; or electronic signature that represents the consumer's acknowledgment, including acknowledgment that he or she received a service. ODA's designee documents the consumer's signature of choice (i.e., handwritten, initials, stamp or mark, or electronic) in the consumer's record and communicates it to the provider.

(11) "Incident" means any event that is not consistent with furnishing routine care or a service to a consumer. Examples of an incident are abuse, neglect, abandonment, accidents, or unusual events or situations that may result in injury to a person or damage to property or equipment. An incident may involve a consumer, a caregiver (to the extent the event impacts the consumer), a provider, a facility, or a staff member of a provider, facility, ODA, ODA's designee, or other administrative authority.

(12) "Instrumental activity of daily living" ("IADL") has the same meaning as in rule 5160-3-08 of the Administrative Code.

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

(14) "Nursing facility" has the same meaning as in section 5165.01 of the Revised Code.

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

(16) "ODA's designee" has the same meaning as "PASSPORT administrative agency" in section 173.42 of the Revised Code. The current PASSPORT administrative agencies are the area agencies on aging that ODA lists in rule 173-2-04 of the Administrative Code plus "Catholic Social Services of the Miami Valley."

(17) "ODM" means "the Ohio department of medicaid."

(18) "Older Americans Act" has the same meaning as in rule 173-3-01 of the Administrative Code.

(19) "Plan of treatment" means the orders of a physician.

(20) "Provider" means a person or entity that furnishes a service under this chapter.

There are five types of providers:

(a) "Agency provider" means a legally-organized entity that employs staff.

(b) "Assisted living provider" means a licensed residential care facility.

(c) "Consumer-directed individual provider" means a person that a consumer directly employs and supervises to furnish a choices home care attendant service (CHCAS).

(d) "Consumer-directed personal care provider" means a person that a consumer directly employs and supervises to furnish personal care.

(e) "Non-agency provider" means a legally-organized entity that is owned and controlled by one person and that does not employ a staff.

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

(22) "Service plan" means the written outline of the services that a case manager authorizes a provider to furnish to a consumer, regardless of the funding source for those services.

(23) "Services" has the same meaning as "community-based long-term care services" in section 173.14 of the Revised Code.

(24) "Significant change" means a remarkable change in a consumer's health status, mood, behavior, or demeanor that may indicate the need for a re-assessment of the consumer's needs.

(25) "Vocational program" means a planned series, or a sequence of courses or modules, that incorporate challenging, academic education and rigorous, performance-based training to prepare participants for success in a particular health care career or occupation.

Replaces: 173-39-01

Effective: 07/01/2014
R.C. 119.032 review dates: 07/01/2019
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , 173.54 , Section 323.110 of H.B.59 (130th G.A.)
Rule Amplifies: 173.39 , 173.391 , 173.52 , 173.53 , 173.54
Prior Effective Dates: 03/31/2006, 05/07/2009, 10/16/2009, 08/30/2010, 03/17/2011

173-39-02 Conditions of participation.

(A) Introduction: This rule presents the conditions of participation for each of the five types of ODA-certified long-term care providers: agency providers, non-agency providers, consumer-directed individual providers, assisted living providers, and consumer-directed personal care providers.

(B) Agency providers: These are the conditions for any provider who seeks to become, or to remain, an ODA-certified long-term care agency provider:

(1) Service provision:

(a) The provider shall comply with any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(b) The provider may furnish a service that is not authorized by the consumer's service plan, but ODA (or ODA's designee) only reimburses the provider for furnishing a service that is authorized by the consumer's service plan.

(c) The provider shall notify ODA (or ODA's designee) no later than one business day after the provider is aware of any significant change that may affect a consumer's service needs, including:

(i) The provider does not furnish an authorized service at the time (or, for the period of time) authorized by the case manager;

(ii) The consumer moves to another address;

(iii) The provider is aware of any significant change that may impact furnishing services to the consumer, including the consumer's repeated refusal of services; or,

(iv) The consumer's physical, mental, or emotional status changes, or the provider can document changes in the environmental conditions or other health and safety issues.

(d) The provider shall notify the consumer and ODA's designee in writing at least thirty days before the last day the provider furnishes ODA-certified services to the consumer, unless:

(i) The consumer has been hospitalized, placed in a long-term care facility, or has expired;

(ii) The health or safety of the consumer or provider is at serious, imminent risk; and,

(iii) The consumer is terminating services with the provider.

(e) The provider shall adopt and implement ethical standards to require workers to furnish services in an ethical professional, respectful, and legal manner and not engage in any unethical, unprofessional, disrespectful, or illegal behavior including:

(i) Consuming the consumer's food or drink, or using the consumer's personal property without his or her consent.

(ii) Bringing a child, friend, relative, or anyone else, or a pet, to the consumer's place of residence.

(iii) Taking the consumer to the provider's place of business.

(iv) Consuming alcohol while furnishing a service to the consumer.

(v) Consuming medicine, drugs, or other chemical substances not in accordance with the legal, valid, prescribed use, or in any way that impairs the provider from furnishing a service to the consumer.

(vi) Discussing religion or politics with the consumer and others in the care setting.

(vii) Discussing personal issues with the consumer or any other person in the care setting.

(viii) Accepting, obtaining, or attempting to obtain money, or anything of value, including gifts or tips, from the consumer or his or her household members or family members.

(ix) Engaging the consumer in sexual conduct, or in conduct that a reasonable person would interpret as sexual in nature, even if the conduct is consensual.

(x) Leaving the consumer's home for a purpose not related to furnishing a service without notifying the agency supervisor, the consumer's emergency contact person, any identified caregiver, or the consumer's case manager. "Emergency contact person" means a person the consumer or caregiver wants the provider to contact in the event of an emergency to inform the person about the nature of the emergency.

(xi) Engaging in any activity that may distract the provider from furnishing a service, including:

(a) Watching television or playing computer or video games.

(b) Engaging in non-care-related socialization with a person other than the consumer (e.g., a visit from a person who is not furnishing care to the consumer; making or receiving a personal telephone call; or, sending or receiving a personal text message or email).

(c) Furnishing care to a person other than the consumer.

(d) Smoking without the consumer's consent.

(e) Sleeping.

(xii) Engaging in behavior that causes, or may cause, physical, verbal, mental, or emotional distress or abuse to the consumer.

(xiii) Engaging in behavior that a reasonable person would interpret as inappropriate involvement in the consumer's personal relationships.

(xiv) Being designated to make decisions for the consumer in any capacity involving a declaration for mental health treatment, power of attorney, durable power of attorney, guardianship; or authorized representative.

(xv) Selling to, or purchasing from, the consumer products or personal items, unless the provider is the consumer's family member who does so only when not furnishing a service.

(xvi) Engaging in behavior that constitutes a conflict of interest, or takes advantage of, or manipulates ODA-certified services resulting in an unintended advantage for personal gain that has detrimental results to the consumer, the consumer's family or caregivers, or another provider.

(2) Consumer safety:

(a) The provider shall have a written procedure for documenting consumer incidents. The procedure shall include notifying ODA (or ODA's designee) of the incident no later than one business day after the provider is aware of the incident.

(b) The provider shall report any reasonable cause to believe that a consumer has suffered abuse, neglect, or exploitation to the CDJFS (or its designee), in accordance with section 5101.61 of the Revised Code, and also notify ODA (or ODA's designee) of the reasonable cause.

(c) The provider shall maintain a minimum of one million dollars in commercial liability insurance.

(d) The provider shall maintain insurance coverage for consumer loss due to theft or property damage and furnish written instructions that any consumer may use to obtain reimbursement for a loss due to employee theft or property damage.

(3) Confidentiality: The provider shall comply with all state and federal laws and regulations governing consumer confidentiality including, but not limited to, 42 C.F.R. 431.300 to 431.307 (October 1, 2013 edition), and 45 C.F.R. parts 160, 162, and 164 (October 1, 2013 edition).

(4) Provider qualifications:

(a) The provider shall be a formally-organized business or service agency that is registered with the Ohio secretary of state that has been operating, furnishing services, and being paid for the same services for which certification is being applied for at least two adults in the community for a minimum of three months at the point of application.

(b) The provider shall disclose all entities that own at least five per cent of the business.

(c) The provider shall have a written statement defining the purpose of the business or service agency.

(d) The provider shall have written policies. Additionally, if the provider has a governing board, the provider shall have written bylaws; and, if the provider is incorporated, the provider shall have written articles of incorporation.

(e) The provider shall have a written table of organization that clearly identifies lines of administrative, advisory, contractual, and supervisory authority.

(f) The provider shall not allow a staff person to furnish a service to a consumer if the person is the consumer's spouse, parent, step-parent, legal guardian, power of attorney, or authorized representative.

(g) The provider shall not allow a volunteer to furnish any aspect of a certified long-term care service for a consumer without supervision by the provider's supervisory staff.

(h) The provider shall maintain a physical facility from which to conduct business that has all of the following:

(i) A primary business telephone number that is locally listed (e.g., in the telephone book in the provider's area of business) under the name of the business or a toll-free telephone number that is available through directory assistance that allows for reliable, dependable, and accessible communication.

(ii) A designated, locked storage space for retaining consumer records.

(i) The provider shall comply with all applicable federal, state, and local laws.

(j) The provider shall disclose the identity of any person who is an owner or has control over the agency if that person has been convicted of a felony under state or federal law.

(k) The provider shall comply with the database reviews and criminal records check requirements under Chapter 173-9 of the Administrative Code.

(l) The provider shall have a written statement supporting compliance with 45 C.F.R. 80.4 ( October 1, 2013 edition) regarding the provision of services.

(m) The provider shall have a written statement supporting compliance with the "Equal Employment Opportunity Act of 1972" (as in effect on November 20, 2012) federal wage-and-hour laws, and workers' compensation laws regarding the recruitment and employment of persons.

(n) The provider shall annually furnish to ODA (or ODA's designee) a written statement that certifies that the provider has paid all applicable federal, state, and local income and employment taxes.

(o) The provider shall participate in ODA's (and its designee's) mandatory provider training sessions.

(5) Monitoring:

(a) Records retention: The provider shall retain all records necessary, and in such form, so as to fully disclose the extent of the services the provider furnished, and significant business transactions, until the latter of:

(i) Six years after the date the provider receives payment for the service;

(ii) The date on which ODA, ODA's designee, ODM, or a duly-authorized law enforcement official concludes a review of the records and any findings are finally settled; or,

(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.

(b) Access: The provider shall, upon request, immediately furnish representatives of ODA (or ODA's designee) with access to its facility, a place to work in its facility, and access to policies, procedures, records, and documentation for each unit of service billed.

(6) Reimbursement:

(a) The provider shall bill only for a service if the provider complies with the requirements under this rule and the requirements, including service-verification requirements, under any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(b) ODA's obligation to reimburse the provider for the costs of services the provider furnishes as a certified long-term care provider is subject to the hold and review process described in rule 5160-1- 27.2 of the Administrative Code.

(c) The provider shall accept the reimbursement levels negotiated for each service by the provider and ODA's designee as payment in full, and not seek any additional payment for those services from the consumer or any other person.

(C) Non-agency providers: These are the conditions for any provider who seeks to become, or to remain, an ODA-certified long-term care non-agency provider:

(1) Service provision:

(a) The provider shall comply with any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(b) The provider may furnish a service that is not authorized by the consumer's service plan, but ODA (or ODA's designee) only reimburses the provider for furnishing a service that is authorized by the consumer's service plan.

(c) The provider shall notify ODA (or ODA's designee) no later than one business day after the provider is aware of any significant change that may affect the consumer's service needs, including:

(i) The provider does not furnish an authorized service at the time (or, for the period of time) authorized by the case manager;

(ii) The consumer moves to another address;

(iii) The provider is aware of any significant change that may impact furnishing services to the consumer, including the consumer's repeated refusal of services; or,

(iv) The consumer's physical, mental, or emotional status changes, or the provider can document changes in the environmental conditions or other health and safety issues.

(d) The provider shall notify the consumer and ODA's designee in writing at least thirty days before the last day the provider stops furnishing ODA-certified services to the consumer, unless:

(i) The consumer has been hospitalized, placed in a long-term care facility, or has expired;

(ii) The health or safety of the consumer or provider is at serious, imminent risk; and,

(iii) The consumer is terminating services with the provider.

(e) The provider shall furnish services in an ethical professional, respectful, and legal manner and shall not engage in any unethical, unprofessional, disrespectful, or illegal behavior including:

(i) Consuming the consumer's food or drink, or using the consumer's personal property without his or her consent.

(ii) Bringing a child, friend, relative, or anyone else, or a pet, to the consumer's place of residence.

(iii) Taking the consumer to his or her place of business.

(iv) Consuming alcohol while furnishing a service to the consumer.

(v) Consuming medicine, drugs, or other chemical substances not in accordance with the legal, valid, prescribed use, or in any way that impairs the provider from furnishing a service to the consumer.

(vi) Discussing religion or politics with the consumer and others in the care setting.

(vii) Discussing personal issues with the consumer or any other person in the care setting.

(viii) Accepting, obtaining, or attempting to obtain money, or anything of value, including gifts or tips, from the consumer or his or her household members or family members.

(ix) Engaging the consumer in sexual conduct, or in conduct that a reasonable person would interpret as sexual in nature, even if the conduct is consensual.

(x) Leaving the consumer's home for a purpose not related to furnishing a service without notifying the consumer's emergency contact person, any identified caregiver, or the consumer's case manager. "Emergency contact person" means a person the consumer or caregiver wants the provider to contact in the event of an emergency to inform the person about the nature of the emergency.

(xi) Engaging in any activity that may distract the provider from furnishing a service, including:

(a) Watching television or playing computer or video games.

(b) Engaging in non-care-related socialization with a person other than the consumer (e.g., a visit from a person who is not furnishing care to the consumer; making or receiving a personal telephone call; or, sending or receiving a personal text message or email).

(c) Furnishing care to a person other than the consumer.

(d) Smoking without the consumer's consent.

(e) Sleeping.

(xii) Engaging in behavior that causes, or may cause, physical, verbal, mental, or emotional distress or abuse to the consumer.

(xiii) Engaging in behavior that a reasonable person would interpret as inappropriate involvement in the consumer's personal relationships.

(xiv) Being designated to make decisions for the consumer in any capacity involving a declaration for mental health treatment, power of attorney, durable power of attorney, guardianship; or authorized representative.

(xv) Selling to, or purchasing from, the consumer products or personal items, unless the provider is the consumer's family member who does so only when not furnishing a service.

(xvi) Engaging in behavior that constitutes a conflict of interest or takes advantage of or manipulates ODA-certified services resulting in an unintended advantage for personal gain that has detrimental results to the consumer, the consumer's family or caregivers, or another provider.

(2) Consumer safety:

(a) The provider shall have a written procedure for documenting consumer incidents. The procedure shall include notifying ODA (or ODA's designee) of the incident no later than one business day after the provider is aware of the incident.

(b) The provider shall report any reasonable cause to believe that a consumer has suffered abuse, neglect, or exploitation to the CDJFS (or its designee), in accordance with section 5101.61 of the Revised Code, and also notify ODA (or ODA's designee) of the reasonable cause.

(c) The provider shall maintain a minimum of one million dollars in commercial liability insurance or professional liability insurance.

(d) The provider shall maintain insurance coverage for consumer loss due to the theft or property damage caused by the provider and furnish written instructions that any consumer may use to obtain reimbursement for a loss due to theft or property damage caused by the provider.

(3) Confidentiality: The provider shall comply with all state and federal laws and regulations governing consumer confidentiality including, but not limited to, 42 C.F.R. 431.300 to 431.307 (October 1, 2013 edition), and 45 C.F.R. parts 160, 162, and 164 (October 1, 2013 edition).

(4) Provider qualifications:

(a) The provider shall not furnish a service to a consumer if he or she is the consumer's spouse, parent, step-parent, legal guardian, power of attorney, or authorized representative.

(b) The provider shall not allow a volunteer to furnish any aspect of a certified long-term care service for a consumer except as ODA's designee authorizes the provider to do so through its provider agreement with the provider.

(c) The provider shall disclose whether he or she has been convicted of a felony under state or federal law.

(d) The provider shall comply with the database reviews and criminal records check requirements under Chapter 173-9 of the Administrative Code.

(e) The provider shall have a written statement supporting compliance with 45 C.F.R. 80.4 ( October 1, 2013 edition) regarding the provision of services.

(f) The provider shall annually furnish to ODA (or ODA's designee) a written statement that certifies that he or she has paid all applicable federal, state, and local income and employment taxes.

(g) The provider shall participate in ODA's (and its designee's) mandatory provider training sessions.

(5) Monitoring:

(a) Records retention: The provider shall retain all records necessary, and in such form, so as to fully disclose the extent of the services the provider furnished, and significant business transactions, until the latter of:

(i) Six years after the date the provider receives payment for the service;

(ii) The date on which ODA, ODA's designee, ODM, or a duly-authorized law enforcement official concludes a review of the records and any findings are finally settled; or,

(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.

(b) Access: The provider shall, upon request, immediately furnish representatives of ODA (or ODA's designee) with access to his or her workplace, a place to work in his or her workplace, and access to policies, procedures, records, and documentation for each unit of service billed.

(6) Reimbursement:

(a) The provider shall bill only for a service if the provider complies with the requirements under this rule and the requirements, including service-verification requirements, under any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(b) ODA's obligation to reimburse the provider for the costs of services the provider furnishes as a certified long-term care provider is subject to the hold and review process described in rule 5160-1- 27.2 of the Administrative Code.

(c) The provider shall accept the reimbursement levels negotiated for each service by the provider and ODA's designee as payment in full, and not seek any additional payment for those services from the consumer or any other person.

(D) Consumer-directed individual providers: These are the conditions for any person who seeks to become, or to remain, an ODA-certified long-term care consumer-directed individual provider:

(1) Service provision:

(a) The provider shall comply with any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(b) The provider shall notify ODA (or ODA's designee) no later than one business day after the provider is aware of any significant change that may affect the consumer's service needs, including:

(i) The consumer moves to another address;

(ii) The consumer has been admitted to a hospital or has visited an emergency room;

(iii) The provider is aware of any significant change that may impact the furnishing of services to the consumer, including the consumer's repeated refusal of services; or,

(iv) The consumer's physical, mental or emotional status changes, or the provider can document changes in the environmental conditions or other health and safety issues.

(c) The provider shall notify the consumer and ODA's designee in writing at least thirty days before the last day the provider furnishes the home care attendant service to the consumer, unless the health or safety of the consumer or provider is at serious, imminent risk.

(d) The provider shall furnish the home care attendant service in an ethical, professional, respectful, and legal manner and shall not engage in any unethical, unprofessional, disrespectful, or illegal behavior including:

(i) Consuming alcohol while furnishing a service to the consumer.

(ii) Consuming medicine, drugs, or other chemical substances not in accordance with the legal, valid, prescribed use, or in any way that impairs the provider from furnishing a service to the consumer.

(iii) Accepting, obtaining, or attempting to obtain money or anything of value from the consumer or his or her household members or family members. However, if the provider is the consumer's family member, he or she may accept gifts for birthdays and holidays.

(iv) Engaging the consumer in sexual conduct, or in conduct that a reasonable person would interpret as sexual in nature, even if the conduct is consensual.

(v) Leaving the home for a purpose not related to furnishing a service without the consent or knowledge of the consumer.

(vi) Engaging in any activity that may distract the provider from furnishing a service, including:

(a) Watching television or playing computer or video games.

(b) Engaging in non-care-related socialization with a person other than the consumer (e.g., a visit from a person who is not furnishing care to the consumer; making or receiving a personal telephone call; or, sending or receiving a personal text message or email).

(c) Furnishing care to a person other than the consumer.

(d) Smoking without the consumer's consent.

(e) Sleeping.

(vii) Engaging in behavior that a reasonable person would interpret as inappropriate involvement in the consumer's personal relationships.

(viii) Being designated or serve to make decisions for the consumer in any capacity involving a declaration for mental health treatment, durable power of attorney, guardianship pursuant to court order; or authorized representative.

(ix) Selling to, or purchasing from, the consumer products or personal items, unless the provider is the consumer's family member who does so only when not furnishing a service.

(2) Consumer safety:

(a) The provider shall notify ODA (or ODA's designee) of any "incident" involving a consumer, as defined in rule 173-39-01 of the Administrative Code, no later than one business day after the provider is aware of the incident.

(b) The provider shall report any reasonable cause to believe that a consumer has suffered abuse, neglect, or exploitation to the CDJFS (or its designee), in accordance with section 5101.61 of the Revised Code, and also notify ODA (or ODA's designee) of the reasonable cause.

(3) Confidentiality: The provider shall comply with all state and federal laws and regulations governing consumer confidentiality including, but not limited to, 42 C.F.R. 431.300 to 431.307 (October 1, 2013 edition), and 45 C.F.R. parts 160, 162, and 164 (October 1, 2013 edition).

(4) Provider qualifications:

(a) The provider shall maintain an active, valid medicaid agreement, as set forth in rule 5160-1- 17.2 of the Administrative Code.

(b) The provider shall not furnish a service to a consumer if he or she is the consumer's spouse, parent, step-parent, legal guardian, power of attorney, or authorized representative.

(c) The provider shall maintain telephone service that allows for reliable, dependable, and accessible communication.

(d) The provider shall maintain a secure place for retaining consumer records.

(e) The provider shall comply with all applicable federal, state, and local laws.

(f) The provider shall comply with the database reviews and criminal records check requirements under Chapter 173-9 of the Administrative Code.

(g) The provider shall participate in ODA's (and its designee's) mandatory provider training sessions.

(5) Monitoring:

(a) Records retention: The provider shall retain all records necessary, and in such form, so as to fully disclose the extent of the services the provider furnished, and significant business transactions, until the latter of:

(i) Six years after the date the provider receives payment for the service;

(ii) The date on which ODA, ODA's designee, ODM, or a duly-authorized law enforcement official concludes a review of the records, including the review described in rule 173-39-04 of the Administrative Code, and any findings are finally settled; or,

(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.

(b) Access: The provider shall, upon request, immediately furnish ODA (or ODA's designee) with access to all records required by this rule and by any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(6) Reimbursement: A provider shall accept the reimbursement levels negotiated between the provider and the consumer for each home care attendant service as payment in full and not seek any additional payment for those services from the consumer or any other person.

(E) Assisted living providers: These are the conditions for any provider who seeks to become, or to remain, an ODA-certified long-term care assisted living provider:

(1) Service provision:

(a) The provider shall not furnish any services under the assisted living program to a person who is not enrolled in the program.

(b) The provider shall comply with any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(c) The provider may furnish a service that is not authorized by the consumer's service plan, but ODA (or ODA's designee) only reimburses the provider for furnishing a service that is authorized by the consumer's service plan.

(d) The provider shall acknowledge that any statute or rule that regulates the assisted living program supersedes any clause in the facility's resident agreement.

(e) The provider shall notify ODA (or ODA's designee) no later than one business day after the provider is aware of any significant change that may affect the consumer's service needs, including:

(i) The provider is aware of any significant change that may impact furnishing services to the consumer, including the consumer's repeated refusal of services; or,

(ii) The consumer's physical, mental or emotional status changes, or the provider can document changes in the environmental conditions or other health and safety issues.

(f) The provider shall transfer or discharge a consumer under the terms of section 3721.16 of the Revised Code.

(g) If the provider terminates its medicaid provider agreement with ODM, pursuant to section 3721.19 of the Revised Code, it shall furnish written notification to the consumer and ODA's designee at least ninety days before terminating services to the consumer.

(h) The provider shall adopt and implement ethical standards of practice by requiring facility staff to furnish services in accordance with the residents' rights policies and procedures described in section 3721.12 of the Revised Code, and in accordance with the provider's policies and procedures.

(2) Consumer safety:

(a) The provider shall have a written procedure for documenting consumer incidents, in accordance with paragraph (B) of rule 3701-17-62 of the Administrative Code. The procedure shall include notifying ODA (or ODA's designee) of the incident.

(b) The provider shall report any reasonable cause to believe that a consumer has suffered abuse, neglect, or exploitation, in accordance with rule 3701-64-02 of the Administrative Code, and also notify ODA (or ODA's designee) of the reasonable cause.

(c) The provider shall maintain a minimum of one million dollars in commercial liability insurance.

(d) The provider shall maintain insurance coverage for consumer loss due to theft or property damage and furnish written instructions that any consumer may use to obtain reimbursement for a loss due to employee theft or property damage.

(3) Confidentiality: The provider shall comply with all state and federal laws and regulations governing consumer confidentiality including, but not limited to, 42 C.F.R. 431.300 to 431.307 (October 1, 2013 edition), and 45 C.F.R. parts 160, 162, and 164 (October 1, 2013 edition).

(4) Provider qualifications:

(a) The provider shall be licensed as a residential care facility by the Ohio department of health under rules 3701-17-50 to 3701-17-68 of the Administrative Code.

(b) The provider shall have a written statement of policies and directives, and bylaws or articles of incorporation.

(c) The provider shall have a written table of organization that clearly identifies lines of administrative, advisory, contractual, and supervisory authority, unless the business consists of a self-employed person.

(d) The provider shall not allow a staff person to furnish a service to a consumer if the person is the consumer's spouse, parent, parent, step-parent, legal guardian, power of attorney, or authorized representative.

(e) The provider shall not allow a volunteer to furnish any aspect of the services regulated under rule 173-39- 02.16 or 173-39- 02.17 of the Administrative Code for consumers without supervision by the provider's supervisory staff.

(f) The provider shall comply with all applicable federal, state, and local laws.

(g) The provider shall comply with the database reviews and criminal records check requirements under Chapter 173-9 of the Administrative Code.

(h) The provider shall have a written statement supporting compliance with 45 C.F.R. 80.4 ( October 1, 2013 edition) regarding the provision of services.

(i) The provider shall have a written statement supporting compliance with the "Equal Employment Opportunity Act of 1972" (as in effect on November 20, 2012) federal wage-and-hour laws, and workers' compensation laws regarding the recruitment and employment of persons.

(j) The provider shall participate in ODA's (and its designee's) mandatory provider training sessions.

(5) Monitoring:

(a) Records retention: The provider shall retain all records necessary, and in such form, so as to fully disclose the extent of the services the provider furnished, and significant business transactions, until the latter of:

(i) Six years after the date the provider receives payment for the;

(ii) The date on which ODA, ODA's designee, ODM, or a duly-authorized law enforcement official concludes a review of the records and any findings are finally settled; or,

(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.

(b) Access: The provider shall, upon request, immediately furnish representatives of ODA (or ODA's designee) with access to its facility, a place to work in its facility, and access to policies, procedures, records, and documentation for each unit of service billed.

(6) Reimbursement:

(a) The provider shall bill only for a service if the provider complies with the requirements under this rule and the requirements, including service-verification requirements, under any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(b) ODA's obligation to reimburse the provider for the costs of services the provider furnishes as a certified long-term care provider is subject to the hold and review process described in rule 5160-1- 27.2 of the Administrative Code.

(c) The provider shall accept the reimbursement levels negotiated for each service by the provider and ODA's designee as payment in full, and not seek any additional payment for those services from the consumer or any other person.

(d) The assisted living program shall not pay for any service the provider furnishes to an applicant before ODA's designee enrolls the applicant into the program and before case manager authorizes the service in the consumer's service plan.

(e) If a consumer is absent from the facility, the provider shall not accept a payment for the service under rule 173-39- 02.16 of the Administrative Code or charge the consumer an additional fee for the service or charge the consumer an additional fee to hold the unit during the consumer's absence.

(F) Consumer-directed personal care provider: These are the conditions for any person who seeks to become, or to remain, and ODA-certified long-term care consumer-directed personal care provider:

(1) Service provision:

(a) At the consumer's request, the provider shall participate in an interview with the consumer before initiating any service.

(b) The provider shall comply with any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(c) The provider shall notify ODA (or ODA's designee) no later than one business day after the provider is aware of any significant change that may affect the consumer's service needs, including:

(i) The consumer moves to another address;

(ii) The consumer has been admitted to a hospital or has visited an emergency room;

(iii) The provider is aware of any significant change that may impact the furnishing of services to the consumer, including the consumer's repeated refusal of services; or,

(iv) The consumer's physical, mental or emotional status changes, or the provider can document changes in the environmental conditions or other health and safety issues.

(d) The provider shall notify the consumer and ODA's designee in writing at least thirty days before the last day the provider furnishes the personal care service to the consumer, unless the health or safety of the consumer or provider is at serious, imminent risk.

(e) The provider shall furnish the personal care service in an ethical, professional, respectful, and legal manner and shall not engage in any unethical, unprofessional, disrespectful, or illegal behavior including:

(i) Consuming alcohol while furnishing a service to the consumer.

(ii) Consuming medicine, drugs, or other chemical substances not in accordance with the legal, valid, prescribed use, or in any way that impairs the provider from furnishing a service to the consumer.

(iii) Accepting, obtaining, or attempting to obtain money or anything of value from the consumer or his or her household members or family members. However, if the provider is the consumer's family member, he or she may accept gifts for birthdays and holidays.

(iv) Engaging the consumer in sexual conduct, or in conduct that a reasonable person would interpret as sexual in nature, even if the conduct is consensual.

(v) Leaving the home for a purpose not related to furnishing a service without the consent or knowledge of the consumer.

(vi) Engaging in any activity that may distract the provider from furnishing a service, including:

(a) Watching television or playing computer or video games;

(b) Engaging in non-care-related socialization with a person other than the consumer (e.g., a visit from a person who is not furnishing care to the consumer; making or receiving a personal telephone call; or, sending or receiving a personal text message or email).

(c) Furnishing care to a person other than the consumer.

(d) Smoking without the consumer's consent.

(e) Sleeping.

(vii) Engaging in behavior that a reasonable person would interpret as inappropriate involvement in the consumer's personal relationships.

(viii) Being designated or serve to make decision for the consumer in any capacity involving a declaration for mental health treatment, durable power of attorney, guardianship pursuant to court order; or authorized representative.

(ix) Selling to, or purchasing from, the consumer products or personal items, unless the provider is the consumer's family member who does so only when not furnishing a service.

(2) Consumer safety:

(a) The provider shall notify ODA (or ODA's designee) of any "incident" involving a consumer, as defined in rule 173-39-01 of the Administrative Code, no later than one business day after the provider is aware of the incident.

(b) Report any reasonable cause to believe that a consumer has suffered abuse, neglect, or exploitation to the CDJFS (or its designee), in accordance with section 5101.61 of the Revised Code, and also notify ODA (or ODA's designee) of the reasonable cause.

(3) Confidentiality: The provider shall comply with all state and federal laws and regulations governing consumer confidentiality including, but not limited to, 42 C.F.R. 431.300 to 431.307 (October 1, 2013 edition), and 45 C.F.R. parts 160, 162, and 164 (October 1, 2013 edition).

(4) Provider qualifications:

(a) The provider shall complete an application to become an ODA-certified long-term consumer-directed personal care provider.

(b) The provider shall maintain an active, valid medicaid agreement, as set forth in rule 5160-1- 17.2 of the Administrative Code.

(c) The provider shall be at least eighteen years of age.

(d) The provider shall have a valid social security number and at least one of the following current, valid, government-issued, photographic identification cards:

(i) Driver's license;

(ii) State of Ohio identification card; or,

(iii) United States of American permanent residence card.

(e) The provider shall read, write, and understand English at a level that enables the provider to comply with this rule and rule 173-39- 02.11 of the Administrative Code.

(f) The provider shall be able to effectively communicate with the consumer.

(g) The provider shall not furnish a service to a consumer if he or she is the consumer's spouse, parent, step-parent, legal guardian, power of attorney, or authorized representative.

(h) The provider shall maintain telephone service that allows for reliable, dependable, and accessible communication.

(i) The provider shall maintain a secure place for retaining consumer records.

(j) The provider shall comply with all applicable federal, state, and local laws.

(k) The provider shall comply with the database reviews and criminal records check requirements under Chapter 173-9 of the Administrative Code.

(l) The provider shall participate in ODA's (and its designee's) mandatory provider training sessions.

(5) Monitoring:

(a) Records retention: The provider shall retain all records necessary, and in such form, so as to fully disclose the extent of the service the provider furnished, and significant business transactions, until the latter of:

(i) Six years after the date the provider receives payment for the service;

(ii) The date on which ODA, ODA's designee, ODM, or a duly-authorized law enforcement official concludes a review of the records, including the review described in rule 173-39-04 of the Administrative Code, and any findings are generally settled; or,

(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.

(b) Access: The provider shall, upon request, immediately furnish ODA (or ODA's designee) with access to all records required by this rule and any rule in Chapter 173-39 of the Administrative Code that regulates a service that ODA certified the provider to furnish.

(6) Reimbursement: The provider shall accept the reimbursement rate that the written agreement with ODA's designee establishes for each personal care service as payment in full and not seek any additional payment for services from the consumer or any other person.

(G) If a provider of any type fails to comply with this rule, ODA (or ODA's designee) may discipline the provider under the terms of rule 173-39-05 or 173-39- 05.1 of the Administrative Code, .

Effective: 07/01/2014
R.C. 119.032 review dates: 03/17/2016
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , 173.54 , Section 323.110 of H.B.59 (130th G.A.)
Rule Amplifies: 173.39 , 173.391 , 173.52 , 173.53 , 173.54
Prior Effective Dates: 03/31/2006, 04/26/2009, 10/19/2009, 08/30/2010, 03/17/2011, 01/01/2013

173-39-02.1 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 conditions of participation under rule 173-39-02 of the Administrative Code:

(1) In general:

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

(i) Enhanced ADS: Enhanced ADS includes structured activity programming, health assessments, supervision of all ADLs, supervision of medication administration, hands-on assistance with ADL activities (except bathing) and hands-on assistance with medication administration, comprehensive therapeutic activities, intermittent monitoring of health status; and, hands-on assistance with personal hygiene activities (except bathing).

(ii) Intensive ADS: Intensive ADS includes all the components of enhanced ADS plus hands-on assistance with two or more ADLs; hands-on assistance with bathing; regular monitoring of, and intervention with, health status; skilled nursing services (e.g., dressing changes and other treatments) and rehabilitative nursing procedures; rehabilitative and restorative services, including physical therapy, speech therapy, and occupational therapy; and, social work services.

Table 1: Levels and Components of ADS

  

ENHANCED ADS

INTENSIVE ADS

Structured activity programming

Yes

Yes

Health assessments

Yes

Yes

Supervision of ADLs

All ADLs

All ADLs

Hands-on assistance with ADLs

Yes, one or more ADL (bathing excluded)

Yes, minimum of two ADLs (bathing included)

Hands-on assistance with medication administration

Yes

Yes

Comprehensive therapeutic activities

Yes

Yes

Monitoring of health status

Intermittent

Regular, with intervention

Hands-on assistance with personal hygiene activities

Yes

Yes

Social work services

No

Yes

Skilled nursing services and rehabilitative nursing services

No

Yes

Rehabilitative and restorative services

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 173-39-02.13 of the Administrative Code, unless the provider enters into a contract with another provider who complies with rule 173-39-02.13 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:

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

(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. 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 the attention or assistance of ADS center staff; and,

(b)A 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, or certified nurse-midwife, or RN or shall require a staff member who is a physician, physician assistant, clinical nurse specialist, certified nurse practitioner, or 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, or 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, or 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, or 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 services 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 the consumer's 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 173-39-02.14 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. 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, or 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, or 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, or certified nurse-midwife, or 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, or certified nurse-midwife, or 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 furnish lunch and snacks to each consumer who is present during lunchtime or snacktime.

(ii) Each meal that the provider furnishes shall comply with all the requirements for the home-delivered meal service under rule 173-39-02.14 of the Administrative Code, except for the requirements in that rule that pertain to the delivery of the meal.

(2) Center requirements:

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

(i) If the center is housed in a building with other services or programs other than ADS, the provider shall assure that a separate, identifiable space and staff is available for ADS during all hours that 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 working toilet for every ten individuals present that it serves and at least one wheelchair-accessible toilet.

(vii) ODA shall only certify the provider to furnish intensive ADS if the center has 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 areas 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 routinely maintain them.

(ii) At least annually, the provider shall inspect the fire extinguishers and smoke alarms. The provider shall retain records on the date and time it completes 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 six consumers at all times.

(c) The provider shall have a RN, or LPN under the direction of a RN, on site at the ADS center to provide nursing services that require the skills of a RN, or LPN under the direction of a RN, and that are within the nurse's scope of practice.

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

(4) Provider qualifications:

(a) Type of provider:

(i) A provider shall only furnish the service if ODA certifies the provider as an agency provider.

(ii) For each provider that ODA certifies, ODA shall certify the provider as an enhanced or intensive provider. If ODA certifies a provider to furnish an intensive service level, the provider may also directly furnish, or arrange for, the enhanced service level.

(b) Staff qualifications:

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

(ii) Each 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, activity coordinator, or a related position; or,

(c)A certification from the national certification council for activity professionals (NCCAP).

(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 successfully completion of a vocational program in a health or human services field.

(v) Each staff member who furnishes transportation to consumers shall comply with all requirements under rule 173-39-02.13 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 paragraph (B)(4)(b) of this rule.

(c) Staff training:

(i) Orientation: Before each new personal care staff member 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, as required under paragraph (B)(1)(e) of rule 173-39-02 of the Administrative Code;

(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 staff member furnishes an ADS, the provider shall furnish task-based training.

(iii) Continuing education: Each staff member shall participate in 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 (B)(5) of rule 173-39-02 of the Administrative Code.

(C) Units and rates:

(1) Attendance:

(a) Units of ADS attendance are calculated as follows:

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

(ii) One unit is four through eight hours ADS per day.

(iii) 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.

(b) A unit of ADS attendance does not include transportation time.

(2) Transportation: A unit of ADS transportation is a round trip, a one-way trip, or one mile with the trip cost based on a case manager's pre-determined calculation of distance between the consumer's residence and the ADS center multiplied by an established ADS mileage rate. If the provider furnishes the transportation simultaneously to more than one PASSPORT or choices consumer who resides in the same household in the same vehicle to the same destination, the provider's reimbursement rate for that trip is seventy-five per cent of the per-unit rate, in accordance with rules 5101:3-31-07 and 5101:3-32-07 of the Administrative Code.

(3) The maximum rates allowable for units of ADS attendance and ADS transportation are established in appendix A to rule 5101:3-1-06.1 of the Administrative Code for the PASSPORT program and rule 5101:3-1-06.4 of the Administrative Code for the choices program.

Replaces: 173-39- 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 , 173.391 , 173.40
Rule Amplifies: 173.391
Prior Effective Dates: 03/31/2006, 03/20/2011, 09/29/2011

173-39-02.2 Alternative meal service.

(A) "Alternative meal service" means a service that sustains a consumer's health by enabling the consumer to procure up to two meals per day from a non-traditional provider, such as a restaurant.

(B) Requirements for an alternative meal service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) In general: Each meal that the provider furnishes shall comply with all the requirements for the home-delivered meal service under rule 173-39-02.14 of the Administrative Code, except for the requirements in that rule that pertain to the delivery of the meal.

(2) Provider qualifications:

(a) Only a non-agency provider who is certified under rule 173-39-02 of the Administrative Code shall provide the service.

(b) The provider shall maintain all appropriate vendor licenses.

(C) Unit and rate:

(1) A unit of an alternative meal service is one meal.

(2) The maximum rate allowable for one regular home-delivered meal is listed in rule 5101:3-1-06.1 of the Administrative Code.

Replaces: 173-39- 02.2

Effective: 03/17/2011
R.C. 119.032 review dates: 03/17/2016
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391
Rule Amplifies: 173.39 , 173.391 , 173.403 , 173.431
Prior Effective Dates: 03/31/2006

173-39-02.3 Pest control.

(A) "Pest control " means a service that improves, restores, or maintains a clean, sanitary, and safe living environment through the performance of tasks in the home that are beyond the consumer's capability and the removal of pests posing a threat to the consumer's health and welfare.

(B) Eligibility: A consumer is only eligible for the service if:

(1) Neither the consumer, nor anyone else in the consumer's home, is capable of performing or financially providing for the services;

(2) No other relative, caregiver, community/volunteer agency, or third-party payer is capable of, or responsible for, their provision; and,

(3) No other person (e.g., a landlord) has a legal or contractual responsibility to perform the job.

(C) Requirements for pest control in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) Cost estimate:

(a) If the provider is a consumer-directed provider, upon a consumer's initial request:

(i) Each agency provider shall furnish the consumer with a verbal estimate

(ii) Each non-agency provider shall furnish the consumer with a verbal estimate .

(b) Each provider that is not a consumer-directed provider shall furnish ODA's designee with a verbal estimate upon the request of ODA's designee.

(2) Written price quote:

(a) If the provider is a consumer-directed provider, upon a consumer's initial request:

(i) Each agency provider shall furnish the consumer with a written price quote no later than seven days after the consumer initially requests the service.

(ii) Each non-agency provider shall furnish the consumer with a written price quote no later than seven days after the consumer initially requests the service, unless the consumer establishes an alternative time period for providing the written price quote.

(b) Each provider that is not a consumer-directed provider shall furnish ODA's designee with a written price quote no later than seven days after ODA's designee requests the service.

(3) Safety:

(a) The provider shall retain, and furnish to the consumer and/or ODA's designee, upon request, a list of the chemical(s) or substance(s) used for each job order.

(b) The provider shall inform the consumer and ODA's designee of any specific health or safety risks expected during the job project, and assist the case manager to coordinate times and dates of service to insure minimal risk of hazard to the consumer as applicable to each job.

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

(d) The provider shall furnish a warranty to ODA's designee that covers the workmanship and materials involved in the service provided.

(4) Provider qualifications:

(a) Type of provider: Only an agency that ODA certifies as an agency provider or a person that ODA certifies as a non-agency provider shall furnish this service.

(b) Licensure: The provider shall hold a valid license with the Ohio department of agriculture or Ohio department of natural resources to practice the type of pest control that it furnishes to consumers, if the type of pest control that the provider furnishes requires licensure.

(5) Service verification:

(a) After the provider completes a job order, the provider shall retain a record of the:

(i) Consumer's name;

(ii) Date of service;

(iii) Service description, including a comparison between the job order and the completed job;

(iv) Provider's signature; and,

(v) Consumer's signature. The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic signature.

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

(c) The agency provider shall retain records required under this rule according to paragraph (B)(5) of rule 173-39-02 of the Administrative Code and the non-agency provider shall retain records required under this rule according to paragraph (C)(5) of rule 173-39-02 of the Administrative Code.

(D) Units and rates: .

(1) One unit of pest control is equal to one completed job order of pest control.

(2) The maximum amount allowable for a unit is the provider's written price quote, so long as the price does not exceed the maximum amount allowable amount in paragraph (D)(3) of this rule.

(3) The maximum amount allowable for a unit is established in appendix A to rule 5160-1- 06.1 of the Administrative Code.

Effective: 07/10/2014
R.C. 119.032 review dates: 04/14/2014 and 07/01/2019
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , Section 323.110 of H.B.59 (130th G.A.) Rule Amplifies: 173.39 , 173.391 , 173.52 , 173.53
Prior Effective Dates: 03/31/2006, 03/17/2011

173-39-02.4 Choices home care attendant service (CHCAS).

(A) "Choices home care attendant service" ("CHCAS") means a consumer-directed service that furnishes specific activities to support the needs of an individual consumer with impaired physical or cognitive functioning. Activities of the service include:

(1) Personal assistance with bathing; dressing; grooming; caring for nail, hair and oral hygiene; shaving; deodorant application; skin care; foot care; ear care; feeding; toileting; ambulation; changing position in bed; assistance with transfers, normal range of motion, and nutrition and fluid intake.

(2) General household assistance with the planning; preparation and clean-up of meals; laundry; bed-making; dusting; vacuuming; shopping and other errands; the replacement of furnace filters; waste disposal; seasonal yard care; and snow removal.

(3) Heavy household chores including washing floors; windows and walls; tacking down loose rugs and tiles; moving heavy items of furniture to furnish safe access and egress.

(4) Assistance with money management and correspondence as directed by the consumer.

(5) Escort and transportation to community services, activities, and resources. This activity is offered in addition to medical transportation available under the medicaid state plan, and may not replace it.

(B) Requirements for the service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) In general:

(a) Availability: The provider shall furnish the service as agreed upon with the consumer and as authorized in the consumer's service plan.

(b) Oversight: The consumer is the employer of record and is responsible for supervising the provider. As used in this paragraph, "employer of record" means the consumer who employs the provider; supervises the provider; pays the appropriate state, federal, and local taxes; and pays premiums for worker's compensation and unemployment compensation insurance. A financial management service acts as the agent of the common-law employer with the consumer-directed individual provider that the consumer employs.

(c) Escort and transportation: The provider shall only transport the consumer if the provider has a valid driver's license and collision and liability insurance for each vehicle used.

(2) Provider qualifications:

(a) General qualifications:

(i) Only a consumer-directed individual provider that ODA certifies or an agency provider that ODA certifies shall furnish the service.

(ii) The provider shall complete an application to become an ODA-certified long-term care consumer-directed individual provider.

(iii) At the request of a consumer, the provider shall participate in an interview with the consumer before providing the first episode of service to the consumer.

(iv) The provider shall be at least eighteen years of age.

(v) The provider shall have a valid social security number and at least one of the following current, valid, government-issued, photographic identification cards:

(a) Driver's license.

(b) State of Ohio identification card.

(c) United States of America permanent residence card.

(vi) The provider shall read, write, and understand English at a level that enables the provider to comply with this rule and rule 173-39-02 of the Administrative Code.

(vii) The provider shall be able to effectively communicate with the consumer.

(b) Initial training:

(i) There are five areas of core competency for a consumer-directed individual provider:

(a) Maintaining a clean and safe environment. Training on this competency shall include the following topics:

(i) Basic home safety.

(ii) Universal precautions fro the prevention of disease transmission, including hand-washing and proper disposal of bodily waste and medical instruments that are sharp or may produce sharp pieces if broken.

(b) Promoting the consumer's development.

(c) Assisting with activities of daily living.

(d) Communicating the consumer's information to authorized persons.

(e) Performing administrative tasks.

(ii) Beginning on July 1, 2014, every consumer-directed provider that a consumer hired on or after July 1, 2014 shall successfully complete training in the core competencies that ODA listed in paragraph (A)(2)(b)(i) of this rule before furnishing the first episode of service to a consumer.

(iii) Beginning on September 1, 2014, every consumer-directed provider that a consumer hired before July 1, 2014 shall successfully complete training in the core competencies that ODA listed in paragraph (A)(2)(b)(i) of this rule before continuing to furnishing services to a consumer.

(c) Continuing education: Each year, the provider shall successfully complete at least eight hours of continuing education before his or her anniversary date of enrollment as an ODA-certified consumer-directed provider.

(d) Person-centered training: The provider shall successfully complete any training that the consumer or ODA's designee consider necessary to meet the consumer's needs. This training is in addition to the eight hours of continuing education.

(3) Records:

(a) Initial training verification: The consumer shall retain a copy of completed and signed form ODA1042 to verify that the provider complied with this rule's initial training requirements.

(b) Continuing education verification: The consumer shall retain a completed and signed form ODA1043 to verify that the provider complied with the continuing education requirements. The consumer shall also retain a copy of each certificate of completion and course syllabus that verifies that the provider complied with this rule's continuing education requirements.

(c) Service verification:

(i) The provider shall complete the time sheets the consumer furnishes through the financial management service, which shall include the date the provider furnished the service, the consumer's name, the consumer's signature, the provider's name, the provider's arrival and departure times, and the provider's written or electronic signature to verify the accuracy of the record.

(ii) The provider shall complete the service task sheet with a description of the activities the provider furnished. The provider shall retain the service task sheet in the consumer's home records.

(iii) The provider shall retain records required under this rule and furnish access to those records for monitoring according to paragraph (D)(5) of rule 173-39-02 of the Administrative Code.

(4) The provider shall continue to meet all the criteria under paragraph (B) of this rule in order to continue providing the service.

(C) Rates and units:

(1) One unit of the service is equal to fifteen minutes.

(2) The maximum rate allowable for the service is established in the appendix to rule 5160-1- 06.1 of the Administrative Code.

(3) The provider may furnish a service that is not authorized by the consumer's service plan, but ODA (or ODA's designee) only reimburses the provider for furnishing a service that is authorized by the consumer's service plan.

(D) Definitions for this rule:

(1) "Form ODA1042" means "ODA1042 'Employee Core Competencies Verification. (March, 2014)" The form is available to the general public on ODA's website.

(2) "Form ODA1043" means "ODA1043 'Employee Continuing Education Verification. (March, 2014)" The form is available to the general public on ODA's website.

Replaces: 173-39- 02.4

Effective: 07/01/2014
R.C. 119.032 review dates: 07/01/2019
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , Section 323.110 of H.B.59 (130th G.A.)
Rule Amplifies: 173.39 , 173.391 , 173.52 , 173.53
Prior Effective Dates: 03/31/2006, 11/11/2013

173-39-02.5 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 in the consumer's home that are beyond the consumer's capability, and the removal of hazards posing a threat to the consumer's health and welfare. Examples of 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: repairing a water faucet; unclogging a drain; lighting and relighting a pilot light; and, replacing a furnace filter .

(3) Disposal of garbage.

(B) Eligibility: A consumer is only eligible for the service if:

(1) Neither the consumer, nor anyone else in the consumer's home, is capable of performing or financially providing for the services;

(2) No relative, caregiver, community/volunteer agency, or third-party payer is capable providing the service; and,

(3) No other person (e.g., a landlord) has a legal or contractual responsibility to perform the job.

(C) Requirements for a chore service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) Cost estimate: Each provider shall furnish ODA's designee with a verbal estimate upon the the request of ODA's designee.

(2) Written price quote: Each agency provider shall furnish ODA's designee with a written price quote no later than seven days after ODA's designee requests the service.

(3) Safety:

(a) The provider shall maintain a list of the chemicals or substances used for each job order. The provider shall furnish the list to ODA's designee upon request.

(b) The provider shall inform the consumer and ODA's designee or any specific health or safety risks expected during the job and coordinate times and dates of 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.

(d) The provider shall furnish a warranty to ODA's designee that covers the workmanship and materials involved in the service provided.

(4) Provider qualifications: Only an agency that ODA certifies as an agency provider or a person that ODA certifies as a non-agency provider shall furnish this service.

(5) Service verification:

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

(i) Consumer's name;

(ii) Date of service;

(iii) Service description, including a comparison between task in the job order and tasks provided;

(iv) Units of service;

(v) Name of each person in contact with the consumer;

(vi) Provider's signature; and,

(vii) Consumer's signature. The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic signature.

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

(c) The agency provider shall retain records required under this rule according to paragraph (B)(5) of rule 173-39-02 of the Administrative Code and the non-agency provider shall retain records required under this rule according to paragraph (C)(5) of rule 173-39-02 of the Administrative Code.

(D) Unit and rates:

(1) One unit of a chore service is one completed job order of a chore service.

(2) The maximum amount allowable for a unit is the provider's written price quote, so long as the price does not exceed the maximum amount allowable amount in paragraph (D)(3) of this rule.

(3) The maximum rate allowable for a job order of the service is listed in appendix A to rule 5160-1- 06.1 of the Administrative Code.

Effective: 07/10/2014
R.C. 119.032 review dates: 04/14/2014 and 07/01/2019
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , Section 323.110 of H.B.59 (130th G.A.) Rule Amplifies: 173.39 , 173.391 , 173.52 , 173.53
Prior Effective Dates: 03/31/2006, 03/17/2011

173-39-02.6 Emergency response service.

(A) "Emergency response service" ("ERS") means an emergency intervention service comprised of telecommunications equipment ("ERS equipment"), an emergency response center, and a medium for two-way, hands-free communication between the consumer and the emergency response center. Personnel at the emergency response center intervene in an emergency when the center receives an alarm signal from the ERS equipment. ERS does not include:

(1) Remote monitoring (e.g., granny cam, closed-circuit television); or,

(2) Equipment such as a boundary alarm, a medication dispenser, a medication reminder, or any other equipment or home medical equipment, regardless of whether the equipment is connected to ERS equipment.

(B) Minimum requirement for ERS in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) Set-up:

(a) ERS equipment:

(i) The provider shall assure that each consumer is able to choose the equipment that meets his or her specific needs, as authorized on his or her service plan.

(ii) The provider shall only offer a consumer equipment that provides voice-to-voice communication, unless the consumer is hearing impaired. The provider shall offer a consumer who is hearing impaired equipment with a visual signal.

(iii) If a consumer is visually impaired, the provider shall only offer the consumer equipment with an audible signal.

(iv) The provider shall offer each consumer a variety of remote activation devices from which the consumer may choose according to his or her specific needs, so long as each remote activation device is wearable and waterproof, unless the consumer requires a specialty activation device that is not wearable and waterproof to accommodate his or her specific need.

(v) For any equipment the provider installs on or after January 1, 2011, the shall only install equipment that has an internal battery that provides at least twenty-four hours of power without recharging and that sends notification to the emergency response center if the battery's level is low.

(b) Training:

(i) The provider shall furnish each ERS consumer with an initial face-to-face demonstration and training on how to use the ERS equipment.

(ii) As part of the monthly service, the provider shall provide additional training to the consumer, caregiver, ODA, or PAA upon request.

(c) Response plan:

(i) The provider shall work with the consumer and the consumer's case manager to develop a written response plan regarding how to proceed if the consumer signals an alarm. The plan shall include a summary of the consumer's health history, the consumer's functioning level, and the name of, and contact information for, individuals the consumer chooses as his or her designated responders. If the consumer designates only one individual, then the provider shall also designate emergency service personnel as a back-up responder.

(ii) The provider shall update the written response plan no less often than every six months.

(iii) The provider shall retain a record of the response plan, and all subsequent response plans.

(iv) The provider shall train every designated responder before activating the ERS equipment, on an annual basis, and upon request. This training is part of the monthly service. At a minimum, the training shall include:

(a) Instructions for responding to an emergency, including instructions for contacting emergency service personnel; and,

(b) Written instructions for responding to the consumer's alarm signals.

(v) If a consumer's designated responder ceases to participate, the provider shall work with the consumer and the consumer's case manager to replace the responder and revise the written response plan as follows:

(a) If the consumer had only one designated responder, the provider shall replace that responder in fewer than four days after it receives notice that the responder ceases to participate.

(b) If the consumer had two or more designated responders, the provider shall replace the responder in fewer than seven days after it receives notice that the responder ceases to participate.

(c) If the provider is unable to replace a responder, it shall notify the case manager and designate emergency service personnel as the responder.

(d) The provider shall record the name and contact information for any replacement responder in the response plan.

(2) Emergency response center:

(a) The provider shall employ staff to comprise an emergency response center.

(b) The center shall receive and respond to alarm signals from consumers twenty-four hours per day, three hundred sixty-five days per year.

(c) The center shall maintain the capacity to respond to all alarm signals.

(d) The center shall maintain a secondary capacity to respond to all incoming alarm signals in case the primary system is unable to respond to alarm signals.

(e) The center shall respond to each alarm signal no more than sixty seconds after it receives the signal.

(f) The center shall notify the PAA of any emergency involving a consumer no more than twenty four hours after the consumer sends the alarm signal.

(g) The center shall conduct monthly testing of each consumer's ERS equipment to ensure proper operation. The provider shall retain a record of the monthly testing that includes the date, time, and results of the test.

(h) If a consumer sends an alarm signal but the center cannot reach a designated responder, the center shall contact emergency service personnel.

(i) If a consumer sends an alarm signal, the center shall remain in communication with the consumer through the two-way communications feature of the ERS equipment until a designated responder arrives in the consumer's home, until the emergency service personnel arrives in the consumer's home, or until the emergency subsides.

(j) The provider shall operate all ERS lines free of charge.

(3) Replacement equipment: At no additional cost to the consumer, ODA, or the PAA, the provider shall replace any malfunctioning ERS equipment in fewer than twenty-four hours after it is notified of the malfunction or in fewer than twenty-four hours after the malfunction is detected through the monthly testing of equipment, unless the malfunction is due to confirmed misuse, abuse, or negligence.

(4) Provider qualifications:

(a) Only an agency that ODA certifies as an agency provider may provide the service.

(b) The provider shall train each staff member of its emergency response center and retain a record that each staff member has successfully completed the training.

(5) Limitations:

(a) The provider shall only bill the PAA for the service provided under the PASSPORT program if the case manager identifies the provider in the service order for the consumer.

(b) The provider shall provide the service only to a consumer whose case manager identifies the provider in the consumer's service plan.

(c) The provider shall not provide the service to a consumer if the consumer is receiving a similar service under Chapter 173-39 of the Administrative Code.

(6) Service verification:

(a) The provider shall retain a record of the case manager's service order.

(b) For the initial face-to-face demonstration and training on how to use the ERS equipment, the provider shall retain records that include the:

(i) Consumer's name and contact information;

(ii) Date of delivery, installation, demonstration, and training;

(iii) Consumer's signature. The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic signature.

(c) For each episode of service-related contact with the consumer, the provider shall retain a record that includes the:

(i) Consumer's name;

(ii) Date and time of contact;

(iii) Summary of the incident;

(iv) Service delivered (including the service of responding to a false alarm); and,

(v) Name of each staff person having contact with the consumer.

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

(e) The provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (B)(5) of rule 173-39-02 of the Administrative Code.

(C) Units and rates:

(1) Two types of ERS units:

(a) Unit of ERS service: One unit is sixteen or more days of ERS in a month. One-half unit is fifteen services days or less of ERS in a month. This unit includes training each emergency responder and providing follow-up training to a consumer, caregiver, ODA, or the PAA.

(b) Unit of ERS installation: The one-time cost for delivery and installation of the ERS equipment into the home of the consumer and the initial face-to-face demonstration and training on how to use the ERS equipment that the provider furnishes to a consumer.

(2) The maximum rates allowable for ERS are listed in rule 5101:3-1-06.1 of the Administrative Code.

(D) Definition for this rule: "Designated responder" means an individual the emergency response center contacts if the consumer signals an alarm.

Replaces: 173-39- 02.6

Effective: 01/01/2011
R.C. 119.032 review dates: 12/31/2015
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391 , 173.40
Rule Amplifies: 173.39 , 173.391
Prior Effective Dates: 03/31/2006, 07/01/2007

173-39-02.7 Home medical equipment and supplies.

(A) Home medical equipment and supplies (HME) is a service designed to promote functional independence and safe, effective, in-home care through the provision of health-related equipment and supplies. The equipment items and/or supplies eligible to be purchased, installed and/or rented through this service are those items that enable the consumer to function with greater independence in the home and help prevent the consumer's placement in a nursing facility.

(B) HME items are limited to only those medicaid items in rule 5101:3-10-03 of the Administrative Code, other items and repairs as applicable in rules 5101:3-10-02 to 5101:3-10-26 of the Administrative Code, and miscellaneous items that include, but are not limited to: walker baskets or trays; room monitors; eating, dressing and vision assistive devices; incontinent bath wipes; and medication dispensers. HME items are also limited to those items that and are not covered by other payers (third-party payers, medicare, state plan medicaid, etc.). A HME provider must have documentation that items to be purchased cannot be paid for by medicare, state plan medicaid, or other sources prior to authorization by ODA's designee.

(C) HME items must be approved and authorized by the case manager and must be included in the consumer's service plan.

(D) A unit of HME service is the item purchased or rented, and the unit rate is the purchase, installation and/or rental price authorized for the item by ODA's designee.

(1) The provider must furnish professional, ongoing assistance when needed to evaluate and adjust products delivered and/or to instruct the consumer or the consumer's caregiver in the use of an item furnished.

(2) The provider must have the prior approval of the case manager for any HME item(s) purchased and delivered.

(E) The provider must assume liability for equipment warranties and must install, maintain, and/or replace any defective parts or items specified in those warranties. Replacement items or parts for HME are not reimbursable as rental equipment.

(F) The provider must, in collaboration with the case manager, ascertain and recoup any third-party resource(s) available to the consumer prior to billing ODA or its designee. ODA or its designee will then pay any unpaid balance up to the lesser of the provider's billed charge or the maximum allowable reimbursement set forth in division-level designation 5101:3 of the Administrative Code.

(G) The provider must submit the price for an item to be purchased or rented within two business days of the case manager's request. The provider must purchase, deliver and install (as appropriate) the authorized item(s) prior to submitting a bill to ODA's designee. The billed amount for each item may not exceed the preauthorized amount.

(H) The provider must maintain a record for each consumer. The record must document the delivery, installation of the item(s) purchased or rented, any education and/or instructions for the use of equipment and/or supplies provided to the consumer, and must include documentation of delivery of item(s) to the consumer. The documentation must consist of:

(1) The consumer's signature, the signature of the consumer's caregiver or electronic verification of delivery; and,

(2) The date on which the equipment and/or supplies were delivered.

R.C. 119.032 review dates: 11/18/2010 and 11/16/2015
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391
Rule Amplifies: 173.39 , 173.391 , 173.431
Prior Effective Dates: 03/31/2006

173-39-02.8 Homemaker service.

(A) Homemaker (HMK) is a service designed to enable a consumer to achieve and maintain a clean, safe and healthy environment, assist the consumer to manage personal appointments and day-to-day household activities as authorized by the case manager, and ensure that the consumer maintains the consumer's current living arrangement. HMK service consists of general household activities, such as meal preparation and routine household care when the individual regularly responsible for these activities is temporarily absent or unable to manage the home. HMK staff may act as travel attendants for a consumer.

(B) One unit of homemaker service is fifteen minutes.

(C) Homemaker services include, but are not limited to, the following:

(1) Assistance with meal planning;

(2) Meal preparation, grocery purchase planning, and assisting consumers with shopping and other errands;

(3) Laundry, including folding, ironing, and putting away laundry; and,

(4) House cleaning, including, but not limited to, dusting furniture sweeping, vacuuming and mopping floors; kitchen care (including dishes, appliances and counters), bathroom care, emptying and cleaning bedside commodes, changing bed linens, washing inside windows within reach from the floor, and removing trash.

(D) Eligible providers of homemaker services are certified long-term care agency providers.

(E) HMK providers must maintain a consumer record documenting each episode of service delivery. The record must include the date of service delivery, a description of the service tasks performed, the name of the aide providing the service(s), the aide's arrival and departure time, and the aide's written or electronic signature to verify the accuracy of the record. A provider that does not utilize an electronic verification system to document services and keep records must also obtain the consumer's signature for each episode of service.

(F) HMK providers must demonstrate that they:

(1) Have the capacity to deliver services at least five days per week;

(2) Have a service back-up plan to ensure services are delivered during staff absence;

(3) Comply with and maintain written policies and procedures, as applicable, supporting the operation of the business and the provision of services. These policies and procedures must address:

(a) Reporting and documenting consumer incidents;

(b) Obtaining written permission from consumers to share information and/or release information to anyone;

(c) The content of consumer records, as well as the handling, storage and retention or records; and,

(d) Personnel matters, including:

(i) Job descriptions for each position;

(ii) The documentation of each employee's qualifications for the service(s) to be provided;

(iii) Performance appraisals for all workers;

(iv) Documentation of compliance with required staff orientation training; and,

(v) The employee code of ethics described in rule 173-39-02 of the Administrative Code.

(G) HMK providers must demonstrate evidence of compliance with the following personnel requirements:

(1) HMK aides must meet one or more of the following minimum personnel requirements:

(a) Successful completion of the nurse aide competency evaluation program conducted by the Ohio department of health under section 3721.31 of the Revised Code within the last twenty-four months;

(b) One year of supervised employment experience in a health or human services field, and successful written and skill testing by return demonstration;

(c) Successful completion of the medicare competency evaluation program for home health aides required under 42 C.F.R. Part 484, without a twenty-four month lapse in employment as a nurse aide or home health aide;

(d) Successful completion of a certified vocational program in a health-related field and successful written and skill testing by return demonstration;

(e) Successful completion of at least twenty hours of training and skill testing by return demonstration that includes, but is not limited to:

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

(ii) Meal preparation/nutrition that includes special diet preparation, grocery purchase planning and shopping; and other errands, such as picking up prescriptions;

(iii) Laundry, including folding, ironing, and putting away laundry;

(iv) Basic home safety;

(v) House cleaning skills that include dusting furniture; sweeping, vacuuming and washing floors, kitchen care (including washing dishes, appliances and counters), bathroom care, emptying and cleaning bedside commodes, changing bed linens, washing inside windows within reach from the floor, and removing trash;

(vi) Body mechanics;

(vii) Communication skills;

(viii) Emergency protocols; and,

(ix) Documentation skills.

(f) Prior to the provision of services to a consumer, the provider must conduct written testing, and skill testing by return demonstration, of all HMK staff that are not listed on the Ohio department of health's nurse aide registry for all subject areas listed in paragraph (G)(1)(e) of this rule. The training and testing must be documented by the provider, and the documentation must include training site information, the date of training, the number of hours of training, a list of instruction materials and the subject areas covered, the qualifications of the trainer and the tester, the signatures of the trainer and tester verifying the accuracy of the record, and all testing results.

(2) The HMK supervisor must have a bachelor's or associate's degree in a health or human services area or have a minimum of two years of work experience as a HMK.

(3) Prior to working with consumers, all employees who have face-to-face contact with consumers must receive orientation and training that addresses, at a minimum:

(a) The expectations of employees;

(b) The employee code of conduct;

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

(d) Incident reporting procedures;

(e) The organization of the provider's agency and the lines of communication; and,

(f) Emergency procedures.

(4) The provider must assure and document a minimum of eight hours of continuing education for each HMK staff every twelve months.

(H) Supervisory Requirements

(1) The supervisor must complete and document a consumer home visit, which may occur at the initial HMK visit to the consumer to define the expected activities of the HMK and prepare a written activities plan consistent with the case manager authorized plan that has been completed by the case manager and the consumer prior to consumer service initiation.

(2) The supervisor must evaluate HMK compliance with the plan, consumer satisfaction, and job performance during a home visit with the consumer at least every ninety three days to evaluate the HMK aide's compliance with the plan. The HMK aide need not be present during the visit. The visit must be documented, including the date of the visit, the name of the HMK supervisor, name of the consumer, and must include the signature of the consumer and the HMK supervisor or the electronic signature of the HMK supervisor.

R.C. 119.032 review dates: 11/18/2010 and 11/16/2015
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391
Rule Amplifies: 173.39 , 173.391 , 173.431
Prior Effective Dates: 03/31/2006

173-39-02.9 Minor home modification, maintenance, and repair services.

(A) Minor home modification, maintenance and repair service (MHM) provides environmental accessibility adaptations to the structural elements of the interior or exterior of a consumer's place of residence that enable the consumer to function with greater independence in the home and remain in the community. Modifications, maintenance and repairs that are excluded from this service are those adaptations or improvements to the home that are of general utility and not of direct medical or remedial benefit to the consumer, such as carpeting, roof replacement, central air conditioning, and adaptations which add to the total square footage of the home, etc.

MHM services are limited to those that cannot be accomplished through existing informal or formal supports, and those that are not the legal or contractual responsibility of a landlord or a home owner other than the consumer.

All MHM services must be provided in accordance with applicable building codes and must be authorized by the consumer's plan of care.

(B) A unit of MHM service is one completed job order. The unit rate is the rate negotiated by ODA's designee and must include a formal estimate of materials and labor. The provider cannot bill in excess of the estimate, unless a cost revision is authorized by the case manager prior to the initiation of the MHM service.

(C) MHM services include, but are not limited to the following tasks:

(1) Minor home modification includes, but is not limited to:

(a) The installation of safety devices, such as smoke alarms and/or carbon monoxide detectors;

(b) The installation of devices to improve the consumer's ability to perform activities of daily living, if not provided under home medical equipment and supplies service;

(c) Minor interior and/or exterior modification to improve the health and safety of the consumer; and,

(d) Enhanced accessibility modifications, such as ramps and doorways.

(2) Minor home maintenance includes, but is not limited to:

(a) The inspection of furnaces and water heaters;

(b) Plumbing and electrical repairs; and,

(c) The inspection and maintenance of water pumps.

(3) Minor household repair includes, but is not limited to:

(a) The repair or replacement of screens, broken window panes; and,

(b) The replacement and/or installation of electrical fuses.

(D) Eligible providers of MHM services are certified long-term care agency and non-agency providers. Providers must have appropriate licensure, as required, or other appropriate credentials to perform jobs requiring specialized skills, including but not limited to:

(1) Electrical work;

(2) Heating and ventilation; and,

(3) Plumbing work.

(E) Except as otherwise provided below, MHM providers must obtain and furnish evidence of compliance with:

(1) The written consent of the property owner to modify the property. When appropriate, the provider must ensure that the owner understands that the property will be left in the modified state after the consumer vacates the premises.

(2) All permits required by law, including building permits, prior to commencing work on each job order.

(3) Any necessary inspections, inspection reports, and permits required by federal, state and local laws upon completion of each job to verify that the repair, modification or installation was completed. The provider must obtain these inspections, inspection reports, and permits prior to prior to billing for the completed job.

(4) A signed and dated authorization from the consumer's case manager, or case manager's designee, for each job order prior to commencing work.

(F) The provider must:

(1) Inform the consumer and ODA or its designee of any health and/or safety risks expected during the job; and assist the consumer and case manager to coordinate dates and times of work to assure minimal risk of hazard to the consumer.

(2) Furnish a warranty covering workmanship and materials with the final invoice submitted to ODA's designee. ODA and ODA's designee will not pay any invoice that is not accompanied by a warranty.

(3) Assure that any smoke and/or heat detectors authorized to be installed by the provider will be installed only by individuals certified by the state fire marshal in accordance with Chapter 1301:7-7 of the Administrative Code.

(4) Obtain the consumer's or caregiver's signature and date at the close of the job order to certify that the work authorized has been completed, the consumer's property has been left in satisfactory condition, and any incidental damages have been repaired.

(G) In cases where a provider is already in a consumer's home and identifies additional problems that should be fixed immediately, should be fixed in conjunction with the original repair, or could easily be fixed while in the consumer's home, the provider may address the additional problems only if the provider contacts the consumer's case manager or the case manager's designee to explain what the problem is, how it will be fixed, the cost of the additional repair, and obtains authorization to complete the additional work.

R.C. 119.032 review dates: 11/18/2010 and 11/16/2015
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391
Rule Amplifies: 173.39 , 173.391 , 173.431
Prior Effective Dates: 03/31/2006

173-39-02.10 Nutritional consultation service.

(A) "Nutritional consultation service" means a service that provides individualized guidance to a consumer who has special dietary needs. A nutritional consultation service takes into consideration the consumer's health; cultural, religious, ethnic, socio-economic background; and dietary preferences and restrictions.

(B) Minimum requirements for a nutritional consultation service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) Physician's authorization:

(a) Initial: If the provider receives a signed and dated authorization from the consumer's treating physician indicating that the consumer needs a nutrition consultation service, the provider may begin to provide the nutrition consultation service, subject to the other requirements of this rule. The provider may continue to provide the nutrition consultation service for up to sixty days after the date of the physician's authorization.

(b) Subsequent: The provider may provide the nutrition consultation service for subsequent periods of up to sixty days only if the provider receives a subsequent signed and dated authorization from the physician indicating that the consumer continues to need a nutrition consultation service.

(2) Nutrition assessment:

(a) The provider shall conduct an initial, individualized assessment of the consumer's nutritional needs and, when necessary, subsequent nutrition assessments, using a tool that identifies whether the consumer is at nutritional risk or identifies a nutritional diagnosis that the dietitian will treat. The tool shall include:

(i) An assessment of height and weight history;

(ii) An assessment of the adequacy of nutrient intake;

(iii) A review of medications, medical diagnoses, and diagnostic test results;

(iv) An assessment of verbal, physical, and motor skills that may affect, or contribute to, nutrient needs;

(v) An assessment of interactions with the caregiver during feeding; and,

(vi) An assessment of the need for adaptive equipment, other community resources, or other services.

(b) The provider shall furnish the case manager and the consumer with a copy of the nutrition assessment no later than seven business days after the provider completes the assessment.

(3) Nutrition intervention plan:

(a) The provider shall develop, evaluate, and revise, as necessary, a nutrition intervention plan with the consumer's and case manager's assistance and, when applicable, the treating physician and other relevant service providers. In the plan, the provider shall outline the purposely-planned actions for changing nutrition-related behavior, risk factors, environmental conditions, or health status, which, at a minimum, shall include the consumer's:

(i) Food and diet modifications;

(ii) Specific nutrients to require or limit;

(iii) Feeding modality;

(iv) Nutrition education and counseling; and,

(v) Expected measurable indicators and outcomes related to the consumer's nutritional goals.

(b) The provider shall use the nutrition intervention plan to prioritize and address the identified nutrition problems.

(c) The provider shall furnish the case manager and the consumer with a copy of the nutrition intervention plan no later than seven business days after the provider develops or revises the plan.

(4) Clinical record:

(a) The provider shall develop and retain a clinical record for each consumer that includes the consumer's:

(i) Identifying information, including name, address, date of birth, sex, race, marital status, significant phone numbers, and health insurance identification numbers;

(ii) Medical history;

(iii) Treating physician's name;

(iv) Treating physician's authorization for a nutritional consultation service that is required under paragraph (B)(1) of this rule;

(v) Service plan (initial and revised versions);

(vi) Nutrition assessment (initial and revised versions);

(vii) Plan of care for nutrition consultation services (initial and revised versions), specifying the type, frequency, scope, and duration of the services to perform;

(viii) Nutrition intervention plan (initial and revised versions that were implemented);

(ix) Food and drug interactions (e.g., "Don't take pills with milk."), allergies, and dietary restrictions;

(x) Discharge summary, which the dietitian who provided the service shall sign and date at the point he or she is no longer going to provide the service to the consumer or the consumer no longer needs the service. The summary shall indicate what progress the consumer made towards achieving the measurable outcomes of the consumer's nutritional goals and any recommended follow-up consultations or referrals.

(b) The provider may use a technology-based system to develop and retain the clinical record.

(5) Limitations:

(a) The provider shall not provide the service to a consumer in excess of what the case manager authorizes in the consumer's service plan.

(b) The provider shall only bill the PAA for the service provided under the PASSPORT program if the case manager identifies the provider in the service order for the consumer.

(c) The provider shall not provide the service to a consumer if the consumer is receiving a similar service under Chapter 173-39 of the Administrative Code.

(6) Provider qualifications: An individual shall provide this service only if:

(a) An agency that ODA certifies as an agency provider employs the individual, or ODA certifies the individual as a non-agency provider; and,

(b) The individual is registered by the commission on dietetic registration and maintains a license in good standing with the Ohio board of dietetics.

(7) Service verification:

(a) For each episode of service provided, the provider shall retain a record of the:

(i) Consumer's name;

(ii) Date of service;

(iii) Time of day that each service begins and ends;

(iv) Name and signature of individual providing the consultation; and,

(v) Consumer's signature. The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic 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 (B)(5) of rule 173-39-02 of the Administrative Code.

(C) Unit and rate:

(1) A unit of a nutritional consultation service is equal to fifteen minutes.

(2) The maximum rate allowable for a unit of the service is listed in rule 5101:3-1-06.1 of the Administrative Code.

Replaces: 173-39- 02.10

Effective: 08/30/2010
R.C. 119.032 review dates: 08/30/2015
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391 , 173.40
Rule Amplifies: 173.39 , 173.391
Prior Effective Dates: 03/31/2006

173-39-02.11 Personal care service.

(A) Personal care is a service designed to enable a consumer to achieve optimal functioning with ADLs and IADLs, and includes personal care services and homemaking tasks appropriate to a consumer's needs. Personal care services must be provided in the consumer's place of residence.

Personal care activities may include, but are not limited to:

(1) Assisting the consumer with managing the household, handling personal affairs, and providing assistance with self-administration of medications, as defined in rule 173-39-01 of the Administrative Code;

(2) Assisting the consumer with eating, bathing, dressing, personal hygiene, grooming, and other activities of daily living and instrumental activities of daily living described in rule 5101:3-3-08 of the Administrative Code;

(3) The preparation of the consumer's meals;

(4) Housekeeping chores, as defined in rule 173-39-02.8 of the Administrative Code, when they 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 individual, rather than the individual's family; and,

(5) The provision of respite services to the consumer's caregiver.

(B) Eligible providers of personal care services are ODA-certified long-term care agency providers and ODA-certified consumer-directed personal care providers.

(C) Requirements for an agency provider in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) A certified provider of personal care services must maintain evidence that it:

(a) Has the capacity to deliver services seven days a week;

(b) Has a system in place to ensure that the provider nurse supervisor is accessible to respond to emergencies during those times when the provider's employees are scheduled to work;

(c) Maintains a back-up plan for service delivery in the event of a staff person's absence;

(d) Maintains a consumer record documenting each episode of service delivery. The record must include the date of service delivery, a description of the service tasks performed, the name of the personal care aide (PCA) providing services, the PCA's arrival and departure time, and the PCA's written or electronic signature to verify the accuracy of the record. A provider that does not utilize an electronic verification system to document services and keep records must also obtain the consumer's signature for each episode of service.

(e) Offers to provide consumers and case managers with monthly reports of services delivered that include the date of service delivery, the service tasks performed, the name of the personal care aide (PCA) providing services, the PCA's arrival and departure time, if the provider has an electronic verification system.

(f) Requires all employees who will have direct, face-to-face contact with consumers to complete an orientation and training prior to working with the consumers that cover, but are not limited to:

(i) Expectations of employees;

(ii) The employee code of conduct;

(iii) An overview of personnel policies;

(iv) Incident reporting procedures;

(v) A description of the provider agency's organization and lines of communication; and,

(vi) Emergency procedures.

(g) Has developed and complies with written policies and procedures, as applicable, that support the operation of the business and the provision of services. At a minimum, the policies and procedures must address:

(i) Reporting and documenting consumer incidents;

(ii) Obtaining a consumer's written permission to share information and/or release information to anyone and compliance with the requirements described in rule 173-39-02 of the Administrative Code;

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

(iv) Personnel requirements including:

(a) Job descriptions for each position;

(b) The documentation of each employee's qualifications for the service(s) to be provided;

(c) Performance appraisals for all workers;

(d) The documentation of compliance with required staff orientation training; and,

(e) Compliance with the code of conduct described in rule 173-39-02 of the Administrative Code.

(2) Certified providers of personal care must maintain evidence of compliance with the following personnel requirements:

(a) Each PCA must, at a minimum, meet at least one of the following requirements:

(i) Be listed on the Ohio department of health's nurse aide registry;

(ii) Successfully complete the medicare competency evaluation program for home health aides set forth in 42 C.F.R. Part 484., as a direct care health care worker without a twenty-four month lapse in employment as a home health aide or nurse aide;

(iii) Have at least one year employment experience as a supervised home health aide or nurse aide, and have successfully completed written testing and skills testing by return demonstration prior to initiation of service provision;

(iv) Successfully complete the COALA home health training program, or a certified vocational program in a health care field, and successfully complete written testing and skills testing by return demonstration prior to initiation of service provision; or,

(v) Successfully complete sixty hours of training, including, but not limited to instruction on:

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

(b) Observation, reporting and documentation of consumer status and services provided;

(c) Reading and recording temperature, pulse and respiration;

(d) Universal precautions for infection control procedures;

(e) Basic elements of body functioning and changes in body function that should be reported to a supervisor;

(f) The maintenance of a clean, safe and healthy environment, including but not limited to house cleaning and laundry, dusting furniture, sweeping, vacuuming, and washing floors; kitchen care (including dishes, appliances, and counters), bathroom care, emptying and cleaning bedside commodes and urinary catheter bags, changing bed linens, washing inside windows within reach from the floor, removing trash, and folding, ironing and putting away laundry;

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

(h) The physical, emotional and developmental needs of consumers, including the need for privacy and respect for consumers and their property;

(i) Appropriate and safe 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; and

(j) Meal preparation and nutrition planning, including special diet preparation, grocery purchase, planning, and shopping, and errands for the sole purpose of picking up prescriptions.

(vi) The provider must document training and testing for PCA staff, including training site information, the date of training, the number of hours of training, a list of the instruction materials, a description of the subject areas covered, the qualifications of the trainer and tester, the signatures of the trainer and tester to verify the accuracy of the documentation, and all testing results.

(b) Prior to the provision of services for a consumer, the provider must conduct written testing and skill testing by return demonstration for all PCA staff that are qualified as a PCA by meeting the requirements of paragraph (C)(2)(a)(v) of this rule, and tests must cover all subject areas listed under paragraph (C)(2)(a)(v) of this rule.

(c) The provider must conduct additional training and skill testing by return demonstration for PCA staff expected to provide services not included in the training subjects listed in this rule.

(d) The provider must maintain evidence that each PCA has successfully completed eight hours of in-service continuing education, excluding agency and program specific orientation, every twelve months.

(e) The PCA supervisor trainer and tester may only be a RN or a LPN under the direction of a RN.

(3) The provider must maintain evidence of compliance with the following supervisory requirements:

(a) Prior to consumer service initiation, the supervisor must complete and document a consumer home visit, which may occur at the initial PCA visit to the consumer, to define the expected activities of the PCA and prepare a written PCA activity plan;

(b) After the consumer service initiation, the supervisor must conduct and document a visit to the consumer at least once every sixty-two days to evaluate compliance with the activity plan, consumer satisfaction, and PCA performance. The supervisor must discuss recommended modifications with the case manager and PCA. The PCA need not be present during this visit. The visit must be documented. The documentation must include the date of the visit, the name of the PCA supervisor, name of the consumer, and must include the signature of the consumer and the PCA supervisor or the electronic signature of the PCA supervisor;

(c) The provider must have a mechanism to verify:

(i) Whether the PCA is present at the location where the services are to be provided and at the time the services are to be provided;

(ii) At the end of each working day, whether the provider's employees have provided the services at the proper location and time;

(iii) A protocol to be followed in scheduling a substitute employee when the monitoring system identifies that an employee has failed to provide home care services at the proper location and time, including standards for determining the length of time that may elapse without jeopardizing the health and safety of the consumer;

(iv) Procedures for maintaining records of the information obtained through the monitoring system;

(v) Procedures for compiling annual reports of the information obtained through the monitoring system, including statistics on the rate at which home care services were provided at the proper location and time; and,

(vi) Procedures for conducting random checks of the accuracy of the monitoring system. For purposes of conducting these checks, a random check is considered to be a check of not more than five per cent of the home care visits each PCA makes to different consumers.

(D) Requirements for a consumer-directed personal care provider in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) In general:

(a) Availability: The provider shall provide the service as agreed upon with the consumer and as authorized in the consumer's service plan.

(b) Activity plan: The consumer shall develop his or her own activity plan with the provider. The consumer and the provider shall date and sign a copy of the plan. The provider shall retain a copy of the plan.

(2) Oversight: The consumer is the employer of record and is responsible for supervising the provider. As used in this paragraph, "employer of record" means the consumer who employs the provider; supervises the provider; pays the appropriate state, federal, and local taxes; and pays premiums for worker's compensation and unemployment compensation insurance. ODA provides the support of a financial management service (FMS) to the consumer to act as the agent of the common-law employer with the consumer-directed personal care provider that he or she employs.

(3) Provider qualifications:

(a) Initial qualifications: A provider shall only begin to furnish the personal care service if the provider meets the following criteria and retains records to show that he or she meets the following criteria:

(i) The provider shall meet at least one of the following qualifications:

(a) The Ohio department of health lists the provider as active on its state tested nurse aide registry;

(b) The provider has successfully completed an ODA-approved home health aide training program; or,

(c) The provider has successfully completed an apprenticeship program in home health, health, or a related subject approved by the United States department of labor.

(ii) The provider has successfully completed any additional training that the consumer or ODA's designee considers necessary to meet the consumer's needs.

(iii) The provider has successfully completed any training that ODA (or its designee) or ODJFS mandates.

(iv) The provider has successfully demonstrated his or her competence or mastery of a task in a specific area in which the consumer may require the provider to demonstrate the competence or mastery.

(b) Continuing qualifications: The provider shall only continue to provide the personal care service if he or she meets the following criteria:

(i) The provider meets the criteria under paragraph (D)(3)(a) of this rule. If the provider no longer meets this criteria, the provider shall no longer provide the personal care service.

(ii) The provider has successfully completed at least twelve hours of in-service training during the previous twelve months on a topic related to the consumer's activity plan.

(4) Service-verification:

(a) The provider shall complete the time sheets the consumer furnishes through the financial management service, which shall include the date the provider furnished the service, a description of the interventions the provider furnished, the consumer's name, the consumer's signature, the provider's name, the provider's arrival and departure times, and the provider's written or electronic signature to verify the accuracy of the record.

(b) The provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (F)(5) of rule 173-39-02 of the Administrative Code.

(E) Units and rates:

(1) One unit of personal care service is equal to fifteen minutes.

(2) In accordance with rule 5101:3-31-07 of the Administrative Code, if the same provider furnishes personal care services during the same visit to more than one but fewer than four PASSPORT consumers in the same household, as identified in the consumers' service plans, the provider's reimbursement rate for services provided to one person in the household shall be one hundred per cent of the per-unit rate in the provider's contract with ODA's designee and seventy-five per cent of the per-unit rate for each subsequent PASSPORT consumer in the household receiving services during the visit. As used in this paragraph, "in the same household" does not refer to a PASSPORT consumer who resides alone in an apartment building where another consumer may reside alone in a separate apartment.

(3) The maximum rates allowable for units of the service are established in appendix A to rule 5101:3-1-06.1 of the Administrative Code.

Effective: 09/29/2011
R.C. 119.032 review dates: 07/13/2011 and 09/29/2016
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.40
Rule Amplifies: 173.39 , 173.391 , 173.431
Prior Effective Dates: 04/16/2006, 03/17/2011

173-39-02.12 Social work counseling service.

(A) "Social work counseling service" means a service to the consumer or to the family caregiver to promote the consumer's physical, social, or emotional well-being. The service promotes the development and maintenance of a stable and supportive environment for the consumer. The service includes crisis interventions, grief counseling, and other social-service interventions that support the consumer's health and welfare.

(B) Minimum requirements for the social work counseling service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) In-home: The provider shall deliver the service in the consumer's residence, unless the consumer and case manager authorize another arrangement.

(2) Assessment:

(a) The provider shall assess each consumer, including the consumer's psycho-social, financial, and environmental statuses.

(b) The provider shall furnish the case manager with a copy of the assessment report no later than seven business days after the provider completes the assessment.

(3) Treatment plan:

(a) The provider shall develop and revise, as necessary, with the assistance of the consumer, any caregiver, and the case manager, a treatment plan that includes the recommended method of treatment and the recommended number of counseling sessions.

(b) The provider shall furnish the case manager with a copy of the treatment plan no later than seven business days after the provider completes the assessment.

(c) The provider shall furnish the consumer with a copy of the treatment plan no later than seven business days after the provider completes the assessment, unless there are clinical indications against furnishing the consumer with a copy of his or her treatment plan.

(d) The provider shall implement the treatment plan.

(4) Clinical record:

(a) The provider shall develop and retain a clinical record for each consumer that includes the consumer's:

(i) Identifying information, including name, address, date of birth, sex, race, marital status, significant phone numbers, and health insurance identification numbers;

(ii) Medical history, if supplied by the consumer, the consumer's case manager, or the consumer's physician;

(iii) Treating physician's name;

(iv) Service plan (initial and revised versions);

(v) Individualized assessment (initial and revised versions);

(vi) Treatment plan (initial and revised versions);

(vii) Advanced directives, including a "do not resuscitate order" or medical power of attorney, if those directives exist;

(viii) Food and drug interactions (e.g., "Don't take pills with milk."), allergies, and dietary restrictions, if supplied by the consumer, the consumer's case manager, or the consumer's physician; and,

(ix) Discharge summary, which the professional who provided the service shall sign and date at the point he or she is no longer going to provide the service to the consumer or the consumer no longer needs the service. In the summary, the professional shall include records on the service outcomes and the progress made toward the goals specified in the consumer's service plan, and shall record any follow-ups or referrals that the professional recommends. The provider shall furnish a copy of the summary to the consumer and the consumer's case manager.

(b) The provider may use a technology-based system to develop and retain the clinical record.

(5) Provider qualifications: No individual shall provide the service unless the individual is employed by a provider that ODA certifies as an agency provider, or unless ODA certifies the individual as a non-agency provider.

(a) Agency provider:

(i) An agency provider shall assure that the agency's direct-care staff includes a licensed professional clinical counselor (LPCC), a licensed professional counselor (LPC), a licensed psychologist (MA or PhD), an independent marriage and family therapist (IMFT), a licensed independent social worker (LISW), a licensed social worker (LSW), or a marriage and family therapists (MFT).

(ii) No individual shall provide the service under the employment of the agency provider unless the individual is a licensed professional clinical counselor (LPCC), a licensed professional counselor (LPC), a licensed psychologist (MA or PhD), an independent marriage and family therapist (IMFT), a licensed independent social worker (LISW), a licensed social worker (LSW), or a marriage and family therapist (MFT).

(iii) The provider shall retain records to show that each counseling staff member holds a license in good standing with his or her respective Ohio professional licensure board, and has at least one year of counseling experience.

(iv) The provider shall supervise any licensed social worker (LSW), licensed professional counselor (LPC), or marriage and family therapist (MFT) whom the provider employs according to the requirements of Chapter 4757. of the Revised Code. The supervisor of a LSW, LPC, or MFT shall co-sign all initial assessments and all treatment plans prepared by the LSW, LPC, or MFT.

(b) Non-agency provider:

(i) No individual shall provide the service as a non-agency provider unless the individual is an independent marriage and family therapist (IMFT), a licensed professional clinical counselor (LPCC), licensed psychologist (MA or PhD), a licensed independent social worker (LISW), or a registered nurse (RN) who holds a certificate of authority from the Ohio board of nursing in psych-mental health nursing specialty.

(ii) The provider shall retain records to show that he or she holds a license in good standing with his or her Ohio professional licensure board, and has at least one year of counseling experience.

(6) Limitations:

(a) The provider shall not provide any service to a consumer in excess of what the case manager authorizes in the consumer's service plan.

(b) The provider shall only bill the PAA for the service provided under the PASSPORT program if the case manager identifies the provider in the service order for the consumer.

(c) The provider shall not provide the service to a consumer if the consumer is receiving a similar service under Chapter 173-39 of the Administrative Code.

(d) The provider shall not provide the service in place of a case management service.

(e) The provider shall not provide a service to a consumer's authorized representative or caregiver if the service is unrelated to the consumer's well-being.

(7) Service verification:

(a) The provider shall retain a record of the case manager's service order.

(b) For each service provided, the provider shall retain a record of the:

(i) Consumer's name;

(ii) Date of service;

(iii) Time of day each service begins and ends;

(iv) Name of staff member counseling the consumer; and,

(v) Consumer's signature. The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic signature.

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

(d) The agency provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (B)(5) of rule 173-39-02 of the Administrative Code and the non-agency provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (C)(5) of rule 173-39-02 of the Administrative Code.

(C) Unit and rate:

(1) A unit of a social work counseling service is equal to fifteen minutes.

(2) The maximum rate allowable for a unit of the service is listed in rule 5101:3-1-06.1 of the Administrative Code.

Replaces: 173-39- 02.12

Effective: 09/02/2010
R.C. 119.032 review dates: 09/02/2015
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391 , 173.40
Rule Amplifies: 173.39 , 173.391
Prior Effective Dates: 03/31/2006

173-39-02.13 Non-emergency medical transportation service.

(A) "Non-emergency medical transportation service" means a service that transports a consumer from one place to another for a non-emergency medical purpose through the use of a provider's vehicle and driver. Examples of places to which the service may transport a consumer are a doctor's office or a pharmacy. (This service is different than the non-medical transportation service defined in rule 173-39-02.18 of the Administrative Code, which transports a consumer from one place to another for a non-medical purpose.)

(B) Eligibility criteria: A consumer is eligible for a non-emergency medical transportation service if:

(1) The consumer is enrolled in the PASSPORT program;

(2) A case manager authorizes the service;

(3) The service is not otherwise available or funded by Ohio's medicaid program (i.e., the "Medicaid card") or another source; and,

(4) The consumer's family, neighbors, friends, or community agencies are unwilling or not required to provide the service to the consumer free of charge.

(C) Minimum requirements for a non-emergency medical transportation service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) In general:

(a) Availability: The agency provider shall possess a back-up plan for providing the service when a driver or vehicle is unavailable. A non-agency provider shall possess a back-up plan for providing the service when he/she or his/her vehicle is unavailable.

(b) To and from vehicle: As part of each service provided, the driver shall help the consumer to safely transfer between the pick-up point and the vehicle, to safely enter and exit the vehicle, and to safely transfer between the vehicle and the destination point.

(2) Vehicle inspections:

(a) The provider shall create a written plan for preventive maintenance and inspection of each vehicle and wheelchair lift used for this service which shall include the recommended preventive-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 PAA 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 or form ODA0011 (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 (C)(2)(a)(i) of this rule.

(c) The provider shall deem that any bus that displays a current, valid safety-inspection decal issued by the state highway patrol under section 4513.52 of the Revised Code is a vehicle that complies with paragraph (C)(2)(a)(i) of this rule. For the purposes of this rule, "bus" has the same meaning as in section 4513.50 of the Revised Code.

(d) The provider shall retain records to verify that it complies with paragraph (C)(2)(a) of this rule.

(3) Provider qualifications: Only an agency provider that is certified under rule 173-39-02 of the Administrative Code or a non-agency provider who is certified under rule 173-39-02 of the Administrative Code may provide the service. A consumer-directed individual provider or a participant-directed individual provider shall not provide this service.

(4) Driver qualifications:

(a) 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 (C)(1)(b) of this rule;

(vii) Possess the ability to comply with the "Pre-Trip Vehicle Inspection" requirement under paragraph (C)(2)(a)(ii) of this rule; and,

(viii) Possess the ability to comply with the service-verification requirements under paragraph (C)(6) of this rule.

(b) No later than six months after a driver provides his/her 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;

(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.

(c) Exceptions:

(i) Any driver who holds a current, valid EMT-basic, EMT-intermediate, or EMT-paramedic certification from the Ohio state board of emergency medical services is deemed to comply with paragraphs (C)(4)(a) and (C)(4)(b) of this rule.

(ii) Any driver who successfully passed the Ohio state board of emergency medical service's curriculum for an EMT-basic, EMT-intermediate, or EMT-paramedic, but does not hold a current, valid EMT-basic, EMT-intermediate, or EMT-paramedic certification from the Ohio state board of emergency medical services is deemed to comply with paragraphs (C)(4)(a) and (C)(4)(b) of this rule, except the driver shall complete the defensive-driving course required under paragraph (C)(4)(b)(i) of this rule every three years.

(iii) Any driver for an urban or rural transit system is deemed to comply with paragraph (C)(4)(a) of this rule.

(iv) Any driver who successfully passed the defensive-driving course required under paragraph (C)(4)(b)(i) of this rule no more than three years before the effective date of this rule is deemed to comply with paragraph (C)(4)(b)(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.)

(v) Any driver who successfully passed the introductory course required under paragraph (C)(4)(b)(ii) of this rule no more than three years before the effective date of this rule is deemed to comply with paragraph (C)(4)(b)(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.)

(d) The provider shall retain records to verify that each driver complies (or the non-agency provider shall retain records to verify that he/she complies) with the driver qualifications under paragraph (C)(4) of this rule.

(5) Limitations:

(a) The provider shall not provide the service to a consumer in excess of what the case manager authorizes in the consumer's service plan.

(b) The provider shall only bill the PAA for the service provided under the PASSPORT program if the case manager identifies the provider in the service order for the consumer.

(c) The provider shall not provide the service to a consumer if the consumer is receiving a similar service under Chapter 173-39 of the Administrative Code.

(6) Service verification:

(a) The provider shall retain a record of the case manager's service order.

(b) As part of each service provided, the driver shall record the:

(i) Consumer's name;

(ii) Pick-up point;

(iii) Date and time of the pick up;

(iv) Drop-off point;

(v) Date and time of the drop off;

(vi) Driver's name;

(vii) Driver's signature; and,

(viii) Consumer's signature. The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic signature.

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

(d) The agency provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (B)(5) of rule 173-39-02 of the Administrative Code. The non-agency provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (C)(5) of rule 173-39-02 of the Administrative Code.

(D) Jobs and rates:

(1) One trip, whether a one-way trip or a round trip, constitutes one job of non-emergency medical transportation service.

(2) The per-job rate for a service is negotiable, but is finalized by the consumer's case manager before the provision of the service. A finalized rate is renegotiable if the case manager revises the rate before the service is provided.

(3) If the provider furnishes the service simultaneously to more than one PASSPORT consumer who resides in the same household in the same vehicle to the same destination, the provider's reimbursement rate for that trip is seventy-five per cent of the per-job rate in paragraph (D)(2) of this rule, in accordance with rule 5101:3-31-07 of the Administrative Code.

(4) The maximum rates allowable for a one-way trip and a round trip are listed in rule 5101:3-1-06.1 of the Administrative Code.

Effective: 09/29/2011
R.C. 119.032 review dates: 07/13/2011 and 09/29/2016
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.40
Rule Amplifies: 173.39 , 173.391 , 173.431
Prior Effective Dates: 03/31/2006, 02/15/2009, 09/24/2009, 09/02/2010

173-39-02.14 Home-delivered meal service.

(A) "Home-delivered meal service" means the service that provides up to two meals per day to a consumer who has a need for a home-delivered meal based on a deficit in an ADL or IADL that a case manager identifies during the assessment process. The service includes the preparation, packaging, and delivery of safe and nutritious meals to the consumer at his or her home.

(B) Minimum requirements for a home-delivered meal service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) Planning:

(a) Dietitian: The provider shall only utilize a menu that has received the written approval of a dietitian who is currently registered with the commission on dietetic registration and who is also a licensed dietitian, if the state in which the provider is located licenses dietitians.

(b) Nutritional adequacy:

(i) The provider shall only provide a meal that meets one-third of the current dietary reference intakes that the food and nutrition board of the institute of medicine of the national academy of sciences establishes.

(ii) The provider shall only provide a meal that follows the current dietary guidelines for Americans, as published by the United States department of health and human services and the USDA.

(iii) The provider shall retain records to verify that each meal complies with paragraphs (B)(1)(b)(i) and (B)(1)(b)(ii) of this rule.

(c) Therapeutic diet: A provider shall only provide a home-delivered meal with a therapeutic diet to a consumer if:

(i) A licensed physician has ordered the therapeutic diet because the consumer requires a daily amount of, or distribution of, one or more specific nutrients in order to treat the consumer's disease or clinical condition, or to eliminate, decrease, or increase certain substances in the consumer's diet;

(ii) The provider provides the therapeutic diet the physician ordered instead of a diet that complies with paragraphs (B)(1)(b)(i) and (B)(1)(b)(ii) of this rule;

(iii) The provider only provides the therapeutic diet for up to ninety days after the date of the physician's order, unless the provider receives a subsequent order from the physician for any subsequent ninety-day period; and,

(iv) The provider retains a record of the physician's order, and subsequent orders, in the consumer's clinical record.

(d) Consumer choice: The provider shall provide each consumer with a menu of meal options that, as much as possible, consider the consumer's medical restrictions; religious, cultural, and ethnic background; and dietary preferences.

(2) Preparation and safety:

(a) Packaging:

(i) Hot meals: The provider shall individually package each ready-to-eat, temperature-controlled, home-delivered meal. The provider shall label the meal with the month, day, and year that it prepared the meal and shall list the date immediately following the term "packing date" or "pack date."

(ii) Non-hot meals: The provider may individually package each component of a home-delivered meal that is a frozen meal, a vacuum-packed meal, a modified-atmosphere-packed meal, or a shelf-stable meal if the provider labels each individual package with the month, day, and year before which the consumer should consume the individual package, and shall list the date immediately following the term "use before." As used in this paragraph, "individual package" does not include a whole fruit (e.g., a fresh apple or banana) that is not packaged.

(b) Temperature monitoring:

(i) The provider shall maintain a time-and-temperature monitoring system for food preparation, handling, and delivery.

(ii) The provider shall monitor meal temperatures delivered in a thermostatically-controlled meal-delivery vehicle at least monthly. The provider shall monitor meal temperatures delivered in any other meal-delivery vehicle at least weekly.

(iii) The provider shall retain records to show that it complies with paragraphs (B)(2)(b)(i) and (B)(2)(b)(ii) of this rule.

(c) Delivery vehicles and containers: The provider shall ensure that all meal-delivery vehicles and containers are safe and sanitary.

(d) "Uniform Food Safety Code": The provider shall comply with Chapters 918., 3715., and 3717. of the Revised Code and Chapter 3717-1 of the Administrative Code. For the purposes of this rule, heating and reheating an already-prepared home-delivered meal is not the same as preparing a meal.

(e) State and federal inspections of Ohio-based providers:

(i) The provider shall retain records of all inspection reports from the Ohio department of agriculture and the USDA's food safety inspection service, as well as any resulting plans of correction or follow-up reports, according to the records-retention requirements under paragraph (B)(5)(a) of rule 173-39-02 of the Administrative Code.

(ii) If the Ohio department of agriculture's division of food safety places the provider on priority status or notice status, the provider shall notify the PAA of the status no more than two business days after the department of agriculture issues a report of priority-status findings or a notice under section 913.42 of the Revised Code. The provider shall send to the PAA a copy of any report and any notice the department of agriculture issues against the provider no more than five business days after the department of agriculture issues the report or notice. If the department of agriculture issues a notice requiring a plan of correction or follow-up report, the provider shall send to the PAA a copy of the plan of correction and follow-up report in no more than five business days after the provider submits the plan of correction or follow-up report to the department of agriculture.

(iii) If the Ohio department of agriculture's division of meat inspection or the USDA's food safety inspection service takes a withholding action against or suspends the provider under 9 C.F.R. 500.3 or 9 C.F.R. 500.4 , the provider shall notify the PAA of the action or suspension no more than two business days after the department of agriculture acts or suspends. The provider shall send to the PAA a copy of the department of agriculture's action of suspension in no more than five days after the department of agriculture acts or suspends. If the department of agriculture requires a plan of correction or follow-up report, the provider shall send to the PAA a copy of the plan of correction or follow-up report in no more than five business days after the provider submits the plan of correction or follow-up report to the department of agriculture.

(f) Federal inspections of non-Ohio-based providers:

(i) If a provider is located outside of Ohio, the provider shall retain records of all inspection reports from the USDA's food safety inspection service, as well as any plans of correction or follow-up reports, according to the records-retention requirements under paragraph (B)(5)(a) of rule 173-39-02 of the Administrative Code.

(ii) If the USDA's food safety inspection service takes a withholding action against or suspension the provider under 9 C.F.R. 500.3 or 9 C.F.R. 500.4 , the provider shall notify the PAA of the action or suspension no more than two business days after the USDA acts or suspends. The provider shall send to the PAA a copy of the USDA's action or suspension in no more than five business days after the USDA acts or suspends. If the USDA requires a plan of correction or follow-up report, the provider shall send to the PAA a copy of the plan of correction or follow-up report in no more than five business days after the provider submits the plan or correction or follow-up report to the USDA.

(g) Local health department inspections of providers:

(i) The provider shall retain records of all inspection reports from the local health department, as well as any resulting plans of correction or follow-up reports, according to the records-retention requirements under paragraph (B)(5)(a) of rule 173-39-02 of the Administrative Code.

(ii) If the local health department cites the provider for a critical violation, as the term "critical violation" is used in paragraph (B) of rule 3717-1-02.4 of the Administrative Code, the provider shall notify the PAA of the citation no more than forty-eight hours after the citation. The provider shall send to the PAA a copy of the inspection report in no more than forty-eight hours after the local department of health cites the provider. If the local health department requires a plan of correction or follow-up report, the provider shall send to the PAA a copy of the plan of correction and follow-up report no more than forty-eight hours after the provider submits the plan of correction or follow-up report to the local health department.

(h) Sanctions: Pursuant to section 173.391 of the Revised Code and to rule 173-39-05 of the Administrative Code, ODA may issue a level-two or level-three sanction to a provider if the provider is endangering the health, safety, or welfare of one or more consumers because it doesn't comply with one or more requirements in this rule. This may result in the suspension or termination of the provider.

(3) Delivery:

(a) The provider shall deliver each meal according to the consumer's service plan.

(b) Delivery dates and times: The provider shall establish a routine delivery date and range of time with each consumer and record the established delivery date and time in the consumer's clinical record.

(i) The provider shall notify the consumer if it will deliver a ready-to-eat home-delivered meal more than one hour past the established delivery time.

(ii) The provider shall notify the consumer if it will , in one delivery, deliver multiple home-delivered meals that are not ready-to-eat and temperature-controlled (e.g., deliver ten vacuum-packed meals in one package) more than one day past the established delivery date.

(c) Delivery instructions: The provider shall furnish written delivery instructions to its delivery persons.

(d) Consumer instructions: The provider shall provide the consumer with clear instructions on how to safely heat or reheat a meal and, if the meal is delivered in components (e.g., a vacuum-packed meal), how to assemble the meal. The provider shall retain records to show it complies with this paragraph.

(4) Provider qualifications:

(a) Type of provider: Only an agency that ODA certifies as an agency provider shall provide this service. No individual shall provide the service unless the individual is an employee or volunteer of an agency that ODA certifies as an agency provider.

(b) Licensure:

(i) Food service operator's license: The provider shall possess any current, valid license or certificate that the local health department requires the provider to possess.

(ii) Driver's license: The provider shall retain records to show that each of its meal-delivery persons possesses a current, valid driver's license.

(c) Auto liability insurance: The provider shall retain records to show that the owner of each meal-delivery vehicle used for this service carries auto liability insurance on the vehicle.

(d) Training: The provider shall develop a training plan that includes orientation and annual continuing education.

(i) Orientation: The provider shall assure that each employee, including each volunteer, who participates in meal preparation, handling, or delivery receives orientation on any of the following topics that are relevant to the employee's job duties:

(a) Sensitivity to the needs of older adults and people with physical disabilities or cognitive impairments;

(b) Handling emergencies;

(c) Food storage, preparation, and handling;

(d) Food safety and sanitation;

(e) Meal delivery; and,

(f) Handling hazardous materials.

(ii) Continuing education: The provider shall assure that each employee, including a volunteer, who participates in meal preparation, handling, or delivery completes four hours of continuing education each year on the topics under paragraph (B)(4)(d)(i) of this rule that are relevant to the employee's job duties.

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

(5) Limitations:

(a) The provider shall not provide the service to a consumer in excess of what the case manager orders in the service order for the consumer.

(b) The provider shall only bill the PAA for the service under the PASSPORT program if the case manager identifies the provider in the service order for the consumer

(c) The provider shall not provide the service as a supplement or replacement to the purchase of food or groceries.

(d) The provider shall not provide bulk ingredients, liquids, or other food to a consumer, whether or not the consumer would prepare a meal independently or with assistance. As used in this paragraph, "bulk ingredients, liquids, and other food" includes food that one portions, prepares, or cooks to eat, but does not include a fully-prepared meal that one heats or reheats to eat. Because certain consumers may have difficulty opening small milk cartons or small butter packets (e.g., due to arthritis), if the service plan authorizes the provider to do so, a provider may deliver a pint or half-gallon of milk; a loaf of sliced bread; and a stick of butter to a consumer up to once per week if the milk, bread, and butter are components of fully-prepared meals that the provider delivers throughout the week. (e.g., A provider may provide a pint of milk for consumption as multiple servings of milk that are part of multiple meals, but not as an ingredient for the consumer to use to prepare a meal.)

(e) The provider shall not provide the service to a consumer who is hospitalized or is residing in an institutional setting.

(6) Service verification:

(a) The provider shall retain a record of the case manager's service order.

(b) For each meal delivery, the provider shall retain a record of the:

(i) Consumer's name;

(ii) Delivery date;

(iii) Delivery time;

(iv) Number of meals in the delivery;

(v) Delivery person's signature or initials; and,

(vi) Consumer's signature. The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic 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 (B)(5) of rule 173-39-02 of the Administrative Code.

(C) Unit and rates:

(1) A unit of a regular home-delivered meal service is one home-delivered meal that is planned, prepared, delivered, and recorded by qualified employees of an agency provider according to this rule. The maximum rate allowable for one regular home-delivered meal is listed in rule 5101:3-1-06.1 of the Administrative Code.

(2) A unit of a home-delivered meal service with a therapeutic diet is one home-delivered meal with a therapeutic diet that is planned, prepared, delivered, and recorded by qualified employees of any agency provider according to this rule. The maximum rate allowable for one unit of a home-delivered meal with a therapeutic diet is listed in rule 5101:3-1-06.1 of the Administrative Code

(D) Definition: "USDA" means "United States department of agriculture."

Replaces: 173-39- 02.14

Effective: 01/01/2011
R.C. 119.032 review dates: 12/31/2015
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391 , 173.40 , 173.402
Rule Amplifies: 173.39 , 173.391 , 173.402
Prior Effective Dates: 04/16/2006

173-39-02.15 Independent living assistance service.

(A) Independent living assistance (ILA) is a service that consists of activities that assist consumers to manage their households, handle their personal affairs, self-administer medications, and help ensure that consumers retain their community living arrangements and avoid institutionalization due to loss of shelter or other essential environmental services. There are three types of ILA: telephone support, in-person support activities and travel attendant activities.

(1) Telephone support includes:

(a) Calling consumers according to a preset schedule to remind them to take prescribed and over-the-counter medications at specified times; and,

(b) Calling consumers at times that no other in-home services are being provided to confirm that consumers are functioning safely in the home environment.

(2) In-person support includes one or more of the following:

(a) Assisting consumers with banking to include making routine deposits and withdrawals;

(b) Cashing a consumer's benefit checks;

(c) Purchasing money orders for consumers;

(d) Writing personal checks for consumers;

(e) Paying bills in person or by mail on behalf of a consumer;

(f) Balancing a consumer's checkbooks and reconciling the consumer's monthly checking account statements;

(g) Organizing and coordinating health insurance records for consumers;

(h) Assisting or acting as a consumer's authorized representative in order to obtain and/or maintain public benefits;

(i) Applying for programs such as homestead exemption, home energy assistance program (heap) and subsidized housing on behalf of a consumer;

(j) Monitoring and replenishing a consumer's stock of needed groceries; and,

(k) Assisting a consumer with business and personal correspondence including writing letters, purchasing postage stamps and delivering correspondence to the post office.

(3) Travel attendant activities include:

(a) Accompanying consumers to medical and other appointments; and,

(b) Accompanying consumers on errands and to other activities outside the home.

(B) A unit of service is fifteen minutes of direct consumer service or one completed phone call.

(C) Eligible providers of ILA service are long-term care agency providers.

(D) The provider must maintain a consumer record documenting each episode of service delivery, including the date of service, service tasks performed, name of the staff person providing services, the beginning and ending times of services provided, and the provider staff's signature or electronic signature. Providers who do not utilize an electronic verification system to document services and keep records must also obtain the consumer's signature for each episode of in-person and travel attendant service.

(E) Certified ILA providers must be able to document that they:

(1) Have the capacity to deliver services five days per week; and,

(2) Have a service back-up plan to ensure services are delivered during staff absence.

(F) Providers must demonstrate evidence of compliance with the following personnel requirements:

(1) ILA staff must meet all of the following minimum requirements prior to working with consumers:

(a) Have a high school diploma, have successfully completed a GED, or have a minimum of one year of relevant, supervised work experience with a public health, human services or other community service agency;

(b) Have the ability to understand written activity plans, execute instructions, document services delivered, and, for staff providing ILA in-person services, the ability to perform basic mathematical operations;

(c) Have the ability to communicate effectively with consumers;

(d) Have the ability to access emergency service systems; and,

(e) Have the ability to access transportation services required as appropriate.

(2) Eligible supervisors of ILA services must have at least one of the following:

(a) A current and valid license to practice in the state of Ohio as an RN, LPN, LISW, or LSW;

(b) A bachelor's degree or an associate degree in: home economics/nutrition or dietetics, counseling, gerontology, social work, nursing, public health, health education, other related field; or,

(c) A minimum of three years of employment experience in the provision of social services.

(3) The provider must document a minimum of eight hours of continuing education for each ILA staff providing in-person services every twelve months.

(G) The provider must demonstrate evidence of compliance with the following supervisory requirements:

(1) Prior to service initiation of ILA in-person and/or ILA travel attendant services, the supervisor must complete and document a home visit to define the expected ILA activities. The supervisor must develop and document a specific activities plan consistent with the case manager's authorized plan.

(2) Prior to service initiation of ILA telephone support services, the supervisor must conduct a conference call with the consumer or a home visit with the consumer to define the expected ILA telephone support activities. The supervisor must develop and document a specific activities plan consistent with the case manager's authorized plan.

(3) The supervisor must evaluate the ILA staff compliance with the plan, consumer satisfaction and job performance during a home visit with the consumer receiving in-person and travel attendant ILA services at least every ninety days. The ILA staff need not be present during the visit. The supervisor must evaluate the ILA telephone support staff compliance with the plan, consumer satisfaction and job performance during a home visit or a telephone conference with the consumer receiving ILA telephone support services.

(H) The provider must demonstrate evidence of compliance with the following:

(1) All employees who have contact with consumers must complete orientation and training prior to working with consumers. The orientation and training must include, but need not be limited to, the following:

(a) Expectations of employees;

(b) The employee code of conduct;

(c) An overview of personnel policies;

(d) Incident reporting procedures;

(e) Agency organization and lines of communication; and,

(f) Emergency procedures.

(2) Comply with and maintain written policies and procedures as applicable supporting the operation of the business and provision of service that include, at a minimum:

(a) Reporting and documenting consumer incidents;

(b) Obtaining consumer's written permission to share information and/or release information to anyone;

(c) Consumer record contents, handling, storage and retention; and,

(d) Personnel requirements including:

(i) Job descriptions for each position;

(ii) Documentation of each employee's qualifications for the service(s) to be provided;

(iii) Performance appraisals for all workers;

(iv) Documentation of compliance with required staff orientation training; and,

(v) The employee code of conduct as described in rule 173-39-02 of the Administrative Code.

R.C. 119.032 review dates: 11/18/2010 and 11/16/2015
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391
Rule Amplifies: 173.39 , 173.391 , 173.431
Prior Effective Dates: 03/31/2006

173-39-02.16 Assisted living service.

(A) "Assisted living service" means a service that promotes aging in place by supporting a consumer's independence, choice, and privacy through the provision of one or more components of the service which are a personal care service, a supportive service, an on-duty response service, coordination of meals, social and recreational programming, a non-medical transportation service, and a nursing service.

(B) Requirements for an assisted living service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) In general:

(a) Type of provider: Only a residential care facility that the Ohio department of health licenses under rules 3701-17-50 to 3701-17-68 of the Administrative Code and that ODA certifies as an assisted living provider may provide the service.

(b) Components of the service:

(i) The provider shall maintain the capacity to provide each of the components of the service and shall provide any one or more components of the service that the consumer's case manager authorizes in the consumer's service plan, except as provided in paragraph (B)(1)(b)(ii) of the rule. The components of the service are as follows:

(a) A personal care service;

(b) A housekeeping service, a laundry service for personal and non-personal laundry, a routine maintenance service, or another supportive service;

(c) An on-duty response service on a twenty-four-hours-per-day basis to meet, in a timely manner, the consumer's unpredictable care needs, supervisory needs, emotional needs, reasonable requests for services, and to adequately assist the consumer in performing all activities of daily living;

(d) The coordination of three meals per day provided in accordance with paragraph (B) of rule 3701-17-60 of the Administrative Code, including special diets, as defined in rule 3701-17-50 of the Administrative Code;

(e) Social and recreational programming;

(f) A scheduled, non-medical transportation service, as agreed upon by the consumer and the provider; and,

(g) A nursing service that includes all of the following:

(i) A health assessment, including the initial health assessment under paragraph (C) of rule 3701-17-58 of the Administrative Code and the subsequent health assessment required under paragraph (D) of rule 3701-17-58 of the Administrative Code;

(ii) Monitoring of the consumer according to the standards of practice for the consumer's condition;

(iii) Medication management; and,

(iv) Part-time, intermittent skilled nursing care, as described in rule 3701-17-59.1 of the Administrative Code, when not available to the consumer through a third-party payer.

(ii) The provider may subcontract with a subcontractor to furnish one or more, but not all, of the components of the service that the case manager authorizes for the consumer.

(c) Review of the service plan: The provider's registered nurse or licensed practical nurse shall:

(i) Contact each consumer quarterly to assess, then document the consumer's satisfaction with his/her service plan, and whether the service plan continues to meet his/her needs;

(ii) Document, at least quarterly, whether each consumer's service delivery records show that the consumer is receiving the services as the case manager authorized them in the consumer's service plan; and,

(iii) Document, at least quarterly, whether staff members are providing personal care as required under paragraph (D) of rule 3701-17-59 of the Administrative Code.

(2) Facility requirements:

(a) Residential living units:

(i) The provider shall provide each consumer with a private, residential living unit that is designated solely for the consumer, except as permitted under paragraph (B)(2)(a)(ii) of this rule.

(ii) The provider shall only allow a consumer to share a private, residential living unit if:

(a) The consumer requests to share his/her unit;

(b) The consumer shares his/her unit with a person with whom the consumer has an existing relationship; and,

(c) The consumer's case manager verifies that the conditions of paragraphs (B)(2)(a)(ii)(a) and (B)(2)(a)(ii)(b) of this rule are met and authorizes sharing the unit in the consumer's service plan.

(iii) The unit shall have a lock that allows the consumer to control access to the unit at all times, unless, the provider maintains documentation from a physician that was issued within the previous three hundred sixty-five days in which the physician determines that the consumer's diagnosis indicates that the consumer's ability to lock the unit is likely to have an adverse effect on the consumer's health or welfare;

(iv) The unit shall include a bathroom with a toilet, a sink, and a shower/bathtub, all of which are in working order; and,

(v) The unit shall include identifiable space, separate from the sleeping area, that provides seating for the resident and one or more visitors for socialization.

(b) Common areas: The provider shall provide common areas that are accessible to the consumer, including a dining area (or areas) and an activity center (or centers). A multi-purpose common area may serve as both a dining area and an activity center.

(3) Staffing and staff qualifications:

(a) Nurses: The provider shall retain, either directly or through the use of a subcontractor, the services of a registered nurse or a licensed practical nurse as those terms are defined in Chapter 4723. of the Revised Code.

(b) On-duty response staff: The provider shall furnish a sufficient number of on-duty staff members to meet the on-duty response service requirement under paragraph (B)(1)(b)(i)(c) of this rule.

(c) Minors: The provider shall not allow any staff member who is under eighteen years of age to:

(i) Assist with medication management;

(ii) Provide a transportation service; or,

(iii) Provide hands-on assistance with bathing, toileting, or transferring without on-site supervision.

(d) Training requirements: The provider shall document that, before each staff member provides his/her first service to a consumer, he/she is trained in the following subject areas:

(i) Principles and philosophy of assisted living;

(ii) The aging process;

(iii) Intermittent cuing, redirecting, and environmental cues for cognitively-impaired consumers and/or behaviorally-impaired consumers;

(iv) Confidentiality;

(v) The consumer service plan process; and,

(vi) The consumer's right to assume responsibility for decisions related to his/her care.

(C) Units and rates:

(1) One unit of assisted living service is equal to one day.

(2) The maximum rates allowable for a unit of the service are established in the appendix to rule 5101:3-1-06.5 of the Administrative Code.

(D) Definitions for this rule:

(1) "Medication management" includes knowing what medications a consumer is self-managing, ordering medication, medication reminders, and medication administration.

(2) "On duty" (as in "on-duty staff") has the same meaning as in rule 3701-17-50 of the Administrative Code.

(3) "Personal care service" has the same meaning as in rule 3701-17-50 of the Administrative Code.

(4) "Staff member" has the same meaning as in rule 3701-17-50 of the Administrative Code.

Effective: 06/10/2013
R.C. 119.032 review dates: 03/26/2013 and 06/10/2018
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 5111.89
Rule Amplifies: 173.39 , 173.391 , 5111.89
Prior Effective Dates: 03/31/2006, 03/22/2008, 10/08/2009

173-39-02.17 Community transition service.

(A) "Community transition services" means non-recurring set-up expenses for a consumer who is transitioning from an institutional setting or another provider-operated living arrangement to a living arrangement in a private residence where the consumer is directly responsible for his or her own living expenses. Expenses are furnished only if the service plan clearly identifies the expenses as reasonable and necessary for the consumer to establish a basic household, if the expenses don't constitute room and board, and if the consumer is unable to meet meet the expenses or to obtain them from other sources. Non-recurring set-up expenses that meet this criteria may include any of the following:

(1) Security deposits required to lease an apartment or home. (For the purposes of this rule, mortgages and rents are room and board, but security deposits are non-recurring set-up expenses.)

(2) Household furnishings required to occupy and use a private residence, including furniture, window coverings, food preparation items, and bed and bath linens.

(3) Set-up fees or deposits required for utility or service access, including telephone, electricity, heating, and water. (For the purposes of this rule, regular utility charges are room and board, but set-up fees and deposits are non-recurring set-up expenses.)

(4) Services required for the consumer's health and safety, such as pest eradication and one-time cleaning prior to occupancy.

(5) Moving expenses.

(6) Home accessibility adaptations required for the consumer that are not the landlord's responsibility.

(7) Activities to arrange for and to procure other non-recurring set-up expenses.

(B) Eligibility criteria for the community transition service:

(1) A case manager may authorize one or more expenses for:

(a) A consumer who is enrolled in the assisted living program and is in transition from a nursing facility to a residential care facility; or,

(b) A consumer who is enrolled into the PASSPORT program and is in transition from a nursing facility to a house or apartment.

(2) In a consumer's service plan, a case manager may only authorize an expense if no other person, including a landlord, has a legal or contractual responsibility to cover the expense and if family, neighbors, friends, or community agencies are unwilling to provide the expense for free.

(C) Requirements for a community transition service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) Deadline: The provider shall furnish the service no later than ninety days after the date the consumer enrolls in the assisted living program or the PASSPORT program.

(2) Consumer choice: The provider shall involve the consumer in the selection of items to be purchased on the consumer's behalf.

(3) Limitations: The provider shall not seek reimbursement for any expenses in excess of those authorized in the consumer's service plan.

(4) Provider qualifications: Only an agency that ODA certifies as an agency provider, a person that ODA certifies as a non-agency provider, or a residential care facility that ODA certifies as an assisted living provider shall provide this service.

(5) Service verification:

(a) For each service provided, the provider shall retain a record of the:

(i) Consumer's name;

(ii) Date of service;

(iii) Accurate description of each expense;

(iv) A receipt for each expense;

(v) The consumer's signature to verify that the consumer was involved in the selection of any item purchased on the consumer's behalf; and,

(vi) The consumer's signature to verify that the service was provided.

(b) The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic signature.

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

(d) The agency provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (B)(5) of rule 173-39-02 of the Administrative Code. The non-agency provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (C)(5) of rule 173-39-02 of the Administrative Code. The assisted living provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (E)(5) of rule 173-39-02 of the Administrative Code.

(D) Rates:

(1) The sum of the community transition service expenses authorized in a consumer's service plan constitutes one job of community transition service.

(2) The per-job rate for a service is negotiable, but is finalized by ODA's designee.

(3) The maximum rate allowable for the service is established in the appendix to rule 5101:3-1-06.5for the assisted living program and in the appendix to rule 5101:3-1-06.1 of the Administrative Code for the PASSPORT program.

Replaces: 173-39- 02.17

Effective: 06/10/2013
R.C. 119.032 review dates: 06/10/2018
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.40 , 5111.89
Rule Amplifies: 173.39 , 173.391
Prior Effective Dates: 03/31/2006, 03/22/2008, 07/03/2008

173-39-02.18 Non-medical transportation service.

(A) "Non-medical transportation service" means a service that transports a consumer from one place to another for a non-medical purpose through the use of a provider's vehicle and driver. Examples of places to which the service may transport a consumer are a grocery store, a senior center, or a government office. (This service is different than the non-emergency medical transportation service defined in rule 173-39-02.13 of the Administrative Code, which transports a consumer from one place to another for a non-emergency medical purpose.) (See rule 173-39-02.4 of the Administrative Code regarding a escort service or transportation to community service, activity, or resource provided by a consumer-directed individual provider as part of a home-care attendant service.)

(B) Eligibility criteria: A consumer is eligible for a non-medical transportation service if:

(1) The consumer is enrolled in the PASSPORT program;

(2) A case manager authorizes the service;

(3) The service is not otherwise available or funded by Ohio's medicaid program (i.e., the "Medicaid card") or another source; and,

(4) The consumer's family, neighbors, friends, or community agencies are unwilling or not required to provide the service to the consumer free of charge.

(C) Minimum requirements for a non-medical transportation service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) In general:

(a) Availability: The agency provider shall possess a back-up plan for providing the service when a driver or vehicle is unavailable. The non-agency provider shall possess a back-up plan for providing the service when he/she or his/her vehicle is unavailable.

(b) To and from vehicle: As part of each service provided, the driver shall help the consumer to safely transfer between the pick-up point and the vehicle, to safely enter and exit the vehicle, and to safely transfer between the vehicle and the destination point.

(2) Vehicle inspections:

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

(i) The "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 PAA inspected it no more than twelve months beforehand and the answers to all questions on the form were "yes"; and,

(ii) The "Pre-Trip Vehicle Inspection" on form ODA0008 or form ODA00011 (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 (C)(2)(a)(i) of this rule.

(c) The provider shall deem that any bus that displays a current, valid safety-inspection decal issued by the state highway patrol under section 4513.52 of the Revised Code is a vehicle that complies with paragraph (C)(2)(a)(i) of this rule. For the purposes of this rule, "bus" has the same meaning as in section 4513.50 of the Revised Code.

(d) The provider shall retain records to verify that it complies with paragraph (C)(2)(a) of this rule.

(3) Provider qualifications: Only an agency provider that is certified under rule 173-39-02 of the Administrative Code or a non-agency provider who is certified under rule 173-39-02 of the Administrative Code may provide the service. A consumer-directed individual provider or a participant-directed individual provider shall not provide this service.

(4) Driver qualifications:

(a) 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 (C)(1)(b) of this rule;

(vii) Possess the ability to comply with the "Pre-Trip Vehicle Inspection" requirement under paragraph (C)(2)(a)(ii) of this rule; and,

(viii) Possess the ability to comply with the service-verification requirements under paragraph (C)(6) of this rule.

(b) No later than six months after a driver provides his/her 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;

(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.

(c) Exceptions:

(i) Any driver who holds a current, valid EMT-basic, EMT-intermediate, or EMT-paramedic certification from the Ohio state board of emergency medical services is deemed to comply with paragraphs (C)(4)(a) and (C)(4)(b) of this rule.

(ii) Any driver who successfully passed the Ohio state board of emergency medical service's curriculum for an EMT-basic, EMT-intermediate, or EMT-paramedic, but does not hold a current, valid EMT-basic, EMT-intermediate, or EMT-paramedic certification from the Ohio state board of emergency medical services is deemed to comply with paragraphs (C)(4)(a) and (C)(4)(b) of this rule, except the driver shall complete the defensive-driving course required under paragraph (C)(4)(b)(i) of this rule every three years.

(iii) Any driver for an urban or rural transit system is deemed to comply with paragraph (C)(4)(a) of this rule.

(iv) Any driver who successfully passed the defensive-driving course required under paragraph (C)(4)(b)(i) of this rule no more than three years before the effective date of this rule is deemed to comply with paragraph (C)(4)(b)(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.)

(v) Any driver who successfully passed the introductory course required under paragraph (C)(4)(b)(ii) of this rule no more than three years before the effective date of this rule is deemed to comply with paragraph (C)(4)(b)(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.)

(d) The provider shall retain records to verify that each driver complies (or the non-agency provider shall retain records to verify that he/she complies) with the driver qualifications under paragraph (C)(4) of this rule.

(5) Limitations:

(a) The provider shall not provide the service to a consumer in excess of what the case manager authorizes in the consumer's service plan.

(b) The provider shall only bill the PAA for the service provided under the PASSPORT program if the case manager identifies the provider in the service order for the consumer.

(c) The provider shall not provide the service to a consumer if the consumer is receiving a similar service under Chapter 173-39 of the Administrative Code.

(6) Service verification:

(a) The provider shall retain a record of the case manager's service order.

(b) As part of each service provided, the driver shall record the:

(i) Consumer's name;

(ii) Pick-up point;

(iii) Date and time of the pick up;

(iv) Drop-off point;

(v) Date and time of the drop off;

(vi) Driver's name;

(vii) Driver's signature; and,

(viii) Consumer's signature. The case manager shall record the consumer's signature of choice in the consumer's service plan. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic signature.

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

(d) The agency provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (B)(5) of rule 173-39-02 of the Administrative Code. The non-agency provider shall retain records required under this rule and provide access to those records for monitoring according to paragraph (C)(5) of rule 173-39-02 of the Administrative Code.

(D) Jobs and rates:

(1) One trip, whether a one-way trip or a round trip, constitutes one job of non-medical transportation service.

(2) The per-job rate for a service is negotiable, but is finalized by the consumer's case manager before the provision of the service. A finalized rate is renegotiable if the case manager revises the rate before the service is provided.

(3) If the provider furnishes the service simultaneously to more than one PASSPORT consumer who resides in the same household in the same vehicle to the same destination, the provider's reimbursement rate for that trip is seventy-five per cent of the per-job rate in paragraph (D)(2) of this rule, in accordance with rule 5101:3-31-07 of the Administrative Code.

(4) The maximum rates allowable for a one-way trip and a round trip are listed in rule 5101:3-1-06.1 of the Administrative Code.

Effective: 09/29/2011
R.C. 119.032 review dates: 07/13/2011 and 09/29/2016
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.40
Rule Amplifies: 173.39 , 173.391 , 173.431
Prior Effective Dates: 03/31/2006, 02/15/2009, 09/24/2009, 09/02/2010

173-39-02.19 Kosher option.

(A) If a case manager authorizes a home-delivered meal for a consumer under rule 173-39-02.14 of the Administrative Code, the consumer has the option to request a home-delivered kosher meal.

(B) The provider of a home-delivered kosher meal shall comply with rule 173-39-02.14 of the Administrative Code as much as possible while complying with kosher practices for meal preparation and dietary restrictions.

(C) The provider shall furnish evidence to the PAA that a home-delivered kosher meal that it provides is certified as kosher by a recognized kosher certification or a kosher establishment under orthodox rabbinic supervision.

Effective: 10/16/2009
R.C. 119.032 review dates: 09/30/2014
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391
Rule Amplifies: 173.39 , 173.391 , 173.402

173-39-02.20 Enhanced community living service.

(A) "Enhanced community living service" ("ECL") means a service that promotes aging in place, in multi-family affordable housing, through the furnishing of on-site access to individually-tailored health-related and supportive interventions for consumers who have functional deficits resulting from one or more chronic health conditions. The following are the components of the service:

(1) The establishment of measurable health goals;

(2) The identification of modifiable healthcare risks;

(3) The furnishing of regular health-status monitoring interventions. "Health-status monitoring interventions" mean taking and recording vital signs, weight, nutrition, and hydration statuses;

(4) Assistance with accessing additional allied health services;

(5) The furnishing of, or arrangement for, education on self-managing chronic diseases or chronic health conditions;

(6) Daily wellness checks. "Daily wellness check" means a component of the service through which a direct-service staff member has face-to-face contact with the consumer to observe any changes in the consumer's level of functioning and determine what, if any, modifications to the day's service delivery plan are needed;

(7) Access to planned and intermittent assistance with the personal care service under rule 173-39-02.11 of the Administrative Code, excluding respite care; and,

(8) Activities to assist a consumer who is returning home following a hospital or nursing facility stay.

(B) Requirements for an enhanced community living service in addition to the conditions of participation under rule 173-39-02 of the Administrative Code:

(1) Person-centered service plan:

(a) Capacity: The provider shall maintain the capacity to furnish each component of the service and shall furnish each component of the service that a consumer's case manager authorizes in the consumer's person-centered service plan.

(b) Development: Before the provider furnishes the initial service to a consumer, the direct-service staff supervisor shall:

(i) Assess the consumer's health goals, modifiable health risks, and planned and anticipated intermittent personal care needs; and,

(ii) Develop a person-centered service plan with the consumer that describes the interventions the consumer has chosen to reach his or her identified health goals, to minimize his or her modifiable health risks, and to meet his or her planned and anticipated intermittent personal care needs. The provider shall obtain the consumer's signature to verify that the consumer was involved in the development of his or her person-centered service plan.

(c) Regular monitoring: After the consumer begins to receive the service, the direct-service staff supervisor shall:

(i) Revise the person-centered service plan in fewer than five days after each hospital or nursing facility stay, and as otherwise needed, to reflect changes in the consumer's status, condition, preferences, and response to the service; and,

(ii) Facilitate an in-person review of the person-centered service plan with the consumer, the primary team, the consumer's case manager, and the housing site's service coordinator (if the housing site has a service coordinator) every sixty days to evaluate the effectiveness of the plan in addressing the consumer's health goals, reducing modifiable risks, and meeting planned and anticipated intermittent personal care needs.

(d) Records-retention: The provider shall retain a record of the person-centered service plan, including:

(i) Any revisions to the person-centered service plan; and,

(ii) The in-person review of the person-centered service plan.

(2) Multi-family affordable housing site: The provider shall only furnish the service for a consumer who resides in a multi-family affordable housing site. "Multi-family affordable housing site" ("housing site") means a housing site that:

(a) Uses a landlord-tenant rental agreement that complies with Chapter 5321. of the Revised Code;

(b) Furnishes a minimum of six units of housing under one roof; and,

(c) Receives assistance through a:

(i) Federally-assisted housing program, as defined under 24 C.F.R. 5.100 ;

(ii) Project-based voucher program, as defined in 24 C.F.R. 983; or,

(iii) Low-income housing tax credit program, that is based on Section 42 of the Internal Revenue Code.

(3) Staffing levels:

(a) The supervisor shall maintain accessibility to respond to consumer emergencies in the housing site during any time that a staff member is providing the service to a consumer in the housing site.

(b) The provider shall maintain the capacity to furnish face-to-face, person-centered services seven days a week for a minimum of six hours a day.

(c) During each hour that the provider has a staff member furnishing a service to a consumer in a housing site, the provider shall ensure that any other consumer has a mechanism to contact a direct-service staff member to request assistance with intermittent and unplanned personal care needs that are related to the measurable health goals and modifiable healthcare risks described in the consumer's service plan.

(d) Each day, the provider shall furnish adequate on-site staff members for no fewer than six hours (or, twenty-four units) to meet the consumers' assessed, intermittent, and unscheduled healthcare needs.

(e) The provider shall furnish a licensed registered nurse to monitor the health status of consumers. In doing so, the provider shall schedule adequate on-site nursing staff for no fewer than three hours (or, twelve units) each week.

(4) Provider qualifications:

(a) Type of provider: A provider shall only furnish the service if the provider is:

(i) A certified medicare provider;

(ii) A certified medicaid provider;

(iii) An agency that ODA certifies as an agency provider; and,

(iv) An entity distinct from the housing site owner and property manager so that the site is not subject to licensure as defined in Chapters 3721. and 3722. of the Revised Code.

(b) Staff designations and minimum staff qualifications:

(i) Direct-service staff supervisor: The provider shall only employ a person as a supervisor if the person is currently licensed as a registered nurse.

(ii) Direct-service staff: The provider shall only employ a person to furnish face-to-face services to consumers if the provider has received evidence, and retains evidence, that the person has successfully completed an ODA-approved home health aide training program listed onhttp://aging.ohio.gov/services/homehealthtraining.

(iii) Primary team: The provider shall furnish face-to-face, person-centered services to consumers through a primary team that consists of direct-service staff members and registered nurses who regularly furnish services within a given housing site and, as a result, are familiar with the consumers in the housing site. The provider shall replace any primary staff member who is absent with a back-up staff member who is familiar with the housing site and the consumers residing in the housing site. A registered nurse shall supervise the primary team and also any back-up direct-service staff members.

(c) Staff training:

(i) Orientation: Before allowing any staff member to provide the service:

(a) The provider shall train the staff member in areas that include, but are not limited to:

(i) The provider's expectations of employees;

(ii) The provider's employee code of conduct, as required under paragraph (B)(1)(f) of rule 173-39-02 of the Administrative Code;

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

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

(v) Incident reporting procedures; and,

(vi) Emergency procedures.

(b) A registered nurse shall furnish a basic overview of the chronic disease(s) or chronic health condition(s) specific to the consumers being served, the principles of self-managing chronic diseases or chronic health conditions, and a consumer's right to assume responsibility for his or her own healthcare decisions.

(c) The provider shall orient the staff member with the housing site and introduce to the consumers he or she will serve.

(ii) Continuing education: Each direct-service staff person of the provider shall complete at least eight hours of in-service continuing education every twelve months, excluding agency and program-specific orientations.

(5) Limitations:

(a) The provider shall not furnish the service to a consumer in excess of what the case manager authorizes in the consumer's service plan.

(b) The provider shall only bill ODA's designee for a service furnished under the PASSPORT program if the case manager identifies the provider in the service order for the consumer.

(c) The provider shall not furnish the service to a consumer if the consumer is receiving a similar service under Chapter 173-39 of the Administrative Code.

(6) Service verification:

(a) The provider shall develop and retain a daily service record for each consumer that includes the:

(i) Name of consumer;

(ii) Date of service;

(iii) List of any components of the service authorized in the person-centered service plan that the provider furnished;

(iv) List of any components of the service the provider furnished in response to daily, intermittent needs;

(v) Description of the consumer's status and response to the furnishing of the components of the service;

(vi) Total number of units furnished to the consumer;

(vii) Name and signature of the provider's staff person who furnished the service; and,

(viii) Consumer's daily signature. The signature of choice may include a handwritten signature; initials; stamp or mark; or electronic 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 furnish access to those records for monitoring according to paragraph (B)(5) of rule 173-39-02 of the Administrative Code.

(C) Unit and rates:

(1) One unit of enhanced community living service is equal to fifteen minutes of the service.

(2) The maximum rates allowable for a unit of the service is established in appendix A to rule 5101:3-1-06.1 of the Administrative Code.

(D) Definitions for this rule:

(1) "Chronic health condition" means a condition that lasts twelve months or longer and meets one or both of the following tests:

(a) It places limitation on self-care, independent living, and social interactions; and,

(b) It results in the need for ongoing intervention with medical services, products, and equipment.

(2) "Intermittent" means stopping and starting at intervals; pausing from time to time; periodic, not pre-determined designated time periods (e.g., ten a.m. to eleven a.m.) or for designated lengths of time (e.g., fifteen minutes or two hours).

(3) "Person-centered service" means a service that is directed by the consumer's informed choices; and offered at the time and place most preferable to the consumer, in a manner that is safe and unhurried; and that is furnished in a way that honors the consumer's individuality and preferences.

Effective: 03/17/2011
R.C. 119.032 review dates: 03/17/2016
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391
Rule Amplifies: 173.39 , 173.391 , 173.431

173-39-02.21 Scheduling choices home care attendant and personal care services.

(A) Agency: No agency shall accept a referral to furnish the personal care service to a consumer unless it has the staff capacity to furnish the number of hours requested for each consumer.

(B) Consumer-directed: No consumer-directed individual provider shall furnish the choices home care attendant service and no consumer-directed personal care provider shall furnish the personal care service:

(1) To more than five consumers per week;

(2) For more than forty hours per week for any individual consumer who employs the provider, unless the consumer's case manager authorizes working more than forty hours per week due to an emergency that cannot be resolved by allowing another provider to furnish the service after the fortieth hour; and,

(3) For more than a total of fifty-six hours per week regardless of the number of consumers who employ the provider.

(C) The provider may furnish a service that is not authorized by the consumer's service plan, but ODA (or ODA's designee) only reimburses the provider for furnishing a service that is authorized by the consumer's service plan.

(D) Definitions for this rule:

(1) "Choices home care attendant service" means the service regulated by rule 173-39-02.4 of the Administrative Code.

(2) "Personal care service" means the service regulated by rule 173-39-02.11 of the Administrative Code.

Effective: 11/11/2013
R.C. 119.032 review dates: 08/12/2013 and 11/11/2018
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , section 323.110 of H.B.59 (130th G.A.)
Rule Amplifies: 173.391
Prior Effective Dates: 06/30/2011

173-39-02.22 Waiver nursing service.

A provider of a waiver nursing service to consumers who are enrolled in the PASSPORT program shall comply with the requirements in rule 173-39-02 of the Administrative Code and the requirements for a waiver nursing service in rule 5160-46-04 of the Administrative Code, with the following exceptions:

(A) Only an ODA-certified agency provider or ODA-certified non-agency provider shall furnish the service to consumers who are enrolled in the PASSPORT program.

(B) The provider shall submit all required documentation for authorizations to ODA (or ODA's designee).

(C) The provider shall only furnish personal care aide activities as a part of the waiver nursing service if those activities are incidental to the personal care aide services defined in paragraphs (B)(1)(a) and (B)(1)(b), but not (B)(1)(c), (B)(1)(d), or (B)(1)(e) of rule 5160-46-04 of the Administrative Code.

(D) "All services plan" means "service plan" as the term is defined in rule 173-39-01 of the Administrative Code.

Effective: 07/01/2014
R.C. 119.032 review dates: 07/01/2019
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , Section 323.110 of H.B.59 (130th G.A.)
Rule Amplifies: 173.39 , 173.391 , 173.52

173-39-02.23 Out-of-home respite services.

A provider of an out-of-home respite service to consumers who are enrolled in the PASSPORT program shall comply with the requirements in rule 173-39-02 of the Administrative Code and the requirements for an out-of-home respite service in rule 5160-46-04 of the Administrative Code, with the following exceptions:

(A) Only an ODA-certified agency provider shall furnish the service to consumers who are enrolled in the PASSPORT program.

(B) The provider shall submit all required documentation for authorizations to ODA (or ODA's designee).

(C) "All services plan" means "service plan" as the term is defined in rule 173-39-01 of the Administrative Code.

Effective: 07/01/2014
R.C. 119.032 review dates: 07/01/2019
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , Section 323.110 of H.B.59 (130th G.A.)
Rule Amplifies: 173.39 , 173.391 , 173.52

173-39-02.24 Home care attendant service.

A provider of a home care attendant service to consumers who are enrolled in the PASSPORT program shall comply with the requirements in rule 173-39-02 of the Administrative Code and the requirements for a home care attendant service in rule 5160-46- 04.1 of the Administrative Code, with the following exceptions:

(A) Only an ODA-certified non-agency provider shall furnish the service to consumers who are enrolled in the PASSPORT program.

(B) The provider shall submit all required documentation for authorizations to ODA (or ODA's designee).

(C) "All services plan" means "service plan" as the term is defined in rule 173-39-01 of the Administrative Code.

(D) References to rule 5101-45-03 of the Administrative Code are replaced by rule 173-42-06 of the Administrative Code.

Effective: 07/01/2014
R.C. 119.032 review dates: 07/01/2019
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 173.52 , Section 323.110 of H.B.59 (130th G.A.)
Rule Amplifies: 173.39 , 173.391 , 173.52

173-39-03 Provider certification.

(A) Agency, non-agency, and assisted living providers: This is the process for any provider who seeks to become an ODA-certified long-term care agency, non-agency, or assisted living provider:

(1) Application materials for applicants seeking ODA long-term care certification as an agency provider, a non-agency provider, or an assisted living provider include:

(a) A signed and completed application form prescribed by ODA.

(i) Incomplete applications will be returned to the applicant by ODA's designee with an explanation of the information needed and a statement specifying that the complete application must be resubmitted within thirty business days.

(ii) ODA's designee must send a written acknowledgment of receipt for each complete application received and schedule an on-site pre-certification review within fifteen business days of receipt.

(b) A completed W-9 form.

(c) In addition to those materials described in paragraphs (A)

(1) and (A)(1)(b) of this rule, applicants seeking certification as an assisted living provider must also provide evidence that provider's facility is a residential care facility licensed by the Ohio department of health.

(2) Applicants also seeking to obtain medicaid provider agreements for ODA-administered long-term care services must complete those application materials required by ODJFS, and must submit those materials to ODA's designee at the same time as they submit ODA certification materials.

(3) The process to become an ODA-certified long-term care agency, non-agency and assisted living provider is:

(a) An applicant must request application materials and instructions from ODA's designee.

(b) Within forty-five business days after receipt of a signed and complete application, ODA's designee must complete an on-site pre-certification review to ascertain whether the applicant meets the requirements set forth in Chapter 173-39 of the Administrative Code.

(c) Within thirty business days of the on-site certification review, ODA's designee must determine whether the applicant meets the requirements set forth in Chapter 173-39 of the Administrative Code.

(i) If the applicant demonstrates compliance with all requirements, ODA's designee may recommend to ODA that certification be granted.

(ii) If the applicant does not demonstrate compliance with all requirements, ODA's designee must provide written notification to the applicant specifying the areas of noncompliance.

(a)The applicant has twenty business days from the date of notification to demonstrate full compliance with all requirements.

(b)ODA's designee must recommend to ODA within ten business days that certification be granted if the applicant complies with all requirements within the allotted time.

(c)ODA's designee must recommend to ODA within ten business days that certification be denied if the applicant fails to comply with all requirements within the allotted time.

(d) ODA must make the final determination of provider certification based upon a review of the application and the documentation presented by ODA's designee.

(e) ODA must notify the ODA designee in writing of the determination within forty-five business days of receipt of ODA's designee's recommendation.

(f) Within ten business days following receipt of ODA's written determination to the ODA designee about certification, ODA's designee must notify the applicant in writing about the status of certification. The notice provided to the applicant must comply with rule 173-39-06 of the Administrative Code.

(i) If certification is granted, ODA's designee must notify the applicant in writing and must send a two-party contract for the applicant's signature. The contract must specify:

(a)Billing requirements;

(b)The certified service(s) approved for payment;

(c)The rate(s) of payment for each certified service;

(d)The geographic area to be served;

(e)Termination notice requirements;

(f)Record retention requirements; and

(g)The time period covered by agreement.

(ii) If certification is denied, the applicant:

(a)May not reapply for certification for at least one year after the mailing date of ODA's designee's final determination of denial;

(b)May appeal the denial of certification in accordance with rules 173-39-07 and 173-39-08 of the Administrative Code.

(4) To maintain certification, each provider must:

(a) Maintain signed assurances contained in the ODA-specified application form;

(b) Meet the conditions of participation set forth in rule 173-39-02 of the Administrative Code;

(c) Meet the applicable requirements for long-term care services set forth in rules 173-39-02.1 to 173-39-02.20 of the Administrative Code; and,

(5) Providers currently certified as long-term care agency, non-agency and assisted living service providers may submit a request to ODA's designee at any time to provide additional services within the geographic region of the state in which the provider is currently certified and/or to expand the delivery of services into other geographic regions.

(a) An applicant must notify ODA's designee in the geographic region in which additional and/or expanded services are to be provided to request application materials and instructions.

(b) Within twenty business days after receipt of a signed and complete application, ODA's designee must schedule an on-site certification review to ascertain whether the applicant meets the conditions of participation set forth in rule 173-39-02 of the Administrative Code or schedule a desk review. On-site pre-certification reviews must be scheduled to occur within thirty business days of the phone call and must be completed within twenty business days of the actual review. Desk reviews must be completed within thirty business days of receipt of the complete application.

(c) Within thirty business days of the on-site or desk review, ODA's designee must inform the applicant in writing of any unmet requirements and specify that the applicant must demonstrate compliance with all requirements within thirty business days of the notification.

(d) If the applicant does not demonstrate compliance with all requirements within thirty business days following the mailing of the written notice to the applicant, ODA's designee must recommend to ODA within ten business days that certification expansion and/or service addition be denied.

(e) If the applicant demonstrates compliance with all requirements within thirty business days following the mailing of the written notice to the applicant, ODA's designee may recommend to ODA within ten business days that certification expansion or certified service addition be granted.

(f) Within sixty calendar days of receipt of the designee's recommendation, ODA must provide written notice of its determination to its designee. If certification expansion or certified service addition is denied, ODA or its designee must issue a denial letter to the applicant in compliance with rule 173-39-06 of the Administrative Code.

(6) A provider is ineligible to be certified, or may have its certification terminated immediately, if the provider:

(a) Has had its certification and/or provider agreements terminated by a state, federal or nationally recognized accrediting body.

(b) Has falsified its application for certification as a community-based long-term care provider

(B) Consumer-directed individual providers and consumer-directed personal care providers: This is the process for any provider who seeks to become an ODA-certified long-term care consumer-directed individual provider or consumer-directed personal care provider:

(1) Interview: If a consumer wishes to employ an applicant as his or her consumer-directed individual provider or consumer-directed personal care provider, the consumer shall interview the applicant, describe the certification process, and furnish the applicant with the application materials.

(2) Application materials: The applicant shall submit the following application materials to the consumer:

(a) The applicant's completed, signed application form that ODA prescribes;

(b) The applicant's completed W-9 form;

(c) The applicant's valid social security number and a copy of a current, valid, government-issued photographic identification card, including a:

(i) Driver's license;

(ii) State of Ohio identification card; or,

(iii) United States of America permanent residence card.

(d) A copy of the applicant's completed medicaid provider application form JFS06750;

(e) The applicant's medicaid waiver provider enrollment form; and,

(f) The applicant's completed, signed DMA form HLS0038.

(3) Consumer review:

(a) After the applicant has submitted the completed application materials to the consumer, the consumer may interview the applicant.

(b) If the consumer wishes to employ the applicant as his or her consumer-directed individual provider or consumer-directed personal care provider, the consumer shall require the applicant to undergo a criminal records check pursuant to rule 173-9-01 of the Administrative Code.

(c) After the consumer receives the criminal records report, the consumer, with the assistance of ODA's designee, shall review the criminal records report according to rule 173-9-01 of the Administrative Code. If the consumer determines that the applicant's criminal records do not disqualify the applicant, the consumer may recommend to ODA's designee to certify the applicant.

(4) Pre-certification review:

(a) Within ten business days after ODA's designee receives the applicant's completed application materials from the consumer, ODA's designee shall determine if the applicant demonstrates compliance with the requirements set for the in Chapter 173-39 of the Administrative Code.

(b) If ODA's designee confirms that the applicant demonstrates compliance, ODA's designee shall recommend that ODA certify the applicant.

(c) If ODA's designee confirms that the applicant does not demonstrate compliance, ODA's designee shall recommend that ODA not certify the applicant.

(5) Final determination:

(a) ODA shall make the final determination on an applicant's certification based upon a review of the application materials and the documentation presented by ODA's designee.

(b) In fewer than twenty days after ODA receives a recommendation from ODA's designee recommending that ODA certify an applicant, ODA shall make its determination and notify ODA's designee in writing.

(c) If ODA certifies the applicant, in fewer than ten business days after ODA notifies ODA's designee of the decision, ODA's designee shall notify the consumer and the applicant about the decision.

(d) After the consumer receives notification from ODA's designee about the decision, the consumer shall notify the applicant and complete the standard employment forms to hire the applicant as his or her consumer-directed individual provider or consumer-directed personal care provider.

(e) If ODA does not certify the applicant, ODA shall notify the applicant, consumer, and ODA's designee with a written notice that complies with rule 173-39-06 of the Administrative Code. The applicant shall not reapply for certification for at least one year after the mailing date of ODA's designee's final-determination notice. The provider may appeal the denial of certification according to rules 173-39-07 and 173-39-08 of the Administrative Code; but, ODA shall not certify an applicant if ODA previously terminated the applicant's certification; if a state, federal, or nationally-recognized accrediting body has terminated the applicant's certification; or, if the applicant falsified his or her application for provider certification.

(6) To maintain certification, the provider shall:

(a) Maintain signed assurances contained in the ODA-specified application form;

(b) Meet the conditions of participation under paragraph (D) of rule 173-39-02 of the Administrative Code, if the provider is a consumer-directed individual provider who furnishes a home-care attendant service; or meet the conditions of participation under paragraph (F) of rule 173-39-02 of the Administrative Code, if the provider is a consumer-directed personal care provider who furnishes a personal care service; and,

(c) Meet the requirements of rule 173-39-02.4 of the Administrative Code, if the provider is a consumer-directed individual provider who furnishes a home-care attendant service; or meet the requirements of rule 173-39-02.11 of the Administrative Code, if the provider is a consumer-directed personal care provider who furnishes a personal care service.

Effective: 03/17/2011
R.C. 119.032 review dates: 11/18/2010 and 03/17/2016
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391 , 5111.89
Rule Amplifies: 173.403 , 173.431 , 5111.89
Prior Effective Dates: 03/31/2006, 08/30/2010

173-39-04 Provider structural compliance review.

(A) Agency, non-agency, and assisted living providers: Each ODA-certified long-term care agency provider, ODA-certified non-agency provider, and ODA-certified assisted living provider is subject to a regular provider structural compliance review to ascertain if it complies with Chapter 173-39 of the Administrative Code. These are the regulations on that review:

(1) ODA's designees shall conduct the reviews. If a provider furnishes services in two or more geographic regions of the state, ODA's designee for each geographic region may monitor the provider. If a business site is located outside the geographic region of the state in which the provider's administrative offices are located, including those with business sites outside of Ohio, ODA (or ODA's designee) shall determine whether to perform a desk review or an on-site review.

(2) On-site provider structural compliance reviews:

(a) Must occur at least annually, from the first date of service delivery as a certified provider through the second year of service delivery;

(b) Must occur at least once every two years after the first two years of service, if the provider furnishes a pest-control service, emergency response services, chore services, home medical equipment services, minor home maintenance services, or transportation services;

(c) Must occur at least annually for those providers of services not listed in paragraph (A)(2)(b) of this rule;

(d) May be conducted on an as-needed basis to ascertain whether the provider meets the conditions of participation set forth in rule 173-39-02 of the Administrative Code, and the applicable service requirements listed in rules 173-39-02.1 to 173-39-02.20 of the Administrative Code;

(e) Must be announced by ODA's designee by placing a telephone call, or sending a written announcement, to the provider before the visit and on-site introductory conference with the provider, except as noted in paragraph (A)(10) of the rule;

(f) Must include an evaluation of compliance with each applicable condition of participation set forth in rule 173-39-02 of the Administrative Code, and each applicable service specification listed in rules 173-39-02.1 to 173-39-02.20 of the Administrative Code;

(g) Must include verification that a sample of paid service units were furnished according to the requirements set forth in rules 173-39-02 and 173-39-02.1 to 173-39- 02.20 of the Administrative Code, as appropriate; and,

(h) Must include an exit conference with the provider.

(3) The evaluation described in paragraph (A)(2)(f) of this rule must be based on a review of a ten per cent sample of the provider's current certified service delivery records for each service the provider furnished, with a minimum of three and a maximum of thirty records reviewed for each certified the provider furnished during the quarter preceding the date of the on-site structural compliance review. If problems are identified, ODA's designee may expand the sample or may require that an outside audit to be conducted at the provider's expense.

(4) The structural compliance review for certified providers that furnish both personal care and homemaker services must be a combined review and the total sample must equal the sample size required in paragraph (A)(3) of this rule.

(5) ODA's designee must notify ODA within one business day when the health and/or safety of one or more consumers is at imminent risk.

(a) If a provider is determined to be out of compliance in an area that poses a serious threat to the health and/or safety of one or more consumers, the provider must demonstrate compliance within five business days.

(b) If ODA's designee determines an imminent risk to the health and/or safety of one or more consumers, ODA may impose immediate sanctions as set forth in rule 173-39-05 of the Administrative Code.

(6) Within forty-five business days of the on-site review, ODA's designee must issue to the provider a written structural compliance review report, including a summary of areas of non-compliance.

(7) Within forty-five business days from the date the structural compliance review report is mailed by ODA's designee, the provider must submit evidence of compliance with the regulations that were determined to have been violated during the on-site structural compliance review.

(8) If a unit of service error is detected during a unit of service verification, the provider shall return the overpayment of funds to ODA (or ODA's designee). The repayment must be completed using acceptable state auditing procedures.

(9) ODA's designee may conduct a follow-up on-site review to evaluate the provider's compliance.

(10) ODA (or ODA's designee) may exercise the right to conduct an unannounced on-site review of a provider at any time to evaluate any consumer complaint or concern, and/or to determine whether the health and/or safety of one or more consumers is at imminent risk.

(11) A provider has the right to challenge structural compliance review findings by ODA's designee and to request a review by ODA.

(12) As specified in rule 173-39-02 of the Administrative Code, all certified long-term care providers are required to retain records to verify each episode of service delivery. Certified providers are required to provide such records and documentation to ODA, ODA's designee, the secretary of the United States department of health and human services, the auditor of state, and the Ohio department of job and family services upon request. Various methods of audit and review will be utilized in all cases of suspected waste and abuse. If waste and abuse are apparent, ODA shall take action to gain compliance and recoup inappropriate payments. The provider must retain all records as stipulated in this rule and rule 173-39-02 of the Administrative Code.

(a) The provider must retain all records as stipulated in this rule and rule 173-39-02 of the Administrative Code.

(b) Records, documentation, and information must be available regarding any services for which payment has been or will be claimed to determine that payment has been or will be made in accordance with applicable federal and state requirements. For purposes of this rule, an invoice constitutes a business transaction but does not constitute a record which is documentation of a medical service.

(c) All records, documentation, and/or information requested in accordance with paragraph (A)(2) of this rule shall be submitted to ODA (or ODA's designee), in an appropriate manner as determined by ODA. Records subject to audit and review must be produced at no cost to ODA (or ODA's designee).

(i) Records subject to audit and review must be made available for examination in the time period determined by ODA (or ODA's designee). Failure to supply the requested records, documentation, and/or information as indicated in this rule will result in no payment for outstanding services.

(ii) In all situations, ODA has the authority to conduct an on-site visit with the provider at the provider's location for the examination or collection of records, and/or for compliance verification. Upon such occasions, as deemed necessary by ODA (or ODA's designee), a member of the provider's staff is to be assigned to assist in collecting the information. Upon request from ODA, the provider shall photocopy or make the applicable records available for photocopying.

(iii) Services billed to and reimbursed by ODA, which are not validated in the consumer record, are subject to recoupment through the audit and review process described in this rule

(B) Consumer-directed individual providers and consumer-directed personal care providers: Each certified consumer-directed individual provider or consumer-directed personal care provider is subject to a regular provider structural compliance review to ascertain if it complies with Chapter 173-39 of the Administrative Code. These are the regulations on that review:

(1) Reviewer:

(a) ODA's designee shall conduct the review.

(b) If a provider furnishes a service in the geographic region of one of ODA's designees and also the geographic region of one or more of ODA's other designees, the designee of each geographic region may monitor the provider.

(2) Announcement: Although ODA's designee usually notifies the provider of an upcoming review and introductory conference by telephone or in writing, ODA or its designee may conduct an unannounced, unscheduled review or follow-up review at any time.

(3) Minimum frequency: ODA's designee shall conduct the review of each provider at least annually.

(4) Location: ODA's designee shall conduct the review at a location that is mutually agreeable to ODA's designee, the consumer, and the provider.

(5) Components: In each review, ODA's designee shall evaluate the provider's compliance with rule 173-39-02 of the Administrative Code; and rule 173-39-02.4 , if the provider furnishes a home care attendant service; or 173-39- 02.11 of the Administrative Code if the provider furnishes a personal care service. Each review includes verification of a sample of paid service units.

(6) Sample size:

(a) ODA's designee shall review records for each consumer served during the quarter preceding the review.

(b) If, during the course of a review, ODA's designee identifies problems, it may expand the time period the review covers.

(7) Exit conference and report:

(a) ODA's designee shall furnish the provider and the consumer with an exit conference immediately after it concludes the review.

(b) ODA's designee shall issue to the provider and the consumer a written review report no later than forty-five business days after it reviewed the provider.

(8) Follow-up review: ODA's designee may conduct a follow-up review.

(9) Sanctions: ODA or ODA's designee may impose sanctions pursuant to rule 173-39-05 of the Administrative Code:

(a) If ODA's designee determines that the provider doesn't comply in an area that does not place the health or safety of one or more consumers at imminent risk, the provider shall demonstrate compliance to ODA's designee in no more than forty-five days. If ODA's designee determines that the provider does not comply because of unit of service errors, by using acceptable state auditing procedures, the provider shall return overpaid funds to ODA or ODA's designee.

(b) ODA's designee shall notify ODA no more than one business day after it determines that the health or safety of one or more of a provider's consumers is at imminent risk. ODA may, in turn, impose immediate sanctions against the provider, in accordance with rule 173-39-05 of the Administrative Code.

(c) If the provider refuses to supply any records that ODA's designee requests to conduct its review, ODA's designee shall not pay the provider for any outstanding services.

(C) Definitions for this rule:

(1) "Audit" means a formal post-payment examination, made in accordance with generally accepted auditing standards, of a certified provider's records and documentation to determine program compliance, the extent and validity of services paid for and to identify any inappropriate payments. ODA must have the authority to use statistical methods to conduct audits and to determine the amount of overpayment. An audit may result in a final adjudication order by ODA.

(2) "Review" means an informal, prepayment or post-payment, limited scope investigation, special project and/or special analysis, examination, or monitoring of a certified provider's records, claims, and/or supporting documentation to determine quality of care, compliance with accepted standards of care, program compliance, and/or validity of services rendered, billed, or paid for. A review may result in an educational letter, the denial of invalid services or claims, a corrective action plan subject to ODA approval, and/or the collection of overpayments.

(3) "Notice of operational deficiency" means a formal written notice issued by ODA, pursuant to an audit and review, that identifies provider conduct, treatment or practices that are determined by ODA not to be in the best interests of the consumer or the long term care service program, and/or are noncompliant with the regulations governing the long term care service program, that must be corrected. The notice states the nature of the deficiency, the time period that the provider has to correct the deficiency and the person within ODA the provider is to contact to verify that the deficiency has been corrected.

Effective: 03/17/2011
R.C. 119.032 review dates: 11/18/2010 and 03/17/2016
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391 , 5111.89
Rule Amplifies: 173.403 , 173.431 , 5111.89
Prior Effective Dates: 03/31/2006, 08/30/2010

173-39-05 Disciplinary actions.

(A) Introduction: Pursuant to section 173.391 of the Revised Code, ODA (or ODA's designee) may take disciplinary action against a provider for good cause, including misfeasance, malfeasance, nonfeasance, confirmed abuse or neglect, financial irresponsibility, or any conduct ODA determines is injurious, or poses a threat, to the health, safety, or welfare of the consumers of the provider's services.

(B) Disciplinary actions: ODA (or ODA's designee) may take the following disciplinary actions against any provider who does not comply with Chapter 173-39 of the Administrative Code:

(1) Level-one disciplinary action:

(a) ODA (or ODA's designee) may impose a level-one disciplinary action against any provider who violates any requirement in Chapter 173-39 of the Administrative Code, unless the violation would warrant a level-two or a level-three disciplinary action under this rule.

(b) A level-one disciplinary action includes any one or more of the following four options:

(i) Warning: ODA (or ODA's designee) may issue a written warning.

(ii) Plan of correction or evidence of compliance: ODA (or ODA's designee) may require the provider to furnish ODA (or ODA's designee) with a plan or correction or evidence of compliance with the requirement in no more than seven calendar days after ODA (or ODA's designee) issues the level-one disciplinary action.

(iii) Ceasing referrals: ODA (or ODA's designee) may cease to refer consumers to the provider until ODA (or ODA's designee) determines that the provider complies with all requirements under Chapter 173-39 of the Administrative Code.

(2) Level-two disciplinary action:

(a) ODA may impose a level-two disciplinary action against any provider in the following situations:

(i) Unqualified: The provider ceases to meet the qualifications for a provider under Chapter 173-39 of the Administrative Code, or the provider fails to only employ staff members who meet the qualifications for to provide direct care under Chapter 173-39 of the Administrative Code, unless the provider's violation of a rule would warrant a level-three disciplinary action under this rule.

(ii) Criminal records check: The provider fails to meet the database review and criminal records check requirements under Chapter 173-9 of the Administrative Code, except as provided in paragraph (B)(3)(a)(iii) of the rule.

(iii) Records: The provider fails to retain all records required under rule 173-39-02 of the Administrative Code or fails to comply with the service-verification requirements under rules 173-39-02.1 to 173-39-02.21 of the Administrative Code, for any service the provider provides that is regulated by rules 173-39-02.1 to 173-39-02.21 of the Administrative Code.

(iv) Progressive violation: The provider fails to correct any violation for which ODA (or ODA's designee) issued a level-one disciplinary action, fails to provide ODA (or ODA's designee) with a plan or correction or evidence that it now complies with the requirement for which ODA (or ODA's designee) issued a level-one disciplinary action, or commits any second violation of any requirement in Chapter 173-39 of the Administrative Code.

(b) A level-two disciplinary action includes any one or more of the following four options:

(i) Plan of correction or evidence of compliance: ODA may require the provider to furnish ODA with a plan or correction or evidence of compliance with the requirement in no more than fifteen calendar days after ODA issues the level-two disciplinary action.

(ii) Fiscal disciplinary action: ODA may impose a fiscal disciplinary action such as a civil monetary penalty or an order that unearned funds be repaid.

(iii) Ceasing referrals and removing consumers: ODA may cease to refer consumers to the provider and may remove consumers from the provider until ODA determines that the provider complies the requirement for which ODA issued the level-two disciplinary action.

(3) Level-three disciplinary action:

(a) ODA may impose a level-three disciplinary action against any provider who commits any one or more of the following:

(i) Fraud:

(a) The provider is convicted, employs, or is associated with a principal who has been convicted of medicaid or medicare fraud.

(b) The provider falsifies its (or, "his or her") application for certification.

(c) The provider falsifies documentation in one or more consumer records.

(d) The provider falsifies documentation in one or more employee records (e.g., employee qualifications, records of supervisory visits, staff training) or provides employees with answers to the tests for employee qualification.

(ii) Denied access: The provider has denied or failed to provide ODA (or ODA's designee) with access to the provider's facilities during the provider's normal business hours for purposes of conducting an audit or structural compliance review.

(iii) Criminal records check: The provider fails to conduct criminal records checks according to rules 173-9-04 and 173-9-05 of the Administrative Code.

(iv) Health and safety: The provider endangers the health, safety, or welfare of a consumer. This includes situations such as abusing, neglecting, or exploiting consumers; a serious food-safety violation (e.g., a listeria contamination); or failing to have a back-up plan when it cannot provide a service.

(v) Continuing non-compliance: The provider engages in a pattern of recurring or continuing non-compliance with Chapter 173-39 of the Administrative Code.

(vi) Progressive violation: The provider fails to correct any violation for which ODA issued a level-two disciplinary action or fails to provide ODA with evidence that it now complies with the requirement for which ODA issued a level-two disciplinary action.

(b) A level-three disciplinary action involves revoking the provider's certification. A provider is prohibited from reapplying for certification after ODA revokes its certification.

(C) Appeals:

(1) No appeals: According to section 173.391 of the Revised Code, ODA is not required to give a provider an opportunity to appeal a disciplinary action under any of the following conditions:

(a) A government entity of this state, other than ODA, has terminated or refused to renew any of the following held by, or has denied any of the following sought by, a provider that ODA has certified: a provider agreement, license, certificate, permit, or certification. This applies regardless of whether the provider has entered into a provider agreement in, or holds a license, certificate, permit, or certification issued by, another state.

(b) The principal owner or manager of a provider has entered a guilty plea for, or has been convicted of, an offense materially related to the medicaid program.

(c) The principal owner or manager of a provider has entered a guilty plea for, been convicted of, or been found eligible for intervention in lieu of conviction for an offense listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code and rule 173-9-06 of the Administrative Code, unless the principal owner or manager is not disqualified based on the terms of rule 173-9-07 of the Administrative Code.

(d) The provider has denied or failed to provide ODA (or ODA's designee) with access to the provider's facilities during the provider's normal business hours for purposes of conducting an audit or structural compliance review.

(e) ODA (or ODA's designee) has ceased to refer consumers to the provider.

(f) ODA has removed consumers from the provider's care.

(2) Appeals: Except as otherwise provided in section 173.391 of the Revised Code, ODA is required to give a provider an opportunity to appeal a disciplinary action that is not subject to the conditions in paragraph (C)(1) of this rule or paragraph (A) of rule 173-39-05.1 of the Administrative Code.

Effective: 01/01/2013
R.C. 119.032 review dates: 09/29/2016
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 5111.89
Rule Amplifies: 173.391 , 173.403 , 173.431 , 5111.89
Prior Effective Dates: 03/31/2006, 08/30/2010, 06/30/2011, 09/29/2011

173-39-05.1 Non-disciplinary action resulting in certification revocation.

(A) ODA (or its designee) may take the non-disciplinary action of revoking a provider's certification in any of the following situations:

(1) The provider has voluntarily failed to enter into or renew a provider agreement with ODA's designee.

(2) The provider has accepted referrals from ODA's designee, but has not billed or otherwise submitted a claim for payment to ODA (or ODA's designee) under a medicaid-funded program during the last two years.

(3) The provider has ceased doing business.

(4) The provider has voluntarily relinquished its certification, for any reason.

(B) According to section 173.391 of the Revised Code, ODA is not required to give a provider an opportunity to appeal the non-disciplinary actions under paragraph (A) of this rule.

Effective: 01/01/2013
R.C. 119.032 review dates: 09/29/2016
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 5111.89
Rule Amplifies: 173.391 , 173.403 , 173.431 , 5111.89
Prior Effective Dates: 09/29/2011

173-39-06 Notice of denial of certification and proposed sanctions.

If ODA proposes to deny an individual or government entity certification as a community-based long-term care service provider or to sanction a certified provider pursuant to rule 173-39-05 of the Administrative Code, ODA shall send the provider written notice of the intended action via registered mail, return receipt requested.

(A) Except as otherwise required by section 173.391 of the Revised Code, the notice shall include:

(1) Notice of the specific sanction(s) ODA intends to take.

(2) A list of the charges or reasons for the proposed action(s).

(3) A citation to the statute(s) or rule(s) directly involved.

(4) A statement that the provider is entitled to a prior hearing if it is requested within thirty days from the date of mailing the notice.

(5) A statement that the provider may appear at the hearing in person or through an attorney.

(6) A statement that the provider may present positions entirely in writing, may examine evidence and adverse witnesses at the hearing, and may introduce evidence and bring forth witnesses on behalf of the provider.

(7) A statement that rules governing the provider's hearing before ODA may be found in Chapter 173-39 of the Administrative Code.

(B) ODA shall mail a copy of the notice to the provider's attorney or other representative of record. To qualify as an attorney or representative of record, the provider or the attorney or representative shall notify ODA, in writing, that the attorney or representative is to be designated the attorney or representative of record. The notification shall include the address where ODA should mail the notice to the attorney or representative of record. The mailing of notice to the provider's attorney or representative is not deemed to perfect service of the notice. Failure to mail a copy of the notice to the attorney or representative of record shall not result in failure of otherwise perfected service upon the provider. If a provider is a corporation doing business in Ohio or is incorporated in Ohio, the mailing of notice to the corporation's statutory agent pursuant to sections 1701.07 and 1703.19 of the Revised Code shall perfect service if ODA complies with all the requirements of paragraph (A) of this rule .

(C) If the notice required by paragraph (A) of this rule is returned because of inability to deliver, ODA may either have its employee or designee make personal delivery of the notice upon the party at any time or may cause the notice to be published once a week for three consecutive weeks in a newspaper of general circulation in the county where the last known place of residence or business of the provider is located. ODA shall mail, ordinary mail, proof of publication, and a copy of the first publication of the notice in a newspaper to the provider at the provider's last known place of residence or business. The notice is deemed received as of the date of last publication.

Effective: 09/29/2011
R.C. 119.032 review dates: 07/13/2011 and 09/29/2016
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 5111.89
Rule Amplifies: Chapter 119., 173.391 , 173.403 , 173.431 , 5111.89
Prior Effective Dates: 03/31/2006

173-39-07 Appeal of denial of certification and proposed disciplinary actions.

(A) Any request for a hearing made as the result of notice issued pursuant to rule 173-39-06 of the Administrative Code must be made in writing, must clearly identify both the provider involved and the proposed action that is being contested, and must be mailed or delivered to ODA within thirty calendar days of the mailing of the notice.

(1) If a request for a hearing is mailed to ODA, the request is deemed to have been made as follows:

(a) If the request is mailed by certified mail, the request is deemed to have been made as of the date stamped by the United States postal service on its receipt form.

(b) If the request is mailed by regular United States mail, the request is deemed to have been made as of the date of the postmark appearing upon the envelope containing the request.

(c) In those cases where a postmark is illegible or fails to appear on the envelope, the request is deemed to have been made as of the date of its receipt by ODA as evidenced by the agency's time stamp.

(2) If a request for a hearing is mailed or personally delivered to a party or address other than ODA, the request is deemed to have been made as of the date of its receipt by ODA as evidenced by ODA's time stamp.

(3) If a request for a hearing is personally delivered to ODA, the request is deemed to have been made as of the date of its receipt as evidenced by ODA's time stamp.

(4) If a request for a hearing is made by facsimile transmission or by electronic mail, the request is deemed to have been made as of the date of its receipt as evidenced by the receipt date generated by the facsimile transmission or as shown on the electronic mail received by ODA.

(B) If a provider that has been proposed for a disciplinary action fails to request a hearing, or if the request is not timely, ODA will issue a final and binding order of adjudication adopting and ratifying the allegations contained in the original notice.

Effective: 01/01/2013
R.C. 119.032 review dates: 10/17/2012 and 01/01/2018
Promulgated Under: 119.03
Statutory Authority: 173.02 , 173.391
Rule Amplifies: Chapter 119., 173.39 , 173.391 , 173.403 , 173.431 , 5111.89
Prior Effective Dates: 03/31/2006

173-39-08 Appeal hearings and adjudication orders.

(A) Hearing proceedings: ODA shall conduct all appeal hearings resulting from a proposal to deny certification as a community-based long-term care provider or to sanction a provider in accordance with Chapter 119. of the Revised Code.

(1) ODA shall employ a hearing examiner to conduct all hearings initiated under rule 173-39-07 of the Administrative Code.

(2) ODA schedules the date, time, and place of any hearing . ODA shall provide written or electronic notice of the hearing's date, time, and place before the date of the hearing to all participants in the hearing and file a copy of the written notice in the record of the hearing.

(3) Subject to the prior approval of the hearing examiner, any appellant may choose to present the case entirely in writing provided that the appellant makes a written request no later than fourteen business days before the date ODA scheduled the hearing. The appellant shall file any request to present the case entirely in writing with the hearing examiner. Any appellant who elects to present the case entirely in writing shall do so in accordance with any procedures the hearing examiner ordered . The hearing examiner's order shall be in writing and filed in the record of the hearing. If the appellant elects to present its case in writing, ODA may elect to present its case entirely in writing. Nothing in this rule is to be construed as preventing ODA from compelling the attendance of the appellant or other witnesses at the hearing and questioning the appellant or other witnesses as if on cross-examination. Nothing in this rule is to be construed as preventing any appellant from examining any witnesses or evidence that ODA presents at the hearing.

(4) During the course of any hearing, the participants to the proceeding may enter into oral stipulations of fact, procedure, or the authenticity of documents which the hearing examiner shall incorporate into the record and shall bind the conduct of the participants. The hearing examiner conducting the case may require any participant to reduce his or her oral stipulations a written document that the participant shall submit to the hearing examiner. The hearing examiner has the power to rule on the admissibility of evidence or testimony, but a participant may make objections to the rulings thereon. If the hearing examiner refuses to admit evidence or testimony, the participant seeking admission of same shall make a proffer thereof and the hearing examiner shall make such proffer a part of the record of the hearing. The hearing examiner may refer to the guidelines contained in the "Ohio Rules of Evidence" in making decisions on admissibility.

(B) Hearing examiner's report:

(1) Upon the conclusion of any hearing, the hearing examiner shall prepare a written report of findings of fact, conclusions of law, and recommendations of actions for ODA to take in disposition of the hearing. ODA shall send a copy of the hearing examiner's report and recommendations by certified mail, return receipt requested, to the appellant or the appellant's attorney within five days of receiving the report and recommendations. The report shall be considered to have been mailed as of the date appearing on United States postal service form 3800.

(2) An appellant may file written objections to the hearing examiner's report. Any such objections shall be received by ODA no later than ten days after the appellant receives the report. ODA may grant an extension of time to file objections if ODA receives the appellant's written request for an extension no later than ten days after the appellant's receipt of the report. The date the appellant receives the hearing examiner's report is the date indicated on the United States postal service form 3800. ODA's director shall consider timely written objections before approving, modifying, or disapproving the hearing officer's recommendations .

(C) ODA's director's action:

(1) ODA's director may approve, modify, or disapprove the hearing examiner's recommendations. ODA's director may order the hearing examiner to take additional testimony and permit the introduction of further documentary evidence. If ODA's director modifies or disapproves the hearing examiner's recommendations , ODA's director shall include the reasons therefore and incorporate said reasons into the final order of adjudication.

(2) After ODA's director has entered an order approving, modifying, or disapproving the hearing examiner's recommendation on ODA's journal of proceedings, ODA's director shall mail to the appellant and any attorney of record by certified mail, return receipt requested, a copy of the order, and a statement of the time and method by which an appeal may be perfected.

(D) Court of common pleas:

(1) Any appellant other than a licensee against whom a final order of adjudication is entered, pursuant to this rule, may appeal that order to the Franklin County court of common pleas. Any licensee against whom a final order of adjudication is entered, pursuant to the this rule, may appeal that order to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident.

(2) Any party desiring an appeal pursuant to this rule shall file an original notice of appeal with ODA setting forth the order appealed from and the grounds of the party's appeal. In order to be determined filed with ODA, the notice of appeal must be received by ODA, as evidenced by an ODA date-and-time stamp, no later than fifteen days after the mailing to the affected party, as evidenced by United States postal service form 3800, of the order to be appealed from. The appellant shall also file a copy of the notice of appeal with the court of common pleas no later that fifteen days after the mailing to the affected party, as evidenced by United States postal service form 3800, of the order to be appealed from.

Effective: 09/29/2011
R.C. 119.032 review dates: 07/13/2011 and 09/29/2016
Promulgated Under: 119.03
Statutory Authority: 173.01 , 173.02 , 173.391 , 5111.89
Rule Amplifies: Chapter 119., 173.391 , 173.403 , 173.431 , 5111.89
Prior Effective Dates: 03/31/2006