Chapter 173-40 Non-Medicaid-Waiver Funded PASSPORT Program

(A) The purpose of rules under this chapter of the Administrative Code is to establish eligibility criteria and disenrollment procedures for individuals presently enrolled in the nonwaiver-funded PASSPORT program (aka, the “state-funded PASSPORT program” or the “PASSPORT grandparented eligibility home care program”), to establish criteria for assistance to individuals who have reached loss-of-medicaid-eligibility status, and to establish the criteria for receivership of a PAA.

(B) As used in Chapter 173-40 of the Administrative Code:

(1) “CDJFS” means “county department of job and family services.”

(2) “Grandparented consumer” means an individual who is enrolled in the nonwaiver-funded PASSPORT program currently known as the “PASSPORT grandparented home care program” and formerly known as the “PASSPORT state home care program” who was transferred to PASSPORT grandparented home care, pursuant to rule 173-40-03 of the Administrative Code, as a result of a denial of the enrollee’s eligibility for either the PASSPORT HCBS program or the Ohio home care waiver program.

(3) “Loss-of-medicaid-eligibility status” means the status given to an applicant who is denied enrollment into the PASSPORT HCBS program or an individual who is disenrolled from the PASSPORT HCBS program because the individual no longer meets the medicaid financial eligibility requirements for the PASSPORT HCBS program.

(4) “ODA” means “the Ohio department of aging.”

(5) “ODJFS” means “the Ohio department of job and family services.”

(6) “Ohio home care waiver” means the particular medicaid home and community-based services medicaid waiver program which is separate from the PASSPORT home care program, and which provides home and community based services to individuals under the age of sixty who have disabilities and who would require the level of care provided by a nursing facility if the waiver program were not available. Eligibility criteria, enrollment procedures, services to be provided, and service provider qualifications are described in Chapter 5101:3-12 of the Administrative Code.

(7) “PASSPORT administrative agency” (“PAA”) means a public or non-profit entity that has entered into a contract with ODA to provide administrative services on behalf of ODA within a particular PSA for medicaid waiver programs under the authority of ODA, the nonwaiver-funded PASSPORT program, and the RSS program.

(8) “PASSPORT home and community-based services program” (“PASSPORT HCBS”) means the particular medicaid HCBS waiver program which provides home and community-based services as part of the PASSPORT home care program to individuals aged sixty and over who, due to having disabilities and being elderly, would require the level of care provided in a nursing facility if the waiver program were not available. Eligibility criteria and services available for the PASSPORT HCBS program are described in Chapter 5101:3-31 of the Administrative Code. Enrollment procedures for the PASSPORT HCBS program are described in rule 173-42-01 of the Administrative Code. Provider certification and service specification rules for the PASSPORT HCBS program are found in Chapter 173-39 of the Administrative Code.

(9) “Plan of care” means written documentation of the specific tasks and activities to be carried out by a service provider, including, but not limited to enrollee-specific goals and objectives, detailed description of the interventions, frequency, and time frames for ongoing services.

(10) “Planning and service area” (“PSA”) means a geographical region of Ohio, the boundaries of which have been determined by ODA in accordance with Section 305 of the “Older Americans Act of 1965,” 79 Stat. 219, 42 U.S.C. 3001, as amended, and as presented in rule 173-1-03 of the Administrative Code.

(11) “Representative” means an adult eighteen years of age or older who is familiar enough with an enrollee’s circumstances to act on behalf of the enrollee, including signing the plan of care and/or assisting with a medicaid application. The representative may be, but shall not be limited to, a parent of a minor child, a spouse, a relative, a personal friend, or a representative from a public or private agency who has been authorized by the enrollee or his legal guardian to act as the enrollee’s representative.

Replaces: 173-40-01, 173-40-02

Effective: 01/01/2008

R.C. 119.032 review dates: 10/15/2011

Promulgated Under: 111.15

Statutory Authority: 173.02, uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Rule Amplifies: Uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Prior Effective Dates: Eff. 6/11/91 (Emer.), 9/13/91, 11/9/98, 4/17/03

Only an individual who meets all the following criteria is eligible for the PASSPORT grandparented home care program:

(A) The individual is enrolled in the nonwaiver-funded PASSPORT home care program formerly known as the “PASSPORT state home care program” at the time the program was renamed the “PASSPORT grandparented home care program;”

(B) Prior to initial enrollment in the PASSPORT grandparented home care program, and at least once every twelve months of enrollment thereafter, the individual has applied for and was denied eligibility for either the PASSPORT HCBS program or the Ohio home care waiver described in Chapter 5101:3-12 of the Administrative Code, and also one of the following:

(1) If the individual is at least sixty years of age, the individual has fully complied with the application and enrollment procedures for the PASSPORT HCBS program and was determined to be ineligible for the PASSPORT HCBS program. The PAA shall disenroll any such individual from the PASSPORT grandparented home care program who is found to be eligible for enrollment in the PASSPORT HCBS program. An individual’s failure or refusal to cooperate in providing either the PAA or a CDJFS with the information and documentation necessary to establish the individual’s eligibility for the PASSPORT HCBS program constitutes a failure to meet this eligibility criterion; or,

(2) If the individual is no older than fifty-nine years of age, the individual has fully complied with the application and enrollment procedures for Ohio home care waiver services and was determined to be ineligible for the Ohio home care waiver program. The PAA shall disenroll any individual from the PASSPORT grandparented home care program who is found to be eligible for the Ohio home care waiver program. An individual’s failure or refusal to cooperate in providing ODJFS or a CDJFS with the information and the documentation necessary to establish the individual’s eligibility for the Ohio home care waiver constitutes a failure to meet this eligibility criterion.

(C) The PAA and a physician have determined that the individual needs an intermediate level of care, as defined in rule 5101:3-3-06 of the Administrative Code, or a skilled level of care, as defined in rule 5101:3-3-05 of the Administrative Code;

(D) The individual is financially eligible for the PASSPORT grandparented home care program based upon a documented inability of the individual to pay for nursing facility care without assistance from the medicaid program. The PAA shall only consider the individual’s income and assets when determining the individual’s financial eligibility for the PASSPORT grandparented home care program. Countable income and assets are determined pursuant to Chapter 5101:1-39 of the Administrative Code and the medicaid eligibility manual. The PAA shall calculate the inability to pay for nursing facility care in accordance with one of the following:

(1) If the most recent period of continuous enrolment in the PASSPORT grandparented home care program for the individual began prior to April 1, 1988, the individual shall document that the individual lacks eleven thousand, seven hundred, and nine dollars in income and assets available within a ninety-day period to pay for nursing facility care without assistance from the medicaid program; or,

(2) If the most recent period of continuous enrollment in the PASSPORT grandparented home care program for the individual began on or after April 1, 1988, the individual shall document that the individual lacks five thousand, eight hundred, fifty-four dollars, and fifty cents in income and assets available within a forty-five day period to pay for nursing facility care without assistance from the medicaid program.

(E) The individual has an approved plan of care developed by the PAA that serves the county of the individual’s residence, that is signed by the individual’s physician, and that is approved by the PAA;

(F) The individual’s approved plan of care indicates that the total projected cost of services counted in the care plan cost cap calculation is less than six thousand dollars for a six-month period;

(G) The individual agrees to receive PASSPORT-funded services only from approved PASSPORT providers, and agrees to cooperate with the PAA in establishing and re-establishing eligibility for the PASSPORT HCBS program, the Ohio home care program; and/or the PASSPORT grandparented home care program, when requested by the PAA; and,

(H) The participation of the individual in the PASSPORT grandparented home care program, as an alternative to nursing facility placement, does not present, in the professional judgment of the PAA, a threat to the health and safety of the individual.

Replaces: 173-40-03

Effective: 01/01/2008

R.C. 119.032 review dates: 10/15/2011

Promulgated Under: 111.15

Statutory Authority: 173.02, uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Rule Amplifies: Uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Prior Effective Dates: Eff. 6/11/91 (Emer.). 9/13/91, 11/9/98, 4/17/03

(A) Whenever the PAA conducts a re-assessment of the condition and service needs of a consumer enrolled in the PASSPORT grandparente home care program, the PAA staff shall verify whether the consumer continues to meet all eligibility criteria specified in rule 173-40-02 of the Administrative Code.

(B) The PAA shall re-assess consumers enrolled in the PASSPORT grandparented eligibility home care program to assess the consumer’s condition and service needs at least once every twelve months or at any time the consumer’s condition or service needs change substantially.

(C) At least once every six months the PAA staff shall develop and implement a revised plan of care for every PASSPORT grandparented home care consumer who continues to meet all eligibility criteria.

(D) The PAA shall provide any grandparented consumer who fails to meet all the eligibility criteria in rule 173-40-02 of the Administrative Code with a written notice of intent to disenroll the consumer from the PASSPORT grandparented home care program.

(E) Disenrollment from PASSPORT grandparented home care program

(1) The PAA may propose that any consumer in the PASSPORT grandparented home care program be disenrolled based upon any of the following:

(a) The consumer’s failure to meet the eligibility criteria set forth by rule 173-40-02 of the Administrative Code;

(b) The consumer’s permanent relocation; or,

(c) The consumer’s death.

(2) When a grandparented consumer’s services are suspended for any reason for sixty calendar days, the PAA shall provide the consumer (or the consumer’s authorized representative, if any), with notice of disenrollment from the PASSPORT grandparented home care program.

(3) Suspensions which ultimately result in disenrollment shall have a disenrollment date that is retroactive to the first day of the suspension of services.

(F) Any consumer enrolled in the grandparented home care program may appeal a reduction in, suspension of, or disenrollment from the services received as an enrollee as follows:

(1) The PAA shall explain any proposed reduction, suspension, or disenrollment action to the consumer directly affected (or to the consumer’s authorized representative, if any). The PAA shall provide the explanation in writing and, when feasible, orally as well, at least fifteen calendar days prior to the effective date of the proposed action. The PAA shall include in the written explanation an outline of the appeals process provided under this rule.

(2) Any consumer (or authorized representative of an enrollee) who wishes to appeal a proposed PAA reduction in, suspension of, or disenrollment from the PASSPORT grandparented home care services received by the consumer shall provide the PAA with written notice of his intent to appeal no less than fifteen calendar days after the mailing date appearing on the PAA notice of the proposed action.

(3) Whenever a written notice of intent to appeal has been properly received, the PAA shall continue the consumer’s current plan of care pending the outcome of the appeal process.

(4) No more than five working days of after the date upon which the PAA receives a timely written notice of appeal, the PAA shall schedule an informal fact-finding meeting with the consumer (and/or the consumer’s authorized representative). The PAA shall notify the consumer (and/or the consumer’s authorized representative, if any) of the date, time, and place of the meeting. The PAA shall conduct the fact-finding meeting no more than ten working days after the date on which the PAA received the written notice of the intent to appeal.

(5) The PASSPORT site director or the site director’s designee shall chair the informal fact-finding meeting and shall attempt to reach agreement between the consumer (and/or the consumer’s authorized representative, if any), and any PAA staff relevant to the consumer’s situation. The PASSPORT site director shall issue a written summary of the meeting to the consumer and/or the consumer’s authorized representative, within five working days from the date of the meeting.

(6) Should the consumer (or the consumer’s authorized representative) wish to continue the appeal of the proposed action, he shall notify the director of ODA in writing no more than fifteen working days after the mailing date on the PASSPORT site director’s written summary.

(7) No more than five working days of after receiving a notice of intent to continue the appeal process, ODA shall schedule a formal appeal hearing and shall notify the PAA and the consumer (and/or the consumer’s authorized representative, if any) of the date, time, and place of the appeal hearing. ODA shall hold the appeal hearing no more than ten working days after the date that ODA received the request to continue the appeal, unless otherwise agreed to by the parties involved.

(8) Upon notice of appeal to ODA, the PAA shall immediately forward a copy of the written summary of the informal fact-finding meeting and any supporting documentation to ODA.

(9) An independent hearing officer who has been retained by ODA at ODA’s expense shall conduct the ODA appeal hearing. Whenever possible, the hearing officer shall conduct the hearing in the consumer’s home.

(a) Any advocate or legal representative of the consumer’s choosing may accompany the consumer (or the consumer’s representative, if the consumer has a representative). Any relevant PAA staff may represent the PAA.

(b) The independent hearing officer shall incorporate the following elements when conducting the appeal hearing:

(i) The hearing officer shall record the proceedings and any participant may record the proceedings;

(ii) When convening the hearing, the hearing officer shall announce his name, his title, the date, the time, the location of the hearing, the appellant’s name, the PAA affected and present at the hearing, and the stated action being appealed;

(iii) The hearing officer shall outline the process through which the consumer (or the consumer’s authorized representative), the PAA, and any other relevant participant may introduce verbal and/or written evidence;

(iv) The hearing officer may adjourn the appeal hearing at any time the participants become too disruptive to conduct a fair hearing, or at any time after all parties have been heard and the hearing officer determines that sufficient evidence exists to render a fair and appropriate recommendation.

(10) The independent hearing officer shall issue a written recommendation to the director of ODA. The recommendation shall either uphold the PAA action being appealed or shall recommend that the action be amended. The director of ODA shall issue a final decision on the matter no more than thirty days after the date upon which the hearing was held and shall inform the complainant and the PAA of the director’s decision by certified mail. The director’s decision shall be binding upon the PAA. Whenever the decision is to resume, increase, or reduce PASSPORT home care services, the PAA shall implement the decision upon receipt of the director’s decision.

(G) Should a consumer (or the consumer’s authorized representative) wish to contest the decision of the director of ODA, the consumer (or the consumer’s authorized representative) may pursue the complaint in a court of common pleas.

Effective: 01/01/2008

R.C. 119.032 review dates: 10/16/2007 and 10/15/2011

Promulgated Under: 111.15

Statutory Authority: 173.02, uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Rule Amplifies: Uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Prior Effective Dates: Eff. 6/11/91 (Emer.), 9/13/91, 11/9/98, 4/17/03

(A) Beginning on July 1, 1990, any applicant for the PASSPORT HCBS program who was not enrolled in a PASSPORT home care program at the time the applicant applied for the PASSPORT HCBS program, and who is presumed by the PAA to be eligible for PASSPORT HCBS program, but who is subsequently denied enrollment in or disenrolled from the PASSPORT HCBS program, shall be transferred to loss-of-medicaid-eligibility status only when, in the judgment of the PAA, such a transfer is temporarily necessary to protect the health and safety of the consumer until alternative services can be arranged. No person on loss-of-medicaid-eligibility status may continue to receive PASSPORT home care services for more than sixty days unless the person has appealed the action resulting in the denial or loss of medicaid eligibility status, in which case, the PAA shall do the following:

(1) Assist the consumer in order to responsibly transfer the consumer to traditional community-based long-term care services; or, assist the consumer in nursing home placement; and,

(2) Notify the consumer of the last date that PASSPORT home care services will be provided.

(B) Any consumer on loss-of-medicaid-eligibility status shall receive services according to an approved plan of care.

(C) Consumers denied or losing their PASSPORT HCBS program eligibility may appeal that action in accordance with Chapter 5101:3-31 of the Administrative Code. Loss-of-medicaid-eligibility status is a nonwaiver-funded (i.e., “state-funded”) PASSPORT home care program component available to temporarily protect the consumer, the PAA, and PASSPORT providers from medicaid financial eligibility outcomes that may either produce dangerous absences of consumer care or the denial of provider reimbursement when services have been provided in good faith. Because appeal rights are provided for all consumers denied enrollment in or disenrolled from the PASSPORT HCBS program eligibility, no right of appeal for termination of services shall be provided to consumers on loss-of-medicaid-eligibility status.

Effective: 01/01/2008

R.C. 119.032 review dates: 10/16/2007 and 10/15/2011

Promulgated Under: 111.15

Statutory Authority: 173.02, uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Rule Amplifies: Uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Prior Effective Dates: Eff 6-11-91 (Emer.); 9-13-31; 11-9-98; 4-17-03

(A) ODA shall monitor the PAA’s compliance with the terms and conditions of the three-party agreement between ODJFS, ODA, and the PAA, and the two-party agreement between ODA and the PAA.

(B) Should ODA determine that a designated PAA has committed a substantial violation of the terms and conditions of either the three-party agreement between ODJFS, ODA, and the PAA, or the two-party agreement between ODA and the PAA, ODA shall request that a judge of a court of common pleas, or a judge of a probate court with appropriate jurisdiction, place the PAA’s performance of that agreement into either the partial or full receivership of ODA or a receiver designated by ODA. (The request for receivership shall apply only to the functions of the entity as a PAA.)

(C) The court shall define partial or full receivership. The court may define full receivership as substituting the authority of ODA, or a receiver designated by ODA, for the authority of the governing board of the PAA insofar as that authority relates to PASSPORT administration only.

Effective: 01/01/2008

R.C. 119.032 review dates: 10/16/2007 and 10/15/2011

Promulgated Under: 111.15

Statutory Authority: 173.02, uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Rule Amplifies: Uncodified section 213.20 of Am. Sub. H. B. No. 119 (127th G. A.)

Prior Effective Dates: Eff 11-9-98; 4-17-03