Chapter 3701-61 Nursing Home Residents' Rights on Transfer or Discharge; Employee Background Checks

3701-61-01 Definitions.

As used in this chapter of the Ohio Administrative Code:

(A) "Department" means the Ohio department of health.

(B) "Director" means the director of the Ohio department of health.

(C) "Distinct part" means the portion of the home that is authorized by division (B)(1)(a) of section 5111.31 of the Revised Code.

(D) "Dually certified part" means that portion of the facility that is certified for both medicare and medicaid.

(E) "Home," "resident," "medicare," "medicaid," "facility" and "sponsor" have the same meanings as defined in section 3721.10 of the Revised Code.

(F) "Resident transfer" means any of the following:

(1) The movement of a resident from the home where the resident currently resides to another health care facility;

(2) The movement of a resident from a dually certified portion of the facility to a distinct part of the facility; or

(3) The movement of a resident from a distinct part of the facility to a part of the facility that is not certified for participation in medicaid or medicare.

(G) "Room change" means any of the following:

(1) The movement of a resident within the dually certified part of the facility;

(2) The movement of a resident within the medicaid only certified part of a facility; or

(3) The movement of a resident from the medicaid only certified part of the facility to the dually certified part of the facility.

Replaces: 3701-61-01

Effective: 08/05/2012
R.C. 119.032 review dates: 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 3721.11
Rule Amplifies: 3721.16
Prior Effective Dates: 10/12/1979, 10/14/99, 3/20/05

3701-61-02 Right to challenge transfer or discharge.

(A) A home may transfer or discharge a resident, in the absence of a request from the resident, only for the following reasons:

(1) The resident's health has improved sufficiently so that the resident no longer needs the services provided by the home;

(2) The welfare and needs of the resident cannot be met in the home;

(3) The resident has failed, after receiving reasonable and appropriate notice, to pay or to have the medicare or medicaid program pay on the resident's behalf, for the care provided by the home. A resident shall not be considered to have failed to have the resident's care paid for if the resident has applied for medicaid, unless both of the following are the case:

(a) The resident's application, or a substantially similar previous application, has been denied by the county department of job and family services;

(b) If the resident appealed the denial pursuant to division (C) of section 5101.35 of the Revised Code, the director of job and family services has upheld the denial;

(4) The home's license has been revoked under Chapter 3721. of the Revised Code;

(5) The home is being closed pursuant to section 3721.08 , sections 5111.35 to 5111.62 or section 5155.31 of the Revised Code, or the home otherwise ceases to operate;

(6) The resident is a recipient of medicaid and the home's participation in the medicaid program is involuntarily terminated or denied;

(7) The resident is a beneficiary under the medicare program and the home's participation in the medicare program is involuntarily terminated or denied;

(8) The safety of individuals in the home is endangered;

(9) The health of individuals in the home would otherwise be endangered.

(B) Pursuant to division (D) of section 3721.16 of the Revised Code, and paragraph (E) of rule 3701-61-03 of the Administrative Code a resident or resident's sponsor may challenge a transfer or discharge by requesting an impartial hearing unless the transfer or discharge is required because of one of the reasons specified in paragraphs (A)(4) to (A)(7) of this rule.

Effective: 08/05/2012
R.C. 119.032 review dates: 05/21/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 3721.11
Rule Amplifies: 3721.13 , 3721.16
Prior Effective Dates: 10/12/1979, 10/14/99, 3/20/05

3701-61-03 Notice and hearing request requirements.

(A) The administrator of the home shall notify a resident in writing, and the resident's sponsor or legal representative in writing by certified mail, return receipt requested, in advance of any proposed transfer or discharge from the home. The administrator shall send a copy of the notice to the department. The notice shall be provided to the resident, and the resident's sponsor or legal representative, at least thirty days in advance of the proposed transfer or discharge, unless any of the following apply:

(1) The resident's health has improved sufficiently to allow a more immediate discharge or transfer to a less skilled level of care;

(2) The resident has resided in the home less than thirty days.

(3) An emergency arises in which the safety of individuals in the home is endangered;

(4) An emergency arises in which the health of individuals in the home would otherwise be endangered;

(5) An emergency arises in which the resident's urgent medical needs necessitate a more immediate transfer or discharge.

In any of the circumstances described in paragraphs (A)(1) to (A)(5) of this rule, the notice shall be provided as many days in advance of the of the proposed transfer or discharge as is practicable. The administrator shall obtain written acknowledgement of receipt of the notice from the resident unless the resident is unable to acknowledge receipt.

(B) The notice required under paragraph (A) of this rule shall include all of the following:

(1) The reasons for the proposed transfer or discharge;

(2) The proposed date the resident is to be transferred or discharged;

(3) Subject to paragraph (C) of this rule, a proposed location to which the resident may relocate and a notice that the resident and resident's sponsor may choose another location to which the resident will relocate;

(4) Notice of the following information pursuant to this rule and section 3721.161 of the Revised Code:

(a) The right of the resident, and the resident's sponsor or legal representative to an impartial hearing at the home on the proposed transfer or discharge;

(b) The manner in which and the resident or the resident's sponsor may request a hearing pursuant to this rule;

(c) The time within which the resident or the resident's sponsor may request a hearing as provided in paragraph (E) of this rule; and

(d) The time within which the resident or the resident's sponsor may request a hearing as provided in paragraph (F) of this rule. This information shall be placed in bold type within the notice.

(5) A statement that the resident will not be transferred or discharged before the date specified in the notice unless the home and the resident or, if the resident is not competent to make a decision, the home and the resident's sponsor, agree to an earlier date;

(6) The address and telephone number of the legal services office of the department;

(7) The name, address, and telephone number of the state designated regional long-term care ombudsperson program serving the area in which the home is located and, if the resident has a developmental disability or mental illness, the name, address, and telephone number of the Ohio legal rights service.

(C) The proposed location to which a resident may relocate as specified pursuant to paragraph (B)(3) of this rule in the proposed transfer or discharge notice shall be capable of meeting the resident's healthcare and safety needs. The proposed location for relocation need not have accepted the resident at the time the notice is issued to the resident or resident's sponsor.

(D) No home shall transfer or discharge a resident before the date specified in the notice required by this rule unless the home and the resident or, if the resident is not competent to make a decision, the home and the resident's sponsor, agree to an earlier date.

(E) Pursuant to division (A) of section 3721.161 of the Revised Code the resident or resident's sponsor may challenge a proposed transfer or discharge by submitting a written request for a hearing to the department not later than thirty days after the resident or resident's sponsor receive notice of the proposed transfer or discharge, whichever is later. On receiving the request the department shall conduct a hearing in accordance with section 3721.162 of the Revised Code and paragraphs (A) to (E) of rule 3701-61-04 of the Administrative Code to determine whether the proposed transfer or discharge complies with division (A)(30) of section 3721.13 of the Revised Code and paragraphs (A)(1) to (A)(7) of rule 3701-61-02 of the Administrative Code.

(F) Except in the circumstances described in paragraphs (A)(1) to (A)(5) of this rule, if a resident or resident's sponsor submits a written hearing request not later than ten days after the resident or resident's sponsor received notice of the proposed transfer or discharge, whichever is later, the home shall not transfer or discharge the resident unless the department determines after the hearing that the transfer or discharge complies with division (A)(30) of section 3721.13 of the Revised Code and paragraphs (A)(1) to (A)(7) of rule 3701-61-02 of the Administrative Code or the department's determination to the contrary is reversed on appeal.

(G) If a resident or resident's sponsor does not request a hearing pursuant to paragraph (E) of this rule the home may transfer or discharge the resident on the date specified in the notice required by paragraph (A) of this rule or thereafter, unless the home and the resident or, if the resident is not competent to make a decision, the home and the resident's sponsor, agree to an earlier date.

(H) If a resident or resident's sponsor requests a hearing pursuant to paragraph (E)of this rule and the home transfers or discharges the resident before the department issues a hearing decision, the home shall readmit the resident in the first available bed if the department determines after the hearing that the transfer does not comply with division (A)(30) of section 3721.13 of the Revised Code or the department's determination to the contrary is reversed on appeal.

(I) Transfer or discharge actions shall be documented in the resident's medical record if there is a medical basis for the action.

Effective: 01/15/2012
R.C. 119.032 review dates: 10/20/2011 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 3721.11
Rule Amplifies: 3721.13 , 3721.16 , 3721.161
Prior Effective Dates: 10/12/1979, 10/14/99, 3/20/05

3701-61-04 Written decision, impartial hearing and appeal.

(A) Upon receiving a request pursuant to section 3721.161 of the Revised Code and paragraph (E) of rule 3701-61-03 of the Administrative Code, the department of health shall conduct hearings under this rule in accordance with 42 C.F.R. 431, subpart E (October 25, 2002), to determine whether the proposed transfer or discharge complies with division (A)(30) of section 3721.13 of the Revised Code and paragraphs (A)(1) to (A)(7) of rule 3701-61-02 of the Administrative Code.

(B) The department shall employ or contract with an attorney to serve as a hearing officer. The hearing officer shall conduct a hearing in the home. The date and time of the hearing shall be determined by the hearing officer, but shall be no later than ten days after the date the department receives a request pursuant to section 3721.161 of the Revised Code and paragraph (E) of rule 3701-61-03 of the Administrative Code, unless the home and the resident or, if the resident is not competent to make a decision, the home and the resident's sponsor, agree otherwise. The hearing shall be recorded on audiotape, but neither the recording nor a transcript of the recording shall be part of the official record of the hearing. A hearing conducted under this rule is not subject to section 121.22 of the Revised Code.

(C) Notice of the date, time, and place of the hearing shall be sent by certified mail to the administrator, resident, and any sponsor. This notice shall also inform the administrator, resident, and any sponsor that they have a right to appear at the hearing in person or by their attorneys or other representatives. No scheduled hearings may be postponed except by agreement of both parties.

(D) The administrator shall have the opportunity to present to the hearing officer any oral testimony or written materials to show by a preponderance of the evidence just cause why the proposed transfer or discharge complies with division (A)(30) of section 3721.13 of the Revised Code and paragraphs (A)(1) to (A)(7) of rule 3701-61-02 of the Administrative Code. The resident and any sponsor shall also have an opportunity to present to the hearing officer any oral testimony or written material to show just cause why the transfer or discharge does not comply with division (A)(30) of section 3721.13 of the Revised Code and paragraphs (A)(1) to (A)(7) of rule 3701-61-02 of the Administrative Code. The hearing officer, administrator, resident, any sponsor and any representatives of the foregoing may ask questions of any person participating in the hearing. The hearing shall be informal in nature but all parties shall respect directives of the hearing officer for the orderly conduct of the hearing. The evidence shall be presented under oath.

(E) Unless the parties otherwise agree, the hearing officer shall issue a decision within five days of the date the hearing concludes. In all cases, a decision shall be issued not later than thirty days after the department receives a request pursuant to section 3721.161 of the Revised Code and paragraph (E) of rule 3701-61-03 of the Administrative Code.

(F) A resident, resident's sponsor or home may appeal the decision of the department to the court of common pleas pursuant to section 119.12 of the Revised Code. The appeal shall be governed by section 119.12 of the Revised Code, except for all of the following:

(1) A resident, resident's sponsor or home shall file the appeal in the court of common pleas of the county in which the home is located.

(2) The resident or resident's sponsor may apply to the court for designation as an indigent and, if the court grants the application, the resident or resident's sponsor shall not be required to furnish the costs of the appeal.

(3) The appeal shall be filed with the department and the court within thirty days after the hearing officer's decision is served. The appealing party shall serve the opposing party a copy of the notice of appeal by hand delivery or certified mail, return receipt requested. If the home is the appealing party, it shall provide a copy of the notice of appeal to the resident and the resident's sponsor or attorney, if known.

(4) The department shall not file a transcript of the hearing with the court unless the court orders it to do so. The court shall issue such an order only if it finds that the parties are unable to stipulate to the facts of the case and that the transcript is essential to the determination of the appeal. If the court orders the department to file the transcript, the department shall do so not later than thirty days after the after the day the court issues the order.

(G) The court shall not require an appellant to pay a bond as a condition of issuing a stay pending its decision.

(H) The resident, resident's sponsor, home, or department may commence a civil action in the court of common pleas of the county in which the home is located to enforce the decision of the department or the court. If the court finds that the resident or home has not complied with the decision, it shall enjoin the violation and order other appropriate relief, including attorney's fees.

Effective: 08/05/2012
R.C. 119.032 review dates: 05/21/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 3721.11
Rule Amplifies: 3721.13 , 3721.16
Prior Effective Dates: 10/12/1979, 10/14/99, 3/20/05

3701-61-05 Transfer and discharge responsibilities of the home.

(A) If a resident is transferred or discharged pursuant to section 3721.16 of the Revised Code, the home from which the resident is being transferred or discharged shall provide the resident with adequate preparation prior to the transfer or discharge to ensure a safe and orderly transfer or discharge from the home. The home or alternative setting to which the resident is to be transferred or discharged shall have accepted the resident for transfer or admission.

(B) At the time of a transfer or discharge of a resident who is a recipient of medicaid from a home to a hospital or for therapeutic leave, the home shall provide notice in writing to the resident, and in writing by certified mail, return receipt requested, to the resident's sponsor or legal representative, specifying the number of days, if any, during which the resident will be permitted under the medicaid program to return and resume residence in the home and specifying the medicaid program's coverage of the days during which the resident is absent from the home. An individual who is absent from a home for more than the number of days specified in the notice and continues to require the services provided by the home shall be given priority for the first available bed in a semiprivate room.

(C) At the time of a transfer or discharge of a resident who is not a recipient of medicaid from a home to a hospital or for therapeutic leave, the home shall provide notice in writing to the resident, and in writing by certified mail, return receipt requested, to the resident's sponsor or legal representative, specifying the home's written policy regarding the resident's option to pay privately in order to hold a bed until the resident is able to return.

R.C. 119.032 review dates: 05/21/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 3721.11
Rule Amplifies: 3721.16
Prior Effective Dates: 10/12/1979, 10/14/99, 3/20/05

3701-61-06 Complaint investigations; adjudications; penalties.

(A) Any person who believes that a resident's rights under sections 3721.10 to 3721.17 of the Revised Code have been violated may report or cause reports to be made of the information directly to the department.

(B) In accordance with division (C) of section 3721.17 of the Revised Code, the department may investigate complaints or refer them to the home's grievance committee or the attorney general for investigation, except the department shall investigate or refer to the attorney general for investigation complaints referred by a home's grievance committee and complaints alleging that a home provided substantially less than adequate care or treatment, or substantially unsafe conditions. Referrals to the attorney general shall occur only if the attorney general agrees to investigate within thirty days.

(C) If, after an investigation, the department finds probable cause to believe that a violation of sections 3721.10 to 3721.17 of the Revised Code or of the rules, policies, or procedures adopted pursuant to those sections, has occurred at a home that is certified under Title XVIII or XIX of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301 , as amended, it shall cite one or more deficiencies under sections 5111.35 to 5111.62 of the Revised Code. If the home is not so certified, the department shall hold an adjudication hearing within thirty days under Chapter 119. of the Revised Code.

(D) Upon a finding at an adjudicative hearing under paragraph (C) of this rule that a violation of sections 3721.10 to 3721.17 of the Revised Code, or of rules, policies, or procedures adopted pursuant thereto, has occurred, the department shall make an order for compliance, set a reasonable time for compliance, and assess a fine pursuant to division (F) of section 3721.17 of the Revised Code. The fine shall be paid to the general revenue fund only if compliance with the order is not shown to have been made within the reasonable time set in the order. The department may issue an order prohibiting the continuation of any violation of sections 3721.10 to 3721.17 of the Revised Code.

(E) Findings at the hearings conducted under section 3721.17 of the Revised Code and this rule may be appealed pursuant to Chapter 119. of the Revised Code, except that an appeal may be made to the court of common pleas of the county in which the home is located.

(F) The department shall initiate proceedings in court to collect any fine assessed under section 3721.17 of the Revised Code and this rule which is unpaid thirty days after the violator's final appeal is exhausted.

R.C. 119.032 review dates: 05/21/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 3721.11
Rule Amplifies: 3721.17
Prior Effective Dates: 10/12/1979, 10/14/99

3701-61-07 Criminal records check; personal character standards: homes and adult day care programs.

(A) As used in this rule:

(1) "Adult day care program", "home", and "older adult" have the same meanings as in division (A) of section 3721.121 of the Revised Code; and

(2) "Direct care" has the same meaning as in paragraph (F) of rule 3701-13-01 of the Administrative Code.

(B) Except as provided in Chapter 3701-13 of the Administrative Code no home or adult day care program shall employ a person who applies on or after January 27, 1997, for a position that involves the provision of direct care to an older adult, if the person:

(1) Has been convicted of or pleaded guilty to an offense listed in division (C)(1) of section 3721.121 of the Revised Code; or

(2) Fails to complete the form(s) or provide fingerprint impressions as required by division (B)(3) of section 3721.121 of the Revised Code.

(C) Homes and adult day care programs shall comply with section 3721.121 of the Revised Code and Chapter 3701-13 of the Administrative Code.

R.C. 119.032 review dates: 05/21/2012 and 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 3721.11 , 3721.121
Rule Amplifies: 3721.121
Prior Effective Dates: 3/26/1997 (Emer.), 6/27/97 (Emer.), 10/24/97, 10/14/99

3701-61-08 Room changes.

(A) The home shall provide the resident and the resident's sponsor with reasonable notice before the resident's room is changed, including an explanation of the reason for the change.

(B) The home may provide notice in accordance with paragraph (C) of this rule if the reason for the room change is due to one of the following situations:

(1) The resident to be relocated no longer needs the specialized medical services or programs that are the focus of the area of the home where the resident is currently residing;

(2) The resident to be relocated needs the specialized medical services or programs that are the focus of the area of the home to where the resident is to be relocated; or

(3) Another resident or prospective resident needs access to the specialized medical equipment no longer needed by the resident to be relocated, if the medical equipment is the type that cannot be moved from the room.

(C) Notice of a room change due to one of the situations specified in paragraph (B) of this rule is reasonable if the home:

(1) Provided the resident and sponsor a copy of, and explained its policy, regarding transfers in and out of specialized care areas or rooms prior to admitting the resident to the specialized area or room;

(2) Notified the resident and sponsor verbally, followed by written notification, of any pending room change as soon as the home determined the need for any change, but no less than twenty-four hours before the change occurred; and

(3) The notice included an explanation of the reason for the change.

(D) The home shall take into account the preferences of the resident being relocated, the compatibility of any new roommate and, if time permits, provide the resident an opportunity to see the new room, meet the new roommate, and to ask questions prior to the move.

Effective: 08/05/2012
R.C. 119.032 review dates: 01/15/2017
Promulgated Under: 119.03
Statutory Authority: 3721.11
Rule Amplifies: 3721.16