Chapter 3701-64 Abuse or Neglect in Long-Term Care Facilities
As used in this chapter:
(A) "Abuse" means knowingly causing physical harm or recklessly causing serious physical harm to a resident by physical contact with the resident or by use of physical or chemical restraint, medication, or isolation as punishment, for staff convenience, excessively, as a substitute for treatment, or in amounts that preclude habilitation and treatment.
(B) "Accused" means the person named in an allegation or implicated in an investigation of abuse or neglect of a resident of a long-term care facility or misappropriation of property of such a resident.
(C) "Chemical restraint" means any medication bearing the "American Hospital Formulary Service" therapeutic class 4.00, 28:16:08, 28:24:08, or 28:24:92 that alters the functioning of the central nervous system in a manner that limits physical and cognitive functioning to the degree that the resident cannot attain his highest practicable physical, mental, and psychosocial well-being.
(D) "Day" means one calendar day.
(E) "Director" means the director of health or any person to whom the director of health delegates his or her authority.
(F) "Licensed health professional" means all of the following:
(1) An occupational therapist or occupational therapy assistant licensed under Chapter 4755. of the Revised Code;
(2) A physical therapist or physical therapy assistant licensed under Chapter 4755. of the Revised Code;
(3) A physician authorized under Chapter 4731. of the Revised Code to practice medicine and surgery, osteopathic medicine and surgery, or podiatry;
(4) A physician's assistant authorized under Chapter 4730. of the Revised Code to practice as a physician assistant;
(5) A registered nurse or licensed practical nurse licensed under Chapter 4723. of the Revised Code;
(6) A social worker or licensed independent social worker licensed, or a social work assistant certified, under Chapter 4757. of the Revised Code or a social work assistant registered under that chapter;
(7) A speech pathologist or audiologist licensed under Chapter 4753. of the Revised Code;
(8) A dentist or dental hygienist licensed under Chapter 4715. of the Revised Code;
(9) An optometrist licensed under Chapter 4725. of the Revised Code;
(10) A pharmacist licensed under Chapter 4729. of the Revised Code;
(11) A psychologist licensed under Chapter 4732. of the Revised Code;
(12) A chiropractor licensed under Chapter 4734. of the Revised Code;
(13) A nursing home administrator licensed or temporarily licensed under Chapter 4751. of the Revised Code;
(14) A professional counselor or professional clinical counselor licensed under Chapter 4757. of the Revised Code.
(G) "Long-term care facility" means either of the following:
(1) A nursing home as defined in section 3721.01 of the Revised Code, other than a nursing home or part of a nursing home certified as an intermediate care facility for the mentally retarded under Title XIX of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301, as amended; or
(2) A facility or part of a facility that is certified as a skilled nursing facility or a nursing facility under Title XVIII or XIX of the "Social Security Act."
(H) "Misappropriation" means depriving, defrauding, or otherwise obtaining the real or personal property of a resident by any means prohibited by the Revised Code, including violations of Chapter 2911. or 2913. of the Revised Code.
(I) "Neglect" means recklessly failing to provide a resident with any treatment, care, goods, or service necessary to maintain the health or safety of the resident when the failure results in serious physical harm to the resident.
(J) Except as otherwise provided in paragraph (I) of this rule, "nurse aide" means an individual who provides nursing and nursing-related services to residents in a long-term care facility, either as a member of the staff of the facility for monetary compensation or as a volunteer without monetary compensation. "Nurse aide" does not include either of the following:
(1) A licensed health professional practicing within the scope of the professional's license; or
(2) An individual providing nursing and nursing-related services in a religious nonmedical health care institution, if the individual has been trained in the principles of nonmedical care and is recognized by the institution as being competent in the administration of care within the religious tenets practiced by the residents of the institution.
(K) "Physical restraint" means, but is not limited to, any article, device, or garment that interferes with the free movement of the resident and that the resident is unable to remove easily, a geriatric chair, or a locked room door.
(L) "Resident" includes a resident, patient, former resident or patient, or deceased resident or patient of a long-term care facility or residential care facility.
(M) "Residential care facility" has the same meaning as in section 3721.01 of the Revised Code.
(N) "Religious nonmedical health care institution" means an institution that meets or exceeds the conditions to receive payment under the medicare program established under Title XVIII of the "Social Security Act" for inpatient hospital services or post-hospital extended care services furnished to an individual in a religious nonmedical health care institution, as defined in section 1861(ss)(1) of the "Social Security Act," 79 Stat. 286 (1965), 42 U.S.C. 1395x(ss)(1), as amended.
R.C. 119.032 review dates: 03/01/2011 and 03/01/2016
Promulgated Under: 119.03
Statutory Authority: 3721.26
Rule Amplifies: 3721.21, 3721.22, 3721.23, 3721.24, 3721.25
Prior Effective Dates: 1/10/1992, 6/11/01, 8/1/06
(A) The director of health shall receive, review, and investigate allegations of abuse or neglect of a resident or misappropriation of the property of a resident by any individual used by a long-term care facility or a residential care facility to provide services to residents.
(B) Allegations of abuse, neglect, or misappropriation may be presented orally or in writing. Oral and written allegations may be made to the Ohio department of health's division of quality assurance.
(C) Allegations shall be investigated by appropriately qualified individuals, as determined by the director. No long-term care facility or a residential care facility shall do any of the following in the course of an investigation by the director under this rule:
(1) Refuse to permit the director to enter the facility;
(2) Refuse to permit the director to interview employees or other personnel used by the facility, residents, or families of residents;
(3) Refuse to permit the director to review any record, medical or otherwise, kept by the facility; or
(4) Otherwise hinder the director's investigation of an allegation of abuse or neglect of a resident or misappropriation of property of a resident.
(D) If, after investigation, the director determines that there is a reasonable basis for an allegation, the director shall provide written notice to the accused in accordance with paragraphs (E) and (F) of this rule. The director also shall send a copy of the notice to any long-term care facility or a residential care facility that the director knows currently is using the accused to provide services.
(E) The written notice shall include all of the following items:
(1) A statement of the nature of the allegation;
(2) A statement advising the accused of his or her right to a hearing on the allegation and of the manner in which and time within which a hearing may be requested;
(3) An explanation that the director will report any finding that the accused abused or neglected a resident or misappropriated a resident's property to the following entity, as applicable:
(a) The nurse aide registry established under section 3721.32 of the Revised Code, if the accused is a nurse aide or otherwise not a licensed health professional; or
(b) The appropriate licensure authority, if the accused is a licensed health professional; and
(4) A warning that if the accused fails to submit a written request for a hearing within thirty days after he or she receives or was deemed to have received the notice, the director may do both of the following:
(a) Make a finding adverse to the accused; and
(b) Pursuant to rule 3701-64-05 of the Administrative Code, report the finding to the nurse aide registry or appropriate licensure authority, whichever is applicable, the long-term care facility or a residential care facility where the incident occurred, any other long-term care facility or a residential care facility known by the director to be using the accused to provide services to residents at the time of his or her finding, and the appropriate law enforcement official.
(F) The director first shall provide the written notice to the accused by certified mail, return receipt requested, or by sending it by personal delivery to the accused.
(1) If a certified mail envelope is returned to the director with an endorsement which indicates that the letter was refused, the director may send the notice to the accused by ordinary mail. The notice shall be deemed to have been received by the accused three days after mailing. Failure by the accused to claim a certified mail notice is not refusal of the notice within the meaning of this paragraph.
(2) If a certified mail notice is returned to the director with an endorsement which shows that the envelope was unclaimed, the director then may send the notice to the accused by ordinary mail. The notice shall be deemed to have been received by the accused three days after mailing if the ordinary mail envelope is not returned with an endorsement showing failure of delivery.
(3) When the residence of the accused is unknown and cannot be ascertained with reasonable diligence or when a notice which was sent by ordinary mail under paragraph (F)(2) of this rule is returned to the director for failure of delivery, the director shall publish notice in a newspaper of general circulation in the county of the accused's last known residence. The newspaper notice shall be published at least once a week for three successive weeks, shall summarize the information required by paragraph (E) of this rule, and shall refer the accused to the Ohio department of health's division of quality assurance for additional information. The newspaper notice shall be deemed to have been received by the accused on the last date of publication.
(A) If the accused desires a hearing before the director makes a finding on an allegation of abuse or neglect of a resident or misappropriation of a resident's property, he or she shall submit a written request for a hearing to the director. The accused shall submit the request within thirty days after receiving or being deemed to have received the notice required by paragraph (D) of rule 3701-64-02 of the Administrative Code. For purposes of this rule, the date a hearing request is submitted is the date on which the request is postmarked, if mailed, or the date on which it is received by the director, if hand-delivered or sent via telefax or electronic mail.
(B) Upon receipt of a timely written request for a hearing from the accused, the director shall schedule the hearing and notify the accused by ordinary mail of the date, time, and place of the hearing. The director shall provide this notification at least fifteen days prior to the hearing. The hearing shall be held within one hundred twenty days after the director received the request and shall be held in either of the following:
(1) The district office of the department of health which is closest to the residence of the accused or the place where the events constituting the allegation occurred; or
(2) Another location designated by the director if the director determines that holding the hearing at a location chosen under paragraph (B)(1) of this rule would be inconvenient for the accused or for witnesses.
(C) The director may postpone or continue the hearing at the request of the accused or on his or her own motion, but the hearing shall not be postponed or continued to a date later than one hundred twenty days after the director received the hearing request unless the director and the accused both agree to the postponement.
(A) For the convenience of accused individuals or witnesses, the director may consolidate hearings on allegations of abuse, neglect, or misappropriation that involve a common set of circumstances.
(B) The director shall appoint an attorney who is licensed to practice law in Ohio to serve as hearing officer and to preside at the hearing. The hearing officer shall not have been involved directly with the director's investigation of the allegation and shall have the same powers and authority in conducting the hearing as the director.
(C) For the purposes of conducting a hearing under this rule, the director may issue subpoenas compelling attendance of witnesses or production of documents.
(1) The subpoenas shall be served in the same manner as subpoenas and subpoenas duces tecum issued for a trial of a civil action in a court of common pleas.
(2) If a person who is served a subpoena fails to attend a hearing or to produce documents, or refuses to be sworn or to answer any questions put to him or her, the director may apply to the common pleas court of the county in which the person resides, or the county in which the long-term care facility or residential care facility is located, for a contempt order, as in the case of a failure of a person who is served a subpoena issued by the court to attend or to produce documents or a refusal of such person to testify.
(3) If the accused desires to compel the attendance of witnesses or the production of documents at the hearing, the accused shall request that the director issue the desired subpoena not later than seven days prior to the hearing. The director shall issue any subpoena which is requested timely under paragraph (C) of this rule.
(D) The hearing shall be recorded by video or audio tape, or by a stenographer. The method of recording shall be determined by the director. The record shall include all testimony, other evidence, and rulings on objections presented at the hearing.
(E) The hearing officer may administer oaths and affirmations, shall regulate the conduct of the hearing, shall rule upon the admissibility of evidence and objections. If the hearing officer refuses to admit certain evidence, any proffer of that evidence shall be made a part of the hearing record.
(F) The hearing officer may call the accused to testify under oath as upon cross-examination.
(G) The accused is entitled to have an attorney present at the hearing, to present evidence and to cross-examine witnesses. The accused may be represented at the hearing by a person who is not an attorney if the accused does not pay a fee to the person for the representation.
(H) The hearing officer may be guided by but shall not be bound by the "Ohio Rules of Evidence" when he or she conducts the hearing. The hearing officer shall consider all relevant testimonial and documentary evidence which is admitted into the record during the hearing.
(I) The hearing officer shall send a written report to the director and the accused by ordinary mail or hand delivery within fifteen days after the conclusion of the hearing. The report shall contain findings of fact, conclusions of law, and a recommendation whether the director should make a finding that the accused abused or neglected a resident or misappropriated property of a resident. The hearing officer's findings shall be based on a preponderance of the evidence adduced at the hearing.
(J) Either party may file written objections to the report and recommendation of the hearing officer. The objections shall be sent or hand-delivered to the director and the other party within fifteen days after the mailing or hand delivery of the report and recommendation. Either party may file with the director a written response to the objections of the other party within ten days after the objections were mailed or hand-delivered.
(A) The director shall make a finding concerning an allegation of abuse, neglect, or misappropriation on which a hearing was held under rule 3701-64-04 of the Administrative Code after the expiration of the period specified by paragraph (J) of that rule for filing objections and, if applicable, the expiration of the period for filing responses. The director's findings shall be based upon the hearing officer's recommendation, any written objections and responses, and the hearing record. If the accused failed to request a hearing within the time allowed by paragraph (A) of rule 3701-64-03 of the Administrative Code, the director may make a finding after the expiration of the thirty-day period.
(B) The director shall not make a finding against the accused if neglect was caused by factors beyond his or her control. Factors beyond the control of the accused may include, but are not limited to, orders from his or her supervisor or failure of the long-term care facility or residential care facility to provide adequate staffing or supplies.
(C) If the director finds that an accused, who is used by a long-term care facility as a nurse aide, has neglected or abused a resident or misappropriated property of a resident, the director shall notify all of the following by ordinary mail:
(1) The accused;
(2) The long-term care facility where the incident occurred and any other long-term care facility known by the director to be using the accused as a nurse aide at the time of the director's finding; and
(3) The attorney general, county prosecutor, or other appropriate law enforcement official.
In accordance with section 3721.32 of the Revised Code, the director shall include a statement which details his findings in the nurse aide registry established under that section.
(D) If the director finds that an accused, who is used by a long-term care facility or residential care facility to provide services to residents other than as a nurse aide, has neglected or abused a resident or misappropriated property of a resident, the director shall notify all of the following by ordinary mail:
(1) The accused;
(2) The facility where the incident occurred, and any other long-term care facility or residential care facility known by the director to be using the accused to provide services to residents at the time of the director's finding;
(3) Any appropriate professional licensing authority established under Title 47 of the Revised Code; and
(4) The attorney general, county prosecutor, or other appropriate law enforcement official.
If the accused is not licensed under Title 47 of the Revised Code, the director also shall include a statement which details his findings in the nurse aide registry in accordance with section 3721.32 of the Revised Code.
(E) A nurse aide or other individual about whom a statement is required by paragraph (C) or (D) of this rule to be included in the nurse aide registry may provide the director with a statement which disputes the director's findings and which explains the circumstances of the allegation. The director shall include this statement in the nurse aide registry with the director's findings.
(F) If the director finds that alleged neglect or abuse of a resident or misappropriation of property of a resident cannot be substantiated, the director shall notify the accused and expunge all files and records of the investigation and the hearing by doing all of the following:
(1) Removing and destroying the files and records, originals and copies, and deleting all index references;
(2) Reporting to the accused the nature and extent of any information about the accused which has been transmitted to any other person or government entity by the director; and
(3) Otherwise ensuring that any examination of the director's files and records in question show no record whatever with respect to the accused.
(G) The failure of the director to comply with any of the time limits specified in rules 3701-64-02 to 3701-64-05 of the Administrative Code shall not effect the validity of any finding made by the director under this rule.
(H) In accordance with division (D)(2) of section 3721.23 of the Revised Code and in a form and manner prescribed by the director, not earlier than one year after the date of a finding of neglect, an individual found to have neglected a resident may petition the director to rescind the finding and remove the statement and any accompanying information from the nurse aide registry. The director shall consider the petition.
(1) If, in the judgment of the director, the neglect was a singular occurrence and the employment and personal history of the individual does not evidence abuse or any other incident of neglect of residents, the director shall notify the individual and remove the statement and any accompanying information from the nurse aide registry;
(2) The director shall expunge all files and records of the investigation and the hearing, except the petition for rescission of the finding of neglect and the director's notice that the rescission has been approved; and
(3) A petition for rescission of a finding of neglect and the director's notice that the rescission has been approved are not public records for the purpose of section 149.43 of the Revised Code.
(I) When files and records have been expunged under paragraph (F) or (H) of this rule, all rights and privileges are restored, and the accused, the director, and any other person or government entity may properly reply to an inquiry that no such record exists as to the matter expunged.