Chapter 5101:3-3 Long-Term Care Facilities; Nursing Facilities; Intermediate Care Facilities for the Mentally Retarded

5101:3-3-01 Definitions.

Except as otherwise provided in Chapter 5101:3-3 of the Administrative Code:

(A) “Allowable costs” are those costs incurred for certified beds in a facility as determined by the Ohio department of job and family services (ODJFS) to be reasonable, as set forth under paragraph (AA) of this rule, and do not include fines paid under sections 5111.35 to 5111.62, 5111.683, and 5111.99 of the Revised Code. Unless otherwise enumerated in Chapter 5101:3-3 of the Administrative Code, allowable costs are also determined in accordance with the following reference material, as currently issued and updated, in the following priority:

(1) Title 42 Code of Federal Regulations (C.F.R.) Chapter IV (10/1/2005);

(2) The provider reimbursement manual (CMS Publication 15-1, www.cms.hhs.gov/manuals”); or

(3) Generally accepted accounting principles in accordance with standards prescribed by the “American Institute of Certified Public Accountants” (AICPA) as in effect on the effective date of this rule. These standards can be obtained at www.aicpa.org..

(B) “Ancillary and support costs” means all reasonable costs incurred by a nursing facility other than direct care costs or capital costs. “Ancillary and support costs” includes, but is not limited to costs of activities, social services, pharmacy consultants, habilitation supervisors, qualified mental retardation professionals, program directors, medical and habilitation records, program supplies, incontinence supplies, food, enterals, dietary supplies and personnel, laundry, housekeeping, security, administration, medical equipment, utilities, liability insurance, bookkeeping, purchasing department, human resources, communications, travel, dues, license fees, subscriptions, home office costs not otherwise allocated, legal services, accounting services, minor equipment, maintenance and repairs, help-wanted advertising, informational advertising, start-up costs, organizational expenses, other interest, property insurance, employee training and staff development, employee benefits, payroll taxes, and workers’ compensation premiums or costs for self-insurance claims and related costs as specified in rules adopted by the director of job and family services under section 5111.02 of the Revised Code. “Ancillary and support costs” also means the cost of equipment, including vehicles, acquired by operating lease executed before December 1, 1992, if the costs are reported as administrative and general costs on the facility’s cost report for the cost reporting period ending December 31, 1992.

(D) “Capital costs” means costs of ownership and nonextensive renovation.

(1) “Cost of ownership” means the actual expense incurred for all of the following:

(a) Depreciation and interest on any items capitalized including the following:

(i) Buildings;

(ii) Building improvements;

(iii) Equipment;

(iv) Extensive renovation;

(v) Transportation equipment;

(vi) Replacement beds;

(b) Amortization and interest on land improvements and leasehold improvements;

(d) Except as provided under paragraph (M) of this rule, lease and rent of land, building, and equipment.

(2) “Costs of nonextensive renovation” means the actual expense incurred for depreciation or amortization and interest on renovations that are not extensive renovations.

(E) “Capital lease” and “operating lease” shall be construed in accordance with generally accepted accounting principles.

(F) “Case mix score” means the measure of the relative direct-care resources needed to provide care and rehabilitation to a resident of a nursing facility (NFs) or intermediate care facility for the mentally retarded (ICFs-MR).

(G) “Cost of construction” means the costs incurred for the construction of beds originally contained in the NF or ICF-MR and the costs incurred for the construction of beds added to the NF or ICF-MR after the construction of the original beds. In the case of NFs or ICFs-MR which extensively renovate, “cost of construction” includes the costs incurred for the extensive renovation.

(H) “Cost per case mix unit” is determined at least once every ten years for a peer group and shall be used for subsequent years until the department redetermines it. The “cost per case mix unit” is calculated by dividing the facility’s desk-reviewed, actual, allowable, per diem direct care costs for the applicable calendar year preceding the fiscal year in which the rate will be paid by the facility’s annual case-mix average case mix score for the applicable calendar year.

(I) “Date of licensure,” for a facility originally licensed as a nursing home under Chapter 3721. of the Revised Code, means the date specific beds were originally licensed as nursing home beds under that chapter. Regardless of whether they were subsequently licensed as residential facility beds. For a facility originally licensed as a residential facility “date of licensure” means the date specific beds were originally licensed as residential facility beds under that section.

(1) If nursing home beds licensed under Chapter 3721. of the Revised Code or residential facility beds licensed under section 5123.19 of the Revised Code were not required by law to be licensed when they were originally used to provide nursing home or residential facility services, “date of licensure” means the date the beds first were used to provide nursing home or residential facility services, regardless of the date the present provider obtained licensure.

(2) If a facility adds nursing home or residential facility beds or in the case of an ICF-MR with more than eight beds or a NF, it extensively renovates the facility after its original date of licensure, it will have a different date of licensure for the additional beds or for the extensively renovated facility, unless, in the case of the addition of beds, the beds are added in a space that was constructed at the same time as the previously licensed beds but was not licensed under Chapter 3721. or section 5123.19 of the Revised Code at that time. The licensure date for additional beds or facilities which extensively renovate shall be the date the beds are placed into service.

(J) “Desk reviewed” means that costs as reported on a cost report have been subjected to a desk review and preliminarily determined to be allowable costs.

(K) “Direct care costs” means costs as defined under rules 5101:3-3-42 and 5101:3-3-71 of the Administrative Code.

(L) “Fiscal year” means the fiscal year of this state, as specified in section 9.34 of the Revised Code.

(M) “Indirect care costs” means costs as defined under rule 5101:3-3-71 of the Administrative Code.

(N) “Inpatient days” means all days during which a resident, regardless of payment source, occupies a bed in a NF or ICF-MR that is included in the facility’s certified capacity under Title XIX of the “Social Security Act,” 49 stat. 620 (1935), 42 U.S.C.A. 301, as amended. Therapeutic or hospital leave days for which payment is made under section 5111.33 of the Revised Code are considered inpatient days proportionate to the percentage of the facility’s per resident per day rate paid for those days.

(O) “Intermediate care facility for the mentally retarded” (ICF-MR) means an intermediate care facility for the mentally retarded certified as in compliance with applicable standards for the medical assistance program by the director of health in accordance with Title XIX of the “Social Security Act.”

(P) “Maintenance and repair expenses” means expenditures, except as provided in paragraph (EE) of this rule, that are necessary and proper to maintain an asset in a normally efficient working condition and that do not extend the useful life of the asset two years or more. Maintenance and repairs expense may include, but are not limited to, the cost of ordinary repairs such as painting and wallpapering.

(Q) “Minimum data set – version 2.0” (MDS 2.0) is the resident assessment instrument selected by Ohio and approved by the centers for medicare and medicaid services (CMS). The MDS 2.0 provides the resident assessment data which is used to classify the resident into a resource utilization group in the RUG-III case-mix classification system.

(R) “Nursing facility” (NF) means a facility, or a distinct part of a facility, that is certified as a nursing facility by the director of health in accordance with Title XIX of the “Social Security Act,” and is not an intermediate care facility for the mentally retarded (ICF-MR). “Nursing facility” includes a facility, or a distinct part of a facility, that is certified as a nursing facility by the director of health in accordance with Title XIX of the “Social Security Act,” and is certified as a skilled nursing facility by the director in accordance with Title XIX of the “Social Security Act.”

(S) “Other protected costs” means costs as defined under rule 5101:3-3-71 of the Administrative Code.

(T) “Outlier” means residents who have special care needs as defined under rule 5101:3-3-17 of the Administrative Code.

(U) “Owner” means any person or government entity that has at least five per cent ownership or interest, either directly, indirectly, or in any combination, in a NF or ICF-MR.

(V) “Patient” includes resident or individual.

(W) “Provider” means a person or government entity that operates a NF or ICF-MR under a provider agreement.

(X) “Provider agreement” means a contract between ODJFS and an operator of a NF or ICF-MR for the provision of NF or ICF-MR services under the medical assistance program. The signature of the operator or the operator’s authorized agent binds the operator to the terms of the agreement.

(Y) “Purchased nursing services” means services that are provided by registered nurses, licensed practical nurses, or nurse aides who are temporary personnel furnished by a nursing pool on behalf of the facility. These personnel are not considered to be employees of the facility.

(Z) “Quarterly facility average case-mix score” is the facility average case-mix score based on data submitted for one reporting quarter.

(AA) “Reasonable” means that a cost is an actual cost that is appropriate and helpful to develop and maintain the operation of patient care facilities and activities, including normal standby costs, and that does not exceed what a prudent buyer pays for a given item or services. Reasonable costs may vary from provider to provider and from time to time for the same provider.

(BB) “Related party” means an individual or organization that, to a significant extent, has common ownership with, is associated or affiliated with, has control of, or is controlled by, the provider, as detailed below:

(1) An individual who is a relative of an owner is a related party.

(2) Common ownership exists when an individual or individuals possess significant ownership or equity in both provider and the other organization. Significant ownership or equity exists when an individual or individuals possess five per cent ownership or equity in both the provider and a supplier. Significant ownership or equity is presumed to exist when an individual or individuals possess ten per cent ownership or equity in both the provider and another organization from which the provider purchases or leases real property.

(3) Control exists when an individual or organization has the power, directly or indirectly, to significantly influence or direct the actions or policies of an organization.

(4) An individual or organization that supplies goods or services to a provider shall not be considered a related party if all the following conditions are met:

(a) A supplier is a separate bona fide organization;

(b) A substantial part of the supplier’s business activity of the type carried on with the provider is transacted with others than the provider and there is an open, competitive market for the types of goods or services the supplier furnishes;

(c) The types of goods or services are commonly obtained by other NFs or ICFs-MR from outside organizations and are not a basic element of patient care ordinarily furnished directly to patients by the facilities;

(d) The charge to the provider is in line with the charge for the goods or services in the open market and no more than the charge made under comparable circumstances to others by the supplier.

(5) The amount of indirect ownership is determined by multiplying the percentage of ownership interest at each level (e.g., forty per cent interest in corporation “A” which owns fifty per cent of corporation “B” results in a twenty per cent indirect interest in corporation “B”).

(6) If a provider transfers an interest or leases an interest in a facility to another provider who is a related party, the capital cost basis shall be adjusted for a sale of a facility to or a lease to a provider that is not a related party if all of the following conditions are met:

(a) For a NF transfer:

(i) The related party is a relative of owner.

(ii) The provider making the transfer retains no interest in the facility except through the exercise of the creditor’s rights in the event of default.

(iii) ODJFS determines that the transfer is an arm’s length transaction if all the following apply:

(a) Once the transfer goes into effect, the provider that made the transfer has no direct or indirect interest in the provider that acquires the facility or the facility itself, including interest as an owner, officer, director, employee, independent contractor, or consultant, but excluding interest as a creditor. If the provider making the transfer maintains an interest as a creditor, the interest rate of the creditor shall not exceed the lesser of:

(i) The prime rate, as published by the “Wall Street Journal” on the first business day of the calendar year, plus four per cent; or

(ii) Fifteen per cent.

(b) The provider that made the transfer does not reacquire an interest in the facility except through the exercise of a creditor’s rights in the event of a default. If the provider reacquires an interest in the facility in this manner, ODJFS shall treat the facility as if the transfer never occurred when ODJFS calculates its reimbursement rates for capital costs.

(c) The provider transferring their facility shall provide ODJFS with certified appraisal(s) at least ninety days prior to the actual change of provider agreement(s). The certified appraisal(s) shall be conducted no earlier than one hundred eighty days prior to the actual change of provider agreement(s) for each facility transferred to a related party.

(iv) Except in the case of hardship caused by a catastrophic event, as determined by ODJFS, or in the case of a provider making the transfer who is at least sixty-five years of age, not less than twenty years have elapsed since, for the same facility, the capital cost basis was determined or adjusted most recently; or actual, allowable cost of ownership was determined most recently.

(b) For a NF lease:

(i) The related party is a relative of owner.

(ii) The lessor retains an ownership interest in only real property and any improvements on the real property except when a lessor retains ownership interest through the exercise of a lessor’s rights in the event of default.

(iii) ODJFS determines that the lease is an arm’s length transaction if all the following apply:

(a) Once the lease goes into effect, the lessor has no direct or indirect interest in the lessee or, except as provided in this rule, the facility itself, including interest as an owner, officer, director, employee, independent contractor, or consultant, but excluding interest as a lessor.

(b) The lessor does not reacquire an interest in the facility except through the exercise of a lessor’s rights in the event of a default. If the lessor reacquires an interest in the facility in this manner, ODJFS shall treat the facility as if the lease never occurred when ODJFS calculates its reimbursement rates for capital costs.

(c) A lessor that proposes to lease a facility to a relative of owner shall obtain a certified appraisal(s) for each facility leased. The lessor of the facility shall provide ODJFS with certified appraisal(s) at least ninety days prior to the actual change of provider agreement(s). The certified appraisal(s) shall be conducted no earlier than one hundred eighty days prior to the actual change of provider agreement(s) for each facility leased to a related party.

(iv) Except in the case of hardship caused by a catastrophic event, as determined by ODJFS, or in the case of a lessor who is at least sixty-five years of age, not less than twenty years have elapsed since, for the same facility, the capital cost basis was determined or adjusted most recently; or actual, allowable cost of ownership was determined most recently.

(v) The provisions set forth in this paragraph do not apply to leases of specific items of equipment.

(i) The related party is a relative of owner.

(ii) The provider making the transfer retains no interest in the facility except through the exercise of the creditor’s rights in the event of default.

(iii) ODJFS determines that the transfer is an arm’s length transaction if all the following apply:

(i) The prime rate, as published by the “Wall Street Journal” on the first business day of the calendar year plus four per cent; or

(ii) Fifteen per cent.

(d) For an ICF-MR lease:

(i) The related party is a relative of owner.

(iii) ODJFS determines that the lease is an arm’s length transaction if all the following apply:

(v) The provisions set forth in this paragraph do not apply to leases of specific items of equipment.

(e) The provider shall notify ODJFS in writing and shall supply sufficient documentation demonstrating compliance with the provisions of this rule no less than ninety days before the anticipated date of completion of the transfer or lease. In the case of a transaction completed before December 28, 2000 and subject to CMS approval the provider shall supply sufficient documentation demonstrating compliance with the provisions of this rule within thirty days of the effective date of this rule. If the provider does not supply any of the required information, the provider shall not qualify for a rate adjustment. ODJFS shall issue a written decision determining whether the transfer meets the requirements of this rule within sixty days after receiving complete information as determined by ODJFS.

(f) Subject to approval by CMS of a state plan amendment authorizing such, the provisions of paragraph (BB)(6) of this rule shall apply to any transfer or lease that meets the requirements specified in paragraph (BB)(6) of this rule that occurred prior to December 28, 2000. Any rate adjustments which result from the provisions contained in paragraph (BB)(6) of this rule shall take effect as specified in rule 5101:3-3-24 of the Administrative Code, following a determination by ODJFS that the requirements of paragraph (BB)(6) of this rule are met. A provider seeking a determination from ODJFS that a transaction occurring prior to December 28, 2000, meets the requirements of this rule shall submit the necessary documentation under paragraph (BB)(6)(e) of this rule no later than thirty days after the effective date of this rule.

(CC) “Relative of owner” means an individual who is related to an owner of a NF or ICF-MR by one of the following relationships:

(1) Spouse;

(2) Natural parent, child, or sibling;

(3) Adopted parent, child, or sibling;

(4) Stepparent, stepchild, stepbrother, or stepsister;

(5) Father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law;

(6) Grandparent or grandchild;

(7) Foster parent, foster child, foster brother, or foster sister.

(DD) “Extensive renovation” means a renovation that costs more than sixty-five per cent and no more than eighty-five per cent of the cost of constructing a new bed and that extends the useful life of the assets for at least ten years. To calculate the per-bed cost of a renovation project for purposes of determining whether it is an extensive renovation, the allowable cost of the project shall be divided by the number of beds in the facility certified for participation in the medical assistance program, even if the project does not affect all medicaid-certified beds. Allowable extensive renovations are considered an integral part of cost of ownership as set forth under paragraph (D) of this rule.

(1) For purposes of paragraph (DD) of this rule, the cost of constructing a new bed shall be considered to be forty thousand dollars, adjusted for inflation from January 1, 1993 to the end of the calendar year during which the renovation is completed using the consumer price index for shelter costs for all urban consumers for the north central region, as published by the United States bureau of labor statistics.

(2) ODJFS may treat a renovation that costs more than eighty-five per cent of the cost of constructing new beds as an extensive renovation if ODJFS determines that the renovation is more prudent than construction of new beds.

(EE) “Nonextensive renovation” means the betterment, improvement, or restoration of a NF or ICF-MR beyond its current functional capacity through a structural change that costs at least five hundred dollars per bed. To calculate the per-bed cost of a renovation project for purposes of determining whether it is a nonextensive renovation, the allowable cost of the project shall be divided by the number of beds in the facility certified for participation in the medical assistance program, even if the project does not affect all medicaid-certified beds. A nonextensive renovation may include betterment, improvement, restoration, or replacement of assets that are affixed to the building and have a useful life of at least five years. A nonextensive renovation may include costs that otherwise would be considered maintenance and repair expenses if they are included as part of the nonextensive renovation project and are an integral part of the structural change that makes up the nonextensive renovation project. Nonextensive renovation does not mean construction of additional space for beds that will be added to a facility’s licensed or certified capacity. Allowable nonextensive renovations are not considered cost of ownership as set forth under paragraph (D) of this rule.

(FF) The definitions established in paragraphs (DD) and (EE) of this rule apply to “extensive renovations” and “nonextensive renovations” approved by ODJFS on or after July 1, 1993. Any betterments, improvements, or restorations of NFs or ICFs-MR for which construction is started before July 1, 1993, and that meet the definitions of extensive renovations or nonextensive renovations established by the rules of ODJFS in effect on December 22, 1992, shall be considered extensive renovations or nonextensive renovations. For purposes of renovations approved by ODJFS “construction is started” means the date in which the actual construction work begins at the facility site.

(GG) “Replacement beds” are beds which are relocated to a new building or portion of a building attached to and/or constructed outside of the original licensed structure of a NF or ICF-MR. Replacement beds may originate from within the licensed structure of a NF or ICF-MR from another NF or ICF-MR. Replacement beds are eligible for the cost of ownership efficiency incentive ceiling which corresponds to the period the beds were replaced.

(HH) “RUG III” is the resource utilization groups, version III system of classifying nursing facility (NF) residents into case-mix groups.

Effective: 12/31/2006

R.C. 119.032 review dates: 10/11/2006 and 12/31/2011

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.20

Prior Effective Dates: 7/1/80, 8/1/84, 9/30/93 (Emer), 1/1/94, 11/1/95, 7/1/00, 12/28/00, 5/17/01, 9/30/01, 2/2/06

5101:3-3-02 Provider agreements: nursing facilities (NFs) and intermediate care facilities for the mentally retarded (ICFs-MR).

In addition to provisions in rules 5101:3-3-02.1 and 5101:3-3-02.2 of the Administrative Code, execution and maintenance of a provider agreement between the Ohio department of job and family services (ODJFS) and the operator of a NF or ICF-MR is also contingent upon compliance with requirements set forth in this rule.

(A) Definitions.

(1) “Closure” means the discontinuance of the use of the building or part of the building that houses the facility as a NF or ICF-MR, that results in the relocation of the facility’s residents.

(a) A facility’s closure occurs regardless of whether there is a replacement of the facility, whereby the operator completely or partially replaces the facility’s physical plant through the construction of a new physical plant or the transfer of the facility’s license from one physical plant location to another.

(b) Facility closure also occurs regardless of whether residents of the closing facility elect to be relocated to the operator’s replacement facility or to another NF or ICF-MR.

(c) A facility closure also occurs regardless of action taken by the department of health related to the facility’s certification under Title XIX of the Social Security Act, 79 stat. 286 (1965), 42 U.S.C.A. 1396, (as amended through April 15, 2003), that may result in the transfer of part of the facility’s survey findings to a replacement facility, or related to retention of a license as a NF under Chapter 3721. of the Revised Code or as a residential facility under Chapter 5123. of the Revised Code.

(d) The last effective date of the provider agreement of a closed facility will be the date of the relocation of the last resident.

(2) “Continuing care” refers to the living setting which provides the individual with an apartment or lodging; meals; maintenance services; and when necessary, nursing home care. All services are provided on the premises of the continuing care community. The individual signs a contract which identifies the continuum of services to be covered by the individual’s initial entrance fee and subsequent monthly charges. If a continuing care contract provides for a living arrangement which specifically states that all health care services including nursing home services are met in full, medicaid payment cannot be made for those services covered by the contract. If a continuing care contract provides for only a portion of the resident’s health care services, that portion shall be deducted from the actual cost of nursing home care and medicaid shall recognize the difference up to the medicaid maximum per diem. An individual may be eligible for medicaid after a continuing care contract was signed under the conditions in rule 5101:1-39-46 of the Administrative Code.

(3) “Failure to pay” means that an individual has a medicaid application in pending status and has failed, after reasonable and appropriate notice, to pay or to have the medicare or medicaid program pay on the individual’s behalf, for the care provided by the NF or ICF-MR. An individual shall be considered to have failed to have the individual’s care paid for if the individual has applied for medicaid, if both of the following are the case:

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

(b) If the individual appealed the denial pursuant to division (C) of section 5101.35 of the Revised Code, and the director of ODJFS upheld the denial.

(4) “Medicaid eligible” means an individual has been determined eligible and has been issued an effective date of health care which covers the time period in question by the CDJFS under Chapter 5101:1-39 of the Administrative Code.

(5) “Operator” means the individual, partnership, association, trust, corporation, or other legal entity that operates a NF or ICF-MR.

(6) “Voluntary withdrawal” means that the operator of a NF, in compliance with section 1919(c)(2)(F) of the Social Security Act (as amended through April 15, 2003), voluntarily elects to withdraw from participation in the medicaid program but chooses to continue providing services of the type provided by NFs. For ICFs-MR “voluntary withdrawal” means the operator elects to voluntarily terminate from the medicaid program.

(B) A provider of a NF or ICF-MR shall:

(1) Execute the provider agreement in the format provided by ODJFS; and

(2) Apply for and maintain a valid license to operate if required by law; and

(3) Comply with all applicable federal, state, and local laws and rules; and

(4) Keep records and file reports as required in rule 5101:3-3-20 of the Administrative Code; and

(5) Open all records relating to the costs of its services for inspection and audit by ODJFS and otherwise comply with rule 5101:3-3-20 of the Administrative Code; and

(6) Supply to ODJFS such information as the department requires concerning NF or ICF-MR services to individuals who are medicaid eligible or who have applied to be medicaid recipients.

(7) Unless the conditions described in paragraph (J) of this rule are applicable, retain as a resident in the NF or ICF-MR any individual who is medicaid eligible, becomes medicaid eligible, or applies for medicaid eligibility. Residents in the NF or ICF-MR who are medicaid eligible, become medicaid eligible, or apply for medicaid eligibility, are considered residents in the NF or ICF-MR during any absence for which bed-hold days are reimbursed in accordance with rules 5101:3-3-59 and 5101:3-3-92 of the Administrative Code.

(8) Unless the conditions described in paragraph (J) of this rule are applicable, admit as a resident in the NF or ICF-MR, an individual who is medicaid eligible, whose application for medicaid is pending, or who is eligible for both medicare and medicaid, and whose level of care determination is appropriate for the admitting facility. This applies only if less than eighty per cent of the total residents in the NF or ICF-MR are recipients of medicaid.

(a) In order to comply with these provisions, the NF or ICF-MR admission policy shall be designed to admit individuals sequentially based on the following:

(i) The requested admission date; and

(ii) The date and time of receipt of the request; and

(iii) The availability of the level of care or range of services necessary to meet the needs of the applicants; and

(iv) Gender: sharing a room with a resident of the same sex (except married couples who agree to share the same room.)

(b) The NF or ICF-MR shall maintain a written list of all requests for each admission. The list shall include the name of the potential resident; date and time the request was received; the requested admission date; and the reason for denial if not admitted. This list shall be made available upon request to the staff of ODJFS, CDJFS, and the Ohio department of health (ODH).

(i) Bed-hold days are exhausted. Medicaid eligible residents of NFs who are on hospital stays; visiting with family and friends; or participating in therapeutic programs; and have exhausted coverage for bed-hold days under rule 5101:3-3-59 of the Administrative Code, must be readmitted to the first available semi-private bed in accordance with the provisions of rule 5101:3-3-59 of the Administrative Code; or

(ii) Facility is a country home. Any county home organized under Chapter 5155. of the Revised Code may admit individuals exclusively from the county in which the county home is located; or

(iii) Facility has a religious sponsor. Any religious or denominational NF or ICF-MR that is operated, supervised, or controlled by a religious organization may give preference to persons of the same religion or denomination; or

(iv) NF has continuing care contracts. A NF may give preference to persons with whom it has contracted to provide continuing care.

(v) Prolonged “medicaid pending” application status. A NF or ICF-MR may decline to admit a medicaid applicant if that facility has a resident whose application was pending upon admission and has been pending for more than sixty days, as verified by the CDJFS. The NF or ICF-MR shall submit the necessary documentation in a timely manner as required in rules 5101:3-3-15.1 and 5101:3-3-15.3 of the Administrative Code.

(9) Effective July 1, 1997 and thereafter, provide the following necessary information to ODJFS and CDJFS to process records for payment and adjustment:

(a) Submit the “facility/CDJFS transmittal” (JFS 09401, rev. 5/2001) to the CDJFS to inform the CDJFS of any information regarding a specific resident for maintenance of current and accurate payment records at the CDJFS and the facility; and

(b) For dates of service prior to July 1, 2005, Submit submit the “nursing facility payment and adjustment authorization” (JFS 09400,rev. 12/2001) directly to ODJFS to initiate, terminate or adjust vendor payment on a specific resident as required.

(i) An ICF-MR shall submit the “nursing facility payment and adjustment authorization” (JFS 09400, rev. 12/2001) directly to ODJFS to initiate, terminate, or adjust vendor payment on a specific resident as required.

(ii) A NF shall submit an 837I transaction as required in rule 5101:3-3-39.1 of the Administrative Code to ODJFS to initiate, terminate, or adjust medicaid payment on a specific resident.

(10) Permit access to facility and records for inspection by ODJFS, ODH, CDJFS, representatives of the office of the state long-term care ombudsman, and any other state or local government entity having authority to inspect, to the extent of that entity’s authority.

(11) In the case of a change of provider agreement as defined in rules 5101:3-3-51.6 and 5101:3-3-84.5 of the Administrative Code, or dissolution of a business, follow the procedures in paragraphs (B)(11)(a) to (B)(11)(c) of this rule.

(a) The exiting provider must provide a written notice to ODJFS, as provided in rules 5101:3-3-51.6 and 5101:3-3-84.5 of the Administrative Code, at least forty-five days prior to the effective date of any contract of sale or new lease agreement for the NF or ICF-MR.

(b) The provider must submit documentation of any transaction (i.e., sales agreement, contract or lease) as requested by ODJFS to determine whether a change of provider has occurred as specified in rules 5101:3-3-51.6 and 5101:3-3-84.5 of the Administrative Code.

(c) The entering operator shall submit an application for participation in the medicaid program and a written statement of intent to abide by ODJFS rules, the provisions of the new provider agreement; and any existing statement of deficiencies and plan of correction (CMS 2567,(rev. 2/1999), statement of deficiencies and plan of correction,) submitted by the previous provider.

(12) Assure the security of all personal funds of residents in accordance with rules 5101:3-3-60 and 5101:3-3-93 of the Administrative Code.

(13) Comply with Title VI and Title VII of the Civil Rights Act of 1964 (as amended through April 15, 2003) and Public Law 101-336 (the Americans with Disabilities Act of 1990, as amended through April 15, 2003), and shall not discriminate against any resident on the basis of race, color, age, sex, creed, national origin, or disability.

(14) Provide to ODJFS, through the court of jurisdiction, notice of any action brought by the provider in accordance with Title 11 of the United States Code (bankruptcy, as amended through April 15, 2003). Notice shall be mailed to: “Office of Legal Services, Ohio Department of Job and Family Services, 30 East Broad Street-31st. Floor, Columbus, Ohio 43215-3414.”

(1) Provide a statement to the individual explaining the individual’s obligation to reimburse the cost of care provided during the application process, if it is not covered by medicaid.

(2) Comply with the requirements in paragraph (F) of rule 5101:3-3-04.1 of the Administrative Code and repay ODJFS the federal share of payments under the circumstances required by sections 5111.45 and 5111.58 of the Revised Code.

(3) During a closure or voluntary withdrawal from the medicaid program provide ODJFS, the resident or guardian, and the residents’ sponsors a written notice of at least ninety days prior to the closure or voluntary withdrawal. A NF that does not issue the proper notice is subject to the penalties specified in rule 5101:3-3-51.6 of the Administrative Code.

(D) A provider of an ICF-MR shall:

(1) During a “closure” or “voluntary withdrawal” from the medicaid program provide ODJFS; the resident or guardian, and the residents’ sponsors; a written notice at least ninety days prior to the closure” or “voluntary withdrawal”. A ICF-MR that does not issue the proper notice is subject to the penalties specified in rule 5101:3-3-84.5 of the Administrative Code.

(E) A provider of a NF or ICF-MR shall not:

(1) Charge fees for the application process of a medicaid individual or applicant.

(2) Charge a medicaid individual an admission fee.

(3) Charge a medicaid individual an advance deposit.

(4) Require a third party to accept personal responsibility for paying the facility charges out of his or her own funds. However, the facility may require a representative who has legal access to a individual’s income or resources available to pay for facility care to sign a contract, without incurring personal financial liability, to provide facility payment from the individual’s income or resources if the individual’s medicaid application is denied and if the individual’s cost of care is not being paid by medicare or another third-party payor. A third-party guarantee is not the same as a third-party payor (i.e, an insurance company), and this provision does not preclude the facility from obtaining information about medicare and medicaid eligibility or the availability of private insurance. The prohibition against third-party guarantees applies to all individuals and prospective individuals in all certified NFs or ICFs-MR regardless of payment source. Notwithstanding the above, this provision does not prohibit a third party from voluntarily making payment on behalf of an individual.

(F) ODJFS shall:

(1) Execute a provider agreement in accordance with the certification provisions set forth by the secretary of health and human services and ODH.

(2) In the case of a charge of operator, issue a new provider agreement to the entering operator contingent upon the entering operator’s compliance with paragraph (B)(11)(c) of this rule.

(3) Provide copies of ODJFS rules governing the facility’s participation as a provider in the medical assistance program. Whenever ODJFS files a proposed rule; or proposed rule in revised form under division (D) of section 111.15, or division (B) of section 119.03 of the Revised Code; the department shall provide the facility with one copy of such rule. In the case of a rescission or proposed rescission of a rule, ODJFS may provide the rule number and title instead of the rules rescinded or proposed to be rescinded.

(4) Make payments in accordance with Chapter 5111. of the Revised Code and Chapter 5101:3-3 of the Administrative Code to the NF or ICF-MR for services to individuals eligible and approved for vendor payment under the medicaid program.

(G) ODJFS may terminate, suspend, not enter into, or not renew, the provider agreement upon thirty days written notice to the provider for violations of Chapter 5111. of the Revised Code; Chapters 5101:3-1 and 5101:3-3 of the Administrative Code; and if applicable, subject to Chapter 119. of the Revised Code.

(H) Any NF or ICF-MR violating provisions defined in paragraphs (B)(7) and (B)(8) of this rule will be subject to a penalty in accordance with provisions of section 5111.99 of the Revised Code.

(I) The CDJFS shall use the “facility/CDJFS transmittal” (JFS 09401) to inform the NFs and ICFs-MR of any information regarding a specific individual necessary for maintenance of current and accurate payment records at the CDJFS and the facility.

(J) Exclusions.

The provisions of paragraphs (B)(7) and (B)(8) of this rule do not require an individual to be admitted or retained at the NF or ICF-MR if the individual meets one of the following:

(1) The individual requires a level of care or range of services that the NF or ICF-MR is not certified or otherwise qualified to provide; or

(2) The individual has a medicaid application in pending status and meets the definition of “failure to pay” in this rule.

Effective: 07/01/2005

R.C. 119.032 review dates: 04/15/2005 and 07/01/2010

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.13, 5111.01, 5111.02, 5111.22, 5111.31

Prior Effective Dates: 7/3/80, 7/7/80, 9/1/82, 11/10/83, 1/30/85 (Emer), 7/1/85, 8/1/87, 9/30/87 (Emer), 12/28/87, 3/30/88, 1/1/95, 7/1/97, 9/30/01, 7/1/03

5101:3-3-02.1 Length and type of long term care provider agreements.

(A) Definitions.

(1) “Reasonable assurance period” means a certain period of time, determined by the centers for medicare and medicaid services (CMS), for which a nursing facility operator whose provider agreement has been involuntarily terminated is required to operate without recurrence of the deficiencies that were the basis for termination. Participation in the medicare and medicaid programs may resume only following that period. If corrections were made before submission of a new request for participation, the period of compliance before the new request is counted as part of the period.

(2) “State survey agency” means the agency that is under contract with the state medicaid agency and that inspects long term care facilities for the purposes of survey and certification. The state survey agency in Ohio is the Ohio department of health (ODH). The state medicaid agency in Ohio is the Ohio department of job and family services (ODJFS).

(3) “Time-limited agreement” (TLA) means an agreement that is in effect for a specified period of time.

(B) Effective dates – Skilled nursing facilities (SNFs), nursing facilities (NFs), SNF/NFs and intermediate care facilities for the mentally retarded/developmentally disabled (ICFs-MR/DD).

(1) NFs and SNF/NFs.

(a) Initial certification of NFs and SNF/NFs.

(i) Effective dates of NF and SNF/NF provider agreements generally are assigned by the state survey agency on the basis of findings of compliance or substantial compliance with standards of certification.

(ii) The effective date shall not be earlier than the date on which compliance is documented via the state survey agency’s onsite visits to the institution.

(iii) The effective date of a provider agreement of a nursing facility that participates in the medicaid program as a SNF/NF shall be the same as that of the facility’s medicare provider agreement.

(b) NFs subsequently approved to operate as SNF/NFs.

(i) Upon approval from CMS of a NF to participate in the medicare program as a SNF/NF, ODJFS shall issue a SNF/NF provider agreement.

(ii) The effective date of this provider agreement shall be the same as that of the facility’s medicare provider agreement.

(i) Following involuntary termination of the medicaid provider agreement for a nursing facility, the provider agreement effective date of a facility re-entering the medicaid program shall be the same effective date as the date CMS issues for the facility’s medicare provider agreement.

(ii) Re-entry may occur only after the successful completion of a reasonable assurance period as determined by CMS.

(2) ICFs-MR/DD.

Effective dates of ICFs-MR/DD provider agreements generally are assigned by the state survey agency on the basis of findings of compliance or substantial compliance with standards of certification.

(1) The term of a provider agreement shall be based on the period of certification established by the state survey agency.

(2) The actual term of the agreement may be less than, but shall not exceed, the certification period recommended by the state survey agency.

(3) NFs and SNF/NFs.

(a) NFs and SNF/NFs are governed by open-end provider agreements.

(b) Open-end agreements have no specific expiration date.

(c) Continuation of an open-end provider agreement is contingent upon findings of continued compliance or substantial compliance with certification standards as determined by the state survey agency.

(4) ICFs-MR/DD.

(a) ICFs-MR/DD are governed by closed-end provider agreements, also known as time-limited agreements (TLAs).

(b) TLAs are in effect for a specified period of time, not to exceed twelve months.

(D) Term extensions – ICFs-MR/DD only.

(1) The purpose of term extensions is to allow the state survey agency sufficient time to complete the certification review process and/or the administrative appeals process.

(2) Reasons for term extensions include:

(a) Prevention of irreparable harm to the facility;

(b) Prevention of hardship to residents in the facility; and

(c) Scenarios rendering it impossible to determine, before the original expiration date on the provider agreement, if the facility continues to meet certification requirements.

(3) Conditions of term extensions.

(a) ODJFS may extend the term of an ICF-MR/DD provider agreement for a single time period, not to exceed two months, beyond the original expiration date on the agreement.

(b) ODJFS must receive written notice from the state survey agency before the original expiration date.

(c) The notice from the state survey agency must certify that the extension does not jeopardize the health or safety of residents in the facility.

(E) Conditional agreements and cancellation clauses – ICFs-MR/DD only.

(1) Conditional agreements.

(a) If the state survey agency determines that an ICF-MR/DD is in substantial compliance with medicaid standards but has deficiencies that must be corrected, ODJFS may execute a conditional provider agreement.

(b) ODJFS may execute a conditional agreement for a term of up to twelve full calendar months, subject to an automatic cancellation clause.

(2) Cancellation clause.

(a) The ICF-MR/DD must correct deficiencies within sixty days following the scheduled date of correction as established by the state survey agency.

(b) Post-survey revisits.

(i) If deficiencies are corrected before the cancellation date, the state survey agency may rescind the cancellation notice, and shall notify ODJFS in writing of the decision.

(ii) If deficiencies are not corrected before the cancellation date, the state survey agency may propose termination of the provider agreement.

(3) If deficiencies in an ICF-MR/DD are not corrected, ODJFS may cancel the provider agreement in accordance with division (C) of section 5111.06 of the Revised Code, unless one of the following occurs:

(a) The state survey agency finds that all required corrections have been made, and notifies ODJFS; or

(b) The state survey agency determines that substantial progress has been made in carrying out a plan of correction that has been submitted to and accepted by the state survey agency.

Replaces: 5101:3-3-02.1

Effective: 09/29/2005

R.C. 119.032 review dates: 09/01/2010

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02, 5111.22, 5111.31

Prior Effective Dates: 4/4/77, 12/30/77, 1/1/79, 3/23/79, 8/31/79, 11/1/79, 7/1/80, 7/7/80, 10/1/87, 1/1/95, 5/16/02

5101:3-3-02.2 Termination, denial, and non-renewal of long term care provider agreements.

(A) Written notice.

(1) The Ohio department of job and family services (ODJFS) may terminate, deny, or not renew a provider agreement upon thirty days written notice to the nursing facility (NF) or intermediate care facility for the mentally retarded/developmentally disabled (ICF-MR/DD).

(2) Notices and termination orders must comply with provisions set forth in sections 5111.06 and 5111.51 of the Revised Code.

(B) Reasons for which ODJFS, pursuant to division (B) of section 5111.06 of the Revised Code, may, or shall in certain circumstances, terminate, deny, or not renew a provider agreement.

(1) ODJFS may terminate, deny, or not renew an agreement if, in the judgment of ODJFS, it is in the best interest of the state or the residents of the facility, and if applicable subject to Chapter 119. of the Revised Code.

(2) Cases for which ODJFS may terminate, deny, or not renew an agreement on the basis of best interest include, but are not limited to, the following:

(a) The provider has not fully and accurately disclosed to ODJFS information as required by the provider agreement or any rule contained in division-level 5101:3 of the Administrative Code;

(b) The provider has failed to abide by or to have the capacity to comply with the terms and conditions of the provider agreement and/or rules and regulations promulgated by ODJFS;

(d) The provider has failed to file cost reports as required according to rule 5101:3-3-20 of the Administrative Code;

(e) The provider has made false statements or has altered records, documents, or charts. Alteration does not include properly documented correction of records;

(f) The provider has failed to cooperate or provide requested records or documentation for purposes of an audit or review of any provider activity by any federal, state, or local agency;

(g) The provider has been found in violation of section 504 of the Rehabilitation Act of 1973, as amended; the Civil Rights Act of 1964, as amended; or Public Law 101-336 (the Americans with Disabilities Act of 1990) in relation to the employment of individuals, the provision of services, or the purchase of goods and services;

(h) The attorney general, auditor of state, or any board, bureau, commission, or department has recommended ODJFS terminate the provider agreement where the reason for the request bears a reasonable relationship to the administration of the medicaid program or the integrity of state and/or federal funds;

(i) The provider has violated the prohibition against billing medicaid residents for covered services or factoring as found in rule 5101:3-1-13.1 or 5101:3-1-23 of the Administrative Code;

(j) The provider has failed to ensure a nursing facility’s full participation in the medicare program as a skilled nursing facility (SNF) according to rule 5101:3-3-02.4 of the Administrative Code;

(k) The facility has been found by ODH during a survey of the facility to have an emergency that is the result of a deficiency or cluster of deficiencies, and that constitutes immediate jeopardy;

(l) The provider does not comply with the requirements of section 5111.30 of the Revised Code for the installation of fire extinguishing and fire alarm systems, and with the requirements of section 3721.071 of the Revised Code for the submission of a written fire safety code; and

(m) The provider fails to pay the full amount of a franchise permit fee (FPF) pursuant to sections 3721.541 and 5112.341 of the Revised Code.

(C) Reasons for which ODJFS, pursuant to division (D) of section 5111.06 of the Revised Code, shall terminate, deny, or not renew a provider agreement.

(1) ODJFS shall terminate, deny, or not renew a provider agreement when any of the following apply:

(a) The provider has been terminated, suspended, or excluded by the medicare program and/or by the United States centers for medicare and medicaid services (CMS) and that action is binding on participation in the medicaid program or renders federal financial participation unavailable for participation in the medicaid program. Under these conditions, medicaid termination and payment sanction dates shall be the same as medicare termination and payment sanction dates;

(b) The facility has been decertified by the Ohio department of health (ODH) and/or the United States department of health and human services;

(c) The provider, or its owner, officer, authorized agent, associate, manager, or employee has pled guilty to or been convicted of a criminal offense, found liable in a civil action, or voluntarily settled a civil suit brought pursuant to section 109.85 of the Revised Code;

(d) The provider has committed medicaid fraud as defined in rule 5101:3-1-29 of the Administrative Code;

(e) The provider has pled guilty to or been convicted of a criminal activity materially related to either the medicare or medicaid program; or

(f) Any license, permit, or certificate that is required by ODJFS or the terms of the provider agreement has been denied, suspended, revoked, or not renewed.

(2) If ODH terminates certification of a facility, ODJFS shall terminate the facility’s provider agreement pursuant to division (D) of section 5111.06 and division (B) of section 5111.52 of the Revised Code.

(D) Adjudication order.

(1) ODJFS shall terminate, deny, or not renew an existing provider agreement by issuing an order pursuant to an adjudication conducted in accordance with Chapter 119. of the Revised Code, unless such action occurred as the result of events described in paragraph (C) of this rule.

(2) If ODJFS issues a termination order as the result of events set forth in paragraph (B)(2)(k) of this rule, the termination may take effect prior to or during the pendency of the proceeding under Chapter 119. of the Revised Code.

Replaces: 5101:3-3-02.2

Effective: 09/29/2005

R.C. 119.032 review dates: 09/01/2010

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 109.85, 3721.071, 3721.541, 5111.01, 5111.02, 5111.03, 5111.06, 5111.22, 5111.30, 5111.31, 5111.51, 5111.52, 5111.58, 5111.60, 5112.341

Prior Effective Dates: 4/7/77, 12/30/77, 1/1/79, 3/23/79, 8/31/79, 11/1/79, 7/1/80, 7/7/80, 10/1/87, 1/1/95, 5/16/02

5101:3-3-02.3 Institutions eligible to participate in medicaid as nursing facilities (NFs) or intermediate care facilities for the mentally retarded/developmentally disabled (ICFs-MR/DD).

(A) Definitions.

(1) “Certification” means the process by which the state survey agency certifies its findings to the federal centers for medicare and medicaid services (CMS) or the Ohio department of job and family services (ODJFS) with respect to a facility’s compliance with health and safety requirements of divisions (a), (b),

(c), and (d) of section 1919 of the federal Social Security Act.

(2) “Certified beds” mean beds that are counted in a provider facility that meets medicaid standards. A count of facility beds may differ depending on whether the count is used for certification, licensure, eligibility for medicare or medicaid payment formulas, eligibility for waivers, or other purposes.

(3) “Distinct part” means a portion of an institution or institutional complex that is certified to provide skilled nursing facility (SNF) and/or nursing facility (NF) services, or intermediate care facility for the mentally retarded/developmentally disabled (ICF-MR/DD) services. A distinct part shall be physically distinguishable from the larger institution and fiscally separate for cost reporting purposes. A distinct part may be a separate building, wing, floor, hallway, or one side of a corridor. A hospital-based SNF or NF is a distinct part by definition. A long term care facility with both SNF and NF distinct parts is one facility, even though the distinct parts are certified separately for medicare and medicaid. “Distinct part”, when applied to NFs or SNF/NFs, has the same definition and requirements as in 68 FR 46036, as amended August 4, 2003, and effective October 1, 2003.

(4) “Dually participating” means simultaneous participation of an institution or institutional complex in both the medicare and medicaid programs.

(5) “Dually participating long term care facility” means an institution that participates as both a SNF under the medicare program, and as a NF under the medicaid program. Such a facility is referred to as a SNF/NF.

(6) “Facility” means the entity subject to certification and approval in order for the provider to be approved for medicaid payment. A facility may be an entire institution such as a free-standing nursing home, or may be a distinct part of an institution such as a hospital or continuing care retirement community.

(7) “ICF-MR/DD services” means those services provided to individuals with mental retardation or a related condition requiring active treatment as defined in rule 5101:3-3-07 of the Administrative Code and that are available in facilities certified as intermediate care facilities for individuals with mental retardation or other developmental disabilities by the Ohio department of health (ODH) or by the state survey agency of another state.

(8) “Long term care facility” means a NF, SNF, dually participating SNF/NF, or ICF-MR/DD as defined in division-level 5101:3 of the Administrative Code.

(9) “Long term care institutional services” means those medicaid funded, institutional medical, health, psycho-social, habilitative, rehabilitative, and/or personal care services that may be provided to eligible individuals in a NF, SNF/NF, or ICF-MR/DD.

(10) “NF services” means those services available in institutions, or parts of institutions, that are certified as nursing facilities by ODH or by the state survey agency of another state.

(11) “Religious non-medical health care institution” (RNHCI) means an institution as defined in the Social Security Act, section 1861 (ss) (1), 79 Stat. 286 (1965), 42 U.S.C. 1395x (ss) (1), as amended, such as the “Christian Science RNHCIs” accredited by the “Commission for Accreditation of Christian Science Nursing Organizations/Facilities, Inc.” RNHCIs are subject to conditions of participation in the medicaid program according to C.F.R. Title 42, Chapter IV, part 403, subpart G.

(12) “State survey agency” means the agency designated as the state health standard setting authority, and state health survey agency responsible for certifying and determining compliance of long term care facilities with the requirements for participation in the medicaid program. The state survey agency in Ohio is ODH.

(B) Types of long term care institutional services.

(1) The types of long term care institutional services covered under medicaid are those services provided in compliance with the provisions of Chapter 5101:3 of the Administrative Code and are:

(a) NF services provided to eligible residents requiring either a skilled level of care as set forth in rule 5101:3-3-05 of the Administrative Code or an intermediate level of care as set forth in rule 5101:3-3-06 of the Administrative Code; and

(b) ICF-MR/DD services provided to eligible residents requiring an ICF-MR/DD level of care as set forth in rule 5101:3-3-07 of the Administrative Code.

(2) Institutions not eligible for participation are:

(a) An institution licensed or approved as a tuberculosis hospital;

(b) A prison, juvenile criminal facility, or an institution used to incarcerate individuals involuntarily who have committed a violation of a criminal or civil law; and

(c) An institution for mental disease, as defined in rule 5101:3-3-06.1 of the Administrative Code, for persons under sixty-five years old.

To participate in the Ohio medicaid program and receive payment from ODJFS for long term care institutional services to eligible residents, operators of long term care facilities shall meet all of the following requirements:

(1) Operate an institution that meets the licensure, registration, and other applicable state standards as set forth in this rule;

(2) Operate an institution certified by ODH or by the state survey agency of another state as being in compliance with applicable federal regulations for medicaid participation as a NF with a minimum of four NF certified beds, or as an ICF-MR/DD with a minimum of four ICF-MR/DD certified beds, as set forth in this rule; and

(3) Operate an institution for which a current, completed, and signed JFS 03623 “Ohio Medicaid Provider Agreement (for Long Term Care Facilities: SNF/NFs and ICFs-MR/DD)” (rev. 7/2005) is on file with ODJFS.

(D) Qualified types of Ohio NFs.

(1) To be eligible for certification as a NF, an institution shall qualify as one of the following:

(a) A nursing home licensed by ODH under section 3721.02 of the Revised Code, or a nursing home licensed by a political subdivision certified under section 3721.09 of the Revised Code, such as the Cincinnati department of health. Licensed nursing homes eligible for medicaid certification include:

(i) RNHCIs; and

(ii) Veterans’ homes operated under Chapter 5907. of the Revised Code; or

(b) A county home, county nursing home, or district home owned by the county and operated by the county commissioners in accordance with Chapter 5155. of the Revised Code, or operated by the board of county hospital trustees in accordance with section 5155.011 of the Revised Code;

(c) A unit of any hospital registered under section 3701.07 of the Revised Code that contains beds categorized before August 5, 1989, as skilled nursing facility beds per section 3702.52.2 of the Revised Code; or

(d) A unit of any hospital registered under section 3701.07 of the Revised Code that contains beds categorized as long term care beds as defined in rule 3701-59-01 of the Administrative Code.

(E) Mandatory dual participation.

(1) To participate as a NF, all Ohio facilities shall comply with the provisions in rule 5101:3-3-02.4 of the Administrative Code regarding dual participation in the medicare program as a SNF/NF.

(2) Institutions exempt from mandatory dual participation are:

(a) Veterans’ homes operated under Chapter 5907 of the Revised Code; and

(b) RNHCIs.

(F) Qualified types of Ohio ICFs-MR/DD.

(1) To be eligible for certification as a ICF-MR/DD, an institution shall qualify as one of the following:

(a) A residential facility licensed by the Ohio department of mental retardation and developmental disabilities (ODMR/DD) in accordance with section 5123.19 of the Revised Code and rules adopted pursuant to Chapter 5123. of the Revised Code, with an operator who has received development approval from ODMR/DD to operate the residential facility as an ICF-MR/DD under one of the following conditions:

(i) An operator has requested a new residential facility license from ODMR/DD and obtained development approval from ODMR/DD, pursuant to rule 5123:2-16-01 of the Administrative Code, to operate the facility as an ICF-MR/DD; or

(ii) An operator of an existing residential facility who has received development approval from ODMR/DD to operate a facility other than an ICF-MR/DD, and has submitted a new request to ODMR/DD for development approval that specifies the plan to modify the type or source of funding for the facility, and has received development approval from ODMR/DD, pursuant to rule 5123:2-16-01 of the Administrative Code, to operate the facility as an ICF-MR/DD; or

(b) As described in section 5123.19.2 of the Revised Code, a nursing home or portion of a nursing home licensed by ODH that holds beds initially certified as ICF-MR/DD beds before June 30, 1987 that continue to be certified as ICF-MR/DD beds; or

(c) A county home, county nursing home, or district home operated in compliance with Chapter 5155. of the Revised Code that was certified as an ICF-MR/DD before January 20, 2005.

(G) Certification of NFs and beds subject to certification survey.

(1) Certification.

A facility’s certification as a NF by ODH or by the state survey agency of another state governs the types of services the operator of the facility may provide.

(2) Provider agreements.

(a) A provider agreement with the operator of an Ohio NF or SNF/NF shall include any part of the facility that meets standards for certification of compliance with federal and state laws and rules for participation in the medicaid program.

(b) Exceptions to this provision are NFs or SNFs that between July 1, 1987 and July 1, 1993 added beds licensed as nursing home beds under Chapter 3721. of the Revised Code. Such facilities are not required to include those beds in a provider agreement, unless otherwise required by federal law.

(3) Beds subject to certification survey.

(a) All beds in a medicaid participating NF or SNF/NF, except those licensed nursing home beds added between July 1, 1987 and July 1, 1993, shall be surveyed to determine compliance with the applicable certification standards and, if certifiable, included in the provider agreement as NF or SNF/NF beds.

(b) Beds that could quality as NF or SNF/NF beds and were added between July 1, 1987 and July 1, 1993 may be surveyed for compliance at the discretion of the operator. Such facilities are not required to include those beds in a provider agreement, unless otherwise required by federal law.

(4) The only other basis for allowing nonparticipation of a portion of an Ohio NF or SNF/NF that is not hospital-based is certification of noncompliance by ODH.

(H) Certification of ICFs-MR/DD and beds subject to certification survey.

(1) Certification.

A facility’s certification as an ICF-MR/DD by ODH or by the state survey agency of another state governs the types of services the facility may provide.

(2) Provider agreements.

A provider agreement with an Ohio ICF-MR/DD shall include any part of the facility that meets standards for certification of compliance with federal and state laws for participation in the medicaid program.

(3) Emergency services.

(a) Waiver of licensed capacity.

(i) To accommodate persons in emergency need of services, the ODMR/DD may issue to the operator of a licensed residential facility a waiver of licensed capacity.

(ii) A waiver of licensed capacity is time-limited and temporarily permits the operator to exceed the maximum number of licensed beds.

(b) Institutional respite care.

(i) A waiver of licensed capacity may be made specifically in order to provide institutional respite care as a prior authorized service to persons enrolled on a home and community based services (HCBS) waiver in accordance with division-level 5101:3 of the Administrative Code.

(ii) Beds designated for institutional respite care for HCBS enrollees shall not be included in the provider agreement.

(4) Beds subject to certification survey.

(a) All beds in a medicaid-participating ICF-MR/DD that are not designated for institutional respite care for persons enrolled on an HCBS waiver shall be surveyed to determine compliance with the applicable certification standards.

(b) If the beds are certifiable, they shall be included in the provider agreement.

(c) Beds authorized through a waiver of residential facility licensed capacity in accordance with rule 5123:2-16-01 of the Administrative Code that are used to provide ICF-MR/DD services shall be included in the provider agreement.

(d) The only other basis for allowing nonparticipation of a portion of an Ohio ICF-MR/DD is certification of noncompliance by ODH.

(I) Requirements for out-of-state providers of long term care institutional services.

(1) To participate in the Ohio medicaid program and receive payment from ODJFS for long term care institutional services to eligible Ohio residents, an operator of a long term care facility located outside Ohio shall meet all of the following requirements in their state of origin:

(a) The operator of the facility shall hold a valid state-required license, registration, or equivalent from the respective state that specifies the level(s) of care the facility is qualified to provide; and

(b) The operator of the facility shall hold a valid and current medicaid provider agreement from the respective state as a NF, SNF/NF, or ICF-MR/DD provider type.

(2) Additionally, out-of-state providers shall meet the following Ohio requirements:

(a) The operator of the facility shall have a current, completed and signed JFS 03623 “Ohio Medicaid Provider Agreement (for Long Term Care Facilities: SNF/NFs and ICFs-MR/DD)” on file with ODJFS; and

(b) The operator of the facility shall obtain resident-specific and date-specific prior authorization from ODJFS in accordance with rule 5101:3-1-11 of the Administrative Code.

Replaces: 5101:3-3-02.3

Effective: 09/29/2005

R.C. 119.032 review dates: 09/01/2010

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02, 5111.22, 5111.31, 5123.19

Prior Effective Dates: 4/7/77, 7/1/80, 8/1/82, 1/30/85 (Emer), 6/1/85, 9/30/87 (Emer), 9/30/93 (Emer), 1/1/94, 1/1/95, 7/1/00, 5/16/02, 7/1/03, 1/20/05

5101:3-3-02.4 Mandatory participation by nursing facilities (NFs) in the medicare program.

(A) Definitions.

(1) For purposes of this rule, the terms “certified beds,” “distinct part,” “dually participating,” “facility,” and “religious non-medical health care institution” (RNHCI) are defined in rule 5101:3-3-02.3 of the Administrative Code.

(2) For purposes of this rule, the term “reasonable assurance period” is defined in rule 5101:3-3-02.1 of the Administrative Code.

(3) “Fully participating” means participation of an institution in its entirety, either in the medicare or medicaid program, or both. A fully participating skilled nursing facility (SNF) is one in which every bed is certified for participation in medicare. A fully participating nursing facility (NF) is one in which every bed is certified for participation in medicaid. A fully participating SNF/NF is one in which every bed is certified for participation in both medicare and medicaid.

(B) Mandatory SNF participation and exceptions.

(1) Operators of Ohio NFs shall have all medicaid-certified beds as counted in the medicaid provider agreement also certified under medicare as SNF beds, in accordance with the provisions of this rule.

(2) Exceptions to mandatory SNF participation are:

(a) RNHCIs;

(b) Veteran’s homes operated under Chapter 5907. of the Revised Code; and

(c) A NF that has distinct part beds that are not required or permitted to participate in medicaid in accordance with paragraph (G) of rule 5101:3-3-02.3 of the Administrative Code or section 3702.52.2 of the Revised Code. These beds are excluded from the requirement to be both dually and fully participating SNF/NF certified beds.

(C) SNF/NFs that are both dually and fully participating are in compliance. Operators of Ohio NFs currently holding a medicaid provider agreement under which all medicaid-certified beds are also medicare-certified are in compliance with the requirement for NFs to be both dually and fully participating SNF/NFs.

(D) Transition of currently participating NFs and SNF/NFs to fully participating medicaid and medicare facilities.

(1) Transition of NFs to both dually and fully participating SNF/NFs.

(a) On or prior to January 1, 2007, all NFs except those described in paragraphs (B) (1) through (B) (3) of this rule must become both dually and fully participating medicare and medicaid SNF/NFs. For non-excluded facilities, every medicaid-certified NF bed must also be medicare-certified as a SNF bed in order for the operator of the facility to continue to hold a medicaid provider agreement with the Ohio department of job and family services (ODJFS).

(b) Operators of facilities with medicaid-certified beds in a NF must request medicare certification as a SNF from the United States department of health and human services, centers for medicare and medicaid services (CMS). The facility shall meet the conditions for medicare participation and be medicare-certified on or before January 1, 2007.

(c) After ODJFS is notified by CMS that the request for medicare certification has been approved, a SNF/NF provider agreement shall be issued by ODJFS using the medicare SNF’s effective date of certification.

(d) ODJFS may terminate a NF provider agreement in accordance with rule 5101:3-3-02.2 of the Administrative Code if the operator has not obtained medicare certification for all medicaid-certified beds with an effective date on or before January 1, 2007.

(2) Transition of dually participating SNF/NFs to both dually and fully participating SNF/NFs in both the medicare and medicaid programs.

(a) On or prior to January 1, 2007, all SNF/NFs that are operated with distinct part SNF beds, and therefore do not have all their NF beds participating as SNFs (except those NFs described in paragraph (B) of this rule), shall become fully participating medicare and medicaid SNF/NFs. For non-excluded facilities, every medicaid-certified bed in a SNF/NF shall also be medicare-certified as a SNF bed in order for the operator of the facility to continue to hold a medicaid provider agreement with ODJFS.

(b) Operators of SNF/NFs that have medicaid-certified beds that are not also medicare-certified shall submit a request to CMS for full participation in the medicare program. The procedure for this change in bed capacity is governed by CMS medicare policy, and the effective date of the change is determined by CMS on a prospective basis. A SNF may not self-designate the effective date of a change in bed capacity.

(c) After ODJFS is notified by CMS that the request for a bed change has been approved, a letter shall be issued by ODJFS reflecting the addition of medicare beds to the provider agreement. This letter must be attached to the provider agreement to show the certified bed capacity of the facility.

(d) ODJFS may terminate a SNF/NF provider agreement in accordance with rule 5101:3-3-02.2 of the Administrative Code if the operator has not obtained medicare certification for all medicaid-certified beds with an effective date on or before January 1, 2007.

(E) Enrollment of new facilities in the medicaid program.

(1) On or after October 1, 2005, operators of Ohio facilities requesting participation in the medicaid NF program must provide documentation that they have requested full participation in the medicare SNF program.

(2) On or after October 1, 2005, operators of Ohio facilities requesting participation in the medicaid NF program that have been recommended for medicaid certification by the Ohio department of health (ODH) and that have provided documentation that they have requested full participation in the medicare SNF program, may be issued a fully participating NF medicaid provider agreement with an effective date determined in accordance with rule 5101:3-3-02.1 of the Administrative Code.

(3) After ODJFS is notified by CMS that a facility operator’s request for medicare certification has been approved, a SNF/NF provider agreement may be issued by ODJFS using the medicare SNF’s effective date of certification in accordance with rule 5101:3-3-02.1 of the Administrative Code.

(4) If ODJFS is notified by CMS that a facility operator’s request for medicare participation has been denied and all appeals have been exhausted, ODJFS shall terminate the NF’s provider agreement in accordance with rule 5101:3-3-02.2 of the Administrative Code.

(F) Readmission of an Ohio facility to the medicaid program.

(1) On or after October 1, 2005, a facility operator requesting readmission to the medicaid program must provide documentation of the request for admission or readmission and full participation in the medicare SNF program.

(2) Effective April 1, 2006:

(a) If a facility’s participation in the medicaid program ends due to voluntary withdrawal from participation by the operator, and the operator requests readmission to the medicaid NF program, enrollment will be processed in the same manner as for a new facility as set forth in paragraph (E) of this rule.

(b) If a facility’s participation in the medicaid program ended due to involuntary termination, cancellation, or non-renewal by ODJFS, and ODH recommends that the facility receive certification, ODJFS may issue a provider agreement that begins on or after the effective date of medicare certification or recertification. If CMS has imposed a reasonable assurance period prior to re-entry to the medicare program, the reasonable assurance period also shall be imposed for medicaid enrollment purposes.

(G) Facilities undergoing a change of operator. If a SNF/NF undergoes a change of operator that results in a change of provider agreement, the entering operator must either accept assignment of the exiting operator’s provider agreement and survey results, or refuse assignment and undergo a new certification survey. An operator may accept or refuse assignment of the medicare provider agreement and/or the medicaid provider agreement.

(1) If an entering operator of a SNF/NF accepts assignment of both the medicare and medicaid provider agreements of the exiting operator, ODJFS shall issue a SNF/NF provider agreement to the entering operator. The entering operator must continue to operate a dually participating facility that fully participates in both the medicare and medicaid programs.

(2) If an entering operator of a SNF/NF refuses to accept assignment of the exiting operator’s medicare provider agreement, but does accept assignment of the exiting operator’s medicaid provider agreement, the entering operator must meet requirements for medicare participation in the same manner as for a new facility as set forth in paragraph (E) of this rule.

(3) If an entering operator of a SNF/NF refuses to accept assignment of the exiting operator’s medicaid provider agreement, ODJFS shall terminate the agreement of the exiting operator. To enter the medicaid program, the entering operator must apply for medicaid participation as a new facility. Upon notice of certification approval from ODH, ODJFS may issue a medicaid provider agreement to the entering operator in the same manner as for new facilities as set forth in paragraph (E) of this rule.

Effective: 09/29/2005

R.C. 119.032 review dates: 09/01/2010

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02

5101:3-3-02.7 Emergency management and resident relocation plan for long term care facilities.

(A) Each nursing facility (NF) and intermediate care facility for the mentally retarded (ICF-MR) must have a written plan to be followed in case of an emergency (explosion, fire, severe weather, or other internal and external disasters) that may require relocation of residents. The plan must be clearly communicated and reviewed with the facility’s staff. The plan must include instructions for resident care; notification procedures for contacting physicians, family, guardians, and other individuals responsible for the residents; and procedures arranging for transportation, hospitalization, and/or other appropriate services.

(B) Within one working day of the onset of the emergency, the NF or ICF-MR must notify the resident’s family, guardian, or sponsor; the county department of job and family services; and the Ohio department of job and family services.

Replaces: 5101:3-3-17

Effective: 07/01/2006

R.C. 119.032 review dates: 07/01/2011

Promulgated Under: 119.03

Statutory Authority: 5111.02, 5111.36

Rule Amplifies: 5111.21, 5111.53

Prior Effective Dates: 1/1/80, 1/1/95, 5/16/02

5101:3-3-04 Payment during the Ohio department of jobs and family services (ODJFS) administrative appeals process for denial or termination of a provider agreement.

(A) When ODJFS is required to provide an adjudicatory hearing pursant pursuant to Chapter 119. of the Revised Code, payment shall continue for medicaid-covered services provided to eligible residents during the appeal of, and the proposed termination or non-renewal of, a nursing facility (NF) or an intermediate care facility for the mentally retarded (ICF-MR) provider agreement. Payment shall not be made under this provision for services rendered on or after the effective date of ODJFS issuance of a final order of adjudication pursuant to Chapter 119. of the Revised Code, except as provided in paragraph (B) of this rule.

(B) Payment may be provided up to thirty days following the effective date of termination or non-renewal of a NF or ICF-MR provider agreement; or after an administrative hearing decision that upholds the ODJFS termination or non-renewal action. Payment will be available if both of the following conditions are met:

(1) Residents were admitted to the NF or ICF-MR before the effective date of termination or expiration; and

(2) The NF or ICF-MR cooperates with the state, local, and federal entities in the effort to transfer residents to other NFs, ICFs-MR, institutions, or community programs that can meet the residents’ needs.

(C) When ODJFS acts under instructions from the United States department of health and human services, payment ends on the termination date specified by that agency.

Effective: 07/01/2008

R.C. 119.032 review dates: 04/02/2008 and 07/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02, 5111.06, 5111.21

Prior Effective Dates: 3/18/1988 (Emer.), 6/16/1988, 1/1/1995, 7/1/2000, 7/1/2003

5101:3-3-04.1 Payment to nursing facilities (NFs) and intermediate care facilities for the mentally retarded (ICFs-MR) during the survey agency's administrative appeals process.

(A) For the purposes of this rule, the following definitions shall apply:

(1) “State survey agency” means for the purpose of medicaid certification, the Ohio department of health (ODH).

(2) “Effective date of termination” means the date set by the state survey agency or the United States department of health and human services for the termination of certification.

(3) For ICFs-MR “effective date of expiration” means date of expiration originally specified in the provider agreement, or the later date specified, if the provider agreement is extended by the Ohio department of jobs job and family services (ODJFS), pursuant to a request by the state survey agency in accordance with federal regulations.

(4) For ICFs-MR “informal reconsideration” is the process by which facilities may refute in writing, prior to the termination or non-renewal of medicaid certification, the state survey agency’s findings on which the termination or non-renewal is based. The facility must receive a written response to the informal reconsideration request which either affirms or reverses the survey decisions. An “informal reconsideration” is a process independent of the formal appeal. The facility may or may not choose to utilize the “informal reconsideration.”

(B) When medicaid certification is either terminated or not renewed, ODJFS must also either terminate or not renew the medicaid provider agreement.

(1) During the appeals process provided by the state survey agency for the proposed termination or non-renewal of certification, payment for covered services provided to eligible residents is available if:

(a) Payment is for those residents admitted prior to the effective date of an order issued under sections 5111.46, 5111.48, 5111.51, and 5111.57 of the Revised Code, placing a ban on admissions to medicaid eligible residents and/or for certain diagnostic groups with specialized care needs; and

(b) The appeal is conducted prior to the effective date of termination or non-renewal.

(2) If the NF appeal process results in an adjudication order that upholds the ODH action or if the administrative hearing is not completed prior to the certification termination/non-renewal date, payment for services provided to eligible residents may be available for an additional thirty days if:

(a) The eligible resident was admitted prior to the termination/non-renewal date and prior to any ban on admissions as described in paragraph (C)(1)(a) of this rule; and

(b) The NF cooperates with the state, local, and federal entities in the effort to transfer residents to other NFs, institutions, or community programs that can meet the residents’ needs.

(3) If a NF’s appeal of the termination or non-renewal of its certification is upheld, payment for covered services provided to eligible residents is resumed. If the appeal decision is reached after the termination/non-renewal date, payment is made retroactive to the date of termination.

(D) The following sections are specific to ICFs-MR:

(1) In addition to or in conjunction with the appeals process, the ICF-MR may request an “informal reconsideration.” If the “informal reconsideration” results in an affirmation of the original survey findings, the appeals process moves forward to the administrative hearing if one was requested. If the “informal reconsideration” results in a reversal of the original survey findings, the state agency’s termination/non-renewal action, based on those original findings, is dismissed.

(2) During the appeals process provided by the state survey agency for the proposed termination, and/or non-renewal of medicaid certification for an ICF-MR, payment under regulations for covered services provided to eligible residents shall continue through the earlier of the following:

(a) The date of issuance of a final order of adjudication that upholds the state survey agency’s termination or non-renewal action; or

(b) The one hundred twentieth day after the effective date of termination of the ICF-MR’s provider agreement, or if the ICF-MR provider agreement is not terminated, the one hundred twentieth day after the effective date of expiration, as defined in paragraph (A) of this rule.

(3) Payment may be provided up to an additional thirty days following either the cessation of payment on the one hundred twentieth day post termination or non-renewal date; or after the issuance of an adjudication order that upholds the ODH termination or non-renewal action. Payment will be available if both of the following conditions are met:

(a) Payment is for residents admitted to the ICF-MR before the effective date of termination or non-renewal; and

(b) The ICF-MR cooperates with the state, local, and federal entities in the effort to transfer residents to other ICFs-MR, institutions, or community programs that can meet the residents’ needs.

(E) The following apply to both NFs and ICFs-MR:

(1) When ODJFS acts under instructions from the United States department of health and human services, payment ends on the date specified by that agency.

(2) When the state survey agency certifies that there is jeopardy to residents’ health and safety by issuing an order under Chapter 5111. of the Revised Code, or when it fails to certify that there is no jeopardy, payment will end on the effective date of termination, or in the case of an ICF-MR, if it is earlier, the expiration of the provider agreement.

Effective: 07/01/2008

R.C. 119.032 review dates: 04/02/2008 and 07/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02, 5111.21

Prior Effective Dates: 3/18/1988 (Emer.), 6/16/1988, 1/1/1995, 7/1/2000, 7/1/2003

5101:3-3-05 Skilled level of care (SLOC).

(A) This rule sets forth the criteria used to determine whether an individual who is seeking medicaid payment for long term care needs services at the skilled care level. The term “skilled care”, as defined and used in this rule, has no relationship to the provision of either skilled nursing services under the rules governing private duty nursing set forth in Chapter 5101:3-8 of the Administrative Code or skilled care as defined under the medicare program provisions of the Social Security Act as amended.

(B) Definitions.

(1) “Individual” has the same meaning as in rule 5101:3-3-15 of the Administrative Code.

(2) “Instability of the individual’s condition” means that an individual’s condition changes frequently and/or rapidly, so that constant monitoring and/or the frequent adjustment of treatment regimens is required. An individual is considered to have an unstable medical condition if one of the following conditions is met:

(a) The physician has ordered that the nurse or therapist monitor and evaluate the individual’s condition on an ongoing basis and make any necessary adjustments to the treatment regimen, and the nursing or therapist’s progress notes indicate that such interventions or adjustments have been both necessary and made; or

(b) The physician’s orders dealing with the individual’s unstable condition reflect that changes and/or adjustments have been made at least monthly.

(3) “Skilled care level” means that an individual receives at least one skilled nursing service at least seven days per week, and/or a skilled rehabilitation service at least five days per week. For the delivery of skilled services to qualify for the skilled care level, the services must be ordered by a physician, and must be delivered by the licensed or certified professional due to either:

(a) The instability of the individual’s condition and the complexity of the prescribed service; or

(b) The instability of the individual’s condition and the presence of special medical complications.

(4) “Skilled nursing services” are those specific tasks which must, in accordance with Chapter 4723. of the Revised Code, be delivered by a licensed practical nurse (LPN) under the supervision of a registered nurse (RN), or by an RN.

(5) “Skilled rehabilitation services” are those specific tasks which must, in accordance with Title 47 of the Revised Code, be delivered directly by licensed or other appropriately certified technical or professional health care personnel.

(C) An individual may be determined to require a skilled level of care (SLOC) only if both of the following conditions are met:

(1) The individual’s physical and mental condition and resulting service needs have been evaluated and compared to all of the possible levels of care (in accordance with rule 5101:3-3-15 of the Administrative Code) and it has been determined that:

(a) The individual requires services beyond the minimum of those of protective care (set forth in rule 5101:3-3-08 of the Administrative Code); and

(b) The individual requires services beyond the minimum of those of intermediate care (set forth in rule 5101:3-3-06 of the Administrative Code); and/or

(c) The individual requires services beyond the minimum of those of an intermediate care facility for the mentally retarded developmentally disabled level of care (ICF-MR/DD LOC) (set forth in rule 5101:3-3-07 of the Administrative Code); and

(2) At least one of the following applies:

(a) The individual’s condition necessitates, and the individual’s physician has ordered, that at least one skilled nursing service (as defined in paragraph (B)(4) of this rule) be provided at the skilled care level (as defined in paragraph (B)(3) of this rule);

(b) The individual’s condition necessitates, and the individual’s physician has ordered, that at least one skilled rehabilitation service (as defined in paragraph (B)(5) of this rule) be provided at the skilled care level (as defined in paragraph (B)(3) of this rule); however

(3) An individual who meets the requirements of paragraphs (C)(1)(c) and (C)(2) of this rule may be determined to require an SLOC unless the individual has applied to a specific intermediate care facility for the mentally retarded (ICF-MR) that is equipped to provide services at the skilled care level (as defined in paragraph (B)(3) of this rule). An individual who has applied to an ICF-MR that is equipped to provide services at the skilled care level may be determined to require an ICF-MR/DD LOC if there is written certification that the facility can meet the individual’s skilled care needs.

Effective: 07/01/2008

R.C. 119.032 review dates: 04/07/2008 and 07/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02, 5111.204

Prior Effective Dates: 7/1/80, 10/1/93 (Emer.), 12/31/93

5101:3-3-06 Intermediate level of care (ILOC).

(A) This rule sets forth the criteria used to determine whether an individual who is seeking medicaid payment for long term care services needs an intermediate level of care (ILOC).

(B) Definitions.

(1) “Activity of daily living (ADL)” means a personal or self-care skill performed, with or without the use of assistive devices, on a regular basis that enables the individual to meet basic life needs for food, hygiene, and appearance. For purposes of this rule, the term “ADL” may refer to any of the following:

(a) “Mobility” is the ability to use fine and gross motor skills to reposition or move oneself from place to place, with or without the use of assistive devices. Mobility includes all of the following:

(i) “Bed mobility,” the ability to move to and/or from a lying position, turn from side to side, or otherwise position the body while in bed;

(ii) “Transfer,” the ability to move between surfaces (e.g. to/from bed, chair, wheelchair, standing position, etc.); or

(iii) “Locomotion,” the ability to move between locations by ambulation or by other means.

(b) “Bathing” is the ability to cleanse one’s body by showering, tub or sponge bath, or any other generally accepted method, and may be performed with or without the use of assistive devices.

(d) “Toileting” is the ability to appropriately eliminate and dispose of bodily waste, with or without the use of assistive devices or appliances. Toileting may include the use of a commode, bedpan, or urinal, the ability to change an absorbent pad, and to appropriately cleanse the perineum; and/or the ability to manage an ostomy or catheter;

(e) “Dressing” is the ability to put on, fasten, and take off all items of clothing, including the donning and/or removal of prostheses;

(f) “Eating” is the ability to feed oneself. Eating includes the processes of getting food into one’s mouth, chewing, and swallowing, and/or the ability to use and self-manage a feeding tube.

(2) “Assistance” means the hands-on provision of help in the initiation and/or completion of a task.

(3) “Individual” has the same meaning as in rule 5101:3-3-15 of the Administrative Code.

(4) “Medication administration” means the ability to prepare and self-administer all forms of over the counter and prescription medication.

(5) “Supervision” means either of the following:

(a) Reminding an individual to perform or complete an activity; or

(b) Observing while an individual performs an activity to ensure the individual’s health and safety.

(C) An individual may be determined to require an intermediate level of care (ILOC) only if both of the following conditions are met:

(a) The individual requires services beyond the minimum required for a protective level of care (set forth in rule 5101:3-3-08 of the Administrative Code); but,

(b) The individual’s condition and/or corresponding service needs do not meet the minimum criteria for a skilled level of care set forth in rule 5101:3-3-05 of the Administrative Code; and,

(c) The individual’s condition and/or service needs do not meet the criteria for an intermediate care facility for the mentally retarded developmentally disabled level of care (ICF-MR/DD LOC) set forth in rule 5101:3-3-07 of the Administrative Code; and

(2) At least one of the following applies:

(a) The individual requires hands-on assistance with the completion of at least two activities of daily living;

(b) The individual requires hands-on assistance with the completion of at least one activity of daily living; and is unable to perform self-administration of medication and requires that medication administration be performed by another person;

(c) The individual requires one or more skilled nursing or skilled rehabilitation services (as defined in paragraphs (B)(4) and (B)(5) of rule 5101:3-3-05 of the Administrative Code) at less than a skilled care level (as defined in paragraph (B)(3) of rule 5101:3-3-05 of the Administrative Code); or

(d) Due to a cognitive impairment, including but not limited to dementia (as defined in rule 5101:3-3-15.1 of the Administrative Code), the individual requires the presence of another person, on a twenty-four-hour-a-day basis for the purpose of supervision to prevent harm.

Effective: 07/01/2008

R.C. 119.032 review dates: 04/07/2008 and 07/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02, 5111.204

Prior Effective Dates: 11/10/83, 10/1/93(Emer.), 12/31/93

5101:3-3-06.1 Institutions for mental diseases (IMDs).

(A) Section 1905 (a) of the Social Security Act provides that federal financial participation (FFP) is not available for any medical assistance for individuals who are in an institution for mental disease (IMD) unless the payments are for inpatient hospital or nursing facility (NF) services for individuals sixty-five years of age or older, or for inpatient psychiatric hospital services for individuals under age twenty-two. The purpose of this rule is to set forth the process by which the Ohio Ohio department of job and family services (ODJFS) shall identify nursing facilities (NFs) that are at risk of becoming IMDs, the preventive measures to be taken by ODJFS when such facilities have been identified, and the course of action to be taken if a NF is identified as an IMD.

(B) Definitions.

(1) “At risk facility”. A NF is considered to be an at risk facility if it meets two or more of the IMD evaluation criteria set forth in paragraph (C)(2)(b) of this rule but has not been determined to meet the definition of IMD set forth in paragraph (B)(2) of this rule.

(2) “Institution for mental diseases (IMD)” means a hospital, nursing facility, or other institution of more than sixteen beds that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care and related services. A NF is considered to be an IMD if its overall character is that of a facility established and maintained primarily for the care and treatment of individuals with mental diseases, whether or not it is licensed as such. An intermediate care facility for the mentally retarded (ICF-MR) is not an IMD.

(3) “Mental diseases” means diseases listed as mental disorders in the “International Classification of Diseases, Ninth Edition, Modified for Clinical Applications” (ICD-9-CM), or the most recent edition, with the exception of mental retardation, senility, and organic brain syndrome.

(4) “Potentially at risk of becoming an IMD”. A NF is considered to be potentially at risk of becoming an IMD if any one of the following applies:

(a) The NF is licensed as a mental nursing home as defined in rule 3701-17-01 of the Administrative Code;

(b) The NF was identified as an at risk facility during a prior IMD review; or

(c) Forty-five per cent or more of the NF’s residents have been determined to need specialized services for serious mental illness by the Ohio department of mental health (ODMH) in accordance with rules 5101:3-3-15.1, 5101:3-3-15.2 and 5122-21-03 of the Administrative Code.

(1) ODJFS shall identify and maintain a list of NFs that are potentially at risk of becoming IMDs.

(2) IMD reviews shall be conducted for any potentially at risk facility on the list.

(a) IMD reviews shall be scheduled as follows:

(i) ODJFS shall schedule and complete an initial on-site IMD review of any NF that is newly identified as meeting the criteria set forth in paragraphs (B)(4)(a) and/or (B)(4)(c) of this rule. Initial reviews shall be completed within sixty calendar days following the identification of the NF’s potentially at risk status;

(ii) ODJFS shall conduct annual on-site IMD reviews in each potentially at risk facility for at least two consecutive years after it is identified as potentially at risk of becoming an IMD.

(b) IMD review criteria. The following criteria shall be used to evaluate the overall character of a NF:

(i) Whether the NF is licensed as a psychiatric facility. For purposes of this rule, this includes licensure as a mental nursing home in accordance with rule 3701-17-01 of the Administrative Code;

(ii) Whether the NF is accredited as a psychiatric facility by the “Joint Commission on the Accreditation of Healthcare Organizations” (JCAHO);

(iii) Whether the NF is under the jurisdiction of the (ODMH);

(iv) Whether the NF specializes in providing psychiatric and/or psychological care and treatment, as evidenced by any of the following indicators:

(a) Fifty per cent or more of individuals residing in the NF have medical records indicating that they are receiving psychiatric/psychological care and treatment;

(b) Fifty per cent or more of the NF’s staff have specialized psychiatric/psychological training; or

(v) Whether the current need for institutionalization for more than fifty per cent of all the individuals residing in the NF results from mental diseases. In determining whether this criterion is met, the reviewer must consider whether more than fifty per cent of individuals residing in the NF have serious mental illness (as defined in rule 5101:3-3-15.1 of the Administrative Code) and have been determined by ODMH to need specialized services for serious mental illness in accordance with rule 5101:3-3-15.1 or 5101:3-3-15.2 , and rule 5122-21-03 of the Administrative Code.

(i) The NF is not at risk of becoming an IMD;

(ii) The NF is an at risk facility as defined in paragraph (B)(1) of this rule; or

(iii) The facility is determined to be an IMD.

(D) ODJFS action pursuant to IMD review results. Upon completion of the IMD review, ODJFS shall proceed with the follow-up activities corresponding to the determination that was made for the NF:

(1) For NFs determined not to be at risk of becoming an IMD:

(a) Any NF that is determined not to meet the criteria for potential risk shall be notified and removed from the list of facilities that are potentially at risk of becoming an IMD.

(b) Any NF determined to be potentially at risk of becoming an IMD but that does not meet at least two of the IMD review criteria set forth in paragraph (C)(2)(b) of this rule shall be notified of its status as a potentially at risk facility and that it shall continue to be subject to annual IMD reviews, and retained on the list of facilities that are potentially at risk of becoming an IMD.

(2) NFs determined to be at risk of becoming an IMD shall be notified of the determination, offered the opportunity to receive technical assistance to prevent them from becoming IMDs, and shall be monitored closely by ODJFS following the at risk determination. Such monitoring may include the performance of additional, unannounced, on-site IMD reviews by ODJFS.

(3) For NFs determined to be an IMD:

(a) The NF shall be notified by certified mail of the determination, that eligibility to receive medicaid vendor payment shall be terminated with respect to all individuals residing in that NF who are under age sixty-five, and that it has ten working days from the date the notice was mailed to exercise its appeal rights pursuant to paragraph (B) of rule 5101:3-1-57 of the Administrative Code;

(b) If the facility requests a reconsideration pursuant to paragraph (B) of rule 5101:3-1-57 of the Administrative Code, eligibility to receive vendor payment will continue until the issuance of a final decision by ODJFS.

(c) On the eleventh day following the date the IMD determination notice was mailed to the NF, or upon issuance of a final decision by ODJFS, if the IMD determination is upheld on appeal, ODJFS shall notify the county department of human services in writing, to initiate the process for termination of the vendor payment and a redetermination of the residents’ continued eligibility for medicaid and to provide notice of all applicable appeal rights to all affected residents of that IMD in accordance with Chapters 5101:6-1 to 5101:6-9 of the Administrative Code.

(E) A NF which has been determined to be an IMD may, following a period of not less than six months, submit a written request that ODJFS conduct a redetermination survey when changes have been made in its overall character such that the administrator of the facility believes it would no longer qualify as an IMD. ODJFS shall respond to such requests by conducting a redetermination survey within sixty days