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 county 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 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:

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”. An 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 change 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) 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, ODJFS shall notify affected persons by posting on the ODJFS website the full text of rules governing the facility’s participation as a medicaid provider. ODJFS may also send an email notice of the rule action to all persons whose name or contact information appears on a distribution list maintained by ODJFS. Persons may voluntarily submit an email address on an ODJFS maintained website in order to receive electronic communications regarding proposed rule actions. ODJFS shall maintain the electronic distribution list; however, the sole responsibility of the validity of any email address maintained on the distribution list is that of the person who submitted the email address.

(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: 08/01/2009

R.C. 119.032 review dates: 07/01/2010

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 119.03(E), 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, 7/1/05

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

5101:3-3-03.2 Resident protection fund (RPF) for nursing facilities (NFs) and collection of fines.

(A) Definitions.

(1) “Certification requirements” means the requirements with which a facility must be in compliance in order to be eligible to participate in the medicaid or medicare programs.

(2) “Deficiency” means a facility’s failure to meet a participation requirement in the medicaid or medicare program.

(3) “Dually participating facility” means a facility that has a provider agreement in both the medicaid and medicare programs.

(4) “Fines” means civil monetary penalties (CMPs) imposed against a NF as a remedy for deficiencies or a cluster of deficiencies that were not substantially corrected before a survey.

(5) “Interest rate” means the rate determined by the tax commissioner on the fifteenth day of October each year by rounding the federal short-term rate to the nearest whole number per cent and adding three per cent. This is the interest rate per annum used in computing the interest that accrues during the following calendar year.

(6) “Noncompliance” means failure to substantially meet all applicable certification requirements.

(7) “Resident protection fund coordinator” means the Ohio department of job and family services (ODJFS) staff member who administers the resident protection fund.

(B) Methods for collection of fines from nursing facilities.

ODJFS shall collect CMP fines and interest through any of the following means:

(1) Lump sum payment.

A lump sum payment, including any interest accrued, from the provider; or

(2) Periodic payments.

Periodic payments, including any interest accrued, in accordance with a schedule approved by ODJFS for a period not to exceed twelve months; or

(3) Medicaid payment offset.

Following the date on which the fine plus interest becomes due, an appropriate reduction to medicaid payments made to the provider for care rendered to medicaid eligible residents in accordance with a schedule approved by ODJFS for a period not to exceed twelve months; or

(4) Attorney general’s office (AGO).

If the facility is no longer active in the medicaid program, the fine may be referred to the AGO for collection in accordance with section 131.02 of the Revised Code.

(1) ODH shall provide ODJFS with a copy of the letter issued to a facility regarding a final adjudication order imposing a fine for noncompliance with certification requirements.

(2) The letter ODH prepares shall contain the due date of the fine and the interest rate that will be assessed if not paid by the due date.

(3) The resident protection fund coordinator shall inform the NF, via certified mail, of payment options available.

(4) Not later than ten days after notification, the NF shall select a payment option and advise ODJFS in writing.

(5) If the NF fails to adhere to the terms of the payment agreement or fails to select a payment option within ten days, ODJFS shall immediately implement collection from an actively participating facility through medicaid payment offset(s).

(D) Procedure for collection of fines imposed by the centers for medicare and medicaid services (CMS) on a dually participating facility.

(1) If CMS has been unable to collect the fine directly, CMS shall send notification to ODJFS that contains the fine case number, the amount of the fine prorated to medicaid (determined by NF census on the date the fine begins to accrue), and the date the fine was due. The notification serves to notify ODJFS to collect the fine.

(2) The resident protection fund coordinator shall inform the NF, via certified mail, of the available payment options outlined in paragraph (B) of this rule.

(3) Not later than ten days after notification, the NF shall select a payment option and advise ODJFS in writing.

(4) If the NF fails to adhere to the terms of the payment agreement or fails to select a payment option within ten days, ODJFS shall immediately implement collection from an actively participating facility by medicaid payment offset(s).

(5) ODJFS shall retain the fine and any interest collected from the NF in the resident protection fund.

(6) The resident protection fund coordinator shall notify CMS in writing when the fine has been collected in full.

(E) Uses of the resident protection fund.

Proceeds from all fines, including interest collected, shall be deposited in the state treasury to the credit of the RPF.

Monies in the RPF shall be used for the protection of the health or property of residents of NFs in which ODH finds deficiencies, including the following uses:

(1) Payment for the costs of relocation of residents to other facilities; or

(2) Maintenance or operation of a facility pending correction of deficiencies or closure; or

(3) Reimbursement of residents for the loss of monies managed by the facility under rule 5101:3-3-16.5 of the Administrative Code.

(F) ODJFS shall provide budgetary, accounting, and other related management functions for the resident protection fund. When medicaid payment offset is used as a means of collection, the amount equal to the reduction in medicaid payments shall be deposited to the credit of the RPF.

(G) Procedure for ODJFS to obtain reimbursement or payment from the resident protection fund.

(1) The resident protection fund coordinator shall submit a report to the director of ODJFS setting forth the amount spent or to be spent by ODJFS on the activities listed in paragraph (E) of this rule.

(2) Upon approval of the report by the director of ODJFS, the resident protection fund coordinator shall submit a request to the treasurer of state to transfer funds from the RPF to ODJFS.

(H) Annual report.

The resident protection fund coordinator shall provide an annual report to the directors of ODJFS, ODH, and the Ohio department of aging (ODA). The report shall include the following information:

(1) A list of all fines deposited in the fund, and the names and addresses of the NFs that paid the fines; and

(2) A list, by type, of all expenditures of the resident protection fund.

(I) The provisions of this rule are applicable only to the extent that monies are available in the resident protection fund.

Replaces: 5101:3-3-63

Effective: 01/01/2009

R.C. 119.032 review dates: 01/01/2014

Promulgated Under: 119.03

Statutory Authority: 5111.02, 5111.36, 5111.62

Rule Amplifies: 5111.01, 5111.02, 5111.35 to 5111.62

Prior Effective Dates: 1/1/95, 7/1/02, 7/1/05

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 of the receipt of the request.

(1) If the redetermination survey finds that the NF no longer meets the definition of an IMD set forth in paragraph (B)(2) of this rule, ODJFS shall:

(a) Follow the procedures set forth in paragraph (D)(1) or (D)(2) of this rule; and

(b) Notify the county department of job and family services (CDJFS) in writing, of the effective date of the determination that the facility is not an IMD, to initiate vendor payment, regardless of the age of the individual and in accordance with rule 5101:3-3-15 of the Administrative Code, on behalf of medicaid eligible individuals seeking medicaid payment of their stay in that NF.

(2) If the redetermination survey finds that the NF continues to be an IMD, the NF shall be notified by certified mail of the determination, the basis for the determination, 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, and that if the NF does not exercise its appeal rights within that time it may not request another reconsideration survey for at least six months from the date of the determination.

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: 5111.02, 5111.21

Prior Effective Dates: 6/15/88 (Emer.), 8/29/88, 9/1/94

5101:3-3-07 Intermediate care for individuals with mental retardation and developmental disabilities.

(A) This rule sets forth the criteria used to determine whether an individual who is seeking medicaid payment for long-term care services, as defined in rule 5101:3-3-15 of the Administrative Code, needs services at the level of intermediate care facility services for the mentally retarded, as defined in rule 5101:3-3-15.3 of the Administrative Code. The criteria set forth in this rule must be used when determining level of care for individuals seeking medicaid coverage of either home and community-based services (HCBS) waivers or facility-based institutional long term care services.

(B) Definitions.

(1) “Active Treatment”

(a) “Active treatment” means the continuous, aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in 42 CFR 483, dated October 1, 2007 that is directed toward:

(i) The acquisition of the behaviors necessary for the individual to function with as much self determination and independence as possible; and

(ii) The prevention or deceleration of regression or loss of current optimal functional status.

(b) Active treatment does not include services to maintain generally independent individuals who are able to function with little supervision or in the absence of a continuous active treatment program.

(2) “Developmental delay” means that an individual has not achieved developmental milestones as expected for the individual’s chronological age as measured, documented, and determined by qualified professionals using generally accepted diagnostic instruments and/or procedures.

(3) “Habilitation”, as defined in section 5126.01 of the Revised Code, means the process by which the staff of a facility or agency assists an individual with mental retardation or other developmental disabilities in acquiring and maintaining those life skills that enable the individual to cope more effectively with the demands of the individual’s own person and environment, and in raising the level of the individual’s personal, physical, mental, social, and vocational efficiency.

(4) “HCBS”, as defined in section 5126.01 of the Revised Code means medicaid-funded home and community based services as an alternative to placement in an intermediate care facility for mental retardation provided under a medicaid component that the department of mental retardation and developmental disabilities administers pursuant to section 5111.871 of the Revised Code.

(5) “Major life area” refers to categories that are related to the age appropriate performance of life activities and includes the following:

(a) “Capacity for independent living” means:

(i) For individuals age sixteen years and older, the ability to safely carry out all of the following tasks:

(a) Purchase groceries, clothing and household items; and

(b) Plan and prepare nutritious meals; and

(d) Clean house, make beds, sweep and mop floors, dust, wash dishes, pick up clutter, take out trash; and

(e) Wash and dry clothing; and

(f) Make and answer telephone calls; and

(g) Use public or private transportation to access the community; or

(ii) For individuals age nine through fifteen years, the ability to safely carry out all of the following tasks:

(a) Prepare a snack; and

(b) Respond to emergencies; and

(d) Use neighborhood resources such as playground, corner store, neighbors’ houses; or, for individuals age twelve years and older, use public transportation; and

(e) For ages nine through eleven years, stay alone for at least two hours with a responsible adult in another part of the house; and

(f) For ages twelve through fifteen years, stay alone for at least two hours; or

(iii) For individuals age six through eight years, the ability to safely carry out all of the following tasks:

(a) Prepare a simple snack; and

(b) Respond to emergencies; and

(d) Use neighborhood resources, with supervision appropriate to age and as appropriate to community standards, such as playground, corner store, or neighbors’ houses; and

(e) Stay alone for at least two hours with a responsible adult in another part of the house within visual or hearing distance.

(b) “Communication” means the age appropriate ability to express needs and wants in a manner that is understandable to people who do not know the individual, using spoken, written, signed, electronic or mechanical means and to understand such communication as appropriate to age.

(c) “Economic self-sufficiency” means the ability of individuals age sixteen years and older to do at least two of the following:

(i) Obtain and engage in community employment;

(ii) Pay bills;

(iii) Manage money;

(iv) Access insurance and/or public benefits.

(d) “Learning” means the cognitive ability to acquire, retain and apply new information, skills and attitudes as appropriate to age.

(e) “Mobility” means the ability to do all of the following with or without the use of one or more assistive devices:

(i) Transfer between surfaces (including but not limited to; to/from bed, chair, wheelchair, standing position, in and out of car, up and down steps or curbs etc); and

(ii) Move between locations by ambulation or other means both at home and in the community.

(f) “Personal care” means

(i) For individuals age sixteen years and older, the ability to do all of the following with or without the use of one or more assistive devices:

(a) Bathe, including cleansing one’s body by showering, tub or sponge bath, or any other generally accepted method; and

(b) Perform the tasks associated with oral hygiene, hair and nail care; and

(c) Perform the tasks associated with toileting, which includes appropriate elimination, disposal of bodily waste, and adequate hygiene related to toileting.

(d) Dress self, including putting on and taking off all items of clothing, including any necessary prostheses; and

(e) Feed self, including the processes of getting food into one’s mouth, chewing and swallowing, and/or the ability to use and manage a feeding tube; and

(f) Self-administer medications as defined in Chapter 47. of the Revised Code.

(ii) For individuals age six through fifteen years, the ability to do all of the following with or without the use of one or more assistive devices:

(a) Bathe, including cleansing one’s body by showering, tub or sponge bath, or any other generally accepted method; and

(b) Perform the tasks associated with oral hygiene and hair care; and

(c) Perform the tasks associated with toileting, which includes appropriate elimination, disposal of bodily wastes, and adequate and hygiene related to toileting.

(d) Dress self, including putting on and taking off all items of clothing, including any necessary prostheses; and

(e) Feed self, including the processes of getting food into one’s mouth, chewing, and swallowing.

(g) “Self-direction” means:

(i) For individuals age sixteen years and older, the ability to do all of the following:

(a) Foresee the outcome of one’s actions; and

(b) Make informed choices that are unlikely to result in harm to self or others; and

(d) Exercise self-control in daily life; or,

(ii) For individuals age nine through fifteen years, the ability to do all of the following:

(a) Foresee the outcome of one’s actions, understand cause and effect, and change future decisions based on past consequences; and

(b) Make informed choices that are unlikely to result in harm to self or others, demonstrate good judgement when asking for help when needed for physical, emotional and practical needs; and

(d) Exercise self-control in daily life, occupy self without difficulty, follow basic rules; and

(iii) For individuals ages six through eight years, the ability to do all of the following:

(a) Foresee the outcome of one’s actions, understand basic cause and effect, and change future decisions based on past consequences; and

(b) Make informed choices that are unlikely to result in harm to self or others, demonstrate judgement when asking for help when needed for physical, emotional and practical needs; and

(d) Exercise self-control in daily life, can occupy self for short periods of time without difficulty, and follow basic rules.

(6) “Manifested” means a condition was diagnosed and has interfered with the individual’s ability to develop and/or maintain functioning in at least one major life area, as referenced in paragraph (B)(5) of this rule.

(7) “Substantial functional limitation” means the inability to independently, adequately, safely, and consistently perform age appropriate tasks as associated with the major life areas, as referenced in paragraph (B)(5) of this rule, without undue effort and within a reasonable period of time. An individual who has access to and is able to perform the tasks independently, adequately, safely, and consistently with the use of adaptive equipment or assistive devices is not considered to have a substantial functional limitation.

(C) An individual that is age six years or older shall be determined to require an ICF-MR level of care if all of the following criteria are met:

(1) The individual meets the minimum criteria for a protective level of care set forth in paragraph (C)(2) of rule 5101:3-3-08 of the Administrative Code; and

(2) The individual has at least one diagnosed condition other than mental illness; and

(3) The condition(s) referenced in paragraph (C)(2) of this rule was manifested before the individual’s twenty-second birthday; and

(4) The condition(s) referenced in paragraph (C)(2) of this rule is likely to continue indefinitely; and

(5) The condition(s) referenced in paragraph (C)(2) of this rule currently results in:

(a) Substantial functional limitations in three or more of the following major life areas for individuals age six through fifteen:

(i) Capacity for independent living;

(ii) Communication;

(iii) Learning;

(iv) Mobility;

(v) Personal care;

(vi) Self-direction; or

(b) Substantial functional limitations in three or more of the following major life areas for individuals age sixteen and older:

(i) Capacity for independent living;

(ii) Communication;

(iii) Economic self-sufficiency;

(iv) Learning;

(v) Mobility;

(vi) Personal care;

(vii) Self-direction; and

(6) The individual would benefit from services and supports designed and coordinated specifically to promote the individual’s acquisition of skills and to decrease or prevent regression in the performance of tasks related to the major life areas, as referenced in paragraph (B)(5) of this rule, where significant functional limitations were identified. These services and supports are to be provided in one of the following settings:

(a) An intermediate care facility for the mentally retarded (ICF-MR) where active treatment is provided, as defined in paragraph (B)(1) of this rule; or

(b) A home and community based services waiver where habilitation services are provided, as defined in paragraph (B)(3) of this rule.

(7) The individual, parent of a minor child, or legal guardian agrees to the individual’s active participation in an individualized plan of services and supports.

(D) An individual birth through five years of age shall be determined to require an ICF-MR level of care if all of the following criteria are met:

(1) The individual meets the minimum criteria for a protective level of care set forth in paragraph (C)(2) of rule 5101:3-3-08 of the Administrative Code; and

(2) The individual has demonstrated at least three developmental delays, as defined in paragraph (B)(2) of this rule, in the following areas:

(a) Adaptive behavior;

(b) Physical development or maturation, fine and gross motor skills, growth;

(d) Communication;

(e) Social or emotional development;

(f) Sensory development; and

(3) The individual would benefit from services and supports designed and coordinated specifically to promote the individual’s acquisition of skills and to decrease or prevent regression in the performance of those areas where delays are indicated. These services and supports are to be provided in one of the following settings:

(a) An intermediate care facility for the mentally retarded where active treatment is provided, as defined in paragraph (B)(1) of this rule; or

(b) A home and community based services waiver where habilitation services are provided, as defined in paragraph (B)(3) of this rule.

(4) The parent or legal guardian agrees to the individual’s active participation in an individualized plan of services and supports.

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: 5111.02

Prior Effective Dates: 4/7/77, 10/14/77, 7/1/80, 11/5/01 (Emer.), 1/20/02

5101:3-3-08 Protective level of care.

(A) This rule sets forth the criteria used to determine whether an individual who is seeking medicaid payment for long term care services (as defined in rule 5101:3-3-15 of the Administrative Code) needs services at the protective care level.

(B) Definitions:

(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.); and

(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.

(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 food preparation, 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) “Instrumental activity of daily living (IADL)” means a community living skill performed, with or without the use of assistive devices, on a regular basis that enables the individual to independently manage the individual’s living arrangement. For the purposes of this rule, the term “IADL” may refer to any of the following:

(a) Shopping. “Shopping” is the ability to prepare a shopping list and purchase groceries, clothing, and household items;

(b) Meal preparation. “Meal preparation” is the ability to plan nutritional meals and cook any type of food;

(c) Environmental management. “Environmental management” is the ability to maintain the living arrangement in a manner that ensures the health and safety of the individual. Environmental management includes all of the following:

(i) House cleaning. “House cleaning” is the ability to make beds, clean the bathroom, sweep and mop floors, dust, clean and store dishes, pick up clutter, and take out trash;

(ii) Heavy chores. “Heavy chores” means the ability to move heavy furniture and appliances for cleaning, turn mattresses, and wash windows and walls; and

(iii) Yardwork and/or maintenance. “Yardwork and/or maintenance” is the ability to care for the lawn, rake leaves, shovel snow, complete minor home repairs, and paint.

(d) Personal laundry. “Personal laundry” is the ability to wash and dry clothing and household items by machine or by hand.

(e) Accessing community services. “Accessing community services” is the ability to interface with the community. Accessing community services includes all of the following:

(i) Telephoning. “Telephoning” is the ability to make and answer telephone calls;

(ii) Accessing transportation. “Accessing transportation” is the ability to acquire and use transportation; and

(iii) Managing legal and/or financial affairs. “Managing legal and/or financial affairs” is the ability to pay bills, write checks, balance a check book, access insurance and public benefits, and interact with the legal system.

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

(6) “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.

(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, and it has been determined in accordance with rule 5101:3-3-15 of the Administrative Code that the individual’s condition and/or corresponding service needs do not meet the criteria for skilled care, intermediate care, or for an ICF-MR level of care set forth in rules 5101:3-3-05 to 5101:3-3-07 of the Administrative Code; and

(2) The individual requires either:

(a) Both of the following:

(i) Supervision of one ADL or supervision of self-administration of medication; and

(ii) Assistance with three IADLs; or

(b) 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 less than 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: 9/24/93 (Emer.), 12/24/93

5101:3-3-14 Assessment process for nonmedicaid placements in medicaid-certified nursing facilities. [Rescinded]

Rescinded eff 8-30-07

5101:3-3-15 In-person assessments and level of care review process for medicaid covered long term care services.

(A) The purpose of this rule is to set forth the in-person assessment process and level of care review process for individuals who are seeking medicaid payment for long term care services.

“Level of care review”, as used in this rule, is a determination of an individual’s physical, mental and social/emotional status to determine whether the individual requires either an intermediate level of care, or skilled level of care. The level of care (LOC) shall be determined as a result of an in-person assessment conducted by the Ohio department of job and family services (ODJFS), or its designee, if an in-person assessment is required or requested prior to admission to a medicaid certified nursing facility, or by a paper review process for those individuals for whom an in-person assessment is not required or requested prior to admission to a medicaid certified nursing facility. Level of care review is conducted pursuant to paragraph 1902(a)(30(A) of the Social Security Act as amended and includes those activities necessary to safeguard against unnecessary utilization. “NF services” are those services available in facilities, or parts of facilities, certified as nursing facilities by the Ohio department of health (ODH). Individuals who are determined to require an intermediate LOC or skilled LOC may be appropriate for admission to a NF. The LOC process is also the mechanism by which vendor payment to a NF is initiated. Some individuals must also undergo preadmission screening (PAS) as outlined in rule 5101:3-3-15.1 of the Administrative Code.

The evaluation of an individual’s LOC needs determines the facility type for which medicaid vendor payment can be made. An intermediate LOC or skilled LOC is necessary for NF admission. Except as provided for in paragraph (G) of this rule, medicaid vendor payment can be initiated to a NF only when the individual’s LOC determination is intermediate LOC or skilled LOC. The term “skilled level of care”, as 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) “CDJFS” means county department of job and family services.

(2) “Delayed in-person assessment” is an in-person assessment of an individual which delays the determination of whether home and community-based services are an appropriate alternative to a continued stay in a NF. Such an assessment is begun prior to NF admission, but is not completed until after admission to the NF. Delayed in-person assessments must be completed within one hundred eighty days of the individual’s first admission to a NF. The decision to delay the conclusion of the assessment is based on a partial assessment that may consist of only a paper review of a level of care request, or may be based on an incomplete in-person assessment.

(3) “ICF-MR” means intermediate care facility for the mentally retarded. An “ICF-MR” is a long term care facility certified to provide services to individuals with mental retardation or a related condition who require active treatment as defined at 42 CFR 483.440,dated October 1, 2007. In order to be eligible for vendor payment in an ICF-MR, an individual must be determined by ODJFS, or its designee, to be in need of an ICF-MR/DD LOC as outlined in rule 5101:3-3-07 of the Administrative Code.

(4) “In-person assessment” means a process that includes a face-to-face assessment with the individual performed by staff of ODJFS, or its designee, who are registered nurses or licensed social workers with prior education, experience or training in the field of geriatric long term care as approved by ODJFS or its designee prior to providing services, who meet the requirements of paragraph (d) of 42 CFR 432.50, dated October 1, 2007 and who are certified by ODJFS or its designee. The purpose of the in-person assessment is to review and discuss directly with the individual and, to the extent possible, with the individual’s informal care givers and/or representative, the individual’s care needs and preferences, and to access information necessary to complete a level of care determination.

(5) “ILOC” means intermediate level of care. An “ILOC” is a determination by ODJFS or its designee that an individual’s care needs meet the criteria specified in rule 5101:3-3-06 of the Administrative Code.

(6) “Individual” means a medicaid recipient or person with pending medicaid eligibility who is making application to a NF or ICF-MR; or is applying for home and community-based services (HCBS) waiver enrollment; or is applying for residential state supplement program (RSS) funded placement; or is seeking long term care services (as defined in paragraph (B)(8) of this rule) but has not yet made application for a particular type of service or service setting.

(7) “LTCF” means a medicaid certified long term care facility as defined in rule 5101:3-3-01 of the Administrative Code.

(8) “Long term care services” are those medicaid funded, institutional or community-based, medical, health, psycho-social, habilitative, rehabilitative, and/or personal care services which may be provided to eligible individuals.

(9) “Nursing facility (NF)” means any long term care facility (excluding ICFs-MR), or part of a facility, currently certified by the ODH as being in compliance with the nursing facility standards and medicaid conditions of participation. Any reference to “NF-LOC” means an ILOC or SLOC.

(10) “PAS” means preadmission screening and refers to that part of the preadmission screening and annual resident review (PASRR) process mandated by section 1919(e)(7) of the Social Security Act, as amended, which must be met prior to any new admission to a NF (as defined in rule 5101:3-3-15.1 of the Administrative Code). PAS includes determinations regarding whether individuals who have serious mental illness (SMI) and/or MR/DD require the level of services provided by a NF. Those determinations must be based on the same LOC criteria as are set forth in Chapter 5101:3-3 of the Administrative Code. However, the PAS process is distinct from the LOC review process.

(11) “Physician” means a doctor of medicine or osteopathy who is licensed to practice medicine.

(12) “Primary diagnosis” has the same meaning as in rule 5101:3-3-15.1 of the Administrative Code.

(13) “Psychologist” means a degreed psychologist who has been licensed by the Ohio board of psychology to practice psychology in the state of Ohio.

(14) “RSS” means the residential state supplement program as defined in rule 173-35-01 of the Administrative Code.

(15) “SLOC” means skilled level of care. A “SLOC” is a determination by ODJFS or its designee that an individual’s care needs meet the criteria set forth in rule 5101:3-3-05 of the Administrative Code.

(16) “Representative” means a person acting on behalf of an individual who is applying for or receiving medical assistance. A representative may be a family member, attorney, hospital social worker, or any other person chosen to act on the individual’s behalf.

(C) Paragraphs (C)(1) to (C)(5) of this rule specify those individuals who are exempt from participation and those who are required to participate in the in-person assessment process conducted by ODJFS or its designee. ODJFS or its designee shall base its determination regarding the need to conduct an in-person assessment on information contained on the individual’s JFS 03697 “level of care assessment” (rev.4/03), or other authorized form, as specified in paragraph (H) of this rule.

(1) For individuals who are residing in an acute care hospital and are seeking admission or readmission to a medicaid certified nursing facility bed:

(a) Individuals determined by ODJFS or its designee to be in any of the following categories are exempt from the in-person assessment requirement in the hospital prior to admission to a NF, and are exempt from a delayed in-person assessment later in the NF, unless the paper review indicates that a NF LOC would be denied. In the case of a probable denial, the provisions set forth in paragraph (H)(5) of this rule apply and the in-person assessment is required.

(i) Individuals with care needs that clearly exceed the combination of services available to the individual from home and community-based service waivers and available informal care givers (as defined in Chapter 5101:3-31 of the Administrative Code), and who have no rehabilitation potential and a poor prognosis based upon the medical judgement of the individual’s physician.

(ii) Individuals who resided in a NF for one hundred eighty days or more prior to the hospital admission and are either seeking readmission to the same NF following a hospitalization during which the individual exhausted all available paid leave days (see rule 5101:3-3-16.4 of the Administrative Code for an explanation of paid leave days); or are transferring from one NF to another following an intervening hospital stay regardless of whether all available paid leave days have been exhausted (see rule 5101:3-3-16.4 of the Administrative Code for an explanation of paid leave days).

(iii) Individuals who have a contractual or statutory right to have their care provided indefinitely by a NF that provides continuing care as defined in section 173.13 of the Revised Code, or a home for the aged as defined in section 5701.13 of the Revised Code.

(b) Individuals determined by ODJFS or its designee to be in any of the following categories are not required to participate in an in-person assessment in the hospital prior to admission to a NF, but the requirement for the assessment is delayed until the person has resided in the NF for a period not to exceed one hundred eighty days from the date of the individual’s first NF admission. A LOC determination shall be made prior to the NF admission regardless of whether the in-person assessment has been completed or delayed.

(i) Individuals who are new NF applicants who have prognoses for improvement and rehabilitation potential of fair or better, based upon the medical judgement of the individual’s physician.

(ii) Individuals who are new NF applicants who have a discharge plan of NF stay of one hundred eighty days or less.

(iii) Individuals who are previous NF residents who did not participate in an in-person assessment prior to or during their NF stay, who are returning to a NF in which they resided for less than one hundred eighty days immediately preceding the hospitalization, and who have a discharge plan for a NF stay of one hundred eighty days or less.

(iv) Individuals who are not covered by paragraphs (C)(1)(a) to (C)(1)(b)(iii) of this rule, and those for whom the department or its designee cannot complete the assessment prior to admission to a NF in accordance with the applicable schedule specified in paragraph (D)(1) of this rule.

(c) Individuals determined by ODJFS or its designee to be in any of the following categories are required to participate in an in-person assessment in the hospital, prior to the NF admission. A LOC determination shall be made prior to the NF admission.

(i) Individuals who are not determined to be in any of the categories contained in paragraph (C)(1)(a) or (C)(1)(b) of this rule.

(ii) Individuals for whom ODJFS or its designee has determined, based on a review of the JFS 03697 or other authorized form, that the individual appears not to be eligible for an intermediate LOC (defined in rule 5101:3-3-06 of the Administrative Code) or a skilled LOC (defined in rule 5101:3-3-05 of the Administrative Code).

(iii) Individuals for whom the information needed by ODJFS or its designee to make a LOC determination is inconsistent or incomplete.

(iv) Individuals who have requested, or their authorized representative has requested, an in-person assessment.

(2) For individuals who are current NF residents, not currently authorized for vendor payment, and who are seeking medicaid vendor payment of their NF stay:

(a) Individuals determined by ODJFS or its designee to be in any of the following categories are exempt from an initial in-person assessment, and exempt from a later delayed assessment, unless the review of the JFS 03697, or MDS+ and doctors orders, indicates that a NF LOC would be denied. In the case of a probable denial, the provisions set forth in paragraph (H)(5) of this rule apply and the in-person assessment is required.

(i) Individuals who have been in the NF for one hundred eighty days or longer.

(ii) Individuals with care needs that clearly exceed the combination of services available to individuals from home and community-based service waivers and available informal care givers (as defined in Chapter 5101:3-31 and of the Administrative Code), and have no rehabilitation potential and a poor prognosis, based upon the medical judgement of the individual’s physician.

(b) Individuals determined by ODJFS or its designee to have been in the NF for less than one hundred eighty days and have prognoses for improvement with rehabilitation potentials of fair or better, based upon the medical judgement of the individual’s physician, are not required to participate in an in-person assessment prior to LOC determination. In such cases, the requirement for the assessment is delayed until the person has resided in the NF for a period not to exceed one hundred eighty days from the date of the individual’s first NF admission.

(c) Individuals determined by ODJFS or its designee to be in any of the following categories are required to participate in an in-person assessment in the NF prior to the LOC determination.

(i) Individuals who are not determined to be in any of the categories of paragraph (C)(2)(a) or (C)(2)(b) of this rule.

(ii) Individuals for whom ODJFS or its designee has determined, based on a review of the JFS 03697, that the individual appears not to be eligible for an intermediate LOC (as defined in rule 5101:3-3-06 of the Administrative Code) or a skilled LOC (as defined in rule 5101:3-3-05 of the Administrative Code).

(iii) Individuals for whom the information needed by ODJFS or its designee to make a LOC determination is inconsistent or incomplete.

(iv) Individuals who have requested, or their authorized representative has requested, an in-person assessment.

(3) For individuals who are current NF residents who are currently authorized for vendor payment of their NF stay and are transferring to another NF without an intervening hospital stay:

(a) Individuals determined by ODJFS or its designee to be in any of the following categories are exempt from an initial in-person assessment, and exempt from a later delayed assessment, unless the review of the JFS 03697 or MDS+ and doctor’s orders indicates that a NF LOC would be denied. In the case of a probable denial, the provisions set forth in paragraph (H)(5) apply and the in-person assessment is required.

(i) Individuals who have resided in a NF for one hundred eighty days or more prior to the date of transfer.

(ii) Individuals who have resided in a NF for less than one hundred eighty days but have already participated in an in-person assessment.

(iii) Individuals with care needs that clearly exceed the combination of services available to individuals from home and community-based service waivers and available informal care givers (as defined in Chapter 5101:3-31 of the Administrative Code), and have no rehabilitation potential and a poor prognosis, based upon the medical judgement of the individual’s physician.

(b) Individuals determine by ODJFS or its designee to have resided in a NF for less than one hundred eighty days who have not participated in an in-person assessment prior to or during the current NF stay, and who have prognoses for improvement with rehabilitation potentials of fair or better, based upon the medical judgement of the individual’s physician, are not required to participate in an in-person assessment prior to LOC determination. The requirement for the in-person assessment may be delayed until the individual has accrued a total combined NF residency period not to exceed one hundred eighty days from the date of the first NF admission.

(c) Individuals determined by ODJFS or its designee to have resided in a NF for less than one hundred eighty days who have not participated in an in-person assessment prior to or during the current NF stay, and who do not meet the criteria set forth in paragraph (C)(3)(a) or (C)(3)(b) are required to participate in an in-person assessment conducted by ODHS or its designee prior to the LOC determination.

(4) Individuals who have a contractual or statutory right to have their care provided indefinitely by a NF that provides continuing care as defined in Section 173.13 of the Revised Code, or a home for the aged as defined in Section 5701.13 of the Revised Code, are exempt from the in-person assessment requirement prior to admission to the NF portion of the continuing care retirement community (CCRC) or home for the aged, and are exempt from a delayed in-person assessment, unless the paper review indicates that a NF LOC would be denied. In the case of a probable denial, the provisions set forth in paragraph (H)(5) of this rule apply and the in-person assessment is required.

(5) All individuals who are residing in settings other than those specified in paragraphs (C)(1) to (C)(4) of this rule, who are seeking admission to a medicaid certified nursing facility, shall be required to participate in an in-person assessment conducted by ODJFS or its designee prior to admission to the NF. ODJFS or its designee shall determine whether the individual is eligible for an intermediate LOC or skilled LOC (as defined in rules 5101:3-3-05 and 5101:3-3-06 of the Administrative Code). If the in-person assessment cannot be completed prior to the NF admission, a delayed in-person assessment shall be conducted in the NF within one hundred eighty days of admission. A LOC determination shall be made prior to the NF admission regardless of whether the in-person assessment has been completed or a delayed in-person assessment must be completed.

(D) ODJFS, or its designee, shall perform an in-person assessment, determine that the assessment should be delayed, or determine that the assessment is not required according to the following schedule:

(1) For hospitalized individuals, not later than one of the following:

(a) One working day after the individual or the individual’s representative submits either an oral or written request to ODJFS or its designee for an assessment and/or level of care determination.

(b) A later date requested by the individual or the individual’s representative.

(2) In the case of an emergency, not later than one calendar day after the individual or the individual’s representative submits either an oral or written request to ODJFS or its designee for an assessment and/or LOC determination. An individual with an emergency need shall be determined by ODJFS or its designee and shall include, but not be limited to, any individual identified by a CDJFS adult protective services worker, and any individual in a hospital emergency room who is likely to require NF admission.

(3) In all other cases, not later than one of the following:

(a) Five calendar days after the individual or the individual’s representative submits either an oral or written request to ODJFS or its designee for an assessment and/or LOC determination.

(b) A later date requested by the individual or the individual’s representative.

(E) At the conclusion of every in-person assessment and at a time not later than the time the assessment is required to be performed according to paragraph (D) of this rule, the department or its designee shall provide the individual written notice of the determination, in accordance with Chapter 5101:6-2 of the Administrative Code. Notice shall also be provided to the individual’s representative, if any. If an in-person assessment was required for any reason other than to comply with the provisions of paragraph (H)(5) of this rule and it is the conclusion of the assessors, based on the program eligibility criteria set forth in rules 5101:3-1-01, 5101:1-17-02, and Chapter 5101:3-31 of the Administrative Code as well as on service availability, that home and community-based services are a viable option for the individual, ODJFS or its designee shall develop a plan, in consultation with the individual and the individual’s representative, to allow the individual and the individual’s representative to make an informed decision from among the available home and community-based service alternatives. If the plan is accepted by the individual, ODJFS or its designee shall implement the plan not later than one working day after the plan is agreed to unless the individual’s health and safety will not be jeopardized by, and the individual agrees to, a later implementation date.

(F) LOC review is required for all individuals who are:

(1) Seeking admission or readmission to a medicaid certified NF except for individuals seeking readmission to a medicaid certified NF who have not exhausted available paid leave days (see rule 5101:3-3-16.4 of the Administrative Code for requirements regarding available leave days).

(2) Currently residing in a NF and are now seeking medicaid vendor payment for their NF stays.

(3) Seeking enrollment for HCBS waivers other than the individual options waiver.

(G) Under the circumstances in paragraphs (G)(1), (G)(2), and (G)(3) of this rule, vendor payment shall be continued or reinstated when a change in institutional setting is sought.

(1) Individuals who are current NF residents receiving medicaid vendor payment who wish to transfer to another NF must submit a completed JFS 03697 form or, if transferring without an intervening inpatient hospital stay, the most recent MDS+ completed for the individual by the sending NF and physician’s orders for the individual’s care at the time of admission to the receiving NF, not later than the day of transfer to the new NF, as specified in paragraphs (H)(1) and (H)(2) of this rule, to initiate payment to the new NF effective from the date of admission. For those individuals who are long term residents, as defined in rule 5101:3-3-15.1 of the Administrative Code, and who have chosen to remain in a NF and receive specialized services in the NF, a copy of the PASRR determination and documentation related to the individual’s choice to remain in the NF setting must accompany the request for a level of care review.

(a) Under this circumstance, vendor payment to the new NF will be authorized back to the date of the individual’s admission to the facility. ODJFS, or its designee, shall notify the appropriate CDJFS to begin vendor payment. Those individuals who are verified as long term residents in accordance with paragraph (G)(1) of this rule shall receive authorization for vendor payment regardless of the level of care determination. For all other individuals in this circumstance, if ODJFS or its designee determines that the individual is no longer in need of a NF LOC, it will notify, not later than the date the determination is made, the individual, the individual’s authorized representative, if any, and the NF of the adverse LOC determination and ODJFS’s intent to terminate vendor payment. The notice shall set forth the individual’s hearing rights and the time frames within which they must be exercised. ODJFS, or its designee, may instruct the appropriate CDJFS, as its designee, to issue this notice.

(b) If a hearing request is received in response to the notice specified in paragraph (G)(1)(a) of this rule within time frames specified in rule 5101:6-2-04 of the Administrative Code, authorization for payment will be continued, in accordance with rule 5101:6-4-01 of the Administrative Code, pending the issuance of a state hearing decision.

(c) If the individual does not submit a hearing request within the time frame specified in paragraph (G)(1)(b) of this rule, vendor payment will automatically terminate on the date specified in the notice advising the individual of ODJFS’s intent to terminate vendor payment.

(2) Hospitalized individuals who are current NF residents and are seeking admission to a different NF must meet the requirements in paragraphs (G)(1) to (G)(1)(c) of this rule in order to have vendor payment authorized from the date of admission. These requirements must be met regardless of whether they have exhausted paid leave days.

(3) Hospitalized individuals who are seeking readmission to the same NF after the exhaustion of paid leave days may be readmitted to that NF regardless of the results of the LOC determination if, not later than the date of readmission, the individual submits a completed JFS 03697 form to initiate vendor payment effective from the date of readmission. If the LOC determination is not ILOC or SLOC the procedures set forth in paragraphs (G)(1)(a) to (G)(1)(c) of this rule shall apply.

(H) In order to obtain an in-person assessment and/or LOC determination, the individual or the individual’s representative must submit either an oral or written request to ODJFS or its designee. If the request for assessment and/or LOC determination is submitted in writing, it must be submitted on an JFS 03697, or an alternative form specified by ODJFS, which has been appropriately completed, accurately reflects the individual’s current mental and physical condition, and is certified by a physician. If the request is submitted orally, ODJFS, or its designee, shall complete the JFS 03697 and seek to obtain the certification of the JFS 03697 by the physician identified by the individual for that purpose.

(1) The JFS 03697, or the ODJFS-authorized alternative form, must to the maximum extent possible be based on information from the MDS+, and must include the following components and/or attachments:

(a) The individual’s legal name; medicaid number; date of original admission to the facility, if applicable; current address; name and address of residence if current residence is a licensed or certified residential setting or hospital; and county where the individual’s medicaid case is active.

(b) All of the individual’s current diagnoses with the primary diagnosis specified (if so specified by the individual’s physician), including medical, psychiatric and developmental diagnoses and, if available, the dates of onset.

(d) A statement regarding the individual’s functional status, including an assessment of current status in self care, mobility, self-administration of medication, capacity for independent living, learning, self-direction and communication skills.

(e) An assessment of the individual’s current mental/behavioral status.

(f) Type of service setting for which the LOC determination is sought (NF, RSS, HCBS waiver).

(g) A statement signed and dated by a physician certifying that all information provided about the individual is a true and accurate reflection of the individual’s condition.

(h) A physician certification of the individual’s need for a specific level of inpatient care shall occur on or no more than fifteen days before the day of admission. For an individual who applies for medicaid benefits while in the NF, physician certification must occur prior to the authorization of payments. The following conditions shall be met to consider the certification valid:

(i) The certification must be in writing;

(ii) The certification must be signed and dated at the same time by a physician. A rubber stamp is not acceptable. A faxed or photocopied copy of an original document containing the original signature of the physician is an acceptable submission for LOC review purposes.

(iii) The certification documentation shall be maintained in the resident’s medical record in the facility where care is being provided.

(i) If the individual is required to undergo PAS, a copy of the JFS 03622 form and, where applicable in accordance with rule 5101:3-3-15.1 of the Administrative Code, the notices of all results and copies of all assessment forms, if available, must be included as attachments to the JFS 03697.

(j) For individuals who are seeking an exemption from an in-person assessment, or seeking a delayed in-person assessment, the documentation required by ODJFS or its designee to make that determination as specified in paragraph (C) of this rule.

(2) The JFS 03697, or alternative form authorized by ODJFS, must be sufficiently complete for a LOC determination to be made.

(a) If the individual is applying from a hospital or a nursing facility, the individual or individual’s representative may submit either a verbal or written request for a LOC determination. The submission of a written request does not exempt the individual from an in-person assessment if it is required by paragraph (C) of this rule. If the individual is applying from any location other than a hospital or nursing facility, the individual or individual’s representative may submit only a verbal request for a LOC determination.

(b) If a verbal request for a LOC determination is received by ODJFS or its designee, the completion of the JFS 03697 shall be incorporated into the in-person assessment process conducted by ODJFS or its designee. If an in-person assessment is required or requested, ODJFS or its designee shall make every reasonable effort to obtain all necessary information including the physician’s certification. Any individual who submits a written LOC request must insure that all required components are included before submission.

(c) If ODJFS or its designee attempts to complete the JFS 03697 but is unable to obtain all of the necessary information, or if an individual submits an incomplete JFS 03697, ODJFS or its designee shall notify in writing the individual, the contact person indicated on the JFS 03697, the individual’s representative, and the NF or other entity responsible for the submission of that LOC request, that additional documentation is necessary in order to complete the LOC review. This notice shall specify the additional documentation that is needed and shall indicate that the individual or another entity has twenty days from the date ODJFS or its designee mails the notice to submit additional documentation or the JFS 03697 will be denied for incompleteness with no LOC authorized. In the event an individual or other entity is not able to complete an JFS 03697 in the time specified, ODJFS or its designee shall, upon good cause, grant one extension of no more than five working days when an extension is requested by the individual or other entity.

(d) If within the periods specified in paragraph (H)(2)(c) of this rule, the individual or the individual’s representative submits the required documentation, ODJFS or its designee shall issue a LOC determination within the timelines specified in paragraph (H)(3) of this rule. A LOC determination will be issued pursuant to the criteria specified in rules 5101:3-3-05, 5101:3-3-06, 5101:3-3-07 and 5101:3-3-08 of the Administrative Code.

(3) The department or its designee shall not exceed the following schedule in issuing LOC determinations on behalf of individuals who are seeking admission or readmission to a medicaid certified NF:

(a) In the case of an individual applying from a hospital, one working day from the date the JFS 03697 is determined to be complete.

(b) In the case of an emergency, one calendar day from the date the JFS 03697 is determined to be complete. An individual shall be determined by ODJFS or its designee to have an emergency need and shall include, but not be limited to, any individual identified by a CDJFS adult protective services worker, and any individual in a hospital emergency room who likely requires NF admission.

(4) Requests for LOC determinations shall be evaluated by personnel authorized by ODJFS whose qualifications shall include licensure as a registered nurse or social worker.

(5) A request for a NF LOC shall not be denied by ODJFS or its designee for the reason that the individual does not need NF services until a qualified medical professional whose qualifications include being a registered nurse conducts a face-to-face assessment of the individual, reviews the medical records that accurately reflect the individual’s condition for the time period for which payment is being requested; makes a reasonable effort to contact the individual’s physician; and investigates and documents alternative community resources including resources available in the home and family which may be available to meet the needs of the individual. Authorized personnel other than the person who conducted the assessment shall review the assessment and make the final LOC decision.

(I) The LOC authorization process

(1) For all individuals listed in paragraph (C) of this rule who are also required to undergo PAS, the entire PAS process must be completed in accordance with rule 5101:3-3-15.1 of the Administrative Code prior to the performance of the LOC review.

(2) For all individuals who are residents of medicaid certified NFs and wish to transfer from those NFs to hospitals or to other NFs, the transferring NFs are responsible for ensuring that copies of the individual’s most recent PASRR evaluations, determinations and related documentation accompany the transferring individual.

(3) Copies of all PASRR forms, evaluations and determinations pertaining to the individual, as well as the LOC determination, must be retained in the individual’s medical record at the NF.

(4) ODJFS or its designee shall complete the payment authorization JFS 09400) and shall send it, along with the JFS 03697, to the CDJFS designated on the JFS 03697. The CDJFS shall send a copy of the JFS 03697 and JFS 09400 to the NF.

(5) Authorization of payment to a NF shall correspond with the effective date of the LOC determination specified on the JFS 09400. This date shall be:

(a) The date of admission to the NF if it is within thirty days of the physician’s signature; or

(b) A date other than that specified in paragraph (I)(5)(a) of this rule. This alternative date may be authorized only upon receipt of a letter which contains a credible explanation for the delay from the originator of the LOC request. If the request is to backdate the LOC more than thirty days from the physician’s signature, the physician must verify the continuing accuracy of the information and need for inpatient care either by adding a statement to that effect on the JFS 03697 or by attaching a separate letter of explanation; or

(c) If the individual was required to undergo PAS and failed to do so prior to admission, the effective date of the LOC determination shall be the later of the date of the PAS determination that the individual required the level of services available in a NF, or the date established in paragraph (I)(5)(b) of this rule.

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, 5111.205

Prior Effective Dates: 4/7/77, 10/14/77, 7/1/80, 8/1/84, 1/17/92 (Emer.), 4/16/92, 10/1/93 (Emer.), 12/31/93

5101:3-3-15.1 Preadmission screening (PAS) requirements for individuals seeking admission to nursing facilities (NFs) and/or PASSPORT home and community-based services (HCBS) waver enrollment.

(A) The purpose of this rule is to set forth the PAS requirements which must be met prior to any new admission (as defined in paragraph (B)(8) of this rule) in order to comply with section 1919 (e)(7) of the Social Security Act, as amended. NFs and the passport program (defined in Chapter 5101:3-31 of the Administrative Code) are prohibited from accepting any new admission, unless the individual has met the PAS requirements specified in this rule.

(B) Definitions:

(1) “Active treatment,” for purposes of this rule, means a continuous treatment program which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services for individuals with mental retardation and/or other developmental disabilities that are directed toward the following:

(a) The acquisition of the behaviors necessary for the client to function with as much self-determination and independence as possible; and

(b) The prevention or deceleration of regression or loss of current optimal functional status.

(2) “Admission for a convalescent stay.” A new admission is considered to be an admission for a convalescent stay if it meets all of the following criteria:

(a) The individual is admitted directly from a hospital after receiving inpatient care at that hospital; and

(b) The individual requires the level of services provided by a NF for the condition which was treated in the hospital; and

(c) The individual’s attending physician has provided written certification, signed and dated no later than the date of discharge from the hospital, that the individual is likely to require the level of services provided by a NF for less than thirty days.

(3) “Adverse detennination” means a determination made in accordance with sections 1919 (b)(3)(F) or 1919(e)(7)(B) of the Social Security Act, as amended, this rule, and rules 5122-21-03 and 5123:2-14-01 of the Administrative Code, that an individual does not require the level of services provided by a NF or that an individual does or does not require specialized services. No adverse decision regarding an individual’s need for the level of services provided by a NF is accepted by the Ohio department of human services (ODHS) as a determination unless both of the following conditions have been met:

(a) A registered nurse has conducted a face-to-face assessment of the individual and reviewed the medical records that accurately reflect the individual’s current condition; and

(b) Authorized ODMH and/or Ohio department of mental retardation and developmental disabilities (ODMR/DD) personnel other than the nurse who conducted the face-to-face assessment have reviewed the assessment and made the final determination regarding the need for NF services.

(4) “Current diagnoses” means those diagnoses verified by the individual’s attending physician as current in the most recent physical examination report, physician progress notes, or other reevaluation of current diagnoses performed within one year prior to the PAS.

(5) “Dementia.” An individual is considered to have dementia if he or she meets either of the following criteria:

(a) The individual has a primary diagnosis of a dementia, including Alzheimer’s disease or a related disorder, as described in the “Diagnostic and Statistical Manual of Mental Disorders,” third edition, revised in 1987 (DSM-III-R) (or the most recent edition); or

(b) The individual has a secondary diagnosis of a dementia, including Alzheimer’s disease or a related disorder, (as described in the DSM-III-R or most recent edition), and a primary diagnosis which is not a major mental disorder specified in paragraph (B)(16)(a) of this rule.

(6) “Long-term resident” means an individual who has continuously resided in a NF or a consecutive series of NFs and/or medicare skilled nursing facilities for at least thirty months prior to the first resident review (RR) (defined in rule 5101:3-3-152 of the Administrative Code) determination in which the individual was found not to require the level of services provided by a NF, and to require specialized services. The thirty months may include temporary absences for hospitalization or therapeutic leave as defined in rule 5101:3-3-03 of the Administrative Code.

(7) “Mental retardation and/or other developmental disabilities(MR/DD).” An individual is considered to have mental retardation and/or a developmental disability if he or she has:

(a) A level of retardation (mild, moderate, severe or profound) described in the “American Association on Mental Retardation’s Manual on Classification in Mental Retardation” (1989); or

(b) A related condition as defined in paragraph (B)(15) of this rule.

(8) “New admission” means:

(a) The admission, to an Ohio medicaid-certified NF, of an individual who was not a resident of any Ohio medicaid-certified NF immediately preceding the current NF admission NOR IMMEDIATELY PRECEDING A HOSPITAL STAY FROM WHICH THE INDIVIDUAL IS TO BE ADMITTED DIRECTLY TO A NF (THIS INCLUDES INDIVIDUALS WITH NO PREVIOUS NF ADMISSIONS; INDIVIDUALS ADMITTED FROM OTHER STATES, REGARDLESS OF TYPE OF PRIOR RESIDENCE; AND INDIVIDUALS WITH PRIOR OHIO NF ADMISSIONS WHO HAD BEEN DISCHARGED FROM AN OHIO NF AND DID NOT HAVE EITHER AN INTERVENING HOSPITAL OR OTHER NF STAY IMMEDIATELY PRECEDING THE CURRENT NF ADMISSION); and/or

(b) The enrollment of individuals who have applied for home and community based services waiver III (HCBS waiver III or passport waivered services) as defined in Chapter 5101:3-31 of the Administrative Code. NF transfers and/or readmissions (as defined in paragraphs (B)(9) and (B)(14) of this rule) are not considered to be new admissions for purposes of this rule.

(9) “NF transfer.” A NF transfer occurs when an individual’s place of residence is changed from one Ohio medicaid-certified NF to another Ohio medicaid-certified NF, with or without an intervening hospital stay.

(10) “PAS identification (PAS/ID).” “PAS/ID” is the process by which ODHS, or its designee, screens individuals who are seeking new admissions to identify those who have indications of serious mental illness (SMI) as defined in paragraph (C)(5)(a) of this rule, and/or MR/DD as defined in paragraph (C)(5)(b) of this rule; and who, therefore, must be further evaluated by ODMH and/or ODMR/DD.

(11) “PAS-MR/DD.” “PAS-MR/DD” is the process by which ODMR/DD determines whether, due to the individual’s physical and mental condition, an individual who has MR/DD requires the level of services provided by a NF or another type of facility; and, if the level of services provided by a NF is needed, whether the individual requires specialized services for MR/DD.

(12) “PAS/SMI.” “PAS/SMI” is the process by which ODMH determines whether, due to the individual’s physical and mental condition, an individual who has SMI requires the level of services provided by a NF or another type of facility; and, if the level of services provided by a NF is needed, whether the individual requires specialized services for serious mental illness.

(13) “Primary diagnosis” means that diagnosis which has a “P” or the word “primary” written next to it by the physician. If two or more diagnoses have such indications, none of them can be considered to be the primary diagnosis for purposes of this rule.

(14) “Readmission” means the individual is readmitted to the same NF, or reenrolled for HCBS waiver III (PASSPORT waivered services), following a stay in a hospital to which he or she was sent for the purpose of receiving care.

(15) “Related condition” means a severe, chronic disability that meets all of the following conditions:

(a) It is attributable to:

(i) Cerebral palsy, epilepsy; or

(ii) Any other condition other than mental illness, found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons, and requires treatment or services similar to those required for those persons;

(b) It is manifested before the person reaches the age of twenty-two;

(d) It results in substantial functional limitations in three or more of the following areas of major life activity:

(i) Self-care;

(ii) Understanding and use of language;

(iii) Learning;

(iv) Mobility;

(v) Self-direction;

(vi) Capacity for independent living.

Individuals who have a developmental disability as defined in rule 5123:2-1-02 of the Administrative Code are considered to have a related condition.

(16) “Serious mental illness (SMI).” An individual is considered to have SMI if the individual meets all of the following criteria on diagnosis, level of impairment and recent treatment:

(a) Diagnosis. The individual does not have dementia (as defined in paragraph (B)(5) of this rule), but has a major mental disorder diagnosable under the “Diagnostic and Statistical Manual of Mental Disorders,” third edition, revised in 1987 (DSM-III-R) (or the most recent edition); and this mental disorder is one of the following: a schizophrenic, mood, delusional (paranoid), panic or other severe anxiety disorder, somatoform disorder, personality disorder, other psychotic disorder, or another metal disorder other than mental retardation that may lead to a chronic disability diagnosable under the DSM-III-R (OR THE MOST RECENT EDITION).

(b) Level of impairment. Within the past six months, due to the mental disorder, the individual has experienced functional limitations on a continuing or intermittent basis in major life activities that would be appropriate for the individual’s developmental stage.

(i) Psychiatric treatment more intensive than counseling and/or psychotherapy performed on an outpatient basis more than once within the past two years; or

(ii) Within the last two years, due to the mental disorder, experienced an episode of significant disruption to the usual living arrangement, for which supportive services were required, or which resulted in intervention by housing or law enforcement officials.

(17) “Specialized services for serious mental illness” means those services which, when combined with the types of services available in NFs, result in the continuous and aggressive implementation of an individualized plan of care approved by the medical director of ODMH or a designee that:

(a) Is developed an supervised by an interdisciplinary team which includes a physician, trained mental health professionals and, as appropriate, other professionals;

(b) Prescribes specific therapies and treatment activities for an individual who is experiencing an acute episode of SMI which necessitates supervision by trained mental health personnel; and

(c) Is time limited and directed toward diagnosing and reducing the individual’s behavioral symptoms that necessitated intensive and aggressive intervention, improving the individual’s level of independent functioning, and achieving a functioning level that permits reduction in the intensity of mental health services to below the level of specialized services at the earliest possible time.

(18) “Specialized services for mental retardation and/or other developmental disabilities” means the services specified by the PAS-MR or RR-MR determination and provided or arranged for by ODMR/DD which are integrated with services provided by the NF or other service providers to result in continuous active treatment. Specialized services shall be made available at the intensity and frequency necessary to meet the needs of the individual.

(19) “Secondary diagnoses” means all diagnoses other than that which is a primary diagnosis as defined in paragraph (B)(13)of this rule.

(20) “Usual living arrangement” means an individual’s usual living arrangement, including but not limited to homelessness, homeless shelter, private home, adult care facility licensed by the Ohio department of health (ODH) or ODMH, adult foster home, purchase of service (POS) home, intermediate care facility for the mentally retarded (ICF-MR), NF, rehabilitation center, jail, or hospital or part of a hospital licensed by ODMH under section 5119.20 of the Revised Code.

(1) PAS/ID must be completed prior to any new admission (defined in paragraph (B)(8) of this rule) unless the admission meets the criteria for an exempted hospital discharge specified in paragraph (C)(2) of this rule.

(2) Exempted hospital discharge. Individuals seeking new admissions are exempt from PAS/ID requirements if they meet the defining criteria of an admission for a convalescent stay (set forth in paragraph (B)(2) of this rule) and the admitting NF or, for individuals enrolling for HCBS waiver III (passport waivered services), the responsible passport administrative agency (PAA) (defined in rule 5101:3-31-03 of the Administrative Code) meets the following requirements:

(a) The admitting NF or, for individuals enrolling for HCBS waiver III (passport waivered services), the responsible PAA must obtain from the discharging hospital, and/or the individual’s attending physician, written documentation which verifies that each of the defining criteria for an admission for a convalescent stay have been met; and

(b) The admitting NF shall retain the documentation required by paragraph (C)(2)(a) of this rule in the individual’s resident record at the facility. For individuals enrolling for HCBS waiver III (passport waivered services), the responsible PAA shall retain such documentation in the individual’s HCBS waiver III (passport waivered services) record.

(3) PAS/ID may be initiated by the individual who is seeking the new admission, or by another entity on behalf of the individual.

(4) PAS/ID must be initiated via the completion of a PASRR Identification Screen” form (ODHS 3622), and a “Patient Care and Plan of Treatment” form (ODHS 3697) or an alternative form approved by ODHS.

(5) ODHS, or its designee, shall review the ODHS 3622 form to determine whether the individual has MR/DD and/or indications of SMI.

(a) An individual shall be determined to have indications of SMI if the individual:

(i) Meets at least two of the three criteria specified in paragraph (B)(16) of this rule; or

(ii) Due to a mental impairment, receives supplemental security income (SSI) authorized under Title XVI of the Social Security Act, as amended; or

(iii) Due to a mental impairment, receives social security disability insurance (SSDI) authorized under Title II of the Social Security Act.

(b) An individual shall be determined to have indications of MR/DD if the individual’s condition meets the defining criteria set forth in paragraph (B)(7) of this rule.

(6) PAS/ID results shall determine whether an individual is subject to further review.

(a) Individuals determined to have no indications of SMI and/or MR/DD are not subject to further PAS review.

(b) Individuals determined to have indications of SMI shall be subject to further review by ODMH in accordance with rule 5122-21-03 of the Administrative Code.

(c) Individuals determined to have indications of MR/DD shall be subject to further review by ODMR/DD in accordance with rule 5123:2-14-01 of the Administrative Code.

(d) Individuals determined to have indications of both SMI and MR/DD shall be subject to further review by both ODMH and ODMR/DD in accordance with rules 5122-21-03 and 5123:2-14-01 of the Administrative Code.

(7) When an individual has been determined to have indications of SMI and/or MR/DD, ODHS or its designee shall forward the ODHS 3622 form and the ODHS 3697 (or an alternative form specified by ODHS) to ODMH and/or ODMR/DD, as appropriate, so that it may be determined whether the individual has SMI and/or MR; and if so, for the PAS/SMI and/or PAS-MR/DD review.

(8) ODHS, or its designee, shall report the outcome of the PAS/ID to the individual or other entity who initiated the review and, where applicable, indicate the department(s) to which the ODHS 3622 was sent for further review.

(9) The admitting NF shall maintain the results of the PAS/ID in the individual’s resident record at the facility. For individuals enrolling for HCBS waiver III (passport waivered services), the PAA shall maintain the results of the PAS/ID in the individual’s HCBS waiver III (passport waivered services) record.

(D) PAS/SMI and PAS-MR/DD determination requirements:

(1) PAS/SMI and/or PAS-MR/DD must be completed prior to any new admission of an individual determined by ODMH and/or ODMR/DD to have SMI and/or MR/DD unless the individual is a long-term resident as defined in paragraph (B)(6) of this rule.

(2) For long-term residents, the choice to reside in a NF and to receive specialized services for SMI and/or MR/DD provided by ODMH and/or ODMR/DD is a portable benefit. Therefore, unless there is evidence that the individual’s condition has changed such that the individual needs the level of services provided by a NF and/or is no longer in need of specialized services, ODMH and/or ODMR/DD may notify the individual and the receiving NF of the individual’s status as a long-term resident and make arragements for the continued provision of specialized services.

(3) Section 1919(e)(7) of the Social Security Act prohibits ODMH and/or ODMR/DD from utilizing criteria relating to the need for NF care or specialized services that are inconsistent with that statute and the ODHS approved state plan for medicaid. The approved state plan for medicaid includes level of ,are criteria, conuined in Chapter 5101:3-3 ofthe Administrative Code. Therefore, ODMH and ODMR/DD may not use criteria inconsistent with Chapter 5101:3-3 of the Administrative Code in making their detenninations regarding whether individuals with SMI and/or MR/DD need the level of services provided by a NF.

(4) The admitting NF shall retain the written notification ofthe PAS/SMI and/or PAS-MR/DD determinations received from ODMH and/or ODMR/DD in the individual’s resident record at the facility. For individuals enrolling for HCBS waiver III (PASSPORT waivered services), the responsible PAA shall retain such determinations in the individual’s HCBS waiver III (PASSPORT waivered services) record.

(5) Adverse determinations may be appealed in accordance with DIVISION LEVEL DESIGNATION 5101:6 of the Administrative Code.

(E) In accordance with section 1919 (e)(7) of the Social Stturity Act, there shall be no new admission of any individual with SMI or MR/DD, regardless of payment source, unless the individual has either been determined, in accordance with rules 5122-21-03 and/or 5123:2-14-01 of the Administrative Code, to need the level of services provided by a NF, or has qualified for admission under the exempted hospital discharge provision set forth in paragraph (C)(2) of this rule.

HISTORY: Effective Date: 1-1-98

Review Date 1-1-03

Prior Effective Dates: 5-1-93; 12-30-88 (Emer.); 3-31-89 (Emer.); 6-30-89

Rule promulgated under: RC 119.

Rule authorized by: RC 5111.02, 5101.75, 5101.752

Rule amplifies: RC 5111.01, 5101.02, 5101.202, 5101.75, 5101.752 119.032

5101:3-3-15.2 Resident review (RR) requirements for individuals residing in nursing facilities (NFs).

(A) The purpose of this rule is to set forth the RR requirements which must be met in order to comply with Section 1919 (e)(7) of the Social Security Act, as amended. NFs are prohibited from retaining any individual who has serious mental illness (SMI) (as defined in paragraph (B)(16) of rule 5101:3-3-151 of the Administrative Code) or mental retardation and/or other developmental disabilities (MR/DD) (as defined in paragraph (B)(7) of rule 5101:3-3-151 of the Administrative Code) unless the RR requirements specified in this rule have been met.

(B) Definitions:

(1) “Resident review (RR)” means the resident review portion of the preadmission screening and resident review (PASRR) requirements mandated by Section 1919(e)(7) of the Social Security Act, as amended, which must be implemented in accordance with the provisions of this rule and rules 5122-21-03 and OR 5123:2-14-01 of the Administrative Code.

(2) RR identification (RR/ID).” RR/ID” is the process by which individuals are identified who, pursuant to the provisions of paragraphs (D) and (E) of this rule, are subject to RR.

(3) Resident review for serious mental illness (RR/SMI)” means the process, set forth in rule 5122-21-03 of the Administrative Code, by which the Ohio department of mental health (ODMH) determines whether, due to the individual’s physical and mental condition, an individual who is subject to RR, and who has serious mental illness (SMI) (as defined in paragraph (B)(16) of rule 5101:3-3-151 of the Administrative Code) requires the level of services provided by a NF or another type of facility; and, whether that individual requires specialized services for serious mental illness (as defined in paragraph (B)(17) of rule 5101:3-3-151 of the Administrative Code).

(4) Resident review for mental retardation/developmental disabilities (RR-MR/DD)” means the process, set forth in rule 5123:2-14-01 of the Administrative Code, by which the Ohio department of mental retardation and developmental disabilities (ODMR/DD) determines whether, due to the individual’s physical and mental condition, an individual who is subject to RR, and who has mental retardation/developmental disabilities (MR/DD) (as defined in paragraph (B)(7) of rule 5101:3-3-151 of the Administrative Code) requires the level of services provided by a NF or another type of facility; and, whether the individual requires specialized services for MR/DD.

(5) “Current diagnoses” means those diagnoses verified by the individual’s attending physician as current in the most recent physical examination report, physician progress notes, or annual reevaluation of current diagnoses performed while the individual is a NF resident.

(6) “Individual.” For purposes of this rule, individual means a person, regardless of payment source, who resides in a NF.

(7) “Significant change of condition.” for purposes of this rule, “significant change of condition” has the same meaning used in administering the routine resident assessment requirements specified in rule 5101:3-3-40 of the Administrative Code and that at least one of the following criteria is met:

(a) There is a change in the individual’s current diagnosis(es), mental health treatment, functional capacity, or behavior such that, as a result of the change, the individual who did not previously have indications of SMI, or who did not previously have indications of MR/DD, now has such indications (as defined in paragraph (C)(5) of rule 5101:3-3-151 of the Administrative Code) (this includes any individual who may have had indications of one or the other but now has indications of both SMI and MR/DD), or who was previously determined by ODMH not to have SMI but who now meets all three of the defining criteria for SMI (set forth in paragraph (B)(16) of rule 5101:3-3-151 of the Administrative Code); or

(b) The change is such that it may impact the mental health treatment or placement options of an individual previously identified as having SMI and/or may result in a change in the specialized services needs of an individual previously identified as having MR/DD.

(8) “Hospital stay for psychiatric treatment” means the admission of an individual to a psychiatric hospital operated by ODMH, or a psychiatric hospital or psychiatric unit of a hospital licensed by ODMH under section 5119.20 of the Revised Code.

(1) The individual was admitted under the exempted hospital discharge provision set forth in paragraph (C)(2) of rule 5101:3-3-151 of the Administrative Code, and has since been found to require more than thirty days of services at the NF level;

(2) The individual’s admission is a NF transfer, as defined in paragraph (B)(9) of rule 5101:3-3-151 of the Administrative Code, and there are no PASRR records available from the previous NF placement;

(3) The individual had been in a different NF and was admitted directly following an intervening hospital stay forpsychiatric treatment (as defined in paragraph (B)(8) of this rule), or was readmitted to the same NF directly following a hospital stay for psychiatric treatment, and has experienced a significant change of condition since the last PASRR determination;

(4) The individual has experienced a significant change in condition (as defined in paragraph (B)(7) of this rule).: or

(5) The individual received a categorical PAS-SMI or PAS-MR/DD determination (as defined in rules 5122-21-03 and 5123:2-14-01 of the Administrative Code) and the stay has exceeded the specified time limit for that category.

(D) RR/ID requirements:

(1) Timelines for submission:

(a) For those individuals specified in paragraphs (C)(1) to (C)(2) of this rule, RR/ID must be initiated not more than thirty days following the date of the current admission.

(b) For those individuals specified in paragraphs (C)(3) and (C)(4) of this rule, the RR/ID must be initiated promptly upon identification of the significant change.

(c) For those individuals specified in paragraph (C)(5) of this rule, the RR/ID must be initiated no later than the expiration date of the categorical determination.

(2) The NF must initiate the RR/ID.

(3) RR/ID must be initiated via the completion of a PASRR Identification Screen” form (ODHS 3622).

(4) The NF shall review the completed ODHS 3622 form to determine whether the individual has indications of having SMI and/or MR/DD (as defined in paragraphs (C)(5)(a) and (C)(5)(b) of rule 5101:3-3-151 of the Administrative Code).

(5) RR/ID results shall determine whether an individual is subject to further review.

(a) Individuals determined to have no indications of SMI and/or MR/DD are not subject to further RR review.

(b) Individuals determined to have indications of SMI shall be subject to further review by ODMH in accordance with rule 5122-21-03 of the Administrative Code.

(c) Individuals determined to have indications of MR/DD shall be subject to further review by ODMR/DD in accordance with rule 5123:2-14-01 of the Administrative Code.

(6) Routing of completed forms:

(a) For individuals determined to have no indications of either MR/DD or SMI, the NF shall place and maintain the ODHS 3622 and all supporting evidence in the resident’s record at the facility;.

(b) For individuals determined to have indications of SMI and/or MR/DD, the NF shall submit the ODHS 3622, documentation supporting the ODHS 3622, as well as documentation of the individual’s current condition and evidence of the individual’s need for services at the NF level to ODMH and/or ODMR/DD so that it may be determined whether the individual has SMI and/or MR/DD; and if so, for the RR/SMI and/or RR-MR/DD review.

(c) ODMH and/or ODMR/DD, may request any additional information required in order to make an RR/ID determination, and shall report the outcome of the RR/ID to the NF that initiated the review and, where applicable,indicate the agency to which the individual was referred for further evaluation.

(d) The NF shall maintain the results of the RR/ID in the individual’s resident record at the facility.

(E) RR/SMI and RR-MR/DD requirements:

(1) RR/SMI is required for all individuals who were determined by ODMH during the RR/ID, in accordance with this rule and RULE 5122-21-03 of the Administrative Code, to have SMI.

(2) RR-MR/DD is required for all individuals who were determined by ODMR/DD during the RR/ID in accordance with this rule and RULE 5123:2-14-01 of the Administrative Code, to have MR/DD.

(3) Individuals with both SMI and MR/DD are subject to both RR/SMI and RR-MR/DD.

(4) If the individual is subject to RR/SMI and/or RR-MR/DD and there is no record of the determinations in the medical record and/or no indication that they are in progress, the NF shall notify ODMH and/or ODMR/DD.

(5) Section 1919(e)(7) of the Social Security Act prohibits ODMH and/or ODMR/DD from utilizing criteria relating to the need for NF care or specialized services that are inconsistent with that statute and the ODHS approved state plan for medicaid. The approved state plan for medicaid includes level of care criteria, contained in Chapter 5101:3-3 of the Administrative Code. Therefore, ODMH and ODMR/DD may not use criteria inconsistent with Chapter 5101:3-3 of the Administrative Code in making their determinations regarding whether individuals with SMI and/or MR/DD need the level of services provided by a NF.

(6) ODMH and/or ODMR/DD shall provide written notification of all RR/SMI and/or RR-MR/DD determinations made.

(a) Such written notice shall be provided to:

(i) The evaluated individual and his or her legal representative;

(ii) The NF in which the individual is a resident; and

(iii) The individual’s attending physician.

(b) Such written notice shall include all of the following components:

(i) The determination as to whether the individual requires the level of services provided by a NF;

(ii) The determination as to whether the individual requires specialized services for SMI and/or MR/DD;

(iii) The placement and/or service options that are available to the individual consistent with those determinations; and

(iv) The individual’s right to appeal the determination(s).

(7) The NF shall retain the written notification of the RR/SMI and/or RR-MR/DD determinations received from ODMH and/or ODMR/DD in the individual’s resident record at the facility.

(8) Adverse determinations may be appealed in accordance with division level designation 5101:6 of the Administrative Code.

(F) In accordance with section 1919(e)(7) of the Social Security Act, no individual with SMI or MR/DD shall be retained as a resident in a NF, regardless of payment source, unless it has been determined, in accordance with rules 5122-21-03 and/or 5123:2-14-01 of the Administrative Code, that:

(1) The individual needs the level of services provided by a NF; OR

(2) The individual had resided in a NF for at least thirty months at the time of the first RR determination that the individual does not require the level of services provided by a NF and requires specialized services only; and the individual has chosen to remain in a NF in accordance with the federal regulations set forth in 42 CFR 483.118(c)(1);.

(G) Medicaid vendor payment.

(1) Medicaid vendor payment is not available for the provision of specialized services for SMI and/or MR/DD.

(2) Medicaid vendor payment is available for the provision of NF services to medicaid-eligible individuals subject to RR/SMI and/or RR-MR/DD only when the individual has met the criteria for retention set forth in paragraph (F) of this rule.

(3) For those medicaid-eligible individuals subject to RR/SMI and/or RR-MR/DD who do not meet the retention criteria set forth in paragraph (F) of this rule, medicaid vendor payment shall be available for no more than thirty days following the date of the adverse determination or thirty days following the date of a hearing decision upholding an adverse determination, whichever is later.

(4) When an RR/ID is not initiated by the NF within the timeframes specified in paragraph (D)(1) of this rule, but is performed at a later date, medicaid vendor payment is not available for services furnished to the eligible individual from the date the RR/ID was due through the seventh calendar day following the receipt of the ODHS 3622 form by ODMH or ODMR/DD or the date of the RR is earlier.

Effective Date: 1-1-98

Prior Effective Dates: 5-1-93;

Rule promulgated under: RC 119.

Rule authorized by: RC 5111.02, 5101.75, 5101.752

Rule amplifies: RC 5111.01, 5101.02, 5101.202, 5101.75, 5101.752 119.032

Review Date: 1-1-03

5101:3-3-15.3 Level of care review process for intermediate care facilities for the mentally retarded.

(A) “Level of care review”, as used in this rule, is an assessment of an individual’s physical, mental, habilitative and social/emotional needs to determine whether the individual requires intermediate care facility services for the mentally retarded. Level of care (LOC) review is conducted pursuant to paragraph 1902(a)(30)(A) of the Social Security Act and are those activities necessary to safeguard against unnecessary utilization. “Intermediate care facility services for the mentally retarded” are those services available in facilities certified as intermediate care facilities for the mentally retarded (ICF-MR) by the Ohio department of health.

The evaluation of an individual’s LOC needs determines the appropriately certified facility type for which medicaid vendor payment can be made. Except as provided in paragraph (D) of this rule, vendor payment can be initiated to an ICF-MR only when the applicant is determined to need an ICF-MR LOC according to the criteria specified in rule 5101:3-3-07 of the Administrative Code.

(B) Definitions:

(1) “CDHS” means county department of human services.

(2) “ICF-MR” means intermediate care facility for the mentally retarded. An “ICF-MR” is a long term care facility certified to provide services to individuals with mental retardation or a related condition who require active treatment as defined at 42 CFR 483.440. In order to be eligible for vendor payment in an ICF-MR, a medicaid recipient must be assessed and determined by ODHS to be in need of an ICF-MR level of care as outlined in rule 5101: 3-3-07 of the Administrative Code.

(3) “Individual” means a medicaid recipient or person with pending medicaid eligibility who is making application to a nursing facility (NF) or ICF-MR; or who resides in a NF or an ICF-MR; or is applying for home and community-based services (HCBS) waiver enrollment.

(4) “Physician” means a doctor of medicine or osteopathy who is licensed to practice medicine in the state of Ohio.

(5) “Psychologist” means a degreed psychologist who has been licensed by the Ohio board of psychology to practice psychology in the state of Ohio.

(1) Hospitalized individuals who are not currently ICF-MR residents who are applying for ICF-MR placement.

(2) Hospitalized individuals who are current ICF-MR residents who are seeking admission to a different ICF-MR.

(3) Individuals seeking readmission to the ICF-MR after exhausting available paid hospital leave days (see rule 5101:3-3-03 of the Administrative Code requirements regarding available leave days).

(4) Individuals who are current ICF-MR residents who are seeking admission to a different ICF-MR.

(5) Individuals who are not currently ICF-MR residents who are seeking admission to an ICF-MR from community living arrangements.

(6) Individuals who were on paid leave days are not in a hospital setting and who have exhausted their paid leave days, who are seeking readmission to an ICF-MR.

(7) Current ICF-MR residents who are requesting medicaid reimbursement of their ICF-MR stay.

(8) Individuals applying for HCBS waiver services.

(D) Under the circumstances in paragraphs (D)(1), (D)(2) and (D)(3) of this rule, vendor payment shall be continued or reinstated when a change in institutional setting is sought.

(1) Current ICF-MR residents receiving medicaid vendor payment who wish to transfer to another ICF-MR must submit a completed ODHS 3697 form, not later than the day of transfer to the new ICF-MR, as specified in paragraphs (E)(1) and (E)(2) of this rule to initiate reimbursement in the new ICF-MR effective from the date of admission.

(a) Under this circumstance, vendor payment to the new ICF-MR will be authorized back to the date of the individual’s admission to the facility. ODHS shall notify the appropriate CDHS to begin vendor payment. If ODHS determines that the individual is no longer in need of an ICF-MR LOC, ODHS will notify the recipient and the ICF-MR as to the adverse ODHS determination and ODHS’s intent to terminate vendor payment. The notice shall set forth the recipient’s hearing rights and the time frames within which they must be exercised. ODHS may instruct the appropriate CDHS, as its designee to issue this notice.

(b) If a hearing request is received in response to the notice specified in paragraph (D)(1)(a) of this rule within time frames specified in rule 5101:1-35-04 of the Administrative Code that require the continuation of benefits, authorization for payment will be continued pending the issuance of a state hearing decision.

(c) If the individual does not submit a hearing request within the time frame specified in paragraph (D)(1)(b) of this rule, vendor payment will automatically terminate on the date specified in the notice advising the recipient of ODHS’ intent to terminate vendor payment.

(2) Hospitalized individuals who are current ICF-MR residents and are seeking admission to a different ICF-MR, must meet the requirements in paragraphs (D)(1)(a), (D)(1)(b) and (D)(1)(c) of this rule in order to have vendor payment authorized from the date of admission. These requirements must be met regardless of whether they have exhausted paid leave days.

(3) Hospitalized individuals who are seeking readmission to the same ICF-MR after exhaustion of paid leave days may be readmitted to that ICF-MR regardless of the results of the LOC determination if, not later than the date of readmission, the recipient submits a completed ODHS 3697 form to initiate reimbursement effective from the date of readmission. If the LOC determination does not match the certification of the facility as specified in paragraph (A) of this rule, the following procedures will apply:

(a) Vendor payment to the ICF-MR will be authorized back to the date of the individual’s admission to the facility. ODHS shall notify the appropriate CDHS to begin vendor payment. If ODHS determines that the individual is no longer in need of an ICF-MR LOC, ODHS will notify the recipient and the ICF-MR as to the adverse ODHS determination and ODHS’ intent to terminate vendor payment. The notice shall set forth the recipient’s hearing rights and the time frames within which they must be exercised. ODHS may instruct the appropriate CDHS as its designee to issue this notice.

(b) If a hearing request is received in response to the notice specified in paragraph (D)(3)(a) of this rule within the time frames specified in rule 5101:1-35-04 of the Administrative Code that require the continuation of benefits, authorization for payment will be continued pending the issuance of a state hearing decision.

(c) If the individual does not submit a hearing request within the time frame specified in paragraph (D)(3)(b) of this rule, vendor payment will automatically terminate on the date specified in the notice advising the recipient of ODHS’ intent to terminate vendor payment.

(E) In order to obtain a LOC determination, an ODHS 3697, or an alternative form specified by ODHS, which has been appropriately completed, accurately reflects the individual’s current mental and physical condition, and is certified by a physician must be submitted for review by ODHS.

(1) The ODHS 3697, or another ODHS-authorized alternative form must include the following components and/or attachments:

(a) Individual’s name; medicaid number; date of original admission to the facility, if applicable; current address; name and address of residence if current residence is a licensed or certified residential setting or hospital; and county where the individual’s medicaid case is active.

(b) A comprehensive medical, social and psychological evaluation of the individual. The psychological evaluation must be made before admission, but not more than three months before admission. Each evaluation must include:

(i) Diagnosis, including medical, psychiatric and developmental diagnoses, including dates of onset, if the date of onset is significant in determining whether the individual has a developmental disability;

(ii) Summary of medical, social and developmental findings;

(iii) Medical and social family history;

(iv) Mental and physical functional capacity;

(v) Prognoses;

(vi) Kinds of services needed including medical treatments, medications, and other professional medical services;

(vii) Evaluation of the resources available in the home, family and community;

(viii) A physician’s certification of the individual’s need for ICF-MR care made at the time of admission, or if the individual applies for medicaid while a resident of an ICF-MR, prior to the initiation of vendor payment.

(2) The ODHS 3697 must be complete when it is submitted to ODHS in order for a LOC determination to be made. Any entity (a CDHS, hospital or ICF-MR) who submits a LOC request must ensure that all required components are included before submission.

(a) Following receipt by ODHS of the ODHS 3697, ODHS shall make a determination of whether the ODHS 3697 is sufficiently complete for its personnel to perform the LOC review. If the ODHS 3697 is not complete, ODHS shall notify, in writing, the recipient, the contact person indicated on the ODHS 3697, and the ICF-MR or any other entity responsible for the submission of the ODHS 3697, that additional documentation is necessary in order to complete the LOC review. This notice shall specify the additional documentation that is needed and shall indicate that the individual or another entity has twenty days from the date ODHS mails the notice to submit additional documentation or the ODHS 3697 will be denied for incompleteness with no LOC authorized. In the event an individual or other entity is not able to complete an ODHS 3697 in the time specified, ODHS shall, upon good cause, grant one extension of no more than five days when an extension is requested by the recipient or other entity.

(b) If the ODHS 3697 is complete upon receipt by ODHS, or, if within the periods specified in paragraph (E)(2)(a) of this rule, the recipient submits the required documentation, ODHS shall issue a LOC determination within sixty days of the original receipt of the ODHS 3697 by ODHS. A LOC determination will be issued pursuant to the criteria specified in rules 5101:3-3-05, 5101:3-3-06 and 5101:3-3-07 of the Administrative Code.

(3) A request for an ICF-MR LOC will not be denied by ODHS for the reason that the individual does not need ICF-MR services until a qualified professional whose qualifications include being a registered nurse or a qualified mental retardation professional (as specified at 42 CFR 483.430) conducts a face-to-face assessment of the individual, reviews the medical records that accurately reflect the individual’s condition for the time period for which payment is being requested; makes a reasonable effort to contact the individual’s physician; and investigates and documents alternative community resources including resources available in the home and family which may be available to meet the needs of the individual. Authorized personnel other than the person who conducted the face-to-face assessment will review the face-to-face assessment and make the final LOC decision.

(F) The LOC review process:

(1) ODHS reviews the application material submitted for the individual and completes the payment authorization (ODHS 3670) and sends it, along with the ODHS 3697, to the CDHS designated on the ODHS 3697. The CDHS shall send a copy of the ODHS 3697 and ODHS 3670 to the ICF-MR.

(2) Authorization of payment to an ICF-MR shall correspond with the effective date of the LOC determination specified on the ODHS 3670. This date shall be:

(a) The date of admission to the ICF-MR if it is within thirty days of the physician’s signature; or

(b) A date other than that specified in paragraph (F)(2)(a) of this rule. This alternative date may be authorized only upon receipt of a letter which contains a credible explanation for the delay from the originator of the LOC request. If the request is to backdate the LOC more than thirty days from the physician’s signature, the physician must verify the continuing accuracy of the information and need for inpatient care by either adding a statement to that effect on the ODHS 3697 or by attaching a separate letter of explanation.

Replaces: 5101:3-3-15

R.C. 119.032 review dates: 4/24/2002 and 04/24/2007

Promulgated Under: 119.03

Statutory Authority: RC 5111.02

Rule Amplifies: RC 5111.01, 5111.02

Prior Effective Dates: 4/7/77, 10/14/77, 7/1/80, 8/1/84, 1/17/92 (Emer.), 4/16/92

5101:3-3-15.5 ICF-MR Level of care determination process for home and community based medicaid waivers administered by the Ohio department of mental retardation and developmental disabilities.

(A) The purpose of this rule is to describe the level of care review and determination process for all individuals applying for an ICF-MR home and community based medicaid waiver administered by the Ohio department of mental retardation and development disabilities and to describe the annual level of care redetermination process. An ICF-MR level of care determination is required for all individuals as a component of eligibility for ICF-MR home and community based services.

(B) Definitions

(1) “CBMRDD” means a county board of mental retardation and developmental disabilities that has local medicaid administrative authority under section 5126.055 of the Revised Code.

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

(3) “ICF-MR” means intermediate care facility for the mentally retarded.

(4) “HCBS”, as defined in section 5126.01 of the Revised Code means medicaid-funded home and community based services as an alternative to placement in an intermediate care facility for mental retardation provided under a medicaid component that the department of mental retardation and development disabilities administers pursuant to section 5111.871 of the Revised Code.

(5) “ICF-MR home and community based services” means the residential facility waiver, the individual options waiver and any new or amended hcbs waivers that are designed to provide services in lieu of an ICF-MR facility.

(6) “ICF-MR LOC determination” means a decision made by appropriately qualified personnel which establishes that an individual does or does not meet the criteria for an intermediate care facility for the mentally retarded level of care specified in rule 5101:3-3-07 of the Administrative Code.

(7) “Individual” means a medicaid recipient or person with pending medicaid eligibility who is making application for an ICF-MR home and community based waiver.

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

(9) “ODMRDD” means the Ohio department of mental retardation and developmental disabilities.

(10) “Significant change of condition” means that the individual has experienced a change in physical or mental condition, or functional abilities, or has reached the age of 6 or the age of 16, any of which may result in a change in the individual’s level of care.

(C) The CBMRDD, shall, in accordance with section 5126.055 of the Revised Code, coordinate and/or perform evaluations and assessments of the individual and make a recommendation to ODJFS or designee as to whether the individual meets the criteria for an ICF-MR level of care as set forth in rule 5101:3-3-07 of the Administrative Code.

(1) The assessment shall include:

(a) Medical, psychiatric and developmental diagnoses, and dates of onset if the date of onset is significant in determining whether the individual has a developmental disability; and

(b) Review of current functional capacity. This review should be documented on a standard functional assessment form that is approved by the Ohio department of job and family services.

(2) The assessment documentation shall be kept in the official waiver file and made available for state and federal quality assurance and audit purposes.

(D) CBMRDD shall submit a recommendation and supporting documentation described in this section to ODJFS or designee for review and approval or denial of an ICF-MR LOC determination as set forth in rule 5101:3-3-07 of the Administrative Code.

(1) For an initial ICF-MR LOC determination, the cbmrdd shall submit to ODJFS or designee the following documentation supporting the individual’s need for an ICF-MR LOC:

(a) A medical evaluation which includes etiology of the condition leading to a developmental disability, diagnoses, and dates of onset, completed by a doctor of medicine or osteopathy who is licensed by the state of Ohio medical board.

(b) A psychological evaluation completed by a psychologist who has been licensed by the Ohio board of psychology to practice psychology in the state of Ohio, or a psychiatric evaluation completed by a psychiatrist licensed to practice psychiatry by the state of Ohio medical board, which includes the most current diagnoses as specified in the most current diagnostic statistical manual of mental disorders, axes I, II and III.

(2) The CBMRDD shall submit an ICF-MR LOC redetermination to ODJFS or designee within twelve months of the initial LOC determination, and every year thereafter, and upon a significant change of the individual’s condition, as defined in paragraph (B) (10) of this rule, which will establish one of the following:

(a) The individual has not had a significant change in condition. The cbmrdd shall submit the appropriate ICF-MR LOC redetermination form verifying that the individual’s condition has not changed significantly since the initial loc determination and shall recommend continuation of the ICF-MR LOC; or

(b) The individual has experienced a significant change of condition from the time of the initial ICF-MR LOC determination. The CBMRDD shall reassess the individual’s needs and submit new evaluations which verify the change in condition with the appropriate ICF-MR LOC redetermination form. This redetermination should be completed as soon as a significant change in condition has occurred.

(E) Following receipt by ODJFS or designee of the documentation specified in paragraph (D) (1)(c) of this rule, ODJFS or designee shall make a determination of whether the documentation is sufficiently complete for its personnel to perform the ICF-MR LOC review and make a determination based upon the criteria set forth in rule 5101:3-3-07 of the Administrative Code.

(1) If the documentation is not complete, ODJFS or designee shall notify the individual and the CBMRDD regarding the need for additional documentation. This notice shall specify the additional documentation that is required and shall indicate that the individual, or someone on their behalf, has twenty days from the date ODJFS or designee mails the notice to submit additional documentation or the authorized form will be denied for incompleteness with no ICF-MR LOC authorized. In the event an individual, or someone on their behalf, is not able to complete an authorized form in the time specified, ODJFS or designee shall, upon good cause, grant an extension when an extension is requested by the individual or someone on their behalf.

(2) Within thirty days of receipt of all required documentation, ODJFS or designee shall issue an ICF-MR LOC determination. An ICF-MR LOC determination will be issued pursuant to the criteria as set forth in rule 5101:3-3-07 of the Administrative Code.

(3) A request for an ICF-MR LOC will not be denied by ODJFS or designee for the reason that the individual does not meet the ICF-MR LOC criteria, as set forth in rule 5101:3-3-07 of the Administrative Code, until a qualified professional, whose qualifications include being a registered nurse or a qualified mental retardation professional, as specified at 42 C.F.R 483.430, conducts a face-to-face assessment of the individual and reviews the medical records that accurately reflect the individual’s condition. Authorized personnel other than the person who conducted the face-to-face assessment will review the face-to-face assessment and make the final ICF-MR LOC determination.

(F) Once a final ICF-MR LOC determination is made, ODJFS or designee shall notify the individual. The notice shall establish the individual’s hearing rights, as set forth in rule 5101:6-2-02 to 5101:6-2-04 of the Administrative Code, and the time frames within which they must be exercised.

(1) If a hearing request is received in response to the notice specified in paragraph (F) of this rule and within the time frames specified in rule 5101:6-4-01 of the Administrative Code that require the continuation of benefits, authorization for payment will be continued pending the issuance of a state hearing decision.

(2) If the individual does not submit a hearing request within the time frame specified in paragraph (F) of this rule, vendor payment will automatically terminate on the date specified in the notice advising the recipient of ODJFS’ intent to terminate vendor payment.

(G) Federal financial participation (FFP) shall not be claimed for ICF-MR home and community based waiver services delivered prior to the ICF-MR LOC determination date.

HISTORY: Eff 11-1-01 (Emer.); 1-20-02

Rule promulgated under: RC Chapter 119.

Rule authorized by: RC 5111.02

Rule amplifies: RC 5111.01, 5111.02

Rule REVIEW DATE: 11/5/01, 11/5/06

5101:3-3-16 Resident rights for nursing facilities (NFs).

(A) Definitions.

As used in this rule, the terms below have the following meanings:

(1) “Nursing facility” (NF) has the same meaning as in section 5111.20 of the Revised Code. Types of institutions that may be certified as NFs include all of the following:

(a) Nursing homes as defined in section 3721.01 of the Revised Code; and

(b) County homes 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; and

(2) “Nursing home” has the same meaning as in section 3721.01 of the Revised Code.

(B) Rights protected by federal regulations.

The rights of residents of a NF shall include, but are not limited to, resident rights provided for in 42 CFR 483.10 (October 1, 2006), 42 CFR 483.12 (October 1, 2006), 42 CFR 483.13 (October 1, 2006), and 42 CFR 483.15 (October 1, 2006).

The rights of residents of a licensed nursing home shall include, but are not limited to, resident rights provided for in sections 3721.10 to 3721.17 and 3721.19 of the Revised Code and Chapters 3701-17 and 3701-61 of the Administrative Code.

(D) Additional rights.

The aforementioned rights are in addition to such rights as may be provided for in sections 173.02, 173.13, 173.19, 3701.07, 3721.021, 3721.18, 3721.23, and 5111.49 of the Revised Code.

Replaces: 5101:3-3-16

Effective: 04/01/2008

R.C. 119.032 review dates: 04/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.10, 3721.12 to 3721.17, 5111.02, 5111.49

Prior Effective Dates: 4/7/77, 7/1/80, 9/24/93 (Emer.), 12/24/93, 7/1/00, 7/1/03

5101:3-3-16.1 Resource assessment notice for nursing facilities (NFs) and intermediate care facilities for the mentally retarded (ICFs-MR).

(A) General.

The JFS 04080 “Medicaid Resource Assessment Notice” (rev. 10/2005) shall conform to all conditions set forth in rule 5101:1-39-35 of the Administrative Code.

(B) Notification.

(1) All NF and ICF-MR operators shall furnish written notice at the time of admission to all individuals with a spouse living in the community of the individual’s right to have a resource assessment performed by the county department of job and family services (CDJFS). This includes individuals who, at the time of admission, are eligible for the medicare program, or who are covered by a private third party payer.

(2) The NF or ICF-MR operator shall do all of the following:

(a) Give a copy of the resource assessment notice to the resident’s family member, legal guardian, or authorized agent; and

(b) Send a copy of the signed resource assessment notice to the CDJFS within five working days; and

(c) Post an unsigned copy of the resource assessment notice in a prominent, publicly accessible place within the facility.

A NF or ICF-MR operator shall keep a signed copy of the resource assessment notice in a resident’s record as long as he or she is a resident of the facility. This copy shall be made available upon request to the staff of the Ohio department of job and family services (ODJFS), the CDJFS, and the Ohio department of health (ODH).

Replaces: 5101:3-3-16.1

Effective: 04/01/2008

R.C. 119.032 review dates: 04/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02

Prior Effective Dates: 1/1/90 (Emer), 3/22/90, 1/1/95, 1/2/96 (Emer), 3/14/96, 5/16/02, 9/29/05

5101:3-3-16.2 Advance directives for nursing facilities (NFs).

(A) Definitions.

“Advance directive” means a written instruction that is recognized under state law (whether statutory or as recognized by the courts of the state) and relates to providing health care when a person is incapacitated. Advance directives include living wills, declarations as defined in Chapter 2133. of the Revised Code, and durable powers of attorney for health care as defined in Chapter 1337. of the Revised Code.

(B) NF resident rights concerning advance directives include the following:

(1) Right to accept or refuse medical or surgical treatment; and

(2) Right to formulate advance directives; and

(3) Right to receive a written copy of the NF operator’s policy on implementation of advance directives.

A NF operator shall establish and maintain written policies and procedures concerning advance directives with respect to all adult residents receiving medical care in the facility. These policies and procedures shall include the following:

(1) Provide written information to residents concerning their rights under 42 CFR 489.102 (October 1, 2006) and state law, whether statutory or as recognized by the courts of the state, to make decisions concerning their own medical care. This written information shall include a clear and precise statement of limitation if the NF operator cannot implement an advance directive on the basis of conscience. At a minimum, a statement of limitation shall include all of the following:

(a) Clarification of the differences between institution-wide conscientious objection and conscientious objection that may be raised by an individual physician; and

(b) Identification of Chapters 2133. and 1337. of the Revised Code as the state legal authority permitting conscientious objection; and

(2) Inform residents that complaints concerning compliance with the advance directive requirements may be filed with the Ohio department of health (ODH); and

(3) Document in a prominent part of a resident’s medical record whether or not the resident has executed an advance directive; and

(4) Not condition the provision of care or otherwise discriminate against a resident based on whether or not the resident has executed an advance directive; and

(5) Provide staff training concerning a NF operator’s policies and procedures on advance directives; and

(6) Provide documentable community education regarding advance directives, either directly or in conjunction with other providers and organizations. At a minimum, community educational materials shall:

(a) Define what constitutes an advance directive; and

(b) Emphasize that an advance directive is designed to enhance an incapacitated person’s control over their medical treatment; and

(D) Notification of written policies and procedures.

(1) A NF operator shall give a copy of the written policies and procedures set forth in paragraph (C) of this rule to each individual upon admission to the facility.

(2) If an adult resident is incapacitated at the time of admission or at the start of care and is unable to receive the information or articulate whether or not he or she has executed an advance directive, the NF operator shall give the information to the resident’s family or representative in accordance with state law.

(3) A NF operator is not relieved of the obligation to provide advance directive information to a resident once the resident is no longer incapacitated or unable to receive such information. Follow-up procedures shall be in place to provide the information directly to the resident at the appropriate time.

(E) Conscientious objection.

(1) As set forth in sections 1337.16 and 2133.10 of the Revised Code, nothing in this rule shall be construed as prohibiting a NF operator from objecting to implementing an advance directive on the basis of conscience and in good faith, so long as the NF operator continues life-sustaining treatment and does not prevent or delay the transfer of the resident to a health care facility that is willing and able to comply or allow compliance with the advance directive.

(2) If a NF operator objects to the implementation of an advance directive, the NF operator shall, upon the resident’s request, assist the resident in locating another NF that is willing to implement the advance directive.

Replaces: 5101:3-3-16.2

Effective: 04/01/2008

R.C. 119.032 review dates: 04/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.02

Prior Effective Dates: 1/1/95, 7/1/00, 7/1/03

5101:3-3-16.3 Private rooms in nursing facilities (NFs).

(A) Medical necessity.

(1) A nursing facility (NF) operator shall provide private room accommodations for a medicaid eligible resident if the resident requires a private room due to medical necessity.

(2) Medicaid payment shall be considered payment in full, and no supplemental payment may be requested or accepted from a resident or a resident’s representative.

(B) Semiprivate or ward accommodations unavailable.

(1) Medicaid shall not pay more for a private room than the current medicaid per diem rate the facility is receiving if semiprivate or ward accommodations are not available.

(2) Medicaid payment shall be considered payment in full, and no supplemental payment may be requested or accepted from a resident or a resident’s representative.

If semiprivate or ward accommodations are available and are offered to a resident but the resident or the resident’s representative makes a written request for a private room, the private room shall be considered a non-covered service for which the facility may seek supplemental payment from the resident or the resident’s representative. Such supplemental payment shall conform to all of the following:

(1) The supplemental payment amount shall represent no more than the difference between the charge to private pay residents for a semiprivate room and the charge to private pay residents for a private room; and

(2) The charge for the private room shall not include charges for services covered by medicaid, whether or not medicaid payment meets a NF operator’s cost for the per diem service; and

(3) A NF operator shall detail both monthly and annual supplemental charges, if applicable, on a resident’s statement of charges so that the additional cost of a private room is evident to the resident and the resident’s family; and

(4) The written request for a private room shall be kept in the resident’s file; and

(5) The amount of any supplemental payment shall not be considered an offset in determining patient liability for cost of care. All income that would otherwise be considered available to apply to the cost of care at the medicaid rate shall continue to be considered available.

Replaces: 5101:3-3-23

Effective: 04/01/2008

R.C. 119.032 review dates: 04/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.16

Prior Effective Dates: 9/2/82, 1/1/95, 7/1/00, 7/1/03

5101:3-3-16.4 Coverage of bed-hold days for medically necessary and other limited absences from nursing facilities (NFs).

(A) Definitions.

(1) “Home and community-based services” (HCBS) means services furnished under the provisions of rule 5101:3-1-06 of the Administrative Code, which enable individuals to live in a community setting rather than in an institutional setting such as a NF, an intermediate care facility for the mentally retarded (ICF-MR), or a hospital.

(2) “Hospitalization” means transfer and admission of a NF resident to a medical institution as defined in paragraph (A)(4) of this rule.

(3) “Institution for mental disease” (IMD) means a hospital, NF, or other institution of more than sixteen beds that is engaged primarily in the diagnosis, treatment, and care of persons with mental diseases, and that provides medical attention, nursing care, and related services. An institution is determined to be an IMD when 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.

(4) “Medical institution” means an institution that meets all of the following criteria:

(a) Is organized to provide medical care, including nursing and convalescent care; and

(b) Has the necessary professional personnel, equipment, and facilities to manage the medical, nursing, and other health care needs of patients on a continuing basis in accordance with accepted standards; and

(d) Is staffed by professional personnel who are responsible to the institution for professional medical and nursing services. Professional medical and nursing services shall include all of the following:

(i) Adequate and continual medical care and supervision by a physician; and

(ii) Registered nurse or licensed practical nurse supervision and services sufficient to meet nursing care needs; and

(iii) Nurses’ aid services sufficient to meet nursing care needs; and

(iv) A physician’s guidance on the professional aspects of operating the institution.

(5) “NF admission” means the act that allows an individual who was not considered a resident of any Ohio medicaid certified NF during the time immediately preceding their current NF residence to officially enter a facility to receive NF services. This may include former NF residents who have exhausted their bed-hold days while in the community and/or hospital. A NF admission may be a new admission or a return admission after an official discharge. A NF admission is distinguished from the readmission of a resident on bed-hold status.

(6) “NF bed-hold day,” also referred to as “NF leave day,” means a day for which a bed is reserved for a NF resident through medicaid payment while the resident is temporarily absent from the NF for hospitalization, therapeutic leave days, or visitation with friends or relatives. Payment for NF bed-hold days may be made only if the resident has the intent and ability to return to the same NF. A resident on NF bed-hold day status is not considered discharged from the NF since the facility is reimbursed to hold the bed while the resident is on temporary leave.

(7) “NF discharge” means the full release of a NF resident from the facility, allowing the resident who leaves the facility to no longer be counted in the NF’s census. Reasons for NF discharge include but are not limited to the resident’s transfer to another facility, exhaustion of NF bed-hold days from any pay source, decision to reside in a community-based setting, or death.

(8) “NF occupied day” means one of the following:

(a) A day of admission; or

(b) A day during which a medicaid eligible resident’s stay in a NF is eight hours or more, and for which the facility receives the full per resident per day payment directly from medicaid in accordance with Chapter 5101:3-3 of the Administrative Code.

(9) “NF readmission” means the status of a resident who is readmitted to the same NF following a stay in a hospital to which the resident was sent to receive care, or the status of a resident who returns after a therapeutic program or visit with friends or relatives. A NF resident can only be readmitted to a facility if that individual was not officially discharged from the facility during that NF stay.

(10) “NF therapeutic leave day” means a day that a resident is temporarily absent from a NF with intent and ability to return, and is in a residential setting other than a long-term care facility, hospital, or other entity eligible to receive federal, state, or county funds to maintain a resident, for the purpose of receiving a regimen or program of formal therapeutic services.

(11) “NF transfer” means the events that occur when a person’s place of residence changes from one Ohio medicaid certified NF to another, with or without an intervening hospital stay. However, when the person has an intervening IMD admission, or when the person is discharged from a NF during a hospital stay due to exhaustion of available NF bed-hold days and is admitted to a different NF immediately following that hospital stay, the change of residence is not considered a NF transfer.

(12) “Skilled nursing facility” (SNF) means a NF certified to participate in the medicare program.

(B) Prohibition of preadmission NF bed-hold payment.

(1) ODJFS shall not make payment to reserve a bed for a medicaid eligible prospective NF resident.

(2) A NF provider shall not accept preadmission bed-hold payments from a medicaid eligible prospective NF resident or from any other source on the prospective resident’s behalf as a precondition for NF admission.

To determine whether a specific day during a resident’s stay is payable as a NF bed-hold day or a NF occupied day, the following criteria shall be used:

(1) The day of NF admission counts as one occupied day; and

(2) The day of NF discharge is not counted as either a bed-hold or an occupied day; and

(3) When NF admission and NF discharge occur on the same day, the day is considered a day of admission and counts as one occupied day, even if the day is less than eight hours; and

(4) A part of a day in a NF that is eight hours or more counts as one occupied day for reimbursement purposes. A day begins at twelve a.m. and ends at eleven fifty-nine p.m.

(D) Limits and reimbursement for NF bed-hold days.

(1) For medicaid eligible residents in a certified NF, except those described in paragraph (K) of this rule, the Ohio department of job and family services (ODJFS) shall pay the NF provider to reserve a bed only for as long as the resident intends to return to the facility, but for not more than thirty days in any calendar year, and only if the requirements of paragraph (D)(3) of this rule are met.

(2) Reimbursement for NF bed-hold days shall be paid at fifty per cent of the NF provider’s per diem rate. This reimbursement shall be considered payment in full, and the NF provider shall not seek supplemental payment from the resident.

(3) Reimbursement for NF bed-hold days shall be made for the following reasons:

(a) Hospitalization.

NF bed-hold days used for hospitalization shall be authorized only until:

(i) The day the resident’s anticipated level of care (LOC) at the time of NF discharge from the hospital changes to a LOC that the NF provider is not certified to provide; or

(ii) The day the resident is discharged from the hospital, including discharge resulting in transfer to another hospital-based or free-standing NF or SNF; or

(iii) The day the resident decides to go to another NF upon discharge from the hospital and notifies the first NF provider; or

(iv) The day the hospitalized resident dies.

(b) NF therapeutic leave days.

(i) Any plan to use therapeutic leave days must be approved in advance by the resident’s primary physician and documented in the resident’s medical record. The documentation shall be available for viewing by the CDJFS and ODJFS staff; and

(ii) A NF provider shall make arrangements for the resident to receive required care and services while on approved therapeutic leave, but medicaid shall not pay for care and services that are included in medicaid’s continued payments, including but not limited to home health care, personal care services, durable medical equipment (DME), and private duty nursing.

(i) Any plan for a limited absence to visit with friends or relatives must be approved in advance by the resident’s primary physician and documented in the resident’s medical record. The documentation shall be available for viewing by the CDJFS and ODJFS staff.

(ii) The number of days per visit is flexible within the maximum NF bed-hold days, allowing for differences in the resident’s physical condition, the type of visit, and travel time.

(iii) The NF provider shall make arrangements for the resident to receive required care and services while on approved visits, but medicaid shall not pay for care and services that are included in medicaid’s continued payments, including but not limited to home health care, personal care services, DME, and private duty nursing.

(4) The number and frequency of NF bed-hold days used shall be considered in evaluating the continuing need of a resident for NF care.

(E) Submission of requests for payment for NF bed-hold days.

(1) A NF provider shall submit requests electronically for payment for NF bed-hold days in compliance with electronic data interchange (EDI) standards established under the Health Insurance Portability and Accountability Act (HIPPA) of 1996 using the ANSI 837 health care claim institutional (837I) transaction as required in rule 5101:3-3-39.1 of the Administrative Code. Ohio medicaid ANSI 837I claim specifications for NFs are provided in the ODJFS 837I companion guide, which is available on the internet at http://hipaa.oh.gov/odjfs/.

(2) Electronic requests for payment shall use the national uniform billing data element specifications as developed by the national uniform billing committee (NUBC) in compliance with principles established under HIPPA. National uniform billing data element specifications are available on the internet at http://www.nubc.org/.

(F) NF admission after depletion of NF bed-hold days.

(1) A resident who leaves a facility and has already exhausted their bed-hold days is considered in a NF discharge status.

(2) A NF provider shall establish and follow a written policy under which a medicaid resident who has expended their annual allotment of thirty NF bed-hold days, and therefore is no longer entitled to a reserved bed under the medicaid bed-hold limit, and is considered to be discharged, shall be admitted to the first available medicaid certified bed in a semiprivate room.

(a) The first available bed means the first unoccupied bed not being held by a resident (regardless of the source of payment) who has elected to make payment to hold that bed.

(b) Unless involuntary discharge hearing and notice requirements were issued as set forth in section 3721.16 of the Revised Code for the previous admission span, a resident shall be admitted to the first available medicaid certified bed in a semiprivate room even if the resident has an outstanding balance owed to the NF provider from the previous admission. The admitted NF resident may be discharged if the NF provider can demonstrate that nonpayment of charges exists, and if hearing and notice requirements have been issued as set forth in section 3721.16 of the Revised Code.

(3) A medicaid eligible NF resident whose absence from the facility exceeds the bed-hold limit may choose to do one of the following:

(a) Return to the NF upon the availability of the first semiprivate bed in the facility; or

(b) Ensure the timely availability of a specific bed upon return to the facility by making bed-hold payments for any days of absence in excess of the medicaid limit. Such payment is separate and distinct from the prohibition of any third party payment guarantee as set forth in rule 5101:3-3-02 of the Administrative Code.

(4) A medicaid eligible resident’s NF bed-hold day rights extend only to situations in which the resident leaves the NF for hospitalization, therapeutic leave days, or visits with friends or relatives, and has the intent and ability to return to the same NF.

(a) If a resident who has depleted medicaid covered NF bed-hold days is transferred from a NF to a hospital and then undergoes a NF transfer to a second NF because the second NF provider offers services the first NF provider does not, the first NF provider has no obligation to admit the resident.

(b) If a resident who has depleted medicaid NF bed-hold days is admitted from a NF to a hospital and then is transferred to a hospital-based NF or SNF, the type of NF or SNF to which the resident is transferred does not change the requirements stated in paragraph (F) of this rule. Therefore, a resident transfer to a hospital-based NF or SNF shall be considered the same as a transfer to any other NF or SNF, and the first NF provider has no obligation to admit the resident.

(5) NF admission following the depletion of bed-hold days during a prior stay and subsequent NF discharge requires that a resident has a NF LOC and is eligible for medicaid NF services.

(G) Information and notice prior to leave.

(1) Prior to a resident’s use of NF bed-hold days, a NF provider shall furnish the resident and their family member or legal representative written information about the facility’s bed-hold policies, which shall be consistent with paragraph (F) of this rule.

(2) At the time a resident is scheduled for a temporary leave of absence, a NF provider shall furnish the resident and their family member or legal representative a written notice that specifies all of the following:

(a) The maximum duration of medicaid covered NF bed-hold days as described in this rule; and

(b) The duration of bed-hold status during which the resident is permitted to return to the NF; and

(d) The resident’s option to make payments to hold a bed beyond the medicaid bed-hold day limit, and the amount of such payments.

(H) Emergency hospitalization.

(1) In the case of emergency hospitalization, a NF provider shall furnish the resident and a family member or legal representative a written notice as described in paragraph (G) of this rule within twenty-four hours of the hospitalization.

(2) This requirement is met if the resident’s copy of the notice is sent to the hospital with other documents that accompany the resident.

(I) Maximum number of NF bed-hold days.

(1) Medicaid payment for covered NF bed-hold days is considered reimbursement for reserving a bed for a resident who intends to return to the same NF and is able to do so.

(2) The number of NF inpatient days as defined in rule 5101:3-3-01 of the Administrative Code for the calendar year shall not exceed one hundred per cent of available bed days.

(J) Residents eligible for payment of NF bed-hold days.

(1) Medicaid payment for NF bed-hold days is available under the provisions specified in this rule if a resident meets all of the following criteria:

(a) Is eligible for medicaid services and has met the patient liability and financial eligibility requirements as stated in rule 5101:1-39-24 of the Administrative Code; and

(b) Requires a NF LOC; and

(c) Is not a participant of special medicaid programs or assigned special status as outlined in paragraph (K) of this rule.

(2) Dual eligible for both medicare and medicaid.

If a resident meets all of the criteria in paragraph (J)(1) of this rule and is both medicare part A and medicaid eligible, medicaid payment shall be made for NF bed-hold days up to the maximum number of days specified in this rule. Medicaid will, therefore, pay NF bed-hold days during the acute care hospitalization of a medicaid eligible resident who had been receiving medicare part A SNF benefits in the NF immediately prior to and/or following the period of hospitalization.

(3) Medicaid pending.

If a resident meets all of the criteria in paragraph (J)(1) of this rule, and is pending approval of a medicaid application and requires NF bed-hold days, medicaid payment shall be made retroactive to the date the resident became medicaid eligible and approved for NF medicaid payment, through the date the resident returns from a leave or until the maximum number of NF bed-hold days are exhausted.

(4) Medicaid eligible.

If a resident meets all of the criteria in paragraph (J)(1) of this rule, and is approved for NF medicaid payment, medicaid payment shall be made for NF bed-hold days up to the maximum number of days as specified in this rule.

(5) Qualified medicare beneficiary (QMB) eligible.

If a resident meets all of the criteria in paragraph (J)(1) of this rule and is also QMB eligible, medicaid payment shall be made for NF bed-hold days up to the maximum number of days according to rule 5101:1-39-01.1 of the Administrative Code.

(K) Exclusions.

NF bed-hold days are not available to medicaid eligible NF residents in the following situations:

(1) Hospice.

A person enrolled in a medicare or medicaid hospice program is not entitled to medicaid covered NF bed-hold days. It is the hospice provider’s responsibility to contract with and pay the NF provider. Hospice program provisions and criteria are stated in Chapter 5101:3-56 of the Administrative Code; or

(2) IMD.

A resident over age twenty-one and under age sixty-five who becomes a patient of an IMD loses medicaid eligibility and is not entitled to NF bed-hold days. A NF provider shall not receive reimbursement for NF bed-hold days during the period the person is hospitalized in an IMD. The CDJFS staff shall issue the appropriate notice of medicaid ineligibility as stated in rule 5101:6-2-05 of the Administrative Code; or

(3) HCBS waiver.

NF bed-hold days do not apply to a person enrolled in a HCBS waiver program who is using the NF for short-term respite care as a waiver service. Under the HCBS waiver program, a person may not have concurrent active status as both a HCBS enrollee and as a NF resident approved for NF medicaid payment. Eligibility criteria for the HCBS waiver program are contained in Chapters 5101:3-12, 5101:3-31, 5101:3-40, 5101:3-41, and 5101:3-42 of the Administrative Code; or

(4) Program of all-inclusive care for the elderly (PACE) or other capitated managed care programs.

NF bed-hold days are not available to a medicaid eligible NF resident who is enrolled in a capitated payment program that subcontracts with a NF and for whom the NF provider does not receive payment directly from medicaid; or

(5) Restricted medicaid coverage.

A person who is medicaid eligible but is in a period of restricted medicaid coverage because of an improper transfer of resources is not eligible for NF bed-hold days until the period of restricted coverage has been met. The criteria for the determination of restricted medicaid coverage are specified in rule 5101:1-39-07 of the Administrative Code; or

(6) Facility closure and resident relocation.

NF bed-hold days are not available to residents who have relocated due to the facility’s anticipated closure, voluntary withdrawal from participation in the medicaid program, or other termination of the facility’s medicaid provider agreement. No span of NF bed-hold days shall be approved that ends on a facility’s date of closure or termination from participation in the medicaid program.

(L) Compliance.

(1) Without limiting such other remedies provided by law for noncompliance with these rules, ODJFS may do one of the following:

(a) Terminate the NF provider agreement; or

(b) Require the provider to submit and implement a corrective action plan on a schedule specified by ODJFS.

(2) A NF provider shall cooperate with any investigation and shall provide copies of any records requested by ODJFS.

Replaces: 5101:3-3-59

Effective: 11/15/2007

R.C. 119.032 review dates: 11/01/2012

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.16, 5111.33

Prior Effective Dates: 4/7/77, 8/8/77, 9/19/77, 12/30/77, 1/1/79, 1/1/80, 7/1/80, 11/10/83, 4/1/87, 7/7/89 (Emer), 9/23/89, 1/1/95, 7/1/97, 9/1/02, 7/1/05

5101:3-3-16.5 Personal needs allowance (PNA) accounts and other resident funds for nursing facilities (NFs).

A NF resident’s rights concerning his or her personal financial affairs shall be in accordance with 42 CFR 483.10 (rev. October 1, 2006).

(A) Definitions.

(1) “Personal needs allowance” (PNA) has the same meaning as found in rule 5101:1-39-24 of the Administrative Code.

(2) “PNA account” means an account or petty cash fund that holds the money of a NF resident and is managed for the resident by the NF provider.

(3) “Letters of administration,” also known as letters testamentary, means court papers allowing a person to take charge of the property of a deceased person in order to distribute it.

(4) “Surety bond” means an agreement between the principal (i.e., the NF provider), the surety (i.e., the insurance company), and the obligee (i.e., the resident and/or the Ohio department of job and family services (ODJFS) acting on behalf of the resident), wherein the principal and the surety agree to compensate the obligee for any loss of the obligee’s funds that the principal holds, safeguards, manages, and accounts for.

The purpose of a surety bond is to guarantee that a NF provider will pay a resident, or ODJFS on behalf of a resident, for losses occurring from any failure by the facility to hold, safeguard, manage, and account for the resident’s funds, including losses incurred as a result of acts of error or negligence, incompetence, or dishonesty. The principal assumes the responsibility to compensate the obligee for the amount of the loss up to the entire amount of the surety bond.

(B) PNA.

(1) A medicaid resident who receives care in a NF certified to participate in the medicaid program is eligible to retain a PNA account in the amount set forth in rule 5101:1-39-24 of the Administrative Code for the purchase of items and services of his or her choice.

(2) The PNA account is the exclusive property of the resident, who may use the funds in the account as he or she chooses to meet personal needs.

(3) Unless a medicaid resident receives additional irregular contributions from another source, all of his or her personal expenses shall be met through the PNA account.

(1) A NF resident has the right to manage his or her personal financial affairs.

(2) A NF provider shall not require a resident to deposit their PNA funds with the provider. However, if a resident requests assistance from the NF staff in managing his or her PNA account, the request shall be in writing.

(3) Upon written authorization from a resident, a NF shall hold, safeguard, manage, and account for a resident’s PNA funds deposited with the provider.

(4) A NF provider shall explain verbally and in writing to the resident or the resident’s representative that PNA funds are for the resident to use as he or she chooses. If a representative is the payee for the resident’s PNA account, the representative shall be responsible for ensuring that the money is used to meet the personal needs of the resident.

(D) Deposit of PNA account funds and interest earned.

(1) Funds of fifty dollars or less.

If a resident’s PNA account funds are fifty dollars or less, a NF provider may deposit the funds in an interest-bearing account, a non-interest bearing account, or a petty cash fund.

(2) Funds in excess of fifty dollars.

If a resident’s PNA account funds are in excess of fifty dollars, the NF provider shall deposit the funds in an interest-bearing account (or accounts) that is separate from any of the NF provider’s operating accounts within five banking days from the date the balance exceeds fifty dollars.

(3) A NF provider shall credit any interest earned on a resident’s PNA funds to the resident’s PNA account balance. If pooled accounts are used, the provider shall prorate interest per resident on the basis of actual earnings or end-of-quarter balance.

(4) A NF provider shall not charge a resident a fee for managing the resident’s PNA account. Banks, however, may charge the resident a fee for handling the account.

(E) Accounting and records.

(1) A NF provider shall establish and maintain a system that ensures full, complete, and separate accounting of each resident’s PNA account funds.

(2) A NF provider shall not commingle a resident’s accounts or funds with the provider’s accounts or funds, or with the accounts or funds of any individual other than another NF resident.

(3) A NF provider shall provide a resident with access to petty cash (less than fifty dollars) on an ongoing basis and shall arrange for the resident to access larger funds (fifty dollars or more). A NF provider shall give residents a receipt for every transaction, and the NF provider shall retain a copy.

(4) A NF provider shall obtain a resident’s signature upon the resident’s receipt of PNA funds. If the resident is unable to sign his or her name, he or she shall acknowledge receipt of the money by marking an “X.” Two persons shall verify through signature that they have witnessed the resident’s action.

(5) A NF provider shall maintain an individual ledger account of revenue and expenses for each PNA account managed by the facility. The ledger account shall meet all the following criteria:

(a) Specify all funds received by or deposited with the NF provider. For PNA account funds deposited in banks, monies shall be credited to the resident’s bank account within three business days; and

(b) Specify the dates and reasons for all expenditures; and

(c) Specify at all times the balance due the resident, including interest earned as last reported by the bank to the provider; and

(d) Be available to the resident or the resident’s representative for review.

(6) Upon request, a NF provider shall provide receipts to a resident or the resident’s representative for purchases made with the resident’s PNA funds.

(7) Within thirty days after the end of the quarter, a NF provider shall provide a written quarterly statement to each resident or resident’s representative of all financial transactions made by the provider on the resident’s behalf.

(F) Notification of certain balances or transactions that may affect medicaid eligibility.

(1) Notice to resident.

(a) A NF provider shall give written notification to each resident who receives medicaid benefits, and whose funds are managed by the NF provider, when the amount in the resident’s PNA account reaches two hundred dollars less than the resource limit in accordance with rules 5101:1-39-05 and 5101:1-39-01.1 of the Administrative Code.

(b) The notice shall inform the resident that they may lose medicaid eligibility if the amount in their PNA account, in addition to the value of their other nonexempt resources, reaches their resource limit amount.

(2) Notice to the county department of job and family services (CDJFS).

(a) A NF provider shall report to the CDJFS any PNA account balance in excess of the resource limit. The CDJFS shall apply the excess amount to the routine cost of NF care according to rule 5101:1-38-20 of the Administrative Code.

(3) If a resident is considering using PNA funds to purchase life insurance, grave space, a burial account, or other item that may be considered a countable resource, the NF provider shall refer the resident or the resident’s representative to the CDJFS for an explanation of the effect the purchase may have on the resident’s medicaid eligibility.

(G) Release of funds upon discharge.

(1) Upon discharge of a resident, a NF provider shall release all the resident’s funds, up to and including the maximum resource limit amount.

(2) Other than for items and services that the resident has requested and that may be charged to the resident’s PNA account in accordance with this rule, a NF provider shall not withhold PNA account funds to pay any outstanding balance a resident owes the provider at the time of discharge.

(H) Conveyance of funds upon death.

(1) First thirty days.

A NF provider shall not retain the money in a resident’s PNA account beyond thirty days following the resident’s death if letters testamentary or letters of administration are issued, or an application for release from administration is filed under section 2113.03 of the Revised Code concerning the resident’s estate within that thirty-day period. In these circumstances, the provider shall transfer the funds in the resident’s PNA account and a final accounting of those funds to the administrator, executor, commissioner, or person who filed the application for release from administration. If these conditions for release are not met, the provider shall follow paragraph (H)(2) or (H)(3) of this rule.

(2) First sixty days.

If, within sixty days after a resident’s death, letters testamentary or letters of administration are issued, or an application for release from administration is filed under section 2113.03 of the Revised Code concerning the resident’s estate, the provider shall transfer the resident’s PNA account funds and a final accounting of those funds to the administrator, executor, commissioner, or person who filed the application for release from administration.

(3) After sixty days.

(a) If, within sixty days after a resident’s death, letters testamentary or letters of administration concerning the resident’s estate are not issued, or an application for release from administration is not filed under section 2113.03 of the Revised Code concerning the resident’s estate, and if the resident was a recipient of medicaid benefits, the provider shall transfer all the resident’s PNA account funds to ODJFS no earlier than sixty and no later than ninety days after the death of the resident, with the exception listed in paragraph (H)(3)(c)of this rule.

(b) PNA account funds transferred to ODJFS shall be paid by check or money order made payable to “Attorney General of Ohio” and shall be accompanied by a completed JFS 09405 (rev. 7/2005) entitled “Personal Needs Allowance Account Remittance Notice.” The payment and completed JFS 09405 shall be mailed to the Ohio attorney general’s office.

(c) If funeral and/or burial expenses for a deceased resident have not been paid, and all the resident’s resources other than the PNA have been exhausted, the resident’s PNA account funds shall be used to pay the funeral and/or burial expenses.

(d) If, sixty-one or more days after a resident dies, letters testamentary or letters of administration are issued, or an application for release from administration under section 2113.03 of the Revised Code is filed concerning the resident’s estate, ODJFS shall transfer all the resident’s PNA account funds received by the department to the administrator, executor, commissioner, or person who filed the application for release from administration, unless ODJFS is entitled to recover the money under section 5111.11 of the Revised Code.

(I) Financial security.

A NF provider shall purchase a surety bond or provide a reasonable alternative as described in this rule in order to protect all resident funds deposited with and managed by the NF provider.

(1) Surety bond.

(a) A surety bond shall be executed by a licensed surety company pursuant to Chapters 1301., 1341., and 3929. of the Revised Code.

(b) At a minimum, surety bond coverage shall protect at all times the full amount of resident funds deposited with the NF provider, including interest earned and refundable deposit fees.

(c) The surety bond shall provide for repayment of funds lost due to any failure of the NF provider, whether by commission, bankruptcy, omission, or otherwise, to hold, safeguard, manage, and account for resident funds.

(d) The surety bond shall designate either the NF provider, or ODJFS on behalf of the resident, as the obligee.

(e) If an entity purchases a surety bond that covers more than one of its facilities, the surety bond shall protect the full amount of all resident funds on deposit in all the entity’s facilities.

(2) Reasonable alternative to the surety bond.

A reasonable alternative to the surety bond shall provide protection equivalent to that afforded by a surety bond. Neither self insurance nor deposit of funds in bank accounts protected by the federal deposit insurance corporation (FDIC) or a similar entity are acceptable alternatives to a surety bond. A NF provider electing not to purchase a surety bond shall submit a proposal for an alternative to the ODJFS office of Ohio health plans (OHP) for approval. An acceptable alternative shall meet all of the following criteria:

(a) At a minimum, protect at all times the full amount of resident funds deposited with the NF provider, including interest earned and refundable deposit fees; and

(b) Designate either ODJFS or the residents of the NF as the entity or entities that will collect payment for lost funds; and

(c) Guarantee repayment of funds lost due to any failure of the NF provider, whether by commission, bankruptcy, omission, or otherwise, to hold, safeguard, manage, and account for resident funds; and

(d) Be managed by a third party unrelated in any way to the NF provider or its management; and

(e) Not name the NF provider as a beneficiary.

(3) Provision of assurance to ODJFS.

A NF provider or entity who operates multiple facilities shall submit copies of either the multi-facility surety bond or a reasonable alternative to the multi-facility surety bond to ODJFS for review and approval. If the NF provider, surety company, or issuer of an ODJFS-approved surety bond alternative cancels the surety bond or reasonable alternative to a surety bond, they shall notify ODJFS by certified mail thirty days prior to the effective date of cancellation.

(J) Limitations on charges to the PNA account.

(1) A NF provider shall not charge a resident’s PNA account for items and services that the provider is required to furnish in order to participate in the medicare and medicaid programs, and that are included in medicare and medicaid payments made to the provider.

(2) A NF provider shall inform residents of the coverage and limitations of the medicare and medicaid programs. If a resident’s representative is the payee for the resident’s PNA account, the NF provider shall also explain the coverage and limitations to the representative.

(3) A NF provider shall not use a resident’s PNA account funds to pay for costs associated with guardianship proceedings, including but not limited to the costs for assessments, medical exams, and filing fees.

(K) Items and services covered by medicare or medicaid.

(1) A NF provider shall not charge a resident’s PNA account for items and services that the provider is required to furnish in order to participate in the medicare and medicaid programs.

(2) Items and services that may not be purchased with PNA account funds include, but are not limited to, the following:

(a) Nursing services; and

(b) Dietary services; and

(d) Room and bed maintenance services; and

(e) Routine personal hygiene items and services required to meet the needs of the resident, including but not limited to hair hygiene supplies, comb, brush, bath soap, disinfecting soap or specialized cleansing agents when indicated to treat special skin problems or to fight infection, razor, shaving cream, toothbrush, toothpaste, denture adhesive, denture cleaner, dental floss, moisturizing lotion, tissues, cotton balls, deodorant, incontinence care supplies, sanitary napkins and related supplies, towels, washcloths, hospital gowns, over the counter drugs, hair and nail hygiene services, bathing, and basic personal laundry; and

(f) Medically related social services; and

(g) Medical supplies such as irrigation trays, catheters, drainage bags, syringes, and needles; and

(h) Durable medical equipment; and

(i) Air conditioners, or charges to residents for the use of electricity; and

(j) Therapy or podiatry services; and

(k) Charges for telephone consultation by physicians or other personnel.

(L) Resident requests for items and services.

(1) A NF provider shall not charge a resident’s PNA account for any item or service not requested by the resident, whether or not the item or service is requested by a physician.

(2) A NF provider shall not require a resident or the resident’s representative to request an item or service as a condition for admission to or continued stay in the NF.

(3) When a resident requests an item or service for which a charge to the resident’s PNA account will be made, the NF provider shall inform the resident that there will be a charge and the amount of the charge.

(M) Items and services that may be charged to the PNA account.

(1) If a resident clearly expresses a desire for a particular brand or item not available from the NF provider, PNA funds may be used as long as a comparable item of reasonable quality is available to the resident from the NF provider at no charge. The NF provider may charge the resident only the difference in cost between the available item and the resident’s preferred item.

(2) Items and services that may be charged to a resident’s PNA account include, but are not limited to, the following:

(a) Telephone; and

(b) Television or radio for personal use; and

(d) Cosmetics and grooming items and services in excess of those for which payment is made under the medicaid or medicare programs, including hair cuts, permanent waves, hair coloring, and relaxing performed by barbers and beauticians; and

(e) Personal reading material; and

(f) Stationary or stamps; and

(g) Personal clothing; and

(h) Specialty laundry services such as dry cleaning, mending, or hand-washing; and

(i) Flowers or plants; and

(j) Gifts purchased on behalf of a resident; and

(k) Non-covered special care services such as privately hired nurses or nurse aides; and

(l) Social events or entertainment offered outside the scope of the NF provider’s activities program; and

(m) Private rooms, except when therapeutically required for infection control or similar reasons; and

(n) Specially prepared or alternative food requested instead of food generally prepared by the NF provider; and

(o) Burial plots.

(N) Monitoring.

The CDJFS is responsible for monitoring PNA accounts. At least once a quarter, a designated CDJFS employee shall determine if a NF provider is following the provisions of this rule, and shall report any questions concerning inappropriate use or inadequate record keeping of PNA funds to ODJFS and to the Ohio department of health (ODH) for further action. Inappropriate use of PNA account funds by a payee or a NF provider does not, however, reduce the scope or duration of medicaid benefits for a medicaid recipient.

Replaces: 5101:3-3-60

Effective: 09/15/2007

R.C. 119.032 review dates: 09/01/2012

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.15, 5111.11, 5111.12

Prior Effective Dates: 7/7/80, 7/1/88 (Emer), 9/25/88, 10/1/90 (Emer), 12/31/90, 1/1/95, 7/1/96, 7/1/02

5101:3-3-16.6 Resident rights for intermediate care facilities for the mentally retarded (ICFs-MR).

(A) Definitions.

As used in this rule, the term below has the following meaning:

(1) “Intermediate care facility for the mentally retarded” (ICF-MR) has the same meaning as in section 5111.20 of the Revised Code. Types of institutions that may be certified as ICFs-MR include all of the following:

(a) Residential facilities as defined in section 5123.19 of the Revised Code; and

(b) Nursing homes as defined in section 3721.01 of the Revised Code; and

(c) County homes 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.

(B) Rights protected by federal regulations.

The rights of residents of ICFs-MR shall include, but are not limited to, resident rights provided for in 42 CFR 483.420 (October 1, 2006).

Resident protections established by the legal rights service commission for persons with mental retardation or developmental disabilities include but are not limited to those provided for in sections 5123.62 and 5123.65 of the Revised Code.

(D) Rights protected by state statute and regulations.

(1) Residential facilities.

Rights of residents in ICFs-MR licensed as residential facilities are contained in Chapter 5123:2-3 of the Administrative Code; and

(2) Nursing homes.

Rights of residents in ICFs-MR licensed as nursing homes are contained in sections 3721.10 to 3721.17 and 3721.19 of the Revised Code and Chapters 3701-17 and 3701-61 of the Administrative Code.

(E) Additional rights.

The aforementioned rights are in addition to such rights as may be provided for in sections 173.02, 173.19, 3701.07, 3721.021, 3721.18, and 5123.61 of the Revised Code.

Replaces: 5101:3-3-16

Effective: 04/01/2008

R.C. 119.032 review dates: 04/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.10, 3721.12 to 3721.17, 5123.60 to 5123.65

Prior Effective Dates: 4/7/77, 7/1/80, 9/24/93 (Emer.), 12/24/93, 7/1/00, 7/1/03

5101:3-3-16.7 Private rooms in intermediate care facilities for the mentally retarded (ICFs-MR).

(A) Medical necessity.

(1) An intermediate care facility for the mentally retarded (ICF-MR) operator shall provide private room accommodations for a medicaid eligible resident if the resident requires a private room due to medical necessity.

(2) In these instances, medicaid payment shall be considered payment in full, and no supplemental payment may be requested or accepted from the resident or the resident’s representative.

(B) Semiprivate or ward accommodations unavailable.

(1) Medicaid shall not pay more for a private room than the current medicaid per diem rate the facility is receiving if semiprivate or ward accommodations are not available.

(2) Medicaid payment shall be considered payment in full, and no supplemental payment may be requested or accepted from the resident or the resident’s representative.

(2) The charge for a private room shall not include charges for services covered by medicaid, whether or not the medicaid payment meets the ICF-MR operator’s cost for the per diem service; and

(3) An ICF-MR operator shall detail both monthly and annual supplemental charges, if applicable, on the resident’s statement of charges so that the additional cost of the private room is evident to the resident and the resident’s family; and

(4) The written request for a private room shall be kept in the resident’s file; and

Replaces: 5101:3-3-23

Effective: 04/01/2008

R.C. 119.032 review dates: 04/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.16

Prior Effective Dates: 9/2/82, 1/1/95, 7/1/00, 7/1/03

5101:3-3-16.8 Coverage of bed-hold days for medical necessity and other limited absences from intermediate care facilities for the mentally retarded (ICFs-MR).

(A) Definitions.

(2) “Hospitalization” means transfer and admission of a resident to a medical institution as defined in paragraph (A)(11) of this rule.

(3) “ICF-MR admission” means the act that allows an individual who was not considered a resident of any Ohio medicaid certified ICF-MR during the time immediately preceding their current ICF-MR residence to officially enter a facility to receive ICF-MR services. This may include former ICF-MR residents who have exhausted their bed-hold days while in the community and/or hospital. An ICF-MR admission may be a new admission or a return admission after an official discharge. An ICF-MR admission is distinguished from the readmission of a resident on bed-hold status.

(4) “ICF-MR bed-hold day,” also referred to as “ICF-MR leave day,” means a day for which a bed is reserved for an ICF-MR resident through medicaid payment while the resident is temporarily absent from the ICF-MR for hospitalization, therapeutic leave days, or visitation with friends or relatives. Payment for ICF-MR bed-hold days may be made only if the resident has the intent and ability to return to the same ICF-MR. A resident on ICF-MR bed-hold day status is not considered discharged from the ICF-MR since the facility is reimbursed to hold the bed while the resident is on temporary leave.

(5) “ICF-MR discharge” means the full release of an ICF-MR resident from the facility, allowing the resident who leaves the facility to no longer be counted in the ICF-MR’s census. Reasons for ICF-MR discharge include but are not limited to the resident’s transfer to another facility, exhaustion of ICF-MR bed-hold days from any pay source, decision to reside in a community-based setting, or death.

(6) “ICF-MR occupied day” means one of the following:

(a) A day of admission; or

(b) A day during which a medicaid eligible resident’s stay in an ICF-MR is eight hours or more, and for which the facility receives the full per resident per day payment directly from medicaid in accordance with Chapter 5101:3-3 of the Administrative Code.

(7) “ICF-MR readmission” means the status of a resident who is readmitted to the same ICF-MR following a stay in a hospital to which the resident was sent to receive care, or the status of a resident who returns after a therapeutic program or visit with friends or relatives. An ICF-MR resident can only be readmitted to a facility if that individual was not officially discharged from the facility during that ICF-MR stay.

(8) “ICF-MR therapeutic leave day” means a day that a resident is temporarily absent from an ICF-MR with intent and ability to return, and is in a residential setting other than a long-term care facility, hospital, or other entity eligible to receive federal, state, or county funds to maintain a resident, for the purpose of receiving a regimen or program of formal therapeutic services.

(9) “ICF-MR transfer” means the events that occur when a person’s place of residence changes from one Ohio medicaid certified ICF-MR to another, with or without an intervening hospital stay. However, when the person has an intervening IMD admission, or when the person is discharged from an ICF-MR during a hospital stay due to exhaustion of available ICF-MR bed-hold days and is admitted to a different ICF-MR immediately following that hospital stay, the change of residence is not considered an ICF-MR transfer.

(10) “Institution for mental disease” (IMD) means a hospital, NF, or other institution of more than sixteen beds that is engaged primarily in the diagnosis, treatment, and care of persons with mental diseases, and that provides medical attention, nursing care, and related services. An institution is determined to be an IMD when 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.

(11) “Medical institution” means an institution that meets all of the following criteria:

(a) Is organized to provide medical care, including nursing and convalescent care; and

(i) Adequate and continual medical care and supervision by a physician; and

(ii) Registered nurse or licensed practical nurse supervision and services sufficient to meet nursing care needs; and

(iii) Nurses’ aide services sufficient to meet nursing care needs; and

(iv) A physician’s guidance on the professional aspects of operating the institution.

(12) “Skilled nursing facility” (SNF) means a nursing facility certified to participate in the medicare program.

(B) Prohibition of preadmission ICF-MR bed-hold payment.

(1) ODJFS shall not make payment to reserve a bed for a medicaid eligible prospective ICF-MR resident.

(2) An ICF-MR provider shall not accept preadmission bed-hold payments from a medicaid eligible prospective ICF-MR resident or from any other source on the prospective resident’s behalf as a precondition for ICF-MR admission.

To determine whether a specific day is payable as an ICF-MR bed-hold day or an ICF-MR occupied day, the following criteria shall be used:

(1) The day of ICF-MR admission counts as one occupied day; and

(2) The day of ICF-MR discharge is not counted as either a bed-hold or an occupied day; and

(3) When ICF-MR admission and ICF-MR discharge occur on the same day, the day is considered a day of admission and counts as one occupied day, even if the day is less than eight hours; and

(4) A part of a day in an ICF-MR that is eight hours or more counts as one occupied day for reimbursement purposes. A day begins at twelve a.m. and ends at eleven fifty-nine p.m.

(D) Limits and reimbursement for ICF-MR bed-hold days.

(1) For a medicaid eligible resident in a certified ICF-MR, except those described in paragraph (I) of this rule, the Ohio department of job and family services (ODJFS) may pay the ICF-MR to reserve a bed only for as long as the resident has an ICF-MR level of care (LOC) determination and intends to return to the same ICF-MR, but not for more than thirty days in any calendar year unless additional days have been prior authorized by the county department of job and family services (CDJFS) staff as specified in paragraph (E) of this rule.

(2) Reimbursement for ICF-MR bed-hold days shall be paid at one-hundred per cent of the ICF-MR provider’s per diem rate.

(3) Reimbursement for ICF-MR bed-hold days may be made for the following reasons:

(a) Hospitalization.

ICF-MR bed-hold days used for hospitalization may be reimbursed only until:

(i) The day the resident’s anticipated LOC at time of discharge from the hospital changes to a LOC that the ICF-MR provider is not certified to provide; or

(ii) The day the resident is discharged from the hospital, including discharge resulting in transfer to an ICF-MR, a NF, or a SNF; or

(iii) The day the resident decides to go to another ICF-MR upon discharge from the hospital and notifies the first ICF-MR provider; or

(iv) The day the hospitalized resident dies.

(b) Therapeutic leave days.

(ii) An ICF-MR provider shall make arrangements for the resident to receive required care and services while on approved therapeutic leave, but medicaid shall not pay for care and services that are included in medicaid’s continued payments, including but not limited to home health care, personal care services, durable medical equipment (DME), and private duty nursing.

(i) Any plan for a limited absence to visit with friends or relatives must be approved in advance by the resident’s primary physician or by a qualified mental retardation professional (QMRP), and must be documented in the resident’s medical record or individual habilitation plan (IHP). The documentation shall be available for viewing by the CDJFS or ODJFS staff.

(ii) An ICF-MR provider shall make arrangements for the resident to receive required care and services while on approved visits, but medicaid shall not pay for care and services that are included in medicaid’s continued payments, including but not limited to home health care, personal care services, DME, and private duty nursing.

(iii) The number of days per visit is flexible within the maximum ICF-MR bed-hold days, allowing for differences in the resident’s physical condition, the type of visit, and travel time.

(4) The number and frequency of ICF-MR bed-hold days used shall be considered in evaluating the continuing need of a resident for ICF-MR care.

(E) Requests for additional ICF-MR bed-hold days.

(1) Additional ICF-MR bed-hold days beyond the original thirty days in a calendar year require prior authorization.

(2) An ICF-MR provider shall submit the JFS 09402 “ICF-MR/DD Extended Bed-hold Day(s) Prior Authorization” (rev. 7/2005) to the CDJFS staff. The JFS 09402 shall be submitted before the original thirty leave days are exhausted if it is apparent that additional leave will be needed. The prior authorization part of this form shall be signed by a QMRP, a medical director, or a primary physician. The request shall be consistent with the goals of the resident’s IHP and medical records, and shall include all of the following:

(a) Type of leave requested, i.e., hospitalization, therapeutic leave days, or visits with friends or relatives. If the leave is for a trial visit with friends or relatives, descriptions of both a visitation plan and an evaluation plan must be included; and

(b) Projected dates of absence from the ICF-MR; and

(3) The request for additional ICF-MR bed-hold days shall be received by the CDJFS staff or postmarked to the CDJFS office prior to the requested date of additional leave, except in a case of emergency hospitalization. In the event of emergency hospitalization, prior authorization may be requested after the fact if the request is submitted within one business day of the first day of hospitalization.

(4) The CDJFS staff shall review requests for additional bed-hold days and issue one of the following:

(a) An approval notice, pursuant to rule 5101:6-2-02 of the Administrative Code; or

(b) A denial notice, pursuant to rule 5101:6-2-30 of the Administrative Code; or

(5) The CDJFS staff shall review prior authorization requests on a case-by-case basis. Conditions under which prior authorization may be denied include but are not limited to the following:

(a) Trial visits beyond thirty consecutive days; or

(b) Visits with friends or relatives exceeding thirty consecutive days or forty-five total days in a calendar year.

(6) A maximum of thirty additional consecutive ICF-MR bed-hold days may be authorized per request.

(a) The initial request for an additional thirty consecutive bed-hold days shall be submitted to and reviewed for approval or disapproval by the CDJFS staff.

(b) Subsequent requests for an additional thirty consecutive bed-hold days shall be submitted to the CDJFS and reviewed for approval or disapproval by ODJFS.

(7) An approved request for additional bed-hold days is for a particular period of time only. Any unused bed-hold days from an approved request shall not be used at a later time during the calendar year. For example, if a resident receives prior authorization for thirty bed-hold days and only uses fifteen, the remaining fifteen days may not be used at a later date during the calendar year. A new prior authorization request must be submitted if additional bed-hold days are required during that same calendar year.

(8) ICF-MR bed-hold days beyond the original thirty days that are used but not prior authorized shall be subject to an adjustment of the facility’s vendor payment.

(F) ICF-MR readmission after depletion of ICF-MR bed-hold days.

(1) An ICF-MR licensed by the Ohio department of health (ODH) shall establish and follow a written policy under which a medicaid resident who has expended their annual allotment of thirty ICF-MR bed-hold days and any additional ICF-MR bed-hold days prior authorized by the county department of job and family services (CDJFS) staff, and therefore are no longer entitled to a reserved bed under the medicaid bed-hold limit, shall be readmitted to the first available medicaid certified bed in a semiprivate room.

(2) The first available bed means the first unoccupied bed not being held by a resident (regardless of the source of payment) who has elected to make payment to hold that bed.

(3) ICF-MR readmission requires that a resident has an ICF-MR LOC and is eligible for medicaid ICF-MR services.

(G) Maximum number of ICF-MR bed-hold days.

(1) Medicaid payment for covered ICF-MR bed-hold days is considered reimbursement for reserving bed space for a resident who intends to return to the same ICF-MR and is able to do so.

(2) The number of ICF-MR inpatient days as defined in rule 5101:3-3-01 of the Administrative Code for the calendar year shall not exceed one hundred per cent of available bed days.

(H) Residents eligible for payment of ICF-MR bed-hold days.

(1) Medicaid payment for ICF-MR bed-hold days is available under the provisions specified in this rule if a resident meets all of the following criteria:

(a) Is eligible for medicaid services and has met the patient liability and financial eligibility requirements stated in rule 5101:1-39-24 of the Administrative Code; and

(b) Requires an ICF-MR LOC; and

(c) Is not a participant of special medicaid programs or assigned special status as outlined in paragraph (I) of this rule.

(2) Medicaid pending.

If a resident meets all of the criteria in paragraph (H)(1) of this rule, and is pending approval of a medicaid application and requires bed-hold days, medicaid payment shall be made retroactive to the date the resident became medicaid eligible and approved for medicaid vendor payment, through the date the resident returns from a leave or until the maximum number of bed-hold days are exhausted.

(I) Exclusions.

ICF-MR bed-hold days are not available to medicaid eligible ICF-MR residents in the following situations:

(1) Hospice.

A person enrolled in a medicare or medicaid hospice program is not entitled to medicaid covered ICF-MR bed-hold days. It is the hospice provider’s responsibility to contract with and pay the ICF-MR provider. Hospice program provisions and criteria are stated in Chapter 5101:3-56 of the Administrative Code; or

(2) IMD.

A resident over age twenty-one and under age sixty-five who becomes a patient of an IMD loses medicaid eligibility and is not entitled to ICF-MR bed-hold days. An ICF-MR provider shall not receive bed-hold day reimbursement during the period a person is hospitalized in an IMD. The CDJFS staff shall issue the appropriate notice of medicaid ineligibility as stated in rule 5101:6-2-05 of the Administrative Code; or

(3) HCBS waiver.

ICF-MR bed-hold days do not apply to a person enrolled in a HCBS waiver program who is using the ICF-MR for short-term respite care as a waiver service. Under the HCBS waiver program, a person may not have concurrent active status as both a HCBS enrollee and as an ICF-MR resident approved for ICF-MR vendor payment. Eligibility criteria for the HCBS waiver programs are contained in Chapters 5101:3-12, 5101:3-31, 5101:3-40, 5101:3-41, and 5101:3-42 of the Administrative Code; or

(4) Restricted medicaid coverage.

A person who is medicaid eligible but is in a period of restricted medicaid coverage because of an improper transfer of resources is not eligible for ICF-MR bed-hold days until the period of restricted coverage has been met. The criteria for the determination of restricted medicaid coverage are specified in rule 5101:1-39-07 of the Administrative Code; or

(5) Facility closure and resident relocation.

ICF-MR bed-hold days are not available to residents who relocate due to a facility’s anticipated closure, voluntary withdrawal from participation in the medicaid program, or other events that result in termination of a facility’s medicaid provider agreement. No span of bed-hold days shall be approved that ends on a facility’s date of closure or termination from participation in the medicaid program.

(J) Compliance.

(1) Without limiting such other remedies provided by law for noncompliance with these rules, ODJFS may do one of the following:

(a) Terminate the ICF-MR provider agreement; or

(b) Require the provider to submit and implement a corrective action plan on a schedule specified by ODJFS.

(2) An ICF-MR provider shall cooperate with any investigation and shall provide copies of any records requested by ODJFS.

Replaces: 5101:3-3-92

Effective: 11/15/2007

R.C. 119.032 review dates: 11/01/2012

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.16, 5111.33

Prior Effective Dates: 4/7/77, 8/8/77, 9/19/77, 12/30/77, 1/1/79, 3/23/79, 1/1/80, 7/1/80, 11/10/83, 4/1/87, 7/7/89 (Emer), 9/23/89, 1/1/95, 7/1/97, 9/1/02

5101:3-3-16.9 Personal needs allowance (PNA) accounts and other resident funds for intermediate care facilities for the mentally retarded (ICFs-MR).

An ICF-MR resident’s rights concerning his or her personal financial affairs shall be in accordance with section 3721.15 of the Revised Code and 42 CFR 483.420 (rev. October 1, 2006).

(A) Definitions.

(1) “Personal needs allowance” (PNA) has the same meaning as found in rule 5101:1-39-24 of the Administrative Code.

(2) “PNA account” means an account or petty cash fund that holds the money of an ICF-MR resident and is managed for the resident by the ICF-MR provider.

(3) “Interest bearing” means a rate of return equal to or above the passbook savings rate at local banking institutions in the area.

(4) “Letters of administration,” also known as letters testamentary, means court papers allowing a person to take charge of the property of a deceased person in order to distribute it.

(5) “Surety bond” means an agreement between the principal (i.e., the ICF-MR provider), the surety (i.e., the insurance company), and the obligee (i.e., the resident and/or the Ohio department of job and family services (ODJFS) acting on behalf of the resident), wherein the principal and the surety agree to compensate the obligee for any loss of the obligee’s funds that the principal holds, safeguards, manages, and accounts for.

The purpose of a surety bond is to guarantee that an ICF-MR provider will pay a resident, or ODJFS on behalf of the resident, for losses occurring from any failure by the ICF-MR provider to hold, safeguard, manage, and account for the resident’s funds, including losses occurred as a result of acts of error or negligence, incompetence, or dishonesty. The principal assumes the responsibility to compensate the obligee for the amount of the loss up to the entire amount of the surety bond.

(B) PNA.

(1) A medicaid resident who receives care in an ICF-MR certified to participate in the medicaid program is eligible to retain a PNA account in the amount set forth in rule 5101:1-39-24 of the Administrative Code for the purchase of items and services of his or her choice.

(2) A PNA account is the exclusive property of the resident, who may use the funds in the account as he or she chooses to meet personal needs.

(1) An ICF-MR provider shall allow residents to manage their financial affairs and teach them to do so to the extent of their capabilities.

(2) An ICF-MR provider shall not require a resident to deposit their PNA funds with the provider. However, if a resident requests assistance from the ICF-MR staff in managing his or her PNA account, the request shall be in writing.

(3) Upon written request from a resident, an ICF-MR provider shall hold, safeguard, manage, and account for the resident’s PNA funds deposited with the provider.

(4) Upon written request from a resident, an ICF-MR provider shall furnish written information about the resident’s account to the resident or the resident’s representative.

(5) An ICF-MR provider shall explain both verbally and in writing to a resident or the resident’s representative that PNA funds are for the resident to use as he or she chooses. If a representative is the payee for the resident’s PNA account, the representative shall be responsible for ensuring that the money is used to meet the personal needs of the resident.

(D) Deposit of PNA account funds and interest earned.

(1) Funds of one hundred dollars or less.

If a resident’s PNA account funds are one hundred dollars or less, an ICF-MR provider licensed by the Ohio department of health (ODH) may deposit the funds in an interest-bearing account, a non-interest bearing account, or a petty cash fund.

(2) Funds in excess of one hundred dollars.

If a resident’s PNA account funds are in excess of one hundred dollars, an ICF-MR provider licensed by ODH shall deposit the funds in an interest-bearing account (or accounts) that is separate from any of the provider’s operating accounts within five banking days from the date the balance exceeds one hundred dollars.

(3) An ICF-MR provider shall credit any interest earned on a resident’s PNA funds to his or her PNA account. If pooled accounts are used, the provider shall prorate interest per resident on the basis of actual earnings or end-of-quarter balance.

(4) An ICF-MR provider shall not charge a resident a fee for managing his or her PNA account. Banks, however, may charge the resident a fee for handling the account.

(E) Accounting and records.

(1) An ICF-MR provider shall establish and maintain a system that ensures full and complete accounting of each resident’s funds.

(2) An ICF-MR provider shall not combine a resident’s PNA funds with any of the provider’s funds or with the funds of any individual other than another resident of the ICF-MR.

(3) An ICF-MR provider shall furnish a resident with access to petty cash (less than fifty dollars) on an ongoing basis and shall arrange for the resident to access larger funds (fifty dollars or more). The provider shall give the resident a receipt for every transaction.

(4) An ICF-MR provider shall obtain a resident’s signature upon receipt by the resident of money from their PNA account. If the resident is unable to sign his or her name, he or she shall acknowledge receipt of the money by marking an “X.” Two persons shall verify through signature that they have witnessed the resident’s action. PNA funds shall not be withdrawn or utilized by the provider for any purpose other than that requested by the resident to whom the fund belongs.

(5) An ICF-MR provider shall maintain a detailed ledger account of revenue and expenses for each PNA account managed by the facility. The ledger account shall meet all of the following criteria:

(a) Specify all funds received by or deposited with the ICF-MR provider. For PNA account funds deposited in banks, monies shall be credited to the resident’s bank account within three business days; and

(b) Specify the dates and reasons for all expenditures; and

(c) Specify at all times the balance due the resident, including interest earned as last reported by the bank to the provider; and

(d) Be available to the resident or the resident’s representative for review.

(6) Upon request, an ICF-MR provider shall furnish receipts to a resident or the resident’s representative for purchases made with the resident’s PNA funds.

(7) Within thirty days after the end of the quarter, an ICF-MR provider shall furnish a written quarterly statement to each resident or resident’s representative of all financial transactions made by the provider on the resident’s behalf.

(F) Notification of certain balances and transactions that may affect medicaid eligiblity.

(1) Notice to resident.

(a) An ICF-MR provider shall give written notification to each resident who receives medicaid benefits and whose personal funds are managed by the provider when the amount in the resident’s PNA account reaches two hundred dollars less than the resource limits set forth in rules 5101:1-39-05 and 5101:1-39-01.1 of the Administrative Code.

(2) Notice to the county department of job and family services (CDJFS).

An ICF-MR provider shall report to the CDJFS any PNA account balance in excess of the resource limit. The CDJFS shall apply the excess amount to the routine cost of the resident’s ICF-MR care according to rule 5101:1-38-20 of the Administrative Code.

(3) If a resident is considering using PNA funds to purchase life insurance, grave space, a burial account, or other item that may be considered a countable resource, the ICF-MR provider shall refer the resident or the resident’s representative to the CDJFS for an explanation of the effect the purchase may have on the resident’s medicaid eligibility.

(G) Release of funds upon discharge.

Upon discharge of a resident, an ICF-MR provider shall release all the resident’s PNA account funds, up to and including the resource limit amount.

(H) Conveyance of funds upon death for an ICF-MR provider licensed by ODH.

(1) First thirty days.

An ICF-MR provider shall not retain the money in a resident’s PNA account beyond thirty days following the resident’s death if letters testamentary or letters of administration are issued, or an application for release from administration is filed under section 2113.03 of the Revised Code concerning the resident’s estate within that thirty-day period. In these circumstances, the provider shall transfer the funds in the resident’s PNA account and a final accounting of those funds to the administrator, executor, commissioner, or person who filed the application for release from administration. If these conditions for release are not met, the provider shall follow paragraph (H)(2) or (H)(3) of this rule.

(2) First sixty days.

(3) After sixty days.

(a) If, within sixty days after a resident’s death, letters testamentary or letters of administration concerning the resident’s estate are not issued, or an application for release from administration is not filed under section 2113.03 of the Revised Code concerning the resident’s estate, and if the resident was a recipient of medicaid benefits, the provider shall transfer all the resident’s PNA account funds to ODJFS no earlier than sixty and no later than ninety days after the resident’s death, with the exception listed in paragraph (H)(3)(c) of this rule.

(c) If funeral or burial expenses for a deceased resident have not been paid and the only resource left to pay those expenses are the resident’s PNA account funds, or all other resources of the resident are inadequate to pay the full amount, the resident’s PNA account funds shall be used to pay the expenses.

(4) Developmental centers.

For an ICF-MR provider operating as an Ohio department of mental retardation and development disabilities (ODMRDD) developmental center, conveyance upon death requirements shall be in accordance with section 5123.28 of the Revised Code.

(5) Residential facilities.

For an ICF-MR provider licensed to operate a residential facility, conveyance upon death requirements shall be in accordance with rule 5123:2-3-14 of the Administrative Code.

(I) Financial security.

An ICF-MR provider licensed by ODH shall purchase a surety bond or provide other necessary assurances to the director of ODJFS to ensure the security of all resident funds deposited with and managed by the provider.

(1) Surety bond.

(a) A surety bond shall be executed by a licensed surety company pursuant to Chapters 1301., 1341., and 3929. of the Revised Code.

(b) At a minimum, surety bond coverage shall protect at all times the full amount of resident funds deposited with the ICF-MR provider, including interest earned and refundable deposit fees.

(c) The surety bond shall provide for repayment of funds lost due to any failure of the ICF-MR provider, whether by commission, bankruptcy, omission, or otherwise, to hold, safeguard, manage, and account for resident funds.

(d) The surety bond shall designate either the ICF-MR provider, or ODJFS on behalf of the resident, as the obligee.

(e) If an entity purchases a surety bond that covers more than one of its facilities, the surety bond shall protect the full amount of all resident funds on deposit in all the entity’s facilities.

(2) Reasonable alternative to the surety bond.

A reasonable alternative to the surety bond shall provide protection equivalent to that afforded by a surety bond. Neither self insurance nor deposit of funds in bank accounts protected by the federal deposit insurance corporation (FDIC) or a similar entity are acceptable alternatives to a surety bond. An ICF-MR provider electing not to purchase a surety bond shall submit a proposal for an alternative to the ODJFS office of Ohio health plans (OHP) for approval. An acceptable alternative shall meet all of the following criteria:

(a) At a minimum, protect at all times the full amount of resident funds deposited with the ICF-MR provider, including interest earned and refundable deposit fees; and

(b) Designate either ODJFS or the residents of the ICF-MR as the entity or entities that will collect payment for lost funds; and

(c) Guarantee repayment of funds lost due to any failure of the ICF-MR provider, whether by commission, bankruptcy, omission, or otherwise, to hold, safeguard, manage, and account for resident funds; and.

(d) Be managed by a third party unrelated in any other way to the ICF-MR provider or its management; and

(e) Not name the ICF-MR provider as a beneficiary.

(J) Limitations on charges to the PNA account.

(1) An ICF-MR provider shall not charge a resident’s PNA account for items and services that the provider is required to furnish in order to participate in the medicaid program, and that are included in medicaid payments made to the provider.

(2) An ICF-MR provider shall inform each medicaid eligible resident of the medicaid program’s coverage and limitations.

(K) Items and services covered by medicaid.

(1) An ICF-MR provider shall not charge a resident’s PNA account for items and services that the provider is required to furnish in order to participate in the medicaid program.

(2) Items and services that may not be purchased with PNA account funds include, but are not limited to, the following:

(a) Nursing services; and

(b) Dietary services; and

(d) Room and bed maintenance services; and

(f) Medically related social services; and

(g) Medical supplies such as irrigation trays, catheters, drainage bags, syringes, and needles; and

(h) Durable medical equipment; and

(i) Air conditioners or charges to resident for the use of electricity; and

(j) Therapy or podiatry services; and

(k) Charges for telephone consultation by physicians or other personnel.

(L) Resident requests for items and services.

(1) A resident’s PNA account funds may be used to purchase only those items and services requested by the resident, even if the items or services are requested by a physician.

(2) When a resident requests an item or service for which a charge to the resident’s PNA account will be made, the ICF-MR provider shall inform the resident that there will be a charge and the amount of the charge.

(3) An ICF-MR provider shall not require a resident to request an item or service as a condition for admission to or continued stay in the ICF-MR.

(M) Items and services that may be charged to the PNA account.

(1) An ICF-MR provider shall accept medicaid payment as payment in full for items and services that are covered by the medicaid program. If a resident clearly expresses a desire for a particular brand or item not available from the ICF-MR provider, the resident’s PNA funds may be used as long as a comparable item of reasonable quality is available from the provider at no charge. The ICF-MR provider may charge the resident only the difference in cost between the available item and the resident’s preferred item.

(2) Items and services that may be charged to a resident’s PNA account include, but are not limited to, the following:

(a) Telephone; and

(b) Television or radio for personal use; and

(d) Cosmetics and grooming items and services in excess of those for which payment is made under the medicaid program; and

(e) Personal reading material; and

(f) Stationary or stamps; and

(g) Personal clothing; and

(h) Specialty laundry services such as dry cleaning, mending, or hand-washing; and

(i) Flowers or plants; and

(j) Gifts purchased on behalf of a resident; and

(k) Non-covered special care services such as privately hired nurses or nurse aides; and

(l) Social events or entertainment offered outside the scope of the facility’s activities program; and

(m) Private rooms, except when therapeutically required for infection control or similar reasons; and

(n) Specially prepared or alternative food instead of food generally prepared by the facility; and

(o) Burial plots.

(N) Monitoring.

The CDJFS is responsible for monitoring PNA accounts. At least once a quarter, a designated CDJFS employee shall determine if an ICF-MR provider is following the provisions of this rule, and shall report any questions concerning inappropriate use or inadequate record keeping of PNA funds to ODJFS and to ODH for further action. Inappropriate use of PNA account funds by a payee or an ICF-MR provider does not, however, reduce the scope or duration of medicaid benefits for a medicaid recipient.

Replaces: 5101:3-3-93

Effective: 09/15/2007

R.C. 119.032 review dates: 09/01/2012

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 3721.15, 5111.11, 5111.12

Prior Effective Dates: 7/1/80, 7/1/88 (Emer), 9/25/88, 10/10/90 (Emer), 12/31/90, 1/1/95, 7/1/02

5101:3-3-17 Payment methodology for the provision of outlier services in nursing facilities (NFs).

(A) For the purposes of this rule:

(1) “Individual” means any person who is seeking or receiving medicaid coverage for placement in an Ohio medicaid-certified NF that is an approved outlier provider.

(2) “Individual plan (IP)” means a written description of the services to be provided to an individual, developed by an interdisciplinary team that represents the professions, disciplines or service areas that are relevant to identifying the individual’s needs, as described by the comprehensive functional assessments.

(3) “Outlier services” are those clusters of services which have been determined by the Ohio department of job and family services (ODJFS) to require staffing ratios, certain costs, and capital investments beyond the levels otherwise addressed in Chapter 5101:3-3 of the Administrative Code when delivered by outlier providers to individuals who have been prior authorized for the receipt of a category of service identified as an outlier.

(4) “Outlier prior authorization committee” means a committee organized and operated by ODJFS that makes outlier prior authorization determinations.

(5) “Outlier provider” means any NF or discrete unit of a NF identified as such, or identified and paid as such by ODJFS after June 30, 1993, or approved in accordance with section 5111.258 of the Revised Code, that provides services only to individuals who have received prior authorization from the outlier prior authorization committee for the receipt of outlier services in that facility. ODJFS prior authorization of outlier services is contingent upon both the individual’s documented need for that specific type of outlier service and evidence that the facility in which the individual is to receive services maintains the staffing ratios and ancillary and support items at levels sufficient for the provision of that type of outlier service, and has made the capital investments necessary for the provision of such care.

(B) In addition to information that must be submitted under rules 5101:3-3-43.1 and 5101:3-3-20 of the Administrative Code, an outlier provider must submit all of the following required information:

(1) In the initial year that a NF is approved as an outlier provider, the provider must submit, no later than ninety days after the effective date of the outlier provider agreement, each of the following:

(a) The projected cost report budget for the initial year of operation; and

(b) The current calendar year capital expenditure plan, including a detailed asset listing; and

(c) The current calendar year plan for basic staffing patterns, using a format to be approved by ODJFS, that includes the staff schedule by shift, number of staff in each position, staff position descriptions, base wage rates, and a brief explanation of contingencies that may require adjustments to these basic staffing patterns.

(2) The following information must be submitted no later than ninety days after the end of the initial three months of operation as an outlier provider:

(a) A cost report for the period of the initial three months of service; and

(b) Current IPs for residents to be served in the period for which a rate is being established.

(3) In each calendar year subsequent to the year of the initial contracted rate, the following information must be submitted by the thirty-first of March:

(a) Current IPs for residents to be served in the period for which a rate is being established; and

(b) The actual year end cost report shall be submitted within the deadline specified in accordance with rule 5101:3-3-20 of the Administrative Code. The current calendar year cost report budget shall be submitted by the thirty-first of March of the current calendar year, in conjunction with the previous calendar year’s actual cost report; and

(c) For-profit providers shall submit a balance sheet, income statement, and statement of cash flows for the outlier facility relating to the previous calendar year’s actual cost report submitted in accordance with paragraph (B)(3)(b) of this rule; and

(d) Not-for-profit providers shall submit a statement of financial position, statement of activities, and statement of cash flows for the outlier facility relating to the previous calendar year’s actual cost report submitted in accordance with paragraph (B)(3)(b) of this rule; and

(e) The current calendar year capital expenditure plan, including the detailed asset listing; and

(f) The current calendar year plan for basic staffing patterns, using a format to be approved by ODJFS, that includes the staff schedule by shift, number of staff in each position, staff position descriptions, base wage rates, and a brief explanation of contingencies that may require adjustments to these basic staffing patterns; and

(g) Approved board minutes from the legal entity holding the provider agreement and all other related legal entities for the calendar year covered by the actual cost report submitted in accordance with paragraph (B)(3)(b) of this rule.

(C) Medicaid per diem rates for outlier providers shall be based upon reasonable and allowable costs using the following methodology:

(1) There shall be six components of the per diem rate: direct care, ancillary/support services, capital, tax costs, franchise fee add-on and quality payment.

(a) The direct care per diem shall be determined in accordance with section 5111.231 of the Revised Code. The rate may be increased if deemed necessary by ODJFS based on analysis of historical direct care costs if the provider had previously been a medicaid provider, a comparison of direct care costs and staffing ratios of facilities caring for individuals with similar needs, a comparison of payment rates paid by private insurers and/or other states, and an analysis of the impact on historical costs if there are plans to change the patient mix.

(b) The ancillary/support services per diem shall be determined in accordance with section 5111.24 of the Revised Code. The rate may be increased due to increased expenses deemed necessary by ODJFS for treatment of individuals requiring outlier services.

(c) The capital per diem shall be determined in accordance with section 5111.25 of the Revised Code. Adjustments may be made for special high cost equipment or other capital expenditures deemed by ODJFS to be necessary for treatment of individuals requiring outlier services.

(d) The tax costs per diem shall be determined in accordance with section 5111.242 of the Revised Code.

(e) The franchise fee add-on shall be determined in accordance with section 5111.243 of the Revised Code.

(f) The quality payment per diem shall be determined in accordance with rule 5101:3-3-58 of the Administrative Code.

(2) The total prospective rate for NFs or discrete units of NFs providing outlier services, shall be established by combining the allowable direct, ancillary/support services, capital, tax costs, franchise fee add-on and quality payment per diems determined in accordance with paragraphs (C)(1)(a) to (C)(1)(f) of this rule.

(D) Those facilities approved by ODJFS as outlier providers shall receive rates established in accordance with this rule for individuals that have been prior authorized by the outlier prior authorization committee. The outlier providers shall receive rates established in accordance with this rule effective on the first day of the month in which prior authorized outlier services were provided, but no earlier than the first day of the month in which the approved application for an outlier provider agreement was received by ODJFS.

(1) ODJFS will establish the initial contracted rate no later than ninety days after ODJFS receives all the required information. The initial contracted rate will be implemented retroactively to the initial date services were provided pursuant to the outlier provider agreement.

(2) In each year subsequent to the year of the initial contracted rate, the contracted rate will be effective for the fiscal year beginning on the first of July and ending on the thirtieth day of June of the following calendar year.

(a) If a year end cost report was submitted under paragraph (B)(3)(b) of this rule, the new rate shall be determined under paragraph (C) of this rule.

(b) If all applicable timeframes have been met, but an actual year end cost report is not available, the new rate shall be equal to the product of the rate from the prior fiscal year and the adjustment factor determined under division (B) of section 5111.222 of the Revised Code.

(c) ODJFS will establish the contracted rate no later than the thirty-first day of July of the fiscal year for which the rate will be paid, unless the provider fails to submit all required information by the thirty-first of March.

Effective: 07/01/2006

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

Promulgated Under: 119.03

Statutory Authority: 5111.02, 5111.258

Rule Amplifies: 5111.258

5101:3-3-17.1 Outlier services in nursing facilities for individuals with severe maladaptive behaviors due to traumatic brain injury (NF-TBI services).

(A) Purpose.

(1) This rule identifies a sub-population of individuals who require a nursing facility (NF) level of care (LOC) for the provision of prior authorized intensive rehabilitation services to individuals with severe maladaptive behaviors due to traumatic brain injury (TBI).

(2) This rule sets forth the following:

(a) In paragraph (C) of this rule, the criteria to determine if an individual with a NF LOC is eligible for NF-TBI services.

(b) In paragraph (D) of this rule, the conditions under which a NF or a discrete unit within a NF may be approved by the Ohio department of job and family services (ODJFS) as an eligible provider of NF-TBI services and thereby receive payment established in accordance with rule 5101:3-3-17 of the Administrative Code.

(c) In paragraph (E) of this rule, the prior authorization process for admission or continued stay for individuals who are seeking medicaid payment for NF-TBI services.

(d) In closing paragraphs of this rule, details about the provider agreement addendum, payment authorization, and materials to be submitted by the provider for setting the initial and subsequent contracted per diem rate.

(B) Definitions.

(1) “Closed head injury” means skull and widespread brain injury caused by external force or violence in which the dura mater cerebri and dura mater encephali (the outer membrane covering the brain) remain intact.

(2) “Cognitive retraining” means a systematic goal oriented program of cognitive/perceptual exercises based on the assessment and understanding of the individual’s neurofunctional deficits, that is provided by qualified practitioners. Cognitive retraining targets functional changes by reinforcing and strengthening previously learned normal patterns of decision making, problem solving, and/or responding, or by establishing new patterns of cognitive activity as compensatory mechanisms for neurological systems too impaired to allow a return to normal functioning.

(3) “Individual” means any person seeking or receiving medicaid coverage of prior authorized intensive rehabilitation services for TBI that are provided by an Ohio medicaid certified NF that holds an effective NF-TBI provider agreement with ODJFS.

(4) “Individual plan (IP)” means a written description of the services to be provided to an individual, developed by an interdisciplinary team that represents the professions, disciplines, or service areas that are relevant to identifying the individual’s needs.

(5) “LOC review” means the evaluation of an individual’s physical, mental, and social/emotional status to determine the LOC required to meet the individual’s service needs, and includes activities necessary to safeguard against unnecessary utilization. LOC determinations are based upon the criteria regarding the amount and type of services needed by an individual that are set forth in rules contained in Chapter 5101:3-3 of the Administrative Code. The LOC process is also the mechanism by which medicaid payment is initiated.

(6) “Neurobehavioral rehabilitation” means a highly structured, individualized program that incorporates the results of a neuropsychological assessment of the brain-behavior relationships, locations of injury, and the brain systems involved in the injury, to address the individual’s deficiencies of intellect, personality, and behavior resulting from the TBI, and to assist the individual in the development of appropriate adaptive behaviors.

(7) “Nursing facility (NF)” means any long term care facility except an ICF-MR that is currently certified by the Ohio department of health (ODH) as being in compliance with NF standards and medicaid conditions of participation.

(8) “ODJFS designated outlier coordinator” means a designated ODJFS staff member who coordinates the general operations of the long term care facility outlier program. This coordinator works with providers of outlier services, the individuals and their representatives requesting and receiving outlier services, other service agencies, and other ODJFS staff. This coordinator’s duties include, but are not limited to, the following:

(a) Assisting with the initial approval and ongoing monitoring of outlier provider facilities; and

(b) Coordinating the processing of preadmission and continued stay prior authorization requests for individuals; and

(d) Reviewing assessments, individual plans, day programming plans, staffing plans, and other documents.

(9) “ODJFS outlier prior authorization committee” means a committee organized and operated by ODJFS that makes outlier prior authorization determinations.

(10) “Preadmission screening (PAS)” means that part of the preadmission screening and annual resident review (PASARR) process that must be completed prior to any new NF admission. PAS must be completed in accordance with rule 5101:3-3-15.1 of the Administrative Code.

(11) “Physician” means a doctor of medicine or osteopathy who is licensed to practice medicine.

(12) “Primary diagnosis” has the same meaning as in rule 5101:3-3-15.1 of the Administrative Code.

(13) “Rancho los amigos (RLA) levels of cognitive functioning scale” means an evaluation tool designed to measure and track an individual’s progress regarding levels of cognitive functioning (see appendix A to this rule). The RLA scale is used to develop level-specific treatment interventions and strategies that facilitate an individual’s movement from one level to another. An individual’s RLA level is determined by behavioral observations.

(14) “Representative” means a person acting on behalf of an individual who is applying for or receiving medicaid. A representative may be a family member, attorney, hospital social worker, NF social worker, or any other person chosen to act on the individual’s behalf.

(15) “Severe maladaptive behavior that precludes an individual from participating in other rehabilitation services” means a behavior or constellation of behaviors exhibited by an individual that is of such frequency and intensity that it creates a danger to the individual or other people, and/or requires extensive formal intervention without which the individual would be unable to achieve a level of self-control sufficient to allow participation in intensive rehabilitation services such as physical therapy (PT), occupational therapy (OT), or other restorative treatments requiring the active participation of the individual. Examples of severe maladaptive behaviors include, but are not limited to, kicking, biting, scratching, spitting, hitting, throwing oneself out of a wheelchair, or other forms of physical or combined verbal and physical aggression that are symptomatic of tactile defensiveness, lack of impulse control, and/or impaired capability for self-direction secondary to TBI. Uncontrolled verbal aggression in the absence of physical aggression is not considered to be a severe maladaptive behavior that precludes an individual from participating in other rehabilitation services.

(16) “Traumatic brain injury (TBI)” means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as: cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma. TBI also excludes brain damage due to anoxia, metabolic disorders, cerebral vascular insults, or other internal causes.

(C) Individual eligibility criteria. To receive prior authorization approval for NF-TBI services, an individual shall meet all the following criteria:

(1) Financial eligibility. The individual shall have been determined by the county department of job and family services (CDJFS) to meet the medicaid financial eligibility standards for institutional care; and

(2) NF LOC determination. The individual shall obtain a NF level of care as defined in Chapter 5101:3-3 of the Administrative Code; and

(3) PAS determination. In accordance with rule 5101:3-3-15.1 of the Administrative Code, one of the following PAS determinations shall be made:

(a) That the individual does not have indications of either serious mental illness or mental retardation or other developmental disabilities, and is not subject to further PAS review; or if the individual is subject to further PAS review,

(b) That the individual needs the level of services provided by a NF; and

(4) TBI injury. The individual shall have a TBI as defined in paragraph (B)(16) of this rule; and

(5) Measurement on the RLA scale. The individual must measure at least “Level IV” on the RLA scale regarding the levels of cognitive functioning; and

(6) Presence of severe maladaptive behaviors. Within the past twelve months, the individual shall have exhibited documented severe maladaptive behaviors that display all of the following:

(a) Lack of impulse control; and

(b) Purposeful but dysfunctional, goal-directed behavior to obtain or avoid something; and

(d) The physical capability to carry out the threats; and

(e) A history of carrying out threats and/or current attempts to carry out threats; and

(7) Written certification from physician. The individual’s physician shall provide written certification that a specialized rehabilitative program such as that set forth in paragraph (D)(5) of this rule is likely to result in measurable progress; and

(8) Physical ability. The individual shall be physically able to participate in an intensive rehabilitative program that does all of the following:

(a) Includes cognitive retraining as defined in paragraph (B)(2) of this rule and/or neurobehavioral rehabilitation as defined in paragraph (B)(6) of this rule; and

(b) Utilizes extensive, formal interventions that are planned and coordinated by an interdisciplinary team comprised of professional staff who are specialists in TBI; and

(c) Includes therapeutic and training services at least three hours per day during a five day week spent in physical therapy (PT), occupational therapy (OT), speech-language pathology/audiology (SLP/A), psychological, and/or neuropsychological services, in addition to physician and nursing services; and

(d) Contains intervention strategies for the twenty four hour a day, seven day a week reinforcement of the cognitive retraining and/or neurobehavioral rehabilitation programs developed for the individual; and

(9) Preliminary plan for post-discharge.

(a) The individual shall have a written preliminary plan for post-discharge placement and services.

(b) The preliminary plan shall include, but is not limited to, a list of possible service options, assurances from residential facilities that the individual would be eligible for admission, or assurances from other resources such as family members that the individual could live with them once the severe maladaptive behaviors have been remedied.

(D) Provider eligibility criteria. Prior to enrollment as a NF-TBI service provider, and at regular intervals to be determined by ODJFS subsequent to that enrollment, ODJFS will determine whether the NF-TBI service provider qualifications are fulfilled through review of documentation of appropriate policies and procedures, on-site visits, and other mechanisms determined to be appropriate by the ODJFS designated outlier coordinator or other ODJFS designee. In order to obtain a NF-TBI provider agreement and qualify for enhanced payment for provision of NF-TBI services to prior authorized individuals, a provider shall meet all of the following criteria:

(1) Certified NF and consent to ODJFS oversight. The provider shall be an Ohio medicaid certified NF, and shall agree to cooperate with ODJFS oversight of NF-TBI services; and

(2) NF provider agreement. The provider shall meet the requirements set forth in rule 5101:3-3-02 of the Administrative Code in order to obtain a NF provider agreement; and

(3) Dedicated facility or discrete unit of facility.

(a) The provider shall provide NF-TBI services in either a discrete, distinctly identified unit of the NF that is dedicated to the provision of outlier services for persons requiring NF-TBI services, or in a free-standing NF-TBI facility.

(b) If the service is delivered in a distinctly identified unit of a larger NF, the provider’s state licensure process and its medicaid certification process may continue to recognize only one facility, but the Ohio medical assistance program will issue separate provider agreements to the outlier and non-outlier units.

(i) Requests for unoccupied bed moves shall be submitted in writing to the “ODJFS Bureau of Long Term Care Facilities, Facility Contracting Section, Lazarus Government Building, P.O. Box 182709, Columbus, Ohio 43218-2709.” ODJFS must receive the request at least five business days before the proposed date of the bed movement. ODJFS will issue a written response either approving or denying the request; and

(ii) Approvals will be granted for unoccupied bed moves only once per calendar quarter. At the sole discretion of ODJFS, more than one bed movement during a calendar quarter may be authorized; and

(iii) No NF shall discharge a resident earlier than is indicated in the resident’s treatment plan as a result of a request to move beds from the outlier unit to the non-outlier unit; and

(iv) A NF shall meet all requirements set forth in paragraphs (D)(5) and (D)(6) of this rule for beds moved into the outlier unit from the non-outlier unit; and

(4) Accreditation as a brain injury comprehensive integrated inpatient program.

(a) The provider shall obtain and/or retain accreditation as a brain injury comprehensive integrated inpatient program from the commission on the accreditation of rehabilitation facilities (CARF).

(b) The facility shall provide the department with copies of any communication regarding accreditation from and to the commission immediately following receipt or submittal.

(c) If the provider does not have current accreditation from CARF on the effective date of the NF-TBI provider agreement, the provider shall be eligible for accreditation pending a site survey and expect accreditation no later than six months following the effective date of the NF-TBI provider agreement; and

(5) Cognitive retraining and neurobehavioral rehabilitation.

(a) Services shall differ from those generally available in NFs in that cognitive retraining and neurobehavioral rehabilitation utilize extensive, formal interventions that are planned and coordinated by an interdisciplinary team comprised of professional staff who are specialists in TBI, and the intensity of rehabilitative care to be provided is beyond the level payable under the payment system for the resource utilization groups specified in rule 5101:3-3-43.2 of the Administrative Code.

(b) The therapeutic and training services to be authorized ordinarily would occupy most of the day, with at least three hours per day during a five day week spent in OT, PT, SLP/A, psychological, and/or neuropsychological services, in addition to physician and nursing services.

(c) The individual’s program plan shall include cognitive retraining as defined in paragraph (B)(2) of this rule and/or neurobehavioral rehabilitation as defined in paragraph (B)(6) of this rule.

(d) The individual’s program plan shall include intervention strategies for the twenty-four hour a day, seven day a week reinforcement of the cognitive retraining and/or neurobehavioral rehabilitation programs developed for the individual; and

(6) Service delivery. With the exception of any specific items that are direct billed in accordance with rule 5101:3-3-19 of the Administrative Code, the provider shall agree to furnish or arrange to have furnished all of the following:

(a) Twenty-four hour a day skilled nursing care, and any personal care that may be required for the health, safety, and well-being of the individual; and

(b) Dietary supplements used for oral feeding, even if written as a prescription item by a physician; and

(d) Orthotic services delivered by licensed personnel; and

(e) Professional consultation services. Providers shall obtain and immediately submit copies to the ODJFS designated outlier coordinator or other ODJFS designee upon receipt of reports regarding initial inpatient consultation services. Professional consultation services include, but are not limited to, the following:

(i) Audiology;

(ii) Neuropsychology;

(iii) Optometry;

(iv) Dermatology;

(v) Gastroenterology;

(vi) General surgery;

(vii) Gynecology;

(viii) Internal medicine;

(ix) Neurology;

(x) Neuropsychiatry;

(xi) Neurosurgery;

(xii) Ophthamology;

(xiii) Orthopedics;

(xiv) Otorhinolaryngology;

(xv) Pediatrics;

(xvi) Physical medicine and rehabilitation;

(xvii) Plastic surgery;

(xviii) Podiatry;

(xix) Urology; and

(f) Therapeutic and training services.

(i) These services shall be consistent with the IP.

(ii) Therapeutic and training services ordinarily shall occupy most of the day, with at least three hours per day during a five day week spent in PT, OT, SLP/A, psychology, or neuropsychology services.

(iii) Therapeutic and training services include interventions for twenty-four hour a day, seven day a week reinforcement of the cognitive retraining and/or neurobehavioral rehabilitation programs developed for the individual, in addition to physician and nursing services.

(g) PT, OT, SLP/A, respiratory therapy, and psychosocial or social work services.

(i) These services shall be provided directly, or supervised by professionals who are appropriately licensed or certified.

(ii) The facility shall provide supplies required for the provision of these services; and

(h) Cognitive retraining.

(i) Cognitive retraining, as defined in paragraph (B)(2) of this rule, shall be provided as indicated by the IP.

(ii) The IP shall indicate which professionals have responsibility for documentation and evaluation of the cognitive retraining program, and their corresponding reinforcement interventions; and

(i) Neurobehavioral rehabilitation.

(i) Neurobehavioral rehabilitation, as defined in paragraph (B)(6) of this rule, shall be provided as indicated by the IP.

(ii) The IP shall indicate which professionals have responsibility for documentation and evaluation of the neurobehavioral rehabilitation program, and their corresponding reinforcement interventions; and

(7) Preliminary evaluation. Prior to the individual’s admission, the provider shall develop and submit to the ODJFS designated outlier coordinator or other ODJFS designee accurate assessments or reassessments by an interdisciplinary team that evaluates the individual’s health, social, psychological, educational, vocational, and chemical dependency needs; and

(8) Initial assessment. Within fourteen days after admission, the provider shall develop and submit to the ODJFS designated outlier coordinator or other ODJFS designee accurate assessments or reassessments by an interdisciplinary team that address the individual’s health, social, psychological, educational, vocational, and chemical dependency needs in order to supplement the preliminary evaluation described in paragraph (D)(7) of this rule; and

(9) IP.

(a) Within fourteen days after admission, the provider shall develop and submit to the ODJFS designated outlier coordinator or other ODJFS designee a comprehensive IP for coordinated, integrated services developed by the interdisciplinary team in conjunction with the ODJFS case manager, the individual, and others concerned with the individual’s welfare.

(b) The IP shall state the specific objectives necessary to address the individual’s needs as identified by the comprehensive assessment, specific treatment modalities, anticipated time frames for the accomplishment of objectives, measures to be used to assess the effects of services, and persons responsible for plan implementation.

(c) The IP shall include intervention strategies for the twenty-four hour a day, seven day a week reinforcement of the cognitive retraining and neurobehavioral rehabilitation programs developed for the individual in order to effect a change in behavior.

(d) The IP shall be reviewed at least monthly by the appropriate program staff and revised as necessary. Revisions shall be submitted within three working days following the revision to the ODJFS designated outlier coordinator or other ODJFS designee; and

(10) Discharge plan.

(a) Within fourteen days after admission, the provider shall prepare and provide to the ODJFS designated outlier coordinator or other ODJFS designee a written discharge plan developed by the interdisciplinary team in conjunction with the ODJFS case manager, the individual, and others concerned with the individual’s welfare.

(b) The discharge plan shall include recommendations for any counseling and training of the individual and family members or interested persons to prepare them for post-discharge care, an evaluation of the need for and availability of appropriate post-discharge services, the providers of those services, the payment source for each service, and the dates on which notification of the individual’s needs and anticipated time frames was or would be made to the providers of those services; and

(11) Reassessment of discharge plan. When periodic reassessments of the discharge plan indicate that the individual’s discharge needs have changed, the provider shall submit the results of the reassessments and the revised discharge plan to the ODJFS designated outlier coordinator or other ODJFS designee within three working days following the revision; and

(12) Monthly report. The provider shall prepare and provide to the ODJFS designated outlier coordinator or other ODJFS designee a monthly report in a format approved by ODJFS that summarizes the IP, the individual’s progress, changes in treatment, and discharge plan; and

(13) Contracted rate.

(a) ODJFS shall contract with the provider to set initial and subsequent rates.

(b) The provider’s rate will be based on materials submitted by the provider and the methodology set forth in rule 5101:3-3-17 of the Administrative Code.

(c) With the exception of any specific items that are direct billed in accordance with rule 5101:3-3-19 of the Administrative Code, the provider shall agree to accept as payment in full the per diem rate established for NF-TBI services in accordance with rule 5101:3-3-17 of the Administrative Code, and to make no additional charge to the individual, any member of the individual’s family, or to any other source for covered NF-TBI services; and

(14) Continued stay denial. If prior authorization is denied due to an assessment that was requested for an individual who is already residing in the NF-TBI unit, the provider shall agree to move the individual to the first available NF bed that is not in the TBI unit for as long as NF services are needed, or until such time as a more appropriate placement can be made, and shall accept payment for the provision of services at the non-TBI NF level in accordance with the applicable rules in Chapter 5101:3-3 of the Administrative Code; and

(15) Financial records. The provider shall agree to maintain for a period of six years such records necessary to fully distinguish the costs of operating the TBI unit, to disclose the extent of services provided by the TBI unit, and to maintain all information regarding payments claimed by the provider for furnishing NF-TBI services; or, if an audit is initiated within the six year period, until the audit is completed and every exception is resolved.

(E) Prior authorization of NF-TBI services.

(1) Reimbursement for NF-TBI services covered by the medicaid program is available only upon prior authorization by the ODJFS outlier prior authorization committee in accordance with the procedures set forth in this paragraph of this rule.

(a) In the case of an initial stay, prior authorization shall occur prior to admission to the NF-TBI unit.

(b) In the case of a continued stay, prior authorization shall occur no later than the final day of the previously authorized NF-TBI stay.

(c) If an individual is changing to medicaid from another primary pay source, prior authorization shall occur no later than five days before the last day of coverage by the other pay source.

(2) Submission of initial stay request.

(a) All requests shall be in writing, and shall be submitted by mail or fax. No telephone requests will be honored.

(b) Requests shall be sent to the ODJFS designated outlier coordinator or other ODJFS designee.

(c) A request is considered submitted when it is received by the ODJFS designated outlier coordinator or other ODJFS designee.

(3) Initial stay request requirements. It is the responsibility of the provider to ensure that all required information is provided to ODJFS. Prior authorization will not be given until all the initial request requirements set forth in this rule have been met. An initial request for prior authorization of NF-TBI services is considered complete when all of the following requirements have been met:

(a) The JFS 03142 (rev. 2/2003) “Prior Authorization” or an alternative form specified by ODJFS that requests prior authorization of medical services has been appropriately completed and submitted; and

(b) The JFS 03697 (rev. 4/2003) “Level of Care Assessment” or an alternative form specified by ODJFS that accurately reflects the individual’s current mental and physical condition and is certified by a physician has been appropriately completed and submitted, a LOC determination has been made as set forth in rule 5101:3-3-15 of the Administrative Code, and a determination has been made regarding the feasibility of community based care. If the individual is required by rule 5101:3-3-15.1 of the Administrative Code to undergo PAS, the completed JFS 03622 (rev. 3/1996) “PASARR (SMI/MRDD) Identification Screen” and the results of all required PAS determinations also shall be attached to the JFS 03697 or approved alternative form; and

(c) The JFS 03697 or ODJFS-authorized alternative form shall be completed and contain the information required by rule 5101:3-3-15 of the Administrative Code, and to the maximum extent possible be based on information from the minimum data set (MDS) resident assessment instrument as defined in rule 5101:3-3-43.1 of the Administrative Code; and

(d) The JFS 03697 or ODJFS-authorized alternative form shall be sufficiently complete for a LOC determination to be made.

(4) Initial stay assessment. The ODJFS determination will be based on the completed initial stay request and any additional information or documentation necessary to make the determination of eligibility for NF-TBI services, which may include a face-to-face visit by at least one ODJFS representative with the individual and, if applicable, the individual’s representative and, to the extent possible, the individual’s formal and informal care givers, to review and discuss the individual’s care needs and preferences.

(5) Prior authorization determination. ODJFS will compare the individual’s condition, service needs, and requested placement with the eligibility criteria set forth in paragraphs (C) and (D) of this rule, and will review the request, assessment report, and supporting documentation regarding the individual’s condition and service needs in order to determine if the individual is eligible for NF-TBI services.

(6) Notice of determination. When approval or denial of the request has been made, ODJFS will send notices via mail to the individual, the individual’s representative (if any), and the provider. The determination notice will include all determinations made, as well as the individual’s state hearing rights in accordance with Chapter 5101:6-2 of the Administrative Code.

(a) Denial.

(i) When a request for prior authorization of payment for NF-TBI services is denied, ODJFS will issue a notice of medical determination and the right to a state hearing. The denial notice will include an explanation for the denial.

(ii) ODJFS will send a copy of the denial notice to the CDJFS to be filed in the individual’s case record.

(b) Approval. When a request for prior authorization of payment for NF-TBI services is approved, ODJFS will issue an approval letter that will include an assigned prior authorization number, the number of days for which the NF-TBI placement is authorized, and the date on which payment is authorized to begin. It also will include the name, location, and phone number of the ODJFS staff member who is assigned to monitor the individual’s progress in the facility, participate in the individual’s interdisciplinary team, and monitor implementation of the individual’s discharge plan. ODJFS will send a copy of the approval letter to the CDJFS to be filed in the individual’s case record. ODJFS will pay for only those services that are specified in the approval letter.

(i) Authorization of initial stay.

(a) Individuals who meet the eligibility criteria set forth in paragraph (C) of this rule may be approved for an initial stay of not more than ninety days.

(b) The number of days that is prior authorized for each eligible individual shall be based on the request materials submitted, consultation with the individual’s attending physician, and/or any additional consultations or materials required by the ODJFS designated outlier coordinator or other ODJFS designee to make a reasonable estimation regarding the individual’s probable length of stay in the NF-TBI unit.

(ii) Authorization for continued stays.

(a) Continued stay determinations will be based on information including without limitation monthly reports from the facility regarding critical events and the status of the individual’s medical condition, or on face-to-face assessments.

(b) Continued stays may be approved in increments of not more than sixty days.

(7) Discharge.

(a) An individual is expected to be discharged at the end of the prior authorized initial or continued stay to the setting specified in the individual’s discharge plan, and progress toward that end will be monitored by the ODJFS designated outlier coordinator or other ODJFS designee throughout the individual’s stay in the NF-TBI unit.

(b) NF-TBI services may be extended beyond the previously approved length of stay if the provider submits a written request to ODJFS proving that it is not possible to implement an individual’s discharge plan. Such requests shall be submitted at least one week prior to the last day of the previously authorized stay, unless there is a significant change of circumstances within the week preceding the expected discharge date that prevents implementation of the discharge plan.

(F) Provider agreement addendum.

(1) After ODJFS has approved a NF operator as a qualified provider of NF-TBI services, both parties shall sign the JFS 03634 “Provider Agreement for Traumatic Brain Injury Outlier Services in Nursing Facilities” (rev. 7/2007), which is an addendum to the JFS 03623 “Ohio Medicaid Provider Agreement for Long Term Care Facilities: SNF/NFs and ICFs-MR” (rev. 7/2007).

(2) The addendum shall be signed as part of each subsequent annual provider agreement renewal with ODJFS, unless the provider chooses to withdraw as a provider of NF-TBI outlier services or is determined by ODJFS to no longer meet the qualifications set forth in paragraph (D) of this rule.

(G) Payment authorization. The payment authorization date shall be one of the following, but shall not be earlier than the effective date of the individual’s LOC determination:

(1) The date of admission to the NF-TBI unit if it is within thirty days of the physician’s signature; or

(2) A date other than that specified in paragraph (G)(1) of this rule. This alternative date may be authorized only upon receipt of a letter that contains a credible explanation for the delay from the originator of the request for the prior authorization. If the request is to backdate the LOC and NF-TBI eligibility determination more than thirty days from the physician’s signature, the physician shall verify the continuing accuracy of the information and need for inpatient care either by adding a statement to that effect on the JFS 03697 or alternative ODJFS-approved form, or by attaching a separate letter of explanation; or

(3) If the individual was required to undergo PAS and failed to do so prior to admission, the payment authorization date shall be the later of the date of the PAS determination when the individual required the level of services available in a NF, or the date established in paragraph (G)(2) of this rule.

(H) Initial and subsequent contracted rates ODJFS will establish the initial contracted rate and contracted rates subsequent to the initial rate year in accordance with rule 5101:3-3-17 of the Administrative Code.

Appendix

Rancho Los Amigos Levels of Cognitive Functioning

Level I No Response: Total Assistance

Complete absence of observable change in behavior when presented visual, auditory, tactile, proprioceptive, vestibular or painful stimuli.

Level II Generalized Response: Total Assistance

Demonstrates generalized reflex response to painful stimuli.

Responds to repeated auditory stimuli with increased or decreased activity.

Responds to external stimuli with physiological changes generalized, gross body movement and/or not purposeful vocalization.

Responses noted above may be same regardless of type and location of stimulation.

Responses may be significantly delayed.

Level III Localized Response: Total Assistance

Demonstrates withdrawal or vocalization to painful stimuli.

Turns toward or away from auditory stimuli.

Blinks when strong light crosses visual field.

Follows moving object passed within visual field.

Responds to discomfort by pulling tubes or restraints.

Responds inconsistently to simple commands.

Responses directly related to type of stimulus.

May respond to some persons (especially family and friends) but not to others.

Level IV Confused/Agitated: Maximal Assistance

Alert and in heightened state of activity.

Purposeful attempts to remove restraints or tubes or crawl out of bed.

May perform motor activities such as sitting, reaching and walking but without any apparent purpose or upon another’s request.

Very brief and usually non-purposeful moments of sustained alternatives and divided attention.

Absent short-term memory.

May cry out or scream out of proportion to stimulus even after its removal.

May exhibit aggressive or flight behavior.

Mood may swing from euphoric to hostile with no apparent relationship to environmental events.

Unable to cooperate with treatment efforts.

Verbalizations are frequently incoherent and/or inappropriate to activity or environment.

Level V Confused, Inappropriate Non-Agitated: Maximal Assistance

Alert, not agitated but may wander randomly or with a vague intention of going home.

May become agitated in response to external stimulation, and/or lack of environmental structure.

Not oriented to person, place or time.

Frequent brief periods, non-purposeful sustained attention.

Severely impaired recent memory, with confusion of past and present in reaction to ongoing activity.

Absent goal directed, problem solving, self-monitoring behavior.

Often demonstrates inappropriate use of objects without external direction.

May be able to perform previously learned tasks when structured and cues provided.

Unable to learn new information.

Able to respond appropriately to simple commands fairly consistently with external structures and cues.

Responses to simple commands without external structure are random and non-purposeful in relation to command.

Able to converse on a social, automatic level for brief periods of time when provided external structure and cues.

Verbalizations about present events become inappropriate and confabulatory when external structure and cues are not provided.

Level VI Confused, Appropriate: Moderate Assistance

Inconsistently oriented to person, time and place.

Able to attend to highly familiar tasks in non-distracting environment for 30 minutes with moderate redirection.

Remote memory has more depth and detail than recent memory.

Vague recognition of some staff.

Able to use assistive memory aide with maximum assistance.

Emerging awareness of appropriate response to self, family and basic needs.

Moderate assist to problem solve barriers to task completion.

Supervised for old learning (e.g. self care).

Shows carry over for relearned familiar tasks (e.g. self care).

Maximum assistance for new learning with little or nor carry over.

Unaware of impairments, disabilities and safety risks.

Consistently follows simple directions.

Verbal expressions are appropriate in highly familiar and structured situations.

Level VII Automatic, Appropriate: Minimal Assistance for Daily Living Skills

Consistently oriented to person and place, within highly familiar environments.

Moderate assistance for orientation to time.

Able to attend to highly familiar tasks in a non-distraction environment for at least 30 minutes with minimal assist to complete tasks.

Minimal supervision for new learning.

Demonstrates carry over of new learning.

Initiates and carries out steps to complete familiar personal and household routine but has shallow recall of what he/she has been doing.

Able to monitor accuracy and completeness of each step in routine personal and household ADLs and modify plan with minimal assistance.

Superficial awareness of his/her condition but unaware of specific impairments and disabilities and the limits they place on his/her ability to safely, accurately and completely carry out his/her household, community, work and leisure ADLs.

Minimal supervision for safety in routine home and community activities.

Unrealistic planning for the future.

Unable to think about consequences of a decision or action.

Overestimates abilities.

Unaware of others’ needs and feelings.

Oppositional/uncooperative.

Unable to recognize inappropriate social interaction behavior.

Level VIII Purposeful, Appropriate: Stand-By Assistance

Consistently oriented to person, place and time.

Independently attends to and completes familiar tasks for 1 hour in distracting environments.

Able to recall and integrate past and recent events.

Uses assistive memory devices to recall daily schedule, “to do” lists and record critical information for later use with stand-by assistance.

Initiates and carries out steps to complete familiar personal, household, community, work and leisure routines with stand-by assistance and can modify the plan when needed with minimal assistance.

Requires no assistance once new tasks/activities are learned.

Aware of and acknowledges impairments and disabilities when they interfere with task completion but requires stand-by assistance to take appropriate corrective action.

Thinks about consequences of a decision or action with minimal assistance.

Overestimates or underestimates abilities.

Acknowledges others’ needs and feelings and responds appropriately with minimal assistance.

Depressed.

Irritable.

Low frustration tolerance/easily angered.

Argumentative.

Self-centered.

Uncharacteristically dependent/independent.

Able to recognize and acknowledge inappropriate social interaction behavior while it is occurring and takes corrective action with minimal assistance.

Level IX Purposeful, Appropriate: Stand-By Assistance on Request

Independently shifts back and forth between tasks and completes them accurately for at least two consecutive hours.

Uses assistive memory devices to recall daily schedule, “to do” lists and record critical information for later use with assistance when requested.

Initiates and carries out steps to complete familiar personal, household, work and leisure tasks independently and unfamiliar personal, household, work and leisure tasks with assistance when requested.

Aware of and acknowledges impairments and disabilities when they interfere with task completion and takes appropriate corrective action but requires stand-by assist to anticipate a problem before it occurs and take action to avoid it.

Able to think about consequences of decisions or actions with assistance when requested.

Accurately estimates abilities but requires stand-by assistance to adjust to task demands.

Acknowledges others’ needs and feelings and responds appropriately with stand-by assistance.

Depression may continue.

May be easily irritable.

May have low frustration tolerance.

Able to self monitor appropriateness of social interaction with stand-by assistance.

Level X Purposeful, Appropriate: Modified Independent

Able to handle multiple tasks simultaneously in all environments but may require periodic breaks.

Able to independently procure, create and maintain own assistive memory devices.

Independently initiates and carries out steps to complete familiar and unfamiliar personal, household, community, work and leisure tasks but may require more than usual amount of time and/or compensatory strategies to complete them.

Anticipates impact of impairments and disabilities on ability to complete daily living tasks and takes action to avoid problems before they occur but may require more than usual amount of time and/or compensatory strategies.

Able to independently think about consequences of decisions or actions but may require more than usual amount of time and/or compensatory strategies to select the appropriate decision or action.

Accurately estimates abilities and independently adjusts to task demands.

Able to recognize the needs and feelings of others and automatically respond in appropriate manner.

Periodic periods of depression may occur.

Irritability and low frustration tolerance when sick, fatigued and/or under emotional stress.

Social interaction behavior is consistently appropriate.

Replaces: 5101:3-3-54.1

Effective: 08/01/2008

R.C. 119.032 review dates: 08/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02, 5111.257

Rule Amplifies: 5111.01, 5111.02, 5111.20, 5111.258

Prior Effective Dates: 12/10/94, 7/1/02, 7/1/04, 7/1/05

5101:3-3-17.2 Pediatric outlier services in nursing facilities (NF-PED services).

(A) Purpose.

(1) This rule identifies a sub-population of individuals who require a nursing facility (NF) level of care (LOC) for the purpose of providing prior authorized NF-PED services.

(2) This rule sets forth the following:

(a) In paragraph (C) of this rule, the criteria to determine if an individual with a NF LOC is eligible for NF-PED services.

(b) In paragraph (D) of this rule, the conditions under which a NF or a discrete unit within a NF may be approved by the Ohio department of job and family services (ODJFS) as an eligible provider of NF-PED services and thereby receive payment established in accordance with rule 5101:3-3-17 of the Administrative Code.

(c) In paragraph (E) of this rule, the prior authorization process for admission or continued stay for individuals who are seeking medicaid payment for NF-PED services.

(d) In closing paragraphs, details about the provider agreement addendum, payment authorization, and materials to be submitted by the provider for setting the initial and subsequent contracted per diem rate.

(B) Definitions.

(1) “Individual” means any person seeking or receiving medicaid coverage for prior authorized pediatric outlier services in an Ohio medicaid certified NF that holds an effective NF-PED provider agreement with ODJFS.

(2) “Individual plan (IP)” means a written description of the services to be provided to an individual, developed by an interdisciplinary team that represents the professions, disciplines, or service areas that are relevant to identifying the individual’s needs.

(3) “LOC review” means the evaluation of an individual’s physical, mental, and social/emotional status to determine the LOC required to meet the individual’s service needs and includes activities necessary to safeguard against unnecessary utilization. LOC determinations are based upon the criteria regarding the amount and type of services needed by an individual that are set forth in rules contained in Chapter 5101:3-3 of the Administrative Code. The LOC process is also the mechanism by which medicaid payment is initiated.

(4) Nursing facility (NF)” means any long term care facility except an ICF-MR that is currently certified by the Ohio department of health (ODH) as being in compliance with NF standards and medicaid conditions of participation.

(5) “ODJFS designated outlier coordinator” means a designated ODJFS staff member who coordinates the general operations of the long term care facility outlier program. This coordinator works with providers of outlier services, the individuals and their representatives requesting and receiving outlier services, other service agencies, and other ODJFS staff. This coordinator’s duties include, but are not limited to, the following:

(a) Assisting with the initial approval and ongoing monitoring of outlier provider facilities; and

(b) Coordinating the processing of preadmission and continued stay prior authorization requests for individuals; and

(d) Reviewing assessments, individual plans, day programming plans, staffing plans, and other documents.

(6) “ODJFS outlier prior authorization committee” means a committee organized and operated by ODJFS that makes outlier prior authorization determinations.

(7) “Preadmission screening (PAS)” means that part of the preadmission screening and annual resident review (PASARR) process that must be completed prior to any new NF admission. PAS must be completed in accordance with rule 5101:3-3-15.1 of the Administrative Code.

(8) “Physician” means a doctor of medicine or osteopathy who is licensed to practice medicine.

(9) “Representative” means a person acting on behalf of an individual who is applying for or receiving medicaid. A representative may be a family member, attorney, hospital social worker, NF social worker, or any other person chosen to act on the individual’s behalf

(10) “Unstable medical condition” means that an individual’s medical condition changes frequently and/or rapidly so that constant monitoring and/or 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) A physician has ordered that a 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 concerning the individual’s unstable medical condition reflect that changes and/or adjustments have been made at least monthly.

(C) Individual eligibility criteria. To receive prior authorization approval for NF-PED services, an individual shall meet all the following criteria:

(2) NF LOC determination. The individual shall obtain a NF level of care as defined in Chapter 5101:3-3 of the Administrative Code; and

(3) PAS determination. In accordance with rule 5101:3-3-15.1 of the Administrative Code, one of the following PAS determinations shall be made:

(b) That the individual needs the level of services provided by a NF; and

(4) Age requirement. The individual shall be under twenty-two years of age; and

(5) Unstable medical condition. At the time of application to the NF-PED unit, the individual shall be one of the following:

(a) An inpatient in an acute care hospital for treatment of an unstable medical condition or a life threatening, medically complex condition, and have needs that cannot be met by services available in a non-institutional setting; or

(b) At risk of being hospitalized for treatment of an unstable medical condition or a life threatening, medically complex condition if not placed in a NF-PED unit, and have needs that cannot be met by services available in a non-institutional setting; and

(6) Physician services. The individual shall require physician services at least weekly; and

(7) Nursing services. The individual shall require the extensive monitoring, professional assessment, and skilled intervention of a registered nurse (RN) on a twenty-four hour a day basis.

(D) Provider eligibility criteria. In order to obtain a NF-PED provider agreement and qualify for enhanced payment for provision of NF-PED services to prior authorized individuals, a provider shall meet all of the following criteria:

(1) Certified NF and consent to ODJFS oversight. The provider shall be an Ohio medicaid certified NF, and shall agree to cooperate with ODJFS oversight of NF-PED services; and

(2) NF provider agreement. The provider shall meet the requirements set forth in rule 5101:3-3-02 of the Administrative Code in order to obtain a NF provider agreement; and

(3) Dedicated facility or discrete unit of facility.

(a) The provider shall provide NF-PED services in either a discrete, distinctly identified unit of the NF that is dedicated to the provision of outlier services for persons requiring NF-PED services, or in a free-standing NF-PED facility.

(i) Requests for unoccupied bed moves shall be submitted in writing to the “ODJFS Bureau of Long Term Care Facilities, Facility Contracting Section, P.O. Box 182709, Columbus, Ohio 43218-2709.” ODJFS shall receive the request at least five business days before the proposed date of the bed movement. ODJFS will issue a written response either approving or denying the request; and

(ii) Approvals will be granted for unoccupied bed moves only once per calendar quarter. At the sole discretion of ODJFS, more than one bed movement during a calendar quarter may be authorized; and

(iii) No NF shall discharge a resident earlier than is indicated in the resident’s treatment plan as a result of a request to move beds from the outlier unit to the non-outlier unit; and

(iv) A NF shall meet all requirements set forth in paragraphs (D)(2) and (D)(4) of this rule for beds moved into the outlier unit from the non-outlier unit; and

(4) Service delivery. With the exception of any specific items that are direct billed in accordance with rule 5101:3-3-19 of the Administrative Code, the provider shall agree to furnish or arrange to have furnished all of the following:

(a) Twenty-four hour a day skilled nursing care, and any personal care that may be required for the health, safety, and well-being of the individual; and

(b) Dietary supplements used for oral feeding, even if written as a prescription item by a physician; and

(d) Orthotic services delivered by licensed personnel; and

(e) Diagnostic radiology services; and

(f) Laboratory services; and

(g) Dental services; and

(h) Ventilator care requiring the professional assessment of a RN and/or a respiratory therapist, supplies and equipment including but not limited to oxygen, regular monitoring of blood gases, and frequent suctioning; and

(i) Therapeutic and training services consistent with the IP that ordinarily would occupy most of the day; and

(5) Preliminary evaluation. Prior to the individual’s admission, the provider shall develop and submit to the ODJFS designated outlier coordinator or other ODJFS designee accurate assessments or reassessments by an interdisciplinary team that evaluates the individual’s health, social, psychological, educational, vocational, and chemical dependency needs; and

(6) Initial assessment. Within fourteen days after admission, the provider shall develop and submit to the ODJFS designated outlier coordinator or other ODJFS designee accurate assessments or reassessments by an interdisciplinary team that address the individual’s health, social, psychological, educational, vocational, and chemical dependency needs in order to supplement the preliminary evaluation described in paragraph (D)(5) of this rule; and

(7) IP.

(c) The IP shall be reviewed at least monthly by the appropriate program staff and revised as necessary. Revisions shall be submitted to the ODJFS designated outlier coordinator or other ODJFS designee within three working days following the revision; and

(8) Discharge plan.

(9) Reassessment of discharge plan. When periodic reassessments of the discharge plan indicate that the individual’s discharge needs have changed, the provider shall submit the results of the reassessments and the revised discharge plan to the ODJFS designated outlier coordinator or other ODJFS designee within three working days following the revision; and

(10) Monthly report. The provider shall prepare and provide to the ODJFS designated outlier coordinator or other ODJFS designee a monthly report in a format approved by ODJFS that summarizes the IP, the individual’s progress, changes in treatment, and discharge plan; and

(11) Contracted rate.

(a) ODJFS shall contract with the provider to set initial and subsequent rates.

(b) The provider’s rate will be based on materials submitted by the provider and the methodology set forth in rule 5101:3-3-17 of the Administrative Code.

(c) With the exception of any specific items that are direct billed in accordance with rule 5101:3-3-19 of the Administrative Code, the provider shall agree to accept as payment in full the per diem rate established for NF-PED services in accordance with rule 5101:3-3-17 of the Administrative Code, and to make no additional charge to the individual, any member of the individual’s family, or to any other source for covered NF-PED services; and

(12) Reassessment of contracted rate.

(a) The provider shall agree to accept an adjusted “step-down” rate negotiated for the provision of services to an individual who, as determined by the ODJFS outlier prior authorization committee, no longer requires NF-PED services, but for whom no appropriate alternative placement is available.

(b) The adjusted rate shall be effective from the date of the determination until the date the individual is discharged to a more appropriate placement.

(E) Prior authorization of NF-PED services.

(1) Reimbursement for NF-PED services covered by the medicaid program is available only upon prior authorization by the ODJFS outlier prior authorization committee in accordance with the procedures set forth in this paragraph of this rule.

(a) In the case of an initial stay, prior authorization shall occur prior to admission to the NF-PED unit.

(b) In the case of a continued stay, prior authorization shall occur no later than the final day of the previously authorized NF-PED stay.

(c) If an individual is changing to medicaid from another primary pay source, prior authorization shall occur no later than five days before the last day of coverage by the other pay source.

(2) Submission of initial stay request.

(a) All requests shall be in writing, and shall be mailed to “ODJFS Bureau of Long Term Care Facilities, Facility Contracting Section, P.O. Box 182709, Columbus, Ohio 43218-2709” or faxed to 614-466-5844. No telephone requests will be honored.

(b) Requests shall be sent to the ODJFS designated outlier coordinator or other ODJFS designee.

(c) A request is considered submitted when it is received by the ODJFS designated outlier coordinator or other ODJFS designee.

An initial request for prior authorization of NF-PED services is considered complete when all of the following requirements have been met:

(a) The JFS 03142 “Prior Authorization” (rev. 2/2003) or an alternative form specified by ODJFS that requests prior authorization of medical services has been appropriately completed and submitted; and

(b) The JFS 03697 “Level of Care Assessment” (rev. 4/2003) or an alternative form specified by ODJFS that accurately reflects the individual’s current mental and physical condition and is certified by a physician has been appropriately completed and submitted, a LOC determination has been made as set forth in rule 5101:3-3-15 of the Administrative Code, and a determination has been made regarding the feasibility of community based care. If the individual is required by rule 5101:3-3-15.1 of the Administrative Code to undergo PAS, the completed JFS 03622 “PASARR (SMI/MRDD) Identification Screen” (rev. 03/1996) and the results of all required PAS determinations also shall be attached to the JFS 03697 or approved alternative form; and

(d) The JFS 03697 or ODJFS-authorized alternative form shall be sufficiently complete for a LOC determination to be made.

(4) Initial stay assessment. The ODJFS determination will be based on the completed initial stay request and any additional information or documentation necessary to make the determination of eligibility for NF-PED services, which may include a face-to-face visit by at least one ODJFS representative with the individual and, if applicable, the individual’s representative and, to the extent possible, the individual’s formal and informal care givers, to review and discuss the individual’s care needs and preferences.

(a) Denial.

(i) When a request for prior authorization of payment for NF-PED services is denied, ODJFS will issue a notice of medical determination and the right to a state hearing. The denial notice will include an explanation for the denial.

(ii) ODJFS will send a copy of the denial notice to the CDJFS to be filed in the individual’s case record.

(b) Approval. When a request for prior authorization of payment for NF-PED services is approved, ODJFS will issue an approval letter that will include an assigned prior authorization number, the number of days for which the NF-PED placement is authorized, and the date on which payment is authorized to begin. It also will include the name, location, and phone number of the ODJFS staff member who is assigned to monitor the individual’s progress in the facility, participate in the individual’s interdisciplinary team, and monitor implementation of the individual’s discharge plan. ODJFS will send a copy of the approval letter to the CDJFS to be filed in the individual’s case record.

(i) Authorization of initial stay.

(a) Individuals who meet the eligibility criteria set forth in paragraph (C) of this rule may be approved for an initial stay of not more than one hundred twenty days.

(ii) Authorization for continued stays.

(b) Continued stays may be approved in increments of not more than one hundred twenty days.

(7) Discharge.

(b) NF-PED services may be extended beyond the previously approved length of stay if the provider submits a written request to ODJFS proving that it is not possible to implement an individual’s discharge plan. Such requests shall be submitted at least one week prior to the last day of the previously authorized stay, unless there is a significant change of circumstances within the week preceding the expected discharge date that prevents implementation of the discharge plan.

(F) Provider agreement addendum.

(1) After ODJFS has approved a NF operator as a qualified provider of NF-PED services, both parties shall sign the JFS 03621 “Provider Agreement for Pediatric Outlier Services in Nursing Facilities” (rev. 7/2007), which is an addendum to the JFS 03623 “Ohio Medicaid Provider Agreement for Long Term Care Facilities: SNF/NFs and ICFs-MR” (rev. 7/2007).

(2) The addendum shall be signed as part of each subsequent annual provider agreement renewal with ODJFS, unless the provider chooses to withdraw as a provider of NF-PED outlier services or is determined by ODJFS to no longer meet the qualifications set forth in paragraph (D) of this rule.

(G) Payment authorization. The payment authorization date shall be one of the following, but shall not be earlier than the effective date of the individual’s LOC determination:

(1) The date of admission to the NF-PED unit if it is within thirty days of the physician’s signature; or

(2) A date other than that specified in paragraph (G)(1) of this rule. This alternative date may be authorized only upon receipt of a letter that contains a credible explanation for the delay from the originator of the request for the prior authorization. If the request is to backdate the LOC and NF-PED eligibility determination more than thirty days from the physician’s signature, the physician shall verify the continuing accuracy of the information and need for inpatient care either by adding a statement to that effect on the JFS 03697 or alternative ODJFS-approved form, or by attaching a separate letter of explanation; or

(H) Initial and subsequent contracted rates. ODJFS will establish the initial contracted rate and contracted rates subsequent to the initial rate year in accordance with rule 5101:3-3-17 of the Administrative Code.

Replaces: 5101:3-3-54.5

Effective: 08/01/2008

R.C. 119.032 review dates: 08/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02, 5111.257

Rule Amplifies: 5111.01, 5111.02, 5111.20, 5111.258

Prior Effective Dates: 12/10/94, 7/1/02, 7/1/04, 7/1/05

5101:3-3-17.3 Out-of-state nursing facility (NF) services for individuals with traumatic brain injury (TBI).

(A) Purpose.

(1) This rule identifies the process for prior authorization of out-of-state NF-TBI services.

(2) This rule sets forth the following:

(a) In paragraph (C) of this rule, the criteria to determine if an individual with a TBI who has a nursing facility (NF) level of care (LOC) is eligible for out-of-state NF-TBI services.

(b) In paragraph (D) of this rule, the conditions under which a NF or a discrete unit within a NF may be approved by the Ohio department of job and family services (ODJFS) as an eligible provider of out-of-state NF-TBI services and thereby receive payment established in accordance with this rule.

(c) In paragraph (E) of this rule, the prior authorization process for admission or continued stay for individuals who are seeking medicaid payment for out-of-state NF-TBI services.

(d) In closing paragraphs, details about the provider agreement addendum, payment authorization, and materials to be submitted by the provider to support the establishment of the initial and subsequent contracted per diem rate.

(B) Definitions.

(1) “Individual” means a person with TBI seeking or receiving out-of-state prior authorized TBI services.

(2) “LOC review” means the evaluation of an individual’s physical, mental, and social/emotional status to determine the LOC required to meet the individual’s service needs and includes activities necessary to safeguard against unnecessary utilization. LOC determinations are based upon the criteria regarding the amount and type of services needed by an individual that are set forth in rules contained in Chapter 5101:3-3 of the Administrative Code. The LOC process is also the mechanism by which medicaid payment is initiated.

(3) “Nursing facility (NF)” means any long term care facility except an ICF-MR that is currently certified by the Ohio department of health (ODH) as being in compliance with NF standards and medicaid conditions of participation.

(4) “ODJFS out-of-state TBI prior authorization committee” means a committee organized and operated by ODJFS that makes TBI out-of-state prior authorization determinations.

(5) “PAS” means preadmission screening and refers to that part of the preadmission screening and annual resident review (PASARR) process, which must be met prior to any new admission to a NF and completed in accordance with rule 5101:3-3-15.1 of the Administrative Code.

(6) “Physician” means a doctor of medicine or osteopathy who is licensed to practice medicine.

(7) “Rancho los amigos (RLA) hospital levels of cognitive functioning scale” means a scale designed to measure and track an individual’s progress regarding levels of cognitive functioning. The RLA scale (see the appendix to this rule) has been used as a means to develop level specific treatment interventions and strategies designed to facilitate movement from one level to another. The RLA level of an individual is determined by behavioral observations.

(8) “Representative” means a person acting on behalf of an individual who is applying for or receiving medicaid. A representative may be a family member, guardian, attorney, hospital social worker, or any other person chosen to act on the individual’s behalf.

(9) “Traumatic brain injury (TBI)” means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both. The term applies to open or closed head injuries resulting in impairments in one or more areas, such as: cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. The term does not apply to brain injuries that are congenital or degenerative, or brain injuries induced by birth trauma. TBI also excludes brain damage due to anoxia, metabolic disorders, cerebral vascular insults, or other internal causes.

(1) To receive prior authorization approval for out-of-state placement for NF-TBI services, an individual shall meet all the criteria in paragraphs (C)(1) to (C)(9) of rule 5101:3-3-17.1 of the Administrative Code and be inappropriately served or not served in Ohio.

(2) An individual is considered inappropriately served or not served when the individual has tried to access the services specified in rule 5101:3-3-17.1 of the Administrative Code and a prior authorized admission to an Ohio NF-TBI facility is unavailable for placement in a timely manner.

(D) Provider eligibility criteria. In order to obtain an out-of-state NF-TBI provider agreement and thereby qualify to provide NF-TBI services for individuals who have received prior authorization by ODJFS for admission or continued stay, a provider shall meet all of the requirements in paragraphs (D)(2), (D)(4), (D)(6), (D)(8), (D)(9), (D)(10), and (D)(11) of rule 5101:3-3-17.1 of the Administrative Code. At regular intervals established by ODJFS subsequent to that enrollment, ODJFS shall determine whether the provider qualifications are fulfilled through review of documentation of appropriate policies and procedures, completion of on-site visits, or through other mechanisms determined appropriate by ODJFS. In addition, a provider shall meet the following requirements prior to enrollment as an out-of-state NF-TBI provider:

(1) Certified NF. The provider shall be a medicaid certified NF.

(2) Contracted rates.

(a) ODJFS shall contract with the provider to set initial and subsequent rates.

(b) The rate paid the provider will be based on the rate submitted by the provider in accordance with paragraphs (H) and (I) of this rule.

(c) With the exception of any specific items that are direct billed in accordance with rule 5101:3-3-19 of the Administrative Code, the provider shall agree to accept, as payment in full, the per diem rate established for NF-TBI services in accordance with this rule, and to make no additional charge to the individual, any member of the individual’s family, or to any other source for covered NF-TBI services.

(d) The provider shall assure ODJFS that consultant, ancillary, and acute services not covered in the contract rate can be made available to an individual participating in the Ohio medicaid program.

(E) Prior authorization of out-of-state NF-TBI services. Reimbursement for out-of-state NF-TBI services covered by medicaid is available only upon prior authorization from the ODJFS out-of-state TBI prior authorization committee in accordance with the procedures set forth in paragraph (E) of rule 5101:3-3-17.1 of the Administrative Code.

(F) Provider agreement addendum.

(1) After ODJFS has approved a NF operator as a qualified provider of out-of-state NF-TBI services, both parties shall sign the JFS 03634 “Provider Agreement for Traumatic Brain Injury Outlier Services in Nursing Facilities” (rev. 7/2007), which is an addendum to the JFS 03623 “Ohio Medicaid Provider Agreement for Long Term Care Facilities: SNF/NFs and ICFs-MR” (rev. 7/2007).

(2) This addendum shall also be signed as part of each subsequent annual provider agreement renewal with ODJFS, unless the provider chooses to withdraw as a provider of NF-TBI out-of-state services or is determined by ODJFS to no longer meet the requirements set forth in paragraph (D) of this rule.

(G) Payment authorization. Authorization of payment to an eligible provider for the provision of out-of-state NF-TBI services shall be the effective date of the individual’s NF-TBI prior authorization approval by the ODJFS out-of-state TBI prior authorization committee, but shall not be earlier than the effective date of the individual’s LOC determination. The payment authorization date shall be determined in one of the following ways:

(1) The date of admission to the NF-TBI unit if it is within thirty days of the physician’s signature; or

(2) If the individual was required to undergo PAS and failed to do so prior to admission, the effective date of the LOC determination and NF-TBI eligibility determination shall be the later of the date of either the PAS determination when the individual required the level of services available in a NF, or the date established in paragraph (G)(1) of this rule.

(H) Initial contracted rate.

(1) The initial rate for a newly approved provider of out-of-state NF-TBI services will be based upon the rates received by the facility from its state of residence, or the Ohio average rate paid to NF-TBI prior authorized facilities, whichever is less. Any contracted rate shall first be approved by the ODJFS director.

(2) ODJFS will establish the initial contracted rate no later than ninety days after ODJFS receives all the required information from the provider. The initial contracted rate will be implemented retroactively to the initial date services were provided pursuant to the out-of-state NF-TBI provider agreement.

(3) The rate the facility receives for services in its state of residence may be submitted as soon as the provider receives notification from ODJFS of the effective date of the out-of-state NF-TBI provider agreement, but shall be submitted within ninety days of the provider agreement’s effective date.

(4) Prior authorized out-of-state NF-TBI facilities will not be required to submit financial and statistical reports as required by rule 5101:3-3-20 of the Administrative Code.

(5) Payment for periods when the individual is absent for visitation or hospitalization will be made to the out-of-state facility in accordance with rule 5101:3-3-16.4 of the Administrative Code.

(I) Contracted rates subsequent to the initial rate year.

(1) The contracted rate will be effective for the fiscal year beginning on the first of July and ending on the thirtieth day of June of the following calendar year.

(2) ODJFS will establish the contracted rate for subsequent fiscal years in accordance with paragraph (H) of this rule.

Replaces: 5101:3-3-17.3

Effective: 08/01/2008

R.C. 119.032 review dates: 08/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02, 5111.21, 5111.22

Prior Effective Dates: 9/3/87 (Emer.), 12/28/87, 10/1/91 (Emer.), 12/20/91, 7/1/02, 7/1/04

5101:3-3-17.4 Outlier services for behavioral redirection and medical monitoring (BRMM) for intermediate care facilities for the mentally retarded (ICFs-MR).

(A) Purpose.

(1) This rule identifies a sub-population of those persons determined to require an ICF-MR level of care (LOC) whose care needs are not adequately measured by the individual assessment form (IAF) in effect on the effective date of this rule (as described in rule 5101:3-3-73.1 of the Administrative Code) or by the resident assessment classification (RAC) case mix system in effect on the effective date of this rule (as described in rule 5101:3-3-73.2 of the Administrative Code).

(2) This rule sets forth the following:

(a) In paragraph (C) of this rule, the criteria to determine if a person with an ICF-MR LOC is eligible for outlier services for BRMM.

(b) In paragraph (D) of this rule, the conditions under which ICFs-MR or discrete units within an ICF-MR may be approved by the Ohio department of job and family services (ODJFS) as eligible providers of ICF-MR-BRMM services and thereby receive payment established in accordance with rule 5101:3-3-17 of the Administrative Code.

(c) In paragraph (E) of this rule, the prior authorization process for admission or continued stay for individuals who are seeking medicaid payment for ICF-MR-BRMM services.

(B) Definitions.

(1) “Behavioral phenotype” means the observable or measurable expression of a gene or genes and the heightened probability that a person with a given syndrome will exhibit behavioral or developmental sequella relative to others without the syndrome.

(2) “ICF-MR” means intermediate care facility for the mentally retarded/developmentally disabled. An “ICF-MR” is a long term care facility certified by the medicaid program to provide services to individuals with mental retardation, developmental disability, or a related condition who require active treatment. In order to be eligible for vendor payment in an ICF-MR, an individual shall be assessed and determined by ODJFS to be in need of an ICF-MR LOC as outlined in rule 5101:3-3-07 of the Administrative Code.

(3) “ICF-MR-BRMM” means an ICF-MR approved by ODJFS to deliver outlier services for BRMM that holds an effective ICF-MR-BRMM provider agreement with ODJFS.

(4) “Individual” means a person who is seeking or receiving medicaid coverage of prior authorized ICF-MR-BRMM services.

(5) “Individual plan (IP)” means a written description of the services to be provided to an individual, developed by an interdisciplinary team that represents the professions, disciplines, or service areas that are relevant to identifying the individual’s needs, as described by the comprehensive functional assessments.

(6) “LOC review” means the evaluation of an individual’s physical, mental and social/emotional status to determine the LOC required to meet the individual’s service needs and includes activities necessary to safeguard against unnecessary utilization. LOC determinations are based upon the criteria regarding the amount and type of services needed by an individual that are set forth in rules contained in Chapter 5101:3-3 of the Administrative Code. The LOC process is also the mechanism by which the medicaid vendor payment is initiated for non-outlier facilities. For outlier facilities, individuals require written preadmission or continued stay prior authorization approval from ODJFS before vendor payment may be initiated or continued for a time-specific duration.

(7) “ODJFS designated outlier coordinator” means a designated ODJFS staff member who coordinates the general operations of the long term care facility outlier program. This coordinator works with providers of outlier services, the individuals and their representatives requesting and receiving outlier services, other service agencies, and other ODJFS staff. This coordinator’s duties include, but are not limited to, the following:

(a) Assisting with the initial approval and ongoing monitoring of outlier provider facilities; and

(b) Coordinating the processing of preadmission and continued stay prior authorization requests for individuals; and

(d) Reviewing assessments, individual plans, day programming plans, staffing plans, and other documents.

(8) “Outlier services” means those clusters of services that have been determined by ODJFS to require reimbursement rates established pursuant to section 5111.258 of the Revised Code when delivered by qualified providers to individuals who have been prior authorized for the receipt of a category of service identified as an outlier service by ODJFS and/or set forth as such in Chapter 5101:3-3 of the Administrative Code.

(9) “ODJFS outlier prior authorization committee” means a committee organized and operated by ODJFS that makes outlier prior authorization determinations.

(10) “Physician” means a doctor of medicine or osteopathy who is licensed to practice medicine.

(11) “Plan of correction” means a corrective action plan prepared by a facility in response to deficiencies cited by the survey agency. The plan shall conform to regulations and guidelines, and shall include information that describes how the deficiency will be corrected, when it will be corrected, how other residents that may be affected by the deficiency will be identified, and how the facility will assure that compliance will be maintained upon correction.

(12) “Prior authorization assessment for ICF-MR-BRMM services” means an evaluation to determine if an individual meets the criteria to be served by an ICF-MR-BRMM provider as outlined in paragraphs (C)(3) to (C)(10) of this rule, and shall take place only after the individual is determined to meet the financial eligibility and LOC requirements set forth in paragraphs (C)(1) and (C)(2) of this rule.

(13) “Prior authorization approval for ICF-MR-BRMM services” means approval obtained by the provider of ICF-MR-BRMM services from ODJFS on behalf of a specific individual for specific time-limited initial or continued stay periods at an ICF-MR that holds an effective ICF-MR-BRMM provider agreement. Prior authorization for ICF-MR-BRMM services shall be required for the provider to be authorized by ODJFS to receive reimbursement for services rendered to the individual, because payment rates for these services are determined through a contracted rate process in accordance with rule 5101:3-3-17 of the Administrative Code. Reimbursement may be denied for any service not rendered in accordance with the department’s rules contained in Chapter 5101:3-3 of the Administrative Code.

(a) Initial prior authorization for ICF-MR-BRMM services. Unless the individual is seeking a change of payer, the prior authorization of payment for ICF-MR-BRMM services shall occur prior to admission to the ICF-MR-BRMM facility.

(b) Continued stay prior authorization for ICF-MR-BRMM services. In the case of requests for continued stay, the prior authorization of payment for ICF-MR-BRMM services shall occur no later than the final day of the previously authorized ICF-MR-BRMM stay.

(14) “Progressive serious medical condition” means an illness, injury, impairment, or physical or mental condition, or a combination of mental and physical conditions, that continues over an extended period of time and involves a regimen of continuing treatment and/or periodic visits/monitoring by a physician, or by a nurse or physician’s assistant under direct supervision of a physician. A progressive serious medical condition involves the characteristic signs and symptoms of the condition becoming more prominent by manifesting more frequently or increasing in severity as part of the course of the condition.

(15) “QMRP” means a qualified mental retardation professional who has at least one year of experience working directly with persons with mental retardation or other developmental disabilities; and is a doctor of medicine or osteopathy, or a registered nurse, or holds at least a bachelor’s degree in a professional category that meets the requirements outlined for facility staff under the medicare and medicaid programs.

(16) “Repeat deficiency” means a deficiency cited on a licensure or certification survey, verified to have been corrected by a subsequent survey, and cited again on the next annual or complaint survey.

(17) “Representative” means a person acting on behalf of an individual who is applying for or receiving medical assistance. A representative may be a family member, guardian, attorney, hospital social worker, ICF-MR social worker, or any other person chosen to act on the individual’s behalf.

(18) “Secondary medical condition” means an additional physical or mental health condition that occurs more frequently among persons having a specific primary progressive serious medical condition.

(C) Individual eligibility criteria. To receive prior authorization approval for ICF-MR-BRMM services, an individual shall meet all the following criteria:

(2) ICF-MR LOC determination. The individual must have obtained an ICF-MR level of care determination from ODJFS within the last thirty days, or at the time of prior authorization assessment for ICF-MR-BRMM services, be determined by ODJFS to meet the criteria for an ICF-MR LOC as set forth in rule 5101:3-3-07 of the Administrative Code; and

(3) Presence of progressive developmental disability. The individual shall have either a developmental disability other than mental retardation, or have a diagnosis of mental retardation and have been determined to function at the mild or moderate intellectual level in accordance with standard measurements as recorded in the most current revision of the manual of terminology and classification in mental retardation published by the American association on mental retardation; and

(4) Presence of primary progressive serious medical condition. The individual shall have a primary diagnosis of a progressive serious medical condition other than a mental or physical impairment solely caused by mental illness as defined in division (A) of section 5122.01 of the Revised Code, and other than mental retardation, that is generally acknowledged to be associated with:

(a) Behaviors posing a substantial risk of injury to self or others that cannot be eradicated by psychiatric, pharmacologic, neurologic, or behavioral intervention, or combination of interventions; and

(b) Behaviors requiring a restrictive environment to maintain health and safety; and

(5) Presence of secondary medical condition. The individual shall have at least one medical condition other than mental illness or mental retardation that is a secondary manifestation of the primary progressive serious medical condition listed in paragraph (C)(4) of this rule; and that, without intervention, would threaten the person’s medical stability; and

(6) Episode of injury to self or others and continuing risk of injury to self or others.

(a) Within the twelve months preceding the initial prior authorization assessment for ICF-MR-BRMM services, the individual shall have exhibited behavior that is generally acknowledged to be associated with one of the medical conditions described in paragraph (C)(4) or (C)(5) of this rule that resulted in substantial injury to self or others; and

(b) Within the twelve months prior to any continued stay prior authorization assessment for ICF-MR-BRMM services, the individual shall have exhibited behavior that is generally acknowledged to be associated with one of the medical conditions described in paragraph (C)(4) or (C)(5) of this rule that poses substantial risk of injury to self or others; and

(7) Presence of aberrant motivational behavioral profile. Within the past twelve months, the individual shall have exhibited a consistent pattern of behaviors or frequent episodes that displays the following behavioral profile:

(a) Lacks impulse control; and

(b) Exhibits purposeful, but dysfunctional, goal-directed behavior to obtain or avoid something; and

(d) Has the physical capability to carry out the threats; and

(e) Has a history of carrying out the threats and/or currently attempts to carry out the threats; and

(8) Constant monitoring and continual behavioral intervention. For individuals eligible to receive ICF-MR-BRMM services, reduction in health and safety risks are expected to result from external and continuously required intervention, not from any expected internal gains in insight or impulse control by the individual or elimination of risk through medical treatment of the medical conditions.

(a) The individual shall exhibit behaviors generally acknowledged to be associated with the medical conditions described in paragraph (C)(4) or (C)(5) of this rule that are not expected to be eliminated through the implementation of psychiatric, neurologic, or pharmacologic interventions or combination of interventions, and thus present a continuing need for temporary control through behavioral intervention strategies such as behavioral redirection.

(b) The individual shall require constant staff attention during waking hours for redirection and intervention, and awake staff supervision twenty-four hours a day, seven days a week; and

(9) A substantially restrictive environment. The individual shall have at least one behavioral manifestation generally acknowledged to be associated with the primary medical condition listed in paragraph (C)(4) of this rule, and that requires a substantially restrictive environment to maintain health and safety by eliminating opportunities for the behavior to occur; and

(10) Less restrictive settings ruled out. The individual shall not be able to have these behavioral and medical needs met in any setting less restrictive than an ICF-MR-BRMM.

(D) Provider eligibility criteria. Prior to enrollment as a ICF-MR-BRMM service provider, and at regular intervals to be determined by ODJFS subsequent to that enrollment, ODJFS will determine whether the ICF-MR-BRMM service provider qualifications are fulfilled through review of documentation of appropriate policies and procedures, on-site visits, and other mechanisms determined to be appropriate by the ODJFS designated outlier coordinator or other ODJFS designee. In order to obtain a ICF-MR-BRMM provider agreement and qualify for enhanced payment for provision of ICF-MR-BRMM services to prior authorized individuals, a provider shall meet all of the following criteria:

(1) Certified ICF-MR and consent to ODJFS oversight. The provider shall be an Ohio medicaid certified ICF-MR, and shall agree to cooperate with ODJFS oversight of ICF-MR-BRMM services; and

(2) ICF-MR provider agreement. The provider shall meet the requirements set forth in rule 5101:3-3-02 of the Administrative Code in order to obtain an ICF-MR provider agreement; and

(3) Dedicated facility or discrete unit of facility. ICF-MR-BRMM services shall be provided in either a discrete, distinctly identified unit of the ICF-MR dedicated to the provision of outlier services for persons requiring ICF-MR-BRMM services, or in a freestanding ICF-MR facility.

(a) If the service is delivered in a distinctly identified unit of a larger ICF-MR, the provider’s state licensure process and its medicaid certification process may continue to recognize only one facility, but the medicaid program staff shall issue separate provider agreements to the outlier and non-outlier units.

(b) Unoccupied certified beds may be moved between the outlier and non-outlier units in accordance with the following:

(i) ODJFS must receive a written request from the ICF-MR service provider at least five business days before the selected date of the bed change. The provider shall submit the request in writing to the “ODJFS Bureau of Long Term Care Facilities, Facility Contracting Section, P.O. Box 182709, Columbus, Ohio 43218-2709.” ODJFS shall issue a written response either approving or denying the request; and

(ii) Approvals may be granted for unoccupied bed moves only once per calendar quarter. More than one bed movement during a calendar quarter may be authorized at the sole discretion of ODJFS; and

(iii) No ICF-MR shall discharge a resident earlier than is indicated in the resident’s treatment plan as a result of a request to move beds from the outlier unit to the non-outlier unit; and

(iv) ICFs-MR shall meet all requirements set forth in paragraphs (D)(7) and (D)(8) of this rule for beds moved into the outlier unit from the non-outlier unit; and

(4) Licensure survey findings.

(a) Within the thirty-six months prior to acceptance by ODJFS as a provider of ICF-MR-BRMM services, the provider shall:

(i) Have been in full compliance with residential facility licensure standards; or

(ii) Have an approved plan of corrections from the licensing agency and have not demonstrated a pattern of repeat deficiencies.

(b) New facilities shall not be approved as providers of ICF-MR-BRMM services until any required licensure plans of correction are implemented; and

(5) Certification survey findings.

(a) Within the thirty-six months prior to acceptance as a provider of ICF-MR-BRMM services, the provider shall:

(i) Have fully met all the standards for medicaid ICF-MR certification; or

(ii) Have met the medicaid program requirements of a facility for which the survey and certification agency found deficiencies, have an approved plan of correction from the state survey and certification agency, and have not demonstrated a pattern of repeat deficiencies.

(b) Facilities may not be approved as providers of ICF-MR-BRMM services until any required certification plans of correction are implemented; and

(6) Physical environment.

(a) Single person bedrooms. Each resident shall have a private bedroom.

(b) Environmental alterations. Residents who qualify for prior authorization of ICF-MR-BRMM services are aggressive, assaultive, and/or destructive, and pose significant health or security risks.

(i) Based on the expected care needs of those residents, including residents whose records document that programs incorporating the use of less restrictive environments have been tried systematically and demonstrated to be ineffective, the provider shall make significant environmental alterations that are expected to reduce or eliminate the destructive outcome to people or the environment, or to reduce the need for continual replacement of damaged property.

(ii) Examples of such resident-specific adaptations or modifications may include, but are not limited to, fenced yards, alarm systems, reduced access to kitchens and food supplies, or furnishings that are more difficult to destroy.

(c) Structural modifications. The provider shall demonstrate the ability to rapidly respond to presented needs for structural changes related to the residents’ behaviors; and

(7) Facility staffing.

(a) Availability of direct care staff.

(i) Providers shall schedule direct care staff to ensure that adequately trained staff are present and on duty seven days a week, twenty-four hours a day, every day of the year. Staffing shall be sufficient to ensure that urgent, emergent, and routine resident needs are identified appropriately and in a timely manner, and are met through the implementation of intervention strategies reflected in the resident’s IP.

(ii) Absences of staff for breaks and meals shall not compromise this requirement.

(b) Management/QMRP experience. Staff employed to manage ICF-MR-BRMM services, including services delivered by a QMRP, shall have evidence of at least two year’s work experience with individuals who have severe behavioral issues.

(c) Staff training. Staff training programs shall address the specific behavioral and medical domains a staff member must master for a thorough understanding and demonstration of competency in order to meet the intensive needs of residents requiring ICF-MR-BRMM services. Initial and continuing direct care staff training shall include all of the following:

(i) Orientation to the facility or distinct part unit’s status as a provider of ICF-MR-BRMM services, including the individual eligibility criteria outlined in paragraph (C) of this rule, and the provider eligibility criteria outlined in this paragraph; and

(ii) Information about the disorders/syndromes, behavioral phenotypes, and stages of disease progression affecting the current residents of the ICF-MR-BRMM provider; and

(iii) Accepted best practices and innovative approaches to meet these resident needs in both behavioral and medical domains; and

(8) Service collaboration and day programming.

(a) Prior to approval as a provider of ICF-MR-BRMM services, the provider shall demonstrate the ability to collaborate with county boards of mental retardation and developmental disabilities and with others to provide service for individuals described in paragraph (C) of this rule.

(b) Prior to any individual’s admission to an ICF-MR-BRMM, the provider shall arrange for a suitable school or day program for the individual and shall submit the plan for such program to the ODJFS designated outlier coordinator or other ODJFS designee; and

(9) Preliminary evaluation.

Prior to an individual’s admission, the provider shall develop and submit to the ODJFS designated outlier coordinator or other ODJFS designee accurate assessments or reassessments by an interdisciplinary team that address the individual’s health, social, psychological, educational, vocational, and chemical dependency needs; and

(10) Transitional plan.

(a) Due to the complex and intensive needs of individuals being admitted to an ICF-MR-BRMM, the provider shall perform sufficient planning prior to admission in order to ensure that the facility is able to meet an individual’s health, safety, and behavioral needs from the day of admission.

(b) The transitional plan shall address major concerns and shall be submitted for review to the ODJFS designated outlier coordinator or other ODJFS designee prior to the individual’s admission; and

(11) Initial assessment. Within thirty days after admission, the provider shall develop and submit to the ODJFS designated outlier coordinator or other ODJFS designee accurate assessments or reassessments by an interdisciplinary team that address the individual’s health, social, psychological, educational, vocational, and chemical dependency needs in order to supplement the preliminary evaluation described in paragraph (D)(9) of this rule, which was conducted prior to admission; and

(12) IP, team meeting, and quarterly report.

(a) IP. Within thirty days of an individual’s admission, the provider shall develop and submit to the ODJFS designated outlier coordinator or other ODJFS designee a comprehensive, individualized plan. The plan shall be reviewed by the appropriate program staff at least quarterly and revised as necessary.

(b) Team meeting. The facility shall notify the ODJFS designated outlier coordinator or other ODJFS designee at least one week in advance of each full-team meeting, and provide the ODJFS designated outlier coordinator or other ODJFS designee with minutes of those meetings upon request.

(i) The provider shall prepare and provide to the ODJFS designated outlier coordinator or other ODJFS designee a quarterly report in a format approved by ODJFS that summarizes the resident’s IP, progress, changes in treatment, current status relative to discharge goals, and any updates to the discharge plan, including referrals made and anticipated time frames.

(ii) A current copy of the resident’s IP shall be available to the ODJFS designated outlier coordinator or other ODJFS designee upon request; and

(13) Discharge plan.

(a) Within thirty days after admission, the provider shall develop and submit for approval to the ODJFS designated outlier coordinator or other ODJFS designee a written discharge plan developed by the interdisciplinary team in conjunction with the individual and others concerned with the individual’s welfare.

(b) The discharge plan shall include all of the following:

(i) Description of targeted behavioral and medical/health status indicators that would signify the resident could be safely discharged; and

(ii) Recommendations for any counseling and/or training of the individual and family members or interested persons to prepare them for post-discharge care; and

(iii) Evaluation of the likely need for appropriate post-discharge services, the availability of those services, the providers of those services, the payment source for each service, and dates on which notification of the individual’s needs and anticipated time frames was or would be made to the providers of those services; and

(14) Reassessment of discharge plan. When periodic reassessment of the discharge plan indicates that an individual’s discharge needs have changed, the provider shall submit the results of the reassessments and the revised discharge plan to the ODJFS designated outlier coordinator or other ODJFS designee within five working days following the revision; and

(15) Continued stay denials. If prior authorization is denied during an assessment that was requested for an individual already residing in the ICF-MR-BRMM unit, the provider shall do both of the following:

(a) Move the individual to the first available ICF-MR bed that is not in the ICF-MR-BRMM unit for as long as ICF-MR services are needed; and

(b) Until such time as a more appropriate placement can be made, accept payment for the provision of services at the non-outlier ICF-MR reimbursement rate; and

(16) Contracted rate.

(a) Based on materials submitted by the provider in accordance with paragraph (H) of this rule and the methodology set forth in rule 5101:3-3-17 of the Administrative Code, ODJFS shall contract with the provider to set initial and subsequent rates for ICF-MR-BRMM services.

(b) With the exception of any specific items that are direct billed in accordance with rule 5101:3-3-19 of the Administrative Code, the provider shall agree to accept as payment in full the per diem rate established for ICF-MR-BRMM services in accordance with rule 5101:3-3-17 of the Administrative Code, and to make no additional charge to the individual, to any member of the individual’s family, or to any other source for covered ICF-MR-BRMM services.

(E) Prior authorization for services. Payment for ICF-MR-BRMM services covered by the medicaid program shall be available only upon prior authorization by ODJFS for each individual in accordance with the procedures set forth in this paragraph. These prior authorization procedures are in addition to the LOC review process as set forth in rule 5101:3-3-15.3 of the Administrative Code.

(1) Submission of initial request.

(b) Requests shall be sent to the ODJFS designated outlier coordinator or other ODJFS designee.

(c) A request is considered submitted when it is received by the ODJFS designated outlier coordinator or other ODJFS designee.

(2) Initial request requirements.

It is the responsibility of the provider to ensure that all required information is provided to ODJFS as requested. Prior authorization will not be given until all of the initial application requirements set forth in this rule have been met.

An initial request for prior authorization of ICF-MR-BRMM services is considered complete when all of the following requirements have been met:

(a) The JFS 03142 “Prior Authorization” (rev. 02/2003) or an alternative form specified by ODJFS that requests prior authorization of medical services has been appropriately completed and submitted; and

(b) The JFS 03697 “Level of Care Assessment” (rev. 04/2003) or an alternative form specified by ODJFS that accurately reflects the individual’s current mental and physical condition and is certified by a physician has been appropriately completed and submitted; and

(c) In accordance with the LOC review process for ICFs-MR set forth in rule 5101:3-3-15.3 of the Administrative Code, an ICF-MR LOC determination has been issued based upon a comparison of the individual’s condition and service needs with the LOC criteria set forth in rules 5101:3-3-05, 5101:3-3-06, 5101:3-3-07, and 5101:3-3-08 of the Administrative Code; and a determination regarding the feasibility of community-based care has been made; and

(d) The ICF-MR-BRMM provider has submitted to the ODJFS designated outlier coordinator the JFS 03142 and supporting documentation exhibiting evidence that the applicant meets criteria listed in paragraphs (C)(3) to (C)(12) of this rule. The provider shall retain a duplicate copy of all submitted documentation. Supporting documentation may include, but is not limited to, the preliminary evaluation, assessments, and IP required prior to admission as set forth in paragraph (D) of this rule.

(3) Initial stay assessment. The ODJFS determination will be based on the completed initial stay request and any additional information or documentation necessary to make the determination of eligibility for ICF-MR-BRMM services, which may include a face-to-face visit by at least one ODJFS representative with the individual and, if applicable, the individual’s representative and, to the extent possible, the individual’s formal and informal care givers, to review and discuss the individual’s care needs and preferences.

(4) Prior authorization determination.

Based upon a comparison of the individual’s condition, service needs, and the requested placement site, with the eligibility criteria set forth in paragraph (C) of this rule, the ODJFS outlier prior authorization committee shall conduct a review of the application, assessment report, and supporting documentation about the individual’s condition and service needs to determine whether the individual is eligible for ICF-MR-BRMM services.

(5) Notice of determination.

When the prior authorization request has been processed by the ODJFS outlier prior authorization committee indicating approval or denial of the request for authorization of reimbursement, notices shall be sent by mail or fax that include all of the determinations made and the individual’s state hearing rights, in accordance with Chapter 5101:6-2 of the Administrative Code, to the individual, the individual’s legal guardian and/or representative (if any), and the provider. The provider may perform any service(s). However, reimbursement by ODJFS shall be limited to services approved as indicated in the approval letter.

(a) Denial. When a request for prior authorization of reimbursement for ICF-MR-BRMM services is denied, ODJFS shall issue a notice of medical determination and a right to a state hearing. A copy of this denial notice shall be sent to the CDJFS to be filed in the individual’s case record. The notice shall also include an explanation of the reason for the denial.

(b) Approval. When a request for prior authorization of reimbursement for ICF-MR-BRMM services has been approved, ODJFS shall issue an approval letter that includes an assigned prior authorization number, the number of days for which the ICF-MR-BRMM placement is authorized, and the date on which payment is authorized to begin. It also will include the name, location, and phone number of the staff member of ODJFS who is assigned to monitor the individual’s progress in the facility, participate in the individual’s interdisciplinary team, and monitor implementation of the individual’s discharge plan. ODJFS will send a copy of the approval letter to the CDJFS to be filed in the individual’s case record.

(i) Authorization for initial stay. Individuals who are determined to have met the eligibility criteria set forth in paragraph (C) of this rule may be approved for an initial stay of up to a maximum of six months, or up to one hundred eighty-four days. The number of months or days that is prior authorized for each eligible individual shall be based upon the submitted application materials, consultation with the individual’s attending physician, and/or any additional consultations or materials required by the assessor to make a reasonable estimation regarding the individual’s probable length of stay in the ICF-MR-BRMM unit.

(ii) Authorization for continued stays. Continued stay determinations shall be based on reports from the facility submitted to the ODJFS designated outlier coordinator regarding critical events and the status of the individual’s condition and discharge planning options, face-to-face assessments conducted by ODJFS, and other collaborative information determined by the ODJFS outlier prior authorization committee. When ODJFS determines that the individual continues to meet the eligibility criteria set forth in paragraph (C) of this rule, continued stays may be approved for maximum increments of six months, up to one hundred eighty-four days.

(6) Discharge.

(a) An individual is expected to be discharged to the setting specified in the individual’s discharge plan at the end of the prior authorized initial or continued stay, and progress toward that end shall be monitored by ODJFS or its designee throughout the individual’s stay in the ICF-MR-BRMM unit.

(b) ICF-MR-BRMM services may be extended beyond the previously approved length of stay if the provider submits a written request to ODJFS proving that it is not possible to implement the individual’s discharge plan. Such requests shall be submitted at least one week prior to the last day of the previously authorized stay, unless there is a significant change of circumstances within the week preceding the expected discharge date that prevents implementation of the discharge plan.

(F) Provider agreement addendum.

(1) After ODJFS has approved an ICF-MR operator as a qualified provider of ICF-MR-BRMM services, both parties shall sign the JFS 03642 “Provider Agreement for Behavioral Redirection and Medical Monitoring Outlier Services” (rev. 7/2007), which is an addendum to the JFS 03623 “Ohio Medicaid Provider Agreement for Long Term Care Facilities: SNF/NFs and ICFs-MR” (rev. 7/2007).

(2) The addendum shall be signed as part of each subsequent annual provider agreement renewal with ODJFS, unless the provider chooses to withdraw as a provider of ICF-MR-BRMM outlier services or is determined by ODJFS to no longer meet the qualifications set forth in paragraph (D) of this rule.

(G) Payment authorization. The payment authorization date shall be one of the following, but shall not be earlier than the effective date of the individual’s LOC determination:

(1) The date of admission to the ICF-MR-BRMM unit if it is within thirty days of the physician’s signature on the JFS 03697 or an alternative form specified by ODJFS; or

(2) The date of ICF-MR-BRMM prior authorization approval, if the individual was already a resident of an ICF-MR-BRMM but was using another payer source; or

(3) A date other than that specified in paragraph (G)(1) or (G)(2) of this rule. This alternative date may be authorized only upon receipt of a letter by the ODJFS designated outlier coordinator or other ODJFS designee that contains a credible explanation for the delay from the originator of the request for prior authorization of ICF-MR-BRMM services. If the request is to backdate the LOC and ICF-MR-BRMM eligibility determination more than thirty days from the physician’s signature, the physician shall verify the continuing accuracy of the information and need for inpatient care either by adding a statement to that effect on the JFS 03697 or alternative approved form, or by attaching a separate letter of explanation.

(H) Initial and subsequent contracted rates. ODJFS shall establish the initial contracted rate and contracted rates subsequent to the initial rate year in accordance with rule 5101:3-3-17 of the Administrative Code.

Replaces: 5101:3-3-17.4

Effective: 08/01/2008

R.C. 119.032 review dates: 08/01/2013

Promulgated Under: 119.03

Statutory Authority: 5111.02, 5111.258

Rule Amplifies: 5111.01, 5111.02, 5111.20, 5111.258

Prior Effective Dates: 7/1/01, 7/1/02, 7/1/04, 1/1/06

5101:3-3-17.5 Payment methodology for the provision of outlier services in intermediate care facilities for the mentally retarded (ICFs-MR).

(A) For the purposes of this rule:

(1) “Individual” means any person who is seeking or receiving medicaid coverage for placement in an Ohio medicaid-certified ICF-MR that is an approved outlier provider.

(4) “Outlier prior authorization committee” means a committee organized and operated by ODJFS that makes outlier prior authorization determinations.

(5) “Outlier provider” means any ICF-MR or discrete unit of an ICF-MR identified and paid as such by ODJFS after June 30, 1993, or approved in accordance with section 5111.258 of the Revised Code, that provides services only to individuals who have received prior authorization from the outlier prior authorization committee for the receipt of outlier services in that facility. ODJFS prior authorization of outlier services is contingent upon both the individual’s documented need for that specific type of outlier service and evidence that the facility in which the individual is to receive services maintains the staffing ratios and ancillary and support items at levels sufficient for the provision of that type of outlier service, and has made the capital investments necessary for the provision of such care.

(B) In addition to information that must be submitted under rules 5101:3-3-75 and 5101:3-3-20 of the Administrative Code, an outlier provider must submit all of the following required information:

(1) In the initial year that a ICF-MR is approved as an outlier provider, the provider must submit, no later than ninety days after the effective date of the outlier provider agreement, each of the following: