Chapter 5101:3-45 Administered Waiver Service Providers

5101:3-45-01 ODJFS-administered waiver program: definitions.

(A) “Activities of daily living” are personal or self-care skills performed on a regular basis, with or without the use of adaptive and assistive devices that enable a consumer to meet basic life needs for food, hygiene and appearance as defined in rule 5101:3-3-06 of the Administrative Code.

(B) “Agency-consumer agreement” means the ODJFS-approved agreement signed by the consumer and/or authorized representative and the case manager (CM) that assure assures that the consumer is voluntarily enrolling in an ODJFS-administered waiver as an alternative to receiving services in a facility or hospital. It identifies the conditions and responsibilities a waiver consumer must agree to as a condition of enrollment.

(C) “Agency-employed waiver service provider” is a provider who is employed by an agency that is eligible to participate in the medicaid program upon execution of a medicaid provider agreement.

(D) “All services plan” is the service coordination and payment authorization document that identifies specific goals, objectives and measurable outcomes for consumer health and functioning expected as a result of services provided by both formal and informal caregivers, and that addresses the physical and medical conditions of the consumer.

(1) At a minimum, the all services plan shall include:

(a) Essential information needed to provide care to the consumer that assures the consumer’s health and welfare;

(b) Billing authorization; and

(2) The all services plan is not the same as the physician’s plan of care.

(E) “Applicant” is a person who completes a JFS 02399 “Request for Medicaid Home and Community-Based Services” (rev. 1/2006) and submits it to the county department of job and family services (CDJFS) requesting an eligibility determination for an ODJFS-administered waiver.

(F) “Assessment” is a comprehensive face-to-face evaluation conducted as part of the ODJFS-administered waiver program eligibility determination/redetermination process. It is an evaluation of a person’s living arrangements/ household composition, medical and acute/long term care history, medical interventions and treatment regimens, medication profile, functional ability, psycho-social status, safety and cognition status, environmental situation, usage of adaptive and assistive equipment, informal supports and caregiver involvement, and formal supports, and results in a level of care recommendation.

(G) “Assurance of health and welfare agreement” is the document created between the designated case management agency (CMA) and the consumer identifying and setting forth the interventions mutually agreed upon by the consumer and CM to promote the health and welfare of the ODJFS-administered waiver consumer.

(H) “Authorized representative” is a person the waiver applicant or consumer identifies in writing to the designated CMA as a person who will act on his or her behalf for specifically identified purposes. The authorized representative shall not be the consumer’s ODJFS-administered waiver service provider.

(I) “Case management agency (CMA)” is the entity under contract with ODJFS that provides case management services to consumers enrolled on an ODJFS-administered waiver.

(J) “Case management services” are the administrative activities that link, coordinate and monitor the services and resources provided to a consumer enrolled on an ODJFS-administered waiver. ODJFS may contract with other entities to perform one or more of these functions.

(K) “Case manager” is a registered nurse (RN), licensed social worker (LSW) or licensed independent social worker (LISW) employed by the CMA who provides case management services to consumers enrolled on an ODJFS-administered waiver.

(L) “CDJFS” is a county department of job and family services.

(M) “Clinical record” is a record containing written documentation that must be maintained by each ODJFS-administered waiver service provider.

(N) “CMS” is the federal centers for medicare and medicaid services.

(O) “Community health accreditations program (CHAP)” is an organization that evaluates and accredits home health agencies. For the purpose of providing services to ODJFS-administered waiver consumers, CHAP-accredited agencies are “otherwise accredited agencies” that may provide the same ODJFS-administered waiver services that JCAHO-accredited agencies provide.

(P) “Consumer” is an applicant determined financially eligible for medicaid and program-eligible for an ODJFS-administered waiver who is enrolled on an ODJFS-administered waiver.

(Q) “Event-based assessment” is a face-to-face comprehensive evaluation of an ODJFS-administered waiver consumer as warranted by a significant change experienced by that consumer.

(R) “Family member” as that term is used in the transitions MR/DD waiver set forth in Chapter 5101:3-47 of the Administrative Code, is a consumer’s or provider’s immediate relative or member of the family, including:

(1) Husband or wife;

(2) Birth or adoptive parent, child or sibling;

(3) Stepparent, stepchild, stepbrother, stepsister, half-brother, or half-sister;

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

(5) Grandparent or grandchild; or

(6) Spouse of grandparent or grandchild.

(S) “Formal services” are paid services provided to a consumer regardless of funding source. Formal services include, but are not limited to, medicare, private insurance, third party insurance, and community-funded services such as those funded by county boards of mental retardation and developmental disabilities (CBMR/DD).

(T) “Group rate” is the amount that waiver nursing and personal care aide service providers are reimbursed when the service is provided in a group setting. When providing services in a group setting, the provider must bill using the HQ modifier as described in rule 5101:3-46-06, 5101:3-47-06 or 5101:3-50-06 of the Administrative Code, as applicable.

(U) “Group setting” is a situation where a waiver nursing and/or personal care aide service provider furnishes the same type of services to two or three individuals at the same address. The services provided in the group setting can be either the same type of ODJFS-administered waiver service, or a combination of ODJFS-administered waiver services and similar non-ODJFS-administered waiver services.

(V) “Health and welfare” is a requirement imposed by CMS whereby ODJFS must assure that necessary safeguards are taken to protect the health and welfare of ODJFS-administered waiver consumers. CMS will not grant an ODJFS-administered waiver, and may terminate an existing ODJFS-administered waiver, if ODJFS fails to assure compliance with this requirement. ODJFS meets this requirement, at a minimum, by implementing policies and procedures regarding the following:

(1) Consumer risk and safety planning and evaluations;

(2) Consumer critical incident management;

(3) Housing and environmental safety evaluations;

(4) Consumer behavioral interventions;

(5) Consumer medication management; and

(6) Natural disaster and public emergency response planning.

(W) “ICF-MR level of care” is the institutional level of care set forth in rule 5101:3-3-07 of the Administrative Code.

(X) “Individual cost cap” is the monthly cost of services that is approved by ODJFS for a consumer enrolled in the “Ohio Home Care Waiver,” “Transitions MR/DD Waiver” or “Transitions Carve-Out Waiver.” ODJFS, or at its direction, the CMA, oversees that the cost of covered services does not exceed the individual cost cap, determines when an increase or decrease in the cap is required, and makes a recommendation with justification to ODJFS for approval for increasing or decreasing the individual cost cap.

(Y) “Informal services” are unpaid services provided to a consumer.

(Z) “Institutional level of care” is any of the levels of care set forth in rules 5101:3-3-05, 5101:3-3-06 and 5101:3-3-07 of the Administrative Code.

(AA) “Institutional setting” is any nursing facility (NF), intermediate care facility for the mentally retarded/developmentally disabled (ICF-MR) or hospital.

(BB) “Instrumental activity of daily living” is a community living skill performed on a regular basis, with or without the use of adaptive and assistive devices, that enables a consumer to independently manage his or her living arrangement as defined in rule 5101:3-3-08 of the Administrative Code.

(CC) “Intermediate level of care (ILOC)” is the institutional level of care set forth in rule 5101:3-3-06 of the Administrative Code.

(DD) “Joint commission on accreditation of healthcare organizations (JCAHO)” is an organization that evaluates and accredits home health agencies. For the purpose of providing services to ODJFS-administered waiver consumers, JCAHO-accredited agencies are “otherwise accredited agencies” that may provide the same ODJFS-administered waiver services that CHAP-accredited agencies provide.

(EE) “Legally responsible family member,” as that term is used in the Ohio home care waiver set forth in Chapter 5101:3-46 of the Administrative Code and the transitions carve-out waiver set forth in Chapter 5101:3-50 of the Administrative Code, is a consumer’s spouse, or in the case of a minor, the consumer’s birth or adoptive parent, or foster caregiver.

(FF) “Medical necessity” and “medically necessary” have the same meaning as set forth in rule 5101:3-1-01 of the Administrative Code.

(GG) “Medicare-certified home health agency” is any entity, agency or organization that has and maintains medicare certification as a home health agency, and is eligible to participate in the medicaid program upon execution of a medicaid provider agreement.

(HH) “Non-agency waiver service provider” is an independent provider who is not employed by an agency, and who is eligible to participate in the medicaid program upon execution of a medicaid provider agreement.

(II) “Noninstitutional setting” is any setting that is not a NF, ICF-MR or hospital.

(JJ) “Non-legally responsible family member,” as that term is used in the Ohio home care waiver set forth in Chapter 5101:3-46 of the Administrative Code and the transitions carve-out waiver set forth in Chapter 5101:3-50 of the Administrative Code, is a member of the consumer’s family, excluding the consumer’s spouse, or in the case of a minor, the consumer’s birth or adoptive parent, or foster caregiver.

(KK) “ODJFS” is the Ohio department of job and family services.

(LL) “ODJFS-administered waiver program” is the Ohio home care program benefit package that consists of home and community-based service waivers administered by ODJFS in accordance with rules 5101:3-12-08 to 5101:3-12-30, and Chapters 5101:3-45, 5101:3-46, 5101:3-47 and 5101:3-50 of the Administrative Code.

(MM) “ODJFS-administered waiver provider” is an agency or non-agency provider eligible to provide ODJFS-administered waiver services upon execution of a medicaid provider agreement.

(NN) “Ohio Home Care Waiver” is a CMS-approved home and community-based services waiver administered by ODJFS that serves consumers in accordance with rules 5101:3-12-08 to 5101:3-12-30 of the Administrative Code, and Chapters 5101:3-45 and 5101:3-46 of the Administrative Code.

(OO) “Otherwise-accredited agency” is any agency or organization that has and maintains JCAHO- or CHAP-accreditation for the provision of both home health services, personal care services and support services upon execution of a medicaid provider agreement.

(PP) “Program eligibility assessment tool (PEAT)” is the ODJFS-developed tool used during a face-to-face interview with an applicant or consumer as part of the ODJFS-administered waiver program eligibility determination/redetermination process.

(QQ) “Personal character standards” are character standards that must be taken into consideration when determining eligibility for enrollment of an agency or non-agency employed waiver service provider or applicant who has been convicted or pleaded guilty to an offense listed in rule 5101:3-12-25 or 5101:3-12-26 of the Administrative Code, and seeks employment in a position that involves providing home and community based services to disabled consumers.

(RR) “Plan of care” is the medical treatment plan that is established, approved and signed by the treating physician. The plan of care must be signed by the treating physician prior to requesting reimbursement for a service. The plan of care is not the same as the all services plan.

(SS) “Request for Medicaid Home and Community-Based Services” and “JFS 02399 Request for Medicaid Home and Community-Based Services” mean the form an applicant must complete and submit to the CDJFS requesting an eligibility determination for enrollment in an ODJFS-administered waiver

(TT) “Residential address” is any physical dwelling with a unique mailing address where an ODJFS-administered waiver consumer lives. A residential address may include, but is not limited to an apartment within an apartment complex. It would not include the entire apartment building or complex.

(UU) “Significant change” is a change experienced by a consumer that warrants an event-based assessment. Significant changes include, but are not limited to, a change in health status, caregiver status, and location/residence; referral to or active involvement on the part of a protective service agency; institutionalization; and when the consumer has not received waiver services for ninety calendar days.

(VV) “Skilled level of care (SLOC)” is the institutional level of care set forth in rule 5101:3-3-05 of the Administrative Code.

(WW) “Transitions Carve-Out Waiver” is a CMS-approved home and community-based services waiver administered by ODJFS that serves consumers in accordance with rules 5101:3-12-08 to 5101:3-12-30 of the Administrative Code, and Chapters 5101:3-45 and 5101:3-50 of the Administrative Code.

(XX) “Transitions MR/DD Waiver” is a CMS-approved home and community-based services waiver administered by ODJFS that serves consumers in accordance with rules 5101:3-12-08 to 5101:3-12-30 of the Administrative Code, and Chapters 5101:3-45 and 5101:3-47 of the Administrative Code.

Effective: 02/15/2007

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

Promulgated Under: 119.03

Statutory Authority: 5111.85

Rule Amplifies: 5111.01, 5111.02, 5111.85

Prior Effective Dates: 5/1/98, 9/29/00, 3/1/02 (Emer), 5/30/02, 7/1/06

5101:3-45-03 ODJFS-administered waiver program: consumer choice and control.

Consumers enrolled on an Ohio department of job and family services- (ODJFS) administered waiver in accordance with rule 5101:3-46-02, 5101:3-47-02 or 5101:3-50-02 of the Administrative Code, and/or their authorized representatives, have choice and control over the arrangement and provision of home and community-based waiver services. Consumers also have choice over the selection and control over the direction of approved waiver service providers.

(A) An ODJFS-administered waiver service provider is categorized as either an “agency provider” or a “non-agency provider.”

(1) An “agency provider” means a medicare-certified home health agency, an otherwise-accredited agency as defined in rule 5101:3-45-01 of the Administrative Code or other approved ODJFS-administered waiver service provider.

(2) A “non-agency provider” means an RN, an LPN at the direction of an RN, or a non-agency personal care aide service provider.

(B) A consumer may choose to receive waiver services as follows:

(1) Exclusively from agency providers;

(2) Exclusively from non-agency providers; or

(3) From a combination of agency and non-agency providers.

(C) The case management agency (CMA) shall assure that consumers and/or their authorized representatives have the authority to choose ODJFS-administered waiver service providers as outlined in paragraph (B) of this rule.

(D) If a consumer and/or authorized representative chooses to receive waiver services from an agency provider, the consumer and/or authorized representative shall comply with the requirements set forth in paragraphs (D)(1) to (D)(15) of this rule.

(1) Participate in the development of the all services plan and all plans of care.

(2) Decide whether anyone besides the case manager will participate in the face-to-face development of the all services plan and all plans of care.

(3) Authorize the CMA to exchange information for development of the all services plan with all of the consumer’s service providers.

(4) Participate in the development and maintenance of service back-up plans that meet the needs of the consumer.

(5) Communicate to the service provider assigned and employed by the agency provider, and the agency provider management staff, personal preferences about the duties, tasks and procedures to be performed.

(6) Work with the CMA and the agency provider to identify and secure additional service provider orientation and training within the agency/caregiver scope of practice in order to meet the consumer’s specific needs.

(7) Agree that the service provider assigned and employed by the agency provider must adhere to all relevant ODJFS-administered waiver program requirements, medicaid rules and regulations, and the agency provider’s policies and procedures.

(8) Report to the case manager and the agency provider, in accordance with rule 5101:3-12-29 of the Administrative Code, incidents that may impact the health and welfare of the consumer.

(9) Communicate to the case manager any significant changes, as defined in rule 5101:3-45-01 of the Administrative Code, that may affect the provision of services, or result in a need for more or fewer hours of service.

(10) Provide verification that services have been furnished to the consumer, or approve provider timesheets only after services have been furnished. The consumer and/or authorized representative shall never approve blank timesheets, or timesheets that have been completed before services have been furnished.

(11) Participate in the recruitment, selection and dismissal of the agency provider and service provider assigned and employed by the agency provider.

(12) Notify the agency provider if the consumer is going to miss a scheduled visit.

(13) Notify the agency provider if the service provider assigned and employed by the agency provider misses a scheduled visit.

(14) Notify the case manager when any change in agency provider and/or service provider assigned and employed by the agency provider is necessary. Notification shall include the end date of the former agency provider and/or service provider, and the start date of the new provider.

(15) Participate in the monitoring of the performance of the agency provider, and the service provider assigned and employed by the agency provider.

(E) If a consumer and/or authorized representative chooses to receive waiver services from a non-agency provider, the consumer and/or authorized representative shall comply with the requirements set forth in paragraphs (E)(1) to (E)(18) of this rule.

(1) Participate in the development of the all services plan and all plans of care.

(2) Decide whether anyone besides the case manager will participate in the face-to-face development of the all services plan and all plans of care.

(3) Authorize the CMA to exchange information for development of the all services plan with all of the consumer’s service providers.

(4) Participate in the development and maintenance of service back-up plans that meet the needs of the consumer.

(5) Communicate to each non-agency provider personal preferences about the duties, tasks and procedures to be performed.

(6) Work with the CMA and non-agency provider to identify and secure additional orientation and training within the non-agency provider’s scope of practice, in order to meet the consumer’s specific needs.

(7) Agree that the non-agency provider must adhere to all relevant ODJFS-administered waiver program requirements and medicaid rules and regulations.

(8) Report to the case manager, in accordance with rule 5101:3-12-29 of the Administrative Code, incidents that may impact the health and welfare of the consumer.

(10) Approve non-agency provider timesheets only after services have been furnished to the consumer. The consumer and/or authorized representative shall never approve blank timesheets, or timesheets that have been completed before services have been furnished to the consumer.

(11) Participate in the recruitment, selection and dismissal of the non-agency provider.

(12) Notify the non-agency provider if the consumer is going to miss a scheduled visit.

(13) Notify the CMA if the non-agency provider misses a scheduled visit.

(14) Notify the case manager when any change in non-agency provider is necessary. Notification shall include the end date of the former non-agency provider and the start date of the new provider.

(15) Designate a location in the consumer’s home in which the consumer, and the non-agency provider can safely store a copy of the consumer’s clinical record in a manner that protects the confidentiality of this record, and for the purpose of contributing to the continuity of the consumer’s care.

(16) Participate in the monitoring of the performance of the non-agency provider.

(17) Agree that each non-agency provider must complete an annual structural review in accordance with rule 5101:3-12-30 of the Administrative Code.

(18) Make the consumer’s clinical record identified in paragraph (E)(15) of this rule available upon request by ODJFS or the CMA.

(F) If the consumer and/or authorized representative chooses to receive ODJFS-administered waiver services from a combination of agency and non-agency providers, the consumer and/or authorized representative must agree to participate in all activities set forth in paragraphs (D) and (E) of this rule.

(G) The CMA shall comply with all of the requirements set forth in paragraphs (G)(1) to (G)(8) of this rule.

(1) Assure the health and welfare of the consumer while acknowledging the consumer’s right to make informed decisions and accept the resulting consequences that may impact the consumer’s life.

(2) Upon the consumer’s enrollment in an ODJFS-administered waiver, provide the consumer and/or authorized representative with the administrative rules, the consumer’s rights and responsibilities, and other waiver-related information and materials, using communication mechanisms that are most effective for the consumer and/or authorized representative. The case manager shall review these materials with the consumer and/or authorized representative and assist him or her to understand his or her specific responsibilities.

(3) Work with the consumer and/or authorized representative to do the following:

(a) Select and direct approved waiver service providers;

(b) Develop the all services plan;

(d) Develop and maintain service back-up plans that meet the needs of the consumer;

(e) Identify and secure additional provider orientation and training that is within the provider’s scope of practice and meets the consumer’s needs; and

(f) Upon request, identify and secure agency and/or non-agency providers when the consumer and/or authorized representative notifies the case manager that a change is necessary.

(4) Report to ODJFS, and when appropriate investigate, incidents that may impact the health and welfare of the consumer, in accordance with rule 5101:3-12-29 of the Administrative Code.

(5) Address significant changes, as defined in rule 5101:3-45-01 of the Administrative Code, experienced by the consumer that may affect the provision of services or result in a need for more or fewer hours of service.

(6) Act as a facilitator to assist in resolving conflicts between the consumer and/or authorized representative, and the provider(s).

(7) Document, in writing, that the consumer and/or authorized representative:

(a) Understands the consumer’s specific needs;

(b) Possesses the skills necessary to meet the requirements set forth in paragraph (D), (E) or (F) of this rule, as appropriate;

(d) Identifies the method by which the consumer and/or authorized representative will verify that services have been furnished as identified on the all services plan.

(8) Communicate with the consumer and/or authorized representative in a manner that protects the consumer’s right to confidentiality.

(H) If the CMA determines that the consumer and/or authorized representative cannot meet the requirements set forth in paragraph (E) of this rule, and/or the health and welfare of the consumer receiving services from a non-agency provider cannot be assured, then the CMA may require the consumer receive services from only agency providers. The consumer will be afforded notice and hearing rights in accordance with division 5101:6 of the Administrative Code.

Replaces: 5101:3-12-12

Effective: 08/13/2007

R.C. 119.032 review dates: 08/01/2012

Promulgated Under: 119.03

Statutory Authority: 5111.85

Rule Amplifies: 5111.01, 5111.02, 5111.85

Prior Effective Dates: 7/1/98

5101:3-45-07 ODJFS-administered waiver program: Criminal records checks involving agency providers.

(A) This rule sets forth the process and requirements for the criminal records checks of persons under final consideration for employment with a waiver agency, and existing employees with a waiver agency in a full-time, part-time or temporary position, and who are providing home and community-based services (HCBS) in an ODJFS-administered waiver.

(B) For the purposes of this rule,

(1) “Applicant” means a person who is under final consideration for employment or, after the effective date of section 5111.033 of the Revised Code (September 26, 2003), an existing employee, with a waiver agency in a full-time, part-time or temporary position, that involves providing HCBS to a person with disabilities.

(2) “Chief administrator” means the head of a waiver agency, or his or her designee.

(3) “Criminal records check” means any criminal records check conducted by the superintendent of the bureau of criminal identification and investigation (BCII) in accordance with section 109.572 of the Revised Code.

(4) “Department” means the Ohio department of job and family services (ODJFS) or its designee.

(5) “Disqualifying offense” means any of the following:

(a) A violation of section 2903.01, 2903.02, 2903.03, 2903.04, 2903.041, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34, 2905.01, 2905.02, 2905.05, 2905.11, 2905.12, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.21, 2907.22, 2907.23, 2907.24, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11, 2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31, 2913.40, 2913.43, 2913.47, 2913.48, 2913.49, 2913.51, 2917.11, 2919.12, 2919.22, 2919.24, 2919.25, 2921.13, 2921.36, 2923.02, 2923.12, 2923.13, 2923.161, 2923.32, 2925.02, 2925.03, 2925.04, 2925.05, 2925.06, 2925.11, 2925.13, 2925.14, 2925.22, 2925.23 or 3716.11 of the Revised Code, felonious sexual penetration in violation of former section 2907.12 of the Revised Code, a violation of section 2905.04 of the Revised Code as it existed prior to July 1, 1996, a violation of section 2919.23 of the Revised Code that would have been a violation of section 2905.04 of the Revised Code as it existed prior to July 1, 1996, had the violation been committed prior to that date; or

(b) An existing or former law of the state of Ohio, any other state, or the United States that is substantially equivalent to any of the disqualifying offenses as set forth in paragraph (B)(5)(a) of this rule.

(6) “Home and community-based services” (HCBS) refers to the services as set forth in division (A)(4) of section 5111.033 of the Revised Code.

(7) “Superintendent” means superintendent of BCII.

(8) “Waiver agency” means a person or government entity that is not certified under the medicare program and is accredited by the community health accreditation program (CHAP) or the joint commission on accreditation of health care organizations (JCAHO), or a company that provides HCBS to persons with disabilities through ODJFS-administered waiver programs.

(1) The chief administrator of a waiver agency shall require each person, at the time of initial application for a position that involves providing HCBS to a person with a disability, to provide a set of fingerprint impressions and that a criminal records check must be conducted if the person comes under final consideration for employment.

(2) An employee of a waiver agency in a full-time, part-time or temporary position that involves providing HCBS to a person with disabilities shall comply with this rule within sixty days after the effective date of this rule unless he or she:

(a) Previously was the subject of a criminal records check relating to that position; and

(b) Has been continuously employed in that position since that criminal records check was conducted.

(3) Except as otherwise noted in paragraph (C)(2) of this rule, the chief administrator of a waiver agency shall require each applicant to request that the BCII superintendent conduct a criminal records check with respect to the ODJFS-administered waiver agency provider applicant, and pursuant to sections 109.572, 5111.033 and 5111.034 of the Revised Code.

(a) If an applicant does not present proof of having been a resident of the state of Ohio for the five-year period immediately prior to the date the criminal records check is requested, or provide evidence that within that five-year period the superintendent has requested information about the applicant from the federal bureau of investigation (FBI), the chief administrator shall require the applicant to request that the superintendent obtain a criminal records check from the FBI.

(b) Even if an applicant presents proof of having been a resident of the state of Ohio for the five-year period, the chief administrator may require the applicant to request that the superintendent obtain information from the FBI in the criminal records check.

(4) The chief administrator of a waiver agency shall provide the following to each applicant for whom a criminal records check is required by this rule:

(a) Information about accessing, completing and forwarding to the superintendent the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and the standard fingerprint impression sheet presented pursuant to division (C)(2) of that section; and

(b) Written notification that the applicant is to instruct the superintendent to submit the completed report of the criminal records check directly to the chief administrator of the waiver agency.

(5) An applicant given information and notification pursuant to paragraph (C)(4) of this rule who fails to access, complete and forward to the superintendent the form or the standard fingerprint impression sheet, or who fails to instruct the superintendent to submit the completed report of the criminal records check directly to the chief administrator shall not be employed in any position in a waiver agency for which a criminal records check is required by this rule.

(6) Conditional employment.

(a) A waiver agency may conditionally employ an applicant for whom a criminal records check is required by this rule prior to obtaining the results of that check, provided that the waiver agency shall require the applicant to request a criminal records check not later than five business days after he or she begins conditional employment.

(b) The waiver agency shall terminate conditional employment if the results of the criminal records check request, other than the results of any request for information from the FBI, are not obtained within the period ending sixty days after the date the request is made.

(c) Regardless of when the results are obtained, if they indicate that the individual has been convicted of, has pleaded guilty to, or has been found eligible for intervention in lieu of conviction for any of the offenses set forth in paragraph (B)(5) of this rule, then the waiver agency:

(i) Shall terminate his or her employment; or

(ii) May choose to employ him or her because he or she meets all of the conditions set forth in paragraph (D) of this rule.

(7) Termination of employment shall be considered just cause for discharge for the purposes of division (D)(2) of section 4141.29 of the Revised Code if the individual makes any attempt to deceive the waiver agency about his or her criminal record.

(8) Each waiver agency or applicant shall pay to BCII the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check conducted pursuant to the waiver agency’s or applicant’s request.

(a) Each waiver agency or applicant shall pay a fee not to exceed the amount the waiver agency or applicant pays in accordance with this paragraph; and

(b) If a waiver agency pays the fee, it may charge the applicant a fee not to exceed that which the agency pays pursuant to paragraph (C)(10)(a) of this rule. The waiver agency shall only collect fees if the waiver agency notifies the person at the time of application for employment of the amount of the fee and that, unless the fee is paid, he or she will not be considered for employment.

(9) Reports of any criminal records checks conducted by BCII in accordance with this rule are not public records for the purposes of section 149.43 of the Revised Code and shall not be made available to any person other than the following:

(a) The person who is the subject of the criminal records check or the individual’s representative;

(b) The chief administrator of the waiver agency requesting the criminal records check or the administrator’s representative;

(d) Any court, hearing officer or other necessary individual involved in a case dealing with a denial of employment of the applicant, or dealing with employment or unemployment benefits of the applicant.

(D) Conditions and factors used to evaluate an applicant’s personal character.

(1) If an applicant has been convicted of, has pleaded guilty to, or has been found eligible for intervention in lieu of conviction of only one of the disqualifying offenses set forth in paragraph (B)(5) of this rule, a waiver agency may employ the applicant if all of the following conditions are met:

(a) The disqualifying offense was not perpetrated against an individual under the age of eighteen or age sixty or older, or an individual of any age with disabilities;

(b) The applicant is not a repeat violent offender;

(d) The disqualifying offense is not abuse or neglect as set forth in section 2903.34 of the Revised Code;

(e) The disqualifying offense is not aggravated murder as set forth in section 2903.01 of the Revised Code;

(f) The disqualifying offense is not murder as set forth in section 2903.02 of the Revised Code;

(g) The disqualifying offense is not voluntary manslaughter as set forth in section 2903.03 of the Revised Code;

(h) The disqualifying offense is disorderly conduct, and the conviction was not based upon an original complaint or indictment involving one of the violent offenses set forth in paragraph (B)(5) of this rule;

(i) Five years have passed since the applicant was fully discharged from imprisonment, probation and/or parole for the disqualifying offense, and the disqualifying offense was not related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct involving a federal or state-funded program; and

(j) The applicant agrees, in writing, to have the waiver agency inform each potential consumer of the disqualifying offense prior to commencing service delivery.

(2) Before hiring an applicant who meets the conditions set forth in paragraph (D) (1) of this rule, the waiver agency shall consider all of the following additional factors to determine whether or not it is likely that the applicant will commit another disqualifying offense:

(a) The duties and responsibilities of the position, and the extent to which the position being filled provides an opportunity for the commission of the same or similar offenses;

(b) The extenuating circumstances under which the offense was committed, including but not limited to:

(i) The applicant’s age at the time of the offense;

(ii) The age and ability of the victim;

(d) Whether the applicant has made efforts at rehabilitation, and the results of those efforts;

(e) Whether any criminal proceedings are pending against the applicant;

(f) A conviction listed on the report of the criminal records check that identifies any offenses contained in the Revised Code that are not as set forth in paragraph (B)(5) of this rule, if the crime bears a direct and substantial relationship to the duties and responsibilities of the position being filled; and

(g) Any other factors that are relevant to the performance of the job duties.

(E) Pardons.

A conviction of, or a plea of guilty to, an offense as set forth in paragraph (B) (5) of this rule shall not prevent an agency from considering an applicant for employment if any of the following circumstances apply:

(1) The applicant has been granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code;

(2) The applicant has been granted an unconditional pardon for the offense pursuant to an existing or former law of the state of Ohio, any other state, or the United States, if the law is substantially equivalent to Chapter 2967. of the Revised Code;

(3) The applicant has been granted a conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the condition(s) under which the pardon was granted have been satisfied; or

(4) The conviction or guilty plea has been set aside pursuant to law.

(F) Documentation – applicant log.

(1) The chief administrator of a waiver agency shall maintain an applicant log separate from the personnel record. It shall contain the following information

(a) Names of all applicants;

(b) The date of application;

(d) The date the criminal records check request was submitted to BCII;

(e) The type(s) of criminal records checks required (i.e., BCII, FBI or both);

(f) The date of the BCII and/or FBI report;

(g) The date the BCII and FBI checks were received by the waiver agency;

(h) Whether or not the results of the check revealed that the applicant committed a disqualifying offense(s), and the specific offense(s) and date(s) committed;

(i) The number of references received on behalf of the applicant, the dates that the references were received, and how the references were verified;

(j) Whether the conditions and factors set forth in paragraph (D) of this rule were applied as a condition for employment; and

(k) Whether or not the applicant was conditionally hired, hired and/or terminated.

(2) The chief administrator of a waiver agency shall certify in the applicant log that the waiver agency has considered and applied the conditions and factors set forth in paragraph (D) of this rule when hiring an applicant whose criminal background check results reveal the commission of a disqualifying offense as set forth in paragraph (B)(5) of this rule.

Replaces: 5101:3-12-25

Effective: 11/19/2007

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

Promulgated Under: 119.03

Statutory Authority: 5111.033, 5111.85

Rule Amplifies: 109.572, 5111.01, 5111.02, 5111.033, 5111.85

Prior Effective Dates: 7/1/04

5101:3-45-08 ODJFS-administered waiver program: Criminal records checks involving non-agency providers.

(A) This rule sets forth the process and requirements for the criminal records checks of non-agency providers of home and community-based services (HCBS) in an ODJFS-administered waiver.

(B) For the purposes of this rule,

(1) “Anniversary date” means the later of the effective date of the provider agreement relating to the independent provider or sixty days after the effective date of section 5111.034 of the Revised Code (September 26, 2003).

(2) “Criminal records check” means any criminal records check conducted by the superintendent of the bureau of criminal identification and investigation (BCII) in accordance with section 109.572 of the Revised Code.

(3) “Department” means the Ohio department of job and family services (ODJFS) or its designee.

(4) “Disqualifying offense” means any of the following:

(b) An existing or former law of the state of Ohio, any other state, or the United States that is substantially equivalent to any of the disqualifying offenses set forth in paragraph (B)(4)(a) of this rule.

(5) “Effective date of provider agreement” means the next occurrence of the month in which the initial provider agreement was entered into between the department and the provider. If, in the first year of application of the requirement contained in this rule, the effective date of the provider agreement is less than sixty days after the effective date of this rule, the effective date of the provider agreement is extended by seventy-five days from the date otherwise determined in this sentence.

(6) “Home and community-based services” (HCBS) refers to the services set forth in division (A)(4) of section 5111.033 of the Revised Code.

(7) “Non-agency provider” means a person who is submitting an application for a provider agreement or who has a provider agreement as a non-agency provider of HCBS services in an ODJFS-administered waiver.

(8) “Superintendent” means superintendent of BCII.

(1) The department shall inform:

(a) Each prospective non-agency provider, at the time of initial application for a medicaid provider agreement that involves providing waiver services to ODJFS-administered waiver consumers, that he or she must provide a set of fingerprint impressions, and a criminal records check must be conducted; and

(b) Each currently-enrolled non-agency provider, on or before the time of the anniversary date of their medicaid provider agreement that involves providing waiver services to ODJFS-administered waiver consumers, that he or she must provide a set of fingerprint impressions and that a criminal records check must be conducted.

(2) The department shall require the non-agency provider to complete a criminal records check prior to entering into a medicaid provider agreement with the non-agency provider, and at least annually thereafter.

(a) If a non-agency provider does not present proof of having been a resident of the state of Ohio for the five-year period immediately prior to the date the criminal records check is requested, or provide evidence that within that five-year period the superintendent has requested information about the non-agency provider from the federal bureau of investigation (FBI), the department shall request that the superintendent obtain a criminal records check from the FBI.

(b) Even if a non-agency provider presents proof of having been a resident of the state of Ohio for the five-year period, the department may request that the superintendent obtain information from the FBI in the criminal records check.

(3) The department shall provide the following to each non-agency provider for whom a criminal records check request is required by this rule:

(a) Information about accessing, completing and forwarding to the superintendent the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and the standard fingerprint impression sheet prescribed pursuant to division (C)(2) of that section; and

(b) Written notification that the non-agency provider is to instruct the superintendent to submit the completed report of the criminal records check directly to the department.

(4) The non-agency provider shall pay BCII the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check conducted on his or her behalf pursuant to this rule.

(5) A non-agency provider given information and notification pursuant to paragraph (C)(3) of this rule who fails to access, complete and forward to the superintendent the form, or the standard fingerprint impression sheet, or who fails to instruct the superintendent to submit the completed report of the criminal records check directly to the department, shall not be approved as a non-agency provider.

(6) Except as provided by paragraph (D) of this rule, the department shall not issue a new provider agreement to, and shall terminate an existing provider agreement of a non-agency provider if he or she has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for any of the disqualifying offenses set forth in paragraph (B)(4) of this rule.

(7) Reports of any criminal records checks conducted by BCII in accordance with this rule are not public records for the purposes of section 149.43 of the Revised Code and shall not be made available to any person other than the following:

(a) The non-agency provider who is the subject of the criminal records check or the non-agency provider’s representative;

(b) An administrator at the department who is requesting the criminal records check or the administrator’s representative; and

(c) A court, hearing officer or other necessary individual involved in a case dealing with a denial or termination of a medicaid provider agreement related to the criminal records check.

(8) Failure on the part of the non-agency provider to submit to a criminal records check within ninety days of notification by the department of the non-agency provider’s need to do so shall render the non-agency provider immediately ineligible to furnish services to all ODJFS-administered waiver consumers. The department or its designated case management agency (CMA) shall take immediate steps to remove the non-agency provider from all all services plans until such time as the non-agency provider has satisfactorily completed all requirements of this rule.

(9) If the non-agency provider continues to be noncompliant with the provisions of this rule, the department shall initiate termination of the medicaid provider agreement.

(D) Conditions and factors used to evaluate an applicant’s personal character.

(1) A consumer may choose to receive waiver services from a non-agency provider who has been convicted of, pleaded guilty to, or has been granted treatment in lieu of conviction of only one of the disqualifying offenses set forth in paragraph (B)(4) of this rule if all of the following conditions are met:

(a) The disqualifying offense was not perpetrated against an individual under the age of eighteen or age sixty or older, or an individual of any age with disabilities;

(b) The non-agency provider is not a repeat violent offender;

(d) The disqualifying offense is not abuse or neglect as set forth in section 2903.34 of the Revised Code;

(e) The disqualifying offense is not aggravated murder as set forth in section 2903.01 of the Revised Code;

(f) The disqualifying offense is not murder as set forth in section 2903.02 of the Revised Code;

(g) The disqualifying offense is not voluntary manslaughter as set forth in section 2903.03 of the Revised Code;

(i) Five years have passed since the non-agency provider was fully discharged from imprisonment, probation and/or parole for the disqualifying offense, and the disqualifying offense was not related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct involving a federal or state-funded program; and

(j) The non-agency provider agrees, in writing, to inform each potential consumer of the disqualifying offense prior to commencing service delivery.

(2) Before choosing to receive waiver services from a non-agency provider who meets the conditions set forth in paragraph (D)(1) of this rule, the consumer shall consider all of the following additional factors to determine whether or not it is likely that the non-agency provider will commit another disqualifying offense:

(a) The duties and responsibilities of the position, and the extent to which the position being filled provides an opportunity for the commission of the same or similar offenses;

(b) The extenuating circumstances under which the offense was committed, including but not limited to:

(i) The non-agency provider’s age at the time of the offense, and

(ii) The age and ability of the victim;

(c) The amount of time that has lapsed since the non-agency provider was fully discharged from imprisonment, probation and/or parole;

(d) Whether the non-agency provider has made efforts at rehabilitation, and the results of those efforts;

(e) Whether any criminal proceedings are pending against the non-agency provider;

(f) A conviction listed on the report of the criminal records check that identifies any offenses contained in the Revised Code that are not set forth in paragraph (B)(4) of this rule, if the crime bears a direct and substantial relationship to the duties and responsibilities of the position being filled; and

(g) Any other factors that are relevant to the performance of the job duties.

(E) Pardons.

A conviction of, or a plea of guilty to, an offense as set forth in paragraph (B) (4) of this rule shall not prevent a consumer from choosing to receive services from a non-agency provider if any of the following circumstances apply:

(1) The non-agency provider has been granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code

(2) The non-agency provider has been granted an unconditional pardon for the offense pursuant to an existing or former law of the state of Ohio, any other state, or the United States, if the law is substantially equivalent to Chapter 2967. of the Revised Code;

(3) The non-agency provider has been granted a conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the condition(s) under which the pardon was granted have been satisfied; or

(4) The conviction or guilty plea has been set aside pursuant to law.

Replaces: 5101:3-12-26

Effective: 11/19/2007

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

Promulgated Under: 119.03

Statutory Authority: 5111.034, 5111.85

Rule Amplifies: 109.572, 5111.01, 5111.02, 5111.034, 5111.85

Prior Effective Dates: 7/1/04

5101:3-45-09 ODJFS-administered waivers: quality assurance monitoring and oversight of ODJFS-administered waiver service providers and the contracted case management agency.

(A) ODJFS shall conduct ongoing quality assurance monitoring and oversight of ODJFS-administered waiver service providers to determine that each ODJFS-administered waiver service provider is doing the following:

(1) Meeting its responsibility to assure the consumer’s health and welfare in the delivery of ODJFS-administered waiver services; and

(2) Complying with all applicable federal and state laws.

(B) ODJFS shall conduct ongoing quality assurance monitoring and oversight of the case management agency (CMA) selected to furnish case management services and provider oversight for the ODJFS-administered waiver programs to determine that the CMA is doing the following:

(1) Meeting its responsibility to assure the health and welfare of each ODJFS-administered waiver consumer; and

(2) Complying with the terms and conditions of its contract with ODJFS, and all applicable federal and state laws.

(C) Quality assurance monitoring and oversight activities shall include, but are not limited to, interviews with consumers, providers and CMA staff, visits to the provider’s and CMA’s place of business for the purpose of examining or collecting records, reviews of documentation, annual structural reviews, and consumer satisfaction surveys.

(1) The provider or CMA subject to a quality assurance monitoring and oversight review shall cooperate fully with all requests made by ODJFS, including the following:

(a) Furnishing workspace to ODJFS employees for the purpose of conducting reviews of consumer records;

(b) Making all requested information available at the time of the review; and

(2) Failure to comply with paragraph (C) (1) of this rule shall subject the provider or CMA to immediate action pursuant to paragraph (D) of this rule.

(D) At the conclusion of its quality assurance monitoring and oversight review, ODJFS shall do the following:

(1) Notify the provider or CMA, in writing, of its findings.

(2) If determined appropriate, propose termination of the provider’s medicaid provider agreement pursuant to section 5111.06 of the Revised Code and rule 5101:3-1-17.6 of the Administrative Code.

(3) If determined appropriate, propose suspension or termination of the CMA’s contract with ODJFS in accordance with the terms and conditions set forth in the CMA’s contract.

(4) If determined appropriate, request that the provider or CMA prepare and submit a plan of correction within timeframes prescribed by ODJFS. The plan of correction shall set forth the action(s) to be taken to correct each finding identified by ODJFS, and establish a target date by which the corrective action must be completed. If ODJFS does not approve the submitted plan of correction, ODJFS may request a new plan of correction, or take other action determined to be appropriate.

(5) If determined appropriate, provide technical assistance to the provider or CMA.

(6) If determined appropriate, refer the provider or CMA to any of the following entities for further investigation.

(a) The ODJFS surveillance and utilization review section or other program area(s) within ODJFS;

(b) The Ohio attorney general;

(d) The appropriate law enforcement agency.

Replaces: 5101:3-12-08

Effective: 08/13/2007

R.C. 119.032 review dates: 08/01/2012

Promulgated Under: 119.03

Statutory Authority: 5111.85

Rule Amplifies: 5111.01, 5111.02, 5111.85

Prior Effective Dates: 7/1/98

5101:3-45-10 Conditions of participation for Ohio department of job and family services (ODJFS) administered waiver service providers.

(A) ODJFS-administered waiver service providers shall:

(1) Maintain an active, valid medicaid agreement as set forth in rule 5101:3-1-17.3 of the Administrative Code.

(2) Meet all requirements in the applicable provider service specifications set forth in rules 5101:3-12-06 and 5101:3-12-07 of the Administrative Code.

(3) Comply with, and maintain documentation of compliance with, the patient rights standards set forth in the home health agency medicare conditions of participation in 42 CFR 484.

(4) Comply with the consumer incident reporting requirements set forth in rule 5101:3-12-29 of the Administrative Code.

(5) Comply with the criminal records check requirements set forth in rules 5101:3-12-25 and 5101:3-12-26 of the Administrative Code.

(6) Attend ODJFS and case management agency (CMA) sponsored provider training sessions.

(7) Assure consumers receive ODJFS-administered waiver services in accordance with the all services plan.

(a) Medicare-certified home health agencies and other accredited home health agencies shall assure that back-up staff will be available to provide services when the provider’s regularly scheduled staff cannot or do not meet their obligation to provide services to the consumer.

(b) Independent nurses, independent daily living aides and independent daily living non-aides shall assist the consumer, upon initiation of services, in developing a back-up plan in the event the regularly scheduled independent provider cannot or does not meet their obligation to provide services to the consumer.

(8) Immediately provide all requested information to ODJFS, the centers for medicare and medicaid services (CMS) and the CMA.

(9) Not use or disclose any information concerning a consumer for any purpose without the documented consent of the consumer. Even with the consumer’s consent, the information may not be used or disclosed for any purpose not directly associated with the provision of services.

(10) Comply with all federal and state privacy laws, including the Health Insurance Portability and Accountability Act (HIPAA) regulations as set forth in 45 CFR parts 160, 162 and 164, and the medicaid confidentiality regulations as set forth in 42 CFR 421.300 through 306.

(11) Maintain and retain all required documentation. For each unit of service provided, the provider shall clearly document what service was provided and obtain the signature of the consumer on the dated document.

(12) Retain all records of service delivery and billing for a period of six years after the date of receipt of the payment based upon those records or until any initiated audit is completed, whichever is longer.

(13) Cooperate with ODJFS and the CMA during any quality assurance activities to monitor the provider’s performance, including providing space for and being available to answer questions for onsite reviews and making all requested information available promptly.

(14) Notify the CMA within twenty-four hours and provide written documentation within five calendar days when the provider is aware of significant changes that may affect the service needs of the consumer. Significant changes that may affect service needs of the consumer include, but are not limited to:

(a) The consumer refuses services.

(b) The consumer moves to another residential address.

(c) There are documented changes in the physical, mental, and/or emotional status of the consumer, documented changes in environmental conditions, and/or other health and safety issues.

(d) The consumer no longer needs medically necessary services as defined in rule 5101:3-1-01 of the Administrative Code.

(e) Abuse or neglect of the consumer is suspected.

(15) Submit written notification to the consumer and the CMA at least thirty calendar days prior to the anticipated last date of service if the provider is terminating the provision of ODJFS-administered waiver services to the consumer. Exceptions to this requirement include:

(a) Thirty-day advanced notification is not required when the consumer has been hospitalized, placed in a long term care facility, or has expired.

(b) The thirty-day advanced notification may be waived for the provider by the CMA on a case-by-case basis.

(c) The thirty-day advanced notification of service termination is not required if the consumer is terminating the services of the provider.

(B) Independent providers are independent contractors and must pay applicable federal, state and local income and employment taxes in compliance with federal, state and local requirements. Federal employment taxes include medicare and social security. On an annual basis, independent providers must submit the ODJFS-approved affidavit stating they paid the applicable federal, state and local income and employment taxes.

(C) ODJFS-administered waiver service providers shall deliver services professionally, respectfully, and legally, and during the provision of authorized services, shall not engage in unprofessional, disrespectful or illegal behavior that includes, but is not limited to the following:

(1) Consuming the consumer’s food and/or drink, or using the consumer’s personal property without the consumer’s offer and consent.

(2) Bringing children, pets, friends, relatives, or anyone else to the consumer’s place of residence.

(3) Taking the consumer to the provider’s place of residence.

(4) Consuming alcohol, medicine, drugs, or other chemical substances not in accordance with the legal, valid, prescribed use and/or in any way that impairs the provider in the delivery of services to the consumer.

(5) Discussing religion or politics with the consumer and others present in the care setting.

(6) Discussing providers’ personal issues with the consumer and others in the care setting.

(7) Accepting, obtaining or attempting to obtain money or anything of value, including gifts or tips from the consumer, household members and family members of the consumer.

(8) Engaging with the consumer in sexual conduct, or in conduct that may reasonably be interpreted as sexual in nature, regardless of whether or not the contact is consensual.

(9) Leaving the home for a purpose not related to the provision of services without notifying the agency supervisor, the consumer’s emergency contact person, identified caregiver and/or case manager (CM).

(10) Using the consumer’s motor vehicle, unless used solely for the benefit of the consumer.

(11) Engaging in activities that may distract from service delivery including, but not limited to:

(a) Watching television or playing computer or video games.

(b) Making or receiving personal calls.

(d) Providing care to individuals other than the consumer.

(e) Smoking without the consent of the consumer.

(f) Sleeping.

(D) ODJFS-administered waiver service providers shall not:

(1) Engage in behavior that causes or may cause physical, verbal, mental or emotional distress or abuse to the consumer.

(2) Engage in behavior that may reasonably be interpreted as inappropriate involvement in the consumer’s personal relationships.

(3) Be designated to serve or make decisions for the consumer in any capacity involving a declaration for mental health treatment, durable power of attorney, financial power of attorney, or guardianship pursuant to court order unless one or more of the following exceptions applies:

(a) The consumer and the provider relationship existed and the provider had been appointed and was already serving as the consumer’s designee pursuant to a declaration for mental health treatment, durable power of attorney, financial power of attorney, or guardianship pursuant to court order prior to September 1, 2005.

(b) The consumer and the provider relationship existed and the provider was subsequently, but prior to September 1, 2005, appointed the consumer’s designee pursuant to a declaration for mental health treatment, durable power of attorney, financial power of attorney, or guardianship pursuant to court order.

(c) The consumer’s designee pursuant to a declaration for mental health treatment, durable power of attorney, or financial power of attorney is the consumer’s parent or spouse.

(d) A family member is appointed by the court as a legal guardian for the consumer.

(4) Sell to or purchase from the consumer products or personal items. The only exception to this would be family members when not delivering services.

(5) Engage in behavior that constitutes a conflict of interest or takes advantage of or manipulates ODJFS-administered waiver program rules resulting in an unintended advantage for personal gain; or that has detrimental results for the consumer, their family, caregiver and/or another provider.

(E) Failure to meet the required conditions of participation as set forth in this rule may result in sanctions in accordance with rule 5101:3-12-08 of the Administrative Code and/or termination of the medicaid provider agreement in accordance with rule 5101:3-1-17.6 of the Administrative Code.

Effective: 08/01/2005

R.C. 119.032 review dates: 08/01/2010

Promulgated Under: 119.03

Statutory Authority: 5111.85

Rule Amplifies: 5111.01, 5111.02

5101:3-45-15 Provisions for transferring consumers receiving core-plus benefit package services to ODJFS-administered waivers.

(A) Upon approval by the centers for medicare and medicaid services (CMS) of the renewal of the Ohio home care waiver, the amendment of the transitions MR/DD waiver, and the new transitions carve-out waiver, each consumer receiving core-plus benefit package services for any time period during the one hundred and twenty days preceding the effective date of this rule will have an eligibility determination made pursuant to the ODJFS-administered waiver eligibility criteria set forth in rules 5101:3-46-02, 5101:3-47-02 and 5101:3-50-02 of the Administrative Code, to determine if the consumer is eligible for one of the ODJFS-administered waivers. If determined eligible, the consumer may choose to be transferred to the appropriate ODJFS-administered waiver.

(B) Consumers who are determined to be ineligible for an ODJFS-administered waiver as a result of the process set forth in paragraph (A) of this rule will be given notice and hearing rights in accordance with division-level designation 5101:6 of the Administrative Code. Consumers will also be directed to other available services including, but not limited to, the home health or private duty nursing services set forth in Chapter 5101:3-12 of the Administrative Code.

Effective: 07/01/2006

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

Promulgated Under: 119.03

Statutory Authority: 5111.02

Rule Amplifies: 5111.01, 5111.02, 5111.85