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

(c) Respond to emergencies; 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

(c) Participate in household chores; 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

(c) Participate in household chores; 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

(c) Initiate appropriate activities; 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

(c) Initiate appropriate activities, show adequate social skills for establishing and maintaining relationships; 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

(c) Initiate appropriate activities, show adequate social skills for relationships such as turn taking and sharing; 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;

(c) Cognition;

(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