Chapter 5123:2-10 Early Intervention Services

5123:2-10-01 Early intervention services - system of payments.

(A) Purpose

This rule establishes a structure to pay for activities and expenses that are reasonable and necessary for implementing Ohio's early intervention system for eligible children and their families.

(B) Definitions

(1) "Assistive technology device" means any item, piece of equipment, or product, whether acquired commercially off the shelf, modified, or customized, that is used to increase, maintain, or improve the functional capabilities of a child. The term does not include a medical device that is surgically implanted, including a cochlear implant, or the optimization (e.g., mapping), maintenance, or replacement of that device.

(2) "County board" means a county board of developmental disabilities.

(3) "Department" means the Ohio department of developmental disabilities.

(4) "Early intervention service coordinator" means a person that assists and enables an eligible child and the child's family to receive the services and rights, including procedural safeguards, required under part C.

(5) "Early intervention services" means developmental services selected in collaboration with the parents of a child birth through age two who is eligible for services under part C, and designed to meet the developmental needs of the child and the needs of the child's family to assist appropriately in the child's development as identified in the individualized family service plan.

(6) "Early intervention system" means Ohio's statewide, coordinated, comprehensive, interagency system for which the department is the lead agency, that promotes transdisciplinary, family-centered services and supports to eligible children birth through age two and their families.

(7) "Eligible" means a child, birth through age two, who has:

(a) A physical or mental condition with a high probability of resulting in a developmental delay listed in the appendix to this rule as documented by a diagnosis signed by a professional licensed to diagnose and treat physical or mental conditions;

(b) A physical or mental condition which is not listed in the appendix to this rule as documented by a diagnosis signed by a professional licensed to diagnose and treat physical or mental conditions that includes the name of the diagnosed physical or mental condition, and a statement of how the diagnosed condition has a high likelihood of causing a developmental delay; or

(c) A developmental delay of at least one and one-half standard deviations below the mean, or the equivalent determined through informed clinical opinion, in adaptive, cognitive, communication, physical, or social-emotional development, as determined and documented by the "Bayley Infant Scales of Development" or the "Battelle Developmental Inventory."

(8) "Extraordinary medical expenses" means non-reimbursable costs paid during the individualized family service plan year by the family of the eligible child for medical and related care including, but not limited to, hospital stays, physician visits, dental care, vision care, prescribed medications/ supplies/therapies, health insurance premiums/co-payments/deductibles, and modifications to the child's home to make the home accessible when such costs constitute:

(a) At least one per cent of the family's gross income when the family's gross income is less than or equal to two hundred ten per cent of the federal poverty level;

(b) At least two per cent of the family's gross income when the family's gross income is greater than two hundred ten per cent of the federal poverty level and less than or equal to two hundred twenty per cent of the federal poverty level;

(c) At least three per cent of the family's gross income when the family's gross income is greater than two hundred twenty per cent of the federal poverty level and less than or equal to two hundred thirty per cent of the federal poverty level;

(d) At least four per cent of the family's gross income when the family's gross income is greater than two hundred thirty per cent of the federal poverty level and less than or equal to two hundred forty per cent of the federal poverty level;

(e) At least five per cent of the family's gross income when the family's gross income is greater than two hundred forty per cent of the federal poverty level and less than or equal to two hundred seventy per cent of the federal poverty level;

(f) At least six per cent of the family's gross income when the family's gross income is greater than two hundred seventy per cent of the federal poverty level and less than or equal to three hundred per cent of the federal poverty level;

(g) At least seven per cent of the family's gross income when the family's gross income is greater than three hundred per cent of the federal poverty level and less than or equal to four hundred per cent of the federal poverty level; or

(h) At least eight per cent of the family's gross income when the family's gross income is greater than four hundred per cent of the federal poverty level.

(9) "Home and community-based services medicaid waiver component" has the same meaning as in section 5166.01 of the Revised Code.

(10) "Individualized family service plan" means the written plan for providing early intervention services to an eligible child and his or her family. The fifty-five units of early intervention services per individualized family service plan year provided at no cost to an eligible child and his or her family in accordance with paragraph (C)(1)(f) of this rule shall not serve to limit the team's recommendation of needed early intervention services in the individualized family service plan.

(11) "Individualized family service plan year" means the period, not to exceed three hundred sixty-six calendar days or extend beyond the child's third birthday, beginning on the day signatures are secured on an initial or annual individualized family service plan and ending when signatures are secured on a subsequent annual individualized family service plan.

(12) "Parent" means a biological or adoptive parent of a child, a guardian, a person acting in place of a parent and with whom the child lives, or an appointed surrogate parent.

(13) "Part C" means part C of the Individuals with Disabilities Education Act, 20 U.S.C. 1431 through 1445, as in effect on the effective date of this rule, and 34 C.F.R. part 303, as in effect on the effective date of this rule.

(14) "Payor of last resort" means the use of federal part C funds to pay for early intervention services only when all other funding sources have been exhausted. These funds may be used to prevent a delay in the timely provision of early intervention services, pending reimbursement from the agency or entity that has ultimate responsibility for the payment.

(15) "Qualified personnel" means persons who:

(a) Hold, as applicable based on the early intervention services provided:

(i) Valid early intervention services certification issued by the department in accordance with rule 5123:2-5-05 of the Administrative Code;

(ii) Valid license or certificate issued under Title XLVII of the Revised Code; or

(iii) Valid license or certificate issued under Chapter 3319. of the Revised Code.

(b) Provide early intervention services in accordance with part C and rules promulgated by the department.

(c) Shall be subject to the department's oversight of the early intervention services provided.

(16) "Team" means the group of persons who develop the individualized family service plan and includes, at a minimum, the parent of the eligible child, other family members when requested by the parent, an advocate or other person outside of the family when requested by the parent, the early intervention service coordinator, and a person who conducted the evaluation or assessment of the child.

(17) "Unit" means either:

(a) Sixty minutes of early intervention services; or

(b) One hundred dollars expended for an assistive technology device.

(C) Provision of and payment for early intervention services

(1) The department shall ensure that the following early intervention services and functions are funded through local, state, and federal public funds and are provided at no cost to eligible children and their families:

(a) Child find;

(b) Evaluation and assessment;

(c) Service coordination;

(d) Administrative and coordinating activities related to the development, review, and evaluation of the individualized family service plan and interim individualized family service plan;

(e) Implementation of procedural safeguards in accordance with paragraph (H) of this rule; and

(f) Fifty-five units of early intervention services per individualized family service plan year identified as needed in the individualized family service plan.

(2) Early intervention services, other than those listed in paragraphs (C)(1)(a) to (C)(1)(f) of this rule, may be financed through:

(a) County boards, based on a county board's strategic plan and written policy regarding early intervention services in accordance with rule 5123:2-1-02 of the Administrative Code;

(b) Private insurance of the child or parent, with the consent of the parent of the eligible child;

(c) Public insurance of the child or parent (e.g., medicaid or children's health insurance program), with the consent of the parent of the eligible child for disclosure of the child's personally-identifiable information to the public insurance program for billing purposes;

(d) Parent cost participation based on the determination of the parent's ability to pay; and

(e) The department through a combination of state general revenue funds and federal part C funds, with federal part C funds being payor of last resort.

(3) When the first fifty-five units of early intervention services per individualized family service plan year are not available from or are denied by the funding sources set forth in paragraphs (C)(2)(a) to (C)(2)(c) of this rule, the department shall pay qualified personnel for early intervention services identified as needed in an individualized family service plan, regardless of the parent's ability to pay as determined in accordance with paragraph (D)(2) of this rule.

(4) When more than fifty-five units of early intervention services per individualized family service plan year are identified as needed in an individualized family service plan:

(a) A parent determined able to pay for early intervention services in accordance with paragraph (D)(2) of this rule shall be responsible for paying the cost of early intervention services.

(b) The child of a parent determined unable to pay for early intervention services in accordance with paragraph (D)(2) of this rule shall continue to receive early intervention services at public expense.

(5) Providers of early intervention services, other than county boards, shall enter into a contractual relationship with the department for provision of the services.

(D) Determination of a parent's ability to pay for early intervention services

(1) The early intervention service coordinator shall explain this rule and determine a parent's ability to pay for early intervention services in accordance with paragraph (D)(2) of this rule within forty-five calendar days of the parent's initial contact with the early intervention system and within forty-five calendar days of each scheduled annual review of the individualized family service plan.

(2) A parent shall be determined able to pay for early intervention services unless:

(a) The parent is receiving services from the special supplemental food program for women, infants, and children, authorized by section 17 of the Child Nutrition Act of 1966, 42 U.S.C. 1786, as in effect on the effective date of this rule; or

(b) The parent or the child is receiving medicaid benefits; or

(c) The family's income is less than or equal to that required for Ohio healthy start eligibility for uninsured children (http://www.medicaid.ohio.gov/ forohioans/programs/childrenfamiliesandwomen.aspx); or

(d) The family has extraordinary medical expenses as determined by the department within thirty calendar days of the department's receipt of necessary supporting documentation.

(3) A parent who chooses not to share financial information needed by the early intervention service coordinator or the department to determine the parent's ability to pay shall be responsible for paying the cost of early intervention services other than the early intervention services listed in paragraphs (C)(1)(a) to (C)(1)(f) of this rule.

(4) The early intervention service coordinator shall inform the parent of the option to submit a request for redetermination of the parent's ability to pay if, after the initial determination, the parent or family meets a criterion set forth in paragraphs (D)(2)(a) to (D)(2)(d) of this rule.

(E) Parent cost participation

(1) When a parent is determined unable to pay in accordance with paragraph (D)(2) of this rule, the eligible child shall be provided all early intervention services identified as needed in the individualized family service plan, including those early intervention services that exceed fifty-five units per individualized family service plan year, at no cost to the child or family.

(2) When a parent is determined able to pay in accordance with paragraph (D)(2) of this rule, the parent shall be responsible for paying the cost of early intervention services, including private insurance co-payments and deductibles, needed to meet the outcomes in the individualized family service plan, other than the early intervention services listed in paragraphs (C)(1)(a) to (C)(1)(f) of this rule.

(3) A parent shall not be charged more than the actual cost of the early intervention services (factoring in any amount received from other sources for payment for those services).

(4) A child or parent with private insurance or public insurance shall not be charged disproportionately more than a child or parent without private insurance or public insurance.

(F) Using the private insurance of a child or parent to pay for early intervention services

(1) The early intervention system shall not use the private insurance of a child or parent to pay for early intervention services without written consent of the parent. Prior to asking a parent if he or she consents to use of private insurance, the early intervention service coordinator shall:

(a) Provide the parent with a description of Ohio's system of payments for early intervention services;

(b) Explain this rule;

(c) Explain that there are potential costs (e.g., co-payments, deductibles, premiums, or long-term costs such as the loss of benefits because of annual or lifetime health insurance coverage caps of the insurance policy) and that there may be service limits that the parent may incur when private insurance is used to pay for early intervention services; and

(d) Suggest the parent review his or her private insurance coverage and contact the insurer if he or she has questions about using private insurance to pay for early intervention services.

(2) When using the private insurance of a child or parent to pay for early intervention services, the early intervention service coordinator shall obtain parental consent prior to an increase in the amount, duration, or scope of early intervention services specified in the individualized family service plan.

(3) When using the private insurance of a child or parent to pay for early intervention services, the early intervention system:

(a) Shall pay the cost of co-payments and deductibles using payor of last resort funds as necessary for the first fifty-five units of early intervention services per individualized family service plan year and for additional units of early intervention services when a parent is determined unable to pay in accordance with paragraph (D)(2) of this rule; and

(b) Shall not pay the cost of private insurance premiums.

(4) When a child is covered by both private insurance and public insurance and the child's parent consents to the use of private insurance to pay for early intervention services, the use of private insurance is required prior to the use of public insurance to pay for early intervention services.

(G) Using the public insurance of a child or parent to pay for early intervention services

(1) The early intervention system shall not require a child or parent to enroll in public insurance programs as a condition of receiving early intervention services, but shall share information about the enrollment process for such programs.

(2) The early intervention system shall not enroll a child or parent in public insurance programs or use the public insurance of a child or parent to pay for early intervention services if the child or parent is not already enrolled in a public insurance program.

(3) When using the public insurance of a child or parent to pay for early intervention services, the early intervention system shall:

(a) Obtain initial, one-time parental consent for disclosure of the child's personally-identifiable information to the public insurance program for billing purposes.

(b) Make available those early intervention services in the individualized family service plan for which the parent has provided consent.

(c) Provide written notification to the parent prior to using the public insurance of the child or parent to pay for early intervention services. The written notification shall include a statement:

(i) That after obtaining parental consent, the child's personally-identifiable information will be disclosed to the public insurance program for billing purposes.

(ii) That the parent has the right, at any time, to withdraw consent of disclosure of the child's personally-identifiable information to the public insurance program.

(iii) That the parent will not be charged co-payments, deductibles, or premiums for using public insurance.

(iv) That for children covered by both private insurance and public insurance, the use of private insurance to pay for early intervention services is required prior to the use of public insurance to pay for early intervention services. When the parent does not consent to use of private insurance, however, neither private insurance nor public insurance will be used to pay for early intervention services and the early intervention system shall make available those early intervention services in the individualized family service plan for which the parent has provided consent.

(v) That the parent will not, as a result of using public insurance for early intervention services:

(a) Have to pay for services that would otherwise be covered by the public insurance program;

(b) Incur any premiums or discontinuation of public insurance for the child or the parent;

(c) Risk loss of eligibility for the child or the parent for a home and community-based services medicaid waiver component based on aggregate health-related expenditures; or

(d) Risk decrease in available lifetime coverage or any other insured benefits.

(vi) Of the procedural safeguards set forth in paragraphs (G)(1), (G)(2), and (H) of this rule.

(H) Procedural safeguards

(1) A parent contesting the determination of the parent's ability to pay or imposition of parent cost participation shall be afforded the procedural safeguards set forth in part C, including mediation, state complaint procedures, and due process hearing procedures. In addition, a parent contesting the determination of the parent's ability to pay or the imposition of parent cost participation may request an informal review by the department.

(a) The parent must submit a request for review to the department within thirty calendar days from receipt of notification of the determination of the parent's ability to pay or imposition of parent cost participation. The request must contain a statement of the reasons the parent believes the determination or imposition is incorrect or inappropriate and a proposed resolution.

(b) The department shall issue a written decision to the parent within twenty calendar days from receipt of the request for review.

(2) Early intervention services shall not be delayed or denied to an eligible child of a parent determined unable to pay for early intervention services in accordance with paragraph (D)(2) of this rule.

(3) Early intervention services shall not be delayed or denied to an eligible child due to lack of:

(a) Parental consent to use the private insurance of the child or parent to pay for early intervention services;

(b) The child's or parent's enrollment in public insurance programs; or

(c) Parental consent to share the child's personally-identifiable information with public insurance programs.

(4) Parents shall be notified of the procedural safeguards set forth in paragraphs (H)(1) to (H)(3) of this rule at the time of the determination of the parent's ability to pay in accordance with paragraph (D)(2) of this rule and prior to finalization and securing of signatures on the individualized family service plan.

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Effective: 8/1/2017
Five Year Review (FYR) Dates: 08/01/2022
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.0421
Rule Amplifies: 5123.04, 5123.0421