Chapter 5123:2-17 Complaint Resolution; Major Unusual Incidents

5123:2-17-01 Administrative resolution of complaints involving the Ohio department of developmental disabilities.

(A) The purpose of this rule is to establish procedures for the filing and resolution of complaints involving the programs, services, policies, or administrative practices of the Ohio department of developmental disabilities ("department") or any of the entities under contract with the department.

(B) Any aggrieved person or organization, including a county board of developmental disabilities, may file a complaint involving the programs, services, policies, or administrative practices of the department or any of the entities under contract with the department except:

(1) An employee of the department may not file a complaint under this rule.

(2) A complaint regarding investigation of a major unusual incident shall follow the procedure set forth in rule 5123:2-17-02 of the Administrative Code and is not subject to this rule.

(3) A matter subject to the Ohio department of job and family services medicaid appeal processes in section 5101.35 of the Revised Code and Chapters 5101:6-1 to 5101:6-9 of the Administrative Code is not subject to this rule.

(4) A matter over which another department or tribunal has jurisdiction is not subject to this rule.

(C) Complaints may be filed with the department only after exhausting all applicable administrative remedies and complaint resolution procedures.

(D) A complaint must be filed with the director of the department within ninety calendar days of the action which is the subject of the complaint. A complaint shall be in writing and include, if known to the complainant:

(1) The facts giving rise to the complaint;

(2) The name, address, email address, and telephone number of each person involved in the complaint;

(3) Previous actions taken to resolve the complaint; and

(4) A citation to any statute and/or administrative rule the complainant contends was not followed.

(E) The director of the department or his or her designee may obtain additional relevant information and conduct interviews with any relevant parties.

(F) The director of the department or his or her designee may offer mediation to the parties involved in the complaint.

(G) The director of the department shall issue a written decision within thirty days of receipt of the complaint.

(H) The timelines set forth in this rule may be extended by the director of the department for good cause.

(I) The process set forth in this rule shall be followed before commencing a civil action. This rule is not intended to provide any right or cause of action that does not exist absent this rule.

Replaces: 5123:2-17-01

Effective: 02/23/2012
R.C. 119.032 review dates: 02/23/2017
Promulgated Under: 119.03
Statutory Authority: 5123.04 , 5123.043
Rule Amplifies: 5123.04 , 5123.043
Prior Effective Dates: 09/24/1987, 11/02/1996

5123:2-17-02 Addressing major unusual incidents and unusual incidents to ensure health, welfare, and continuous quality improvement.

(A) Purpose

This rule establishes the requirements for addressing major unusual incidents and unusual incidents and implements a continuous quality improvement process in order to prevent or reduce the risk of harm to individuals.

(B) Scope

This rule applies to county boards, developmental centers, and providers.

(C) Definitions

(1) "Administrative investigation" means the gathering and analysis of information related to a major unusual incident so that appropriate action can be taken to address any harm or risk of harm and prevent recurrence. There are three administrative investigation procedures (category A, category B, and category C) that correspond to the three categories of major unusual incidents.

(2) "Agency provider" means a provider, certified or licensed by the department or a provider approved by the Ohio department of medicaid to provide services under the transitions developmental disabilities waiver, that employs staff to deliver services to individuals and who may subcontract the delivery of services. "Agency provider" includes a county board while providing specialized services.

(3) "At-risk individual" means an individual whose health or welfare is adversely affected or whose health or welfare may reasonably be considered to be in danger of being adversely affected.

(4) "County board" means a county board of developmental disabilities as established under Chapter 5126. of the Revised Code or a regional council of governments as established under Chapter 167. of the Revised Code when it includes at least one county board.

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

(6) "Developmental center" means an intermediate care facility under the managing responsibility of the department.

(7) "Developmental disabilities employee" means any of the following:

(a) An employee of the department;

(b) An employee of a county board;

(c) An employee of an agency provider in a position that includes providing specialized services to an individual; or

(d) An independent provider.

(8) "Incident report" means documentation that contains details about a major unusual incident or an unusual incident and shall include, but is not limited to:

(a) Individual's name;

(b) Individual's address;

(c) Date of incident;

(d) Location of incident;

(e) Description of incident;

(f) Type and location of injuries;

(g) Immediate actions taken to ensure health and welfare of individual involved and any at-risk individuals;

(h) Name of primary person involved and his or her relationship to the individual;

(i) Names of witnesses;

(j) Statements completed by persons who witnessed or have personal knowledge of the incident;

(k) Notifications with name, title, and time and date of notice;

(l) Further medical follow-up; and

(m) Name of signature of person completing the incident report.

(9) "Incident tracking system" means the department's web-based system for reporting major unusual incidents.

(10) "Independent provider" means a self-employed person who provides services for which he or she must be certified under rule 5123:2-2-01 of the Administrative Code or a self-employed person approved by the Ohio department of medicaid to provide services under the transitions developmental disabilities waiver and does not employ, either directly or through contract, anyone else to provide the services.

(11) "Individual" means a person with a developmental disability.

(12) "Individual served" means an individual who receives specialized services.

(13) "Intermediate care facility" means an intermediate care facility for individuals with intellectual disabilities as defined in rule 5123:2-7-01 of the Administrative Code.

(14) "Investigative agent" means an employee of a county board or a person under contract with a county board who is certified by the department to conduct administrative investigations of major unusual incidents.

(15) "Major unusual incident" means the alleged, suspected, or actual occurrence of an incident when there is reason to believe the health or welfare of an individual may be adversely affected or an individual may be placed at a likely risk of harm, if such individual is receiving services through the developmental disabilities service delivery system or will be receiving such services as a result of the incident. There are three categories of major unusual incidents that correspond to three administrative investigation procedures delineated in appendix A, appendix B, and appendix C to this rule:

(a) Category A

(i) Accidental or suspicious death. "Accidental or suspicious death" means the death of an individual resulting from an accident or suspicious circumstances.

(ii) Exploitation. "Exploitation" means the unlawful or improper act of using an individual or an individual's resources for monetary or personal benefit, profit, or gain.

(iii) Failure to report. "Failure to report" means that a person, who is required to report pursuant to section 5123.61 of the Revised Code, has reason to believe that an individual has suffered or faces a substantial risk of suffering any wound, injury, disability, or condition of such a nature as to reasonably indicate abuse, misappropriation, or exploitation that results in a risk to health and welfare or neglect of that individual, and such person does not immediately report such information to a law enforcement agency, a county board, or, in the case of an individual living in a developmental center, either to law enforcement or the department. Pursuant to division (C)(1) of section 5123.61 of the Revised Code, such report shall be made to the department and the county board when the incident involves an act or omission of an employee of a county board.

(iv) Misappropriation. "Misappropriation" means depriving, defrauding, or otherwise obtaining the real or personal property of an individual by any means prohibited by the Revised Code, including Chapters 2911. and 2913. of the Revised Code.

(v) Neglect. "Neglect" means when there is a duty to do so, failing to provide an individual with any treatment, care, goods, supervision, or services necessary to maintain the health or welfare of the individual.

(vi) Peer-to-peer act. "Peer-to-peer act" means one of the following incidents involving two individuals served:

(a) Exploitation which means the unlawful or improper act of using an individual or an individual's resources for monetary or personal benefit, profit, or gain.

(b) Theft which means intentionally depriving another individual of real or personal property valued at twenty dollars or more or property of significant personal value to the individual.

(c) Physical act that occurs when an individual is targeting, or firmly fixed on another individual such that the act is not accidental or random and the act results in an injury that is treated by a physician, physician assistant, or nurse practitioner. Allegations of one individual choking another or any head or neck injuries such as a bloody nose, a bloody lip, a black eye, or other injury to the eye, shall be considered major unusual incidents. Minor injuries such as scratches or reddened areas not involving the head or neck shall be considered unusual incidents and shall require immediate action, a review to uncover possible cause/contributing factors, and prevention measures.

(d) Sexual act which means sexual conduct and/or contact for the purposes of sexual gratification without the consent of the other individual.

(e) Verbal act which means the use of words, gestures, or other communicative means to purposefully threaten, coerce, or intimidate the other individual when there is the opportunity and ability to carry out the threat.

(vii) Physical abuse. "Physical abuse" means the use of physical force that can reasonably be expected to result in physical harm or serious physical harm as those terms are defined in section 2901.01 of the Revised Code. Such force may include, but is not limited to, hitting, slapping, pushing, or throwing objects at an individual.

(viii) Prohibited sexual relations. "Prohibited sexual relations" means a developmental disabilities employee engaging in consensual sexual conduct or having consensual sexual contact with an individual who is not the employee's spouse, and for whom the developmental disabilities employee was employed or under contract to provide care or supervise the provision of care at the time of the incident.

(ix) Rights code violation. "Rights code violation" means any violation of the rights enumerated in section 5123.62 of the Revised Code that creates a likely risk of harm to the health or welfare of an individual.

(x) Sexual abuse. "Sexual abuse" means unlawful sexual conduct or sexual contact as those terms are defined in section 2907.01 of the Revised Code and the commission of any act prohibited by Chapter 2907. of the Revised Code (e.g., public indecency, importuning, and voyeurism).

(xi) Verbal abuse. "Verbal abuse" means the use of words, gestures, or other communicative means to purposefully threaten, coerce, intimidate, harass, or humiliate an individual.

(b) Category B

(i) Attempted suicide. "Attempted suicide" means a physical attempt by an individual that results in emergency room treatment, in-patient observation, or hospital admission.

(ii) Death other than accidental or suspicious death. "Death other than accidental or suspicious death" means the death of an individual by natural cause without suspicious circumstances.

(iii) Medical emergency. "Medical emergency" means an incident where emergency medical intervention is required to save an individual's life (e.g., choking relief techniques such as back blows or cardiopulmonary resuscitation, epinephrine auto injector usage, or intravenous for dehydration).

(iv) Missing individual. "Missing individual" means an incident that is not considered neglect and an individual's whereabouts, after immediate measures taken, are unknown and the individual is believed to be at or pose an imminent risk of harm to self or others. An incident when an individual's whereabouts are unknown for longer than the period of time specified in the individual service plan that does not result in imminent risk of harm to self or others shall be investigated as an unusual incident.

(v) Significant injury. "Significant injury" means an injury of known or unknown cause that is not considered abuse or neglect and that results in concussion, broken bone, dislocation, second or third degree burns or that requires immobilization, casting, or five or more sutures. Significant injuries shall be designated in the incident tracking system as either known or unknown cause.

(c) Category C

(i) Law enforcement. "Law enforcement" means any incident that results in the individual served being arrested, charged, or incarcerated.

(ii) Unapproved behavior support. "Unapproved behavior support" means the use of an aversive strategy or intervention prohibited by paragraph (J) of rule 5123:2-1-02 of the Administrative Code or an aversive strategy implemented without approval by the human rights committee or behavior support committee or without informed consent, that results in a likely risk to the individual's health and welfare. An aversive strategy or intervention prohibited by paragraph (J) of rule 5123:2-1-02 of the Administrative Code that does not pose a likely risk to health and welfare shall be investigated as an unusual incident.

(iii) Unscheduled hospitalization. "Unscheduled hospitalization" means any hospital admission that is not scheduled unless the hospital admission is due to a pre-existing condition that is specified in the individual service plan indicating the specific symptoms and criteria that require hospitalization.

(16) "Primary person involved" means the person alleged to have committed or to have been responsible for the accidental or suspicious death, exploitation, failure to report, misappropriation, neglect, physical abuse, prohibited sexual relations, rights code violation, sexual abuse, or verbal abuse.

(17) "Provider" means an agency provider or independent provider that provides specialized services.

(18) "Qualified intellectual disability professional" has the same meaning as in 42 C.F.R. 483.430 (October 1, 2012).

(19) "Specialized services" means any program or service designed and operated to serve primarily individuals, including a program or service provided by an entity licensed or certified by the department.

(20) "Unusual incident" means an event or occurrence involving an individual that is not consistent with routine operations, policies and procedures, or the individual's care or individual service plan, but is not a major unusual incident. Unusual incident includes, but is not limited to, dental injuries; falls; an injury that is not a significant injury; medication errors without a likely risk to heath and welfare; overnight relocation of an individual due to a fire, natural disaster, or mechanical failure; an incident involving two individuals served that is not a peer-to-peer act major unusual incident; and rights code violations or unapproved behavior supports without a likely risk to health and welfare.

(21) "Working day" means Monday, Tuesday, Wednesday, Thursday, or Friday except when that day is a holiday as defined in section 1.14 of the Revised Code.

(D) Reporting requirements for major unusual incidents

(1) Reports regarding all major unusual incidents involving an individual who resides in an intermediate care facility or who receives round-the-clock waiver services shall be filed and the requirements of this rule followed regardless of where the incident occurred.

(2) Reports regarding the following major unusual incidents shall be filed and the requirements of this rule followed regardless of where the incident occurred:

(a) Accidental or suspicious death;

(b) Attempted suicide;

(c) Death other than accidental or suspicious death;

(d) Exploitation;

(e) Failure to report;

(f) Law enforcement;

(g) Misappropriation;

(h) Missing individual;

(i) Neglect;

(j) Peer-to-peer act;

(k) Physical abuse;

(l) Prohibited sexual relations;

(m) Sexual abuse; and

(n) Verbal abuse.

(3) Reports regarding the following major unusual incidents shall be filed and the requirements of this rule followed only when the incident occurs in a program operated by a county board or when the individual is being served by a licensed or certified provider:

(a) Medical emergency;

(b) Rights code violation;

(c) Significant injury;

(d) Unapproved behavior support; and

(e) Unscheduled hospitalization.

(4) Immediately upon identification or notification of a major unusual incident, the provider shall take all reasonable measures to ensure the health and welfare of at-risk individuals. The provider and county board shall discuss any disagreements regarding reasonable measures in order to resolve them. If the provider and county board are unable to agree on reasonable measures to ensure the health and welfare of at-risk individuals, the department shall make the determination. Such measures shall include:

(a) Immediate and ongoing medical attention, as appropriate;

(b) Removal of an employee from direct contact with any at-risk individual when the employee is alleged to have been involved in abuse or neglect until such time as the provider has reasonably determined that such removal is no longer necessary; and

(c) Other necessary measures to protect the health and welfare of at-risk individuals.

(5) Immediately upon receipt of a report or notification of an allegation, the county board shall:

(a) Ensure that all reasonable measures necessary to protect the health and welfare of at-risk individuals have been taken;

(b) Determine if additional measures are needed; and

(c) Notify the department if the circumstances in paragraph (I)(1) of this rule that require a department-directed administrative investigation are present. Such notification shall take place on the first working day the county board becomes aware of the incident.

(6) The provider shall immediately, but no later than four hours after discovery of the incident, notify the county board through means identified by the county board of the following incidents or allegations:

(a) Accidental or suspicious death;

(b) Exploitation;

(c) Misappropriation;

(d) Neglect;

(e) Peer-to-peer act;

(f) Physical abuse;

(g) Sexual abuse;

(h) Verbal abuse; and

(i) When the provider has received an inquiry from the media regarding a major unusual incident.

(7) For all major unusual incidents, all providers shall submit a written incident report to the county board contact or designee no later than three p.m. the next working day following initial knowledge of a potential or determined major unusual incident. The report shall be submitted in a format prescribed by the department.

(8) The county board shall enter preliminary information regarding the incident in the incident tracking system and in the manner prescribed by the department by three p.m. on the working day following notification by the provider or of becoming aware of the major unusual incident.

(9) When a provider has placed an employee on leave or otherwise taken protective action pending the outcome of the administrative investigation, the county board or department, as applicable, shall keep the provider apprised of the status of the administrative investigation so that the provider can resume normal operations as soon as possible consistent with the health and welfare of at-risk individuals. The provider shall notify the county board or department, as applicable, of any changes regarding the protective action.

(10) If the provider is a developmental center, all reports required by this rule shall be made directly to the department.

(11) The county board shall have a system that is available twenty-four hours a day, seven days a week, to receive and respond to all reports required by this rule. The county board shall communicate this system in writing to all providers in the county and to the department.

(E) Reporting of alleged criminal acts

(1) Nothing in this rule relieves mandatory reporters of the responsibility to immediately report to the intermediate care facility administrator or administrator designee, allegations of mistreatment, neglect, or abuse and injuries of unknown source when the source of the injury was not witnessed by any person and the source of the injury could not be explained by the individuals and the injury raises suspicions of possible abuse or neglect because of the extent of the injury or the location of the injury or the number of injuries observed at one particular point in time or the incidences of injuries over time pursuant to 42 C.F.R. 483.420 (October 1, 2012).

(2) The provider shall immediately report to the law enforcement entity having jurisdiction of the location where the incident occurred, any allegation of exploitation, failure to report, misappropriation, neglect, peer-to-peer act, physical abuse, sexual abuse, or verbal abuse which may constitute a criminal act. The provider shall document the time, date, and name of person notified of the alleged criminal act. The county board shall ensure that the notification has been made.

(3) The department shall immediately report to the Ohio state highway patrol, any allegation of exploitation, failure to report, misappropriation, neglect, peer-to-peer act, physical abuse, sexual abuse, or verbal abuse occurring at a developmental center which may constitute a criminal act. The department shall document the time, date, and name of person notified of the alleged criminal act.

(F) Abused or neglected children

All allegations of abuse or neglect as defined in sections 2151.03 and 2151.031 of the Revised Code of an individual under the age of twenty-one years shall be immediately reported to the local public children's services agency. The notification may be made by the provider or the county board. The county board shall ensure that the notification has been made.

(G) Notification requirements for major unusual incidents

(1) The provider shall make the following notifications, as applicable, when the major unusual incident or discovery of the major unusual incident occurs when such provider has responsibility for the individual. The notification shall be made on the same day the major unusual incident or discovery of the major unusual incident occurs and include immediate actions taken.

(a) Guardian or other person whom the individual has identified.

(b) Service and support administrator serving the individual.

(c) Licensed or certified residential provider.

(d) Staff or family living at the individual's residence who have responsibility for the individual's care.

(e) Support broker for an individual enrolled in the self-empowered life funding waiver.

(2) All notifications or efforts to notify shall be documented. The county board shall ensure that all required notifications have been made.

(3) Notification shall not be made if the person to be notified is the primary person involved, the spouse of the primary person involved, or the significant other of the primary person involved.

(4) Notification shall be made to the individuals, individuals' guardians, and other persons whom the individuals have identified in a peer-to-peer act unless such notification could jeopardize the health and welfare of an individual involved.

(5) Notification to a person is not required when the report comes from such person or in the case of a death when the family is already aware of the death.

(6) In any case where law enforcement has been notified of an alleged crime, the department may provide notification of the incident to any other provider, developmental center, or county board for whom the primary person involved works, for the purpose of ensuring the health and welfare of any at-risk individual. The notified provider or county board shall take such steps necessary to address the health and welfare needs of any at-risk individual and may consult the department in this regard. The department shall inform any notified entity as to whether the incident is substantiated. Providers, developmental centers, or county boards employing a primary person involved shall notify the department when they are aware that the primary person involved works for another provider.

(H) General administrative investigation requirements

(1) Each county board shall employ at least one investigative agent or contract with a person or governmental entity for the services of an investigative agent. An investigative agent shall be certified by the department in accordance with rule 5123:2-5-07 of the Administrative Code. Developmental center investigators are considered certified investigative agents for the purpose of this rule.

(2) All major unusual incidents require an administrative investigation meeting the applicable administrative investigation procedure in appendix A, appendix B, or appendix C to this rule unless it is not possible or relevant to the administrative investigation to meet a requirement under this rule, in which case the reason shall be documented. Administrative investigations shall be conducted and reviewed by investigative agents.

(a) The department or county board may elect to follow the administrative investigation procedure for category A major unusual incidents for any major unusual incident.

(b) Based on the facts discovered during administrative investigation of the major unusual incident, the category may change. If a major unusual incident changes category, the reason for the change shall be documented and the new applicable category administrative investigation procedure shall be followed to investigate the major unusual incident.

(c) Major unusual incidents that involve an active criminal investigation may be closed as soon as the county board ensures that the major unusual incident is properly coded, the history of the primary person involved has been reviewed, cause and contributing factors are determined, a finding is made, and prevention measures implemented. Information needed for closure of the major unusual incident may be obtained from the criminal investigation.

(3) County board staff may assist the investigative agent by gathering documents, entering information into the incident tracking system, fulfilling category C administrative investigation requirements, or performing other administrative or clerical duties that are not specific to the investigative agent role.

(4) Except when law enforcement or the public children's services agency is conducting the investigation, the investigative agent shall conduct all interviews for major unusual incidents unless the investigative agent determines the need for assistance with interviewing an individual. For a major unusual incident occurring at an intermediate care facility, the investigative agent may utilize interviews conducted by the intermediate care facility or conduct his or her own interviews. If the investigative agent determines the information is reliable, the investigative agent may utilize other information received from law enforcement, the public children's services agency, or providers in order to meet the requirements of this rule.

(5) Except when law enforcement or the public children's services agency has been notified and is considering conducting an investigation, the county board shall commence an administrative investigation. If law enforcement or the public children's services agency notifies the county board that it has declined to investigate, the county board shall commence the administrative investigation within a reasonable amount of time based on the initial information received or obtained and consistent with the health and welfare of all at-risk individuals, but no later than twenty-four hours for a major unusual incident in category A or no later than three working days for a major unusual incident in category B or category C.

(6) An intermediate care facility shall conduct an investigation that complies with applicable federal regulations, including 42 C.F.R. 483.420 (October 1, 2012), for any unusual incident or major unusual incident involving a resident of the intermediate care facility, regardless of where the unusual incident or major unusual incident occurs. The intermediate care facility shall provide a copy of its full report of an administrative investigation of a major unusual incident to the county board. The investigative agent may utilize information from the intermediate care facility's administrative investigation to meet the requirements of this rule or conduct a separate administrative investigation. The county board shall provide a copy of its full report of the administrative investigation to the intermediate care facility. The department shall resolve any conflicts that arise.

(7) When an agency provider, excluding an intermediate care facility, conducts an internal review of an incident for which a major unusual incident has been filed, the agency provider shall submit the results of its internal review of the incident, including statements and documents, to the county board within fourteen calendar days of the agency provider becoming aware of the incident.

(8) All developmental disabilities employees shall cooperate with administrative investigations conducted by entities authorized to conduct investigations. Providers and county boards shall respond to requests for information within the time frame requested. The time frames identified shall be reasonable.

(9) The investigative agent shall complete a report of the administrative investigation and submit it for closure in the incident tracking system within thirty working days unless the county board requests and the department grants an extension for good cause. If an extension is granted, the department may require submission of interim reports and may identify alternative actions to assist with the timely conclusion of the report.

(10) The report shall follow the format prescribed by the department. The investigative agent shall include the initial allegation, a list of persons interviewed and documents reviewed, a summary of each interview and document reviewed, and a findings and conclusions section which shall include the cause and contributing factors to the incident and the facts that support the findings and conclusions.

(I) Department-directed administrative investigations of major unusual incidents (1) The department shall conduct the administrative investigation when the major unusual incident includes an allegation against:

(a) The superintendent of a county board or developmental center;

(b) The executive director or equivalent of a regional council of governments;

(c) A management employee who reports directly to the superintendent of the county board, the superintendent of a developmental center, or executive director or equivalent of a regional council of governments;

(d) An investigative agent;

(e) A service and support administrator;

(f) A major unusual incident contact or designee employed by a county board;

(g) A current member of a county board;

(h) A person having any known relationship with any of the persons specified in paragraphs (I)(1)(a) to (I)(1)(g) of this rule when such relationship may present a conflict of interest or the appearance of a conflict of interest; or

(i) An employee of a county board when it is alleged that the employee is responsible for an individual's death, has committed sexual abuse, engaged in prohibited sexual activity, or committed physical abuse or neglect resulting in emergency room treatment or hospitalization.

(2) A department-directed administrative investigation or administrative investigation review may be conducted following the receipt of a request from a county board, developmental center, provider, individual, or guardian if the department determines that there is a reasonable basis for the request.

(3) The department may conduct a review or administrative investigation of any major unusual incident or may request that a review or administrative investigation be conducted by another county board, a regional council of governments, or any other governmental entity authorized to conduct an investigation.

(J) Written summaries of major unusual incidents

(1) No later than five working days following the county board's, developmental center's, or department's recommendation via the incident tracking system that the report be closed, the county board, developmental center, or department shall provide a written summary of the administrative investigation of each category A or category B major unusual incident, including the allegations, the facts and findings, including as applicable, whether the case was substantiated or unsubstantiated, and preventive measures implemented in response to the major unusual incident to the following unless the information in the written summary has already been communicated:

(a) The individual, individual's guardian, or other person whom the individual has identified, as applicable; in the case of a peer-to-peer act, both individuals, individuals' guardians, or other persons whom the individuals have identified, as applicable, shall receive the written summary;

(b) The licensed or certified provider and provider at the time of the major unusual incident; and

(c) The individual's service and support administrator and support broker, as applicable.

(2) In the case of an individual's death, the written summary shall be provided to the individual's family only upon request by the individual's family.

(3) The written summary shall not be provided to the primary person involved, the spouse of the primary person involved, or the significant other of the primary person involved. No later than five working days following the closure of a case, the county board shall make a reasonable attempt to notify the primary person involved as to whether the major unusual incident has been substantiated, unsubstantiated/insufficient evidence, or unsubstantiated/unfounded.

(4) If a service and support administrator is not assigned, a county board designee shall be responsible for ensuring the preventive measures are implemented based upon the written summary.

(5) An individual, individual's guardian, other person whom the individual has identified, or provider may dispute the findings by submitting a letter of dispute and supporting documentation to the county board superintendent, or to the director of the department if the department conducted the administrative investigation, within fifteen calendar days following receipt of the findings. An individual may receive assistance from any person selected by the individual to prepare a letter of dispute and provide supporting documentation.

(6) The county board superintendent or his or her designee or the director or his or her designee, as applicable, shall consider the letter of dispute, the supporting documentation, and any other relevant information and issue a determination within thirty calendar days of such submission and take action consistent with such determination, including confirming or modifying the findings or directing that more information be gathered and the findings be reconsidered.

(7) In cases where the letter of dispute has been filed with the county board, the disputant may dispute the final findings made by the county board by filing those findings and any documentation contesting such findings as are disputed with the director of the department within fifteen calendar days of the county board determination. The director shall issue a decision within thirty calendar days.

(K) Review, prevention, and closure of major unusual incidents

(1) County boards and agency providers shall implement a written procedure for the internal review of all major unusual incidents and shall be responsible for taking all reasonable steps necessary to prevent the recurrence of major unusual incidents.

(2) The individual's team, including the county board and provider, shall collaborate on the development of preventive measures to address the causes and contributing factors to the major unusual incident. The team members shall jointly determine what constitutes reasonable steps necessary to prevent the recurrence of major unusual incidents. If there is no service and support administrator, individual team, qualified intellectual disability professional, or agency provider involved with the individual, a county board designee shall ensure that preventive measures as are reasonably possible are fully implemented.

(3) The department may review reports submitted by a county board or developmental center. The department may obtain additional information necessary to consider the report, including copies of all administrative investigation reports that have been prepared. Such additional information shall be provided within the time period specified by the department.

(4) The department shall review and close reports regarding the following major unusual incidents:

(a) Accidental or suspicious death;

(b) Exploitation;

(c) Failure to report;

(d) Misappropriation;

(e) Missing individual;

(f) Neglect;

(g) Peer-to-peer act;

(h) Physical abuse;

(i) Prohibited sexual relations;

(j) Rights code violation;

(k) Sexual abuse;

(l) Significant injury when cause is unknown;

(m) Unapproved behavior support;

(n) Verbal abuse;

(o) Any major unusual incident that is the subject of a director's alert; and

(p) Any major unusual incident investigated by the department.

(5) The county board shall review and close reports regarding the following major unusual incidents:

(a) Attempted suicide;

(b) Death other than accidental or suspicious death;

(c) Law enforcement;

(d) Medical emergency;

(e) Significant injury when cause is known; and

(f) Unscheduled hospitalization.

(6) The department may review any case to ensure it has been properly closed and shall conduct sample reviews to ensure proper closure by the county board. The department may reopen any administrative investigation that does not meet the requirements of this rule. The county board shall provide any information deemed necessary by the department to close the case.

(7) The department and the county board shall consider the following criteria when determining whether to close a case:

(a) Whether sufficient reasonable measures have been taken to ensure the health and welfare of any at-risk individual;

(b) Whether a thorough administrative investigation has been conducted consistent with the standards set forth in this rule;

(c) Whether the team, including the county board and provider, collaborated on developing preventive measures to address the causes and contributing factors;

(d) Whether the county board has ensured that preventive measures have been implemented to prevent recurrence;

(e) Whether the incident is part of a pattern or trend as flagged through the incident tracking system requiring some additional action; and

(f) Whether all requirements set forth in statute or rule have been satisfied.

(L) Analysis of major unusual incident trends and patterns

(1) Providers shall produce a semi-annual and annual report regarding major unusual incident trends and patterns which shall be sent to the county board. The county board shall semi-annually review providers' reports. The semi-annual review shall be cumulative for January first through June thirtieth of each year and include an in-depth analysis. The annual review shall be cumulative for January first through December thirty-first of each year and include an in-depth analysis.

(2) All reviews and analyses shall be completed within thirty calendar days following the end of the review period. The semi-annual and annual reports shall contain the following elements:

(a) Date of review;

(b) Name of person completing review;

(c) Time period of review;

(d) Comparison of data for previous three years;

(e) Explanation of data;

(f) Data for review by major unusual incident category type;

(g) Specific individuals involved in established trends and patterns (i.e., five major unusual incidents of any kind within six months, ten major unusual incidents of any kind within a year, or other pattern identified by the individual's team);

(h) Specific trends by residence, region, or program;

(i) Previously identified trends and patterns; and

(j) Action plans and preventive measures to address noted trends and patterns.

(3) County boards shall conduct the analysis and implement follow-up actions for all programs operated by county boards such as workshops, schools, and transportation. The county board shall send its analysis and follow-up actions to the department by August thirty-first of each year for the semi-annual review and by February twenty-eighth of each year for the annual review. The department shall review the analysis to ensure that all issues have been reasonably addressed to prevent recurrence.

(4) Providers shall conduct the analysis, implement follow-up actions, and send the analysis and follow-up actions to the county board for all programs operated in the county by August thirty-first of each year for the semi-annual review and by February twenty-eighth of each year for the annual review. The county board shall review the analysis to ensure that all issues have been reasonably addressed to prevent recurrence. The county board shall keep the analyses and follow-up actions on file and make them available to the department upon request.

(5) The county board shall ensure that trends and patterns of major unusual incidents are included and addressed in the individual service plan of each individual affected.

(6) Each county board or as applicable, each council of governments to which county boards belong, shall have a committee that reviews trends and patterns of major unusual incidents. The committee shall be made up of a reasonable representation of the county board(s), providers, individuals who receive services and their families, and other stakeholders deemed appropriate by the committee.

(a) The role of the committee shall be to review and share the county or council of governments aggregate data prepared by the county board or council of governments to identify trends, patterns, or areas for improving the quality of life for individuals served in the county or counties.

(b) The committee shall meet each September to review and analyze data for the first six months of the calendar year and each March to review and analyze data for the preceding calendar year. The county board or council of governments shall send the aggregate data prepared for the meeting to all participants at least ten calendar days in advance of the meeting.

(c) The county board or council of governments shall record and maintain minutes of each meeting, distribute the minutes to members of the committee, and make the minutes available to any person upon request.

(d) The county board shall ensure follow-up actions identified by the committee have been implemented.

(7) The department shall prepare a report on trends and patterns identified through the process of reviewing major unusual incidents. The department shall periodically, but at least semi-annually, review this report with a committee appointed by the director of the department which shall consist of at least six members who represent various stakeholder groups, including disability rights Ohio and the Ohio department of medicaid. The committee shall make recommendations to the department regarding whether appropriate actions to ensure the health and welfare of individuals served have been taken. The committee may request that the department obtain additional information as may be necessary to make recommendations.

(M) Requirements for unusual incidents

(1) Unusual incidents shall be reported and investigated by the provider.

(2) Each agency provider shall develop and implement a written unusual incident policy and procedure that:

(a) Identifies what is to be reported as an unusual incident which shall include unusual incidents as defined in this rule;

(b) Requires an employee who becomes aware of an unusual incident to report it to the person designated by the agency provider who can initiate proper action;

(c) Requires the report to be made no later than twenty-four hours after the occurrence of the unusual incident; and

(d) Requires the agency provider to investigate unusual incidents, identify the cause and contributing factors when applicable, and develop preventive measures to protect the health and welfare of any at-risk individuals.

(3) The agency provider shall ensure that all staff are trained and knowledgeable regarding the unusual incident policy and procedure.

(4) If the unusual incident occurs at a site operated by the county board or at a site operated by an entity with which the county board contracts, the county board or contract entity shall notify the licensed provider or staff, guardian, or other person whom the individual has identified, as applicable, at the individual's residence. The notification shall be made on the same day the unusual incident is discovered.

(5) Independent providers shall complete an incident report, notify the individual's guardian or other person whom the individual has identified, as applicable, and forward the incident report to the service and support administrator or county board designee on the same day the unusual incident is discovered.

(6) Each agency provider and independent provider shall review all unusual incidents as necessary, but no less than monthly, to ensure appropriate preventive measures have been implemented and trends and patterns identified and addressed as appropriate.

(7) The unusual incident reports, documentation of identified trends and patterns, and corrective action shall be made available to the county board and department upon request.

(8) Each agency provider and independent provider shall maintain a log of all unusual incidents. The log shall include, but is not limited to, the name of the individual, a brief description of the unusual incident, any injuries, time, date, location, and preventive measures.

(9) The agency provider and the county board shall ensure that trends and patterns of unusual incidents are included and addressed in the individual service plan of each individual affected.

(N) Oversight

(1) The county board shall review, on at least a quarterly basis, a representative sample of provider logs, including logs where the county board is a provider, to ensure that major unusual incidents have been reported, preventive measures have been implemented, and that trends and patterns have been identified and addressed in accordance with this rule. The sample shall be made available to the department for review upon request.

(2) When the county board is a provider, the department shall review, on a monthly basis, a representative sample of county board logs to ensure that major unusual incidents have been reported, preventive measures have been implemented, and that trends and patterns have been identified and addressed in accordance with this rule. The county board shall submit the specified logs to the department upon request.

(3) The department shall conduct reviews of county boards and providers as necessary to ensure the health and welfare of individuals and compliance with this rule. Failure to comply with this rule may be considered by the department in any regulatory capacity, including certification, licensure, and accreditation.

(O) Access to records

(1) Reports made under section 5123.61 of the Revised Code and this rule are not public records as defined in section 149.43 of the Revised Code. Records may be provided to parties authorized to receive them in accordance with sections 5123.613 and 5126.044 of the Revised Code, to any governmental entity authorized to investigate the circumstances of the alleged abuse, neglect, misappropriation, or exploitation and to any party to the extent that release of a record is necessary for the health or welfare of an individual.

(2) A county board or the department shall not review, copy, or include in any report required by this rule a provider's personnel records that are confidential under state or federal statutes or rules, including medical and insurance records, workers' compensation records, employment eligibility verification (I-9) forms, and social security numbers. The provider shall redact any confidential information contained in a record before copies are provided to the county board or the department. A provider shall make all other records available upon request by a county board or the department.

(3) Any party entitled to receive a report required by this rule may waive receipt of the report. Any waiver of receipt of a report shall be made in writing.

(P) Training

(1) Agency providers and county boards shall ensure staff employed in direct services positions are trained on the requirements of this rule prior to direct contact with any individual. Thereafter, staff employed in direct services positions shall receive annual training on the requirements of this rule including a review of health and welfare alerts issued by the department since the previous year's training.

(2) Agency providers and county boards shall ensure staff employed in positions other than direct services positions are trained on the requirements of this rule no later than ninety days from date of hire. Thereafter, staff employed in positions other than direct services positions shall receive annual training on the requirements of this rule including a review of health and welfare alerts issued by the department since the previous year's training.

(3) Independent providers shall be trained on the requirements of this rule prior to application for initial certification in accordance with rule 5123:2-2-01 of the Administrative Code and shall receive annual training on the requirements of this rule including a review of health and welfare alerts issued by the department since the previous year's training.

Replaces: 5123:2-17-02

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Effective: 09/03/2013
R.C. 119.032 review dates: 09/03/2018
Promulgated Under: 119.03
Statutory Authority: 5123.04 , 5123.19 , 5123.61 , 5123.611 , 5123.612 , 5123.613 , 5123.614 , 5126.311 , 5126.313 , 5126.333 , 5126.34
Rule Amplifies: 2151.421 , 5123.04 , 5123.093 , 5123.19 , 5123.61 , 5123.611 , 5123.612 , 5123.613 , 5123.614 , 5123.62 , 5126.044 , 5126.221 , 5126.30 , 5126.31 , 5126.311 , 5126.313 , 5126.333 , 5126.34
Prior Effective Dates: 10/31/1977, 06/12/1981, 07/01/1982, 09/30/1983, 01/12/1985, 07/25/1985, 12/12/1985, 03/03/1990, 09/25/1997, 11/23/2001, 03/17/2005, 01/01/2007, 07/01/2007

5123:2-17-03 Abuser registry.

(A) Purpose

The purpose of this rule is to set forth procedures to be used to determine whether the name of a DD employee should be placed on the registry established under section 5123.52 of the Revised Code and standards for determining whether such employee has been rehabilitated.

(B) Application

This rule shall apply to all DD employees and any person or governmental entity employing, hiring, or contracting with a DD employee.

(C) Definitions

(1) "DD employee" means at the time of the incident any of the following:

(a) An employee of the department;

(b) An employee of a county board of developmental disabilities; or

(c) A person who is employed in a position that includes providing specialized services to an individual.

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

(3) "Director" means the director of the department, unless otherwise stated, or the director's designee.

(4) "Individual" means a person with a developmental disability.

(5) "Registry" means the registry established under section 5123.52 of the Revised Code of DD employees found to have committed abuse, neglect, misappropriation, a failure to report, or engaged in prohibited sexual relations.

(6) "Registry offense" means the acts set forth in division (C)(3)(a) of section 5123.51 of the Revised Code.

(7) "Specialized services" means any program or service designed and operated to serve primarily individuals, including a program or service provided by an entity licensed or certified by the department. A program or service available to the general public is not a specialized service.

(D) Registry review committee

(1) The department shall establish a committee to review the facts of a case and make a recommendation regarding whether there is a reasonable basis for believing that a DD employee committed a registry offense.

(a) The review committee shall consist of at least five members who represent various stakeholder groups.

(b) The director shall appoint members of the review committee for a term of four years, except that a member may be appointed for a term of less than four years in order to stagger the members' terms, so that no more than half of the members' terms expire in the same year. Members may be reappointed or removed by the director.

(c) Members shall agree in writing to maintain the confidentiality of all information and proceedings before the committee.

(2) If the department determines a case is appropriate for consideration by the review committee, the department shall present the case to the review committee. If the DD employee has been convicted of a criminal offense for the same incident, the case need not be reviewed by the review committee. The department shall consider the review committee's recommendation and determine whether there is a reasonable basis for believing that a DD employee has committed a registry offense.

(3) If there is a reasonable basis for believing that a DD employee has committed a registry offense, the department shall provide notification to the DD employee of the charges against the DD employee and the DD employee's right to a hearing if timely requested.

(E) Hearing procedure

(1) Before conducting a hearing, the department shall determine whether any criminal proceeding or collective bargaining arbitration arising from the same allegation has concluded. The department may conduct a hearing before a criminal proceeding concerning the same allegation is concluded if the department notifies the prosecutor responsible for the criminal proceeding that the department proposes to conduct a hearing and the prosecutor consents to the hearing.

(2) Except as otherwise provided by statute, all hearing and adjudication proceedings shall be conducted in accordance with the requirements set forth in Chapter 119. of the Revised Code. Nothing in this rule precludes a DD employee from waiving his or her rights.

(3) If the DD employee timely requests a hearing, the director shall appoint an independent hearing officer to conduct the hearing. If the DD employee is an employee of the department and is represented by a union, the director and a representative of the union shall jointly select the hearing officer.

(4) At least fifteen days prior to the date set for hearing, upon request by either party, the department and the DD employee whose name is being considered for placement on the registry shall exchange witness lists and lists of exhibits to be introduced at the hearing. The hearing officer may extend the time for good cause shown.

(5) The hearing officer shall conduct a hearing for the purpose of determining whether the department has established by clear and convincing evidence that the DD employee has committed a registry offense.

(6) If the director or, if applicable, the director of the Ohio department of health or that director's designee, determines that the DD employee's name should be placed on the registry, the director shall sign an adjudication order directing that the DD employee's name be placed on the registry and provide notice to the DD employee.

(7) The department shall send copies of the order to the individual who was the subject of the report, the individual's guardian, the attorney general, the prosecuting attorney or other law enforcement agency, and to any person or governmental entity that employs or contracts with the DD employee. Any notified person or entity employing or contracting with the DD employee shall, within ten days of notification, inform the department of the DD employee's employment status. If the DD employee holds a license, certification, registration, or other authorization to engage in a profession issued pursuant to Chapter 3319. of the Revised Code or Title 47 of the Revised Code, the director shall notify the entity responsible for regulating the DD employee's professional practice. If the department has issued to the DD employee, a license, certification, registration, or other authorization to provide services, the department shall initiate the process to revoke the license, certification, registration, or authorization.

(F) Check of registry

(1) The department shall maintain a process to be used to determine whether a person's name has been placed on the registry. The process shall ensure that parties submitting inquiries can accurately determine whether the person about whom an inquiry is made is the person whose name is on the registry, while also ensuring that confidential information about the person is not made public. The process shall specify both electronic and non-electronic means by which inquiries may be made.

(2) The department shall maintain a procedure setting forth the manner in which parties making inquiries shall be informed of the result. The procedure shall ensure that parties making inquiries by electronic means receive an immediate response and that parties making inquiries by non-electronic means receive a response within three working days.

(3) Any person or governmental entity seeking to hire, contract with, or employ a person as an employee of the department, county board of developmental disabilities, or in a position that provides specialized services to an individual shall make an inquiry to the department regarding whether the person's name is on the registry. If the subject of the inquiry is on the registry, the inquiring party shall not hire, contract with, or employ the person in any of these capacities.

(G) Petition for removal from registry

(1) A person whose name has been placed on the registry may petition the director to have the person's name removed from the registry.

(2) Any petition for removal from the registry must be made in writing to the director. The petition shall include the name of the person, the action for which the person's name was placed on the registry, and any reasons demonstrating the appropriateness of removal of the person's name.

(3) Upon receipt of a petition for removal, the department shall notify the individual who was the victim of the action for which the person's name was placed on the registry, the individual's guardian, and any other persons to whom the department determines notification should be given. Any party receiving the notification shall have the right to send written comments regarding the petition to the department.

(4) The director shall consider the petition, along with any comments received from any person regarding the petition, and shall determine whether good cause exists to remove the person's name from the registry.

(5) A petition claiming that good cause for removal exists because the person has satisfied the rehabilitation standards set forth in paragraph (G)(6)(c) of this rule can be filed no earlier than five years from the date the person's name was placed on the registry. If the person has previously made a petition to have the person's name removed from the registry based on the rehabilitation standards set forth in paragraph (G)(6)(c) of this rule, the director shall not consider any subsequent petition unless at least two years have passed since the previous petition was filed. If good cause exists, the director may waive the timelines set forth in this paragraph, except that the director may not remove a person's name from the registry until one year after the date the person's name was placed on the registry.

(6) In determining whether good cause exists, the director shall consider the following:

(a) Whether a criminal conviction arising from the act that resulted in the person's name being placed on the registry has been subsequently reversed on appeal, and no new conviction on the same charge has occurred.

(b) Whether new, substantial, and material evidence has been discovered which would indicate that the person did not commit the act for which the person's name was placed on the registry. The person claiming that such new evidence has been discovered shall provide a detailed description of said evidence, along with a statement of the reasons for the failure to discover the evidence prior to the adjudication hearing.

(c) Whether the person can demonstrate that the person has been rehabilitated. In determining whether a person has been rehabilitated, the director shall consider the following factors:

(i) The nature and seriousness of the act for which the person's name was placed on the registry, including whether the person was criminally convicted for the act;

(ii) Whether the person has been convicted of any crimes other than those related to the act for which the person's name was placed on the registry;

(iii) Whether the person, at the time of the incident, sought immediate medical attention for the individual if necessary, timely reported the incident, and accurately related the facts of the incident including the person's part in the incident;

(iv) The time elapsed since the person's name was placed on the registry;

(v) The person's efforts at rehabilitation and the result of those efforts;

(vi) Personal references provided by the person;

(vii) The person's employment history; and

(viii) Any other relevant factors.

(7) The director shall inform the person in writing of the outcome of the petition within ninety days of receipt of the petition. The director's decision is final and may not be appealed.

(8) If the director determines that good cause exists to remove a person's name from the registry, the director shall issue an order directing that the person's name be removed from the registry. If a person's name has been removed from the registry, the department shall respond to any inquiries regarding whether the person's name is currently on the registry in the negative, and shall not, unless the information is specifically requested, disclose the fact that the person's name was previously on the registry. The department will notify the parties set out in paragraph (E)(7) of this rule that the person's name has been removed from the registry.

(H) Information contained in the registry is a public record for the purposes of section 149.43 of the Revised Code.

Replaces: 5123:2-17-03

Effective: 04/05/2012
R.C. 119.032 review dates: 04/05/2017
Promulgated Under: 119.03
Statutory Authority: 5123.04 , 5123.54
Rule Amplifies: 5123.04 , 5123.50 to 5123.542
Prior Effective Dates: 08/05/2001, 09/01/2006

5123:2-17-04 Standards for the substantiation of abuse or neglect. [Rescinded].

Rescinded eff 1-1-07