Chapter 5123:2-2 Certification of Supported Living Services Providers

5123:2-2-01 Provider certification.

(A) Purpose

This rule establishes procedures and standards for certification of providers of supported living services including home and community-based services provided in accordance with section 5123.045 of the Revised Code. This rule does not apply to a person or government entity licensed as a residential facility pursuant to section 5123.19 of the Revised Code.

(B) Definitions

(1) "Agency provider" means an entity, including a county board, that directly employs at least one person in addition to the chief executive officer for the purpose of providing services for which the entity must be certified under this rule.

(2) "Applicant" means a person, agency, or county board seeking to become a certified provider.

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

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

(5) "Direct services position" has the same meaning as in section 5123.081 of the Revised Code.

(6) "Home and community-based services" has the same meaning as in section 5123.01 of the Revised Code.

(7) "Independent provider" means a self-employed person who provides services for which he or she must be certified under this rule and does not employ, either directly or through contract, anyone else to provide the services.

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

(9) "Provider" means an agency provider or an independent provider.

(10) "Related party" has the same meaning as in section 5123.16 of the Revised Code.

(C) Requirements for independent provider certification

(1) An independent provider shall:

(a) Be at least eighteen years of age.

(b) Have a valid social security number and one of the following forms of identification:

(i) State of Ohio identification;

(ii) Valid driver's license; or

(iii) Other government-issued photo identification.

(c) Hold a high school diploma or general education development certificate, except for:

(i) Persons who, on September 30, 2009, held independent provider certification issued by the department; and

(ii) Persons who, on September 30, 2009, were employed by or under contract with an agency provider certified by the department.

(d) Be able to read, write, and understand English at a level sufficient to comply with all requirements set forth in administrative rules governing the services provided.

(e) Hold valid "American Red Cross" or equivalent certification in first aid which includes an in-person skills assessment completed with an approved trainer, except for providers of services exempted in accordance with paragraph (E)(1) of this rule.

(f) Hold valid "American Red Cross" or equivalent certification in cardiopulmonary resuscitation which includes an in-person skills assessment completed with an approved trainer, except for providers of services exempted in accordance with paragraph (E)(1) of this rule.

(g) Disclose or report in writing to the department within fourteen days if he or she is or becomes a related party of a person or government entity for which the department refused to issue or renew or revoked a supported living certificate pursuant to section 5123.166 of the Revised Code.

(h) Disclose or report in writing to the department if he or she has been or is ever formally charged with, convicted of, or pleads guilty to any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code within fourteen days after the date of such charge, conviction, or guilty plea.

(i) Undergo a background investigation in accordance with rule 5123:2-2-02 of the Administrative Code and consent to be enrolled in the Ohio attorney general's retained applicant fingerprint database ("Rapback").

(j) Provide and maintain on file with the department, current United States mail and electronic mail addresses.

(k) Meet with a representative of the county board after being selected to provide services to an individual and prior to providing services, to discuss the independent provider's responsibilities and requirements set forth in the individual service plan.

(l) Participate as requested by the department in service delivery system data collection initiatives.

(m) Comply with the requirements of this rule and other standards and assurances established under Chapter 5123. of the Revised Code and rules in Chapter 5123:2-9 of the Administrative Code for the specific home and community-based services provided.

(2) Prior to application for initial independent provider certification, an applicant shall have successfully completed:

(a) Department-provided web-based orientation for independent providers.

(b) Eight hours of training in accordance with standards established by the department that addresses the following topics, except for providers of services exempted in accordance with paragraph (E)(1) of this rule:

(i) Overview of serving individuals with developmental disabilities including implementation of individual service plans;

(ii) An independent provider's role and responsibilities with regard to services including person-centered planning, community integration, self-determination, and self-advocacy;

(iii) Universal precautions for infection control including hand washing and the disposal of bodily waste;

(iv) The rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(v) The requirements of rule 5123:2-17-02 of the Administrative Code including a review of health and welfare alerts issued by the department.

(3) Within sixty days of first providing services, an independent provider shall successfully complete training in accordance with standards established by the department in:

(a) Service documentation; and

(b) Billing for services.

(4) Commencing in the second year of certification, an independent provider shall successfully complete annual training in accordance with standards established by the department in:

(a) An independent provider's role and responsibilities with regard to services including person-centered planning, community integration, self-determination, and self-advocacy;

(b) The rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(c) The requirements of rule 5123:2-17-02 of the Administrative Code including a review of health and welfare alerts issued by the department since the previous year's training.

(D) Requirements for agency provider certification

(1) An agency provider shall employ a chief executive officer who:

(a) Is at least twenty-one years of age.

(b) Has a valid social security number and one of the following forms of identification:

(i) State of Ohio identification;

(ii) Valid driver's license; or

(iii) Other government-issued photo identification.

(c) Holds a high school diploma or general education development certificate.

(d) Either:

(i) Holds a bachelor's degree from an accredited college or university; or

(ii) Has at least four years of full-time (or equivalent part-time) paid work experience as a supervisor of programs or services for individuals with developmental disabilities.

(e) Is able to read, write, and understand English at a level sufficient to comply with all requirements set forth in administrative rules governing the services provided.

(f) Has at least one year of full-time (or equivalent part-time) paid work experience in the provision of services for individuals with developmental disabilities which included responsibility for:

(i) Personnel matters;

(ii) Supervision of employees;

(iii) Program services; and

(iv) Financial management.

(g) Except for a person who, on the day immediately prior to the effective date of this rule, was employed by or under contract with an agency provider as the chief executive officer, successfully completes, within thirty days of initial certification or within thirty days of hire as the chief executive officer, department-provided web-based orientation for chief executive officers of agency providers.

(h) Except for a person who, on the day immediately prior to the effective date of this rule, was employed by or under contract with an agency provider as the chief executive officer, successfully completes, within sixty days of initial certification or within sixty days of hire as the chief executive officer, training in accordance with standards established by the department in:

(i) Service documentation;

(ii) Billing for services;

(iii) Internal compliance programs;

(iv) The rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(v) The requirements of rule 5123:2-17-02 of the Administrative Code including a review of health and welfare alerts issued by the department.

(i) Successfully completes, commencing in the second year of certification or employment as the chief executive officer, annual training in accordance with standards established by the department in:

(i) An agency provider's role and responsibilities with regard to services including person-centered planning, community integration, self-determination, and self-advocacy;

(ii) The rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(iii) The requirements of rule 5123:2-17-02 of the Administrative Code including a review of health and welfare alerts issued by the department since the previous year's training.

(j) Undergoes a background investigation in accordance with rule 5123:2-2-02 of the Administrative Code and consents to be enrolled in the Ohio attorney general's retained applicant fingerprint database ("Rapback").

(2) The chief executive officer or another person designated in writing by the chief executive officer to be responsible for administration of the agency provider shall be directly and actively involved in day-to-day operation of the agency provider and oversee provision of services by the agency provider. When the chief executive officer designates another person to be responsible for administration of the agency provider in accordance with this paragraph, both the chief executive officer and the designated person shall meet the requirements set forth in paragraph (D)(1) of this rule. The agency provider shall report in writing to the department within fourteen days when the chief executive officer designates another person to be responsible for administration of the agency provider.

(3) An agency provider shall disclose or report in writing to the department if the chief executive officer or other person responsible for administration of the agency provider has been or is ever formally charged with, convicted of, or pleads guilty to any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code within fourteen days after the date of such charge, conviction, or guilty plea.

(4) An agency provider shall disclose or report in writing to the department within fourteen days if the chief executive officer or other person responsible for administration of the agency provider is or becomes a related party of a person or government entity for which the department refused to issue or renew or revoked a supported living certificate pursuant to section 5123.166 of the Revised Code.

(5) An agency provider shall report in writing to the department within fourteen days when the chief executive officer or other person responsible for administration of the agency provider leaves the agency provider's employ. The notification shall indicate when the agency provider anticipates filling the position and to whom executive authority has been delegated in the interim.

(6) An agency provider shall provide to the department the name, country of birth, date of birth, and social security number for any person owning a financial interest of five per cent or more in the agency provider (including a direct, indirect, security, or mortgage financial interest).

(7) An agency provider shall comply with the requirements of this rule and other standards and assurances established under Chapter 5123. of the Revised Code and rules in Chapter 5123:2-9 of the Administrative Code for the specific home and community-based services provided.

(8) An applicant for initial agency provider certification shall submit to the department:

(a) Written policies and procedures that address the agency provider's management practices in the following areas:

(i) Person-centered planning and self-determination;

(ii) Confidentiality of individuals' records;

(iii) Management of individuals' funds;

(iv) Incident reporting and investigation;

(v) Individuals' satisfaction with services delivered;

(vi) Internal monitoring and evaluation procedures to improve services delivered;

(vii) Supervision of staff;

(viii) Staff training plan; and

(ix) Annual written notice to each of its employees and contractors explaining the conduct for which the employee or contractor or the contractor's employees may be placed on the abuser registry and setting forth the requirement for each employee, contractor, and employee of a contractor who is engaged in a direct services position to report in writing to the agency provider, if he or she is every formally charged with, convicted of, or pleads guilty to any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code within fourteen days after the date of such charge, conviction, or guilty plea.

(b) A certificate of good standing from the Ohio secretary of state demonstrating the agency provider's status as a for-profit corporation, nonprofit corporation, limited liability company, or limited liability partnership.

(c) An employer identification number from the internal revenue service.

(d) An employer identification number from the bureau of workers' compensation.

(e) A certificate of comprehensive general liability insurance in the amount of at least five hundred thousand dollars.

(9) An agency provider shall provide and maintain on file with the department, current United States mail and electronic mail addresses.

(10) An agency provider shall demonstrate that it has an established internal system to ensure compliance with requirements for:

(a) Provider certification in accordance with this rule;

(b) Background investigations and appropriate actions in accordance with rule 5123:2-2-02 of the Administrative Code for its chief executive officer, other person responsible for administration of the agency provider (if applicable), and each employee, contractor, and employee of a contractor who is engaged in a direct services position; and

(c) Service delivery, service documentation, and billing for services in accordance with rules in Chapter 5123:2-9 of the Administrative Code for the specific home and community-based services provided.

(11) An agency provider shall maintain comprehensive general liability insurance in the amount of at least five hundred thousand dollars.

(12) An agency provider shall comply with all applicable federal, state, and local regulations, statutes, rules, codes, and ordinances pertaining to employment of staff including, but not limited to, wage and hour, workers' compensation, unemployment compensation, and withholding taxes.

(13) An agency provider shall be current in payment of payroll taxes, workers' compensation premiums, and unemployment compensation premiums.

(14) An agency provider shall conduct background investigations and take appropriate actions in accordance with rule 5123:2-2-02 of the Administrative Code for its chief executive officer, other person responsible for administration of the agency provider (if applicable), and each employee, contractor, and employee of a contractor who is engaged in a direct services position.

(15) An agency provider shall enroll each employee, contractor, and employee of a contractor who is engaged in a direct services position in the Ohio attorney general's retained applicant fingerprint database ("Rapback").

(a) An employee, contractor, and employee of a contractor who is engaged in a direct services position employed by or under contract with the agency provider on the day immediately prior to the effective date of this rule shall be enrolled in "Rapback" at the point he or she is next subject to a criminal records check by the bureau of criminal identification and investigation in accordance with rule 5123:2-2-02 of the Administrative Code.

(b) An employee, contractor, and employee of a contractor who is engaged in a direct services position hired or engaged by the agency provider on or after the effective date of this rule shall be enrolled in "Rapback" at the point of his or her initial criminal records check by the bureau of criminal identification and investigation in accordance with rule 5123:2-2-02 of the Administrative Code.

(16) An agency provider shall participate as requested by the department in service delivery system data collection initiatives such as the national core indicators staff stability survey.

(17) An agency provider shall ensure that each employee, contractor, and employee of a contractor engaged in a direct services position:

(a) Is at least eighteen years of age.

(b) Has a valid social security number and one of the following forms of identification:

(i) State of Ohio identification;

(ii) Valid driver's license; or

(iii) Other government-issued photo identification.

(c) Holds a high school diploma or general education development certificate, except for:

(i) Persons who, on September 30, 2009, held independent provider certification issued by the department; and

(ii) Persons who, on September 30, 2009, were employed by or under contract with an agency provider certified by the department.

(d) Is able to read, write, and understand English at a level sufficient to comply with all requirements set forth in administrative rules governing the services provided.

(e) Holds valid "American Red Cross" or equivalent certification in first aid which includes an in-person skills assessment completed with an approved trainer, except for employees, contractors, and employees of contractors engaged in provision of services exempted in accordance with paragraph (E)(1) or (E)(2) of this rule.

(f) Holds valid "American Red Cross" or equivalent certification in cardiopulmonary resuscitation which includes an in-person skills assessment completed with an approved trainer, except for employees, contractors, and employees of contractors engaged in provision of services exempted in accordance with paragraph (E)(1) or (E)(2) of this rule.

(g) Successfully completes, prior to providing direct services, eight hours of training in accordance with standards established by the department that addresses the following topics, except for employees, contractors, and employees of contractors engaged in provision of services exempted in accordance with paragraph (E)(1) of this rule:

(i) Overview of serving individuals with developmental disabilities including implementation of individual service plans;

(ii) The role and responsibilities of direct services staff with regard to services including person-centered planning, community integration, self-determination, and self-advocacy;

(iii) Universal precautions for infection control including hand washing and the disposal of bodily waste;

(iv) The rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(v) The requirements of rule 5123:2-17-02 of the Administrative Code including a review of health and welfare alerts issued by the department.

(h) Successfully completes, prior to providing direct services, training specific to each individual he or she will support that includes:

(i) What is important to the individual and what is important for the individual; and

(ii) The individual's support needs including, as applicable, behavioral support strategy, management of the individual's funds, and medication administration/delegated nursing.

(i) If he or she supervises staff in direct services positions, successfully completes within ninety days of becoming a supervisor, training in accordance with the agency provider's policies and procedures regarding:

(i) Service documentation;

(ii) Billing for services; and

(iii) Management of individuals' funds.

(j) Successfully completes, commencing in the second year of employment or contract, annual training in accordance with standards established by the department in:

(i) The role and responsibilities of direct services staff with regard to services including person-centered planning, community integration, self-determination, and self-advocacy;

(ii) The rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(iii) The requirements of rule 5123:2-17-02 of the Administrative Code including a review of health and welfare alerts issued by the department since the previous year's training.

(E) Exemptions from some requirements for providers of some home and community-based services

(1) Independent providers and the employees, contractors, and employees of contractors of agency providers of the following home and community-based services are exempt from the requirements to hold first aid certification set forth, as applicable, in paragraph (C)(1)(e) or (D)(17)(e) of this rule; to hold cardiopulmonary resuscitation certification set forth, as applicable, in paragraph (C)(1)(f) or (D)(17)(f) of this rule; and to complete eight hours of training set forth, as applicable, in paragraph (C)(2)(b) or (D)(17)(g) of this rule except that each independent provider and each employee, contractor, and employee of a contractor who is engaged in a direct services position shall complete training in the requirements of rule 5123:2-17-02 of the Administrative Code:

(a) Clinical/therapeutic intervention in accordance with rule 5123:2-9-41 of the Administrative Code;

(b) Community inclusion-transportation provided by operators of commercial vehicles in accordance with rule 5123:2-9-42 of the Administrative Code, except when the operators of commercial vehicles are under contract with a county board to provide community inclusion-transportation, in which case the operators of commercial vehicles shall not be exempt;

(c) Environmental accessibility adaptations in accordance with rule 5123:2-9-23 of the Administrative Code;

(d) Functional behavioral assessment in accordance with rule 5123:2-9-43 of the Administrative Code;

(e) Home-delivered meals in accordance with rule 5123:2-9-29 of the Administrative Code;

(f) Informal respite only when the provider provides informal respite solely to his or her own family member in accordance with rule 5123:2-9-21 of the Administrative Code;

(g) Integrated employment only when provided by an independent provider who is the individual's coworker or otherwise employed at the work site in accordance with rule 5123:2-9-44 of the Administrative Code;

(h) Interpreter services in accordance with rule 5123:2-9-36 of the Administrative Code;

(i) Non-medical transportation provided by operators of commercial vehicles in accordance with rule 5123:2-9-18 of the Administrative Code, except when the operators of commercial vehicles are under contract with a county board to provide non-medical transportation, in which case the operators of commercial vehicles shall not be exempt;

(j) Nutrition services in accordance with rule 5123:2-9-28 of the Administrative Code;

(k) Participant/family stability assistance in accordance with rule 5123:2-9-46 of the Administrative Code;

(l) Personal emergency response systems in accordance with rule 5123:2-9-26 of the Administrative Code;

(m) Remote monitoring equipment in accordance with rule 5123:2-9-35 of the Administrative Code;

(n) Social work in accordance with rule 5123:2-9-38 of the Administrative Code;

(o) Specialized medical equipment and supplies in accordance with rule 5123:2-9-25 of the Administrative Code;

(p) Support brokerage in accordance with rule 5123:2-9-47 of the Administrative Code; and

(q) Transportation provided by operators of commercial vehicles in accordance with rule 5123:2-9-24 of the Administrative Code, except when the operators of commercial vehicles are under contract with a county board to provide transportation, in which case the operators of commercial vehicles shall not be exempt.

(2) Employees, contractors, and employees of contractors of agency providers of remote monitoring in accordance with rule 5123:2-9-35 of the Administrative Code are exempt from the requirements to hold first aid certification set forth in paragraph (D)(17)(e) of this rule and to hold cardiopulmonary resuscitation certification set forth in paragraph (D)(17)(f) of this rule.

(F) Standards of service provision

(1) An independent provider and the chief executive officer, person responsible for administration, employees, contractors, and employees of contractors of an agency provider shall:

(a) Provide services only to individuals whose needs he or she can meet.

(b) Provide services in a person-centered manner.

(c) Be able to effectively communicate with each individual receiving services.

(d) Be knowledgeable in the individual service plan for each individual served prior to providing services to the individual.

(e) Implement services in accordance with the individual service plan.

(f) Take all reasonable steps necessary to prevent the occurrence or recurrence of incidents adversely affecting health and safety of individuals served.

(g) Comply with the requirements of rule 5123:2-2-06 of the Administrative Code.

(h) Arrange for substitute coverage, if necessary, only from a provider certified or approved by the department and as identified in the individual service plan; notify the individual or legally responsible persons in the event that substitute coverage is necessary; and notify the person identified in the individual service plan when substitute coverage is not available to allow such person to make other arrangements.

(i) Notify, in writing, the individual or the individual's guardian and the individual's service and support administrator in the event that the provider intends to cease providing services to the individual no less than thirty days prior to termination of services. If, however, an independent provider intends to cease providing services to an individual because the health or safety of the independent provider is at serious and immediate risk, the provider shall immediately notify the county board by calling the county board's twenty-four hour emergency telephone number; once the board has been notified, the independent provider may cease providing services.

(2) An independent provider and the chief executive officer, person responsible for administration, employees, contractors, and employees of contractors of an agency provider shall not:

(a) Provide services to his or her minor (under age eighteen) child or his or her spouse;

(b) Engage in sexual conduct or have sexual contact with an individual for whom he or she is providing care;

(c) Administer any medication to or perform health care tasks for individuals who receive services unless he or she meets the applicable requirements of Chapters 4723., 5123., and 5126. of the Revised Code and rules adopted under those chapters; or

(d) Use or be under the influence of the following while providing services:

(i) Alcohol;

(ii) Illegal drugs;

(iii) Illegal chemical substances; or

(iv) Controlled substances that may adversely affect his or her ability to furnish services.

(G) Procedure for obtaining initial certification

(1) The applicant shall submit an application to the department, via the department's website (http://dodd.ohio.gov/providers/certificationlicensure/ pages/default.aspx), for supported living services and the home and community-based services the applicant seeks to deliver in accordance with procedures prescribed by the department.

(2) The applicant shall submit supporting documentation as evidence that standards are met as required by this rule and service-specific standards established under Chapter 5123. of the Revised Code and Chapter 5123:2-9 of the Administrative Code.

(3) An application is considered complete when the department has received from the applicant all completed components of the application, including applicable signatures and supporting documentation that demonstrates compliance with the certification standards for the services the applicant is seeking to deliver, and the application fee specified in paragraph (L) of this rule.

(4) When the application is complete, the department shall review the application and notify the applicant by electronic mail of its decision to approve or deny certification within thirty days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific services for which the applicant is approved. When the department approves certification for an applicant seeking to deliver home and community-based services, the department shall initiate the process for the applicant to obtain a medicaid provider number from the Ohio department of medicaid; the department shall notify the certified provider by electronic mail within ten days of receipt of the medicaid provider number.

(5) When the application is incomplete, the department shall, within thirty days of receipt of the application, notify the applicant by electronic mail that the application is deficient and advise that the applicant has thirty days to submit components needed to complete the application.

(a) When components are received by the department within the specified thirty days that result in a complete application, the department shall review the application and notify the applicant by electronic mail of its decision to approve or deny the certification within thirty days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific services for which the applicant is approved. When the department approves certification for an applicant seeking to deliver home and community-based services, the department shall initiate the process for the applicant to obtain a medicaid provider number from the Ohio department of medicaid; the department shall notify the certified provider by electronic mail within ten days of receipt of the medicaid provider number.

(b) If after thirty days, the applicant fails to submit components that result in a complete application, the department shall take no further action with respect to the application.

(H) Procedure for obtaining certification to provide additional home and community-based services during the term of existing department-issued certification

(1) A department-certified provider seeking to deliver additional home and community-based services shall submit an application to the department via the department's website (http://dodd.ohio.gov/providers/certificationlicensure/pages/default.aspx).

(2) The applicant shall submit supporting documentation as evidence that standards are met as required by this rule and service-specific standards established under Chapter 5123. of the Revised Code and Chapter 5123:2-9 of the Administrative Code.

(3) An application is considered complete when the department has received from the applicant all completed components of the application, including applicable signatures and supporting documentation that demonstrates compliance with the certification standards for the services the applicant is seeking to deliver, and the application fee specified in paragraph (L) of this rule.

(4) When the application is complete, the department shall review the application and notify the applicant by electronic mail of its decision to approve or deny certification within thirty days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific services for which the applicant is approved.

(5) When the application is incomplete, the department shall, within thirty days of receipt of the application, notify the applicant by electronic mail that the application is deficient and advise that the applicant has thirty days to submit components needed to complete the application.

(a) When components are received by the department within the specified thirty days that result in a complete application, the department shall review the application and notify the applicant by electronic mail of its decision to approve or deny the additional certification within thirty days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific services for which the applicant is approved.

(b) If after thirty days, the applicant fails to submit components that result in a complete application, the department shall take no further action with respect to the application.

(I) Procedure for obtaining renewal certification

(1) The department shall notify providers by electronic mail to the address on file of required certification renewal no later than ninety days prior to the date the provider's certification expires. The notification shall include the procedures for submitting the certification renewal application and application fee in accordance with this rule.

(2) The provider shall submit, via the department's website (http://dodd.ohio.gov/providers/certificationlicensure/pages/default.aspx), the certification renewal application with supporting documentation as evidence that standards are met as required by this rule and service-specific standards established under Chapter 5123. of the Revised Code and Chapter 5123:2-9 of the Administrative Code.

(3) An application is considered complete when the department has received from the applicant all completed components of the application, including applicable signatures and supporting documentation that demonstrates compliance with the certification standards for the services the applicant is seeking to deliver, and the application fee specified in paragraph (L) of this rule.

(4) When the application is complete, the department shall review the application and notify the applicant by electronic mail of its decision to approve or deny certification within thirty days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific services for which the applicant is approved.

(5) When the application is incomplete, the department shall, within thirty days of receipt of the application, notify the applicant by electronic mail that the application is deficient and advise that the applicant has thirty days to submit components needed to complete the application.

(a) When components are received by the department within the specified thirty days that result in a complete application, the department shall review the application and notify the applicant by electronic mail of its decision to approve or deny the renewal certification within thirty days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific services for which the applicant is approved.

(b) If after thirty days, the applicant fails to submit components that result in a complete application, the department shall take no further action with respect to the application.

(6) A provider's failure to submit a complete certification renewal application at least thirty days in advance of certification expiration may result in a lapse of certification during which the provider shall not provide nor be reimbursed for provision of services.

(7) A provider's failure to submit a complete certification renewal application prior to certification expiration shall result in a lapse of certification from the date of certification expiration to the date a complete certification renewal application is received by the department during which the provider shall not provide nor be reimbursed for provision of services.

(8) A provider shall not provide services nor submit claims for reimbursement for services delivered subsequent to expiration of the provider's certification.

(J) Application for certification subsequent to expiration

(1) An applicant whose certification has been expired for less than one year shall be required to apply for and meet the requirements for renewal certification.

(2) An applicant whose certification has been expired for one year or more shall be required to apply for and meet the requirements for initial certification.

(K) Certification terms

(1) Initial certification shall be issued for a term of three years.

(2) Renewal certification shall be issued for a term of three years.

(3) Certification to provide additional home and community-based services shall be issued for the remainder of the term of the applicant's existing initial certification or renewal certification.

(L) Application fees

(1) Applicants seeking certification to provide the following home and community-based services shall not be subject to an application fee:

(a) Clinical/therapeutic intervention in accordance with rule 5123:2-9-41 of the Administrative Code;

(b) Community inclusion-transportation provided by operators of commercial vehicles in accordance with rule 5123:2-9-42 of the Administrative Code;

(c) Environmental accessibility adaptations in accordance with rule 5123:2-9-23 of the Administrative Code;

(d) Functional behavioral assessment in accordance with rule 5123:2-9-43 of the Administrative Code;

(e) Home-delivered meals in accordance with rule 5123:2-9-29 of the Administrative Code;

(f) Informal respite only when the provider provides informal respite solely to his or her own family member in accordance with rule 5123:2-9-21 of the Administrative Code;

(g) Integrated employment only when provided by an independent provider who is the individual's coworker or otherwise employed at the work site in accordance with rule 5123:2-9-44 of the Administrative Code;

(h) Interpreter services in accordance with rule 5123:2-9-36 of the Administrative Code;

(i) Non-medical transportation provided by operators of commercial vehicles in accordance with rule 5123:2-9-18 of the Administrative Code;

(j) Nutrition services in accordance with rule 5123:2-9-28 of the Administrative Code;

(k) Participant/family stability assistance in accordance with rule 5123:2-9-46 of the Administrative Code;

(l) Personal emergency response systems in accordance with rule 5123:2-9-26 of the Administrative Code;

(m) Remote monitoring equipment in accordance with rule 5123:2-9-35 of the Administrative Code;

(n) Social work in accordance with rule 5123:2-9-38 of the Administrative Code;

(o) Specialized medical equipment and supplies in accordance with rule 5123:2-9-25 of the Administrative Code;

(p) Support brokerage in accordance with rule 5123:2-9-47 of the Administrative Code; and

(q) Transportation provided by operators of commercial vehicles in accordance with rule 5123:2-9-24 of the Administrative Code.

(2) Applicants seeking certification to provide services other than those specified in paragraph (L)(1) of this rule shall submit an application fee at the time of application for initial certification, application for certification to provide additional home and community-based services during the term of existing department-issued certification, and application to renew certification.

(a) Application fees for initial certification and renewal certification

(i) The application fee for an independent provider seeking initial certification or renewal certification shall be one hundred twenty-five dollars.

(ii) The application fee for a small agency provider (i.e., one that serves or plans to serve fifty or fewer individuals) seeking initial certification or renewal certification shall be eight hundred dollars.

(iii) The application fee for a large agency provider (i.e., one that serves or plans to serve fifty-one or more individuals) seeking initial certification or renewal certification shall be one thousand six hundred dollars.

(b) Application fees for certification to provide additional home and community-based services during the term of existing certification

(i) The application fee for an independent provider seeking certification to provide additional home and community-based services shall be twenty-five dollars.

(ii) The application fee for a small agency provider (i.e., one that serves or plans to serve fifty or fewer individuals) seeking certification to provide additional home and community-based services shall be seventy-five dollars.

(iii) The application fee for a large agency provider (i.e., one that serves or plans to serve fifty-one or more individuals) seeking certification to provide additional home and community-based services shall be one hundred fifty dollars.

(3) Applicants shall pay application fees by electronic funds transfer via the department's website (http://dodd.ohio.gov/providers/certificationlicensure/pages/default.aspx).

(4) Application fees are non-refundable.

(M) Denial, suspension, or revocation of certification

(1) The department may deny an application for certification based on the applicant's failure to comply with the requirements of this rule or other standards and assurances established under Chapter 5123. of the Revised Code and Chapter 5123:2-9 of the Administrative Code for the specific home and community-based services the applicant is seeking to deliver.

(2) Certified providers shall comply with the continuing certification standards set forth in this rule. Certified providers shall be subject to monitoring and compliance reviews as set forth in rules promulgated by the department. Failure to comply with the requirements set forth in this rule or other standards and assurances established under Chapter 5123. of the Revised Code and Chapter 5123:2-9 of the Administrative Code for the specific home and community-based services provided may result in corrective action by the department, up to and including suspension, denial of renewal, or revocation of certification.

(3) The department may deny, suspend, or revoke a provider's certification for good cause, including the following:

(a) Misfeasance;

(b) Malfeasance;

(c) Nonfeasance;

(d) Substantiated abuse or neglect;

(e) Financial irresponsibility;

(f) Failure to meet the requirements of this rule;

(g) Other conduct the department determines is injurious to individuals being served;

(h) Failure to comply with other applicable rules;

(i) Failure to submit claims for reimbursement for twelve consecutive months; or

(j) The conviction or guilty plea of the independent provider or the chief executive officer or other person responsible for administration of the agency provider to any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code.

(4) When denying, suspending, or revoking certification under this rule, the department shall comply with the notice and hearing requirements of Chapter 119. of the Revised Code and section 5123.166 of the Revised Code.

(5) When the department denies a renewal of certification, the provider shall comply with the department's adjudication order within thirty days of the date of the mailing of the order.

(N) Department's authority to waive provisions of this rule

(1) When requested in writing with sufficient justification that demonstrates that the health and safety of individuals will not be adversely affected, the department may grant written, time-limited permission to applicants and certified providers to waive specific provisions of this rule.

(2) The department's decision regarding the request to have a provision of this rule waived shall not be subject to appeal.

(O) Home and community-based services

Home and community-based services shall not be subject to sections 5126.40 to 5126.47 of the Revised Code.

Replaces: 5123:2-2-01

Effective: 10/1/2015
Five Year Review (FYR) Dates: 10/01/2020
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.1610
Rule Amplifies: 5123.04, 5123.045, 5123.16 , 5123.161 , 5123.162, 5123.163, 5123.164, 5123.165, 5123.166, 5123.168, 5123.169, 5123.1610, 5166.21
Prior Effective Dates: 07/03/1989 (Emer.), 09/29/1989, 04/30/1990, 07/01/1991, 07/24/1995, 04/28/2003, 07/01/2005, 10/01/2009

5123:2-2-02 Background investigations for employment.

(A) Purpose

The purpose of this rule is to establish standards for conducting background investigations on persons employed or seeking employment in Ohio's service delivery system for individuals with developmental disabilities.

(B) Definitions

(1) "Agency provider" means a person, association, corporation, nonprofit organization, partnership, trust, or other group of persons that provides specialized services and employs, directly or through contract, one or more persons in a direct services position.

(2) "Applicant" means any of the following:

(a) A person who is under final consideration for appointment to or employment with the department or a county board;

(b) A person who is being transferred to the department or a county board;

(c) An employee who is being recalled to or reemployed by the department or a county board after a layoff; or

(d) A person under final consideration for a direct services position with an agency provider or subcontractor.

(3) "Candidate" means either of the following:

(a) The chief executive officer of an agency provider that applies under section 5123.161 or 5123.164 of the Revised Code for supported living certification; or

(b) A person who applies under section 5123.161 or 5123.164 of the Revised Code for supported living certification as an independent provider.

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

(5) "Criminal records check" has the same meaning as in section 109.572 of the Revised Code.

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

(7) "Direct services position" means an employment position in which the employee has the opportunity to be alone with or exercises supervision or control over one or more individuals.

(8) "Disqualifying offense" means any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code.

(9) "Employee" means a person appointed to or employed by the department or a county board or a person employed in a direct services position by an agency provider or subcontractor. "Employee" does not mean a person who provides only respite care to his or her family member under a family support services program established under section 5126.11 of the Revised Code.

(10) "Independent provider" means a self-employed person who provides services for which he or she must be certified in accordance with rule 5123:2-2-01 of the Administrative Code 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) "Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

(13) "Multiple disqualifying offenses" means two or more convictions or guilty pleas to disqualifying offenses. Convictions or guilty pleas resulting from or connected with the same act, or resulting from offenses committed at the same time, shall be counted as one conviction or guilty plea.

(14) "Responsible entity" means:

(a) The department in the case of an applicant under final consideration for appointment to or employment with the department, being transferred to the department, or being recalled to or reemployed by the department after a layoff or a person appointed to or employed by the department;

(b) A county board in the case of an applicant under final consideration for appointment to or employment with the county board, being transferred to the county board, or being recalled to or reemployed by the county board after a layoff or a person appointed to or employed by the county board;

(c) An agency provider in the case of an applicant under final consideration for a direct services position with the agency provider or a person employed in a direct services position by the agency provider; or

(d) A subcontractor in the case of an applicant under final consideration for a direct services position with the subcontractor or a person employed in a direct services position by the subcontractor.

(15) "Specialized services" mean any program or service designed and operated to serve primarily individuals with developmental disabilities, including a program or service provided by an entity licensed or certified by the department. If there is a question as to whether a provider or subcontractor is providing specialized services, the provider or subcontractor may request that the director of the department make a determination. The director's determination is final. Programs or services available to the general public are not specialized services.

(16) "Subcontractor" means a person to which both of the following apply:

(a) The person has either of the following:

(i) A subcontract with an agency provider to provide specialized services included in the contract between the agency provider and the department or a county board; or

(ii) A subcontract with another subcontractor to provide specialized services included in a subcontract between the other subcontractor and an agency provider or other subcontractor.

(b) The person employs one or more persons in direct services positions.

(C) Requirements for responsible entities

(1) A responsible entity shall:

(a) Require an applicant to complete an employment application and provide the names and addresses of present and former employers; and

(b) Attempt to obtain references from the applicant's present and former employers and maintain written evidence that reference checks were attempted and/or completed.

(2) A responsible entity shall check each of the following databases to determine if the applicant is included:

(a) The list of excluded persons and entities maintained by the office of inspector general in the United States department of health and human services pursuant to section 1128 of the Social Security Act, 94 Stat. 2619 (1980), 42 U.S.C. 1320a-7, and section 1156 of the Social Security Act, 96 Stat. 388 (1982), 42 U.S.C. 1320c-5 (available at http://exclusions.oig.hhs.gov/);

(b) The abuser registry established pursuant to section 5123.52 of the Revised Code (available at https://its.prodapps.dodd.ohio.gov/abr_default.aspx);

(c) The nurse aide registry established pursuant to section 3721.32 of the Revised Code (available athttps://odhgateway.odh.ohio.gov/nar/nar_registry_search.aspx) and there is a statement detailing findings by the director of the Ohio department of health that the applicant or employee neglected or abused a resident of a long-term care facility or residential care facility or misappropriated property of such a resident;

(d) The sex offender and child-victim offender database established pursuant to division (A)(11) of section 2950.13 of the Revised Code (available at http://www.icrimewatch.net/index.php?AgencyID=55149&disc=);

(e) The United States general services administration system for award management database (available at https://www.sam.gov/); and

(f) The database of incarcerated and supervised offenders established pursuant to section 5120.066 of the Revised Code (available at http://www.drc.ohio.gov/OffenderSearch/Search.aspx).

(3) A responsible entity shall not employ an applicant or continue to employ an employee if the applicant or employee is included in one or more of the databases described in paragraphs (C)(2)(a) to (C)(2)(e) of this rule.

(4) A responsible entity shall verify that an applicant has a valid motor vehicle operator's license and obtain a driving record prepared by the bureau of motor vehicles if the duties of the position for which the applicant has applied require the applicant to transport individuals or to operate the responsible entity's vehicles for any other purpose. A person having six or more points on his or her driving record is prohibited from transporting individuals.

(5) Prior to employing an applicant, a responsible entity shall require an applicant to:

(a) Submit a statement to the responsible entity with the applicant's signature attesting that he or she has not been convicted of or pleaded guilty to a disqualifying offense. An applicant or employee shall disclose to the responsible entity a conviction for any offense that has been sealed.

(b) Sign an agreement under which the applicant agrees to notify the responsible entity within fourteen calendar days if, while employed by the responsible entity, the applicant is formally charged with, is convicted of, or pleads guilty to a disqualifying offense. The agreement shall provide that failure to make the notification may result in termination of the applicant's employment.

(6) A responsible entity shall request the bureau of criminal identification and investigation to conduct a criminal records check of an applicant. If an applicant does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the responsible entity shall request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. If an applicant presents proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the responsible entity may request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. For purposes of this paragraph, an applicant may provide proof of Ohio residency by presenting, with a notarized statement asserting that he or she has been a resident of Ohio for that five-year period, a valid driver's license, notification of registration as an elector, a copy of an officially filed federal or state tax form identifying the applicant's permanent residence, or any other document the responsible entity considers acceptable.

(7) A responsible entity may conditionally employ an applicant, for a period not to exceed sixty days, pending receipt of information concerning the applicant's criminal records check once the applicant submits to the responsible entity the statement required by paragraph (C)(5)(a) of this rule. The responsible entity shall terminate the applicant's employment if it is informed that the applicant has been convicted of or pleaded guilty to a disqualifying offense.

(8) Notwithstanding rule 5123:2-2-01 of the Administrative Code, a responsible entity shall, at a frequency of no less than once every five years, check the databases specified in paragraph (C)(2) of this rule and request the bureau of criminal identification and investigation to conduct a criminal records check for each employee in a direct services position. If an employee in a direct services position does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the responsible entity shall request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. If an employee in a direct services position presents proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the responsible entity may request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. For purposes of this paragraph, an employee in a direct services position may provide proof of Ohio residency by presenting, with a notarized statement asserting that he or she has been a resident of Ohio for that five-year period, a valid driver's license, notification of registration as an elector, a copy of an officially filed federal or state tax form identifying the employee's permanent residence, or any other document the responsible entity considers acceptable.

(9) A responsible entity that has not been required, prior to the effective date of this rule, to request post-hire criminal records checks of its employees shall check the databases specified in paragraph (C)(2) of this rule and ensure a criminal records check for each employee in a direct services position is conducted in accordance with paragraph (C)(8) of this rule by December 31, 2014. Thereafter, the responsible entity shall comply with paragraph (C)(8) of this rule.

(D) Requirements for candidates

(1) At the point of a candidate's application for initial supported living certification and at a frequency of no less than once every five years thereafter, the candidate shall request the bureau of criminal identification and investigation to conduct a criminal records check of the candidate. If a candidate does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the candidate shall request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. If a candidate presents proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the department may require the candidate to request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. For purposes of this paragraph, a candidate may provide proof of Ohio residency by presenting, with a notarized statement asserting that he or she has been a resident of Ohio for that five-year period, a valid driver's license, notification of registration as an elector, a copy of an officially filed federal or state tax form identifying the candidate's permanent residence, or any other document the department considers acceptable.

(a) The candidate shall pay to the bureau of criminal identification and investigation the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check requested.

(b) The candidate shall instruct the bureau of criminal identification and investigation to submit the completed report of the criminal records check directly to the department.

(2) At the point of a candidate's application for initial or renewal supported living certification, the department shall check the databases specified in paragraph (C)(2) of this rule to determine if the candidate is included. The department shall not issue supported living certification to a candidate if the candidate is included in one or more of the databases described in paragraphs (C)(2)(a) to (C)(2)(e) of this rule.

(3) At the point of a candidate's application for initial or renewal supported living certification, the candidate shall submit a statement to the department with the candidate's signature attesting that he or she has not been convicted of or pleaded guilty to a disqualifying offense. A candidate shall disclose a conviction for any offense that has been sealed.

(4) At the point of a candidate's application for initial or renewal supported living certification, the candidate shall sign an agreement under which the candidate agrees to notify the department within fourteen calendar days if, while holding supported living certification, the candidate is formally charged with, is convicted of, or pleads guilty to a disqualifying offense. The agreement shall provide that failure to make the notification may result in denial, revocation, or suspension of the candidate's supported living certification.

(5) At the point of a candidate's application for initial or renewal supported living certification as an independent provider, the candidate shall obtain and provide to the department his or her driving record prepared by the bureau of motor vehicles if the services the candidate will provide involve transporting individuals. The department may consider the candidate's driving record when determining whether to issue supported living certification. A person having six or more points on his or her driving record is prohibited from transporting individuals.

(E) Disqualifying offenses

(1) There are five tiers of disqualifying offenses with corresponding time periods that preclude an applicant from being employed or an employee from remaining employed by a responsible entity and preclude a candidate from receiving supported living certification issued by the department.

(a) Tier one: permanent exclusion

No responsible entity shall employ an applicant or continue to employ an employee, nor shall the department issue supported living certification to a candidate, if the applicant, employee, or candidate has been convicted of or pleaded guilty to any of the following sections of the Revised Code:

(i) 2903.01 (aggravated murder);

(ii) 2903.02(murder) ;

(iii) 2903.03 (voluntary manslaughter);

(iv) 2903.11 (felonious assault);

(v) 2903.15 (permitting child abuse);

(vi) 2903.16 (failing to provide for a functionally impaired person);

(vii) 2903.34 (patient abuse and neglect);

(viii) 2903.341 (patient endangerment);

(ix) 2905.01(kidnapping) ;

(x) 2905.02(abduction) ;

(xi) 2905.32 (human trafficking);

(xii) 2905.33 (unlawful conduct with respect to documents);

(xiii) 2907.02(rape) ;

(xiv) 2907.03 (sexual battery);

(xv) 2907.04 (unlawful sexual conduct with a minor, formerly corruption of a minor);

(xvi) 2907.05 (gross sexual imposition);

(xvii) 2907.06 (sexual imposition);

(xviii) 2907.07(importuning) ;

(xix) 2907.08(voyeurism) ;

(xx) 2907.12 (felonious sexual penetration);

(xxi) 2907.31 (disseminating matter harmful to juveniles);

(xxii) 2907.32 (pandering obscenity);

(xxiii) 2907.321 (pandering obscenity involving a minor);

(xxiv) 2907.322 (pandering sexually oriented matter involving a minor);

(xxv) 2907.323 (illegal use of minor in nudity-oriented material or performance);

(xxvi) 2909.22 (soliciting/providing support for act of terrorism);

(xxvii) 2909.23 (making terrorist threat);

(xxviii) 2909.24(terrorism) ;

(xxix) 2913.40 (medicaid fraud);

(xxx) 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity) when the underlying offense is any of the offenses or violations described in paragraphs (E)(1)(a)(i) to (E)(1)(a)(xxix) of this rule;

(xxxi) A conviction related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct involving a federal or state-funded program, excluding the disqualifying offenses set forth in section 2913.46 of the Revised Code (illegal use of supplemental nutrition assistance program or women, infants, and children program benefits); or

(xxxii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraphs (E)(1)(a)(i) to (E)(1)(a)(xxxi) of this rule.

(b) Tier two: ten-year exclusion

No responsible entity shall employ an applicant or continue to employ an employee, nor shall the department issue supported living certification to a candidate, for a period of ten years from the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, and parole, if the applicant, employee, or candidate has been convicted of or pleaded guilty to any of the following sections of the Revised Code:

(i) 2903.04 (involuntary manslaughter);

(ii) 2903.041 (reckless homicide);

(iii) 2905.04 (child stealing) as it existed prior to July 1, 1996;

(iv) 2905.05 (criminal child enticement);

(v) 2905.11(extortion) ;

(vi) 2907.21 (compelling prostitution);

(vii) 2907.22 (promoting prostitution);

(viii) 2907.23 (enticement or solicitation to patronize a prostitute, procurement of a prostitute for another);

(ix) 2909.02 (aggravated arson);

(x) 2909.03(arson) ;

(xi) 2911.01 (aggravated robbery);

(xii) 2911.11 (aggravated burglary);

(xiii) 2913.46 (illegal use of supplemental nutrition assistance program or women, infants, and children program benefits);

(xiv) 2913.48 (workers' compensation fraud);

(xv) 2913.49 (identity fraud);

(xvi) 2917.02 (aggravated riot);

(xvii) 2923.12 (carrying concealed weapon);

(xviii) 2923.122 (illegal conveyance or possession of deadly weapon or dangerous ordnance in a school safety zone, illegal possession of an object indistinguishable from a firearm in a school safety zone);

(xix) 2923.123 (illegal conveyance, possession, or control of deadly weapon or dangerous ordnance into courthouse);

(xx) 2923.13 (having weapons while under disability);

(xxi) 2923.161 (improperly discharging a firearm at or into a habitation or school);

(xxii) 2923.162 (discharge of firearm on or near prohibited premises);

(xxiii) 2923.21 (improperly furnishing firearms to minor);

(xxiv) 2923.32 (engaging in pattern of corrupt activity);

(xxv) 2923.42 (participating in criminal gang);

(xxvi) 2925.02 (corrupting another with drugs);

(xxvii) 2925.03 (trafficking in drugs);

(xxviii) 2925.04 (illegal manufacture of drugs or cultivation of marihuana);

(xxix) 2925.041 (illegal assembly or possession of chemicals for the manufacture of drugs);

(xxx) 3716.11 (placing harmful objects in food or confection);

(xxxi) 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity) when the underlying offense is any of the offenses or violations described in paragraphs (E)(1)(b)(i) to (E)(1)(b)(xxx) of this rule; or

(xxxii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraphs (E)(1)(b)(i) to (E)(1)(b)(xxxi) of this rule.

(c) Tier three: seven-year exclusion No responsible entity shall employ an applicant or continue to employ an employee, nor shall the department issue supported living certification to a candidate, for a period of seven years from the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, and parole, if the applicant, employee, or candidate has been convicted of or pleaded guilty to any of the following sections of the Revised Code:

(i) 959.13 (cruelty to animals);

(ii) 959.131 (prohibitions concerning companion animals);

(iii) 2903.12 (aggravated assault);

(iv) 2903.21 (aggravated menacing);

(v) 2903.211 (menacing by stalking);

(vi) 2905.12(coercion) ;

(vii) 2909.04 (disrupting public services);

(viii) 2911.02(robbery) ;

(ix) 2911.12(burglary) ;

(x) 2913.47 (insurance fraud);

(xi) 2917.01 (inciting to violence);

(xii) 2917.03(riot) ;

(xiii) 2917.31 (inducing panic);

(xiv) 2919.22 (endangering children);

(xv) 2919.25 (domestic violence);

(xvi) 2921.03(intimidation) ;

(xvii) 2921.11(perjury) ;

(xviii) 2921.13 (falsification, falsification in theft offense, falsification to purchase firearm, or falsification to obtain a concealed handgun license);

(xix) 2921.34(escape) ;

(xx) 2921.35 (aiding escape or resistance to lawful authority);

(xxi) 2921.36 (illegal conveyance of weapons, drugs, or other prohibited items onto grounds of detention facility or institution);

(xxii) 2925.05 (funding of drug or marihuana trafficking);

(xxiii) 2925.06 (illegal administration or distribution of anabolic steroids);

(xxiv) 2925.24 (tampering with drugs);

(xxv) 2927.12 (ethnic intimidation);

(xxvi) 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity) when the underlying offense is any of the offenses or violations described in paragraphs (E)(1)(c)(i) to (E)(1)(c)(xxv) of this rule; or

(xxvii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraphs (E)(1)(c)(i) to (E)(1)(c)(xxvi) of this rule.

(d) Tier four: five-year exclusion

No responsible entity shall employ an applicant or continue to employ an employee, nor shall the department issue supported living certification to a candidate, for a period of five years from the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, and parole, if the applicant, employee, or candidate has been convicted of or pleaded guilty to any of the following sections of the Revised Code:

(i) 2903.13(assault) ;

(ii) 2903.22(menacing) ;

(iii) 2907.09 (public indecency);

(iv) 2907.24 (soliciting after positive human immunodeficiency virus test);

(v) 2907.25(prostitution) ;

(vi) 2907.33 (deception to obtain matter harmful to juveniles);

(vii) 2911.13 (breaking and entering);

(viii) 2913.02(theft) ;

(ix) 2913.03 (unauthorized use of a vehicle);

(x) 2913.04 (unauthorized use of property, computer, cable, or telecommunication property);

(xi) 2913.05 (telecommunications fraud);

(xii) 2913.11 (passing bad checks);

(xiii) 2913.21 (misuse of credit cards);

(xiv) 2913.31 (forgery, forging identification cards);

(xv) 2913.32 (criminal simulation);

(xvi) 2913.41 (defrauding a rental agency or hostelry);

(xvii) 2913.42 (tampering with records);

(xviii) 2913.43 (securing writings by deception);

(xix) 2913.44 (personating an officer);

(xx) 2913.441 (unlawful display of law enforcement emblem);

(xxi) 2913.45 (defrauding creditors);

(xxii) 2913.51 (receiving stolen property);

(xxiii) 2919.12 (unlawful abortion);

(xxiv) 2919.121 (unlawful abortion upon minor);

(xxv) 2919.123 (unlawful distribution of an abortion-inducing drug);

(xxvi) 2919.23 (interference with custody);

(xxvii) 2919.24 (contributing to unruliness or delinquency of child);

(xxviii) 2921.12 (tampering with evidence);

(xxix) 2921.21 (compounding a crime);

(xxx) 2921.24 (disclosure of confidential information);

(xxxi) 2921.32 (obstructing justice);

(xxxii) 2921.321 (assaulting/harassing police dog or horse/service animal);

(xxxiii) 2921.51 (impersonation of peace officer);

(xxxiv) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using any dangerous veterinary drug);

(xxxv) 2925.11 (drug possession other than a minor drug possession offense);

(xxxvi) 2925.13 (permitting drug abuse);

(xxxvii) 2925.22 (deception to obtain dangerous drugs);

(xxxviii) 2925.23 (illegal processing of drug documents);

(xxxix) 2925.36 (illegal dispensing of drug samples);

(xl) 2925.55 (unlawful purchase of pseudoephedrine product);

(xli) 2925.56 (unlawful sale of pseudoephedrine product);

(xlii) 2923.01(conspiracy), 2923.02(attempt), or 2923.03(complicity) when the underlying offense is any of the offenses or violations described in paragraphs (E)(1)(d)(i) to (E)(1)(d)(xli) of this rule; or

(xliii) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraphs (E)(1)(d)(i) to (E)(1)(d)(xlii) of this rule.

(e) Tier five: no exclusion

A responsible entity may employ an applicant or continue to employ an employee, and the department may issue supported living certification to a candidate, if the applicant, employee, or candidate has been convicted of or pleaded guilty to any of the following sections of the Revised Code:

(i) 2925.11 (drug possession that is minor drug possession offense);

(ii) 2925.14 (illegal use or possession of drug paraphernalia);

(iii) 2925.141 (illegal use or possession of marihuana drug paraphernalia); or

(iv) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraphs (E)(1)(e)(i) to (E)(1)(e)(iii) of this rule.

(2) Multiple disqualifying offenses

(a) If an applicant, employee, or candidate has been convicted of or pleaded guilty to multiple disqualifying offenses listed in paragraphs (E)(1)(b)(i) to (E)(1)(b)(xxxii) of this rule, and offenses listed in paragraphs (E)(1)(c)(i) to (E)(1)(c)(xxvii) of this rule, and paragraphs (E)(1)(d)(i) to (E)(1)(d)(xliii) of this rule, the applicant, employee, or candidate is subject to a fifteen-year exclusion period.

(b) If an applicant, employee, or candidate has been convicted of or pleaded guilty to multiple disqualifying offenses listed in paragraphs (E)(1)(c)(i) to (E)(1)(c)(xxvii) of this rule and offenses listed in paragraphs (E)(1)(d)(i) to (E)(1)(d)(xliii) of this rule, the applicant, employee, or candidate is subject to a ten-year exclusion period.

(c) If an applicant, employee, or candidate has been convicted of or pleaded guilty to multiple disqualifying offenses listed in paragraphs (E)(1)(d)(i) to (E)(1)(d)(xliii) of this rule, the applicant, employee, or candidate is subject to a seven-year exclusion period.

(F) A conviction of or plea of guilty to a disqualifying offense listed or described in paragraph (E)(1) of this rule shall not preclude an applicant from being employed or an employee from remaining employed by a responsible entity or preclude a candidate from receiving supported living certification issued by the department under the following circumstances:

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

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

(3) The applicant's, employee's, or candidate's conviction or guilty plea has been overturned pursuant to law;

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

(5) The applicant's, employee's, or candidate's conviction or guilty plea is not for an offense listed or described in paragraph (E)(1)(a) of this rule and the applicant, employee, or candidate has a certificate of qualification for employment issued by a court of common pleas with competent jurisdiction pursuant to section 2953.25 of the Revised Code; or

(6) The applicant's, employee's, or candidate's conviction or guilty plea is not for an offense listed or described in paragraph (E)(1)(a) of this rule and the applicant, employee, or candidate has a certificate of achievement and employability in a home and community-based services-related field, issued by the Ohio department of rehabilitation and correction pursuant to section 2961.22 of the Revised Code.

(G) A responsible entity may continue to employ a person who is excluded by paragraph (E)(1)(d) of this rule if the conviction for a tier four offense occurred prior to January 1, 2013, the employee was hired prior to January 1, 2013, and if the responsible entity has considered the nature and seriousness of the offense and attests in writing to the character and fitness of the person based on the person's demonstrated work performance. The responsible entity shall make this determination by April 1, 2013 and shall maintain the written attestation in the employee's personnel record. The determination shall be subject to review by the department.

(H) The department may renew the supported living certification of a candidate who is excluded by paragraph (E)(1)(d) of this rule if the conviction for a tier four offense occurred prior to January 1, 2013, the candidate was originally certified to provide supported living prior to January 1, 2013, and if the department has considered the nature and seriousness of the offense and determines that the candidate has demonstrated the appropriate character and fitness to have the supported living certification renewed based on the candidate's demonstrated work performance. The department shall keep a written record of its determination for each candidate.

(I) Any report obtained pursuant to this rule is not a public record for purposes of section 149.43 of the Revised Code and shall not be made available to any person other than:

(1) The applicant, employee, or candidate who is the subject of the report or the applicant's, employee's, or candidate's representative;

(2) The responsible entity that requested the report or its representative;

(3) The department if a county board, agency provider, or subcontractor is the responsible entity that requested the report and the department requests the responsible entity to provide a copy of the report to the department;

(4) A county board if an agency provider or subcontractor is the responsible entity that requested the report and the county board requests the responsible entity to provide a copy of the report to the county board; or

(5) A court, hearing officer, or other necessary person involved in a case dealing with the denial of employment to the applicant or employee; the denial, suspension, or revocation of certification issued under section 5123.166 or 5123.45 of the Revised Code; or a civil or criminal action regarding the medicaid program or a program the department administers.

(J) For purposes of this rule, reports from the bureau of criminal identification and investigation or any other state or federal agency regarding a person's criminal record and records supplied by the bureau of motor vehicles regarding a person's record of convictions for violations of motor vehicle laws are valid for a period of one year from the date of the report.

Replaces: 5123:1-7-01, 5123:2-1-05, 5123:2-1- 05.1, 5123:2-3-06

Effective: 01/01/2013
R.C. 119.032 review dates: 01/01/2018
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.081, 5123.1610
Rule Amplifies: 5123.04, 5123.081, 5123.1610
Prior Effective Dates: 10/31/1977, 06/12/1981, 10/05/1984, 10/24/1987, 11/16/1990, 12/09/1991, 05/12/1995, 09/22/2002

5123:2-2-03 Quality assurance.

(A) The Ohio department of developmental disabilities promotes services, supports, and activities that enhance the quality of life for Ohioans with developmental disabilities with regard to individuals':

(1) Rights as set forth in section 5123.62 of the Revised Code;

(2) Self-determination;

(3) Physical well-being;

(4) Emotional well-being;

(5) Material well-being;

(6) Personal development;

(7) Interpersonal relationships; and

(8) Social inclusion.

(B) The department employs multiple processes, set forth in the following administrative rules, to achieve quality outcomes for individuals who receive services:

(1) Rule 5123:2-1-11 of the Administrative Code (service and support administration);

(2) Rule 5123:2-2-01 of the Administrative Code (provider certification);

(3) Rule 5123:2-2-04 of the Administrative Code (compliance reviews of certified providers);

(4) Rules 5123:2-3-01 to 5123:2-3-26 of the Administrative Code (residential facilities licensed pursuant to section 5123.19 of the Revised Code);

(5) Rule 5123:2-4-01 of the Administrative Code (accreditation of county boards of developmental disabilities);

(6) Rule 5123:2-6-07 of the Administrative Code (administration of prescribed medications, performance of health-related activities, and performance of tube feedings); and

(7) Rule 5123:2-17-02 of the Administrative Code (major unusual incidents).

(C) Additionally, the department participates in "National Core Indicators," a collaboration among state agencies that serve individuals with developmental disabilities, the "National Association of State Directors of Developmental Disabilities Services," and the "Human Services Research Institute," which offers a systemic approach to performance and outcome measurement.

(D) Individuals who receive services, legal guardians, or family members may request a review of services or may request the results of prior reviews that have been conducted. In response, the department may initiate or conduct a review, request that a review be conducted by the county board of developmental disabilities, or take other appropriate action.

Effective: 03/14/2013
R.C. 119.032 review dates: 03/14/2018
Promulgated Under: 119.03
Statutory Authority: 5123.04
Rule Amplifies: 5123.04

5123:2-2-04 Compliance reviews of certified providers.

(A) Purpose and scope

This rule governs compliance reviews conducted by the department and county boards to ensure compliance by certified providers with applicable requirements. This rule applies to all certified providers, including certified providers licensed in accordance with section 5123.19 of the Revised Code.

(B) Definitions

(1) "Applicable requirements" means:

(a) Federal and state laws and regulations which govern the conduct of the certified provider, including but not limited to, Chapters 4723., 5111., 5123., and 5126. of the Revised Code and all administrative rules promulgated under the authority of these statutes.

(b) Requirements set forth in any waiver, approved under the authority of section 1915(c) of the Social Security Act, 49 Stat. 620 (1935), 42 U.S.C.A. 1396n, under which federal reimbursement is provided for designated home and community-based services to eligible individuals, which is administered by the department pursuant to an interagency agreement between the department and the Ohio office of medical assistance.

(2) "Certification revocation" means the revocation of a certified provider's certification to serve one or more individuals in one or more counties.

(3) "Certification suspension" means either of the following:

(a) Suspension of a certified provider's certification to serve one or more individuals in one or more counties for a specified time period; or

(b) Suspension of a certified provider's certification to serve additional individuals in one or more counties.

(4) "Certified provider" means an agency provider or independent provider certified by the department pursuant to section 5123.161 of the Revised Code to provide supported living or home and community-based services.

(5) "Compliance review" means a review of a certified provider conducted by the department or a county board for the purpose of determining provider compliance with applicable requirements in order to ensure the health, safety, and welfare of individuals served.

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

(7) "Home and community-based services" has the same meaning as in section 5126.01 of the Revised Code.

(8) "Individual" means a person with developmental disabilities.

(9) "Major unusual incident" has the same meaning as in rule 5123:2-17-02 of the Administrative Code.

(10) "Protocol" means the forms, instructions for the completion of written documentation, and process developed by the department and used by the department and county boards to conduct compliance monitoring in accordance with this rule. A protocol does not create provider standards or qualifications.

(C) Compliance reviews

(1) There are three types of compliance reviews:

(a) Routine compliance reviews

In accordance with priorities established by the department in the protocol for compliance reviews, the department shall coordinate with county boards to ensure that each certified provider receives a routine compliance review within one year of the certified provider's initial billing for provision of services. Thereafter, routine compliance reviews of certified providers shall be conducted so that each certified provider is reviewed once during the term of certification.

(b) Special compliance reviews

The department or a county board may conduct special compliance reviews as necessary:

(i) Pertaining to the health, safety, or welfare of an individual;

(ii) Based on a complaint or allegation; or

(iii) Based on a major unusual incident that may indicate the certified provider's failure to comply with applicable requirements.

(c) Abbreviated compliance reviews

(i) The department may accept a certified provider's accreditation by a national accrediting entity as demonstration that the certified provider is meeting applicable requirements. A certified provider that is accredited by a national accrediting entity is eligible for an abbreviated compliance review when the standards of the national accrediting entity:

(a) Meet or exceed the department's standards;

(b) Are compatible with the centers for medicare and medicaid services home and community-based services quality framework;

(c) Focus on achievement of desired outcomes for individuals served; and

(d)Ensure the health and safety of individuals served.

(ii) An abbreviated compliance review shall examine the certified provider's compliance with applicable requirements regarding:

(a) Background investigations of the certified provider's chief executive officer and employees;

(b) The behavior support portion of individual service plans;

(c) Medication administration; and

(d)Major unusual incidents.

(iii) To be eligible for abbreviated compliance review, the certified provider shall submit a written request to the department that includes a copy of the most recent survey/review of the certified provider by the national accrediting entity.

(iv) The certified provider shall notify the department in writing within ten days if the certified provider's accreditation by the national accrediting entity is amended, suspended, terminated, or not renewed and provide a copy of related correspondence from the national accrediting entity.

(v) Abbreviated compliance reviews may not be available when:

(a) The certified provider has not received an initial routine compliance review by the department or county board.

(b) The certified provider has had multiple or significant substantiated major unusual incidents since the most recent compliance review by the department or county board or survey/review by the national accrediting entity.

(c) The certified provider's chief executive officer and/or key members of the certified provider's management team have changed since the most recent compliance review by the department or county board or survey/review by the national accrediting entity.

(d) The certified provider's accreditation by the national accrediting entity has been amended or suspended.

(2) Only the department may conduct compliance reviews of residential facilities licensed in accordance with section 5123.19 of the Revised Code and administrative rules promulgated under its authority.

(3) The department shall develop a protocol for compliance reviews. A county board may not change or augment the protocol.

(a) The protocol shall include, but is not limited to, the following components:

(i) The method for selecting certified providers to be reviewed;

(ii) The types and scope of reviews that may be conducted;

(iii) The process and procedures for notifying certified providers of upcoming reviews;

(iv) The elements of provider compliance which shall be based on the applicable requirements;

(v) The elements of a written compliance review summary to a certified provider that shall include the explanation of any citations, the process to develop and implement a plan of correction, and an explanation of the due process afforded to a certified provider;

(vi) The criteria for conducting announced and unannounced reviews; and

(vii) Any forms or methods of documentation approved by the department.

(b) The department shall make the protocol available at its website (http://dodd.ohio.gov) and shall include the protocol in any training outlined in paragraph (E) of this rule.

(D) Compliance review summary and plan of correction

(1) The department or county board, as applicable, shall issue a written compliance review summary to the certified provider within seven days of conclusion of the compliance review in accordance with the format described in the protocol for compliance reviews. The compliance review summary shall be objective in terms of observations and citations, relying upon documentation that clearly addresses the standards reviewed.

(2) Within fourteen days of receipt of a compliance review summary that includes one or more citations, the certified provider shall submit to the department or county board, as applicable, a written appeal or a written plan of correction for each citation. If the certified provider does not submit a written appeal within fourteen days, the compliance review summary shall be final and not subject to appeal by the certified provider.

(a) The appeal for a citation shall include the certified provider's basis with supporting documentation for challenging the citation. The department or county board, as applicable, shall allow or disallow the appeal within ten days of receipt.

(i) If the compliance review was conducted by the department and the appeal is disallowed, the certified provider shall submit a written plan of correction for the citation to the department within fourteen days.

(ii) If the compliance review was conducted by a county board and the appeal is disallowed, the certified provider shall either:

(a) Submit a written plan of correction for the citation to the county board within fourteen days; or

(b)If the certified provider objects to the county board's decision to disallow the appeal, submit to the department a written appeal within seven days of the county board's decision. The department shall notify the certified provider and the county board of its decision to allow or disallow the appeal within fourteen days of receipt. If the department disallows the appeal, the certified provider shall submit a written plan of correction for the citation to the county board within fourteen days.

(b) The written plan of correction for a citation shall include action steps and timelines for remediation. The department or county board, as applicable, shall approve or disapprove the plan of correction within twenty days of receipt. When the department or county board disapproves a plan of correction, the certified provider shall work with the department or county board, as applicable, to develop an acceptable plan of correction.

(E) Training

(1) The department shall provide or arrange for initial training to county boards and certified providers regarding the requirements and procedures outlined in this rule and in the protocol for compliance reviews.

(2) Any employees or agents of the department or the county board whose responsibilities include conducting compliance reviews in accordance with this rule shall complete the initial training in the requirements and procedures outlined in this rule prior to conducting compliance reviews.

(3) The department shall provide documentation of a person's completion of this training to the county board. The county board shall maintain a list of the persons in its county that have completed this training and are able to conduct compliance reviews in accordance with this rule.

(4) The department may require persons who have received the initial training to receive continuing training in the implementation of this rule in a manner prescribed by the department.

(F) Certification suspension and certification revocation

(1) The department may initiate certification suspension or certification revocation proceedings if the department finds one or more of the following:

(a) Substantial violation of applicable requirements which present a risk to an individual's health and welfare; or

(b) A pattern of non-compliance with plans of correction approved in accordance with this rule; or

(c) A pattern of continuing non-compliance with applicable requirements; or

(d) A licensed provider has had its license revoked by the licensing authority; or

(e) Failure to cooperate with the compliance review process set forth in this rule; or

(f) Other good cause, including misfeasance, malfeasance, nonfeasance, substantiated abuse or neglect, financial irresponsibility, or other conduct the department determines is injurious to individuals being served. The department may gather and evaluate information from a variety of sources, including the county board and provider, in making such a determination.

(2) Certification suspension and certification revocation proceedings shall be conducted in accordance with Chapter 119. of the Revised Code.

(3) When the department issues a notice of its intent to suspend or revoke a certified provider's certification, the department shall give written notice to the Ohio office of medical assistance and to the county board of each county in which the proposed suspension or revocation is proposed to be effective.

(4) Each county board that is notified in writing by the department of the department's intent to suspend or revoke a certified provider's certification shall so notify in writing each individual in the county who is receiving services for which the provider's certification is proposed to be suspended or revoked, the individual's guardian if the individual is an adult for whom a guardian has been appointed, and the individual's parent or guardian if the individual is a minor.

(5) The department may suspend or revoke a certified provider's certification regardless of whether some or all of the deficiencies enumerated in accordance with this rule that prompted the department's intent to suspend or revoke the certification have been corrected at the time of the hearing.

(6) When the department suspends or revokes a certified provider's certification, the certified provider shall comply with the department's adjudication order within thirty days of the date of the mailing of the order.

(7) The department shall give written notice of the certified provider's suspension or revocation to the Ohio office of medical assistance and to the county board of each county in which the suspension or revocation is effective.

(8) Each county board that is notified in writing by the department of suspension or revocation of a certified provider's certification shall so notify in writing each individual in the county who is receiving services for which the provider's certification is suspended or revoked, the individual's guardian if the individual is an adult for whom a guardian has been appointed, and the individual's parent or guardian if the individual is a minor.

Replaces: 5123:2-9-08

Effective: 03/14/2013
R.C. 119.032 review dates: 03/14/2018
Promulgated Under: 119.03
Statutory Authority: 5111.871, 5123.04, 5123.045, 5123.162, 5123.169, 5123.19, 5126.05, 5126.08
Rule Amplifies: 5111.871, 5123.04, 5123.045, 5123.162, 5123.169, 5123.19, 5126.05, 5126.08
Prior Effective Dates: 10/16/2003, 07/08/2004, 07/01/2005

5123:2-2-05 Employment first.

(A) Purpose

The purpose of this rule is to implement the employment first policy in accordance with section 5123.022 of the Revised Code.

(B) Scope

This rule applies to county boards of developmental disabilities and providers responsible for planning, coordinating, or providing employment services, regardless of funding source, to individuals with developmental disabilities.

(C) Definitions

(1) "Benefits analysis" means information provided to individuals about the impact of work on public assistance programs including but not limited to, social security disability insurance, supplemental security income, medicaid/medicare coverage, medicaid buy-in for workers with disabilities, veteran's benefits, housing assistance, and food stamps.

(2) "Community employment" means competitive employment that takes place in an integrated setting.

(3) "Competitive employment" means full-time or part-time work in the competitive labor market in which payment is at or above the minimum wage and not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by persons who do not have disabilities.

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

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

(6) "Employment first policy" means the state of Ohio policy, established in section 5123.022 of the Revised Code, that employment services for individuals with developmental disabilities be directed at community employment and that individuals with developmental disabilities are presumed capable of community employment.

(7) "Employment services" means prevocational services or supported employment services.

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

(9) "Integrated setting" means a setting typically found in the community where individuals interact with persons who do not have disabilities to the same extent as persons who do not have disabilities in comparable positions.

"Integrated setting" includes employment settings in which employees interact with the community through technology.

(10) "Prevocational services" means services that provide learning and work experiences from which an individual can develop general strengths and skills that are not specific to a particular task or job but contribute to employability in community employment, supported work at community-based sites, or self-employment. "Prevocational services" includes vocational habilitation funded in whole or part by a home and community-based services waiver administered by the department. Prevocational services shall be provided in accordance with the individual's individual plan or individual service plan, as applicable, and occur over a specified period of time with specific outcomes sought to be achieved.

(11) "Provider" means an agency provider or an independent provider that is certified or licensed by the department.

(12) "Supported employment services" means vocational assessment, job training and coaching, job development and placement, work site accessibility, and other services related to employment outside a sheltered workshop and includes all of the following:

(a) Job training resulting in the attainment of community employment, supported work in a typical work environment, or self-employment;

(b) Support for ongoing community employment, supported work at community-based sites, or self-employment;

(c) Integrated employment funded in whole or part by a home and community-based services waiver administered by the department;

(d) Supported employment-community funded in whole or part by a home and community-based services waiver administered by the department; and

(e) Supported employment-enclave funded in whole or part by a home and community-based services waiver administered by the department.

(13) "Working age" means at least eighteen years of age.

(D) Person-centered planning process

(1) Each individual of working age and each individual approaching completion of a program or service under Chapter 3323. of the Revised Code shall participate in an individualized person-centered planning process in accordance with, as applicable, rule 5123:2-1-11 of the Administrative Code or 42 C.F.R. 483.440 as in effect on the effective date of this rule, to identify the individual's unique strengths, interests, abilities, preferences, resources, and desired outcomes as they relate to community employment. The person-centered planning process shall begin with a review of available information to determine what additional information is needed and what supplemental situational and/or other formal or informal evaluations are needed to discover this information. For individuals who receive public assistance, the importance of obtaining a benefits analysis shall be emphasized to enable the individual to make informed decisions regarding employment. Resources available for obtaining a benefits analysis shall be identified for the individual prior to job development.

(2) The person-centered planning process shall include identification and documentation of:

(a) The individual's place on the path to community employment, that is:

(i) The individual is already engaged in community employment and needs support for job stabilization, job improvement, or career advancement;

(ii) The individual expresses a desire to obtain community employment but is not currently employed and needs support to obtain employment or identify career options and employment opportunities;

(iii) The individual is unsure about community employment and needs support to identify career options and employment opportunities and the economic impact for the individual of the decision to work; or

(iv) The individual does not express a desire to work and needs support to learn more about careers and employment opportunities and the economic impact for the individual of the decision not to work.

(b) The individual's desired community employment outcome.

(c) Clearly defined activities, services, and supports necessary for the individual to achieve or maintain community employment, job improvement, or career advancement.

(3) The results of the person-centered planning process, including the individual's desired outcomes as they relate to community employment, shall be integrated into the individual plan or individual service plan, as applicable.

(4) The results of the person-centered planning process shall be reviewed at least once every twelve months and whenever a significant change in employment, training, continuing education, services, or supports occurs or is proposed.

(E) Requirements for county boards

(1) The county board shall adopt and implement a local policy to implement the employment first policy which clearly identifies community employment as the desired outcome for every individual of working age.

(2) In its strategic plan, the county board shall outline and periodically update its strategy and benchmarks for increasing the number of individuals of working age engaged in community employment services.

(3) The county board shall collaborate with workforce development agencies, vocational rehabilitation agencies, and mental health agencies in the county to support individuals to obtain community employment.

(4) The county board shall collaborate with school districts in the county to ensure a framework exists for individuals approaching completion of a program or service under Chapter 3323. of the Revised Code such that the county board and school districts in the county use similar methods to support students with developmental disabilities to obtain community employment. Through this collaboration, the county board shall identify and attempt to resolve any duplication of efforts.

(5) The county board shall disseminate information to individuals served, families, schools, community partners, employers, and providers of services about resources and opportunities, including medicaid buy-in and other work incentive programs, that facilitate community employment.

(6) The county board shall collect and submit to the department individual-specific data regarding the cost of non-medicaid employment services, employment outcomes for individuals who receive non-medicaid employment services, and employment outcomes for individuals who do not receive paid employment services but who are engaged in competitive employment or community employment.

(F) Requirements for providers

(1) Providers of employment services shall submit to each individual's team at least once every twelve months, or more frequently as decided upon by the team, a written progress report that demonstrates that services provided are consistent with the individual's identified community employment outcome and that the individual receiving services has obtained community employment or is advancing on the path to community employment. The progress report for each individual participating in prevocational services shall describe progress on achievement of desired outcomes as set forth in the individual plan or individual service plan, as applicable.

(2) Providers of employment services shall collect and submit to the department individual-specific data regarding employment services and employment outcomes including but not limited to, type of services provided, how individuals obtained employment, hours worked, wages earned, and occupations. The data shall be submitted through a web-based data collection system developed and maintained by the department.

(3) Providers of employment services shall disseminate aggregate data regarding employment services and employment outcomes including but not limited to, type of services provided, how individuals obtained employment, hours worked, wages earned, and occupations, to individuals seeking employment services and others upon request. The data shall be disseminated in a manner that does not disclose confidential information regarding individuals receiving employment services.

Effective: 04/01/2014
R.C. 119.032 review dates: 04/01/2019
Promulgated Under: 119.03
Statutory Authority: 5123.022, 5123.04
Rule Amplifies: 5123.022, 5123.04, 5126.05, 5126.051

5123:2-2-06 Behavioral support strategies that include restrictive measures.

(A) Purpose

This rule limits the use of and sets forth requirements for development and implementation of behavioral support strategies that include restrictive measures for the purpose of ensuring that:

(1) Restrictive measures are used only when necessary to keep people safe;

(2) Individuals with developmental disabilities are supported in a caring and responsive manner that promotes dignity, respect, and trust and with recognition that they are equal citizens with the same rights and personal freedoms granted to Ohioans without developmental disabilities;

(3) Services and supports are based on an understanding of the individual and the reasons for his or her actions; and

(4) Effort is directed at creating opportunities for individuals to exercise choice in matters affecting their everyday lives and supporting individuals to make choices that yield positive outcomes.

(B) Scope

(1) This rule applies to persons and entities that provide specialized services regardless of source of payment, including but not limited to:

(a) County boards of developmental disabilities and entities under contract with county boards;

(b) Residential facilities licensed pursuant to section 5123.19 of the Revised Code, including intermediate care facilities;

(c) Providers of supported living certified pursuant to section 5123.161 of the Revised Code; and

(d) Providers of services funded by medicaid home and community-based services waivers administered by the department.

(2) Individuals receiving services in a setting governed by the Ohio department of education shall be supported in accordance with administrative rules and policies of the Ohio department of education.

(C) Definitions

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

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

(3) "Director" means the director of the Ohio department of developmental disabilities or his or her designee.

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

(5) "Individual plan" or "individual service plan" means the written description of services, supports, and activities to be provided to an individual.

(6) "Informed consent" means a documented written agreement to allow a proposed action, treatment, or service after full disclosure provided in a manner the individual or his or her guardian understands, of the relevant facts necessary to make the decision. Relevant facts include the risks and benefits of the action, treatment, or service; the risks and benefits of the alternatives to the action, treatment, or service; and the right to refuse the action, treatment, or service. The individual or his or her guardian, as applicable, may revoke informed consent at any time.

(7) "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.

(8) "Prohibited measure" means a method that shall not be used by persons or entities providing specialized services. "Prohibited measures" include:

(a) Prone restraint. "Prone restraint" means a method of intervention where an individual's face and/or frontal part of his or her body is placed in a downward position touching any surface for any amount of time.

(b) Use of a manual restraint or mechanical restraint that has the potential to inhibit or restrict an individual's ability to breathe or that is medically contraindicated.

(c) Use of a manual restraint or mechanical restraint that causes pain or harm to an individual.

(d) Disabling an individual's communication device.

(e) Denial of breakfast, lunch, dinner, snacks, or beverages.

(f) Placing an individual in a room with no light.

(g) Subjecting an individual to damaging or painful sound.

(h) Application of electric shock to an individual's body.

(i) Subjecting an individual to any humiliating or derogatory treatment.

(j) Squirting an individual with any substance as an inducement or consequence for behavior.

(k) Using any restrictive measure for punishment, retaliation, instruction or teaching, convenience of providers, or as a substitute for specialized services.

(9) "Provider" means any person or entity that provides specialized services.

(10) "Qualified intellectual disability professional" has the same meaning as in 42 C.F.R. 483.430 as in effect on the effective date of this rule.

(11) "Restrictive measure" means a method of last resort that may be used by persons or entities providing specialized services only when necessary to keep people safe and with prior approval by the human rights committee in accordance with paragraph (F) of this rule. "Restrictive measures" include:

(a) Manual restraint. "Manual restraint" means use of a hands-on method, but never in a prone restraint, to control an identified action by restricting the movement or function of an individual's head, neck, torso, one or more limbs, or entire body, using sufficient force to cause the possibility of injury and includes holding or disabling an individual's wheelchair or other mobility device. An individual in a manual restraint shall be under constant visual supervision by staff. Manual restraint shall cease immediately once risk of harm has passed. "Manual restraint" does not include a method that is routinely used during a medical procedure for patients without developmental disabilities.

(b) Mechanical restraint. "Mechanical restraint" means use of a device, but never in a prone restraint, to control an identified action by restricting an individual's movement or function. Mechanical restraint shall cease immediately once risk of harm has passed. "Mechanical restraint" does not include:

(i) A seatbelt of a type found in an ordinary passenger vehicle or an age-appropriate child safety seat;

(ii) A medically-necessary device (such as a wheelchair seatbelt or a gait belt) used for supporting or positioning an individual's body; or

(iii) A device that is routinely used during a medical procedure for patients without developmental disabilities.

(c) Time-out. "Time-out" means confining an individual in a room or area and preventing the individual from leaving the room or area by applying physical force or by closing a door or constructing another barrier, including placement in such a room or area when a staff person remains in the room or area.

(i) Time-out shall not exceed thirty minutes for any one incident nor one hour in any twenty-four hour period.

(ii) A time-out room or area shall not be key-locked, but the door may be held shut by a staff person or by a mechanism that requires constant physical pressure from a staff person to keep the mechanism engaged.

(iii) A time-out room or area shall be adequately lighted and ventilated and provide a safe environment for the individual.

(iv) An individual in a time-out room or area shall be protected from hazardous conditions including but not limited to, sharp corners and objects, uncovered light fixtures, or unprotected electrical outlets.

(v) An individual in a time-out room or area shall be under constant visual supervision by staff.

(vi) Time-out shall cease immediately once risk of harm has passed or if the individual engages in self-abuse, becomes incontinent, or shows other signs of illness.

(vii) "Time-out" does not include periods when an individual, for a limited and specified time, is separated from others in an unlocked room or area for the purpose of self-regulating and controlling his or her own behavior and is not physically restrained or prevented from leaving the room or area by physical barriers.

(d) Chemical restraint. "Chemical restraint" means a medication prescribed for the purpose of modifying, diminishing, controlling, or altering a specific behavior. "Chemical restraint" does not include medications prescribed for the treatment of a diagnosed disorder identified in the "Diagnostic and Statistical Manual of Mental Disorders" (fifth edition) or medications prescribed for treatment of a seizure disorder. "Chemical restraint" does not include a medication that is routinely prescribed in conjunction with a medical procedure for patients without developmental disabilities.

(e) Restriction of an individual's rights as enumerated in section 5123.62 of the Revised Code.

(12) "Risk of harm" means there exists a direct and serious risk of physical harm to the individual or another person. For risk of harm, the individual must be capable of causing physical harm to self or others and the individual must be causing physical harm or very likely to begin causing physical harm.

(13) "Service and support administrator" means a person, regardless of title, employed by or under contract with a county board to perform the functions of service and support administration and who holds the appropriate certification in accordance with rule 5123:2-5-02 of the Administrative Code.

(14) "Specialized services" means any program or service designed and operated to serve primarily individuals with developmental disabilities, including a program or service provided by an entity licensed or certified by the department. If there is a question as to whether a provider or entity under contract with a provider is providing specialized services, the provider or contract entity may request that the director of the department make a determination. The director's determination is final.

(15) "Team," as applicable, has the same meaning as in rule 5123:2-1-11 of the Administrative Code or means an interdisciplinary team as that term is used in 42 C.F.R. 483.440 as in effect on the effective date of this rule.

(D) Development of a behavioral support strategy that includes restrictive measures

(1) A behavioral support strategy shall never include prohibited measures.

(2) A behavioral support strategy may include manual restraint, mechanical restraint, time-out, or chemical restraint only when an individual's actions pose risk of harm.

(3) A behavioral support strategy may include restriction of an individual's rights only when an individual's actions pose risk of harm or are very likely to result in the individual being the subject of a legal sanction such as eviction, arrest, or incarceration. Absent risk of harm or likelihood of legal sanction, an individual's rights shall not be restricted (e.g., by imposition of arbitrary schedules or limitation on consumption of food, beverages, or tobacco products).

(4) The focus of a behavioral support strategy shall be creation of supportive environments that enhance the individual's quality of life. Effort is directed at:

(a) Mitigating risk of harm or likelihood of legal sanction;

(b) Reducing and ultimately eliminating the need for restrictive measures; and

(c) Ensuring individuals are in environments where they have access to preferred activities and are less likely to engage in unsafe actions due to boredom, frustration, lack of effective communication, or unrecognized health problems.

(5) A behavioral support strategy that includes restrictive measures requires:

(a) Documentation that demonstrates that positive and non-restrictive measures have been employed and have been determined ineffective; and

(b) An assessment conducted within the past twelve months that clearly describes:

(i) The behavior that poses risk of harm or likelihood of legal sanction;

(ii) The level of harm or type of legal sanction that could reasonably be expected to occur with the behavior;

(iii) When the behavior is likely to occur; and

(iv) The individual's interpersonal, environmental, medical, mental health, and emotional needs and other motivational factors that may be contributing to the behavior.

(6) Persons who conduct assessments and develop behavioral support strategies that include restrictive measures shall:

(a) Hold professional license or certification issued by the Ohio board of psychology; the state medical board of Ohio; or the Ohio counselor, social worker, and marriage and family therapist board; or

(b) Hold a certificate to practice as a certified Ohio behavior analyst pursuant to section 4783.04 of the Revised Code; or

(c) Hold a bachelor's or graduate-level degree from an accredited college or university and have at least three years of paid, full-time (or equivalent part-time) experience in developing and/or implementing behavioral support and/or risk reduction strategies or plans.

(7) A behavioral support strategy that includes restrictive measures shall:

(a) Be designed in a manner that promotes healing, recovery, and emotional wellbeing based on understanding and consideration of the individual's history of traumatic experiences as a means to gain insight into origins and patterns of the individual's actions;

(b) Be data-driven with the goal of improving outcomes for the individual over time and describe behaviors to be increased or decreased in terms of baseline data about behaviors to be increased or decreased;

(c) Recognize the role environment plays in behavior;

(d) Capitalize on the individual's strengths to meet challenges and needs;

(e) Delineate measures to be implemented and identify those who are responsible for implementation;

(f) Specify steps to be taken to ensure the safety of the individual and others;

(g) As applicable, identify needed services and supports to assist the individual in meeting court-ordered community controls such as mandated sex offender registration, drug-testing, or participation in mental health treatment; and

(h) As applicable, outline necessary coordination with other entities (e.g., courts, prisons, hospitals, and law enforcement) charged with the individual's care, confinement, or reentry to the community.

(8) When a behavioral support strategy that includes restrictive measures is deemed necessary by the individual and his or her team, the qualified intellectual disability professional or the service and support administrator, as applicable, shall:

(a) Ensure the strategy is developed in accordance with the principles of person-centered planning and incorporated as an integral part of the individual plan or individual service plan.

(b) Submit to the human rights committee documentation based upon the assessment that clearly indicates risk of harm or likelihood of legal sanction described in observable and measurable terms and ensure the strategy is reviewed and approved by the human rights committee in accordance with paragraph (F) of this rule prior to implementation and whenever the behavioral support strategy is revised to add restrictive measures, but no less than once per year.

(c) Secure informed consent of the individual or the individual's guardian, as applicable.

(d) Provide an individual or the individual's guardian, as applicable, with written notification and explanation of the individual's or guardian's right to seek administrative resolution if he or she is dissatisfied with the strategy or the process used for its development.

(e) Ensure the strategy is reviewed by the individual and the team at least every ninety days to determine and document the effectiveness of the strategy and whether the strategy should be continued, discontinued, or revised. A decision to continue the strategy shall be based upon review of up-to-date information which indicates risk of harm or likelihood of legal sanction is still present.

(E) Implementation of behavioral support strategies with restrictive measures

(1) Restrictive measures shall be implemented with sufficient safeguards and supervision to ensure the health, welfare, and rights of individuals receiving specialized services.

(2) Each person providing specialized services to an individual with a behavioral support strategy that includes restrictive measures shall successfully complete training in the strategy prior to serving the individual.

(F) Human rights committees

(1) Each county board, or county board jointly with one or more other county boards, or county board jointly with one or more providers, and each intermediate care facility shall establish a human rights committee to safeguard individuals' rights and protect individuals from physical, emotional, and psychological harm. The human rights committee shall:

(a) Be comprised of at least four persons;

(b) Include at least one individual who receives or is eligible to receive specialized services;

(c) Include qualified persons who have either experience or training in contemporary practices for behavioral support; and

(d) Reflect a balance of representatives from each of the following two groups:

(i) Individuals who receive or are eligible to receive specialized services or family members or guardians of individuals who receive or are eligible to receive specialized services; and

(ii) County boards or providers.

(2) All information and documents provided to the human rights committee and all discussions of the committee shall be confidential and shall not be shared or discussed with anyone other than the individual and his or her guardian and the individual's team.

(3) The human rights committee shall review, approve or reject, monitor, and reauthorize strategies that include restrictive measures. In this role, the human rights committee shall:

(a) Ensure that the planning process outlined in this rule has been followed and that the individual or the individual's guardian, as applicable, has provided informed consent and been afforded due process;

(b) Ensure that the proposed restrictive measures are necessary to reduce risk of harm or likelihood of legal sanction;

(c) Ensure that the overall outcome of the behavioral support strategy promotes the physical, emotional, and psychological wellbeing of the individual while reducing risk of harm or likelihood of legal sanction;

(d) Ensure that a restrictive measure is temporary in nature and occurs only in specifically defined situations based on risk of harm or likelihood of legal sanction;

(e) Verify that any behavioral support strategy that includes restrictive measures also incorporates actions designed to enable the individual to feel safe, respected, and valued while emphasizing choice, self-determination, and an improved quality of life; and

(f) Communicate the committee's determination in writing to the qualified intellectual disability professional or service and support administrator submitting the request for approval.

(4) Members of the human rights committee shall receive department-approved training within three months of appointment to the committee in: rights of individuals as enumerated in section 5123.62 of the Revised Code, person-centered planning, informed consent, confidentiality, and the requirements of this rule.

(5) Members of the human rights committee shall annually receive department-approved training in relative topics which may include but are not limited to: self-advocacy and self-determination; role of guardians and section 5126.043 of the Revised Code; effect of traumatic experiences on behavior; and court-ordered community controls and the role of the court, the county board, and the human rights committee.

(G) Use of a restrictive measure without prior approval by the human rights committee

(1) Use of a restrictive measure, including use of a restrictive measure in a crisis situation (e.g., to prevent an individual from running into traffic), without prior approval by the human rights committee shall be reported as "unapproved behavior support" in accordance with rule 5123:2-17-02 of the Administrative Code.

(2) Nothing in this rule shall be construed to prohibit or prevent any person from intervening in a crisis situation as necessary to ensure a person's immediate health and safety.

(H) Reporting of behavioral support strategies that include restrictive measures

After securing approval by the human rights committee and prior to implementation of a behavioral support strategy that includes restrictive measures, the county board or intermediate care facility shall notify the department in a format prescribed by the department.

(I) Recording use of restrictive measures

Each provider shall maintain a record of the date, time, duration, and antecedent factors regarding each use of a restrictive measure other than a restrictive measure that is not based on antecedent factors (e.g., bed alarm or locked cabinet). The provider shall share the record with the individual and the individual's team whenever the individual's behavioral support strategy is being reviewed or reconsidered.

(J) Analysis of behavioral support strategies that include restrictive measures

(1) Each county board and each intermediate care facility shall compile and analyze data regarding behavioral support strategies that include restrictive measures and furnish the data and analyses to the human rights committee. Data compiled and analyzed shall include, but are not limited to:

(a) Nature and frequency of risk of harm or likelihood of legal sanction that triggered development of strategies that include restrictive measures;

(b) Nature and number of strategies reviewed, approved, rejected, and reauthorized by the human rights committee;

(c) Nature and number of restrictive measures implemented;

(d) Duration of strategies that include restrictive measures implemented; and

(e) Effectiveness of strategies that include restrictive measures in terms of increasing or decreasing behaviors as intended.

(2) County boards and intermediate care facilities shall make the data and analyses available to the department upon request.

(K) Department oversight

(1) The department shall take immediate action as necessary to protect the health and welfare of individuals which may include, but is not limited to:

(a) Suspension of a behavioral support strategy not developed, implemented, documented, or monitored in accordance with this rule or where trends and patterns of data suggest the need for further review;

(b) Provision of technical assistance in development or redevelopment of a behavioral support strategy; and

(c) Referral to other state agencies or licensing bodies, as indicated.

(2) The department shall compile and analyze data regarding behavioral support strategies for purposes of determining methods for enhancing risk reduction efforts and outcomes, reducing the frequency of restrictive measures, and identifying technical assistance and training needs. The department shall make the data and analyses available.

(3) The department may periodically select a sample of behavioral support strategies for review to ensure that strategies are developed, implemented, and monitored in accordance with this rule.

(4) 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.

(L) Waiver of provisions of this rule

For adequate reasons and when requested in writing by a county board or provider, the director may waive a condition or specific requirement of this rule except that the director shall not permit use of a prohibited measure as defined in paragraph (C)(8) of this rule. The director shall grant or deny a request for a waiver within ten working days of receipt of the request or within such longer period of time as the director deems necessary and put whatever conditions on the waiver as are determined to be necessary. Approval to waive a condition or specific requirement of this rule shall not be contrary to the rights, health, or safety of individuals receiving services. The director's decision to grant or deny a waiver is final and may not be appealed.

Replaces: 5123:2-3-25, part of 5123:2-1-02

Effective: 1/1/2015
Five Year Review (FYR) Dates: 01/01/2020
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5123.62, 5124.02, 5124.03, 5126.08
Rule Amplifies: 5123.04, 5123.19, 5123.62, 5124.02, 5124.03, 5126.08
Prior Effective Dates: 07/01/1976, 10/31/1977, 09/30/1983, 12/11/1983, 07/01/1991 (Emer.), 09/13/1991, 04/22/1993, 06/02/1995 (Emer.), 12/09/1995, 02/28/1996 (Emer.), 05/28/1996, 07/12/1997, 08/01/2001, 03/21/2002

5123:2-2-07 Personal funds of the individual.

(A) Purpose

This rule establishes standards of accountability for a provider when the individual plan or individual service plan indicates the provider will be responsible for managing the individual's personal funds.

(B) Scope

This rule applies to persons and entities that provide specialized services regardless of source of payment, including but not limited to:

(1) County boards and entities under contract with county boards;

(2) Residential facilities licensed pursuant to section 5123.19 of the Revised Code, including intermediate care facilities for individuals with intellectual disabilities;

(3) Providers of supported living certified pursuant to section 5123.161 of the Revised Code; and

(4) Providers of services funded by medicaid home and community-based services waivers administered by the department.

(C) Definitions

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

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

(3) "Earned income" has the same meaning as in rule 5160:1-2-01.9 of the Administrative Code. Rule 5160:1-3-03.3 of the Administrative Code shall be followed to determine whether sheltered workshop earnings are earned income or unearned income.

(4) "Immediate family member" means a spouse, parent or stepparent, child or stepchild, sibling or stepsibling, grandparent, or grandchild.

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

(6) "Individual plan" or "individual service plan" means the written description of services, supports, and activities to be provided to an individual.

(7) "Intermediate care facility for individuals with intellectual disabilities" has the same meaning as in section 5124.01 of the Revised Code.

(8) "Major unusual incident" has the same meaning as in rule 5123:2-17-02 of the Administrative Code.

(9) "Patient liability" means the individual's financial obligation toward the medicaid cost of care.

(10) "Person responsible for the estate of the individual" means the executor, administrator, commissioner, or person who filed pursuant to section 2113.03 of the Revised Code for release from administration of an estate.

(11) "Personal funds" means earned income and unearned income retained by an individual after satisfying his or her obligations which may include but are not limited to, rent, individual-specific expenses, or services; satisfying state requirements, including patient liability and/or monthly premiums for services funded by a home and community-based services waiver or the intermediate care facility for individuals with intellectual disabilities program; and satisfying federal requirements, including adherence to income restrictions necessary to maintain medicaid eligibility.

(12) "Provider" means an agency provider or an independent provider that is certified by the department or a residential facility that is licensed by the department.

(13) "Specialized services" means any program or service designed and operated to serve primarily individuals with developmental disabilities, including a program or service provided by an entity licensed or certified by the department. If there is a question as to whether a provider or entity under contract with a provider is providing specialized services, the provider or contract entity may request that the director of the department make a determination. The director's determination is final.

(14) "Team," as applicable, has the same meaning as in rule 5123:2-1-11 of the Administrative Code or means an interdisciplinary team as that term is used in 42 C.F.R. 483.440 as in effect on the effective date of this rule.

(15) "Unearned income" means all income that is not earned income including, but not limited to, social security disability income, supplemental security income, and other public benefits an individual receives.

(D) Each individual shall be afforded the opportunity to manage, to be taught to manage, to receive assistance in managing, and to access all records regarding his or her personal funds and, except when in conflict with a guardianship order or payee agreement, to manage his or her personal funds.

(E) An individual's ability to manage his or her personal funds shall be addressed through the use of formal and/or informal assessments and consideration of what is important to the individual and what is important for the individual.

(1) When an individual has been assessed to need assistance managing his or her personal funds, the parameters and areas of focus for support shall be identified in the individual plan or individual service plan and address:

(a) The name of the person or entity responsible for assisting the individual with managing personal funds;

(b) The dollar amount anticipated to be available to the individual upon request for personal spending; and

(c) The specific type of supports to be provided (e.g., bill-paying, shopping, budgeting, or increasing the individual's independence in managing his or her personal funds).

(2) When an individual has been assessed to need assistance managing his or her personal funds, the individual plan or individual service plan shall, when applicable, address:

(a) The maximum dollar amount that the individual may independently manage at any one time;

(b) The maximum dollar amount that the provider may spend on behalf of the individual for any one expenditure without guardian, payee, and/or team approval; and

(c) The name of the person or entity responsible for providing payee services.

(3) When an individual has been assessed to need assistance managing his or her personal funds, the service and support administrator shall maintain the following information in the individual plan or individual service plan, as applicable, or in the individual's official record:

(a) The name of the person responsible for the estate of the individual in the event of the individual's death; and

(b) When applicable, the name of the person or entity assigned as guardian of the estate.

(F) Each individual, other than an individual who has been assessed to need assistance managing his or her personal funds, shall have access to his or her personal funds to use as he or she chooses to purchase items, goods, and services of his or her preference.

(G) In no circumstance shall an individual be required to use personal funds to purchase or pay for items or services that are reimbursed by medicaid or any other funding source of the provider.

(H) Providers, immediate family members of providers, employees of providers, and immediate family members of employees of providers shall not ask for, otherwise try to secure, or accept loans in any amount from an individual the provider or employee serves.

(I) Providers, immediate family members of providers, employees of providers, and immediate family members of employees of providers shall not sell items to an individual the provider or employee serves unless the transaction is authorized in writing in advance by the team.

(J) Providers, immediate family members of providers, employees of providers, and immediate family members of employees of providers shall not buy items from an individual the provider or employee serves unless the transaction is authorized in writing in advance by the team.

(K) Each provider responsible for managing an individual's personal funds shall:

(1) Develop and implement a written policy regarding management of individuals' funds that:

(a) Includes a system of accounting principles by which the provider retains, safeguards, and accounts for the individual's personal funds;

(b) Requires the provider to deposit an individual's personal funds in the individual's account within five calendar days of receipt;

(c) Prohibits an individual's funds to be co-mingled with the provider's funds;

(d) Prohibits use of an individual's funds to supplement or replace the personal funds of another individual or the provider on a temporary or permanent basis except in situations where a practical arrangement (e.g., individuals take turns purchasing household supplies) is agreed upon and documented in writing;

(e) Requires a summary of financial transactions be made available to the individual, the individual's guardian, team, or the department upon request;

(f) Describes how the provider will ensure that the individual has access to his or her personal funds upon request, but no later than three calendar days from the date of request; and

(g) Outlines the system for monitoring and reporting alleged acts of misappropriation and exploitation in accordance with rule 5123:2-17-02 of the Administrative Code.

(2) Ensure that each person responsible for managing an individual's personal funds is trained in the requirements of this rule and the provider's written policy regarding management of individuals' funds.

(3) Ensure that the team is notified when:

(a) An individual's funds exceed the maximum amount allowed for the individual to maintain eligibility for medicaid, supplemental security income, or social security disability insurance; or

(b) An individual receives a lump sum payment (e.g., benefits back payment) or inheritance.

(L) Accounts established for individuals' personal funds

(1) When the provider has possession of an individual's personal funds, the provider may establish a banking account on behalf of the individual or the individual may establish his or her own account. When the provider establishes a banking account on behalf of an individual:

(a) The provider may establish a separate banking account for each individual's personal funds, combine multiple individuals' personal funds in one banking account, or a combination of both. When multiple individuals' personal funds are combined in one banking account, the provider shall separately account for each individual's funds and allocate interest, if earned, to each individual proportional to the amount of funds each individual maintains in the account.

(b) The individual's personal funds may be maintained in a checking account or a savings account or a combination of both.

(c) The provider shall, to the extent possible, do so in a manner that minimizes banking fees paid by the individual.

(2) A cash account may be maintained by the provider as identified in the individual plan or individual service plan.

(3) For each type of account established for the individual, the provider shall maintain a written or electronic system of accounting which shall contain:

(a) The individual's name;

(b) The source, amount, and date of all funds received;

(c) The signature of the person depositing funds to the account, unless electronically deposited;

(d) The purpose, amount, recipient, and date of all funds withdrawn;

(e) The signature of the person withdrawing funds from the account, unless electronically withdrawn;

(f) For checking accounts and savings accounts, a current account balance reconciled to the most recent bank statement which is signed and dated by the person conducting the reconciliation; and

(g) For any cash accounts maintained by the provider, including gift cards or gift certificates belonging to an individual, a verification of the reconciliation of the documented balance to the actual funds available no less than once every thirty calendar days which is signed and dated by the person conducting the reconciliation.

(4) A person other than the one who provides direct assistance to the individual with managing personal funds or the one who maintains the written or electronic system of accounting for the provider shall conduct the reconciliations required by paragraphs (L)(3)(f) and (L)(3)(g) of this rule.

(M) All personal funds expended by the provider on behalf of an individual shall be accompanied by a receipt for the expenditure unless the individual plan or individual service plan indicates otherwise. The receipt shall identify the item procured, the date, and the amount of the expenditure. When required to maintain receipts, the provider shall obtain other documentation or written explanation if a receipt is unavailable.

(N) When, based on the parameters identified in the individual plan or individual service plan, the provider gives funds from an individual's personal funds account to the individual or the individual's guardian to expend on the individual's behalf, a receipt is required for a single expenditure of fifty dollars or more unless otherwise specified in the individual plan or individual service plan. When a receipt is unavailable, the provider shall obtain other proof of purchase which includes written verification for the amount of funds given to the individual and what was purchased with the funds.

(O) A provider shall restore funds to the individual when:

(1) The provider's failure to implement the individual plan or individual service plan as written results in the loss of the individual's funds; or

(2) The provider's failure to follow its written policy regarding management of individuals' funds results in the loss of an individual's funds; or

(3) The provider or an employee of the provider is the subject of a substantiated misappropriation major unusual incident which results in the loss of the individual's funds and the individual's major unusual incident prevention plan requires the provider to restore the funds.

(P) When the provider has been appointed to act as the payee for the individual's benefits, the provider shall follow all requirements set forth by the governing authority (e.g., social security administration or veterans' administration).

(Q) When the provider has been appointed to act as the payee for the individual's benefits and is paid by the individual or from another funding source for acting as payee, the provider shall not request or accept reimbursement through the individual's home and community-based services waiver for providing payee services.

(R) When the provider has possession of an individual's personal funds, the provider shall release any balance of cash to the individual or the individual's guardian, as applicable, after deducting for actual or estimated expenditures owed by the individual, within five calendar days of the time the individual is no longer served by the provider. Within fourteen calendar days of termination of service, the provider shall prepare a final itemized statement of the individual's personal funds accounts and shall release any remaining personal funds to the individual or the individual's guardian, as applicable, with the itemized statement.

(S) In the event of an individual's death and when the provider has possession of an individual's personal funds, the provider shall dispose of the individual's personal funds in accordance with the following:

(1) A provider other than a state-operated developmental center

(a) The provider shall release the personal funds to the person responsible for the estate of the individual when the provider receives a request for the personal funds in writing from that person within ninety calendar days of the individual's death.

(b) When the provider does not receive a request for the personal funds in writing from the person responsible for the estate of the individual within ninety calendar days of the individual's death and if the individual was a recipient of medicaid benefits, the provider shall mail the funds along with a completed Ohio department of medicaid form 09405, "Personal Needs Allowance Account Remittance Notice" (revised July 2014), to the address indicated on the form.

(c) When the provider does not receive a request for the personal funds in writing from the person responsible for the estate of the individual within ninety calendar days of the individual's death and if the individual was not a recipient of medicaid benefits:

(i) If the provider is a government entity, the provider shall dispose of the funds in accordance with section 9.39 of the Revised Code.

(ii) If the provider is not a government entity, the funds shall be considered unclaimed funds within the meaning of division (P) of section 169.02 of the Revised Code and the provider shall dispose of the funds in accordance with Chapter 169. of the Revised Code.

(2) A state-operated developmental center shall dispose of the personal funds in accordance with section 5123.28 of the Revised Code.

Replaces: 5123:2-3-14

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03, 5126.08
Rule Amplifies: 5123.04, 5123.19, 5123.62, 5124.03, 5126.08
Prior Effective Dates: 05/18/1995, 04/27/2000, 01/01/2006