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

5123:2-2-01 Provider certification.

(A) Purpose

The purpose of this rule is to establish the procedures and standards for certification of providers of supported living services and to comply with the requirements of section 5123.045 of the Revised Code. This rule does not apply to a person or government entity licensed as a residential facility under section 5123.19 of the Revised Code.

(B) Definitions

(1) "Agency provider" means an entity, including a county board of mental retardation and developmental disabilities, that employs persons 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 of mental retardation and developmental disabilities seeking to become a certified provider.

(3) "Department" means the Ohio department of developmental disabilities as established by section 121.02 of the Revised Code.

(4) "Family consortium" means an association of family members related to two or more individuals who reside together, formed for the purpose of providing services for which the family consortium must be certified under this rule.

(5) "GED" means general educational development, a diploma equivalent to a high school diploma issued by the Ohio department of education.

(6) "Independent provider" or "individual 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.

(7) "Individual" means a person with mental retardation or other developmental disability.

(8) "Provider" means a person, family consortium, or agency that is required to be certified under this rule.

(C) Minimum standards for providers

(1) Each provider shall:

(a) Provide to the department written commitment to comply with the requirements of this rule and other standards and assurances established under Chapter 5123. of the Revised Code and division 5123:2 of the Administrative Code for the specific service(s) to be provided; and

(b) Maintain a current mailing address on file with the department.

(2) Each independent provider; each member of a family consortium; each chief executive officer or person responsible for administration of an agency provider; and each employee, contractor, and employee of a contractor of an agency provider who is engaged in a direct services position shall:

(a) Be at least eighteen years of age.

(b) Hold a high school diploma or GED, except for:

(i) Persons who, on the day immediately prior to the effective date of this rule, hold individual provider certification issued by the department; and

(ii) Persons who, on the day immediately prior to the effective date of this rule, are employed by or under contract with an agency provider certified by the department.

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

(i) State of Ohio identification;

(ii) A valid driver's license; or

(iii) Other government-issued photo identification.

(d) Have, at the point of application for initial certification in the case of an agency provider and at the point of application for initial and renewal certification in the case of an independent provider, a current report from the bureau of criminal identification and investigation (BCII), which demonstrates that he/she has not been convicted of or pleaded guilty to any of the offenses listed in division (E) of section 5126.28 of the Revised Code. If the subject of the background investigation cannot present proof that he/she has been a resident of Ohio for the five-year period immediately prior to the date of the background investigation, he/she shall request that BCII obtain information regarding his/her criminal record from the federal bureau of investigation. A BCII report shall be considered current if it is not more than one year old.

(e) Not be listed on the abuser registry established pursuant to sections 5123.50 to 5123.54 of the Revised Code.

(f) Not be listed on the nurse aide registry established pursuant to section 3721.32 of the Revised Code indicating that the director of the Ohio department of health has made a determination of abuse, neglect, or misappropriation of property of a resident of a long-term care facility or residential care facility by the person.

(g) 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.

(h) Be able to effectively communicate with the individual receiving services.

(3) Except for providers of services specified in paragraph (C)(4) of this rule and members of a family consortium, each independent provider and each employee, contractor, and employee of a contractor of an agency provider who is engaged in a direct services position, shall meet the following requirements:

(a) Hold valid "American Red Cross" or equivalent certification in first aid.

(b) Hold valid "American Red Cross" or equivalent certification in cardiopulmonary resuscitation ("CPR").

(c) Have completed, prior to application for initial certification in the case of an independent provider and prior to providing services in the case of an employee, contractor, or employee of a contractor of an agency provider, eight hours of training in accordance with guidelines established by the department that addresses the following topics:

(i) Overview of serving individuals with developmental disabilities;

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

(iii) Overview of basic principles and requirements of providing home and community-based services (HCBS) waiver services;

(iv) The requirements of rule 5123:2-17-02 of the Administrative Code relating to incidents adversely affecting health and safety; and

(v) Universal precautions for infection control, including hand washing and the disposal of bodily waste.

(4) Members of a family consortium and providers of the following HCBS waiver services are exempt from the requirements set forth in paragraph (C)(3) of this rule:

(a) Adaptive and assistive equipment;

(b) Environmental accessibility adaptations;

(c) Home delivered meals;

(d) Informal respite only if provided to the provider's own family member;

(e) Interpreter;

(f) Nutrition;

(g) Personal emergency response systems;

(h) Social work; and

(i) Specialized medical equipment and supplies.

(D) Additional standards for agency providers

(1) Agency providers shall provide evidence to the department to demonstrate that the applicant employs a chief executive officer or a person responsible for administration of the agency who has the following qualifications:

(a) At least one year of full-time, paid work experience in the provision of services to individuals with developmental disabilities which included responsibility for the following functions:

(i) Personnel matters;

(ii) Supervision of employees;

(iii) Program services; and

(iv) Financial management.

(b) A bachelor's degree from an accredited institution or at least four years of full-time, paid work experience as a supervisor of programs or services for individuals with developmental disabilities.

(2) Agency providers shall ensure that, at a frequency of at least once every three years, the chief executive officer or person responsible for administration of the agency and each employee, contractor, and employee of a contractor who is engaged in a direct services position shall undergo a background check by BCII which demonstrates that he/she has not been convicted of or pleaded guilty to any of the offenses listed in division (E) of section 5126.28 of the Revised Code.

(3) Agency providers shall provide to the department written policies and procedures that address the agency's management practices in the following areas:

(a) Principles of individuals' self-determination;

(b) Confidentiality of individuals' records;

(c) Safeguarding individuals' funds;

(d) Incident reporting and investigation;

(e) Individuals' satisfaction with services delivered;

(f) Internal monitoring and evaluating procedures to improve services delivered;

(g) Supervision of staff;

(h) Staff training plan; and

(i) 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/she is every formally charged with, convicted of, or pleads guilty to any of the offenses listed in division (E) of section 5126.28 of the Revised Code within fourteen calendar days after the date of such charge, conviction, or guilty plea.

(E) Reciprocity for certified providers under HCBS waivers administered by the Ohio department of aging and the Ohio department of job and family services

(1) The department may issue, to persons and entities certified to provide services under HCBS waivers administered by the Ohio department of aging or the Ohio department of job and family services, provider certification for similar services under HCBS waivers administered by the department.

(2) Applicants seeking certification under paragraph (E)(1) of this rule shall be required to:

(a) Maintain provider certification issued by the Ohio department of aging or the Ohio department of job and family services;

(b) Meet the requirements set forth in paragraphs (C)(1) and (C)(2) of this rule;

(c) Hold valid "American Red Cross" or equivalent certification in first aid;

(d) Hold valid "American Red Cross" or equivalent certification in cardiopulmonary resuscitation ("CPR");

(e) Have completed, prior to application for initial department certification in the case of an independent provider and prior to providing services in the case of an employee, contractor, or employee of a contractor of an agency provider, four hours of training in accordance with guidelines established by the department that addresses overview of serving individuals with developmental disabilities, the provisions governing rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code, and the requirements of rule 5123:2-17-02 of the Administrative Code relating to incidents adversely affecting health and safety; and

(f) Submit an application to the department for supported living services and the HCBS waiver service(s) the applicant seeks to deliver on forms and in accordance with procedures prescribed by the department, including payment of the application fee specified in paragraph (K) of this rule.

(F) Duties regarding provision of services

(1) The following prohibitions apply to each independent provider, to each member of a family consortium, and to each agency provider and its employees, contractors, and employees of contractors:

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

(b) Engaging in sexual conduct or having sexual contact with an individual for whom he or she is providing care; and

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

(2) The following standards of practice apply to each independent provider, to each member of a family consortium, and to each agency provider and its employees, contractors, and employees of contractors:

(a) Providing services only to individuals whose needs he/she can meet.

(b) Implementing services in accordance with the individual's service plan (ISP).

(c) Taking all reasonable steps necessary to prevent the occurrence or reoccurrence of incidents adversely affecting health and safety of individuals served.

(d) Complying with the requirements of behavior supports established under rules adopted by the department.

(e) Ensuring that anyone responsible for implementing behavior support plans receives training in the plan components prior to implementation of the plans.

(f) Arranging for substitute coverage, if necessary, only from a provider certified by the department and as identified in the ISP; notifying the individual or legally responsible person(s) in the event that substitute coverage is necessary; and notifying the person identified in the ISP when substitute coverage is not available to allow such person to make other arrangements.

(g) Notifying, 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 calendar 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 of mental retardation and developmental disabilities 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.

(3) The following ongoing training requirements apply to each independent provider, to each member of a family consortium, and to each agency provider and its employees, contractors, and employees of contractors:

(a) To annually complete training, in accordance with standards established by the department, in the provisions governing rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(b) To annually complete training, in accordance with standards established by the department, in the requirements of rule 5123:2-17-02 of the Administrative Code relating to incidents adversely affecting health and safety.

(G) Procedure for obtaining initial certification

(1) The applicant shall submit an application to the department for supported living services and the HCBS waiver service(s) the applicant seeks to deliver on forms and in accordance with procedures prescribed by the department.

(2) The department shall provide the applicant with all relevant application materials and service-specific standards and assurances established under Chapter 5123. of the Revised Code and division 5123:2 of the Administrative Code for the service(s) the applicant seeks to deliver.

(3) The applicant shall submit the 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 division 5123:2 of the Administrative Code.

(4) 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 service(s) the applicant is seeking to deliver, and the application fee specified in paragraph (K) of this rule.

(5) If the application is complete, the department shall review the application and notify the applicant in writing of its decision to approve or deny certification within forty-five calendar days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific service(s) for which the applicant is approved. The department shall obtain a medicaid provider number from the Ohio department of job and family services for certified providers of HCBS waiver services; the department shall notify the certified provider in writing within twenty calendar days of receipt of the medicaid provider number.

(6) If the application is incomplete, the department shall, within forty-five calendar days of receipt of the application, notify the applicant in writing that the application is deficient and advise that the applicant has ninety calendar days to submit documentation needed to complete the application.

(a) When documentation is received by the department within the specified ninety calendar days that results in a complete application, the department shall review the application and notify the applicant in writing of its decision to approve or deny the certification within forty-five calendar days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific service(s) for which the applicant is approved. The department shall obtain a medicaid provider number from the Ohio department of job and family services for certified providers of HCBS waiver services; the department shall notify the certified provider in writing within twenty calendar days of receipt of the medicaid provider number.

(b) If after ninety calendar days, the applicant fails to submit documentation that results in a complete application, the department shall take no further action with respect to the application.

(H) Procedure for obtaining certification to provide additional HCBS waiver service(s) during the term of existing department-issued certification

(1) A department-certified provider seeking to deliver additional HCBS waiver service(s) shall request application materials from the department.

(2) The department shall provide the applicant with all relevant application materials and service-specific standards and assurances established under Chapter 5123. of the Revised Code and division 5123:2 of the Administrative Code for the additional HCBS waiver service(s) the applicant seeks to deliver.

(3) The applicant shall submit the 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 division 5123:2 of the Administrative Code.

(4) 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 service(s) the applicant is seeking to deliver, and the application fee specified in paragraph (K) of this rule.

(5) If the application is complete, the department shall review the application and notify the applicant in writing of its decision to approve or deny certification within forty-five calendar days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific service(s) for which the applicant is approved.

(6) If the application is incomplete, the department shall, within forty-five calendar days of receipt of the application, notify the applicant in writing that the application is deficient and advise that the applicant has ninety calendar days to submit documentation needed to complete the application.

(a) When documentation is received by the department within the specified ninety calendar days that results in a complete application, the department shall review the application and notify the applicant in writing of its decision to approve or deny the additional certification within forty-five calendar days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific service(s) for which the applicant is approved.

(b) If after ninety calendar days, the applicant fails to submit documentation that results 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 regular mail to the address on file of required certification renewal no later than sixty calendar 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 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 division 5123:2 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 service(s) the applicant is seeking to deliver, and the application fee specified in paragraph (K) of this rule.

(4) If the application is complete, the department shall review the application and notify the applicant in writing of its decision to approve or deny certification within forty-five calendar days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific service(s) for which the applicant is approved.

(5) If the application is incomplete, the department shall, within forty-five calendar days of receipt of the application, notify the applicant in writing that the application is deficient and advise that the applicant has ninety calendar days to submit documentation needed to complete the application.

(a) When documentation is received by the department within the specified ninety calendar days that results in a complete application, the department shall review the application and notify the applicant in writing of its decision to approve or deny the renewal certification within forty-five calendar days of receipt of the complete application. The notification shall specify the effective date and expiration date of the certification and the specific service(s) for which the applicant is approved.

(b) If after ninety calendar days, the applicant fails to submit documentation that results in a complete application, the department shall take no further action with respect to the application.

(6) A provider shall not provide services or submit claims for reimbursement for services delivered subsequent to expiration of the provider's certification.

(J) Time-limited certification

(1) The department shall implement time-limited certification for providers certified prior to the effective date of this rule in a manner and for a term determined by the department not to exceed three years. The department shall notify providers by regular mail to the address on file that the providers' certification is being converted to a time-limited certification in accordance with this rule.

(2) Initial certifications issued subsequent to the effective date of this rule shall be for a term of one year.

(3) Renewal certifications issued subsequent to the effective date of this rule shall be for a term of three years.

(K) Application fees

(1) Applicants seeking certification to provide the following HCBS waiver services shall not be subject to an application fee:

(a) Adaptive and assistive equipment;

(b) Environmental accessibility adaptations;

(c) Home delivered meals;

(d) Interpreter;

(e) Nutrition;

(f) Personal emergency response systems;

(g) Social work; and

(h) Specialized medical equipment and supplies.

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

(a) Application fee for initial certification

(i) The application fee for an independent provider or a family consortium seeking initial certification shall be fifty 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 shall be three 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 shall be seven hundred dollars.

(b) Application fee for certification to provide additional HCBS waiver service(s) during the term of existing department-issued certification

(i) The application fee for an independent provider or a family consortium seeking certification to provide additional HCBS waiver service(s) shall be fifteen 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 HCBS waiver service(s) shall be fifty 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 HCBS waiver service(s) shall be one hundred dollars.

(c) Application fee for renewal certification

(i) The application fee for an independent provider or a family consortium seeking renewal certification shall be one hundred dollars.

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

(3) Applicants shall pay application fees in the form of a cashier's check, corporate check, or money order, payable to the Ohio department of developmental disabilities or, once the department has established the capability to accept fees electronically, by electronic funds transfer in accordance with procedures established by the department.

(4) Application fees are non-refundable.

(L) Continuing certification standards

(1) Certified providers shall comply with the requirements of this rule and other standards and assurances established under Chapter 5123. of the Revised Code and division 5123:2 of the Administrative Code for the specific service(s) provided.

(2) Certified providers shall report in writing to the department, if the independent provider, a member of the family consortium, or the chief executive officer or person responsible for administration of the agency provider is ever formally charged with, convicted of, or pleads guilty to any of the offenses listed in division (E) of section 5126.28 of the Revised Code within fourteen calendar days after the date of such charge, conviction, or guilty plea.

(M) Expired certifications

(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.

(N) 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 division 5123:2 of the Administrative Code for the specific service(s) to be provided.

(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 service-specific standards established under Chapter 5123. of the Revised Code and division 5123:2 of the Administrative Code may result in corrective action by the department, up to and including suspension 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, a member of a family consortium, or the chief executive officer or person responsible for administration of the agency provider to any of the offenses listed in division (E) of section 5126.28 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.

(O) 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.

(P) HCBS waiver services

HCBS waiver services shall not be subject to sections 5126.40 to 5126.47 of the Revised Code.

Replaces: 5123:2-9-09, 5123:2-12-02, 5123:2-12-06

Effective: 10/01/2009
R.C. 119.032 review dates: 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 5123.04 , 5123.045 , 5123.16 , 5123.161 , 5123.162 , 5123.163 , 5123.164 , 5123.165 , 5123.166 , 5123.168 , 5123.169 , 5126.28 , 5126.281 , 5111.871
Rule Amplifies: 5123.04 , 5123.045 , 5123.16 , 5123.161 , 5123.162 , 5123.163 , 5123.164 , 5123.165 , 5123.166 , 5123.168 , 5123.169 , 5126.28 , 5126.281 , 5111.871
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

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