Chapter 5123:2-9 HCBS Waiver Services

5123:2-9-01 HCBS waivers - Enrollment and disenrollment.

(A) Purpose

The purpose of this rule is to establish procedures for the enrollment, denial of enrollment and disenrollment of individuals in HCBS waivers.

(B) Definitions

(1) “CMS” means the centers for medicare and medicaid services.

(2) “County board” means a county board of mental retardation and developmental disabilities established under Chapter 5126. of the Revised Code or a person or government entity, including a council of governments, with which a county board has contracted for assistance with its medicaid local administrative authority pursuant to division (E) of section 5126.055 of the Revised Code.

(3) “CDJFS” means county department of job and family services.

(4) “Department” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(5) “FFP” means federal financial participation.

(6) “HCBS” means medicaid-funded home and community-based services provided under a medicaid component that the department administers pursuant to section 5111.871 of the Revised Code.

(7) “ICF/MR” means intermediate care facility for the mentally retarded.

(8) “ODJFS” means the Ohio department of job and family services as established by section 121.02 of the Revised Code.

(9) “PAWS” means payment authorization for waiver services.

(10) “Prescreen tool” means an assessment for the level one waiver.

(11) “SSA” means service and support administrator, a county board employee who provides a variety of coordination activities for individuals in accordance with section 5126.15 of the Revised Code.

(C) The county board shall ensure and/or assist the individual with the submission of the application for HCBS waiver enrollment (JFS 02399) to the CDJFS. The department shall accept notification of requests for HCBS waiver enrollment that are referred by the CDJFS. The department shall notify the appropriate county board when it receives a notification of a request from the CDJFS.

(D) A county board that contracts with a person or government entity, including a council of governments, for assistance with its medicaid local administrative authority pursuant to division (E) of section 5126.055 of the Revised Code shall notify in writing the director of the department that the person or government entity will implement the requirements of this rule on behalf of the county board, if the tasks and responsibilities that the contract gives to the person or government entity include the county board’s tasks and responsibilities under this rule.

(E) For each separate HCBS waiver, the department may authorize enrollment by allocating to county boards enrollment numbers in accordance with rule 5123:2-9-03 of the Administrative Code, when the number of filled waiver slots for each waiver year is less than the number of waiver slots approved by CMS for that waiver year. The department shall provide notice of such allocation to county boards. Within ninety calendar days from receipt of such notice from the department, the county board shall submit the assessments and other necessary enrollment information pursuant to paragraph (F) of this rule. The county board may request an extension of the deadline referenced in this paragraph. Failure of the county board to meet the requirements of this paragraph shall result in the department providing the county board with a fifteen day prior notice that the authorization to enroll pursuant to rule 5123:2-9-03 of the Administrative Code is to be withdrawn.

(F) (1) Upon authorization by the department to enroll individuals in HCBS waivers, the county board shall:

(a) Determine the individual’s eligibility for county board services. Individuals determined to have an ICF/MR level of care and who meet all other eligibility criteria shall be eligible for HCBS waiver enrollment even if determined not eligible for county board services in accordance with this paragraph.

(b) Complete the required assessments of the individual in accordance with rules 5101:3-3-07 and 5101:3-3-15.5 of the Administrative Code and paragraphs (F)(1)(b)(i) and

(F)(1)(b)(ii) of this rule.

(i) For the level one waiver, administer the prescreen tool to individuals who seek enrollment to identify any health and welfare needs that must be addressed before enrollment and, as necessary, to identify any non-waiver services and supports the individual needs to assure the individual’s health and welfare. The SSA shall follow the protocol developed by the department in the administration of the prescreen tool, which shall address the circumstances in which the individual will be enrolled in the level one waiver.

(ii) For other HCBS waivers administered by the department, complete any assessment specific to those waivers in accordance with rules adopted by the department.

(c) Forward to the department all necessary enrollment information, including a request for an ICF/MR level of care determination with respect to the individual.

(2) Upon receipt of the county board’s request for an ICF/MR level of care determination, the department shall determine whether the individual has an ICF/MR level of care in accordance with rules 5101:3-3-07 and 5101:3-3-15.5 of the Administrative Code.

(G) (1) Individuals determined eligible for waiver services shall receive written notice from the department and waiver services may be initiated on the date indicated by the department. The department shall also notify the county board.

(2) Individuals determined not eligible for HCBS waiver services shall receive written notice of the denial from the department in accordance with paragraph (K) of this rule. The department also shall notify the county board.

(H) (1) The county board shall submit an ICF/MR level of care redetermination to the department in accordance with rule 5101:3-3-15.5 of the Administrative Code.

(2) Subsequent to initial enrollment in HCBS waivers, the county board shall evaluate the current needs and circumstances of the individual in relationship to the services and activities described on the individual’s most current individual service plan (ISP) and recommend appropriate action to the department, which may include a recommendation to disenroll the individual from the HCBS waiver, when any one of the following occur:

(a) There is a significant change in the individual’s condition as defined in rule paragraph (B)(10) of rule 5101:3-3-15.5 of the Administrative Code.

(b) The individual is admitted to a nursing facility or ICF/MR or is incarcerated.

(d) The individual interferes with or otherwise refuses to cooperate with the county board and such interference or refusal to cooperate renders the county board unable to perform its medicaid local administrative authority under section 5126.055 of the Revised Code.

(e) The individual ceases to meet the eligibility criteria for enrollment in the HCBS waiver.

(3) Upon receipt of a recommendation from a county board in accordance with paragraph

(H)(2) of this rule, the department shall within a reasonable period of time make a determination, inform the county board accordingly and take whatever additional actions that may be required by law, which may include, but are not limited to, proposing to disenroll the individual from the HCBS waiver in accordance with paragraph (K) of this rule.

(I) (1) When the cost of waiver services for the individual exceeds the amount authorized by CMS for the waiver in which the individual is enrolled, the county board shall evaluate the individual and submit a recommendation to the department regarding whether or not the individual can remain enrolled in the waiver and have his or her health and welfare assured by one or more of the following measures:

(a) Adding more available natural supports;

(b) Accessing available non-waiver services, other than natural supports;

(c) Accessing funds on deposit in a county MR/DD medicaid reserve fund or the state bridge fund in accordance with rule 5123:1-5-02 of the Administrative Code;

(d) If the individual is enrolled in the level one waiver, accessing services available under the emergency assistance service covered by that waiver; or

(e) If the individual is enrolled in the level one waiver, prior authorizing additional services or levels of service subject to the limitations of that waiver.

The county board shall consider all of the measures set forth in paragraphs (I)(1)(a) to

(I)(1)(e) of this rule before submitting a recommendation to the department.

(2) Upon receipt of a recommendation from a county board in accordance with paragraph

(I)(1) of this rule, the department shall within a reasonable period of time make a determination as to the individual’s continued enrollment in the waiver and inform the county board accordingly. If the department determines that the individual can not continue to be enrolled in the waiver and have his or her health and welfare assured by one or more of the measures set forth in paragraph (I)(1) of this rule, the department shall propose to disenroll the individual from the waiver in accordance with paragraph (K) of this rule.

(3) When the department proposes to disenroll an individual in accordance with paragraph

(I)(2) of this rule, the county board shall do both of the following:

(a) Offer the individual the opportunity to apply for an alternate HCBS waiver for which the individual is eligible that may more adequately respond to the services needs of the individual, to the extent that such waiver openings exist; and

(b) Offer the individual an opportunity for placement in an ICF/MR including a state-operated developmental center.

(J) Replacement of a disenrolled individual shall be initiated by the county board and authorized by the department when the federally authorized limit of participants and FFP for the current waiver year has not been reached.

(1) The county board shall replace the disenrolled individual with an individual selected pursuant to rule 5123:2-1-08 of the Administrative Code.

(2) Failure of the county board to replace a disenrolled individual shall result in the department providing the county board with a fifteen day prior notice that the authorization to enroll pursuant to rule 5123:2-9-03 of the Administrative Code is to be withdrawn.

(K) When the enrollment or denial of enrollment in or disenrollment from an HCBS waiver is proposed, written notice shall be provided to the individual at least fifteen days prior to the proposed action. Notification shall include information informing the individual of his or her right to a state hearing under section 5101.35 of the Revised Code and Chapters 5101:6-1 to 5101:6-9 of the Administrative Code. If the individual exercises his or her right to appeal within fifteen days of the date of the notice, the proposed action shall not be taken pending the outcome of the state hearing. When enrollment, denial of enrollment, or disenrollment is proposed because of the county board’s recommendation, and the individual requests a state hearing, the county board shall comply with its obligation to participate in the state hearing in accordance with section 5126.055 of the Revised Code. The department and the county board shall abide by the findings of the state hearing.

HISTORY: Eff 6-2-95 (Emer.); 12-9-95; 2-28-96 (Emer.); 5-28-96; 7-12-97; 3-21-02; 4-28-03

Rule promulgated under: RC 119.03

Rule authorized by: RC 5123.04, 5111.871

Rule amplifies: RC 5123.04, 5111.871

Replaces: 5123:1-2-10

R.C. 119.032 review dates: 04/28/2008

5123:2-9-02 HCBS waivers - Designation of local matching funds.

(A) Purpose

The purpose of this rule is to delineate the procedures by which county boards may supplement their state matching funds allocation for HCBS waiver services. Additionally, this rule specifies those sources of funds that may be used to supplement the county board state match allocation. This rule provides the department authority to withhold subsidies and other payments that are otherwise due the county to ensure adequate match for HCBS waiver services when a county board fails to pay matching funds.

(B) Definitions

(1) “County board” means a county board of mental retardation and developmental disabilities established under Chapter 5126. of the Revised Code.

(2) “Department” means the Ohio department of mental retardation and developmental disabilities.

(3) “Fund transfers” means the payment by a county board to the department of public funds to be used as matching funds for HCBS waiver services.

(4) “HCBS” means medicaid-funded home and community-based services provided under a medicaid component that the department administers pursuant to section 5111.871 of the Revised Code.

(5) “Matching funds” means the nonfederal share of medicaid eligible expenditures for services provided to medicaid eligible individuals, which is the cost of medicaid services less the amount of federal financial participation (FFP).

(C) In accordance with section 5126.057 of the Revised Code, a county board that has local medicaid administrative authority shall pay the matching funds for eligible individuals receiving medicaid home and community-based services that the department is not required to pay under paragraph (B) of section 5123.047 of the Revised Code.

(D) County boards may supplement any state matching funds for medicaid services allocated to the county by the department by designation of local funds or state subsidies distributed by the department for non-medicaid programs or services.

(1) The county board may designate for use as medicaid matching funds, amounts from the following funding sources:

(a) Funds that the department distributes to the county board as subsidy payments.

(b) Tax equity.

(d) Earned federal revenue.

(e) Other public funds.

(2) Fund transfers of local levy funds, other public funds, subsidy payments received from the department, or earned federal revenue will require payment by electronic funds transfer (EFT) or check made payable to the “Treasurer, State of Ohio.” Fund transfers shall be submitted quarterly to the department based on an itemized invoice issued by the department.

(E) County boards that fail to pay the matching funds of medicaid expenditures shall be subject to any of the following actions by the department to recover any shortfall of match for actual expenditures for medicaid services:

(1) Withholding of any subsidies due the county from the department.

(2) Reduction of payments for medicaid earned federal revenue for service rendered by the county.

(3) Bringing a mandamus action against the county board pursuant to section 5123.0411 of the Revised Code.

Replaces: 5123:2-9-02

Effective: 02/16/2007

R.C. 119.032 review dates: 02/16/2012

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5111.871

Rule Amplifies: 5123.04, 5126.057, 5111.871

Prior Effective Dates: 04/28/2003

5123:2-9-03 HCBS waivers - Allocation of waiver enrollment numbers to county boards.

(A) Purpose

The purpose of this rule is to establish a procedure by which HCBS waiver enrollment numbers are allocated by the department to county boards.

(B) Definitions

(1) “CMS” means the centers for medicare and medicaid services, a division of the United States department of health and human services.

(2) “County board” means a county board of mental retardation and developmental disabilities established under Chapter 5126. of the Revised Code.

(3) “Department” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(4) “HCBS” means medicaid-funded home and community-based services provided under a medicaid component that the department administers pursuant to section 5111.871 of the Revised Code.

(5) “ODJFS” means the Ohio department of job and family services as established by section 121.02 of the Revised Code.

(C) The department shall allocate HCBS waiver enrollment numbers to county boards in accordance with the requirements of section 5111.872 of the Revised Code and this rule.

(D) In the event that there are not enough approved HCBS waiver enrollment numbers available to meet the requirements of section 5111.872 of the Revised Code, the department shall request that ODJFS seek permission from CMS to approve the required number of enrollment numbers. Until that time, the allocation of enrollment numbers will be prorated in such a manner that each county board receives an equal proportion of HCBS waiver enrollment numbers, but ensuring that all county boards receive at least one.

(E) The department shall inform the county board of the HCBS waiver enrollment numbers allocated to the county board pursuant to paragraphs (C), (D), and (F) of this rule, or removed from the county board’s allocation, in accordance with the notice requirements of paragraph (E) of rule 5123:2-9-01 of the Administrative Code.

(F) Any HCBS waiver enrollment numbers approved by CMS that remain unallocated to a county board after all criteria established in this rule have been met shall be retained by the department for distribution by the director based upon the needs and requests of county boards to assure compliance with divisions (A)(1) and (D) of section 5126.042 of the Revised Code.

HISTORY: Eff 4-28-03

Rule promulgated under: RC 119.03

Rule authorized by: RC 5123.04, 5111.871

Rule amplifies: RC 5123.04, 5111.871, 5111.872

R.C. 119.032 review dates: 04/28/2008

5123:2-9-04 Medicaid local administrative authority.

(A) This rule identifies the duties of the medicaid local administrative authority (MLAA) and serves to outline the requirements for home and community-based services waiver administration by a county board that has MLAA in accordance with section 5126.055 of the Revised Code. Nothing in this rule shall be construed to limit the duties, obligations or requirements imposed on a county board as specified in Chapters 5111., 5123., and 5126. of the Revised Code and the Ohio Administrative Code, including but not limited to sections 5111.041, 5126.055, and 5126.057 of the Revised Code.

(B) Definitions

(1) “Applicable requirements” means:

(a) Federal and state laws and regulations that govern the conduct of the MLAA and/or the 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, as amended, under which federal reimbursement is provided for designated home and community-based services to eligible individuals, which is administered by ODMRDD pursuant to an interagency agreement between ODMRDD and ODJFS.

(2) “County board” means a county board of mental retardation and developmental disabilities established under Chapter 5126. of the Revised Code.

(3) “Home and community-based services (HCBS)” has the same meaning as in section 5126.01 of the Revised Code.

(4) “Individual” means a person with mental retardation or other developmental disability who is eligible to receive HCBS as an alternative to placement in an intermediate care facility for the mentally retarded under the applicable HCBS waiver. A guardian or authorized representative as defined in rule 5101:1-2-01 of the Administrative Code may take any action on behalf of an individual, may make choices for an individual or may receive notice on behalf of an individual to the extent permitted by applicable law.

(5) “Individual service needs addendum” means an individual service needs addendum as described in section 5126.035 of the Revised Code.

(6) “ISP” means the individual service plan, a written description of the services, supports, and activities to be provided to an individual.

(7) “MLAA” means a county board with medicaid local administrative authority pursuant to section 5126.055 of the Revised Code.

(8) “ODJFS” means the Ohio department of job and family services as established by section 121.02 of the Revised Code.

(9) “ODMRDD” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(10) “PAWS” means payment authorization for waiver services.

(11) “Provider” means a person who has a medicaid provider agreement issued by ODJFS and is certified by ODMRDD to provide HCBS.

(12) “Service and support administration” means the functions listed in section 5126.15 of the Revised Code.

(13) “Service contract” means a contract for HCBS under section 5126.035 of the Revised Code between the MLAA and the provider.

(1) The MLAA shall perform assessments and evaluations of the individual in accordance with division (A)(1) of section 5126.055 of the Revised Code.

(2) ISPs shall be developed for each individual in accordance with applicable requirements and shall:

(a) Be written.

(b) Be developed by the person(s) employed by, or contracting with, the county board that is responsible for service and support administration with the active participation of the individual, other persons chosen by the individual, and, where applicable, the individual’s provider in accordance with sections 5126.055 and 5126.15 of the Revised Code.

(c) Describe, regardless of funding source, medical and other services identified through the assessment process to be furnished to the recipient, the service frequency, the service duration, the type of provider who will furnish each service, and the completion and approval date(s) of the ISP.

(d) Be the fundamental tool by which the MLAA and state will ensure the health, safety, and welfare of the individuals served under the waiver. As such, it will be subject to periodic review and update. These reviews will take place to determine the appropriateness and adequacy of the services, and to ensure that the services furnished are consistent with the nature and severity of the individual’s disability;

(e) Be updated annually. The ISP shall be updated more frequently if there is a change in the individual’s condition, if the individual chooses a new provider or types of services. The county board shall convene an ISP meeting within ten working days of a request from an individual for a review of the ISP.

(f) Be subject to the approval of ODMRDD and ODJFS in accordance with sections 5111.871 and 5126.055 of the Revised Code.

(g) Identify the county board representative(s) responsible for service and support administration.

(h) Maximize the use of natural supports and generic resources.

(i) Be maintained in accordance with rule 5101:3-1-17.2 of the Administrative Code.

(3) If the individual has been identified by ODMRDD as an individual to receive priority for HCBS pursuant to division (D)(3) of section 5126.042 of the Revised Code, the MLAA shall assist ODMRDD in expediting the transfer of the individual from an intermediate care facility for the mentally retarded or nursing facility to HCBS.

(4) In accordance with section 5126.046 of the Revised Code, the MLAA shall assist the individual(s) to choose a qualified and willing provider of the services and, at a hearing under section 5101.35 of the Revised Code, present evidence of the process for appropriate assistance in choosing providers.

(5) A provider is qualified to provide HCBS to an individual if the following requirements are met:

(a) The provider is certified by ODMRDD for the services.

(b) The provider is eligible to enter into or has entered into a service contract with the MLAA in accordance with rule 5123:2-9-05 of the Administrative Code.

(6) Contract for services

(a) The MLAA shall contract for services with service providers chosen by the individual in accordance with sections 5126.035 and 5126.055 of the Revised Code and rule 5123:2-9-05 of the Administrative Code.

(b) The service contract is a two-party contract between the MLAA and the provider.

(c) In the event that an employee of the county board is selected to provide an applicable HCBS waiver service (i.e., homemaker personal care or informal respite) in accordance with the individual options or level one waiver, the provisions of section 5126.033 of the Revised Code must be adhered to and the ethics council of the county board must approve a contract with the employee separate and apart from the employee’s employment with the board.

(d) Pursuant to section 5126.046 of the Revised Code, the county board may provide any adult service when selected by an individual, including applicable waiver services as included with a waiver and which constitute adult services as defined in section 5126.01 of the Revised Code.

(7) If the MLAA is a county board that is certified under section 5123.045 of the Revised Code to provide the services and agrees to provide the services to the individual and the individual chooses the county board to provide the services in accordance with section 5126.046 of the Revised Code, the county board may furnish, in accordance with the county board’s medicaid provider agreement and for the authorized reimbursement rate, the services the individual requires. The ISP shall be the full scope of the contractual requirement for such services and the individual shall have the right to change providers in accordance with section 5126.046 of the Revised Code. Pursuant to division (A)(6) of section 5126.055 of the Revised Code. ODMRDD shall provide monitoring of such services in addition to the monitoring that the board shall do of its own employees pursuant to applicable regulations.

(8) The MLAA shall monitor the services provided to the individual to ensure the individual’s health, safety, and welfare. Monitoring by the MLAA shall include compliance by the provider with quality assurance activities, certification standards and provider adherence to applicable requirements. ODMRDD shall promulgate rules or use existing rules for MLAA monitoring of compliance with standards. Monitoring by the MLAA shall be conducted with strict adherence to rules governing monitoring as established by ODMRDD. If the county board provides the services, then ODMRDD shall also monitor the services provided by the county board.

(9) The MLAA shall take necessary action, in accordance with applicable requirements, to ensure the health, safety and welfare of individuals served.

(10) The MLAA shall take action in accordance with rule 5123:2-8-18 of the Administrative Code if it determines that a deficiency or violation of applicable requirements related to provider certification standards has occurred, but has not resulted in, and is not reasonably likely to result in, a risk to the individual’s health, safety, or welfare. The MLAA shall conduct quality assurance reviews in accordance with section 5126.431 of the Revised Code and rule 5123:2-12-01 of the Administrative Code for individuals who receive HCBS in accordance with the definition of supported living in section 5126.01 of the Revised Code.

(11) The MLAA shall have an investigative agent conduct investigations under section 5123.313 of the Revised Code that concern the individual.

(12) The MLAA shall have a service and support administrator perform the duties under division (B)(9) of section 5126.15 of the Revised Code that concern the individual.

(13) The MLAA shall develop and maintain a file for each individual, which, at a minimum, includes the following information:

(a) Copies of required assessments;

(b) Initial and subsequent ISPs, including evidence of the ISP’s approval date;

(c) Evidence of ICF/MR level of care determination and redetermination of eligibility at a minimum of each twelve months;

(d) ODMRDD’s confirmation of PAWS;

(e) Patient liability amounts and identification of HCBS provider(s) to whom each amount is assigned in accordance with paragraph (M)(2) of rule 5123:1-2-08, paragraph (L) of rule 5123:1-2-11 of the Administrative Code, paragraph (K)(2) of rule 5123:2-8-16 of the Administrative Code, or paragraph (H)(3) of rule 5123:2-9-06 of the Administrative Code, as applicable.

(f) Evidence of an ISP review at a minimum of every twelve months to determine the appropriateness and adequacy of the services, and to ensure that the services furnished will ensure the individual’s health, safety and welfare and are consistent with the nature and severity of the individual’s disability.

(g) Evidence that the individual was provided appropriate prior notice of any action to approve, reduce, deny, or terminate HCBS and notice of an opportunity for a fair hearing in accordance with rule 5101:6-2-04 of the Administrative Code.

(h) Identification of the person employed by or under contract with the county board that is responsible for overall service and support administration for the individual.

(14) The county board shall perform its medicaid local administrative authority in accordance with applicable requirements.

(15) The MLAA shall abide by all terms and conditions set forth in the federallyapproved waiver document, including any appendices and attachments. ODMRDD shall assure that each MLAA has a current copy of the HCBS waivers and shall provide training to the MLAA on the terms, conditions, appendices and attachments of each waiver. ODMRDD shall also make such training available to providers.

(16) The MLAA shall maintain current knowledge of state and federal requirements related to HCBS waivers, using information as provided by ODMRDD and ODJFS.

(17) The MLAA may not delegate its medicaid local administrative authority granted under section 5126.055 of the Revised Code, but may contract with a person or government entity, including a council of governments, for assistance with its medicaid local administrative authority. The MLAA that enters into such a contract shall notify the director of ODMRDD. The notice shall include the tasks and responsibilities that the contract gives to the person or government entity. The person or government entity shall comply in full with all requirements to which the MLAA is subject regarding the person or government entity’s tasks and responsibilities under the contract. The MLAA remains ultimately responsible for tasks and responsibilities.

(18) The MLAA shall, through ODMRDD and ODJFS, reply to, and cooperate in arranging compliance with, a program or fiscal audit or program violation exception that a state or federal audit or review discovers as required by division (F) of section 5126.055 of the Revised Code. The MLAA, in conjunction with ODMRDD, shall cooperate fully with ODJFS and shall timely prepare and send to ODMRDD a written plan of correction or response to any adverse findings. The MLAA is liable for any adverse findings that result from an action that the MLAA takes or fails to take in its implementation of medicaid local administrative authority.

(19) The MLAA shall correct all deficiencies in the manner and times required by division

(G) of section 5126.055 of the Revised Code.

(20) The MLAA shall pay to ODMRDD an annual fee equal to one per cent of the total value of all medicaid paid claims for home and community-based services for which the MLAA contracts or provides itself as required by section 5123.0412 of the Revised Code. The ODMRDD shall utilize this fee in accordance with section 5123.0412 of the Revised Code.

(21) A county board that has MLAA shall pay the nonfederal share of HCBS waiver expenditures as required by section 5126.057 of the Revised Code and rule 5123:2-9-02 of the Administrative Code, unless ODMRDD is required to pay the nonfederal share under division

(C)(2)of section 5123.047 of the Revised Code.

(22) The MLAA shall submit a PAWS from to ODMRDD in the format required by ODMRDD within fourteen days of authorization of new services or modification to existing services. Upon receiving confirmation from ODMRDD, the MLAA shall provide a copy of the PAWS to the individual and any service providers that the individual has chosen within fourteen days.

(23) The MLAA shall issue a notice of hearing rights to an individual in accordance with section 5101.35 of the Revised Code when the MLAA recommends the approval, reduction, denial, or termination of the individual’s HCBS and such recommendation is not reversed by ODMRDD or ODJFS.

(D) Responsibilities of the ODMRDD for medicaid waiver administration functions

(1) ODMRDD shall oversee MLAA activities to ensure compliance with applicable laws. If ODMRDD determines that the MLAA is deficient in its administration of medicaid waiver services, then ODMRDD may take appropriate actions authorized by applicable law including, but not limited to, division (G) of section 5126.055 of the Revised Code or section 5126.056 of the Revised Code to ensure MLAA compliance with applicable laws.

(2)

(a) If a county board’s medicaid local administrative authority for HCBS is terminated in accordance with section 5126.056 of the Revised Code, ODMRDD shall do either of the following:

(i) Contract under section 5126.056 of the Revised Code with another county board that has not had any of its medicaid local administrative authority terminated or another entity to perform waiver administrative activities in accordance with this rule.

(ii) Appoint under section 5126.056 of the Revised Code an administrative receiver to perform waiver administrative activities in accordance with this rule.

(b) A county board whose medicaid local administrative authority for HCBS has been terminated in accordance with section 5126.056 of the Revised Code shall comply with its duties under that statute.

(3) ODMRDD and ODJFS shall seek federal financial participation (FFP) at fifty per cent of total cost for HCBS waiver administration provided in accordance with this rule subject to allowance by federal government.

(a) ODMRDD and ODJFS shall not seek FFP for HCBS waiver administration claims if either agency determines that all or part of the claims do not comply with standards set forth in federal law and OMB circulars and other directives or guidelines issued by the federal government.

(b) ODMRDD and ODJFS shall not seek FFP for HCBS waiver administration claims for any county board that does not have a contract with ODMRDD obligating the county board to abide by federal law including but not limited to the requirements set forth in federal law, OMB circulars, and other directives or guidelines issued by the federal government. The contract required shall be in the form as set forth in appendix A to this rule.

(4) Claims for FFP for HCBS waiver administration activities performed in accordance with this rule shall comply with the following requirements:

(a) The MLAA shall identify the employees and/or persons paid under contract who perform HCBS waiver administration activities and identify for each whether such activities are one hundred per cent or less than one hundred per cent of their time.

(b) The MLAA shall accurately reflect in the employee position description and/or the terms of the contract with the contract entity the HCBS waiver administration activities for which FFP is claimed.

(c) The MLAA shall not claim FFP for HCBS waiver administration, activities billed as targeted case management or service coordination according to rules 5123:2-15-41 and 5101:3-37-19 of the Administrative Code.

(d) The MLAA shall meet the documentation requirements described in paragraph (E) of this rule and the cost reporting requirements described in paragraph (F) of this rule.

(e) The MLAA shall not claim reimbursement as HCBS waiver administration activities functions or services that are not expressly set forth in paragraph (C) of this rule.

(f) The superintendent of a county board shall sign a certification with each claim submission that the claim has been reviewed, and that the claim is in compliance with this rule and federal law, OMB circulars, and other directives or guidelines issued by the federal government.

(5) The MLAA shall be responsible for repayment of any FFP it received for HCBS waiver administration activities if the FFP is required to be repaid to the federal government as the result of a federal or state audit. The MLAA shall immediately reimburse ODMRDD or ODJFS if either state agency is required to repay FFP to the federal government for incorrect payments to the county board for HCBS waiver administrative activities, or if the claims are otherwise denied or deferred by the federal government.

(6) ODMRDD shall assure that PAWS forms appropriately submitted by the MLAA are entered into the medicaid payment system within ten working days of receipt from the county board so that providers are able to receive payment in a timely manner.

(7) If ODMRDD receives from a provider repayment of payments for HCBS under a service contract, ODMRDD shall refund to or otherwise credit the MLAA with the nonfederal share of the repayment if the MLAA paid the nonfederal share.

(E) Documentation requirements for MLAAs for reimbursement of salaries and benefits of persons who perform HCBS waiver administration activities

(1) “Total salary cost,” defined as base wages plus fringe benefits, shall be reimbursed on an ongoing basis in accordance with paragraph (E) of this rule.

(2) When MLAA employees and/or persons paid under a contract with a MLAA spend less than one hundred per cent of their time performing HCBS waiver administration activities for which FFP is claimed, each person shall complete a department-approved HCBS waiver activity form. The purpose of the HCBS waiver activity form is to allocate total salary cost between HCBS waiver administration activities and other MLAA activities performed by the person.

(3) The MLAA shall select for all persons who spend less than one hundred per cent of their time performing HCBS waiver administration activities either the periodic or continuous methodology to document the amount of time spent in the performance of these activities.

(a) A periodic methodology requires HCBS waiver administration activities to be documented for one week each month as specified by the department.

(b) A continuous methodology requires HCBS waiver administration activities to be documented on a daily basis.

(c) The MLAA may elect to change this methodology on January first of each year upon providing written notification to the department.

(d) HCBS waiver administration activities provided under these conditions shall be documented in quarter-hour increments.

(4) Clerical/support staff shall document their performance of HCBS waiver administration activities for which FFP is claimed using the HCBS waiver activity form. Documentation is to be completed following completion of the administration activity.

(5) Supporting documentation shall verify that the HCBS waiver administration activity noted on the waiver activity form occurred. The documentation may include, but is not limited to, individual’s records, copies of ISPs, employee calendars, appointment schedules, mileage records, copies of letters, and activity check lists.

(6) To obtain FFP reimbursement, the MLAA shall submit an invoice, department-approved employee rosters, and supporting activity sheets to the department on a monthly basis.

(7) The MLAA shall ensure that all necessary financial and statistical data supporting the claim for reimbursement is made available to ODMRDD, ODJFS, the United States department of health and human services, and any other state or federal agency having audit authority.

(8) The MLAA shall maintain all records and forms necessary to fully disclose the extent of services provided and related business transactions for a period of seven years from the date of receipt of payment, or for six years after any initiated audit is completed and adjudicated, whichever is longer.

(9) ODMRDD shall provide training, at least annually, to MLAAs on proper methods for documentation and billing of FFP.

(F) Cost reporting requirement for MLAAs for allowable waiver administration overhead and other costs

(1) Total overhead and other costs shall be reimbursed on an annual basis in accordance with paragraph (F) of this rule.

(a) “Overhead costs” are defined as the approved portion of administration, capital, and building service costs allocated to HCBS waiver administration activities.

(b) “Other costs” are defined as travel, equipment less than five hundred dollars, equipment repairs, supplies, liability insurance, advertisement, printing, and other miscellaneous expenses directly assignable to HCBS waiver administration activities.

(2) The MLAA shall identify and report all HCBS waiver administration activity costs on the operating and expenditure report submitted to ODMRDD pursuant to section 5126.12 of the Revised Code.

(3) An annual reconciliation shall be performed by ODMRDD for all medicaid allowable overhead costs and other costs as reported for waiver administration activities.

(4) All HCBS waiver administration costs reported shall be subject to audit and final cost settlement. ODMRDD or ODJFS may audit any funds a county board or contractor receives for waiver administration, including any source documentation supporting the receipts and disbursements associated with such funds.

(G) Medicaid recipient and medicaid applicant appeals

(1) Any recipient of or applicant for HCBS may utilize the process set forth in section 5101.35 of the Revised Code for any purpose authorized by that statute or rules promulgated implementing that statute. The process set forth in section 5101.35 of the Revised Code is available only to applicants, recipients, and their lawfully appointed authorized representatives.

(2) Providers shall not utilize, or attempt to utilize, the process set forth in section 5101.35 of the Revised Code. Providers shall not appeal or pursue any other legal challenge to a decision resulting from the process set forth in section 5101.35 of the Revised Code.

(3) Applicants for and recipients of HCBS shall use the process set forth in section 5101.35 of the Revised Code for any challenge to the type, amount, scope or duration of services included or excluded from an ISP or an individual service needs addendum. Providers shall have no standing in an appeal under section 5101.35 of the Revised Code, or in any other forum to challenge the type, amount, scope or duration of services included or excluded from an ISP or an individual service needs addendum.

(4) The MLAA shall implement any final state hearing decision or administrative appeal decision issued by ODJFS, unless a court of competent jurisdiction modifies such decision as the result of an appeal by the medicaid applicant or recipient.

(H) Provider challenges to the MLAA’s actions in the performance of its duties

(1) Any action proposed or initiated by the MLAA regarding a service contract for non-medicaid services shall not be governed by this rule.

(2) A provider shall follow the procedures set forth in rule 5123:2-8-18 of the Administrative Code to challenge any recommendations, determinations, or corrective action plans issued by the MLAA resulting from the MLAA’s monitoring. Those procedures shall be the exclusive remedies for resolving any such provider challenge.

(3) Except as provided in paragraphs (H)(2) and (I) of this rule, a provider may follow the procedures set forth in section 5126.036 of the Revised Code to challenge any of the following:

(a) Recommendations, determinations, or corrective action plans issued by the MLAA relating to or resulting from any of its duties enumerated in paragraph (C) of this rule.

(b) An action the MLAA has taken or has not taken that is required by a service contract for HCBS.

(d) The MLAA’s termination of a service contract for HCBS between the provider and the MLAA.

(I) Provider certification disputes and medicaid provider agreement disputes

(1) Providers of HCBS may pursue all remedies for disputes regarding their certification or their medicaid provider agreements available to them under Chapter 119. of the Revised Code as presently authorized by law.

(2) No action taken by the MLAA shall constitute an adjudication entitling a HCBS provider with the right to pursue a remedy under Chapter 119. of the Revised Code. Any recommendation by the MLAA for decertification of a provider shall be referred to ODMRDD for any action it determines is necessary.

(J) Immediate corrective action by the MLAA to ensure health, safety, and welfare

The MLAA may take immediate action to ensure the health, safety and welfare of an individual receiving HCBS where there is substantial risk of immediate harm to the individual only as expressly provided for in law. Nothing in this rule shall limit the authority of county boards to take immediate action to ensure an individual’s health, safety, and welfare as provided for under law.

(K) Federal financial participation (FFP)

(1) The MLAA shall not authorize payment for HCBS prior to the approval date of the ISP including approval of emergency services.

(2) The MLAA shall ensure that FFP is not claimed for the cost of room and board, except when provided as part of respite care in a facility approved by ODMRDD that is not a private residence.

(3) FFP shall not be claimed for waiver services furnished to recipients while they are inpatients of a hospital, a nursing facility, or an ICF/MR (except for respite or institutional respite appropriately provided in a licensed facility).

Appendix A

Contract Between Ohio Department of Mental Retardation and Developmental Disabilities and _____________County Board of MR/DD

The parties agree to allow the _________ County Board of MR/DD to administer Home and Community-Based Services within _________ County. The _________ County Board of MR/DD shall administer these services in accordance with rule 5123:2-9-04 of the Administrative Code. The _________ County Board of MR/DD may submit claims for HCBS waiver administrative reimbursement to the Ohio Department of Mental Retardation and Developmental Disabilities. By claiming or receiving federal funds under the Medicaid program the _________ County Board of MR/DD shall be subject to audits by the Ohio Department of Mental Retardation and Developmental Disabilities, and by the Ohio Department of Job and Family Services in accordance with section 5111.85 of the Revised Code.

Approved by:

President Director

___________ County Board of MR/DD Ohio Department of Mental Retardation

[INSERT ADDRESS] and Developmental Disabilities

1810 Sullivant Avenue

Columbus, Ohio 43223-1239

HISTORY: Eff 6-2-95 (Emer.); 8-31-95; 8-18-96; 7-12-97; 1-1-98; 10-16-03

Rule promulgated under: RC 119.03

Rule authorized by: RC 5126.05, 5126.08, 5111.871, 5123.04

Rule amplifies: RC 5123.04, 5126.036, 5126.05, 5126.055, 5126.08, 5126.056, 5126.057, 5126.15, 5111.871

Replaces 5123:1-2-02 R.C.119.032 review dates: 10/16/2008

5123:2-9-05 HCBS waivers - waiver service documentation requirements for services provided to individuals.

(A) Purpose

This rule sets forth the requirements of the information that must be maintained by the provider of services in order to fully disclose the nature and extent of the services delivered as authorized in accordance with section 5111.871 of the Revised Code.

(B) Definition of service documentation

“Service documentation” means the maintenance of all records and information on one or more documents, including documents that can be printed from electronic software programs, in such a manner as to fully disclose the nature and extent of the services delivered and must include each of the following items to validate medicaid reimbursement:

(1) Date of service;

(2) Place of service;

(3) Name of the recipient;

(4) Medicaid identification number of the recipient;

(5) Name of the provider;

(6) Provider identifier/contract number;

(7) Signature of the person delivering the service or initials of the person delivering the service if a signature and corresponding initials are on file with the provider;

(8) Type of service (for homemaker/personal care, type must include if routine, on-site/on-call, or level one emergency);

(9) Number of units of the delivered service or continuous amount of uninterrupted time during which the service was provided;

(10) Group size in which the services were delivered as defined in paragraph (D)(12) of rule 5123:2-9-06 of the Administrative Code;

(11) Arrival and departure times of the provider of service’s site visit to the recipient’s location or of the recipient’s visit to the provider of service’s location;

(12) Description and details of the services delivered that directly relate to the services specified on the recipient’s approved individual service plan as those services to be provided;

(13) A notation made at least monthly indicating the response to services delivered; and

(14) Forms that identify, for the individual, the ISP service(s) to be delivered. The forms shall include all of the above and may be checked off and initialed by staff for each continuous period of service delivery time for each date of service. Any variation between the ISP requirements and actual staff to individual ratios, times of service delivery, group size, or type of service delivered shall be documented. Documentation shall reflect the actual staff to individual ratios and the time period of the variation.

(C) Invoices the provider of services submits to the department for reimbursement of services delivered shall not be considered service documentation. Any information contained on the submitted invoice may not and shall not be substituted for any required service documentation information that the provider of services is required to maintain to validate medicaid reimbursement.

(D) Services shall not be considered as delivered unless the provider maintains service documentation.

(E) Reimbursements made to the provider of services for services delivered that are not supported by service documentation or are supported by service documentation that does not include all the required items listed in paragraph (B) of this rule may be recoverable under paragraph (P) of rule 5123:1-2-08, paragraph (N) of rule 5123:1-2-11, paragraph (O) of rule 5123:2-8-16, and paragraph (I) of rule 5123:2-9-06 of the Administrative Code.

(F) Each provider of services shall maintain all service documentation in an accessible location. The service documentation shall be available, upon request, for review. Agencies with the authority to view such records upon request are the centers for medicare and medicaid services, the Ohio department of job and family services, the Ohio department of mental retardation and developmental disabilities, the county board of mental retardation and developmental disabilities and regional councils of government that submits to the department payment authorization for the service and those designated or assigned authority by the Ohio department of job and family services or the Ohio department of mental retardation and developmental disabilities.

(G) The provider(s) of services shall maintain all service documentation for a period of six years from the date of receipt of payment for those services or until an initiated audit is resolved, whichever is longer.

(H) Should the provider of services discontinue operations, the provider of services shall, within seven days of discontinuance, notify the county board as to the location of where the service documentation will be stored, and provide the county board with the name and telephone number of the individual responsible for maintaining the records.

Effective: 09/30/2005

R.C. 119.032 review dates: 09/30/2010

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5111.871

Rule Amplifies: 5123.04, 5111.871

5123:2-9-06 HCBS waivers - waiver reimbursement methodology.

(A) Purpose

The purpose of this rule is to establish the standards governing payment for home and community-based services (HCBS), other than day habilitation and transportation to access day habilitation services, as defined in section 5126.01 of the Revised Code provided to individuals enrolled in HCBS waivers administered by the department and to implement sections 5111.871 and 5111.873 of the Revised Code.

(B) Definitions

(1) “County board” means a county board of mental retardation and developmental disabilities that performs HCBS waiver administration functions either independently, within a regional council of government formed under Chapter 167. of the Revised Code or through a private entity who contracts with a county board for administration of the HCBS waiver and the entity does not provide any service other than administration to the individuals of that county.

(2) “Department” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(3) “Fifteen minute billing unit” means a billing unit that equals fifteen minutes of service delivery time or is greater or equal to eight minutes and less than or equal to twenty-two minutes of service delivery time.

(4) “Funding range” means one of the dollar ranges contained in appendix C to this rule to which individuals have been assigned for the purpose of funding waiver services. Notwithstanding paragraph (E)(9)(a) of this rule, the funding range applicable to an individual is determined by the score derived from the Ohio developmental disabilities profile (ODDP) that has been completed by a county board employee qualified to administer the tool. The funding range for an individual receiving level one waiver services shall be determined within the payment limitations contained in appendix A to this rule and not through the ODDP.

(5) “Guardian” means a guardian appointed by the probate court under Chapter 2111. of the Revised Code. If the individual is a minor for whom no guardian has been appointed under that chapter, “guardian” means the individual’s parents. If no guardians have been appointed for a minor and the minor is in the legal or permanent custody of a government agency or person other than the minor’s natural or adoptive parents, “guardian” means that government agency or person. “Guardian” also includes an agency under contract with the department for the provision of protective service under sections 5123.55 to 5123.59 of the Revised Code.

(6) “Individual” means a person with mental retardation or other developmental disability who is eligible to receive HCBS as an alternative to placement in an intermediate care facility for the mentally retarded under the applicable HCBS waiver. A guardian may take any action on behalf of the individual, may make choices for an individual or may receive notice on behalf of an individual to the extent permitted by applicable law.

(7) “Individual funding level” means the total funds that result from applying the rates in appendix A to this rule to the units of all waiver services except for day habilitation and supported employment that have been determined through the individual service plan (ISP) development process to be sufficient in amount, duration and scope to meet the health and welfare needs of an individual. Unless prior authorization has been obtained in accordance with rule 5101:3-41-12 of the Administrative Code, the individual funding level for services reimbursed in accordance with this rule except supported employment shall be within or below a funding range assigned to the individual as the result of administration of the ODDP.

(8) “ISP” means the individual service plan, a written description of the services, supports, and activities to be provided to an individual.

(9) “ODJFS” means the Ohio department of job and family services as established by section 121.02 of the Revised Code.

(10) “Ohio developmental disabilities profile (ODDP)” means the standardized instrument utilized by the department to assess the relative needs and circumstances of an individual compared to others. The consumer-specific responses are scored and the individual is linked to a funding range, which enables similarly situated individuals to access comparable waiver services reimbursed in accordance with this rule on a statewide basis.

(11) “Payment authorization for waiver services (PAWS)” means the process followed and the form used to communicate the amount of payment for each waiver service that has been established through the approved ISP process and is contained in the ISP for an eligible enrollee.

(12) “Prior authorization” means the process to be followed in accordance with rule 5101:3-41-12 of the Administrative Code to authorize an individual funding level that exceeds the maximum value of the funding range that is determined for an individual through the use of the ODDP.

(13) “Provider” means an agency or individual that:

(a) Is certified by the department to provide home and community-based services; and

(b) Has a medicaid provider agreement from ODJFS that covers the services.

(14) “SSA” means a service and support administrator who is certified in accordance with rules adopted by the department under Chapter 5123:2-5 of the Administrative Code and who provides the functions of service and support administration.

(15) “Transportation” means a service offered in order to enable individuals served on the waiver to gain access to waiver and other community services, activities and resources, specified by the ISP. This service is offered in addition to medical transportation required under 42 C.F.R. 431.53 as in effect on the effective date of this rule and transportation services under the state plan, defined at 42 C.F.R. 440.170 (a) as in effect on the effective date of this rule (if applicable), and shall not replace them. Transportation services under the waiver shall be offered in accordance with the ISP.

(16) “Waiver eligibility span” means the twelve-month period following either an individual’s initial enrollment date or the subsequent re-determination date.

Providers shall be reimbursed at the lesser of their usual and customary rate (UCR) or the statewide payment rate for each waiver service that is delivered. The department shall establish a mechanism through which providers shall communicate their UCRs to the department. A single provider may charge different UCRs for the same service when the service is provided in different geographic areas of the state. In this instance, the UCRs charged shall be declared for each cost of doing business category described in appendix B to this rule that identifies the counties in which the provider intends to provide specific services. Upon notification of a provider’s UCR or change in UCR, the department shall provide notice to the appropriate county board.

(D) Statewide payment rates

(1) ODJFS retains the final authority, based on the recommendation of the department, to establish payment rates for all waiver services included in HCBS waivers administered by the department. The services and payment rates for all waiver services other than day habilitation and transportation to access day habilitation are included in appendix A to this rule. The payment rates for day habilitation and transportation to access day habilitation are contained in rule 5123:2-9-12 of the Administrative Code.

(2) Payment rates for homemaker/personal care (HPC) services shall be established separately for services provided through agency providers and for services provided by non-agency providers. Staff HPC responsibilities extend to those times when the individual is not physically present and staff is performing homemaker activities on behalf of the individual living in the home.

(3) Payment rates for HPC services shall include an adjustment for geography based on the county cost of doing business category. The county cost of doing business category for an individual is the category assigned to the county in which the waiver service is actually provided. The cost of doing business categories and the counties assigned to each are contained in appendix B to this rule.

(4) The payment rates for interpreter services, nutritional services, and social work services shall be adjusted to reflect provider certification types and for geographic variations as established in appendix B to this rule.

(5) The payment rate for supported employment services shall be adjusted to reflect geographic variations as established in appendix B to this rule.

(6) The payment rates for transportation shall be based on the internal revenue service (IRS) mileage allowance as established in appendix A to this rule. The number of individuals in a group shall be determined by totaling the number of waiver enrollees and those receiving non-waiver services for whom transportation is being provided. Transportation may be provided on behalf of a waiver enrollee.

(7) The department shall collect reimbursement information periodically for a comprehensive statistically valid sample of individuals from the providers providing HCBS at the time the information is collected. Based upon the department’s review of the information, the department shall recommend to ODJFS any changes necessary to assure that the payment amounts are sufficient to enlist enough waiver providers so that waiver services are readily available to individuals, to the extent that these types of services are available to the general population, and that provider reimbursement is consistent with efficiency, economy and quality of care. ODJFS retains the final authority to make this determination.

(8) Payment rates for HPC may be modified to reflect the needs of individuals requiring medical assistance and individuals requiring behavior support. Routine HPC is the only waiver service that may be modified in this manner. Only individuals meeting criteria established by the department as specified in paragraphs (D)(9) and (D)(10) of this rule shall be eligible for these rate modifications. Upon determination by the county board that the individual meets the criteria established by the department, the county board shall recommend and implement rate modifications for behavior support and/or medical assistance. Rate modifications are subject to review by the department. The duration of approval for medical assistance and/or behavior support rate modifications shall be limited to the individual’s twelve-month waiver eligibility span prior to re-determination and may be determined needed or no longer needed within that twelve-month waiver eligibility span. Rate modifications may be renewed annually at the individual’s re-determination time if the individual continues to meet the criteria established by the department. A modification to the HPC rate shall be applied for each individual in a congregate setting meeting the criteria, and shall be included in the payment rates of only those individuals meeting the criteria.

(9) The behavior support rate modification is applicable to routine HPC services only and is to be paid during all times when routine HPC services are provided to an individual who qualifies for the modification. The amount of the behavior support rate modification for each fifteen minute unit of service is contained in appendix A to this rule.

(a) Because of the serious nature of the behaviors of individuals, the purpose of the behavior support rate modification is to provide funding for the implementation of behavior support plans by staff who have the level of training necessary to implement the plans and who are working under the direction of licensed or certified personnel or other professionals who have specialized training or experience implementing behavior support plans.

(b) In order for an individual to receive the behavior support rate modification, the following conditions shall be met:

(i) Only an individual who presents a danger to self or others, or who has been assessed to have the potential to present a danger, shall be eligible for the behavior support rate modification.

(ii) A behavior support plan that is a component of the individual’s ISP has been developed in accordance with the requirements contained in rules established by the department;

(iii) The individual routinely receives clinical services from a licensed, certified or other type of professional who has specialized training or experience related to the design, development and implementation of the behavior support plan and the individual either;

(iv) Responds ‘yes’ to at least four items in question number thirty-two of the behavior domain of the ODDP, or

(v) Requires a structured environment that, if removed, will result in the individual’s engagement in behavior destructive to self or others.

(c) When determined through the ISP development process that the criteria contained in paragraph (D)(9)(b) of this rule has been met, the county board shall authorize the behavior support rate modification for routine HPC. The department retains the right to review and validate the qualifications of any provider of clinical services identified in this paragraph. ODJFS retains the final authority, based on the recommendation of the department, to review, revise and approve any element of the decision process resulting in a determination to make a behavior support modification to the HPC rate.

(10) The amount of the medical assistance rate modification for each fifteen minute unit of service is contained in appendix A to this rule. The medical assistance rate modification is applicable to routine HPC services only and shall be paid during all times when an individual who meets the medical assistance rate modification criteria is receiving routine HPC, as recommended during the ISP development process.

(a) The county board shall authorize the medical assistance rate modification when the following criteria have been met:

(i) An individuals requires routine feeding and/or the administration of prescribed medications through gastrostomy and/or jejunostomy tubes, when the tubes are stable and labeled, and/or requires the administration of routine doses of insulin through subcutaneous injections and insulin pumps; or

(ii) An individual requires a nursing procedure or nursing task that a licensed nurse agrees to delegate in accordance with the rules contained in Chapter 4723-13 of the Administrative Code when such procedure or nursing task is not the administration of oral or topical medication or one of the health-related activities listed in paragraphs (L)(1) to (L)(8) of rule 5123:2-6-01 of the Administrative Code and provided in accordance with section 5123.42 of the Revised Code.

(b) ODJFS retains the final authority, based on the recommendation of the department, to review, revise, and approve any element of the decision process resulting in a determination to make a medical assistance modification to the HPC rate.

(11) ODJFS retains the final authority, based on the recommendation of the department, to establish on-site/on-call payment rates for HPC services provided on an on-call basis within the individual’s residential setting, as indicated in appendix A to this rule. The ISP development process shall be used to determine the frequency, duration, and scope of HPC services to be paid at the on-site/on-call rate during the ISP planning process. Neither the medical assistance nor the behavior support rate modification is applicable to the on-site/on-call payment rates for HPC services.

(a) A provider is eligible to be reimbursed at the on-site/on-call payment rate for HPC services when:

(i) Based upon assessed and documented need, the ISP indicates the days of the week and the beginning and ending times each day when it is anticipated that an individual will require on-site/on-call services; and

(ii) The individual is asleep and does not require intervention or assistance during this time; and

(iii) The HPC provider is required to be on-site, but is not required to remain awake; and

(iv) On-site/on-call time does not exceed any more than eight hours for the individual in any twenty-four-hour period.

(b) A provider shall be paid the routine HPC rate when an individual receives intervention/supports during the times the ISP indicates a need for on-site/on-call services. In these instances, the provider shall document the start and stop times and dates during which intervention/supports were provided to the individual.

(12) ISPs shall indicate the ratios at which services are to be delivered, as defined in appendix A to this rule, when individuals share waiver services. The base rate paid to a provider for HPC services shall be adjusted to reflect the numbers of individuals sharing the services.

(a) If two individuals receive service from one staff member, the base rate shall be one hundred seven per cent of the base rate for one-to-one service. If three individuals share the service, the base rate shall be one hundred seventeen per cent of the base rate for one-to-one service. If four or more individuals share the service, the base rate shall be one hundred thirty per cent of the base rate for one-to-one service.

(b) The base rate established is divided by the number of individuals sharing the service to determine the rate paid per individual.

(c) In those situations where more that one staff member serves more than one individual simultaneously, the individuals’ needs and circumstances shall determine staffing ratios, based on a unit of one staff to the portion of the total group that includes the individual. Only when it is impractical to determine staff ratios based on a unit of one staff, the provider shall, as authorized in the ISP, use the applicable billing codes and rates contained in appendix A to this rule to indicate both staff size and group size.

(d) Group size shall be identified on the billing document submitted by the provider to the department for each waiver service delivered.

(e) Ratios do not change at times when one or more individuals, for whom the staff is responsible, are not physically present, but are within verbal, visual or technological supervision of the staff providing the service. Technological supervision includes staff contact with individuals through telecommunication and/or electronic signaling devices.

(E) Funding ranges, individual funding levels, and statewide payment rates under the individual options waiver and community access model waiver for new enrollees and individuals enrolled on the individual options waiver and residential facility waiver prior to the effective date of this rule

(1) ODJFS shall retain the final authority, based on the recommendation of the department, to establish funding ranges for waiver services. Individuals enrolled to receive waiver services on or after the effective date of this rule, other than those enrolling to receive level one waiver services, shall be assigned to a funding range based on completion and scoring of the ODDP. The ODDP levels and corresponding funding ranges are contained in appendix C to this rule.

(2) The funding ranges shall consider:

(a) The unpaid care available to the individual;

(b) The individual’s living arrangement;

(d) The individual’s mobility;

(e) The individual’s ability for self care; and

(f) Any other variable that significantly impacts the individual’s needs as determined by the department through statistical analysis.

(3) Each individual shall be assigned a funding range based on his/her ODDP score.

(a) The SSA shall assure that an ODDP is appropriately completed within one month following the month in which this rule is effective for each individual enrolled on the IO or RFW prior to the effective date of this rule.

(b) On or before five months following the month in which this rule is effective, the SSA shall inform each individual enrolled on the IO waiver or RFW prior to the effective date of this rule of his/her assigned funding range resulting from the ODDP score. The information shall be provided to each individual in accordance with procedures established by the department.

(c) The SSA shall inform the individual of his/her assigned funding range amounts at the time of enrollment and at any other time a change in circumstances results in an ODDP score that assigns the individual to a different funding range.

(4) The department shall re-examine the scoring of the ODDP and the linkage of the scores to the individual funding ranges no later than twenty-four months following the month in which this rule is effective and, at the department’s discretion, periodically thereafter.

(5) Following assignment of a funding range, an ISP shall be reviewed, revised or developed with the individual. The county board shall apply rates for the units of each waiver service, other than day habilitation and transportation to access day habilitation services, resulting from the completion of the ISP planning process to calculate the individual funding level. Twelve months following the month in which this rule is effective, the rates applied to the units of supported employment services shall not be used to calculate individual funding levels for either individuals newly enrolled on a waiver or, at the point of their eligibility re-determination, for individuals currently enrolled on the waiver.

(6) The county board shall determine whether the individual funding level is within, exceeds or is below the assigned funding range for the individual. The SSA shall inform the individual of this determination in accordance with procedures developed by the department.

(7) When an ISP change is made and a new funding level is determined, the providers of waiver services to the individual shall verify to the county board the numbers of units of each waiver service delivered during the individual’s current waiver eligibility span so that the county board may accurately calculate the number of units of available service to be provided that is approved for the individual’s use during the remainder of the waiver eligibility span.

(8) The county board shall complete a PAWS and the SSA shall assure waiver services are initiated for an individual whose funding level is within the funding range determined by an ODDP assessment. The SSA shall also inform the individual in writing and in a form and manner the individual can understand of his/her due process rights and responsibilities as set forth in section 5101.35 of the Revised Code.

(9) When the funding level of an individual exceeds the assigned funding range:

(a) The county board shall inform the individual of his/her right to request a prior authorization to obtain services that result in a funding level that exceeds the funding range using the process described in rule 5101:3-41-12 of the Administrative Code.

(b) If, through the prior authorization process, the request for a funding level that exceeds the individual’s funding range is approved, the county board shall assure a PAWS is completed and waiver services are initiated.

(c) If, through the prior authorization process, the request for a funding level that exceeds the individual’s funding range is denied, the SSA shall initiate the ISP planning process to determine if an ISP that assures the individual’s health and welfare can be developed within the individual’s funding range.

(i) If an ISP that meets these conditions is developed, the county board shall assure a PAWS is completed and shall assure waiver services are initiated;

(ii) If an ISP that meets these conditions is unable to be developed, the county board shall propose to deny the individual’s initial or continuing enrollment on the waiver and inform the individual of his/her due process rights and responsibilities as set forth in section 5101.35 of the Revised Code.

(10) When the funding level of an individual is below the assigned funding range, the SSA shall:

(a) Coordinate an ISP planning process to assure that the services reflected in the ISP are sufficient to meet the health and welfare needs of the individual.

(b) Assure waiver services are initiated and assure completion of a PAWS.

(c) Prepare a statement indicating that the services in the ISP are sufficient to assure the health and welfare of the individual, personally sign the statement and obtain the signature of the individual or guardian indicating agreement with the statement.

(d) Notify the department within the timelines and in the manner prescribed by the department.

(e) Inform the individual of his/her due process rights and responsibilities as set forth in section 5101.35 of the Revised Code.

(11) The department shall use the twelve-month period following either an individual’s initial enrollment date or the subsequent re-determination date to verify that cumulative payments made for waiver services remain within the approved funding range for each individual or that cumulative payments made for waiver services remain within the approved funding range when prior authorization has been granted.

(F) Changes to individual funding levels and funding ranges

(1) If an individual requests a change in ISP services, the individual funding level may increase or decrease based on the outcome of the ISP planning process. In no instance may the individual funding level exceed the cost cap approved for the waiver on which the individual is enrolled. The county board has the authority and responsibility to make changes to individual funding levels, which result from the ISP planning process in accordance with paragraph (E) of this rule. Changes to individual funding levels are subject to review by the department. No prior state level review will be required for funding level changes that occur within or below a funding range when changes result from a change in ISP services that have been agreed to by an individual through the ISP planning process.

(2) Notwithstanding paragraph (E)(9)(a) of this rule, a funding range established for an individual shall change only when changes in assessment variable scores on the ODDP that justify assignment of a new funding range have occurred. Any or all ODDP variables can be revised at any time at the request of the individual or at the discretion of the SSA, with the individual’s knowledge.

(3) Neither the department nor the county board shall recommend a change in individual funding level within the funding range or assign a new funding range after notification that the individual has requested a hearing concerning the approval, denial, reduction or termination of services in an ISP that has been developed within the funding parameters of this rule by requesting a hearing pursuant to section 5101.35 of the Revised Code.

(G) Authorization required

(1) ODJFS retains the final authority, based upon the recommendation of the department, to review and approve each service identified in the ISP that is funded through the HCBS waiver and the payment rate for the service.

(2) ODJFS retains the final authority, based upon the recommendation of the department, to authorize the provision and payment of waiver services through the PAWS process.

(3) When combined, payment amounts for waiver services shall not exceed the amounts authorized through the PAWS process for the corresponding time period for an individual.

(H) Payment limitations for HCBS waiver services

Payment for an HCBS waiver service constitutes payment-in-full. Payment shall be made for HCBS waiver services when:

(1) The service is identified in an approved ISP;

(2) The service is recommended for payment through the PAWS process;

(3) The service is provided by a HCBS waiver service provider selected by an individual enrolled on the waiver;

(4) No greater than twenty-four hourly units of HPC waiver services, or equivalent fifteen minute units, are authorized through the PAWS process; and

(5) Payment for waiver services is the lesser of the provider’s UCR or the statewide payment rate as described in paragraph (C) of this rule.

(I) Claims for payment of HCBS waiver services

(1) When HCBS services are also available on a state plan, state plan services must be billed first. Only those HCBS waiver services in excess of those covered under the state plan will be authorized.

(2) Claims for payment of HCBS waiver services shall be submitted to the department in the format prescribed by the department in billing instructions for HCBS waiver services. The department shall inform county boards of the billing information submitted by providers in a manner and at the frequency necessary to assist the county boards to manage the waiver expenditures being authorized.

(3) Claims for payment shall be submitted within three hundred thirty days after the HCBS waiver service is provided. Payment shall be made in accordance with the requirements of rule 5101:3-1-19.7 of the Administrative Code, except that claims submitted beyond the three-hundred-thirty-day deadline shall be rejected. No claims shall be paid that do not provide both the number of units of services, the numbers of staff providing the service and the number of individuals sharing the service.

(4) All HCBS waiver service providers shall take reasonable measures to identify any third-party health care coverage available to the individual and file a claim with that third party in accordance with the requirements of rule 5101:3-1-08 of the Administrative Code.

(5) For individuals with a monthly patient liability for the cost of HCBS waiver services, as defined in rule 5101:1-39-95 of the Administrative Code, and determined by the county department of job and family services for the county in which the individual resides, payment is available only for the HCBS waiver service(s) delivered to the individual that exceeds the amount of the individual’s monthly patient liability. Verification that patient liability has been satisfied shall be accomplished as follows:

(a) The department shall provide notification to the appropriate county board identifying each individual who has a patient liability for HCBS waiver services and the monthly amount of the patient liability.

(b) The county board shall assign the HCBS waiver service(s) to which each individual’s patient liability shall be applied and assign the corresponding monthly patient liability amount to an HCBS waiver service provider. The county board shall notify each individual and HCBS waiver service provider, in writing, of this assignment.

(c) Upon submission of a claim for payment, the designated HCBS waiver service provider shall report the HCBS waiver service to which the patient liability was assigned and the applicable patient liability amount on the claim for payment using the format prescribed by the department in billing instructions for HCBS waiver services.

(6) Claims for payment of environmental modification, personal response system, and community transition services shall be submitted to the department with verification from the county board that the project meets the requirements specified in the approved ISP, the project is satisfactorily completed, and the project is in compliance with all applicable state and local requirements, including building codes. The verification submitted shall be in the format prescribed by the department.

(7) The department, ODJFS, the centers for medicare and medicaid services and/or the state auditor may audit any funds a provider of HCBS waiver services receives pursuant to this rule, including any source documentation supporting the claiming and/or receipt of such funds.

(8) An HCBS waiver service provider shall maintain the records necessary and in such form to disclose fully the extent of HCBS waiver services provided, for a period of six years from the date of receipt of payment or until an initiated audit is resolved, whichever is longer. The records shall be made available upon request to the department, ODJFS, the centers for medicare and medicaid services and/or the state auditor. Providers who fail to produce the records requested within thirty days following the request will be subject to decertification and/or loss of their medicaid provider agreement.

(J) Implementation of individual funding ranges, levels and statewide payment rates for individuals enrolled in the level one waiver, IO waiver or the RFW prior to the effective date of this rule

(1) Between November 1, 2005 and May 1, 2006, county boards shall initiate statewide payment rates following completion of the ISP planning process for each individual enrolled on the level one waiver.

(2) By December 1, 2005, each county board shall provide to the department a plan of how the county board will implement paragraphs (J)(3), (J)(4) and (J)(5) of this rule. The information shall be provided in accordance with timelines and in the format prescribed by the department.

(a) The county board plan shall be subject to modification by the department to assure that the transition plans by the county and/or in the aggregate support the redistribution of general revenue funds appropriated as match for waiver services.

(b) Nothing in this paragraph shall be interpreted to prevent a county board, an individual and a provider from agreeing to accelerate the transition phases contained in paragraph (J) of this rule when the department approves the accelerated phase-in periods and activities.

(c) The county board shall participate in the quarterly process of reporting the progress of the transition to the centers for medicare and medicaid services (CMS). Information required from the board shall be specified by the department and submitted in a format required by the department. Any modifications to the county plan provided in accordance with this paragraph shall be reported as a component of the quarterly reporting process.

(3) Between January 1, 2006 and December 31, 2007, county boards shall apply individual funding ranges and initiate statewide payment rates following completion of the ISP planning process for each individual enrolled on the IO waiver who is living alone.

(4) Between February 1, 2006 and March 31, 2008, county boards shall apply individual funding ranges and initiate statewide payment rates following completion of the ISP planning process for each individual who resides with other waiver recipients, when all individuals:

(a) Have a funding level that, as the result of the application of the rates contained in appendix A to this rule, is within or below their assigned funding ranges; and

(b) Are able to receive services that assure their health and welfare at the funding level resulting from completion of the ISP planning process.

(5) Between February 1, 2006 and March 31, 2008, county boards shall apply individual funding ranges and initiate statewide payment rates following completion of the ISP planning process for each individual who resides with other waiver recipients, some of whom, as the result of the application of the rates contained in appendix A to this rule, have a funding level that is above their assigned funding range.

(6) Notwithstanding paragraph (E)(9)(a) of this rule, the provisions of paragraph (J) of this rule shall be implemented for all individuals enrolled on HCBS waivers administered by the department no later than March 31, 2008.

(7) From the effective date of this rule until the implementation times specified in paragraph (J) of this rule, waiver funding for individuals who have not completed the transition and/or those participating in the appeal process set forth in section 5101.35 of the Revised Code shall be made in accordance with Chapters 5123:1-2 and 5123:2-8 of the Administrative Code. ODJFS shall make the final determination of the payment rate to be used when the provider and county board cannot reach agreement when negotiating a payment rate pursuant to Chapters 5123:1-2 and 5123:2-8 of the Administrative Code.

(8) County boards and waiver service providers shall complete the transition of individuals to their individual funding ranges and implement statewide funding rates in conformance with this rule and guidelines provided by the department.

(9) As of the effective date of an individual’s transition to the rates in appendix A and ranges in appendix C to this rule the department shall establish a one-time process to verify that the annual funding level that is authorized for the individual for waiver services that are subject to the funding range are within the funding range for the individual assigned by the ODDP or such funding level remains within the funding range that results when prior authorization has been granted.

(K) Due process rights and responsibilities

(1) Any recipient or applicant for waiver services administered by the department may utilize the process set forth in section 5101.35 of the Revised Code, in accordance with division 5101:6 of the Administrative Code for any purpose authorized by that statute and the rules implementing the statute. The process set forth in section 5101.35 of the Revised Code is available only to applicants, recipients and their lawfully appointed authorized representatives. Providers shall have no standing in an appeal under this section.

(2) Applicants for and recipients of waiver services administered by the department shall use the process set forth in section 5101.35 of the Revised Code for any challenge related to the administration and/or scoring of the ODDP or to the type, amount/level, scope or duration of services included or excluded from an ISP or individual behavior plan addendum. For purposes of clarity, a change in staff: waiver recipient service ratios does not automatically result in a change in the level of services received by an individual.

APPENDIX A

Service Codes, Payment Limitations and Rates for Individual Options Waiver, Community Access Model Waiver and Level One Waiver Services other than Day Habilitation and Transportation to Access Day Habilitation

See Appendix A at http://www.registerofohio.state.oh.us/pdfs/5123/2/9/5123$2-9-06_PH_FF_A_APP1_20080310_0820.pdf

APPENDIX B

COST OF DOING BUSINESS CATEGORIES

ASSUMPTIONS:

THE COST OF DOING BUSINESS (CODB) FACTOR IS APPLIED TO ALL COUNTIES.

THE AVERAGE CODB FACTOR OF 1.0449 WAS CALCULATED USING A WEIGHTED AVERAGE BY DOLLARS SPENT ON HABILITATION SERVICES FROM 2002 CLAIMS.

COST OF DOING BUSINESS FACTORS – ARRAYED BY COUNTY ASSIGNMENT:

Category 1 1.00 to less than 1.01 = 1.01 Adams

Athens

Belmont

Gallia

Guernsey

Harrison

Jefferson

Meigs

Monroe

Pike

Ross

Scioto

Tuscarawas

Vinton

Washington

Category 2 1.01 to less than 1.02 = 1.02 Carroll

Crawford

Defiance

Highland

Hocking

Jackson

Lawrence

Mercer

Morgan

Muskingum

Noble

Paulding

Perry

Van Wert

Wyandot

Category 3 1.02 to less than 1.03 = 1.03 Allen

Auglaize

Brown

Clinton

Columbiana

Coshocton

Fayette

Hancock

Holmes

Knox

Marion

Morrow

Putnam

Richland

Seneca

Shelby

Williams

Category 4 1.03 to less than 1.04 = 1.04 Ashland

Darke

Erie

Fairfield

Fulton

Hardin

Henry

Huron

Licking

Logan

Mahoning

Pickaway

Sandusky

Stark

Trumbull

Wood

Category 5 1.04 to less than 1.05 = 1.05 Ashtabula

Champaign

Clark

Delaware

Greene

Lucas

Madison

Miami

Montgomery

Ottawa

Preble

Union

Wayne

Category 6 1.05 to less than 1.06= 1.06 Clermont

Franklin

Geauga

Lake

Lorain

Medina

Portage

Summit

Category 7 1.06 to less than 1.07 = 1.07 Butler

Cuyahoga

Warren

Category 8 1.07 to less than 1.08 = 1.08 Hamilton

APPENDIX C

FUNDING RANGES IN RELATIONSHIP TO ODDP SCORES

ARRAYED BY COST OF DOING BUSINESS CATEGORY

CATEGORY 1

RANGE BOTTOM TOP

1 $5,001 $18,626

2 $18,627 $32,427

3 $32,428 $46,228

4 $46,229 $60,029

5 $60,030 $73,830

6 $73,831 $87,631

7 $87,632 $112,556

8 $112,557 $137,481

9 $137,482 IO WAIVER CAP

CATEGORY 2

RANGE BOTTOM TOP

1 $5,001 $18,819

2 $18,820 $32,763

3 $32,764 $46,707

4 $46,708 $60,651

5 $60,652 $74,595

6 $74,596 $88,539

7 $88,540 $113,722

8 $113,723 $138,906

9 $138,907 IO WAIVER CAP

CATEGORY 3

RANGE BOTTOM TOP

1 $5,001 $19,012

2 $19,013 $33,099

3 $33,100 $47,186

4 $47,187 $61,273

5 $61,274 $75,360

6 $75,361 $89,447

7 $89,448 $114,889

8 $114,890 $140,330

9 $140,331 IO WAIVER CAP

CATEGORY 4

RANGE BOTTOM TOP

1 $5,001 $19,205

2 $19,206 $33,435

3 $33,436 $47,665

4 $47,666 $61,895

5 $61,896 $76,125

6 $76,126 $90,355

7 $90,356 $116,055

8 $116,056 $141,755

9 $141,756 IO WAIVER CAP

CATEGORY 5

RANGE BOTTOM TOP

1 $5,001 $19,398

2 $19,399 $33,771

3 $33,772 $48,144

4 $48,145 $62,517

5 $62,518 $76,890

6 $76,891 $91,263

7 $91,264 $117,221

8 $117,222 $143,179

9 $143,180 IO WAIVER CAP

CATEGORY 6

RANGE BOTTOM TOP

1 $5,001 $19,591

2 $19,592 $34,107

3 $34,108 $48,623

4 $48,624 $63,139

5 $63,140 $77,655

6 $77,656 $92,171

7 $92,172 $118,387

8 $118,388 $144,604

9 $144,605 IO WAIVER CAP

CATEGORY 7

RANGE BOTTOM TOP

1 $5,001 $19,784

2 $19,785 $34,443

3 $34,444 $49,102

4 $49,103 $63,761

5 $63,762 $78,420

6 $78,421 $93,079

7 $93,080 $119,554

8 $119,555 $146,028

9 $146,029 IO WAIVER CAP

CATEGORY 8

RANGE BOTTOM TOP

1 $5,001 $19,977

2 $19,978 $34,779

3 $34,780 $49,581

4 $49,582 $64,383

5 $64,384 $79,185

5123:2-9-06 Page 3

6 $79,186 $93,987

7 $93,988 $120,720

8 $120,721 $147,453

9 $147,454 IO WAIVER CAP

Effective: 03/20/2008

R.C. 119.032 review dates: 07/01/2010

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5111.871

Rule Amplifies: 5123.04, 5111.871, 5111.873

Prior Effective Dates: 07/01/2005, 07/01/2007, 12/21/2007 (Emer.)

5123:2-9-07 HCBS waivers - Allocation of residential services funds, including HCBS waiver state matching funds, for the residential facility waiver and funds for room and board for individuals enrolled in the individual options waiver who reside in facil

(A) Purpose The purpose of this rule is to establish procedures for the allocation of residential services funds, including home and community-based services (HCBS) waiver state matching funds, for the residential facility waiver and funds for room and board for individuals enrolled in the individual options waiver who reside in facilities licensed in accordance with section 5123.19 of the Revised Code.

(B) Subject to available appropriations, the department may allocate to county boards:

(1) State matching funds to be used to fund HCBS waiver services for individuals enrolled in the residential facility waiver;

(2) Funds for room and board for individuals enrolled in the residential facility waiver and for individuals enrolled in the individual options waiver who reside in facilities licensed in accordance with section 5123.19 of the Revised Code; and

(3) Funds for residential services for individuals residing in residential facilities licensed in accordance with section 5123.19 of the Revised Code who are not enrolled in the residential facility waiver or the individual options waiver.

(C) When an individual enrolled in the residential facility waiver moves from one county in this state to another county in this state, the department shall reduce the amount the department allocates pursuant to this rule to the county board serving the county the individual left by the amount and to the extent required by section 5123.0410 of the Revised Code. The department shall increase the amount allocated pursuant to this rule to the county board serving the county to which the individual moved by the same amount.

(D) The department may require a county board to provide written reports or other information regarding the funds a county board or provider receives pursuant to this rule. The department shall provide prior written notification of the data elements and format required.

(E) The department may audit any funds a county board or provider receives pursuant to this rule, including any source documentation supporting the receipt and disbursement of such funds.

Replaces: 5123:1-2-13

Effective: 06/21/2004

R.C. 119.032 review dates: 06/21/2009

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5111.871

Rule Amplifies: 5123.04, 5111.871, sec. 71.02 of ASHB 95 of the 125th General Assembly

Prior Effective Dates: 7/12/97, 1/1/98

5123:2-9-08 HCBS waivers - Compliance reviews of certified HCBS waiver providers.

(A) Purpose and scope This rule governs compliance reviews conducted by the department and the county board to assure compliance by certified providers with certification standards. 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 county board and/or 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, as amended, under which federal reimbursement is provided for designated HCBS to eligible individuals, which is administered by the department pursuant to an interagency agreement between the department and ODJFS.

(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 a certified provider for HCBS waiver services.

(5) “Compliance review” means department or county board reviews of certified providers for the purpose of determining provider compliance with applicable requirements in order to ensure the health, safety, and welfare of the individual.

(6) “County board” means a county board of mental retardation and developmental established under Chapter 5126. of the Revised Code.

(7) “Managerial responsibilities and duties” includes formulating policy, responsibly directing the implementation of policy, assisting in the preparation for the conduct of collective negotiations, administering collectively negotiated agreements, or having a major role in personnel administration.

(8) “Management staff” means a person employed in a position having supervisory or managerial responsibilities and duties.

(9) “Non-management staff” means a person employed in a position not having supervisory or managerial responsibilities and duties, but does not include an individual as defined in rule 5123:2-8-01 of the Administrative Code.

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

(11) “Supervisory responsibilities and duties” includes the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees; to responsibly direct them; to adjust their grievances; or to effectively recommend such action, if the exercise of that authority is not of a merely routine or clerical nature but requires the use of independent judgment.

(1) Regular reviews

(a) The department shall coordinate with the county board the completion of compliance reviews of certified providers who billed for services during the previous calendar year. Compliance reviews of certified providers shall be conducted so that each certified provider is reviewed once during the term of their certification, but at least once every five years. Reviews by the county board shall not include those providers licensed by the department in accordance with section 5123.19 of the Revised Code.

(b) The department shall conduct reviews of waiver recipients living in licensed residential facilities in accordance with section 5123.19 of the Revised Code and administrative rules promulgated under its authority.

(c) The department in its discretion may conduct or arrange through the county board, a compliance review of any certified provider who has not billed for services within the time frame set forth in paragraph (C)(1) of this rule.

(d) These reviews may include on-site and/or desk reviews of certified providers.

(2) Special reviews

(a) The department or county board may conduct the following special compliance reviews:

(i) Department reviews of recommendations by the county board in accordance with paragraph

(D) of this rule

(ii) Look-behind reviews of certified providers. A “look-behind review” is a review by the department of a sample of certified providers reviewed by the county board during the previous calendar year to verify conformance with the review requirements outlined in this rule. A certified provider or county board may request the department to conduct a look-behind review.

(iii) Reviews, including reviews pertaining to the health, safety or welfare of an individual, which results from a complaint and/or unusual or major unusual incident that may indicate the certified provider’s failure to comply with applicable standards.

(b) The department may conduct reviews at its own discretion.

(3) The department shall conduct compliance reviews of any county board when any of the circumstances under paragraph (E)(1) of this rule exist. Such compliance reviews shall be conducted in accordance with the provisions of this rule.

(4) The department shall develop protocols for the implementation of compliance reviews. The department and the county board shall use the protocols developed by the department for compliance reviews and the county board may not change or augment the protocols. The protocols shall include, but may not be limited to, the following components:

(a) The method for selecting a sample of certified providers to be reviewed;

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

(d) The elements of provider compliance, which shall be the applicable requirements;

(e) The elements of a written compliance report to a certified provider that shall include the explanation of any deficiencies, the process to develop and implement a plan of compliance, and an explanation of the due process afforded to a certified provider as described in this rule;

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

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

(5) The department shall make the protocols available to any party requesting it and shall include the protocols in any training outlined in paragraph (G) of this rule.

(D) Compliance responsibilities of the county board

(1) Throughout any compliance review conducted by an county board, the county board shall have the burden of proving any findings or conclusions contained in any preliminary or final reports issued by the county board.

(2) The county board shall monitor the services provided to the individual to ensure the individual’s health, safety, and welfare. Monitoring by the county board shall include compliance by the provider with certification standards and provider adherence to applicable requirements. Compliance reviews by the county board shall be conducted in accordance with administrative rules and the protocols established by the department.

(3) An county board shall conduct compliance reviews in accordance with the protocols established by the department and the provisions of paragraph (C) of this rule. Procedures following a compliance review conducted by the county board shall be as follows:

(a) Within twenty-one calendar days after the completion of the review or the identification of a violation or deficiency of provider qualifications or standards, the county board shall deliver written notice of the violation or deficiency to the certified provider along with the requirement for the submittal of a plan of compliance from the certified provider. The preliminary report shall be completed in a format prescribed by the protocols established by the department.

(b) The certified provider shall have an opportunity to provide a written response to the preliminary report within fourteen calendar days from receipt of the report. If the certified provider does not respond within the fourteen days, the report shall be final and not subject to appeal by the certified provider. The certified provider’s response shall include one of the following:

(i) If the preliminary report indicates no deficiencies, the certified provider shall be asked to provide a written acknowledgement of receipt of the report to the county board.

(ii) The certified provider shall concur with the deficiencies identified in the preliminary report and submit a plan of compliance to correct the deficiencies. In the event the plan of compliance requires changes to an individual’s service plan, such changes shall be made in accordance with applicable requirements. If the service plan results in additional services to be provided by the certified provider, it shall include the manner in which the certified provider is to be paid for those services.

(iii) The certified provider shall object to any comments or deficiencies identified in the preliminary report and supply information to support the objections.

(c) If the county board concurs with the certified provider’s response, the county board shall amend its preliminary report accordingly within seven calendar days of receipt of the certified provider’s response and send a copy of the report to the certified provider, the department, and the individual, guardian, and/or to the parent of a minor child who participated in the review.

(d) If the county board does not concur with any or all of the objections raised in the certified provider’s response and/or with the certified provider’s proposed plan of compliance, the county board shall meet with the certified provider within seven calendar days of receiving the certified provider’s response in an attempt to reach a consensus on areas of disagreement.

(e) Within seven calendar days after the conclusion of the meeting, or if the certified provider chooses not to participate in such a meeting, the county board shall prepare and mail to the certified provider a compliance review report. The report shall include the following:

(i) All findings of non-compliance by the county board;

(ii) Any objections raised by the certified provider;

(iii) The basis upon which the county board made its decision not to accept the certified provider’s objection; and

(iv) A plan of compliance developed by the county board if the county board and certified provider cannot agree on a plan of compliance.

(f) If the certified provider objects to any of the findings in the report, including a plan of compliance developed by the county board, the certified provider may submit a written appeal to the department within seven calendar days of the certified provider’s receipt of the report.

(g) Upon receipt of the certified provider’s appeal of the county board’s report, the department shall initiate a review and may request input from the certified provider and/or the county board during the course of its review.

(h) The department shall conclude a review of the report of the county board within fourteen calendar days of receiving the report from the county board. The review shall consider the findings and recommendations of the county board and the response from the certified provider. The department shall notify the county board and the certified provider, in writing, of its determination of the appeal. If the appeal by the provider is in regard to a finding of a deficiency or violation of applicable standards as a result of a review conducted by the county board, the department shall:

(i) Issue a written decision as to the substantiation of the finding; and

(ii) Direct the certified provider to submit an acceptable plan of compliance to the department within seven calendar days if the department substantiates the finding of non-compliance.

(i) The department shall send the plan of compliance to the county board. The county board shall be responsible for verifying the implementation of any plan of compliance and notifying the department when a certified provider has completed its plan of compliance.

(j) If the certified provider fails to comply with the plan of compliance, the county board shall notify the department within five calendar days of the date the plan of compliance was to be completed. The county board shall provide its recommendation for any action to be taken by the department under applicable requirements, which may include, but is not limited to, a recommendation that the department initiate certification suspension or revocation proceedings pursuant to paragraph (H) of this rule.

(k) A certified provider shall not be subject to any adverse action for acting in accordance with a plan of compliance approved by a county board. However, the department shall require the certified provider to comply with applicable rules in the event the plan of compliance is determined to be erroneous.

(l) An county board shall not be considered to be deficient in its responsibilities if it has acted in accordance with paragraph (D) of this rule.

(m) Reports or findings issued under paragraph (D) of this rule may be introduced in any proceeding initiated by the department under paragraph (H) of this rule; however, no findings contained in any report issued under this paragraph shall be deemed conclusively established for the purposes of any such proceedings. The department shall be required to prove in accordance with Chapter 119. of the Revised Code any findings it intends to raise for consideration in a proceeding the department initiates under paragraph (H) of this rule. The certified provider shall be permitted to contest in accordance with Chapter 119. of the Revised Code any such findings or conclusions in such proceedings under paragraph (H) of this rule.

(n) The timelines outlined in paragraph (D) of this rule may be extended by the mutual written consent of the county board and the provider.

(E) The county board as a certified provider shall be treated in the same manner as any other certified provider and shall be held responsible for all subcontracted services in the same manner as any other certified provider.

(1) When any of the circumstances listed in this paragraph exist, the department shall arrange for the review of the county board, and the county board’s responsibilities for compliance reviews shall be limited:

(a) The county board is a county board that is a certified provider, the county board shall not conduct a compliance review of the county board’s compliance with the continuing certification standards for the services the board is certified to provide;

(b) The provider is a council of governments formed by two or more county boards and the county board is a member of such council;

(c) The county board provides funding to the provider in excess of five hundred dollars other than through a contract to provide services to an individual;

(d) The county board appoints or approves the appointment of the majority of the provider’s board members;

(e) The county board appoints or approves the appointment of the majority of the provider’s officers;

(f) The majority of the provider’s management staff are employees of the county board who are acting within the scope of their employment by the county board;

(g) The majority of the provider’s non-management staff are employees of the county board who are acting within the scope of their employment by the county board;

(h) The county board furnishes to the provider at less than fair market price any office space or other physical facility, materials, equipment, supplies, or utilities that has a fair market value in excess of five hundred dollars.

(2) Nothing in this rule shall be construed to limit the authority of the county board to protect an individual’s health, safety, or welfare under sections 5126.31 and 5126.33 of the Revised Code, to conduct quality assurance reviews under section 5126.43 of the Revised Code and rule 5123:2-12-01 of the Administrative Code, or to ensure compliance and quality of services provided by its subcontractors in circumstances where the county board is providing services as a certified provider under authority of its contract with the subcontractors and provider certification requires the certified provider to complete.

(F) Compliance reviews conducted by the department

(1) Throughout any compliance review conducted by the department, the department shall have the burden of proving any findings contained in any preliminary or final reports issued by the department.

(2) The department shall conduct reviews in accordance with the protocols established by the department and the provisions of paragraph (C) of this rule. Procedures following a compliance review conducted by the department shall be as follows:

(a) When the department conducts a compliance review, a report shall be issued to the certified provider within twenty-one calendar days of the conclusion of the review. The report shall be completed in conformance with the protocol established by the department. A copy of the report shall be sent to the county board of the county where the certified provider provides waiver services and to the individual, guardian, and/or to the parent of a minor child who participated in the review.

(b) The certified provider may appeal any deficiencies in the report by submitting a written statement with supporting documentation to the department within fourteen calendar days of the issuance of the report. The department shall make a determination on the appeal, in writing, within fourteen calendar days of receipt of the appeal. The certified provider may file a written appeal with the director of the department or the director’s designee within seven calendar days after the date of the determination by the department. The director of the department or the director’s designee shall make a determination on the appeal of the certified provider within fourteen calendar days of the receipt of the appeal. The decision of the director or the director’s designee shall be the final administrative appeal within the department. The department shall provide a copy of the notification to the individual, guardian, and/or to the parent of a minor child who participated in the review.

(c) The certified provider who has received a copy of a report listing any deficiencies shall submit a plan of compliance to the department within fourteen calendar days of receipt of the report. The plan shall include how the certified provider will correct any deficiencies and the timelines for completion. The department shall approve or disapprove the plan as follows:

(i) If the department accepts the certified provider’s plan of compliance, the department shall notify the certified provider of such acceptance within seven calendar days of receipt of the plan of compliance and send a copy to the county board.

(ii) If the department does not accept the plan of compliance, the department shall notify the certified provider in an attempt to develop an acceptable plan of compliance with the certified provider within seven calendar days of receipt of the plan of compliance. The department or the certified provider may contact the county board for assistance in developing an acceptable plan of compliance.

(iii) The department may direct the certified provider to implement a plan of compliance developed by the department when the certified provider does not submit an acceptable plan of compliance to the department or when conditions present a risk to an individual’s health, safety or welfare. A copy of the plan of compliance developed by the department shall be sent to the county board.

(d) The county board may provide comments to the department throughout the department’s compliance review process outlined in paragraph (F) of this rule, which may include, but is not limited to, a recommendation that the department initiate certification suspension or revocation proceedings pursuant to paragraph (H) of this rule.

(3) The timelines outlined in paragraph (F) of this rule may be extended by the mutual written consent of the department and the provider.

(4) Reports or findings issued under paragraph (F) of this rule may be introduced in any proceeding initiated by the department under paragraph (H) of this rule; however, no findings contained in any report issued under this paragraph shall be deemed conclusively established for the purposes of any such proceedings. The department shall be required to prove in accordance with Chapter 119. of the Revised Code any findings it intends to raise for consideration in a proceeding the department initiates under paragraph (H) of this rule. The certified provider shall be permitted to contest in accordance with Chapter 119. of the Revised Code any such findings in such proceedings.

(G) 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.

(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 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 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.

(H) Certification suspension or revocation

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

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

(b) A pattern of non-compliance with either plans of compliance that have been accepted by the county board or those plans of compliance that the department has approved in accordance with this rule; or

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

(e) Other good cause, including misfeasance, malfeasance, nonfeasance, confirmed abuse or neglect, financial irresponsibility, or other conduct the director 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 or revocation proceedings under paragraph (H) of this rule shall be conducted in accordance with Chapter 119. of the Revised Code.

(a) When the director of the department initiates certification revocation proceedings, no opportunity for submitting a plan of compliance shall be given.

(b) When the director initiates certification suspension proceedings, an opportunity for submitting a plan of compliance may be given.

(c) A letter shall be sent by certified mail, return address requested, to the certified provider by the director notifying the certified provider of the initiation of certification suspension or revocation proceedings. The letter shall include:

(i) The reasons for the proposed suspension or revocation;

(ii) The certified provider’s right to a hearing 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:

(a) Written notice shall be given to ODJFS; and

(b) Written notice of that intent shall be given by the department to the county board for 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 its intent to suspend or revoke a certified provider’s certification shall so notify in writing each individual in the county board’s county who is receiving the waiver 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. The department shall prepare and sign the letter, which the county board shall send without modification or augmentation.

(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) Written notice of the certified provider’s suspension or revocation shall be given to ODJFS and to the county board for each county in which the suspension or certification is effective.

(8) Each county board that is notified in writing by the department of its suspension or revocation of a certified provider’s certification shall so notify in writing each individual in the county board’s county who is receiving the waiver 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.

(9) If a certified provider does not request a hearing within thirty calendar days of the date of the department’s notice to suspend or revoke the certified provider’s certification, the department shall issue an adjudication order suspending or revoking the certified provider’s certification and shall follow the procedures set forth in paragraphs (H)(7) and (H)(8) of this rule. If a certified provider’s certification is suspended or revoked, the certified provider shall comply with the adjudication order within thirty days of the date of the mailing of the order.

(10) If the department issues an adjudication order that suspends a provider’s certification for a specified time period, the suspension shall be lifted at the end of that time period, provided that the provider demonstrates to the department’s satisfaction that the conditions that led to the suspension have been corrected.

(11) If the department issues an adjudication order that suspends a provider’s certification to serve additional individuals, the department shall lift the suspension if the provider demonstrates to the department’s satisfaction that the conditions that led to the suspension have been corrected.

Effective: 07/01/2005

R.C. 119.032 review dates: 07/08/2009

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5123.045, 5123.19, 5126.05, 5126.08, 5126.431, 5111.871

Rule Amplifies: 5123.04, 5123.045, 5123.19, 5126.05, 5126.08, 5126.431, 5111.871

Prior Effective Dates: 10/16/03, 7/8/04

5123:2-9-09 HCBS waivers - application, issuance, and denial procedures. [Rescinded]

Rescinded eff 10-1-09

5123:2-9-10 HCBS waivers - day habilitation. [Rescinded]

Rescinded eff 10-5-08

5123:2-9-11 HCBS waivers - free choice of provider.

(A) Purpose

The purpose of this rule is to establish procedures for individuals to choose qualified and willing providers of home and community-based services in accordance with provisions set forth in sections 5126.046 and 5123.044 of the Revised Code. This rule clarifies the department’s role in assuring the free choice of provider processes are adhered to and is intended to emphasize the right of individuals to choose any qualified provider of home and community-based services. Nothing in this rule shall have the effect or shall be interpreted as limiting that choice.

(B) Application

(1) This rule applies to all county boards; to all persons responsible for service and support administration in accordance with section 5126.15 of the Revised Code when assisting individuals/guardians who may be eligible for services through a county board to select home and community-based service providers; and to qualified providers of home and community-based services. This rule is applicable to qualified providers of home and community-based services when these services are provided in a facility licensed by the department in accordance with section 5123.19 of the Revised Code. The requirements of this rule supersede the requirements contained in paragraphs (C)(4), (C)(5), (C)(6), (C)(7) and (G)(1)(a) of rule 5123:2-3-05 of the Administrative Code.

(2) Notwithstanding paragraph (G)(1) of this rule, the SSA shall follow the provider choice process set forth in paragraphs (H) and (I) of this rule for each service specified in an ISP, at the time of an individual’s enrollment in a home and community-based services program, annually at the time of re-determination, and at any other time the individual/guardian expresses an interest in or makes a request to choose a new, different or additional provider.

(1) “County board” means a county board of mental retardation and developmental disabilities established under Chapter 5126. of the Revised Code or a regional council of government comprised of two or more county boards and formed under section 5126.13 of the Revised Code.

(2) “Department” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(3) “Guardian” means a guardian appointed by the probate court under Chapter 2111. of the Revised Code. If the individual is a minor for whom no guardian has been appointed under that chapter, “guardian” means the individual’s parents. If no guardians have been appointed for a minor and the minor is in the legal or permanent custody of a government agency or person other than the minor’s natural or adoptive parents, “guardian” means that government agency or person. “Guardian” also includes an agency under contract with the department for the provision of protective service under sections 5123.55 to 5123.59 of the Revised Code.

(4) “Home and community-based services” means medicaid funded home and community-based services provided under a medicaid component the department administers pursuant to section 5111.871 of the Revised Code, as described and modified through rules promulgated by ODJFS and the department.

(5) “Individual” means a person with mental retardation or other developmental disability who is eligible to receive home and community-based services as an alternative to receiving services in an intermediate care facility for the mentally retarded under the applicable waiver. A guardian may take any action on behalf of the individual, make choices for an individual, or may receive notice on behalf of an individual to the extent permitted by applicable law.

(6) “ISP” means the individual service plan, a written description of the services, supports and activities to be provided to an individual.

(7) “ODJFS” means the Ohio department of job and family services as established by section 121.02 of the Revised Code.

(8) “Qualified provider” means an agency or individual certified by the department to provide home and community-based services and who has a medicaid agreement with ODJFS that covers the services.

(9) “Service and support administration” means the duties performed by individuals employed or under contract with a county board to provide service and support administration as identified in section 5126.15 of the Revised Code.

(10) “SSA” means service and support administrators who are certified in accordance with rules adopted by the department under Chapter 5123:2-5 of the Administrative Code and who provides the functions of service and support administration.

(11) “Willing provider” means a qualified provider who, in accordance with the provider choice process contained in paragraphs (H) and (I) of this rule, agrees to provide home and community-based services. When determining willingness to provide federally funded waiver services to an individual, neither the provider nor any person acting on behalf of the provider shall discriminate, by reason of race, color, religion, sex, age, handicap, national origin or ancestry, against any individual eligible to receive home and community-based services.

(D) Decision-making responsibility

(1) An individual shall be responsible for making all decisions regarding free choice of providers unless the individual has a guardian, in which case the guardian shall be responsible for making such decisions.

(2) Individuals, including those with guardians, have the right to participate in decisions regarding the free choice of providers.

(3) An individual who does not have a guardian or an individual’s guardian may designate another person, including a member of the individual’s family, to participate in the process of making decisions regarding free choice of providers in accordance with paragraph (P) of rule 5123:2-1-11 of the Administrative Code.

(E) Provider lists

(1) The department shall create and maintain on its website lists of all providers of home and community-based services who meet the requirements of paragraph (C)(8) of this rule. The department shall update the list at least monthly. Providers shall update their information at the frequency and in the manner determined by the department.

(2) The SSA shall utilize the lists of providers created by the department to assist the individual in identifying potential providers, in accordance with paragraph (H) of this rule.

(F) Notification process

(1) Annually, the county board shall provide to each individual, guardian and/or person designated by the individual the following information in writing and in a form and manner the individual can understand:

(a) A description of the individual’s right to choose any qualified provider from among all those available statewide and not limited to those who provide services currently in a given county.

(b) Procedures the SSA will follow, in accordance with paragraph (H) of this rule, to assist an individual/guardian in the selection of providers of home and community-based services. The procedures shall be based upon written guidance developed and approved by the department and ODJFS and shall be made available to each individual without modification of the guidance provided.

(c) A description of information available on the department’s website pertaining to providers of home and community-based services and instructions to access the information.

(d) A description of the individual’s hearing rights pursuant to section 5101.35 of the Revised Code that are contained in a handbook developed and approved by the department and ODJFS.

(2) The county board shall maintain documentation to verify compliance with the requirements of paragraph (F)(1) of this rule, including the list of individuals contacted, the date(s) on which the notification occurred, and the text of the notification.

(G) Provider choice options available to an individual

(1) When an individual/guardian identifies and/or chooses a qualified provider who is also willing to provide home and community-based services to the individual, the SSA shall honor the individual’s/guardian’s request and shall not utilize the provider selection process set forth in paragraphs (H) and (I) of this rule. The SSA shall document this selection.

(2) An individual/guardian may choose homemaker/personal care services providers under the home and community-based services waivers through two options:

(a) If an individual currently resides in a facility licensed by the department in accordance with section 5123.19 of the Revised Code in which the operator is certified to provide home and community-based services, or desires to reside in a licensed facility in the future, the individual/guardian is choosing both the place of residence and the homemaker/personal care services provider. To change providers of homemaker/personal care services, with assistance provided by the SSA, the individual/guardian shall:

(i) Obtain the agreement of the licensee to permit another provider of homemaker/personal care services to provide services within the licensed home; or

(ii) Relocate from the licensed home.

(b) If the individual resides in any other setting in which it is permissible to receive home and community-based services, the individual/guardian may choose any qualified and willing provider using the processes described in this rule.

(H) Responsibilities of the county board in the choice process

Except as provided in paragraph (G)(1) of this rule, the county board shall adhere to the following processes to assist an individual/guardian to choose qualified providers of home and community-based services:

(1) The county board shall inform the individual/guardian of the department’s website containing the list of providers qualified to provide home and community-based services.

(2) The county board shall assist the individual/guardian to access the website, if assistance is needed.

(3) The county board shall assist the individual/guardian, if requested by the individual/guardian, to obtain outcomes of past internal and/or external monitoring reviews of home and community-based services provided.

(4) Following the individual’s/guardian’s review of the list of qualified providers and identification of the individual’s/ guardian’s preliminary consideration of a qualified provider, the county board shall contact the provider(s) selected preliminarily by the individual to determine the provider’s interest in providing services to the individual. This contact shall be made within five working days following the county board’s receipt of the preliminary provider selections by the individual/guardian, unless the individual/ guardian or a person designated by the individual/guardian wishes to contact the provider(s) directly.

(I) Responsibilities of the SSA, provider, and individual in the choice process

(1) If at any time during the process protected health information is requested, the SSA shall obtain a HIPAA-compliant release of information from the individual/guardian before such information shall be provided.

(2) At the time of the initial contact with the provider(s) who is the preliminary choice of the individual, the SSA shall describe the services and supports desired by the individual and the anticipated frequency, duration, and location of the services to be delivered.

(3) The provider shall inform the SSA of the provider’s preliminary determination to proceed with the selection process within two working days following this initial contact by the SSA.

(4) In each instance when the provider has indicated a preliminary interest in providing waiver services to the individual, the SSA shall assure that the individual/guardian is aware of his/her opportunity to meet with the provider. If the individual/guardian indicates the desire for this meeting, if requested, the SSA shall assist the individual/guardian to meet with the provider at a place and time acceptable to both parties.

(5) When an agency provider has agreed to be available for consideration by an individual/guardian, if requested by the individual/guardian, the agency shall make available:

(a) Description of all home and community-based services the provider is certified to provide;

(b) Qualifications of the chief executive officer of the agency;

(c) Written policies and procedures related to the provision of the home and community-based services desired by the individual; and

(d) Additional information the provider elects to make available, including outcomes of past internal and/or external monitoring reviews of the home and community-based services provided.

(6) When an individual provider has agreed to be available for consideration by an individual/guardian, if requested by the individual/guardian, the provider shall make available:

(a) A description of all home and community-based services the provider is certified to provide; and

(b) Additional information the provider considers to be relevant, including past experiences providing services and supports.

(7) Unless the individual/guardian does not desire to have a meeting, within three working days following the meeting with the individual/guardian, the provider shall inform the county board whether the provider is interested in pursuing the referral.

(8) If the provider is not interested in pursuing the referral, the county board shall notify the individual/guardian within two working days and resume the provider choice process with an alternative provider.

(9) Nothing in this rule shall be construed to prohibit an individual/guardian from engaging simultaneously in the provider selection process with more than one provider.

(10) If the provider is interested in pursuing the referral, the county board shall forward information to the provider sufficient to enable the provider to determine whether he/she can provide the desired waiver services and meet the health and welfare needs of the individual within the standards governing payment for the home and community-based services. This information shall be released within three working days following the county board’s receipt of an indication of interest by the provider and only upon consent from the individual/guardian.

(a) When the potential provider indicates that supplemental information and/or assessments are needed to enable the provider to evaluate the service delivery strategy that will best support the individual and reach a conclusion concerning the provider’s willingness to serve the individual, based upon the reasonableness of the request, the individual/guardian shall determine the type and extent of supplemental information to be provided.

(b) The county board shall obtain the individual’s consent to obtain the supplemental information. When consent is obtained, the county board shall initiate activities needed to obtain the information. In no instance shall the county board forward the supplemental material to the provider more than twenty working days following the date on which the individual’s/guardian’s consent was obtained.

(11) The potential provider shall inform the individual/guardian and the county board of the provider’s determination to serve or not to serve the individual within five working days following receipt of the information described in paragraph (I)(10) of this rule or receipt of the supplemental information authorized for release, as described in paragraphs (I)(10)(a) and

(I)(10)(b) of this rule, whichever is the later date. This communication shall be made in a form and manner the individual can understand. The notification also shall be made in writing to the county board.

(12) Any timelines contained in paragraphs (H) and/or (I) of this rule may be extended with the written consent of the individual/guardian, county board and the involved waiver service provider.

(13) The county board shall utilize all elements of the checklist described in appendix A to this rule to document compliance with the activities and timelines contained in paragraphs

(G) to (I) of this rule. The checklist shall be completed in each instance when an individual engages in the free choice of a provider process, as described in paragraph (B)(2) of this rule. The county board shall retain completed checklists as a part of the individual’s service record.

(J) Initiating services

(1) The SSA shall assist the individual in making arrangements for initiation of home and community-based services with the chosen provider.

(2) The SSA shall document the chosen provider and the type, frequency, duration, and location of home and community-based services on the individual’s ISP. The ISP shall indicate ratios at which services are to be delivered when individuals share waiver services.

(K) Due process and appeal rights for individuals

(1) Any recipient or applicant for home and community-based services may utilize the process set forth in section 5101.35 of the Revised Code, in accordance with division-level designation 5101:6 of the Administrative Code, for any purpose authorized by that statute and the rules implementing the statute, including being denied the choice of a provider who is qualified and willing to provide a home and community-based service. The process set forth in section 5101.35 of the Revised Code is available only to applicants, recipients, and their lawfully authorized representatives.

(2) Providers shall not utilize or attempt to utilize the process set forth in section 5101.35 of the Revised Code. Providers shall not appeal or pursue any other legal challenge to a decision resulting from the process set forth in section 5101.35 of the Revised Code.

(3) The county board shall inform the individual or guardian, in writing and in a manner the individual can understand, of the individual’s right to request a hearing in accordance with division-level designation 5101:6 of the Administrative Code.

(4) The county board shall immediately implement any final state hearing decision or administrative appeal decision relative to free choice of provider for HCBS waiver services issued by ODJFS, unless a court of competent jurisdiction modifies such a decision as the result of an appeal by the medicaid applicant or recipient.

(L) Department training and oversight

(1) The department shall provide periodic training and assistance to familiarize individuals with the rights and responsibilities contained in this rule and to enable county boards and providers of home and community-based services to meet their respective obligations when implementing the rule.

(2) The department shall assure the county board’s compliance with this rule and initiate appropriate remedial action, when warranted, in accordance with sections 5123.044 and 5126.055 of the Revised Code.

(3) The department shall investigate or cause an investigation of complaints when it is alleged by the individual/guardian that the individual is being denied free choice of a provider of home and community-based services. On receipt of these complaints, the department shall do either of the following:

(a) Conduct an independent review or investigation of the complaint in accordance with section 5123.14 of the Revised Code;

(b) Request that an independent review or investigation of the complaint be conducted by a county board that is not implicated in the report, a regional council of government, or any other entity authorized to conduct such investigations.

(4) The department shall conduct an individual quality assurance review, at the frequency determined by the department, in accordance with rule 5123:2-12-01 of the Administrative Code to verify through an interview process with the individual, guardian and involved family members the extent of their participation in the choice of a provider.

(5) The department shall utilize the accreditation process in accordance with rule 5123:2-4-01 of the Administrative Code to monitor county board compliance with requirements of this rule.

(M) Assistance to parties interested in becoming providers

(1) The county board shall refer all parties interested in becoming a provider of home and community-based services to the department’s website.

(2) The department shall include on the website a description of the entire certification process including an application for certification as a home and community-based service provider.

(3) The department shall assist all parties interested in becoming providers.

(4) The county board shall not require current or potential providers of home and community-based services to meet standards and/or training expectations that exceed or are separate from the provider certification requirements adopted by the department and contained in the Ohio Administrative Code.

Appendix A

Elements of a Checklist for Provider Choice Process

______________________________/__________________ ______________/_____________

Individual’s Name IIF Number Waiver Type and Service

Reason Provider Choice Process Initiated

( ) New service, ( ) Indiv. requested provider change, ( ) Provider termination, or ( ) Other, specify________________________________________________________________

__________________ /_________________ /________________ /_______________________

County Board SSA’s Name Telephone # E-mail address

Activity____________________________________________________________ Date_______

Individual requests Provider – Name of Provider ________________________________

If an Indiv. selected a Provider in accordance with paragraph (G)(1) of rule 5123:2-9-11 of the Administrative Code, the following information elements DO NOT need to be provided:

County Board informs Indiv. of website __________________________________________

County Board assists Indiv. to use website _______________________________________

Individual selects prelim. Provider(s) ___________________________________________

County Board contacts Providers, describes services, freq.(5 working days after selection)______________________________________________________________________________

Provider indicates prelim.

( ) Ok or ( ) not Ok (2 working days after County Board contact)________________________________________________________________________________

Meeting of Indiv.& Provider held (If no mtg., specify why) _______________________

Provider indicates interest in pursuing referral ( ) Yes or ( ) No (3 working days after mtg.)___________________________________________________________________________________

If no, County Board notifies Indiv. & resumes selection process___________________

If ok, County Board gains release & forwards

collateral info. to Provider (3 working days after ok & consent)__________________

Provider indicates ( ) Yes or ( ) No;

informs Indiv.& County Board (5 working days after interview)_____________________

Provider desires supplemental information ________________________________________

If supplemental info. requested, County Board gains release;

authorizes activities to gather info.

& forwards supplemental info. to Provider (20 working days after consent) ________

Provider indicates ( ) Yes or ( ) No;

informs Indiv.& County Board (5 working days after supplemental info. recv’d) ____

If no, reason given ______________________________________________________________

Timeline extensions noted (attach verification)___________________________________

Effective: 07/01/2005

R.C. 119.032 review dates: 07/01/2010

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5126.046, 5126.055

Rule Amplifies: 5123.04, 5123.044, 5126.035, 5126.046, 5126.055, 5126.15, 5111.871

5123:2-9-12 HCBS waivers - payment standards for day habilitation. [Rescinded]

Rescinded eff 10-5-08

5123:2-9-13 HCBS waivers - supported employment. [Rescinded]

Rescinded eff 10-5-08

5123:2-9-16 HCBS waivers - supported employment-enclave and supported employment-community.

(A) Purpose

The purpose of this rule is to specify the service definitions for supported employment-enclave and supported employment-community and to set forth the certification standards required under section 5123.16 of the Revised Code for individual providers, agencies, county boards, and subcontractors of agencies and/or county boards and their employees who provide supported employment-enclave and supported employment-community services to individuals enrolled in HCBS waivers administered by the department.

(B) Definitions

(1) “Agency” means an entity, other than a county board, that employs persons for the purpose of providing supported employment-enclave and/or supported employment-community services.

(2) “Applicant” means an agency or county board seeking to become a certified provider of supported employment-enclave and/or supported employment-community services or a person seeking to become a certified provider of supported employment-community services.

(3) “Certified provider” means an agency or county board certified to provide supported employment-enclave and/or supported employment-community services in accordance with this rule and/or a person certified to provide supported employment-community services in accordance with this rule.

(4) “Continuing professional development” means department-approved training that is provided by approved trainers and is used by certified providers, their employees, their subcontractors, and employees of subcontractors to maintain continuing certification standards in accordance with this rule. A unit of continuing professional development is fifty minutes of instruction.

(5) “County board” means a county board of mental retardation and developmental disabilities established under Chapter 5126. of the Revised Code.

(6) “Department” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(7) “Direct services staff” means personnel who meet certification requirements promulgated by the department necessary to provide supported employment-enclave and/or supported employment-community waiver services.

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

(9) “Habilitation management” includes the responsibilities prescribed in section 5126.14 of the Revised Code.

(10) “Individual” means a person with mental retardation or other developmental disability who is eligible to receive HCBS waiver services as an alternative to placement in an intermediate care facility for the mentally retarded under the applicable HCBS waiver. A guardian may take action on behalf of an individual, may make choices for an individual, or may receive notice on behalf of an individual to the extent permitted by law.

(11) “Individual provider” means a self-employed person who provides supported employment-community services to individuals enrolled in an HCBS waiver administered by the department and does not employ, either directly, or through a contract, anyone else to provide the services.

(12) “ISP” means the individual service plan, a written description of the services, supports, and activities to be provided to an individual.

(13) “Orientation program” means thirty hours of training completed within ninety days of employment that shall include, but is not limited to, the following areas:

(a) Overview of mental retardation and developmental disabilities;

(b) Operations and organization of the agency or county board;

(d) Incidents adversely affecting health and safety as outlined in rule 5123:2-17-02 of the Administrative Code; and

(e) Principles of self-determination and service plan development.

(14) “Provider” means an agency, county board, or individual provider that:

(a) Is certified by the department to provide medicaid-funded home and community-based services; and

(b) Has a medicaid provider agreement from the Ohio department of job and family services (ODJFS).

(15) “Seminar” means thirty hours of department-approved instruction by a provider approved by the department.

(a) Each of the following shall be the topic of a thirty-hour seminar:

(i) Introduction to mental retardation and developmental disabilities;

(ii) Principles of work or principles of habilitation programming; and

(iii) Principles of behavior support.

(b) The chief executive officer of the certified agency and/or county board provider may request the department to approve other seminar topics, as determined by the certified provider, that more appropriately meet the needs of individuals served by the provider. These seminars may be substituted for one or more of the topical areas specified in paragraph (B)(15)(a) of this rule upon approval by the department.

(16) “SSA” means a service and support administrator who is certified in accordance with rules adopted by the department under Chapter 5123:2-5 of the Administrative Code and who performs the functions of service and support administration.

(17) “Supported employment services” means intensive, ongoing supports that enable participants, for whom competitive employment at or above the minimum wage is unlikely absent the provisions of supports, and who because of their disabilities need supports, to perform in a regular work setting. “Supported employment” does not include sheltered work or other similar types of vocational services furnished in specialized facilities.

(a) Supported employment services are available to individuals who are no longer eligible for educational services based on their graduation and/or receipt of a diploma/equivalency certificate and/or their permanent discontinuation of educational services within parameters established by the Ohio department of education.

(b) Supported employment services, other than self-employment as described in paragraph

(B)(17)(d)(ii)(a) of this rule, shall take place in a non-residential setting separate from any home or facility in which an individual resides.

(c) Supported employment services furnished under the waiver are not available under a program funded by the “Rehabilitation Act of 1973,” 29 U.S.C. 701, as amended and in effect on the effective date of approval of this waiver service by the centers for medicare and medicaid services. The form contained in the appendix to this rule shall be signed and retained in an individual’s record as verification that this requirement has been met.

(d) “Supported employment services” are defined as two discrete waiver services:

(i) “Supported employment-enclave” means supported employment services provided to waiver enrollees who work as a team at a single work site of the host community business or industry with initial training, supervision, and ongoing support provided by on-site staff.

(a) Supported employment-enclave services are provided to eligible waiver enrollees who participate in a work program that meets the criteria for employment of workers with disabilities under certificates at special minimum wage rates issued by the department of labor, as required by the “Fair Labor Standards Act,” and in accordance with the requirements of 29 C.F.R. Part 525: “Employment of Workers with Disabilities Under Special Certificates” (revised as of July 1, 2005).

(b) Supported employment-enclave services shall normally be made available four or more hours per day on a regularly scheduled basis, for one or more days per week, unless provided as an adjunct to other day activities included in an ISP.

(i) “Dispersed enclaves” in which individuals work as a self-contained unit within a company or service site in the community or perform multiple jobs in the company, but are not integrated with non-disabled employees of the company.

(ii) “Mobile work crews” comprised solely of individuals operating as distinct units and/or self-contained businesses working in several locations within the community.

(ii) “Supported employment-community” means supported employment services provided to waiver enrollees in an integrated community work setting where waiver enrollees and persons without disabilities are employed to perform the same or similar work tasks.

(a) Supported employment-community may also include services and supports that assist an individual to achieve self-employment through the operation of a business. Such assistance may be provided in the individual’s home or the residence of another person and may include:

(i) Aiding the individual to identify potential business opportunities;

(ii) Participating in developing a business plan, including identifying potential sources of business financing and gaining assistance to launch a business;

(iii) Identifying supports necessary for the individual to operate the business; and

(iv) Providing ongoing counseling and guidance once the business has been launched.

(b) Supported employment-community waiver funds may not be used to either start-up or operate a business.

(e) Activities that constitute supported employment-enclave and supported employment-community services follow:

(i) “Vocational assessment” that is conducted through formal and informal means for the purpose of developing a vocational profile and employment goals. The profile may contain information about the individual’s educational background, work history, and job preferences; will identify the individual’s strengths, values, interests, abilities, available natural supports, and access to transportation; and will identify the earned and unearned income available to the individual.

(ii) “Job development and placement” includes some or all of the following activities provided directly or on behalf of the individual:

(a) Developing a resume that identifies the individual’s job related and/or relevant vocational experiences;

(b) Training and assisting the individual to develop job-seeking skills;

(d) Assisting the individual to find jobs that are well matched to his/her employment goals;

(e) Developing job opportunities on behalf of the individual through direct and indirect promotional strategies and relationship-building with employers;

(f) Conducting work-site analyses, including customizing jobs; and

(g) Increasing potential employers’ awareness of available incentives that could result from employment of the individual.

(iii) “Job training/coaching” includes some or all of the following activities:

(a) Developing a systematic plan of on-the-job instruction and support, including task analyses;

(b) Assisting the individual to perform activities that result in his/her social integration with disabled and non-disabled employees on the work-site;

(d) Providing off-site services and training that assist the individual with problem solving and meeting job-related expectations; and

(e) Developing and implementing a plan to assist the individual to transition from his/her prior vocational or educational setting to employment, emphasizing the use of natural supports.

(iv) “Ongoing job support” includes direct supervision, telephone and/or in-person monitoring and/or counseling, and the provision of some or all of the following supports to promote the individual’s job adjustment and retention.

(a) Following-up with the employer and/or the individual at the frequency required to assist the individual to retain employment;

(b) Assisting the individual to use natural supports and generic community resources;

(c) Providing training to the individual to maintain work skills, enhance personal hygiene, learn new work skills, improve social skills, and/or modify behaviors that are interfering with the continuation of his/her employment; and

(d) Assisting the individual with self-medication or provision of medication administration for prescribed medication and assisting the individual with or performing health-related activities as identified in rule 5123:2-6-01 of the Administrative Code, which a licensed nurse agrees to delegate in accordance with requirements of Chapters 4723., 5123., and 5126. of the Revised Code and rules adopted under those chapters.

(v) “Worksite accessibility” includes some or all of the following activities:

(a) Time spent identifying the need for and assuring the provision of reasonable job site accommodations that allow the individual to gain and retain employment;

(b) Time spent assuring the provision of these accommodations through partnership efforts with the employer; and

(c) Purchasing or modifying equipment that will be retained by the individual on the current employment site and/or in other settings. Service codes and rates that shall be used to obtain payment for the purchase and/or modification of equipment obtained in accordance with this paragraph are contained in appendix C to rule 5123:2-9-19 of the Administrative Code.

(vi) “Training in self-determination” includes assisting the individual to develop self-advocacy skills, to exercise his/her civil rights, to exercise control and responsibility over the services he/she receives, and to acquire skills that enable him/her to become more independent, productive, and integrated within the community.

(18) “Supported employment subcontracted service” means supported employment-enclave and/or supported employment-community services provided by a certified agency and/or county board provider of supported employment-enclave and/or supported employment-community services pursuant to a subcontract, when the program(s) or service(s) is/are designed and operated primarily to serve individuals with mental retardation or other developmental disability, including a program or service provided by an entity licensed or certified by the department. For purposes of certification under this rule, a generic community service or other program or service available to the general public is not subject to certification requirements when said service is subcontracted.

(1) Certified providers of supported employment-enclave and supported employment-community services shall:

(a) Participate in the individual’s ISP meetings if and when the individual requests them to attend.

(b) Perform tasks and duties according to the individual’s ISP.

(c) Recognize changes in the individual’s condition and behavior, report to the SSA, and record the changes in the individual’s written record.

(d) Document all services provided to and on behalf of the individual in accordance with rule 5123:2-9-05 of the Administrative Code and, for supported employment-enclave services, also in accordance with appendix E to rule 5123:2-9-19 of the Administrative Code.

(e) Report identified safety and sanitation hazards that occur on the work-site to employers having the responsibility to remedy the condition.

(f) Maintain documentation from the department of the certified provider’s certification under this rule.

(D) Standards and requirements for initial and continuing certification of individual, agency, and county board providers

An applicant shall meet the following requirements in order to ensure the health and welfare of individuals receiving supported employment-enclave and/or supported employment-community services:

(1) Submit an application in accordance with rule 5123:2-9-09 of the Administrative Code.

(2) For agency and county board applicants, provide to the department written assurance that the applicant employs a chief executive officer or a person responsible for administration who has either a bachelor’s degree from an accredited institution or at least two years of paid experience in mental retardation or developmental disabilities, health care, social services, or the provision of supported employment-enclave and/or supported employment-community waiver services.

(3) For an individual provider applicant, provide to the department written assurance that the applicant has at least one year of paid experience providing supported employment-community services or has successfully completed thirty hours of formal training in supported employment or related services.

(4) For an individual provider applicant, provide to the department written assurance that the applicant is at least eighteen years of age and has a high school diploma or GED.

(5) For agency and county board applicants, provide to the department written assurance that the chief executive officer or person responsible for administration shall be responsible for the following functions:

(a) Personnel matters;

(b) Supervision of employees;

(d) Financial management.

(6) For agency and county board applicants, provide to the department written assurance that the applicant has written policies and procedures that address the applicant’s management practices in the following areas and implements the policies and procedures:

(a) Confidentiality of individuals’ records;

(b) Individual satisfaction;

(d) A table of organization;

(e) Staff training plan;

(f) Habilitation management; and

(g) A requirement that employees who provide supported employment-enclave and/or supported employment-community services shall be at least eighteen years of age and have a high school diploma or GED.

(7) Provide to the department written assurance that:

(a) The agency or county board applicant complies and will comply with the requirements for background investigations established under section 5126.281 of the Revised Code and rules 5123:2-1-05 and 5123:2-1-05.1 of the Administrative Code for its executive director/superintendent and all employees providing supported employment-enclave and/or supported employment-community services, and for subcontractors and employees of subcontractors who provide these services.

(b) The agency or county board applicant shall require any employee, subcontractor of the applicant, or employee of a subcontractor who is in a direct services position to report, in writing, to the certified provider if the subcontractor and/or employee 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 no later than fourteen calendar days after the date of such charge, conviction, or guilty plea.

(c) The individual provider applicant complies and will comply with the requirements for background investigations established under section 5126.281 of the Revised Code and rules 5123:2-1-05 and 5123:2-1-05.1 of the Administrative Code.

(d) The individual provider applicant will report, in writing, to the department if the applicant 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 no later than fourteen calendar days after the date of such charge, conviction, or guilty plea.

(8) Provide to the department written assurance that:

(a) For agency and county board applicants, as of the date of the application, neither the applicant, employees of the applicant, subcontractors of the applicant, nor employees of subcontractors who provide supported employment-enclave and/or supported employment-community services to an individual with mental retardation or other developmental disability are listed on the abuser registry established pursuant to sections 5123.50 to 5123.54 of the Revised Code and that the applicant and subcontractors of the applicant will follow the requirements of sections 5123.50 to 5123.54 of the Revised Code.

(b) For an individual provider applicant, as of the date of the application, the applicant is not listed on the abuser registry established pursuant to sections 5123.50 to 5123.54 of the Revised Code and that the applicant will follow the requirements of sections 5123.50 to 5123.54 of the Revised Code.

(9) Provide to the department written assurance that:

(a) For agency and county board applicants, as of the date of the application, no employees, subcontractors of the applicant, and employees of subcontractors who provide supported employment-enclave or supported employment-community services to an individual with mental retardation or other developmental disability are listed on the nurse aide registry established under 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.

(b) For agency and county board applicants, the applicant will neither employ nor subcontract with agencies that employ persons to provide supported employment-enclave and/or supported employment-community services who are listed on the nurse aide registry established under 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.

(c) For an individual provider applicant, as of the date of the application, the applicant is not listed on the nurse aide registry established under 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.

(10) Provide to the department written assurance that:

(a) For agency and county board applicants, at least one employee or one employee of a subcontractor with a valid certification in “American Red Cross” or equivalent first aid training and a valid certification in cardiopulmonary resuscitation shall be present when an individual is receiving supported employment-enclave or supported employment-community services that require the provider to be in direct contact with the individual.

(b) For an individual provider applicant, the applicant shall have a valid certification in “American Red Cross” or equivalent first aid training and a valid certification in cardiopulmonary resuscitation when an individual is receiving supported employment-community services that require the provider to be in direct contact with the individual.

(11) Provide to the department written assurance that:

(a) Employees of an agency or county board applicant or a subcontractor of the applicant and/or employees of a subcontractor of the applicant shall not administer any medication to or perform health care tasks for individuals who receive supported employment-enclave and/or supported employment-community services unless the employees and/or subcontractor and/or employees of the subcontractor meet the applicable requirements of Chapters 4723., 5123., and 5126. of the Revised Code and rules adopted under those chapters.

(b) An individual provider applicant shall not administer any medication to or perform health care tasks for individuals who receive supported employment-community services unless the applicant meets the applicable requirements of Chapters 4723., 5123., and 5126. of the Revised Code and rules adopted under those chapters.

(12) Provide to the department written assurance that an individual provider applicant and all employees, subcontractors, and employees of subcontractors with agency and county board applicants who provide supported employment services shall complete training in and comply with the requirements of rule 5123:2-17-02 of the Administrative Code relating to incidents adversely affecting health and safety.

(13) Provide to the department written assurance that an individual provider applicant and all employees, subcontractors, and employees of subcontractors with agency and county board applicants who provide supported employment services shall complete training in and comply with the provisions governing rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code.

(14) Provide to the department written assurance that an individual provider applicant and all employees, subcontractors of the applicant, and employees of subcontractors with agency and county board applicants who provide supported employment services shall take all reasonable steps necessary to prevent the occurrence or reoccurrence of incidents adversely affecting health and safety.

(15) Provide to the department written assurance that an individual provider applicant and all employees, subcontractors, and employees of subcontractors with agency and county board applicants who provide supported employment services shall:

(a) Comply with the requirements of behavior supports established under rules adopted by the department.

(b) Assure that the individual provider applicant and direct services staff employed directly or through subcontracts by agency and county board applicants and who are responsible for implementing behavior support plans receive training in the plan components prior to implementation of the plans.

(16) Provide to the department written assurance that an individual provider applicant and agency and county board applicant and the subcontractors of the agency and county board applicant shall only agree to provide supported employment services to an individual whose needs the applicant can meet.

(17) Provide to the department written assurance that the applicant and subcontractors of the applicant shall implement supported employment services in accordance with the ISP.

(18) Provide to the department written assurance that an individual provider applicant and agency and county board applicant and the subcontractors of the agency and county board applicant shall provide habilitation management to individuals receiving supported employment services.

(19) Provide to the department written assurance that neither the applicant, subcontractors of the applicant, nor any employee of either the applicant or its subcontractors shall provide supported employment services to his/her minor child (under age eighteen) or his/her spouse.

(20) Provide to the department written assurance that the applicant, all employees, subcontractors of the applicant, and employees of subcontractors who provide supported employment services shall meet the initial and continuing standards for certification as outlined in paragraphs (E) and (F) of this rule.

(E) Standards and requirements for training

(1) The certified agency and/or county board shall maintain appropriate documentation to verify that only employees who complete the following continuing certification requirements provide supported employment-enclave services:

(a) Completion of the annual training requirements identified in paragraph (D) of this rule.

(b) During the year of initial employment, successful completion of an orientation program and at least one seminar.

(c) Beginning in the second year of employment and ending in the third year of employment, successful completion of a total of two seminars.

(d) Beginning in the fourth year of employment, successful completion of fifty units of continuing professional development during every successive five-year period of employment.

(2) The certified individual provider and agency and county board provider’s employees, subcontractors, and employees of the subcontractor shall maintain appropriate documentation to verify completion of the following certification requirements to provide supported employment-community services:

(a) Completion of the annual training requirements identified in paragraph (D) of this rule.

(b) Completion of a minimum of ten units of continuing professional development during each year following the year in which initial certification of the provider was obtained.

(3) Any training programs, seminars, and/or orientation programs completed by an employee of a provider certified as a day habilitation provider in accordance with rule 5123:2-9-10 of the Administrative Code or by a subcontractor of the certified provider or employee of a subcontractor may be applied to meet the training requirements outlined in this rule.

(4) The agency and county board that is certified to provide supported employment-enclave and/or supported employment-community services shall be responsible to ensure that employees, subcontractors, and employees of subcontractors meet the training requirements of this rule.

(F) Deeming of certification and training requirements

(1) An agency and/or county board may request the department to deem that its employees meet the requirements outlined in paragraph (E)(1) of this rule when the agency and/or county board provides evidence that it has received and maintains certification or accreditation from a nationally recognized entity for service categories comparable to supported employment-enclave and/or supported employment-community.

(2) A certified provider of supported employment-enclave and/or supported employment-community that subcontracts for these services may deem that the subcontractor meets the requirements outlined in paragraph (E)(1) of this rule when the subcontractor provides evidence that it has received and maintains certification or accreditation from a nationally recognized entity for service categories comparable to supported employment-enclave and/or supported employment-community.

(G) Training documentation

The certified provider shall maintain a written record, which may include an electronic record, of the orientation program, seminars, and continuing professional development completed by the individual provider, each employee, subcontractor, and each employee of a subcontractor who provides supported employment-enclave and/or supported employment-community services. This information shall be presented upon request by the department or ODJFS. Documentation shall include the following elements:

(1) The name of the person receiving the training;

(2) Date(s) of training;

(3) Length of training;

(4) Training topic;

(5) Instructor’s name, if applicable;

(6) Brief description of the content of the training; and

(7) Documentation of department approval when required by this rule.

(H) Certification and denial, suspension, or revocation of certification

(1) The department may deny the certification application of an applicant for failure to comply with the standards set forth in this rule pursuant to rule 5123:2-9-09 of the Administrative Code.

(2) After being certified in accordance with this rule, providers shall comply with the continuing certification standards set forth in this rule. Certified providers shall be subject to monitoring and compliance reviews conducted as set forth in rule 5123:2-9-08 of the Administrative Code. Failure to comply with the standards set forth in this rule for continuing certification and/or training of certified providers, employees of certified providers, subcontractors, or employees of subcontractors may result in corrective action by the department up to and including suspension or revocation of provider certification as set forth in rule 5123:2-9-08 of the Administrative Code.

(3) 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.

(I) Notwithstanding any requirements of this rule to the contrary, a county board or an agency that has been certified as a day habilitation provider in accordance with rule 5123:2-9-10 of the Administrative Code prior to the effective date of this rule shall be considered to be a certified supported employment-enclave provider on the effective date of this rule. An agency, county board, or individual provider that has been certified as a supported employment provider in accordance with rule 5123:2-9-13 of the Administrative Code prior to the effective date of this rule shall be considered to be a certified supported employment-community provider on the effective date of the rule. Within twelve months following the effective date of this rule, the department shall communicate the duration of the certifications and the conditions for renewal of the certifications to the certified provider.

APPENDIX

NON-AVAILABILITY OF FUNDING

FROM OHIO REHABILITATION SERVICES COMMISSION (ORSC)

FOR SUPPORTED EMPLOYMENT SERVICES

Name of individual requesting services from ORSC (BVR/BSVI): ________________________

Identifying #: _______________________________ Date of birth: _______________________

Address: _______________________________________________________________________

Person assisting with referral: ____________________________________________________

Phone: _____________________________ Agency: ______________________________________

E-Mail: __________________________________________________________________________

Referred to (specify ORSC office): _______________________________________________

Signature of individual requesting services: ________________________ Date: _________

— — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — — —

Documentation of Non-Availability of Funding

From Ohio Rehabilitation Services Commission (ORSC)

In order to access Supported Employment services available through the Medicaid Home and Community-Based Services waivers administered by the Ohio Department of Mental Retardation and Developmental Disabilities, ORSC must verify that funding for these services is not available from the State Vocational Rehabilitation Program.

Please check the following reason(s) why funds will no longer be available or are not currently available for this individual. If, however, this is an acceptable referral, please accept the attached referral form.

[ ] The individual has been successfully employed and his/her case will be closed by the ORSC because all time-limited services have been provided and it is necessary to transition to ongoing support provided by other service providers.

[ ] The individual is working at his/her maximum or desired level and does not require ORSC services at this time.

[ ] ORSC cannot begin the application process within six weeks and delaying services will be detrimental to the individual’s desired employment outcome.

ORSC Counselor (signature required) Date

Please complete this form and return a copy to the following address:

[Address to be completed by originating county board of MRDD.]

Effective: 01/01/2007

R.C. 119.032 review dates: 01/01/2012

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5123.045, 5123.082, 5123.16, 5126.25, 5111.871

Rule Amplifies: 5123.04, 5123.045, 5123.082, 5123.16, 5126.25, 5111.871

5123:2-9-17 HCBS waivers - adult day support and vocational habilitation.

(A) Purpose

The purpose of this rule is to specify the service definitions for adult day support and vocational habilitation and to set forth the certification standards required under section 5123.16 of the Revised Code for agencies, county boards, subcontractors of agencies and/or county boards and their employees who provide adult day support and vocational habilitation services to individuals enrolled in HCBS waivers administered by the department.

(B) Definitions

(1) “Adult day support” means non-vocational day services needed to assure the optimal functioning of individuals who participate in these activities in a non-residential setting.

(a) Adult day support services are available to individuals who are no longer eligible for educational services based on their graduation and/or receipt of a diploma/equivalency certificate and/or their permanent discontinuation of educational services within parameters established by the Ohio department of education.

(b) Adult day support services shall take place in a non-residential setting separate from any home or facility in which an individual resides. Services shall normally be made available four or more hours per day on a regularly scheduled basis, for one or more days per week unless provided as an adjunct to other day activities included in an individual service plan (ISP).

(i) “Assessment” that is conducted through formal and informal means for the purpose of developing components of an ISP pertaining to the provision of adult day support services.

(ii) “Personal care” includes providing supports and supervision in the areas of personal hygiene, eating, communication, mobility, toileting and dressing to ensure an individual’s ability to experience and participate in community living.

(iii) “Skill reinforcement” includes the implementation of behavioral intervention plans and assistance in the use of communication and mobility devices. Activities also include the reinforcement of skills learned by the individual that are necessary to ensure his/her initial and continued participation in community living, including training in self-determination.

(iv) “Training in self-determination” includes assisting the individual to develop self-advocacy skills; to exercise his/her civil rights; to exercise control and responsibility over the services he/she receives; and to acquire skills that enable him/her to become more independent, productive, and integrated within the community.

(v) “Recreation and leisure” includes supports identified in the individual’s service plan as being therapeutic in nature, rather than merely providing a diversion, and/or as being necessary to assist the individual to develop and/or maintain social relationships and family contacts.

(vi) Assisting the individual with self-medication or provision of medication administration for prescribed medication and assisting the individual with or performing health-related activities as identified in rule 5123:2-6-01 of the Administrative Code, which a licensed nurse agrees to delegate in accordance with requirements in Chapters 4723., 5123., and 5126. of the Revised Code and rules adopted under those chapters. In the case of individuals receiving adult day support services, with nursing delegation, a certified provider and/or sub-contractor of the certified provider may:

(a) Perform health-related activities;

(b) Administer oral and topical prescribed medications;

(c) Administer prescribed medications through gastrostomy and jejunostomy tubes if the tubes are stable and labeled; and/or

(d) Perform routine tube feedings if the gastrostomy and jejunostomy tubes are stable and labeled.

(2) “Adult day support subcontracted service” means adult day support services provided by a certified adult day support service provider pursuant to a subcontract, when the program(s) or service(s) is/are designed and operated primarily to serve individuals with mental retardation or other developmental disability, including a program or service provided by an entity licensed or certified by the department. For purposes of certification under this rule, a generic community service or other program or service available to the general public is not subject to certification requirements when said service is subcontracted.

(3) “Agency” means an entity, other than a county board, that employs persons for the purpose of providing adult day support and/or vocational habilitation services.

(4) “Applicant” means an agency or county board seeking to become a certified provider of adult day support and/or vocational habilitation services.

(5) “Certified provider” means an agency or county board certified to provide adult day support and/or vocational habilitation services in accordance with this rule.

(6) “Continuing professional development” means department-approved training that is provided by approved trainers and is used by employees of certified providers, their subcontractors, and employees of subcontractors to maintain continuing certification standards in accordance with this rule. A unit of continuing professional development is fifty minutes of instruction.

(7) “County board” means a county board of mental retardation and developmental disabilities established under Chapter 5126. of the Revised Code.

(8) “Department” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(9) “Direct services position” means personnel who meet certification requirements promulgated by the department necessary to provide adult day support and/or vocational habilitation waiver services.

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

(11) “Habilitation management” includes the responsibilities prescribed in section 5126.14 of the Revised Code.

(12) “Individual” means a person with mental retardation or other developmental disability who is eligible to receive HCBS waiver services as an alternative to placement in an intermediate care facility for the mentally retarded under the applicable HCBS waiver. A guardian may take action on behalf of an individual, may make choices for an individual, or may receive notice on behalf of an individual to the extent permitted by applicable law.

(13) “ISP” means the individual service plan, a written description of the services, supports, and activities to be provided to an individual.

(14) “Orientation program” means thirty hours of training completed within ninety days of employment which shall include, but is not limited to, the following areas:

(a) Overview of mental retardation and developmental disabilities.

(b) Operations and organization of the agency or county board.

(d) Incidents adversely affecting health and safety as outlined in rule 5123:2-17-02 of the Administrative Code.

(e) Principles of self-determination and service plan development.

(15) “Provider” means an agency or county board provider that:

(a) Is certified by the department to provide medicaid-funded home and community-based services; and

(b) Has a medicaid provider agreement from the Ohio department of job and family services (ODJFS).

(16) “Seminar” means thirty hours of department-approved instruction by a provider approved by the department:

(a) Each of the following shall be the sole topic of one thirty-hour seminar:

(i) Introduction to mental retardation and developmental disabilities.

(ii) Principles of work or principles of habilitation programming.

(iii) Principles of behavior support.

(b) The chief executive officer of the certified provider may request the department to approve other seminar topics, as determined by the certified provider, that more appropriately meet the needs of individuals served by the provider. These seminars may be substituted for one or more of the areas specified in paragraph (B)(16)(a) of this rule upon approval by the department.

(17) “SSA” means a service and support administrator who is certified in accordance with rules adopted by the department under Chapter 5123:2-5 of the Administrative Code and who performs the functions of service and support administration.

(18) “Vocational habilitation” means services designed to teach and reinforce habilitation concepts related to work including responsibility, attendance, task completion, problem solving, social interaction, motor skill development, and safety.

(a) Vocational habilitation services are available to individuals who are no longer eligible for educational services based on their graduation and/or receipt of a diploma/equivalency certificate and/or their permanent discontinuation of educational services within parameters established by the Ohio department of education.

(b) Vocational habilitation is provided to eligible waiver enrollees who participate in a work program that meets the criteria for employment of workers with disabilities under certificates at special minimum wage rates issued by the department of labor, as required by the “Fair Labor Standards Act,” and in accordance with the requirements of 29 C.F.R. Part 525 “Employment of Workers with Disabilities Under Special Certificates” (revised July 1, 2005).

(d) Vocational habilitation services shall normally be made available four or more hours per day on a regularly scheduled basis, for one or more days per week, unless provided as an adjunct to other day activities included in an ISP.

(e) Activities that constitute vocational habilitation services include:

(ii) “Ongoing job support” includes direct supervision, telephone and/or in-person monitoring and/or counseling, and the provision of some or all of the following supports to promote the individual’s job adjustment and retention.

(a) Developing a systematic plan of on-the-job instruction and support, including task analyses.

(b) Assisting the individual to perform activities that result in his/her social integration with disabled and non-disabled employees on the work-site.

(d) Providing services and training that assist the individual with problem solving and meeting job-related expectations.

(e) Assisting the individual to use natural supports and generic community resources.

(f) Providing training to the individual to maintain current skills, enhance personal hygiene, learn new work skills, attain self-determination goals, and improve social skills and/or modify behaviors that are interfering with the continuation of his/her employment.

(g) Assisting the individual with self-medication or provision of medication administration for prescribed medication and assisting the individual with or performing health-related activities as identified in rule 5123:2-6-01 of the Administrative Code, which a licensed nurse agrees to delegate in accordance with requirements of Chapters 4723., 5123., and 5126. of the Revised Code and rules adopted under those chapters. In the case of individuals receiving vocational habilitation services, with nursing delegation, a certified provider and/or subcontractor of the certified provider may:

(i) Perform health-related activities;

(ii) Administer oral and topical prescribed medications;

(iii) Administer prescribed medications through gastrostomy and jejunostomy tubes if the tubes are stable and labeled; and/or

(iv) Perform routine tube feedings if the gastrostomy and jejunostomy tubes are stable and labeled.

(h) Developing and implementing a plan to assist the individual to transition from his/her vocational setting to supported and/or competitive employment, emphasizing the use of natural supports.

(19) “Vocational habilitation subcontracted service” means vocational habilitation services provided by a certified provider of vocational habilitation services pursuant to a subcontract, which program(s) or service(s) is/are designed and operated primarily to serve individuals with mental retardation or other developmental disability, including a program or service provided by an entity licensed or certified by the department. For purposes of certification under this rule, a generic community service or other program or service available to the general public is not subject to certification requirements when said service is subcontracted.

Certified providers of adult day support and vocational habilitation services shall:

(1) Participate in the individual’s ISP meetings if and when the individual requests them to attend;

(2) Perform tasks and duties according to the individual’s ISP;

(3) Recognize changes in the individual’s condition and behavior as well as safety and sanitation hazards, report to the SSA, and record the changes in the individual’s written record;

(4) Document all services provided to and on behalf of the individual in accordance with rule 5123:2-9-05 of the Administrative Code and appendix E to rule 5123:2-9-19 of the Administrative Code;

(5) Meet all federal, state, and local requirements pertaining to the physical environment

(building and grounds) where the adult day support and/or vocational habilitation services will be provided; and

(6) Maintain documentation from the department of the certified provider’s certification under this rule.

(D) Standards and requirements for initial and continuing certification of agency and county board providers

An applicant shall meet the following requirements in order to ensure the health and welfare of individuals receiving adult day support and/or vocational habilitation services:

(1) Submit an application in accordance with rule 5123:2-9-09 of the Administrative Code.

(2) Provide to the department written assurance that the applicant employs a chief executive officer or a person responsible for administration who has either a bachelor’s degree from an accredited institution or at least two years of paid experience in mental retardation or developmental disabilities, health care, social services, or the provision of adult day support and/or vocational habilitation waiver services.

(3) Provide to the department written assurance that the chief executive officer or person responsible for administration shall be responsible for the following functions:

(a) Personnel matters;

(b) Supervision of employees;

(d) Financial management.

(4) Provide to the department written assurance that the applicant has written policies and procedures that address the applicant’s management practices in the following areas and implements the policies and procedures:

(a) Confidentiality of individuals’ records;

(b) Individual satisfaction;

(d) A table of organization;

(e) Staff training plan;

(f) Habilitation management; and

(g) A requirement that employees who provide adult day support and/or vocational habilitation services shall be at least eighteen years of age and have a high school diploma or GED.

(5) Provide to the department written assurance that the applicant:

(a) Complies and shall comply with the requirements for background investigations established under section 5126.281 of the Revised Code and rules 5123:2-1-05 and 5123:2-1-05.1 of the Administrative Code for its executive director/superintendent, all employees providing adult day support and/or vocational habilitation services, and for subcontractors and employees of subcontractors who provide these services.

(b) Shall require any employee, subcontractor of the applicant, or employee of a subcontractor who is in a direct services position to report, in writing, to the certified provider if the subcontractor and/or employee 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 no later than fourteen calendar days after the date of such charge, conviction, or guilty plea.

(6) Provide to the department written assurance that:

(b) The applicant and subcontractors of the applicant shall follow the requirements of sections 5123.50 to 5123.54 of the Revised Code.

(7) Provide to the department written assurance that:

(a) As of the date of the application, no employees, subcontractors of the applicant, and employees of subcontractors who provide adult day support and/or vocational habilitation services to an individual with mental retardation or other developmental disability as defined in division (G) of section 5123.50 of the Revised Code are listed on the nurse aide registry established under 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.

(b) The applicant will neither employ nor subcontract with agencies that employ individuals to provide adult day support and/or vocational habilitation services who are listed on the nurse aide registry established under 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.

(8) Provide to the department written assurance that at least one employee or one employee of a subcontractor with a valid certification in “American Red Cross” or equivalent first aid training and a valid certification in cardiopulmonary resuscitation shall be present when an individual is receiving adult day support and/or vocational habilitation services that require the provider to be in direct contact with the individual.

(9) Provide to the department written assurance that employees of an agency or county board applicant or a subcontractor of the applicant and/or employees of a subcontractor of the applicant shall not administer any medication to or perform health care tasks for individuals who receive adult day support and/or vocational habilitation services unless the employees and/or subcontractor and/or employees of the subcontractor meet the applicable requirements of Chapters 4723., 5123., and 5126. of the Revised Code and rules adopted under those chapters.

(10) Provide to the department written assurance that all employees, subcontractors of the applicant, and employees of subcontractors who provide adult day support and/or vocational habilitation services shall complete training in and comply with the requirements of rule 5123:2-17-02 of the Administrative Code relating to incidents adversely affecting health and safety.

(11) Provide to the department written assurance that all employees, subcontractors, and employees of subcontractors who provide adult day support and/or vocational habilitation services shall complete training in and comply with the provisions governing rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code.

(12) Provide to the department written assurance that all employees, subcontractors of the applicant, and employees of subcontractors who provide adult day support and/or vocational habilitation services shall take all reasonable steps necessary to prevent the occurrence or reoccurrence of incidents adversely affecting health and safety.

(13) Provide to the department written assurance that all employees, subcontractors, and employees of subcontractors who provide adult day support and/or vocational habilitation services shall:

(a) Comply with the requirements of behavior supports established under rules adopted by the department.

(b) Assure that direct services staff who are responsible for implementing behavior support plans receive training in the plan components prior to implementation of the plans.

(14) Provide to the department written assurance that the applicant and subcontractors of the applicant shall only agree to provide adult day support and/or vocational habilitation services to an individual whose needs the applicant can meet.

(15) Provide to the department written assurance that the applicant and subcontractors of the applicant shall implement adult day support and/or vocational habilitation services in accordance with the ISP.

(16) Provide to the department written assurance that the applicant and subcontractors of the applicant shall provide habilitation management to individuals receiving adult day support and/or vocational habilitation services.

(17) Provide to the department written assurance that neither the applicant, subcontractors of the applicant, nor any employee of either the applicant or its subcontractors shall provide adult day support and/or vocational habilitation services to his/her minor child

(under age eighteen) or his/her spouse.

(18) Provide to the department written assurance that all employees, subcontractors of the applicant, and employees of subcontractors who provide adult day support and/or vocational habilitation services shall meet the initial and continuing standards for certification as outlined in paragraphs (D) and (E) of this rule.

(E) Standards and requirements for training

(a) During the year of initial employment, the employee of a certified agency, county board, or subcontractor of the certified agency or county board shall successfully complete an orientation program and at least one seminar.

(b) Beginning in the second year of employment and ending in the third year of employment, the employee of a certified agency, county board or subcontractor of the certified agency or county board shall successfully complete a total of two seminars.

(c) Beginning in the fourth year of employment, the employee of a certified agency, county board, or subcontractor of the certified agency or county board shall successfully complete fifty units of continuing professional development during every successive five-year period of employment.

(2) Any training programs, seminars, and/or orientation programs completed by an employee of a provider certified as a day habilitation provider in accordance with rule 5123:2-9-10 of the Administrative Code or by a subcontractor of the certified provider or employee of a subcontractor may be applied to meet the training requirements outlined in this rule.

(3) The agency and county board that is certified to provide adult day support and/or vocational habilitation services shall be responsible to ensure that employees, subcontractors, and employees of subcontractors meet the training requirements of this rule.

(F) Deeming of certification and training requirements

(1) An agency and/or or county board may request the department to deem that its employees meet the requirements outlined in paragraph (E)(1) of this rule when the agency and/or county board provides evidence that it has received and maintains certification or accreditation from a nationally recognized entity for service categories comparable to adult day support and/or vocational habilitation.

(2) A certified provider of adult day support and/or vocational habilitation that subcontracts for these services may deem that the subcontractor meets the requirements outlined in paragraph (E)(1) of this rule when the subcontractor provides evidence that it has received and maintains certification or accreditation from a nationally recognized entity for service categories comparable to adult day support and/or vocational habilitation services.

(G) Training documentation

The certified provider shall maintain a written record, which may include an electronic record, of the orientation program, seminars, and continuing professional development completed by each employee, subcontractor, and each employee of a subcontractor who provides adult day support and/or vocational habilitation. This information shall be presented upon request by the department or ODJFS. Documentation shall include the following elements:

(1) The name of the person receiving the training;

(2) Date(s) of training;

(3) Length of training;

(4) Training topic;

(5) Instructor’s name, if applicable;

(6) Brief description of the content of the training; and

(7) Documentation of department approval when required by this rule.

(H) Certification and denial, suspension, or revocation of certification

(1) The department may deny the certification application of an applicant for failure to comply with the standards set forth in this rule pursuant to rule 5123:2-9-09 of the Administrative Code.

(2) After being certified in accordance with this rule, providers shall comply with the continuing certification standards set forth in this rule. Certified providers shall be subject to monitoring and compliance reviews conducted as set forth in rule 5123:2-9-08 of the Administrative Code. Failure to comply with the standards set forth in this rule for continuing certification and/or training of certified providers, employees of certified providers, contractors, or employees of contractors may result in corrective action by the department up to and including suspension or revocation of provider certification as set forth in rule 5123:2-9-08 of the Administrative Code.

(3) 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.

Effective: 01/01/2007

R.C. 119.032 review dates: 01/01/2012

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5123.045, 5123.082, 5123.16, 5126.25, 5111.871

Rule Amplifies: 5123.04, 5123.045, 5123.082, 5123.16, 5126.25, 5111.871

5123:2-9-18 HCBS waivers - non-medical transportation.

(A) Purpose

The purpose of this rule is to specify the service definition for non-medical transportation and to set forth the certification standards required under section 5123.16 of the Revised Code for providers of non-medical transportation services to individuals enrolled in HCBS waivers administered by the department.

(B) Definitions

(1) “Agency provider” means a person, other than an individual provider or county board, who provides non-medical transportation to access adult day support, vocational habilitation, supported employment-enclave, or supported employment-community services, as these services are defined in rules 5123:2-9-16 and 5123:2-9-17 of the Administrative Code, under an HCBS waiver administered by the department.

(2) “Applicant” means a person, agency, or county board seeking to become a certified provider of non-medical transportation services to enable an individual to access adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services, as these services are defined in rules 5123:2-9-16 and 5123:2-9-17 of the Administrative Code, under an HCBS waiver administered by the department.

(3) “Attendant” means a person employed by the certified provider of non-medical transportation separate from the driver of the vehicle. Attendants are not required to be present to provide services defined within this rule, but, when present, are required to meet the qualifications described in paragraphs (C) and/or (D) of this rule.

(4) “Commute” means the number of miles driven when one or more than one individual is riding in a vehicle while per-mile non-medical transportation services are being provided.

(5) “County board” means a county board of mental retardation and developmental disabilities that performs HCBS waiver administration functions either independently, within a regional council of governments formed under Chapter 167. of the Revised Code, or through a private entity that contracts with a county board for administration of HCBS waivers and the entity does not provide any service other than administration to the individuals of that county.

(6) “Department” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(7) “Individual provider” means a self-employed person who provides non-medical transportation to access adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services, as these services are defined in rules 5123:2-9-16 and 5123:2-9-17 of the Administrative Code, under an HCBS waiver administered by the department. An individual provider does not employ, either directly or through a contract, anyone else to provide services.

(8) “Modified vehicle” means a motor vehicle that has been designed, constructed, or fabricated and equipped to be used upon public streets and/or highways for transportation of individuals who require use of a wheelchair.

(9) “Non-medical transportation” means transportation that is used by waiver enrollees solely to access adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services, as specified by their individual service plans (ISP). Whenever possible, family, friends, neighbors, or community agencies that can provide this service without charge shall be used.

(a) Billing for the provision of non-medical transportation is limited to those times when an individual is transported to, from, and/or between sites where adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community waiver services are provided to the individual.

(b) Billing for the provision of non-medical transportation may occur when an individual is transported to a drop-off or transfer location from which the individual is then transported to and/or from the site(s) where adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community waiver services are provided to the individual.

(c) Nothing in this rule shall be interpreted to prohibit a provider of homemaker/personal care waiver services from transporting an individual to access adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community waiver services and billing for that service and related mileage in conformance with the requirements in rule 5123:2-9-06 of the Administrative Code.

(d) An individual’s ISP shall indicate the type of certification required by persons who provide transportation services to enable the individual to access adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community waiver services. The ISP shall also indicate whether the non-medical transportation service is to be billed on a per-trip or per-mile basis and shall specify whether or not the service is to be provided in a modified vehicle and/or through public transportation.

(10) “ODJFS” means the Ohio department of job and family services as established by section 121.02 of the Revised Code.

(11) “Provider” means an agency, a county board, or an individual provider that:

(a) Is certified by the department to provide medicaid-funded home and community-based services; and

(b) Has a medicaid provider agreement from the ODJFS.

(C) Standards and requirements for initial and continuing certification of providers who intend to bill the per-trip rate for the provision of non-medical transportation

(1) The applicant shall submit an application to the department in accordance with rule 5123:2-9-09 of the Administrative Code.

(2) The applicant shall provide to the department written assurance that the vehicle(s) in which non-medical transportation is to be provided is:

(a) A non-modified vehicle with a passenger capacity of nine or more; or

(b) A modified vehicle designed to transport one or more individuals sitting in wheelchairs and has permanent fasteners to secure the wheelchairs to the floor or side of the vehicle to prevent wheelchair movement, and that:

(i) Safety restraints are placed in the vehicle for the purpose of restraining the individual in the wheelchair;

(ii) The vehicle is equipped with a stable access ramp or hydraulic lift; and

(iii) On each day the vehicle is used to provide non-medical transportation services, the driver of the vehicle shall conduct and document inspection and testing of the lift or access ramp and wheelchair restraints prior to transporting a wheelchair-bound individual.

(3) The applicant shall provide to the department written assurance that:

(a) Individuals will be in the vehicle during the times the provider bills for the per-trip rate;

(b) The vehicle has secure storage space for removable equipment and passenger property;

(c) The vehicle is equipped with a communication system, that may include cellular communication, capable of two-way communication;

(d) The vehicle is equipped with a fire extinguisher and an emergency first-aid kit that are safely secured;

(e) The applicant shall agree that on each day the vehicle is used to provide non-medical transportation services, the first driver of the vehicle shall conduct and document a pre-trip inspection of lights, windshield washers/wipers, emergency equipment, mirrors, horn, tires, and brakes; and

(f) The applicant shall agree to provide evidence of completion of at least an annual vehicle inspection of each vehicle by the Ohio state highway patrol safety inspection unit or a certified mechanic and proof that the vehicle is in good working condition.

(4) The applicant shall assure and, upon request by the department and/or ODJFS, the applicant shall disclose evidence of liability insurance coverage, in an amount of not less than five hundred thousand dollars per occurrence and not less than five hundred thousand dollars in the aggregate, for any cause for which the provider would be liable.

(5) The applicant shall assure and, upon request by the department and/or ODJFS, the applicant shall disclose evidence of bodily injury and property damage insurance coverage with solvent insurers licensed to do business in the state for any loss or damage resulting from any occurrence arising out of or caused by the operation of the vehicle. The insurance plan shall insure each vehicle for the sum of not less than one hundred thousand dollars for bodily injury to or death of more than one person in any one accident and for the sum of fifty thousand dollars for damage to property arising from one accident.

(6) The applicant shall provide to the department written assurance that each driver and attendant in the vehicle shall:

(a) Comply with local, state, and federal laws and regulations;

(b) Have proof of current successful completion of department-approved first aid and cardiopulmonary resuscitation (CPR) training or emergency medical technician certificate prior to providing non-medical transportation services and thereafter;

(c) Provide evidence prior to employment that he/she is not listed on the abuser registry established pursuant to sections 5123.50 to 5123.54 of the Revised Code;

(d) Provide evidence prior to employment that he/she is not listed on the nurse aide registry established under 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;

(e) Comply with the requirements for background investigations established under section 5126.281 of the Revised Code and rules 5123:2-1-05 and 5123:2-1-05.1 of the Administrative Code;

(f) Complete training at the time of employment and annually thereafter in the provisions governing rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(g) Complete training at the time of employment and annually thereafter in the requirements of rule 5123:2-17-02 of the Administrative Code relating to incidents adversely affecting health and safety.

(7) The applicant shall provide to the department written assurance that each driver, in accordance with Chapter 4507. of the Revised Code, shall:

(a) Possess a valid driver’s license and be eighteen years of age or older.

(b) Provide a signed statement from a licensed physician declaring that he/she does not have a medical condition, a physical condition including an uncorrected vision and/or hearing impairment, or a mental condition which could interfere with safe driving, safe passenger assistance, the provision of emergency treatment activity, or could jeopardize the health or welfare of individuals being transported. A person employed as a driver prior to the effective date of this rule may be deemed to meet the requirements of this paragraph when the provider maintains verification that a physical examination was completed at the time of the person’s hire.

(c) Complete testing for controlled substances by a laboratory certified for such testing and be determined to be drug free prior to providing and billing for non-medical transportation waiver services. Controlled substance and alcohol testing shall occur within ten hours following an incident when the certified provider, a contractor and/or employee of the certified provider, and/or an employee of the contractor was providing non-medical transportation waiver services and was involved in a motor vehicle accident and was the driver of the vehicle when:

(i) The accident involves the loss of human life; or

(ii) The driver receives a citation that was written within eight hours of the accident under state or local law for a moving traffic violation arising from the accident, if the accident involved:

(a) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or

(b) One or more motor vehicles incurred disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

(d) Present a driver’s abstract prepared by the bureau of motor vehicles no earlier than fourteen days prior to the date of initial employment as a driver and at least once each calendar year thereafter. Persons having six or more points on their driving records are prohibited from providing non-medical transportation waiver services.

(e) Report, in writing, to the certified provider, if a contractor, an employee of the contractor, and/or an employee of the certified provider, who is the driver of a vehicle in which non-medical transportation is provided 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. Individual providers shall report, in writing, to the department. The report shall be made no later than fourteen calendar days after the date of such charge, conviction, or guilty plea.

(D) Standards and requirements for initial and continuing certification of providers who intend to bill the per-mile rate for the provision of non-medical transportation

(1) Per-mile payment rates have been constructed to include the cost of the vehicle driver and shall be used for non-modified vehicles with a passenger capacity of eight or fewer individuals. In addition, other applicants to provide non-medical transportation who do not meet the qualifications necessary to bill on a per-trip basis are afforded the opportunity to become certified and bill on a per-mile basis when the vehicles, the providers, and the drivers/attendants of these vehicles meet the certification standards related to per-mile payment rates.

(2) Calculation of the per-mile payment amount for a commute assures that each passenger in the vehicle shares equally in the total cost of the commute.

(a) Passengers include waiver enrollees and non-waiver enrollees for purposes of determining the number of individuals in the vehicle during the commute.

(b) The number of miles for each commute is calculated from the point where the first waiver enrollee riding in the vehicle is picked up and the point where the last waiver enrollee in the same vehicle is dropped off at his/her destination.

(c) When per-mile non-medical transportation services are provided and billed through the waiver, the provider shall not bill for homemaker/personal care, adult day support, vocational habilitation, supported employment-enclave, or supported employment-community waiver services provided by the driver of the vehicle during the time in which the commute occurs.

(3) The applicant shall submit an application to the department in accordance with rule 5123:2-9-09 of the Administrative Code.

(4) The applicant shall provide to the department written assurance that:

(a) The vehicle has secure storage space for removable equipment and passenger property;

(b) The vehicle is equipped with a communication system, that may include cellular communication, capable of two-way communication;

(d) The applicant shall agree that on each day the vehicle is used to provide non-medical transportation services, the first driver of the vehicle shall conduct and document a pre-trip inspection of lights, windshield washers/wipers, emergency equipment, mirrors, horn, tires, and brakes;

(e) The applicant shall agree to provide evidence of completion of at least an annual vehicle inspection of each vehicle by the Ohio state highway patrol safety inspection unit or a certified mechanic and proof that the vehicle is in good working condition;

(f) The applicant shall assure and, upon request by the department and/or ODJFS, the applicant shall disclose evidence of liability insurance coverage, in an amount of not less than five hundred thousand dollars per occurrence and not less than five hundred thousand dollars in the aggregate, for any cause for which the provider would be liable; and

(g) The applicant shall assure and, upon request by the department and/or ODJFS, the applicant shall disclose evidence of bodily injury and property damage insurance coverage with solvent insurers licensed to do business in the state for any loss or damage resulting from any occurrence arising out of or caused by the operation of the vehicle. The insurance plan shall insure each vehicle for the sum of not less than one hundred thousand dollars for bodily injury to or death of more than one person in any one accident and for the sum of fifty thousand dollars for damage to property arising from one accident.

(5) The applicant shall provide to the department written assurance that each driver and attendant on the vehicle shall:

(a) Comply with local, state, and federal laws and regulations;

(c) Provide evidence prior to employment that he/she is not listed on the abuser registry established pursuant to sections 5123.50 to 5123.54 of the Revised Code;

(d) Provide evidence prior to employment that he/she is not 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;

(e) Comply with the requirements for background investigations established under section 5126.281 of the Revised Code and rules 5123:2-1-05 and 5123:2-1-05.1 of the Administrative Code;

(f) Complete training at the time of employment and annually thereafter in the provisions governing rights of individuals set forth in sections 5123.62 to 5123.64 of the Revised Code; and

(6) The applicant shall provide to the department written assurance that each driver, in accordance with Chapter 4507. of the Revised Code, shall:

(a) Possess a valid driver’s license and be eighteen years of age or older.

(b) Complete testing for controlled substances by a laboratory certified for such testing and be determined to be drug free prior to providing and billing for non-medical transportation waiver services. Controlled substance and alcohol testing shall occur within ten hours following an incident when the certified provider, a contractor and/or employee of the certified provider, and/or an employee of the contractor was providing non-medical transportation waiver services and was involved in a motor vehicle accident and was the driver of the vehicle when:

(i) The accident involves the loss of human life; or

(ii) The driver receives a citation that was written within eight hours of the accident under state or local law for a moving traffic violation arising from the accident, if the accident involved:

(a) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or

(b) One or more motor vehicles incurred disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

(c) Report, in writing, to the certified provider, if a contractor, an employee of the contractor, and/or an employee of the certified provider, who is the driver of a vehicle in which non-medical transportation is provided 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. Individual providers shall report, in writing, to the department. The report shall be made no later than fourteen calendar days after the date of such charge, conviction, or guilty plea.

(E) Commercial vehicles

Owners and operators of commercial vehicles, including buses, livery vehicles, and taxicabs, that are available for public use and also are used to provide non-medical transportation services to waiver enrollees are not subject to the requirements of this rule. Owners and operators of these types of vehicles are required to meet all federal, state, and local requirements pertaining to the maintenance and operation of these vehicles as well as the fares charged for their use.

(F) Subcontractors of certified agency and/or county board providers

Agencies and/or county boards intending to provide non-medical transportation services through the use of subcontractors shall assure that the subcontractors and employees of the subcontractors meet all requirements of this rule, unless the subcontract involves the use of one or more vehicle types described in paragraph (E) of this rule, and shall maintain verification of these assurances. Assurances shall be obtained in each instance when a contract for the provision of non-medical transportation is issued or renewed with a subcontractor.

(G) Training documentation

The certified provider shall maintain a written record, which may include an electronic record, to verify that they, their employees, subcontractors, and employees of subcontractors meet all certification requirements contained in this rule. This information shall be maintained for each person who has received required training and/or has met other related certification standards. This information shall be presented upon request by the department or ODJFS.

(H) Service documentation

(1) The certified provider or sub-contractor of a certified provider of per-trip and per-mile non-medical transportation services shall maintain records that meet the documentation requirements contained in paragraph (B) of rule 5123:2-9-05 of the Administrative Code by recording for each trip or each commute the following information:

(a) Date of service;

(b) Place of service (i.e., vehicle license plate number);

(d) Medicaid identification number of waiver enrollee for whom the service is being billed;

(e) Name of provider;

(f) Provider identifier/contract numbers;

(g) Signature of the driver of the vehicle or initials of the driver of the vehicle if the signature and corresponding initials are on file with the provider;

(h) Type of non-medical transportation services (i.e., per-trip or per-mile) provided;

(i) Number of miles in each distinct trip and/or commute, as indicated by recording beginning and ending odometer readings;

(j) Names of all other passengers/riders, including paid staff or volunteers, who were in the vehicle during any portion of the trip and/or commute; and

(k) Beginning and ending times of the trip and/or commute.

(2) When commercial vehicles are used to provide non-medical transportation services, the waiver provider billing the service shall maintain the following documentation to meet the requirements contained in paragraph (B) of rule 5123:2-9-05 of the Administrative Code:

(a) Date of service or, in the case of a purchase of bus fares, taxi tokens, or similar types of travel vouchers to be used on more than one date, date of purchase;

(b) Place of service (i.e., name of commercial vehicle company used);

(d) Medicaid identification number of waiver enrollee for whom the service is being billed;

(e) Name of the certified provider billing for the service;

(f) Provider identifier/contract number; and

(g) Receipt issued by the commercial vehicle company for the service provider indicating the amount paid.

(I) Certification and denial, suspension, or revocation of certification

(1) The department may deny the certification application of an applicant for failure to comply with the standards set forth in this rule pursuant to rule 5123:2-9-09 of the Administrative Code.

(3) 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.

Effective: 10/01/2007

R.C. 119.032 review dates: 01/01/2012

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5123.045, 5123.082, 5123.16, 5126.15, 5111.871

Rule Amplifies: 5123.04, 5123.045, 5123.082, 5123.16, 5126.15, 5111.871

Prior Effective Dates: 01/01/2007

5123:2-9-19 HCBS waivers - payment standards for adult day support, vocational habilitation, supported employment-enclave, supported employment-community, and non-medical transportation.

(A) Purpose

The purpose of this rule is to establish the standards governing payment for adult day support, vocational habilitation, supported employment-enclave, supported employment-community, and non-medical transportation services provided to individuals enrolled in HCBS waivers administered by the department and to implement sections 5111.871 and 5111.873 of the Revised Code.

(B) Definitions

(1) “Administrative review” means the processes internal to the department and subject to ODJFS oversight that will be available to individuals who believe that their ODMRDD acuity assessment instrument scores, their placement in group A, A-1, or B and the subsequent calculation of their budget limitation prohibit their access to or continuation in the adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services they have selected. This review is not applicable to non-medical transportation services or individuals with placement in group C.

(2) “Adult day support” means an HCBS waiver service as defined in rule 5123:2-9-17 of the Administrative Code.

(3) “Agency provider” means a person, other than an individual provider or county board, that provides adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services and/or non-medical transportation services to access adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services to individuals enrolled in HCBS waivers administered by the department.

(4) “Budget limitation” means the funding amount available to enable each individual to receive adult day support, vocational habilitation, supported employment-enclave, and supported employment-community services within each waiver eligibility span. A separate annual budget limitation amount will be established to enable each individual to receive non-medical transportation services to access adult day support, vocational habilitation, supported employment-enclave, and supported employment-community services within each waiver eligibility span.

(6) “Daily billing unit” means a billing unit and corresponding rate that shall be used when between five and seven hours of adult day support or vocational habilitation or supported employment-enclave services or a combination of adult day support and vocational habilitation services are provided by the same provider to the same individual during one calendar day.

(7) “Department” means the Ohio department of mental retardation and developmental disabilities as established by section 121.02 of the Revised Code.

(8) “Direct services staff” means personnel who meet the certification requirements promulgated by the department necessary to provide one or more of the HCBS waiver services of adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community.

(9) “Fifteen-minute billing unit” means a billing unit that is equivalent to fifteen minutes of actual service delivery time. Minutes of service provided to an eligible individual for adult day support, vocational habilitation, a combination of these two services, supported employment-enclave, and/or supported employment-community services may be accrued by one provider over one calendar day. The number of units is equivalent to the total number of minutes of each type of service, as distinguished by service codes, provided during the day to the individual, divided by fifteen minutes. One additional unit of service may be added to this quotient if the remainder equals eight or more minutes of service.

(10) “Funding range” means one of the dollar ranges contained in appendix C to rule 5123:2-9-06 of the Administrative Code to which individuals have been assigned for the purpose of funding waiver services. The budget limitations defined in this rule that are applicable to the provision of adult day support, vocational habilitation, supported employment-enclave, and supported employment-community services as well as non-medical transportation services are not subject to the funding ranges to which individuals have been assigned. When these services are provided to individuals participating in the level one waiver they are not subject to benefit package limitations described in Chapter 5123:2-8 of the Administrative Code.

(11) “Guardian” means a guardian appointed by the probate court under Chapter 2111. of the Revised Code. If the individual is a minor for whom no guardian has been appointed under that chapter, “guardian” means the individual’s parents. If no guardians have been appointed for a minor and the minor is in the legal or permanent custody of a government agency or person other than the minor’s natural or adoptive parents, “guardian” means that government agency or person. “Guardian” also includes an agency under contract with the department for the provision of protective services under sections 5123.55 to 5123.59 of the Revised Code.

(13) “Individual provider” means a self-employed person who provides supported employment-community services and/or non-medical transportation services to access adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services to individuals enrolled in an HCBS waiver administered by the department and does not employ, either directly, or through a contract, anyone else to provide the services.

(14) “ISP” means the individual service plan, a written description of the services, supports, and activities to be provided to an individual.

(15) “Non-medical transportation” means an HCBS waiver service as defined in rule 5123:2-9-18 of the Administrative Code.

(16) “ODJFS” means the Ohio department of job and family services as established by section 121.02 of the Revised Code.

(17) “ODMRDD acuity assessment instrument” means the standardized instrument utilized by the department to assess the relative needs and circumstances of an individual compared to other adults in a non-residential setting when receiving adult day support, vocational habilitation, and supported employment-enclave services. Scores resulting from administration of the ODMRDD acuity assessment instrument have been grouped into ranges and subsequently linked with staffing intensity ratio expectations that result in four payment rates that have been calibrated on group size.

(18) “Payment authorization for waiver services” (PAWS) means the process followed and the form used to communicate the amount of payment for each waiver service that has been established through the approved ISP process and is contained in the ISP for an eligible HCBS waiver enrollee.

(19) “Professional staff” includes licensed nurses, physical therapists and physical therapy assistants, occupational therapists and occupational therapy assistants, psychologists, speech therapists/audiologists, social workers, dieticians, and physicians.

(20) “Provider” means an agency, county board, or individual provider that:

(a) Is certified by the department to provide medicaid-funded home and community-based services; and

(b) Has a medicaid provider agreement from the ODJFS.

(21) “SSA” means a service and support administrator who is certified in accordance with rules adopted by the department under Chapter 5123:2-5 of the Administrative Code and who performs the functions of service and support administration.

(22) “Staff intensity” means the minimum portion of time, as calculated in decimals and reflected in appendix D to this rule, that one direct services staff position is required to provide adult day support, vocational habilitation, and/or supported employment-enclave services to an individual. When determining that an individual receiveda sufficient number of direct services staff are available to provide services at the staff intensity ratio indicated by his/hereach individual’s ODMRDD acuity assessment score, a certified provider may aggregate the staff intensity ratio needs for all waiver enrollees and non-waiver enrollees receiving services in one service delivery location during one calendar day.

(23) “Supported employment-community” means an HCBS waiver service as defined in rule 5123:2-9-16 of the Administrative Code.

(24) “Supported employment-enclave” means an HCBS waiver service as defined in rule 5123: 2-9-16 of the Administrative Code.

(25) “Transportation” means an HCBS waiver service as defined in rule 5123:2-9-06 of the Administrative Code.

(26) “Vocational habilitation” means an HCBS waiver service as defined in rule 5123:2-9-17 of the Administrative Code.

(27) “Waiver eligibility span” means the twelve-month period following either an individual’s initial enrollment date or the subsequent eligibility re-determination date.

Providers shall be reimbursed at the lesser of the charges that they include on the claims they submit for payment or the statewide payment rate for each waiver service that is delivered. A single provider may charge different amounts for the same service when the service is provided in different geographic areas of the state. Payment rates are contained in appendix C to this rule.

(D) Statewide payment rates

(1) ODJFS retains the final authority, based on the recommendation of the department, to establish payment rates for all waiver services included in HCBS waivers administered by the department. The service codes and payment rates for adult day support, vocational habilitation, supported employment-enclave, supported employment-community, and non-medical transportation services are included in appendix C to this rule.

(2) The billing codes and payment rates for supported employment waiver services are contained in rule 5123:2-9-06 of the Administrative Code.

(3) Direct services staff are required to deliver waiver services to an individual in order to justify billing for adult day support and/or vocational habilitation services. When providing supported employment-enclave and/or supported employment-community services, direct services staff responsibilities and associated billing for waiver services may include those times when the individual is not physically present and staff is performing supported employment-enclave and supported employment-community services, as defined in rule 5123:2-9-16 of the Administrative Code, on behalf of the individual.

(4) Payment rates for services shall include an adjustment factor for geography based on the county cost of doing business category. The county cost of doing business category for an individual is the category assigned to the county in which the waiver service is actually provided for the preponderance of time. The cost of doing business categories and the counties assigned to each are contained in appendix A to this rule.

(5) The department shall periodically collect reimbursement information for a comprehensive, statistically valid sample of individuals from the agencies and individuals providing HCBS at the time the information is collected. Based upon the department’s review of the information, the department shall recommend to ODJFS any changes necessary to assure that the payment amounts are sufficient to enlist enough waiver providers so that waiver services are readily available to individuals, to the extent that these types of services are available to the general population, and that provider reimbursement is consistent with efficiency, economy, and quality of care. ODJFS retains the final authority to make this determination.

(E) Acuity assessments, staff intensity group assignments, and budget limitations

(1) SSAs employed by county boards shall review and approve information contained on the ODMRDD acuity assessment instrument for each waiver enrollee for whom adult day support, vocational habilitation, supported employment-enclave, or supported employment-community services have been authorized through the individual planning process that is submitted to the department. Application of the ODMRDD acuity assessment instrument ensures that similarly situated individuals have access to comparable waiver services reimbursed in accordance with this rule on a statewide basis.

(2) Information needed to complete the assessment shall be provided by informants who know the capabilities and limitations of the individual outside of his/her residence, in the adult day service setting. Informants may include the individual himself/herself, direct services providers, guardians, advocates, and family members. The SSA and/or an individual designated by the SSA shall submit information in electronic format to the department. The information will be automatically scored as the result of completion of each assessment.

(3) The score resulting from administration of the ODMRDD acuity assessment instrument will result in the assignment of the individual by the SSA to one of four groups that correlate with the staff intensity ratios required. These group assignments will be applied to determine the rates paid when individuals receive adult day support, vocational habilitation, and/or supported employment-enclave services only. The scores and related staffing calculations are contained in appendix D to this rule.

(4) Following assignment of the individual to one of four staff intensity groups, the SSA will determine the budget limitations for individuals receiving adult day support, vocational habilitation, supported employment-enclave, or supported employment-community services. The budget limitations are contained in appendix B to this rule.

(5) In addition, the SSA will assign to the individual the budget limitation for the provision of non-medical transportation services to access adult day support, vocational habilitation, supported employment-enclave, or supported employment-community services when the need for the service(s) has been identified through the ISP planning process. These budget limitations are also contained in appendix B to this rule.

(6) The SSA shall inform each waiver enrollee/guardian of the assessment score, the resulting group assignment, and related budget limitations:

(a) At the time the ODMRDD acuity assessment instrument is initially administered;

(b) At any time the ODMRDD acuity assessment instrument is re-administered and results in a score that places an individual in a different group; and

(c) At any time the individual receives the preponderance of adult day services in a new county that results in a change in the cost of doing business factor applied to the rate.

(7) A budget limitation established for an individual shall change only when changes in assessment variable scores on the ODMRDD acuity assessment instrument that justify assignment of a new staff intensity group have occurred and/or the individual receives the preponderance of adult day services in a county with a different cost of doing business factor. Responses to any or all ODMRDD acuity assessment instrument variables can be revised at any time at the request of the individual or at the discretion of the SSA, with the individual’s knowledge.

(8) The department shall re-examine the scoring of the ODMRDD acuity assessment instrument and the linkage of the scores to staff intensity ratios no later than twenty-four months following the effective date of this rule and, at the department’s discretion, periodically thereafter.

(F) Calculation of budget limitations

(1) The budget limitations for adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services, as reflected in appendix B to this rule, have been determined by use of a projected service utilization of two hundred forty days per year multiplied by 6.25 hours of attendance each day multiplied by four fifteen-minute units per hour to obtain the maximum base of six thousand fifteen-minute units of service that may be received per person per twelve-month waiver eligibility span. The six thousand units are then multiplied by the rate for adult day support/vocational habilitation services that corresponds to the group to which each individual would be assigned based on completion of the ODMRDD acuity assessment instrument. The rate selected when calculating an individual’s budget limitation is further determined by the cost of doing business factor that applies to the county in which the individual is anticipated to receive the preponderance of these services. This budget limitation is calculated on a per-person basis and is applicable to the twelve-month waiver eligibility span for each eligible individual.

(2) The budget limitation for non-medical transportation services to access adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services is reflected in appendix B to this rule. This budget limitation has been determined by multiplying the value of two one-way trips by two hundred forty days per year by the per-trip value adjusted by the cost of doing business factor that applies to the county in which the individual is anticipated to receive the preponderance of non-medical transportation services. This budget limitation is calculated on a per-person basis and is applicable to the twelve-month waiver eligibility span for each eligible individual.

(3) The budget limitations applicable to non-medical transportation services shall not be combined with the budget limitations applicable to adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services to enable an individual to increase the availability of one or more of these services or for any other purpose.

(G) ISP planning process

(1) An eligible individual may elect to receive one, some, or all of the adult day support, vocational habilitation, supported employment-enclave, and supported employment-community service choices plus non-medical transportation to access one or more of these services. These services shall be delivered in accordance with ISPs that are developed through the ISP planning process defined in rule 5123:2-1-11 of the Administrative Code.

(2) ISPs shall indicate the staff intensity ratios at which adult day support, vocational habilitation, and supported employment-enclave services are to be delivered, as defined in appendix D to this rule. When a waiver enrollee receives one or more of these services in a group setting with one or more individuals who do not receive waiver services, the staff intensity ratios of the non-waiver enrollees shall be identified through the ISP development process applicable to them. Providers are not required to use, but may use, the ODMRDD acuity assessment instrument to determine the staff intensity ratios of non-waiver enrollees.

(3) The county board shall determine whether the annualized cost for adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services can be met by or exceeds the assigned budget limitation for the individual. The county board also shall determine whether the annualized cost for non-medical transportation services to access these services can be met by or exceeds the assigned budget limitation for the individual. The SSA shall inform the individual of these determinations in accordance with procedures developed by the department.

(4) If an individual requests a change in the frequency and/or duration of adult day support, vocational habilitation, supported employment-enclave, supported employment-community, and/or non-medical transportation services, the request may result in an increase or decrease in the annual cost for these services, based on the outcome of the ISP planning process. The county board has the authority and responsibility to make changes, which result from the ISP planning process when the services are within the budget limitations determined in accordance with paragraph (E) of this rule.

(5) No prior state level review will be required for the initiation and/or changes in services that can occur within the annual budget limitation resulting from a change in ISP services that have been agreed to by an individual through the ISP planning process.

(6) Changes in the assignment of annual budget limitations made by county boards are subject to review by the department and approval by ODJFS.

(7) Neither the department nor the county board shall approve a change in an individual budget limitation or assign a new budget limitation after notification that the individual has requested a hearing concerning the approval, denial, reduction, or termination of services in an ISP that has been developed within the funding parameters of this rule by requesting a hearing pursuant to section 5101.35 of the Revised Code.

(H) Implementation schedule for conducting acuity assessments, completing staff intensity group assignments, and assigning budget limitations

(1) Individuals who were receiving day habilitation services, as defined in rule 5123:2-9-10 of the Administrative Code, prior to the effective date of this rule and who are eligible for and wish to receive one or more of adult day support, vocational habilitation, supported employment-enclave, supported employment-community, or non-medical transportation services shall be assigned to a staff intensity group and shall have applicable budget limitations established for these services according to a transition schedule submitted by the county board and approved by the department. In no instance shall any individual receive day habilitation services, as defined in rule 5123:2-9-10 of the Administrative Code, beyond the date agreed to by the federal centers for medicare and medicaid services.

(2) Individuals who were receiving supported employment services, as defined in rule 5123:2-9-13 of the Administrative Code, prior to the effective date of this rule and who are eligible for and wish to receive one or more of supported employment-enclave, supported employment-community, or non-medical transportation services shall be assigned to a staff intensity group and shall have applicable budget limitations established for these services according to a transition schedule submitted by the county board and approved by the department. In no instance shall any individual receive supported employment services, as defined in rule 5123:2-9-13 of the Administrative Code, beyond the date agreed to by the federal centers for medicare and medicaid services.

(3) Within forty-five calendar days following the effective date of this rule, each county board shall provide to the department a plan of how the county board will implement paragraphs

(H)(1) and (H)(2) of this rule. The information shall be provided in accordance with timelines and in the format prescribed by the department.

(a) The county board plan shall be subject to modification by the department.

(b) Nothing in this paragraph shall be interpreted to prevent a county board, an individual, and a provider from agreeing to accelerate the transition timelines contained in paragraph (H) of this rule when the department approves the accelerated phase-in period and activities.

(c) The county board shall participate in a quarterly process of reporting the progress of the transition to the department. Any modifications of the county board plan initially approved by the department shall be reported as a component of the quarterly report.

(4) Individuals who transition to receiving adult day support, vocational habilitation, and/or supported employment-enclave services shall not be eligible to receive day habilitation services, as defined in rule 5123:2-9-10 of the Administrative Code, effective on the date of transition. Individuals who transition to receiving supported employment-enclave and/or supported employment-community services shall not be eligible to receive day habilitation services, as defined in rule 5123:2-9-10 of the Administrative Code, or supported employment services, as defined in rule 5123:2-9-13 of the Administrative Code, effective on the date of transition.

(5) Individuals enrolled in an HCBS waiver administered by the department on or after the effective date of this rule may elect to receive day habilitation services, as defined in rule 5123:2-9-10 of the Administrative Code or, as an alternative, may elect to receive adult day support, vocational habilitation, and/or supported employment-enclave services. These same individuals may elect to receive supported employment services, as defined in rule 5123:2-9-13 of the Administrative Code, or as an alternative, may elect to receive supported employment-community services. Neither day habilitation nor supported employment services shall be available to these individuals beyond the date agreed to by the federal centers for medicare and medicaid services.

(6) Individuals enrolled in an HCBS waiver administered by the department on or after the effective date of this rule and authorized by the ISP and reflected in PAWS to receive adult day support, vocational habilitation, supported employment-enclave, supported employment-community, and/or non-medical transportation services shall be assigned to a staff intensity group for applicable services and also shall have budget limitations established for these services within thirty days following enrollment.

(7) At no time shall an individual receive day habilitation services when receiving adult day support, vocational habilitation, or supported employment-enclave services. At no time shall an individual receive supported employment services when receiving supported employment-community services.

(I) Group size, billing units, and payment conditions

(1) When an individual has been assigned to a staff intensity group for the purposes of receiving adult day support, vocational habilitation, and/or supported employment-enclave services, billing must correspond to the rates assigned for that group. Because ODMRDD acuity assessment scores relating to assignment of an individual to the A and A-1 staff intensity groups are identical, assignment of an individual to one of these two groups will be based upon the staffing needs of the individual as identified in the ISP planning process and reflected in the ISP. These payment rates, as adjusted for cost of doing business factors, as well as applicable service codes are contained in appendix C to this rule.

(2) Changes in group assignments, other than changes between groups A and A-1, may be made only as the result of a change in the acuity assessment score of an individual or as the result of an administrative review decision made by the department or receipt of a formal due process appeal decision rendered by ODJFS.

(3) When the same certified provider provides less than five or more than seven hours of adult day support, vocational habilitation, and/or supported employment-enclave or a combination of adult day support and vocational habilitation services during one calendar day to the same individual, the provider shall use fifteen-minute billing units for all services.

(4) When more than one certified provider provides adult day support, vocational habilitation, or supported employment-enclave services or a combination of these services during one calendar day to the same individual, all providers shall use fifteen-minute billing units for all services.

(5) When only one certified provider provides adult day support, vocational habilitation, or supported employment-enclave services or a combination of adult day support and vocational habilitation services during any one calendar day to the same individual, the provider shall use a daily billing unit when providing between five and seven hours of one or more of these services.

(6) Daily billing units and fifteen-minute billing units may not be combined during the same calendar day for the same individual.

(7) For purposes of calculating staff intensity assignments, staff ratios do not change during those times when individuals, for whom staff is responsible, are not present physically, but are within verbal, visual, or technological supervision of the staff providing the service. Technological supervision includes staff contact with individuals through telecommunication and/or electronic signaling devices.

(8) Billing for adult day support, vocational habilitation, and/or supported employment-enclave services shall not be adjusted for group size since rates have been constructed using an expected and published staff intensity ratio for groups of individuals served.

(9) Certified providers of non-medical transportation service who are using wheelchair accessible vehicles of any capacity and/or non-wheelchair-accessible vehicles with a capacity of nine or more passengers are eligible to bill on a per-trip basis when the providers of this service and the drivers/attendants of these vehicles meet the certification standards contained in rule 5123:2-9-18 of the Administrative Code. Individuals must be in the vehicle to access the per-trip rate. Per-trip billing shall occur on a per-person-served basis and shall not be adjusted for group size.

(10) Certified providers of non-medical transportation service who are using vehicles with a capacity of eight or fewer passengers that are not adapted to accommodate wheelchairs or who are using wheelchair-accessible vehicles that do not meet the certification standards necessary to bill on a per-trip basis are eligible to bill on a per-mile basis when providers of this service and the drivers/attendants of these vehicles meet the certification standards contained in rule 5123:2-9-18 of the Administrative Code. Individuals shall be in the vehicle during the times the provider bills the per-mile rate except that billing may occur on a per-mile basis when non-medical transportation is being provided on behalf of an individual who is receiving job development and placement services as defined in rule 5123:2-9-16 of the Administrative Code. Per-mile billing shall occur on a per-person-served basis, adjusted for group size.

(J) Eligible service providers and documentation of service delivery

(1) Documentation and payment for services other than non-medical transportation, shall be based on fifteen-minute units or a daily unit or both types of units. A combination of daily and fifteen-minute units may be used for the same individuals during any calendar week, subject to the provisions contained in paragraph (I) of this rule.

(2) To justify billing for an individual at the rate that correlates with the assigned group of A, A-1, B, or C on each day of service, each provider of services must complete all elements of documentation described in appendix E to this 5123:2-9-19 13 rule. These documentation elements address staff intensity ratio requirements and are in addition to the documentation requirements for the delivery of HCBS waiver services contained in rule 5123:2-9-05 of the Administrative Code.

(3) Each provider is responsible to document that sufficient numbers of staff are assigned to provide adult day support, vocational habilitation, and/or supported employment-enclave services to one waiver enrollee and/or waiver enrollee and non-waiver enrollees, when combined in one grouping, at the staff intensity ratio required by each individual. The determination of each individual’s staff intensity ratio is to be derived using the procedures described in paragraphs (E) and (F) of this rule.

(4) For purposes of delivering adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community waiver services, not more than sixteen individuals may be combined into one program group, irrespective of the waiver enrollment/non-enrollment status or funding source of the individual participants.

(5) Providers billing on a daily unit basis or fifteen-minute unit basis must assure that individuals receive waiver services at the staff intensity ratios for their assigned groups, based upon their acuity assessment scores, for seventy-five per cent of the time they receive adult day support, vocational habilitation, or supported employment-enclave services or when a combination of adult day support and vocational habilitation services are provided by the same service provider during one calendar day.

As an example, assume that in a six-hour day, an individual is receiving four hours of adult day support and two hours of vocational habilitation from the same provider. The individual is assigned to group B and the provider is billing a daily rate. The individual must receive waiver services at a staff intensity ratio of 0.166667 at least 4.5 hours during that day, During the other 1.5 hours in the day, the individual may receive services at a larger staff intensity ratio and the provider may bill the daily rate for the individual.

(6) Calculation of the seventy-five per cent expectation contained in paragraph (J)(5) of this rule related to group size applies to the numbers of persons present in the group at the time during each day when the provider actually bills the waiver for services provided.

(7) Only direct services staff who meet certification standards for the waiver service being provided and who are providing waiver services are eligible to bill for the provision of adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services. The daily responsibilities of direct services staff are to assist, supervise, and provide supports to individuals with mental retardation and developmental disabilities who receive these services. Direct services are intended to reinforce the objectives contained in the ISP developed for each individual.

(8) Neither supervisors nor professional staff are considered to be direct services staff for the purposes of meeting the staff intensity ratio requirements related to implementation of the services addressed in this rule unless they meet the certification requirements to provide and are providing one or more of the adult day support, vocational habilitation, and/or supported employment-enclave services.

(K) Administrative review

(1) Individuals eligible for an administrative review process are limited to waiver applicants and/or enrollees who demonstrate that situational demands associated with the adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services in which they desire to participate require a staffing ratio and resulting budget limitation that is greater than the group assignment resulting from administration of the ODMRDD acuity assessment instrument. Administrative review requests shall not be accepted for individuals having a group C assignment.

As an example, an individual participating in supported employment-enclave services whose assessment results indicate his/her placement in group B may require the 0.333333 staff intensity ratio of group C for several weeks in order to learn the steps required for him/her to complete a new enclave assignment. Through the administrative review process, the individual would be eligible to request and obtain department approval to increase his/her funding level for a specified period of time to accommodate this enriched staffing pattern, based upon the supporting documentation submitted.

(2) The department considers the budget limitations contained in appendix B to this rule sufficient to meet the service requirements of any adult participating in out-of-facility day services. Therefore, in no instance will the group assignment and resulting total annual budget limitation approved through the administrative review process exceed the published amount for group C in the cost of doing business category in which the individual receives the preponderance of the services addressed in this rule.

(3) An individual or the county board, with the concurrence of the individual, may submit a request for administrative review to the department. County boards shall assist an individual to complete an administrative review request when asked to do so by the individual.

(4) The individual or county board requesting administrative review shall submit the information requested by the department, including, but not limited to:

(a) The proposed staff intensity ratio for each waiver service;

(b) The duration of the proposed staff intensity ratio for each waiver service; and

(5) The department shall make a determination within thirty calendar days following receipt of all documentation as defined in paragraph (K)(4) of this rule and shall notify the individual and county board in writing of the determination.

(6) The duration of each administrative review approval shall be limited to the individual’s twelve-month waiver eligibility span that occurs prior to each re-determination date. The duration of the approval may be determined by the department to extend to each month or a portion of the months in the twelve-month waiver eligibility span. Requests for administrative review may be submitted on an as-needed basis and will be considered for approval if the individual continues to meet the criteria established by the department.

(7) Within fifteen days following the determination by the department that the individual’s request for administrative review approval has been granted, the county board shall submit to the department a PAWS to initiate services that reflect this approval.

(8) Following its completion of the administrative review process, the department shall also inform the individual in writing, and in a form and manner the individual can understand, of his/her due process rights and responsibilities as set forth in section 5101.35 of the Revised Code.

(9) ODJFS retains the final authority, based on the recommendation of the department, to review, revise, and approve any element of the decision process resulting in a determination made under this paragraph.

(L) Payment authorization

(1) The county board shall complete a PAWS and the SSA shall assure waiver services are initiated for an individual whose combined annualized costs for adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services and whose combined annualized costs for non-medical transportation to access one or more of these services are within or below the budget limitations determined in accordance with this rule. The SSA shall also inform the individual in writing, and in a form and manner the individual can understand, of his/her due process rights and responsibilities as set forth in section 5101.35 of the Revised Code.

(2) When the annualized costs for adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services exceed the assigned budget limitations:

(a) The SSA shall inform the individual of his/her right to request an administrative review to obtain adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services that results in a new staff intensity group assignment and budget limitation that exceeds the budget limitation calculated initially by the county board in accordance with the process described in paragraph (E) of this rule.

(b) If, through the administrative review process, the department approves the request for an increased budget limitation, the county board shall assure a PAWS is completed within fifteen days following the determination by the department and shall assure that waiver services are initiated.

(c) If, through the administrative review process, the request for an increased budget limitation is denied, or the service is not subject to an administrative review, the SSA shall initiate the ISP planning process to determine if an ISP can be developed that is acceptable to the individual and is within the assigned budget limitation.

(i) If an ISP that meets these conditions is developed, the county board shall assure a PAWS is completed and shall assure waiver services are initiated.

(ii) If an ISP that meets these conditions cannot be developed, the county board shall propose to deny the initial or continuing provision of adult day support, vocational habilitation, supported employment-enclave, and/or supported employment-community services and inform the individual of his/her due process rights and responsibilities as set forth in section 5101.35 of the Revised Code.

(3) The department shall use the twelve-month period following either an individual’s initial enrollment date or the date the individual transitions to one or more of the services addressed in this rule to verify that cumulative payments made for waiver services remain within the approved budget limitations specified in this rule for each individual.

(M) State level authorization

(2) ODJFS retains the final authority, based upon the recommendation of the department, to authorize the provision and payment of waiver services through the PAWS process.

(3) When combined, payment amounts for waiver services shall not exceed the amounts authorized through the PAWS process for the corresponding time period for an individual.

(N) Payment limitations for HCBS waiver services

Payment for an HCBS waiver service constitutes payment-in-full. Payment shall be made for HCBS waiver services when:

(1) The service is identified in an approved ISP;

(2) The service is recommended for payment through the PAWS process;

(3) The service is provided by a certified HCBS waiver service provider selected by an individual enrolled on the waiver;

(4) No greater than twenty-four hourly units of each type of waiver services, or equivalent fifteen-minute units, are authorized through the PAWS process; and

(5) Payment for waiver services is the lesser of the provider’s charge or the statewide payment rate as described in paragraph (D) of this rule.

(O) Claims for payment of HCBS waiver services

(1) Claims for payment of HCBS waiver services shall be submitted to the department in the format prescribed by the department in billing instructions for HCBS waiver services. The department shall inform county boards of the billing information submitted by providers in a manner and at the frequency necessary to assist the county boards to manage the waiver expenditures being authorized.

(2) Claims for payment shall be submitted within three hundred thirty days after the HCBS waiver service is provided. Payment shall be made in accordance with the requirements of rule 5101:3-1-19.7 of the Administrative Code, except that claims submitted beyond the three-hundred-thirty-day deadline shall be rejected.

(3) All HCBS waiver service providers shall take reasonable measures to identify any third-party health care coverage available to the individual and file a claim with that third party in accordance with the requirements of rule 5101:3-1-08 of the Administrative Code.

(4) For individuals with a monthly patient liability for the cost of HCBS waiver services, as defined in rule 5101:1-39-95 of the Administrative Code, and determined by the county department of job and family services for the county in which the individual resides, payment is available only for the HCBS waiver service(s) delivered to the individual that exceeds the amount of the individual’s monthly patient liability. Verification that patient liability has been satisfied shall be accomplished as follows:

(5) The department, ODJFS, the centers for medicare and medicaid services, and/or the state auditor may audit any funds a provider of HCBS waiver services receives pursuant to this rule, including any source documentation supporting the claiming and/or receipt of such funds.

(6) An HCBS waiver service provider shall maintain the records necessary and in such form to disclose fully the extent of HCBS waiver services provided, for a period of six years from the date of receipt of payment or until an initiated audit is resolved, whichever is longer. The records shall be made available upon request to the department, ODJFS, the centers for medicare and medicaid services, and/or the state auditor. Providers who fail to produce the records requested within thirty days following the request will be subject to de-certification and/or loss of their medicaid provider agreement.

(7) In accordance with the provisions outlined in rule 5123:2-9-08 of the Administrative Code, the department shall monitor the compliance of providers with the conditions of this rule and its appendices as well as with rules 5123:2-9-16, 5123:2-9-17, and 5123:2-9-18 of the Administrative Code. Technical support, as determined necessary by the department, shall be provided upon request and through regional and statewide trainings.

(P) Due process rights and responsibilities

(1) Any recipient or applicant for waiver services administered by the department may utilize the process set forth in section 5101.35 of the Revised Code, in accordance with division 5101:6 of the Administrative Code, for any purpose authorized by that statute and the rules implementing the statute. The process set forth in section 5101.35 of the Revised Code is available only to applicants, recipients, and their lawfully appointed authorized representatives. Providers shall have no standing in an appeal under this section.

(2) Applicants for and recipients of waiver services administered by the department shall use the process set forth in section 5101.35 of the Revised Code for any challenge related to the administration and/or scoring of the ODMRDD acuity assessment instrument or to the type, amount/level, scope, or duration of services included or excluded from an ISP. For purposes of clarity, a change in staff to waiver recipient service ratios does not automatically result in a change in the level of services received by an individual.

APPENDIX A

COST OF DOING BUSINESS CATEGORIES AND FACTORS

Factor Counties in Category

Category 1 0.9651 Adams

Athens

Belmont

Gallia

Guernsey

Harrison

Jefferson

Meigs

Monroe

Pike

Ross

Scioto

Tuscarawas

Vinton

Washington

Category 2 0.9751 Carroll

Crawford

Defiance

Highland

Hocking

Jackson

Lawrence

Mercer

Morgan

Muskingum

Noble

Paulding

Perry

Van Wert

Wyandot

Category 3 0.9851 Allen

Auglaize

Brown

Clinton

Columbiana

Coshocton

Fayette

Hancock

Holmes

Knox

Marion

Morrow

Putnam

Richland

Seneca

Shelby

Williams

Category 4 0.9951 Ashland

Darke

Erie

Fairfield

Fulton

Hardin

Henry

Huron

Licking

Logan

Mahoning

Pickaway

Sandusky

Stark

Trumbull

Wood

Category 5 1.0051 Ashtabula

Champaign

Clark

Delaware

Greene

Lucas

Madison

Miami

Montgomery

Ottawa

Preble

Union

Wayne

Category 6 1.0151 Clermont

Franklin

Geauga

Lake

Lorain

Medina

Portage

Summit

Category 7 1.0251 Butler

Cuyahoga

Warren

Category 8 1.0351 Hamilton

APPENDIX B

BUDGET LIMITATIONS

Following are the annual budget limitations that apply to Adult Day Support, Vocational Habilitation, Supported Employment-Enclave, and Supported Employment-Community services when these services are provided separately or in combination. Annual budget limitations are arrayed by cost of doing business (CODB) category.

CODB Group A Group A-1 Group B Group C

Category 1 $9,480 $9,480 $17,040 $28,380

Category 2 $9,540 $9,540 $17,220 $28,680

Category 3 $9,660 $9,660 $17,400 $28,980

Category 4 $9,780 $9,780 $17,580 $29,280

Category 5 $9,840 $9,840 $17,760 $29,580

Category 6 $9,960 $9,960 $17,940 $29,880

Category 7 $10,080 $10,080 $18,120 $30,120

Category 8 $10,140 $10,140 $18,240 $30,420

Following are the combined annual budget limitations that apply to the provision of Non-Medical Transportation services to access Adult Day Support, Vocational Habilitation, Supported Employment-Enclave, and/or Supported Employment-Community services. Combined annual budget limitations are arrayed by CODB category.

CODB Total

Category 1 $8,990

Category 2 $9,086

Category 3 $9,178

Category 4 $9,269

Category 5 $9,365

Category 6 $9,456

Category 7 $9,552

Category 8 $9,643

APPENDIX C

See Appendix C at http://www.registerofohio.state.oh.us/jsps/PublicDisplayRules/listRuleAppendices.jsp?ruleID=85549&ruleNumber=5123:2-9-19&ignore=N

APPENDIX D

STAFF INTENSITY RATIOS

See Appendix D at http://www.registerofohio.state.oh.us/jsps/PublicDisplayRules/listRuleAppendices.jsp?ruleID=85549&ruleNumber=5123:2-9-19&ignore=N

APPENDIX E

CALCULATION OF MINIMUM NUMBER OF DIRECT SERVICES STAFF AND ELEMENTS OF DOCUMENTATION REQUIRED FOR BILLING HCBS ADULT DAY SUPPORT, VOCATIONAL HABILITATION, AND SUPPORTED EMPLOYMENT-ENCLAVE SERVICES

The calculation of minimum number of direct services staff and the elements of documentation contained in this appendix relate solely to verification of staff intensity ratios that result from administration of the ODMRDD Acuity Assessment Instrument (AAI) and are necessary to justify billing. Providers are also required to meet the documentation requirements contained in rule 5123:2-9-05 of the Administrative Code related to the provision of waiver services and the ISP development requirements contained in rule 5123:2-1-11 of the Administrative Code.

The minimum number of direct services staff required to support the billing for Adult Day Support, Vocational Habilitation, and/or Supported Employment-Enclave services may be determined by aggregating the staff intensity needs for all waiver enrollees and non-waiver enrollees receiving services from one certified waiver provider in one service delivery location during a calendar day. Calculation of the minimum number of direct services staff required to meet the staff intensity needs at a waiver service delivery location will depend upon the number of individuals receiving services in one day, the times during the day in which they receive services, and their staff intensity needs. In the event the required number of direct services staff are not present at a location where waiver services are delivered, the provider shall bill only for those times during the day in which waiver services were delivered to the individuals whose staff intensity needs were met.

The following documentation elements are required to verify the provision of Adult Day Support, Vocational Habilitation, and/or Supported Employment-Enclave services at the required staff intensity ratio. These documentation elements shall be recorded on a perperson basis for each calendar day in which a certified waiver provider provides service:

1. Names of individuals served.

1. Staff intensity ratio. The portion of direct services staff needed is expressed in decimals in appendix D to this rule. When nonwaiver enrollees are served in a group with waiver enrollees, it is recommended that the AAI be used to determine the staff intensity needs of the non-waiver enrollees. If the AAI is not used, the staff intensity needs of non-waiver enrollees shall be determined through the ISP development process applicable to them.

2. Date of service.

3. Location of service.

4. Service codes. These codes shall correlate to the codes listed in appendix C to this rule and also to the billing documents submitted by the provider for payment of waiver services delivered.

5. In/out times for services delivered. One sign-in and one sign-out entry may be used when the same staff member expends continuous blocks of time to deliver the same service in one day to an individual.

6. Minutes of service delivered each day, by service code. When Adult Day Support and Vocational Habilitation services are provided to the same individual on one day by one provider, the minutes of service may be documented for the day and billed using the Adult Day Support and Vocational Habilitation service code identified in appendix C to this rule.

7. Verification of staff intensity ratios per calendar day. Indicate for each waiver enrollee served:

a. The names of other individuals present when waiver services are provided.

b. The names of the direct services staff who delivered services.

c. The initials of the direct services staff indicating all time periods/time spans during which they provided waiver services to the individual.

(Legends indicating signatures and initials of direct services staff may be retained separately from documentation sheets.)

d. The average staff intensity ratio for the combined time periods when one or more waiver services are provided during the calendar day by direct services staff employed by the same certified provider or by the certified provider directly and/or through subcontractors of the certified provider.

Effective: 10/01/2007

R.C. 119.032 review dates: 01/01/2012

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5111.871, 5111.873

Rule Amplifies: 5123.04, 5111.871, 5111.873

Prior Effective Dates: 01/01/2007

5123:2-9-20 HCBS waivers - adult day support services provided through contract with ODA-certified providers.

(A) Purpose

The purpose of this rule is to specify the conditions under which agency providers and county boards of mental retardation and developmental disabilities (county boards) certified by the Ohio department of mental retardation and developmental disabilities (ODMRDD) to provide adult day support, as defined in rule 5123:2-9-17 of the Administrative Code, may contract with and reimburse providers certified by the Ohio department of aging (ODA) for adult day support services provided to individuals enrolled on home and community-based services (HCBS) waivers administered by ODMRDD.

(B) Definitions

(1) “Adult day support services provided through contract with ODA-certified providers” means adult day support services, as defined in paragraph (B)(1) of rule 5123:2-9-17 of the Administrative Code, that are delivered in accordance with the requirements of rule 173-39-02.1 of the Administrative Code.

(2) “ODA” means the Ohio department of aging as established by section 121.02 of the Revised Code.

(3) “ODA-certified provider” means an agency that is certified by ODA as a long-term care provider that meets the conditions of participation contained in rule 173-39-02 of the Administrative Code.

Agency providers and county boards that contract with ODA-certified providers in accordance with this rule shall be reimbursed at the lesser of the charges that they include on the claims they submit for payment or the statewide payment rate for the waiver service that is delivered, as defined in the appendix to this rule.

(D) Standards and requirements for contracting with ODA-certified providers of adult day support services

(1) The agency provider or county board shall retain documentation on file that verifies that the ODA-certified provider of adult day support services:

(a) Maintains current long-term care agency provider certification by ODA to provide enhanced and/or intensive adult day services in adult day service centers, as defined in rule 173-39-02.1 of the Administrative Code.

(b) Requires all employees and subcontractors who provide adult day support services to comply with rule 5123:2-17-02 of the Administrative Code relating to incidents adversely affecting health and safety.

(c) Participates in annual on-site provider structural compliance reviews conducted by ODA in accordance with rule 173-39-04 of the Administrative Code.

(d) Meets the requirements of rule 173-39-04 of the Administrative Code within forty-five business days from each date a structural compliance review report is mailed from the ODA designee.

(E) Acuity assessments, staff intensity group assignments, and budget limitations

(1) Service and support administrators (SSAs) employed by county boards shall implement all requirements contained in paragraph (E) of rule 5123:2-9-19 of the Administrative Code for purposes of calculating the budget limitation for each individual receiving adult day support services provided through contract with an ODA-certified provider. Budget limitations are contained in appendix B to rule 5123:2-9-19 of the Administrative Code.

(2) In addition, the SSA will assign to the individual a separate budget limitation for the provision of non-medical transportation services to access adult day support services provided through contract with ODA-certified providers. These budget limitations are also contained in appendix B to rule 5123:2-9-19 of the Administrative Code.

(F) Individual service plan (ISP) planning and administrative review processes

(1) SSAs employed by county boards shall implement all requirements contained in paragraphs (G)(1), (G)(3), (G)(4), (G)(5), (G)(6), and (G)(7) of rule 5123:2-9-19 of the Administrative Code for purposes of developing an ISP for each individual receiving adult day support services provided through contract with an ODA-certified provider.

(2) Applicants for and recipients of adult day support services provided through contract with an ODA-certified provider are eligible to request an administrative review under paragraph

(K) of rule 5123:2-9-19 of the Administrative Code for the purpose of altering the budget limitation resulting from administration of the ODMRDD acuity assessment instrument.

(G) Billing units and payment conditions

(1) A unit of adult day support services provided through contract with an ODA-certified provider does not include transportation time.

(2) Adult day support services provided through contract with an ODA-certified provider shall be billed in fifteen-minute units or a daily billing unit depending on the amount of time an individual is directly receiving these services.

(3) Units of service shall be determined according to the following calculations:

(a) A daily billing unit shall be used when between five and seven hours of adult day support services are provided through contract by the same ODA-certified provider in one calendar day to one individual.

(b) A fifteen-minute billing unit shall be used when less than five or more than seven hours of adult day support services are provided through contract by the same ODA-certified provider in one calendar day to one individual. The number of units is equivalent to the total number of minutes of service provided in one calendar day divided by fifteen minutes. One additional unit of service may be added to this quotient if the remainder equals eight or more minutes of service.

(4) Notwithstanding the requirements of paragraph (F) of rule 173-39-02.1 of the Administrative Code, ODA-certified providers of contracted adult day support services are not required to arrange or provide non-medical transportation services for individuals, but may provide non-medical transportation services directly or through a subcontract, if selected by the individual.

(5) ODA-certified providers of contracted adult day support services are subject to the applicable provider and vehicle standards for non-medical transportation services contained in rule 5123:2-9-18 of the Administrative Code and must be appropriately certified by ODMRDD in order to bill for these services.

(H) Documentation of service delivery

Documentation for the provision of adult day support services provided through contract with an ODA-certified provider shall occur in accordance with the provisions of rule 173-39-02.1 of the Administrative Code.

(I) Applicability of other rules

Except as otherwise provided in this rule, all of the provisions in rules 5123:2-9-17 and 5123:2-9-19 of the Administrative Code are applicable to adult day support services provided through contract with an ODA-certified provider.

APPENDIX

SERVICE CODES AND PAYMENT RATES FOR ADULT DAY SUPPORT

SERVICES PROVIDED THROUGH CONTRACT

WITH ODA-CERTIFIED PROVIDERS

See Appendix at http://www.registerofohio.state.oh.us/pdfs/5123/2/9/5123$2-9-20_PH_FF_N_APP1_20080310_0820.pdf

Replaces: 5123:2-9-20

Effective: 03/20/2008

R.C. 119.032 review dates: 03/20/2013

Promulgated Under: 119.03

Statutory Authority: 5123.04, 5123.045, 5111.871, 5111.873

Rule Amplifies: 5123.04, 5123.045, 5111.871, 5111.873

Prior Effective Dates: 12/21/2007 (Emer.)