Chapter 5123-9 Vocational Activities; Administration of Individuals' Funds; Behavior Modification

5123-9-02 Placement and discharge of individuals from developmental centers into nursing facilties.

(A) Purpose

The purpose of this rule is to establish procedures for placement and discharge of individuals from developmental centers into nursing faciuties as provided by the Sermak v. Brown consent decree, OBRA legislation, and Medicaid regulations.

(B) Provisions

The provisions of this rule shall be applicable to all developmental centers. The managing officer of each developmental center shall be responsible for designating an employee who shall ensure that all of the requirements of this rule are met.

(C) Definitions

The following definitions shall apply to this rule:

(1) "Active treatment" means a continuous program which includes aggressive, consistent implementation of a program of specialized and generic training, treatment and health services, and related services that is directed toward:

(a) The acquisition of the behaviors necessary for the individual to function with as much self-determ1nation and independence as possible; and

(b) The prevention or deceleration of regression or loss of current optimal functional status.

(2) "Comprehensive evaluation" means a study, including a sequence of observations and standardized examinations, of a person leading to conclusions and recommendations formulated jointly, with dissenting opinions, if any, by an interdisciplinary team, and which complies at a minimum with 42 C.F.R. 483.440(C)(3) of the Medicaid regulations.

(3) "DHS" means the Department of Human Services.

(4) "Individual Plan (IP)" means a written plan of interventions and specific objectives necessary to meet the individual's needs, developed by the interdisciplinary team including the individual and the legal guardian, if any. The individual shall be included in the development of the IP unless the individual chooses not to participate. The IP shall be based upon a comprehensive evaluation and shall identify sequential behavior objectives to increase the individual's level of social, physical, intellectual, emotional and vocational effectiveness. The IP shall be developed without regard to the actual availability of the services needed. The IP shall meet the requirements listed in 42 C.F.R. 483.440(C)(4) of the Medicaid regulations.

(5) "Interdisciplinary team" means a group of persons with special training and experience in the diagnosis and management of people with mental retardation and developmental disabilities, representing the professions, disciplines or service areas that are relevant to identifying the individual's needs and designing programs that meet the individual's needs. This team shall include a person who meets the qualifications of a qualified mental retardation specialist (QMRP) FOUND IN 42 C.F.R. 483.430 . The QMRP shall be responsible for integrating, coordinating and monitoring the individual's active treatment program. Whenever possible, the team shall include a representative of the County Board of Mental Retardation and Developmental Disabilities and the nursing facility.

(6) "Nursing facility (NF)" as used in this rule, includes any long- term care facility

(excluding ICFs/MR) currently certified by the Ohio Department of Health as being in compliance with the nursing facility standards and conditions of participation.

(7) "OBRA" means the Omnibus Budget Reconciliation Act of 1987 and 1990.

(8) "ODMRDD" Means the Ohio Department of developmental disabilities.

(9) "OLRS" means the Ohio Legal Rights Service.

(10) "Qualified mental retardation professional (QMRP)" means a person who meets the requirements for education and experience as listed in 42 C.F.R. 483.430(a) of the Medicaid regulations.

(D) Placement of individuals from developmental centers into nursing facilities (NFS).

All potential placements of individuals from developmental centers directly into NFS shall be performed in compliance with this rule.

(1) Except as otherwise provided in this rule, no individual shall be placed or discharged from a developmental center into a NF.

(2) An individual shall be placed into a NF only when the individual has a medical condition which is determined to be unstable, extreme or complex and prevents the individual from participating in his/her health care programs.

(3) Placement of the individual shall be subject to medicaid regulations listed in 42 C.F.R 483.440(B)(4) and preadmission screening under OBRA as defined by federal statute and implementing regulations.

(4) Written notification of the proposed placement shall be made fifteen days prior to the intended placement date to OLRS.

(5) If the developmental center medical director or ODMRDD medical director determines that the individual is in a "medical crisis," which is defined as a situation in which the individual's medical condition presents an imminent threat or loss of life or serious physical harm in the absence of appropriate care, and the medical director believes that the medical crisis requires immediate placement into a NF. ODMRDD shall provide oral notification to OLRS within twenty-four hours of ODMRDD's awareness of such medical crisis, with written follow-up notification within three business days.

(6) Except when the individual is in medical crisis as defined in paragraph (D)(5) of this rule, the individual must have a current individual plan (IP), updated within thirty days prior to the proposed placement, which includes the individual's active treatment and health care needs as defined in 42 C.F.R. 483.440 of the Medicaid regulations. If the individual's active treatment needs or health care status have changed, the IP shall be updated to reflect these changes.

When an individual in a medical crisis as defined in paragraph (D)(5) of this rule has been placed into a NF the individual's active treatment needs shall be evaluated by ODMRDD within thirty days of the individual's placement.

(a) Whenever possible, development of the individual's IP, including the comprehensive evaluation and postinstitutional plan of care, will be done jointly by the NF and the developmental center.

(b) The individual shall be included in the development of the IP, including the comprehensive evaluation and post-institutional plan of care, unless the individual chooses not to participate.

(7) In no case shall the individual be placed unless the individual has stayed at least seventy-two continuous hours at the receiving facility and the team has met to consider information gathered during the stay.

(8) ODMRDD is responsible for ensuring that the individual's active treatment needs are provided for during the time the individual resides in the NF.

(9) ODMRDD shall ensure that the individual's continued need for services in the NF and active treatment needs are reviewed within the first one hundred twenty days. The review is to be conducted at least every one hundred eighty days thereafter.

(10) Any ind1vidual placed into a NF shall be maintained on the rolls of the developmental center for at least thirty days, after which time the individual may be discharged from the developmental center unless the individual has indicated, in any manner, dissatisfaction with the placement.

(11) Prior to discharge from the developmental center. the managing officer shall notify the county board of mental retardation and developmental disabilities of the individual's placement and service needs.

(E) Placement of an individual from a hospital directly into a NF

All potential placements of individuals from developmental centers who are hospitalized and for whom the hospital recommends placement into a NF shall be performed in compliance with this rule.

(1) Unless otherwise provided in this rule, no individual from a developmental center who has been hospitalized shall be placed from the hospital or discharged into a NF.

(2) Written notice shall be made to OLRS and to DHS of the hospital's recommendation to place the individual into a NF within three business days of ODMRDD'S awareness of such recommendation. This notice shall include the individual's diagnosis and medical needs as specified by the hospital medical staff. The notice shall also include the name of the receiving NF and the date of proposed placement.

(3) The individual shall be subject to preadmission screening under OBRA according to federal law and implementing regulation.

(4) The managing officer of the developmental center is responsible for ensuring that within thirty days of placement the individual's active treatment needs are evaluated.

(5) The individual must have a current individual plan (IP) updated within thirty days prior to the proposed placement, which includes the individual's active treatment and health care needs as defined in 42 C.F.R. 483.330 of the Medicaid regulations. If the individual's active treatment needs or health care status have changed, the IP shall be updated to reflect these changes.

(a) Whenever possible, development of the individual's IP, including the comprehensive evaluation and post institutional plan of care, will be done jointly by the NF and the developmental center.

(b) The individual shall be included in the development of the IP, including the comprehensive evaluation and post-institutional plan of care, unless the individual chooses not to participate.

(6) In no case shall the individual be placed unless the individual has stayed at least seventy-two continuous hours at the NF and the team has met to consider information gathered dur1ng the stay.

(7) ODMRDD is responsible for ensuring that the individual's active treatment needs are provided for during the time the individual resides in the NF.

(8) ODMRDD shall ensure that the individual's continued need for services in the NF and active treatment needs are reviewed within the first one hundred twenty days by the interdisciplinary team. A review will be conducted at least every one hundred eighty days thereafter, as long as the individual resides in the NF.

(9) If it is determined through the review process that discharge is appropriate, then written notice of the intent to discharge shall be given to OLRS.

(10) The individual will be maintained on the rolls of the developmental center unless discharge is deemed appropriate by ODMRDD. If the individual has indicated in any manner, dissatisfaction with the placement, the individual shall not be discharged.

(11) The county board of mental retardation and developmental disabilities where the individual is to reside shall be notified of the individual's placement and service needs prior to placement.

(F) Each developmental center shall designate an employee who shall be responsible for the following:

(1) Providing notice to OLRS and DHS;

(2) Coordinating joint development wherever possible by the NF and the developmental center of the individual's comprehensive evaluation and IP, including quarterly updates;

(3) Ensuring quarterly visits by appropriate developmental center staff to meet with and observe the individual; and

(4) Coordinating the return to the developmental center or subsequent placement and discharge from the NF.

Effective Date: April 27, 2000

5123-9-04 [Rescinded]Vocational/work activities in developmental centers.

Effective: 08/05/2013
Promulgated Under: 111.15
Statutory Authority: 5123.04
Rule Amplifies: 5123.04
Prior Effective Dates: 08/02/1992

5123-9-05 Management of an individual's personal funds by a developmental center.

(A) Purpose

The purpose of this rule is to establish the procedures that a developmental center shall follow when it manages an individual's personal funds.

(B) Definitions

(1) "Earned income" means salary, wages, royalties, honoraria, or net earnings from self-employment as defined in rule 5101:1-39-15 of the Administrative Code. When an individual receives remuneration for services performed in a sheltered workshop, rule 5101:1-39-14.4 of the Administrative Code shall be followed in determining whether that remuneration is earned income or unearned income.

(2) "Individual" means an individual admitted to a developmental center who is enrolled in the intermediate care facility for the mentally retarded program.

(3) "Monthly personal needs allowance" means the amount of earned income and unearned income an individual may retain each month in accordance with paragraph (D) of this rule.

(4) "Personal needs account" has the same meaning as a personal needs allowance account in rule 5101:3-3-16.9 of the Administrative Code.

(5) "Personal needs allowance" has the same meaning as in rule 5101:1-39-24 of the Administrative Code.

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

(C) Management of personal funds

(1) A developmental center shall permit an individual to manage his or her financial affairs and teach an individual to do so to the extent of the individual's abilities.

(2) A developmental center shall manage an individual's personal funds if the individual or the individual's guardian makes a written request for such assistance to the developmental center. In the absence of such request, the individual or his or her legal guardian or other authorized representative is responsible for managing the individual's personal funds and ensuring that the funds are used to meet the individual's needs.

(D) Monthly personal needs allowance

(1) Each individual shall retain a portion of his or her monthly income as a monthly personal needs allowance. An individual's monthly personal needs allowance shall be determined in accordance with paragraph (D)(2) of this rule. The remainder of an individual's monthly income shall be applied to the individual's medicaid cost of care in accordance with rule 5101:1-39-24 of the Administrative Code. An individual who does not have monthly income is not eligible to receive a personal needs allowance.

(2) The monthly personal needs allowance of an individual shall be calculated as follows:

(a) An individual who has only unearned income shall receive a personal needs allowance of up to forty dollars of his or her unearned income per month.

(b) An individual who has only earned income shall receive a personal needs allowance of up to sixty-five dollars of his or her gross earnings per month.

(c) An individual who has both unearned income and earned income shall receive a personal needs allowance of up to a combined maximum of one hundred five dollars per month (i.e., forty dollars in unearned income and sixty-five dollars in earned income).

(E) Management of individual's monthly personal needs allowance

(1) A developmental center shall deposit an individual's monthly personal needs allowance into a personal needs account.

(2) An individual's personal needs account is the exclusive property of the individual, who may use the funds in the account as he or she chooses. Funds in the account may be used to purchase only those items and services requested by the individual, the individual's legal guardian, or other authorized representative.

(3) When an individual requests an item or service that may be purchased with funds from the individual's personal needs account, a developmental center shall inform the individual of the cost and the amount that will be withdrawn from his or her personal needs account to pay for the item or service.

(4) Items and services that may be purchased with funds from an individual's personal needs account include, but are not limited to:

(a) Telephone;

(b) Television or radio for personal use;

(c) Personal comfort items including smoking materials, notions, novelties, and confections;

(d) Cosmetics and grooming items and services in excess of those for which payment is made under the medicaid program;

(e) Personal reading material;

(f) Stationary or stamps;

(g) Personal clothing;

(h) Specialty laundry services such as dry cleaning, mending, or hand-washing;

(i) Flowers or plants;

(j) Gifts purchased on behalf of an individual;

(k) Non-covered special care services such as privately hired nurses or nurse aides;

(l) Social events or entertainment offered outside the scope of a developmental center's activities program;

(m) Private rooms, except when therapeutically required for infection control or similar reasons;

(n) Specially prepared or alternative food instead of food generally prepared by the developmental center other than special diets ordered by an individual's physician or that permit an individual to continue with his or her established dietary habits required for good cause;

(o) Irrevocable burial accounts;

(p) Funerals; and

(q) Burial plots.

(5) Irrevocable burial accounts, pre-need funeral contracts, and burial plots are excludable as a countable resource if they meet the requirements of rules 5101:1-39-27.4 and 5101:1-39-32.2 of the Administrative Code.

(6) A developmental center may not charge an individual's personal needs account for items and services that the developmental center is required to furnish in order to participate in the medicaid program, and that are included in medicaid payments made to the developmental center.

(7) Items and services that may not be purchased with funds from an individual's personal needs account include, but are not limited to:

(a) Nursing services;

(b) Dietary services;

(c) Activities programs;

(d) Room and bed maintenance services;

(e) Routine personal hygiene items and services required to meet the needs of the individual, including but not limited to, hair hygiene supplies, comb, brush, bath soap, disinfecting soap or specialized cleaning agents when indicated to treat special skin problems or to fight infection, razor, shaving cream, toothbrush, toothpaste, denture adhesive, denture cleaner, dental floss, moisturizing lotion, tissues, cotton balls, deodorant, incontinence care supplies, sanitary napkins and related supplies, towels, washcloths, hospital gowns, over-the-counter drugs, hair and nail hygiene services, bathing, and basic personal laundry;

(f) Medically-related social services;

(g) Medical supplies such as irrigation trays, catheters, drainage bags, syringes, and needles;

(h) Durable medical equipment;

(i) Air conditioners or charges to an individual for the use of electricity;

(j) Therapy or podiatry services; and

(k) Charges for telephone consultation by physicians or other personnel.

(8) Funds in an individual's personal needs account that are not expended during the month shall be carried forward to the subsequent month and treated as a resource and are subject to resource requirements of Chapter 5101:1-39 of the Administrative Code.

(F) Safeguards to prevent misuse of individual's funds

(1) A developmental center shall establish and maintain a system that ensures full and complete accounting for an individual's funds.

(2) A developmental center shall not commingle the funds in an individual's personal needs account with the developmental center's funds or with the funds of any person other than another individual.

(3) A developmental center shall provide an individual with access to petty cash (less than fifty dollars) on an ongoing basis and arrange for an individual to access a larger amount of funds (fifty dollars or more) as necessary. The developmental center shall document each transaction involving an individual and his or her personal needs account. The developmental center shall maintain receipts for all purchases over fifty dollars for a single item purchased by the individual unless otherwise specified in the individual's plan and for all purchases the developmental center makes on behalf of the individual. The receipt shall identify the item(s) purchased, the date, and the amount of the expenditure. The developmental center shall obtain other proof of purchase if a receipt is unavailable. If other proof of purchase is unavailable, the developmental center shall provide written verification of the amount of funds given to the individual or expended on his or her behalf and what was purchased with the funds.

(4) A developmental center shall maintain a detailed ledger account of revenue and expenses for each personal needs account managed by the developmental center. The ledger account shall:

(a) Specify all funds received by or deposited with the developmental center;

(b) Specify the dates and reasons for all expenditures;

(c) Specify at all times the balance due the individual; and (d) Be available to the individual or the individual's legal guardian or other authorized representative for review.

(5) Upon request, a developmental center shall furnish receipts to an individual or the individual's legal guardian or other authorized representative in accordance with paragraph (F)(3) of this rule for purchases made with funds from the individual's personal needs account.

(6) Within thirty days after the end of the quarter, a developmental center shall make available upon request a written quarterly statement to each individual, the individual's legal guardian, or other authorized representative, of all financial transactions made by the developmental center on the individual's behalf.

(G) Notice to individual of when balance of funds may affect medicaid eligibility

(1) A developmental center shall give written notification to each individual whose personal funds are managed by the developmental center, the individual's legal guardian, or other authorized representative, when the amount of funds in the individual's personal needs account reaches two hundred dollars less than the resource limits set forth in rules 5101:1-39-05 and 5101:1-39-01.1 of the Administrative Code.

(2) The notice shall inform the individual that he or she may lose medicaid eligibility if the funds in the individual's personal needs account, in addition to the value of the individual's other nonexempt resources, reaches the individual's resource limit amount.

(3) The developmental center shall retain a copy of the notice in the individual's file.

(H) Notice to county department of job and family services

A developmental center shall report to the county department of job and family services any balance in an individual's personal needs allowance account that exceeds the individual's resource limit in accordance with paragraph (F)(2) of rule 5101:3-3-16.9 of the Administrative Code.

(I) Referral to county department of job and family services

If an individual is considering using funds in his or her personal needs account to purchase life insurance, grave space, a burial account, or other item that may be considered a countable resource, a developmental center shall refer the individual or the individual's legal guardian or other authorized representative to the county department of job and family services for an explanation of the effect the purchase may have on the individual's medicaid eligibility.

(J) Release of funds upon discharge or transfer

Within thirty days of discharge or transfer of an individual, a developmental center shall release to the individual, the individual's legal guardian, or other authorized representative, all of the funds in the individual's personal needs account, except for those funds that exceed the individual's resource limit, and a final itemized statement of the individual's personal needs account.

(K) Conveyance of funds upon death

Upon the death of an individual, a developmental center shall distribute any funds in the individual's personal needs account in accordance with section 5123.28 of the Revised Code.

(L) Review of rule

This rule shall be reviewed at least every five years to determine whether it should be continued without amendment, be amended, or be rescinded.

Replaces: 5123-9-05

Effective: 01/01/2011
Promulgated Under: 111.15
Statutory Authority: 5111.114 , 5121.01 to 5121.21 , 5123.04 , 5123.06 , 5123.28 , 5123.95
Rule Amplifies: 5111.114 , 5121.01 to 5121.21 , 5123.04 , 5123.06 , 5123.28 , 5123.95
Prior Effective Dates: 02/10/1979, 07/01/1980, 06/12/1981, 07/15/1983, 07/08/1985, 01/21/1991

5123-9-06 [Rescinded]Behavior modification/behavior management programs.

Effective: 07/17/2014
Promulgated Under: 111.15
Statutory Authority: 5123.04 , 5123.86
Rule Amplifies: 5123.04 , 5123.86
Prior Effective Dates: 05/15/1978, 07/01/1980, 03/20/1982, 02/18/1989, 06/15/1990

5123-9-07 [Rescinded]Operation of developmental center commissaries.

Effective: 07/27/2013
Promulgated Under: 111.15
Statutory Authority: 5123.04 , 5123.29
Rule Amplifies: 5123.04 , 5123.29
Prior Effective Dates: 07/01/1980, 10/09/1989

5123-9-08 Industrial and entertainment fund.

[This rule designated an internal management rule. For a copy of this rule, contact the Ohio Legislative Service Commission.]

5123-9-09 Department clearinghouse. [Rescinded].

Rescinded eff 8-7-95