5123:2-1-12 Administrative resolution of complaints for county boards.

(A) This rule establishes the process for county boards for the administrative resolution of complaints involving the programs, services, policies, or administrative practices of a county board or the entities acting under contract with a county board. Areas subject to administrative resolution by a county board include, but are not necessarily limited to, eligibility determination, arranging appropriate services for eligible individuals, or any denial, reduction or termination of services to individuals by the county board.

(B) Application

(1) Any person, other than an employee of a county board, may file a complaint using the administrative resolution process established under this rule, and shall use this process prior to commencing a civil action regarding the complaint.

(2) For an individual placed by the local education agency into the county board program, the rules for the education of handicapped children, as promulgated by the state board of education, shall be followed. Other eligible individuals shall be afforded the right to the administrative resolution process outlined in this rule.

(3) The provisions of this rule shall not apply to an individual applying for or enrolled in services provided pursuant to the medicaid home and community-based services waiver. All such appeals of decisions of the county board shall be made to the Ohio department of human services (ODHS) in accordance with applicable rules for appeals promulgated by ODHS under Chapters 5101:6-1 to 5101:6-9 of the Administrative Code. Such individuals may appeal other decisions of the county board related to services or administrative practices of the county board other than HCBS waiver services using the applicable process under this rule. Concurrent to any such appeal to ODHS, the individual and the county board may attempt to informally resolve issues related to HCBS waivers through the grievance policy adopted by said board in accordance with paragraph (E) of this rule.

(4) The provisions of this rule shall not apply to complaints regarding the performance of delegable nursing tasks at county boards. The procedures outlined in rules 4723-21-28 and 5123:2-1-07 of the Administrative Code shall apply.

(5) An entity or individual receiving services under contract with a county board for the provision of supported living shall follow the process for resolving complaints established under division (B) of section 5126.45 of the Revised Code prior to initiating an appeal pursuant to this rule. After exhausting the process for resolving complaints established by contract, an individual may initiate an appeal under paragraph (F)(8) of this rule.

(C) As used in this rule:

(1) "Complainant" means a person as defined in section 1.59 of the Revised Code, and shall include any person other than an individual as defined in this rule, a corporation, business trust, estate, trust, partnership, and association when such person has an interest with the county board through a contract or in relation to an administrative practice of the board.

(2) "County board" means a county board of mental retardation and developmental disabilities, including board members as an entity, the superintendent and any person employed by or under contract with the board who has authority for administrative or service implementation on behalf of said board.

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

(4) "Employee" means unclassified employees of the county board seeking to resolve employment issues who shall follow the procedures in the contract entered into pursuant to section 5126.21 of the Revised Code and in accordance with section 5126.23 of the Revised Code and classified employees of the county board seeking to resolve employment issues who shall follow the procedures in Chapter 124. of the Revised Code or within an applicable collective bargaining agreement entered into pursuant to Chapter 4117. of the Revised Code.

(5) "Individual" means a person applying for, determined eligible for, denied eligibility, or enrolled in the programs, services, and supports provided or arranged in accordance with Chapter 5126. of the Revised Code and includes the parents of an individual who is a minor, any guardian, or any other legally appointed representative acting in a legal capacity on the individual's behalf.

(D) Notification of the administrative resolution process

(1) The county board shall give annual notification of the availability of the procedure for administrative resolution of complaints to individuals and any entity in the county that serves persons or provides or desires to provide other goods or services under a contract with the county board. The county board shall post the toll free number for the department and Ohio legal rights service in a visible place. The county board shall inform the individual that a representative of the county board is available to assist the individual with the administrative resolution procedures outlined in this rule.

(2) Upon receipt of any complaint subject to administrative resolution under this rule, the superintendent or appropriate designee shall provide written notice of the rights to administrative resolution of the complaint to the complainant or individual. Where circumstances permit, this notice shall be given at least ten days before the action is taken. Such notice shall be written in terms reasonably calculated to be understood by the complainant or individual, and shall include the following:

(a) A detailed description of the proposed action;

(b) A clear statement of the reasons for the proposed action, including the specification of any evaluative instruments or reports upon which such action is proposed;

(c) A statement that the complainant or individual has the right to seek administrative resolution regarding complaints about such decision; and

(d) A copy of the written administrative resolution process.

(E) The county board may adopt a grievance procedure as an informal process for the resolution of disputes with complainants or individuals. Such a policy shall authorize the superintendent to appoint one or more persons to conduct an informal hearing of such disputes seeking to resolve the issue within a timeframe of no more than thirty days. Filing of such grievances under this policy shall not affect the rights of the complainant or individual to file an appeal through the administrative resolution procedures under paragraph (F) of this rule.

(F) Administrative resolution procedures

(1) Subject to the limitations of section 5123.043 of the Revised Code, any request for administrative resolution of a complaint filed in accordance with this rule will not abrogate any other rights to services. If the county board is requesting a termination or reduction of services or change in services for an individual, current services shall continue to be provided pending final resolution unless an entity under contract with a county board for the provision of supported living terminates the services it is providing that individual in accordance with the terms of its contract with the county board.

(2) Notwithstanding any other provisions of this rule, the appeal of any action of a county board or its employees shall begin at the level in which the decision or action was made.

(3) When a complaint involves the action of the county board, the request for administrative resolution shall be in writing and shall be filed with the supervisor of the applicable service component of the county board. If an individual has difficulty in reading or writing, an oral report may be accepted and documented by the county board supervisor receiving the report. An individual who wishes to seek administrative resolution in accordance with this rule may be assisted by an advocate who may speak on behalf of the individual at the individual's request.

(a) The county board supervisor will conduct an investigation of the complaint within ten calendar days of receipt of the request for administrative resolution of the complaint.

(b) Within ten calendar days of the completion of the investigation, a written report and decision will be completed and discussed with the complainant or individual. Such report shall include a description of the next step in the administrative resolution process.

(c) Within ten calendar days of receipt of the county board supervisor's written decision, the complainant or individual may request administrative review of the supervisor's written decision.

(d) Timelines may be extended if mutually agreeable to all involved parties.

(4) If the complainant or individual wishes an administrative review of the county board supervisor's decision, the following shall occur:

(a) A request for administrative review shall be made in writing by the complainant or individual within ten calendar days of receipt of the supervisor's written decision. The request for administrative review of the supervisor's written decision shall be made to the superintendent of the county board or his designee.

(b) Upon receipt of a request for administrative review of the supervisor's written decision, the superintendent or his designee shall, within ten calendar days, meet with the party initiating the request and conduct an administrative review.

(i) During the administrative review, the superintendent or his designee may ask questions to clarify and review the circumstances and facts related to the decision, and provide the party initiating the request the opportunity to present reasons as to why the decision should be reconsidered.

(ii) Within five working days of the administrative review, the superintendent's decision shall be made known, in writing, to the complainant or individual and shall include a rationale for such decision, and a description of the next step in the administrative resolution process.

(c) Timelines may be extended if mutually agreeable to all involved parties.

(5) If the complainant or individual is not satisfied with the decision of the superintendent, a written appeal may be filed with the county board president. The written appeal shall be filed with the county board president within ten calendar days of receipt of the superintendent's decision.

(a) Upon receipt of a written request to appeal, the county board president or his designee shall conduct a hearing no sooner than seven calendar days, nor later than the next regularly scheduled board meeting, at a time and place convenient to all parties. The county board may hear the case as a full board or the president of the board with concurrence of the board may establish a committee of two or more board members to hear such appeals. Such a committee shall be vested with the full rights and authorities as the county board in handling the appeal.

(b) No less than seven days prior to the hearing, the complainant or individual shall be provided access to county board records pertaining to the specifics of the appeal.

(c) The hearing shall be a closed meeting unless the complainant or individual requests an open meeting.

(d) During the hearing, evidence shall be presented by both parties to support their positions.

(e) The complainant or individual shall be afforded the right to be represented by legal counsel. An individual shall further have the right to be represented by such other representative of the party's choice and at the expense of the individual.

(f) The complainant or individual shall be afforded the right to have in attendance and question any official, employee or agent of the county board who may have evidence upon which the appeal is based.

(g) The decision of the county board shall be based solely upon evidence presented at the hearing.

(h) Evidence presented at the hearing shall be recorded by stenographic means or by use of audio-electronic recording devices as the county board determines at the time of the hearing. Such record shall be made at the expense of the county board and, upon request, one copy of the verbatim transcript shall be provided to the complainant or individual at no cost.

(i) In any hearing held under the authority of the county board pursuant to this rule, the county board may appoint a hearing examiner to conduct said hearing. The hearing examiner shall have the same powers and authority in conducting the hearing as granted to the county board. The hearing examiner shall not be an employee of the county board. The hearing examiner need not be admitted to the practice of law, but shall be possessed of such qualifications as to be able to render neutral and informed decisions on matters presented in the complaint. The director or his designee shall maintain a list of approved hearing examiners which a county board may request in order to select a qualified hearing examiner. The county board may also request the department to certify a hearing examiner as qualified to hear one or more cases for the county board in accordance with the person's experience and educational background.

(i) Within five calendar days of the date the hearing is deemed closed, the hearing examiner shall issue a written report and recommendation, setting forth findings of fact, conclusions of law, and a recommendation for the disposition of the complaint. The report and recommendation shall be served upon the parties to the hearing by certified mail.

(ii) The parties to the hearing may file with the county board written objections to the report and recommendation within ten days of receipt of the report and recommendation.

(j) Within five calendar days of the hearing or within five calendar days following the board's action upon receipt of the hearing examiner's report and any objections thereto, written notification of the county board's decision shall be sent by certified mail to the complainant or individual. Such notification shall include a rationale for the county board decision and a description of the next step in the process.

(k) Timelines may be extended if mutually agreeable to all involved parties.

(6) The county board shall at all times maintain confidentiality concerning the identities of individuals, complainants, witnesses, and other involved parties who provide information unless the individual, in writing, authorizes the release of information.

(7) Subject to the limitations of sections 5123.043 of the Revised Code, the administrative resolution process provided by this rule is in addition to any other rights an individual or the parent of minor or guardian may otherwise have pursuant to the Ohio Revised Code or any other applicable state or federal law.

(8) When a complaint has been made against the county board and the complaint has been made by an individual involving services or supports provided or arranged by the county board for the individual, the individual shall have the right to appeal the decision of the county board to the director of the department. The following procedures shall be followed in such appeals to the director:

(a) The appeal must be filed with the director within fifteen calendar days of receipt of the county board's decision. Copies of the appeal letter shall also be sent to the superintendent, the county board president, and the legal counsel or other representative of either or both parties.

(b) Upon receipt of notice of the appeal from the administrative action of the county board, the county board shall send to the department copies of the verbatim transcript of the hearing with the county board, any exhibits incorporated into the transcript, and the county board's written decision.

(c) The director or his designee shall review the appeal within thirty calendar days of receipt of the appeal. The Director or his designee shall determine if the decision of the county board is based upon applicable statute and/or administrative rule.

(d) Within fourteen calendar days following the department level review, the director's decision shall be made known, in writing, to all affected parties, and shall include a rationale for the decision.

(e) Timelines may be extended if mutually agreeable to all involved parties.

(9) After exhausting the administrative remedies required in this rule, an individual may commence a civil action if the complaint is not settled to his satisfaction.

(10) After exhausting the administrative remedies required in this rule, if the complaint is not settled to his satisfaction, a complainant may either file a complaint with the department as permitted by rule 5123:2-17-01 of the Administrative Code or commence a civil action against the county board.

Replaces: Part of 5123:2-1-02

R.C. 119.032 review dates: 12/23/2003 and 07/01/2004

Promulgated Under: 119.03

Statutory Authority: 5123.043

Rule Amplifies: 5123.043 , 5126.041

Prior Effective Dates: 7/1/76, 12/11/83, 7/1/91 (Emer.), 9/13/91, 4/22/93, 6/2/95 (Emer.), 9/1/95 (Emer.), 12/2/95