Chapter 5123:2-3 Licensing of Residential Facilities

5123:2-3-01 Licensed residential facilities - administration and operation.

(A) Purpose

This rule sets forth requirements for administration and operation of residential facilities licensed in accordance with section 5123.19 of the Revised Code.

(B) Definitions

(1) "Administrator" means the person responsible for administration of the residential facility who shall be directly and actively involved in the day-to-day operation of the residential facility and oversee provision of services by the residential facility.

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

(3) "Direct services position" has the same meaning as in section 5123.081 of the Revised Code and includes staff who provide habilitation services.

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

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

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

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

(8) "License" means written approval by the department to a licensee to operate a residential facility.

(9) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

(10) "Operator" means the licensee or an entity with which the licensee has established a contract for the management of and provision of services at the residential facility.

(11) "Person-centered planning" has the same meaning as in rule 5123:2-3-03 of the Administrative Code.

(12) "Professional staff" means employees of the residential facility who are licensed, certified, or registered by the state to provide professional services in the field in which they practice.

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

(14) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(15) "Supervisory staff" means employees of the residential facility who provide direction or exercise supervision over one or more employees in direct services positions.

(16) "Support staff" means employees of the residential facility such as secretaries, clerks, housekeepers, maintenance workers, and laundry workers who are not in direct services positions, who are not supervisory staff, and who are not professional staff.

(C) General requirements

(1) A residential facility shall be licensed by the department in accordance with section 5123.19 of the Revised Code. The license to operate a residential facility is not transferable and is valid only for the licensee, the premises named on the license, the number of individuals specified on the license, and the term specified on the license. The license shall be available at the residential facility and shown to anyone upon request. The licensee shall take all actions necessary to maintain the license.

(2) A licensee providing home and community-based services under a medicaid waiver administered by the department shall submit an application for approval to provide home and community-based services in accordance with procedures established by the department and comply with rules in Chapter 5123:2-9 of the Administrative Code for the specific home and community-based services provided.

(3) The operator shall comply with rules in Chapter 5123:2-3 of the Administrative Code, rules in other chapters of the Administrative Code adopted by the department to license or regulate the operation of residential facilities, and all applicable federal, state, and local regulations including but not limited to, the Americans with Disabilities Act, fire safety code, wage and hour, workers' compensation, unemployment compensation, and withholding taxes.

(4) The operator shall annually obtain a fire inspection and if applicable, a water and sewer inspection, which shall be provided to the department upon request.

(5) The operator shall disclose or report in writing to the department if the licensee, operator, or administrator has been or is ever formally charged with, convicted of, or pleads guilty to any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code within fourteen calendar days after the date of such charge, conviction, or guilty plea.

(6) The operator shall disclose or report in writing to the department within fourteen calendar days if the licensee, operator, or administrator is or becomes a related party of a person or government entity for which the department refused to issue or renew or revoked a supported living certificate pursuant to section 5123.166 of the Revised Code.

(7) The operator shall provide to the department the name, country of birth, date of birth, and social security number for any person owning a financial interest of five per cent or more in the residential facility (including a direct, indirect, security, or mortgage financial interest).

(8) The operator shall provide and maintain on file with the department, current United States mail and electronic mail addresses.

(9) The operator shall demonstrate that it has an established internal system to ensure compliance with requirements for:

(a) Residential facilities in accordance with rules in Chapter 5123:2-3 of the Administrative Code;

(b) Background investigations and appropriate actions in accordance with rule 5123:2-2-02 of the Administrative Code, for its administrator, licensee, operator, and each employee, contractor, and employee of a contractor who is engaged in a direct services position; and

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

(10) The operator shall maintain general liability insurance in the amount of at least five hundred thousand dollars.

(11) The operator shall participate as requested by the department in service delivery system data collection initiatives such as the national core indicators staff stability survey.

(12) The operator and its employees shall interact with individuals in a way to safeguard the rights of individuals enumerated in sections 5123.62 and 5123.65 of the Revised Code.

(13) The licensee shall be responsible for meeting the requirements established under sections 5123.63 and 5123.64 of the Revised Code.

(14) Swimming pools on the grounds of residential facilities including residential facilities in apartment complexes, shall be used by individuals only in the presence of a person who holds "American Red Cross" or equivalent lifeguarding certificate or shallow water lifeguarding certificate if the pool is less than five feet deep, unless otherwise specified in the individual plan or individual service plan.

(D) Staffing

(1) The operator shall conduct background investigations and take appropriate actions in accordance with rule 5123:2-2-02 of the Administrative Code for the administrator or operator serving as administrator, and each employee, contractor, and employee of a contractor who is engaged in a direct services position. The administrator shall consent to be enrolled in the Ohio attorney general's retained applicant fingerprint database ("Rapback"). When the licensee and/or operator is a natural person, he or she shall be subject to background investigations in accordance with the requirements for candidates set forth in rule 5123:2-2-02 of the Administrative Code and consent to be enrolled in the Ohio attorney general's retained applicant fingerprint database ("Rapback").

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

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

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

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

(4) The operator shall be current in payment of payroll taxes, workers' compensation premiums, and unemployment compensation premiums.

(5) The operator shall ensure that staff are on duty on the basis of the needs of individuals being served. Staff schedules shall be prepared in advance and available for review at each residential facility.

(6) The operator shall provide sufficient support staff so that staff in direct services positions are not required to perform support services to the extent that these duties interfere with the exercise of their primary duties.

(7) The operator shall maintain personnel records for each employee in accordance with the residential facility's personnel policies.

(8) The operator shall maintain a written record, which may include an electronic record, of initial and continuing training completed by each staff member and volunteer. Documentation of training shall include the name of the person receiving the training, date of training, training topic, duration of training, instructor's name if applicable, and a brief description of the training. This information shall be made available upon request by the department and may be maintained at the residential facility or other accessible location.

(E) Requirements for administrator

(1) The operator shall employ an administrator except where the operator serves as the administrator.

(2) The administrator or operator serving as administrator shall:

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

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

(i) State of Ohio identification;

(ii) Valid driver's license; or

(iii) Other government-issued photo identification.

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

(d) Except for a person who, on the day immediately prior to the effective date of this rule, was employed by or under contract with a residential facility as the administrator, hold a high school diploma or general education development certificate.

(e) Except for a person who, on the day immediately prior to the effective date of this rule, was employed by or under contract with a residential facility as the administrator, either:

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

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

(f) Except for a person who, on the day immediately prior to the effective date of this rule, was employed by or under contract with a residential facility as the administrator, have at least one year of full-time (or equivalent part-time) paid work experience in the provision of services to individuals with developmental disabilities which included responsibility for:

(i) Personnel matters;

(ii) Supervision of employees;

(iii) Program services; and

(iv) Financial management.

(g) Except for a person who, on the day immediately prior to the effective date of this rule, was employed by or under contract with a residential facility as the administrator, successfully complete within thirty calendar days of hire as the administrator or operator serving as administrator, the department-provided web-based orientation for administrators of residential facilities.

(h) Except for a person who, on the day immediately prior to the effective date of this rule, was employed by or under contract with a residential facility as the administrator, successfully complete within sixty calendar days of hire as the administrator or operator serving as administrator, training in accordance with standards established by the department in:

(i) Service documentation;

(ii) Fiscal administration and/or billing for services, as applicable;

(iii) Internal compliance programs;

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

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

(i) Successfully complete, commencing in the second year of employment as the administrator or operator serving as administrator, annual training in accordance with standards established by the department in:

(i) A residential facility's role and responsibilities with regard to services including person-centered planning, community participation and integration, self-determination, and self-advocacy;

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

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

(3) The operator shall designate in writing a staff member to whom executive authority has been delegated in the temporary absence of the administrator.

(4) The operator shall report in writing to the department within fourteen calendar days when the administrator or operator serving as administrator leaves the residential facility's employ. The notification shall indicate when the operator anticipates filling the position and to whom executive authority has been delegated in the interim.

(F) Requirements for staff, including supervisory staff and professional staff, in direct services positions

(1) The operator shall ensure that each employee, contractor, and employee of a contractor engaged in a direct services position:

(a) Is at least eighteen years of age.

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

(i) State of Ohio identification;

(ii) Valid driver's license; or

(iii) Other government-issued photo identification.

(c) Holds a high school diploma or general education development certificate, except for persons who, on the day immediately prior to the effective date of this rule, were employed by or under contract with a residential facility in a direct services position.

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

(e) Successfully completes prior to providing direct services, eight hours of training in accordance with standards established by the department in:

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

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

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

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

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

(vi) An overview of fire safety and emergency procedures.

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

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

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

(g) Successfully completes within thirty calendar days of hire, and specific to each residential facility in which he or she works, training in fire safety, operation of fire safety equipment and warning systems, and emergency response plan. Until such time that a staff member completes the training required by this paragraph, he or she may provide direct services only when there is another staff member who has current training required by this paragraph present.

(h) Obtains within sixty calendar days of hire and thereafter maintains valid "American Red Cross" or equivalent certification in first aid which includes an in-person skills assessment completed with an approved trainer. Until such time that a staff member obtains certification in first aid, he or she may provide direct services only when there is another staff member who holds valid certification in first aid present.

(i) Obtains within sixty calendar days of hire and thereafter maintains valid "American Red Cross" or equivalent certification in cardiopulmonary resuscitation which includes an in-person skills assessment completed with an approved trainer. Until such time that a staff member obtains certification in cardiopulmonary resuscitation, he or she may provide direct services only when there is another staff member who holds valid certification in cardiopulmonary resuscitation present. An intermediate care facility for individuals with intellectual disabilities that has nursing staff on site twenty-four hours per day, seven days per week may, in accordance with rule 5123:2-3-10 of the Administrative Code, request a waiver of the requirement for all direct services staff to hold certification in cardiopulmonary resuscitation.

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

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

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

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

(iv) Fire safety and operation of fire safety equipment and warning systems specific to each residential facility in which he or she works; and

(v) The emergency response plan specific to each residential facility in which he or she works.

(2) An employee, contractor, or employee of a contractor engaged in a direct services position shall be deemed to have met the annual training requirements set forth in paragraph (F)(1)(j) of this rule if he or she is scheduled for training and the training is completed within thirty calendar days of the deadline.

(G) Additional requirements for supervisory staff

The operator shall ensure that within ninety calendar days of becoming a supervisor, supervisory staff successfully complete training in accordance with the residential facility's policies and procedures regarding:

(1) Service documentation;

(2) Fiscal administration and/or billing for services, as applicable; and

(3) Management of individuals' funds.

(H) Requirements for support staff

(1) The operator shall ensure that prior to assuming their duties, support staff receive training in accordance with standards established by the department in:

(a) The role and responsibilities of the residential facility with regard to services including person-centered planning, community participation and integration, self-determination, and self-advocacy;

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

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

(d) An overview of fire safety and emergency procedures.

(2) The operator shall ensure that within thirty calendar days of hire and at least once annually thereafter, support staff receive training in:

(a) Fire safety and operation of the fire safety equipment and warning systems specific to each residential facility in which he or she works; and

(b) The emergency response plan specific to each residential facility in which he or she works.

(I) Volunteers

(1) A residential facility may engage volunteers to provide supplementary services.

(2) The operator shall ensure that volunteers are at all times under supervision of paid supervisory staff of the residential facility.

(3) The operator shall ensure that volunteers who provide more than forty hours of service working directly with residents during a calendar year receive training in:

(a) The role and responsibilities of the residential facility with regard to services including person-centered planning, community participation and integration, self-determination, and self-advocacy;

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

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

(d) An overview of fire safety and emergency procedures.

(4) The operator shall ensure that volunteers who provide more than forty hours of service working directly with residents during a calendar year undergo background investigations.

(a) The background investigation for a volunteer shall include:

(i) Requiring the volunteer to submit a statement to the operator with the volunteer's signature attesting that he or she has not been convicted of or pleaded guilty to any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code.

(ii) Requiring the volunteer to sign an agreement under which the volunteer agrees to notify the operator within fourteen calendar days if the volunteer is formally charged with, is convicted of, or pleads guilty to any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code. The agreement shall provide that failure to make the notification may result in termination of the volunteer's services.

(iii) Establishing the volunteer is not included in any of the databases described in paragraph (C)(2) of rule 5123:2-2-02 of the Administrative Code.

(iv) Obtaining a criminal records check conducted by the Ohio bureau of criminal identification and investigation. If the volunteer does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the criminal records check shall include information from the federal bureau of investigation.

(b) The operator shall, at a frequency of no less than once every five years, conduct a background investigation in accordance with paragraph (I)(4)(a) of this rule for each volunteer.

(c) The operator shall not engage or continue to engage a volunteer who:

(i) Is included in one or more of the databases described in paragraph (C)(2) of rule 5123:2-2-02 of the Administrative Code; or

(ii) Has a conviction for any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code if the corresponding exclusionary period as specified in paragraph (E) of rule 5123:2-2-02 of the Administrative Code has not elapsed.

Replaces: 5123:2-3-04, 5123:2-3-07, 5123:2-3-08, 5123:2-3-19

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.19, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 08/01/1987, 10/24/1987, 11/16/1990, 12/09/1991, 05/18/1995, 04/27/2000, 11/20/2000, 09/22/2002, 04/28/2003, 01/01/2006, 10/01/2009

5123:2-3-02 Licensed residential facilities - physical environment standards, fire safety, and emergency response planning.

(A) Purpose

This rule establishes minimum physical environment and safety standards to ensure that individuals living in residential facilities licensed in accordance with section 5123.19 of the Revised Code are provided a safe, healthy, and homelike living environment that meets their specific needs.

(B) Definitions

(1) "Adult" means an individual age eighteen and older.

(2) "Business day" means a day of the week, excluding Saturday, Sunday, or a legal holiday as defined in section 1.14 of the Revised Code.

(3) "Child" means an individual less than age eighteen.

(4) "Fire safety drill" means a documented simulation of the actions to be taken in response to a fire emergency.

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

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

(7) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

(8) "Operator" means the licensee or an entity with which the licensee has established a contract for the management of and provision of services at the residential facility.

(9) "Physical evacuation" means that the individuals residing in the residential facility physically leave the facility or, in the case of a facility that is classified as I-1 or I-2 occupancy pursuant to section 308 of the Ohio building code, individuals residing in the facility must be moved to a separate fire area within the facility that is separated by a two-hour rated firewall.

(10) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(11) "State/local authority" means:

(a) For fire safety, the state fire marshal's office or the local fire department; or

(b) For emergency response, a chapter of the "American Red Cross" or the county emergency management agency.

(C) Physical environment standards and configuration

(1) The operator shall ensure that the residential facility remains in compliance with the feasibility, space, and usage requirements for residential facilities set forth in paragraphs (D) and (E) of rule 5123:2-3-08 of the Administrative Code.

(2) All areas of the interior, exterior, and grounds of the residential facility and all electrical, plumbing, and heating systems of the residential facility shall be maintained in a clean and sanitary manner and in good repair at all times and adequate to meet the needs of the individuals.

(3) All solid waste shall be disposed of immediately after production or shall be stored in leak-proof containers with tight-fitting covers which provide protection from animals, rodents, and insects until time of disposal. Such waste shall be disposed of through a public disposal service, a private contract service, or otherwise in accordance with the requirements of the Ohio department of health and any local regulations, rules, codes, or ordinances.

(4) The operator shall take measures to eliminate and prevent the presence of insects, rodents, and other vermin in and around the residential facility. Opened doors and windows shall be screened. The extermination of insects, rodents, and other vermin shall be done in such a manner as not to create a fire or other safety or health hazard.

(5) Disinfectants, pesticides, poisons, and other toxic substances shall be properly labeled and stored separate from food products. All substances defined as "hazardous substances" or which are labeled "warning," "caution," or "danger" shall be used in a manner that ensures the health and safety of individuals served in the residential facility.

(6) Gasoline, kerosene, paints, and other flammable materials and liquids shall be stored in a safe manner and in accordance with the manufacturer's label. Storage of combustible and non-combustible materials shall not produce conditions that create a fire, safety, or health hazard.

(7) The licensee shall ensure that sidewalks, escape routes, and entrances are free of obstacles and ice and snow.

(8) The operator shall maintain the heating system, and cooling system if applicable, of the residential facility in safe operating condition. The residential facility shall be maintained at a comfortable and healthy temperature based on the individuals' needs and desires.

(9) No bedroom shall be occupied by more than two individuals.

(10) No bedroom shall be occupied by individuals of the opposite sex unless both occupants are consenting adults or both occupants are less than age six.

(11) No bedroom shall be occupied by an adult and a child unless the occupants are related to one another.

(12) No part of the residential facility shall be off limits to individuals except for staff quarters, bathrooms located in or adjacent to staff quarters, bedrooms of other individuals unless consent is given, and mechanical and boiler rooms or other areas of the facility that present a health or safety risk to an individual as identified in his or her individual plan or individual service plan.

(D) Furnishings, equipment, and supplies

(1) The operator shall provide the residential facility with safe, sanitary, comfortable, and homelike equipment, furniture, and appliances in good repair and appropriate for the age and ability of individuals.

(2) The operator shall provide a means (e.g., telephone, wireless telephone, or computer) for communicating with others to which individuals have free access at all times and in a manner that affords an individual privacy.

(3) The operator shall ensure a sufficient supply of soap and basic toiletries (i.e., deodorant, shampoo, oral hygiene items, and feminine hygiene products), toilet paper, clean towels and washcloths, and first aid supplies is available to meet the needs of the individuals.

(4) The operator shall provide each individual with a bed or crib that is clean, comfortable, sturdy, safe, and in good condition and appropriate for the individual's age and ability. Hideaway beds, roll away beds, sleeper sofas, and futons shall not be used.

(a) Cribs shall be used only for individuals less than age five. An individual needing to sleep in a crib shall sleep in a crib which is at least six inches longer than the individual's extended length.

(b) Side rails and/or bed enclosures shall be used only as approved in the individual plan or individual service plan.

(c) No individual shall sleep on an exposed mattress or on an exposed mattress cover. Waterproof mattress covers shall be provided for infants and individuals who are incontinent.

(d) The operator shall provide each individual with bedding appropriate to the weather and climate. Linens and bedding for each bed or crib shall be maintained to provide clean and sanitary sleeping accommodations for each individual.

(5) The operator shall provide each individual with closet and drawer space in his or her bedroom for in-season clothing and personal possessions with racks and shelves accessible to the individual.

(E) Fire safety plan and emergency response plan

(1) Each residential facility shall have a fire safety plan and an emergency response plan that are approved by the state/local authority.

(a) The fire safety plan shall include, but is not limited to:

(i) A policy that addresses smoking regulations and the storage of combustible materials;

(ii) A fire safety training program that includes provisions for rescue, alarm, containment, and evacuation;

(iii) Designation of meeting places in case of a physical evacuation of the residential facility; and

(iv) A procedure for permitting re-entry to the residential facility following a fire safety drill and/or physical evacuation.

(b) The emergency response plan shall include, but is not limited to:

(i) Designating a tornado shelter or safe area in the residential facility and the procedure for accessing the area;

(ii) Responses to weather-related emergencies or other disasters when relocation of individuals is not required; and

(iii) Responses to weather-related emergencies or other disasters when relocation of individuals is required, including designation of a pre-arranged evacuation site in case of a physical evacuation of the residential facility.

(2) A current graphic floor plan shall be posted unobstructed on each floor of the residential facility and in an area most appropriate for the posting of staff information. The graphic floor plan shall include, but is not limited to:

(a) A primary and secondary means of exit from each floor;

(b) The location of pull stations and fire control system panels, when applicable;

(c) Fire escapes;

(d) The telephone number of the local fire department or "911";

(e) Designated tornado shelter or safe area; and

(f) Designated meeting places in case of fire.

(3) No exit, stairway, corridor, ramp, elevator, fire escape, or other means of exit from a building shall be used for storage purposes or be otherwise obstructed from use.

(4) A fire extinguisher approved by the state/local authority shall be located on each floor and in the natural path of escape from a fire, at readily accessible and visible points which are not likely to be obstructed.

(5) Each residential facility with six or more individuals shall be equipped with:

(a) An automatic sprinkler system meeting the requirements of "National Fire Protection Association" 13-D, "Sprinkler Systems in One and Two Family Dwellings." The sprinkler system shall be interconnected with the smoke and fire detection and alarm system.

(b) An automatic sprinkler system meeting the requirements of "National Fire Protection Association" 13, "Standard for the Installation of Sprinkler Systems," when a residential facility has seventeen or more individuals, or when a residential facility with six to sixteen individuals cannot be physically evacuated in twelve minutes or less. The sprinkler system shall be interconnected with the smoke and fire detection and alarm system. A new residential facility with six to sixteen individuals classified as I-1 occupancy pursuant to section 308 of the Ohio building code on or after May 18, 1995, shall be required to have a sprinkler system meeting the requirements of "National Fire Protection Association" 13-R, "Installation of Sprinkler Systems in Residential Occupancies Up to Four Stories in Height."

(c) A smoke and fire detection and alarm system meeting the requirements of "National Fire Protection Association" 72, "National Fire Alarm Code," depending upon the nature of the physical facility involved and such other standards as required by the appropriate building and fire officials.

(d) Fire alarm pull stations near each main exit and in the natural path of escape from a fire, at readily accessible and visible points which are not likely to be obstructed.

(6) Each residential facility with five or fewer individuals shall be equipped with:

(a) At least a single station smoke detector on each floor of the facility. Each smoke detector shall be mounted on the ceiling or wall at a point centrally located in the corridor or area giving access to rooms used for sleeping. Where sleeping rooms are on an upper level, the smoke detector shall be placed at the center of the ceiling directly above the stairway. All smoke detectors shall be installed and maintained in accordance with the manufacturer's recommendations. When the smoke detectors are wall-mounted, they shall be located within twelve inches, but no closer than four inches, of the ceiling. Installation shall not interfere with the operating characteristics of the smoke detector. When activated, the smoke detector shall provide an alarm audible in the residential facility.

(b) An approved fire alarm system, which includes bells, sirens, horns, lights, or other equipment as may be appropriate, when services are provided to individuals who are visually and/or hearing impaired.

(c) An automatic sprinkler system meeting the requirements of "National Fire Protection Association" 13-D, "Sprinkler Systems in One and Two Family Dwellings," and a smoke detection system as required by paragraph (E)(6)(a) of this rule when the residential facility cannot be physically evacuated in three minutes or less.

(7) The operator shall ensure that all sprinkler systems, fire alarms, extinguishing systems, and other safety equipment are properly maintained.

(8) The department may utilize the "National Fire Protection Association 101: Life Safety Code" (2011 edition) to determine if additional life safety requirements are needed.

(9) The operator shall conduct and document at least three fire safety drills in a twelve-month period with one conducted during the morning, one conducted during the afternoon or evening, and one conducted during the time when individuals are routinely asleep.

(10) The operator shall conduct and document at least one tornado drill in a twelve-month period.

(11) Fire safety drills and tornado drills may be announced or unannounced and shall be conducted in accordance with the assessed needs of individuals as identified in their individual plans or individual service plans.

(12) Residential facility staff shall be trained in fire safety, operation of fire safety equipment and warning systems, and emergency response plan in accordance with rule 5123:2-3-01 of the Administrative Code.

(13) Each individual shall participate in documented training of the residential facility's fire safety plan and emergency response plan within thirty calendar days of residency and at least once during every twelve-month period thereafter. The training shall be appropriate for the individual's needs based on the results of an assessment.

(14) Except at an intermediate care facility for individuals with intellectual disabilities, individuals may be trained to assist one another in case of fire or other emergency to the extent their abilities permit without additional personal risk and as indicated in their individual plans or individual service plans.

(15) The operator shall report to the department within one business day any fire to which a local fire department responded.

(16) The operator shall report to the department within one business day when an emergency requires the operator to relocate individuals from the residential facility.

Replaces: 5123:2-3-10, 5123:2-3-11

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.19, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 11/14/1985 (Emer.), 05/05/1986, 08/31/1986, 10/12/1987, 10/24/1987, 11/16/1990, 12/09/1991, 05/18/1995, 04/27/2000, 01/01/2006

5123:2-3-03 Licensed residential facilities - person-centered planning.

(A) Purpose

This rule ensures that services for individuals living in residential facilities licensed in accordance with section 5123.19 of the Revised Code are delivered pursuant to an individual plan or individual service plan that is developed through person-centered planning.

(B) Definitions

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

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

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

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

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

(6) "Person-centered planning" means an ongoing process directed by an individual and others chosen by the individual to identify the individual's unique strengths, interests, abilities, preferences, resources, and desired outcomes as they relate to the individual's support needs.

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

(8) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

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

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

(C) Decision-making responsibility

(1) Individuals, including individuals who have been adjudicated incompetent pursuant to Chapter 2111. of the Revised Code, have the right to participate in decisions that affect their lives and to have their needs, desires, and preferences considered.

(2) An individual for whom a guardian has not been appointed shall make decisions regarding receipt of a service or support or participation in a program provided for or funded under Chapter 5123. or 5126. of the Revised Code. The individual may obtain support and guidance from another person; doing so does not affect the right of the individual to make decisions.

(3) An individual for whom a guardian has not been appointed may, in accordance with section 5126.043 of the Revised Code, authorize an adult (which may be referred to as a "chosen representative") to make a decision described in paragraph (C)(2) of this rule on behalf of the individual as long as the adult does not have a financial interest in the decision. The authorization shall be made in writing.

(4) When a guardian has been appointed for an individual, the guardian shall make a decision described in paragraph (C)(2) of this rule on behalf of the individual within the scope of the guardian's authority. This paragraph shall not be construed to require appointment of a guardian.

(5) An adult or guardian who makes a decision pursuant to paragraph (C)(3) or (C)(4) of this rule shall make a decision that is in the best interest of the individual on whose behalf the decision is made and that is consistent with the individual's needs, desires, and preferences.

(D) Development of individual plans and individual service plans

(1) Person-centered planning shall be the foundation for development of individual plans and individual service plans.

(2) Individual service plans for individuals who reside in residential facilities other than intermediate care facilities for individuals with intellectual disabilities shall be developed with the individual by a service and support administrator in accordance with rule 5123:2-1-11 of the Administrative Code.

(3) Individual plans for individuals who reside in intermediate care facilities for individuals with intellectual disabilities shall be developed in accordance with paragraph (E) of this rule.

(E) Requirements for development of individual plans for individuals who reside in intermediate care facilities for individuals with intellectual disabilities

(1) What is important to the individual and what is important for the individual as expressed directly by the individual, and as applicable, by an adult authorized by the individual or the individual's guardian shall drive development of the individual plan.

(2) The services, supports, and activities described in the individual plan shall reflect what is important to the individual and what is important for the individual, meet the individual's needs, provide opportunities for the individual to interact with persons without disabilities in integrated community settings, and assist the individual in expanding and developing skills that will lead to a more independent, secure, and enjoyable life.

(3) Evaluations shall be used as a resource to identify appropriate methods of developing the services, supports, and activities necessary to meet the needs of the individual.

(a) The following evaluations of the individual shall be conducted as needed and at least annually:

(i) A general health evaluation including vision, hearing, and other screenings appropriate for the individual's age and gender;

(ii) An evaluation of the individual's general dental health and hygiene; and

(iii) An adaptive behavior or independent living skills assessment.

(b) The individual's social history shall be reviewed at least annually and updated as needed.

(c) If the results from the evaluations described in paragraphs (E)(3)(a) and (E)(3)(b) of this rule are insufficient to identify appropriate methods of developing the services, supports, and activities necessary to meet the needs of the individual, additional evaluations shall be obtained.

(4) The qualified intellectual disability professional shall:

(a) Coordinate development of the individual plan with the individual and the team within thirty calendar days after the individual's admission and at least annually thereafter.

(b) Describe, annually and upon request, the supports and services available to an individual residing in an intermediate care facility for individuals with intellectual disabilities and the supports and services available to an individual enrolled in a home and community-based services waiver.

(c) Ensure that development of the initial individual plan and each subsequent individual plan reflects meaningful planning for:

(i) The individual's discharge from the intermediate care facility for individuals with intellectual disabilities that:

(a) Identifies supports and services necessary for the individual's successful transition to an integrated community setting and specifies who is responsible for ensuring necessary supports and services are provided; and

(b) Includes strategies or methods for eliminating or overcoming barriers preventing the individual from transitioning to an integrated community setting.

(ii) The individual's unique strengths, interests, abilities, preferences, resources, and desired outcomes as they relate to community employment in accordance with rule 5123:2-2-05 of the Administrative Code.

(d) Review the individual plan as needed or upon request.

(e) Review implementation of the individual plan at least quarterly and revise as needed.

(f) Coordinate the services, supports, and activities being provided to the individual with service providers, as identified in the individual plan.

(g) Contact the county board when an individual residing in the intermediate care facility for individuals with intellectual disabilities requests, or a person on the individual's behalf requests pursuant to paragraph (C) of this rule, assistance to move from the intermediate care facility for individuals with intellectual disabilities to a community setting.

(h) Document performance of the tasks described in paragraphs (E)(4)(a) to (E)(4)(g) of this rule.

(5) The qualified intellectual disability professional shall secure informed consent for the individual plan from the individual, adult authorized by the individual, or the individual's guardian, as applicable.

(6) The qualified intellectual disability professional shall attempt to address concerns when informed consent is refused or revoked by presenting alternative services or activities to the individual.

(7) The individual plan shall be provided to the individual, adult authorized by the individual, or individual's guardian, as applicable; to all parties responsible for implementation of the individual plan; and to authorized regulatory agents. The individual plan shall not be released to other persons without the informed consent of the individual, adult authorized by the individual, or individual's guardian, as applicable.

Replaces: 5123:2-3-17

Click to view Appendix

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.19, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 11/16/1990, 12/09/1991, 05/18/1995

5123:2-3-04 Licensed residential facilities - provision of services and maintenance of service records.

(A) Purpose

This rule establishes standards to ensure that services provided in residential facilities licensed in accordance with section 5123.19 of the Revised Code focus on achievement of outcomes that are important to and important for individuals served, that individuals are involved in development and delivery of their services, that the confidentiality of individuals' records is maintained, and that individuals' records are readily accessible for service delivery and for review by the department.

(B) Definitions

(1) "Community participation" means engagement of an individual in daytime and evening activities that:

(a) Are available to the general public (such as employment, clubs, meetings, and advocacy groups);

(b) Are important to the individual;

(c) Involve others with and without disabilities who are not paid to provide care to the individual; and

(d) Create opportunities for the individual to develop meaningful relationships in his or her local community as is typical of other citizens of that community.

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

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

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

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

(6) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

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

(8) "Modified texture or therapeutic diets" means diets that are altered in any way to enable the individual to eat (e.g., food is chopped or pureed) or diets that are intended to correct or prevent a nutritional deficiency or health problem.

(9) "Operator" means the licensee or an entity with which the licensee has established a contract for the management of and provision of services at the residential facility.

(10) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

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

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

(C) Standards of service provision

(1) The operator, administrator, and staff of the residential facility shall:

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

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

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

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

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

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

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

(2) The operator, administrator, and staff of the residential facility shall not:

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

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

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

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

(i) Alcohol;

(ii) Illegal drugs;

(iii) Illegal chemical substances; or

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

(D) Health care

(1) Self-administration or assistance with self-administration of prescribed medication shall be conducted in accordance with rule 5123:2-6-02 of the Administrative Code.

(2) Delegation of nursing tasks, excluding the provision of health-related activities, shall be conducted in accordance with rule 5123:2-6-06 of the Administrative Code and Chapter 4723-13 of the Administrative Code.

(3) Administration of prescribed medication pursuant to sections 5123.42 to 5123.46 of the Revised Code shall be conducted in accordance with Chapter 5123:2-6 of the Administrative Code.

(4) The operator shall comply with the requirements for reporting medication/treatment errors in accordance with rules 5123:2-6-07 and 5123:2-17-02 of the Administrative Code.

(5) The operator shall develop and implement written procedures for the disposal of prescribed medication. The procedures shall require that disposal of prescribed medication is verified and recorded by two staff members or by an independent external entity. Dangerous drugs shall be disposed in accordance with rule 4729-9-06 of the Administrative Code.

(6) In the event of termination of services pursuant to rule 5123:2-3-05 of the Administrative Code, a written accounting of prescribed medication shall be completed no later than the last day of the individual's residency and verified by two staff members. The operator shall ensure a plan is developed for transfer of prescribed medications to the individual or his or her guardian, as applicable.

(7) In the event of the death of an individual, a written accounting of prescribed medication shall be completed immediately and no later than twenty-four hours following the death and verified by two staff members. The operator shall cooperate with any investigation conducted by a legally authorized entity. Disposal of prescribed medication shall occur in a manner set forth in paragraph (D)(5) of this rule, unless an investigation calls for the disposal to be delayed.

(E) Transportation

(1) The operator shall provide or arrange for transportation of individuals residing in the residential facility in accordance with each resident's individual plan or individual service plan, as applicable.

(2) The operator shall:

(a) Ensure that each employee providing transportation holds a valid driver's license as specified in Ohio law.

(b) Ensure that each employee providing transportation is covered by valid personal or corporate liability insurance as specified in Ohio law.

(c) Obtain, for each employee providing transportation, a driving record prepared by the bureau of motor vehicles no earlier than fourteen calendar days prior to the date of initial employment as a driver and at least once every three years thereafter. A person having six or more points on his or her driving record is prohibited from providing transportation.

(d) Require each employee providing transportation to immediately notify the operator in writing if he or she accumulates six or more points on his or her driving record or if his or her driver's license is suspended or revoked.

(e) Develop and implement written policies and procedures regarding vehicle accessibility, vehicle maintenance, and requirements for vehicle drivers.

(F) Food

(1) The operator shall offer daily meals and snacks that meet the individuals' nutritional needs and preferences as identified by the individual.

(2) Modified texture or therapeutic diets shall be prepared and served in accordance with the instructions of a physician or licensed dietitian. The operator shall maintain instructions regarding modified texture or therapeutic diets in accordance with paragraph (I) of this rule.

(3) Meals shall provide for variety, substitutions, and accommodation of individuals' personal preferences and religious beliefs. Individuals shall participate in meal planning and preparation to the extent of their interest and ability to do so.

(4) Fresh food supplies sufficient for three calendar days and staple food supplies sufficient for at least five calendar days shall be available in the residential facility at all times.

(5) Food shall be prepared and stored properly and in accordance with health codes to protect it against contamination and spoilage. Food products shall be stored separately from potentially harmful non-food items, particularly cleaning and laundry compounds.

(G) Clothing and personal belongings

(1) The operator shall ensure that each individual has an adequate amount of personal clothing in good repair, well-fitting, and comparable in style to that worn by age peers in the community. The team shall ensure the clothing needs of an individual who does not have personal funds available to cover needed items are met. All clothing shall be clean and appropriate for the season and the activities in which the individual is engaged.

(2) The operator shall encourage each individual to select, purchase, and maintain his or her own clothing and to dress as independently as possible.

(3) For an individual who has been assessed to need assistance with management of personal possessions, the operator shall record the individual's clothing and personal items within fourteen calendar days of admission and update the record at least annually thereafter.

(4) Any single item with a purchase price of fifty dollars or more purchased by or on behalf of an individual who has been assessed to need assistance with management of personal possessions, shall be added to the record when acquired and deleted from the record when discarded or lost.

(5) The operator shall not discard clothing and personal items without the consent of the individual or the individual's guardian, as applicable.

(H) Community participation and day activities for individuals who reside in intermediate care facilities for individuals with intellectual disabilities

(1) The operator shall ensure that each individual routinely has information in formats the individual understands about day activities offered by other providers and opportunities to explore and experience community participation in accordance with his or her individual plan and desired outcomes as they relate to community employment in accordance with rule 5123:2-2-05 of the Administrative Code.

(2) The operator shall ensure that each individual participates in day activities that foster community participation unless his or her individual plan indicates why, based on evaluations and assessments, such participation is medically contraindicated.

(3) The operator shall ensure that individuals have access to a variety of day activities.

(4) Day activities shall not be provided in an intermediate care facility for individuals with intellectual disabilities or within two hundred feet of the intermediate care facility for individuals with intellectual disabilities except that an intermediate care facility for individuals with intellectual disabilities that was providing day activities in or on the grounds of the intermediate care facility for individuals with intellectual disabilities prior to July 1, 2005 may continue to provide day activities at that same location.

(I) Individuals' service records

(1) The following current records for each individual shall be maintained at the residential facility:

(a) A photograph of the individual.

(b) Legal status of the individual.

(c) Individual plan or individual service plan, as applicable, including documentation of informed consent for services, supports, and activities provided.

(d) A signed authorization to seek medical treatment or documentation to demonstrate that attempts to secure such authorization were unsuccessful.

(e) Medication and/or treatment records which indicate the person who prescribed the medication and/or treatment and the date, time, and person who administered the medication and/or treatment.

(2) The following records for each individual shall be maintained by the operator in an accessible location and shall be provided upon request to the department for review at the residential facility or at another location mutually agreed upon by the operator and the department.

(a) Former versions of records specified in paragraphs (I)(1)(a) to (I)(1)(e) of this rule.

(b) Admission and referral records.

(c) All service documentation including notations of progress.

(d) Records of all medical and dental examinations and immunization records as appropriate based upon the individual's age.

(e) Records of major unusual incidents and unusual incidents.

(f) Major unusual incident investigation files.

(g) Reconciliations of the individual's account transaction record as described in rule 5123:2-2-07 of the Administrative Code.

(h) Records of negotiable items owned by the individual which can be transferred or converted to cash (such as bonds or promissory notes).

(i) Records of clothing and personal items for individuals who have been assessed to need assistance with management of personal possessions.

(j) Termination of services summary which shall be prepared within seven calendar days following termination of services pursuant to rule 5123:2-3-05 of the Administrative Code. The termination of services summary shall include the individual's progress during residence and new address of residence. In the event of an individual's death, a termination of services summary shall be completed within thirty calendar days of death and include the disposition of the individual's personal items.

(3) If operation of a residential facility is transferred from one operator to another, the outgoing operator shall convey the records specified in paragraphs (I)(1) and (I)(2) of this rule to the incoming operator.

(4) All information contained in an individual's record shall be considered privileged and confidential. Records shall be maintained in accordance with state and federal regulations in such a manner to ensure their confidentiality and protect them from unauthorized disclosure.

(5) The operator shall develop a records retention schedule for all records in accordance with applicable state and federal requirements.

Replaces: 5123:2-3-09, 5123:2-3-12, 5123:2-3-13, 5123:2-3-24

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.19, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 11/16/1990, 12/09/1991, 05/18/1995, 04/27/2000, 11/20/2000, 09/20/2004, 07/01/2005 (Emer.), 01/01/2006, 03/20/2006

5123:2-3-05 Licensed residential facilities - admission, termination of services, and transfer.

(A) Purpose

This rule establishes uniform policies for admission, termination of services, and transfer of individuals applying for admission to, or individuals living in, residential facilities licensed in accordance with section 5123.19 of the Revised Code.

(B) Definitions

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

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

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

(4) "Emergency" means a situation in which either:

(a) Despite the operator's documented attempts to provide, obtain, and/or coordinate the services necessary to ensure the health and safety of the resident, other residents, and/or staff of the residential facility, there still exists a significant risk of substantial harm to the resident, other residents, or staff that cannot be met in the current environment such that action must be taken immediately; or

(b) Through a level of care determination in accordance with rule 5123:2-8-01 of the Administrative Code or a preadmission screening for developmental disabilities in accordance with rule 5123:2-14-01 of the Administrative Code, the individual is determined to require a level of services provided in another type of setting (e.g., a nursing facility).

(5) "Individual" means a person with a developmental disability or for purposes of giving, refusing to give, or withdrawing consent for services, his or her guardian in accordance with section 5126.043 of the Revised Code or other person authorized to give consent.

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

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

(8) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

(9) "Operator" means the licensee or an entity with which the licensee has established a contract for the management of and provision of services at the residential facility.

(10) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(11) "Termination of services" means an action initiated by the residential facility to permanently move a resident to another residence that is not under the jurisdiction of the operator. Termination of services does not include a temporary absence from an intermediate care facility for individuals with intellectual disabilities described in section 5124.34 of the Revised Code.

(12) "Transfer" means a temporary or permanent movement of a resident between residential facilities under the jurisdiction of the operator.

(C) Admission policies

(1) The operator shall only admit persons as residents whose service needs can be met.

(2) Admission to a residential facility is voluntary, requiring informed consent by the individual.

(3) When reviewing an application for services, the operator shall consider its ability to maintain an adequate level of services to all residents of the residential facility.

(4) The operator shall notify the individual, county board, and referring party in writing of the outcome of the admissions decision within thirty calendar days of receiving an application for services and referral information.

(D) Transfer and termination of services policies

(1) The operator shall allow each resident to remain in the residential facility and shall not transfer a resident from the facility or effect a termination of services unless:

(a) The transfer or termination of services is necessary for the resident's welfare and the resident's needs can no longer be met without imposing an undue hardship on the operation of the residential facility;

(b) The resident no longer needs or wants the services provided by the residential facility or chooses to transfer;

(c) The resident is creating a significant risk of substantial harm to himself or herself, other residents, or staff in the residential facility;

(d) Nonpayment for the stay in the residential facility, including nonpayment of medicaid or other third party payer; or

(e) The residential facility ceases to operate.

(2) An operator shall not unlawfully discriminate because of disability, race, color, religion, national origin or ancestry, sex, or age including but not limited to, failing to make reasonable accommodation to a person's physical, mental, or behavioral support needs to the extent required by law unless the operator can demonstrate that the accommodation would impose an undue hardship on the operation of the residential facility including an unreasonable risk of harm to residents or staff in the residential facility.

(3) Before initiating a transfer or termination of services, the operator shall:

(a) Notify in writing via certified mail, the individual and the county board of the transfer or termination of services. The notice must contain:

(i) The reason for the transfer or termination of services;

(ii) The effective date of the transfer or termination of services;

(iii) A summary of the action taken by the operator, including working with the county board, to try to meet the resident's needs;

(iv) The individual's right to appeal the transfer or termination of services and the process to do so; and

(v) The telephone number and address of disability rights Ohio.

(b) Explain the transfer or termination of services and appeal rights to the individual in a manner the individual understands; and

(c) Record the reasons for the transfer or termination of services in the resident's record.

(4) The notice of transfer or termination of services must be made at least thirty calendar days before the transfer or termination of services, except when an emergency exists. If at any time prior to the expiration of the thirty-day period the operator determines that the conditions that constituted the emergency no longer exist, the subject of the transfer or termination of services may return to the residential facility.

(5) If an individual requests a hearing regarding the transfer or termination of services, the residential facility must maintain services or the availability of services until a decision is rendered after the hearing unless an emergency exists.

(6) If after receiving notice of the transfer or termination of services, the individual waives in writing his or her rights to appeal, the operator is not required to maintain services or the availability of services.

(E) Administrative review process

(1) The individual shall first appeal in writing to the governing board or administrator of the residential facility within seven calendar days of the receipt of the notice of transfer or termination of services.

(2) The governing board or administrator shall review the decision and notify the individual in writing of the outcome of the review within five calendar days of the request for the review. The notice to the individual shall be sent by certified mail and, if the appeal is denied, include the contact information for the director and an explanation in a manner the individual understands that the individual has five calendar days from receipt of the notice of denial of the appeal to appeal to the director.

(3) The individual has five calendar days from receipt of the decision of the governing board or administrator to appeal to the director. The appeal shall be in writing. Upon request, department staff shall assist the individual to understand the appeal process and find resources to help the individual with preparation of the appeal.

(F) Mediation process

(1) The individual and the operator shall attend a mediation meeting to try to attain resolution prior to the scheduled hearing regarding the transfer or termination of services. Legal representation is not permitted in the mediation meeting.

(2) The department will provide the mediator.

(3) The mediation meeting shall be conducted within fifteen calendar days of receipt of the appeal. The hearing shall be conducted within fifteen calendar days of the mediation meeting. Timelines may be extended if mutually agreed upon in writing by all parties.

(4) Unless all parties agree in writing to abide by the recommendations of the mediator, the mediation shall be nonbinding.

(5) Statements made during the mediation process cannot be used as evidence in any subsequent hearings or court proceedings.

(G) Hearing process

(1) The department shall grant an opportunity for a hearing to any individual who has received a transfer or termination of services notice and requests a hearing.

(2) The department shall deny or dismiss a request if:

(a) The request is not filed in a timely manner;

(b) The individual fails to attend a scheduled hearing unless there is good cause for the absence; or

(c) The individual withdraws the request in writing.

(3) The department shall appoint a hearing officer to hear the appeal. The hearing officer shall not be the same person as the mediator in any given case.

(4) The department shall select a time and place for the hearing. The department shall attempt to select a time for the hearing that is mutually agreeable to all parties. If this is not possible, the department reserves the right to schedule the hearing to meet the timelines in accordance with this rule.

(5) The individual and the operator shall have the opportunity to present evidence at the hearing. Both the individual and the operator may have legal representation.

(6) The burden of proof shall be on the operator to show that the transfer or termination of services was in accordance with this rule.

(7) The hearing officer shall review the evidence presented and shall determine if the requirements of this rule have been followed.

(8) The hearing officer shall issue a written recommendation to the director within ten calendar days of the conclusion of the hearing.

(9) The department shall issue a written decision to the parties within five calendar days of receipt of the hearing officer's recommendation, and no later than forty-five calendar days from receiving the request for the hearing.

(10) Timelines may be extended if mutually agreed upon in writing by both parties.

(H) Adverse actions

If an operator fails to follow the requirements of this rule or fails to follow the decision of the department, the operator may be subject to adverse actions in accordance with rule 5123:2-3-06 of the Administrative Code.

(I) This rule is not intended to abridge any right of appeal that a party aggrieved by the decision of the department may have independent of this rule.

Replaces: 5123:2-3-05

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.19, 5123.62, 5123.67, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 02/25/1984, 03/25/1991, 11/02/1996, 07/01/2007

5123:2-3-06 Licensed residential facilities - compliance reviews, issuance of licenses, and adverse actions.

(A) Purpose

This rule sets forth processes for reviews conducted by the department to ensure compliance by residential facilities licensed in accordance with section 5123.19 of the Revised Code, the issuance of licenses for residential facilities operating in accordance with Chapters 5123. and 5124. of the Revised Code, and adverse actions for residential facilities not operating in accordance with Chapters 5123. and 5124. of the Revised Code.

(B) Definitions

(1) "Administrator" means the person responsible for administration of the residential facility who shall be directly and actively involved in the day-to-day operation of the residential facility and oversee provision of services by the residential facility.

(2) "Business day" means a day of the week, excluding Saturday, Sunday, or a legal holiday as defined in section 1.14 of the Revised Code.

(3) "Compliance review" means a review of a residential facility conducted by the department or its designee for the purpose of determining compliance with applicable requirements in order to ensure the health, safety, and welfare of individuals served. The department may, based upon a compliance review, issue a citation and require immediate corrective action when it determines that a violation poses an immediate and substantial risk to the health and safety of residents.

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

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

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

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

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

(9) "License" means written approval by the department to a licensee to operate a residential facility. For purposes of this rule, "license" does not include an interim license issued in accordance with rule 5123:2-3-08 of the Administrative Code.

(10) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

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

(12) "Operator" means the licensee or an entity with which the licensee has established a contract for the management of and provision of services at the residential facility.

(13) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) Frequency and types of compliance reviews

(1) The department shall conduct a compliance review of a residential facility at least once during the term of the license and may conduct additional compliance reviews as determined by the department.

(2) There are three types of compliance reviews:

(a) Routine compliance reviews conducted so that each residential facility is reviewed once during the term of its license.

(b) Abbreviated compliance reviews conducted so that each residential facility is reviewed once during the term of its license for a residential facility that holds accreditation by a national accrediting entity as demonstration that the residential facility is meeting applicable requirements.

(i) A residential facility that is accredited by a national accrediting entity may be eligible for an abbreviated compliance review when the standards of the national accrediting entity:

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

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

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

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

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

(a) Background investigations of the licensee and/or operator and the residential facility's administrator and employees;

(b) Behavioral support strategies;

(c) Medication administration;

(d) Major unusual incidents; and

(e) Community participation and integration.

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

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

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

(a) The residential facility has not yet received a routine compliance review by the department;

(b) The residential facility has had multiple or significant substantiated major unusual incidents since the most recent compliance review by the department or survey/review by the national accrediting entity;

(c) The operator's chief executive officer and/or management team, or the residential facility's administrator, has changed since the most recent compliance review by the department or survey/review by the national accrediting entity; or

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

(c) Special compliance reviews conducted in response to a complaint, a major unusual incident, or any situation where there is reason to believe that the residential facility is not being operated in compliance with Chapters 5123. and 5124. of the Revised Code or rules adopted under those chapters.

(i) Special compliance reviews may be announced or unannounced.

(ii) Upon receipt of a complaint, department staff shall:

(a) Take necessary measures to ensure that any conditions that pose a risk to the health or welfare of the individual have been corrected;

(b) Determine whether a special compliance review shall be conducted;

(c) Determine if the complaint should be referred to law enforcement, a county board, or another unit or entity internal or external to the department in accordance with rule 5123:2-17-01 of the Administrative Code; and

(d) Send a written response to the complainant describing actions taken by the department to address the complaint.

(D) Compliance review procedures

(1) The operator and all persons acting on behalf of, under the control of, or in connection with the operator shall cooperate with the department in conducting compliance reviews. The operator shall give the department access to the residential facility; all records, accounts, and any other documents related to operation of the residential facility; the operator; the individuals residing in the facility; and all persons acting on behalf of, under control of, or in connection with the operator.

(2) Compliance reviews shall be generally conducted at times when the individuals are present in the residential facility.

(3) Compliance reviews shall consist of a series of observations, interviews, and review of records to determine if the interactions, activities, practices, and conditions within the residential facility are consistent with Chapters 5123. and 5124. of the Revised Code and rules adopted under those chapters.

(4) Unless otherwise prohibited by law, at least forty-five calendar days in advance of a routine compliance review or an abbreviated compliance review, the department shall contact the operator to set the date and provide documents relevant to the compliance review.

(E) Compliance review summary, appeal, and plan of correction when no adverse action is being initiated

(1) Following the compliance review and prior to issuing the compliance review summary, the department shall conduct an exit interview with the administrator or his or her designee. During the exit interview, the administrator or his or her designee shall be provided an opportunity to respond and provide information relevant to any potential citations identified by the department. Information not made available to the department by the conclusion of the exit interview may result in the issuance of a citation.

(2) Within seven calendar days following the exit interview, the department shall issue a written compliance review summary to the licensee. The compliance review summary shall be objective in terms of observations and citations and include an explanation of any citations.

(3) Within fourteen calendar days of receipt of a compliance review summary that includes one or more citations, the licensee shall submit a written appeal or written plan of correction for each citation. If the licensee does not submit a written appeal within fourteen calendar days, the compliance review summary shall be final and not subject to appeal by the licensee.

(a) An appeal for a citation shall include the licensee's basis with supporting documentation for challenging the citation. The department shall allow or disallow the appeal within ten calendar days of receipt. If the appeal is allowed, the department shall so notify the licensee. If the appeal is disallowed, the department shall so notify the licensee and advise that the licensee has fourteen calendar days to submit a plan of correction for the citation.

(b) A plan of correction for a citation shall include action steps and timelines for remediation. The department shall approve or disapprove the plan of correction within twenty calendar days of receipt. If the plan of correction is approved, the department shall so notify the licensee and verify that the licensee has implemented the approved plan of correction. If the plan of correction is disapproved, the department shall so notify the licensee and may assist the licensee in submitting an acceptable plan of correction.

(F) Issuance of license

(1) Following routine compliance reviews and abbreviated compliance reviews, the department shall issue a three-year license to the licensee within twenty calendar days of determining that the residential facility is in compliance with all requirements, an approved plan of correction has been implemented, and/or compliance with specific requirements has been waived in accordance with rule 5123:2-3-10 of the Administrative Code; and collection of the licensure fee specified in paragraph (J) of this rule.

(2) A license shall remain valid until its expiration date unless the license is revoked or terminated by the department or voluntarily surrendered by the licensee.

(G) Adverse actions

(1) If the department determines that a residential facility is not being operated in accordance with Chapters 5123. and 5124. of the Revised Code or rules adopted under those chapters, the department may:

(a) Initiate a suspension of admissions

(i) The department may initiate a suspension of admissions when the department:

(a) Determines the residential facility has demonstrated a pattern of serious noncompliance or a violation poses a substantial risk to the health and safety of residents; or

(b) Is ordering placement of a monitor or initiating proceedings to refuse to renew or revoke the license in accordance with, as applicable, paragraph (G)(1)(b), (G)(1)(c), or (G)(1)(d) of this rule.

(ii) When a suspension of admissions is ordered before providing an opportunity for adjudication pursuant to Chapter 119. of the Revised Code, the process set forth in section 5123.19 of the Revised Code shall be followed.

(iii) The department shall send a copy of the order suspending admissions to the county board where the residential facility is located.

(iv) The licensee shall send written notice to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, or the individual's parent or guardian if the individual is a minor, within three business days of notification from the department that a suspension of admissions has been imposed on the facility. The notice shall contain information regarding the reason for suspension of admissions and how the individual, parent, or guardian can obtain additional information regarding the suspension of admissions. The licensee shall send a copy of the notice to the department.

(v) Provided the suspension of admissions is not imposed in conjunction with proceedings to revoke the license, the licensee may submit a plan of correction in accordance with the process set forth in paragraph (E)(3) of this rule.

(vi) The department may lift the suspension of admissions when the department determines that the citation that formed the basis for the order has been corrected.

(b) Order placement of a monitor

(i) The department may order placement of a monitor in a residential facility (i.e., on-site monitoring provided or arranged by the department whenever an individual is in the residential facility and up to twenty-four hours per day) when the department determines the situation requires ongoing oversight to facilitate necessary corrective action.

(ii) The department shall send a copy of the order for placement of a monitor to the county board where the residential facility is located.

(iii) The licensee shall send written notice to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, or the individual's parent or guardian if the individual is a minor, within three business days of notification from the department that a monitor has been placed in the facility. The notice shall contain information regarding the reason for placement of a monitor and how the individual, parent, or guardian can obtain additional information regarding the placement of a monitor. The licensee shall send a copy of the notice to the department.

(c) Initiate proceedings to refuse to renew the license

(i) The department may initiate proceedings to refuse to renew the license of a residential facility upon expiration when the department determines the residential facility has demonstrated a pattern of serious noncompliance or a violation poses a substantial risk to the health and safety of residents.

(ii) If such a determination is made, the department shall send a letter to the licensee by certified mail, return receipt requested. The letter shall list the citations identified during the compliance review that are the basis for refusal to renew the license and include as an attachment, the compliance review summary. The department shall send a copy of the letter to the county board where the residential facility is located and, if the residential facility is an intermediate care facility for individuals with intellectual disabilities, to the Ohio department of health and the Ohio department of medicaid.

(iii) The licensee shall have fourteen calendar days from the date the letter is mailed to submit an appeal or plan of correction for each citation in accordance with the process set forth in paragraph (E)(3) of this rule.

(iv) Within twenty calendar days following an on-site visit to verify that the licensee has implemented the approved plan of correction, the department shall either:

(a) Determine the plan of correction has been satisfactorily implemented and issue a one-year license to the licensee after collection of the licensure fee specified in paragraph (J) of this rule; or

(b) Determine the licensee remains in serious noncompliance or a citation continues to pose a substantial risk to the health and safety of residents and send a letter to the licensee by certified mail, return receipt requested, affirming the department's decision to refuse to renew the license upon expiration and advising that the licensee must cease operation within thirty calendar days of receipt of the letter or the license expiration date, whichever is later. The letter shall inform the licensee of his or her right to request a hearing on the proposed refusal to renew the license pursuant to Chapter 119. of the Revised Code. The licensee shall have thirty calendar days from the date the letter is mailed to request a hearing which, if timely requested, shall be held in accordance with Chapter 119. of the Revised Code.

(v) If the licensee does not request a hearing within thirty calendar days, an adjudication order will be rendered pursuant to Chapter 119. of the Revised Code. The department shall send a copy of the adjudication order to the county board where the residential facility is located and, if the residential facility is an intermediate care facility for individuals with intellectual disabilities, to the Ohio department of health and the Ohio department of medicaid. The department shall arrange for a letter or a copy of the adjudication order to be sent to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, or the individual's parent or guardian if the individual is a minor.

(vi) If the licensee requests a hearing and the hearing process extends beyond the expiration date of the residential facility's license, the license shall continue to be valid for thirty calendar days after the date the department's decision, pursuant to Chapter 119. of the Revised Code, is rendered.

(d) Initiate proceedings to revoke the license

(i) The department may initiate proceedings to revoke the license of a residential facility when the department determines the residential facility has demonstrated a pattern of serious noncompliance or a violation poses a substantial risk to the health and safety of residents.

(ii) If such a determination is made, the department shall send a letter to the licensee by certified mail, return receipt requested. The letter shall list the citations identified during the compliance review that are the basis for revocation of the license and include as an attachment, the compliance review summary. The letter shall inform the licensee of his or her right to request a hearing on the proposed revocation of the license pursuant to Chapter 119. of the Revised Code. The licensee shall have thirty calendar days from the date the letter is mailed to request a hearing which, if timely requested, shall be held in accordance with Chapter 119. of the Revised Code.

(iii) When the department initiates proceedings to revoke the license, the department shall arrange for notification in writing to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, the individual's parent or guardian if the individual is a minor, the county board where the residential facility is located and, if the residential facility is an intermediate care facility for individuals with intellectual disabilities, to the Ohio department of health and the Ohio department of medicaid.

(iv) Once the department initiates proceedings to revoke the license, no opportunity for submitting a plan of correction shall be given.

(v) If the licensee does not request a hearing within thirty calendar days, an adjudication order will be rendered pursuant to Chapter 119. of the Revised Code. The department shall send a copy of the adjudication order to the county board where the residential facility is located and, if the residential facility is an intermediate care facility for individuals with intellectual disabilities, to the Ohio department of health and the Ohio department of medicaid. The department shall arrange for a letter or a copy of the adjudication order to be sent to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, or the individual's parent or guardian if the individual is a minor.

(vi) If the licensee requests a hearing and the hearing process extends beyond the expiration date of the residential facility's license, the license shall continue to be valid for thirty calendar days after the date the department's decision, pursuant Chapter 119. of the Revised Code, is rendered.

(2) In proceedings initiated to refuse to renew or revoke a license, the department may refuse to renew or revoke the license regardless of whether some or all of the citations that prompted the proceedings have been corrected at the time of the hearing.

(H) Termination of license

(1) The department may terminate a license if more than twelve consecutive months have elapsed since the residential facility was last occupied by an individual or when the licensee failed to provide notice of modification in accordance with rule 5123:2-3-08 of the Administrative Code.

(2) If such a determination is made, the department shall send a letter to the licensee by certified mail, return receipt requested. The letter shall explain the basis for termination of the license and inform the licensee of his or her right to request a hearing on the proposed termination of the license pursuant to Chapter 119. of the Revised Code. The licensee shall have thirty calendar days from the date the letter is mailed to request a hearing which, if timely requested, shall be held in accordance with Chapter 119. of the Revised Code.

(I) Effect of refusal to renew, revocation, termination, or voluntary surrender of license

(1) When the department refuses to renew, revokes, or terminates a license or when a licensee voluntarily surrenders a licensee, the licensed beds shall revert to the department.

(2) When the department refuses to renew, revokes, or terminates a license or when a licensee voluntarily surrenders a license and the department determines that the licensed beds are needed to provide services to individuals who resided in the residential facility in which the beds were located, the department may authorize the county board in the county where the residential facility is located to develop a request for proposal for the purpose of recommending a licensee.

(a) The department shall establish and make available the format, procedure, timelines, and criteria for evaluation for the request for proposal process to be used by a county board.

(b) The county board shall solicit proposals from any interested applicants and ensure all interested applicants are afforded an equal opportunity to respond to the request for proposal. Written notice shall be provided to the general public and to all interested licensees as prescribed by the department.

(c) The county board shall submit all proposals and its recommendation to the department within ten calendar days after completing its review of the proposals.

(d) The department shall consider the county board's recommendation and shall notify in writing, the county board and all applicants of its decision within thirty calendar days after receiving the county board's recommendation. The department shall provide each applicant its rationale in selecting or choosing not to select a particular licensee.

(J) Licensure fees

(1) Licensure fees shall be paid in advance of issuance of a license by the department.

(2) Licensure fees are non-refundable.

(3) Licensure fees shall be based on the term of the license and the number of licensed beds at the residential facility.

(a) The licensure fee for a three-year license shall be:

(i) Three hundred dollars for a residential facility with fifteen or fewer beds; and

(ii) One thousand five hundred dollars for a residential facility with sixteen or more beds.

(b) The licensure fee for a one-year license issued in accordance with paragraph (G)(1)(c)(iv)(a) of this rule shall be:

(i) One hundred dollars for a residential facility with fifteen or fewer beds; and

(ii) Five hundred dollars for a residential facility with sixteen or more beds.

Replaces: 5123:2-3-02, 5123:2-3-03, 5123:2-3-20, 5123:2-3-22

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.19, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 08/01/1987, 08/22/1987, 11/16/1990, 12/09/1991, 01/08/1994, 11/02/1986, 01/17/2005, 01/01/2006

5123:2-3-07 [Rescinded] Employment and staffing.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 10/31/1977, 06/12/1981, 10/24/1987, 11/16/1990, 12/09/1991, 05/18/1995, 04/27/2000, 01/01/2006

5123:2-3-08 Licensed residential facilities - development and renovation.

(A) Purpose

This rule establishes uniform standards and procedures governing the development and renovation of residential facilities subject to licensure in accordance with section 5123.19 of the Revised Code.

(B) Definitions

(1) "Adult" means an individual age eighteen and older.

(2) "Applicant" means a person, as defined in section 1.59 of the Revised Code, or government agency submitting a proposal and seeking approval from the department for development of licensed beds.

(3) "Child" means an individual less than age eighteen.

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

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

(6) "Development" means an applicant's plan for the operation of a licensed residential facility including a plan for modification which is subject to approval of the department.

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

(8) "Initial license" means written approval by the department to a licensee to operate a residential facility for a period of one year.

(9) "Interim license" means written approval by the department to a licensee to operate a residential facility for a period not to exceed one hundred eighty calendar days.

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

(11) "Licensed bed" means a bed in a residential facility licensed by the department pursuant to section 5123.19 of the Revised Code.

(12) "Management contractor" means a person, as defined in section 1.59 of the Revised Code, or government agency that controls administrative or management services for a licensee.

(13) "Modification" means:

(a) A change in the identity of the licensee or management contractor of a licensed residential facility;

(b) A significant change in ownership of a licensed residential facility that occurs as the result of an acquisition, sale of a majority interest, merger, or when a family member is added to or removed from a license held by a family-owned business;

(c) A change in the address of some or all of the licensed beds;

(d) An increase or decrease in the number of licensed beds operated at a specific address;

(e) The rebuilding of a licensed residential facility at the same address;

(f) The rebuilding of a licensed residential facility at a different address; or

(g) A change in the type or source of funding of a licensed residential facility.

(14) "Renovation" means a permanent change in the physical structure of a residential facility that results in a change in the use of the facility and/or a change in its floor plan since the most recent issuance of the facility's license.

(15) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) General principles

(1) No person or government agency may apply for a license to operate a residential facility without first obtaining development approval in accordance with this rule.

(2) The department shall not approve a proposal for the development of licensed beds or issue a license under section 5123.19 of the Revised Code if the approval or issuance will cause the number of licensed beds to exceed the number of licensed beds permitted by section 5123.196 of the Revised Code.

(3) A residential facility may continue to operate at the capacity for which it is licensed as of the effective date of this rule.

(4) An applicant who has obtained approval for a development proposal shall be permitted to proceed with development in accordance with the terms of the approval granted by the department.

(5) The number of licensed beds in an intermediate care facility for individuals with intellectual disabilities shall not exceed six unless the department determines, based upon documentation provided by the operator, that the intermediate care facility for individuals with intellectual disabilities requires capacity greater than six to be financially viable, in which case the department may approve a capacity that is not greater than eight.

(6) The number of licensed beds in a residential facility that is not an intermediate care facility for individuals with intellectual disabilities shall not exceed four.

(7) Licensed residential facilities shall not exist on adjoining property sites except that licensed residential facilities operating on adjoining property sites on the effective date of this rule may continue to so operate.

(8) No more than one distinct and separate physical structure may be licensed on the same property site except that licensed residential facilities with more than one distinct and separate physical structure licensed on the same property site on the effective date of this rule may continue to so operate.

(9) Notwithstanding paragraph (C)(7) or (C)(8) of this rule, multiple apartments within an apartment building or complex of apartment buildings on the same property site may be licensed individually when the apartments serve as the best alternative for maximizing community integration.

(10) A county board may not assume ownership of a residential facility.

(D) Feasibility requirements

(1) The licensee shall identify the ages, abilities, and needs of individuals to be served at the residential facility. The interior and exterior of the residential facility shall be configured in a manner so that the residential facility:

(a) Is accessible to residents;

(b) Can accommodate the assessed needs and degree of ability of residents; and

(c) Provides for service delivery that is age-appropriate for residents.

(2) The residential facility shall provide for two means of egress remote from each other for each floor level, except basements which are not used as activity or program areas and are limited to laundry use and storage.

(3) Each building or part of a building and all utilities, sanitary facilities, and appliances shall be designed, constructed, and installed in compliance with applicable rules of the Ohio building code, the Ohio sanitary code, the Ohio fire code, and any county or municipal building, safety, and fire regulations or codes.

(4) The residential facility shall provide for parking spaces, curb cuts, walkways, exit/entry ramps, toilets, showers, tubs, sinks, doorways, and other features that facilitate accessibility.

(5) The residential facility shall provide bathrooms and plumbing fixtures, including grab rails where needed, appropriate for the age and degree of ability of the individuals.

(6) All bathrooms and plumbing fixtures shall be in compliance with applicable state and local regulations, rules, codes, and ordinances.

(7) Only lead-free paints and finishes shall be used in the residential facility.

(8) If the residential facility has an outside play area and serves children six years of age and younger who are ambulatory, the outside play area shall be enclosed by a fence with a height sufficient to prevent egress from the area.

(9) Swimming pools shall meet local and state requirements regarding construction, operation, and sanitation.

(10) If the residential facility has a gas furnace and/or gas water heater, the licensee shall maintain a carbon monoxide detector in accordance with the manufacturer's specifications.

(11) The residential facility's address number shall be clearly visible from the street.

(12) The licensee shall have sufficient rooms, offices, and other space, including storage space, needed by the licensee, administrator, and staff to carry out the functions of the residential facility.

(13) The licensee shall not erect any sign which labels the functions of the residential facility or the individuals who reside therein.

(14) The names of residential facilities and descriptions of the individuals residing in those facilities shall not convey treatment, body parts, illness, disability, or inactivity. A residential facility may not be referred to or use the words "hospital," "nursing home," or "rest home" in its name or letterhead.

(E) Space requirements and usage

(1) Living area

(a) The residential facility shall have a minimum of eighty square feet of living area for each individual.

(b) Living area includes, but is not limited to, living rooms, dining rooms, recreation or family rooms, and portion of kitchen floor space available for individual use.

(c) Living area shall not include bedrooms, bathrooms, laundry rooms, closets, corridors, hallways, garages, and unfinished basements.

(2) Bedrooms

(a) Each bedroom occupied by one individual shall have a minimum of eighty square feet.

(b) Each bedroom occupied by more than one individual shall have a minimum of sixty square feet for each individual.

(c) No bedroom shall be occupied by more than two individuals.

(d) If the bedroom is below the grade level of the residential facility, the room must have two means of egress, one of which may be a window provided the individual using the room can safely evacuate through the window.

(e) Living rooms, dining rooms, entryways, closets, corridors, hallways, outside porches, unfinished attics, and unfinished basements shall not be used as bedrooms.

(f) Each bedroom shall be adequately ventilated and have at least one outside window complete with a window treatment to provide adequate privacy for the individual.

(g) Each bedroom occupied by individuals who are non-ambulatory shall be located on the first floor unless the residential facility has an automatic fire extinguishing system.

(h) Bedrooms shall not be used as throughways to and from other areas of the residential facility.

(3) Kitchen and dining

(a) The residential facility shall have at least one area accessible to individuals used for the preparation and serving of food under sanitary conditions.

(b) Each area used for dining shall have a minimum of fifteen square feet for each individual in the residential facility, not including the area generally recognized as counter and appliance space necessary for the normal preparation of meals.

(4) Bathroom and laundry

(a) The residential facility shall provide for toilet and bathing facilities at a minimum ratio of one to four, appropriate in size and design to meet the needs of the individuals. Toilet and bathing facilities shall be provided on each floor with bedrooms.

(b) The residential facility shall provide for individual privacy in toilets, bathtubs, and showers.

(c) Lavatories and bathing facilities shall be supplied with hot and cold running water maintained at a comfortable level for each individual to prevent injury.

(d) Laundry services shall be accessible to the individuals and adequate to meet their needs.

(F) Standards for reviewing development proposals

In reviewing development proposals, the department shall consider:

(1) The extent to which the development proposal supports integration into the community;

(2) The objective of reducing the number of beds at a single site;

(3) The objective of reducing the number of beds in a single building;

(4) The outcome of prior compliance reviews;

(5) The need for services in the local community;

(6) The need for capital improvements at the residential facility;

(7) For licensed beds in a residential facility that is not an intermediate care facility for individuals with intellectual disabilities, compatibility with home and community-based character set forth by the centers for medicare and medicaid services;

(8) The provider's ability to meet the financial requirements of the development proposal; and

(9) The county board's recommendation regarding the development proposal.

(G) Development proposal process

(1) The applicant shall submit a development proposal to the department in writing prior to the date of the proposed modification. The proposal shall:

(a) Identify the owner of the license to operate the facility, the operator of the facility if different from the owner, the lessor of the facility if any, and any related party as defined in section 5165.01 of the Revised Code to the owner or operator of the facility.

(b) Describe the modification accurately and completely.

(c) Include an explanation when the licensee proposes to make a modification involving:

(i) A change in the address of some or all of the licensed beds;

(ii) An increase or decrease in the number of licensed beds operated at a specific address;

(iii) The rebuilding of a licensed residential facility at the same address;

(iv) The rebuilding of a licensed residential facility at a different address; or

(v) A change in the type or source of funding.

(d) Be submitted no less than sixty calendar days in advance when the licensee proposes to make a modification involving:

(i) A change in the address of some or all of the licensed beds;

(ii) The rebuilding of a licensed residential facility at the same address; or

(iii) The rebuilding of a licensed residential facility at a different address.

(2) The department shall notify the applicant in writing of the approval or disapproval of the development proposal together with a statement of reason within sixty calendar days of receipt of a complete application. The department shall maintain on its website a list of development proposals and action taken thereon.

(3) The department shall establish specific timelines for implementation of a development proposal at the time of development approval.

(a) Failure to meet established timelines may result in withdrawal of development approval.

(b) Revisions or extensions to established timelines require prior written approval by the department.

(4) A person or government agency desiring to operate a residential facility shall, after obtaining development approval pursuant to this rule and establishing the facility, notify the department in writing to request issuance of the initial license no less than thirty calendar days prior to the date of the planned opening of the facility. The department shall issue the initial license to the licensee within twenty calendar days of determining the residential facility is in compliance with all requirements and collection of the licensure fee which shall be based on the number of licensed beds at the residential facility, that is:

(a) One hundred dollars for a residential facility with fifteen or fewer beds; and

(b) Five hundred dollars for a residential facility with sixteen or more beds.

(5) The department may issue an interim license when it determines initiation or continuation of services at the residential facility is appropriate pending completion of the development process (e.g., while a licensee is awaiting certification by the Ohio department of health as an intermediate care facility for individuals with intellectual disabilities).

(6) A person or government agency submitting a development proposal to place a licensed bed on hold for future development shall have three hundred sixty-five calendar days from the date of approval of the development proposal to apply for a license for the residential facility. The application for a license shall be submitted to the department no less than sixty calendar days prior to the date of the planned opening of the facility.

(7) The applicant may appeal the decision of the department regarding a development proposal in accordance with rule 5123:2-17-01 of the Administrative Code.

(H) Renovation proposal process

(1) When the licensee proposes to make a renovation to a residential facility, the licensee shall notify the department in writing no less than thirty calendar days in advance of beginning such renovation.

(2) The licensee shall provide any information required by the department in order for the department to determine whether new inspections and/or a compliance review is required following the renovation.

(3) The department shall provide a written response to the licensee within fourteen calendar days after receiving all the information it needs to determine whether new inspections and/or a licensure compliance review is required following the renovation.

(I) Waiving provisions of this rule

The provisions of this rule may be waived pursuant to rule 5123:2-3-10 of the Administrative Code.

Replaces: 5123:2-3-23, 5123:2-3-26

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.042, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.042, 5123.19, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 09/30/1986 (Emer.), 12/05/1986, 08/01/1987, 08/22/1987, 10/12/1987, 06/16/1988, 02/01/1990 (Emer.), 04/30/1990, 11/16/1990, 10/28/1993, 01/08/1994, 12/05/1996 (Emer.), 03/20/1997, 08/12/2002, 07/22/2004, 01/17/2005, 11/12/2012

5123:2-3-09 Licensed residential facilities - standards for evaluating potential receivers.

(A) Purpose

This rule establishes standards for evaluating potential receivers of residential facilities licensed in accordance with section 5123.19 of the Revised Code.

(B) Definitions

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

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

(3) "Receiver" means a person who takes possession of and operates a residential facility when conditions existing at the residential facility present a substantial risk of physical or mental harm to residents and no other remedies at law are adequate to protect the health, safety, and welfare of the residents.

(4) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) Eligibility to be considered for inclusion on list of potential receivers

A person wishing to be considered for inclusion on a list of potential receivers maintained by the department shall have at least five years of experience as a provider licensed to operate a residential facility in Ohio in accordance with section 5123.19 of the Revised Code.

(D) Standards for evaluating potential receivers

The standards to be considered by the department for evaluating persons to be included on a list of potential receivers shall include, but are not limited to:

(1) Substantial compliance with requirements for previous or existing residential facilities operated by the potential receiver over the past five years under any corporate name.

(2) Involvement of one or more key employees of the potential receiver in prior licensure revocation, receivership, immediate removal, or suspension of admissions.

(3) Fiscal solvency of the potential receiver.

(4) Pending and prior investigations of major unusual incidents within the past five years, which includes the scope and nature of the incidents, the analysis, and any findings involving individuals being served by the potential receiver.

(5) The experience of the potential receiver in the provision of services to individuals with developmental disabilities including, but not limited to:

(a) Characteristics of individuals served;

(b) Geographic areas served;

(c) Number of individuals served;

(d) Specialized services offered; and

(e) A table of organization that identifies key employees or positions and their qualifications.

Replaces: 5123:2-19-01

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.191
Rule Amplifies: 5123.04, 5123.191
Prior Effective Dates: 08/01/1987, 09/20/2001, 07/01/2007

5123:2-3-10 Licensed residential facilities - procedures to waive rule requirements.

(A) Purpose

This rule sets forth procedures for a licensee to request and the department to consider waiving a condition or specific requirement of a rule in Chapter 5123:2-3 of the Administrative Code or a rule in other chapters of the Administrative Code adopted by the department to license or regulate the operation of residential facilities.

(B) Definitions

(1) "Business day" means a day of the week, excluding Saturday, Sunday, or a legal holiday as defined in section 1.14 of the Revised Code.

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

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

(4) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

(5) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) Procedures

(1) For adequate reasons and when requested in writing by a licensee, the director may waive a condition or specific requirement of a rule in Chapter 5123:2-3 of the Administrative Code or a rule in other chapters of the Administrative Code adopted by the department to license or regulate the operation of residential facilities.

(2) The director may require or solicit input regarding the licensee's request for a rule waiver from individuals living in the residential facility, the individuals' guardians, or the county board of developmental disabilities for the county in which the residential facility is located.

(3) The director shall grant or deny a request for a rule waiver within ten business days of receipt of the request or within such longer period of time as the director deems necessary and may put whatever conditions on the rule waiver as are determined to be necessary.

(4) Approval to waive a condition or specific requirement shall not be contrary to the rights, health, or safety of the individuals living in the residential facility.

(5) The decision to grant or deny a rule waiver is final and may not be appealed.

Replaces: 5123:2-3-15

Effective: 10/1/2016
Five Year Review (FYR) Dates: 10/01/2021
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.19, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 11/16/1990, 04/27/2000, 11/12/2012

5123:2-3-11 [Rescinded] Fire safety and emergency response plans.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 10/31/1977, 06/12/1981, 11/14/1985 (Emer.), 05/05/1986, 08/31/1986, 10/12/1987, 11/16/1990, 12/09/1991, 05/18/1995, 04/27/2000, 01/01/2006

5123:2-3-12 [Rescinded] Food, clothing, and personal items.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 10/31/1977, 06/12/1981, 11/16/1990, 12/09/1991, 05/18/1995, 04/27/2000, 01/01/2006

5123:2-3-13 [Rescinded] Individual records.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 11/16/1990, 12/09/1991, 05/18/1995, 04/27/2000, 01/01/2006

5123:2-3-14 [Rescinded] Personal funds of the individual.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19, 5123.62
Prior Effective Dates: 05/18/1995, 04/27/2000, 01/01/2006

5123:2-3-15 [Rescinded] Procedures to waive licensure rule requirements.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 10/31/1977, 06/12/1981, 11/16/1990, 04/27/2000, 11/12/2012

5123:2-3-16 Emergency removal of individuals from a residential facility.

(A) The purpose of this rule is to ensure the health, safety, and welfare of individuals residing in a residential facility licensed under section 5123.19 of the Revised Code by establishing a process by which the director or his/her designee may order the emergency removal of an individual(s) being served in a residential facility.

(B) Where all other available interventions have proved ineffective or not feasible, the director or his/her designee may order the immediate removal of an individual(s) from a residential facility whenever conditions at the facility present an immediate danger of physical or psychological harm to an individual(s).

(C) The removal of an individual(s) under the provisions of this rule may only be implemented with the written consent of the individual(s) or parent(s) of a minor child or guardian(s), as applicable.

(D) When conditions at a residential facility present an immediate danger of physical or psychological harm and the individual(s) or parent(s) of a minor child or guardian(s), as applicable, do not give consent for the removal, the process for removing the individual must be done in accordance with sections 5126.30 to 5126.333 of the Revised Code.

(E) Upon receipt of allegations that the physical or psychological health or safety of an individual(s) is in danger, the county board shall determine if the situation is one of immediate danger. The department, at its own discretion, may also investigate such situations.

(F) When an allegation, as described in paragraph (E) of this rule, is received by the county board, the county board shall file a major unusual incident report with the department and conduct an investigation to establish the validity of the alleged facts in accordance with the procedures outlined in rule 5123:2-17-02 of the Administrative Code.

(G) During the interview and/or investigation process, the county board shall explain the nature of the situation and all known potential outcomes to the individual(s) or parent(s) of a minor child or guardian(s), as applicable, in a manner reasonably expected to be understood.

(H) If a determination is made that the situation is one of immediate danger, the county board shall contact the director or his/her designee with a request to remove the individual(s). The request shall include a description of the incident(s) and/or circumstances which led to the conditions at the facility presenting the immediate danger of physical or psychological harm to the individual(s). The county board shall submit the request to remove and description of the incident(s) and/or circumstances which led to the conditions at the facility presenting the immediate danger of physical or psychological harm to the individual(s) in writing to the director within twenty-four hours of the county board's contact with the director or his/her designee.

(I) The director or his/her designee shall determine whether the individual(s) shall be removed from the residential facility based upon information received from the county board, the department, and any other sources including the licensee if, in the opinion of the director, such communication with the licensee does not threaten the health or safety of the individual(s) and shall inform the county board of that determination. The director or his/her designee shall notify the ombudsman section of Ohio legal rights service in accordance with section 5123.604 of the Revised Code of any action being considered pursuant to this rule. The director or his/her designee shall notify the licensee of any action being taken to remove the individual(s) if, in the opinion of the director or his/her designee, the act of notification does not threaten the health and safety of the individual(s).

(J) The county board shall be responsible for removing the individual(s) and for arranging transportation, placement, and services in the least restrictive alternative available. The county board shall ensure implementation of all components of the individual's plan and compliance with all provisions of state and federal regulations related to the individual's eligibility for services and service delivery. The department will assist in facilitating placements of individuals into the least restrictive alternative available.

(K) The county board may arrange for or provide services to an individual(s) removed under the provisions of this rule for up to sixty days without soliciting proposals as required in rule 5123:2-16-01 of the Administrative Code. During this sixty day period, the county board shall be required to solicit proposals for service provision in accordance with rule 5123:2-16-01 of the Administrative Code.

(L) When written consent for the removal has been obtained, the county board shall attempt to notify the parent of a minor child or guardian of the individual, as appropriate, prior to the actual removal of an individual. If such notice is not made prior to the actual removal, it shall be made as soon as practicable after the removal.

(M) The department may initiate the revocation of the facility's license under rule 5123:2-3-02 of the Administrative Code when an individual(s) has been removed pursuant to this rule. When determining whether a license should be revoked in accordance with this rule, the department shall consider the following factors which include, but are not limited to:

(1) The overall health, safety, and welfare of the individuals residing in the residential facility;

(2) Any negligence on the part of the licensee which contributed to or caused the emergency removal;

(3) Historical, documented, and substantial non-compliance with licensure rules and regulations of the residential facility in question.

(N) The director or his/her designee, upon receipt of written information from the county board or any other reliable source indicating that the circumstances which led to the emergency removal no longer exist, and with the consent of the individual or parent of a minor child or guardian, as applicable, may permit the individual to return to the residential facility.

(O) The director or his/her designee shall notify the county board and the ombudsman section of Ohio legal rights service when an individual(s) returns to the facility following an emergency removal.

(P) When the licensee is the county board or when there are circumstances that are determined by the department to potentially present a conflict of incentives, the department may conduct the investigation outlined in this rule, or may request that an investigation be conducted by another county board, a council of governments, or any other entity authorized to conduct such investigations.

(Q) Notwithstanding the provisions of this rule, the licensee may initiate the discharge of an individual in accordance with the provisions of rule 5123:2-3-05 of the Administrative Code.

(R) The licensee shall not fill the vacancy created by the emergency removal of the individual until it has transferred or discharged the individual in accordance with rule 5123:2-3-05 of the Administrative Code.

Replaces: Former 5123:2-1-13

Effective: 07/01/2007
R.C. 119.032 review dates: 11/14/2006 and 07/01/2012
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 12/09/1988, 09/20/2001

5123:2-3-17 [Rescinded] Individual plan (IP).

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 10/31/1977, 06/12/1981, 11/16/1990, 12/09/1991, 05/18/1995

5123:2-3-18 Calculation of room and board payment for an individual residing in a residential facility.

(A) Purpose

The purpose of this rule is to identify components of room and board and to establish standards and procedures for determining the amount of retained earned and unearned income of an individual and the amount of room and board payment for which an individual is responsible when residing in a residential facility licensed under section 5123.19 of the Revised Code other than an intermediate care facility for the mentally retarded (ICF/MR) certified under Title XIX of the "Social Security Act," 42 U.S.C. 1396 et seq., as amended.

(B) Definitions

(1) "Earned income" has the same meaning as in rule 5101:1-39-15 of the Administrative Code.

(2) "Patient liability" has the same meaning as in rule 5101:1-39-24 of the Administrative Code.

(3) "Room and board" means the following items, costs, and/or expenses, which are not reimbursable through medicaid, that are allowable expenses incurred by the licensee in order to provide needed supports and services to an individual residing in a licensed facility. The total amount of monthly room and board cost attributable to each individual shall be based upon available resources of the county board, shall be identified in a written contract between the licensee and the county board, and shall be available for review by the department. The room and board amount shall be reviewed at least annually and amended as necessary. Room and board includes the provider's actual and reasonable cost of administration related to property management and the purchasing of goods and services.

(a) Supplies and household goods including:

(i) Non-food supplies and minor equipment used in the storage, preparation, serving, and delivery of food such as dishes, dish washing detergent, cooking utensils, silverware, wraps and containers to preserve food, and propane gas for grills.

(ii) Adaptive minor equipment as identified in an individual plan (IP), routine medical supplies including, but not limited to, first aid supplies, support stockings, lubricating jellies, enema administering apparatus and enemas, and over-the-counter medications.

(iii) Supplies required for the protection of individuals and staff while performing procedures that involve potential contact with bodily fluids including, but not limited to, gloves, gowns, goggles, and eye wash.

(iv) Non-medicaid covered expenses including, but not limited to, prescriptions, dental services, laboratory services, vision services, eyeglasses, ambulance and emergency services, hearing aids, respiratory therapy, oxygen, and incontinence supplies.

(v) Medical equipment not covered under medicaid or another payer including, but not limited to, wheelchairs, prosthetics, orthotics, enteral pumps, bed cradles, headgear, heat cradles, hernial appliances, splints, traction equipment, specialized mattresses and cushions, tracheotomy care sets, catheters, atomizers, nebulizers, tube feeding sets and supplies, hypodermic needles, and syringes.

(vi) Supplies needed to implement IPs and/or to assist in the performance and/or acquisition or maintenance of habilitation skills such as personal hygiene supplies. Examples include, but are not limited to, hair and nail care items, lotions, powder, dental hygiene supplies, shaving items, and the cost of haircuts.

(vii) Household supplies including, but not limited to, trash cans and bags, general household cleaning supplies, paper products, towels, bedding, laundry detergent, and minor equipment used for laundry and housekeeping.

(viii) Contracted janitorial and household cleaning and laundry services.

(ix) The cost of recreational and/or social activities (e.g., admission ticket and travel) for an individual and for staff, as specified in the IP, necessary to accompany the individual to recreational and/or social activities.

(b) Utilities including fuel oil, natural and propane gas, metered electrical services, water and sewage expenses, local and long distance telephone service and equipment purchased or leased which is available for use by residents, the cost of security services provided for the benefit of residents, and the cost of local television reception provided for the benefit of residents.

(c) Food including all raw, prepackaged, and prepared food (meals and/or snack items) eaten inside or outside the home (e.g., at restaurants) by the residents and like expenses for staff if consumed while providing supervision or services to the residents, and nutritional supplements, additives, and vitamins as identified in the IP.

(d) Housing including:

(i) Rental or lease costs (from non-related parties) for building and land, building depreciation (excluding the value of the land) using the straight line method of depreciation over forty years and interest expense as incurred, real property taxes, and insurance on content and property. Includes housing cost from related parties limited to the related parties' actual cost or fair market value, whichever is less. Excludes amortization expense, over the life of state property grants received by the provider for renovations.

(ii) Supplies for repair and maintenance of the home and lawn/yard and repair cost to the home's minor equipment or structure. Includes maintenance contracts for snow removal, lawn care, pest control, and carpet cleaning. Includes purchased services and personnel expenses, supplies, and equipment for personnel who perform maintenance or building repair and trash removal services, or for employees of the licensee performing maintenance duties.

(iii) Depreciation and current interest expense of facility equipment, furniture, and other furnishings that meet the provider's capitalization policy, using the straight line method of depreciation for all equipment, furniture, and furnishings. Guidelines established by the internal revenue service (IRS) shall be used to determine the number of years of useful life of the asset to be depreciated. Includes, but is not limited to, dietary equipment such as ranges, ovens, dishwashers, refrigerators, and food processors and household furnishings including, but not limited to, vacuum cleaners and lawn/yard care equipment.

(iv) Lease or rental of any item of facility equipment, furniture, and other furnishings and/or the cost of all furniture and equipment under the capitalization policy of the provider.

(v) Major maintenance to the facility to improve and/or maintain the structural integrity of the facility, and to maintain a safe and healthy living environment. Examples include, but are not limited to, roof replacement, repairs to the foundation, interior and exterior walls, floors, replacement/repair of electrical, heating and cooling, plumbing, septic and sewer systems, additions and/or renovations to the home that benefit the residents of the home. The straight line method of depreciation shall be used for depreciating all improvements. Improvements shall be depreciated over a period not less than the remaining useful life of the property and not more than the useful life of the improvement as determined by the IRS. Includes interest expense if funds were borrowed to complete the work.

(e) Clothing items for each resident residing in the facility.

(4) "Unearned income" has the same meaning as in rule 5101:1-39-16 of the Administrative Code.

(C) General provisions

(1) Items identified as room and board shall meet the requirements specified in Chapter 5123:2-3 of the Administrative Code.

(2) For the purpose of this rule, earned and unearned income shall be considered in the month it is received by the licensee.

(3) Each individual shall retain a minimum of seventy-five dollars per month from the total of any unearned source of income. Unearned income includes, but is not limited to, supplemental security income, social security disability income, railroad retirement, veteran's benefits, and trusts. Food stamps shall be included as unearned income but shall not be applied toward the minimum income to be retained by the individual.

(4) The amount of earned income to be retained by the individual shall equal, at a minimum, the first one hundred dollars of the net earned income received per month by the individual, plus one-half of any earned income in excess of one hundred dollars per month.

(5) Any one-time payment or reconciliation of earned or unearned income that exceeds the individual's regular monthly earned or unearned income may be applied to past months, not to exceed six months, for room and board payments, including payments made by county boards in accordance with paragraph (D)(3) of this rule. Examples of one-time payments include, but are not limited to, social security back payments, tax refunds, and estate or inheritance income. The specific criteria for such payments shall be contained in the contract between the licensee and the county board. The individual shall not be assessed for future room and board costs as a result of receiving a one-time payment or reconciliation.

(D) Responsibilities of the county board

(1) A county board and licensee shall provide sufficient information to each other in order to determine reasonable and appropriate room and board expenses. Unusual or atypical room and board expenses, resources, and responsible entities shall be identified in the individual's plan.

(2) The county board shall identify assets of the individual, resources, and alternatives to pay for or otherwise provide services required by the individual to meet room and board expenses incurred.

(3) When an individual receives no earned or unearned income in a month, the county board shall be responsible to provide the individual with a minimum monthly allowance of seventy-five dollars.

(4) The county board is responsible for paying the licensee the amount owed to the licensee for room and board based on the contract established in accordance with paragraph

(B)

(3) of this rule, adjusted for earned and unearned income of the individual as calculated in accordance with paragraph (E)(2) of this rule.

(E) Responsibilities of the licensee

(1) A licensee and county board shall provide sufficient information to each other in order to determine reasonable and appropriate room and board expenses. Unusual or atypical room and board expenses, resources, and responsible entities shall be identified in the individual's plan.

(2) The licensee is responsible for calculating and documenting the sum of the individual's earned and unearned income available for room and board as determined in accordance with paragraph (C) of this rule and shall compare it to the room and board amount identified in the contract.

(a) If the amount of the individual's earned and unearned income available for room and board following any deductions for patient liability is less than the contracted room and board cost for the month, the entire amount of the individual's earned and unearned income available for room and board shall be paid to the licensee. The balance of the room and board cost shall be billed to the county board by the licensee in accordance with the contract.

(b) If the amount of the individual's earned and unearned income available for room and board following any deductions for patient liability is greater than the contracted room and board cost for the month, the individual shall pay the entire cost of the room and board to the licensee. Any earned and unearned income received by the individual in excess of the amount paid for room and board for the month shall be retained by the individual and shall be documented in accordance with rule 5123:2-3-14 of the Administrative Code.

(c) Patient liability shall not be deducted from the individual's personal allowance and earned income retained by the individual, but shall be deducted from the earned and unearned income available to pay the licensee for the room and board cost.

(F) Responsibilities of the individual, guardian, and/or payee

(1) The individual, guardian, or payee of the individual, as applicable, is responsible for providing the licensee and/or county board with the information pertaining to the individual's earned and unearned income in order to determine the individual's obligation to pay for room and board.

(2) The individual, guardian, or payee of the individual, as applicable, is responsible for paying the licensee the amount owed to the licensee for room and board as determined in paragraph (E)(2) of this rule in a timely manner.

(G) For individuals residing in a non-ICF/MR licensed facility who are not receiving waiver services, the amount of room and board cost attributable to each individual shall be identified in a written contract between the licensee and the individual or parent, guardian, or payee, as applicable, and shall be determined as prescribed in paragraphs (E) and (F) of this rule.

Replaces: 5123:2-3-18

Effective: 07/01/2008
R.C. 119.032 review dates: 07/01/2013
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 09/20/2001

5123:2-3-19 [Rescinded] Licensed providers of waiver services.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5111.871, 5123.04, 5123.045, 5123.19
Rule Amplifies: 5111.871, 5123.04, 5123.045, 5123.19
Prior Effective Dates: 04/28/2003, 10/01/2009

5123:2-3-20 [Rescinded] Receipt, investigation, and disposition of complaints.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 01/17/2005

5123:2-3-21 [Rescinded] Public notification program of adverse action taken by the department.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 01/17/2005

5123:2-3-22 [Rescinded] Licensing fees for residential facilities.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 01/17/2005

5123:2-3-23 [Rescinded] Issuance of interim licenses.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 08/01/1987, 08/22/1987, 11/16/1990, 01/08/1994, 01/17/2005

5123:2-3-24 [Rescinded] Participation of individuals in day activities.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19, 5123.67
Prior Effective Dates: 07/01/2005 (Emer.), 03/20/2006

5123:2-3-25 [Rescinded] Discipline, restraint, behavior modification, and abuse of residents.

Effective: 1/1/2015
Five Year Review (FYR) Dates: 08/18/2014
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19
Rule Amplifies: 5123.04, 5123.19
Prior Effective Dates: 10/31/1977, 09/30/1983

5123:2-3-26 [Rescinded] Development of licensed residential beds.

Effective: 10/1/2016
Five Year Review (FYR) Dates: 11/06/2015
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.042, 5123.19
Rule Amplifies: 5123.04, 5123.042, 5123.19, 5123.196
Prior Effective Dates: 09/30/1986 (Emer.), 12/05/1986, 08/22/1987, 10/12/1987, 06/16/1988, 02/01/1990 (Emer.), 04/30/1990, 10/28/1993, 12/05/1996 (Emer.), 03/20/1997, 08/12/2002, 07/22/2004, 11/12/2012

5123:2-3-38 Significant change of ownership. [Rescinded].

Rescinded eff 7-22-04