Chapter 5160-44 Nursing Facility-Based Level of Care Home and Community-Based Services Programs

5160-44-01 Nursing facility-based level of care home and community-based services programs: home and community-based settings.

(A) Individuals receiving home and community-based services (HCBS) through either an Ohio department of medicaid (ODM) or Ohio department of aging (ODA) -administered waiver program authorized under section 1915(c) of the Social Security Act (as in effect on January 1, 2016) or the Ohio medicaid state plan authorized under section 1915(i) of the Social Security Act (as in effect on January 1, 2016) must reside in and/or receive HCBS in a private residence or another setting that meets the home and community-based setting requirements set forth in this rule.

(1) A private residence is presumed to be a home and community-based setting provided it meets the requirements set forth in paragraph (B) of this rule. For the purposes of this rule, provider owned or controlled settings are not private residences.

(2) Home and community-based settings do not include any of the following:

(a) A nursing facility;

(b) An insititution for mental diseases;

(c) An intermediate care facility for individuals with intellectual disabilities;

(d) A hospital; or

(e) Any other locations as determined by the ODM or its designee.

(B) Home and community-based settings must have all of the following characteristics, and such other characteristics as the secretary of the U.S. department of health and human services determines to be appropriate, based on the needs of the individual as indicated in their person-centered services plan:

(1) The setting is integrated in and supports full access of individuals receiving medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources and receive services in the community, to the same degree of access as individuals not receiving services through the ODM or ODA-administered waiver programs authorized under section 1915(c) of the Social Security Act (as in effect on January 1, 2016) or Ohio medicaid state plan authorized under section 1915(i) of the Social Security Act (as in effect on January 1, 2016).

(2) The setting is selected by the individual from among setting options, including non-disability specific settings and an option for a private unit in a residential setting.

(a) The setting options are identified and documented in the person-centered services plan and are based on the individual's needs, preferences, and for residential settings, resources available for room and board.

(b) For the purposes of this rule, non-disability specific setting means a home and community-based setting that is not limited to same or similar types of disabilities, or any disabilities at all.

(3) The setting ensures an individual's rights of privacy, dignity and respect, and freedom from coercion and restraint.

(4) The setting optimizes, but does not regiment, individual initiative, autonomy and independence in making life choices, including but not limited to, daily activities, physical environment and with whom to interact.

(5) The setting facilitates individual choice regarding services and supports, and who provides them.

(C) In addition to the characteristics set forth in paragraph (B) of this rule, in a provider-owned or controlled residential setting, the following additional conditions must be met, consistent with the individual's approved person-centered services plan.

(1) The individual's unit or dwelling is a specific physical place that can be rented or occupied under either:

(a) A legally enforceable agreement between the individual receiving services, and the owner of the dwelling pursuant to Chapter 5321. of the Revised Code.

(b) For settings in which Chapter 5321. of the Revised Code does not apply, a lease, residency agreement or other legally enforceable agreement in effect for the individual which provides protections that address eviction processes and appeals comparable to those provided under Chapter 5321. and Chapter 1923. of the Revised Code. The agreement must:

(i) Specify the responsibilities of the individual and the home and community-based setting;

(ii) Specify the circumstances under which the individual would be required to relocate, resulting in the termination of the agreement;

(iii) Address the steps an individual must follow in order to request a review and/or appeal of the relocation that results in termination of the agreement; and

(iv) Permit the additional conditions set forth in paragraphs (C)(2) to (C)(5) of this rule unless modified in the individual's person-centered services plan.

(2) The individual has privacy in his or her sleeping or living unit including all of the following:

(a) The setting and unit have entrance doors lockable by the individual, with only appropriate staff having keys; and

(b) An individual sharing a unit has a choice of roommates in that setting.

(3) The individual has the freedom to furnish and decorate his or her sleeping or living unit within the lease or legally enforceable agreement.

(4) The individual has the freedom and support to control his or her own schedule and activities, and has access to food at any time.

(5) The individual is able to have visitors of his or her choosing at any time.

(6) The setting is physically accessible to the individual.

(D) Any modification of the additional conditions set forth in paragraphs (C)(1) to (C)(5) of this rule must be supported by a specific assessed need and justified in the individual's person-centered services plan in accordance with rule 5160-44-02 of the Administrative Code. The condition in paragraph (C)(6) of this rule cannot be modified in any way.

Effective: 7/1/2016
Five Year Review (FYR) Dates: 07/01/2021
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02

5160-44-02 Nursing facility-based level of care home and community-based services programs: person-centered planning.

(A) Person-centered planning process.

Individuals receiving home and community-based services (HCBS) through either an Ohio department of medicaid (ODM) or Ohio department of aging (ODA) -administered waiver program authorized under section 1915(c) of the Social Security Act (as in effect on January 1, 2016) or the Ohio medicaid state plan authorized under section 1915(i) of the Social Security Act (as in effect on January 1, 2016) will lead the person-centered planning process where possible. The individual's authorized representative should have a participatory role, as needed, and as defined by the individual, unless Ohio law confers decision-making authority to the legal representative. All references to individuals include the role of the individual's authorized representative. In addition to being led by the individual receiving services and supports, the person-centered planning process shall:

(1) Include a team of people chosen by the individual.

(2) Provide necessary information and support to ensure that the individual directs the process to the maximum extent possible, and is enabled to make informed choices and decisions.

(3) Be timely and occur at times and locations of convenience to the individual.

(4) Reflect cultural considerations of the individual. The process shall be conducted by providing information in plain language and in a manner that is accessible to persons with disabilities and persons who are limited English proficient, consistent with 42 CFR 435.905(b) (as in effect October 1, 2015).

(5) Include strategies for solving conflict or disagreement within the process.

(6) Ensure that providers of HCBS for the individual, or those who have an interest in or are employed by a provider of HCBS for the individual must not provide case management, provider oversight, or develop the person-centered services plan.

(7) Offer informed choices to the individual regarding the services and supports he or she receives and from whom.

(8) Include a method for the individual to request updates to the plan as needed.

The individual may request a person-centered services plan review at any time.

(B) Person-centered services plan.

(1) The person-centered services plan describes the person-centered goals, objectives and interventions selected by the individual and team to support him or her in his or her community of choice. The plan addresses the assessed needs of the individual by identifying medically-necessary services and supports provided by natural supports, medical and professional staff and community resources. The plan must:

(a) Identify the setting in which the individual resides is chosen by the individual and record the alternative home and community-based settings that were considered by the individual.

(b) Reflect the individual's strengths.

(c) Reflect the individual's preferences.

(d) Reflect clinical and support needs as identified through the assessment process.

(e) Include the individual's identified goals and desired outcomes.

(f) Identify the services and supports (paid and unpaid) that will assist the individual to achieve identified goals, and the providers of those services and supports, including natural supports and those services the individual elects to self-direct.

(g) Address any risk factors and measures in place to minimize them, when needed.

(h) Include back-up plans that meet the needs of the individual.

(i) Reflect that the setting chosen by the individual is integrated in, and supports the full access of individuals receiving medicaid HCBS to the greater community, including opportunities to seek employment and work in competitive integrated settings, engage in community life, control personal resources and receive services in the community to the same degree of access as people not receiving medicaid HCBS.

(2) The person-centered services plan contains documentation that any modification of the additional conditions for provider-owned or controlled residential settings set forth in rule 5160-44-01 of the Administrative Code must be supported by a specific assessed need and justified in the person-centered services plan. The following requirements must be documented in the person-centered services plan:

(a) Identify a specific and individualized assessed need;

(b) Document the positive interventions and supports used prior to any modifications to the person-centered services plan;

(c) Document less intrusive methods of meeting the need that have been tried but did not work;

(d) Include a clear description of the condition that is directly proportionate to the specific assessed need;

(e) Include a regular collection and review of data to measure the ongoing effectiveness of the modification;

(f) Include established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;

(g) Include informed consent of the individual; and

(h) Include an assurance that interventions and supports will not cause any harm to the individual.

(3) The person-centered services plan must:

(a) Be understandable to the individual receiving services and supports, and the people important in supporting him or her. At a minimum, it must be written in plain language and in a manner that is accessible to persons with disabilities and persons who are limited english proficient, consistent with 42 CFR 435.905(b) (as in effect on October 1, 2015).

(b) Identify the person and/or entity responsible for monitoring the plan.

(c) Be finalized and agreed to, with the informed consent of the individual in writing, and signed by all people and providers responsible for its implementation. Acceptable signatures include, but are not limited to a handwritten signature, initials, a stamp or mark, or an electronic signature. Any accommodations to the individual's or authorized representative's signature shall be documented on the plan.

(d) Be distributed to the individual and other people involved in the plan.

(e) Prevent the provision of unnecessary or inappropriate services and supports.

(f) Be reviewed, and revised upon reassessment of functional need as required by 42 CFR 441.365(e) (as in effect on October 1, 2015), at least every twelve months, when the individual experiences a significant change, or at the request of the individual.

Effective: 7/1/2016
Five Year Review (FYR) Dates: 07/01/2021
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02