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

5160-44-11 Nursing facility-based level of care home and community-based services programs: home delivered meals.

(A) The following definitions are applicable to this rule:

(1) "Dietitian" and "licensed dietitian" mean a person with a current, valid license to practice dietetics under section 4759.06 of the Revised Code.

(2) "Home delivered meals" is a meal delivery service based on an individual's need for assistance with activities of daily living (ADLs) and/or instrumental activities of daily living (IADLs) in order to safely prepare meals, or ensure meals are prepared to meet the individual's dietary needs or specialized nutritional needs, including kosher meals, as ordered by a licensed healthcare professional within his or her scope of practice.

(3) "Special diet" means a diet ordered by a licensed healthcare professional whose scope of practice includes ordering special diets based upon, and adjusted to, the individual's assessed needs. A special diet is limited to:

(a) Nutrient adjusted diets, including high protein, no added salt and no concentrated sweets;

(b) Volume adjusted diets, including small, medium and large portions;

(c) The use of finger foods or bite-sized pieces for an individual's physical needs; or

(d) Mechanically altered food (i.e., the texture of food is altered by chopping, grinding, mashing or pureeing so that it can be successfully chewed and safely swallowed).

(4) "Therapeutic diet" means a diet ordered by a licensed healthcare professional whose scope of practice includes ordering therapeutic diets, including:

(a) As part of the treatment for a disease or clinical condition;

(b) To modify, eliminate, decrease or increase certain substances in the diet; or.

(c) To provide mechanically altered food when indicated.

(B) Meal specifications.

(1) Meals are single portions that are:

(a) Ready to eat; or

(b) Frozen, vacuum-packed, modified-atmosphere-packed or shelf-stable.

(2) Each meal shall:

(a) Include clear instructions on how to safely maintain, heat, reheat and/or assemble the meal.

(b) Adhere to the current "Dietary Guidelines for Americans" (www.health.gov/dietaryguidelines/).

(c) Provide at least thirty-three per cent of the dietary reference intakes;

(d) Meet state and local food safety and sanitation requirements; and

(e) Adhere to the individual's medical restrictions as set forth in their person-centered services plan.

(3) Meal menus shall be approved in writing by a dietitian who is currently registered with the commission on dietetic registration, and who is also a licensed dietitian when the state in which the dietitian is located licenses dietitians.

(a) Providers shall furnish each individual with home delivered meals that, as much as possible, accommodate the individual's religious, cultural, ethnic, and dietary preferences, including kosher meals.

(b) Providers shall publish their current menu and ingredient information on their websites and offer written menus and ingredient information to individuals.

(4) Meal delivery shall be specified in the person-centered services plan. The plan shall include the type and amount of meals to be furnished, as well as the frequency.

(a) Up to two meals per day may be provided.

(b) Planned multiple meal delivery shall not exceed fourteen meals that are compliant with food storage and safety requirements.

(c) For the purposes of this rule, method of delivery verification shall include:

(i) The individual's, his or her authorized representative's or other designee's signature upon delivery; or

(ii) The delivery driver's attestation that delivery occurred. Nothing shall prohibit the provider from using an electronic system to verify delivery.

(d) If a provider uses a common carrier to deliver meals, the provider shall verify the success of the delivery by using the method in paragraph (B) (4)(c) of this rule or by retaining the common carrier's tracking statement or returned postage-paid delivery invoice.

(e) The provider shall replace any item lost or stolen between the time of delivery and receipt by the individual at no cost to the individual, the Ohio department of medicaid (ODM), the Ohio department of aging (ODA) or their designee.

(5) Additional back up meals may be authorized at the discretion of ODM, ODA or their designee.

(C) Limitations.

(1) Meals shall not be:

(a) Processed, frozen, pre-packed and commercially available to the general public for purchase; or

(b) Provided in order to supplant or replace the purchase of food or groceries for others.

(2) A provider may deliver specifically identified items that are packaged in larger than single servings, in compliance with paragraph (B)(4) of this rule.

(3) The type of meal and frequency of delivery shall not be for provider convenience.

(D) Provider qualifications.

(1) A provider of home delivered meals shall provide and maintain evidence of:

(a) A current, valid food operations or other applicable license or certificate as required by licensing or regulatory agencies where the meal is produced.

(b) Good standing with all applicable federal, state and local regulatory agencies; and

(c) Meeting licensing requirements for safety, storage, sanitation and other applicable provisions for food service.

(2) The provider shall develop, implement and maintain evidence of a training plan that includes orientation and annual continuing education.

(a) The provider shall ensure anyone who participates in meal preparation, handling or delivery receives orientation on topics relevant to the person's job duties before they perform those duties.

(b) The provider shall ensure anyone who participates in meal preparation, handling or delivery completes continuing education annually on topics relevant to the person's job duties.

(E) Delivery requirements.

(1) Delivery shall be based on a routine delivery date and range of time.

(2) Written or electronic delivery instructions shall be provided to the delivery driver.

(3) The provider shall notify the individual if meal delivery will be delayed or will not occur as planned.

(4) The provider shall ensure that delivery provided by commercial or common carrier meets applicable federal, state and local food safety, storage and sanitation requirements.

(F) Documentation requirements.

(1) The provider shall maintain a clinical record for each individual served that shall include:

(a) Initial and all subsequent person-centered services plans;

(b) All dietary orders (including therapeutic and/or special diets) and instructions prepared by the applicable medical professional; and

(c) A record of the established delivery date and time.

(2) The provider shall maintain documentation of meal delivery, including:

(a) The individual's name;

(b) The date, time and number of meals in the delivery;

(c) Verification of delivery in accordance with the individual's person-centered services plan;

(d) Verification that the individual was notified if service delivery was not provided within the established delivery date or time; and

(e) Verification that the individual has been furnished clear instructions about how to safely heat, reheat and assemble each meal.

(3) The provider shall document and retain a written record of completed orientation and continuing education including the topics covered during the orientation and continuing education.

(4) The provider shall maintain documentation of the following:

(a) All licensure or certification documents required by this rule;

(b) All local licensing or regulatory agency inspection reports and documented findings, any resulting plans of correction and any follow up reports; and

(c) All United States department of agriculture inspection reports and documented findings, any resulting plans of correction and any follow-up reports.

Replaces: 5160-46-04

Effective: 1/1/2019
Five Year Review (FYR) Dates: 01/01/2024
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02
Prior Effective Dates: 03/30/1990 (Emer.), 06/29/1990, 07/01/1990, 03/12/1992 (Emer.), 06/01/1992, 07/31/1992 (Emer.), 10/30/1992, 07/01/1993 (Emer.), 07/30/1993, 09/01/1993, 01/01/1996, 07/01/1998, 07/01/2006, 10/25/2010, 07/01/2015, 11/03/2016

5160-44-13 Nursing facility-based level of care home and community-based services programs: home modification services.

(A) "Home modifications" are environmental adaptations to the private residence(s) of the individual required by the individual's person-centered services plan, that are necessary to ensure the health, welfare and safety of the individual or that enable the individual to function with greater independence in the home. Such adaptations include, but are not limited to, the installation of ramps and grab-bars, widening of doorways, modification of bathroom or kitchen facilities, or the installation of specialized electric and plumbing systems that are necessary to accommodate the medical equipment and supplies that are necessary for the welfare of the individual. Home modifications also include replacement of previous home modifications when it is determined the modification cannot be repaired through another resource. Home modifications shall not exceed a total of ten thousand dollars in a calendar year per individual. The Ohio department of medicaid (ODM), Ohio department of aging (ODA) or their designee shall approve the lowest cost alternative that meets the individual's assessed needs.

(B) Home modifications do not include:

(1) Adaptations or improvements to the home that are of general utility, and are not of direct medical or remedial benefit to the individual including, but not limited to, carpeting, roof repair and central air conditioning.

(2) Adaptations that add to the total square footage of the home, except when necessary to complete an adaptation (e.g., in order to improve entrance/egress to a residence or to configure a bathroom to accommodate a wheelchair).

(3) New, replacement home modifications or repair of previously approved home modifications that have been damaged as a result of apparent misuse, abuse or negligence.

(C) Home modifications may be authorized up to one hundred and eighty consecutive days prior to an individual's transition from an institutional setting into the community. The modification is not considered complete until, and the date of services for purposes of reimbursement shall be, the date on which the individual leaves the institutional setting. If an individual fails to transition into the community, the modification is still reimbursable.

(D) Authorization process.

(1) ODM, ODA or their designee may require the completion of an in-home evaluation by an occupational therapist (OT) or physical therapist (PT) licensed pursuant to Chapter 4755. of the Revised Code. The evaluation shall determine the individual's capacity to utilize the requested home modification.

(2) ODM, ODA or their designee may require the completion of an in-home evaluation by an appropriately qualified professional to determine the suitability of the immediate environment where the modification will be installed and the viability of the completion of the modification to improve independence.

(3) In consultation with the individual and/or caregiver(s), ODM, ODA or their designee and if required, the OT or PT and/or qualified professional, shall develop a home modification referral that addresses the individual's environmental accessibility needs.

(4) Home modification providers shall submit a fixed cost proposal for the services submitted under the home modification referral which shall be good for the term of the work agreement.

(a) At a minimum, the proposal shall include all of the following:

(i) A drawing or diagram of the home modification, as appropriate;

(ii) A breakdown of all of the needed materials;

(iii) A breakdown of the costs of the needed materials;

(iv) A breakdown of the labor costs;

(v) A list of all building permits that must be obtained;

(vi) An estimate of the time needed to complete the home modification;

(vii) A written statement of all warranties provided, including a warranty lasting at least one year from the date of final acceptance of work against defective workmanship; and

(viii) A written guarantee that all materials, products, and installed or furnished appliances perform their advertised function.

(b) A fixed cost proposal may be adjusted for good cause only if the job specifications are modified in writing, and the adjustment is approved by ODM, ODA or their designee.

(5) ODM, ODA or their designee shall review all submitted proposals with the individual and shall award the home modification service to the provider that proposes the lowest cost alternative that meets the individual's assessed need.

(E) Before beginning a home modification, the provider shall obtain all permits and pre-job inspections required by law, home owners' association, or both.

(F) After completing a home modification, but before submitting a claim, the provider shall obtain post-job inspections and post-job inspection reports required by law, by a home owners' association, or both to verify the modification meets federal, state and local laws or home owners' association requirements.

(G) Limitations.

(1) ODM, ODA or their designee shall ensure safeguards are in place to minimize any potential conflicts of interest between the person(s) conducting any evaluations required pursuant to paragraphs (D)(3) and (D)(4) of this rule and the home modification provider.

(2) The provider shall be reimbursed for the actual cost of material and/or labor for the home modification as identified in the home modification proposal. Reimbursement may only be adjusted if the job specifications are modified pursuant to the requirements set forth in paragraph (D)(4)(b) of this rule.

(3) Home modifications do not include removing modifications and returning the property to its prior condition when an individual vacates the premises. The property shall be left in the modified state.

(4) The provider shall not be the owner of the individual's residence.

(H) Provider requirements.

(1) The provider shall:

(a) Know and understand the individual's person-centered services plan related to the modification and personal preferences about the home modification services to be furnished.

(b) Provide documentation that the home modification was completed in accordance with the agreed upon specifications using all materials and equipment cited in the proposal.

(c) Provide documentation that the home modification was tested, is in proper working order and is usable by the individual.

(d) Provide documentation that the home modification meets all applicable federal, state and local building codes and accessibility codes.

(e) Maintain and furnish proof of appropriate qualifications to perform jobs requiring specialized skills such as electrical work, heating/ventilation and plumbing to ODM, ODA or their designee upon request.

(f) Maintain and furnish proof of licensure, insurance and bonding for general contracting services of applicable jurisdictions to ODM, ODA or their designee upon request.

(g) Obtain final written approval from the individual and ODM, ODA or their designee after completion of the home modification service.

(2) The provider shall obtain and maintain evidence of compliance with:

(a) The written consent of the property owner to modify the property, including acknowledgment that the owner understands that the waiver is not responsible for returning the property to its prior condition.

(b) All permits required by law, including building permits, prior to commencing work on each job order.

(c) Any necessary inspections and inspection reports required by federal, state and local laws upon completion of each job to verify that the repair, modification or installation was completed. The provider must obtain these inspections, inspection reports, and permits prior to billing for the completed job.

Replaces: 5160-46-04

Effective: 1/1/2019
Five Year Review (FYR) Dates: 01/01/2024
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5166.02 , 5164.02
Prior Effective Dates: 03/30/1990 (Emer.), 06/29/1990, 07/01/1990, 03/12/1992 (Emer.), 06/01/1992, 07/31/1992 (Emer.), 10/30/1992, 07/01/1993 (Emer.), 07/30/1993, 09/01/1993, 01/01/1996, 07/01/1998, 07/01/2006, 10/25/2010, 07/01/2015, 11/03/2016

5160-44-16 Nursing facility-based level of care home and community-based services programs: personal emergency response systems.

(A) Personal emergency response systems (PERS) is a service with a monitoring, reminder and/or reporting component available to support individuals' independence in the community. PERS include telecommunications equipment, a central monitoring station (station), and a medium for two-way, hands-free communication between the individual and the station. Personnel at the station respond to an individual's alarm signal via the individual's PERS equipment.

(B) PERS equipment shall be appropriate to meet the assessed needs of the individual as authorized on the individual's person-centered services plan and shall include:

(1) Activation devices that are wearable and water-resistant. Water resistance shall meet a generally-accepted industry standard for water resistance to a level matching the individual's assessed needs and preferences.

(2) An internal battery providing at least twenty-four hours of power without recharging. Notification shall be sent to the station if the battery level is low.

(3) Devices to accommodate varying needs and preferences of the individual.

(C) PERS does not include:

(1) Remote video monitoring of the individual in his or her home.

(2) Systems that only connect to emergency service personnel.

(D) PERS provider requirements. The provider shall:

(1) Ensure and maintain a record of the successful completion of training on how to respond to alarm signals by each staff member whose job duties include responding to alarm signals at the station.

(2) Ensure each individual is able to choose the PERS device that meets his or her assessed needs and preferences as authorized by the individual's person-centered services plan.

(3) Install and activate the individual's PERS equipment no later than seven days after the date PERS has been authorized on the individual's person-centered services plan by the Ohio department of medicaid (ODM), the Ohio department of aging (ODA) or their designee.

(4) Furnish each individual receiving PERS with training including:

(a) An initial face-to-face demonstration on how to use their PERS equipment; and

(b) A successful return demonstration by the individual of all components of the PERS equipment and monthly testing.

(5) Ensure the availability of language assistance in the event the individual has limited English language proficiency.

(6) Prior to activating PERS equipment, the provider shall work with the individual and case manager to develop an initial written response plan regarding how to proceed when an alarm is signaled. The plan shall be updated upon the individual's request.

(a) The written response plan shall include a summary of the individual's information regarding medical diagnosis, treatment and preferences, as well as the contact information for the individual's designated responder.

(i) For the purpose of this rule, a designated responder is a person or organization identified in an individual's written response plan who the station contacts if the individual signals an alarm and requires assistance from the designated responder.

(ii) The provider shall identify emergency service personnel on the written response plan when the individual does not otherwise provide a designated responder or when only one designated responder is provided.

(b) The provider shall notify the designated responder when activating the individual's PERS equipment and on an annual basis thereafter as part of the monthly service. At a minimum, notification shall include directions on how to respond when an alarm is signaled.

(c) Upon notification that an individual's designated responder stops participating, the provider shall work with the individual and ODM, ODA or their designee to identify a new designated responder in the written response plan.

(7) At no additional cost to the individual, ODM, ODA, or their designee, replace any malfunctioning PERS equipment no later than twenty-four hours after it is notified of the malfunction, or no later than twenty-four hours after the malfunction is detected through the monthly testing of equipment, unless the malfunction is due to the individual's apparent misuse, abuse, or negligence of the equipment.

(8) As part of its monthly service, provide ongoing customer support to the individual, designated responder, ODM, ODA and its designee upon request of one or more of those parties.

(9) If the provider cannot assist an individual with an assessed need, the provider shall notify ODM, ODA or their designee, in writing of the service limitations before the provider is included in the individual's person-centered services plan.

(10) Employ staff to comprise a central monitoring station located in the United States or may subcontract with another company to use a station located in the United States to provide the station component of the PERS.

(11) Maintain a primary system to receive and respond to alarm signals from individuals twenty-four hours a day, every day of the year;

(12) Maintain a secondary system to respond to all incoming alarm signals in case the primary system is unable to respond to alarm signals;

(13) Respond to each alarm signal no more than sixty seconds after it receives the alarm signal;

(14) Notify ODM, ODA or their designee of any emergency involving an individual no more than twenty-four hours after the individual sends the alarm signal;

(15) Notify ODM, ODA or their designee when a pattern of frequent false alarms has been established for an individual;

(16) Contact emergency service personnel in the event a provider receives an alarm signal, but the station cannot reach a designated responder; and

(17) In the event of an emergency, remain in communication with the individual through the two-way communication feature of the PERS equipment until a designated responder or emergency service personnel arrives in the individual's home, the emergency subsides, or after it is determined there is no emergency (e.g. false alarm).

(E) PERS providers shall maintain the following documentation for each individual receiving PERS:

(1) Date and time of equipment delivery and installation;

(2) A copy of the individual's initial and all subsequent written response plans;

(3) Date the individual and designated responder received initial and annual notification from the PERS provider as required by paragraph (D)(6)(b) of this rule;

(4) Date, time and results of monthly testing; and

(5) Date, time and summary of actions taken regarding service-related contacts.

Replaces: 5160-46-04

Effective: 1/1/2019
Five Year Review (FYR) Dates: 01/01/2024
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5166.02 , 5164.02
Prior Effective Dates: 03/30/1990 (Emer.), 06/29/1990, 07/01/1990, 03/12/1992 (Emer.), 06/01/1992, 07/31/1992 (Emer.), 10/30/1992, 07/01/1993 (Emer.), 07/30/1993, 09/01/1993, 01/01/1996, 07/01/1998, 07/01/2006, 10/25/2010, 07/01/2015, 11/03/2016

5160-44-17 Nursing facility-based level of care home and community-based services programs: out-of-home respite services.

(A) "Out-of-home respite services" are services delivered to an individual in an out-of-home setting to allow respite for caregivers normally providing care. The service shall include an overnight stay.

(1) An out-of-home respite provider shall make available the following:

(a) Waiver nursing services as set forth in rule 5160-44-22 of the Administrative Code;

(b) Personal care services as set forth in rule 5160-46-04 of the Administrative Code if the individual is enrolled on an Ohio department of medicaid (ODM) -administered waiver, or rule 173-39-02.11 of the Administrative Code if the individual is enrolled in the PASSPORT program administered by the Ohio department of aging (ODA); and

(c) Three meals per day that meet the individual's dietary requirements.

(2) All services set forth in paragraph (A)(1) of this rule delivered during the provision of out-of-home respite services shall not be reimbursed as separate services.

(B) To qualify for submitting claims, providers of out-of-home respite services shall:

(1) Comply with all applicable rules set forth in Chapter 5160-44 of the Administrative Code, and:

(a) Chapters 5160-45, and as appropriate, either 5160-46 or 5160-58 of the Administrative Code, if the individual is enrolled on an ODM-administered waiver program; or

(b) Chapter 173-39 of the Administrative Code, if the individual is enrolled in the PASSPORT program.

(2) Be either:

(a) An intermediate care facility for individuals with an intellectual disability (ICF-IID) that has an active medicaid provider agreement in accordance with sections 5124.06 and 5124.07 of the Revised Code; or

(b) A nursing facility (NF) certified in accordance with rule 5160-3-02.3 of the Administrative Code; or

(c) Another licensed setting approved by ODM or certified by ODA.

(C) All providers of out-of-home respite shall:

(1) Provide for coverage of an individual's loss due to theft, property damage and/or personal injury; and maintain a written procedure identifying the steps an individual takes to file a liability claim. Upon request, the provider shall verify their coverage with ODM, ODA or their designee.

(2) Maintain evidence of non-licensed staff's completion of twelve hours of in-service training within a twelve-month period, excluding agency and program-specific orientation for every employee with in-person contact with individuals. In-service training shall be initiated immediately after the non-licensed direct care staff's first anniversary of employment with the provider, and shall be completed annually thereafter.

(3) Ensure any waiver nursing services provided are within the nurse's scope of practice as set forth in rule 5160-44-22 of the Administrative Code.

(4) Provide task-based instruction to direct care staff providing personal care services as defined in rule 5160-46-04 of the Administrative Code, or rule 173-39-02.11 of the Administrative Code, as applicable.

(D) Providers of out-of-home respite services shall maintain a clinical record at their place of business for each individual served in accordance with the requirements set forth in rule 5160-44-31 of the Administrative Code.

(1) Storage shall protect the confidentiality of these records.

(2) Each clinical record shall include the following:

(a) Identifying information, including but not limited to name, address, date of birth, gender/gender identify, race, significant phone numbers and health insurance identification numbers of the individual.

(b) Information regarding medical diagnosis (es), treatment(s) and preferences.

(c) The individual's medication profile and medication administration record, as applicable.

(d) The individual's treatment administration record, as applicable.

(e) The name and contact information for the individual's primary care physician(s).

(f) The name and current contact information for the individual's parent/guardian/authorized representative and/or emergency contact.

(g) All known drug and food interactions, allergies and dietary needs, preferences and/or restrictions.

(h) A copy of the initial and all subsequent person-centered services plans.

(i) A copy of any advance directives including, but not limited to, a do-not-resuscitate order, or medical power of attorney, if they are provided.

(j) Documentation verifying the date of out-of-home respite service delivery, including tasks performed or not performed.

(3) If the individual is receiving waiver nursing services pursuant to paragraph (A) (1)(a) of this rule, the clinical record shall also include the following;

(a) A copy of the initial and all subsequent plans of care, specifying the type, frequency, scope and duration of the nursing services being provided. When services are provided by a licensed practical nurse (LPN) at the direction of a registered nurse (RN), the clinical records shall include documentation that the RN has reviewed the plans of care with the LPN. The plan of care shall be recertified by the primary care physician at least every sixty days, or more frequently if there is a significant change in the individual's condition.

(b) Documentation of any verbal orders given by the primary care physician to the nurse. The nurse shall document, in writing, the physician's orders, the date and time the orders were given, and sign the entry in the clinical record. The nurse shall subsequently secure documentation of the verbal orders, signed and dated by the primary care physician.

(c) All communications with the individual, case manager, RN supervisor (if one exists) primary care physician and other members of the individual's team.

Replaces: 5160-46-04

Effective: 1/1/2019
Five Year Review (FYR) Dates: 01/01/2024
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02
Prior Effective Dates: 03/30/1990 (Emer.), 06/29/1990, 07/01/1990, 03/12/1992 (Emer.), 06/01/1992, 07/31/1992 (Emer.), 10/10/1992, 07/01/1993 (Emer.), 07/30/1993, 09/01/1993, 01/01/1996, 07/01/1998, 07/01/2006, 10/25/2010, 07/01/2015, 11/03/2016

5160-44-22 Nursing facility-based level of care home and community-based services programs: waiver nursing services.

(A) "Waiver nursing services" are defined as nursing tasks and activities provided to individuals who require the skills of a registered nurse (RN) or licensed practical nurse (LPN) at the direction of an RN.

(1) All nurses providing waiver nursing services to individuals shall:

(a) Possess a current, valid and unrestricted license with the Ohio board of nursing;

(b) Possess an active medicaid provider agreement or be employed by an entity that has an active medicaid provider agreement; and

(c) Provide services within the nurse's scope of practice as set forth in Chapter 4723. of the Revised Code and agency 4723 of the Administrative Code rules adopted thereunder.

(2) Nursing tasks and activities that shall only be performed by an RN include, but are not limited to, the following:

(a) Intravenous (IV) insertion, removal or discontinuation;

(b) IV medication administration;

(c) Programming of a pump to deliver medications including, but not limited to, epidural, subcutaneous and IV (except routine doses of insulin through a programmed pump);

(d) Insertion or initiation of infusion therapies;

(e) Central line dressing changes; and

(f) Blood product administration.

(B) Limitations.

(1) Waiver nursing shall not be used in lieu of similar services available through third-party insurers, community supports, resources or other Ohio medicaid state plan services when it has been determined an individual's needs can be met by those services.

(2) If the provider cannot assist an individual with an assessed need, the provider shall notify ODM, ODA or their designee, in writing, of the service limitation(s) before the provider is included on the individual's person-centered services plan.

(3) Waiver nursing services do not include:

(a) Services delegated in accordance with Chapter 4723. of the Revised Code and rules adopted thereunder and to be performed by providers who are not licensed nurses in accordance with Chapter 4723. of the Revised Code;

(b) Services that require the skills of a nurse with a psychiatric mental health nursing specialty as set forth in rule 4723-8-04 of the Administrative Code;

(c) Visits performed for the sole purpose of meeting the supervisory requirements (including any visit) set forth in 42 CFR 484 (as in effect on October 1, 2018);

(d) Visits performed for the sole purpose of directing LPNs pursuant to section 4723.01 of the Revised Code; or

(e) Visits performed for the sole purpose of meeting the home care attendant service RN visit requirements set forth in rule 5160-44-27 of the Administrative Code.

(4) Waiver nursing services are reimbursable when sequentially, but not concurrently, performed with any other service during a visit in which the RN is furnishing billable home health, private duty nursing, RN assessment, RN consultation, and/or any other similar service that is reimbursable through the Ohio medicaid program.

(C) Waiver nursing shall be delivered by one of the following:

(1) An employee or contractor of a medicare-certified or otherwise-accredited home health agency approved by ODM or certified by ODA who meets the provider requirements set forth in paragraph (D) of this rule. For the purposes of this rule, medicare-certified home health agencies and otherwise-accredited agencies shall ensure they and the nurses they employ or contract with, are in compliance with 42 CFR 484. (as in effect on October 1, 2018).

(2) A non-agency RN waiver nursing provider approved by ODM who meets the provider requirements set forth in paragraph (D) of this rule.

(3) A non-agency LPN waiver nursing provider approved by ODM who meets the provider requirements set forth in paragraphs (D) and (E) of this rule.

(D) All waiver nursing providers shall:

(1) Understand and comply with all applicable rules governing the home and community-based services waiver(s) for which they are providing services including, but not limited to those rules set forth in Chapters 5160-44, 5160-45, 5160-46, and/or 5160-58, of the Administrative Code, as applicable, for ODM-administered HCBS waiver programs, and Chapters 173-39, 5160-31, 5160-33, and/or 5160-58 of the Administrative Code, as applicable, for ODA-administered HCBS waiver programs.

(2) Be providing the service to one individual, in a group setting as defined in rule 5160-46-06 of the Administrative Code during a face-to-face nursing visit in an ODM-administered HCBS waiver program, or in a group setting as defined in rule 5160-31-07 of the Administrative Code during a face-to-face nursing visit in an ODA-administered HCBS waiver program.

(3) Complete training about individual rights and responsibilities as set forth in rule 5160-45-03 of the Administrative Code for ODM-administered HCBS waiver programs.

(4) Not be the individual's legally responsible family member, as that term is defined in rule 5160-45-01 of the Administrative Code, unless the legally responsible family member is employed by a medicare-certified or otherwise-accredited home health agency and the individual is enrolled on an ODM-administered waiver.

(5) Not be the individual's legally responsible family member, as that term is defined in rule 173-39-02 of the Administrative Code, when the individual is enrolled on the ODA-administered waiver.

(6) Not be the foster caregiver of the individual.

(E) Non-agency LPNs, at the direction of an RN, shall:

(1) Conduct a face-to-face visit with the directing RN at least every sixty days after the initial visit to evaluate the provision of waiver nursing services and LPN performance, and to ensure that waiver nursing services are being provided in accordance with the approved plan of care and within the LPN's scope of practice; and

(2) Conduct a face-to-face visit with the individual and the directing RN before initiating services and at least every one hundred and twenty days for the purpose of evaluating the provision of waiver nursing services, the individual's satisfaction with care delivery and LPN performance, and to ensure that waiver nursing services are being provided in accordance with the approved plan of care and within the LPN's scope of practice.

(F) All waiver nursing service providers shall maintain a clinical record at their place of business for each individual served in accordance with the requirements set forth in rule 5160-44-31 of the Administrative Code.

(1) Storage shall be in a manner that protects the confidentiality of these records.

(2) For the purposes of this rule, the place of business shall be a location other than the individual's residence or primary location where the individual receives services.

(3) Each clinical record shall include the following:

(a) Identifying information, including but not limited to, name, address, date of birth, gender, gender identity, race, significant phone numbers and health insurance identification numbers of the individual.

(b) Information regarding medical diagnoses, treatment and preferences.

(c) The individual's medication profile and medication administration record, as applicable.

(d) The individual's treatment administration record, as applicable.

(e) The name of and contact information for the individual's primary care physician(s).

(f) The name of and current contact information for the individual's parent/guardian/authorized representative and/or emergency contact.

(g) All known drug and food interactions, allergies and dietary needs, preferences and/or restrictions.

(h) A copy of the initial and all subsequent person-centered services plans.

(i) Nurse assignments.

(j) A copy of any advance directives including, but not limited to, a do-not-resuscitate (DNR) order and/or medical power of attorney, if they are provided.

(k) A copy of the initial and all subsequent plans of care, specifying the type, frequency, scope and duration of the nursing services being performed. When services are performed by an LPN at the direction of an RN, the clinical record shall include documentation that the RN has reviewed the plans of care with the LPN. The plan of care shall be recertified by the primary care physician at least every sixty days, or more frequently if there is a significant change in the individual's condition.

(l) Documentation of any verbal orders given by the primary care physician to the nurse. The nurse shall document, in writing, the physician's orders, the date and time the orders were given, and sign the entry in the clinical record. The nurse shall subsequently secure documentation of the verbal orders, signed and dated by the primary care physician.

(m) In all instances when a non-agency LPN is providing waiver nursing services, clinical notes, signed and dated by the LPN, documenting all consultations between the LPN and the directing RN, the face-to-face visits between the LPN and the directing RN, and the face-to-face visits between the LPN, the individual, and the directing RN.

(n) Clinical notes, signed and dated by the nurse, documenting the general condition of the individual, any unusual events occurring during the visit and the service tasks performed or not performed.

(o) All communications with the individual, case manager, RN supervisor if one exists, primary care physician and other members of the individual's team.

(G) All waiver nursing providers shall also maintain a record at the individual's residence or primary service location in order to encourage sharing of information between caregivers and enhance person-centered care.

(1) Storage shall be in a manner that protects the confidentiality of these records.

(2) The record may include a communication log, treatment record and/or medication administration record, if they exist.

(3) Documents in the record shall reflect a minimum of at least the past sixty calendar days, with the individual's right to maintain more if he or she so chooses.

(4) The individual shall identify the location in his or her residence or the primary service location where the record will be safely maintained.

Replaces: 5160-46-04

Effective: 1/1/2019
Five Year Review (FYR) Dates: 01/01/2024
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02
Prior Effective Dates: 03/30/1990 (Emer.), 06/29/1990, 07/01/1990, 03/12/1992 (Emer.), 06/01/1992, 07/31/1992 (Emer.), 10/30/1992, 07/01/1993 (Emer.), 07/30/1993, 09/01/1993, 01/01/1996, 07/01/1998, 07/01/2006, 10/25/2010, 07/01/2015, 11/03/2016

5160-44-27 Nursing facility-based level of care home and community-based services programs: home care attendant services.

(A) The following definitions are applicable to this rule:

(1) "Adult" means an individual at least eighteen years of age.

(2) "Authorizing health care professional" means a health care professional who, pursuant to section 5166.307 of the Revised Code, authorizes a home care attendant to assist an individual enrolled on a nursing facility (NF)-based level of care waiver with self-administration of medication, nursing tasks, or both.

(3) "Controlled substance" has the same meaning as in section 3719.01 of the Revised Code.

(4) "Custodian" has the same meaning as in section 2151.011 of the Revised Code.

(5) "Gastrostomy tube" means a percutaneously inserted catheter that terminates in the stomach.

(6) "Group setting" means a situation in which a home care attendant service provider furnishes home care attendant services in accordance with this rule and as authorized by the Ohio department of medicaid (ODM), or certified by the Ohio department of aging (ODA), to two or three individuals who reside at the same address.

(7) "Guardian" has the same meaning as in section 2111.01 of the Revised Code.

(8) "Health care professional" means a physician or registered nurse who holds a current, valid unrestricted license.

(9) "Home care attendant" means a provider, holding a valid medicaid provider agreement in accordance with section 5166.301 of the Revised Code and paragraph (G) of this rule, who is authorized to provide home care attendant services to a specific individual enrolled on a NF-based level of care waiver.

(10) "Individual enrolled on a NF-based level of care waiver" and "individual" mean the same as "consumer" as defined in section 5166.30 of the Revised Code.

(11) "Jejunostomy tube" means a percutaneously inserted catheter that terminates in the jejunum.

(12) "Medication" means a drug as defined in section 4729.01 of the Revised Code.

(13) "Minor" means an individual under eighteen years of age.

(14) "Nursing facility (NF) -based level of care waiver" and "waiver" mean the MyCare Ohio and Ohio home care waivers administered by ODM and the PASSPORT waiver administered by ODA.

(15) "Nursing tasks" means skilled tasks that would otherwise be performed by a registered nurse (RN), or a licensed practical nurse (LPN) at the direction of an RN.

(16) "Oral medication" means any medication that can be administered through the mouth, through a gastrostomy tube or jejunostomy tube if through a pre-programmed pump, or through a syringe. Oral medication may include medication administered through a metered dose inhaler.

(17) "Physician" means an individual authorized under Chapter 4731. of the Revised Code to practice medicine and surgery or osteopathic medicine and surgery.

(18) "Practice of nursing as a registered nurse," "practice of nursing as a licensed practical nurse (LPN)", and "registered nurse (RN)" have the same meanings as in section 4723.01 of the Revised Code. "Registered nurse" includes an advance practice nurse as defined in section 4723.01 of the Revised Code.

(19) "RN home care attendant service visit" means the face-to-face visit every ninety days between the RN and the individual receiving home care attendant services as required by paragraph (G)(7) of this rule.

(20) "Schedule II, " "schedule III," "schedule IV" and "schedule V" have the same meaning as in section 3719.01 of the Revised Code.

(21) "Topical medication" means any medication applied to the outer skin, including transdermal medications and eye, ear and nose drops. Topical medication may also include vaginal or rectal suppositories.

(B) Home care attendant services are services provided to an individual enrolled on a waiver by an unlicensed non-agency provider in accordance with this rule. Home care attendant services are tasks that would otherwise be performed by an RN or an LPN at the direction of an RN. Home care attendant services include:

(1) Assistance with self-administration of medications as set forth in paragraph (E) of this rule.

(2) Assistance with the performance of nursing tasks as set forth in paragraph (F) of this rule.

(3) Tasks performed as part of personal care aide services as described in rule 5160-46-04 or 173-39-02.11 of the Administrative Code when performed during a home care attendant service visit. Personal care aide tasks are not reimbursable separately as personal care aide services when they are performed during a home care attendant service visit.

(C) Home care attendant services may be provided:

(1) In the individual's home or in the community; and

(2) To assist an individual to function in the workplace without duplicating workplace accommodations.

(D) If the individual has an authorized representative as defined in rule 5160-1-33 of the Administrative Code, the authorized representative shall be present and awake during the delivery of home care attendant services.

(E) Assistance with self-administration of medication.

(1) A home care attendant shall assist an individual enrolled on a waiver with the self-administration of only the following medication:

(a) Oral medications;

(b) Topical medications;

(c) Subcutaneous injections only for routine doses of insulin;

(d) Programming of a pump only used to deliver a routine dose of insulin;

(e) Medication administered via stable, labeled gastrostomy or jejunostomy tubes using pre-programmed pumps; and

(f) Doses of schedule II, schedule III, schedule IV and schedule V drugs only when administered orally or topically.

(2) Medication shall be maintained in its original container and the attached label shall match the dosage and means of administration set forth on the ODM 02389 "Home Care Attendant Medication Authorization" form (11/2015). The label on the container shall display all of the following information for the individual enrolled on a waiver:

(a) The individual's full name;

(b) A dispensing date within the prior twelve months; and

(c) The exact dosage and means of administration.

(3) For schedule II, schedule III, schedule IV and schedule V drugs, all of the following additional requirements shall apply:

(a) Medication(s) shall have a warning label on the bottle;

(b) During the first visit, the home care attendant shall count the medication(s) in the presence of the individual enrolled on a waiver or the authorized representative and shall record the count on a log located in the individual's clinical record.

(c) The medication(s) shall be recounted by the home care attendant in the presence of the individual enrolled on a waiver or the authorized representative at least monthly, and the count shall be reconciled on a log located in the individual's clinical record. The home care attendant shall notify the authorizing health care professional, in writing, within twenty-four hours if:

(i) Medication is missing; or

(ii) The count of medication(s) cannot be reconciled.

(d) The medication(s) shall be stored separately from all other medications, and secured and locked at all times when not being administered in order to prevent access by unauthorized persons.

(F) Assistance with the performance of nursing tasks.

(1) A home care attendant may provide assistance with the performance of nursing tasks not expressly excluded in accordance with paragraph (F)(2) of this rule.

(2) A home care attendant shall not assist an individual who is receiving home care attendant services with the performance of any of the following nursing tasks:

(a) Intravenous (IV) insertion, removal or discontinuation;

(b) Intramuscular injections;

(c) IV medication administration;

(d) Subcutaneous injections, except for routine doses of insulin pursuant to paragraph (E)(1)(c) of this rule;

(e) Programming of a pump used to deliver medications (including, but not limited to epidural, subcutaneous and IV), except for routine doses of insulin pursuant to paragraph (E)(1)(d) of this rule;

(f) Insertion or initiation of infusion therapies; and

(g) Central line dressing changes.

(3) Performance of nursing tasks shall be summarized and submitted on the ODM 02390 "Home Care Attendant Skilled Task Authorization" form (11/2015).

(G) In order to provide services to an individual enrolled on a waiver and to submit a claim for reimbursement, home care attendants shall meet all of the following requirements:

(1) As part of the medicaid provider agreement application process, provide ODM, ODA or their designee with evidence to its satisfaction of the following:

(a) Submission of the ODM 02389 "Home Care Attendant Medication Authorization" form (11/2015) and/or ODM 02390 "Home Care Attendant Skilled Task Authorization" form (11/2015) as prescribed by paragraph (H) of this rule.

(b) Successful completion of at least one of the following:

(i) A competency evaluation program or training and competency evaluation program approved or conducted by the director of health under section 3721.31 of the Revised Code, and registration as active or in good standing on the Ohio nurse aide registry maintained by the director of health under section 3721.32 of the Revised Code; or

(ii) A training program and competency evaluation program for home health aides as specified in 42 C.F.R. 484.4 and 484.36, if the person met those standards as they existed on or before January 12, 2018, or 42 C.F.R. 484.80 and 484.115, if the person met those standards since they were adopted on January 13, 2018. A person is not considered to have completed a training and competency evaluation program, or a competency evaluation program if, since the person's most recent completion of this program(s), there has been a continuous period of twenty-four consecutive months during none of which the person furnished services described in 42 C.F.R. 409.40 (as in effect on October 1, 2018); or

(iii) A certified vocational program in a health care field, and written testing and skills testing by return demonstration; or

(iv) A written attestation of training, instruction, and as appropriate, skills testing by return demonstration prior to initiation of service provision on:

(a) Appropriate and safe techniques in personal hygiene and grooming that include: bed, tub, shower and partial bath techniques, shampoo in sink, tub or bed, nail and skin care, oral hygiene, toileting and elimination, safe transfer and ambulation, normal range of motion and positioning, and adequate nutrition and fluid intake.

(b) The maintenance of a clean, safe and healthy environment, including but not limited to, house cleaning and laundry, dusting furniture, sweeping, vacuuming and washing floors, kitchen care (including dishes, appliances and counters), bathroom care, emptying and cleaning bedside commodes and urinary catheter bags, changing bed linens, washing inside windows within reach from the floor, removing trash and folding, ironing and putting away laundry.

(c) Meal preparation, including special diet preparation, grocery purchase, planning and shopping, and running errands.

(d) The physical, emotional and developmental needs of individuals, including the need for privacy and respect for individuals and their property.

(e) Universal precautions for the prevention of disease transmission, including hand-washing and proper disposal of bodily waste and medical instruments that are sharp or may produce sharp pieces if broken.

(f) Basic elements of body functioning and changes in body function that should be reported to a supervisor.

(g) Basic safety requirements and knowledge of emergency procedures.

(h) Reading and recording temperature, pulse and respiration.

(i) Observation, reporting and documentation of individual status and services provided.

(j) Communication skills, including the ability to read, write and make brief and accurate oral or written reports.

(c) Completion of training and instruction, prior to beginning home care attendant services, about how to deliver the specific home care attendant services authorized by the individual's authorizing health care professional. The training shall be specific to the individual enrolled on a waiver and may be provided by the individual's authorizing health care professional, the individual receiving services or the authorized representative in cooperation with the individual's health care professional as indicated on the ODM 02389 "Home Care Attendant Medication Authorization" form (11/2015) and/or ODM 02390 "Home Care Attendant Skilled Task Authorization" form (11/2015), as appropriate.

(d) Performance of a successful return demonstration of the home care attendant service to be provided if requested by the individual enrolled on a waiver or the authorizing health care professional.

(e) Completion and maintenance of first aid certification from a class that is not solely internet-based and that includes hands-on training by a certified first aid instructor, a successful return demonstration of what was learned in the course, and certification that education was received from the authorizing health care professional about health and welfare considerations appropriate for an individual or group setting.

(f) Completion and maintenance of cardiopulmonary resuscitation (CPR) certification from a class that is not solely internet-based, and that includes hands-on training by a certified CPR instructor and a successful return demonstration of what was learned in the course. Maintenance of CPR certification may be counted toward the in-service continuing education required pursuant to paragraph (G)(8) of this rule. Current providers and those provider-applicants whose applications are pending as of the effective date of this rule shall have one hundred and eighty days from the effective date of this rule to meet this requirement.

(2) Be a non-agency provider who holds a current, valid medicaid provider agreement as a home care attendant and complies with sections 5166.30 to 5166.3010 of the Revised Code and rules set forth in Chapters 173-39, 5160-44, 5160-45 and 5160-46 of the Administrative Code.

(3) Request reimbursement for the provision of home care attendant services in accordance with rule 5160-1-06.1 or 5160-46- 06.1 of the Administrative Code.

(4) Not be the authorizing health care professional of the individual receiving services.

(5) Not be the authorized representative of the individual receiving services.

(6) Not be the legally responsible family member as that term is defined in rule 5160-45-01 of the Administrative Code of the individual receiving services.

(7) Not be the legal guardian or foster caregiver of the individual receiving services.

(8) Provide home care attendant services for only one individual, unless authorized to provide services in a group setting in accordance with paragraph (G)(9) of this rule.

(9) If authorized, provide services to two or three individuals enrolled on a waiver in a group setting. Authorization on a case-by-case basis is subject to approval based on a clinical review conducted by ODM or ODA in consultation with the individual receiving services, the authorized representative, authorizing health care professional, care manager and the individual's team. The clinical review will address the needs and desires of the individual receiving services, the skill level and training needs of the home care attendant, the ability to ensure the health and welfare of the individuals enrolled on a waiver served by the home care attendant, and the back-up plan.

(10) Secure the services of an RN, with agreement of the individual receiving services, and participate in a face-to-face visit at least every ninety days with the individual receiving services, the authorized representative, and the RN for the purpose of answering any questions the home care attendant and/or individual receiving services, or authorized representative have about meeting care needs, medications and other issues.

(a) The RN performing an RN home care attendant service visit shall:

(i) Possess a current, valid and unrestricted license with the Ohio board of nursing;

(ii) Possess an active Ohio medicaid provider agreement;

(iii) Comply with the conditions of participation as set forth in rule 5160-44-31 of the Administrative Code.

(b) The RN shall be present at the first visit between the home care attendant and individual upon the initiation of home care attendant services. ODM, ODA, or their designee shall also be present at the first visit.

(c) The home care attendant and the RN shall document the activities of each visit in the clinical record of the individual receiving services.

(d) The home care attendant shall discuss the results of the RN visit with ODM, ODA or their designee, the individual receiving services and/or the authorized representative.

(e) When the RN performs an RN home care attendant service visit, the RN shall bill the state plan nursing assessment code set forth in appendix A to rule 5160-12-08 of the Administrative Code.

(11) Completion of at least twelve hours of continuing education annually to enhance the skills and competencies of the provider relevant to his or her job responsibilities and support person-centered service delivery.

(H) The ODM 02389 "Home Care Attendant Medication Authorization" form (11/2015) and/or the ODM 02390 "Home Care Attendant Skilled Task Authorization" form (11/2015), as appropriate, shall contain all of the following:

(1) Written consent from the individual enrolled on a waiver or the authorized representative, as applicable, allowing the home care attendant to provide home care attendant services, and assuming responsibility for directing the home care attendant.

(2) A written statement from the authorizing health care professional attesting that the individual enrolled on a waiver or the authorized representative has demonstrated the ability to direct the home care attendant. The written statement shall also indicate whether the home care attendant has demonstrated the ability to furnish the home care attendant service to the individual enrolled on a waiver. The statement shall include all of the following:

(a) The name and address of the individual receiving home care attendant services;

(b) A description of the specific nursing task or self-administration of medication that the home care attendant will assist with, including, in the case of assistance with self-administration of medication, the name, dosage, and route of administration of the medication;

(c) The times or intervals when the home care attendant is to assist the individual receiving services with the self-administration of each dosage of the medication or with the performance of nursing tasks;

(d) The dates on which the home care attendant is to begin and cease providing assistance;

(e) A list of severe adverse reactions that the home care attendant shall report to the individual's health care professional should the individual experience one or more reactions;

(f) At least one telephone number at which the home care attendant can reach the individual's health care professional in an emergency for consultation after contacting emergency personnel;

(g) At least one contact number at which the home care attendant can reach the authorizing health care professional when the home care attendant observes that scheduled medication(s) is missing or cannot be reconciled; and

(h) Instructions the home care attendant shall follow when assisting the individual receiving services with the performance of a nursing task or the self-administration of medications, including, instructions for maintaining sterile conditions and for the storage of task-related equipment and supplies.

(I) The individual enrolled on a waiver shall participate with ODM, ODA, or their designee in the development and maintenance of a written back-up plan prior to inititation of services. The authorizing health care professional and/or the home care attendant may also participate in the development and maintenance of the back-up plan.

(1) The back-up plan shall meet the needs of the individual enrolled on a waiver in the event:

(a) The regularly scheduled home care attendant cannot or does not meet his or her obligation to provide services to the individual receiving services; or

(b) The individual receiving services and/or the authorized representative is not able to direct home care attendant services.

(2) As authorized by ODM, ODA, or their designee,

(a) Waiver nursing as set forth in rule 5160-44-22 of the Administrative Code, and/or private duty nursing or home health nursing as set forth in Chapter 5160-12 of the Administrative Code, may be used as back-up to assist with self-administration of medications and the performance of nursing tasks;

(b) Personal care aide services as set forth in rule 5160-46-04 of the Administrative Code may be used as back-up for personal care aide tasks in an ODM-administered waiver;

(c) Personal care services as set forth in rule 173-39-02.11 of the Administrative Code may be used as back-up for personal care tasks in the PASSPORT waiver; and

(d) Back-up may include informal caregivers.

(J) All home care attendants service providers shall maintain a clinical record for each individual served in accordance with the requirements set forth in rule 5160-44-31 of the Administrative Code.

(1) Storage shall be in a manner that protects the confidentiality of these records.

(2) Storage shall be at the provider's place of business other than the individual's residence or primary location where the individual receives services.

(3) Each clinical record shall include:

(a) Identifying information including name, address, date of birth, gender/gender identity, race, significant phone numbers and health identification numbers of the individual.

(b) Information regarding the individual's medical diagnoses, treatment and preferences.

(c) The individual's medication profile, as applicable.

(d) The individual's treatment administration record, as applicable.

(e) The name and contact information for all of the licensed health care professionals serving the individual.

(f) The name of and current contact information for the individual's parent/guardian/authorized representative and/or emergency contact.

(g) A copy of the initial and all subsequent person-centered services plans.

(h) All known drug and food interactions, allergies and dietary needs, preferences and/or restrictions.

(i) A copy of any advance directives including, but not limited to, a "do not resuscitate order" (DNR) or a "medical power of attorney," if they exist.

(j) The ODM 02389 "Home Care Attendant Medication Authorization" form (7/2014) and/or the ODM 02390 "Home Care Attendant Skilled Task Authorization" form (7/2014), as appropriate.

(k) Documentation of home care attendant services performed or not performed, arrival and departure times, and the dated signature of the provider, and individual receiving services or the authorized representative, verifying the service delivery upon its completion and arrival and departure times. The signature method of choice for the individual receiving services or the authorized representative shall be documented on the person-centered services plan, and shall include, but not be limited to, any of the following: a handwritten signature, initials, a stamp or mark, or an electronic signature.

(l) A copy of the log detailing the count and reconciliation of schedule II, schedule III, schedule IV and schedule V drugs for which assistance with self-administration is provided.

(m) Service notes, signed and dated by the home care attendant, documenting all communications with ODM, ODA or their designee, health care professionals including the authorizing health care professional, and other members of the individual's team, and documenting the general condition of the individual, any unusual events occurring during the visit, and the service tasks performed.

(n) Documentation of the face-to-face RN home care attendant service visits every ninety days between the home care attendant, individual enrolled on a waiver and RN, and of any resulting activities, in accordance with paragraph (G)(7) of this rule.

(K) All home care attendant service providers shall also maintain documentation at the individual's residence or primary service location in order to encourage sharing of information between caregivers and enhance person-centered care.

(1) Storage shall be in a manner that protects the confidentiality of these records.

(2) The documentation may include, but not be limited to, a communication log, as designated in the individual's person-centered services plan.

(3) Documents shall reflect a minimum of at least the past sixty calendar days, with the individual's right to maintain more if he or she so chooses.

(4) The individual shall identify the location in his or her residence or the primary location where the documentation will be safely maintained.

(L) If ODM, ODA, or their designee determines that the individual enrolled on a waiver cannot meet the requirements of this rule, or the health and welfare of the individual receiving home care attendant services cannot be ensured, then ODM, ODA, or their designee may prohibit the individual from receiving home care attendant services. The individual shall be afforded notice and hearing rights in accordance with division 5101:6 of the Administrative Code.

Replaces: 5160-46- 04.1

Effective: 1/1/2019
Five Year Review (FYR) Dates: 01/01/2024
Promulgated Under: 119.03
Statutory Authority: 5166.30, 5166.02
Rule Amplifies: 5162.03, 5166.3010, 5166.309, 5166.308, 5166.307, 5166.306, 5166.305, 5166.304, 5166.303, 5166.302, 5166.301 , 5166.30, 5164.02
Prior Effective Dates: 07/01/2010, 08/01/2015

5160-44-31 Ohio department of medicaid (ODM)-administered waiver programs: provider conditions of participation.

(A) An ODM-administered waiver service provider shall maintain a professional relationship with the individuals to whom they provide services. Providers shall furnish services in a manner that is in accordance with the individual's approved person-centered services plan, is attentive to the individual's needs, and maximizes the individual's independence. A provider shall refrain from any behavior that may detract from the goals, objectives and services outlined in the individual's approved person-centered services plan and/or that may jeopardize the individual's health and welfare.

(B) An ODM-administered waiver service provider shall:

(1) Maintain an active, valid medicaid provider agreement as set forth in rule 5160-1-17.2 of the Administrative Code.

(2) Comply with all provider requirements set forth in Chapters 5160-44 and 5160-45 of the Administrative Code, and Chapter 5160-46 or 5160-58 of the Administrative Code, depending upon the waiver(s) for which the provider is rendering services. Provider requirements include:

(a) Provider enrollment as set forth in rule 5160-45-04 of the Administrative Code;

(b) Criminal record checks as set forth in rule 5160-45-07 or 5160-45-08, as applicable, and rule 5160-45-11 of the Administrative Code;

(c) Incident reporting as set forth in rule 5160-45-05 of the Administrative Code; and

(d) Provider monitoring, reviews and oversight as set forth in rules 5160-45-06 and 5160-45-09 of the Administrative Code.

(3) Be at least eighteen years of age, including the provider and its employees, if applicable.

(4) Be able to read, write, and understand English at a level that enables the provider to comply with all applicable program requirements.

(5) Be able to effectively communicate with the individual.

(6) Deliver services professionally, respectfully and legally.

(7) Ensure that individuals to whom the provider is rendering ODM-administered waiver services are protected from abuse, neglect, exploitation and other threats to their health, safety and well-being. Upon entering into a medicaid provider agreement, and annually thereafter, all providers including all employees who have direct contact with individuals enrolled on an ODM-administered waiver, must acknowledge in writing they have reviewed rule 5160-45-05 of the Administrative Code regarding incident management and related procedures.

(8) Work with the individual and case manager to coordinate service delivery, including:

(a) Agreeing to provide and providing services in the amount, scope, location and duration they have capacity to provide, and as specified on the individual's approved person-centered services plan.

(b) Participating in the development of a back-up plan in the event that providers are unable to furnish services on the appointed date and time.

(c) Contacting the individual and the case manager in the event the provider is unable to render services on the appointed date and time.

(i) In the case of an emergency or unplanned absence, the provider shall immediately activate the back-up plan as set forth in the individual's approved person-centered services plan, verify with the individual and notify the case manager with information about the absence.

(ii) In the event of a planned absence, the provider shall verify with the individual and notify the case manager no later than seventy-two hours prior to the absence with information about the absence.

(9) Upon request and within the timeframe prescribed in the request, provide information and documentation to ODM, its designee and/or the centers for medicare and medicaid services (CMS).

(10) Participate in all appropriate provider trainings mandated or sponsored by ODM or its designees, including but not limited to those set forth in Chapters 5160-44, 5160-45, 5160-46 and 5160-58 of the Administrative Code.

(11) Be knowledgeable about and comply with all applicable federal and state laws, including the "Health Insurance Portability and Accountability Act of 1996" (HIPAA) regulations set forth in 45 C.F.R. parts 160 and 164 (as in effect on October 1, 2018), and the medicaid safeguarding information requirements set forth in 42 C.F.R. 431.300 to 431.306 (as in effect on October 1, 2018), along with sections 5160.45 to 5160.481 of the Revised Code.

(12) Ensure that the provider's contact information, including but not limited to address, telephone number, fax number and email address, is current. In the event of a change in contact information, the provider shall notify ODM via the medicaid information technology system (MITS) and its designee, no later than seven calendar days after such changes have occurred.

(13) Maintain and retain all required documentation related to the services delivered during the visit, including but not limited to: an individual-specific description and details of the tasks performed or not performed in accordance with the approved person-centered services plan and when required, the individual's plan of care.

(a) Verification of service delivery shall include, but not be limited to the date and location of service delivery, service start and end times, and the signatures of the provider and the individual or authorized representative.

(b) 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 person-centered services plan.

(14) Retain all records of service delivery and billing for a period of six years after the date of receipt of the payment based upon those records, or until any initiated audit is completed, whichever is longer.

(15) Cooperate with ODM and its designee during all provider monitoring and oversight activities by being available to answer questions during reviews, and by assuring the availability and confidentiality of individual information and other documents that may be requested as part of provider monitoring activities.

(16) To the extent not otherwise required by rule 5160-45-05 of the Administrative Code, notify ODM or its designee within twenty-four hours when the provider is aware of issues that may affect the individual and/or provider's ability to render services as directed in the individual's person-centered services plan, including when:

(a) The individual consistently declines services;

(b) The individual plans to or has moved to another residential address;

(c) There are changes in the physical, mental and/or emotional status of the individual;

(d) There are changes in the individual's environmental conditions;

(e) The individual's caregiver status has changed;

(f) The individual no longer requires medically necessary services as defined in rule 5160-1-01 of the Administrative Code;

(g) The individual's actions toward the provider are threatening or the provider feels unsafe or threatened in the individual's environment;

(h) The individual is consistently noncompliant with physician orders, or is noncompliant with physician orders in a manner that may jeopardize his or her health and welfare;

(i) The individual's requests conflict with his or her person-centered services plan and/or may jeopardize his or her health and welfare; or

(j) Any other situation that affects the individual's health and welfare.

(17) Make arrangements to accept all correspondence sent by ODM or its designee, including but not limited to, certified mail.

(18) Maintain a current e-mail address with ODM and its designee in order to receive electronic notification of any rule adoption, amendment or rescission, and any other communications from ODM or its designee

(19) Submit written notification to the individual and ODM or its designee at least thirty calendar days before the anticipated last date of service if the provider is terminating the provision of ODM-administered waiver services to the individual. Exceptions include:

(a) The provider must submit verbal and written notification to the individual and ODM or its designee at least ten days before the anticipated last date of service if the individual has been:

(i) Admitted to a hospital;

(ii) Placed in an institutional setting; or

(iii) Incarcerated.

(b) ODM may waive advance notification for a provider upon request and on a case-by-case basis.

(20) Be identified as the provider, and have specified on the individual's person-centered service plan that is prior approved by ODM or its designee, the amount of services the provider is authorized to furnish to the individual.

(21) Have a valid social security number and at least one of the following current, government-issued photographic identification cards:

(a) Driver license;

(b) State of Ohio identification card; or

(c) United States of America permanent residence card.

(C) A provider of nursing, personal care and home care attendant services under the Ohio home care waiver shall verify service delivery using an ODM-approved electronic visit verification (EVV) system in accordance with rule 5160-1-40 of the Administrative Code.

(D) At no time, shall an ODM-administered waiver service provider:

(1) Engage in any behavior that causes or may cause physical, verbal, mental or emotional abuse or distress to the individual.

(2) Engage in any other behavior that may compromise the health and welfare of the individual.

(3) Engage in any activity or behavior that may take advantage of or manipulate the individual or his or her authorized representative, family or household members or may result in a conflict of interest, exploitation, or any other advantage for personal gain, including:

(a) Misrepresentation;

(b) Accepting, obtaining, attempting to obtain, borrowing, or receiving money or anything of value including, but not limited to gifts, tips, credit cards or other items;

(c) Being designated on any financial account including, but not limited to bank accounts and credit cards;

(d) Using real or personal property of another;

(e) Using information of another;

(f) Lending or giving money or anything of value;

(g) Engaging in the sale or purchase of products, services or personal items; and

(h) Engaging in any activity that takes advantage of or manipulates ODM-administered waiver program rules.

(4) Falsify the individual's signature, including using copies of the signature.

(5) Make fraudulent, deceptive or misleading statements in the advertising, solicitation, administration or billing of services.

(6) Submit a claim for waiver services rendered while the individual is hospitalized, institutionalized or incarcerated. The only exception is when the individual is receiving out-of-home respite as set forth on his or her person-centered services plan.

(E) While rendering services, an ODM-administered waiver service provider shall not:

(1) Take the individual to the provider's place of residence.

(2) Bring children, animals, friends, relatives, other individuals or anyone else to the individual's place of residence.

(3) Provide care to persons other than the individual.

(4) Smoke without the consent of the individual.

(5) Sleep.

(6) Engage in any activity that is not related to the provision of services to the extent the activity distracts from, or interferes with, service delivery. Such activities include, but are not limited to the following:

(a) Using electronic devices for personal or entertainment purposes including, but not limited to watching television, using the computer or playing games.

(b) Making or receiving personal communications.

(c) Engaging in socialization with persons other than the individual.

(7) Deliver services when the provider is medically, physically or emotionally unfit.

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

(a) Alcohol.

(b) Illegal drugs.

(c) Chemical substances.

(d) Controlled substances that may adversely affect the provider's ability to furnish services.

(9) Engage in any activity or conduct that may reasonably be interpreted as sexual in nature, regardless of whether or not it is consensual.

(10) Engage in any behavior that may reasonably be interpreted as inappropriate involvement in the individual's personal beliefs or relationships including, but not limited to discussing religion, politics or personal issues.

(11) Consume the individual's food and/or drink without his or her offer and consent.

(F) An ODM-administered waiver service provider shall not be designated to serve or make decisions for the individual in any capacity involving a declaration for mental health treatment, general power of attorney, health care power of attorney, financial power of attorney, guardianship pursuant to court order, as an authorized representative, or as a representative payee as that term is described in paragraph (F)(3) of this rule, except in the following circumstances:

(1) A provider may be appointed by the court to serve as legal guardian for the individual pursuant to Chapter 2111. of the Revised Code if the provider is a family member.

(2) A provider may serve as an authorized representative or pursuant to a declaration for mental health treatment, general power of attorney, health care power of attorney, financial power of attorney or guardianship if the provider is the individual's parent or spouse.

(3) A provider may serve as the individual's representative payee if the provider is the individual's parent or spouse. For purposes of this rule, "representative payee" means a parent or spouse the individual designates to receive and manage payments that would otherwise be made directly to the individual.

(4) A provider may be designated as an authorized representative or pursuant to a declaration for mental health treatment, general power of attorney, health care power of attorney, financial power of attorney or guardianship for the individual if:

(a) The provider was serving in that capacity prior to September 1, 2005; and

(b) The provider was the individual's paid medical provider prior to September 1, 2005; and

(c) The designation is not otherwise prohibited by law.

(G) An agency provider shall pay applicable federal, state and local income and employment taxes in compliance with federal, state and local requirements. Federal employment taxes include medicare and social security.

(H) Non-agency providers shall pay applicable federal, state and local income and employment taxes in compliance with federal, state and local requirements. Federal employment taxes include medicare and social security. On an annual basis, non-agency providers must submit an ODM-approved affidavit stating that they paid their applicable federal, state and local income and employment taxes.

(I) Failure to meet the requirements set forth in this rule may result in any of the actions set forth in rules 5160-45-05, 5160-45-06 and 5160-45-09 of the Administrative Code including termination of the medicaid provider agreement in accordance with rule 5160-1-17.6 of the Administrative Code. In the event ODM proposes termination of the medicaid provider agreement, the provider may be entitled to a hearing or review in accordance with Chapter 5160-70 of the Administrative Code.

Effective: 1/1/2019
Five Year Review (FYR) Dates: 01/01/2024
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5166.02 , 5164.02