Chapter 5160-45 | ODM Administered Waiver Services

Rule 5160-45-01 | Ohio department of medicaid (ODM) -administered waiver program: definitions.

• Effective: January 1, 2024
• Promulgated Under: 119.03

The following terms apply to Ohio department of medicaid (ODM) -administered waiver programs:

(A) "Abuse" has the same meaning as set forth in rule 5160-44-05 of the Administrative Code.

(B) "Accreditation commission for health care" or "(ACHC)" is a national organization that evaluates and accredits agencies seeking to participate in the medicare and medicaid programs. For the purpose of providing services to individuals enrolled on an ODM-administered waiver, ACHC-accredited agencies are "otherwise-accredited agencies" that can provide the same ODM-administered waiver services that community health accreditation program (CHAP) -accredited and the joint commission-accredited agencies provide.

(C) "Activity of daily living" has the same meaning as set forth in rule 5160-3-05 of the Administrative Code.

(D) "Agency provider" is an entity that is eligible to furnish services in the medicaid program upon execution of a medicaid provider agreement in accordance with rule 5160-1-17.2 of the Administrative Code.

(E) "Applicant" is a person who is requesting a determination of eligibility for enrollment in an ODM-administered waiver.

(F) "Authorized representative" is a person the individual appoints to act on his or her behalf in accordance with rule 5160-1-33 of the Administrative Code.

(G) "Case management contractor" is the entity designated by ODM to provide case management services to individuals enrolled on an ODM-administered waiver. This may include a contracted case management agency, a MyCare Ohio plan and/or ODM itself.

(H) "Case management services" are the administrative activities that link, coordinate and monitor the services, supports and resources provided to an individual enrolled on an ODM-administered waiver.

(I) "Case manager" is a registered nurse (RN), licensed social worker (LSW) or licensed independent social worker (LISW) employed by the case management contractor who provides case management services to individuals enrolled on an ODM-administered waiver. The case manager is responsible for developing and monitoring the individual's person-centered services plan as described in rule 5160-44-02 of the Administrative Code.

(J) "Case manager contact" is a phone conversation, email exchange or other electronic communication with an individual or provider that ensures the exchange of information between the case manager and the individual. Electronic communications without response are not considered a case manager contact.

(K) "Case manager visit" is an in-person encounter between an individual and a case manager in the individual's residence. Meetings and encounters at locations other than the individual's place of residence are only considered visits when completed in an institutional or other service delivery location for the purpose of completing an assessment for waiver eligibility and/or developing a discharge plan. Case managers will interact (i.e., converse, make visual contact and otherwise engage the individual at his or her functional ability) during every case manager visit.

(L) "Clinical record" is a record containing written documentation that will be maintained by each ODM-administered waiver service provider.

(M) "Community health accreditation program" or "(CHAP)" is a national organization that evaluates and accredits agencies seeking to participate in the medicare and medicaid programs. For the purpose of providing services to individuals enrolled on an ODM-administered waiver, CHAP-accredited agencies are "otherwise-accredited agencies" that can provide the same ODM-administered waiver services that ACHC-accredited and the joint commission-accredited agencies provide.

(N) "Comprehensive assessment" is an evaluation of an individual's long-term service and support needs that is used to determine level of care and eligibility for enrollment in an ODM-administered waiver, and to inform service planning. The comprehensive assessment includes an in-person evaluation and examines an individual's activities of daily living, instrumental activities of daily living, natural supports, cognition, health status, behavioral health status, safety and environment.

(O) "Electronic Visit Verification" or "EVV" has the same meaning as set forth in rule 5160-1-40 of the Administrative Code.

(P) "Group rate" has the same meaning as set forth in rules 5160-46-06 and 5160-46-06.1 of the Administrative Code.

(Q) "Group setting" has the same meaning as set forth in rules 5160-44-22, 5160-44-27, 5160-46-04, 5160-46-06, and 5160-46-06.1 of the Administrative Code.

(R) "Health and safety action plan" or "HSAP" is the document created between ODM and its designee and an individual enrolled on an ODM-administered waiver that identifies the interventions recommended by the case management contractor to remedy risks to the health, safety and welfare of the individual.

(S) "Health and welfare" is the basis for an assurance to CMS made by ODM that necessary safeguards are taken to protect the health, safety and welfare of individuals enrolled on an ODM-administered waiver. CMS will not grant an ODM-administered waiver, and may terminate an existing ODM-administered waiver, if ODM fails to assure compliance with this requirement. Health and welfare safeguards include policies and procedures that direct the following:

(1) Risk and safety evaluations and planning;

(2) Incident management;

(3) Housing and environmental safety evaluations and planning;

(4) Restraint, seclusion and restrictive intervention evaluations and planning;

(5) Medication management; and

(6) Natural disaster and public emergency response planning.

(T) "Helping Ohioans move, expanding (HOME) choice" mean Ohio's money follows the person program described in Chapter 5160-51 of the Administrative Code that assists individuals with transferring from an institutional long term care setting to a home setting.

(U) "Intermediate care facility for individuals with intellectual disabilities (ICF-IID) level of care" has the same meaning as that term is set forth in rule 5123-8-01 of the Administrative Code.

(V) "Incident" has the same meaning as set forth in rule 5160-44-05 of the Administrative Code.

(W) "Individual" is a person who is enrolled on an ODM-administered waiver.

(X) "Individual waiver agreement" is the ODM-approved agreement signed by an individual and the case manager that assures the individual is voluntarily enrolling in an ODM-administered waiver as an alternative to receiving medicaid long term services and supports in an institutional setting. The responsibilities an individual will understand and agree to as a condition of waiver enrollment are set forth in the agreement.

(Y) "Institutional setting" is any nursing facility, intermediate care facility for individuals with intellectual disabilities (ICF-IID) or hospital.

(Z) "Instrumental activity of daily living" has the same meaning as set forth in rule 5160-3-05 of the Administrative Code.

(AA) "Intermediate level of care" has the same meaning as set forth in rule 5160-3-08 of the Administrative Code.

(BB) "Legally responsible family member," as that term is used in ODM-administered waivers, is an individual's spouse, or in the case of a minor, the individual's birth or adoptive parent.

(CC) "Medical necessity" and "medically necessary" have the same meaning as set forth in rule 5160-1-01 of the Administrative Code.

(DD) "Medicare-certified home health agency" is any entity, agency or organization that has and maintains medicare certification as a home health agency, and is eligible to participate in the medicaid program upon execution of a medicaid provider agreement in accordance with rule 5160-1-17.2 of the Administrative Code.

(EE) "MyCare Ohio plan" has the same meaning as set forth in rule 5160-58-01 of the Administrative Code.

(FF) "Natural supports" are unpaid caregivers who provide care to an individual.

(GG) "Neglect" has the same meaning as set forth in rule 5160-44-05 of the Administrative Code.

(HH) "Non-agency provider" means an RN, a licensed practical nurse (LPN) at the direction of an RN, a non-agency personal care aide, or a non-agency home care attendant who is eligible to participate in the medicaid program upon execution of a medicaid provider agreement in accordance with rule 5160-1-17.2 of the Administrative Code.

(II) "Nursing facility-based level of care" has the same meaning as set forth in rule 5160-3-05 of the Administrative Code.

(JJ) "ODM-administered waiver programs" are home and community-based services waivers administered by ODM in accordance with Chapters 5160-44, 5160-45, 5160-46 and/or 5160-58 of the Administrative Code, as applicable.

(KK) "ODM-administered waiver provider" is any entity or non-agency provider eligible to furnish ODM-administered waiver services upon execution of a medicaid provider agreement in accordance with rule 5160-1-17.2 of the Administrative Code.

(LL) "Otherwise-accredited agency" is an entity that has and maintains accreditation by a national accreditation organization for the provision of services upon execution of a medicaid provider agreement in accordance with rule 5160-1-17.2 of the Administrative Code. The national accreditation organization will be approved by CMS.

(MM) "Person-centered services plan" is the document that identifies person-centered goals, objectives and interventions selected by the individual and team to support the individual in their 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.

(NN) "Person-centered planning" is a process directed by the individual, that identifies his or her strengths, values, capacities, preferences, needs and desired outcomes. The process includes team members who assist and support the individual to identify and access medically necessary services and supports needed to achieve his or her defined outcomes in the most inclusive community setting. The individual and team identify goals, objectives and interventions to achieve these outcomes which are documented on the person-centered services plan by the case manager. The person-centered service planning process is described in rule 5160-44-02 of the Administrative Code.

(OO) "Provider" means a person or agency that has entered into a medicaid provider agreement for the purpose of furnishing ODM-administered waiver services. In the case of an agency, provider includes the agency's respective staff who have direct contact with individuals.

(PP) "Provider oversight contractor" is the entity designated by ODM to perform quality assurance, monitoring and oversight functions related to the ODM-administered waiver program.

(QQ) "Plan of care" is the medical treatment plan that is established, approved and signed by the treating physician. The plan of care is not the same as the person-centered services plan.

(RR) "Reportable incident" has the same meaning as set forth in rule 5160-44-05 of the Administrative Code.

(SS) "Restraint" is any of the following:

(1) "Chemical restraint," i.e., the use of any sedative psychotropic drug exclusively to manage or control behavior; or

(2) "Mechanical restraint," i.e., the use of any device to restrict an individual's movement or function, or that is used for any purpose other than positioning and/or alignment; or

(3) "Physical restraint," i.e., any hands-on or physical method that is used to restrict the movement or function of the individual's head, neck, torso, one or more limbs or entire body.

(TT) "Restrictive intervention" is any action or activity that limits an individual's rights for a period of time to assure an individual's health, safety or welfare. Restrictive intervention may only be used to safeguard individuals from accident or injury, or to help promote optimal health and welfare. Restrictive interventions include, but are not limited to, locking cabinets, using door alarms or limiting access to a desired item contingent upon a behavior or activity.

(UU) "Seclusion" or "time-out" is any restriction that is used to address a specified behavior and that prevents the individual from leaving a location for any period of time. Seclusion may include, but is not limited to, preventing an individual from leaving an area until he or she is calm.

(VV) "Significant change" is a variation in the health, care or needs of an individual that warrants further evaluation to determine if changes to the type, amount or scope of services are needed. Significant changes include, but are not limited to, differences in health status, caregiver status, residence/location of service delivery and service delivery that result in the individual not receiving waiver services for thirty days.

(WW) "Skilled level of care" has the same meaning as set forth in rule 5160-3-08 of the Administrative Code.

(XX) "Team" is a group of persons freely chosen by the individual to assist and support him or her in the development and implementation of his or her person-centered services plan. The team is led by the individual and will include the case manager. It can also include, but is not limited to, the individual's friends, family and natural supports, the physician and other professionals and providers.

(YY) "The joint commission" is a national organization that evaluates and accredits agencies that seek to participate in the medicare and medicaid programs. For the purpose of providing services to individuals enrolled on an ODM-administered waiver, the joint commission-accredited agencies are "otherwise-accredited agencies" that can provide the same ODM-administered waiver services that ACHC-accredited and CHAP-accredited agencies provide.

(ZZ) "Time away" is a restrictive intervention during which an individual is directed away from a location or activity using only verbal prompting to address a specified behavior. The individual is able to return to the location or activity at his or her choosing. Time away will never include the use of a physical prompt or escort. The use of a physical prompt or required timeline for re-engaging in an activity will elevate the intervention to seclusion.

(AAA) "Unexplained death" has the same meaning as set forth in rule 5160-44-05 of the Administrative Code.

Last updated January 2, 2024 at 8:35 AM

Supplemental Information

Authorized By: 5166.02
Amplifies: 5162.03, 5164.02, 5166.02
Five Year Review Date: 1/1/2029
Prior Effective Dates: 7/1/2015

Rule 5160-45-03 | Ohio department of medicaid (ODM) -administered waiver program: individual rights and responsibilities.

• Effective: January 1, 2024
• Promulgated Under: 119.03

Enrollment on an Ohio department of medicaid (ODM) -administered waiver is voluntary. Individuals enrolled on an ODM-administered waiver in accordance with rule 5160-46-02 of the Administrative Code will be informed of their rights and responsibilities. Individuals also have choice and control over the arrangement and provision of home and community-based waiver services, and the selection and control over the direction of approved waiver service providers.

(A) Individual rights.

An individual enrolled in an ODM-administered waiver has the right to:

(1) Be treated with dignity and respect.

(2) Be protected from abuse, neglect, exploitation and other threats to personal health, safety and well-being.

(3) Appoint an authorized representative to act on their behalf in accordance with 5160-1-33 of the Administrative Code.

(4) Receive waiver services in a person-centered manner that is in accordance with an approved person-centered services plan, is attentive to the individual's needs and maximizes personal independence.

(5) Conduct person-centered training of their waiver service providers.

(6) Choose his or her case management agency (CMA) and case managers, and

(a) Have the case manager explain what the ODM-administered waiver is, how it will assist the individual and what the individual's rights and responsibilities are;

(b) Participate with the case manager and the team in the person-centered services plan development process, and when possible, lead the process;

(c) Request assistance with recruitment of providers;

(d) Be able to effectively communicate with the case manager and team and receive information in a manner that is easy to understand;

(e) Be able to meet privately with the case manager;

(f) Receive ongoing assistance from the case manager; and

(g) Be able to request changes in CMA, as necessary, subject to ODM's approval.

(7) Make informed choices regarding the services and supports he or she receives and from whom, including provider-managed agency providers, non-agency providers, or participant-directed providers as those terms are defined in rule 5160-45-01 of the Administrative Code.

(8) Obtain the results of criminal records checks about current agency providers or provider applicants pursuant to section 5164.342 of the Revised Code and rules 5160-45-07 and 5160-45-11 of the Administrative Code.

(9) Obtain the results of criminal records checks about current non-agency providers or provider applicants pursuant to section 5164.341 of the Revised Code and rules 5160-45-08 and 5160-45-11 of the Administrative Code.

(10) Access files, records or other information related to the individual's health care.

(11) Be assured of confidentiality of personal and sensitive health care information pursuant to relevant confidentiality and information disclosure laws.

(12) Request assistance with problems, concerns and issues, and suggest changes without fear of repercussion.

(13) Be fully informed about how to contact the case manager and ODM with problems, concerns, issues or inquiries.

(14) Be informed of the right to appeal decisions made by ODM or its designee about waiver eligibility or services pursuant to division 5101:6 of the Administrative Code.

(B) Individual responsibilities.

(1) Upon enrollment in an ODM-administered waiver, the individual will sign an ODM-approved waiver agreement accepting responsibility to:

(a) Participate in, and cooperate during assessments to determine eligibility and enrollment in the waiver and service needs.

(b) Decide who, besides the case manager, will participate in the service planning process.

(c) Participate in, and cooperate with, the case manager and team in the development and implementation of person-centered services plans and plans of care.

(d) Participate in the recruitment, selection and dismissal of his or her providers.

(e) Participate in the development and maintenance of back-up plans that meet the needs of the individual.

(f) Work with the case manager and/or physician and the provider to identify and secure additional training within the provider's scope of practice in order to meet the individual's specific needs.

(g) Not direct the service provider to act in a manner that is contrary to relevant ODM-administered waiver program requirements, medicaid rules and regulations and all other applicable laws, rules and regulations.

(h) Verify service delivery in a manner that includes, but is not limited to; the date and location of service delivery, start and end times, and the signatures of the provider and the individual or authorized representative. All signatures will be obtained within three business days of the completion of service delivery.

(i) Notify the case manager when any change in provider is necessary. Notification will include the end date of the former provider, and the start date of the new provider.

(j) Authorize the exchange of information for development of the person-centered services plan with all of the individual's service providers, and in compliance with the "Health Insurance Portability and Accountability Act of 1996" (HIPAA) regulations set forth in 45 C.F.R. parts 160 and 164 (October 1, 2023) and the medicaid safeguarding information requirements set forth in 42 C.F.R. 431.000 to 431.306 (October 1, 2023) along with sections 5160.45 to 5160.481 of the Revised Code.

(k) Provide accurate and complete information including, but not limited to medical history.

(l) Utilize services in accordance with the approved person-centered services plan.

(m) Communicate to the provider personal preferences about the duties, tasks and procedures to be performed, and when appropriate, about provider performance concerns.

(n) Report to the case manager any service delivery issues including, but not limited to, service disruption, complaints and concerns about the provider, and/or health and safety issues.

(o) Keep scheduled appointments and notify the provider and case manager if he or she is going to miss a scheduled visit or service.

(p) Treat the case manager, team and providers with respect.

(q) Report to the case manager any significant changes, as defined in rule 5160-45-01 of the Administrative Code, that may affect the provision of services.

(r) Report to the case manager, in accordance with rule 5160-44-05 of the Administrative Code, incidents that may impact the health and welfare of the individual.

(s) Work with the case manager and team to resolve problems and concerns.

(t) Refuse to participate in dishonest or illegal activities involving providers, caregivers and team members.

(2) When an individual receives services from an agency provider, the individual will identify a location in his or her residence where a record containing a copy of his or her medication profile, if one exists, will be safely maintained. The record may also include the individual's medication administration record, treatment administration record, aide assignment, person-centered services plan and plans of care.

(3) When an individual receives services from a non-agency provider, the individual will identify a location in his or her residence where a copy of the clinical record will be safely maintained.

(C) If the individual fails to meet the requirements set forth in paragraph (B) of this rule, and/or the health and welfare of the individual receiving services from a non-agency provider cannot be assured, then the individual may be required to receive services from only agency providers. The individual will be afforded notice and hearing rights in accordance with division 5101:6 of the Administrative Code.

Last updated January 2, 2024 at 8:35 AM

Supplemental Information

Authorized By: 5166.02
Amplifies: 5162.03, 5164.02, 5166.02
Five Year Review Date: 1/1/2029

Rule 5160-45-04 | Ohio department of medicaid (ODM) -administered waiver program: provider enrollment process.

• Effective: October 11, 2021
• Promulgated Under: 119.03

(A) Ohio department of medicaid (ODM) -administered waiver provider applicants must successfully complete the provider enrollment process set forth in this rule and receive approval from ODM before furnishing services to an individual enrolled on an ODM-administered waiver. Services furnished before ODM approves and enrolls the provider applicant and before the provider is added to the approved person-centered services plan are not reimbursable.

(B) The provider applicant completes and submits a provider application to ODM in accordance with rule 5160-1-17 of the Administrative Code.

(C) Upon receipt of the provider application, ODM or its designee shall verify the provider applicant has submitted and meets all applicable ODM-administered waiver provider regulations set forth in Chapters 5160-1, 5160-44, 5160-45, 5160-46, and 5160-58 of the Administrative Code.

(D) ODM or its designee shall notify the provider applicant if the application does not contain all of the required documentation. The provider applicant shall have thirty calendar days from the date of written notification to submit the requested documentation. If the provider applicant does not submit the documentation within the prescribed time frame, ODM or its designee may reject the provider application.

(E) ODM shall enroll or deny enrollment of the provider applicant based upon its own review and the review and recommendation of its designee.

(F) ODM shall notify the provider applicant in writing of its decision. If ODM denies enrollment, it shall either issue the provider applicant appeal rights in accordance with Chapter 119. of the Revised Code, or reconsideration rights in accordance with rule 5160-70-02 of the Administrative Code.

(G) When a current ODM-administered waiver service provider submits its medicaid provider agreement revalidation application, or applies for a specialty under their current provider type, ODM shall ensure that criminal record check requirements set forth in Chapter 5160-45 of the Administrative Code are satisfied. ODM shall also review the provider's history, including but not limited to medicaid program compliance and performance. ODM may approve or deny revalidation based on its findings and in accordance with rule 5160-1-17.6 of the Administrative Code.

(H) When a former medicaid provider applies for enrollment to become an ODM-administered waiver provider, in addition to following the process outlined in paragraphs (A) to (F) of this rule, ODM shall also review the provider applicant's history including, but not limited to medicaid program compliance and performance. ODM may approve or deny enrollment based on its findings and in accordance with rules 5160-1-17.6 and 5160-1-17.7 of the Administrative Code.

Last updated October 12, 2021 at 12:28 PM

Supplemental Information

Authorized By: 5166.02
Amplifies: 5162.03, 5164.02, 5166.02
Five Year Review Date: 10/11/2026
Prior Effective Dates: 7/1/2004, 12/10/2020

Rule 5160-45-06 | Ohio department of medicaid (ODM) -administered waiver program: structural reviews of providers and investigation of provider occurrences.

• Effective: October 1, 2021
• Promulgated Under: 119.03

(A) The Ohio department of medicaid (ODM) or its designee shall continuously monitor every ODM-administered waiver provider. Monitoring activities shall include, but not be limited to:

(1) A structural review of compliance with all ODM-administered waiver provider requirements in accordance with paragraph (B) of this rule.

(2) Investigation of provider occurrences in accordance with paragraph (C) of this rule.

(B) Structural reviews.

(1) Medicare-certified and otherwise accredited agency providers as defined in rule 5160-45-01 of the Administrative Code are subject to reviews in accordance with their certification and accreditation bodies and may be exempt from a regularly scheduled structural review as determined by ODM. Upon request by ODM or its designee, medicare-certified and otherwise-accredited agency providers, shall make available within ten business days, all review reports and accepted plans of correction from the certification and/or accreditation bodies.

(2) All other agency providers are subject to structural reviews by ODM or its designee every two years after the provider begins furnishing billable services.

(3) All non-agency ODM-administered waiver providers are subject to structural reviews by ODM or its designee during each of the first three years after a provider begins furnishing billable services. Thereafter, and unless otherwise prescribed by either paragraph (B)(4) or (B)(5) of this rule, structural reviews shall be conducted annually.

(4) ODM or its designee may conduct biennial structural reviews of a non-agency ODM-administered waiver provider, when all the following apply:

(a) There were no findings against the provider during the provider's most recent structural review;

(b) The provider was not substantiated to be the violator in an incident described in rule 5160-44-05 of the Administrative Code;

(c) The provider was not the subject of more than one provider occurrence during the previous twelve months; and

(d) The provider does not live with an individual receiving ODM-administered waiver services.

(5) All ODM-administered waiver providers may be subject to an announced or unannounced structural review at any time as determined by ODM or its designee.

(6) Structural reviews may be conducted in person between the provider and ODM or its designee or via desk review, and in a manner consistent with paragraph (B)(3) of rule 5160-45-09 of the Administrative Code.

(7) All structural reviews use an ODM-approved structural review tool.

(8) Structural reviews shall not occur while the provider is furnishing services to an individual.

(9) The structural review process consists of the following activities:

(a) Except for unannounced structural reviews, the provider shall be notified in advance of the review to arrange a mutually acceptable time, date and location for the review. Advance notification shall also include identification of the time period for which the review is being conducted and a list of the type of documents required for the review.

(b) The provider shall ensure the availability of required documents and maintain the confidentiality of information about individuals enrolled on the ODM-administered waiver.

(c) ODM or its designee shall examine all substantiated incident reports or provider occurrences related to the provider. Documented findings of noncompliance shall be addressed during the review.

(d) The structural review shall include an evaluation of compliance with Chapter 5160-45 of the Administrative Code and Chapter(s) 5160-44, 5160-46, and/or 5160-58 of the Administrative Code, depending upon the waiver(s) under which the provider is furnishing services.

(e) A unit of service verification shall be conducted by ODM or its designee to ensure all waiver services are authorized, delivered and reimbursed in accordance with the approved person-centered services plan for the individual receiving waiver services.

(f) The provider's compliance with the home and community-based settings requirements set forth in rule 5160-44-01 of the Administrative Code will be evaluated, which will include interviews with individuals served in the setting.

(g) An evaluation shall be conducted to determine whether the provider has implemented all plans of correction approved since the last review. Failure to successfully complete all plans of correction and/or the existence of repeat violations may lead to additional sanctions including, but not limited to termination of their provider agreement.

(h) A final exit interview summarizing the overall outcome of the review will occur between the non-agency provider, or in the case of an agency provider, the agency administrator or his or her designee, and ODM or its designee at the conclusion of the review.

(10) The exit interview will be followed up with a written report to the provider from ODM or its designee. The report shall summarize the overall outcome of the structural review, specify the Administrative Code rules that are the basis for which noncompliance has been determined, and outline the specific findings of noncompliance. When findings are indicated, the provider shall respond in writing to the report in a plan of correction, including any individual remediation.

(11) ODM, at its sole discretion, may choose to suspend a provider's structural review.

(C) Provider occurrences.

(1) "Provider occurrence" means any alleged, suspected or actual performance or operational issue by a provider furnishing ODM-administered waiver services that does not meet the definition of an incident as set forth in rule 5160-44-05 of the Administrative Code. Provider occurrences include, but are not limited to alleged violations of provider eligibility and/or service specification requirements, provider conditions of participation, billing issues including overpayments, and medicaid fraud.

(2) Upon discovery, ODM or its designee shall investigate provider occurrences including requesting any documentation required for the investigation.

(3) If ODM or its designee substantiates the provider occurrence, it shall notify the provider. The notification shall specify:

(a) The provider's action or inaction that constituted the provider occurrence;

(b) The Administrative Code rule(s) that support the finding(s) of noncompliance;

(c) What the provider must do to correct the finding(s) of noncompliance, including acknowledgement of technical assistance, required training, and any individual remediation;

(D) Plans of correction for structural reviews and provider occurrences.

(1) The provider must submit to ODM or its designee a plan of correction for all identified findings of noncompliance, including any individual remediation, within forty-five calendar days after the date on the written report.

(2) If ODM or its designee finds the provider's plan of correction acceptable, it shall acknowledge, in writing, to the provider that the plan addresses the findings outlined in the written report. If ODM or its designee determines that it cannot approve the provider's plan of correction, it shall inform the provider of this determination, in writing, require that the provider submit a new plan of correction and specify the required actions that must be included in the plan of correction. The provider must submit the new plan of correction within the prescribed timframes, not to exceed forty-five calendar days.

(3) ODM permits flexibility with the required timeframes for submission of plans of correction required in this paragraph, so long as it is documented in the provider's file.

(E) If the possibility of an overpayment is identified through the structural review and/or provider occurrence processes, ODM will conduct a final review, and as appropriate, issue all payment adjustments in accordance with rule 5160-1-19 of the Administrative Code.

(F) ODM may take action against the provider in accordance with rule 5160-45-09 of the Administrative Code for failure to comply with any of the requirements set forth in this rule.

Last updated October 1, 2021 at 8:46 AM

Supplemental Information

Authorized By: 5166.02
Amplifies: 5162.03, 5164.02, 5166.02
Five Year Review Date: 2/1/2025
Prior Effective Dates: 7/1/2004

Rule 5160-45-07 | ODM-administered waiver programs: criminal records checks involving agency providers.

• Effective: April 1, 2018
• Promulgated Under: 119.03

(A) Unless otherwise stated in paragraphs (A)(1) and (A)(2) of this rule, this rule sets forth the process and requirements for the criminal records checks of persons under final consideration for employment with a waiver agency, and existing employees with a waiver agency in a full-time, part-time or temporary position, and who are providing home and community-based services (HCBS) in an Ohio department of medicaid (ODM) -administered waiver. This rule does not apply to:

(1) Any individual who is subject to a database review or a criminal records check under section 3701.881 of the Revised Code and rules adopted thereunder.

(2) Applicants and employees of a waiver agency that is also a community-based long term care provider who are subject to database reviews and criminal records checks in accordance with section 173.38 of the Revised Code and rules adopted thereunder.

(B) For the purposes of this rule,

(1) "Applicant" means a person who is under final consideration for employment with a waiver agency in a full-time, part-time or temporary position that involves providing HCBS.

(2) "Chief administrator" means the head of a waiver agency, or his or her designee.

(3) "Community-based long term care provider" has the same meaning as in section 173.39 of the Revised Code.

(4) "Criminal records check" has the same meaning as in section 109.572 of the Revised Code.

(5) "Department" means the Ohio department of medicaid (ODM).

(6) "Disqualifying offense" means any of the following:

(a) A violation of section 959.13, 959.131, 2903.01, 2903.02, 2903.03, 2903.04, 2903.041, 2903.11, 2903.12, 2903.13, 2903.15, 2903.16, 2903.21, 2903.211, 2903.22, 2903.34, 2903.341, 2905.01, 2905.02, 2905.05, 2905.11, 2905.12, 2905.32, 2905.33, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.21, 2907.22, 2907.23, 2907.24, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2907.33, 2909.02, 2909.03, 2909.04, 2909.22, 2909.23, 2909.24, 2911.01, 2911.02, 2911.11, 2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.05, 2913.11, 2913.21, 2913.31, 2913.32, 2913.40, 2913.41, 2913.42, 2913.43, 2913.44, 2913.441, 2913.45, 2913.46, 2913.47, 2913.48, 2913.49, 2913.51, 2917.01, 2917.02, 2917.03, 2917.31, 2919.12, 2919.121, 2919.123, 2919.22, 2919.23, 2919.24, 2919.25, 2921.03, 2921.11, 2921.12, 2921.13, 2921.21, 2921.24, 2921.32, 2921.321, 2921.34, 2921.35, 2921.36, 2921.51, 2923.12, 2923.122, 2923.123, 2923.13, 2923.161, 2923.162, 2923.21, 2923.32, 2923.42, 2925.02, 2925.03, 2925.04, 2925.041, 2925.05, 2925.06, 2925.09, 2925.11, 2925.13, 2925.14, 2925.141, 2925.22, 2925.23, 2925.24, 2925.36, 2925.55, 2925.56, 2927.12 or 3716.11 of the Revised Code, felonious sexual penetration in violation of former section 2907.12 of the Revised Code, a violation of section 2905.04 of the Revised Code as it existed prior to July 1, 1996; or

(b) A violation of section 2923.01, 2923.02, or 2923.03 of the Revised Code when the underlying offense that is the object of the conspiracy, attempt, or complicity is one of the offenses listed in paragraph (B)(6)(a) of this rule; or

(c) A violation of an existing or former municipal ordinance or law of the state of Ohio, any other state, or the United States that is substantially equivalent to any of the disqualifying offenses as set forth in paragraph (B)(6)(a) or (B)(6)(b) of this rule.

(7) "Employee" means a person employed by a waiver agency in a full-time, part-time, or temporary position that involves providing HCBS.

(8) "Home and community-based services medicaid waiver component" has the same meaning as in section 5166.01 of the Revised Code.

(9) "Retained applicant fingerprint database" or "RAPBACK" means the database maintained by the bureau of criminal investigation (BCI) pursuant to section 109.5721 of the Revised Code that contains the fingerprints of individuals on whom BCI has conducted criminal record checks to determine whether an applicant is ineligible for the medicaid provider agreement pursuant to this rule.

(10) "Waiver agency" means an entity that provides HCBS under an ODM-administered waiver program, other than such an entity that is certified under the medicare program. "Waiver agency" does not mean an independent provider as defined in section 5164.341 of the Revised Code or rule 5160-45-08 of the Administrative Code.

(C) No waiver agency shall employ an applicant or continue to employ an employee in a position that involves providing HCBS in an ODM-administered waiver program if the applicant or employee:

(1) Is included on one or more of the following databases:

(a) The system for award management (SAM) maintained by the United States general services administration;

(b) The list of excluded individuals and entities maintained by the office of inspector general in the United States department of health and human services pursuant to section 1128 of the "Social Security Act," 94 Stat. 2619 (1980), 42 U.S.C. 1320a-7, as amended, and section 1156 of the "Social Security Act," 96 Stat. 388 (1982), 42 U.S.C. 1320c-5, as amended, or if using ODM's automated registry check system (ARCS), the medicare exclusion database pursuant to 42 CFR 455.436 (as in effect on October 1, 2017);

(c) The Ohio department of developmental disabilities (DODD) online abuser registry established under section 5123.52 of the Revised Code;

(d) The internet-based sex offender and child-victim offender database established under division (A)(11) of section 2950.13 of the Revised Code;

(e) The internet-based database of inmates established under section 5120.66 of the Revised Code;

(f) Is included on the state nurse aide registry established under section 3721.32 of the Revised Code, and there is a statement detailing findings by the director of health that the applicant or employee neglected or abused a long-term care facility or residential care facility resident or misappropriated property of such a resident; or

(g) The Ohio medicaid provider exclusion and suspension list found at: http://medicaid.ohio.gov.

(2) Fails to:

(a) Submit to a criminal records check conducted by the bureau of criminal investigation (BCI), including failing to access, complete and forward to the superintendent the form or the standard fingerprint impression sheet; or

(b) Instruct the superintendent of BCI to submit the completed report of the criminal records check directly to the chief administrator of the waiver agency.

(3) Except as provided for in paragraphs (F) and (G) of this rule, the applicant or employee has been convicted of, or pleaded guilty to, a disqualifying offense, regardless of the date of the conviction or date of entry of the guilty plea.

(D) Process for conducting criminal records checks.

(1) At the time of each applicant's initial application for employment in a position that involves providing HCBS in an ODM-administered waiver program, the chief administrator of the waiver agency shall conduct a review of the databases listed in paragraph (C)(1) of this rule to determine whether the waiver agency is prohibited from employing the applicant in that position. The chief administrator of the waiver agency shall provide the applicant with a copy of any disqualifying information disclosed in the review of the databases.

(2) Except as otherwise noted in paragraph (C)(1) of this rule, the chief administrator of a waiver agency shall require each applicant to request that the BCI superintendent conduct a criminal records check with respect to the waiver agency applicant, and pursuant to sections 109.572 and 5164.342 of the Revised Code. The applicant must provide a set of fingerprints as part of the criminal records check.

(a) If an applicant does not present proof of having been a resident of the state of Ohio for the five-year period immediately prior to the date the criminal records check is requested, or provide evidence that within that five-year period the superintendent has requested information about the applicant from the federal bureau of investigation (FBI) in a criminal records check, the chief administrator shall require the applicant to request that the superintendent obtain information from the FBI as part of the criminal records check.

(b) Even if an applicant presents proof of having been a resident of the state of Ohio for the five-year period, the chief administrator may require the applicant to request that the superintendent obtain information from the FBI in the criminal records check.

(3) The chief administrator of a waiver agency shall provide the following to each applicant for whom a criminal records check is required by this rule:

(a) Information about accessing, completing and forwarding to the superintendent the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and the standard fingerprint impression sheet presented pursuant to division (C)(2) of that section; and

(b) Written notification that the applicant is to instruct the superintendent to submit the completed report of the criminal records check directly to the chief administrator of the waiver agency.

(4) Conditional employment.

(a) A waiver agency may conditionally employ an applicant for whom a criminal records check is required by this rule prior to obtaining the results of that check, provided that the waiver agency has conducted a review of the databases listed in paragraph (C)(1) of this rule and has determined the waiver agency is not prohibited from employing the applicant in that position. The chief administrator must require the applicant to request a criminal records check no later than five business days after he or she begins conditional employment.

(b) The waiver agency shall terminate conditional employment if the results of the criminal records check request, other than the results of any request for information from the FBI, are not obtained within sixty days of the criminal records check request.

(5) If the results of the criminal records check indicate that the individual has been convicted of, or has pleaded guilty to any of the disqualifying offenses set forth in paragraph (B)(6) of this rule, and regardless of the date of conviction or the date of entry of the guilty plea, then the waiver agency shall either:

(a) Terminate his or her employment; or

(b) Choose to employ the individual because he or she meets the conditions set forth in paragraph (F) of this rule.

(6) If the waiver agency determines that two or more convictions or guilty pleas result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction or guilty plea.

(7) Termination of employment shall be considered just cause for discharge for the purposes of division (D)(2) of section 4141.29 of the Revised Code if the individual makes any attempt to deceive the waiver agency about his or her criminal record.

(8) A waiver agency shall pay to BCI the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for any criminal records check required by this rule. However, a waiver agency may require an applicant to pay to BCI the fee for a criminal records check of the applicant. If the waiver agency pays the fee for an applicant, it may charge the applicant a fee not exceeding the amount the waiver agency pays to BCI pursuant to this rule if the waiver agency notifies the applicant at the time of application for employment of the amount of the fee and that, unless the fee is paid, he or she will not be considered for employment.

(9) Reports of any criminal records checks conducted by BCI in accordance with this rule are not public records for the purposes of section 149.43 of the Revised Code and shall not be made available to any person other than the following:

(a) The person who is the subject of the criminal records check or the individual's representative;

(b) The chief administrator of the waiver agency that requires the applicant to request the criminal records check or the administrator's representative;

(c) The director of ODM and the staff of the department who are involved in the administration of the Ohio medicaid program;

(d) The director of ODA or the director's designee if the waiver agency also is a community-based long-term care agency;

(e) An individual who receives, or may receive, waiver services from the person who is the subject of the criminal records check; and

(f) Any court, hearing officer or other necessary individual involved in a case dealing with a denial of employment of the applicant or termination of the employee; employment or unemployment benefits of the applicant or employee; or a civil or criminal action regarding the Ohio medicaid program.

(E) As a condition of continuing to employ an individual in a position that involves providing HCBS in an ODM-administered waiver program, the chief administrator of the waiver agency shall conduct a criminal records check of that employee at least once every five years according to one of the following three schedules set forth in paragraphs (E)(1) to (E)(3) of this rule. The chief administrator shall follow the same process set forth in paragraphs (D)(1) to (D)(9) of this rule.

(1) If the chief administrator of the waiver agency hired the employee before January 1, 2008, the chief adminstrator shall conduct a criminal records check of the employee no later than thirty days after the 2013 anniversary of the employee's date of hire and no later than thirty days after each anniversary date every five years after 2013.

(2) If the chief administrator of the waiver agency hired the employee on or after January 1, 2008, the chief administrator shall conduct a criminal records check of the employee no later than thirty days after the fifth anniversary of the employee's date of hire and no later than thirty days after each anniversary date every five years after the first fifth-year anniversary.

(3) The chief administrator of the waiver agency may conduct a criminal records check on any employee more frequently than every five years without any need to conduct a criminal records check according to the schedules set forth in paragraphs (E)(1) and (E)(2) of this rule.

(4) If the chief administrator of the waiver agency enrolls an employee in RAPBACK, the criminal records check requirements of this rule are considered to have been met for that employee.

(F) A waiver agency may choose to employ an applicant or continue to employ an employee who has been convicted of, or has pleaded guilty to, a disqualifying offense set forth in paragraph (B)(6) of this rule if:

(1) The applicant or employee has satisfied the conditions associated with the exclusionary periods set forth in rule 5160-45-11 of the Administrative Code; or

(2) The applicant or employee has obtained a certificate of qualification for employment issued by a court of common pleas with competent jurisdiction pursuant to section 2953.25 of the Revised Code, and in accordance with rule 5160-45-11 of the Administrative Code; or

(3) The applicant or employee has obtained a certificate of achievement and employability in an HCBS-related field, issued by the Ohio department of rehabilitation and corrections pursuant to section 2961.22 of the Revised Code, and in accordance with rule 5160-45-11 of the Administrative Code; and

(4) The applicant or employee has agreed, in writing, to have the waiver agency inform each potential consumer of the disqualifying offense, and has acknowledged, in writing, that the potential consumer has the right to select or reject to receive services from the applicant or employee, prior to commencing service delivery.

(G) A waiver agency may choose to continue to employ an employee who is otherwise excluded by paragraph (B)(6) of this rule if:

(1) The offense is a tier IV offense as set forth in paragraph (F) of rule 5160-45-11 of the Administrative Code;

(2) The employee was hired prior to January 1, 2013;

(3) The conviction or guilty plea occurred prior to January 1, 2013; and

(4) The waiver agency has considered the nature and seriousness of the offense(s), and attests in writing prior to April 1, 2013, to the character and fitness of the employee based on their demonstrated work performance. The required written attestation shall be maintained in the employee's personnel record.

(H) Pardons.

A conviction of, or a plea of guilty to, an offense as set forth in paragraph (B)(6) of this rule shall not prevent an agency from considering an applicant for employment or an employee for continued employment if any of the following circumstances apply:

(1) The applicant or employee has been granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code;

(2) The applicant or employee has been granted an unconditional pardon for the offense pursuant to an existing or former law of the state of Ohio, any other state, or the United States, if the law is substantially equivalent to Chapter 2967. of the Revised Code;

(3) The applicant or employee has been granted a conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the condition(s) under which the pardon was granted have been satisfied; or

(4) The applicant's or employee's conviction or guilty plea has been set aside pursuant to law.

(I) Documentation of compliance. Each waiver agency shall maintain a roster of applicants and employees, accessible by the director, which includes, but is not limited to:

(1) The name of each applicant and employee;

(2) The date the applicant or employee started work;

(3) The date the criminal records check request is submitted to BCI;

(4) The date the criminal records check is received; and

(5) A determination of whether the results of the check revealed that the applicant or employee committed a disqualifying offense(s).

Supplemental Information

Authorized By: 5164.342, 5166.02
Amplifies: 109.572, 5162.03, 5164.02, 5164.342, 5166.02
Five Year Review Date: 4/1/2023
Prior Effective Dates: 7/1/2004, 11/19/2007, 1/1/2013

Rule 5160-45-08 | ODM-administered waiver programs: criminal records checks involving independent providers.

• Effective: April 1, 2018
• Promulgated Under: 119.03

(A) This rule sets forth the process and requirements for the criminal records checks of independent providers of home and community-based services (HCBS) in Ohio department of medicaid (ODM) -administered waiver programs.

(B) For the purposes of this rule,

(1) "Anniversary date" means the later of the effective date of the provider agreement relating to the independent provider or sixty days after the effective date of section 5164.341 of the Revised Code (September 26, 2003).

(2) "Applicant" means a person who has applied for a medicaid provider agreement to provide HCBS as an independent provider under an ODM-administered waiver program.

(3) "Criminal records check" has the same meaning as in section 109.572 of the Revised Code.

(4) "Disqualifying offense" means any of the following:

(a) A violation of section 959.13, 959.131, 2903.01, 2903.02, 2903.03, 2903.04, 2903.041, 2903.11, 2903.12, 2903.13, 2903.15, 2903.16, 2903.21, 2903.211, 2903.22, 2903.34, 2903.341, 2905.01, 2905.02, 2905.05, 2905.11, 2905.12, 2905.32, 2905.33, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.21, 2907.22, 2907.23, 2907.24, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2907.33, 2909.02, 2909.03, 2909.04, 2909.22, 2909.23, 2909.24, 2911.01, 2911.02, 2911.11, 2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.05, 2913.11, 2913.21, 2913.31, 2913.32, 2913.40, 2913.41, 2913.42, 2913.43, 2913.44, 2913.441, 2913.45, 2913.46, 2913.47, 2913.48, 2913.49, 2913.51, 2917.01, 2917.02, 2917.03, 2917.31, 2919.12, 2919.121, 2919.321, 2919.22, 2919.23, 2919.24, 2919.25, 2921.03, 2921.11, 2921.12, 2921.13, 2921.21, 2921.24, 2921.32, 2921.123, 2921.34, 2921.35, 2921.36, 2921.51, 2923.12, 2923.122, 2923.123, 2923.13, 2923.161, 2923.162, 2923.21, 2923.32, 2923.42, 2925.02, 2925.03, 2925.04, 2925.041, 2925.05, 2925.06, 2925.09, 2925.11, 2925.13, 2925.14, 2925.141, 2925.22, 2925.23, 2925.24, 2925.36, 2925.55, 2925.56, 2927.12 or 3716.11 of the Revised Code, felonious sexual penetration in violation of former section 2907.12 of the Revised Code, a violation of section 2905.04 of the Revised Code as it existed prior to July 1, 1996; or

(b) A violation of section 2923.01, 2923.02, or 2923.03 of the Revised Code when the underlying offense that is the object of the conspiracy, attempt, or complicity is one of the offenses listed in paragraph (B)(5)(a) of this rule; or

(c) A violation of an existing or former municipal ordinance or law of the state of Ohio, any other state, or the United States that is substantially equivalent to any of the disqualifying offenses set forth in paragraph (B)(5)(a) or (B)(5)(b) of this rule.

(5) "Effective date of provider agreement" means the month in which the initial provider agreement was entered into between ODM and the independent provider.

(6) "Home and community-based services medicaid waiver component" has the same meaning as in section 5166.01 of the Revised Code.

(7) "Independent provider" means a person who has a medicaid provider agreement to provide HCBS as an independent provider in an ODM-administered waiver program. The term "independent provider" is interchangeable with the term "non-agency provider" in Chapters 5160-46 and 5160-58 of the Administrative Code.

(8) "Retained applicant fingerprint database" or "RAPBACK" means the database maintained by the bureau of criminal investigation (BCI) pursuant to section 109.5721 of the Revised Code that contains the fingerprints of individuals on whom BCI has conducted criminal record checks to determine whether an applicant is ineligible for a medicaid provider agreement pursuant to this rule.

(9) "Superintendent" means superintendent of the BCI.

(C) ODM or its designee shall deny an applicant's application for a medicaid provider agreement, and shall immediately take steps to terminate an independent provider's medicaid provider agreement, if any of the following applies:

(1) After the applicant is given the information and notification required by paragraphs (D)(6)(a), (D)(6)(b) and (D)(6)(c) of this rule, the applicant fails to do any of the following:

(a) Access, complete, and forward to the superintendent of BCI the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code, or the standard impression sheet prescribed pursuant to division (C)(2) of that section;

(b) Instruct the superintendent to submit the completed report of the criminal records check directly to ODM or its designee.

(2) Except as provided in paragraph (F) of this rule, the applicant or independent provider is found by a criminal records check to have been convicted of, or pleaded guilty to, a disqualifying offense, regardless of the date of the conviction, or the date of entry of the guilty plea. If ODM determines that two or more convictions or guilty pleas result from or are connected with the same act or result from offenses committed at the same time, they shall be counted as one conviction or guilty plea.

(3) The applicant or independent provider fails to comply with the provisions of this rule.

(D) Process for conducting criminal records checks.

(1) Each applicant, at the time of initial application for a medicaid provider agreement, shall provide a set of his or her fingerprints, and a criminal records check shall be conducted as a condition of ODM's approving the application.

(2) Each applicant and independent provider shall be subject to the database check requirements set forth in rule 5160-1-17.8 of the Administrative Code.

(3) If the applicant or independent provider does not present proof of having been a resident of the state of Ohio for the five-year period immediately prior to the date the criminal records check is requested, or provide evidence that within that five-year period the superintendent has requested information about the applicant or independent provider from the federal bureau of investigation (FBI) in a criminal records check, ODM or its designee shall request that the superintendent obtain a criminal records check from the FBI as part of the criminal records check.

(4) Even if an applicant or independent provider presents proof of having been a resident of the state of Ohio for the five-year period, ODM or its designee may request the superintendent obtain information from the FBI in the criminal records check.

(5) In order to maintain active provider status, each independent provider must have his or her fingerprints submitted to BCI to be maintained in RAPBACK. ODM shall pay BCI any reasonable fees associated with receiving notifications under division (D) of section 109.5721 of the Revised Code.

(6) ODM or its designee shall provide the following to each applicant and independent provider for whom a criminal records check is required by this rule:

(a) Information about accessing, completing and forwarding to the superintendent the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and the standard fingerprint impression sheet prescribed pursuant to division (C)(2) of that section;

(b) Information about accessing, completing and forwarding to the superintendent the information required for RAPBACK pursuant to section 109.5721 of the Revised Code.

(c) Written notification that the applicant or independent provider is to instruct the superintendent to submit the completed report of the criminal records check directly to ODM or its designee.

(7) Each applicant and independent provider shall pay BCI the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check conducted on his or her behalf pursuant to paragraphs (D)(1), (D)(3) and (D)(4) of this rule.

(8) Reports of any criminal records checks conducted by BCI in accordance with this rule are not public records for the purposes of section 149.43 of the Revised Code and shall not be made available to any person other than the following:

(a) The person who is the subject of the criminal records check or his or her representative;

(b) The director of ODM and the staff of ODM involved in the administration of the Ohio medicaid program;

(c) ODM's designee;

(d) An individual who receives, or may receive, waiver services from the person who is the subject of the criminal records check; and

(e) A court, hearing officer or other necessary individual involved in a case dealing with either a denial or termination of a medicaid provider agreement related to the criminal records check, or a civil or criminal action regarding the Ohio medicaid program.

(E) An individual may choose to receive waiver services from an applicant or independent provider who has been convicted of, or pleaded guilty to, a disqualifying offense set forth in paragraph (B)(5) of this rule if:

(1) The applicant or independent provider has satisfied the conditions associated with the exclusionary periods set forth in rule 5160-45-11 of the Administrative Code; or

(2) The applicant or independent provider has obtained a certificate of qualification for employment issued by a court of common pleas with competent jurisdiction pursuant to section 2953.25 of the Revised Code, and in accordance with rule 5160-45-11 of the Administrative Code; or

(3) The applicant or independent provider has obtained a certificate of achievement and employability in an HCBS-related field issued by the Ohio department of rehabilitation and corrections pursuant to section 2961.22 of the Revised Code, and in accordance with rule 5160-45-11 of the Administrative Code.

(F) Pardons.

A conviction of, or a plea of guilty to, an offense as set forth in paragraph (B)(5) of this rule shall not prevent a consumer from choosing to receive services from an applicant or independent provider if any of the following circumstances apply:

(1) The applicant or independent provider has been granted an unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code;

(2) The applicant or independent provider has been granted an unconditional pardon for the offense pursuant to an existing or former law of the state of Ohio, any other state, or the United States, if the law is substantially equivalent to Chapter 2967. of the Revised Code;

(3) The applicant or independent provider has been granted a conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the condition(s) under which the pardon was granted have been satisfied; or

(4) The applicant's or independent providers' conviction or guilty plea has been set aside pursuant to law.

Supplemental Information

Authorized By: 5164.341, 5166.02
Amplifies: 109.572, 109.5721, 5162.03, 5164.02, 5164.341, 5166.02
Five Year Review Date: 4/1/2023
Prior Effective Dates: 7/1/2004

Rule 5160-45-09 | ODM-administered waiver program: program compliance, monitoring and oversight of ODM-administered waiver service providers and ODM-administered waiver program contractors.

• Effective: June 1, 2019
• Promulgated Under: 119.03

(A) The Ohio department of medicaid (ODM) is responsible for the ongoing monitoring and oversight of all ODM-administered waiver service providers and all ODM-administered waiver contractors in order to assure providers' and contractors' compliance with ODM-administered waiver program requirements.

(B) Monitoring and oversight of ODM-administered waiver service providers.

(1) ODM and its designee shall conduct ongoing monitoring and oversight of ODM-administered waiver service providers to verify that each provider is:

(a) Complying with the terms and conditions of its medicaid provider agreement, the ODM-administered waiver program and all applicable federal, state and local laws and regulations.

(b) Ensuring the health and welfare of individuals to whom they are providing services.

(c) Ensuring the provision of quality services as part of the ODM-administered waiver program.

(2) Monitoring and oversight includes, but is not limited to the following:

(a) Interviews with individuals enrolled on the ODM-administered waivers and/or their authorized representative or legal guardian, providers and contractor staff.

(b) Visits to the provider's place of business or another agreed upon location for the purpose of examining or collecting records, reviewing documentation, and conducting structural reviews.

(c) Reviews of electronic and/or hard copy records and billing documentation, etc.

(3) Providers shall fully cooperate with all requests made by ODM, and/or its designee as part of the monitoring and oversight process. This includes, but is not limited to the following:

(a) Upon request, arranging for or otherwise furnishing an adequate workspace for ODM and/or its designee to conduct visits as described in paragraph (B)(2)(b) of this rule. This workspace must be in a secure location which protects sensitive and confidential information from being disclosed contrary to relevant confidentiality and information disclosure laws.

(b) Making all requested information available at the time of review.

(c) Ensuring the availability of supervisors and/or other staff who may possess relevant information to answer questions.

(4) At the conclusion of a provider's monitoring and oversight review:

(a) ODM or its designee shall notify the provider in writing of its findings. ODM or its designee may do any of the following:

(i) Request that the provider prepare and submit to ODM or its designee a plan of correction within the prescribed time frame. The plan of correction shall set forth the action(s) that must be taken by the provider to correct each finding, and establish a target date by which the corrective action must be completed. If ODM or its designee does not approve the submitted plan of correction, ODM or its designee may request a new plan of correction or take other appropriate action.

(ii) Provide technical assistance to the provider.

(iii) Refer the provider to other entities for further investigation. Such entities include, but are not limited to:

(a) The surveillance and utilization review section (SURS) or other program area(s) within ODM;

(b) The Ohio attorney general;

(c) The Ohio department of health (ODH);

(d) The Ohio board of nursing (OBN);

(e) Other licensing, certification or credentialing bodies, as appropriate; and

(f) Law enforcement.

(b) ODM may:

(i) Issue the provider a notice of operational deficiency (NOD) based upon its or its designee's review findings.

(ii) Propose suspension or termination of the provider's medicaid provider agreement pursuant to section 5164.38 of the Revised Code and rules 5160-1-17.5 and 5160-1-17.6 of the Administrative Code.

(C) Monitoring and oversight of ODM-administered waiver contractors.

(1) ODM shall conduct ongoing monitoring and oversight of the ODM-administered waiver contractors to verify that each contractor is:

(a) Complying with the terms and conditions of its contract and all applicable federal, state and local laws and regulations.

(b) Ensuring the health and welfare of individuals to whom they are providing services.

(c) Ensuring the provision of quality services as part of the ODM-administered waiver program.

(2) Monitoring and oversight may include, but are not limited to the following:

(a) Interviews with individuals enrolled on the ODM-administered waivers and/or their authorized representative or legal guardian, providers and contractor staff.

(b) Visits to the contractor's place of business or another agreed upon location for the purpose of examining or collecting records, reviews of documentation, structural reviews.

(c) Reviews of electronic and/or hard copy records and billing documentation, etc.

(3) Contractors shall fully cooperate with all requests made by ODM as part of the monitoring and oversight process. This includes, but is not limited to the following:

(a) Upon request, arranging for or otherwise furnishing an adequate workspace for ODM to conduct visits as described in paragraph (C)(2)(b) of this rule. This workspace must be in a secure location which protects sensitive and confidential information from being disclosed contrary to relevant confidentiality and information disclosure laws.

(b) Making all requested information available at the time of review, and in accordance with the terms of compliance with contracts.

(c) Ensuring the availability of supervisors and/or other staff who may possess relevant information to answer questions.

(4) At the conclusion of a contractor's monitoring and oversight review, ODM shall notify the contractor of its findings. Additionally, if determined appropriate, ODM may do any of the following:

(a) Request that the contractor prepare and submit to ODM a plan of correction within the prescribed time frame. The plan of correction shall set forth the action(s) that must be taken to correct each finding, and establish a target date by which the corrective action must be completed. If ODM does not approve the submitted plan of correction, ODM may request a new plan of correction or take other appropriate action.

(b) Provide technical assistance to the contractor.

(c) Refer the contractor to other entities for further investigation. Such entities include, but are not limited to:

(i) SURS;

(ii) The Ohio attorney general;

(iii) ODH;

(iv) OBN;

(v) Other licensing, certification or credentialing bodies, as appropriate; and

(vi) Law enforcement.

(d) Issue the contractor a NOD based upon review findings.

(e) Terminate the contractor's contract pursuant to its terms.

Supplemental Information

Authorized By: 5166.02
Amplifies: 5166.02, 5166.11
Five Year Review Date: 6/1/2024
Prior Effective Dates: 7/1/1998

Rule 5160-45-11 | ODM-administered waiver programs: exclusionary periods for disqualifying offenses; certificates; and pardons.

• Effective: May 23, 2022
• Promulgated Under: 119.03

(A) Except as set forth in paragraph (H) of this rule, a waiver agency may employ an applicant or continue to employ an employee who has been convicted of or pleaded guilty to an offense listed in paragraph (B)(6) of rule 5160-45-07 of the Administrative Code in a position involving providing home and community-based services (HCBS) to an individual enrolled on an Ohio department of medicaid (ODM) -administered waiver pursuant to the timeframes set forth in this rule.

(B) Except as set forth in paragraph (H) of this rule, an applicant or independent provider who has been convicted of or pleaded guilty to an offense listed in paragraph (B)(5) of rule 5160-45-08 of the Administrative Code may be selected by an individual enrolled on an ODM-administered waiver program to provide them with HCBS pursuant to the timeframes set forth in this rule.

(C) Tier I. Permanent exclusion.

(1) No waiver agency shall employ an applicant or continue to employ an employee in a position that involves providing HCBS to an individual, nor shall an independent provider provide HCBS to an individual, if the applicant, employee or independent provider has been convicted of or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2903.01 (aggravated murder);

(b) 2903.02 (murder);

(c) 2903.03 (voluntary manslaughter);

(d) 2903.11 (felonious assault);

(e) 2903.15 (permitting child abuse);

(f) 2903.16 (failing to provide for a functionally-impaired person);

(g) 2903.34 (patient abuse or neglect);

(h) 2903.341 (patient endangerment);

(i) 2905.01 (kidnapping);

(j) 2905.02 (abduction);

(k) 2905.32 (human trafficking);

(l) 2905.33 (unlawful conduct with respect to documents);

(m) 2907.02 (rape);

(n) 2907.03 (sexual battery);

(o) 2907.04 (unlawful sexual conduct with a minor, formerly corruption of a minor);

(p) 2907.05 (gross sexual imposition);

(q) 2907.06 (sexual imposition);

(r) 2907.07 (importuning);

(s) 2907.08 (voyeurism);

(t) 2907.12 (felonious sexual penetration, as that offense existed prior to September 3, 1996);

(u) 2907.31 (disseminating matter harmful to juveniles);

(v) 2907.32 (pandering obscenity);

(w) 2907.321 (pandering obscenity involving a minor);

(x) 2907.322 (pandering sexually-oriented matter involving a minor);

(y) 2907.323 (illegal use of a minor in nudity-oriented material or performance);

(z) 2909.22 (soliciting or providing support for act of terrorism);

(aa) 2909.23 (making terroristic threats);

(bb) 2909.24 (terrorism);

(cc) 2913.40 (medicaid fraud);

(dd) If related to another offense under paragraph (C)(1) of this rule, 2923.01 (conspiracy), 2923.02 (attempt), or 2923.03 (complicity); or

(2) A conviction related to fraud, theft, embezzlement, breach of fiduciary responsibility, or other financial misconduct involving a federal or state-funded program, excluding the disqualifying offenses set forth in section 2913.46 of the Revised Code (illegal use of supplemental nutrition assistance program (SNAP) or women, infants, and children (WIC) program benefits) and paragraph (D)(1)(m) of this rule; or.

(3) A violation of an existing or former municipal ordinance or law of this state, any other state, or the United States that is substantially equivalent to any of the offenses or violations described in paragraph (B)(1) or (B)(2) of this rule.

(D) Tier II. Ten-year exclusionary period.

(1) No waiver agency shall employ an applicant or continue to employ an employee in a position that involves providing HCBS to an individual, nor shall an independent provider provide HCBS to an individual, for a period of ten years from the date the applicant, employee or independent provider was fully discharged from all imprisonment, probation or parole, if the applicant, employee or independent provider has been convicted of or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2903.04 (involuntary manslaughter);

(b) 2903.041 (reckless homicide);

(c) 2905.04 (child stealing, as that offense existed prior to July 1, 1996);

(d) 2905.05 (child enticement);

(e) 2905.11 (extortion);

(f) 2907.21 (compelling prostitution);

(g) 2907.22 (promoting prostitution);

(h) 2907.23 (enticement or solicitation to patronize a prostitute; procurement of a prostitute for another);

(i) 2909.02 (aggravated arson);

(j) 2909.03 (arson);

(k) 2911.01 (aggravated robbery);

(l) 2911.11 (aggravated burglary);

(m) 2913.46 (illegal use of SNAP or WIC program benefits);

(n) 2913.48 (worker's compensation fraud);

(o) 2913.49 (identity fraud);

(p) 2917.02 (aggravated riot);

(q) 2923.12 (carrying concealed weapons);

(r) 2923.122 (illegal conveyance or possession of deadly weapon or dangerous ordnance in a school safety zone, illegal possession of an object indistinguishable from a firearm in a school safety zone);

(s) 2923.123 (illegal conveyance, possession, or control of deadly weapon or ordnance into courthouse);

(t) 2923.13 (having weapons while under a disability);

(u) 2923.161 (improperly discharging a firearm at or into a habitation or school);

(v) 2923.162 (discharge of firearm on or near prohibited premises);

(w) 2923.21 (improperly furnishing firearms to minor);

(x) 2923.32 (engaging in a pattern of corrupt activity);

(y) 2923.42 (participating in a criminal gang);

(z) 2925.02 (corrupting another with drugs);

(aa) 2925.03 (trafficking in drugs);

(bb) 2925.04 (illegal manufacture of drugs or cultivation of marijuana);

(cc) 2925.041 (illegal assembly or possession of chemicals for the manufacture of drugs);

(dd) 3716.11 (placing harmful or hazardous objects in food or confection); or

(ee) If related to an offense under paragraph (D)(1) of this rule, 2923.01 (conspiracy), 2923.02 (attempt), or 2923.03 (complicity); or

(2) A violation of an existing or former municipal ordinance or law of this state, any other state or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (D)(1) of this rule.

(3) If an applicant, employee or independent provider has been convicted of multiple disqualifying offenses, including an offense listed in paragraph (D)(1) or (D)(2) of this rule, and another offense or offenses listed in paragraph (D)(1), (D)(2), (E)(1), (E)(2), (F)(1) or (F)(2) of this rule, the applicant, employee or independent provider is subject to a fifteen-year exclusionary period beginning on the date the applicant, employee or independent provider was fully discharged from all imprisonment, probation or parole for the most recent offense.

(E) Tier III. Seven-year exclusionary period.

(1) No waiver agency shall employ an applicant or continue to employ an employee in a position that a involves providing HCBS to an individual, nor shall an independent provider provide HCBS to an individual, for a period of seven years from the date the applicant, employee or independent provider was fully discharged from all imprisonment, probation or parole, if the applicant, employee or independent provider has been convicted of or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 959.13 (cruelty to animals);

(b) 959.131 (prohibitions concerning companion animals);

(c) 2903.12 (aggravated assault);

(d) 2903.21 (aggravated menacing);

(e) 2903.211 (menacing by stalking);

(f) 2905.12 (coercion);

(g) 2909.04 (disrupting public services);

(h) 2911.02 (robbery);

(i) 2911.12 (burglary);

(j) 2913.47 (insurance fraud);

(k) 2917.01 (inciting to violence);

(l) 2917.03 (riot);

(m) 2917.31 (inducing panic);

(n) 2919.22 (endangering children):

(o) 2919.25 (domestic violence);

(p) 2921.03 (intimidation);

(q) 2921.11 (perjury);

(r) 2921.13 (falsification, falsification in a theft offense, falsification to purchase a firearm, or falsification to obtain a concealed handgun license);

(s) 2921.34 (escape);

(t) 2921.35 (aiding escape or resistance to lawful authority);

(u) 2921.36 (illegal conveyance of weapons, drugs or other prohibited items onto the grounds of a detention facility or institution);

(v) 2925.05 (funding drug trafficking);

(w) 2925.06 (illegal administration or distribution of anabolic steroids);

(x) 2925.24 (tampering with drugs);

(y) 2927.12 (ethnic intimidation); or

(z) If related to an offense under paragraph (E)(1) of this rule, 2923.01 (conspiracy), 2923.02 (attempt), or 2923.03 (complicity); or

(2) A violation of an existing or former municipal ordinance or law of this state, any other state or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (E)(1) of this rule.

(3) If an applicant, employee or independent provider has been convicted of multiple disqualifying offenses, including an offense listed in paragraph (E)(1) or (E)(2) of this rule, and another offense or offenses listed in paragraph (E)(1), (E)(2), (F)(1) or (F)(2) of this rule, the applicant, employee or independent provider is subject to a ten-year exclusionary period beginning on the date the applicant, employee or independent provider was fully discharged from all imprisonment, probation or parole for the most recent offense.

(F) Tier IV. Five-year exclusionary period.

(1) No waiver agency shall employ an applicant or continue to employ an employee in a position that involves providing HCBS to an individual, nor shall an independent provider provide HCBS to an individual, for a period of five years from the date the applicant, employee or independent provider was fully discharged from all imprisonment, probation or parole, if the applicant, employee or independent provider has been convicted of or pleaded guilty to, an offense in any of the following sections of the Revised Code:

(a) 2903.13 (assault);

(b) 2903.22 (menacing);

(c) 2907.09 (public indecency);

(d) 2907.24 (soliciting);

(e) 2907.25 (prostitution);

(f) 2907.33 (deception to obtain matter harmful to juveniles);

(g) 2911.13 (breaking and entering);

(h) 2913.02 (theft);

(i) 2913.03 (unauthorized use of a vehicle);

(j) 2913.04 (unauthorized use of computer, cable or telecommunication property);

(k) 2913.05 (telecommunication fraud);

(l) 2913.11 (passing bad checks);

(m) 2913.21 (misuse of credit cards);

(n) 2913.31 (forgery - forging identification cards or selling or distributing forged identification cards);

(o) 2913.32 (criminal simulation);

(p) 2913.41 (defrauding a rental agency or hostelry);

(q) 2913.42 (tampering with records);

(r) 2913.43 (securing writings by deception);

(s) 2913.44 (personating an officer);

(t) 2913.441 (unlawful display of law enforcement emblem);

(u) 2913.45 (defrauding creditors);

(v) 2913.51 (receiving stolen property);

(w) 2919.12 (unlawful abortion);

(x) 2919.121 (unlawful abortion upon minor);

(y) 2919.123 (unlawful distribution of an abortion-inducing drug);

(z) 2919.124 (unlawful performance of a drug-induced abortion);

(aa) 2919.23 (interference with custody);

(bb) 2919.24 (contributing to the unruliness or delinquency of a child);

(cc) 2921.12 (tampering with evidence);

(dd) 2921.21 (compounding a crime);

(ee) 2921.24 (disclosure of confidential information);

(ff) 2921.32 (obstructing justice);

(gg) 2921.321 (assaulting or harassing a police dog, horse, or service animal);

(hh) 2921.51 (impersonation of peace officer);

(ii) 2925.09 (illegal administration, dispensing, distribution, manufacture, possession, selling, or using of any dangerous veterinary drug);

(jj) 2925.11 (drug possession, other than a minor drug possession offense);

(kk) 2925.13 (permitting drug abuse);

(ll) 2925.22 (deception to obtain a dangerous drug);

(mm) 2925.23 (illegal processing of drug documents);

(nn) 2925.36 (illegal dispensing of drug samples);

(oo) 2925.55 (unlawful purchase of pseudoephedrine product);

(pp) 2925.56 (unlawful sale of pseudoephedrine product);

(qq) If related to an offense under paragraph (F)(1) of this rule, 2923.01 (conspiracy), 2923.02 (attempt), or 2923.03 (complicity); or

(2) A violation of an existing or former municipal ordinance or law of this state, any other state or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (F)(1) of this rule.

(3) If an applicant, employee or independent provider has been convicted of multiple disqualifying offenses listed in paragraph (F)(1) or (F)(2) of this rule, the applicant, employee or independent provider is subject to a seven-year exclusionary period beginning on the date the applicant, employee or independent provider was fully discharged from all imprisonment, probation or parole for the most recent offense.

(G) Tier V. No exclusionary period.

(1) A waiver agency may employ an applicant or continue to employ an employee in a position that involves providing HCBS to an individual, and an independent provider may provide HCBS to an individual if the applicant, employee or independent provider has been convicted of or pleaded guilty to, any of the following offenses:

(a) 2919.21 (non-support/contributing to non-support of dependents);

(b) 2925.11 (drug possession that is a minor drug possession offense); or

(c) 2925.14 (drug paraphernalia); or

(d) 2925.141 (illegal use or possession of marihuana drug paraphernalia); or

(2) A violation of an existing or former municipal ordinance or law of this state, any other state or the United States that is substantially equivalent to any of the offenses or violations described under paragraph (G)(1) of this rule.

(H) Certificates.

Except for individuals who have been convicted of or pleaded guilty to, a disqualifying offense set forth in paragraph (C) of this rule, a waiver agency may employ an applicant or continue to employ an employee in a position involving providing HCBS to an individual, and an individual may choose to receive services from an applicant or independent provider, if the applicant, employee or independent provider has been issued either of the following:

(1) A certificate of qualification for employment issued by a court of common pleas with competent jurisdiction pursuant to section 2953.25 of the Revised Code; or

(2) A certificate of achievement and employability in an HCBS-related field, issued by the Ohio department of rehabilitation and corrections pursuant to section 2961.22 of the Revised Code.

(I) Pardons.

(1) A conviction of, or plea of guilty to, an offense as set forth in paragraph (B)(6) of rule 5160-45-07 of the Administrative Code shall not prevent a waiver agency from considering an applicant for employment or an employee for continued employment, if any of the following circumstances apply:

(a) The applicant or employee has been granted:

(i) An unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code;

(ii) An unconditional pardon for the offense pursuant to an existing or former law of this state, any other state, or the United States, if the law is substantially equivalent to Chapter 2967. of the Revised Code; or

(iii) A conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the conditions under which the pardon was granted have been satisfied.

(b) The applicant's or employee's conviction or guilty plea has been set aside pursuant to law.

(2) A conviction of, or plea of guilty to, an offense as set forth in paragraph (B)(5) of rule 5160-45-08 of the Administrative Code shall not prevent an individual from choosing to receive services from an applicant or independent provider, if any of the following circumstances apply:

(a) The applicant or independent provider has been granted:

(i) An unconditional pardon for the offense pursuant to Chapter 2967. of the Revised Code;

(ii) An unconditional pardon for the offense pursuant to an existing or former law of this state, any other state, or the United States, if the law is substantially equivalent to Chapter 2967. of the Revised Code; or

(iii) A conditional pardon for the offense pursuant to Chapter 2967. of the Revised Code, and the conditions under which the pardon was granted have been satisfied.

(b) The applicant's or independent provider's conviction or guilty plea has been set aside pursuant to law.

Last updated May 23, 2022 at 8:01 AM

Supplemental Information

Authorized By: 5164.341, 5164.342, 5166.02
Amplifies: 109.572, 109.5721, 5162.03, 5164.02, 5164.341, 5164.342, 5166.02
Five Year Review Date: 5/23/2027
Prior Effective Dates: 4/1/2018