Chapter 5160-45 Administered Waiver Service Providers

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

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

(A) "Abuse" has the same meaning as set forth in rule 5160-45-05 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) "Acknowledgement of responsibility" is the document created between ODM or 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 and welfare of the individual.

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

(E) "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.

(F) "Alert" has the same meaning as set forth in rule 5160-45-05 of the Administrative Code.

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

(H) "Authorized representative" is a person the individual appoints to act on his or her behalf in accordance with rule 5160:1-1- 55.1 of the Administrative Code.

(I) "Case management contractor" is the entity designated by ODM to provide case management services to individuals enrolled on an ODM-administered waiver.

(J) "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.

(K) "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-admininistered waiver.

(L) "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.

(M) "Case manager visit" is a face-to-face 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 must interact (i.e., converse, make visual contact and otherwise engage the individual at his or her functional ability) during every case manager visit.

(N) "CDJFS" is a county department of job and family services.

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

(P) "CMS" is the federal centers for medicare and medicaid services.

(Q) "Community health accreditation program" or "(CHAP)" is a national organization that evaluates and accredits agencies seeking to particpate 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.

(R) "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 a face-to-face 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.

(S) "Exploitation" has the same meaning as set forth in rule 5160-45-05 of the Administrative Code.

(T) "Group rate" has the same meaning as set forth in rules 5160-46- 04.1, 5160-46-06, 5160-46- 06.1, 5160-50- 04.1, 5160-50-06 and 5160-50- 06.1 of the Administrative Code.

(U) "Group setting" has the same meaning as set forth in rules 5160-46- 04.1 5160-46-06, 5160-46- 06.1, 5160-50- 04.1, 5160-50-06 and 5160-50- 06.1 of the Administrative Code.

(V) "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.

(W) "HOME choice program" and "helping Ohioans move, expanding choice" mean Ohio's money follows the person demonstration project that assists individuals with transferring from an institutional long term care setting to a home setting.

(X) "ICF-MR-based level of care" has the same meaning as "developmental disabilities level of care" as that term is set forth in rule 5123:2-8-01 of the Administrative Code. For the purposes of the ODM-administered waiver program, "intermediate care facility for individuals with intellectual disabilities-based level of care" and "ICF-IID-based level of care" are the same as "ICF-MR-based level of care."

(Y) "Incident" has the same meaning as set forth in rule 5160-45-05 of the Administrative Code.

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

(AA) "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 must understand and agree to as a condition of waiver enrollment are set forth in the agreement.

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

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

(DD) "Intermediate level of care" has the same meaning as set forth in rules 5160-3-08 and 5160-3-09 of the Administrative Code.

(EE) "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.

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

(GG) "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.

(HH) "Misappropriation" has the same meaning as set forth in rule 5160-45-05 of the Administrative Code.

(II) "MITS" is the medicaid information technology system.

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

(KK) "Neglect" has the same meaning as set forth in rule 5160-45-05 of the Administrative Code.

(LL) "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.

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

(NN) "ODM" is the Ohio department of medicaid.

(OO) "ODM-administered waiver programs" are home and community-based services waivers administered by ODM in accordance with Chapter 5160-45 of the Administrative Code, and Chapter 5160-46 and/or 5160-50 of the Administrative Code, as applicable.

(PP) "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.

(QQ) "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 shall be approved by CMS.

(RR) "Person-centered services plan" is the document that identifies 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.

(SS) "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.

(TT) "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.

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

(VV) "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.

(WW) "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.

(XX) "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.

(YY) "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.

(ZZ) "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.

(AAA) "Skilled level of care" has the same meaning as set forth in rules 5160-3-08 and 5160-3-09 of the Administrative Code.

(BBB) "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 must 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.

(CCC) "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.

(DDD) "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 shall 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.

Replaces: 5160-45-01

Effective: 7/1/2015
Five Year Review (FYR) Dates: 07/01/2020
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02
Prior Effective Dates: 5/1/98, 9/29/00, 3/1/02 (Emer), 5/30/02, 7/1/06, 2/15/07, 10/26/09, 7/1/10, 10/25/10

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

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 or 5160-50-02 of the Administrative Code shall 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 rules 5160:1-1- 50.1 and 5160:1-1- 55.1 of the Administrative Code.

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

(5) Choose his or her case management agency 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 all 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 case management agency and/or case manager, as necessary.

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

(7) Obtain the results of criminal records checks about current agency providers or provider applicants pursuant to section 5164.342 of the Revised Code.

(8) Obtain the results of criminal records checks about current non-agency providers or provider applicants pursuant to section 5164.341 of the Revised Code.

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

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

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

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

(13) 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 must 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 all 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) Validate service delivery in a manner that includes, but is not limited to, the date and location of service delivery, arrival and departure times of the provider, the dated signature of the provider and the dated signature of the individual. All signatures shall be obtained at the end of every visit or upon completion of the scheduled service. When services are rendered in multiple visits per day, signatures must be obtained upon completion of each visit.

(i) Notify the case manager when any change in provider is necessary. Notification shall 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 all 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, 2014) and the medicaid safeguarding information requirements set forth in 42 C.F.R. 431.000 to 431.306 (October 1, 2014) 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 all 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 5160-45-05 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 shall identify a location in his or her residence where a file containing a copy of his or her medication profile, if one exists, shall be safely maintained. The file may also include the individual's medication administration record, treatment administration record, aide assignment, all services plan and plans of care.

(3) When an individual receives services from a non-agency provider, the individual shall 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 shall be afforded notice and hearing rights in accordance with division 5101:6 of the Administrative Code.

Replaces: 5160-45-03

Effective: 4/1/2015
Five Year Review (FYR) Dates: 04/01/2020
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02
Prior Effective Dates: 7/1/98, 8/13/07, 7/1/10

5160-45-04 ODJFS-administered waiver program: provider enrollment process.

(A) Waiver provider applicants must complete the enrollment process set forth in this rule and receive approval from the Ohio department of job and family services (ODJFS) before providing services to an ODJFS-administered waiver consumer. Services provided before ODJFS issues such approval are not reimbursable.

(B) All applicants must complete and submit a waiver provider application to ODJFS or the entity designated by ODJFS to process such applications. The waiver provider application shall be completed and submitted in accordance with the requirements set forth in Chapter 5101:3-1 of the Administrative Code. Each applicant must submit with its application a signed statement affirming that the applicant received and read all of the Administrative Code rules governing the ODJFS-administered waiver program.

(C) Upon receipt of a waiver provider application, ODJFS shall verify all of the following:

(1) The applicant meets the requirements set forth in Chapter 5101:3-45 of the Administrative Code, and depending upon the provider type for which the applicant is requesting authorization to furnish services, Chapter 5101:3-46, 5101:3-47 or 5101:3-50 of the Administrative Code.

(2) The application contains all of the documentation required on the applicant's specific medicaid provider agreement provider type addendum.

(3) The individual, agency and/or agency's primary officer, director or owner is not listed on:

(a) The U.S. department of health and human services' exclusionary participant list;

(b) The Ohio department of mental retardation and developmental disabilities' abuser registry; and

(c) Any additional federal or state exclusionary lists ODJFS may consider when determining provider eligibility.

(4) If the applicant is a medicare-certified home health agency, evidence that the applicant's certification status is current.

(5) If the applicant is an otherwise-accredited agency, evidence that the applicant's accreditation status is current.

(6) If the applicant is a non-agency personal care aide service provider, evidence that:

(a) The applicant:

(i) Meets the training requirements set forth in rule 5101:3-46-04, 5101:3-47-04 or 5101:3-50-04 of the Administrative Code, as appropriate, and

(ii) Has successfully completed a criminal records check as set forth in rule 5101:3-45-08 of the Administrative Code; and

(b) The consumer has requested that the applicant provide the service for which application is being made.

(7) If the applicant is a non-agency nurse, evidence that the applicant:

(a) Possesses a current, valid and unrestricted license as a registered nurse (RN) or licensed practical nurse (LPN) with the Ohio board of nursing;

(b) Has no pending actions or sanctions against the non-agency nurse by the Ohio board of nursing; and

(c) Has successfully completed a criminal records check as set forth in rule 5101:3-45-08 of the Administrative Code.

(8) If the applicant is a non-agency LPN, additional evidence that the applicant works at the direction of an RN who possesses a current, valid and unrestricted license with the Ohio board of nursing.

(D) ODJFS shall review all documentation and make a determination regarding the applicant's eligibility for enrollment. If the application does not contain all of the documentation required by this rule, then ODJFS shall notify the applicant in writing of the missing documentation.

(E) The applicant shall have thirty calendar days from the date of written notification to provide the missing documentation ODJFS identifies pursuant to paragraph (D) of this rule. If the applicant does not submit the required documentation within the thirty calendar-day period, ODJFS shall terminate the application process.

(F) ODJFS shall notify the applicant in writing of its approval or denial as a waiver provider. If ODJFS determines the applicant is ineligible to provide waiver services, ODJFS shall inform the applicant of his or her appeal rights in accordance with rule 5101:3-1-17.6 of the Administrative Code.

Effective: 04/01/2011
R.C. 119.032 review dates: 09/01/2014
Promulgated Under: 119.03
Statutory Authority: 5111.85
Rule Amplifies: 5111.01, 5111.02, 5111.85
Prior Effective Dates: 7/1/04, 9/19/09

5160-45-05 Ohio department of medicaid (ODM) -administered waiver program: incident management system.

(A) For the purposes of this rule,

(1) "Alert" means an incident that must be reported to the Ohio department of medicaid (ODM) due to the severity and/or impact on an individual enrolled on an ODM-administered waiver or the need for ODM involvement in the incident investigation. Alerts include, but are not limited to the events described in paragraph (J) of this rule.

(2) "Incident" means an alleged, suspected or actual event that is not consistent with the routine care of, and/or service delivery to, an individual. Incidents include, but are not limited to the events described in paragraph (F) of this rule.

(3) "Individual" means a person who is enrolled in an ODM-administered waiver or who participates in any ODM-administered program that is directed to adhere to this rule.

(4) "Provider" means an ODM-administered waiver service provider, any other service provider that is directed to adhere to this rule, and all of their respective staff who have direct contact with individuals.

(B) ODM shall operate an incident management system that includes responsibilities for reporting, responding to, investigating and remediating incidents. This rule sets forth the standards and procedures for operating that system. It applies to ODM, its designees, individuals and providers. ODM may designate other agencies or entities to perform one or more of the incident management functions set forth in this rule.

(C) ODM and its designees shall assure the health and welfare of individuals enrolled on an ODM-administered waiver. ODM, its designees and providers are responsible for ensuring individuals are protected from abuse, neglect, exploitation and other threats to their health, safety and well-being.

(D) 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 this rule and related procedures.

(E) Upon an individual's enrollment in an ODM-administered waiver, and at the time of each annual reassessment, ODM or the designated case management contractor shall provide the individual and/or the individual's authorized representative or legal guardian with a waiver handbook that includes information about how to report abuse, neglect, exploitation and other incidents. The case management contractor shall secure from the individual, authorized representative and/or legal guardian written confirmation of receipt of the handbook and it shall be maintained in the individual's case record.

(F) Incidents include, but are not limited to, all of the following:

(1) Abuse: the injury, confinement, control, intimidation or punishment of an individual by another person that has resulted, or could reasonably be expected to result, in physical harm, pain, fear or mental anguish. Abuse includes, but is not limited to physical, emotional, verbal and/or sexual abuse, and use of restraint, seclusion or restrictive intervention that results in, or could reasonably be expected to result in, physical harm, pain, fear or mental anguish to the individual.

(2) Neglect: when there is a duty to do so, the failure to provide goods, services and/or treatment necessary to assure the health and welfare of an individual.

(3) Exploitation: the unlawful or improper act of using an individual or an individual's resources for monetary or personal benefit, profit or gain.

(4) Misappropriation: depriving, defrauding or otherwise obtaining the money, or real or personal property (including medication) of an individual by any means prohibited by law.

(5) Death of an individual.

(6) Hospitalization or emergency department visit (including observation) as a result of:

(a) Accident, injury or fall;

(b) Injury or illness of an unknown cause or origin; and

(c) Reoccurrence of an illness or medical condition within seven calendar days of the individual's discharge from a hospital.

(7) Unauthorized use of restraint, seclusion and/or restrictive intervention that does not result in, or cannot reasonably be expected to result in, injury to the individual.

(8) An unexpected crisis in the individual's family or environment that results in an inability to assure the individual's health and welfare in his or her primary place of residence.

(9) Inappropriate service delivery including, but not limited to:

(a) A provider's violation of the conditions of participation set forth in rule 5160-45-10 of the Administrative Code;

(b) Services provided to the individual that are beyond the provider's scope of practice;

(c) Services delivered to the individual without, or not in accordance with, physician's orders; and

(d) Medication administration errors involving the individual.

(10) Actions on the part of the individual that place the health and welfare of the individual or others at risk including, but not limited to:

(a) The individual cannot be located;

(b) Activities that involve law enforcement;

(c) Misuse of medications; and

(d) Use of illegal substances.

(G) Incident reporter responsibilities.

(1) ODM, its designees and all providers are required to report incidents in accordance with the procedures set forth in this rule.

(2) Individuals and/or their authorized representative or legal guardian should report incidents to the individual's case manager and the appropriate authorities.

(3) If a person or an entity identified in paragraph (G)(1) of this rule learns of an incident, the person or entity shall do all of the following:

(a) Take immediate action to assure the health and welfare of the individual which may include, but is not limited to, seeking or providing medical attention.

(b) Immediately report the incident(s) set forth in paragraphs (F)(1) to (F)(5) of this rule to the case manager and the appropriate authories set forth in paragraph (G)(5)(a) of this rule.

(c) Report any incidents set forth in paragraphs (F)(6) to (F)(10) of this rule to the case manager within twenty-four hours unless bound by federal, state or local law or professional licensure or certification requirements to report sooner.

(4) At a minimum, all incident reports shall include:

(a) The facts that are relevant to the incident;

(b) The incident type; and

(c) The names of, and when available, the contact information for, all persons involved.

(5) The appropriate authority is dependent upon the nature of the incident. Examples of appropriate authorities include, but are not limited to:

(a) The following agencies that hold investigative and/or protective authority:

(i) Local law enforcement if the incident involves conduct that constitutes a possible criminal act including but not limited to, abuse, neglect, exploitation, misappropriation or death of the individual;

(ii) The local coroner's office;

(iii) The local county board of developmental disabilities (CBDD);

(iv) The local public children services agency (PCSA); and

(v) The local public adult protective services agency.

(b) The following regulatory, oversight and/or advocacy agencies:

(i) The Ohio long term care ombudsman;

(ii) The alcohol, drug addiction and mental health service board;

(iii) The Ohio department of health (ODH), or other licensure or certification board or accreditation body when the allegation involves a provider regulated by that entity;

(iv) The Ohio attorney general when the allegation is suspected to involve medicaid fraud by the provider; and

(v) The local probate court when the allegation is suspected to involve the legal guardian.

(6) The incident reporter must also notify his or her supervisor if he or she has one.

(H) Case management contractor responsibilities.

(1) The case management contractor shall do all of the following upon discovery of an incident:

(a) Ensure that immediate action was taken to protect the health and welfare of the individual and any other individuals who may be at-risk.

(b) Notify the appropriate agencies that hold investigative and/or protective authority as set forth in paragraph (G)(5)(a) of this rule if the incident was one of those set forth in paragraph (F)(1) to (F)(5) of this rule.

(c) Notify the appropriate additional regulatory, oversight and/or advocacy agencies set forth in paragraph (G)(5)(b) of this rule.

(d) Notify the individual's lead physician.

(2) Complete an incident report in ODM's electronic case management system within twenty-four hours of discovery.

(3) The case management contractor shall notify ODM within twenty-four hours of any incident that meets the criteria of an alert as set forth in paragraph (J) of this rule.

(4) The case management contractor shall notify the individual and/or the individual's authorized representative or legal guardian as long as such notification will not jeopardize the incident investigation and/or place the health and welfare of the individual or reporter at risk.

(I) Provider oversight responsibilities.

(1) ODM or its designated provider oversight contractor must review all reported incidents within one business day of notification via ODM's electronic case management system, and shall do all of the following as part of its review:

(a) Verify that immediate action was taken to protect the health and welfare of the individual and any other individuals who may be at-risk. If such action was not taken, the provider oversight contractor must do so immediately.

(b) Verify that the county coroner was notified in the event of the death of an individual. If such action was not taken, the provider oversight contractor must do so immediately.

(c) Verify that the appropriate authorities have been notified as required by this rule. If such action was not taken, the provider oversight contractor must do so immediately.

(d) Verify that the incident was reported within the timeframe required by this rule.

(e) Notify ODM of any incident that meets the criteria of an alert as set forth in paragraph (J) of this rule.

(2) The provider oversight contractor shall initiate an investigation no later than two business days after having been notified of an incident. At a minimum, the provider oversight contractor shall:

(a) Contact and work cooperatively with protective agencies and any other entities to whom the incident was reported and that may be conducting a separate investigation.

(b) Conduct a review of all relevant documents including, but not limited to, all services plans, assessments, clinical notes, communication notes, coroner's reports, documentation available from other authorities, provider documentation, plans of care, provider billing records, medical reports, police and fire department reports and emergency response system reports.

(c) Conduct and document interviews with anyone who may have information relevant to the incident investigation including, but not limited to, the reporter, individuals, authorized representatives and/or legal guardians and providers.

(d) Include the individual and the reporter in the incident investigation process, as long as such involvement is both safe and appropriate.

(e) When applicable, make referrals to appropriate licensure or certification boards, accreditation bodies, and/or other entities based on the information obtained during the investigation.

(f) Document all investigative activities.

(g) Document if and why any of the steps set forth in paragraph (I) of this rule were omitted from the incident investigation.

(3) If, at any time during the investigation of a death, it is determined the incident meets the criteria for a suspicious death as described in paragraph (J)(2)(a) of this rule, or the death may have been preventable, the provider oversight contractor must notify ODM within twenty-four hours of the contractor's discovery. If ODM agrees the death is suspicious in nature or was preventable, it shall maintain lead responsibility for the investigation and follow all of the steps set forth in paragraph (I) of this rule and the ODM-approved death investigation protocol. All other deaths shall be investigated by the provider oversight contractor in accordance with the steps set forth in paragraph (I) of this rule and the ODM-approved death investigation protocol.

(4) Concluding an incident investigation.

(a) The provider oversight contractor must conclude its incident investigation no later than forty-five days after the provider oversight contractor's initial receipt of the incident report. Extension of this deadline is only permissible upon prior approval by ODM.

(b) At the conclusion of the investigation, the provider oversight contractor shall:

(i) Submit to ODM and the individual, authorized representative and/or legal guardian a written report that:

(a) Summarizes the investigation;

(b) Identifies if the incident was substantiated and whether it was preventable; and

(c)Includes a prevention plan for the individual that identifies the steps necessary to mitigate the effects of a substantiated incident, eliminate the causes and contributing factors that resulted in risk to the health and welfare of the individual and any other persons impacted by the incident and prevent future incidents.

(ii) Notify ODM-administered waiver service providers who are subject to the incident investigation in writing upon substantiation of an incident. The notification shall specify:

(a) The findings of the investigation that substantiate the occurrence of the incident;

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

(c) What steps the provider must take in order to mitigate against the causes of and factors contributing to the incident; and

(d)The timeframe within which the provider must submit a plan of correction to the provider oversight contractor in accordance with rule 5160-45-06 of the Administrative Code, not to exceed fifteen calendar days after the date the letter was mailed.

(iii) Provide a written summary of the investigative findings to the reporter of the incident unless such action could jeopardize the health and welfare of the individual.

(iv) Assure that all such reports issued pursuant to paragraph (I)(4) of this rule shall comply with all applicable state and federal confidentiality and information disclosure laws.

(J) Alerts.

(1) The provider oversight contractor shall ensure that incidents that rise to the level of an alert are reported to ODM within twenty-four hours of the incident's identification and report submission.

(2) The following incidents are cause for an alert:

(a) A suspicious death in which the circumstances and/or the cause of death are not related to any known medical condition, and/or; in which someone's action or inaction may have caused or contributed to the individual's death;

(b) Abuse or neglect that required the individual's removal from his or her place of residence;

(c) Hospitalization or emergency department visit (including observation) as a result of:

(i) Abuse or neglect,

(ii) Accident, injury or fall,

(iii) Injury or illness of an unknown cause or origin, and

(iv) Reoccurrence within seven calendar days of the individual's discharge from a hospital;

(d) Harm to multiple individuals as a result of an incident;

(e) Injury resulting from the authorized or unauthorized use of a restraint, seclusion or restrictive intervention;

(f) Incidents involving an employee of the case management contractor or provider oversight contractor;

(g) Misappropriation that is valued at five hundred dollars or more;

(h) Incidents generated from correspondence received from the Ohio attorney general, office of the governor, the centers for medicare and medicaid services (CMS) or the federal office of civil rights; and

(i) Incidents identified by a public media source.

(K) At its discretion, ODM may request further review of any incident under investigation, and/or conduct a separate, independent review or investigation of any incident.

(L) ODM shall determine when to close incident investigations, and shall be responsible for ensuring that all cases are properly closed.

(M) If, at any time during the discovery or investigation of an incident, it is determined that an employee of the case management contractor or provider oversight contractor is or may be responsible for, or contributed to, the abuse, neglect, exploitation or death of an individual, the case management contractor or provider oversight contractor shall immediately notify ODM. ODM shall assume responsibility for the investigation in accordance with the procedures set forth in this rule.

(N) ODM may impose sanctions upon the provider in accordance with rules 5160-45-06 and 5160-45-09 of the Administrative Code based upon the substantiation of an incident, failure to comply with any of the requirements set forth in this rule, failure to assure the health and welfare of the individual and/or failure to comply with all applicable federal, state and local laws and regulations.

Replaces: 5160-45-05

Effective: 04/01/2014
R.C. 119.032 review dates: 04/01/2019
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5166.02, 5166.11, 5166.13
Prior Effective Dates: 7/7/04, 9/19/09

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

(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/or otherwise accredited agencies as defined in rule 5160-45-01 of the Administrative Code are subject to reviews in accordance with their certification and accreditation bodies, and therefore shall be exempt from a regularly scheduled structural review. Such agencies shall submit a copy of their updated certification and/or accreditation, and upon request of ODM or its designee, shall make available to ODM or its designee within ten business days, all review reports and accepted plans of correction from the certification and/or accreditation bodies.

(2) All other ODM-administered waiver providers shall be subject to structural reviews by ODM or its designee during each of the first three years after a provider begins furnishing billable services. Thereafter, structural reviews shall be conducted annually unless, at the discretion of ODM or its designee, biennial structural reviews may be conducted with a provider, when all of 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 5160-45-05 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.

(3) 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.

(4) Structural reviews must be conducted in person between the provider and ODM or its designee, unless prior-approved by ODM and in a manner consistent with paragraph (B)(3) of rule 5160-45-09 of the Administrative Code.

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

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

(7) 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 the individual enrolled on the ODM-administered waiver.

(c) ODM or its designee shall examine any 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 5160-46, 5160-50 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 assure that all waiver services are authorized, delivered and reimbursed in accordance with the approved all services plan for the individual receiving waiver services.

(f) An evaluation shall be conducted to determine whether the provider has implemented all plans of correction that were approved since the last review.

(g) At the conclusion of the review, ODM or its designee shall conduct an exit conference with the non-agency provider, or in the case of an agency provider, the agency administrator or his or her designee, about its preliminary findings, any individual remediation and other required follow-up.

(8) ODM or its designee shall issue a written findings report to the provider. 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 the provider must address in a plan of correction, including any individual remediation.

(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 5160-45-05 of the Administrative Code. Provider occurrences include, but are not limited to alleged violations of provider eligibility and/or service specification requirements, 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 in a manner that confirms provider receipt. 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 any individual remediation or required payment adjustments;

(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 ten calendar days.

(E) If ODM or its designee determines through the structural review process or the investigation of a provider occurrence that an overpayment of a provider claim has occurred, the provider shall make all payment adjustments in accordance with rule 5160-1-19 of the Administrative Code and the provider's approved plan of correction.

(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.

Replaces: 5160-45-06

Effective: 2/1/2015
Five Year Review (FYR) Dates: 02/01/2020
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02
Prior Effective Dates: 7/1/04, 9/19/09

5160-45-07 Ohio home care waiver, transitions DD waiver and transitions carve-out waiver programs: criminal records checks involving agency providers.

(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 home care waiver, transitions DD waiver and/or transitions carve-out 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 agency who are subject to database reviews and criminal records checks in accordance with section 173.394 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 agency" 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 5111.85 of the Revised Code. For the purposes of this rule, "home and community-based services medicaid waiver component" is interchangeable with Ohio home care waiver, transitions DD waiver and/or transitions carve-out waiver.

(9) "Waiver agency" means a person or government entity that provides HCBS under an Ohio home care waiver, transitions DD waiver or transitions carve-out waiver, other than such a person or government entity that is certified under the medicare program. "Waiver agency" does not mean an independent provider as defined in section 5111.034 of the Revised Code or rule 5101:3-45-08 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 Ohio home care waiver, transitions DD waiver or transitions carve-out waiver 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;

(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; or

(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.

(2) Fails to:

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

(b) Instruct the superintendent of BCII 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 Ohio home care waiver, transitions DD waiver or transitions carve-out waiver, 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 BCII superintendent conduct a criminal records check with respect to the waiver agency applicant, and pursuant to sections 109.572 and 5111.033 of the Revised Code. The applicant must provide a set of fingerprint impressions 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 BCII 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 BCII 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 BCII 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 BCII 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 the Ohio home care waiver, transitions DD waiver or transitions carve-out waiver, 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.

(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 5101:3-45-11 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 5101:3-45-11 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 5101:3-45-11 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 5101:3-45-11 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 BCII;

(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).

Effective: 01/01/2014
R.C. 119.032 review dates: 01/01/2018
Promulgated Under: 119.03
Statutory Authority: 5111.033, 5111.85
Rule Amplifies: 109.572, 5111.01, 5111.02, 5111.033, 5111.85
Prior Effective Dates: 7/1/04, 11/19/07, 12/10/09, 1/1/13

5160-45-08 Ohio home care waiver, transitions DD waiver and transitions carve-out waiver programs: Criminal records checks involving independent providers.

(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 the Ohio home care, transitions DD and transitions carve-out waivers.

(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 5111.034 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 the Ohio home care, transitions DD or transitions carve-out waiver.

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

(4) "Department" means Ohio office of medical assistance (OMA).

(5) "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.

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

(7) "Home and community-based services medicaid waiver component" has the same meaning as in section 5111.85 of the Revised Code. For the purposes of this rule, "home and community-based services medicaid waiver component" is interchangeable with Ohio home care waiver, transitions DD waiver and/or transitions carve-out waiver.

(8) "Independent provider" means a person who has a medicaid provider agreement to provide HCBS as an independent provider in the Ohio home care waiver, transitions DD waiver and/or the transitions carve-out waiver. The term "independent provider" is interchangeable with the term "non-agency provider" in Chapters 5101:3-45, 5101:3-46, 5101:3-47 and 5101:3-50 of the Administrative Code.

(9) "Superintendent" means superintendent of the bureau of criminal identification and investigation (BCII).

(C) ODJFS 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 either of the following applies:

(1) After the applicant or independent provider is given the information and notification required by paragraphs (D)(3)(a) and (D)(3)(b) of this rule, the applicant or independent provider fails to do any of the following:

(a) Access, complete, and forward to the superintendent of BCII 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) Submit a criminal records check within sixty days of notification;

(c) Instruct the superintendent to submit the completed report of the criminal records check directly to OMA or its designee; or

(2) Except as provided in paragraph (E) 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 the department 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.

(D) Process for conducting criminal records checks.

(1) The department or its designee shall inform:

(a) Each applicant, at the time of initial application for a medicaid provider agreement, is required to provide a set of his or her fingerprint impressions, and a criminal records check must be conducted as a condition of the department's approving the application; and

(b) Each currently-enrolled independent provider, before the anniversary date of their medicaid provider agreement, that he or she is required to provide a set of his or her fingerprint impressions and that a criminal records check must be conducted as a condition of continued approval as an independent provider in the Ohio medicaid program.

(2) The department or its designee shall require the applicant to complete a criminal records check prior to entering into a medicaid provider agreement with the applicant, and once an independent provider, at least annually thereafter.

(a) If an 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, the department or its designee shall request that the superintendent obtain a criminal records check from the FBI as part of the criminal records check.

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

(3) The department 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; and

(b) 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 the department or its designee.

(4) The applicant and independent provider shall pay BCII 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 this rule.

(5) Reports of any criminal records checks conducted by BCII 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 OMA and the staff of the department involved in the administration of the Ohio medicaid program;

(c) The department'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.

(6) If the independent provider fails to comply with the provisions of this rule, the department shall initiate termination of the medicaid provider agreement.

(E) A consumer 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 5101:3-45-11 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 5101:3-45-11 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 5101:3-45-11 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.

Replaces: 5101:3-45-08

Effective: 01/01/2013
R.C. 119.032 review dates: 01/01/2018
Promulgated Under: 119.03
Statutory Authority: 5111.034, 5111.85
Rule Amplifies: 109.572, 5111.01, 5111.02, 5111.034, 5111.85
Prior Effective Dates: 7/1/04, 11/19/07, 12/10/09

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

(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.

Replaces: 5160-45-09

Effective: 04/01/2014
R.C. 119.032 review dates: 04/01/2019
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5166.02, 5166.11, 5166.13
Prior Effective Dates: 7/1/98, 8/13/07

5160-45-10 ODM-administered waiver programs: Provider conditions of participation.

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

(B) ODM-administered waiver service providers 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 as set forth in Chapter 5101:3-45 of the Administrative Code, and Chapter 5160-3-46, 5160-50 or 5160-3-58 of the Administrative Code, depending upon the waiver(s) for which the provider is furnishing services. Provider requirements include, but are not limited to:

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

(b) Provider service specifications as set forth in rule 5160-46-04, 5160-46- 04.1, 5160-50-04, 5160-50- 04.1 or 5160-58-04 of the Administrative Code, as applicable;

(c) 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;

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

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

(3) Deliver services professionally, respectfully and legally.

(4) Ensure that individuals to whom the provider is furnishing 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.

(5) Work with the individual and case manager to coordinate service delivery, including, but not limited to:

(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 all 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 all services plan, and contact the individual and case manager and verify their receipt of information about the absence.

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

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

(7) Participate in all appropriate provider trainings mandated or sponsored by ODM or its designees, including but not limited to those set forth in Chapters 5160-45, 5160-46, 5160-50 and 5160-58 of the Administrative Code.

(8) 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 (January 25, 2013), and the medicaid safeguarding information requirements set forth in 42 C.F.R. 431.300 to 431.306 (November 1, 2013), along with sections 5160.45 to 5160.481 of the Revised Code.

(9) 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.

(10) 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 all services plan and when required, the individual's plan of care.

(a) Validation of service delivery shall include, but not be limited to the date and location of service delivery, arrival and departure times, the dated signature of the provider and the dated signature of the individual or authorized representative. All signatures shall be obtained at the end of every visit or upon completion of the scheduled service. When services are rendered in multiple visits per day, signatures must be obtained upon completion of each visit.

(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 all services plan.

(c) Collection and maintenance of documentation, including through technology-based systems, must be in compliance with the requirements set forth in paragraph (B)(10) of this rule.

(11) 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.

(12) 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.

(13) 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 all services plan. Issues may include, but are not limited to the following:

(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 all services plan and/or may jeopordize his or her health and welfare.

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

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

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

(16) 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 to the thirty-day advance notification requirement are set forth in paragraphs (B)(16)(a) and (B)(16)(b) of this rule.

(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:

(i) Has been admitted to a hospital;

(ii) Has been placed in an institutional setting; or

(iii) Has been incarcerated.

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

(C) At no time, shall the ODM-administered waiver service providers:

(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. This includes, but is not limited to:

(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.

(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 all services plan.

(D) While rendering services, ODM-administered waiver service providers 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 interfers 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.

(E) ODM-administered waiver service providers 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 (E)(3) of this rule, except as provided in paragraphs (E)(1) to (E)(4) of this rule.

(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.

(F) 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.

(G) 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.

(H) Failure to meet the requirements set forth in this rule may result in any of the actions set forth in rules 5160-45-05 and 5160-45-09 of the Administrative Code including, but not limited to, 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 shall be entitled to a hearing under Chapter 119. of the Revised Code in accordance with division 5101:6 of the Administrative Code.

Replaces: 5160-45-10

Effective: 2/1/2015
Five Year Review (FYR) Dates: 02/01/2020
Promulgated Under: 119.03
Statutory Authority: 5166.02
Rule Amplifies: 5162.03, 5164.02, 5166.02
Prior Effective Dates: 08/01/05, 10/25/10

5160-45-11 Ohio home care waiver, transitions DD waiver and transitions carve-out waiver programs: Exclusionary Periods for Disqualifying Offenses; Certificates; and Pardons.

(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 5101:3-45-07 of the Administrative Code in a position involving providing home and community-based services (HCBS) to a consumer enrolled on the Ohio home care waiver, transitions DD waiver or transitions carve-out 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 5101:3-45-08 of the Administrative Code may be selected by a consumer enrolled on the Ohio home care waiver, transitions DD waiver or transitions carve-out waiver 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 a consumer, nor shall an independent provider provide HCBS to a consumer, 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 (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 a consumer, nor shall an independent provider provide HCBS to a consumer, 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, inclucing 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 a consumer, nor shall an independent provider provide HCBS to a consumer, 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, inclucing 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 a consumer, nor shall an independent provider provide HCBS to a consumer, 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) 2919.23 (interference with custody);

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

(bb) 2921.12 (tampering with evidence);

(cc) 2921.21 (compounding a crime);

(dd) 2921.24 (disclosure of confidential information);

(ee) 2921.32 (obstructing justice);

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

(gg) 2921.51 (impersonation of peace officer);

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

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

(jj) 2925.13 (permitting drug abuse);

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

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

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

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

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

(pp) 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 a consumer, and an independent provider may provide HCBS to a consumer 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 a consumer, and a consumer may chose 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 corections 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 5101:3-45-07 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 5101:3-45-08 of the Administrative Code shall not prevent a consumer 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.

Replaces: 5101:3-45-07 (in part), 5101:3-45-08 (in part)

Effective: 01/01/2013
R.C. 119.032 review dates: 01/01/2018
Promulgated Under: 119.03
Statutory Authority: 5111.033, 5111.034, 5111.85
Rule Amplifies: 109.572, 5111.01, 5111.02, 5111.033, 5111.034, 5111.85
Prior Effective Dates: 7/1/04, 11/19/07, 12/10/09

5160-45-15 [Rescinded] Provisions for transferring consumers receiving core-plus benefit package services to ODJFS-administered waivers.

Effective: 07/03/2014
R.C. 119.032 review dates: 04/16/2014
Promulgated Under: 119.03
Statutory Authority: 5164.02
Rule Amplifies: 5162.03, 5164.02 and 5166.02
Prior Effective Dates: 7/1/2006