Chapter 5160-45 Administered Waiver Service Providers

5160-45-01 ODJFS-administered waiver program: definitions.

(A) "Accreditation commission for health care (ACHC)" is a national organization that evaluates and accredits home health agencies seeking to participate in the medicare and medicaid programs.

(B) "Activities of daily living" are personal or self-care skills performed on a regular basis, with or without the use of adaptive and assistive devices that enable a consumer to meet basic life needs for food, hygiene and appearance as defined in rule 5101:3-3-06 of the Administrative Code.

(C) "Agency-consumer agreement" means the ODJFS-approved agreement signed by the consumer and/or authorized representative and the case manager (CM) that assures that the consumer is voluntarily enrolling in an ODJFS-administered waiver as an alternative to receiving services in a facility or hospital. It identifies the conditions and responsibilities a waiver consumer must agree to as a condition of enrollment.

(D) "Agency provider" is a provider that is eligible to participate in the medicaid program upon execution of a medicaid provider agreement in accordance with rule 5101:3-1-17.2 of the Administrative Code.

(E) "All services plan" is the service coordination and payment authorization document that identifies specific goals, objectives and measurable outcomes for consumer health and functioning expected as a result of services provided by both formal and informal caregivers, and that addresses the physical and medical conditions of the consumer.

(1) At a minimum, the all services plan shall include:

(a) Essential information needed to provide care to the consumer that assures the consumer's health and welfare;

(b) Billing authorization; and

(c) Signatures indicating the consumer's acceptance or rejection of the all services plan.

(2) The all services plan is not the same as the physician's plan of care.

(F) "Applicant" is a person who completes a JFS 02399 "Request for Medicaid Home and Community-Based Services" (rev. 1/2006) and submits it to the county department of job and family services (CDJFS) requesting an eligibility determination for an ODJFS-administered waiver.

(G) "Assessment" is a comprehensive face-to-face evaluation conducted as part of the ODJFS-administered waiver program eligibility determination/redetermination process. It is an evaluation of a person's living arrangements/ household composition, medical and acute/long term care history, medical interventions and treatment regimens, medication profile, functional ability, psycho-social status, safety and cognition status, environmental situation, usage of adaptive and assistive equipment, informal supports and caregiver involvement, and formal supports, and results in a level of care recommendation.

(H) "Authorized representative" is a person the waiver applicant or consumer identifies in writing to ODJFS or its designee as a person who will act on his or her behalf for specifically identified purposes. The authorized representative shall not be the consumer's ODJFS-administered waiver service provider.

(I) "Case management agency (CMA)" is the entity designated by ODJFS to provide case management services to consumers enrolled on an ODJFS-administered waiver.

(J) "Case management services" are the administrative activities that link, coordinate and monitor the services and resources provided to a consumer enrolled on an ODJFS-administered waiver. ODJFS may designate other entities to perform one or more of these functions.

(K) "Case manager" is a registered nurse (RN), licensed social worker (LSW) or licensed independent social worker (LISW) employed by the CMA who provides case management services to consumers enrolled on an ODJFS-administered waiver.

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

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

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

(O) "Community health accreditation program (CHAP)" is a national organization that evaluates and accredits home health agencies seeking to participate in the medicare and medicaid programs. For the purpose of providing services to ODJFS-administered waiver consumers, CHAP-accredited agencies are "otherwise-accredited agencies" that may provide the same ODJFS-administered waiver services that ACHC-accredited and joint commission-accredited agencies provide.

(P) "Consumer" is an applicant determined financially eligible for medicaid and program-eligible for an ODJFS-administered waiver who is enrolled on an ODJFS-administered waiver.

(Q) "Consumer acknowledgement of risk agreement" is the document created between ODJFS or its designee and the consumer identifying and setting forth the interventions recommended by the case manager to remedy risks to the consumer's health and welfare.

(R) "Event-based assessment" is a face-to-face comprehensive evaluation of an ODJFS-administered waiver consumer as warranted by a significant change experienced by that consumer.

(S) "Formal services" are paid services provided to a consumer regardless of funding source. Formal services include, but are not limited to, medicare, private insurance, third party insurance, and community-funded services such as those funded by county boards of mental retardation and developmental disabilities (CBMR/DD).

(T) "Group rate" is the amount that certain waiver service providers are reimbursed when the service is provided in a group setting. When providing services in a group setting, the provider must bill using the HQ modifier as described in rule 5101:3-46-06, 5101:3-47-06 or 5101:3-50-06 of the Administrative Code, as applicable.

(U) "Group setting" is a situation in which certain service providers furnish the same type of services to two or three individuals at the same address. The services provided in the group setting can be either the same type of ODJFS-administered waiver service, or a combination of ODJFS-administered waiver services and similar non-ODJFS-administered waiver services.

(V) "Health and welfare" is a requirement imposed by CMS whereby ODJFS must assure that necessary safeguards are taken to protect the health and welfare of ODJFS-administered waiver consumers. CMS will not grant an ODJFS-administered waiver, and may terminate an existing ODJFS-administered waiver, if ODJFS fails to assure compliance with this requirement. ODJFS meets this requirement, at a minimum, by implementing policies and procedures regarding the following:

(1) Consumer risk and safety planning and evaluations;

(2) Consumer critical incident management;

(3) Housing and environmental safety evaluations;

(4) Consumer behavioral interventions;

(5) Consumer medication management; and

(6) Natural disaster and public emergency response planning.

(W) "ICF-MR level of care" is the institutional level of care set forth in rule 5101:3-3-07 of the Administrative Code.

(X) "Individual cost cap" is the monthly cost of services that is approved by ODJFS for a consumer enrolled in the "Ohio Home Care Waiver," "Transitions DD Waiver" or "Transitions Carve-Out Waiver." ODJFS or its designee oversees that the cost of covered services does not exceed the individual cost cap, determines when an increase or decrease in the cap is required, and makes a recommendation with justification to ODJFS for approval for increasing or decreasing the individual cost cap.

(Y) "Informal services" are unpaid services provided to a consumer.

(Z) "Institutional level of care" is any of the levels of care set forth in rules 5101:3-3-05, 5101:3-3-06 and 5101:3-3-07 of the Administrative Code.

(AA) "Institutional setting" is any nursing facility (NF), intermediate care facility for the mentally retarded/developmentally disabled (ICF-MR) or hospital.

(BB) "Instrumental activity of daily living" is a community living skill performed on a regular basis, with or without the use of adaptive and assistive devices, that enables a consumer to independently manage his or her living arrangement as defined in rule 5101:3-3-08 of the Administrative Code.

(CC) "Intermediate level of care (ILOC)" is the institutional level of care set forth in rule 5101:3-3-06 of the Administrative Code.

(DD) "Joint commission" is a national organization that evaluates and accredits home health agencies that seek to participate in the medicare and medicaid programs. For the purpose of providing services to ODJFS-administered waiver consumers, joint commission-accredited agencies are "otherwise-accredited agencies" that may provide the same ODJFS-administered waiver services that ACHC-accredited and CHAP-accredited agencies provide.

(EE) "Legally responsible family member," as that term is used in the Ohio home care waiver set forth in Chapter 5101:3-46 of the Administrative Code, the transitions DD waiver set forth in Chapter 5101:3-47 of the Administrative Code, and the transitions carve-out waiver set forth in Chapter 5101:3-50 of the Administrative Code, is a consumer's spouse, or in the case of a minor, the consumer's birth or adoptive parent, or foster caregiver.

(FF) "Medical necessity" and "medically necessary" have the same meaning as set forth in rule 5101:3-1-01 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 5101:3-1-17.2 of the Administrative Code.

(HH) "Non-agency waiver service provider" is an independent provider who is not employed by an agency, and who is eligible to participate in the medicaid program upon execution of a medicaid provider agreement in accordance with rule 5101:3-1-17.2 of the Administrative Code.

(II) "Noninstitutional setting" is any setting that is not a NF, ICF-MR or hospital.

(JJ) "Non-legally responsible family member," as that term is used in the Ohio home care waiver set forth in Chapter 5101:3-46 of the Administrative Code, the transitions DD waiver set forth in Chapter 5101:3-47 of the Administrative Code, and the transitions carve-out waiver set forth in Chapter 5101:3-50 of the Administrative Code, is a member of the consumer's family, excluding the consumer's spouse, or in the case of a minor, the consumer's birth or adoptive parent, or foster caregiver.

(KK) "ODJFS" is the Ohio department of job and family services.

(LL) "ODJFS-administered waiver program" is the Ohio home care program benefit package that consists of home and community-based service waivers administered by ODJFS in accordance with Chapter 5101:3-45 of the Administrative Code, and Chapter 5101:3-46, 5101:3-47 and/or 5101:3-50 of the Administrative Code, as applicable.

(MM) "ODJFS-administered waiver provider" is an agency or non-agency provider eligible to provide ODJFS-administered waiver services upon execution of a medicaid provider agreement in accordance with rule 5101:3-1-17.2 of the Administrative Code.

(NN) "Ohio Home Care Waiver" is a CMS-approved home and community-based services waiver administered by ODJFS that serves consumers in accordance with Chapters 5101:3-45 and 5101:3-46 of the Administrative Code.

(OO) "Otherwise-accredited agency" is an agency that has and maintains accreditation by a national accreditation organization for the provision of home health services, private duty nursing, personal care services and support services upon execution of a medicaid provider agreement in accordance with rule 5101:3-1-17.2 of the Administrative Code. The national accreditation organization shall be approved by CMS, and shall include, but not be limited to: ACHC, CHAP and the joint commission.

(PP) "Program eligibility assessment tool (PEAT)" is the ODJFS-developed tool used during a face-to-face interview with an applicant or consumer as part of the ODJFS-administered waiver program eligibility determination/redetermination process.

(QQ) "Plan of care" is the medical treatment plan that is established, approved and signed by the treating physician. The plan of care must be signed and dated by the treating physician prior to requesting reimbursement for a service. The plan of care is not the same as the all services plan.

(RR) "Request for Medicaid Home and Community-Based Services" and "JFS 02399 Request for Medicaid Home and Community-Based Services" mean the form an applicant must complete and submit to the CDJFS requesting an eligibility determination for enrollment in an ODJFS-administered waiver

(SS) "Residential address" is any physical dwelling with a unique mailing address where an ODJFS-administered waiver consumer lives. A residential address shall include, but is not limited to an apartment within an apartment complex. It shall not include the entire apartment building or complex.

(TT) "Significant change" is a change experienced by a consumer that warrants an event-based assessment. Significant changes include, but are not limited to, a change in health status, caregiver status, and location/residence; referral to or active involvement on the part of a protective service agency; institutionalization; and when the consumer has not received waiver services for ninety calendar days.

(UU) "Skilled level of care (SLOC)" is the institutional level of care set forth in rule 5101:3-3-05 of the Administrative Code.

(VV) "Transitions Carve-Out Waiver" is a CMS-approved home and community-based services waiver administered by ODJFS that serves consumers in accordance with Chapters 5101:3-45 and 5101:3-50 of the Administrative Code.

(WW) "Transitions DD Waiver" is a CMS-approved home and community-based services waiver administered by ODJFS that serves consumers in accordance with Chapters 5101:3-45 and 5101:3-47 of the Administrative Code.

Effective: 10/25/2010
R.C. 119.032 review dates: 10/01/2014
Promulgated Under: 119.03
Statutory Authority: 5111.85
Rule Amplifies: 5111.01 , 5111.02 , 5111.85
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

5160-45-03 ODJFS-administered waiver program: consumer choice and control.

Consumers enrolled on an Ohio department of job and family services- (ODJFS) administered waiver in accordance with rule 5101:3-46-02, 5101:3-47-02 or 5101:3-50-02 of the Administrative Code, and/or their authorized representatives, have choice and control over the arrangement and provision of home and community-based waiver services. Consumers also have choice over the selection and control over the direction of approved waiver service providers.

(A) An ODJFS-administered waiver service provider is categorized as either an "agency provider" or a "non-agency provider."

(1) An "agency provider" means a medicare-certified home health agency, an otherwise-accredited agency as defined in rule 5101:3-45-01 of the Administrative Code or other approved ODJFS-administered waiver service provider.

(2) A "non-agency provider" means an RN, an LPN at the direction of an RN, a non-agency personal care aide service provider, or a non-agency home care attendant.

(B) A consumer may choose to receive waiver services as follows:

(1) Exclusively from agency providers;

(2) Exclusively from non-agency providers; or

(3) From a combination of agency and non-agency providers.

(C) The case management agency (CMA) shall assure that consumers and/or their authorized representatives have the authority to choose ODJFS-administered waiver service providers as outlined in paragraph (B) of this rule.

(D) If a consumer and/or authorized representative chooses to receive waiver services from an agency provider, the consumer and/or authorized representative shall comply with the requirements set forth in paragraphs (D)(1) to (D)(15) of this rule.

(1) Participate in the development of the all services plan and all plans of care.

(2) Decide whether anyone besides the case manager will participate in the face-to-face development of the all services plan and all plans of care.

(3) Authorize the CMA to exchange information for development of the all services plan with all of the consumer's service providers.

(4) Participate in the development and maintenance of service back-up plans that meet the needs of the consumer.

(5) Communicate to the service provider assigned and employed by the agency provider, and the agency provider management staff, personal preferences about the duties, tasks and procedures to be performed.

(6) Work with the CMA and the agency provider to identify and secure additional service provider orientation and training within the agency/caregiver scope of practice in order to meet the consumer's specific needs.

(7) Agree that the service provider assigned and employed by the agency provider must adhere to all relevant ODJFS-administered waiver program requirements, medicaid rules and regulations, and the agency provider's policies and procedures.

(8) Report to the case manager and the agency provider, in accordance with rule

5101:3-45-05 of the Administrative Code, incidents that may impact the health and welfare of the consumer.

(9) Communicate to the case manager any significant changes, as defined in rule 5101:3-45-01 of the Administrative Code, that may affect the provision of services, or result in a need for more or fewer hours of service.

(10) Provide verification that services have been furnished to the consumer, or approve provider timesheets only after services have been furnished. The consumer and/or authorized representative shall never approve blank timesheets, or timesheets that have been completed before services have been furnished.

(11) Participate in the recruitment, selection and dismissal of the agency provider and service provider assigned and employed by the agency provider.

(12) Notify the agency provider if the consumer is going to miss a scheduled visit.

(13) Notify the agency provider if the service provider assigned and employed by the agency provider misses a scheduled visit.

(14) Notify the case manager when any change in agency provider and/or service provider assigned and employed by the agency provider is necessary. Notification shall include the end date of the former agency provider and/or service provider, and the start date of the new provider.

(15) Participate in the monitoring of the performance of the agency provider, and the service provider assigned and employed by the agency provider.

(E) If a consumer and/or authorized representative chooses to receive waiver services from a non-agency provider, the consumer and/or authorized representative shall comply with the requirements set forth in paragraphs (E)(1) to (E)( 19) of this rule.

(1) Participate in the development of the all services plan and all plans of care.

(2) Decide whether anyone besides the case manager will participate in the face-to-face development of the all services plan and all plans of care.

(3) Authorize the CMA to exchange information for development of the all services plan with all of the consumer's service providers.

(4) Participate in the development and maintenance of service back-up plans that meet the needs of the consumer.

(5) Communicate to each non-agency provider personal preferences about the duties, tasks and procedures to be performed.

(6) Work with the CMA and non-agency provider to identify and secure additional orientation and training within the non-agency provider's scope of practice, in order to meet the consumer's specific needs.

(7) Work with the CMA and the non-agency provider to identify and secure continuing education within the non-agency provider's scope of practice. The consumer may participate in or conduct the continuing education.

(8) Agree that the non-agency provider must adhere to all relevant ODJFS-administered waiver program requirements and medicaid rules and regulations.

(9) Report to the case manager, in accordance with rule 5101:3-45-05 of the Administrative Code, incidents that may impact the health and welfare of the consumer.

(10) Communicate to the case manager any significant changes, as defined in rule 5101:3-45-01 of the Administrative Code, that may affect the provision of services, or result in a need for more or fewer hours of service.

(11) Approve non-agency provider timesheets only after services have been furnished to the consumer. The consumer and/or authorized representative shall never approve blank timesheets, or timesheets that have been completed before services have been furnished to the consumer.

(12) Participate in the recruitment, selection and dismissal of the non-agency provider.

(13) Notify the non-agency provider if the consumer is going to miss a scheduled visit.

(14) Notify the CMA if the non-agency provider misses a scheduled visit.

(15) Notify the case manager when any change in non-agency provider is necessary. Notification shall include the end date of the former non-agency provider and the start date of the new provider.

(16) Designate a location in the consumer's home in which the consumer, and the non-agency provider can safely store a copy of the consumer's clinical record in a manner that protects the confidentiality of this record, and for the purpose of contributing to the continuity of the consumer's care.

(17) Participate in the monitoring of the performance of the non-agency provider.

(18) Agree that each non-agency provider must complete a structural review in accordance with rule 5101:3-45-06 of the Administrative Code.

(19) Make the consumer's clinical record identified in paragraph (E)(15) of this rule available upon request by ODJFS or the CMA.

(F) If the consumer and/or authorized representative chooses to receive ODJFS-administered waiver services from a combination of agency and non-agency providers, the consumer and/or authorized representative must agree to participate in all activities set forth in paragraphs (D) and (E) of this rule.

(G) The CMA shall comply with all of the requirements set forth in paragraphs (G)(1) to (G)(8) of this rule.

(1) Assure the health and welfare of the consumer while acknowledging the consumer's right to make informed decisions and accept the resulting consequences that may impact the consumer's life.

(2) Upon the consumer's enrollment in an ODJFS-administered waiver, provide the consumer and/or authorized representative with the administrative rules, the consumer's rights and responsibilities, and other waiver-related information and materials, using communication mechanisms that are most effective for the consumer and/or authorized representative. The case manager shall review these materials with the consumer and/or authorized representative and assist him or her to understand his or her specific responsibilities.

(3) Work with the consumer and/or authorized representative to do the following:

(a) Select and direct approved waiver service providers;

(b) Develop the all services plan;

(c) Exchange information with all of the consumer's service providers for development of the all services plan;

(d) Develop and maintain service back-up plans that meet the needs of the consumer;

(e) Identify and secure additional provider orientation and training that is within the provider's scope of practice and meets the consumer's needs; and

(f) Upon request, identify and secure agency and/or non-agency providers when the consumer and/or authorized representative notifies the case manager that a change is necessary.

(4) Report to ODJFS, and when appropriate investigate, incidents that may impact the health and welfare of the consumer, in accordance with rule 5101:3-45-05 of the Administrative Code.

(5) Address significant changes, as defined in rule 5101:3-45-01 of the Administrative Code, experienced by the consumer that may affect the provision of services or result in a need for more or fewer hours of service.

(6) Act as a facilitator to assist in resolving conflicts between the consumer and/or authorized representative, and the provider(s).

(7) Document, in writing, that the consumer and/or authorized representative:

(a) Understands the consumer's specific needs;

(b) Possesses the skills necessary to meet the requirements set forth in paragraph (D), (E) or (F) of this rule, as appropriate;

(c) Demonstrates an understanding of his or her responsibilities pursuant to paragraph (G)(2) of this rule; and

(d) Identifies the method by which the consumer and/or authorized representative will verify that services have been furnished as identified on the all services plan.

(8) Communicate with the consumer and/or authorized representative in a manner that protects the consumer's right to confidentiality.

(H) If the CMA determines that the consumer and/or authorized representative cannot meet the requirements set forth in paragraph (E) of this rule, and/or the health and welfare of the consumer receiving services from a non-agency provider cannot be assured, then the CMA may require the consumer receive services from only agency providers. The consumer will be afforded notice and hearing rights in accordance with division 5101:6 of the Administrative Code.

Effective: 07/01/2010
R.C. 119.032 review dates: 08/01/2012
Promulgated Under: 119.03
Statutory Authority: 5111.85
Rule Amplifies: 5111.01 , 5111.02 , 5111.85
Prior Effective Dates: 7/1/98, 8/13/07

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 ODJFS-administered waiver program: structural reviews of providers and investigation of alleged provider occurrences and overpayments.

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

(1) A structural review of compliance in accordance with paragraphs (B), (D) and (E) of this rule.

(2) Investigation of alleged provider occurrences and overpayments in accordance with paragraphs (C), (D) and (E) of this rule.

(B) Structural reviews.

(1) All non-agency waiver providers shall be subject to a structural review. The process shall consist of the following:

(a) New non-agency providers who enter into their first time-limited provider agreement in accordance with rule 5101:3-1-17.4 of the Administrative Code shall have an annual face-to-face structural review for each of the first three years after the date on which the non-agency provider begins furnishing billable waiver services. Upon renewal of the time-limited provider agreement, and if the non-agency provider does not meet any of the conditions set forth in paragraph (B)(1)(b) of this rule, the non-agency provider shall be subject to a biennial face-to-face structural review. Non-agency providers shall continue to meet all waiver provider eligibility requirements at all times.

(b) Non-agency providers shall be subject to an annual face-to-face structural review when any of the following conditions exist:

(i) The provider has been substantiated to be the violator in a reportable incident as described in rule 5101:3-45-05 of the Administrative Code;

(ii) Two or more provider occurrences as described in paragraph (C) of this rule have been substantiated in a twelve-month period;

(iii) The provider has allegedly received cumulative overpayments of two-hundred fifty dollars or more over a twelve-month period; or

(iv) The provider lives with the consumer.

(c) Non-agency providers who do not meet the conditions set forth in paragraph (B)(1)(a) or (B)(1)(b) of this rule shall be subject to a biennial face-to-face structural review. Non-agency providers shall continue to meet all waiver provider eligibility requirements at all time.

(2) Medicare-certified, and otherwise-accredited agencies are subject to reviews in accordance with their certification and accreditation bodies, and therefore shall be exempt from a regularly scheduled structural review.

(3) All other ODJFS-administered waiver providers shall be subject to a biennial structural review. The first structural review must occur no later than two years after the date on which the provider begins furnishing billable waiver services.

(4) All ODJFS-administered waiver providers may be subject to an announced or unannounced structural review when any of the following have been reported to ODJFS or its designee:

(a) A provider occurrence;

(b) Health and welfare issues involving the provider and an ODJFS-administered waiver consumer; or

(c) Any other provider performance issues.

(5) Structural reviews must be conducted face-to-face between the provider and ODJFS or its designee. All structural reviews must use an ODJFS-approved structural review tool. The structural review process includes the following:

(a) Except for unannounced structural reviews, the provider shall be notified in advance of the review. Advance notification shall include a list of the documents required for the review. Advance notification shall also include a mutually acceptable date, time and location when the review is conducted face-to-face.

(b) The provider shall assure the availability and confidentiality of consumer information and other documents that may be requested as part of the structural review. The review shall not occur while the provider is furnishing services to a consumer.

(c) In preparation for the review, the reviewer shall examine the provider's occurrence and incident reports. Documented findings of noncompliance shall be addressed during the review.

(d) The structural review shall include an evaluation of compliance with Chapter 5101:3-45 of the Administrative Code, and Chapter(s) 5101:3-46, 5101:3-47 and/or 5101:3-50 of the Administrative Code, depending upon the waiver(s) for which the provider is furnishing services.

(e) A unit of service verification shall be conducted by ODJFS or its designee to assure that all waiver services are authorized, delivered and reimbursed in accordance with the consumer's approved all services plan. Alleged overpayments resulting from the unit of service verification shall be handled in accordance with paragraph (D) of this rule.

(i) The reviewer shall examine, at a minimum, three months of clinical records and supporting documentation per consumer for all non-agency providers for up to six consumers.

(ii) For all other providers subject to a structural review, the reviewer shall examine, at a minimum, ten per cent of the provider's service delivery records and supporting documentation. The review shall include no fewer than three, and no more than thirty, records per service/per provider.

(iii) The findings of the unit of service verification may result in an expanded review of records.

(f) An evaluation shall be conducted to determine whether the provider has implemented all plans of correction that may exist.

(g) The reviewer shall conduct an exit conference with the non-agency provider, or in the case of an agency provider, the agency administrator, to discuss its preliminary findings from the structural review and any required follow-up.

(6) After the exit conference has occurred, ODJFS 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 issues or findings of noncompliance the provider must address in a plan of correction.

(7) No later than forty-five calendar days after the date on the written report described in paragraph (B)(6) of this rule, the provider must submit to ODJFS or its designee a plan of correction for all identified issues or findings of noncompliance.

(8) If ODJFS or its designee finds the provider's plan of correction acceptable, it shall acknowledge, in writing, to the provider that the plan addresses the issues outlined in the written report. If ODJFS 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 new plan of correction. The provider must submit the new plan of correction within the specified timeframe.

(C) Investigation of alleged provider occurrences.

(1) Provider occurrences include, but are not limited to, allegations of provider billing violations, medicaid fraud and substandard provider performance.

(2) ODJFS or its designee shall investigate alleged provider occurrences and gather supporting documentation upon discovery. Depending upon the specific provider occurrence, and as part of its investigation, ODJFS or its designee may gather any of the following:

(a) Clinical progress notes from the provider;

(b) Case management documentation from the consumer's file or electronic record;

(c) The consumer's assessment and reassessments;

(d) The consumer's all service plans;

(e) Provider billing information;

(f) Physicians' orders;

(g) Prior occurrence reports; or

(h) Any other relevant information.

(3) If ODJFS or its designee substantiates the alleged provider occurrence, it shall notify the provider via certified mail. The letter shall specify:

(a) The alleged behavior(s) that must be stopped by the provider;

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

(c) What the provider must do to correct the finding(s) of noncompliance; and

(d) The timeframe within which a plan of correction must be submitted to ODJFS or its designee, not to exceed thirty calendar days after the date the certified letter was mailed.

(4) If ODJFS or its designee finds the provider's plan of correction acceptable, it shall acknowledge, in writing, to the provider that the plan addresses the issues outlined in the certified letter.

(a) If ODJFS 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 new plan of correction. The provider must submit the new plan of correction within the specified timeframe.

(b) The provider may request technical assistance from ODJFS or its designee at any time.

(D) ODJFS shall investigate all allegations of provider overpayments resulting from structural reviews or provider occurrence reporting. When an overpayment is affirmed by ODJFS, the provider shall return the overpayment to ODJFS in accordance with departmental policy and procedures.

(E) ODJFS may impose sanctions upon a provider in accordance with rule 5101:3-45-09 of the Administrative Code in the event a provider does any of the following:

(1) Refuses to accept the certified letter when it is delivered;

(2) Fails to respond to ODJFS's or its designee's request for a plan of correction;

(3) Has not followed the plan of correction and/or successfully achieved the plan's desired results;

(4) Has not complied with the timeframes set forth in this rule;

(5) Has failed to protect consumers from repeated and substantiated reportable incidents;

(6) Has multiple substantiated provider occurrences;

(7) Has created a serious and immediate threat to the health and welfare of any ODJFS-administered waiver consumer;

(8) Did not attend or cooperate during the face-to-face structural review;

(9) Did not make available requested documents; or

(10) Did not submit a satisfactory plan of correction, or upon request, resubmit a satisfactory plan of correction.

Replaces: 5101:3-12-30

Effective: 09/19/2009
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

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 Conditions of participation for Ohio department of job and family services (ODJFS) administered waiver service providers.

(A) ODJFS-administered waiver service providers shall:

(1) Maintain an active, valid medicaid provider agreement as set forth in rule 5101:3-1-17.3 of the Administrative Code.

(2) Comply with all provider requirements as set forth in Chapter 5101:3-45 of the Administrative Code, and Chapter 5101:3-46, 5101:3-47, or 5101:3-50 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 5101:3-45-04 of the Administrative Code;

(b) Provider service specifications as set forth in rule 5101:3-46-04, 5101:3-47-04, or 5101:3-50-04 of the Administrative Code, as applicable;

(c) Criminal record checks as set forth in rule 5101:3-45-07 or 5101:3-45-08 of the Administrative Code, as applicable;

(d) Consumer incident reporting as set forth in rule 5101:3-45-05 of the Administrative Code; and

(e) Provider monitoring and reviews as set forth in rule 5101:3-45-06 of the Administrative Code.

(3) Deliver services professionally, respectfully and legally.

(4) Comply, and maintain documentation of compliance, with the patient rights standards set forth in the medicare conditions of participation for home heath agencies as set forth in 42 C.F.R. 484.10 (June 27, 1995).

(5) Participate in all mandatory provider training sessions sponsored by ODJFS or its designee.

(6) Assure consumers receive ODJFS-administered waiver services in accordance with the consumer's all services plan.

(a) Medicare-certified home health agencies and otherwise-accredited agencies shall make every reasonable effort to replace staff when the provider's regularly scheduled staff cannot or do not meet their obligation to provide services to the consumer.

(b) At the direction of the consumer, non-agency providers shall assist the consumer upon initiation of services, as appropriate, in developing a backup plan in the event the regularly scheduled non-agency provider cannot or does not meet its obligation to provide services to the consumer.

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

(8) Comply with all federal and state privacy laws, including the Health Insurance Portability and Accountability Act (HIPAA) regulations as set forth in 45 C.F.R. parts 160 and 164, and the medicaid confidentiality regulations as set forth in 42 C.F.R. 421.300 to 42 C.F.R. 421.307 ; and sections 5101.26 to 5101.28 of the Revised Code.

(9) Notify ODJFS and its designee, in writing, within thirty calendar days of changes in address, telephone number, email address and other contact information.

(10) Maintain and retain all required documentation including, but not limited to, documentation of tasks performed or not performed, arrival and departure times, and the dated signatures of the provider and the consumer or authorized representative verifying the service delivery upon completion of service delivery. Nothing shall prohibit the collection and maintenance of documentation through technology-based systems. The consumer's or authorized representative's signature of choice shall be documented on the all services plan, and shall include, but not be limited to, any of the following: a handwritten signature, initials, a stamp or mark, or an electronic signature.

(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 ODJFS and its designee during all provider monitoring activities by being available to answer questions during reviews, and by assuring the availability and confidentiality of consumer information and other documents that may be requested as part of provider monitoring activities.

(13) Notify ODJFS or its designee within twenty-four hours and provide written documentation within five calendar days when the provider is aware of issues that may affect service delivery to the consumer. Issues may include, but are not limited to the following:

(a) The consumer consistently declines services.

(b) The consumer moves to another residential address.

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

(d) There are changes in environmental conditions affecting the consumer.

(e) The consumer's caregiver status has changed.

(f) The consumer no longer requires medically necessary services as defined in rule 5101:3-1-01 of the Administrative Code.

(g) The consumer has experienced a reportable incident as set forth in rule 5101:3-45-05 of the Administrative Code.

(h) A referral has been made to a protective service agency on the consumer's behalf, or an active case is pending.

(i) The consumer is behaving inappropriately toward the provider.

(j) The consumer is consistently noncompliant with physician orders, or is noncompliant with physician orders in a manner that may jeopardize the consumer's health and welfare.

(k) The consumer's requests consistently conflict with the consumer's all services plan.

(l) The consumer has been hospitalized or visited the emergency room.

(m) The consumer has been placed in an institutional setting.

(n) The consumer is experiencing other health and welfare issues.

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

(15) Submit written notification to the consumer and ODJFS or its designee at least thirty calendar days before the anticipated last date of service if the provider is terminating the provision of ODJFS-administered waiver services to the consumer. Exceptions to the thirty-day advance notification requirement are set forth in paragraphs (A)(15)(a) to (A)(15)(c) of this rule, and are subject to verbal notification within twenty-four hours of the last date of service, and written notification within five calendar days of the last date of service.

(a) Thirty-day advance notification is not required when the consumer:

(i) Has been hospitalized for at least three days;

(ii) Has been placed in an institutional setting;

(iii) Has been incarcerated;

(iv) Has died;

(v) Is terminating the services of the provider; or

(vi) Is no longer eligible for medicaid.

(b) Thirty-day advance notification is not required when the provider is furnishing services in an environment that places the provider in imminent danger.

(c) Thirty-day advance notification may be waived for the provider by ODJFS or its designee on a case-by-case basis.

(B) ODJFS-administered waiver service providers may submit an e-mail address to ODJFS and/or its designee in order to receive electronic notification of any rule adoption, amendment or rescission, and any other communications from ODJFS or its designee that are not confidential pursuant to law.

(C) ODJFS-administered waiver service providers shall not:

(1) Submit a claim for waiver services rendered while the consumer is hospitalized, institutionalized or incarcerated. The only exception to this prohibition is when the consumer in institutionalized for the purpose of receiving out-of-home respite as set forth on the consumer's all services plan.

(2) Consume the consumer's food and/or drink without the consumer's offer and consent.

(3) Bring children, pets, friends, relatives, other consumers or anyone else to the consumer's place of residence.

(4) Take the consumer to the provider's place of residence.

(5) Use illegal drugs or chemical substances.

(6) Consume alcohol while delivering services to the consumer.

(7) Deliver services to the consumer while under the influence of alcohol.

(8) Report for duty or remain on duty when the provider is using any controlled substance. The exception would be when the use is pursuant to the instructions of a physician who has advised the provider that the substance does not adversely affect the provider's ability to deliver services to the consumer.

(9) Deliver services to the consumer when the provider is medically, physically or emotionally unfit.

(10) Discuss religion or politics with the consumer or others in the care setting.

(11) Discuss personal issues with the consumer or others in the care setting.

(12) Accept, obtain or attempt to obtain money or anything of value, including gifts or tips from the consumer, authorized representative, household members or family members of the consumer.

(13) Borrow money, credit cards or other items from the consumer, authorized representative, household members or family members of the consumer.

(14) Be designated on a financial account or credit card held by the consumer, authorized representative, household members or family members of the consumer.

(15) Use the property of the consumer, authorized representative, household members or family members for personal gain.

(16) Lend or give the consumer, authorized representative, household members or family members money or other personal items.

(17) Engage with the consumer in sexual activity, or in conduct that may reasonably be interpreted as sexual in nature, regardless of whether or not the contact is consensual.

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

(19) Engage in behavior that may reasonably be interpreted as inappropriate involvement in the consumer's personal relationships.

(20) Leave the home for a purpose unrelated to the provision of services without notifying the agency supervisor, the consumer's emergency contact person, identified caregiver and/or case manager.

(21) Use the consumer's motor vehicle, unless solely for the benefit of the consumer.

(22) Engage in activities that may distract from service delivery including, but not limited to:

(a) Watching television or playing computer or video games.

(b) Making or receiving personal communications.

(c) Engaging in non-care-related socialization with individuals other than the consumer.

(d) Providing care to individuals other than the consumer.

(e) Smoking without the consent of the consumer.

(f) Sleeping.

(23) Sell to, or purchase from, the consumer products or personal items unless the provider is a family member and the transaction occurs when the provider is not furnishing waiver services.

(24) Engage in behavior that takes advantage of or manipulates the consumer, the consumer's authorized representative or family, or the ODJFS-administered waiver program rules resulting in an advantage for personal gain.

(25) Use information about the consumer, authorized representative or the consumer's family for personal gain.

(D) ODJFS-administered waiver service providers shall not be designated to serve or make decisions for the consumer in any capacity involving a declaration for mental health treatment, durable power of attorney, financial power of attorney, or guardianship pursuant to court order, or representative payee as that term is described in paragraph (D)(3) of this rule, unless one or more of the following exceptions applies:

(1) A family member is appointed by the court pursuant to section 2111.01 of the Revised Code as a legal guardian for the consumer.

(2) The consumer's designee pursuant to a declaration for mental health treatment, durable power of attorney or financial power of attorney is the consumer's parent or spouse.

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

(4) For non-family members, both of the following conditions apply:

(a) The provider was the consumer's paid medicaid provider before September 1, 2005; and

(b) The provider was appointed, and was already serving as, the consumer's designee pursuant to a declaration for mental health treatment, durable power of attorney, financial power of attorney or guardianship pursuant to court order before September 1, 2005.

(E) Agency providers shall pay applicable federal, state and local income and employment taxes in compliance with federal, state and local requirements.

(F) 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 ODJFS-approved affidavit stating that they paid their applicable federal, state and local income and employment taxes.

(G) Failure to meet the requirements set forth in this rule may result in suspension of a provider's medicaid provider agreement in accordance with rule 5101:3-1-17.5 of the Administrative Code, or any of the actions set forth in rule 5101:3-45-09 of the Administrative Code including, but not limited to, termination of the medicaid provider agreement in accordance with rule 5101:3-1-17.6 of the Administrative Code. The provider shall be entitled to a hearing under Chapter 119. of the Revised Code in accordance with Chapter 5101:6-50 of the Administrative Code.

Replaces: 5101:3-45-10

Effective: 10/25/2010
R.C. 119.032 review dates: 10/01/2015
Promulgated Under: 119.03
Statutory Authority: 5111.85
Rule Amplifies: 5111.01 , 5111.02 , 5111.85
Prior Effective Dates: 08/01/05

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