Chapter 3701-64 | Abuse or Neglect in Long-Term Care Facilities

Rule 3701-64-01 | Definitions.

• Effective: April 29, 2022
• Promulgated Under: 119.03

As used in this chapter:

(A) "Abuse" means any of the following:

(1) Physical abuse;

(2) Psychological abuse; or

(3) Sexual abuse.

(B) "Accused" means the person that provides a service to a resident from which the resident or facility benefits who is named in an allegation or implicated in an investigation of abuse or neglect of a resident of a long-term care facility or misappropriation of property of such a resident.

(C) "Chemical restraint" means any medication bearing the "American Hospital Formulary Service" therapeutic class 4.00, 28:16:08, 28:24:08, or 28:24:92 (as they exist November 24, 2017) that alters the functioning of the central nervous system in a manner that limits physical and cognitive functioning to the degree that the resident cannot attain his highest practicable physical, mental, and psychosocial well-being.

(D) "Day" means one calendar day.

(E) "Director" means the director of health or any person to whom the director of health delegates his or her authority.

(F) "Exploitation" means taking advantage of a resident, regardless of whether the action was for personal gain, whether the resident knew of the action, or whether the resident was harmed.

(G) "Licensed health professional" means all of the following:

(1) An occupational therapist or occupational therapy assistant licensed under Chapter 4755. of the Revised Code;

(2) A physical therapist or physical therapy assistant licensed under Chapter 4755. of the Revised Code;

(3) A physician authorized under Chapter 4731. of the Revised Code to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery;

(4) A physician's assistant authorized under Chapter 4730. of the Revised Code to practice as a physician assistant;

(5) A registered nurse or licensed practical nurse licensed under Chapter 4723. of the Revised Code;

(6) A social worker or licensed independent social worker licensed, or a social work assistant certified, under Chapter 4757. of the Revised Code or a social work assistant registered under that chapter;

(7) A speech pathologist or audiologist licensed under Chapter 4753. of the Revised Code;

(8) A dentist or dental hygienist licensed under Chapter 4715. of the Revised Code;

(9) An optometrist licensed under Chapter 4725. of the Revised Code;

(10) A pharmacist licensed under Chapter 4729. of the Revised Code;

(11) A psychologist licensed under Chapter 4732. of the Revised Code;

(12) A chiropractor licensed under Chapter 4734. of the Revised Code;

(13) A nursing home administrator licensed or temporarily licensed under Chapter 4751. of the Revised Code;

(14) A professional counselor or professional clinical counselor licensed under Chapter 4757. of the Revised Code.

(H) "Long-term care facility" means either of the following:

(1) A nursing home as defined in section 3721.01 of the Revised Code, other than a nursing home or part of a nursing home certified as an intermediate care facility for the mentally retarded under Title XIX of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301, as amended (1981); or

(2) A facility or part of a facility that is certified as a skilled nursing facility or a nursing facility under Title XVIII or XIX of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301, as amended (1981);

(I) "Misappropriation" means depriving, defrauding, or otherwise obtaining the real or personal property of a resident by any means prohibited by the Revised Code, including violations of Chapter 2911. or 2913. of the Revised Code.

(J) "Neglect" means recklessly failing to provide a resident with any treatment, care, goods, or service necessary to maintain the health or safety of the resident when the failure results in serious physical harm to the resident. "Neglect" does not include allowing a resident, at the resident's option, to receive only treatment by spiritual means through prayer in accordance with the tenets of a recognized religious denomination.

(K) "Nurse aide" means an individual who provides nursing and nursing-related services to residents in a long-term care facility, either as a member of the staff of the facility for monetary compensation or as a volunteer without monetary compensation. "Nurse aide" does not include either of the following:

(1) A licensed health professional practicing within the scope of the professional's license; or

(2) An individual providing nursing and nursing-related services in a religious nonmedical health care institution, if the individual has been trained in the principles of nonmedical care and is recognized by the institution as being competent in the administration of care within the religious tenets practiced by the residents of the institution.

(L) "Physical abuse" means knowingly causing physical harm or recklessly causing serious physical harm to a resident through either of the following:

(1) Physcial contact with the resident; or

(2) The use of physical restraint, chemical restraint, medication that does not constitute a chemical restraint, or isolation , if the restraint, medication, or isolation is excessive, for punishment, for staff convenience, as a substitute for treatment, or in an amount that precludes habilitation and treatment.

(M) "Physical contact" includes, but is not limited to, hitting, slapping, pinching, kicking. Physical contact also includes sexual contact.

(N) "Physical restraint" means, but is not limited to, any article, device, or garment that interferes with the free movement of the resident and that the resident is unable to remove easily, a geriatric chair, or a locked room door.

(O) "Psychological abuse" means knowingly or recklessly causing psychological harm to a resident, whether verbally or by action.

(P) "Resident" includes a resident, patient, former resident or patient, or deceased resident or patient of a long-term care facility or residential care facility.

(Q) "Residential care facility" has the same meaning as in section 3721.01 of the Revised Code.

(R) "Religious nonmedical health care institution" means an institution that meets or exceeds the conditions to receive payment under the medicare program established under Title XVIII of the "Social Security Act" for inpatient hospital services or post-hospital extended care services furnished to an individual in a religious nonmedical health care institution, as defined in section 1861(ss)(1) of the "Social Security Act," 79 Stat. 286 (1965), 42 U.S.C. 1395x(ss)(1), as amended (2011).

(S) "Sexual abuse" means sexual conduct or sexual contact with a resident, as those terms are defined in section 2907.01 of the Revised Code.

(T) "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

(U) "Sexual contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.

Last updated April 29, 2022 at 2:11 PM

Supplemental Information

Authorized By: 3721.26
Amplifies: 3721.21, 3721.22, 3721.23, 3721.24, 3721.25
Five Year Review Date: 4/29/2027
Prior Effective Dates: 6/10/2011

Rule 3701-64-02 | Investigations of abuse and neglect of residents or misappropriation of property; notice of hearing rights.

• Effective: April 29, 2022
• Promulgated Under: 119.03

(A) The director of health shall receive, review, and investigate allegations of abuse, or neglect, or exploitation of a resident, or misappropriation of the property of a resident by any individual used by a long-term care facility or a residential care facility to provide services to residents.

(B) Allegations of abuse, neglect, exploitation, or misappropriation may be presented orally or in writing to the Ohio department of health's bureau of survey and certification or bureau of regulatory operations.

(C) Allegations shall be investigated by appropriately qualified individuals, as determined by the director. No long-term care facility or a residential care facility shall do any of the following knowing that an investigation is in progress, or is about to be or likely to be instituted under this rule:

(1) Refuse to permit the director to enter the facility;

(2) Refuse to permit the director to interview employees or other personnel used by the facility, residents, or families of residents;

(3) Refuse to permit the director to review and copy any record kept by the facility or their agents, including but not limited to:

(a) Medical records;

(b) Personnel records; or

(c) Records reviewed by the facility, including:

(i) Written statements;

(ii) Audio recordings, if available;

(iii) Video recordings, if available; and

(iv) Other materials gathered during the course of the investigation; or

(4) Destroy any records or documentation reviewed by the facility, to include the overwriting of audio or video recordings.

(5) Otherwise hinder the director's investigation of an allegation of abuse, neglect, or exploitation of a resident, or misappropriation of the property of a resident.

(D) If, after investigation, the director determines that there is a reasonable basis for an allegation, the director shall provide written notice to the accused in accordance with paragraphs (E) and (F) of this rule. The director also shall send a copy of the notice to any long-term care facility or a residential care facility that the director knows currently is using the accused to provide services.

(E) The written notice shall include all of the following items:

(1) A statement of the nature of the allegation;

(2) A statement advising the accused of his or her right to a hearing on the allegation and of the manner in which and time within which a hearing may be requested;

(3) An explanation that the director will report any finding that the accused abused, neglected, or exploited a resident or misappropriated a resident's property to the following entity, as applicable:

(a) The nurse aide registry established under section 3721.32 of the Revised Code;

(b) The appropriate licensing authority, if the accused is a licensed health professional; and

(c) Any other entity that holds authority or association with the accused.

(4) A warning that if the accused fails to submit a written request for a hearing within thirty days after he or she receives or was deemed to have received the notice, the director may do both of the following:

(a) Make a finding adverse to the accused; and

(b) Pursuant to rule 3701-64-05 of the Administrative Code, report the finding to the nurse aide registry, the appropriate licensing authority, or other relevant entity that would benefit from the notice, whichever is applicable, the long-term care facility or a residential care facility where the incident occurred, any other long-term care facility or a residential care facility known by the director to be using the accused to provide services to residents at the time of his or her finding, and the appropriate law enforcement official.

(F) The director first shall provide the written notice to the accused by certified mail, return receipt requested, or by sending it by personal delivery to the accused's last known address.

(1) If a certified mail notice is returned because the party fails to claim the notice, the director then may send the notice to the accused's last known address by ordinary mail. The notice shall be deemed complete when the certificate of mailing is obtained unless the notice is returned showing failure of delivery.

(2) If any notice sent by certified or ordinary mail is returned for failure of delivery, the director shall publish notice to the department's website. The notice shall be published for twenty one days, shall summarize the information required by paragraph (E) of this rule, and shall refer the accused to the Ohio department of health's office of health assurance and licensing for additional information. When notice is given by publication, a proof of publication affidavit, with a copy of the the notice set forth in the affidavit, shall be mailed by ordinary mail to the party at the party's last known address and the notice shall be deemed received as of the twenty first day of publication. An employee or agent of the agency may make personal delivery of the notice upon a party at any time.

Refusal of delivery by personal service or by mail is not failure of delivery and service is deemed to be complete. Failure of delivery occurs only when a mailed notice is returned by the postal authorities marked undeliverable, address or addressee unknown, or forwarding address unknown or expired.

Last updated April 29, 2022 at 2:11 PM

Supplemental Information

Authorized By: 3721.26
Amplifies: 3721.23
Five Year Review Date: 4/29/2027

Rule 3701-64-03 | Request for hearing; scheduling hearing.

• Effective: April 29, 2022
• Promulgated Under: 119.03

(A) If the accused desires a hearing before the director makes a finding on an allegation of abuse, neglect, or exploitation of a resident or misappropriation of a resident's property, he or she shall submit a written request for a hearing to the director. The accused shall submit the request within thirty days after receiving or being deemed to have received the notice required by paragraph (D) of rule 3701-64-02 of the Administrative Code. For purposes of this rule, the date a hearing request is submitted is the date on which the request is postmarked, if mailed, or the date on which it is received by the director, if hand-delivered or sent via facsimile or electronic mail.

(B) Upon receipt of a timely written request for a hearing from the accused, the director shall schedule the hearing and notify the accused by ordinary mail of the date, time, and place of the hearing. The director shall provide this notification at least fifteen days prior to the hearing. The hearing shall be held within ninety days after the director received the request and shall be held in either of the following:

(1) The regional office of the department of health which is closest to the residence of the accused or the place where the events constituting the allegation occurred; or

(2) Another location designated by the director if the director determines that holding the hearing at a location chosen under paragraph (B)(1) of this rule would be inconvenient for the accused or for witnesses.

(C) The director may postpone or continue the hearing at the request of the accused or on his or her own motion, but the hearing shall not be postponed or continued to a date later than one hundred twenty days after the director received the hearing request unless the director and the accused both agree to the postponement.

Last updated April 29, 2022 at 2:11 PM

Supplemental Information

Authorized By: 3721.26
Amplifies: 3721.23
Five Year Review Date: 4/29/2027
Prior Effective Dates: 4/18/2016

Rule 3701-64-04 | Hearing procedure.

• Effective: April 29, 2022
• Promulgated Under: 119.03

(A) For the convenience of accused individuals or witnesses, the director may consolidate hearings on allegations of abuse, neglect, exploitation, or misappropriation that involve a common set of circumstances.

(B) The director shall appoint an attorney who is licensed to practice law in Ohio to serve as hearing officer and to preside at the hearing. The hearing officer shall not have been involved directly with the director's investigation of the allegation and shall have the same powers and authority in conducting the hearing as the director.

(C) For the purposes of conducting a hearing under this rule, the director may issue subpoenas compelling attendance of witnesses or production of documents.

(1) The subpoenas shall be served in the same manner as subpoenas and subpoenas duces tecum issued for a trial of a civil action in a court of common pleas.

(2) If a person who is served a subpoena fails to attend a hearing or to produce documents, or refuses to be sworn or to answer any questions put to him or her, the director may apply to the common pleas court of the county in which the person resides, or the county in which the long-term care facility or residential care facility is located, for a contempt order, as in the case of a failure of a person who is served a subpoena issued by the court to attend or to produce documents or a refusal of such person to testify.

(3) If the accused desires to compel the attendance of witnesses or the production of documents at the hearing, the accused shall request that the director issue the desired subpoena not later than seven days prior to the hearing. The director shall issue any subpoena which is requested timely under paragraph (C) of this rule.

(D) The hearing shall be recorded with the method of recording determined by the director. The record shall include all testimony, other evidence, and rulings on objections presented at the hearing.

(E) The hearing officer may administer oaths and affirmations, shall regulate the conduct of the hearing, shall rule upon the admissibility of evidence and objections. If the hearing officer refuses to admit certain evidence, any proffer of that evidence shall be made a part of the hearing record.

(F) The hearing officer may call the accused to testify under oath as upon cross-examination.

(G) The accused is entitled to have an attorney present at the hearing, to present evidence and to cross-examine witnesses. The accused may be represented at the hearing by a person who is not an attorney if the accused does not pay a fee to the person for the representation.

(H) The hearing officer may be guided by but shall not be bound by the "Ohio Rules of Evidence" (as amended July 1, 2020) when he or she conducts the hearing. The hearing officer shall consider all relevant testimonial and documentary evidence which is admitted into the record during the hearing.

(I) The hearing officer shall send a written report to the director and the accused by ordinary mail or hand delivery within fifteen days after the conclusion of the hearing. The report shall contain findings of fact, conclusions of law, and a recommendation whether the director should make a finding that the accused abused, neglected, or exploited a resident or misappropriated property of a resident. The hearing officer's findings shall be based on a preponderance of the evidence adduced at the hearing.

(J) Either party may file written objections to the report and recommendation of the hearing officer. The objections shall be sent or hand-delivered to the director and the other party within fifteen days after the mailing or hand delivery of the report and recommendation. Either party may file with the director a written response to the objections of the other party within ten days after the objections were mailed or hand-delivered.

Last updated April 29, 2022 at 2:11 PM

Supplemental Information

Authorized By: 3721.26
Amplifies: 3721.23
Five Year Review Date: 4/29/2027
Prior Effective Dates: 4/18/2016

Rule 3701-64-05 | Findings of director; petition to remove a finding of neglect from the nurse aide registry.

• Effective: April 29, 2022
• Promulgated Under: 119.03

(A) The director shall not make a finding against the accused if neglect was caused by factors beyond the control of the accused. Factors beyond the control of the accused may include, but are not limited to, orders from his or her supervisor or failure of the long-term care facility or residential care facility to provide adequate staffing or supplies.

(B) If the director finds that an accused, who is used by a long-term care facility or residential care facility, has abused, neglected or exploited a resident or misappropriated property of a resident, the director shall notify all of the following by ordinary mail:

(1) The accused;

(2) The long-term care facility where the incident occurred and any other long-term care facility known by the director to be using the accused at the time of the director's finding;

(3) The attorney general, county prosecutor, or other appropriate law enforcement official;

(4) The nurse aide registry established under section 3721.32 of the Revised Code, including a detailed statement of the director's findings;

(5) Any appropriate professional licensing authority established under Title 47 of the Revised Code; and

(6) Any other entity that may benefit from the notice.

(C) A nurse aide or other individual about whom a statement is required by paragraph (B) of this rule to be included in the nurse aide registry may provide the director with a statement which disputes the director's findings and which explains the circumstances of the allegation. The director shall include this statement in the nurse aide registry with the director's findings.

(D) If the director finds that alleged abuse, neglect, or exploitation of a resident or misappropriation of property of a resident cannot be substantiated, the director shall notify the accused and expunge all files and records of the investigation and the hearing by doing all of the following:

(1) Removing and destroying the files and records, originals and copies, and deleting all index references;

(2) Reporting to the accused the nature and extent of any information about the accused which has been transmitted to any other person or government entity by the director; and

(3) Otherwise ensuring that any examination of the director's files and records in question show no record whatever with respect to the accused.

(E) The failure of the director to comply with any of the time limits specified in rules 3701-64-02 to 3701-64-05 of the Administrative Code shall not effect the validity of any finding made by the director under this rule.

(F) In accordance with division (D)(2) of section 3721.23 of the Revised Code and in a form and manner prescribed by the director, not earlier than one year after the date of a finding of neglect, an individual found to have neglected a resident may petition the director to rescind the finding and remove the statement and any accompanying information from the nurse aide registry. The director shall consider the petition.

(1) If, in the judgment of the director, the neglect was a singular occurrence and the employment and personal history of the individual does not evidence abuse or any other incident of neglect of residents, the director shall notify the individual and remove the statement and any accompanying information from the nurse aide registry;

(2) The director shall expunge all files and records of the investigation and the hearing, except the petition for rescission of the finding of neglect and the director's notice that the rescission has been approved; and

(3) A petition for rescission of a finding of neglect and the director's notice that the rescission has been approved are not public records for the purpose of section 149.43 of the Revised Code.

(G) When files and records have been expunged under paragraph (D) or (F) of this rule, all rights and privileges are restored, and the accused, the director, and any other person or government entity may properly reply to an inquiry that no such record exists as to the matter expunged.

Last updated April 29, 2022 at 2:12 PM

Supplemental Information

Authorized By: 3721.26
Amplifies: 3721.23
Five Year Review Date: 4/29/2027
Prior Effective Dates: 6/10/2011, 4/18/2016