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This website publishes administrative rules on their effective dates, as designated by the adopting state agencies, colleges, and universities.

Chapter 5123-2 | Provider Standards

 
 
 
Rule
Rule 5123-2-02 | Background investigations for employment.
 

(A) Purpose

This rule establishes standards for conducting background investigations on persons employed or seeking employment in Ohio's service delivery system for individuals with developmental disabilities.

(B) Definitions

For the purposes of this rule, the following definitions shall apply:

(1) "Agency provider" means a person, association, corporation, nonprofit organization, partnership, trust, or other group of persons that provides specialized services and employs, directly or through contract, one or more persons in a direct services position.

(2) "Applicant" means:

(a) A person who is under final consideration for appointment to or employment with the department or a county board;

(b) A person who is being transferred to the department or a county board;

(c) An employee who is being recalled to or reemployed by the department or a county board after a layoff; or

(d) A person under final consideration for a direct services position with an agency provider or subcontractor.

(3) "Candidate" means:

(a) The chief executive officer of an agency provider that applies pursuant to section 5123.161 or 5123.164 of the Revised Code for supported living certification; or

(b) A person who applies pursuant to section 5123.161 or 5123.164 of the Revised Code for supported living certification as an independent provider.

(4) "County board" means a county board of developmental disabilities.

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

(6) "Department" means the Ohio department of developmental disabilities.

(7) "Direct services position" means an employment position in which the employee has the opportunity to be alone with or exercises supervision or control over one or more individuals.

(8) "Disqualifying offense" means any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code.

(9) "Employee" means a person appointed to or employed by the department or a county board or a person employed in a direct services position by an agency provider or subcontractor. "Employee" does not mean a person who provides only respite care to his or her family member under a family support services program established pursuant to section 5126.11 of the Revised Code.

(10) "Independent provider" means a self-employed person who provides services for which he or she must be certified in accordance with rule 5123:2-2-01 of the Administrative Code and does not employ, either directly or through contract, anyone else to provide the services.

(11) "Individual" means a person with a developmental disability.

(12) "Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

(13) "Multiple disqualifying offenses" means two or more convictions or guilty pleas to disqualifying offenses. Convictions or guilty pleas resulting from or connected with the same act, or resulting from offenses committed at the same time, shall be counted as one conviction or guilty plea.

(14) "Responsible entity" means:

(a) The department in the case of an applicant under final consideration for appointment to or employment with the department, being transferred to the department, or being recalled to or reemployed by the department after a layoff or a person appointed to or employed by the department;

(b) A county board in the case of an applicant under final consideration for appointment to or employment with the county board, being transferred to the county board, or being recalled to or reemployed by the county board after a layoff or a person appointed to or employed by the county board;

(c) An agency provider in the case of an applicant under final consideration for a direct services position with the agency provider or a person employed in a direct services position by the agency provider; or

(d) A subcontractor in the case of an applicant under final consideration for a direct services position with the subcontractor or a person employed in a direct services position by the subcontractor.

(15) "Retained applicant fingerprint database" means the database also known as "Rapback," maintained by the bureau of criminal identification and investigation pursuant to section 109.5721 of the Revised Code that contains the fingerprints of individuals for whom the bureau of criminal identification and investigation has conducted criminal records checks.

(16) "Specialized services" mean any program or service designed and operated to serve primarily individuals with developmental disabilities, including a program or service provided by an entity licensed or certified by the department. If there is a question as to whether a provider or subcontractor is providing specialized services, the provider or subcontractor may request that the director of the department make a determination. The director's determination is final. Programs or services available to the general public are not specialized services.

(17) "Subcontractor" means a person to which both of the following apply:

(a) The person has:

(i) A subcontract with an agency provider to provide specialized services included in the contract between the agency provider and the department or a county board; or

(ii) A subcontract with another subcontractor to provide specialized services included in a subcontract between the other subcontractor and an agency provider or other subcontractor.

(b) The person employs one or more persons in direct services positions.

(C) Requirements for responsible entities

(1) A responsible entity shall, prior to employing an applicant:

(a) Require the applicant to complete an employment application and provide the names and addresses of present and former employers; and

(b) Attempt to obtain references from the applicant's present and former employers and maintain written evidence that reference checks were attempted and/or completed.

(2) Prior to employing an applicant, a responsible entity shall check each of the following databases to determine if the applicant is included:

(a) The list of excluded persons 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, and section 1156 of the Social Security Act, 96 Stat. 388 (1982), 42 U.S.C. 1320c-5 (available at http://exclusions.oig.hhs.gov/);

(b) The abuser registry established pursuant to section 5123.52 of the Revised Code (available at https://its.prodapps.dodd.ohio.gov/abr_default.aspx);

(c) The nurse aide registry established pursuant to section 3721.32 of the Revised Code (available at https://odhgateway.odh.ohio.gov/nar/nar _registry_search.aspx) and there is a statement detailing findings by the director of the Ohio department of health that the applicant or employee neglected or abused a resident of a long-term care facility or residential care facility or misappropriated property of such a resident;

(d) The sex offender and child-victim offender database established pursuant to division (A)(11) of section 2950.13 of the Revised Code (available at http://www.icrimewatch.net/index.php?AgencyID=55149&disc=);

(e) The United States general services administration system for award management database (available at https://www.sam.gov/);

(f) The Ohio department of medicaid provider exclusion and suspension list (available at https://medicaid.ohio.gov/provider/enrollmentandsupport/ providerexclusionandsuspensionlist); and

(g) The database of incarcerated and supervised offenders established pursuant to section 5120.066 of the Revised Code (available at https://appgateway.drc.ohio.gov/offendersearch).

(3) A responsible entity shall not employ an applicant or continue to employ an employee if the applicant or employee is included in one or more of the databases described in paragraphs (C)(2)(a) to (C)(2)(f) of this rule.

(4) Prior to employing an applicant in a position that involves transporting individuals or operating the responsible entity's vehicles for any purpose, a responsible entity shall verify that the applicant has a valid motor vehicle operator's license and obtain the applicant's driving record prepared by the bureau of motor vehicles. A person having six or more points on his or her driving record is prohibited from transporting individuals.

(5) Prior to employing an applicant, a responsible entity shall require the applicant to:

(a) Submit a statement to the responsible entity with the applicant's signature attesting that he or she has not been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense. An applicant or employee shall disclose to the responsible entity a conviction for any offense that has been sealed.

(b) Sign an agreement under which the applicant agrees to notify the responsible entity within fourteen calendar days if, while employed by the responsible entity, the applicant is formally charged with, is convicted of, pleads guilty to, or is found eligible for intervention in lieu of conviction for a disqualifying offense. The agreement shall provide that failure to make the notification may result in termination of employment.

(6) Prior to employing an applicant, a responsible entity shall request the bureau of criminal identification and investigation to conduct a criminal records check of the applicant. If an applicant does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the responsible entity shall request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. If an applicant presents proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the responsible entity may request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. For purposes of this paragraph, an applicant may provide proof of Ohio residency by presenting, with a notarized statement asserting that he or she has been a resident of Ohio for that five-year period, a valid driver's license, notification of registration as an elector, a copy of an officially filed federal or state tax form identifying the applicant's permanent residence, or any other document the responsible entity considers acceptable.

(7) A responsible entity may conditionally employ an applicant, for a period not to exceed sixty calendar days, pending receipt of information concerning the applicant's criminal records check once the applicant submits to the responsible entity the statement required by paragraph (C)(5)(a) of this rule. The responsible entity shall terminate the applicant's employment if it is informed that the applicant has been convicted of or pleaded guilty to a disqualifying offense.

(8) A responsible entity shall:

(a) Enroll each employee in a direct services position in the retained applicant fingerprint database within fourteen calendar days of receiving the employee's criminal records check from the bureau of criminal identification and investigation or within fourteen calendar days of the employee's date of hire, whichever is later;

(b) Maintain enrollment in the retained applicant fingerprint database for each employee in a direct services position throughout the employee's tenure; and

(c) At a frequency of no less than once every five years:

(i) Check the databases specified in paragraph (C)(2) of this rule for each employee in a direct services position; and

(ii) Request the bureau of criminal identification and investigation to obtain a federal bureau of investigation criminal records check of each employee in a direct services position who does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior. For purposes of this paragraph, an employee in a direct services position may provide proof of Ohio residency by presenting, with a notarized statement asserting that he or she has been a resident of Ohio for that five-year period, a valid driver's license, notification of registration as an elector, a copy of an officially filed federal or state tax form identifying the employee's permanent residence, or any other document the responsible entity considers acceptable.

(9) In the case that a responsible entity is notified by the bureau of criminal identification and investigation that an employee in a direct services position cannot be enrolled in the retained applicant fingerprint database, the responsible entity shall, at a frequency of no less than once every five years, request the bureau of criminal identification and investigation to conduct a criminal records check of the employee. If an employee in a direct services position does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the responsible entity shall request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. If an employee in a direct services position presents proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the responsible entity may request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. For purposes of this paragraph, an employee in a direct services position may provide proof of Ohio residency by presenting, with a notarized statement asserting that he or she has been a resident of Ohio for that five-year period, a valid driver's license, notification of registration as an elector, a copy of an officially filed federal or state tax form identifying the employee's permanent residence, or any other document the responsible entity considers acceptable.

(D) Requirements for candidates

(1) At the point of a candidate's application for initial supported living certification, the candidate shall request the bureau of criminal identification and investigation to conduct a criminal records check of the candidate. If a candidate does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the candidate shall request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. If a candidate presents proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the department may require the candidate to request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. For purposes of this paragraph, a candidate may provide proof of Ohio residency by presenting, with a notarized statement asserting that he or she has been a resident of Ohio for that five-year period, a valid driver's license, notification of registration as an elector, a copy of an officially filed federal or state tax form identifying the candidate's permanent residence, or any other document the department considers acceptable.

(a) The candidate shall pay to the bureau of criminal identification and investigation the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check requested.

(b) The candidate shall instruct the bureau of criminal identification and investigation to submit the completed report of the criminal records check directly to the department.

(2) At the point of a candidate's application for initial or renewal supported living certification, the department shall check the databases specified in paragraph (C)(2) of this rule to determine if the candidate is included. The department shall not issue supported living certification to a candidate if the candidate is included in one or more of the databases described in paragraphs (C)(2)(a) to (C)(2)(f) of this rule.

(3) At the point of a candidate's application for initial or renewal supported living certification, the candidate shall submit a statement to the department with the candidate's signature attesting that he or she has not been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense. A candidate shall disclose a conviction for any offense that has been sealed.

(4) At the point of a candidate's application for initial or renewal supported living certification, the candidate shall sign an agreement under which the candidate agrees to notify the department within fourteen calendar days if, while holding supported living certification, the candidate is formally charged with, is convicted of, pleads guilty to, or is found eligible for intervention in lieu of conviction for a disqualifying offense. The agreement shall provide that failure to make the notification may result in denial, revocation, or suspension of the candidate's supported living certification.

(5) At the point of a candidate's application for initial or renewal supported living certification as an independent provider, the candidate shall obtain and provide to the department his or her driving record prepared by the bureau of motor vehicles if the services the candidate will provide involve transporting individuals. The department may consider the candidate's driving record when determining whether to issue supported living certification. A person having six or more points on his or her driving record is prohibited from transporting individuals.

(6) When the department issues initial supporting living certification to a candidate, the department shall enroll the candidate in the retained applicant fingerprint database. In the case that the department is notified by the bureau of criminal identification and investigation that a candidate cannot be enrolled in the retained applicant fingerprint database, the candidate shall, at a frequency of no less than once every five years, request the bureau of criminal identification and investigation to conduct a criminal records check of the candidate. If a candidate does not present proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the candidate shall request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. If a candidate presents proof that he or she has been a resident of Ohio for the five-year period immediately prior to the date upon which the criminal records check is requested, the department may require the candidate to request that the bureau of criminal identification and investigation obtain information from the federal bureau of investigation as part of the criminal records check. For purposes of this paragraph, a candidate may provide proof of Ohio residency by presenting, with a notarized statement asserting that he or she has been a resident of Ohio for that five-year period, a valid driver's license, notification of registration as an elector, a copy of an officially filed federal or state tax form identifying the candidate's permanent residence, or any other document the department considers acceptable.

(a) The candidate shall pay to the bureau of criminal identification and investigation the fee prescribed pursuant to division (C)(3) of section 109.572 of the Revised Code for each criminal records check requested.

(b) The candidate shall instruct the bureau of criminal identification and investigation to submit the completed report of the criminal records check directly to the department.

(E) Disqualifying offenses

(1) There are five tiers of disqualifying offenses with corresponding time periods that preclude an applicant from being employed or an employee from remaining employed by a responsible entity and preclude a candidate from receiving supported living certification issued by the department.

(a) Tier one: permanent exclusion

No responsible entity shall employ an applicant or continue to employ an employee, nor shall the department issue supported living certification to a candidate, if the applicant, employee, or candidate has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for any of the following sections of the Revised Code:

(i) 2903.01 (aggravated murder);

(ii) 2903.02 (murder);

(iii) 2903.03 (voluntary manslaughter);

(iv) 2903.11 (felonious assault);

(v) 2903.15 (permitting child abuse);

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

(vii) 2903.34 (patient abuse and neglect);

(viii) 2903.341 (patient endangerment);

(ix) 2905.01 (kidnapping);

(x) 2905.02 (abduction);

(xi) 2905.32 (human trafficking);

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

(xiii) 2907.02 (rape);

(xiv) 2907.03 (sexual battery);

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

(xvi) 2907.05 (gross sexual imposition);

(xvii) 2907.06 (sexual imposition);

(xviii) 2907.07 (importuning);

(xix) 2907.08 (voyeurism);

(xx) 2907.12 (felonious sexual penetration);

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

(xxii) 2907.32 (pandering obscenity);

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

(xxiv) 2907.322 (pandering sexually oriented matter involving a minor);

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

(xxvi) 2909.22 (soliciting/providing support for act of terrorism);

(xxvii) 2909.23 (making terrorist threat);

(xxviii) 2909.24 (terrorism);

(xxix) 2913.40 (medicaid fraud);

(xxx) 2923.01 (conspiracy), 2923.02 (attempt), or 2923.03 (complicity) when the underlying offense is any of the offenses or violations described in paragraphs (E)(1)(a)(i) to (E)(1)(a)(xxix) of this rule;

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

(xxxii) 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 paragraphs (E)(1)(a)(i) to (E)(1)(a)(xxxi) of this rule.

(b) Tier two: ten-year exclusion

No responsible entity shall employ an applicant or continue to employ an employee, nor shall the department issue supported living certification to a candidate, for a period of ten years from the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, and parole, if the applicant, employee, or candidate has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for any of the following sections of the Revised Code:

(i) 2903.04 (involuntary manslaughter);

(ii) 2903.041 (reckless homicide);

(iii) 2905.04 (child stealing) as it existed prior to July 1, 1996;

(iv) 2905.05 (criminal child enticement);

(v) 2905.11 (extortion);

(vi) 2907.21 (compelling prostitution);

(vii) 2907.22 (promoting prostitution);

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

(ix) 2909.02 (aggravated arson);

(x) 2909.03 (arson);

(xi) 2911.01 (aggravated robbery);

(xii) 2911.11 (aggravated burglary);

(xiii) 2913.46 (illegal use of supplemental nutrition assistance program or women, infants, and children program benefits);

(xiv) 2913.48 (workers' compensation fraud);

(xv) 2913.49 (identity fraud);

(xvi) 2917.02 (aggravated riot);

(xvii) 2923.12 (carrying concealed weapon);

(xviii) 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);

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

(xx) 2923.13 (having weapons while under disability);

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

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

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

(xxiv) 2923.32 (engaging in pattern of corrupt activity);

(xxv) 2923.42 (participating in criminal gang);

(xxvi) 2925.02 (corrupting another with drugs);

(xxvii) 2925.03 (trafficking in drugs);

(xxviii) 2925.04 (illegal manufacture of drugs or cultivation of marihuana);

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

(xxx) 3716.11 (placing harmful objects in food or confection);

(xxxi) 2923.01 (conspiracy), 2923.02 (attempt), or 2923.03 (complicity) when the underlying offense is any of the offenses or violations described in paragraphs (E)(1)(b)(i) to (E)(1)(b)(xxx) of this rule; or

(xxxii) 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 paragraphs (E)(1)(b)(i) to (E)(1)(b)(xxxi) of this rule.

(c) Tier three: seven-year exclusion

No responsible entity shall employ an applicant or continue to employ an employee, nor shall the department issue supported living certification to a candidate, for a period of seven years from the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, and parole, if the applicant, employee, or candidate has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for any of the following sections of the Revised Code:

(i) 959.13 (cruelty to animals);

(ii) 959.131 (prohibitions concerning companion animals);

(iii) 2903.12 (aggravated assault);

(iv) 2903.21 (aggravated menacing);

(v) 2903.211 (menacing by stalking);

(vi) 2905.12 (coercion);

(vii) 2909.04 (disrupting public services);

(viii) 2911.02 (robbery);

(ix) 2911.12 (burglary);

(x) 2913.47 (insurance fraud);

(xi) 2917.01 (inciting to violence);

(xii) 2917.03 (riot);

(xiii) 2917.31 (inducing panic);

(xiv) 2919.22 (endangering children);

(xv) 2919.25 (domestic violence);

(xvi) 2921.03 (intimidation);

(xvii) 2921.11 (perjury);

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

(xix) 2921.34 (escape);

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

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

(xxii) 2925.05 (funding of drug or marihuana trafficking);

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

(xxiv) 2925.24 (tampering with drugs);

(xxv) 2927.12 (ethnic intimidation);

(xxvi) 2923.01 (conspiracy), 2923.02 (attempt), or 2923.03 (complicity) when the underlying offense is any of the offenses or violations described in paragraphs (E)(1)(c)(i) to (E)(1)(c)(xxv) of this rule; or

(xxvii) 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 paragraphs (E)(1)(c)(i) to (E)(1)(c)(xxvi) of this rule.

(d) Tier four: five-year exclusion

No responsible entity shall employ an applicant or continue to employ an employee, nor shall the department issue supported living certification to a candidate, for a period of five years from the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, and parole, if the applicant, employee, or candidate has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for any of the following sections of the Revised Code:

(i) 2903.13 (assault);

(ii) 2903.22 (menacing);

(iii) 2907.09 (public indecency);

(iv) 2907.24 (soliciting after positive human immunodeficiency virus test);

(v) 2907.25 (prostitution);

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

(vii) 2911.13 (breaking and entering);

(viii) 2913.02 (theft);

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

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

(xi) 2913.05 (telecommunications fraud);

(xii) 2913.11 (passing bad checks);

(xiii) 2913.21 (misuse of credit cards);

(xiv) 2913.31 (forgery, forging identification cards);

(xv) 2913.32 (criminal simulation);

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

(xvii) 2913.42 (tampering with records);

(xviii) 2913.43 (securing writings by deception);

(xix) 2913.44 (personating an officer);

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

(xxi) 2913.45 (defrauding creditors);

(xxii) 2913.51 (receiving stolen property);

(xxiii) 2919.12 (unlawful abortion);

(xxiv) 2919.121 (unlawful abortion upon minor);

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

(xxvi) 2919.23 (interference with custody);

(xxvii) 2919.24 (contributing to unruliness or delinquency of child);

(xxviii) 2921.12 (tampering with evidence);

(xxix) 2921.21 (compounding a crime);

(xxx) 2921.24 (disclosure of confidential information);

(xxxi) 2921.32 (obstructing justice);

(xxxii) 2921.321 (assaulting/harassing police dog or horse/service animal);

(xxxiii) 2921.51 (impersonation of peace officer);

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

(xxxv) 2925.11 (drug possession other than a minor drug possession offense);

(xxxvi) 2925.13 (permitting drug abuse);

(xxxvii) 2925.22 (deception to obtain dangerous drugs);

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

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

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

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

(xlii) 2923.01 (conspiracy), 2923.02 (attempt), or 2923.03 (complicity) when the underlying offense is any of the offenses or violations described in paragraphs (E)(1)(d)(i) to (E)(1)(d)(xli) of this rule; or

(xliii) 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 paragraphs (E)(1)(d)(i) to (E)(1)(d)(xlii) of this rule.

(e) Tier five: no exclusion

A responsible entity may employ an applicant or continue to employ an employee, and the department may issue supported living certification to a candidate, if the applicant, employee, or candidate has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for any of the following sections of the Revised Code:

(i) 2925.11 (drug possession that is minor drug possession offense);

(ii) 2925.14 (illegal use or possession of drug paraphernalia);

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

(iv) 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 paragraphs (E)(1)(e)(i) to (E)(1)(e)(iii) of this rule.

(2) Multiple disqualifying offenses

(a) If an applicant, employee, or candidate has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for multiple disqualifying offenses listed in paragraphs (E)(1)(b)(i) to (E)(1)(b)(xxxii) of this rule, and offenses listed in paragraphs (E)(1)(c)(i) to (E)(1)(c)(xxvii) of this rule, and paragraphs (E)(1)(d)(i) to (E)(1)(d)(xliii) of this rule, the applicant, employee, or candidate is subject to a fifteen-year exclusion period beginning on the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, or parole for the most recent offense.

(b) If an applicant, employee, or candidate has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for multiple disqualifying offenses listed in paragraphs (E)(1)(c)(i) to (E)(1)(c)(xxvii) of this rule and offenses listed in paragraphs (E)(1)(d)(i) to (E)(1)(d)(xliii) of this rule, the applicant, employee, or candidate is subject to a ten-year exclusion period beginning on the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, or parole for the most recent offense.

(c) If an applicant, employee, or candidate has been convicted of, pleaded guilty to, or has been found eligible for intervention in lieu of conviction for multiple disqualifying offenses listed in paragraphs (E)(1)(d)(i) to (E)(1)(d)(xliii) of this rule, the applicant, employee, or candidate is subject to a seven-year exclusion period beginning on the date the applicant, employee, or candidate was fully discharged from imprisonment, probation, or parole for the most recent offense.

(F) A conviction of or plea of guilty to a disqualifying offense listed or described in paragraph (E)(1) of this rule shall not preclude an applicant from being employed or an employee from remaining employed by a responsible entity or preclude a candidate from receiving supported living certification issued by the department under the following circumstances:

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

(2) The applicant, employee, or candidate has been granted 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;

(3) The applicant's, employee's, or candidate's conviction or guilty plea has been overturned pursuant to law;

(4) The applicant, employee, or candidate has been granted 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;

(5) The applicant's, employee's, or candidate's conviction or guilty plea is not for an offense listed or described in paragraph (E)(1)(a) of this rule and the applicant, employee, or candidate has 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

(6) The applicant's, employee's, or candidate's conviction or guilty plea is not for an offense listed or described in paragraph (E)(1)(a) of this rule and the applicant, employee, or candidate has a certificate of achievement and employability in a home and community-based services-related field, issued by the Ohio department of rehabilitation and correction pursuant to section 2961.22 of the Revised Code.

(G) A responsible entity may continue to employ a person who is excluded by paragraph (E)(1)(d) of this rule if the conviction for a tier four offense occurred prior to January 1, 2013, the employee was hired prior to January 1, 2013, and if the responsible entity has considered the nature and seriousness of the offense and attested in writing to the character and fitness of the person based on the person's demonstrated work performance. The responsible entity shall have made this determination and attestation by April 1, 2013 and shall maintain the written attestation in the employee's personnel record. The determination and attestation shall be subject to review by the department.

(H) The department may renew the supported living certification of a candidate who is excluded by paragraph (E)(1)(d) of this rule if the conviction for a tier four offense occurred prior to January 1, 2013, the candidate was originally certified to provide supported living prior to January 1, 2013, and if the department has considered the nature and seriousness of the offense and determines that the candidate has demonstrated the appropriate character and fitness to have the supported living certification renewed based on the candidate's demonstrated work performance. The department shall keep a written record of its determination for each candidate.

(I) Any report obtained pursuant to this rule is not a public record for purposes of section 149.43 of the Revised Code and shall not be made available to any person other than:

(1) The applicant, employee, or candidate who is the subject of the report or the applicant's, employee's, or candidate's representative;

(2) The responsible entity that requested the report or its representative;

(3) The department if a county board, agency provider, or subcontractor is the responsible entity that requested the report and the department requests the responsible entity to provide a copy of the report to the department;

(4) A county board if an agency provider or subcontractor is the responsible entity that requested the report and the county board requests the responsible entity to provide a copy of the report to the county board; or

(5) A court, hearing officer, or other necessary person involved in a case dealing with the denial of employment to the applicant or employee; the denial, suspension, or revocation of certification issued pursuant to section 5123.166 or 5123.45 of the Revised Code; or a civil or criminal action regarding the medicaid program or a program the department administers.

(J) For purposes of this rule, reports from the bureau of criminal identification and investigation or any other state or federal agency regarding a person's criminal record and records supplied by the bureau of motor vehicles regarding a person's record of convictions for violations of motor vehicle laws are valid for a period of one year from the date of the report.

Supplemental Information

Authorized By: 5123.04, 5123.081
Amplifies: 5123.04, 5123.081, 5123.1610
Five Year Review Date: 7/1/2024
Prior Effective Dates: 10/31/1977, 10/24/1987, 9/22/2002
Rule 5123-2-03 | Quality assurance.
 

(A) The Ohio department of developmental disabilities promotes services, supports, and activities that enhance the quality of life for Ohioans with developmental disabilities with regard to:

(1) Rights as set forth in section 5123.62 of the Revised Code;

(2) Self-determination;

(3) Physical well-being;

(4) Emotional well-being;

(5) Material well-being;

(6) Personal development;

(7) Interpersonal relationships; and

(8) Social inclusion.

(B) The department employs multiple processes, set forth in administrative rules, to achieve quality outcomes for individuals who receive services:

(1) Rule 5123-2-04 of the Administrative Code (compliance reviews of certified providers);

(2) Rule 5123-4-01 of the Administrative Code (accreditation of county boards of developmental disabilities);

(3) Rule 5123-17-02 of the Administrative Code (major unusual incidents and unusual incidents);

(4) Rule 5123:2-1-11 of the Administrative Code (service and support administration);

(5) Rule 5123:2-2-01 of the Administrative Code (provider certification);

(6) Rule 5123:2-2-05 of the Administrative Code (employment first);

(7) Rule 5123:2-2-06 of the Administrative Code (behavioral support);

(8) Rule 5123:2-2-07 of the Administrative Code (personal funds);

(9) Chapter 5123:2-3 of the Administrative Code (residential facilities licensed pursuant to section 5123.19 of the Revised Code);

(10) Rule 5123:2-6-07 of the Administrative Code (performance of health-related activities and administration of medication);

(11) Rule 5123:2-9-02 of the Administrative Code (suitability of service settings); and

(12) Rule 5123:2-9-11 of the Administrative Code (free choice of providers).

(C) Additionally, the department participates in "National Core Indicators," a collaboration among state agencies that serve individuals with developmental disabilities, the "National Association of State Directors of Developmental Disabilities Services," and the "Human Services Research Institute," which offers a systemic approach to performance and outcome measurement.

(D) Individuals who receive services, legal guardians, or family members may request a review of services or may request the results of prior reviews that have been conducted. In response, the department may initiate or conduct a review, request that a review be conducted by a county board of developmental disabilities, or take other appropriate action.

Supplemental Information

Authorized By: 5123.04
Amplifies: 5123.04
Five Year Review Date: 7/1/2024
Rule 5123-2-04 | Compliance reviews of certified providers.
 

(A) Purpose and scope

This rule governs compliance reviews conducted by the department and county boards of developmental disabilities to ensure compliance by certified providers with applicable requirements. This rule applies to all certified providers, including certified providers licensed in accordance with section 5123.19 of the Revised Code.

(B) Definitions

For the purposes of this rule, the following definitions apply:

(1) "Accredited college or university" means a college or university accredited by a national or regional association recognized by the secretary of the United States department of education or a foreign college or university of comparable standing.

(2) "Applicable requirements" means:

(a) Federal and state laws and regulations which govern the conduct of the certified provider, including but not limited to, Chapters 4723., 5123., 5126., and 5160. of the Revised Code and all administrative rules promulgated under the authority of those statutes.

(b) Requirements set forth in a home and community-based services waiver administered by the department pursuant to an interagency agreement between the department and the Ohio department of medicaid.

(3) "Certification revocation" means the revocation of a certified provider's certification to serve one or more individuals in one or more counties.

(4) "Certification suspension" means either:

(a) Suspension of a certified provider's certification to serve one or more individuals in one or more counties for a specified time period; or

(b) Suspension of a certified provider's certification to serve additional individuals in one or more counties.

(5) "Certified provider" means an agency provider or independent provider certified by the department pursuant to section 5123.161 of the Revised Code to provide supported living, including home and community-based services.

(6) "Compliance review" means a review of a certified provider conducted by the department or a county board for the purpose of determining provider compliance with applicable requirements in order to ensure the health, safety, and welfare of individuals served.

(7) "County board" means a county board of developmental disabilities.

(8) "Department" means the Ohio department of developmental disabilities.

(9) "Home and community-based services" has the same meaning as in section 5123.01 of the Revised Code.

(10) "Individual" means a person with a developmental disability.

(11) "Investigative agent" means a person, regardless of title, employed by or under contract with a county board to conduct administrative investigations of major unusual incidents.

(12) "Major unusual incident" has the same meaning as in rule 5123-17-02 of the Administrative Code.

(13) "Protocol" means the forms, instructions for the completion of written documentation, and process developed by the department and used by the department and county boards to conduct compliance monitoring in accordance with this rule. A protocol does not create provider standards or qualifications.

(14) "Service and support administrator" means a person, regardless of title, employed by or under contract with a county board to perform the functions of service and support administration.

(C) Compliance reviews

(1) There are three types of compliance reviews:

(a) Routine compliance reviews

In accordance with priorities established by the department in the protocol for compliance reviews, the department shall coordinate with county boards to ensure that each certified provider receives a routine compliance review within one year of the certified provider's initial billing for provision of services. Thereafter, routine compliance reviews of certified providers shall be conducted so that each certified provider is reviewed once during the term of certification.

(b) Special compliance reviews

The department or a county board may conduct special compliance reviews as necessary:

(i) Pertaining to the health, safety, or welfare of an individual;

(ii) Based on a complaint or allegation; or

(iii) Based on a major unusual incident that may indicate the certified provider's failure to comply with applicable requirements.

(c) Abbreviated compliance reviews

(i) The department may accept a certified provider's accreditation by a national accrediting entity as demonstration that the certified provider is meeting applicable requirements. A certified provider that is accredited by a national accrediting entity is eligible for an abbreviated compliance review when the standards of the national accrediting entity:

(a) Meet or exceed the department's standards;

(b) Are compatible with the centers for medicare and medicaid services home and community-based services core set of quality measures;

(c) Focus on achievement of desired outcomes for individuals served; and

(d) Ensure the health and safety of individuals served.

(ii) An abbreviated compliance review shall examine the certified provider's compliance with applicable requirements regarding:

(a) Background investigations of the certified provider's chief executive officer and employees;

(b) Behavioral support strategies included in individual service plans;

(c) Medication administration; and

(d) Major unusual incidents.

(iii) To be eligible for an abbreviated compliance review, the certified provider shall submit a written request to the department that includes a copy of the most recent survey/review of the certified provider by the national accrediting entity.

(iv) The certified provider shall notify the department in writing within ten calendar days if the certified provider's accreditation by the national accrediting entity is amended, suspended, terminated, or not renewed and provide a copy of related correspondence from the national accrediting entity.

(v) An abbreviated compliance review may not be available when:

(a) The certified provider has not received an initial routine compliance review by the department or county board.

(b) The certified provider has had multiple or significant substantiated major unusual incidents since the most recent compliance review by the department or county board or survey/review by the national accrediting entity.

(c) The certified provider's chief executive officer and/or key members of the certified provider's management team have changed since the most recent compliance review by the department or county board or survey/review by the national accrediting entity.

(d) The certified provider's accreditation by the national accrediting entity has been amended or suspended.

(2) Only the department may conduct compliance reviews of residential facilities licensed in accordance with section 5123.19 of the Revised Code and administrative rules promulgated under its authority.

(3) The department shall maintain a protocol for compliance reviews. A county board may not change or augment the protocol.

(a) The protocol shall include, but is not limited to:

(i) The method for selecting certified providers to be reviewed;

(ii) The types and scope of reviews that may be conducted;

(iii) The process and procedures for notifying certified providers of upcoming reviews;

(iv) The elements of provider compliance which shall be based on the applicable requirements;

(v) The elements of a written compliance review summary to a certified provider that shall include an explanation of any citations, the process to develop and implement a plan of correction, and an explanation of the due process afforded to a certified provider;

(vi) The criteria for conducting announced and unannounced reviews; and

(vii) Any forms or methods of documentation approved by the department.

(b) The department shall make the protocol available at its website (http://dodd.ohio.gov) and shall include the protocol in any training outlined in paragraph (F) of this rule.

(D) Compliance review summary and plan of correction

(1) The department or county board, as applicable, shall issue a written compliance review summary to the certified provider within seven calendar days of conclusion of the compliance review in accordance with the format described in the protocol for compliance reviews. The compliance review summary shall be objective in terms of observations and citations, relying upon documentation that clearly addresses the standards reviewed.

(2) Within fourteen calendar days of receipt of a compliance review summary that includes one or more citations, the certified provider shall submit to the department or county board, as applicable, a written appeal or a written plan of correction for each citation. If the certified provider does not submit a written appeal within fourteen calendar days, the compliance review summary shall be final and not subject to appeal by the certified provider.

(a) The appeal for a citation shall include the certified provider's basis with supporting documentation for challenging the citation. The department or county board, as applicable, shall allow or disallow the appeal within ten calendar days of receipt.

(i) If the compliance review was conducted by the department and the appeal is disallowed, the certified provider shall submit a written plan of correction for the citation to the department within fourteen calendar days.

(ii) If the compliance review was conducted by a county board and the appeal is disallowed, the certified provider shall either:

(a) Submit a written plan of correction for the citation to the county board within fourteen calendar days; or

(b) If the certified provider objects to the county board's decision to disallow the appeal, submit to the department a written appeal within seven calendar days of the county board's decision. The department shall notify the certified provider and the county board of its decision to allow or disallow the appeal within fourteen calendar days of receipt. If the department disallows the appeal, the certified provider shall submit a written plan of correction for the citation to the county board within fourteen calendar days.

(b) The written plan of correction for a citation shall include action steps and timelines for remediation. The department or county board, as applicable, shall approve or disapprove the plan of correction within twenty calendar days of receipt. When the department or county board disapproves a plan of correction, the certified provider shall work with the department or county board, as applicable, to develop an acceptable plan of correction.

(E) Qualifications for persons conducting compliance reviews

(1) A person conducting compliance reviews shall either:

(a) Hold a bachelor's degree or graduate-level degree from an accredited college or university and have at least two years of full-time (or equivalent part-time) experience working directly with individuals; or

(b) Have been employed by or under contract with the department or a county board to conduct compliance reviews on the day immediately prior to the effective date of this rule.

(2) A person conducting compliance reviews shall complete training in accordance with paragraph (F) of this rule.

(3) A person conducting compliance reviews shall not be an investigative agent or a service and support administrator.

(F) Training

(1) The department shall provide or arrange for initial training to county boards and certified providers regarding the requirements and procedures outlined in this rule and in the protocol for compliance reviews.

(2) Any employees or agents of the department or a county board whose responsibilities include conducting compliance reviews in accordance with this rule shall successfully complete the initial training in the requirements and procedures outlined in this rule prior to being authorized by the department to conduct compliance reviews.

(3) The department shall provide documentation of a person's successful completion of the initial training to the county board. The county board shall maintain a list of the persons in its county that have successfully completed the initial training and are authorized by the department to conduct compliance reviews in accordance with this rule.

(4) The department may require persons who have received the initial training to receive continuing training in the implementation of this rule in a manner prescribed by the department.

(G) Certification suspension and certification revocation

(1) The department may initiate certification suspension or certification revocation proceedings if the department finds:

(a) Substantial violation of applicable requirements which present a risk to an individual's health and welfare; or

(b) A pattern of non-compliance with plans of correction approved in accordance with this rule; or

(c) A pattern of continuing non-compliance with applicable requirements; or

(d) A licensed provider has had its license revoked by the licensing authority; or

(e) Failure to cooperate with the compliance review process set forth in this rule; or

(f) Other good cause, including misfeasance, malfeasance, nonfeasance, substantiated abuse or neglect, financial irresponsibility, or other conduct the department determines is injurious to individuals being served. The department may gather and evaluate information from a variety of sources, including the county board and provider, in making such a determination.

(2) Certification suspension and certification revocation proceedings shall be conducted in accordance with Chapter 119. of the Revised Code.

(3) When the department issues a notice of its intent to suspend or revoke a certified provider's certification, the department shall give written notice to the Ohio department of medicaid and to the county board of each county in which the proposed suspension or revocation is proposed to be effective.

(4) Each county board that is notified in writing by the department of the department's intent to suspend or revoke a certified provider's certification shall so notify in writing each individual in the county who is receiving services for which the provider's certification is proposed to be suspended or revoked (or as applicable, the individual's parent or guardian).

(5) The department may suspend or revoke a certified provider's certification regardless of whether some or all of the deficiencies enumerated in accordance with this rule that prompted the department's intent to suspend or revoke the certification have been corrected at the time of the hearing.

(6) When the department suspends or revokes a certified provider's certification, the certified provider shall comply with the department's adjudication order within thirty calendar days of the date of the mailing of the order.

(7) The department shall give written notice of the certified provider's suspension or revocation to the Ohio department of medicaid and to the county board of each county in which the suspension or revocation is effective.

(8) Each county board that is notified in writing by the department of suspension or revocation of a certified provider's certification shall so notify in writing each individual in the county who is receiving services for which the provider's certification is suspended or revoked (or as applicable, the individual's parent or guardian).

(H) Authority of director to suspend or alter provisions of this rule

During the COVID-19 state of emergency declared by the governor, the director of the department may suspend or alter the scheduling of routine compliance reviews and submission and review of plans of correction described in paragraphs (C)(1)(a), (C)(1)(c), and (D) of this rule.

Supplemental Information

Authorized By: 5123.04, 5123.19, 5126.05, 5126.08
Amplifies: 5123.04, 5123.045, 5123.162, 5123.169, 5123.19, 5126.05, 5126.08, 5166.21
Five Year Review Date: 7/1/2024
Prior Effective Dates: 7/1/2005, 6/11/2020 (Emer.)
Rule 5123-2-06 | Development and implementation of behavioral support strategies.
 

(A) Purpose

This rule limits the use of, and sets forth requirements for, development and implementation of behavioral support strategies that include restrictive measures for the purpose of ensuring that:

(1) Restrictive measures are used only when necessary to keep people safe;

(2) Individuals with developmental disabilities are supported in a caring and responsive manner that promotes dignity, respect, and trust and with recognition that they are equal citizens with the same rights and personal freedoms granted to Ohioans without developmental disabilities;

(3) Services and supports are based on an understanding of the individual and the reasons for his or her actions; and

(4) Effort is directed at creating opportunities for individuals to exercise choice in matters affecting their everyday lives and supporting individuals to make choices that yield positive outcomes.

(B) Scope

(1) This rule applies to persons and entities that provide specialized services regardless of source of payment, including but not limited to:

(a) County boards of developmental disabilities and entities under contract with county boards;

(b) Residential facilities licensed pursuant to section 5123.19 of the Revised Code, including intermediate care facilities for individuals with intellectual disabilities;

(c) Providers of supported living certified pursuant to section 5123.161 of the Revised Code; and

(d) Providers of services funded by medicaid home and community-based services waivers administered by the department.

(2) Individuals receiving services in a setting governed by the Ohio department of education shall be supported in accordance with administrative rules and policies of the Ohio department of education.

(C) Definitions

For the purposes of this rule, the following definitions apply:

(1) "County board" means a county board of developmental disabilities.

(2) "Department" means the Ohio department of developmental disabilities.

(3) "Director" means the director of the Ohio department of developmental disabilities or his or her designee.

(4) "Individual" means a person with a developmental disability.

(5) "Individual plan" or "individual service plan" means the written description of services, supports, and activities to be provided to an individual.

(6) "Informed consent" means a documented written agreement to allow a proposed action, treatment, or service after full disclosure provided in a manner the individual or his or her guardian understands, of the relevant facts necessary to make the decision. Relevant facts include the risks and benefits of the action, treatment, or service; the risks and benefits of the alternatives to the action, treatment, or service; and the right to refuse the action, treatment, or service. The individual or his or her guardian, as applicable, may revoke informed consent at any time.

(7) "Intermediate care facility for individuals with intellectual disabilities" has the same meaning as in section 5124.01 of the Revised Code.

(8) "Prohibited measure" means a method that shall not be used by persons or entities providing specialized services. "Prohibited measures" include:

(a) Prone restraint. "Prone restraint" means a method of intervention where an individual's face and/or frontal part of his or her body is placed in a downward position touching any surface for any amount of time.

(b) Use of a manual restraint or mechanical restraint that has the potential to inhibit or restrict an individual's ability to breathe or that is medically contraindicated.

(c) Use of a manual restraint or mechanical restraint that causes pain or harm to an individual.

(d) Disabling an individual's communication device.

(e) Denial of breakfast, lunch, dinner, snacks, or beverages.

(f) Placing an individual in a room with no light.

(g) Subjecting an individual to damaging or painful sound.

(h) Application of electric shock to an individual's body.

(i) Subjecting an individual to any humiliating or derogatory treatment.

(j) Squirting an individual with any substance as an inducement or consequence for behavior.

(k) Using any restrictive measure for punishment, retaliation, instruction or teaching, convenience of providers, or as a substitute for specialized services.

(9) "Provider" means any person or entity that provides specialized services.

(10) "Qualified intellectual disability professional" has the same meaning as in 42 C.F.R. 483.430 as in effect on the effective date of this rule.

(11) "Restrictive measure" means a method of last resort that may be used by persons or entities providing specialized services only when necessary to keep people safe and with prior approval by the human rights committee in accordance with paragraph (F) of this rule. "Restrictive measures" include:

(a) Manual restraint. "Manual restraint" means use of a hands-on method, but never in a prone restraint, to control an identified action by restricting the movement or function of an individual's head, neck, torso, one or more limbs, or entire body, using sufficient force to cause the possibility of injury and includes holding or disabling an individual's wheelchair or other mobility device. An individual in a manual restraint shall be under constant visual supervision by staff. Manual restraint shall cease immediately once risk of harm has passed. "Manual restraint" does not include a method that is routinely used during a medical procedure for patients without developmental disabilities.

(b) Mechanical restraint. "Mechanical restraint" means use of a device, but never in a prone restraint, to control an identified action by restricting an individual's movement or function. Mechanical restraint shall cease immediately once risk of harm has passed. "Mechanical restraint" does not include:

(i) A seatbelt of a type found in an ordinary passenger vehicle or an age-appropriate child safety seat;

(ii) A medically-necessary device (such as a wheelchair seatbelt or a gait belt) used for supporting or positioning an individual's body; or

(iii) A device that is routinely used during a medical procedure for patients without developmental disabilities.

(c) Time-out. "Time-out" means confining an individual in a room or area and preventing the individual from leaving the room or area by applying physical force or by closing a door or constructing another barrier, including placement in such a room or area when a staff person remains in the room or area.

(i) Time-out shall not exceed thirty minutes for any one incident nor one hour in any twenty-four hour period.

(ii) A time-out room or area shall not be key-locked, but the door may be held shut by a staff person or by a mechanism that requires constant physical pressure from a staff person to keep the mechanism engaged.

(iii) A time-out room or area shall be adequately lighted and ventilated and provide a safe environment for the individual.

(iv) An individual in a time-out room or area shall be protected from hazardous conditions including but not limited to, sharp corners and objects, uncovered light fixtures, or unprotected electrical outlets.

(v) An individual in a time-out room or area shall be under constant visual supervision by staff.

(vi) Time-out shall cease immediately once risk of harm has passed or if the individual engages in self-abuse, becomes incontinent, or shows other signs of illness.

(vii) "Time-out" does not include periods when an individual, for a limited and specified time, is separated from others in an unlocked room or area for the purpose of self-regulating and controlling his or her own behavior and is not physically restrained or prevented from leaving the room or area by physical barriers.

(d) Chemical restraint. "Chemical restraint" means a medication prescribed for the purpose of modifying, diminishing, controlling, or altering a specific behavior. "Chemical restraint" does not include medications prescribed for the treatment of a diagnosed disorder identified in the "Diagnostic and Statistical Manual of Mental Disorders" (fifth edition) or medications prescribed for treatment of a seizure disorder. "Chemical restraint" does not include a medication that is routinely prescribed in conjunction with a medical procedure for patients without developmental disabilities.

(e) Restriction of an individual's rights as enumerated in section 5123.62 of the Revised Code.

(12) "Risk of harm" means there exists a direct and serious risk of physical harm to the individual or another person. For risk of harm, the individual must be capable of causing physical harm to self or others and the individual must be causing physical harm or very likely to begin causing physical harm.

(13) "Service and support administrator" means a person, regardless of title, employed by or under contract with a county board to perform the functions of service and support administration and who holds the appropriate certification in accordance with rule 5123:2-5-02 of the Administrative Code.

(14) "Specialized services" means any program or service designed and operated to serve primarily individuals with developmental disabilities, including a program or service provided by an entity licensed or certified by the department. If there is a question as to whether a provider or entity under contract with a provider is providing specialized services, the provider or contract entity may request that the director of the department make a determination. The director's determination is final.

(15) "Team," as applicable, has the same meaning as in rule 5123-4-02 of the Administrative Code or means an interdisciplinary team as that term is used in 42 C.F.R. 483.440 as in effect on the effective date of this rule.

(D) Development of a behavioral support strategy that includes restrictive measures

(1) A behavioral support strategy shall never include prohibited measures.

(2) A behavioral support strategy may include manual restraint, mechanical restraint, time-out, or chemical restraint only when an individual's actions pose risk of harm.

(3) A behavioral support strategy may include restriction of an individual's rights only when an individual's actions pose risk of harm or are very likely to result in the individual being the subject of a legal sanction such as eviction, arrest, or incarceration. Absent risk of harm or likelihood of legal sanction, an individual's rights shall not be restricted (e.g., by imposition of arbitrary schedules or limitation on consumption of food, beverages, or tobacco products).

(4) The focus of a behavioral support strategy shall be creation of supportive environments that enhance the individual's quality of life. Effort is directed at:

(a) Mitigating risk of harm or likelihood of legal sanction;

(b) Reducing and ultimately eliminating the need for restrictive measures; and

(c) Ensuring individuals are in environments where they have access to preferred activities and are less likely to engage in unsafe actions due to boredom, frustration, lack of effective communication, or unrecognized health problems.

(5) A behavioral support strategy that includes restrictive measures requires:

(a) Documentation that demonstrates that positive and non-restrictive measures have been employed and have been determined ineffective; and

(b) An assessment conducted within the past twelve months that clearly describes:

(i) The behavior that poses risk of harm or likelihood of legal sanction;

(ii) The level of harm or type of legal sanction that could reasonably be expected to occur with the behavior;

(iii) When the behavior is likely to occur; and

(iv) The individual's interpersonal, environmental, medical, mental health, and emotional needs and other motivational factors that may be contributing to the behavior.

(6) Persons who conduct assessments and develop behavioral support strategies that include restrictive measures shall:

(a) Hold professional license or certification issued by the Ohio board of psychology; the state medical board of Ohio; or the Ohio counselor, social worker, and marriage and family therapist board; or

(b) Hold a certificate to practice as a certified Ohio behavior analyst pursuant to section 4783.04 of the Revised Code; or

(c) Hold a bachelor's or graduate-level degree from an accredited college or university and have at least three years of paid, full-time (or equivalent part-time) experience in developing and/or implementing behavioral support and/or risk reduction strategies or plans.

(7) A behavioral support strategy that includes restrictive measures shall:

(a) Be designed in a manner that promotes healing, recovery, and emotional wellbeing based on understanding and consideration of the individual's history of traumatic experiences as a means to gain insight into origins and patterns of the individual's actions;

(b) Be data-driven with the goal of improving outcomes for the individual over time and describe behaviors to be increased or decreased in terms of baseline data about behaviors to be increased or decreased;

(c) Recognize the role environment plays in behavior;

(d) Capitalize on the individual's strengths to meet challenges and needs;

(e) Delineate measures to be implemented and identify those who are responsible for implementation;

(f) Specify steps to be taken to ensure the safety of the individual and others;

(g) As applicable, identify needed services and supports to assist the individual in meeting court-ordered community controls such as mandated sex offender registration, drug-testing, or participation in mental health treatment; and

(h) As applicable, outline necessary coordination with other entities (e.g., courts, prisons, hospitals, and law enforcement) charged with the individual's care, confinement, or reentry to the community.

(8) When a behavioral support strategy that includes restrictive measures is deemed necessary by the individual and his or her team, the qualified intellectual disability professional or the service and support administrator, as applicable, shall:

(a) Ensure the strategy is developed in accordance with the principles of person-centered planning and incorporated as an integral part of the individual plan or individual service plan.

(b) Submit to the human rights committee documentation based upon the assessment that clearly indicates risk of harm or likelihood of legal sanction described in observable and measurable terms and ensure the strategy is reviewed and approved by the human rights committee in accordance with paragraph (F) of this rule prior to implementation and whenever the behavioral support strategy is revised to add restrictive measures, but no less than once per year.

(c) Secure informed consent of the individual or the individual's guardian, as applicable.

(d) Provide an individual or the individual's guardian, as applicable, with written notification and explanation of the individual's or guardian's right to seek administrative resolution if he or she is dissatisfied with the strategy or the process used for its development.

(e) Ensure the strategy is reviewed by the individual and the team at least every ninety days to determine and document the effectiveness of the strategy and whether the strategy should be continued, discontinued, or revised. A decision to continue the strategy shall be based upon review of up-to-date information which indicates risk of harm or likelihood of legal sanction is still present.

(E) Implementation of behavioral support strategies with restrictive measures

(1) Restrictive measures shall be implemented with sufficient safeguards and supervision to ensure the health, welfare, and rights of individuals receiving specialized services.

(2) Each person providing specialized services to an individual with a behavioral support strategy that includes restrictive measures shall successfully complete training in the strategy prior to serving the individual.

(F) Human rights committees

(1) Each county board, or county board jointly with one or more other county boards, or county board jointly with one or more providers, and each intermediate care facility for individuals with intellectual disabilities shall establish a human rights committee to safeguard individuals' rights and protect individuals from physical, emotional, and psychological harm. The human rights committee shall:

(a) Be comprised of at least four persons;

(b) Include at least one individual who receives or is eligible to receive specialized services;

(c) Include qualified persons who have either experience or training in contemporary practices for behavioral support; and

(d) Reflect a balance of representatives from each of the following two groups:

(i) Individuals who receive or are eligible to receive specialized services or family members or guardians of individuals who receive or are eligible to receive specialized services; and

(ii) County boards or providers.

(2) All information and documents provided to the human rights committee and all discussions of the committee shall be confidential and shall not be shared or discussed with anyone other than the individual and his or her guardian and the individual's team.

(3) The human rights committee shall review, approve or reject, monitor, and reauthorize strategies that include restrictive measures. In this role, the human rights committee shall:

(a) Ensure that the planning process outlined in this rule has been followed and that the individual or the individual's guardian, as applicable, has provided informed consent and been afforded due process;

(b) Ensure that the proposed restrictive measures are necessary to reduce risk of harm or likelihood of legal sanction;

(c) Ensure that the overall outcome of the behavioral support strategy promotes the physical, emotional, and psychological wellbeing of the individual while reducing risk of harm or likelihood of legal sanction;

(d) Ensure that a restrictive measure is temporary in nature and occurs only in specifically defined situations based on risk of harm or likelihood of legal sanction;

(e) Verify that any behavioral support strategy that includes restrictive measures also incorporates actions designed to enable the individual to feel safe, respected, and valued while emphasizing choice, self-determination, and an improved quality of life; and

(f) Communicate the committee's determination in writing to the qualified intellectual disability professional or service and support administrator submitting the request for approval.

(4) Members of the human rights committee shall receive department-approved training within three months of appointment to the committee in: rights of individuals as enumerated in section 5123.62 of the Revised Code, person-centered planning, informed consent, confidentiality, and the requirements of this rule.

(5) Members of the human rights committee shall annually receive department-approved training in relative topics which may include but are not limited to: self-advocacy and self-determination; role of guardians and section 5126.043 of the Revised Code; effect of traumatic experiences on behavior; and court-ordered community controls and the role of the court, the county board, and the human rights committee.

(G) Use of a restrictive measure without prior approval by the human rights committee

(1) Use of a restrictive measure, including use of a restrictive measure in a crisis situation (e.g., to prevent an individual from running into traffic), without prior approval by the human rights committee shall be reported as "unapproved behavior support" in accordance with rule 5123-17-02 of the Administrative Code.

(2) Nothing in this rule shall be construed to prohibit or prevent any person from intervening in a crisis situation as necessary to ensure a person's immediate health and safety.

(H) Reporting of behavioral support strategies that include restrictive measures

After securing approval by the human rights committee and prior to implementation of a behavioral support strategy that includes restrictive measures, the county board or intermediate care facility for individuals with intellectual disabilities shall notify the department in a format prescribed by the department.

(I) Recording use of restrictive measures

Each provider shall maintain a record of the date, time, duration, and antecedent factors regarding each use of a restrictive measure other than a restrictive measure that is not based on antecedent factors (e.g., bed alarm or locked cabinet). The provider shall share the record with the individual and the individual's team whenever the individual's behavioral support strategy is being reviewed or reconsidered.

(J) Analysis of behavioral support strategies that include restrictive measures

(1) Each county board and each intermediate care facility for individuals with intellectual disabilities shall compile and analyze data regarding behavioral support strategies that include restrictive measures and furnish the data and analyses to the human rights committee. Data compiled and analyzed shall include, but are not limited to:

(a) Nature and frequency of risk of harm or likelihood of legal sanction that triggered development of strategies that include restrictive measures;

(b) Nature and number of strategies reviewed, approved, rejected, and reauthorized by the human rights committee;

(c) Nature and number of restrictive measures implemented;

(d) Duration of strategies that include restrictive measures implemented; and

(e) Effectiveness of strategies that include restrictive measures in terms of increasing or decreasing behaviors as intended.

(2) County boards and intermediate care facilities for individuals with intellectual disabilities shall make the data and analyses available to the department upon request.

(K) Department oversight

(1) The department shall take immediate action as necessary to protect the health and welfare of individuals which may include, but is not limited to:

(a) Suspension of a behavioral support strategy not developed, implemented, documented, or monitored in accordance with this rule or where trends and patterns of data suggest the need for further review;

(b) Provision of technical assistance in development or redevelopment of a behavioral support strategy; and

(c) Referral to other state agencies or licensing bodies, as indicated.

(2) The department shall compile and analyze data regarding behavioral support strategies for purposes of determining methods for enhancing risk reduction efforts and outcomes, reducing the frequency of restrictive measures, and identifying technical assistance and training needs. The department shall make the data and analyses available.

(3) The department may periodically select a sample of behavioral support strategies for review to ensure that strategies are developed, implemented, and monitored in accordance with this rule.

(4) The department shall conduct reviews of county boards and providers as necessary to ensure the health and welfare of individuals and compliance with this rule. Failure to comply with this rule may be considered by the department in any regulatory capacity, including certification, licensure, and accreditation.

(L) Waiving provisions of this rule

(1) For good cause, the director may waive a condition or specific requirement of this rule except that the director shall not permit use of a prohibited measure as defined in paragraph (C)(8) of this rule. The director's decision to waive a condition or specific requirement of this rule shall not be contrary to the rights, health, or safety of individuals receiving services.

(2) A county board or provider may initiate a request for the director to waive a condition or specific requirement of this rule by submitting the request in writing.

(a) The director shall grant or deny a request submitted by a county board or provider within ten working days of receipt of the request or within such longer period of time as the director deems necessary.

(b) The director may put whatever conditions on approval of a request as the director deems necessary.

(c) The director's decision to grant or deny a request is final and may not be appealed.

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03, 5126.08
Amplifies: 5123.04, 5123.19, 5123.62, 5124.02, 5124.03, 5126.08
Five Year Review Date: 11/19/2025
Prior Effective Dates: 7/1/1976, 9/30/1983, 2/28/1996 (Emer.), 3/21/2002, 1/1/2015