Chapter 5123-3 | Licensed Residential Facilities

Rule 5123-3-01 | Licensed residential facilities - administration and operation.

• Effective: September 29, 2024
• Promulgated Under: 119.03

(A) Purpose

This rule sets forth requirements for administration and operation of residential facilities licensed in accordance with section 5123.19 of the Revised Code.

(B) Definitions

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

(1) "Abuser registry" has the same meaning as in rule 5123-17-03 of the Administrative Code.

(2) "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.

(3) "Administrator" means the person responsible for administration of the residential facility who is directly and actively involved in the day-to-day operation of the residential facility and oversees provision of services by the residential facility.

(4) "Certificate of high school equivalence" has the same meaning as in section 3301.80 of the Revised Code and includes the equivalent of a certificate of high school equivalence described in division (C) of that section.

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

(6) "Direct support assistant" means a person who is sixteen or seventeen years of age employed by a residential facility to provide limited duties while in the company of a direct support professional.

(7) "Direct support professional" means a person who is at least eighteen years of age employed in a "direct services position" as that term is defined in section 5123.081 of the Revised Code.

(8) "Health-related activities" has the same meaning as in rule 5123-6-01 of the Administrative Code.

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

(12) "License" means written approval by the department to a licensee to operate a residential facility.

(13) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

(14) "Operator" means the entity responsible for management of and provision of services at the residential facility.

(15) "Person-centered planning" has the same meaning as in rule 5123-3-03 of the Administrative Code.

(16) "Related party" has the same meaning as in section 5123.16 of the Revised Code.

(17) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(18) "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 an entity is providing specialized services, an operator may request that the director of the department make a determination. The director's determination is not subject to appeal. Programs or services available to the general public are not specialized services.

(19) "Supervisory staff" means employees of the residential facility who provide direction or exercise supervision over one or more direct support professionals.

(20) "Support staff" means employees of the residential facility who are not direct support professionals or direct support assistants, such as those in human resources positions, secretaries, clerks, housekeepers, maintenance workers, and laundry workers.

(21) "Volunteer" means a person who donates time, effort, and/or talent to meet a need or advance the mission of a residential facility and who is not paid or otherwise remunerated by the residential facility. "Volunteer" does not include a family member, guardian, friend, or other associate of an individual simply interacting with that individual.

(C) General requirements

(1) A residential facility must be licensed by the department in accordance with section 5123.19 of the Revised Code. The license to operate a residential facility is not transferable and is valid only for the licensee, the premises named on the license, the number of individuals specified on the license, and the term specified on the license. The license will be available at the residential facility and shown to anyone upon request.

(2) A licensee will serve as operator of the residential facility or contract with another entity to serve as operator of the residential facility. When a licensee contracts with another entity to serve as operator:

(a) The licensee and operator will enter into a written agreement that establishes the operator's responsibility to provide the licensee all information necessary to comply with paragraphs (C)(4)(a) to (C)(4)(h) of this rule.

(b) The licensee remains responsible for ensuring compliance with all rules and regulations governing the residential facility.

(3) When home and community-based services are provided at a residential facility, the licensee or the operator, as applicable, will submit an application for approval to provide home and community-based services in accordance with procedures established by the department, obtain and maintain a medicaid provider agreement with the Ohio department of medicaid, and comply with rules in Chapter 5123-9 of the Administrative Code for the specific home and community-based services provided.

(4) A licensee will:

(a) Electronically notify the department if the licensee, operator, or administrator has been or is formally charged with, is convicted of, pleads guilty to, or is found eligible for intervention in lieu of conviction for any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code within fourteen calendar days after the date of such charge, conviction, guilty plea, or finding.

(b) Electronically notify the department within fourteen calendar days if the licensee, operator, or administrator is or becomes a related party of a person or government entity for which the department refused to issue or renew or revoked a supported living certificate pursuant to section 5123.166 of the Revised Code.

(c) Electronically notify the department within fourteen calendar days of occurrence, and provide the name, date of birth, and social security number for any person newly acquiring a financial interest of five per cent or more in the residential facility (including a direct, indirect, security, or mortgage financial interest).

(d) Provide and maintain on file with the department, the licensee's and the operator's current physical address, telephone number, and electronic mail address.

(e) At the point of application for licensure and upon request by the department, provide proof of a:

(i) Continuing line of credit in the licensee's name in an amount of at least ten thousand dollars; or

(ii) Bank account in the licensee's name with a daily balance of at least ten thousand dollars for the most recent ninety days.

(f) At the point of application for licensure and upon request by the department, provide a certificate of a continuing policy of general liability insurance in an amount of at least one million dollars which includes coverage for individuals' losses due to theft or property damage.

(g) Electronically notify the department within seven calendar days of any bankruptcy petition for which the licensee or operator is the subject and provide related documents to the department upon request.

(h) Electronically notify the department within fourteen calendar days of determining that the administrator has had a professional registration, certification, or license (other than a driver's license) suspended or revoked.

(5) An operator will:

(a) Comply with rules in Chapter 5123-3 of the Administrative Code, rules in other chapters of the Administrative Code adopted by the department to license or regulate the operation of residential facilities, and all applicable federal, state, and local regulations including but not limited to, the Americans with Disabilities Act, fire safety code, wage and hour, workers' compensation, unemployment compensation, and withholding taxes.

(b) Have written policies and procedures that address management practices regarding:

(i) Person-centered planning and self-determination;

(ii) Individuals' satisfaction with services delivered;

(iii) Internal monitoring and evaluation procedures to improve services delivered;

(iv) Supervision of staff;

(v) The training plan described in paragraph (D)(7) of this rule;

(vi) Service delivery;

(vii) Background investigations for employment in accordance with rule 5123-2-02 of the Administrative Code; and

(viii) Volunteers (when the residential facility engages volunteers).

(c) Demonstrate that it has an established internal compliance program to ensure compliance with requirements for:

(i) Residential facilities in accordance with rules in Chapter 5123-3 of the Administrative Code;

(ii) Background investigations and appropriate actions in accordance with rule 5123-2-02 of the Administrative Code, for its administrator, licensee, operator, supervisors of direct support professionals, direct support professionals, direct support assistants, and volunteers;

(iii) Service delivery, service documentation, and billing for services in accordance with Chapter 5123. of the Revised Code and rules adopted pursuant to that chapter for supported living services and the specific home and community-based services provided; and

(iv) Management of individuals' funds.

(d) Participate as requested by the department in service delivery system data collection initiatives.

(e) Ensure the operator and its employees interact with individuals in a way to safeguard the rights of individuals enumerated in sections 5123.62 and 5123.65 of the Revised Code.

(f) Meet the requirements established under sections 5123.63 and 5123.64 of the Revised Code.

(6) When a residential facility is governed by a board of directors, board members will:

(a) Ensure the fiscal integrity of the residential facility by reviewing and approving the residential facility's annual audit, if otherwise required, or annual financial statements and by monitoring the residential facility's financial status including trends and challenges;

(b) Review and evaluate all compliance review reports by the department or the Ohio department of health and the operator's response, including the plan of correction;

(c) Monitor the effectiveness of the operator's internal compliance program described in paragraph (C)(5)(c) of this rule; and

(d) Promote the delivery of high-quality services.

(D) Staffing

An operator will:

(1) Conduct background investigations and take appropriate actions in accordance with rule 5123-2-02 of the Administrative Code for the administrator, supervisors of direct support professionals, direct support professionals, direct support assistants, and volunteers. The administrator will consent to be enrolled in the Ohio attorney general's retained applicant fingerprint database (also known as "Rapback"). When the licensee and/or operator is a natural person, the licensee and/or operator will be subject to background investigations in accordance with the requirements for candidates set forth in rule 5123-2-02 of the Administrative Code and consent to be enrolled in the Ohio attorney general's retained applicant fingerprint database (also known as "Rapback").

(2) Annually notify in writing, each of its staff members explaining the conduct for which the staff member may be placed on the abuser registry and setting forth the requirement for each staff member who is a supervisor of direct support professionals, a direct support professional, or a direct support assistant to report in writing to the operator, if the staff member is formally charged with, is convicted of, pleads guilty to, or is found eligible for intervention in lieu of conviction for any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code within fourteen calendar days after the date of such charge, conviction, guilty plea, or finding.

(3) Be current in payment of payroll taxes, workers' compensation premiums, and unemployment compensation premiums.

(4) Ensure that staff are on duty on the basis of the needs of individuals being served. Staff schedules will be prepared in advance and available for review at each residential facility.

(5) Provide sufficient support staff so that direct support professionals are not required to perform support services to the extent that these duties interfere with the exercise of their primary duties.

(6) Maintain personnel records for each employee in accordance with the residential facility's personnel policies.

(7) Develop and implement a written training plan for its administrator, supervisors of direct support professionals, direct support professionals, direct support assistants, support staff, and volunteers that:

(a) Is consistent with the needs of individuals served, best practice, and the requirements set forth in appendix A, appendix B, appendix C, and appendix D to this rule.

(b) Describes the method (e.g., written test, skills demonstration, or documented observation by supervisor) that will be used to establish competency in areas of training.

(c) Is updated at least once every twelve months and identifies who is responsible for arranging or providing the training and projected timelines for completion of the training.

(8) Maintain a written record of training completed by the administrator, supervisors of direct support professionals, direct support professionals, direct support assistants, support staff, and volunteers that includes a description of the training completed, the date of training, the duration of training, and when applicable, the instructor's name.

(E) Requirements for administrator

(1) An operator will employ an administrator. When the operator is a natural person, the operator may serve as the administrator provided the operator meets the requirements for administrators set forth in this rule.

(2) An administrator will:

(a) Have a valid birth certificate.

(b) Be at least twenty-one years of age.

(c) Have a valid social security card and a valid government-issued photo identification.

(d) Be able to read, write, and understand English at a level sufficient to comply with all requirements set forth in administrative rules governing the services provided.

(e) Have at least:

(i) One year of full-time (or equivalent part-time) paid work experience in the provision of specialized services; or

(ii) Four years of experience providing care to a family member (i.e., parent, child, or sibling) with a developmental disability.

(f) Have at least one year of full-time (or equivalent part-time) paid work experience in:

(i) Supervision of employees;

(ii) Development, oversight, and/or supervision of programs or services; and

(iii) Financial management of an organization.

(g) Except for a person who, on September 30, 2016, was employed by or under contract with a residential facility as the administrator, hold either:

(i) A bachelor's degree from an accredited college or university; or

(ii) A high school diploma or certificate of high school equivalence and have at least:

(a) Four years of full-time (or equivalent part-time) paid work experience as a supervisor of specialized services; or

(b) Four years of experience providing care to a family member (i.e., parent, child, or sibling) with a developmental disability.

(h) Successfully complete the training specified in appendix A to this rule in accordance with the stipulated timelines.

(3) An operator will designate in writing a staff member to whom executive authority has been delegated in the temporary absence of the administrator.

(4) An operator will electronically notify the department within fourteen calendar days when the administrator leaves or joins the residential facility's employ.

(a) When the administrator leaves a residential facility's employ, the operator will provide the operator's plan for identifying a new administrator and identify the person to whom executive authority has been delegated in the interim period.

(b) A person newly appointed or employed as administrator will complete the department-provided web-based orientation for administrators of residential facilities described in appendix A to this rule within thirty calendar days of appointment or hire.

(5) An administrator will electronically notify the department if the administrator:

(a) Serves as administrator for more than one licensee.

(b) Is or was the administrator of a residential facility at a point in time within the last five years when the residential facility had its license revoked or not renewed.

(F) Requirements for direct support professionals

An operator will ensure that each direct support professional:

(1) Is at least eighteen years of age.

(2) Is able to read, write, and understand English at a level sufficient to comply with all requirements set forth in administrative rules governing the services provided.

(3) Obtains within sixty calendar days of hire and thereafter maintains valid "American Red Cross" or equivalent certification in first aid which includes an in-person skills assessment completed with an approved trainer. Until such time that certification in first aid is obtained, the direct support professional may provide direct services only when there is another staff member who holds valid certification in first aid present.

(4) Obtains within sixty calendar days of hire and thereafter maintains valid "American Red Cross" or equivalent certification in cardiopulmonary resuscitation which includes an in-person skills assessment completed with an approved trainer. Until such time that certification in cardiopulmonary resuscitation is obtained, the direct support professional may provide direct services only when there is another staff member who holds valid certification in cardiopulmonary resuscitation present.

(5) Successfully completes the training specified in appendix B to this rule in accordance with the stipulated timelines.

(G) Requirements for supervisory staff

An operator will ensure that each staff member who supervises direct support professionals:

(1) Meets the requirements set forth in paragraph (F) of this rule; and

(2) Has successfully completed training regarding all relevant duties and responsibilities of being a supervisor for the residential facility within ninety calendar days of becoming a supervisor.

(H) Requirements for support staff

An operator will ensure that support staff successfully complete the training specified in appendix C to this rule in accordance with the stipulated timelines.

(I) Requirements for direct support assistants

(1) A residential facility may employ persons who are sixteen or seventeen years of age to perform limited duties as direct support assistants.

(2) A person employed as a direct support assistant will, at all times, work in the company of an employee of the residential facility who is:

(a) Physically present at the location where the direct support assistant is providing services; and

(b) A direct support professional who meets the requirements of paragraph (F) of this rule or a supervisor of direct support professionals who meets the requirements of paragraph (G) of this rule.

(3) An operator will ensure that each direct support assistant:

(a) Undergoes a background investigation for employment in accordance with rule 5123-2-02 of the Administrative Code.

(b) Meets the training requirements for direct support professionals set forth in appendix B to this rule.

(c) Is able to read, write, and understand English at a level sufficient to comply with all requirements set forth in administrative rules governing the services provided by the direct support assistant.

(4) A person employed as a direct support assistant will not, under any circumstances:

(a) Provide intimate personal care such as dressing, showering, bathing, toileting, or changing undergarments;

(b) Operate a vehicle to transport an individual receiving services;

(c) Administer medication or perform health-related activities;

(d) Provide any care or perform any task for an individual expressly forbidden by the individual (e.g., provide assistance with eating); or

(e) Implement any restrictive measure as defined in rule 5123-2-06 of the Administrative Code.

(5) An operator will not assign a direct support assistant to provide services to an individual who does not consent to having services provided by a direct support assistant.

(J) Requirements for volunteers

(1) A residential facility may engage volunteers to provide supplementary services.

(2) An operator will ensure that volunteers:

(a) Are at all times under supervision of paid supervisory staff of the residential facility.

(b) Do not provide intimate personal care (such as dressing, showering, bathing, toileting, or changing undergarments), administer medication, or perform health-related activities.

(3) An operator will ensure that each volunteer who provides more than forty hours of service working directly with residents during a calendar year:

(a) Successfully completes the training specified in appendix D to this rule.

(b) Undergoes a background investigation which includes:

(i) Requiring the volunteer to submit a statement to the operator with the volunteer's signature attesting that the volunteer has not been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code.

(ii) Requiring the volunteer to sign an agreement under which the volunteer agrees to notify the operator within fourteen calendar days if the volunteer is formally charged with, is convicted of, pleads guilty to, or is found eligible for intervention in lieu of conviction for any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code. The agreement will provide that failure to make the notification may result in termination of the volunteer's services.

(iii) Checking each of the databases described in paragraph (C)(2) of rule 5123-2-02 of the Administrative Code to determine if the volunteer is included.

(iv) Obtaining a criminal records check conducted by the Ohio bureau of criminal identification and investigation. If the volunteer does not present proof that the volunteer 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 criminal records check will include information from the federal bureau of investigation.

(4) An operator will, at a frequency of no less than once every five years, conduct a background investigation in accordance with paragraph (J)(3)(b) of this rule for each volunteer who provides more than forty hours of service working directly with residents during a calendar year.

(5) An operator will not engage or continue to engage a volunteer who:

(a) Is included in one or more of the databases described in paragraphs (C)(2)(a) to (C)(2)(f) of rule 5123-2-02 of the Administrative Code; or

(b) Has a conviction for, pleads guilty to, or is found eligible for intervention in lieu of conviction for any of the offenses listed or described in divisions (A)(3)(a) to (A)(3)(e) of section 109.572 of the Revised Code if the corresponding exclusionary period as specified in paragraph (E) of rule 5123-2-02 of the Administrative Code has not elapsed.

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Last updated September 30, 2024 at 8:36 AM

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03
Amplifies: 5123.04, 5123.19, 5124.03
Five Year Review Date: 12/1/2027
Prior Effective Dates: 9/30/1983, 8/1/1987, 10/24/1987, 12/9/1991, 11/20/2000, 4/28/2003, 10/1/2009, 10/1/2016, 12/1/2022

Rule 5123-3-02 | Licensed residential facilities - physical environment standards, fire safety, and emergency response planning.

• Effective: December 1, 2022
• Promulgated Under: 119.03

(A) Purpose

This rule establishes minimum physical environment and safety standards to ensure that individuals living in residential facilities licensed in accordance with section 5123.19 of the Revised Code are provided a safe, healthy, and homelike living environment that meets their specific needs.

(B) Definitions

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

(1) "Adult" means an individual age eighteen and older.

(2) "Business day" means a day of the week, excluding Saturday, Sunday, or a legal holiday as defined in section 1.14 of the Revised Code.

(3) "Child" means an individual less than age eighteen.

(4) "Fire safety drill" means a documented simulation of the actions to be taken in response to a fire emergency.

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

(6) "Individual service plan" means the written description of services, supports, and activities to be provided to an individual and includes an "individual program plan" as that term is used in 42 C.F.R. 483.440 as in effect on the effective date of this rule.

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

(8) "Operator" means the entity responsible for management of and provision of services at the residential facility.

(9) "Physical evacuation" means that the individuals residing in the residential facility physically leave the facility or, in the case of a facility that is classified as I-1 or I-2 occupancy pursuant to section 308 of the Ohio building code, individuals residing in the facility are moved to a separate fire area within the facility that is separated by a two-hour rated firewall.

(10) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(11) "State/local authority" means:

(a) For fire safety, the state fire marshal's office or the local fire department; or

(b) For emergency response, a chapter of the "American Red Cross" or the county emergency management agency.

(C) Physical environment standards and configuration

(1) The interior, exterior, and grounds of the residential facility will be configured in a manner so that the residential facility:

(a) Is accessible to residents;

(b) Can accommodate the assessed needs and degree of ability of residents; and

(c) Provides for service delivery that is age-appropriate for residents.

(2) All areas of the interior, exterior, and grounds of the residential facility and all electrical, plumbing, and heating systems of the residential facility will be maintained in a clean and sanitary manner and in good repair at all times and adequate to meet the needs of the individuals.

(3) All solid waste will be disposed of immediately after production or stored in leak-proof containers with tight-fitting covers which provide protection from animals, rodents, and insects until time of disposal. Such waste will be disposed of through a public disposal service, a private contract service, or otherwise in accordance with the requirements of the Ohio department of health and any local regulations, rules, codes, or ordinances.

(4) Disinfectants, pesticides, poisons, and other toxic substances will be properly labeled and stored separate from food products. All substances defined as "hazardous substances" or which are labeled "warning," "caution," or "danger" will be used in a manner that ensures the health and safety of individuals served in the residential facility.

(5) Gasoline, kerosene, paints, and other flammable materials and liquids will be stored in a safe manner and in accordance with the manufacturer's label. Storage of combustible and non-combustible materials will not produce conditions that create a fire, safety, or health hazard.

(6) No part of the residential facility will be off limits to individuals except for office areas used exclusively by staff, staff quarters, bathrooms located in or adjacent to staff quarters, bedrooms of other individuals unless consent is given, and mechanical and boiler rooms or other areas of the facility that present a health or safety risk to an individual as identified in the individual service plan.

(7) The residential facility must have two means of egress remote from each other for each floor level, except basements which are not used as activity or program areas and are limited to laundry use and storage.

(8) Each building or part of a building and all utilities, sanitary facilities, and appliances will be designed, constructed, and installed in compliance with applicable rules of the Ohio building code, the Ohio sanitary code, the Ohio fire code, and any county or municipal building, safety, and fire regulations or codes.

(9) The residential facility will have parking spaces, curb cuts, walkways, exit/entry ramps, toilets, showers, tubs, sinks, doorways, and other features that facilitate accessibility.

(10) Only lead-free paints and finishes will be used in the residential facility.

(11) The residential facility will have sufficient rooms, offices, and other space, including storage space, needed by the operator, administrator, and staff to carry out the functions of the residential facility.

(12) The residential facility's address number will be clearly visible from the street.

(13) The grounds and buildings of the residential facility will not include any sign which labels the functions of the residential facility or the individuals who reside therein.

(14) The names of residential facilities and descriptions of the individuals residing in those facilities will not convey treatment, body parts, illness, disability, or inactivity. A residential facility will not use the words "hospital," "nursing home," or "rest home" in its name or letterhead.

(15) If the residential facility has an outside play area and serves children six years of age and younger who are ambulatory, the outside play area will be enclosed by a fence with a height sufficient to prevent egress from the area.

(16) Swimming pools on the grounds of residential facilities, including residential facilities in apartment complexes, will:

(a) Meet local and state requirements regarding construction, operation, and sanitation.

(b) Be used by individuals only in the presence of a person who holds "American Red Cross" or equivalent lifeguarding certificate or shallow water lifeguarding certificate if the pool is less than five feet deep, unless otherwise specified in the individual service plan.

(17) An operator shall:

(a) Annually obtain a fire inspection and if applicable, a water and sewer inspection, and provide the inspection to the department upon request.

(b) Maintain the heating system, and cooling system if applicable, of the residential facility in safe operating condition. The residential facility will be maintained at a comfortable and healthy temperature based on the individuals' needs and desires.

(c) Take measures to eliminate and prevent the presence of insects, rodents, and other vermin in and around the residential facility. Opened doors and windows will be screened. The extermination of insects, rodents, and other vermin will be done in such a manner as not to create a fire or other safety or health hazard.

(d) Ensure sidewalks, escape routes, and entrances are free of obstacles and ice and snow.

(e) If the residential facility has a gas furnace and/or gas water heater, maintain a carbon monoxide detector in accordance with the manufacturer's specifications.

(D) Space requirements and usage

(1) Living area

(a) The residential facility will have a minimum of eighty square feet of living area for each individual.

(b) Living area includes, but is not limited to, living rooms, dining rooms, recreation or family rooms, and portion of kitchen floor space available for individual use.

(c) Living area does not include bedrooms, bathrooms, laundry rooms, closets, corridors, hallways, garages, and unfinished basements.

(2) Bedrooms

(a) No bedroom will be occupied by more than two individuals.

(b) No bedroom will be occupied by individuals of the opposite sex unless both occupants are consenting adults or both occupants are less than age six.

(c) No bedroom will be occupied by an adult and a child unless the occupants are related to one another.

(d) Each bedroom occupied by one individual will have a minimum of eighty square feet.

(e) Each bedroom occupied by two individuals will have a minimum of one hundred twenty square feet.

(f) If the bedroom is below the grade level of the residential facility, the room must have two means of egress, one of which may be a window provided the individual using the room can safely evacuate through the window.

(g) Living rooms, dining rooms, entryways, closets, corridors, hallways, outside porches, unfinished attics, and unfinished basements will not be used as bedrooms.

(h) Each bedroom will be adequately ventilated and have at least one outside window complete with a window treatment to provide adequate privacy for the individual.

(i) Each bedroom occupied by individuals who are non-ambulatory will be located on the first floor unless the residential facility has an automatic fire extinguishing system.

(j) Bedrooms will not be used as throughways to and from other areas of the residential facility.

(k) An operator shall provide each individual with:

(i) A bed or crib that is clean, comfortable, sturdy, safe, and in good condition and appropriate for the individual's age and ability.

(a) Hideaway beds, roll away beds, sleeper sofas, and futons will not be used.

(b) Cribs may be used only for individuals less than age five. An individual needing to sleep in a crib will sleep in a crib which is at least six inches longer than the individual's extended length.

(c) Side rails and/or bed enclosures may be used only as approved in the individual service plan.

(d) No individual will sleep on an exposed mattress or on an exposed mattress cover. Waterproof mattress covers will be provided for infants and individuals who are incontinent.

(e) Linens and bedding for each bed or crib will be appropriate for the weather and climate and maintained to provide clean and sanitary sleeping accommodations for each individual.

(ii) Closet and drawer space in the individual's bedroom for in-season clothing and personal possessions with racks and shelves accessible to the individual.

(3) Kitchen and dining

(a) The residential facility will have at least one area accessible to individuals used for the preparation and serving of food under sanitary conditions.

(b) Each area used for dining will have a minimum of fifteen square feet for each individual in the residential facility, not including the area generally recognized as counter and appliance space necessary for the normal preparation of meals.

(4) Bathroom and laundry

(a) The residential facility will provide bathrooms and plumbing fixtures, including grab rails where needed, appropriate for the age and degree of ability of the individuals.

(b) All bathrooms and plumbing fixtures will be in compliance with applicable state and local regulations, rules, codes, and ordinances.

(c) The residential facility will provide for toilet and bathing facilities at a minimum ratio of one to four, appropriate in size and design to meet the needs of the individuals. Toilet and bathing facilities will be provided on each floor with bedrooms.

(d) The residential facility will provide for individual privacy in toilets, bathtubs, and showers.

(e) Lavatories and bathing facilities will be supplied with hot and cold running water maintained at a comfortable level for each individual to prevent injury.

(f) Laundry services will be accessible to the individuals and adequate to meet their needs.

(E) Furnishings, equipment, and supplies

An operator shall:

(1) Provide the residential facility with safe, sanitary, comfortable, and homelike equipment, furniture, and appliances in good repair and appropriate for the age and ability of individuals.

(2) Provide a means (e.g., telephone, wireless telephone, or computer) for communicating with others to which individuals have free access at all times and in a manner that affords an individual privacy.

(3) Ensure a sufficient supply of soap and basic toiletries (i.e., deodorant, shampoo, oral hygiene items, and feminine hygiene products), toilet paper, clean towels and washcloths, and first aid supplies is available to meet the need of the individuals.

(F) Fire safety and emergency response

(1) Each residential facility will have a fire safety and emergency response plan approved by the state/local authority that at a minimum, addresses the actions to be taken in the event of a fire, tornado, or other natural disaster.

(a) The fire safety and emergency response plan will include, but is not limited to:

(i) A policy that addresses smoking regulations and the storage of combustible materials;

(ii) A fire safety training program that includes provisions for rescue, alarm, containment, and evacuation;

(iii) Designation of a tornado shelter or safe area in the residential facility and the procedure for accessing the area;

(iv) Responses to fires, weather-related emergencies, or other disasters when relocation of individuals is not required;

(v) Responses to fires, weather-related emergencies, or other disasters when relocation of individuals is required, including designation of a pre-arranged place to meet in case of a physical evacuation of the residential facility; and

(vi) A procedure for permitting re-entry to the residential facility following a fire safety drill and/or physical evacuation.

(b) The residential facility will share the fire safety and emergency response plan with the county board of developmental disabilities.

(2) A current graphic floor plan will be posted unobstructed on each floor of the residential facility and in an area most appropriate for the posting of staff information. The graphic floor plan will include, but is not limited to:

(a) A primary and secondary means of exit from each floor;

(b) The location of pull stations and fire control system panels, when applicable;

(c) Fire escapes;

(d) The telephone number of the local fire department or "911";

(e) Designated tornado shelter or safe area; and

(f) Designated meeting places in case of fire.

(3) No exit, stairway, corridor, ramp, elevator, fire escape, or other means of exit from a building will be used for storage purposes or be otherwise obstructed from use.

(4) A fire extinguisher approved by the state/local authority will be located on each floor and in the natural path of escape from a fire, at readily accessible and visible points which are not likely to be obstructed.

(5) Each residential facility with six or more individuals will be equipped with:

(a) An automatic sprinkler system meeting the requirements of "National Fire Protection Association" 13-D, "Sprinkler Systems in One and Two Family Dwellings." The sprinkler system will be interconnected with the smoke and fire detection and alarm system.

(b) An automatic sprinkler system meeting the requirements of "National Fire Protection Association" 13, "Standard for the Installation of Sprinkler Systems," when a residential facility has seventeen or more individuals, or when a residential facility with six to sixteen individuals cannot be physically evacuated in twelve minutes or less. The sprinkler system will be interconnected with the smoke and fire detection and alarm system. A new residential facility with six to sixteen individuals classified as I-1 occupancy pursuant to section 308 of the Ohio building code on or after May 18, 1995, will be required to have a sprinkler system meeting the requirements of "National Fire Protection Association" 13-R, "Installation of Sprinkler Systems in Residential Occupancies Up to Four Stories in Height."

(c) A smoke and fire detection and alarm system meeting the requirements of "National Fire Protection Association" 72, "National Fire Alarm Code," depending upon the nature of the physical facility involved and such other standards as required by the appropriate building and fire officials.

(d) Fire alarm pull stations near each main exit and in the natural path of escape from a fire, at readily accessible and visible points which are not likely to be obstructed.

(6) Each residential facility with five or fewer individuals will be equipped with:

(a) At least a single station smoke detector on each floor of the facility. Each smoke detector will be mounted on the ceiling or wall at a point centrally located in the corridor or area giving access to rooms used for sleeping. Where sleeping rooms are on an upper level, the smoke detector will be placed at the center of the ceiling directly above the stairway. All smoke detectors will be installed and maintained in accordance with the manufacturer's recommendations. When the smoke detectors are wall-mounted, they will be located within twelve inches, but no closer than four inches, of the ceiling. Installation will not interfere with the operating characteristics of the smoke detector. When activated, the smoke detector will provide an alarm audible in the residential facility.

(b) An approved fire alarm system, which includes bells, sirens, horns, lights, or other equipment as may be appropriate, when services are provided to individuals who are visually and/or hearing impaired.

(c) An automatic sprinkler system meeting the requirements of "National Fire Protection Association" 13-D, "Sprinkler Systems in One and Two Family Dwellings," and a smoke detection system as required by paragraph (F)(6)(a) of this rule when the residential facility cannot be physically evacuated in three minutes or less.

(7) The operator shall ensure that all sprinkler systems, fire alarms, extinguishing systems, and other safety equipment are properly maintained.

(8) The department may utilize the "National Fire Protection Association 101: Life Safety Code" (2021 edition) to determine if additional life safety requirements are needed.

(9) The operator shall conduct and document at least three fire safety drills in a twelve-month period with one conducted during the morning, one conducted during the afternoon or evening, and one conducted during the time when individuals are routinely asleep.

(10) The operator shall conduct and document at least one tornado drill in a twelve-month period.

(11) Fire safety drills and tornado drills may be announced or unannounced and will be conducted in accordance with the assessed needs of individuals as identified in their individual service plans.

(12) Residential facility staff will be trained in fire safety, operation of fire safety equipment and warning systems, and the residential facility's fire safety and emergency response plan in accordance with rule 5123-3-01 of the Administrative Code.

(13) Each individual will participate in documented training of the residential facility's fire safety and emergency response plan within thirty calendar days of residency and at least once during every twelve-month period thereafter. The training will be appropriate for the individual's needs based on the results of an assessment.

(14) Except at an intermediate care facility for individuals with intellectual disabilities, individuals may be trained to assist one another in case of fire or other emergency to the extent their abilities permit without additional personal risk and as indicated in their individual service plans.

(15) An operator shall:

(a) Report to the department within one business day any fire to which a local fire department responded.

(b) Notify each individual's family member or guardian, as applicable, as soon as possible when an emergency requires the operator to relocate individuals from the residential facility.

(c) Report to the department and the county department of job and family services within one business day when an emergency requires the operator to relocate individuals from the residential facility. When the residential facility is an intermediate care facility for individuals with intellectual disabilities, the department will notify the Ohio department of health district office and the Ohio department of medicaid.

(d) Provide weekly updates to the department about individuals who have been relocated due to an emergency until the individuals return to the residential facility or permanently relocate to another residential setting.

Last updated December 1, 2022 at 10:45 AM

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03
Amplifies: 5123.04, 5123.19, 5124.03
Five Year Review Date: 12/1/2027
Prior Effective Dates: 10/31/1977, 8/31/1986, 9/30/1986 (Emer.), 10/24/1987, 4/30/1990, 11/16/1990, 12/1/1990 (Emer.), 10/28/1993, 1/8/1994, 3/20/1997, 4/27/2000, 7/22/2004, 1/17/2005, 1/1/2006, 11/12/2012

Rule 5123-3-03 | Licensed residential facilities - person-centered planning.

• Effective: March 30, 2023
• Promulgated Under: 119.03

(A) Purpose

This rule ensures that services for individuals living in residential facilities licensed in accordance with section 5123.19 of the Revised Code are delivered pursuant to an individual service plan that is developed through person-centered planning.

(B) 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) "Home and community-based services waiver" means a medicaid waiver administered by the department in accordance with section 5166.21 of the Revised Code.

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

(5) "Individual service plan" means the written description of services, supports, and activities to be provided to an individual and includes an "individual program plan" as that term is used in 42 C.F.R. 483.440 as in effect on the effective date of this rule.

(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 the individual's 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 the individual's guardian, as applicable, may withdraw 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) "Ohio individual service plan" means the web-based information technology platform created and maintained by the department used to carry out the person-centered process for assessing and planning with Ohioans with developmental disabilities and includes an information technology platform maintained by a county board or an intermediate care facility for individuals with intellectual disabilities to manage, store, and electronically exchange information with the department's web-based information technology platform.

(9) "Person-centered planning" means an ongoing process directed by an individual and others chosen by the individual to identify the individual's unique strengths, interests, abilities, preferences, resources, and desired outcomes as they relate to the individual's support needs.

(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) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(12) "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.

(13) "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.

(C) Decision-making responsibility

(1) Each individual, including an individual who has been adjudicated incompetent pursuant to Chapter 2111. of the Revised Code, has the right to participate in decisions that affect the individual's life and to have what is important to the individual and what is important for the individual supported.

(2) An individual for whom a guardian has not been appointed shall make decisions regarding receipt of a service or support or participation in a program provided for or funded under Chapter 5123., 5124., or 5126. of the Revised Code. The individual may obtain support and guidance from another person; doing so does not affect the right of the individual to make decisions.

(3) An individual for whom a guardian has not been appointed may, in accordance with section 5126.043 of the Revised Code, authorize an adult (who may be referred to as a "chosen representative") to make a decision described in paragraph (C)(2) of this rule on behalf of the individual as long as the adult does not have a financial interest in the decision. The authorization will be made in writing.

(4) When a guardian has been appointed for an individual, the guardian shall make a decision described in paragraph (C)(2) of this rule on behalf of the individual within the scope of the guardian's authority. This paragraph will not be construed to compel appointment of a guardian.

(5) An adult or guardian who makes a decision pursuant to paragraph (C)(3) or (C)(4) of this rule shall make a decision that is in the best interest of the individual on whose behalf the decision is made and that is consistent with what is important to the individual, what is important for the individual, and the individual's desired outcomes.

(D) Development of individual service plans

(1) Person-centered planning is the foundation for development of individual service plans.

(2) Individual service plans for individuals who reside in residential facilities other than intermediate care facilities for individuals with intellectual disabilities will be developed with the individual by a service and support administrator in accordance with rule 5123-4-02 of the Administrative Code.

(3) Individual service plans for individuals who reside in intermediate care facilities for individuals with intellectual disabilities will be developed in accordance with paragraph (E) of this rule.

(E) Requirements for development of individual service plans for individuals who reside in intermediate care facilities for individuals with intellectual disabilities

(1) What is important to the individual and what is important for the individual as expressed directly by the individual, and as applicable, by an adult authorized by the individual or the individual's guardian will drive development of the individual service plan.

(2) The services, supports, and activities described in the individual service plan will reflect what is important to the individual and what is important for the individual to achieve a more independent, secure, and enjoyable life.

(3) The qualified intellectual disability professional shall:

(a) Coordinate development of the individual service plan with the individual and the team within thirty calendar days after the individual's admission and at least annually thereafter.

(b) Describe, annually and upon request, the supports and services available to an individual residing in an intermediate care facility for individuals with intellectual disabilities and the supports and services available to an individual enrolled in a home and community-based services waiver.

(c) Ensure that development of the initial individual service plan and each subsequent individual service plan reflects meaningful planning for:

(i) The individual's discharge from the intermediate care facility for individuals with intellectual disabilities that:

(a) Identifies supports and services necessary for the individual's successful transition to an integrated community setting and specifies who is responsible for ensuring necessary supports and services are provided; and

(b) Includes strategies or methods for meeting the challenges for a successful transition to an integrated community setting.

(ii) The individual's unique strengths, interests, abilities, preferences, resources, and desired outcomes as they relate to community employment in accordance with rule 5123:2-2-05 of the Administrative Code.

(d) Complete an assessment of the individual that:

(i) Takes into consideration:

(a) What is important to the individual to promote satisfaction and achievement of desired outcomes;

(b) What is important for the individual to maintain health and welfare;

(c) Known and likely risks;

(d) The individual's place on the path to community employment; and

(e) The individual's skills and abilities.

(ii) Identifies supports that promote the individual's:

(a) Communication (expressing oneself and understanding others);

(b) Advocacy and engagement (valued roles and making choices; responsibility and leadership);

(c) Safety and security (safety and emergency skills; behavioral well-being; emotional well-being; supervision considerations);

(d) Social and spirituality (personal networks, activities, and faith; friends and relationships);

(e) Daily life and employment (school and education; employment; finance);

(f) Community living (life at home; getting around); and

(g) Healthy living (medical and dental care; nutrition; wellness).

(e) Create an individual service plan that:

(i) Identifies a continuous active treatment program;

(ii) Identifies opportunities for independence, choice, and self-management;

(iii) Identifies needed developmental, behavioral, and health interventions and supports;

(iv) Identifies and promotes opportunities for community participation; and

(v) Identifies and supports preservation and development of interpersonal relationships (e.g., social contacts, relationships, and emotional supports).

(f) Review and revise the individual service plan as needed or upon request.

(g) Review implementation of the individual service plan at least quarterly and revise as needed.

(h) Coordinate the services, supports, and activities being provided to the individual with service providers, as identified in the individual service plan.

(i) Contact the county board when an individual residing in the intermediate care facility for individuals with intellectual disabilities requests, or a person on the individual's behalf requests pursuant to paragraph (C) of this rule, assistance to move from the intermediate care facility for individuals with intellectual disabilities to a community setting.

(4) The qualified intellectual disability professional shall document performance of the tasks described in paragraph (E)(3) of this rule and secure informed consent for the individual service plan from the individual, adult authorized by the individual, or the individual's guardian, as applicable.

(5) The qualified intellectual disability professional shall attempt to address concerns when informed consent is refused or withdrawn by presenting alternative services or activities to the individual.

(6) The individual service plan will be provided to the individual, adult authorized by the individual, or individual's guardian, as applicable; to all parties responsible for implementation of the individual service plan; and to authorized regulatory agents. The individual service plan will not be released to other persons without the informed consent of the individual, adult authorized by the individual, or individual's guardian, as applicable.

(F) Transition to Ohio individual service plan

No later than June 30, 2024, an intermediate care facility for individuals with intellectual disabilities shall ensure that all assessments and individual service plans of its residents are captured in Ohio individual service plan.

Last updated March 30, 2023 at 8:39 AM

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03
Amplifies: 5123.04, 5123.19, 5124.03, 5124.69
Five Year Review Date: 10/1/2026
Prior Effective Dates: 10/1/2016, 10/1/2021

Rule 5123-3-04 | Licensed residential facilities - admission of residents, provision of services, and maintenance of service records.

• Effective: December 1, 2022
• Promulgated Under: 119.03

(A) Purpose

This rule establishes standards to ensure that services provided in residential facilities licensed in accordance with section 5123.19 of the Revised Code focus on achievement of outcomes that are important to and important for individuals served, individuals are involved in development and delivery of their services, the confidentiality of individuals' records is maintained, and individuals' records are readily accessible for service delivery and for review by the department.

(B) Definitions

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

(1) "Administrator" means the person responsible for administration of the residential facility who shall be directly and actively involved in the day-to-day operation of the residential facility and oversee provision of services by the residential facility.

(2) "Community participation" means engagement of an individual in daytime and evening activities that:

(a) Are available to the general public (such as employment, clubs, meetings, and advocacy groups);

(b) Are important to the individual;

(c) Involve others with and without disabilities who are not paid to provide care to the individual; and

(d) Create opportunities for the individual to develop meaningful relationships in the local community as is typical of other citizens of that community.

(3) "Direct support professional" means a person who is employed in a "direct services position" as that term is defined in section 5123.081 of the Revised Code.

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

(5) "Individual service plan" means the written description of services, supports, and activities to be provided to an individual and includes an "individual program plan" as that term is used in 42 C.F.R. 483.440 as in effect on the effective date of this rule.

(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 the individual's 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 alternatives to the action, treatment, or service; and the right to refuse the action, treatment, or service. The individual or the individual's guardian, as applicable, may withdraw 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) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

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

(10) "Modified texture or therapeutic diets" means diets that are altered in any way to enable an individual to eat (e.g., food is chopped or pureed) or diets that are intended to correct or prevent a nutritional deficiency or health problem.

(11) "Operator" means the entity responsible for management of and provision of services at the residential facility.

(12) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(13) "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.

(14) "Unusual incident" has the same meaning as in rule 5123-17-02 of the Administrative Code.

(15) "Virtual support" means the provision of services by direct support professionals at a distant site who engage with an individual using interactive technology that has the capability for two-way, real time audio and video communication.

(C) Admission of residents

(1) Admission to a residential facility is voluntary, requiring informed consent.

(2) An operator shall:

(a) Admit as residents only individuals whose service needs can be met by the residential facility.

(b) When reviewing an application for admission, consider its ability to maintain adequate services to all residents of the residential facility.

(c) Notify the individual and referring party in writing of the outcome of the admission decision within thirty calendar days of receiving an application for services and referral information.

(d) Notify the county board of developmental disabilities in writing within fourteen calendar days of admitting a new resident, after securing informed consent to provide the notification.

(D) Standards of service provision

(1) The operator, administrator, and staff of a residential facility shall:

(a) Provide services in a person-centered manner.

(b) Be able to effectively communicate with each individual receiving services.

(c) Be knowledgeable in the individual service plan for each individual prior to providing services to the individual.

(d) Implement services in accordance with the individual service plan.

(e) Take all reasonable steps necessary to prevent the occurrence or recurrence of major unusual incidents and unusual incidents.

(f) Comply with the requirements of rule 5123-2-06 of the Administrative Code regarding development and implementation of behavioral support strategies.

(2) An operator shall ensure that a direct support professional does not:

(a) Provide services to the direct support professional's minor child.

(b) Provide services to the direct support professional's spouse.

(c) Provide services to the minor child of the administrator.

(d) Provide services to the spouse of the administrator.

(e) Administer medication to or perform health-related activities for individuals who receive services unless the direct support professional meets the applicable requirements of Chapters 4723., 5123., and 5126. of the Revised Code and rules adopted under those chapters.

(f) Use or be under the influence of the following while providing services:

(i) Alcohol;

(ii) Illegal drugs;

(iii) Illegal chemical substances; or

(iv) Controlled substances that may adversely affect the direct support professional's ability to furnish services.

(E) Health care

(1) Self-administration or assistance with self-administration of prescribed medication will be conducted in accordance with rule 5123:2-6-02 of the Administrative Code.

(2) Delegation of nursing tasks, excluding the provision of health-related activities, will be conducted in accordance with rule 5123-6-06 of the Administrative Code and Chapter 4723-13 of the Administrative Code.

(3) Administration of prescribed medication pursuant to sections 5123.42 to 5123.46 of the Revised Code will be conducted in accordance with Chapters 5123-6 and 5123:2-6 of the Administrative Code.

(4) An operator will comply with the requirements for reporting medication/treatment errors in accordance with rules 5123-6-07 and 5123-17-02 of the Administrative Code.

(5) An operator shall develop and implement written procedures for the disposal of prescribed medication which require:

(a) Disposal of prescribed medication to be verified and recorded by two staff members or by an independent external entity.

(b) Dangerous drugs to be disposed in accordance with rule 4729-9-06 of the Administrative Code.

(6) In the event of termination of services pursuant to rule 5123-3-05 of the Administrative Code, an operator shall ensure:

(a) A written accounting of prescribed medication is completed no later than the last day of the individual's residency and verified by two staff members.

(b) A plan is developed for transfer of prescribed medication to the individual or the individual's guardian, as applicable.

(7) In the event of the death of an individual, an operator shall ensure:

(a) A written accounting of prescribed medication is completed immediately and no later than twenty-four hours following the death and verified by two staff members.

(b) The operator and staff of the residential facility cooperate with any investigation conducted by a legally authorized entity.

(c) Disposal of prescribed medication occurs in accordance with the written procedures described in paragraph (E)(5) of this rule, unless an investigation calls for the disposal to be delayed.

(F) Transportation

An operator shall:

(1) Provide or arrange for transportation of individuals residing in the residential facility in accordance with each resident's individual service plan.

(2) Ensure each employee providing transportation holds a valid driver's license as specified in Ohio law.

(3) Ensure each employee providing transportation is covered by valid personal or corporate liability insurance as specified in Ohio law.

(4) Obtain, for each employee providing transportation, a driving record prepared by the bureau of motor vehicles no earlier than fourteen calendar days prior to the date of initial employment as a driver and at least once every three years thereafter. A person having six or more points on the person's driving record is prohibited from providing transportation.

(5) Require each employee providing transportation to immediately notify the operator in writing if the employee accumulates six or more points on the employee's driving record or if the employee's driver's license is suspended or revoked.

(6) Develop and implement written policies and procedures regarding vehicle accessibility, vehicle maintenance, and requirements for vehicle drivers.

(G) Food

(1) An operator shall offer daily meals and snacks that meet an individual's nutritional needs and preferences as identified by the individual.

(2) Modified texture or therapeutic diets shall be prepared and served in accordance with the instructions of a physician or licensed dietitian. An operator shall maintain instructions regarding modified texture or therapeutic diets in accordance with paragraph (J) of this rule.

(3) Meals shall provide for variety, substitutions, and accommodation of individuals' personal preferences and religious beliefs. Individuals shall participate in meal planning and preparation to the extent of their interest and ability to do so.

(4) Fresh food supplies sufficient for three days and staple food supplies sufficient for at least five days shall be available in the residential facility at all times.

(5) Food shall be prepared and stored properly and in accordance with health codes to protect it against contamination and spoilage. Food products shall be stored separately from potentially harmful non-food items, particularly cleaning and laundry compounds.

(H) Clothing and personal belongings

(1) An operator shall ensure each individual has an adequate amount of personal clothing in good repair, well-fitting, and comparable in style to that worn by age peers in the community. The team shall ensure the clothing needs of an individual who does not have personal funds available to cover needed items are met. All clothing shall be clean and appropriate for the season and the activities in which the individual is engaged.

(2) An operator shall encourage each individual to select, purchase, and maintain the individual's own clothing and to dress as independently as possible.

(3) When an individual has been assessed to need assistance with management of personal possessions, the operator shall record the individual's clothing and personal belongings within fourteen calendar days of admission and update the record at least annually thereafter. Any single item with a purchase price of fifty dollars or more purchased by or on behalf of an individual who has been assessed to need assistance with management of personal possessions, shall be added to the record when acquired and deleted from the record when discarded or lost.

(4) An operator shall not discard an individual's clothing or personal belongings without the consent of the individual or the individual's guardian, as applicable.

(5) If operation of a residential facility is transferred from one operator to another, the outgoing operator shall convey individuals' clothing and personal belongings to the incoming operator.

(I) Community participation for individuals who reside in an intermediate care facility for individuals with intellectual disabilities

(1) The operator of an intermediate care facility for individuals with intellectual disabilities shall ensure that each individual:

(a) Has opportunities to access age-appropriate activities, engage in meaningful employment and non-work activities, and pursue activities with persons of the individual's choosing.

(b) Routinely has information in formats the individual understands about activities and programs related to community employment in accordance with rule 5123:2-2-05 of the Administrative Code offered by other providers as well as opportunities to explore and experience community participation in accordance with the individual service plan and the individual's desired outcomes.

(c) Participates in activities that foster community participation unless the individual service plan indicates why, based on evaluations and assessments, such participation is medically contraindicated.

(d) Has access to a variety of activities that reflect what is important to the individual and what is important for the individual.

(2) The activities and programs described in paragraph (I)(1) of this rule shall not be provided in an intermediate care facility for individuals with intellectual disabilities or within two hundred feet of an intermediate care facility for individuals with intellectual disabilities except that:

(a) An intermediate care facility for individuals with intellectual disabilities that was providing day activities in or on the grounds of the intermediate care facility for individuals with intellectual disabilities prior to July 1, 2005 in accordance with paragraph (H)(4) of rule 5123:2-3-04 of the Administrative Code in effect on the day immediately prior to the effective date of this rule, may continue to provide day activities at that same location.

(b) An individual may choose to participate in activities and programs through virtual support under the following conditions:

(i) Virtual support does not have the effect of isolating the individual from the community or preventing the individual from interacting with people with or without disabilities;

(ii) The use of virtual support has been agreed to by the individual and the individual's team and is specified in the individual service plan; and

(iii) The use of virtual support complies with applicable laws governing the individual's right to privacy and the individual's protected health information.

(J) Individuals' service records

(1) An operator shall ensure:

(a) The following current records for each individual are maintained at the residential facility:

(i) A photograph of the individual.

(ii) Legal status of the individual.

(iii) Individual service plan, including documentation of informed consent for services, supports, and activities provided.

(iv) A signed authorization to seek medical treatment or documentation to demonstrate that attempts to secure such authorization were unsuccessful.

(v) Medication and/or treatment records which indicate the person who prescribed the medication and/or treatment and the date, time, and person who administered the medication and/or treatment.

(b) The following records for each individual are maintained by the operator in an accessible location and provided upon request to the department for review at the residential facility or at another location mutually agreed upon by the operator and the department:

(i) Former versions of records specified in paragraph (J)(1)(a) of this rule.

(ii) Admission and referral records.

(iii) All service documentation including notations of progress.

(iv) Records of all medical and dental examinations and immunization records as appropriate based upon the individual's age.

(v) Records of major unusual incidents and unusual incidents.

(vi) Major unusual incident investigation files.

(vii) Reconciliations of the individual's account transaction record as described in rule 5123-2-07 of the Administrative Code.

(viii) Records of negotiable items owned by the individual which can be transferred or converted to cash (such as bonds or promissory notes).

(ix) Records of clothing and personal belongings for individuals who have been assessed to need assistance with management of personal possessions.

(x) A written accounting prepared within thirty calendar days following termination of an individual's residency at the residential facility that documents:

(a) Circumstances of termination of residency (e.g., the individual moved to another residential setting, the individual died, or the operator terminated services in accordance with rule 5123-3-05 of the Administrative Code);

(b) The individual's new address;

(c) Conveyance of the individual's records, identification documents, prescriptions, and prescribed medications;

(d) Disposition of the individual's clothing and personal belongings; and

(e) Release or disposition of the individual's personal funds in accordance with rule 5123-2-07 of the Administrative Code.

(2) If operation of a residential facility is transferred from one operator to another, the outgoing operator shall convey the records specified in paragraph (J)(1) of this rule to the incoming operator.

(3) All information contained in an individual's records shall be considered confidential. Records will be maintained in accordance with state and federal regulations and in such a manner to ensure their confidentiality and protect them from unauthorized disclosure.

(4) An operator shall develop a records retention schedule for all records in accordance with applicable state and federal requirements.

Last updated December 1, 2022 at 10:46 AM

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03
Amplifies: 5123.04, 5123.19, 5124.03
Five Year Review Date: 12/1/2027
Prior Effective Dates: 6/12/1981, 11/16/1990, 7/1/2007

Rule 5123-3-05 | Licensed residential facilities - transfer and termination of services.

• Effective: December 1, 2022
• Promulgated Under: 119.03

(A) Purpose

This rule establishes uniform policies for transfer and termination of services of individuals living in residential facilities licensed in accordance with section 5123.19 of the Revised Code other than a department-operated intermediate care facility for individuals with intellectual disabilities.

(B) 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 department or a person designated by the director of the department.

(4) "Emergency" means a situation in which either:

(a) Despite the operator's documented attempts to provide, obtain, and/or coordinate the services necessary to ensure the health and safety of the resident, other residents, and/or staff of the residential facility, there still exists a significant risk of substantial harm to the resident, other residents, or staff that cannot be met in the current environment such that action must be taken immediately; or

(b) Through a level of care determination in accordance with rule 5123-8-01 of the Administrative Code or a preadmission screening for developmental disabilities in accordance with rule 5123-14-01 of the Administrative Code, the individual is determined to require a level of services provided in another type of setting (e.g., a nursing facility).

(5) "Individual" means a person with a developmental disability or for purposes of giving, refusing to give, or withdrawing consent for services, the person's guardian in accordance with section 5126.043 of the Revised Code or other person authorized to give consent.

(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 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 may withdraw 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) "Operator" means the entity responsible for management of and provision of services at the residential facility.

(9) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(10) "Termination of services" means an action initiated by an operator to cause a resident to move to another residence that is not under the jurisdiction of the operator. Termination of services does not include a temporary absence from an intermediate care facility for individuals with intellectual disabilities described in section 5124.34 of the Revised Code.

(11) "Transfer" means an action initiated by an operator to cause a resident to move, on a temporary or permanent basis, between residential facilities under the jurisdiction of the operator.

(C) Transfer and termination of services policies

(1) An operator will allow each resident to remain in the residential facility and shall not initiate a transfer or termination of services unless:

(a) The transfer or termination of services is necessary for the resident's welfare and the resident's needs can no longer be met without imposing an undue hardship on the operation of the residential facility;

(b) The resident no longer needs or wants the services provided by the residential facility or chooses to move to another residence;

(c) The resident is creating a significant risk of substantial harm to self, other residents, or staff in the residential facility;

(d) Nonpayment for the stay in the residential facility, including nonpayment of medicaid or other third-party payer;

(e) The residential facility permanently reduces its capacity; or

(f) The residential facility ceases to operate.

(2) An operator shall not unlawfully discriminate because of disability, race, color, religion, national origin or ancestry, sex, or age including but not limited to, failing to make reasonable accommodation to a person's physical, mental, or behavioral support needs to the extent required by law unless the operator can demonstrate that the accommodation would impose an undue hardship on the operation of the residential facility including an unreasonable risk of harm to residents or staff in the residential facility.

(3) Before initiating a transfer or termination of services, an operator shall:

(a) Notify in writing via certified mail, the individual and the county board of the transfer or termination of services. The notice will contain:

(i) The reason for the transfer or termination of services;

(ii) The effective date of the transfer or termination of services;

(iii) A summary of the action taken by the operator, including working with the county board, to try to meet the resident's needs;

(iv) The individual's right to appeal the transfer or termination of services and the process to do so; and

(v) The telephone number and address of disability rights Ohio.

(b) Explain the transfer or termination of services and appeal rights to the individual in a manner the individual understands; and

(c) Record the reasons for the transfer or termination of services in the resident's record.

(4) The notice of transfer or termination of services must be made at least thirty calendar days before the transfer or termination of services, except when an emergency exists. If at any time prior to the expiration of the thirty-day period the operator determines that the conditions that constituted the emergency no longer exist, the subject of the transfer or termination of services may return to the residential facility.

(5) If an individual requests a hearing regarding the transfer or termination of services, the residential facility must maintain services or the availability of services until a decision is rendered after the hearing unless an emergency exists.

(6) If after receiving notice of the transfer or termination of services, the individual waives in writing the individual's rights to appeal, the operator is not required to maintain services or the availability of services.

(D) Administrative review process

(1) An individual who wishes to appeal a transfer or termination of services shall first appeal in writing to the governing board or administrator of the residential facility within seven calendar days of the receipt of the notice of transfer or termination of services.

(2) The governing board or administrator shall review the decision and notify the individual in writing of the outcome of the review within five calendar days of the request for the review. The notice to the individual will be sent by certified mail and, if the appeal is denied, include the contact information for the director and an explanation in a manner the individual understands that the individual has five calendar days from receipt of the notice to appeal to the director.

(3) An individual who wishes to appeal to the director shall submit the appeal in writing to the director within five calendar days from receipt of the notice from the governing board or administrator. Upon request, department staff will assist the individual to understand the appeal process and find resources to help the individual with preparation of the appeal.

(E) Mediation process

(1) The individual and the operator shall attend a mediation meeting to try to achieve resolution regarding the transfer or termination of services prior to initiation of the hearing process described in paragraph (F) of this rule. Legal representation is not permitted in the mediation meeting.

(2) The department will provide the mediator.

(3) The mediation meeting will be conducted within fifteen calendar days of receipt of the appeal. Timelines may be extended if mutually agreed upon in writing by all parties.

(4) The mediator may hold the mediation open when the parties do not dispute the proposed transfer or termination of services and need additional time for the individual to transition to another residence.

(5) Unless all parties agree in writing to abide by the recommendations of the mediator, the mediation will be nonbinding.

(6) Statements made during the mediation process cannot be used as evidence in any subsequent hearings or court proceedings.

(F) Hearing process

(1) The department will grant an opportunity for a hearing to any individual who has received a transfer or termination of services notice, has attended a mediation meeting in accordance with paragraph (E) of this rule, and requests a hearing in accordance with this rule.

(2) The department will deny or dismiss a request if:

(a) The request is not filed in a timely manner;

(b) The individual fails to attend a scheduled hearing unless there is good cause for the absence; or

(c) The individual withdraws the request in writing.

(3) The department will appoint a hearing officer to hear the appeal. The hearing officer will not be the same person as the mediator in any given case.

(4) The hearing officer shall select a time and place for the hearing and attempt to select a time for the hearing that is mutually agreeable to all parties. The hearing will be conducted within thirty calendar days of conclusion of the mediation meeting described in paragraph (E) of this rule. The hearing officer has discretion to determine whether a court reporter or transcript of the hearing will be required.

(5) The individual and the operator shall have the opportunity to present evidence at the hearing. The operator may have legal representation. The individual may have legal representation and/or an authorized representative.

(6) The burden of proof will be on the operator to show that the transfer or termination of services was in accordance with this rule.

(7) The hearing officer shall review the evidence presented and determine if the requirements of this rule have been followed.

(8) The hearing officer shall issue a written recommendation to the director within ten calendar days of the conclusion of the hearing or when applicable, receipt of the transcript of the hearing, whichever is later.

(9) The director will issue a written decision to the parties within five calendar days of receipt of the hearing officer's recommendation. The director may impose conditions on the transfer or termination of services.

(10) Timelines in paragraph (F)(1), (F)(4), (F)(8), or (F)(9) of this rule may be extended if mutually agreed upon in writing by all parties.

(G) Adverse actions

If an operator fails to follow the requirements of this rule or fails to follow the decision of the director, the operator may be subject to adverse actions in accordance with rule 5123-3-06 of the Administrative Code.

Last updated December 1, 2022 at 10:46 AM

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03
Amplifies: 5123.04, 5123.19, 5123.62, 5123.67, 5124.03
Five Year Review Date: 12/1/2027
Prior Effective Dates: 10/31/1977, 6/12/1981, 3/25/1991, 11/2/1996

Rule 5123-3-06 | Licensed residential facilities - compliance reviews, issuance of licenses, and adverse actions.

• Effective: November 9, 2023
• Promulgated Under: 119.03

(A) Purpose

This rule sets forth processes for reviews conducted by the department to ensure compliance by residential facilities licensed in accordance with section 5123.19 of the Revised Code, the issuance of licenses for residential facilities operating in accordance with Chapters 5123. and 5124. of the Revised Code, and adverse actions for residential facilities not operating in accordance with Chapters 5123. and 5124. of the Revised Code.

(B) Definitions

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

(1) "Administrator" means the person responsible for administration of the residential facility who is directly and actively involved in the day-to-day operation of the residential facility and oversees provision of services by the residential facility.

(2) "Business day" means a day of the week, excluding Saturday, Sunday, or a legal holiday as defined in section 1.14 of the Revised Code.

(3) "Compliance review" means a review of a residential facility conducted by the department or its designee for the purpose of determining compliance with applicable requirements in order to ensure the health, safety, and welfare of individuals served. The department may, based upon a compliance review, issue a citation and require immediate corrective action when it determines that a violation poses an immediate and substantial risk to the health and safety of residents.

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

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

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

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

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

(9) "License" means written approval by the department to a licensee to operate a residential facility. For purposes of this rule, "license" does not include an interim license issued in accordance with rule 5123-3-08 of the Administrative Code.

(10) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

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

(12) "Operator" means the entity responsible for management of and provision of services at the residential facility.

(13) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) Frequency and types of compliance reviews

(1) The department will conduct a compliance review of a residential facility at least once during the term of the license and may conduct additional compliance reviews as determined by the department.

(2) There are three types of compliance reviews:

(a) Routine compliance reviews conducted so that each residential facility is reviewed once during the term of its license.

(b) Abbreviated compliance reviews conducted so that each residential facility is reviewed once during the term of its license for a residential facility that holds accreditation by a national accrediting entity. An abbreviated compliance review focuses on individuals served and their health and safety, examines fewer policies, and relies on smaller sample sizes of staff and individuals served.

(i) A residential facility that is accredited by a national accrediting entity may be 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, when applicable;

(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 will examine the residential facility's compliance with applicable requirements regarding:

(a) Background investigations of the licensee and/or operator and background investigations and training of the residential facility's administrator and employees;

(b) Behavioral support strategies;

(c) Medication administration;

(d) Major unusual incidents; and

(e) Service delivery.

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

(iv) The residential facility will notify the department in writing within ten calendar days if the residential facility'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 residential facility has not yet received an initial routine compliance review by the department;

(b) The residential facility has had multiple or significant substantiated major unusual incidents since the most recent compliance review by the department or survey/review by the national accrediting entity;

(c) The operator's management team or the residential facility's administrator has changed since the most recent compliance review by the department or survey/review by the national accrediting entity; or

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

(c) Special compliance reviews conducted in response to a complaint, a major unusual incident, or any situation where there is reason to believe that the residential facility is not being operated in compliance with Chapters 5123. and 5124. of the Revised Code or rules adopted under those chapters.

(i) Special compliance reviews may be announced or unannounced.

(ii) Upon receipt of a complaint, department staff will:

(a) Take necessary measures to ensure that any conditions that pose a risk to the health or welfare of the individual have been corrected;

(b) Determine whether a special compliance review will be conducted;

(c) Determine if the complaint should be referred to law enforcement, a county board, or another unit or entity internal or external to the department in accordance with rule 5123-11-02 of the Administrative Code; and

(d) Send a written response to the complainant describing actions taken by the department to address the complaint.

(D) Compliance review procedures

(1) The department will maintain a protocol for compliance reviews which includes, but is not limited to:

(a) The method for selecting residential facilities to be reviewed;

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

(c) The process and procedures for notifying residential facilities of upcoming reviews;

(d) The elements of compliance which will be based on the applicable requirements;

(e) The elements of a written compliance review summary to a residential facility that will 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 residential facility;

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

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

(2) The department will make the protocol for compliance reviews available at its website (https://dodd.ohio.gov).

(E) Compliance review summary, appeal, and plan of correction when no adverse action is being initiated

(1) Within ten calendar days of conclusion of a compliance review, the department will issue to the residential facility, a written compliance review summary or a written explanation of the reason for delay in issuance of the written compliance review summary.

(a) A written compliance review summary will be in the format described in the protocol for compliance reviews and objective in terms of observations and citations, relying upon documentation that clearly addresses the standards reviewed.

(b) A written explanation of the reason for delay in issuance of the written compliance review summary will include the date by which the department will issue a written compliance review summary, which will not be more than twenty calendar days of conclusion of the compliance review.

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

(a) The appeal for a citation will include the residential facility's basis with supporting documentation for challenging the citation. The department will allow or disallow the appeal within ten calendar days of receipt.

(b) If the appeal is disallowed, the residential facility will submit a written plan of correction for the citation to the department within fourteen calendar days.

(c) The written plan of correction for a citation will include action steps and timelines for remediation. The department will approve or disapprove the plan of correction within twenty calendar days of receipt. When the department disapproves a plan of correction, the residential facility will work with the department to develop an acceptable plan of correction.

(F) Issuance of license

(1) Following routine compliance reviews and abbreviated compliance reviews that do not result in adverse action, the department will issue a three-year license to the licensee within twenty calendar days of determining that the residential facility is in compliance with all requirements, an approved plan of correction has been implemented, and/or compliance with specific requirements has been waived in accordance with rule 5123-3-10 of the Administrative Code; and collection of the licensure fee specified in paragraph (J) of this rule.

(2) Following routine compliance reviews and abbreviated compliance reviews that result in adverse action that requires a plan of correction, the department will issue a one-year license to the licensee within twenty calendar days of determining that the residential facility is in compliance with all requirements, an approved plan of correction has been implemented, and/or compliance with specific requirements has been waived in accordance with rule 5123-3-10 of the Administrative Code; and collection of the licensure fee specified in paragraph (J) of this rule.

(3) A license will remain valid until the end of its term unless the license is revoked, extended, or terminated by the department or voluntarily surrendered by the licensee.

(G) Adverse actions

(1) If the department determines that a residential facility is not being operated in accordance with Chapters 5123. and 5124. of the Revised Code or rules adopted under those chapters, the department may initiate a suspension of admissions, order placement of a monitor, initiate proceedings to refuse to renew the license, and/or initiate proceedings to revoke the license.

(a) Initiate a suspension of admissions

(i) The department may initiate a suspension of admissions when the department:

(a) Determines the residential facility has demonstrated a pattern of serious noncompliance or a violation poses a substantial risk to the health and safety of residents; or

(b) Is ordering placement of a monitor or initiating proceedings to refuse to renew or revoke the license in accordance with, as applicable, paragraph (G)(1)(b), (G)(1)(c), or (G)(1)(d) of this rule.

(ii) When a suspension of admissions is ordered before providing an opportunity for adjudication pursuant to Chapter 119. of the Revised Code, the process set forth in section 5123.19 of the Revised Code will be followed.

(iii) The department will send a copy of the order suspending admissions to the county board where the residential facility is located.

(iv) The licensee will send written notice to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, or the individual's parent or guardian if the individual is a minor, within three business days of notification from the department that a suspension of admissions has been imposed on the facility. The notice will contain information regarding the reason for suspension of admissions and how the individual, parent, or guardian can obtain additional information regarding the suspension of admissions. The licensee will send a copy of the notice to the department.

(v) Provided the suspension of admissions is not imposed in conjunction with proceedings to revoke the license, the licensee may submit a plan of correction in accordance with the process set forth in paragraph (E)(2) of this rule.

(vi) The department may lift the suspension of admissions when the department determines that the citation that formed the basis for the order has been corrected.

(b) Order placement of a monitor

(i) The department may order placement of a monitor in a residential facility (i.e., on-site monitoring provided or arranged by the department whenever an individual is in the residential facility and up to twenty-four hours per day) when the department determines the situation requires ongoing oversight to facilitate necessary corrective action.

(ii) The department will send a copy of the order for placement of a monitor to the county board where the residential facility is located.

(iii) The licensee will send written notice to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, or the individual's parent or guardian if the individual is a minor, within three business days of notification from the department that a monitor has been placed in the facility. The notice will contain information regarding the reason for placement of a monitor and how the individual, parent, or guardian can obtain additional information regarding the placement of a monitor. The licensee will send a copy of the notice to the department.

(c) Initiate proceedings to refuse to renew the license

(i) The department may initiate proceedings to refuse to renew the license of a residential facility upon expiration when the department determines the residential facility has demonstrated a pattern of serious noncompliance or a violation poses a substantial risk to the health and safety of residents.

(ii) If such a determination is made, the department will send a letter to the licensee in accordance with section 119.05 of the Revised Code. The letter will list the citations identified during the compliance review that are the basis for refusal to renew the license and include as an attachment, the compliance review summary. The department will send a copy of the letter to the county board where the residential facility is located and, if the residential facility is an intermediate care facility for individuals with intellectual disabilities, to the Ohio department of health and the Ohio department of medicaid.

(iii) The licensee will have fourteen calendar days from the date the letter is served to submit an appeal or plan of correction for each citation in accordance with the process set forth in paragraph (E)(2) of this rule.

(iv) Within twenty calendar days following an on-site visit to verify that the licensee has implemented the approved plan of correction, the department will either:

(a) Determine the plan of correction has been satisfactorily implemented and issue a one-year license to the licensee after collection of the licensure fee specified in paragraph (J) of this rule; or

(b) Determine the licensee remains in serious noncompliance or a citation continues to pose a substantial risk to the health and safety of residents and send a letter to the licensee in accordance with section 119.05 of the Revised Code, affirming the department's decision to refuse to renew the license upon expiration and advising that the licensee must cease operation within thirty calendar days of receipt of the letter or the license expiration date, whichever is later. The letter will inform the licensee of the licensee's right to request a hearing on the proposed refusal to renew the license pursuant to Chapter 119. of the Revised Code. The licensee will have thirty calendar days from the date the letter is served to request a hearing which, if timely requested, will be held in accordance with Chapter 119. of the Revised Code.

(v) If the licensee does not request a hearing within thirty calendar days, an adjudication order will be rendered pursuant to Chapter 119. of the Revised Code. The department will send a copy of the adjudication order to the county board where the residential facility is located and, if the residential facility is an intermediate care facility for individuals with intellectual disabilities, to the Ohio department of health and the Ohio department of medicaid. The department will arrange for a letter or a copy of the adjudication order to be sent to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, or the individual's parent or guardian if the individual is a minor.

(vi) If the licensee requests a hearing and the hearing process extends beyond the expiration date of the residential facility's license, the license will continue to be valid for thirty calendar days after the date the department's decision, pursuant to Chapter 119. of the Revised Code, is rendered.

(d) Initiate proceedings to revoke the license

(i) The department may initiate proceedings to revoke the license of a residential facility when the department determines the residential facility has demonstrated a pattern of serious noncompliance or a violation poses a substantial risk to the health and safety of residents.

(ii) If such a determination is made, the department will send a letter to the licensee in accordance with section 119.05 of the Revised Code. The letter will list the citations identified during the compliance review that are the basis for revocation of the license and include as an attachment, the compliance review summary. The letter will inform the licensee of the licensee's right to request a hearing on the proposed revocation of the license pursuant to Chapter 119. of the Revised Code. The licensee will have thirty calendar days from the date the letter is served to request a hearing which, if timely requested, will be held in accordance with Chapter 119. of the Revised Code.

(iii) When the department initiates proceedings to revoke the license, the department will arrange for notification in writing to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, the individual's parent or guardian if the individual is a minor, the county board where the residential facility is located and, if the residential facility is an intermediate care facility for individuals with intellectual disabilities, to the Ohio department of health and the Ohio department of medicaid.

(iv) Once the department initiates proceedings to revoke the license, no opportunity for submitting a plan of correction will be given.

(v) If the licensee does not request a hearing within thirty calendar days, an adjudication order will be rendered pursuant to Chapter 119. of the Revised Code. The department will send a copy of the adjudication order to the county board where the residential facility is located and, if the residential facility is an intermediate care facility for individuals with intellectual disabilities, to the Ohio department of health and the Ohio department of medicaid. The department will arrange for a letter or a copy of the adjudication order to be sent to each individual served at the residential facility, the individual's guardian if the individual is an adult for whom a guardian has been appointed, or the individual's parent or guardian if the individual is a minor.

(vi) If the licensee requests a hearing and the hearing process extends beyond the expiration date of the residential facility's license, the license will continue to be valid for thirty calendar days after the date the department's decision, pursuant Chapter 119. of the Revised Code, is rendered.

(2) In proceedings initiated to refuse to renew or revoke a license, the department may refuse to renew or revoke the license regardless of whether some or all of the citations that prompted the proceedings have been corrected at the time of the hearing.

(H) Termination of license

(1) The department may terminate a license if more than twelve consecutive months have elapsed since the residential facility was last occupied by an individual or when the licensee failed to provide notice of modification in accordance with rule 5123-3-08 of the Administrative Code.

(2) If such a determination is made, the department will send a letter to the licensee in accordance with section 119.05 of the Revised Code. The letter will explain the basis for termination of the license and inform the licensee of the licensee's right to request a hearing on the proposed termination of the license pursuant to Chapter 119. of the Revised Code. The licensee will have thirty calendar days from the date the letter is served to request a hearing which, if timely requested, will be held in accordance with Chapter 119. of the Revised Code.

(I) Effect of refusal to renew, revocation, termination, or voluntary surrender of license

(1) When the department refuses to renew, revokes, or terminates a license or when a licensee voluntarily surrenders a licensee, the licensed beds revert to the department.

(2) When the department refuses to renew, revokes, or terminates a license or when a licensee voluntarily surrenders a license and the department determines that the licensed beds are needed to provide services to individuals who resided in the residential facility in which the beds were located, the department may authorize the county board in the county where the residential facility is located to develop a request for proposal for the purpose of recommending a licensee.

(a) The department will establish and make available the format, procedure, timelines, and criteria for evaluation for the request for proposal process to be used by a county board.

(b) The county board will solicit proposals from any interested applicants and ensure all interested applicants are afforded an equal opportunity to respond to the request for proposal. Written notice will be provided to the general public and to all interested licensees as prescribed by the department.

(c) The county board will submit all proposals and its recommendation to the department within ten calendar days after completing its review of the proposals.

(d) The department will consider the county board's recommendation and notify in writing, the county board and all applicants of its decision within thirty calendar days after receiving the county board's recommendation. The department will provide each applicant its rationale in selecting or choosing not to select a particular licensee.

(J) Licensure fees

(1) Licensure fees will be paid by electronic check or credit card in advance of issuance of a license by the department.

(2) Licensure fees are non-refundable.

(3) Licensure fees are based on the term of the license and the number of licensed beds at the residential facility.

(a) The licensure fee for a three-year license is:

(i) Three hundred dollars for a residential facility with fifteen or fewer beds; and

(ii) One thousand five hundred dollars for a residential facility with sixteen or more beds.

(b) The licensure fee for a one-year license is:

(i) One hundred dollars for a residential facility with fifteen or fewer beds; and

(ii) Five hundred dollars for a residential facility with sixteen or more beds.

Last updated November 9, 2023 at 8:21 AM

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03
Amplifies: 5123.04, 5123.19, 5124.03
Five Year Review Date: 12/1/2027
Prior Effective Dates: 1/17/2005

Rule 5123-3-07 | Licensed residential facilities - immediate removal of residents.

• Effective: December 1, 2022
• Promulgated Under: 119.03

(A) Purpose

This rule establishes a process by which the director may order the immediate removal of a resident of a residential facility licensed in accordance with section 5123.19 of the Revised Code.

(B) Definitions

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

(1) "Compliance review" has the same meaning as in rule 5123-3-06 of the Administrative Code.

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

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

(4) "Director" means the director of the department or a person designated by the director of the department.

(5) "Immediate removal" means the process initiated upon issuance of an order by the director, for removing a resident of a residential facility when:

(a) Conditions at the residential facility present an immediate danger of physical or psychological harm to the resident; and

(b) All other available interventions have proved ineffective or infeasible.

(6) "Individual" means a person with a developmental disability or for purposes of giving, refusing to give, or withdrawing consent for services, the person's guardian in accordance with section 5126.043 of the Revised Code or other person authorized to give consent.

(7) "Individual service plan" means the written description of services, supports, and activities to be provided to an individual and includes an "individual program plan" as that term is used in 42 C.F.R. 483.440 as in effect on the effective date of this rule.

(8) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

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

(10) "Operator" means the entity responsible for management of and provision of services at the residential facility.

(11) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) Establishing grounds for immediate removal

(1) When a county board, on the basis of its investigation of a major unusual incident, determines that the physical or psychological health or safety of a resident of a residential facility is in immediate danger, the county board shall contact the director to request immediate removal. The request will include a description of the major unusual incident and/or circumstances which led to the conditions at the residential facility presenting an immediate danger of physical or psychological harm to the resident.

(2) Upon receipt of an allegation that the physical or psychological health or safety of a resident of a residential facility is in danger, the department may investigate or request a county board to investigate the allegation.

(3) When a county board requests immediate removal in accordance with paragraph (C)(1) of this rule, or when the department becomes aware of an allegation that the physical or psychological health or safety of a resident of a residential facility is in immediate danger from any other source (e.g., an individual, a compliance review, or the media), the director will determine whether the resident will be removed from the residential facility based upon information obtained by the department which may be provided by the county board or any other source including the operator if, in the opinion of the director, such communication with the operator does not threaten the health or safety of the resident.

(4) When the director determines that conditions at the residential facility present an immediate danger of physical or psychological harm to the resident and all other available interventions have proved ineffective or infeasible, the director will issue an order for immediate removal and notify:

(a) The county board;

(b) Disability rights Ohio;

(c) The operator if, in the opinion of the director, the act of notification does not threaten the health or safety of the resident; and

(d) The individual if, in the opinion of the director, the act of notification does not threaten the health or safety of the resident.

(D) Effecting immediate removal

(1) After the county board receives an order for immediate removal issued by the director, the county board shall attempt to notify the individual prior to the actual immediate removal if the department has not already done so.

(2) The county board shall be responsible for removing the resident and for arranging transportation, placement, and services in the least restrictive alternative available. The county board shall assist the individual to secure long-term housing. The county board shall ensure implementation of all components of the individual service plan, as applicable. The department will assist in facilitating placement into the least restrictive alternative available.

(E) Additional actions by director or department

(1) The department may initiate suspension of admissions or revocation of the residential facility's license in accordance with rule 5123-3-06 of the Administrative Code when a resident has been subject to immediate removal pursuant to this rule.

(2) The director, upon receipt of written information from the county board or any other reliable source indicating that the circumstances which led to the immediate removal no longer exist, may permit the resident to return to the residential facility. The director will notify the county board and disability rights Ohio when a resident returns to the residential facility following an immediate removal.

(3) When the licensee is a county board or when there are circumstances that are determined by the department to potentially present a conflict of interest, the department may investigate allegations that the physical or psychological health or safety of a resident of a residential facility is in immediate danger or may request that an investigation be conducted by another county board, a council of governments, or any other entity authorized to conduct such investigations.

Last updated December 1, 2022 at 10:46 AM

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03
Amplifies: 5123.04, 5123.19, 5124.03
Five Year Review Date: 12/1/2027
Prior Effective Dates: 12/9/1988, 9/20/2001

Rule 5123-3-08 | Licensed residential facilities - development and renovation.

• Effective: December 1, 2022
• Promulgated Under: 119.03

(A) Purpose

This rule establishes uniform standards and procedures governing the development and renovation of residential facilities subject to licensure in accordance with section 5123.19 of the Revised Code.

(B) Definitions

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

(1) "Adult" means an individual age eighteen and older.

(2) "Applicant" means a person, as defined in section 1.59 of the Revised Code, or government agency submitting a proposal and seeking approval from the department for development of licensed beds.

(3) "Child" means an individual less than age eighteen.

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

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

(6) "Development" means an applicant's plan for the operation of a licensed residential facility including a plan for modification which is subject to approval of the department.

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

(8) "Initial license" means written approval by the department to a licensee to operate a residential facility for a period of one year.

(9) "Interim license" means written approval by the department to a licensee to operate a residential facility for a period not to exceed one hundred eighty calendar days.

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

(11) "Licensed bed" means a bed in a residential facility licensed by the department pursuant to section 5123.19 of the Revised Code.

(12) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

(13) "Modification" means:

(a) A change in the identity of the licensee or operator;

(b) A significant change in ownership of a licensed residential facility that occurs as the result of an acquisition, sale of a majority interest, merger, or when a family member is added to or removed from a license held by a family-owned business;

(c) A change in the address of some or all of the licensed beds;

(d) An increase or decrease in the number of licensed beds operated at a specific address;

(e) The rebuilding of a licensed residential facility at the same address;

(f) The rebuilding of a licensed residential facility at a different address; or

(g) A change in the type or source of funding of a licensed residential facility.

(14) "Operator" means the entity responsible for the management of and provision of services at the residential facility.

(15) "Renovation" means a permanent change in the physical structure of a residential facility that results in a change in the use of the facility and/or a change in its floor plan since the most recent issuance of the facility's license.

(16) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) General principles

(1) No person or government agency may apply for a license to operate a residential facility without first obtaining development approval in accordance with this rule.

(2) The department will not approve a proposal for the development of licensed beds or issue a license under section 5123.19 of the Revised Code if the approval or issuance will cause the number of licensed beds to exceed the number of licensed beds permitted by section 5123.196 of the Revised Code.

(3) A residential facility may continue to operate at the capacity for which it is licensed as of the effective date of this rule.

(4) An applicant who has obtained approval for a development proposal will be permitted to proceed with development in accordance with the terms of the approval granted by the department.

(5) The number of licensed beds in an intermediate care facility for individuals with intellectual disabilities will not exceed six unless the department determines, based upon documentation provided by the operator, that the intermediate care facility for individuals with intellectual disabilities requires capacity greater than six to be financially viable, in which case the department may approve a capacity that is not greater than eight.

(6) The number of licensed beds in a residential facility that is not an intermediate care facility for individuals with intellectual disabilities will not exceed four.

(7) Licensed residential facilities will not exist on adjoining property sites except that licensed residential facilities operating on adjoining property sites on the effective date of this rule may continue to so operate.

(8) No more than one distinct and separate physical structure may be licensed on the same property site except that licensed residential facilities with more than one distinct and separate physical structure licensed on the same property site on the effective date of this rule may continue to so operate.

(9) Notwithstanding paragraph (C)(7) or (C)(8) of this rule, multiple apartments within an apartment building or complex of apartment buildings on the same property site may be licensed individually when the apartments serve as the best alternative for maximizing community integration.

(10) A county board may not assume ownership of a residential facility.

(D) Development proposal process

(1) An applicant shall electronically submit a development proposal to the department prior to the date of the proposed modification. The proposal will:

(a) Identify the owner of the license to operate the facility, the operator of the facility if different from the owner, the lessor of the facility if any, and any related party as defined in section 5165.01 of the Revised Code to the owner or operator of the facility.

(b) Describe the modification accurately and completely.

(c) Include an explanation when the licensee proposes to make a modification involving:

(i) A change in the address of some or all of the licensed beds;

(ii) An increase or decrease in the number of licensed beds operated at a specific address;

(iii) The rebuilding of a licensed residential facility at the same address;

(iv) The rebuilding of a licensed residential facility at a different address; or

(v) A change in the type or source of funding.

(d) Be submitted no less than sixty calendar days in advance when the licensee proposes to make a modification involving:

(i) A change in the address of some or all of the licensed beds;

(ii) The rebuilding of a licensed residential facility at the same address; or

(iii) The rebuilding of a licensed residential facility at a different address.

(2) In reviewing a development proposal, the department will consider:

(a) The extent to which the development proposal supports integration into the community;

(b) The objective of reducing the number of beds at a single site;

(c) The objective of reducing the number of beds in a single building;

(d) The outcome of prior compliance reviews;

(e) The need for services in the local community;

(f) The need for capital improvements at the residential facility;

(g) For licensed beds in a residential facility that is not an intermediate care facility for individuals with intellectual disabilities, compatibility with home and community-based character set forth by the centers for medicare and medicaid services;

(h) The provider's ability to meet the financial requirements of the development proposal; and

(i) The county board's recommendation regarding the development proposal.

(3) The department will electronically notify the applicant of the approval or disapproval of the development proposal together with a statement of reason within sixty calendar days of receipt of a complete application. The department will maintain on its website a list of development proposals and action taken thereon.

(4) The department will establish specific timelines for implementation of a development proposal at the time of development approval.

(a) Failure to meet established timelines may result in withdrawal of development approval.

(b) Revisions or extensions to established timelines require prior written approval by the department.

(E) Feasibility analysis

(1) The department will conduct a feasibility analysis prior to issuance of an initial or modified license for:

(a) A change in the address of some or all of the licensed beds;

(b) An increase in the number of licensed beds operated at a specific address;

(c) The rebuilding of a residential facility at the same address; or

(d) The rebuilding of a residential facility at a different address.

(2) A person or government agency shall, after obtaining development approval in accordance with paragraph (D)(3) of this rule, electronically notify the department to initiate scheduling of the feasibility analysis.

(3) The department will confirm the date for the feasibility analysis which may be conducted in-person or remotely using technology.

(4) The feasibility analysis will include a review of the physical environment and configuration of the facility to ensure the facility is in compliance with requirements set forth in rule 5123-3-02 of the Administrative Code.

(5) Any findings of non-compliance identified during the feasibility analysis will be corrected by the licensee prior to issuance of an initial or modified license.

(F) Issuance of license

(1) A person or government agency desiring to operate a residential facility shall, after obtaining development approval pursuant to this rule and establishing the facility, notify the department in writing to request issuance of the initial license no less than thirty calendar days prior to the date of the planned opening of the facility.

(2) The department will issue the initial license to the licensee within twenty calendar days of determining the residential facility is in compliance with all requirements and collection of the licensure fee which:

(a) Is based on the number of licensed beds at the residential facility, that is:

(i) One hundred dollars for a residential facility with fifteen or fewer beds; and

(ii) Five hundred dollars for a residential facility with sixteen or more beds.

(b) Will be paid by electronic check or credit card.

(c) Is non-refundable.

(3) The department may issue an interim license when it determines initiation or continuation of services at the residential facility is appropriate pending completion of the development process (e.g., while a licensee is awaiting certification by the Ohio department of health as an intermediate care facility for individuals with intellectual disabilities).

(4) A person or government agency submitting a development proposal to place a licensed bed on hold for future development will have three hundred sixty-five calendar days from the date of approval of the development proposal to apply for a license for the residential facility. The application for a license will be submitted to the department no less than sixty calendar days prior to the date of the planned opening of the facility.

(5) The applicant may appeal the decision of the department regarding a development proposal in accordance with rule 5123:2-17-01 of the Administrative Code.

(G) Renovation proposal process

(1) When the licensee proposes to make a renovation to a residential facility, the licensee shall electronically notify the department no less than thirty calendar days in advance of beginning such renovation.

(2) The licensee shall provide any information required by the department in order for the department to determine whether new inspections and/or a compliance review is required following the renovation.

(3) The department will electronically notify the licensee of the approval or disapproval of the licensee's renovation proposal within fourteen calendar days after receiving all the information it needs to determine whether new inspections and/or a licensure compliance review is required following the renovation.

Last updated December 1, 2022 at 10:47 AM

Supplemental Information

Authorized By: 5123.04, 5123.042, 5123.19, 5124.03
Amplifies: 5123.04, 5123.042, 5123.19, 5124.03
Five Year Review Date: 12/1/2027
Prior Effective Dates: 6/12/1981, 12/5/1986, 8/1/1987, 10/12/1987, 2/1/1990 (Emer.), 1/8/1994, 12/5/1996 (Emer.), 3/20/1997, 8/12/2002, 1/17/2005, 11/12/2012

Rule 5123-3-09 | Licensed residential facilities - standards for evaluating potential receivers.

• Effective: December 1, 2022
• Promulgated Under: 119.03

(A) Purpose

This rule establishes standards for evaluating potential receivers of residential facilities licensed in accordance with section 5123.19 of the Revised Code.

(B) Definitions

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

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

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

(3) "Receiver" means a person who takes possession of and operates a residential facility when conditions existing at the residential facility present a substantial risk of physical or mental harm to residents and no other remedies at law are adequate to protect the health, safety, and welfare of the residents.

(4) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) Eligibility to be considered for inclusion on list of potential receivers

To be considered for inclusion on a list of potential receivers maintained by the department, a person must have at least five years of experience as a provider licensed to operate a residential facility in Ohio in accordance with section 5123.19 of the Revised Code.

(D) Standards for evaluating potential receivers

The standards to be considered by the department for evaluating persons to be included on a list of potential receivers include, but are not limited to:

(1) Substantial compliance with requirements for previous or existing residential facilities operated by the potential receiver over the past five years under any corporate name.

(2) Involvement of one or more key employees of the potential receiver in prior licensure revocation, receivership, immediate removal, or suspension of admissions.

(3) Fiscal solvency of the potential receiver.

(4) Pending and prior investigations of major unusual incidents within the past five years, which includes the scope and nature of the incidents, the analysis, and any findings involving individuals being served by the potential receiver.

(5) The experience of the potential receiver in the provision of services to individuals with developmental disabilities including, but not limited to:

(a) Characteristics of individuals served;

(b) Geographic areas served;

(c) Number of individuals served;

(d) Specialized services offered; and

(e) A table of organization that identifies key employees or positions and their qualifications.

Last updated December 1, 2022 at 10:47 AM

Supplemental Information

Authorized By: 5123.04, 5123.19, 5124.03
Amplifies: 5123.04, 5123.19, 5123.191, 5124.03
Five Year Review Date: 12/1/2027
Prior Effective Dates: 9/20/2001, 7/1/2007

Rule 5123-3-10 | Licensed residential facilities - procedures to waive rule requirements.

• Effective: November 19, 2020
• Promulgated Under: 119.03

(A) Purpose

This rule sets forth procedures for the director to waive a condition or specific requirement of a rule in Chapter 5123:2-3 of the Administrative Code or a rule in another chapter of the Administrative Code adopted by the department to license or regulate the operation of residential facilities.

(B) Definitions

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

(1) "Business day" means a day of the week, excluding Saturday, Sunday, or a legal holiday as defined in section 1.14 of the Revised Code.

(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) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

(5) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code.

(C) Procedures

(1) For good cause, the director may waive a condition or specific requirement of a rule in Chapter 5123:2-3 of the Administrative Code or a rule in another chapter of the Administrative Code adopted by the department to license or regulate the operation of residential facilities. The director's decision to waive a condition or specific requirement shall not be contrary to the rights, health, or safety of individuals living in a residential facility.

(2) A licensee may initiate a request for the director to waive a condition or specific requirement by submitting the request in writing.

(a) The director may require or solicit input regarding the licensee's request from individuals living in the residential facility, the individuals' guardians, or the county board of developmental disabilities for the county in which the residential facility is located.

(b) The director shall grant or deny a request submitted by a licensee within ten business days of receipt of the request or within such longer period of time as the director deems necessary.

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

(d) 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
Amplifies: 5123.04, 5123.19, 5124.03
Five Year Review Date: 11/19/2025
Prior Effective Dates: 4/27/2000

Rule 5123-3-11 | Licensed residential facilities - room and board.

• Effective: December 1, 2022
• Promulgated Under: 119.03

(A) Purpose

This rule identifies components of room and board and establishes standards and procedures for determining the amount of earned income and unearned income retained by an individual as personal funds and the amount of room and board for which an individual is responsible when residing in a residential facility licensed in accordance with section 5123.19 of the Revised Code other than an intermediate care facility for individuals with intellectual disabilities.

(B) 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) "Earned income" means wages and net earnings from employment or self-employment.

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

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

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

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

(8) "Licensee" has the same meaning as in section 5123.19 of the Revised Code.

(9) "Patient liability" means the individual's financial obligation toward the medicaid cost of care. Patient liability will be satisfied in accordance with rule 5160:1-6-07.1 of the Administrative Code.

(10) "Personal funds" means earned income and unearned income retained by an individual after satisfying obligations such as rent, individual-specific expenses, or medical co-payments; satisfying state requirements including patient liability and/or monthly premiums for services funded by a home and community-based services waiver; and satisfying federal requirements including adherence to income restrictions necessary to maintain medicaid eligibility.

(11) "Residential facility" has the same meaning as in section 5123.19 of the Revised Code, except that for purposes of this rule, "residential facility" does not include an intermediate care facility for individuals with intellectual disabilities.

(12) "Room and board" means items, costs, and/or expenses, which are not reimbursable through medicaid or another payer, incurred by the licensee in order to provide needed supports and services to an individual residing in a residential facility. Room and board reflects the licensee's actual and reasonable costs and includes individual-specific expenses based on the support provided to each individual who resides in the residential facility to implement the individual's individual service plan and residential facility costs.

(a) Individual-specific expenses include:

(i) Adaptive minor equipment, routine medical supplies, and over-the-counter medications.

(ii) Healthcare-related expenses and medical equipment such as dental services, eyeglasses, wheelchairs, and catheters.

(iii) Personal hygiene supplies such as hair and nail care items, lotions, powder, dental hygiene supplies, shaving items, and the cost of haircuts.

(iv) The cost of recreational and/or social activities such as an admission ticket and travel (but never staff wages) for an individual and for staff, as specified in the individual service plan, necessary to accompany the individual to recreational and/or social activities.

(v) An individual's clothing.

(vi) Atypical supplies required for the protection of an individual and staff while performing procedures that involve potential contact with bodily fluids including, but not limited to, gowns, goggles, and eye wash.

(b) Residential facility costs include:

(i) Administrative overhead expenses directly related to property management of the residential facility.

(ii) Utilities including fuel oil, natural and propane gas, metered electrical service, water and sewage expenses, local and long distance telephone service, equipment purchased or leased for use by residents, and the cost of security services provided for the benefit of residents.

(iii) The cost of basic television and internet services provided for the benefit of residents.

(iv) The cost of food, after food stamps and other available resources are expended, including all raw, prepackaged, and prepared food (meals and/or snack items) eaten inside or outside the home (e.g., at restaurants) by the residents and like expenses for staff if consumed while providing supervision or services to the residents.

(v) Rental or lease costs for building and land limited to the lesser of actual cost or fair market value and insurance on contents.

(vi) Depreciation for a residential facility owned by the licensee (excluding the value of the land) using the straight line method of depreciation over forty years and interest expense as incurred, real property taxes, and insurance on contents and property. Excludes amortization expense over the life of state property grants received by the licensee for renovations.

(vii) Maintenance and repair of the residential facility including, but not limited to, lawn care, trash removal, pest control, carpet cleaning, and repair to minor equipment or structure.

(viii) Depreciation and current interest expense of residential facility equipment, furniture, and other furnishings that meet the licensee's capitalization policy, using the straight line method of depreciation. Guidelines established by the internal revenue service will be used to determine the number of years of useful life of the asset to be depreciated.

(ix) Lease or rental of residential facility equipment, furniture, and other furnishings and/or the cost of equipment, furniture, and other furnishings under the capitalization policy of the licensee.

(x) Major maintenance to a residential facility owned by the licensee to improve and/or maintain the structural integrity of the facility and to maintain a safe and healthy living environment including, but not limited to, roof replacement; repairs to the foundation, walls, floors, electrical, heating and cooling, plumbing, or septic and sewer systems; additions or renovations that benefit the residents; and interest expense if funds were borrowed to complete the work. The straight line method of depreciation will be used for depreciating all improvements. Improvements will be depreciated over a period not less than the remaining useful life of the property and not more than the useful life of the improvement as determined by the internal revenue service.

(xi) Non-food supplies and minor equipment used in the storage, preparation, serving, and delivery of food such as dishes, dish washing detergent, cooking utensils, silverware, wraps and containers to preserve food, and propane gas for grills.

(xii) Household costs including, but not limited to, trash cans and bags, general household cleaning supplies, paper products, towels, bedding, laundry, and minor equipment used for laundry and housekeeping.

(13) "Unearned income" means all income that is not earned income, including, but not limited to, social security disability income, supplemental security income, other benefits an individual receives, and monetary gifts.

(C) General provisions

(1) For the purposes of this rule, earned income and unearned income will be considered in the month it is received.

(2) A county board is permitted to recoup earned income and unearned income received by an individual from a non-routine event (e.g., social security back payment, tax refund, or inheritance) for payment of past room and board, not to exceed twelve months. An individual will not be charged for prepayment of future room and board as a result of receiving earned income or unearned income from a non-routine event.

(3) The total amount of room and board available to support residents of residential facilities in a county will align with the plan and priorities established by the county board in accordance with section 5126.04 of the Revised Code and be based upon available resources of the county board.

(4) When a licensee operates more than one residential facility in a county, the individual-specific expenses component of room and board and/or the residential facility costs component of room and board may be determined separately for each facility or by aggregating costs across all facilities to arrive at an average. The county board and licensee shall jointly establish which method will be used. The total room and board rate may vary among facilities based on identified individual-specific expenses.

(5) The amount of room and board to be paid to a licensee by a county board will be identified in a written contract between the licensee and the county board which will be made available upon request by the department. Room and board costs will be reviewed by the county board and the licensee at least annually and amended as necessary.

(6) A county board and licensee shall share information as necessary for determination of reasonable and appropriate room and board. The county board and licensee shall work together to resolve differences regarding room and board.

(D) Personal funds retained by the individual

(1) Each individual shall retain as personal funds the first one hundred dollars per month from the individual's earned income plus one-half of the individual's earned income in excess of one hundred dollars.

(2) Each individual shall retain as personal funds at least one hundred dollars per month from the individual's unearned income. Food stamps, although unearned income, will not be applied toward the personal funds to be retained by the individual.

(3) When the sum of an individual's earned income and unearned income is less than one hundred dollars per month, the county board shall provide the individual with the difference, up to one hundred dollars, for the individual to retain as personal funds.

(E) Responsibilities of the county board

(1) The county board shall identify assets of the individual, resources, and alternatives to assist the individual to meet room and board. Unusual or atypical room and board expenses, resources, and responsible entities will be identified in the individual service plan.

(2) The county board is responsible for paying the licensee the amount owed to the licensee for room and board based on the contract established in accordance with paragraph (C)(5) of this rule, adjusted for earned income and unearned income of the individual as calculated in accordance with paragraph (D) of this rule.

(F) Responsibilities of the licensee

The licensee is responsible for calculating and documenting the sum of the individual's earned income and unearned income available for room and board as determined in accordance with paragraph (D) of this rule and shall compare it to the room and board amount identified in the contract established in accordance with paragraph (C)(5) of this rule.

(1) If the sum of the individual's earned income and unearned income minus the amount the individual is entitled to retain in accordance with paragraph (D) of this rule is less than the contracted room and board for the month, the entire amount of the individual's earned income and unearned income minus the amount the individual is entitled to retain will be paid to the licensee. The balance of the room and board cost will be billed to the county board by the licensee in accordance with the contract.

(2) If the sum of the individual's earned income and unearned income minus the amount the individual is entitled to retain in accordance with paragraph (D) of this rule is greater than the contracted room and board for the month, the individual shall pay the entire cost of the room and board to the licensee. An individual shall retain as personal funds any earned income and unearned income that exceeds the individual's obligation for room and board.

(G) Responsibilities of the individual, guardian, and/or payee

(1) The individual, guardian, or payee of the individual, as applicable, is responsible for providing the licensee and county board with information pertaining to the individual's earned income and unearned income in order to determine the individual's obligation to pay for room and board.

(2) The individual, guardian, or payee of the individual, as applicable, is responsible for paying the licensee the amount owed to the licensee for room and board in a timely manner and in accordance with the residency agreement required pursuant to rule 5123-9-02 of the Administrative Code.

Last updated December 1, 2022 at 10:47 AM

Supplemental Information

Authorized By: 5123.04, 5123.19
Amplifies: 5123.04, 5123.19
Five Year Review Date: 12/1/2027
Prior Effective Dates: 7/1/2008