Chapter 5160-33 | Assisted living HCBS waiver program

Rule 5160-33-02 | Definitions for the assisted living home and community based services waiver (HCBS) program.

• Effective: October 13, 2022
• Promulgated Under: 119.03

(A) The purpose of this rule is to define the terms used in Chapter 5160-33 of the Administrative Code governing the medicaid assisted living HCBS waiver program.

As used in this chapter:

(B) "Assessment" means a face-to-face evaluation used to obtain information about an individual including his or her condition, personal goals and preferences, functional limitations, health status and other factors that are relevant to the authorization and provision of services. Assessment information supports the determination an individual needs waiver services as well as the development of a person-centered services plan.

(C) "Assisted living HCBS waiver program" means the medicaid-funded component of the assisted living program created under section 173.54 of the Revised Code and approved by the centers for medicare and medicaid services.

(D) "CDJFS" means a county department of job and family services.

(E) "CMS" means the centers for medicare and medicaid services, a federal agency that is part of the United States department of health and human services, and administers the medicaid program and approves HCBS waivers.

(F) "Certified" or "certification" means a provider's state of being certified by the Ohio department of aging (ODA) as an assisted living provider pursuant to Chapter 173-39 of the Administrative Code or the certification ODA gives to a certified assisted living provider.

(G) "HCBS" or "home and community-based services" means services furnished under the provisions set forth in 42 C.F.R. Part 441 Subpart G (October 1, 2021) that permit individuals to live in a home setting rather than a nursing facility (NF) or hospital. HCBS waiver services are approved by CMS for specific populations and are not otherwise available under the medicaid state plan.

(H) "Home first" means the component of the assisted living HCBS waiver program that offers priority enrollment in the waiver to certain individuals in accordance with section 173.542 of the Revised Code.

(I) "Individual" is a person enrolled on the assisted living HCBS waiver.

(J) "Level of care" (LOC) means the designation describing an individual's functional levels and nursing needs pursuant to the criteria set forth in rules 5160-3-05, 5160-3-06, and 5160-3-08 of the Administrative Code.

(K) The Ohio department of aging (ODA) is responsible for the daily operation of the assisted living home and community based services (HCBS) waiver. ODA will operate this waiver pursuant to an interagency agreement with the Ohio department of medicaid (ODM) in accordance with sections 5162.35 and 5166.21 of the Revised Code. ODA will establish processes and procedures to enroll individuals on this waiver.

(L) "ODA's designee" has the same meaning as in rule 173-39-01 of the Administrative Code.

(M) "Residential care facility" means a residential care facility as defined in section 3721.01 of the Revised Code that is issued a license pursuant to section 3721.02 of the Revised Code.

(N) "Room and board" means a payment made by an individual enrolled in the assisted living waiver directly to the ODA certified assisted living waiver provider. When paying "room" the individual will not be charged for the same furnishings and other shelter expenses the residential care facility provides at no cost to private pay non-waiver residents pursuant to the facility's resident agreement. The term "board" means three meals a day or any other full nutritional regimen.

Room and board does not include charges for ancillary items, services, and/or social activities purchased or paid for by the individual including hygiene and supplies not provided through medicaid and reflected on the individual's person-centered services plan, recreation and activities, and/or other items or services purchased by the individual; however ODA certified assisted living providers may, at their own discretion, provide ancillary items, services and/or social activities as part of the room and board payment.

(O) "Person-centered services plan" has the same meaning as in rule 5160-44-02 of the Administrative Code.

Last updated October 13, 2022 at 8:12 AM

Supplemental Information

Authorized By: 5166.02
Amplifies: 173.54
Five Year Review Date: 10/13/2027
Prior Effective Dates: 7/1/2006, 12/31/2009, 4/1/2017

Rule 5160-33-03 | Eligibility for the medicaid funded component of the assisted living program.

• Effective: September 7, 2023
• Promulgated Under: 119.03

(A) The purpose of this rule is to outline the requirements that must be met for an individual to be eligible to enroll in the medicaid funded component of the assisted living program.

(B) To be eligible for the medicaid funded component of the assisted living program, an individual must meet all of the following:

(1) Be eligible for medicaid in accordance with Chapters 5160:1-3 to 5160:1-6 of the Administrative Code.

(2) Have an intermediate or skilled level of care in accordance with rule 5160-3-08 of the Administrative Code. If the individual requires skilled nursing care beyond supervision of special diets, application of dressings, or administration of medication, it must be provided in accordance with rule 3701-16-09.1 of the Administrative Code.

(3) Be age twenty-one years old or older at the time of enrollment.

(4) Participate in the development of a person-centered services plan in accordance with the process and requirements set forth in rule 5160-44-02 of the Administrative Code.

(5) Have the ability to make room and board payments calculated at the current supplemental security income (SSI) federal benefit level minus fifty dollars. Providers shall not charge or collect room and board payments from individuals in excess of the room and board payment calculated in accordance with this paragraph. In the event an individual does not have sufficient personal income:

(a) An individual may arrange for informal supports to provide a supplemental payment to the provider in order to meet room and board requirements;

(i) The supplemental payment shall represent no more than the difference between the individual's personal income and the maximum room and board payment established in paragraph (B)(5) of this rule.

(ii) The amount of the supplemental payment shall not be considered when calculating the individual's patient liability as described in rule 5160:1-6-07.1 of the Administrative Code.

(b) A provider may elect to accept a reduced room and board rate.

(6) Have health and safety related needs met, as determined by the Ohio department of aging's (ODA) designee.

(C) The individual must reside in a residential care facility (RCF) licensed by the Ohio department of health. At the time of initial and continued enrollment, the individual must reside in a resident unit that meets the qualifications in rule 173-39-02.16 of the Administrative Code and possesses the home and community-based setting characteristics set forth in rule 5160-44-01 of the Administrative Code.

(D) If, at any time, the individual does not meet any of the eligibility requirements identified in this rule, the individual shall be denied or disenrolled from the assisted living HCBS waiver. In such instances, the individual shall be notified of his or her hearing rights in accordance with division 5101:6 of the Administrative Code.

Last updated September 7, 2023 at 8:18 AM

Supplemental Information

Authorized By: 5166.02
Amplifies: 173.54
Five Year Review Date: 9/7/2028
Prior Effective Dates: 9/19/2009, 11/25/2016

Rule 5160-33-04 | Enrollment process for medicaid-funded component of the assisted living waiver program.

• Effective: October 17, 2020
• Promulgated Under: 119.03

(A) The purpose of this rule is to outline the requirement that must be met for an individual to enroll in the medicaid-funded component of the assisted living waiver program.

(B) To be eligible for enrollment, an individual must:

(1) Have been determined to meet the eligibility requirements set forth in rule 5160-33-03 of the Administrative Code; and

(2) Upon initial and continued enrollment, reside in an approved living unit in accordance with paragraph (C) of rule 173-38-03 of the Administrative Code, located in a licensed residential care facility (RCF) certified by the Ohio department of aging (ODA) that possesses the home and community-based setting characteristics set forth in rule 5160-44-01 of the Administrative Code.

(C) If the individual has been determined eligible and the medicaid component of the assisted living waiver program has not reached the centers for medicare and medicaid services (CMS) authorized limit of participants for the current year, the individual shall be enrolled in accordance with the assisted living waiver program's home first component, if applicable, and rule 173-38-03 of the Administrative Code.

(D) Pursuant to Chapters 5160:1-3 to 5160:1-6 of the Administrative Code, if an individual is determined eligible for medicaid by the county department of job and family services, the individual shall not enroll in the assisted living waiver program until ODA's designee establishes a waiver program enrollment date and authorizes the provision of waiver services by an ODA certified assisted living provider. The waiver program enrollment date shall in no way restrict retroactive eligibility for non-assisted living waiver services available to individuals through the medicaid state plan.

(E) Any applicant for the assisted living waiver program is entitled to notice and hearing rights as set forth in section 5101.35 of the Revised Code and division 5101:6 of the Administrative Code.

Supplemental Information

Authorized By: 5166.02
Amplifies: 173.54
Five Year Review Date: 10/1/2024
Prior Effective Dates: 9/19/2009, 9/29/2011

Rule 5160-33-05 | Provider conditions of participation for the assisted living home and community based services (HCBS) waiver program.

• Effective: October 13, 2022
• Promulgated Under: 119.03

(A) The purpose of this rule is to establish the conditions under which providers are able to participate in the assisted living HCBS waiver program.

(B) In order to obtain a medicaid provider agreement to be an assisted living services provider, the provider will be certified by the Ohio department of aging (ODA) as an assisted living provider in accordance with Chapter 173-39 of the Administrative Code.

(C) Individuals enrolled in the assisted living HCBS waiver are given a free choice of qualified providers in accordance with rule 173-42-06 of the Administrative Code and 42 C.F.R. 431.51 (as in effect on October 1, 2021).

Last updated October 13, 2022 at 8:13 AM

Supplemental Information

Authorized By: 5166.02
Amplifies: 173.54
Five Year Review Date: 10/13/2027
Prior Effective Dates: 7/1/2006

Rule 5160-33-06 | Covered services for the assisted living services home and community based services (HCBS) waiver program.

• Effective: October 13, 2022
• Promulgated Under: 119.03

(A) The purpose of this rule is to establish the services covered by the assisted living HCBS waiver program.

(B) The assisted living HCBS waiver program is limited to the following services:

(1) Assisted living service as defined in rule 173-39-02.16 of the Administrative Code, and

(2) Community transition service as defined in rule 173-39-02.17 of the Administrative Code.

(C) Services are delivered in accordance with the individual's person-centered services plan.

Last updated October 13, 2022 at 8:13 AM

Supplemental Information

Authorized By: 5166.02
Amplifies: 173.54
Five Year Review Date: 10/13/2027
Prior Effective Dates: 7/1/2006

Rule 5160-33-07 | Assisted living home and community based services (HCBS) waiver rate setting.

• Effective: July 1, 2019
• Promulgated Under: 119.03

(A) The purpose of this rule is to describe the methods used to determine provider rates for the assisted living HCBS waiver as set forth in appendix A to rule 5160-1-06.5 of the Administrative Code.

(B) Provider rates are determined for the following categories:

(1) Per-job bid rate or deposit made.

(2) Unit rate.

(C) A per-job bid rate or deposit made shall be determined on a per-job basis for the community transition service as set forth in rule 173-39-02.17 of the Administrative Code. The cost per job shall be paid at a per-job bid rate that is negotiated and approved by Ohio department of aging's (ODA) designee and accepted by the individual. The per-job bid rate includes the items and supports set forth in rule 173-39-02.17 of the Administrative Code and authorized on the person-centered services plan.

(D) A unit rate shall be based on a three-tiered model, and shall not exceed the amounts in appendix A to rule 5160-1-06.5 of the Administrative Code. These rates are used for assisted living services as set forth in rule 173-39-02.16 of the Administrative Code.

(1) The rate for assisted living services for each individual shall be determined by the ODA's designee through an assessment of the individual's service needs in four areas:

(a) Cognitive impairments,

(b) Medication administration,

(c) Nursing services, and

(d) Functional impairments.

(2) The ODA-certified assisted living provider must agree to provide the services in the individual's person-centered service plan at the rate determined by the assessment.

(E) ODA certified assisted living providers shall only be paid for assisted living services authorized by ODA's designee and reflected on the individual's person-centered service plan.

(F) Assisted living service payment constitutes payment in full and may not be construed as a partial payment when the payment amount is less than the provider's charge. The provider may not bill an individual enrolled in the assisted living program for any difference between the medicaid payment and the provider's charge or request that the individual share in the cost through a co-payment or other similar charge.

(G) The assisted living service payment is for assisted living services as defined in rule 173-39-02.16 of the Administrative Code and does not include payment for room and board as calculated pursuant to rule 5160-33-03 of the Administrative Code, which is the responsibility of the individual.

Supplemental Information

Authorized By: 5166.02
Amplifies: 173.54
Five Year Review Date: 7/1/2024
Prior Effective Dates: 9/29/2011