(A) Purpose
This rule establishes the requirements for addressing major
unusual incidents and unusual incidents and implements a continuous quality
improvement process to prevent or reduce the risk of harm to
individuals.
(B) Scope
This rule applies to county boards, developmental centers, and
providers of services to individuals with developmental disabilities.
(C) Definitions
For the purposes of this rule, the following definitions shall
apply:
(1) "Administrative
investigation" means the gathering and analysis of information related to a
major unusual incident so that appropriate action can be taken to address any
harm or risk of harm and prevent recurrence. There are three administrative
investigation procedures (category A, category B, and category C) that
correspond to the three categories of major unusual incidents.
(2) "Agency provider" means a provider,
certified or licensed by the department that employs staff to deliver services
to individuals and who may subcontract the delivery of services. "Agency
provider" includes a county board while the county board is providing
specialized services.
(3) "At-risk
individual" means an individual whose health or welfare is adversely affected
or whose health or welfare may reasonably be considered to be in danger of
being adversely affected.
(4)
"Common law employee" has the same meaning as in rule
5123-9-32
of the Administrative Code.
(5)
"County board" means a county board of developmental disabilities as
established under Chapter 5126. of the Revised Code or a regional council of
governments as established under Chapter 167. of the Revised Code when it
includes at least one county board.
(6) "Department" means the Ohio department of
developmental disabilities.
(7)
"Developmental center" means an intermediate care facility for individuals with
intellectual disabilities under the managing responsibility of the
department.
(8) "Developmental
disabilities employee" means:
(a) An employee
of the department;
(b) A
superintendent, board member, or employee of a county board;
(c) An administrator, board member, or
employee of a residential facility licensed under section
5123.19 of the Revised
Code;
(d) An administrator, board
member, or employee of any other public or private provider of services to an
individual with a developmental disability; or
(e) An independent provider.
(9) "Incident report" means
documentation that contains details about a major unusual incident or an
unusual incident and shall include, but is not limited to:
(a) Individual's name;
(b) Individual's address;
(c) Date of incident;
(d) Location of incident;
(e) Description of incident;
(f) Type and location of injuries;
(g) Immediate actions taken to ensure health
and welfare of individual involved and any at-risk individuals;
(h) Name of primary person involved and his
or her relationship to the individual;
(i) Names of witnesses;
(j) Statements completed by persons who
witnessed or have personal knowledge of the incident;
(k) Notifications with name, title, and time
and date of notice;
(l) Further
medical follow-up; and
(m) Name and
signature of person completing the incident report.
(10) "Incident tracking system" means the
department's web-based system for reporting major unusual incidents.
(11) "Independent provider" means a
self-employed person or a common law employee who provides services for which
he or she must be certified in accordance with rules promulgated by the
department and does not employ, either directly or through contract, anyone
else to provide the services.
(12)
"Individual" means a person with a developmental disability.
(13) "Individual served" means an individual
who receives specialized services.
(14) "Intermediate care facility for
individuals with intellectual disabilities" has the same meaning as in section
5124.01 of the Revised
Code.
(15) "Investigative agent"
means an employee of a county board or a person under contract with a county
board who is certified by the department to conduct administrative
investigations of major unusual incidents.
(16) "Major unusual incident" means the
alleged, suspected, or actual occurrence of an incident described in paragraph
(C)(16)(a), (C)(16)(b), or (C)(16)(c) of this rule when there is reason to
believe the incident has occurred. There are three categories of major unusual
incidents that correspond to three administrative investigation procedures
delineated in appendix A, appendix B, and appendix C to this rule:
(a) Category A
(i) Accidental or suspicious death.
"Accidental or suspicious death" means the death of an individual resulting
from an accident or suspicious circumstances.
(ii) Exploitation. "Exploitation" means the
unlawful or improper act of using an individual or an individual's resources
for monetary or personal benefit, profit, or gain.
(iii) Failure to report. "Failure to report"
means that a person, who is required to report pursuant to section
5123.61 of the Revised Code, has
reason to believe that an individual has suffered or faces a substantial risk
of suffering any wound, injury, disability, or condition of such a nature as to
reasonably indicate abuse, neglect, misappropriation, or exploitation that
results in a risk to health and welfare of that individual, and such person
does not immediately report such information to a law enforcement agency, a
county board, or, in the case of an individual living in a developmental
center, either to law enforcement or the department. Pursuant to division
(C)(1) of section 5123.61 of the Revised Code,
such report shall be made to the department and the county board when the
incident involves an act or omission of an employee of a county
board.
(iv) Misappropriation.
"Misappropriation" means depriving, defrauding, or otherwise obtaining the real
or personal property of an individual by any means prohibited by the Revised
Code, including Chapters 2911. and 2913. of the Revised Code.
(v) Neglect. "Neglect" means when there is a
duty to do so, failing to provide an individual with medical care, personal
care, or other support that consequently results in serious injury or places an
individual or another person at risk of serious injury. Serious injury means an
injury that results in treatment by a physician, physician assistant, or nurse
practitioner.
(vi) Physical abuse.
"Physical abuse" means the use of physical force that can reasonably be
expected to result in physical harm to an individual. Such physical force may
include, but is not limited to, hitting, slapping, pushing, or throwing objects
at an individual.
(vii) Prohibited
sexual relations. "Prohibited sexual relations" means a developmental
disabilities employee engaging in consensual sexual conduct or having
consensual sexual contact with an individual who is not the employee's spouse,
and for whom the developmental disabilities employee was employed or under
contract to provide care or supervise the provision of care at the time of the
incident.
(viii) Rights code
violation. "Rights code violation" means any violation of the rights enumerated
in section 5123.62 of the Revised Code that
creates a likely risk of harm to the health or welfare of an
individual.
(ix) Sexual abuse.
"Sexual abuse" means unlawful sexual conduct or sexual contact as those terms
are defined in section
2907.01 of the Revised Code and
the commission of any act prohibited by Chapter 2907. of the Revised Code
(e.g., public indecency, importuning, and voyeurism) when the sexual conduct,
sexual contact, or act involves an individual.
(x) Verbal abuse. "Verbal abuse" means the
use of words, gestures, or other communicative means to purposefully threaten,
coerce, intimidate, harass, or humiliate an individual.
(b) Category B
(i) Attempted suicide. "Attempted suicide"
means a physical attempt by an individual that results in emergency room
treatment, in-patient observation, or hospital admission.
(ii) Death other than accidental or
suspicious death. "Death other than accidental or suspicious death" means the
death of an individual by natural cause without suspicious
circumstances.
(iii) Medical
emergency. "Medical emergency" means an incident where emergency medical
intervention is required to save an individual's life (e.g., choking relief
techniques such as back blows or cardiopulmonary resuscitation, use of an
automated external defibrillator, or use of an epinephrine auto
injector).
(iv) Missing individual.
"Missing individual" means an incident that is not considered neglect and an
individual's whereabouts, after immediate measures taken, are unknown and the
individual is believed to be at or pose an imminent risk of harm to self or
others. An incident when an individual's whereabouts are unknown for longer
than the period of time specified in the individual service plan that does not
result in imminent risk of harm to self or others shall be investigated as an
unusual incident.
(v) Peer-to-peer
act. "Peer-to-peer act" means any of the following incidents involving two
individuals:
(a) Exploitation which means the
unlawful or improper act of using another individual or another individual's
resources for monetary or personal benefit, profit, or gain.
(b) Theft which means intentionally depriving
another individual of real or personal property valued at twenty dollars or
more or property of significant personal value to the individual.
(c) Physical act which means a physical
altercation that:
(i) Results in examination
or treatment by a physician, physician assistant, or nurse practitioner;
or
(ii) Involves strangulation, a
bloody nose, a bloody lip, a black eye, a concussion, or biting which causes
breaking of the skin; or
(iii)
Results in an individual being arrested, incarcerated, or the subject of
criminal charges.
(d)
Sexual act which means sexual conduct and/or contact for the purposes of sexual
gratification without the consent of the other individual.
(e) Verbal act which means the use of words,
gestures, or other communicative means to purposefully threaten, coerce, or
intimidate the other individual when there is the opportunity and ability to
carry out the threat.
(vi) Significant injury. "Significant injury"
means an injury to an individual of known or unknown cause that is not
considered abuse or neglect and that results in concussion, broken bone,
dislocation, second or third degree burns or that requires immobilization,
casting, or five or more sutures. Significant injuries shall be designated in
the incident tracking system as either known or unknown cause.
(c) Category C
(i) Law enforcement. "Law enforcement" means
any incident that results in the individual served being tased, arrested,
charged, or incarcerated.
(ii)
Unanticipated hospitalization. "Unanticipated hospitalization" means any
hospital admission or hospital stay over twenty-four hours that is not
pre-scheduled or planned. A hospital admission associated with a planned
treatment or pre-existing condition that is specified in the individual service
plan indicating the specific symptoms and criteria that require hospitalization
need not be reported.
(iii)
Unapproved behavioral support. "Unapproved behavioral support" means the use of
a prohibited measure as defined in rule
5123:2-2-06
5123-2-06
of the Administrative Code or the use of a restrictive measure implemented
without approval of the human rights committee or without informed consent of
the individual or the individual's guardian in accordance with rule
5123:2-2-06
5123-2-06 of the Administrative Code, when use of the
prohibited measure or restrictive measure results in risk to the individual's
health or welfare. When use of the prohibited measure or restrictive measure
does not result in risk to the individual's health or welfare, the incident
shall be investigated as an unusual incident.
(17) "Physical harm" means any injury,
illness, or other physiological impairment, regardless of its gravity or
duration.
(18) "Primary person
involved" means the person alleged to have committed or to have been
responsible for the accidental or suspicious death, exploitation, failure to
report, misappropriation, neglect, physical abuse, prohibited sexual relations,
rights code violation, sexual abuse, or verbal abuse.
(19) "Program implementation incident" means
an unusual incident involving the failure to carry out a person-centered plan
when such failure causes minimal risk or no risk. Examples include, but are not
limited to, failing to provide supervision for short periods of time,
automobile accidents without harm, and self-reported incidents with minimal
risk.
(20) "Provider" means an
agency provider or an independent provider.
(21) "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.
(22) "Specialized
services" means any program or service designed and operated to serve primarily
individuals, including a program or service provided by an entity licensed or
certified by the department.
(23)
"Systems issue" means a substantiated major unusual incident attributed to
multiple variables.
(24) "Team"
means, as applicable:
(a) The group of
persons chosen by an individual with the core responsibility to support the
individual in directing development of his or her individual service plan. The
team includes the individual's guardian or adult whom the individual has
identified, as applicable, the service and support administrator, direct
support staff, providers, licensed or certified professionals, and any other
persons chosen by the individual to help the individual consider possibilities
and make decisions; or
(b) 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.
(25) "Unusual
incident" means an event or occurrence involving an individual that is not
consistent with routine operations, policies and procedures, or the
individual's care or individual service plan, but is not a major unusual
incident. Unusual incident includes, but is not limited to: dental injuries;
falls; an injury that is not a significant injury; medication errors without a
likely risk to health and welfare; overnight relocation of an individual due to
a fire, natural disaster, or mechanical failure; an incident involving two
individuals served that is not a peer-to-peer act major unusual incident;
rights code violations or unapproved behavioral supports without a likely risk
to health and welfare; emergency room or urgent care treatment center visits;
and program implementation incidents.
(26) "Working day" means Monday, Tuesday,
Wednesday, Thursday, or Friday except when that day is a holiday as defined in
section 1.14 of the Revised
Code.
(D) Reporting
requirements for major unusual incidents
(1)
Reports regarding all major unusual incidents involving an individual who
resides in an intermediate care facility for individuals with intellectual
disabilities or who receives round-the-clock waiver services shall be filed and
the requirements of this rule followed regardless of where the incident
occurred.
(2) Reports regarding the
following major unusual incidents shall be filed and the requirements of this
rule followed regardless of where the incident occurred:
(a) Accidental or suspicious death;
(b) Attempted suicide;
(c) Death other than accidental or suspicious
death;
(d) Exploitation;
(e) Failure to report;
(f) Law enforcement;
(g) Misappropriation;
(h) Missing individual;
(i) Neglect;
(j) Peer-to-peer act;
(k) Physical abuse;
(l) Prohibited sexual relations;
(m) Sexual abuse; and
(n) Verbal abuse.
(3) Reports regarding the following major
unusual incidents shall be filed and the requirements of this rule followed
only when the incident occurs in a program operated by a county board or when
the individual is being served by a licensed or certified provider:
(a) Medical emergency;
(b) Rights code violation;
(c) Significant injury;
(d) Unanticipated hospitalization;
and
(e) Unapproved behavioral
support.
(4) Immediately
upon identification or notification of a major unusual incident, the provider
shall take all reasonable measures to ensure the health and welfare of at-risk
individuals. The provider and county board shall discuss any disagreements
regarding reasonable measures in order to resolve them. If the provider and
county board are unable to agree on reasonable measures to ensure the health
and welfare of at-risk individuals, the department shall make the
determination. Such measures shall include:
(a) Immediate and ongoing medical attention,
as appropriate;
(b) Removal of an
employee from direct contact with any individual when the employee is alleged
to have been involved in physical abuse or sexual abuse until such time as the
provider has reasonably determined that such removal is no longer necessary;
and
(c) Other necessary measures to
protect the health and welfare of at-risk individuals.
(5) Immediately upon receipt of a report or
notification of an allegation of a major unusual incident, the county board
shall:
(a) Ensure that all reasonable measures
necessary to protect the health and welfare of at-risk individuals have been
taken;
(b) Determine if additional
measures are needed; and
(c) Notify
the department if the circumstances in paragraph (I)(1) of this rule that
require a department-directed administrative investigation are present. Such
notification shall take place on the first working day the county board becomes
aware of the incident.
(6) The provider shall immediately, but no
later than four hours after discovery of the major unusual incident, notify the
county board through means identified by the county board of the following
incidents or allegations:
(a) Accidental or
suspicious death;
(b)
Exploitation;
(c)
Misappropriation;
(d)
Neglect;
(e) Peer-to-peer
act;
(f) Physical abuse;
(g) Prohibited sexual relations;
(h) Sexual abuse;
(i) Verbal abuse; and
(j) When the provider has received an inquiry
from the media regarding a major unusual incident.
(7) For all major unusual incidents, a
provider shall submit a written incident report to the county board contact or
designee by three p.m. on the first working day following the day the provider
becomes aware of a potential or determined major unusual incident. The report
shall be submitted in a format prescribed by the department.
(8) The county board shall enter preliminary
information regarding the major unusual incident in the incident tracking
system and in the manner prescribed by the department by five p.m. on the first
working day following the day the county board receives notification from the
provider or otherwise becomes aware of the major unusual incident.
(9) When a provider has placed an employee on
leave or otherwise taken protective action pending the outcome of the
administrative investigation, the county board or department, as applicable,
shall keep the provider apprised of the status of the administrative
investigation so that the provider can resume normal operations as soon as
possible consistent with the health and welfare of at-risk individuals. The
provider shall notify the county board or department, as applicable, of any
changes regarding the protective action.
(10) If the provider is a developmental
center, all reports required by this rule shall be made directly to the
department.
(11) The county board
shall have a system that is available twenty-four hours a day, seven days a
week, to receive and respond to all reports required by this rule. The county
board shall communicate this system in writing to all individuals receiving
services in the county or their guardians as applicable, providers in the
county, and to the department.
(E) Reporting of alleged criminal acts
(1) The provider shall immediately report to
the law enforcement entity having jurisdiction of the location where the
incident occurred, any allegation of a criminal act. The provider shall
document the time, date, and name of person notified of the alleged criminal
act. The county board shall ensure that the notification has been
made.
(2) The department shall
immediately report to the Ohio state highway patrol, any allegation of a
criminal act occurring at a developmental center. The department shall document
the time, date, and name of person notified of the alleged criminal
act.
(F) Abused or
neglected children
All allegations of abuse or neglect as defined in sections
2151.03 and
2151.031 of the Revised Code of
an individual under the age of twenty-one years shall be immediately reported
to the local public children's services agency. The notification may be made by
the provider or the county board. The county board shall ensure that the
notification has been made.
(G) Notification requirements for major
unusual incidents
(1) The provider shall make
the following notifications, as applicable, when the major unusual incident or
discovery of the major unusual incident occurs when such provider has
responsibility for the individual. The notification shall be made on the same
day the major unusual incident or discovery of the major unusual incident
occurs and include immediate actions taken.
(a) Guardian or other person whom the
individual has identified.
(b)
Service and support administrator serving the individual.
(c) Other providers of services as necessary
to ensure continuity of care and support for the individual.
(d) Staff or family living at the
individual's residence who have responsibility for the individual's
care.
(2) All
notifications or efforts to notify shall be documented. The county board shall
ensure that all required notifications have been made.
(3) Notification shall not be made:
(a) If the person to be notified is the
primary person involved, the spouse of the primary person involved, or the
significant other of the primary person involved; or
(b) When such notification could jeopardize
the health and welfare of an individual involved.
(4) Notification to a person is not required
when the report comes from such person or in the case of a death when the
family is already aware of the death.
(5) In any case where law enforcement has
been notified of an alleged criminal act, the department may provide
notification of the major unusual incident to any other provider, developmental
center, or county board for whom the primary person involved works, for the
purpose of ensuring the health and welfare of any at-risk individual. The
notified provider or county board shall take such steps necessary to address
the health and welfare needs of any at-risk individual and may consult the
department in this regard. The department shall inform any notified entity as
to whether the major unusual incident is substantiated. Providers,
developmental centers, or county boards employing a primary person involved
shall notify the department when they are aware that the primary person
involved works for another provider.
(H) General administrative investigation
requirements
(1) Each county board shall
employ at least one investigative agent or contract with a person or
governmental entity for the services of an investigative agent. An
investigative agent shall be certified by the department in accordance with
rule
5123:2-5-07
of the Administrative Code. Employees of the department who are designated
investigators are considered certified investigative agents for the purpose of
this rule.
(2) All major unusual
incidents require an administrative investigation meeting the applicable
administrative investigation procedure in appendix A, appendix B, or appendix C
to this rule unless it is not possible or relevant to the administrative
investigation to meet a requirement under this rule, in which case the reason
shall be documented. Administrative investigations shall be conducted and
reviewed by investigative agents.
(a) The
department or county board may elect to follow the administrative investigation
procedure for category A major unusual incidents for any major unusual
incident.
(b) Based on the facts
discovered during administrative investigation of the major unusual incident,
the category may change or additional categories may be added to the record. If
a major unusual incident changes category, the reason for the change shall be
documented and the new applicable category administrative investigation
procedure shall be followed to investigate the major unusual
incident.
(c) Major unusual
incidents that involve an active criminal investigation may be closed as soon
as the county board ensures that the major unusual incident is properly coded,
the history of the primary person involved has been reviewed, cause and
contributing factors are determined, a finding is made, and prevention measures
implemented. Information needed for closure of the major unusual incident may
be obtained from the criminal investigation.
(3) County board staff may assist the
investigative agent by gathering documents, entering information into the
incident tracking system, fulfilling category C administrative investigation
requirements, or performing other administrative or clerical duties that are
not specific to the investigative agent role.
(4) Except when law enforcement or the public
children's services agency is conducting the investigation, the investigative
agent shall conduct all interviews for major unusual incidents unless the
investigative agent determines the need for assistance with interviewing an
individual. For a major unusual incident occurring at an intermediate care
facility for individuals with intellectual disabilities, the investigative
agent may utilize interviews conducted by the intermediate care facility for
individuals with intellectual disabilities or conduct his or her own
interviews. If the investigative agent determines the information is reliable,
the investigative agent may utilize other information received from law
enforcement, the public children's services agency, or providers in order to
meet the requirements of this rule.
(5) Except when law enforcement or the public
children's services agency has been notified and is considering conducting an
investigation, the county board shall commence an administrative investigation.
If law enforcement or the public children's services agency notifies the county
board that it has declined to investigate, the county board shall commence the
administrative investigation within a reasonable amount of time based on the
initial information received or obtained and consistent with the health and
welfare of all at-risk individuals, but no later than twenty-four hours for a
major unusual incident in category A or no later than three working days for a
major unusual incident in category B or category C.
(6) An intermediate care facility for
individuals with intellectual disabilities shall conduct an investigation that
complies with applicable federal regulations, including
42 C.F.R.
483.420 as in effect on the effective date of
this rule, for any unusual incident or major unusual incident involving a
resident of the facility, regardless of where the unusual incident or major
unusual incident occurs. The intermediate care facility for individuals with
intellectual disabilities shall provide a copy of its full report of an
administrative investigation of a major unusual incident to the county board.
The investigative agent may utilize information from the administrative
investigation conducted by the intermediate care facility for
indivdiauls
individuals with intellectual disabilities to meet the
requirements of this rule or conduct a separate administrative investigation.
The county board shall provide a copy of its full report of the administrative
investigation to the intermediate care facility for individuals with
intellectual disabilities. The department shall resolve any conflicts that
arise.
(7) When an agency provider,
excluding an intermediate care facility for individuals with intellectual
disabilities, conducts an internal review of an incident for which a major
unusual incident has been filed, the agency provider shall submit the results
of its internal review of the incident, including statements and documents, to
the county board within fourteen calendar days of the agency provider becoming
aware of the incident.
(8) All
developmental disabilities employees shall cooperate with administrative
investigations conducted by entities authorized to conduct investigations.
Providers and county boards shall respond to requests for information within
the time frame requested. The time frames identified shall be
reasonable.
(9) Except when law
enforcement or the public children's service agency is conducting an
investigation, the investigative agent shall endeavor to reach a preliminary
finding regarding allegations of physical abuse or sexual abuse and notify the
individual or individual's guardian and provider of the preliminary finding
within fourteen working days. When it is not possible for the investigative
agent to reach a preliminary finding within fourteen working days, he or she
shall instead notify the individual or individual's guardian and provider of
the status of the investigation.
(10) The investigative agent shall complete a
report of the administrative investigation and submit it for closure in the
incident tracking system within thirty working days unless the county board
requests and the department grants an extension for good cause. If an extension
is granted, the department may require submission of interim reports and may
identify alternative actions to assist with the timely conclusion of the
report.
(11) The report shall
follow the format prescribed by the department. The investigative agent shall
include the initial allegation, a list of persons interviewed and documents
reviewed, a summary of each interview and document reviewed, and a findings and
conclusions section which shall include the cause and contributing factors to
the incident and the facts that support the findings and conclusions.
(I) Department-directed
administrative investigations of major unusual incidents
(1) The department shall conduct the
administrative investigation when the major unusual incident includes an
allegation against:
(a) The superintendent of
a county board or developmental center;
(b) The executive director or equivalent of a
regional council of governments;
(c) A management employee who reports
directly to the superintendent of the county board, the superintendent of a
developmental center, or executive director or equivalent of a regional council
of governments;
(d) An
investigative agent;
(e) A service
and support administrator;
(f) A
major unusual incident contact or designee employed by a county
board;
(g) A current member of a
county board;
(h) A person having
any known relationship with any of the persons specified in paragraphs
(I)(1)(a) to (I)(1)(g) of this rule when such relationship may present a
conflict of interest or the appearance of a conflict of interest; or
(i) An employee of a county board or a
developmental center when it is alleged that the employee is responsible for an
individual's death, has committed sexual abuse, engaged in prohibited sexual
activity, or committed physical abuse or neglect resulting in emergency room
treatment or hospitalization.
(2) A department-directed administrative
investigation or administrative investigation review may be conducted following
the receipt of a request from a county board, developmental center, provider,
individual, or guardian if the department determines that there is a reasonable
basis for the request.
(3) The
department may conduct a review or administrative investigation of any major
unusual incident or may request that a review or administrative investigation
be conducted by another county board, a regional council of governments, or any
other governmental entity authorized to conduct an investigation.
(J) Written summaries of major
unusual incidents
(1) No later than five
working days following the county board's, developmental center's, or
department's recommendation for closure via the incident tracking system , the
county board, developmental center, or department shall provide a written
summary of the administrative investigation of each category A or category B
major unusual incident, including the allegations, the facts and findings,
including as applicable, whether the case was substantiated or unsubstantiated,
and preventive measures implemented in response to the major unusual incident
to:
(a) The individual, individual's
guardian, or other person whom the individual has identified, as applicable; in
the case of a peer-to-peer act, both individuals, individuals' guardians, or
other persons whom the individuals have identified, as applicable, shall
receive the written summary;
(b)
The licensed or certified provider and provider at the time of the major
unusual incident; and
(c) The
individual's service and support administrator and support broker, as
applicable.
(2) In the
case of an individual's death, the written summary shall be provided to the
individual's family only upon request by the individual's family.
(3) The written summary shall not be provided
to the primary person involved, the spouse of the primary person involved, or
the significant other of the primary person involved.
(4) When the primary person involved is a
developmental disabilities employee or a guardian, the county board shall, no
later than five working days following the recommended closure of a case, make
a reasonable attempt to provide written notice to the primary person involved
as to whether the major unusual incident has been substantiated,
unsubstantiated/insufficient evidence, or unsubstantiated/unfounded.
(5) If a service and support administrator is
not assigned, a county board designee shall be responsible for ensuring the
preventive measures are implemented based upon the written summary.
(6) An individual, individual's guardian,
other person whom the individual has identified, or provider may dispute the
findings by submitting a letter of dispute and supporting documentation to the
county board superintendent, or to the director of the department if the
department conducted the administrative investigation, within fifteen calendar
days following receipt of the findings. An individual may receive assistance
from any person selected by the individual to prepare a letter of dispute and
provide supporting documentation.
(7) The county board superintendent or his or
her designee or the director of the department or his or her designee, as
applicable, shall consider the letter of dispute, the supporting documentation,
and any other relevant information and issue a determination within thirty
calendar days of such submission and take action consistent with such
determination, including confirming or modifying the findings or directing that
more information be gathered and the findings be reconsidered.
(8) In cases where the letter of dispute has
been filed with the county board, the disputant may dispute the final findings
made by the county board by filing those findings and any documentation
contesting such findings as are disputed with the director of the department
within fifteen calendar days of the county board determination. The director of
the department shall issue a decision within thirty calendar days.
(K) Review, prevention, and
closure of major unusual incidents
(1) Agency
providers shall implement a written procedure for the internal review of all
major unusual incidents and shall be responsible for taking all reasonable
steps necessary to prevent the recurrence of major unusual incidents. The
written procedure shall require senior management of the agency provider to be
informed within two working days following the day staff become aware of a
potential or determined major unusual incident involving misappropriation,
neglect, physical abuse, or sexual abuse.
(2) Members of an individual's team shall
ensure that risks associated with major unusual incidents are addressed in the
individual plan or individual service plan of each individual affected and
collaborate on the development of preventive measures to address the causes and
contributing factors to the major unusual incident. The team members shall
jointly determine what constitutes reasonable steps necessary to prevent the
recurrence of major unusual incidents. If there is no service and support
administrator, team, qualified intellectual disability professional, or agency
provider involved with the individual, a county board designee shall ensure
that reasonably possible preventive measures are fully implemented.
(3) The department may review reports
submitted by a county board or developmental center. The department may obtain
additional information necessary to consider the report, including copies of
all administrative investigation reports that have been prepared. Such
additional information shall be provided within the time period specified by
the department.
(4) The department
shall review and close reports regarding the following major unusual incidents:
(a) Accidental or suspicious death;
(b) Death other than accidental or suspicious
death;
(c) Exploitation;
(d) Medical emergency;
(e) Misappropriation;
(f) Neglect;
(g) Peer-to-peer act;
(h) Physical abuse;
(i) Prohibited sexual relations;
(j) Sexual abuse;
(k) Significant injury when cause is
unknown;
(l) Verbal
abuse;
(m) Any major unusual
incident that is the subject of a director's alert; and
(n) Any major unusual incident investigated
by the department.
(5)
The county board shall review and close reports regarding the following major
unusual incidents:
(a) Attempted
suicide;
(b) Failure to
report;
(c) Law
enforcement;
(d) Missing
individual;
(e) Rights code
violation;
(f) Significant injury
when cause is known;
(g)
Unanticipated hospitalization; and
(h) Unapproved behavioral
support.
(6) The
department may review any case to ensure it has been properly closed and shall
conduct sample reviews to ensure proper closure by the county board. The
department may reopen any administrative investigation that does not meet the
requirements of this rule. The county board shall provide any information
deemed necessary by the department to close the case.
(7) The department and the county board shall
consider the following criteria when determining whether to close a case:
(a) Whether sufficient reasonable measures
have been taken to ensure the health and welfare of any at-risk
individual;
(b) Whether a thorough
administrative investigation has been conducted consistent with the standards
set forth in this rule;
(c) Whether
the team, including the county board and provider, collaborated on developing
preventive measures to address the causes and contributing factors;
(d) Whether the county board has ensured that
preventive measures have been implemented to prevent recurrence;
(e) Whether the incident is part of a pattern
or trend as flagged through the incident tracking system requiring some
additional action; and
(f) Whether
all requirements set forth in statute or rule have been satisfied.
(L) Analysis of major
unusual incident trends and patterns
(1) By
January thirty-first of each year, a provider shall conduct an in-depth review
and analysis of trends and patterns of major unusual incidents occurring during
the preceding calendar year and compile an annual report which contains:
(a) Date of review;
(b) Name of person completing
review;
(c) Time period of
review;
(d) Comparison of data for
previous three years;
(e)
Explanation of data;
(f) Data for
review by major unusual incident category type;
(g) Specific individuals involved in
established trends and patterns (i.e., five major unusual incidents of any kind
within six months, ten major unusual incidents of any kind within a year, or
other pattern identified by the individual's team);
(h) Specific trends by residence, region, or
program;
(i) Previously identified
trends and patterns; and
(j) Action
plans and preventive measures implemented to address noted trends and
patterns.
(2) A provider
other than a county board shall send the annual report to the county board for
all programs operated in the county by February twenty-eighth of each year. The
county board shall review the annual report to ensure that all issues have been
reasonably addressed to prevent recurrence of major unusual incidents. The
county board shall keep the annual report on file and make it available to the
department upon request.
(3) A
county board that provides specialized services shall send the annual report to
the department for all programs operated by the county board by February
twenty-eighth of each year. The department shall review the annual report to
ensure that all issues have been reasonably addressed to prevent recurrence of
major unusual incidents.
(4) Each
county board or as applicable, each council of governments to which county
boards belong, shall have a committee that reviews trends and patterns of major
unusual incidents. The committee shall be made up of a reasonable
representation of the county board(s), providers, individuals who receive
services and their families, and other stakeholders deemed appropriate by the
committee.
(a) The role of the committee
shall be to review and share the county or council of governments aggregate
data prepared by the county board or council of governments to identify trends,
patterns, or areas for improving the quality of life for individuals served in
the county or counties.
(b) The
committee shall meet each March to review and analyze data for the preceding
calendar year. The county board or council of governments shall send the
aggregate data prepared for the meeting to all participants at least ten
calendar days in advance of the meeting.
(c) The county board or council of
governments shall record and maintain minutes of each meeting, distribute the
minutes to members of the committee, and make the minutes available to any
person upon request.
(d) The county
board shall ensure follow-up actions identified by the committee have been
implemented.
(5) The
department shall prepare a report on trends and patterns identified through the
process of reviewing major unusual incidents. The department shall
periodically, but at least semi-annually, review this report with a committee
appointed by the director of the department which shall consist of at least six
members who represent various stakeholder groups, including disability rights
Ohio and the Ohio department of medicaid. The committee shall make
recommendations to the department regarding whether appropriate actions to
ensure the health and welfare of individuals served have been taken. The
committee may request that the department obtain additional information as may
be necessary to make recommendations.
(M) Requirements for unusual incidents
(1) Unusual incidents shall be reported and
investigated by the provider.
(2)
Each agency provider shall develop and implement a written unusual incident
policy and procedure that:
(a) Identifies
what is to be reported as an unusual incident which shall include unusual
incidents as defined in this rule;
(b) Requires an employee who becomes aware of
an unusual incident to report it to the person designated by the agency
provider who can initiate proper action;
(c) Requires the report to be made no later
than twenty-four hours after the occurrence of the unusual incident;
and
(d) Requires the agency
provider to investigate unusual incidents, identify the cause and contributing
factors when applicable, and develop preventive measures to protect the health
and welfare of any at-risk individuals.
(3) The agency provider shall ensure that all
staff are trained and knowledgeable regarding the unusual incident policy and
procedure.
(4) The provider
providing services when an unusual incident occurs shall notify other providers
of services as necessary to ensure continuity of care and support for the
individual.
(5) Independent
providers shall complete an unusual incident report, notify the individual's
guardian or other person whom the individual has identified, as applicable, and
forward the unusual incident report to the service and support administrator or
county board designee on the first working day following the day the unusual
incident is discovered.
(6) Each
agency provider and independent provider shall review all unusual incidents as
necessary, but no less than monthly, to ensure appropriate preventive measures
have been implemented and trends and patterns identified and addressed as
appropriate.
(7) The unusual
incident reports, documentation of identified trends and patterns, and
corrective action shall be made available to the county board and department
upon request.
(8) Each agency
provider and independent provider shall maintain a log of all unusual
incidents. The log shall contain only unusual incidents as defined in paragraph
(C)(25) of this rule and shall include, but is not limited to, the name of the
individual, a brief description of the unusual incident, any injuries, time,
date, location, cause and contributing factors, and preventive
measures.
(9) Members of an
individual's team shall ensure that risks associated with unusual incidents are
addressed in the individual plan or individual service plan of each individual
affected.
(10) A provider shall,
upon request by the department or a county board, provide any and all
information and documentation regarding an unusual incident and investigation
of the unusual incident.
(N) Oversight
(1) The county board shall review, on at
least a quarterly basis, a representative sample of provider unusual incident
logs, including logs where the county board is a provider, to ensure that major
unusual incidents have been reported, preventive measures have been
implemented, and that trends and patterns have been identified and addressed in
accordance with this rule. The sample shall be made available to the department
for review upon request.
(2) When
the county board is a provider, the department shall review, on a monthly
basis, a representative sample of county board logs to ensure that major
unusual incidents have been reported, preventive measures have been
implemented, and that trends and patterns have been identified and addressed in
accordance with this rule. The county board shall submit the specified logs to
the department upon request.
(3)
The department shall conduct reviews of county boards and providers as
necessary to ensure the health and welfare of individuals and compliance with
this rule. Failure to comply with this rule may be considered by the department
in any regulatory capacity, including certification, licensure, and
accreditation.
(4) The department
shall review and take any action appropriate when a complaint is received about
how an administrative investigation is conducted.
(O) Access to records
(1) Reports made under section
5123.61 of the Revised Code and
this rule are not public records as defined in section
149.43 of the Revised Code.
Records may be provided to parties authorized to receive them in accordance
with sections 5123.613 and
5126.044 of the Revised Code, to
any governmental entity authorized to investigate the circumstances of the
alleged abuse, neglect, misappropriation, or exploitation and to any party to
the extent that release of a record is necessary for the health or welfare of
an individual.
(2) A county board
or the department shall not review, copy, or include in any report required by
this rule a provider's personnel records that are confidential under state or
federal statutes or rules, including medical and insurance records, workers'
compensation records, employment eligibility verification (I-9) forms, and
social security numbers. The provider shall redact any confidential information
contained in a record before copies are provided to the county board or the
department. A provider shall make all other records available upon request by a
county board or the department. A provider shall provide confidential
information, including the date of birth and social security number, when
requested by the department as part of the abuser registry process in
accordance with rule
5123:2-17-03
5123-17-03 of the Administrative Code.
(3) Any party entitled to receive a report
required by this rule may waive receipt of the report. Any waiver of receipt of
a report shall be made in writing.
(P) Training
(1) Agency providers and county boards shall
ensure staff employed in direct services positions are trained on the
requirements of this rule prior to direct contact with any individual.
Thereafter, staff employed in direct services positions shall receive annual
training on the requirements of this rule including a review of health and
welfare alerts issued by the department since the previous year's
training.
(2) Agency providers and
county boards shall ensure staff employed in positions other than direct
services positions are trained on the requirements of this rule no later than
ninety calendar days from date of hire. Thereafter, staff employed in positions
other than direct services positions shall receive annual training on the
requirements of this rule including a review of health and welfare alerts
issued by the department since the previous year's training.
(3) Independent providers shall be trained on
the requirements of this rule prior to application for initial certification in
accordance with rule
5123:2-2-01
of the Administrative Code and shall receive annual training on the
requirements of this rule including a review of health and welfare alerts
issued by the department since the previous year's
training.
(Q)
Authority of director to modify provisions of this
rule
During the COVID-19 state of emergency
declared by the governor, the director of the department may:
(1)
Modify the
requirement in paragraph (H)(4) of this rule for an investigative agent to
conduct all interviews for major unusual incidents to allow a service and
support administrator or an employee of an agency provider to conduct
interviews working under the guidance of an investigative
agent;
(2)
Modify the timeline in paragraph (H)(9) of this rule,
from fourteen working days to twenty-one working days, for an investigative
agent to reach a preliminary finding and notify the individual or individual's
guardian and the provider;
(3)
Modify the
requirement in paragraph (H)(10) of this rule to allow the department to grant
an extension of the timeline for a county board to submit a report of an
administrative investigation for closure in the incident tracking system
without the county board being required to submit a request;
and/or
(4)
Modify the timeline in paragraph (J)(1) of this rule,
from five working days to ten working days, for a county board, a developmental
center, or the department to provide a written summary of the administrative
investigation of a category A or category B major unusual incident.
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