Ohio Admin. Code 5123-3-05 - Licensed residential facilities - transfer and termination of services
(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.
Replaces: 5123:2-3-05
Notes
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.19, 5124.03
Rule Amplifies: 5123.04, 5123.19, 5123.62, 5123.67, 5124.03
Prior Effective Dates: 10/31/1977, 06/12/1981, 09/30/1983, 02/25/1984, 03/25/1991, 11/02/1996, 07/01/2007, 10/01/2016
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