Ohio Admin. Code 5123-4-04 - Resolution of complaints involving county boards of developmental disabilities and appeals of adverse action proposed or initiated by county boards of developmental disabilities
(A)
Purpose
This rule sets forth the process for resolution of complaints involving the programs, services, policies, or administrative practices of a county board of developmental disabilities or an entity under contract with a county board of developmental disabilities; the process for individuals to appeal adverse actions proposed or initiated by a county board of developmental disabilities; and the requirement for a county board of developmental disabilities to give notice of the process to be followed for resolution of complaints and appeals of adverse action.
(B)
Scope
(1)
Any individual or person, other than an employee of the
county board, may file a complaint using the process set forth in this rule. An
individual may appeal an adverse action using the process set forth in this
rule. The process set forth in this rule shall be followed before commencing a
civil action.
(2)
This rule shall not be applicable:
(a)
When the county
board is a vendor or subcontractor for service delivery.
(b)
To education
services arranged by the local education agency. Complaints or appeals
concerning such services shall follow rules adopted by the Ohio department of
education.
(c)
To services provided under part C of the Individuals
with Disabilities Education Act, 34 C.F.R. 303, as in effect on the effective
date of this rule. Complaints or appeals concerning such services shall follow
rules in Chapter 5123-10 of the Administrative Code.
(d)
To medicaid
services including home and community-based services waiver services and
targeted case management services. Complaints or appeals concerning such
services shall follow rules adopted by the Ohio department of medicaid. The
county board shall not require the use of the process set forth in this rule
for issues regarding medicaid services.
(e)
To performance of
health-related activities and administration of medication by developmental
disabilities personnel pursuant to the authority granted pursuant to section
5123.42 of the Revised Code or
compliance with Chapter 5123:2-6 of the Administrative Code. Complaints or
appeals concerning such matters shall be made to the department using the
process established in rule
5123:2-17-01 of the
Administrative Code.
(f)
To services provided to a resident of an intermediate
care facility for individuals with intellectual disabilities by that facility,
or provided on behalf of or through a contract with an intermediate care
facility for individuals with intellectual disabilities. Complaints or appeals
concerning such services shall follow regulations governing intermediate care
facilities for individuals with intellectual disabilities.
(3)
If the
county board determines that a complaint or appeal of adverse action filed with
the county board is not subject to this rule, the county board shall provide
information to the individual or person filing the complaint or appeal,
including the name and telephone number, if available, of the appropriate
entity with which to file the complaint or appeal of adverse
action.
(4)
An individual receiving non-medicaid supported living
services shall follow the terms of the contract of the service provider, as
required by section 5126.45 of the Revised Code,
prior to beginning the process for resolution of complaints or appeals of
adverse action established in this rule.
(C)
Definitions
For the purposes of this rule, the following definitions shall apply:
(1)
"Adverse action"
means any of the following:
(a)
Denial of a request for a non-medicaid
service.
(b)
Reduction in frequency and/or duration of a
non-medicaid service.
(c)
Suspension of a non-medicaid service.
(d)
Termination of a
non-medicaid service (except when the recipient of that service is
deceased).
(e)
The outcome of an eligibility
determination.
(2)
"Advocate" means any person selected by an individual
to act and/or communicate as authorized by the individual.
(3)
"Contracting
entity" means an entity under contract with a county board for the provision of
services to individuals with developmental disabilities.
(4)
"County board"
means a county board of developmental disabilities including a county board
when acting through a council of governments.
(5)
"Department"
means the Ohio department of developmental disabilities.
(6)
"Director" means
the director of the Ohio department of developmental disabilities or his or her
designee.
(7)
"Hearing" means the opportunity to present one's case
regarding a complaint or appeal of adverse action.
(8)
"Individual"
means a person with a developmental disability who is eligible, or purports to
be eligible, for services pursuant to Chapters 5123. and 5126. of the Revised
Code and includes a parent of a minor child, an individual's guardian, or an
adult authorized in writing by the individual pursuant to section
5126.043 of the Revised Code to
make a decision regarding receipt of a service or participation in a
program.
(9)
"Intermediate care facility for individuals with
intellectual disabilities" has the same meaning as in section
5124.01 of the Revised
Code.
(10)
"Notice" means and is deemed to have occurred
upon:
(a)
For an
individual who has selected email as his or her preferred method of
communication, electronic confirmation that the individual has read the
email;
(b)
Personal delivery to an individual; or
(c)
The date of
certified mailing to an individual unless:
(i)
The original
certified mailing is refused, in which case notice is deemed to have occurred
on the date the notice is resent by ordinary mail to the individual;
or
(ii)
The original certified mailing is unclaimed, in which
case notice is deemed to have occurred on the date the notice is resent by
ordinary mail to the individual unless within thirty calendar days after the
date the notice is resent, the resent notice is returned for failure of
delivery.
(11)
"Person" has the
same meaning as in section
1.59 of the Revised
Code.
(D)
General provisions
(1)
Complaints and
appeals of adverse action shall be filed in writing. When an individual or
person expresses dissatisfaction with an outcome subject to complaint or appeal
in accordance with this rule, the county board shall, to the extent necessary,
assist the individual or person in filing a complaint or
appeal.
(2)
At all times throughout the resolution of complaints
and appeals of adverse action process, the county board shall maintain the
confidentiality of the identities of individuals unless an individual gives
written permission to share information.
(3)
An advocate may
assist an individual at any time during the resolution of complaints and
appeals of adverse action process.
(4)
The county board
shall make all reasonable efforts to ensure that information regarding
resolution of complaints and appeals of adverse action, including all notices
and responses made pursuant to this rule, is presented using language and in a
format understandable to affected individuals and persons. All notices and
responses made pursuant to this rule shall include an explanation of the
individual's or person's opportunity to file a complaint with or appeal to a
higher authority, as applicable.
(5)
The time lines
set forth in this rule may be extended if mutually agreed upon in writing by
all parties involved.
(6)
Initiation of the formal process set forth in this rule
does not preclude the resolution of a complaint or an appeal of adverse action
at any point, as long as the outcome is mutually agreed upon in writing by all
parties involved.
(E)
Requirements for
county boards to provide information about the process for resolution of
complaints and appeals of adverse action and to give notice of adverse
action
(1)
General information about the process for resolution of complaints and appeals
of adverse action.
(a)
The county board shall give the "Complaint or Appeal of
Adverse Action Explanation Form" contained in the appendix to this rule to an
individual at the time of the individual's initial request for services, at
least annually to each individual receiving or on a waiting list for
non-medicaid services, and at the time a complaint within the scope of this
rule is received or the county board proposes an adverse
action.
(b)
Upon request, a county board or contracting entity
shall provide a copy of this rule.
(c)
The county board
shall publicly post the "Complaint or Appeal of Adverse Action Explanation
Form" contained in the appendix to this rule.
(2)
Specific notice
of adverse action.
(a)
Except when it is necessary to suspend an individual's
services without delay to ensure the health and safety of the individual or
other individuals in accordance with paragraph (E)(3) of this rule, the county
board shall provide written notice to the affected individual of the county
board's decision to deny, reduce, suspend, or terminate services at least
fifteen calendar days prior to the effective date of such action. The notice
shall include:
(i)
An explanation of the county board's policy and/or
authority for taking the adverse action;
(ii)
A description of
the specific adverse action being proposed or initiated by the county
board;
(iii)
The effective date for the adverse
action;
(iv)
A clear statement of the reasons for the adverse action
including a description of the specific assessments and/or documents that are
the basis for the adverse action;
(v)
An explanation of
the individual's right to appeal the adverse action;
(vi)
An explanation
of the steps the individual must take to appeal the adverse
action;
(vii)
A statement that the individual has ninety calendar
days to appeal the adverse action;
(viii)
A statement
that the individual must file his or her appeal prior to the effective date for
the adverse action to keep his or her services in place during the appeal
process;
(ix)
The name and contact information for the staff member
of the county board who can assist the individual with his or her appeal;
and
(x)
The "Complaint or Appeal of Adverse Action Explanation
Form" contained in the appendix to this rule.
(b)
The county board
shall retain written evidence of the date the notice is personally delivered or
sent by certified mail to the individual or for an individual who has selected
email as his or her preferred method of communication, the date of electronic
confirmation that the individual has read the email.
(3)
Specific notice
of adverse action when it is necessary to suspend an individual's services
without delay to ensure the health and safety of the individual or other
individuals.
(a)
When it is necessary to suspend an individual's
services without delay to ensure the health and safety of the individual or
other individuals, the county board shall:
(i)
Determine what
immediate steps are necessary to ensure the health and safety of the individual
and other individuals; and
(ii)
Provide written
notice to the affected individual immediately. The notice shall include:
(a)
An explanation of
the county board's policy and/or authority for suspending the individual's
services;
(b)
A description of the specific services being
suspended;
(c)
The effective date for the suspension of
services;
(d)
A clear statement of the reasons for the suspension of
services including a description of the specific circumstances that jeopardize
the health and safety of the individual or other individuals;
(e)
An explanation
that the county board shall arrange for appropriate alternative services and a
description of the specific alternative services available to the
individual;
(f)
An explanation of the steps the county board shall take
in accordance with paragraphs (E)(3)(c) and (E)(3)(d) of this
rule;
(g)
The name and contact information for the staff member
of the county board who can answer questions about the suspension of services;
and
(h)
The "Complaint or Appeal of Adverse Action Explanation
Form" contained in the appendix to this rule.
(b)
The
county board shall retain written evidence of the date the notice is personally
delivered or sent by certified mail to the individual or for an individual who
has selected email as his or her preferred method of communication, the date of
electronic confirmation that the individual has read the email.
(c)
Within five
calendar days of the notice of suspension of services, the county board shall
convene a team meeting to identify measures that may be implemented to
eliminate the circumstances that jeopardize the health and safety of the
individual or other individuals.
(d)
Within five
calendar days of the team meeting, the county board shall:
(i)
With the consent
of the individual, implement measures to eliminate the circumstances that
jeopardize the health and safety of the individual or other individuals as
necessary and restore the suspended services; or
(ii)
With the consent
of the individual, continue to arrange for appropriate alternative services;
or
(iii)
Provide written notice that includes the components
described in paragraphs (E)(2)(a)(i) to (E)(2)(a)(x) of this rule to the
individual of the county board's decision to terminate the individual's
services at least fifteen calendar days prior to the effective date of such
action. If the individual files an appeal prior to the effective date of the
termination of services, the county board shall keep the individual's
alternative services in place until the appeal process is
completed.
(F)
Informal process
for resolution of complaints and appeals of adverse action
A county board may adopt a written policy describing an informal process that shall take no longer than thirty calendar days for resolution of complaints and appeals of adverse action. An individual or person may elect to participate in the informal process or may initiate the formal process set forth in paragraph (G) of this rule.
(G)
Formal process for resolution of complaints and appeals
of adverse action
(1)
Step one: filing a complaint or appeal of adverse
action with the supervisor or manager responsible for the program, service,
policy, or administrative practice of the county board.
(a)
An individual or
person must file a complaint with the supervisor or manager of the county board
within ninety calendar days of becoming aware of the program, service, policy,
or administrative practice that is the subject of the
complaint.
(b)
An individual must file an appeal of adverse action
with the supervisor or manager of the county board within ninety calendar days
of notice of the adverse action or within ninety calendar days of conclusion of
the informal process set forth in paragraph (F) of this rule. If the individual
appeals an adverse action within the prior notice period (i.e., the period of
time between notice of the intended adverse action and the effective date of
the adverse action), the individual's services shall not be reduced, suspended,
or terminated until the appeal process is completed or the appeal is withdrawn
by the individual. An individual who appeals during the prior notice period may
voluntarily consent in writing to the reduction, suspension, or termination of
services during the appeal process.
(c)
The supervisor or
manager of the county board shall conduct an investigation of the complaint or
appeal which shall include meeting with the individual or person who filed the
complaint or appeal.
(d)
Within fifteen calendar days of receipt of the
complaint or appeal, the supervisor or manager of the county board shall
provide and thereafter be available to discuss a written report and decision
with the individual or person who filed the complaint or appeal. The written
report and decision shall include the rationale for the decision and a
description of the next step in the process if the individual or person is not
satisfied with the decision of the supervisor or manager.
(2)
Step
two: filing a complaint or appeal of adverse action with the superintendent of
the county board.
(a)
If the individual or person filing the complaint or
appeal of adverse action is not satisfied with the outcome of the process set
forth in paragraph (G)(1) of this rule, the individual or person may file a
complaint or appeal with the superintendent of the county
board.
(b)
The complaint or appeal of adverse action must be filed
with the superintendent of the county board within ten calendar days of notice
of the decision of the supervisor or manager of the county board. If no
decision is provided by the supervisor or manager of the county board within
fifteen calendar days in accordance with paragraph (G)(1)(d) of this rule, the
complaint or appeal of adverse action must be filed with the superintendent of
the county board within twenty-five calendar days of filing the complaint or
appeal with the supervisor or manager.
(c)
The
superintendent of the county board or his or her designee shall, within ten
calendar days of receipt of the complaint or appeal, meet with the individual
or person and conduct an administrative review.
(d)
As part of the
administrative review, the superintendent of the county board or his or her
designee may ask questions to clarify and review the circumstances and facts
related to the supervisor's or manager's decision and shall provide the
individual or person the opportunity to present reasons why the supervisor's or
manager's decision should be reconsidered.
(e)
Within fifteen
calendar days of receipt of the complaint or appeal, the superintendent of the
county board or his or her designee shall send by certified mail, a copy of his
or her decision to the individual or person who submitted the complaint or
appeal. Such decision shall include the rationale for the decision and a
description of the next step in the process if the individual or person is not
satisfied with the decision of the superintendent of the county board or his or
her designee.
(3)
Step three: filing a complaint or appeal of adverse
action with the president of the county board.
(a)
If the individual
or person filing the complaint or appeal of adverse action is not satisfied
with the outcome of the process set forth in paragraph (G)(2) of this rule, the
individual or person may file a complaint or appeal with the president of the
county board.
(b)
The complaint or appeal of adverse action must be filed
with the president of the county board within ten calendar days of notice of
the decision of the superintendent of the county board or his or her designee.
If no decision is provided by the superintendent of the county board or his or
her designee within fifteen calendar days in accordance with paragraph
(G)(2)(e) of this rule, the complaint or appeal of adverse action must be filed
with the president of the county board within twenty-five calendar days of
filing the complaint or appeal with the superintendent.
(c)
The president of
the county board shall ensure that a hearing is conducted within twenty
calendar days of receipt of the complaint or appeal at a time and place
convenient to all parties. At such hearing:
(i)
The county board
may hear the complaint or appeal;
(ii)
A committee of
two or more county board members appointed by the president of the county board
with agreement of the county board, may hear the complaint or appeal. The
committee shall issue a report and recommendation to the county board within
ten calendar days of the conclusion of the hearing; or
(iii)
A hearing
officer appointed by the county board may hear the complaint or appeal. The
hearing officer shall have the same powers and authority in conducting the
hearing as granted to the county board. The hearing officer shall not be an
employee or contractor of the county board providing any service other than
that of hearing officer. The hearing officer need not be an attorney, but shall
possess qualifications to be able to make neutral and informed decisions about
the complaint or appeal. The county board may ask the department to decide if a
person is qualified to be a hearing officer. The hearing officer shall issue a
report and recommendation to the county board within ten calendar days of the
conclusion of the hearing.
(d)
Upon request, the
individual or person filing the complaint or appeal shall be provided access to
all records and materials related to the complaint or appeal no less than ten
calendar days before the hearing.
(e)
To the extent
permitted by law, the hearing shall be private unless the individual or person
requesting the hearing wants it open to the public.
(f)
During the
hearing, both parties may present evidence to support their
positions.
(g)
The individual or person requesting the hearing and the
county board have the right to be represented by an attorney.
(h)
The individual or
person requesting the hearing shall have the right to have in attendance at the
hearing and question any official, employee, or agent of the county board who
may have evidence upon which the complaint or appeal is based.
(i)
Evidence
presented at the hearing shall be recorded by stenographic means or by use of
an audio recorder at the option of the county board. The record shall be made
at the expense of the county board and, upon request, one copy of a written
transcript shall be provided, at no cost, to the individual or person
requesting the hearing.
(j)
In making its decision, the county board may request or
consider additional information with notice to all affected parties, may
request a presentation in writing and/or in person from each party, or take
other action necessary to make a determination.
(k)
Within fifteen
calendar days of conclusion of a county board hearing or the county board's
receipt of the report and recommendation from a county board-appointed
committee or a hearing officer, the president of the county board or his or her
designee shall send by certified mail, a copy of the county board's decision to
the individual or person who requested the hearing. Such decision shall include
the rationale for the decision and a description of the next step in the
process if the individual or person is not satisfied with the decision of the
county board.
(4)
Step four: filing a complaint or appeal of adverse
action with the director.
(a)
If the individual filing the complaint or appeal of
adverse action is not satisfied with the outcome of the process set forth in
paragraph (G)(3) of this rule, the individual may file a complaint or appeal
with the director.
(b)
The complaint or appeal of adverse action must be filed
with the director within fifteen calendar days of notice of the decision of the
county board. If no decision is provided by the president of the county board
within fifteen calendar days in accordance with paragraph (G)(3)(k) of this
rule, the complaint or appeal of adverse action must be filed with the director
within fifty-five calendar days of filing the complaint with the president of
the county board.
(c)
The director shall send a copy of the complaint or
appeal of adverse action to the superintendent and president of the county
board.
(d)
The president of the county board or his or her
designee shall send the director the written transcript of the county board
hearing, copies of any exhibits, and a copy of the county board's decision
within fifteen calendar days of receiving the copy of the complaint or appeal
of adverse action from the director.
(e)
Upon request by
an affected party or at the director's initiation, the director may request or
consider additional information with notice to all affected parties, may
request a presentation in writing and/or in person from each party, or take
other action necessary to make a determination.
(f)
Within thirty
calendar days of receipt of the written transcript of the county board hearing,
copies of any exhibits, and a copy of the county board's decision from the
president of the county board, the director shall send by certified mail, a
copy of his or her decision to all affected parties. The director shall uphold
the decision of the county board if the director determines that the decision
is in accordance with applicable statute and administrative rule. The
director's decision shall include the rationale for the
decision.
(H)
Other
remedies
After exhausting the administrative remedies required by this rule, an individual or person may commence a civil action if the complaint or appeal of adverse action is not resolved to his or her satisfaction. This rule is not intended to provide any right or cause of action that does not exist absent this rule.
Replaces: 5123:2-1-12
Notes
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.043
Rule Amplifies: 5123.04, 5123.043, 5126.06
Prior Effective Dates: 07/01/1976, 12/11/1983, 07/01/1991 (Emer.), 09/13/1991, 04/22/1993, 06/02/1995 (Emer.), 09/01/1995 (Emer.), 12/02/1995, 05/01/2014
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