Ohio Admin. Code 5123-9-39 - [Effective 7/1/2025] Home and community-based services waivers - waiver nursing under the individual options waiver
(A)
Purpose
This rule defines waiver nursing and sets forth provider qualifications, requirements for service delivery and documentation of services, and payment standards for the service.
(B)
Definitions
For the purposes of this rule, the following definitions apply:
(1)
"Adult day support" has the same meaning as in rule
5123-9-17 of the Administrative
Code.
(2)
"Advanced practice registered nurse" has the same
meaning as in section
4723.01 of the Revised
Code.
(3)
"Agency provider" means an entity that directly employs
at least one person in addition to a director of operations for the purpose of
providing services for which the entity is certified in accordance with rule
5123-2-08 of the Administrative
Code.
(4)
"Community respite" has the same meaning as in rule
5123-9-22 of the Administrative
Code.
(5)
"County board" means a county board of developmental
disabilities.
(6)
"Department" means the Ohio department of developmental
disabilities.
(7)
"Homemaker/personal care" has the same meaning as in
rule 5123-9-30 of the Administrative
Code.
(8)
"Independent provider" means a self-employed person who
provides services for which the person is certified in accordance with rule
5123-2-09 of the Administrative
Code and does not employ, either directly or through contract, anyone else to
provide the services.
(9)
"Individual" means a person with a developmental
disability or for the 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.
(10)
"Individual
service plan" means the written description of services, supports, and
activities to be provided to an individual.
(11)
"Intermediate
care facility for individuals with intellectual disabilities" has the same
meaning as in section
5124.01 of the Revised
Code.
(12)
"Licensed practical nurse" has the same meaning as in
section 4723.01 of the Revised
Code.
(13)
"Medically necessary" has the same meaning as "medical
necessity" described in rule
5160-1-01 of the Administrative
Code.
(14)
"Nursing task inventory" means the form used by a
county board to identify the nursing tasks to be performed, the frequency and
duration of each nursing task to be performed, and the current method by which
each nursing task is performed.
(15)
"Physician"
means a person who is authorized under Chapter 4731. of the Revised Code to
practice medicine and surgery or osteopathic medicine and
surgery.
(16)
"Physician assistant" means a person who is licensed to
practice as a physician assistant pursuant to Chapter 4730. of the Revised
Code.
(17)
"Plan of care" means the medical treatment plan that is
established, approved, and signed by the treating physician, physician
assistant, or advanced practice registered nurse. The plan of care is not the
same as the individual service plan and includes:
(a)
Individual's
name, address, date of birth, sex, and medicaid number;
(b)
Provider's name,
address, telephone number, and medicaid provider number;
(c)
Certification
period;
(d)
Start of care date;
(e)
All pertinent
diagnoses;
(f)
All medications and treatments;
(g)
Functional
limitations and activities permitted;
(h)
Mental,
psychosocial, and cognitive status;
(i)
Allergies;
(j)
Nutritional
requirements;
(k)
The types of services, supplies, and equipment
required;
(l)
Safety measures;
(m)
Prognosis;
(n)
Orders for
discipline and treatments including the amount, frequency, and duration of
nursing services;
(o)
Goals and discharge plans;
(p)
Information
related to any advanced directives;
(q)
Physician's name
and address;
(r)
Physician's signature and date; and
(s)
Nurse's signature
and the date the nurse received the plan of care.
(18)
"Registered
nurse" has the same meaning as in section
4723.01 of the Revised
Code.
(19)
"Residential respite" has the same meaning as in rule
5123-9-34 of the Administrative
Code.
(20)
"Service documentation" means all records and
information on one or more documents that:
(a)
Are created and
maintained as services are provided, and completed prior to billing for
services;
(b)
Are kept in a manner that fully discloses the extent of
services delivered;
(c)
Include the items delineated in paragraph (H) of this
rule; and
(d)
May be created or maintained in electronic software
programs.
(21)
"Significant change" means a change experienced by an
individual including but not limited to, a change in health status, caregiver
status, or location/residence; referral to or active involvement on the part of
a protective services agency; or institutionalization.
(22)
"Vocational
habilitation" has the same meaning as in rule
5123-9-14 of the Administrative
Code.
(23)
"Waiver eligibility span" means the twelve-month period
following either an individual's initial waiver enrollment date or a subsequent
eligibility re-determination date.
(24)
"Waiver nursing"
means services provided to an individual with interventions of care which
require the skills of, and are performed by, either a registered nurse or a
licensed practical nurse working at the direction of a registered nurse. A
service is not considered waiver nursing merely because it is performed by a
licensed practical nurse.
(C)
Provider
qualifications
(1)
Waiver nursing will be provided by an agency provider
or an independent provider that meets the requirements of this
rule.
(2)
A provider of waiver nursing will obtain and maintain a
medicaid provider agreement with the Ohio department of
medicaid.
(3)
Waiver nursing will be provided by a registered nurse
or by a licensed practical nurse working at the direction of a registered nurse
who:
(a)
Possesses current valid licensure in good standing to
practice nursing in Ohio pursuant to Chapter 4723. of the Revised Code;
and
(b)
Is working within the scope of practice as set forth in
Chapter 4723. of the Revised Code and rules adopted thereunder.
(4)
A
provider of waiver nursing will meet the conditions of participation in rule
5160-44-31 of the Administrative
Code.
(5)
Waiver nursing will not be provided by an independent
provider who is:
(a)
The parent, stepparent, foster parent, or legal
guardian of the individual receiving waiver nursing when the individual is
under the age of eighteen; or
(b)
The spouse of the
individual receiving waiver nursing.
(D)
Waiver nursing coverage requirements
For waiver nursing to be covered, the services must be determined to be necessary and:
(1)
Performed within
the nurse's scope of practice as defined in Chapter 4723. of the Revised Code
and rules adopted thereunder.
(2)
Performed only by
a registered nurse when the task includes:
(a)
Intravenous
insertion, removal, or discontinuation;
(b)
Intravenous
medication administration;
(c)
Programming of a
pump to deliver medication including but not limited to, epidural,
subcutaneous, and intravenous (except routine doses of insulin through a
programmed pump);
(d)
Insertion or initiation of infusion
therapies;
(e)
Central line dressing changes; or
(f)
Blood product
administration.
(3)
Provided in accordance with the individual's plan of
care.
(4)
Appropriate given the individual's diagnosis,
prognosis, functional limitations, and medical conditions as documented by the
individual's treating physician, physician assistant, or advanced practice
registered nurse.
(5)
Documented in the individual service
plan.
(6)
Medically necessary in accordance with rule
5160-1-01 of the Administrative
Code.
(7)
Provided in person in the individual's residence unless
it is medically necessary for the nurse to accompany the individual in the
community. The individual's residence is where the individual lives whether the
residence is owned by the individual, a relative's home, an assisted living
facility, or other type of living arrangement. The place of service cannot
include the business location or residence of the provider unless the provider
resides with the individual.
(8)
Authorized only
when an individual's needs cannot be met by medicaid state plan nursing
services, as described in Chapter 5160-12 of the Administrative Code, by
developmental disabilities personnel holding medication administration
certification issued in accordance with rule
5123-6-06 of the Administrative
Code, or through nursing delegation in accordance with rules adopted by the
Ohio board of nursing pursuant to Chapter 4723. of the Revised
Code.
(E)
Waiver nursing exclusions
Waiver nursing does not include:
(1)
Services delegated in accordance with Chapter 4723. of
the Revised Code and rules adopted thereunder, and performed by persons who are
not licensed nurses in accordance with Chapter 4723. of the Revised
Code.
(2)
Services that require the skills of a psychiatric
nurse.
(3)
Visits performed for the purpose of conducting a
registered nurse assessment as set forth in rule
5160-12-08 of the Administrative
Code.
(4)
Registered nurse consultations as set forth in rule
5160-12-08 of the Administrative
Code.
(5)
Services performed in excess of the number of hours
approved pursuant to, and as specified in, the individual service
plan.
(6)
Services performed that meet the definition of waiver
nursing delegation/assessment or waiver nursing delegation/consultation set
forth in rule
5123-9-37 of the Administrative
Code.
(F)
Service authorization process
(1)
An individual or
the individual's parent or guardian, hospital, physician, service provider, or
member of the individual's care team may contact the county board to request
waiver nursing.
(2)
A county board or its contracted agent will submit a
complete service authorization request for waiver nursing to the department for
review and approval:
(a)
For all initial requests for waiver
nursing.
(b)
When there is a significant change resulting in an
increase, decrease, or termination of waiver nursing.
(c)
At least annually
for redetermination of waiver nursing. Annual redetermination requests may be
submitted to the department ninety calendar days prior to the new waiver
eligibility span.
(3)
Each service
authorization request will include:
(a)
A plan of care, plan of care addendum order, and/or
physician's orders, as applicable.
(b)
A proposed weekly
schedule with corresponding budget.
(c)
A nursing task
inventory.
(d)
The three previous months of nursing notes, when
available.
(e)
Medication administration records.
(f)
All other
documentation requested by the department to assess the individual's need for
waiver nursing.
(4)
The department will complete a comprehensive review of
all submitted documentation to determine if the requested services are
medically necessary and are:
(a)
Appropriate for the individual's health and welfare
needs, living arrangement, circumstances, and expected outcomes;
and
(b)
Of an appropriate type, amount, duration, scope, and
intensity; and
(c)
The most efficient, effective, and lowest cost
alternative that, when combined with non-waiver services, ensure the health and
welfare of the individual receiving the services; and
(d)
In accordance
with rule
5123-9-02 of the Administrative
Code, not otherwise available through other resources.
(5)
The
department will notify the county board in writing of its decision to approve
or deny waiver nursing.
(a)
Upon receipt of the written approval, the county board
will notify the waiver nursing provider and individual of the authorized
amount, scope, and duration of approved services. The waiver nursing provider
may begin services only after the county board provides written approval.
Waiver nursing may be authorized for up to three hundred sixty-five
days.
(b)
If the department determines the individual does not
have skilled nursing interventions that require waiver nursing, or the services
are not medically necessary, the department will deny the waiver nursing
request. A service authorization request may be denied only after an in-person
assessment or video conference and desk review by a registered nurse to confirm
the services are not medically necessary.
(6)
Waiver nursing
complements, and does not replace, similar services available under the
medicaid state plan provided by the Ohio department of medicaid or a managed
care organization. Medicaid fee-for-service or the individual's managed care
organization covers medically necessary nursing services.
(7)
An individual
will be afforded notice and hearing rights regarding service authorizations in
accordance with section
5101.35 of the Revised Code.
Providers have no standing in appeals under this paragraph. A change in
staffing ratios does not necessarily result in a change in the level of
services received by an individual which would affect the annual service
authorization.
(G)
Requirements and limitations for service delivery
(1)
Waiver nursing
will be provided pursuant to an individual service plan that conforms to the
requirements of rule
5123-4-02 of the Administrative
Code. The provider's name and number of hours will be specified in the
individual service plan.
(2)
Waiver nursing will not be provided to an individual
during the same time the individual is receiving adult day support, community
respite, residential respite being provided at an intermediate care facility
for individuals with intellectual disabilities, or vocational
habilitation.
(3)
A registered nurse or licensed practical nurse working
at the direction of a registered nurse may provide services for no more than
three individuals in a group setting during a face-to-face waiver nursing
visit.
(4)
A waiver nursing visit by a registered nurse or a
licensed practical nurse working at the direction of a registered nurse will
not exceed twelve hours in length during a twenty-four hour period unless an
unforeseen event causes a medically necessary scheduled visit to extend beyond
twelve hours, in which case the visit will not exceed sixteen
hours.
(5)
A provider of waiver nursing who is a licensed
practical nurse working at the direction of a registered nurse will conduct a
face-to-face visit with the individual and the directing registered nurse prior
to initiating services and at least once every one hundred twenty days for the
purpose of evaluating the provision of waiver nursing, the individual's
satisfaction with care delivery and performance of the licensed practical
nurse, and to ensure that waiver nursing is being provided in accordance with
the approved plan of care.
(6)
When an
independent provider who is a licensed practical nurse working at the direction
of a registered nurse is providing waiver nursing, the licensed practical nurse
will provide clinical notes, signed and dated by the licensed practical nurse,
documenting all consultations between the licensed practical nurse and the
directing registered nurse, documenting the face-to-face visits between the
licensed practical nurse and the directing registered nurse, and documenting
the face-to-face visits between the licensed practical nurse, the individual
receiving waiver nursing, and the directing registered nurse.
(7)
Individuals who
receive waiver nursing must be under the supervision of a treating physician,
physician assistant, or advanced practice registered nurse who is enrolled with
the Ohio department of medicaid, and is directly providing care and treatment
to the individual (and not merely engaged to authorize plans of care for waiver
nursing).
(8)
In all instances, when a treating physician, physician
assistant, or advanced practice registered nurse gives verbal orders to the
registered nurse or licensed practical nurse working at the direction of a
registered nurse, the nurse will record in writing, the orders, the date and
time the orders were given, and sign the entry in the service documentation.
The nurse will subsequently secure documentation of the verbal orders signed
and dated by the treating physician, physician assistant, or advanced practice
registered nurse.
(9)
Waiver nursing may be provided on the same day as, but
not concurrently with, a registered nurse assessment and/or registered nurse
consultation as set forth in rule
5160-12-08 of the Administrative
Code.
(10)
A provider of waiver nursing will utilize electronic
visit verification in accordance with Chapter 5160-32 of the Administrative
Code.
(H)
Documentation of services
(1)
Service
documentation for waiver nursing will include each of the following to validate
payment for medicaid services:
(a)
Type of service.
(b)
Date of
service.
(c)
Place of service.
(d)
Name of
individual receiving service.
(e)
Medicaid
identification number of individual receiving service.
(f)
Name of
provider.
(g)
Provider identifier/contract number.
(h)
Written or
electronic signature of the person delivering the service or initials of the
person delivering the service if a signature and corresponding initials are on
file with the provider.
(i)
Group size in which the service was
provided.
(j)
Description and details of the services delivered that
directly relate to the services specified in the approved individual service
plan, including the individual's response to each medication, treatment, or
procedure performed.
(k)
Begin and end times of the delivered
service.
(2)
A provider of waiver nursing will also maintain a
clinical record for each individual which includes:
(a)
Individual's
medical history.
(b)
Name and national provider identifier number of
individual's treating physician, physician assistant, or advanced practice
registered nurse.
(c)
A copy of all individual service plans in effect at the
time of services.
(d)
A copy of the initial and all subsequent plans of
care.
(e)
Documentation of verbal orders from the treating
physician, physician assistant, or advanced practice registered nurse in
accordance with paragraph (G)(8) of this rule.
(f)
The clinical
notes of an independent provider who is a licensed practical nurse working at
the direction of a registered nurse in accordance with paragraph (G)(6) of this
rule.
(g)
A copy of any advance directives including, but not
limited to, a "do not resuscitate" order or medical power of attorney, if they
exist.
(h)
Clinical notes signed and dated by the nurse provider
documenting all communications with the treating physician, physician
assistant, or advanced practice registered nurse and other members of the
multidisciplinary team.
(3)
Providers of
waiver nursing will maintain, in a confidential manner for at least thirty
calendar days at the individual's residence, a current plan of care with any
addendum orders, the current individual service plan, a copy of the nurse's
notes, and medication administration records.
(4)
A provider of
waiver nursing will maintain the records necessary and in such form to fully
disclose the extent of waiver nursing provided, for a period of six years from
the date of receipt of payment or until an initiated audit is resolved
whichever is longer.
(I)
Monitoring and
oversight
A provider of waiver nursing services is subject to monitoring and oversight by the department. A provider of waiver nursing will cooperate with the department or its designee during provider monitoring and oversight activities by being available to answer questions during reviews and by ensuring the availability and confidentiality of individual information and other documents that may be requested as part of provider monitoring and oversight activities.
(J)
Payment
standards
(1)
The billing units, service codes, payment rates, and billing
modifier codes for waiver nursing are contained in the appendix to this
rule.
(2)
A registered nurse or licensed practical nurse working
at the direction of a registered nurse may provide services for up to three
individuals in a group setting during a face-to-face waiver nursing
visit.
(a)
The
entire visit is considered a group visit even if two or more individuals were
present for only a portion of the visit.
(b)
The "HQ" billing
modifier code is used with each group visit billed.
(3)
When waiver
nursing provided by an independent provider is being billed as overtime:
(a)
The "TU" billing
modifier code is used to indicate that the entire visit is being billed as
overtime.
(b)
The "UA" billing modifier code is used to indicate that
a portion of the visit is being billed as overtime.
(4)
When the
provision of waiver nursing by the same provider occurs on the same date of
service for the same individual, the visits will be separated by a lapse of at
least two hours. Documentation supporting the need for multiple visits is
required. After the initial visit, multiple visits are billed with a "U2"
billing modifier code for the second visit or a "U3" billing modifier code for
any subsequent visit thereafter.
(5)
When a waiver
nursing visit exceeds twelve hours in length during a twenty-four hour period
due to an unforeseen event, the "U4" billing modifier code is used to indicate
that the service and support administrator has been notified of and approved
the extension of hours.
(6)
Waiver nursing is billed to and reimbursed by the Ohio
department of medicaid in accordance with rule
5160-1-19 of the Administrative
Code.
Replaces: 5123-9-39
Notes
Promulgated Under: 119.03
Statutory Authority: 5123.04, 5123.049, 5123.1611
Rule Amplifies: 5123.04, 5123.045, 5123.049, 5123.16, 5123.161, 5123.1611, 5166.21
Prior Effective Dates: 07/01/2016, 01/01/2017, 06/11/2020 (Emer.), 11/19/2020, 06/17/2021 (Emer.), 01/01/2022, 01/01/2024
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