Ohio Administrative Code
Title 5160 - Ohio Department of Medicaid
Chapter 5160-44 - Nursing Facility-Based Level of Care Home and Community-Based Services Programs
Section 5160-44-32 - Home and community based medicaid waiver program provider and direct care worker relationships
Universal Citation: OH Admin Code 5160-44-32
Current through all regulations passed and filed through September 16, 2024
(A) This rule is applicable to the following waiver programs and services:
(1)
Individual
options services, as described in Chapter 5123-9 of the Administrative
Code:
(a)
Homemaker/personal care, participant-directed and provided
through an agency; and
(b)
Waiver nursing, provided through an
agency.
(2)
Level one homemaker/personal care services,
participant-directed and provided through an agency, as described in Chapter
5123-9 of the Administrative Code.
(3)
MyCare Ohio
services, as described in Chapter 5160-58 of the Administrative Code:
(a)
Choices home care
attendant, participant-directed;
(b)
Homemaker
services provided through an agency;
(c)
Personal care
services provided through an agency and participant-directed;
and
(d)
Waiver nursing services provided through an
agency.
(4)
Ohio home care services, as described in Chapter
5160-46 of the Administrative Code:
(a)
Personal care aide services provided through an agency;
and
(b)
Waiver nursing services provided through an
agency.
(5)
Pre-admission screening system providing options and
resources today (PASSPORT) services, as described in Chapter 173-39 of the
Administrative Code:
(a)
Choices home care attendant,
participant-directed;
(b)
Homemaker services provided through an
agency;
(c)
Personal care services provided through an agency and
participant-directed; and
(d)
Waiver nursing services provided through an
agency.
(6)
Self-empowered life funding participant-directed
homemaker/personal care services, as described in Chapter 5123-9 of the
Administrative Code.
(B) For the purpose of this rule, the following definitions apply:
(1)
"Agency" refers
to the following:
(a)
A home health agency provider of Ohio home care waiver
services, as described in Chapter 5160-46 of the Administrative
Code;
(b)
An Ohio department of aging (ODA) agency provider
certified under section
173.391 of the Revised Code;
and
(c)
A department of developmental disabilities (DODD)
agency provider certified under section
5123.045 of the Revised
Code.
(2)
"Appendix K" refers to a standalone appendix that may
be utilized by states during emergency situations to request amendment to
approved 1915(c) waivers. It includes actions that states can take under the
existing section 1915(c) home and community-based waiver authority in order to
respond to an emergency.
(3)
"Care management agency" and "service and support
administration entity" refers to an agency or entity delegated or contracted by
ODA, ODM, or DODD to perform care coordination activities and related functions
for individuals enrolled on a fee for service or managed care waiver
program.
(4)
"Direct care worker" refers to the person providing
hands on care to an individual receiving a medicaid 1915(c) waiver program
service.
(5)
"Extraordinary care" refers to hands-on assistance with
activities of daily living, incidental activities of daily living, and
supervisory monitoring care exceeding the range of activities a parent of a
minor child would ordinarily perform in the household on behalf of an
individual without a disability or chronic illness of the same age, or on
behalf of a spouse without a disability or chronic illness.
(6)
"Financial
Management Service (FMS)" refers to the entity contracted with ODA, Ohio
department of medicaid (ODM), DODD, or their designee to process payment of
participant-directed waiver services.
(7)
"Home and
community-based services (HCBS)" refers to services available to individuals to
help maintain their health and safety in a community setting in lieu of
institutional care as described in 42 C.F.R. 440 subpart A (October 1, 2023).
Programs which provide HCBS include the assisted living waiver, the individual
options waiver, the level one waiver, the MyCare Ohio waiver, the Ohio home
care waiver, pre-admission screening system providing options and resources
today (PASSPORT), and the self-empowered life funding waiver.
(8)
"Individual"
refers to a medicaid recipient receiving services through an HCBS waiver
program authorized under 1915(c) of the Social Security Act.
(9)
"Legal
representative" refers to a person or entity who has a legal standing to make
decisions on behalf of another person (e.g., a guardian who has been appointed
by the court or an individual who has power of attorney granted by the
individual).
(10)
"Non-agency provider" refers to the following:
(a)
A non-agency
provider of Ohio home care waiver services, as described in Chapter 5160-46 of
the Administrative Code;
(b)
An ODA certified non-agency provider, certified under
section 173.391 of the Revised Code;
and
(c)
A DODD certified independent provider, certified under
section 5123.045 of the Revised
Code.
(11)
"Parent" refers to an adoptive, biological, or
step-parent of an individual.
(12)
"Relative"
refers to children, grandparents, grandchildren, great-grandparents, great
grand-children, brothers, sisters, aunts, uncles, nephews, nieces, and
step-relations and parents of an individual above the age of
seventeen.
(C) Unless otherwise permitted in this rule or other home and community based services (HCBS) waiver program rules or other ODM rules, a parent of a minor child, a spouse, and other legal representatives are not eligible to bill for medicaid reimbursable waiver services to an individual for whom they serve as legal representative.
(D) Unless otherwise permitted in other HCBS waiver program rules, an agency fully or partially owned by an individual's legal representative is not eligible to bill for medicaid reimbursable waiver services to an individual for whom they serve as legal representative.
(E) Parents of minor child and spouse of an individual:
(1)
A parent of a minor child, or the spouse of an individual
may only provide HCBS waiver services to an individual if both of the following
conditions are met:
(a)
There is no other willing and able provider or direct
care worker available to provide the HCBS waiver services to the
individual.
(b)
ODM, ODA, DODD, or their designee has determined the
health and safety needs of the individual can be
ensured.
(2)
When conditions set forth in paragraph (E)(1) of this
rule are present, a parent of a minor child, or the spouse of an individual may
serve as a direct care worker, within the following parameters:
(a)
The parent of a
minor child is employed through an agency provider or provides an eligible
participant-directed service through an FMS.
(b)
The spouse is
employed through an agency provider or provides an eligible
participant-directed service through an FMS.
(c)
Unless otherwise
permitted in HCBS waiver program rules, or determined by ODM, DODD or their
designee, as necessary to ensure the health and safety of the individual and
authorized on the PCSP, an individual who is a minor child may receive a
maximum of forty hours per week of paid care from a parent or combination of
parents and may not exceed the amount of service the individual is assessed to
need. ODM, ODA, DODD or their designee may grant an exception to this
limitation, in accordance with departmental program operational
processes.
(d)
Unless otherwise permitted in HCBS waiver program
rules, or determined by ODM, ODA, DODD or their designee, as necessary to
ensure the health and safety of the individual and authorized on the PCSP, an
individual may receive a maximum of forty hours per week of paid care from
their spouse and may not exceed the amount of service the individual is
assessed to need. ODM, ODA, DODD or their designee may grant an exception to
this limitation, in accordance with departmental program operational
processes.
(e)
HCBS waiver services provided by a parent of a minor
child or by a spouse must meet extraordinary care requirements, as determined
through prescribed form, ODM 10372 "Ohio Extraordinary Care
Instrument";
(f)
Services provided by a parent of a minor child or by a
spouse may not be provided for respite purposes;
(g)
Individuals agree
to and cooperate with monthly care management agency or services and supports
administrator contacts. Contacts may be a combination of telephonic and
in-person visits, with no more than sixty calendar days between in-person
visits.
(h)
The parent of a minor child or spouse participates in
contact and visit requirements described in the individual's person-centered
services plan (PCSP).
(3)
HCBS waiver
services may not be provided to an individual by the foster parent of the
individual or by an agency in which the foster parent of the individual has an
ownership interest.
(4)
A spouse appointed as a legal guardian of an individual
must maintain evidence of the guardian's ability to be a direct care worker for
the individual in accordance with Rule 66.04 of the Rules of Superintendence
for the Courts of Ohio.
(F) Relatives of an individual above the age of seventeen years with a legal representative designation:
(1)
A parent of an individual above the age of seventeen years
may provide the services described in paragraph (A) of this rule while holding
the designation of:
(a)
Authorized representative,
(b)
Declaration for
mental health treatment,
(c)
General power of attorney,
(d)
Healthcare
(medical) power of attorney,
(e)
Representative
payee, or
(f)
Guardian appointed by the probate court who is
authorized by the court to be a direct service provider for the individual
under court order as permitted by Rule 66.04 of the Rules of Superintendence
for the Courts of Ohio.
(2)
Unless otherwise
permitted in HCBS waiver program rules, adult children, grandparents,
grandchildren, great-grandparents, great-grandchildren, brothers, sisters,
aunts, uncles, nephews, nieces, and step-relations may provide the services
described in paragraph (A) of this rule while holding the designation of:
(a)
Authorized
representative,
(b)
Declaration for mental health
treatment,
(c)
General power of attorney,
(d)
Healthcare
(medical) power of attorney, or
(e)
Guardian
appointed by the probate court who is authorized by the court to be a direct
service provider for the individual under court order as permitted by Rule
66.04 of the Rules of Superintendence for the Courts of Ohio.
(3)
Unless
otherwise permitted in HCBS waiver program rules or determined by ODM, ODA,
DODD or their designee, as necessary to ensure the health and safety of the
individual and authorized on the PCSP, paid care is limited to forty hours per
week per relative with legal decision-making authority, and may not exceed the
amount of service the individual is assessed to need.
(G) Limitations
(1)
A direct care worker providing services described in
paragraph (A) of this rule may not verify service provision on behalf of the
individual.
(2)
A direct care worker may not receive payment from any
source for activity other than the direct care for the individual during the
time authorized to provide HCBS waiver services.
(3)
A direct care
worker may not provide care to a person other than the authorized individual(s)
during medicaid billed hours.
(4)
Participant
directed services: if an individual chooses to designate a representative
through the FMS, the FMS designated representative(s) may not serve as a direct
care worker.
(H) The PCSP will document that the conditions set forth in paragraphs (E) and (F) of this rule are met.
(I) Within ninety days of the effective date of this rule, parents of minor children and spouses of individuals who were authorized to provide paid services under the Appendix K authority will be assessed by care management agencies or service and support administration entities, as appropriate, to determine whether they meet the requirements outlined in this rule in order to continue to provide services. The authorized parents of minor children and spouses of individuals may continue to provide paid services until the assessment has been completed or the ninety-day period has expired, whichever comes first.
(J) A decision by ODM, ODA, DODD, or their designee related to whether someone qualifies under this rule to serve as a provider or a direct care worker for an individual is not subject to notice and appeal rights under division 5101:6 of the Administrative Code.
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