As Introduced

127th General Assembly Regular Session 2007-2008

H. B. No. 405

Representative Bacon 

Cosponsors: Representatives Setzer, Zehringer, Hughes, McGregor, J., Wagoner, Fessler, Evans, Boyd 

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A BILL

To amend sections 5126.042 and 5126.055 of the

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Revised Code to eliminate the requirement that

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each county board of mental retardation and

3

developmental disabilities maintain a service

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substitution list and long-term service planning

5

registry and revise the law governing county

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boards' waiting lists.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 5126.042 and 5126.055 of the Revised	8
Code be amended to read as follows:	9

Sec. 5126.042.  (A) As used in this section, "emergency:

10

(1) "Emergency" means any situation that creates for an	11
individual with mental retardation or developmental disabilities	12
a risk of substantial self-harm or substantial harm to others if	13
action is not taken within thirty days. An "emergency" may include	14
one or more of the following situations:	15

(1)(a) Loss of present residence for any reason, including	16
legal action;	17

(2)(b) Loss of present caretaker for any reason, including	18
serious illness of the caretaker, change in the caretaker's	19
status, or inability of the caretaker to perform effectively for	20
the individual;	21

(3)(c) Abuse, neglect, or exploitation of the individual;

22

(4)(d) Health and safety conditions that pose a serious risk	23
to the individual or others of immediate harm or death;	24

(5)(e) Change in the emotional or physical condition of the	25
individual that necessitates substantial accommodation that cannot	26
be reasonably provided by the individual's existing caretaker.	27

(2) "Service substitution list" means a service substitution	28
list established by a county board of mental retardation and	29
developmental disabilities before the effective date of this	30
amendment pursuant to division (B) of this section as this section	31
existed on the day immediately before the effective date of this	32
amendment.	33

(B) If a county board of mental retardation and developmental	34
disabilities determines that available resources are not	35
sufficient to meet the needs of all individuals who request	36
programs and services and may be offered the programs and	37
services, it shall establish waiting lists for services. The board	38
may establish priorities for making placements on its waiting	39
lists according to an individual's emergency status and shall	40
establish priorities in accordance with divisions (D) and (E) of	41
this section.	42

The individuals who may be placed on a waiting list include	43
individuals with a need for services on an emergency basis and	44
individuals who have requested services for which resources are	45
not available.	46

Except for an individual who is to receive priority for	47
services pursuant to division (D)(3) of this section, an	48
individual who currently receives a service but would like to	49
change to another service shall not be placed on a waiting list	50
but shall be placed on a service substitution list. The board	51
shall work with the individual, service providers, and all	52
appropriate entities to facilitate the change in service as	53
expeditiously as possible. The board may establish priorities for	54
making placements on its service substitution lists according to	55
an individual's emergency status.	56

In addition to maintaining waiting lists and service	57
substitution lists, a board shall maintain a long-term service	58
planning registry for individuals who wish to record their	59
intention to request in the future a service they are not	60
currently receiving. The purpose of the registry is to enable the	61
board to document requests and to plan appropriately. The board	62
may not place an individual on the registry who meets the	63
conditions for receipt of services on an emergency basis.	64

An individual placed on a county board's service substitution	65
list before the effective date of this amendment for the purpose	66
of obtaining home and community-based services shall be deemed to	67
have been placed on the county board's waiting list for home and	68
community-based services on the date the individual was placed on	69
the service substitution list.	70

(C) A county board shall establish a separate waiting list	71
for each of the following categories of services, and may	72
establish separate waiting lists within the waiting lists:	73

(1) Early childhood services;

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(2) Educational programs for preschool and school age	75
children;	76

(3) Adult services;

77

(4) Service and support administration;

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(5) Residential services and supported living;

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(6) Transportation services;

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(7) Other services determined necessary and appropriate for	81
persons with mental retardation or a developmental disability	82
according to their individual habilitation or service plans;	83

(8) Family support services provided under section 5126.11 of	84
the Revised Code.	85

(D) Except as provided in division (G) of this section, a	86
county board shall do, as priorities, all of the following in	87
accordance with the assessment component, approved under section	88
5123.046 of the Revised Code, of the county board's plan developed	89
under section 5126.054 of the Revised Code:	90

(1) For the purpose of obtaining additional federal medicaid	91
funds for home and community-based services and medicaid case	92
management services, do both of the following:	93

(a) Give an individual who is eligible for home and	94
community-based services and meets both of the following	95
requirements priority over any other individual on a waiting list	96
established under division (C) of this section for home and	97
community-based services that include supported living,	98
residential services, or family support services:	99

(i) Is twenty-two years of age or older;

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(ii) Receives supported living or family support services.

101

(b) Give an individual who is eligible for home and	102
community-based services and meets both of the following	103
requirements priority over any other individual on a waiting list	104
established under division (C) of this section for home and	105
community-based services that include adult services:	106

(i) Resides in the individual's own home or the home of the	107
individual's family and will continue to reside in that home after	108
enrollment in home and community-based services;	109

(ii) Receives adult services from the county board.

110

(2) As federal medicaid funds become available pursuant to	111
division (D)(1) of this section, give an individual who is	112
eligible for home and community-based services and meets any of	113
the following requirements priority for such services over any	114
other individual on a waiting list established under division (C)	115
of this section:	116

(a) Does not receive residential services or supported	117
living, either needs services in the individual's current living	118
arrangement or will need services in a new living arrangement, and	119
has a primary caregiver who is sixty years of age or older;	120

(b) Is less than twenty-two years of age and has at least one	121
of the following service needs that are unusual in scope or	122
intensity:	123

(i) Severe behavior problems for which a behavior support	124
plan is needed;	125

(ii) An emotional disorder for which anti-psychotic	126
medication is needed;	127

(iii) A medical condition that leaves the individual	128
dependent on life-support medical technology;	129

(iv) A condition affecting multiple body systems for which a	130
combination of specialized medical, psychological, educational, or	131
habilitation services are needed;	132

(v) A condition the county board determines to be comparable	133
in severity to any condition described in divisions (D)(2)(b)(i)	134
to (iv) of this section and places the individual at significant	135
risk of institutionalization.	136

(c) Is twenty-two years of age or older, does not receive	137
residential services or supported living, and is determined by the	138
county board to have intensive needs for home and community-based	139
services on an in-home or out-of-home basis.	140

(3) In fiscal years 2002 and 2003, give an individual who is	141
eligible for home and community-based services, resides in an	142
intermediate care facility for the mentally retarded or nursing	143
facility, chooses to move to another setting with the help of home	144
and community-based services, and has been determined by the	145
department of mental retardation and developmental disabilities to	146
be capable of residing in the other setting, priority over any	147
other individual on a waiting list established under division (C)	148
of this section for home and community-based services who does not	149
meet these criteria. The department of mental retardation and	150
developmental disabilities shall identify the individuals to	151
receive priority under division (D)(3) of this section, assess the	152
needs of the individuals, and notify the county boards that are to	153
provide the individuals priority under division (D)(3) of this	154
section of the individuals identified by the department and the	155
individuals' assessed needs.	156

(E) Except as provided in division (G) of this section and	157
for a number of years and beginning on a date specified in rules	158
adopted under division (K) of this section, a county board shall	159
give an individual who is eligible for home and community-based	160
services, resides in a nursing facility, and chooses to move to	161
another setting with the help of home and community-based	162
services, priority over any other individual on a waiting list	163
established under division (C) of this section for home and	164
community-based services who does not meet these criteria.	165

(F) If two or more individuals on a waiting list established	166
under division (C) of this section for home and community-based	167
services have priority for the services pursuant to division	168
(D)(1) or (2) or (E) of this section, a county board may use,	169
until December 31, 2009, criteria specified in rules adopted	170
under division (K)(2) of this section in determining the order in	171
which the individuals with priority will be offered the services.	172
Otherwise, the county board shall offer the home and	173
community-based services to such individuals in the order they are	174
placed on the waiting list.	175

(G)(1) No individual may receive priority for services	176
pursuant to division (D) or (E) of this section over an individual	177
placed on a waiting list established under division (C) of this	178
section on an emergency status.	179

(2) No more than four hundred individuals in the state may	180
receive priority for services during the 2008 and 2009 biennium	181
pursuant to division (D)(2)(b) of this section.	182

(3) No more than a total of seventy-five individuals in the	183
state may receive priority for services during state fiscal years	184
2002 and 2003 pursuant to division (D)(3) of this section.	185

(4) No more than forty individuals in the state may receive	186
priority for services pursuant to division (E) of this section for	187
each year that priority category is in effect as specified in	188
rules adopted under division (K) of this section.	189

(H) Prior to establishing any waiting list under this	190
section, a county board shall develop and implement a policy for	191
waiting lists that complies with this section and rules adopted	192
under division (K) of this section.	193

Prior to placing an individual on a waiting list, the county	194
board shall assess the service needs of the individual in	195
accordance with all applicable state and federal laws. The county	196
board shall place the individual on the appropriate waiting list	197
and may place the individual on more than one waiting list. The	198
county board shall notify the individual of the individual's	199
placement and position on each waiting list on which the	200
individual is placed.	201

At least annually, the county board shall reassess the	202
service needs of each individual on a waiting list. If it	203
determines that an individual no longer needs a program or	204
service, the county board shall remove the individual from the	205
waiting list. If it determines that an individual needs a program	206
or service other than the one for which the individual is on the	207
waiting list, the county board shall provide the program or	208
service to the individual or place the individual on a waiting	209
list for the program or service in accordance with the board's	210
policy for waiting lists.	211

When a program or service for which there is a waiting list	212
becomes available, the county board shall reassess the service	213
needs of the individual next scheduled on the waiting list to	214
receive that program or service. If the reassessment demonstrates	215
that the individual continues to need the program or service, the	216
board shall offer the program or service to the individual. If it	217
determines that an individual no longer needs a program or	218
service, the county board shall remove the individual from the	219
waiting list. If it determines that an individual needs a program	220
or service other than the one for which the individual is on the	221
waiting list, the county board shall provide the program or	222
service to the individual or place the individual on a waiting	223
list for the program or service in accordance with the board's	224
policy for waiting lists. The county board shall notify the	225
individual of the individual's placement and position on the	226
waiting list on which the individual is placed.	227

(I) A child subject to a determination made pursuant to	228
section 121.38 of the Revised Code who requires the home and	229
community-based services provided through a medicaid component	230
that the department of mental retardation and developmental	231
disabilities administers under section 5111.871 of the Revised	232
Code shall receive services through that medicaid component. For	233
all other services, a child subject to a determination made	234
pursuant to section 121.38 of the Revised Code shall be treated as	235
an emergency by the county boards and shall not be subject to a	236
waiting list.	237

(J) Not later than the fifteenth day of March of each	238
even-numbered year, each county board shall prepare and submit to	239
the director of mental retardation and developmental disabilities	240
its recommendations for the funding of services for individuals	241
with mental retardation and developmental disabilities and its	242
proposals for reducing the waiting lists for services.	243

(K)(1) The department of mental retardation and developmental	244
disabilities shall adopt rules in accordance with Chapter 119. of	245
the Revised Code governing waiting lists established under this	246
section. The rules shall include procedures to be followed to	247
ensure that the due process rights of individuals placed on	248
waiting lists are not violated.	249

(2) As part of the rules adopted under this division, the	250
department shall adopt rules establishing criteria a county board	251
may use under division (F) of this section in determining the	252
order in which individuals with priority for home and	253
community-based services will be offered the services. The rules	254
shall also specify conditions under which a county board, when	255
there is no individual with priority for home and community-based	256
services pursuant to division (D)(1) or (2) or (E) of this section	257
available and appropriate for the services, may offer the services	258
to an individual on a waiting list for the services but not given	259
such priority for the services. The rules adopted under division	260
(K)(2) of this section shall cease to have effect December 31,	261
2009.	262

(3) As part of the rules adopted under this division, the	263
department shall adopt rules specifying both of the following for	264
the priority category established under division (E) of this	265
section:	266

(a) The number of years, which shall not exceed five, that	267
the priority category will be in effect;	268

(b) The date that the priority category is to go into effect.

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(L) The following shall take precedence over the applicable	270
provisions of this section:	271

(1) Medicaid rules and regulations;

272

(2) Any specific requirements that may be contained within a	273
medicaid state plan amendment or waiver program that a county	274
board has authority to administer or with respect to which it has	275
authority to provide services, programs, or supports.	276

Sec. 5126.055.  (A) Except as provided in section 5126.056	277
of the Revised Code, a county board of mental retardation and	278
developmental disabilities has medicaid local administrative	279
authority to, and shall, do all of the following for an individual	280
with mental retardation or other developmental disability who	281
resides in the county that the county board serves and seeks or	282
receives home and community-based services:	283

(1) Perform assessments and evaluations of the individual. As	284
part of the assessment and evaluation process, the county board	285
shall do all of the following:	286

(a) Make a recommendation to the department of mental	287
retardation and developmental disabilities on whether the	288
department should approve or deny the individual's application for	289
the services, including on the basis of whether the individual	290
needs the level of care an intermediate care facility for the	291
mentally retarded provides;	292

(b) If the individual's application is denied because of the	293
county board's recommendation and the individual requests a	294
hearing under section 5101.35 of the Revised Code, present, with	295
the department of mental retardation and developmental	296
disabilities or department of job and family services, whichever	297
denies the application, the reasons for the recommendation and	298
denial at the hearing;	299

(c) If the individual's application is approved, recommend to	300
the departments of mental retardation and developmental	301
disabilities and job and family services the services that should	302
be included in the individual's individualized service plan and,	303
if either department approves, reduces, denies, or terminates a	304
service included in the individual's individualized service plan	305
under section 5111.871 of the Revised Code because of the county	306
board's recommendation, present, with the department that made the	307
approval, reduction, denial, or termination, the reasons for the	308
recommendation and approval, reduction, denial, or termination at	309
a hearing under section 5101.35 of the Revised Code.	310

(2) If the individual has been identified by the department	311
of mental retardation and developmental disabilities as an	312
individual to receive priority for home and community-based	313
services pursuant to division (D)(3) of section 5126.042 of the	314
Revised Code, assist the department in expediting the transfer of	315
the individual from an intermediate care facility for the mentally	316
retarded or nursing facility to the home and community-based	317
services;	318

(3) In accordance with the rules adopted under section	319
5126.046 of the Revised Code, perform the county board's duties	320
under that section regarding assisting the individual's right to	321
choose a qualified and willing provider of the services and, at a	322
hearing under section 5101.35 of the Revised Code, present	323
evidence of the process for appropriate assistance in choosing	324
providers;	325

(4)(3) If the county board is certified under section	326
5123.161 of the Revised Code to provide the services and agrees	327
to provide the services to the individual and the individual	328
chooses the county board to provide the services, furnish, in	329
accordance with the county board's medicaid provider agreement	330
and for the authorized reimbursement rate, the services the	331
individual requires;	332

(5)(4) Monitor the services provided to the individual and	333
ensure the individual's health, safety, and welfare. The	334
monitoring shall include quality assurance activities. If the	335
county board provides the services, the department of mental	336
retardation and developmental disabilities shall also monitor the	337
services.	338

(6)(5) Develop, with the individual and the provider of the	339
individual's services, an effective individualized service plan	340
that includes coordination of services, recommend that the	341
departments of mental retardation and developmental disabilities	342
and job and family services approve the plan, and implement the	343
plan unless either department disapproves it;	344

(7)(6) Have an investigative agent conduct investigations	345
under section 5126.313 of the Revised Code that concern the	346
individual;	347

(8)(7) Have a service and support administrator perform the	348
duties under division (B)(9) of section 5126.15 of the Revised	349
Code that concern the individual.	350

(B) A county board shall perform its medicaid local	351
administrative authority under this section in accordance with all	352
of the following:	353

(1) The county board's plan that the department of mental	354
retardation and developmental disabilities approves under section	355
5123.046 of the Revised Code;	356

(2) All applicable federal and state laws;

357

(3) All applicable policies of the departments of mental	358
retardation and developmental disabilities and job and family	359
services and the United States department of health and human	360
services;	361

(4) The department of job and family services' supervision	362
under its authority under section 5111.01 of the Revised Code to	363
act as the single state medicaid agency;	364

(5) The department of mental retardation and developmental	365
disabilities' oversight.	366

(C) The departments of mental retardation and developmental	367
disabilities and job and family services shall communicate with	368
and provide training to county boards regarding medicaid local	369
administrative authority granted by this section. The	370
communication and training shall include issues regarding audit	371
protocols and other standards established by the United States	372
department of health and human services that the departments	373
determine appropriate for communication and training. County	374
boards shall participate in the training. The departments shall	375
assess the county board's compliance against uniform standards	376
that the departments shall establish.	377

(D) A county board may not delegate its medicaid local	378
administrative authority granted under this section but may	379
contract with a person or government entity, including a council	380
of governments, for assistance with its medicaid local	381
administrative authority. A county board that enters into such a	382
contract shall notify the director of mental retardation and	383
developmental disabilities. The notice shall include the tasks and	384
responsibilities that the contract gives to the person or	385
government entity. The person or government entity shall comply in	386
full with all requirements to which the county board is subject	387
regarding the person or government entity's tasks and	388
responsibilities under the contract. The county board remains	389
ultimately responsible for the tasks and responsibilities.	390

(E) A county board that has medicaid local administrative	391
authority under this section shall, through the departments of	392
mental retardation and developmental disabilities and job and	393
family services, reply to, and cooperate in arranging compliance	394
with, a program or fiscal audit or program violation exception	395
that a state or federal audit or review discovers. The department	396
of job and family services shall timely notify the department of	397
mental retardation and developmental disabilities and the county	398
board of any adverse findings. After receiving the notice, the	399
county board, in conjunction with the department of mental	400
retardation and developmental disabilities, shall cooperate fully	401
with the department of job and family services and timely prepare	402
and send to the department a written plan of correction or	403
response to the adverse findings. The county board is liable for	404
any adverse findings that result from an action it takes or fails	405
to take in its implementation of medicaid local administrative	406
authority.	407

(F) If the department of mental retardation and developmental	408
disabilities or department of job and family services determines	409
that a county board's implementation of its medicaid local	410
administrative authority under this section is deficient, the	411
department that makes the determination shall require that county	412
board do the following:	413

(1) If the deficiency affects the health, safety, or welfare	414
of an individual with mental retardation or other developmental	415
disability, correct the deficiency within twenty-four hours;	416

(2) If the deficiency does not affect the health, safety, or	417
welfare of an individual with mental retardation or other	418
developmental disability, receive technical assistance from the	419
department or submit a plan of correction to the department that	420
is acceptable to the department within sixty days and correct the	421
deficiency within the time required by the plan of correction.	422

Section 2. That existing sections 5126.042 and 5126.055 of	423
the Revised Code are hereby repealed.	424