As Passed by the Senate

127th General Assembly Regular Session 2007-2008

Sub. H. B. No. 405

Representative Bacon 

Cosponsors: Representatives Setzer, Zehringer, Hughes, McGregor, J., Wagoner, Fessler, Evans, Boyd, Schindel, Uecker, Mecklenborg, DeBose, Fende, Webster, Batchelder, Bolon, Brady, Brown, Budish, Celeste, Chandler, Collier, Domenick, Dyer, Flowers, Hite, Jones, Koziura, Letson, Mallory, Patton, Peterson, Sayre, Schlichter, Stewart, D., Ujvagi, Wachtmann, Yuko 

Senators Wagoner, Coughlin, Fedor, Harris, Miller, D., Morano, Niehaus, Roberts, Sawyer, Seitz, Spada, Mason 

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A BILL

To amend sections 5126.042 and 5126.055 of the

1

Revised Code to eliminate the requirement that

2

each county board of mental retardation and

3

developmental disabilities maintain a service

4

substitution list and long-term service planning

5

registry and revise the law governing county

6

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 made a request	69
to the county board that the individual receive home and	70
community-based services instead of the services the individual	71
received at the time the request for home and community-based	72
services was made to the county board.	73

(C) A county board shall establish a separate waiting list	74
for each of the following categories of services, and may	75
establish separate waiting lists within the waiting lists:	76

(1) Early childhood services;

77

(2) Educational programs for preschool and school age	78
children;	79

(3) Adult services;

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(4) Service and support administration;

81

(5) Residential services and supported living;

82

(6) Transportation services;

83

(7) Other services determined necessary and appropriate for	84
persons with mental retardation or a developmental disability	85
according to their individual habilitation or service plans;	86

(8) Family support services provided under section 5126.11 of	87
the Revised Code.	88

(D) Except as provided in division (G) of this section, a	89
county board shall do, as priorities, all of the following in	90
accordance with the assessment component, approved under section	91
5123.046 of the Revised Code, of the county board's plan developed	92
under section 5126.054 of the Revised Code:	93

(1) For the purpose of obtaining additional federal medicaid	94
funds for home and community-based services and medicaid case	95
management services, do both of the following:	96

(a) Give an individual who is eligible for home and	97
community-based services and meets both of the following	98
requirements priority over any other individual on a waiting list	99
established under division (C) of this section for home and	100
community-based services that include supported living,	101
residential services, or family support services:	102

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

103

(ii) Receives supported living or family support services.

104

(b) Give an individual who is eligible for home and	105
community-based services and meets both of the following	106
requirements priority over any other individual on a waiting list	107
established under division (C) of this section for home and	108
community-based services that include adult services:	109

(i) Resides in the individual's own home or the home of the	110
individual's family and will continue to reside in that home after	111
enrollment in home and community-based services;	112

(ii) Receives adult services from the county board.

113

(2) As federal medicaid funds become available pursuant to	114
division (D)(1) of this section, give an individual who is	115
eligible for home and community-based services and meets any of	116
the following requirements priority for such services over any	117
other individual on a waiting list established under division (C)	118
of this section:	119

(a) Does not receive residential services or supported	120
living, either needs services in the individual's current living	121
arrangement or will need services in a new living arrangement, and	122
has a primary caregiver who is sixty years of age or older;	123

(b) Is less than twenty-two years of age and has at least one	124
of the following service needs that are unusual in scope or	125
intensity:	126

(i) Severe behavior problems for which a behavior support	127
plan is needed;	128

(ii) An emotional disorder for which anti-psychotic	129
medication is needed;	130

(iii) A medical condition that leaves the individual	131
dependent on life-support medical technology;	132

(iv) A condition affecting multiple body systems for which a	133
combination of specialized medical, psychological, educational, or	134
habilitation services are needed;	135

(v) A condition the county board determines to be comparable	136
in severity to any condition described in divisions (D)(2)(b)(i)	137
to (iv) of this section and places the individual at significant	138
risk of institutionalization.	139

(c) Is twenty-two years of age or older, does not receive	140
residential services or supported living, and is determined by the	141
county board to have intensive needs for home and community-based	142
services on an in-home or out-of-home basis.	143

(3) In fiscal years 2002 and 2003, give an individual who is	144
eligible for home and community-based services, resides in an	145
intermediate care facility for the mentally retarded or nursing	146
facility, chooses to move to another setting with the help of home	147
and community-based services, and has been determined by the	148
department of mental retardation and developmental disabilities to	149
be capable of residing in the other setting, priority over any	150
other individual on a waiting list established under division (C)	151
of this section for home and community-based services who does not	152
meet these criteria. The department of mental retardation and	153
developmental disabilities shall identify the individuals to	154
receive priority under division (D)(3) of this section, assess the	155
needs of the individuals, and notify the county boards that are to	156
provide the individuals priority under division (D)(3) of this	157
section of the individuals identified by the department and the	158
individuals' assessed needs.	159

(E) Except as provided in division (G) of this section and	160
for a number of years and beginning on a date specified in rules	161
adopted under division (K) of this section, a county board shall	162
give an individual who is eligible for home and community-based	163
services, resides in a nursing facility, and chooses to move to	164
another setting with the help of home and community-based	165
services, priority over any other individual on a waiting list	166
established under division (C) of this section for home and	167
community-based services who does not meet these criteria.	168

(F) If two or more individuals on a waiting list established	169
under division (C) of this section for home and community-based	170
services have priority for the services pursuant to division	171
(D)(1) or (2) or (E) of this section, a county board may use,	172
until December 31, 2009, criteria specified in rules adopted	173
under division (K)(2) of this section in determining the order in	174
which the individuals with priority will be offered the services.	175
Otherwise, the county board shall offer the home and	176
community-based services to such individuals in the order they are	177
placed on the waiting list.	178

(G)(1) No individual may receive priority for services	179
pursuant to division (D) or (E) of this section over an individual	180
placed on a waiting list established under division (C) of this	181
section on an emergency status.	182

(2) No more than four hundred individuals in the state may	183
receive priority for services during the 2008 and 2009 biennium	184
pursuant to division (D)(2)(b) of this section.	185

(3) No more than a total of seventy-five individuals in the	186
state may receive priority for services during state fiscal years	187
2002 and 2003 pursuant to division (D)(3) of this section.	188

(4) No more than forty individuals in the state may receive	189
priority for services pursuant to division (E) of this section for	190
each year that priority category is in effect as specified in	191
rules adopted under division (K) of this section.	192

(H) Prior to establishing any waiting list under this	193
section, a county board shall develop and implement a policy for	194
waiting lists that complies with this section and rules adopted	195
under division (K) of this section.	196

Prior to placing an individual on a waiting list, the county	197
board shall assess the service needs of the individual in	198
accordance with all applicable state and federal laws. The county	199
board shall place the individual on the appropriate waiting list	200
and may place the individual on more than one waiting list. The	201
county board shall notify the individual of the individual's	202
placement and position on each waiting list on which the	203
individual is placed.	204

At least annually, the county board shall reassess the	205
service needs of each individual on a waiting list. If it	206
determines that an individual no longer needs a program or	207
service, the county board shall remove the individual from the	208
waiting list. If it determines that an individual needs a program	209
or service other than the one for which the individual is on the	210
waiting list, the county board shall provide the program or	211
service to the individual or place the individual on a waiting	212
list for the program or service in accordance with the board's	213
policy for waiting lists.	214

When a program or service for which there is a waiting list	215
becomes available, the county board shall reassess the service	216
needs of the individual next scheduled on the waiting list to	217
receive that program or service. If the reassessment demonstrates	218
that the individual continues to need the program or service, the	219
board shall offer the program or service to the individual. If it	220
determines that an individual no longer needs a program or	221
service, the county board shall remove the individual from the	222
waiting list. If it determines that an individual needs a program	223
or service other than the one for which the individual is on the	224
waiting list, the county board shall provide the program or	225
service to the individual or place the individual on a waiting	226
list for the program or service in accordance with the board's	227
policy for waiting lists. The county board shall notify the	228
individual of the individual's placement and position on the	229
waiting list on which the individual is placed.	230

(I) A child subject to a determination made pursuant to	231
section 121.38 of the Revised Code who requires the home and	232
community-based services provided through a medicaid component	233
that the department of mental retardation and developmental	234
disabilities administers under section 5111.871 of the Revised	235
Code shall receive services through that medicaid component. For	236
all other services, a child subject to a determination made	237
pursuant to section 121.38 of the Revised Code shall be treated as	238
an emergency by the county boards and shall not be subject to a	239
waiting list.	240

(J) Not later than the fifteenth day of March of each	241
even-numbered year, each county board shall prepare and submit to	242
the director of mental retardation and developmental disabilities	243
its recommendations for the funding of services for individuals	244
with mental retardation and developmental disabilities and its	245
proposals for reducing the waiting lists for services.	246

(K)(1) The department of mental retardation and developmental	247
disabilities shall adopt rules in accordance with Chapter 119. of	248
the Revised Code governing waiting lists established under this	249
section. The rules shall include procedures to be followed to	250
ensure that the due process rights of individuals placed on	251
waiting lists are not violated.	252

(2) As part of the rules adopted under this division, the	253
department shall adopt rules establishing criteria a county board	254
may use under division (F) of this section in determining the	255
order in which individuals with priority for home and	256
community-based services will be offered the services. The rules	257
shall also specify conditions under which a county board, when	258
there is no individual with priority for home and community-based	259
services pursuant to division (D)(1) or (2) or (E) of this section	260
available and appropriate for the services, may offer the services	261
to an individual on a waiting list for the services but not given	262
such priority for the services. The rules adopted under division	263
(K)(2) of this section shall cease to have effect December 31,	264
2009.	265

(3) As part of the rules adopted under this division, the	266
department shall adopt rules specifying both of the following for	267
the priority category established under division (E) of this	268
section:	269

(a) The number of years, which shall not exceed five, that	270
the priority category will be in effect;	271

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

272

(L) The following shall take precedence over the applicable	273
provisions of this section:	274

(1) Medicaid rules and regulations;

275

(2) Any specific requirements that may be contained within a	276
medicaid state plan amendment or waiver program that a county	277
board has authority to administer or with respect to which it has	278
authority to provide services, programs, or supports.	279

Sec. 5126.055.  (A) Except as provided in section 5126.056	280
of the Revised Code, a county board of mental retardation and	281
developmental disabilities has medicaid local administrative	282
authority to, and shall, do all of the following for an individual	283
with mental retardation or other developmental disability who	284
resides in the county that the county board serves and seeks or	285
receives home and community-based services:	286

(1) Perform assessments and evaluations of the individual. As	287
part of the assessment and evaluation process, the county board	288
shall do all of the following:	289

(a) Make a recommendation to the department of mental	290
retardation and developmental disabilities on whether the	291
department should approve or deny the individual's application for	292
the services, including on the basis of whether the individual	293
needs the level of care an intermediate care facility for the	294
mentally retarded provides;	295

(b) If the individual's application is denied because of the	296
county board's recommendation and the individual requests a	297
hearing under section 5101.35 of the Revised Code, present, with	298
the department of mental retardation and developmental	299
disabilities or department of job and family services, whichever	300
denies the application, the reasons for the recommendation and	301
denial at the hearing;	302

(c) If the individual's application is approved, recommend to	303
the departments of mental retardation and developmental	304
disabilities and job and family services the services that should	305
be included in the individual's individualized service plan and,	306
if either department approves, reduces, denies, or terminates a	307
service included in the individual's individualized service plan	308
under section 5111.871 of the Revised Code because of the county	309
board's recommendation, present, with the department that made the	310
approval, reduction, denial, or termination, the reasons for the	311
recommendation and approval, reduction, denial, or termination at	312
a hearing under section 5101.35 of the Revised Code.	313

(2) If the individual has been identified by the department	314
of mental retardation and developmental disabilities as an	315
individual to receive priority for home and community-based	316
services pursuant to division (D)(3) of section 5126.042 of the	317
Revised Code, assist the department in expediting the transfer of	318
the individual from an intermediate care facility for the mentally	319
retarded or nursing facility to the home and community-based	320
services;	321

(3) In accordance with the rules adopted under section	322
5126.046 of the Revised Code, perform the county board's duties	323
under that section regarding assisting the individual's right to	324
choose a qualified and willing provider of the services and, at a	325
hearing under section 5101.35 of the Revised Code, present	326
evidence of the process for appropriate assistance in choosing	327
providers;	328

(4)(3) If the county board is certified under section	329
5123.161 of the Revised Code to provide the services and agrees	330
to provide the services to the individual and the individual	331
chooses the county board to provide the services, furnish, in	332
accordance with the county board's medicaid provider agreement	333
and for the authorized reimbursement rate, the services the	334
individual requires;	335

(5)(4) Monitor the services provided to the individual and	336
ensure the individual's health, safety, and welfare. The	337
monitoring shall include quality assurance activities. If the	338
county board provides the services, the department of mental	339
retardation and developmental disabilities shall also monitor the	340
services.	341

(6)(5) Develop, with the individual and the provider of the	342
individual's services, an effective individualized service plan	343
that includes coordination of services, recommend that the	344
departments of mental retardation and developmental disabilities	345
and job and family services approve the plan, and implement the	346
plan unless either department disapproves it;	347

(7)(6) Have an investigative agent conduct investigations	348
under section 5126.313 of the Revised Code that concern the	349
individual;	350

(8)(7) Have a service and support administrator perform the	351
duties under division (B)(9) of section 5126.15 of the Revised	352
Code that concern the individual.	353

(B) A county board shall perform its medicaid local	354
administrative authority under this section in accordance with all	355
of the following:	356

(1) The county board's plan that the department of mental	357
retardation and developmental disabilities approves under section	358
5123.046 of the Revised Code;	359

(2) All applicable federal and state laws;

360

(3) All applicable policies of the departments of mental	361
retardation and developmental disabilities and job and family	362
services and the United States department of health and human	363
services;	364

(4) The department of job and family services' supervision	365
under its authority under section 5111.01 of the Revised Code to	366
act as the single state medicaid agency;	367

(5) The department of mental retardation and developmental	368
disabilities' oversight.	369

(C) The departments of mental retardation and developmental	370
disabilities and job and family services shall communicate with	371
and provide training to county boards regarding medicaid local	372
administrative authority granted by this section. The	373
communication and training shall include issues regarding audit	374
protocols and other standards established by the United States	375
department of health and human services that the departments	376
determine appropriate for communication and training. County	377
boards shall participate in the training. The departments shall	378
assess the county board's compliance against uniform standards	379
that the departments shall establish.	380

(D) A county board may not delegate its medicaid local	381
administrative authority granted under this section but may	382
contract with a person or government entity, including a council	383
of governments, for assistance with its medicaid local	384
administrative authority. A county board that enters into such a	385
contract shall notify the director of mental retardation and	386
developmental disabilities. The notice shall include the tasks and	387
responsibilities that the contract gives to the person or	388
government entity. The person or government entity shall comply in	389
full with all requirements to which the county board is subject	390
regarding the person or government entity's tasks and	391
responsibilities under the contract. The county board remains	392
ultimately responsible for the tasks and responsibilities.	393

(E) A county board that has medicaid local administrative	394
authority under this section shall, through the departments of	395
mental retardation and developmental disabilities and job and	396
family services, reply to, and cooperate in arranging compliance	397
with, a program or fiscal audit or program violation exception	398
that a state or federal audit or review discovers. The department	399
of job and family services shall timely notify the department of	400
mental retardation and developmental disabilities and the county	401
board of any adverse findings. After receiving the notice, the	402
county board, in conjunction with the department of mental	403
retardation and developmental disabilities, shall cooperate fully	404
with the department of job and family services and timely prepare	405
and send to the department a written plan of correction or	406
response to the adverse findings. The county board is liable for	407
any adverse findings that result from an action it takes or fails	408
to take in its implementation of medicaid local administrative	409
authority.	410

(F) If the department of mental retardation and developmental	411
disabilities or department of job and family services determines	412
that a county board's implementation of its medicaid local	413
administrative authority under this section is deficient, the	414
department that makes the determination shall require that county	415
board do the following:	416

(1) If the deficiency affects the health, safety, or welfare	417
of an individual with mental retardation or other developmental	418
disability, correct the deficiency within twenty-four hours;	419

(2) If the deficiency does not affect the health, safety, or	420
welfare of an individual with mental retardation or other	421
developmental disability, receive technical assistance from the	422
department or submit a plan of correction to the department that	423
is acceptable to the department within sixty days and correct the	424
deficiency within the time required by the plan of correction.	425

Section 2. That existing sections 5126.042 and 5126.055 of	426
the Revised Code are hereby repealed.	427