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Sub. S. B. No. 191As Passed by the SenateAs Passed by the Senate
124th General Assembly | Regular Session | 2001-2002 |
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SENATORS Spada, White, Randy Gardner, Jacobson, Fingerhut, Prentiss, Armbruster, Austria, Blessing, Carnes, DiDonato, Finan, Hagan, Harris, Hottinger, Jordan, Mead, Mumper, Oelslager, Roberts, Shoemaker, Wachtmann, Herington, Robert Gardner, Ryan
A BILL
To amend sections 4723.61, 5123.19,
5123.50, 5123.611,
5126.354,
5126.355, and
5126.357; to amend, for
the purpose of
adopting new
section numbers as
indicated in parentheses, 4723.61 (4723.071),
sections
5126.354 (5123.205), 5126.355 (5123.206),
and
5126.357
(5123.208); to enact sections
5123.201, 5123.202,
5123.203,
5123.204, 5123.207,
and 5126.36; and to repeal sections 4723.62,
5123.193, 5126.35, 5126.351, 5126.352,
5126.353,
and 5126.356 of the Revised Code to revise
the law
governing the licensure of residential
facilities
for individuals with mental retardation
and
developmental disabilities and to revise the law
pertaining to the authority of certain personnel to
administer
medications and perform health-related
activities for individuals
with mental retardation
and developmental disabilities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4723.61, 5123.19, 5123.50,
5123.611,
5126.354,
5126.355, and 5126.357 be amended; sections 4723.61
(4723.071),
5126.354 (5123.205),
5126.355 (5123.206), and 5126.357
(5123.208)
be amended for the
purpose of adopting new section
numbers as
indicated in
parentheses; and sections 5123.201,
5123.202,
5123.203, 5123.204,
5123.207, and 5126.36 of the Revised
Code be
enacted to read as follows:
Sec. 4723.61
4723.071. (A) As used in this section, "ICF/MR
health-related activities," "MR/DD
personnel," and
"ICF/MR worker
prescribed medication" have the
same meanings as in section
5123.193
5123.201 of
the Revised Code. (B) The board of nursing shall adopt rules as necessary to
govern
the
nursing delegation
specified in
as it applies to MR/DD
personnel who administer prescribed medication and perform
health-related activities pursuant to the authority granted under
section
5123.193
5123.202 of the
Revised Code.
The board shall
adopt initial rules not later than
ninety days after the effective
date of this
not establish any requirement in the rules that is
inconsistent with the authority of MR/DD personnel to perform
services pursuant to that section. The rules
shall be adopted in
accordance
with Chapter 119. of the Revised
Code
and establish the
following: (1) Standards that an instructional program must meet to
be
approved as a program that trains registered nurses to
instruct
ICF/MR workers to give oral and apply topical
medications,
including the minimum types of information that must
be covered in
the program and the minimum qualifications the
instructional
personnel must possess. To qualify for approval, a
program must
be at least a one-day program and have been approved
as a
faculty-directed continuing nursing education activity
pursuant to
rules adopted under section 4723.07 of the Revised
Code.
(2) Standards that a unit of instruction must meet to be
approved as an independent study module for nurses on the
instruction of medication courses for ICF/MR workers and the
statutes and rules applicable to those workers. To qualify for
approval, an independent study module must have been approved as
a
continuing nursing education activity pursuant to rules adopted
under section 4723.07 of the Revised Code.
(3) Standards that a registered nurse must meet to be
eligible to teach ICF/MR workers to give oral or apply topical
medications. With regard to training, the nurse must
successfully
complete one of the following:
(a) An approved training program that trains registered
nurses to instruct ICF/MR workers in giving oral and applying
topical medications;
(b) An approved training program given by the department
of
mental retardation and developmental disabilities that trains
nurses to be instructors of the training program described in the
"program manual for implementation of the medication
administration by unlicensed personnel in ICF/MR group homes of
15
beds or less," as developed by the departments of health and
mental retardation and developmental disabilities, as well as an
independent study module for nurses on the instruction of
medication courses for ICF/MR workers and the statutes and rules
applicable to those workers.
(4) Standards that a nurse must meet to remain eligible to
instruct ICF/MR workers in giving oral and applying topical
medications;
(5) Standards that a course of instruction must meet to be
approved as a medication course for ICF/MR workers, including the
minimum types of information that must be covered in the course.
The course must be conducted by a registered nurse, except that
the board's standards may allow the use of other health care
professionals listed in division (A) of section 5123.193 of the
Revised Code to provide instruction within the scope of their
professions, including licensed practical nurses acting under the
direction of registered nurses.
(6) Standards an ICF/MR worker must meet to be eligible to
take the medication course for ICF/MR workers and to demonstrate
successful completion of the course;
(7) Standards for the annual training an ICF/MR worker
must
complete to remain elegible to give oral and apply topical
medications;
(8) Standards nurses must follow in delegating authority
to
give oral or apply topical medications in an ICF/MR, including
any
conditions or limits pertaining to the delegation;
(9) Standards nurses must follow in providing on-site or
off-site direction and supervision of ICF/MR workers who have
been
authorized to give oral or apply topical medications;
(10) Standards ICF/MR workers must follow when giving oral
or applying topical medications to ICF/MR residents.
(C)
The approval of programs, courses, and training
modules
pertaining to delegation of authority to give oral or
apply
topical medications may be made by the board of nursing or
by an
entity the board recognizes as an approver of instructional
programs. (D) The board of nursing may accept complaints from any
person or entity regarding the performance or qualifications of
an
ICF/MR worker to give oral or apply topical medications
MR/DD
personnel who perform services pursuant to the authority granted
under
section
5123.193
5123.202 of the Revised Code. The board
shall refer all
complaints received to the department of mental
retardation and
developmental disabilities. The board may
participate in an
investigation of a complaint being conducted by
the department
under section
5123.193
5123.202 of the Revised
Code.
Sec. 5123.19. (A) As used in this section and in
sections
5123.191, 5123.194, and 5123.20 of the
Revised Code: (1) "Residential facility" means a home or facility in
which
a mentally retarded or developmentally disabled person
resides,
except the home of a relative or legal guardian in which
a
mentally retarded or developmentally disabled person resides, a
respite care home certified under section 5126.05 of the Revised
Code, a county home or district home operated pursuant to Chapter
5155. of the Revised Code, or a dwelling in which the only
mentally
retarded or developmentally disabled residents are in an
independent living arrangement or are being provided supported
living. (2) "Political subdivision" means a municipal corporation,
county, or township. (3) "Independent living arrangement" means an arrangement
in
which a mentally retarded or developmentally disabled person
resides in an individualized setting chosen by the person or
the
person's
guardian, which is not dedicated principally to the
provision of
residential services for mentally retarded or
developmentally
disabled persons, and for which no financial
support is received
for rendering such service from any
governmental agency by a
provider of residential services. (4) "Supported living" has the same meaning as in section
5126.01 of the Revised Code. (5) "Licensee" means the person or government agency that
has applied for a license to operate a residential facility and
to
which the license was issued under this section. (B) Every person or government agency desiring to operate
a
residential facility shall apply for licensure of the facility
to
the director of mental retardation and developmental
disabilities
unless the residential facility is subject to
section 3721.02,
3722.04, 5103.03, or 5119.20 of the Revised
Code. Notwithstanding
Chapter 3721. of the Revised Code, a
nursing home that is
certified as an intermediate care facility
for the mentally
retarded under Title XIX of the "Social Security
Act,"
49
79 Stat.
620
286 (1935
1965), 42 U.S.C.A.
301
1396, as amended, shall
apply
for licensure of the portion of the home that is certified
as an
intermediate care facility for the mentally retarded. (C) The director of mental retardation and developmental
disabilities shall license
and
inspect the operation of
residential facilities.
The director may deny
or revoke such
licenses.
An Except as provided in divisions (G) and (O) of this
section,
a
initial license
is valid
until it is
may be issued for a period
that does not exceed one year. A license may be renewed for a
period that does not exceed three years. The director, when
issuing or renewing a license, shall specify the period for which
the license is being issued or renewed. A license remains valid
for the length of the licensing period specified by the director,
unless the
license is
terminated, revoked, or voluntarily
surrendered.
Appeals
(D) If it is determined that an applicant or licensee
is
not in compliance with this section or the rules adopted under
it,
the director may deny issuance of a license, refuse to renew a
license, terminate a license, revoke a license, issue an order for
the suspension of admissions to a facility, issue an order for the
placement of a monitor at a facility, issue an order for the
immediate removal of residents, or take any other action the
director considers necessary. In the director's selection and
administration of the sanction to be imposed, all of the following
apply:
(1) The director may deny, refuse to renew, or revoke a
license, if the director determines that the applicant or licensee
has demonstrated a pattern of serious noncompliance or that
a
violation creates a substantial risk to the health and safety of
residents of a residential facility. (2) The director may terminate a license if more than twelve
consecutive months have elapsed since the
residential facility was
last occupied by a resident or the notice
required by division (J)
of this section is not given. (3) The director may issue an order for the suspension of
admissions to a facility for any violation that may result in
sanctions under
division (D)(1) of this section and for any other
violation
specified in rules adopted under division (G)(2) of this
section.
If the suspension of admissions is imposed for a
violation that
may result in sanctions under division (D)(1) of
this section, the
director may impose the suspension before
providing an opportunity for an adjudication under Chapter 119. of
the Revised Code. The
director shall rescind an order for the
suspension of admissions
when the violation that formed the basis
for the order has been
corrected.
(4) The director may order the placement of a monitor at a
residential facility for any violation specified in rules adopted
under division (G)(2) of this section. The director shall rescind
the order when the violation that formed the basis for the order
has been corrected.
(5) If the director determines that two or more residential
facilities owned or operated by the same person or government
entity are not being operated in compliance with this chapter or
the rules adopted under it, and the director's findings are based
on the same or a substantially similar action, practice,
circumstance, or incident that creates a substantial risk to the
health and safety of the residents, the director shall conduct a
survey as soon as practicable at each residential facility owned
or operated by that person or government entity. The director may
take any action authorized by this section with respect to any
facility found to be operating in violation of this section or the
rules adopted under it.
(6) When the director initiates license revocation
proceedings,
no opportunity for submitting a plan of correction
shall be
given.
The director shall notify the licensee by letter
of the
initiation
of such proceedings. The letter shall list the
deficiencies of
the residential facility and inform the licensee
that no plan of
correction will be accepted. The director shall
also notify each
affected resident, the resident's guardian if
the
resident is an
adult for whom a guardian has been appointed,
the
resident's
parent or guardian if the resident is a minor, and
the
county
board of mental retardation and developmental
disabilities. (7) Pursuant to rules which shall be adopted in
accordance
with
Chapter 119. of the Revised Code, the director may order the
immediate removal of residents from a residential facility
whenever conditions at the facility present an immediate danger
of
physical or psychological harm to the residents. (8) In determining whether a residential facility is being
operated in compliance with this chapter or the rules adopted
under it, or whether conditions at a residential facility present
an immediate danger of physical or psychological harm to the
residents, the director may rely on information obtained by a
county board of mental retardation and developmental disabilities
or other governmental agencies. (9) In proceedings initiated to deny, refuse to renew, or
revoke licenses, the director may deny, refuse to renew, or revoke
a license
regardless of whether some or all of the deficiencies
that
prompted the proceedings have been corrected at the time of
the
hearing. (E) The director shall establish a program
under which
public notification may be made when the director has initiated
license revocation proceedings or has issued an order for the
suspension of admissions, placement of a monitor, or removal of
residents. The director shall adopt rules in accordance with
Chapter 119. of the Revised Code as considered necessary to
implement this division. The rules shall establish the procedures
by which the public notification will be made and specify the
circumstances for which the notification must be made.
At a
minimum, public notification shall be made if the director
has
taken action against the facility in the eighteen-month period
immediately preceding the director's latest action against the
facility and the latest action is being taken for the same or
substantially similar violation of this section or the rules
adopted under it. The rules shall specify a method for removing
or amending the public notification if the
director's action is
found to have been unjustified or the
violation at the residential
facility has been corrected. (F)(1) Except as provided in division (F)(2) of this section,
appeals from proceedings initiated to
deny
applications for
licenses or to
revoke
licenses
impose a sanction under division
(D) of this section shall be
conducted
in
accordance
with Chapter
119. of the Revised Code.
(2) Appeals from proceedings initiated to order the
suspension
of
admissions to a facility shall be conducted in
accordance with
Chapter 119. of the Revised Code, unless the order
was issued
before providing an opportunity for an adjudication, in
which case
all of the following apply:
(a) The licensee may request a hearing not later than
ten
days after receiving the notice specified in section 119.07 of
the
Revised Code.
(b) If a timely request for a hearing is made, the hearing
shall commence not later than thirty days after the department
receives the request.
(c) After commencing, the hearing shall continue
uninterrupted, except for Saturdays, Sundays, and legal holidays,
unless other interruptions are agreed to by the licensee and
the
director.
(d) If the hearing is conducted by a hearing examiner, the
hearing examiner shall file a report and recommendations not later
than ten days after the close of the hearing.
(e) Not later than five days after the hearing examiner
files the report and recommendations, the licensee may file
objections to the report and recommendations.
(f) Not later than fifteen days after the hearing examiner
files the report and recommendations, the director shall issue an
order approving, modifying, or disapproving the report and
recommendations.
(g) Notwithstanding the pendency of the hearing, the
director shall rescind the order for the suspension of admissions
when the violation that formed the basis for the order is
corrected.
(G) In accordance with Chapter 119. of the Revised Code, the
director shall adopt and may amend and rescind rules for
licensing
and regulating the operation of residential facilities.
The rules
shall establish
and specify the following: (1) Procedures
and criteria for issuing,
and renewing
licenses, including procedures and criteria for determining the
length of the licensing period that the director must specify for
each license when it is issued or renewed; (2) Procedures and criteria for denying,
refusing to renew,
terminating,
and revoking
licenses
and for ordering the suspension
of
admissions
to a facility, placement of a monitor
at a facility,
and the
immediate removal of residents from a facility; (2)(3) Fees for issuing
and renewing licenses;
(3)(4) Procedures for
the inspection of
surveying
residential
facilities;
(4)(5) Requirements for the training of residential facility
personnel;
(5)(6) Classifications for the various types of residential
facilities;
(6)(7) Certification procedures for licensees and management
contractors that the director determines are necessary to ensure
that they have the skills and qualifications to properly operate
or manage residential facilities;
(7)(8) The maximum number of persons who may be served in a
particular type of residential facility;
(8)(9) Uniform procedures for admission of persons to and
transfers and discharges of persons from residential facilities;
(9)(10) Other standards for the operation of residential
facilities and the services provided at residential facilities;
(10)(11) Procedures for waiving any provision of any rule
adopted under this section.
(D)(H) Before issuing a license, the director of the
department
or the director's designee shall conduct
an
inspection
a survey of
the
residential facility for which application is
made. The
director
or the director's designee shall conduct
an
inspection
a
survey of
each licensed
residential facility at least
once
each
year
during the period the license is valid and may
conduct
additional inspections as needed.
An inspection
A survey
includes
but is
not limited to an on-site examination and
evaluation of the
residential facility, its personnel, and the
services provided
there.
In conducting
inspections
surveys, the director or the
director's
designee
shall be given access to the residential
facility; all records,
accounts, and any other documents related
to the operation of the
facility; the licensee; the residents of
the facility; and all
persons acting on behalf of, under the
control of, or in
connection with the licensee. The licensee and
all persons on
behalf of, under the control of, or in connection
with the
licensee shall cooperate with the director or the
director's
designee in
conducting the
inspection
survey. Following each
inspection
survey, unless the director
initiates a license revocation proceeding, the director or the
director's designee shall
provide the licensee with a report
listing any deficiencies,
specifying a timetable within which the
licensee shall submit a
plan of correction describing how the
deficiencies will be
corrected, and, when appropriate, specifying
a timetable within
which the licensee must correct the
deficiencies. After a plan
of
correction is submitted, the
director or the director's
designee
shall
approve or disapprove
the plan. A copy of the report and
any
approved plan of
correction shall be provided to any person
who
requests it. If it is determined
that a residential facility
is not
being
operated in compliance with this chapter or the rules
adopted
under it, the director may take such steps as are
necessary,
including, but not
limited to,
suspension of
admissions
to the
residential facility, placement of a monitor at
the
residential
facility, and the
initiation of license
revocation
proceedings.
When the director initiates
license revocation proceedings,
no opportunity for submitting
a plan of correction shall be
given.
The director shall notify the
licensee by letter of the
initiation
of such proceedings. The
letter shall list the
deficiencies of
the residential facility and
inform the licensee
that no plan of
correction will be accepted.
The director shall
also notify each
affected resident, the
resident's guardian if
the resident is an
adult for whom a
guardian has been appointed,
the resident's
parent or guardian if
the resident is a minor, and
the county
board of mental
retardation and developmental
disabilities.
Pursuant to rules which shall be adopted in
accordance with
Chapter 119. of the Revised Code, the director may order the
immediate removal of residents from a residential facility
whenever conditions at the facility present an immediate danger
of
physical or psychological harm to the residents.
In determining whether a residential facility is being
operated in compliance with this chapter or the rules adopted
under it, or whether conditions at a residential facility present
an immediate danger of physical or psychological harm to the
residents, the director may rely on information obtained by a
county board of mental retardation and developmental disabilities
or other governmental agencies
in the course of investigating
major unusual incidents.
The director shall adopt rules in
accordance with Chapter 119. of the Revised Code that specify
what
constitute "major unusual incidents."
The director shall
suspend without pay for a period of at
least three days
initiate disciplinary action against any
department employee who notifies or causes
the notification to any
unauthorized person of an unannounced
inspection
survey of a
residential facility by an authorized
representative of the
department. (E) In proceedings initiated to deny or
revoke licenses
under this section, the director may deny or revoke a license
regardless of whether some or all of
the deficiencies that
prompted the proceedings have been corrected
at the time of the
hearing.
(F)(I) In addition to any other information which may be
required of applicants for
a
license pursuant to this
section,
the
director shall require each applicant
to provide a
copy of an
approved plan for a proposed
residential facility
pursuant to
section 5123.042 of the Revised
Code.
This division does not apply
to renewal of a license.
(G)(J) Pursuant to rules which shall be adopted in
accordance
with Chapter 119. of the Revised Code, the director may
require
notification to the department of any significant change
in the
ownership of a residential facility or in the identity of
the
licensee or management contractor.
When such notification is
not
given, the director may
cancel
the residential
facility's
license. If the director determines that a significant
change of
ownership is proposed, the director shall consider the
proposed
change to
be an application for development by a new
operator
pursuant to
section 5123.042 of the Revised Code and
shall
advise
the applicant within sixty days of such notification
that
the
current license shall continue in effect or a new license
will be
required pursuant to this section.
If the director requires a new
license, the director shall permit the facility to continue to
operate under the current license until the new license is issued,
unless the current license is revoked, refused to be renewed, or
terminated in accordance with Chapter 119. of the Revised Code.
(H)(K) A county board of mental retardation and
developmental
disabilities, the legal rights service, and any
interested person
may file complaints alleging violations of
statute or department
rule relating to residential facilities with
the department. All
complaints shall be in writing and shall
state the facts
constituting the basis of the allegation. The
department shall
not reveal the source of any complaint unless the
complainant
agrees in writing to waive the right to
confidentiality or until
so ordered by a court of competent
jurisdiction.
The department shall
acknowledge receipt of the complaint
and
notify the complainant of the action that will be taken with
respect to it within five working days of receiving it
adopt rules
in accordance with Chapter 119. of the Revised Code establishing
procedures for the receipt, referral, investigation, and
disposition of complaints filed with the department under this
division. The substance of a complaint shall not be provided to a
licensee until the commencement of an inspection or
investigation.
(I)(L) The department shall establish procedures for the
notification of interested parties of the transfer or interim
care
of residents from residential facilities that are closing or
are
losing their license.
(J)(M)
Before issuing a license under this section to a
residential facility that will
accommodate at any time
more than
one mentally retarded or developmentally disabled
individual, the
director shall, by first class
mail, notify the following:
(1) If the facility will be located in a municipal
corporation, the clerk of the legislative authority of the
municipal corporation; (2) If the facility will be located in unincorporated
territory, the clerk of the appropriate board of county
commissioners and the clerk of the appropriate board of township
trustees. The director shall
not
issue the license for ten
days
after
mailing the notice, excluding
Saturdays, Sundays, and legal
holidays, in order to give the
notified local officials time in
which to comment on the proposed
issuance. Any legislative authority of a municipal corporation, board
of county commissioners, or board of township trustees that
receives notice under this division of the proposed issuance of a
license for a residential facility may comment on it in writing
to
the director within ten days after the director mailed the
notice,
excluding Saturdays, Sundays, and legal holidays. If the
director
receives written comments from any notified officials
within the
specified time, the director shall make written
findings
concerning the comments and the director's decision on the
issuance of the
license. If the director does not receive written
comments from
any notified local officials within the specified
time, the
director shall
continue the process for issuance of the
license. (K)(N) Any person may operate a licensed residential
facility
that provides room and board, personal care, habilitation
services,
and supervision in a family setting for at least six but
not more than eight
persons with mental retardation or a
developmental disability as a
permitted use in any residential
district or zone, including any
single-family residential district
or zone, of any political
subdivision. These residential
facilities may be
required to comply with area,
height, yard, and
architectural compatibility requirements that
are uniformly
imposed upon all single-family residences within
the district or
zone.
(L)(O) Any person may operate a licensed residential
facility that provides room and board, personal care, habilitation
services,
and supervision in a family setting for at least nine
but not more than
sixteen persons with mental retardation or a
developmental
disability as a
permitted use in any multiple-family
residential district or zone
of any political subdivision, except
that a political subdivision
that has enacted a zoning ordinance
or resolution establishing
planned unit development districts may
exclude these
residential facilities from
such districts, and a
political subdivision that has enacted a
zoning ordinance or
resolution may regulate these
residential facilities in
multiple-family residential districts or zones as a conditionally
permitted use or special exception, in either case, under
reasonable and specific standards and conditions set out in the
zoning ordinance or resolution to:
(1) Require the architectural design and site layout of
the
residential facility and the location, nature, and
height of any
walls,
screens, and fences to be compatible with adjoining land
uses and
the residential character of the neighborhood; (2) Require compliance with yard, parking, and sign
regulation; (3) Limit excessive concentration of these residential
facilities. (M)(P) This section does not prohibit a political
subdivision
from applying to residential facilities
nondiscriminatory
regulations requiring compliance with health,
fire, and safety
regulations and building standards and
regulations.
(N)(Q) Divisions
(K)(N)
and
(L)(O) of this section are not
applicable to municipal corporations that had in effect on June
15, 1977, an ordinance specifically permitting in residential
zones licensed residential facilities by means of permitted uses,
conditional uses, or special exception, so long as such ordinance
remains in effect without any substantive modification.
(O)(R)(1) The director may issue an interim license to
operate a
residential facility to an applicant for a license under
this
section if
all
either of the following
conditions are met
applies:
(1)(a) The director determines that an emergency exists
that
requires
requiring immediate placement of persons in a residential
facility,
and
that insufficient licensed beds are available.
(2) The residential facility meets
standards
in
rules for
interim licenses
that the director shall adopt in
accordance with
Chapter 119. of the Revised Code.
(3) The director determines, and that the residential
facility
is likely to receive a
permanent license under this
section within
thirty
days after issuance of the interim license.
(b) The director determines that the issuance of an interim
license is necessary to meet a temporary need for a residential
facility. (2) To be eligible to receive an interim license, an
applicant must meet the same criteria that must be met to receive
a permanent license under this section, except for any differing
procedures and time frames that may apply to issuance of a
permanent license.
(3) An interim license shall be valid for thirty days and
may
be renewed by the director
no more than twice
for a period not
to exceed one hundred fifty days. (4) The director shall adopt rules in accordance with
Chapter 119. of the Revised Code as the director considers
necessary to administer the issuance of interim licenses.
(P)(S) Notwithstanding rules adopted pursuant to this
section
establishing the maximum number of persons who may be
served in a
particular type of residential facility, a residential
facility
shall be permitted to serve the same number of persons
being
served by the facility on the effective date of such rules
or the
number of persons for which the facility is authorized
pursuant
to a current application for a certificate of need with a
letter
of support from the department of mental retardation and
developmental disabilities and which is in the review process
prior to April 4, 1986.
(Q)(T) The director or the director's designee may enter at
any time,
for purposes of investigation, any home, facility, or
other
structure that has been reported to the director or that the
director has reasonable cause to believe is being operated as a
residential facility without a license issued under this section.
The director may petition the court of common pleas of the
county in which an unlicensed residential facility is located for
an order enjoining the person or governmental agency operating
the
facility from continuing to operate without a license. The
court
may grant the injunction on a showing that the person or
governmental agency named in the petition is operating a
residential facility without a license. The court may grant the
injunction, regardless of whether the residential facility meets
the requirements for receiving a license under this section.
Sec. 5123.201. As used in this section and sections
5123.202 to 5123.208 of the Revised Code:
(A) "Drug" and "licensed health professional authorized to
prescribe drugs" have the same meanings as in section 4729.01 of
the Revised Code.
(B) "Health-related activities" means the following:
(2) Application of clean dressings that do not require
health
assessment;
(3) Basic measurement of bodily intake and output;
(6) Routine care of hair, nails, and skin;
(8) External urinary catheter care;
(9) Emptying and replacing colostomy bags;
(10) Collection of specimens by noninvasive means.
(C) "MR/DD personnel" means the individuals who provide
specialized services to individuals with mental retardation and
developmental disabilities. "MR/DD personnel" includes all of the
following: (1) Individuals who provide specialized
services through
direct employment with the department of mental
retardation and
developmental disabilities or a county board of
mental retardation
and developmental disabilities; (2) Individuals who provide specialized services through an
entity under contract with the department of mental retardation
and developmental disabilities or a county board of mental
retardation and developmental disabilities;
(3) Individuals who provide specialized services through
direct employment or by being under contract with private
entities, including private entities that operate residential
facilities licensed under section 5123.19 of the Revised Code and
private entities that operate facilities subject to section
5123.192 of the Revised Code.
(D) "Nursing delegation" means the process established in
rules adopted by the board of nursing pursuant to Chapter 4723. of
the Revised Code under which a registered nurse or licensed
practical nurse acting at the direction of a registered nurse
transfers the performance of a particular nursing activity or task
to another individual who is not otherwise authorized to perform
the activity or task.
(E) "Prescribed medication" means a drug that is to be
administered according to the instructions of a licensed health
professional authorized to prescribe drugs. (F) "Residential facility" has the same meaning as in
section 5123.19 of the Revised Code. (G) "Specialized services" has the same meaning as in
section 5123.50 of the Revised Code.
(H) "Supported living" has the same meaning as in section
5126.01 of the Revised Code.
Sec. 5123.202. (A) MR/DD personnel who are not
specifically authorized by other provisions of the Revised Code to
administer prescribed medication or perform health-related
activities may, under this section, administer prescribed
medication, perform health-related activities, or do both, as part
of the services that the personnel provide to the following:
(1) Recipients of supported living; (2) Recipients of sheltered workshop services; (3) Residents of a residential facility with
sixteen or fewer
resident beds that is licensed as a residential facility under
section 5123.19 of the Revised Code or subject to section 5123.192
of the Revised Code.
(B) The authority established by division (A) of this
section is subject to all of the
following:
(1) To administer prescribed medication, perform
health-related activities, or do both, MR/DD
personnel
must be
appropriately certified in accordance with the
certification
program established under section 5123.205 of the
Revised Code. An
individual shall provide only those
services for which the
individual's certification was issued.
(2) Before a particular individual may receive services
from MR/DD
personnel pursuant to this section, the MR/DD
personnel's employer or other entity with primary responsibility
for the
services being provided shall ensure that
each individual
providing the services has been trained
specifically with respect
to the individual receiving the
services.
(3) In the case of services provided to recipients of
supported living, all of the following apply: (a)
Without nursing delegation, MR/DD personnel may perform
health-related activities
and administer topical and oral
prescribed medications. (b) With
nursing delegation, MR/DD personnel may administer
prescribed
medication and perform routine feedings through stable,
labeled
gastrostomy and jejunostomy tubes. (c) With nursing delegation, MR/DD
personnel may administer
routine doses of insulin through
subcutaneous injections and
insulin pumps.
(4) In the case of services provided to residents of a
residential facility with five or
fewer resident beds, all of the
following apply: (a) Without nursing delegation, MR/DD personnel,
may
perform health-related activities and administer topical and
oral
prescribed medications.
(b) With nursing delegation, MR/DD
personnel may administer
prescribed medication and perform routine
feedings through stable,
labeled gastrostomy and jejunostomy
tubes. (c) With nursing delegation, MR/DD personnel may administer
routine doses of insulin through subcutaneous injections and
insulin pumps.
(5) In the case of services provided to residents of a
residential facility with six but
not more than sixteen resident
beds, both of the following apply: (a) With nursing
delegation, MR/DD personnel may perform
health-related activities and administer
topical and oral
prescribed medications. (b) With nursing delegation, MR/DD personnel may administer
prescribed
medications and perform routine feedings through
stable, labeled
gastrostomy and jejunostomy tubes. (6) In the case of services provided to recipients of
sheltered workshop services, both of the following apply: (a) With nursing delegation, MR/DD personnel may perform
health-related
activities and administer topical and oral
prescribed medications. (b) With nursing delegation, MR/DD personnel may administer
prescribed medications and perform routine feedings
through
stable, labeled gastrostomy and jejunostomy tubes.
(C) In accordance with section 5123.207 of the Revised
Code, the department of mental retardation and developmental
disabilities shall adopt rules as it considers necessary to
implement this section. The rules shall include the following:
(1) Requirements for documentation of each service provided
pursuant to the authority granted under this section;
(2) Procedures for reporting errors that occur in the
administration of medication or performance of health-related
activities by MR/DD personnel;
(3) Procedures for the department to follow in accepting
complaints regarding the performance of services by MR/DD
personnel pursuant to the authority granted under this section and
procedures for conducting investigations of those complaints.
Sec. 5123.203. (A) For the purpose of providing training
with respect to the authority of MR/DD personnel to perform
services pursuant to
section 5123.202 of the Revised Code, the
department
of mental retardation and developmental disabilities
shall develop
courses for training MR/DD personnel and courses
for training registered nurses to conduct the MR/DD personnel
training courses.
In accordance with section 5123.207 of the Revised Code,
the
department shall adopt rules that specify the content and
length
of the
courses and establish any other standards for
training
considered necessary by
the department. (B) The medication administration training courses developed
under division (A) of this section shall address at least all of
the following:
(1) Infection control and universal precautions;
(2) Correct and safe practices, procedures, and techniques
for administering prescribed medication;
(3) Assessment of drug reaction, including known side
effects, interactions, and the proper course of action if a side
effect occurs;
(4) Requirements for documentation of medication
administered to each individual;
(5) Requirements for documentation and notification of
medication errors;
(6) Information regarding the proper storage and care of
medications;
(7) Requirements for successful demonstration of
proficiency in medication administration;
(8) Information about proper receipt of prescriptions and
transcription of prescriptions into an individual's medication
administration record.
Sec. 5123.204. (A)(1) The department of mental retardation
and developmental disabilities shall establish a program under
which the department issues certificates to MR/DD personnel to
perform service pursuant to section 5123.202 of the Revised Code
and certificates to
registered nurses to conduct training courses
for MR/DD personnel. Except as provided in division (A)(2) of this
section, to be eligible for a certificate, an individual must
successfully complete the applicable
training course developed
under section 5123.203 of the Revised
Code and meet all other
applicable requirements established in
rules adopted pursuant to
this section. (2) The program shall include
provisions for issuing
certificates to the following: (a) MR/DD personnel who, prior
to the effective date
of this
section, administered medication or
performed tasks, or
both,
pursuant to former section 5123.193 or
former sections
5126.351 to
5126.354 of the Revised Code; (b) Registered nurses who, prior to the effective date of
this section, trained individuals pursuant to former sections
4723.61, 4723.62, 5123.193, and 5126.351 to 5126.354 of the
Revised Code. A registered nurse who receives a certificate under
division (A)(2) of this section shall not train MR/DD personnel to
administer insulin unless the registered nurse completes a
refresher course developed under section 5123.203 of the Revised
Code that enables the
registered nurse to receive a certificate to
train MR/DD personnel
to administer insulin. (B) Certificates issued to MR/DD personnel and registered
nurses
are valid for one year and may be renewed. To be eligible
for
renewal, MR/DD personnel and registered nurses must meet the
applicable continued competency requirements and continuing
education requirements specified in rules adopted under division
(C) of this section.
(C) In accordance with section 5123.207 of the Revised
Code, the department shall adopt rules that
establish all of the
following:
(1) Requirements that MR/DD personnel and registered nurses
must meet to be
eligible to take a training course;
(2) Standards that must be met to receive a certificate,
including requirements pertaining to an applicant's criminal
background;
(3) Procedures to be followed in applying for a certificate
and issuing a certificate;
(4) Standards and procedures for renewing a certificate,
including requirements for continuing education and, in the case
of MR/DD personnel who administer medication, requirements for
successful demonstration of medication administration;
(5) Standards and procedures for suspending or revoking a
certificate;
(6) Standards and procedures for suspending a certificate
without a hearing pending the outcome of an investigation; (7) Any other standards or procedures the department
considers necessary to administer the certification program.
(D) The department shall establish and maintain a registry
that lists each individual who holds a valid certificate issued
pursuant to this section. The registry shall specify the type of
certificate held and any limitations that apply to the individual
holding the certificate.
Sec. 5126.354
5123.205.
A county board worker
An individual
authorized
pursuant to section 5123.202 of the Revised Code to
give
or apply
administer prescribed medication or perform a
delegated nursing
task
health-related activity, or both, is not
liable for any injury caused by the
medication or
task
activity if
all
both of the
following apply: (A)
Prior to giving or applying the medication
or peforming
the nursing task, the county board worker received a
copy of the
statement or the revised statement required to be
given under
division (C) of section 5126.353 of the
Revised Code; (B) The
county board worker gave or applied
individual
administered the
medication or performed the
nursing task
activities in
accordance with the methods taught in training
completed
to receive certification pursuant
to
division (D)(2) of
section
5126.351
5123.205 of the
Revised Code;
(C)(B) The
county board worker
individual did not act in a
manner that constitutes wanton or reckless misconduct.
Sec. 5126.355
5123.206.
A county board of mental retardation
and
developmental disabilities may permit a county board worker to
assist a county board client
(A) MR/DD personnel who are not
specifically authorized by other provisions of the Revised Code to
provide assistance in the self-administration of
prescribed
medication. When
may, under this section, provide that assistance
as
part of the services they provide to individuals with mental
retardation and developmental disabilities. To provide assistance
with self-administration of medication, MR/DD personnel are not
required to be trained or certified in accordance with sections
5123.203 and 5123.204 of the Revised Code.
(B) When assisting
a
county board client in
self-administration of prescribed
medication,
a county board
worker
MR/DD personnel shall take only
those
the following actions
authorized by the
board of
nursing pursuant to
rules
adopted under
section
4723.62 of the
Revised Code:
(1) Remind an individual when to take medication and
observe the individual to ensure that the individual follows the
directions on the container;
(2) Assist an individual by taking the medication in its
container from the area where it is stored, handing the container
with the medication in it to the individual, and opening the
container, if the individual is physically unable to open the
container;
(3) Assist, on request by or with the consent of, a
physically impaired but mentally alert individual, with removal of
oral or topical medication from the container and with the
individual's taking or applying of the medication. If an
individual is physically unable to place a dose of medication to
the individual's mouth without spilling or dropping it, MR/DD
personnel may place the dose in another container and place that
container to the individual's mouth.
Sec. 5123.207. All rules adopted under sections 5123.202
to 5123.206 of the Revised Code shall be adopted in consultation
with the board of nursing and the Ohio nurses association. The
rules shall be adopted in accordance with Chapter 119. of the
Revised Code.
Sec. 5126.357
5123.208. (A) As used in this section: (1)
"In-home care" means the supportive services provided
within
the home of an individual who receives funding for the
services
as
through a county
board
client
of mental retardation
and developmental disabilities, including any
client who
receives
recipient of residential services funded through
home
and
community-based services,
family support services provided under
section 5126.11 of the
Revised Code, or supported living provided
in accordance with sections
5126.41 to 5126.47 of the Revised
Code.
"In-home care" includes care that is provided outside
a
client's
an individual's home in places incidental to the home,
and while
traveling to places
incidental to the
home, except that
"in-home
care" does not include care provided
in the
facilities of
a county
board of mental retardation and
developmental
disabilities or care
provided in schools. (2)
"Parent" means either parent of a child, including an
adoptive
parent but not a foster parent. (3)
"Unlicensed in-home care worker" means an individual who
provides in-home care but is not a health care professional.
A
county board
worker
MR/DD personnel may be
an unlicensed in-home
care
worker
workers. (4)
"Family member" means a parent, sibling, spouse, son,
daughter, grandparent, aunt, uncle, cousin, or guardian of the
individual with
mental retardation or a developmental disability
if the individual with mental
retardation or developmental
disabilities lives with the person and is
dependent on the person
to the extent that, if the supports were withdrawn,
another living
arrangement would have to be found. (B) Except as provided in division (D) of this section,
a
family member of an individual with mental
retardation or a
developmental
disability may authorize an unlicensed in-home care
worker to
give or
apply prescribed medication or perform other
health care tasks as
part of the in-home care provided to the
individual, if the family member
is the primary supervisor of the
care and the unlicensed in-home care worker
has been selected by
the family member and is under the direct supervision of
the
family member.
Sections 4723.62 and 5126.351 to 5126.356
of the
Revised Code do not apply to the in-home care
authorized by a
family member under this
section. Instead, a
A family member
shall
obtain a prescription, if
applicable, and written
instructions
from a health care
professional for the care to be
provided to the
individual. The family
member shall authorize the
unlicensed
in-home
care worker to provide the
care by preparing a
written
document granting the authority.
The family member shall
provide
the
unlicensed in-home care worker with
appropriate
training and
written instructions in accordance with
the
instructions obtained
from the health care professional.
(C) A family member who authorizes an unlicensed in-home
care worker to
give or apply prescribed medication or perform
other health care tasks retains
full responsibility for the health
and safety of
the individual receiving the care and for ensuring
that the worker
provides the care appropriately and safely. No
entity that funds or monitors the provision of in-home care
may be
held liable for the results of the
care provided under this
section by an unlicensed in-home care worker,
including
such
entities as the county board of mental retardation and
developmental disabilities, any other entity that employs an
unlicensed
in-home care worker, and the department of mental
retardation and
developmental
disabilities. An unlicensed in-home care worker who is authorized under
this section by a
family member to provide care to an
individual
may not be held liable for
any
injury caused in providing the
care, unless the worker provides the care
in a manner that is not
in accordance with the training and
instructions received or the
worker acts in a manner that
constitutes wanton or reckless
misconduct. (D) A county board of mental retardation and developmental
disabilities may evaluate the authority granted by a
family member
under
this section to an unlicensed in-home care worker at any
time it considers
necessary and shall evaluate the authority on
receipt of a complaint. If the
board determines that a family
member has
acted in a manner
that is inappropriate for the health
and safety of the individual receiving
the services, the
authorization granted by the family member to
an unlicensed
in-home care worker is void, and the
family member may not
authorize other
unlicensed in-home care workers to provide the
care. In making such a
determination, the board shall use
appropriately licensed health
care professionals and shall provide
the family member an
opportunity to file a complaint under section
5126.06 of the Revised Code.
Sec. 5123.50. As used in this section and sections 5123.51
and
5123.52 of the Revised Code: (A) "Abuse" means all of the following: (1) The use of physical force that can reasonably be
expected to result in
physical harm or serious physical harm; (B) "Misappropriation" means depriving, defrauding, or
otherwise
obtaining the real or personal property of an individual
by any means
prohibited by the Revised Code, including violations
of
Chapter 2911. or 2913. of the Revised Code. (C) "MR/DD employee" means all of the following: (1) An employee of the department of mental retardation and
developmental disabilities; (2) An employee of a county board of mental retardation and
developmental disabilities; (3)
An "ICF/MR worker," as defined in section 5123.193 of the
Revised Code; (4) An individual who is employed in a position that
includes providing
specialized services to an
individual with
mental retardation or a developmental disability.
(D) "Neglect" means, when there is a duty to do so, failing
to
provide an individual with any
treatment, care, goods, or
services that are necessary to maintain the
health and safety of
the individual. (E) "Physical harm" and "serious physical harm" have the
same
meanings as in section 2901.01 of the Revised Code. (F) "Sexual abuse" means unlawful sexual conduct or sexual
contact, as those terms are defined in section 2907.01 of the
Revised Code. (G) "Specialized services" means any program or service
designed
and operated to serve primarily individuals with mental
retardation
or a
developmental
disability,
including a program or
service provided by an entity licensed or
certified by the
department of mental retardation and
developmental disabilities
and facilities subject to section
5123.192 of the Revised Code.
A
program or service available to
the
general public is not a
specialized service. (H) "Verbal abuse" means purposely using words to threaten,
coerce, intimidate, harass, or humiliate an individual.
Sec. 5123.611. (A) As used in this section, MR/DD
employee
means all of the following: (1) An employee of the department of mental retardation and
developmental disabilities; (2) An employee of a county board of mental retardation and
developmental disabilities; (3)
An "ICF/MR worker," as defined in section 5123.193 of the
Revised Code; (4) An individual who is employed in a position that
includes
providing specialized services, as defined in section
5123.50 of the Revised Code, to an individual with
mental
retardation
or a developmental disability.
(B) At the conclusion of a review of a report of abuse,
neglect,
or a major unusual incident that is conducted by a review
committee established pursuant to section
5123.61 of the Revised
Code, the committee shall issue
recommendations to the department.
The department shall review the committee's recommendations and
issue a report of its findings.
The department shall make the
report available to all of the
following: (1) The person who is the subject of the report; (2) That person's guardian or legal counsel; (3) The licensee, as defined in section 5123.19 of the
Revised
Code, of a residential facility in which
the person
resides; (4) The employer of any MR/DD employee who allegedly
committed or
was responsible for the abuse, neglect, or major
unusual incident. (C) Except as provided in this section, the department shall
not
disclose its report to any person or government entity that is
not authorized to investigate reports
of abuse, neglect, or other
major unusual incidents, unless the
person who is the subject of
the report or the person's guardian
gives the department written
consent.
Sec. 5126.36. Any individual employed by a county board of
mental retardation or developmental disabilities or an entity
under contract with the board who meets the requirements of
sections 5123.201 through 5123.208 of the Revised Code may engage
in any of the activities authorized under those sections,
including the administration of oral and topical prescribed
medication, performance of health-related activities, and
provision of assistance with self-administration of medication.
Section 2. That existing sections 4723.61, 5123.19,
5123.50,
5123.611, 5126.354,
5126.355, and 5126.357 and sections
4723.62,
5123.193, 5126.35,
5126.351, 5126.352, 5126.353, and
5126.356 of
the Revised Code
are hereby repealed.
Section 3. The Director of Mental Retardation and
Developmental Disabilities shall adopt rules in accordance with
Chapter 119. of the Revised Code establishing a schedule for
residential facilities licensed under section 5123.19 of the
Revised Code on the effective date of this section to seek renewal
of the license in accordance with the amendments made by this act
to that section. Notwithstanding
division (C) of section 5123.19
of the
Revised Code, as amended by
this act, a residential
facility
license in effect on this
section's effective date shall
remain in
effect until the Director renews or refuses to renew the
license,
unless the
license
is terminated,
revoked, or voluntarily
surrendered.
Section 4. Notwithstanding the provisions of section
5123.202
of the Revised Code that permit MR/DD personnel to
administer
insulin with nursing delegation, MR/DD personnel shall
not
administer insulin until being trained by a registered nurse
who
has received a certificate under section 5123.204 of the
Revised
Code that allows the registered nurse to train MR/DD
personnel to
administer insulin.
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