130th Ohio General Assembly
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Sub. S. B. No. 191As Passed by the Senate
As Passed by the Senate

124th General Assembly
Regular Session
2001-2002
Sub. S. B. No. 191


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:
(1) Taking vital signs;
(2) Application of clean dressings that do not require health assessment;
(3) Basic measurement of bodily intake and output;
(4) Oral suctioning;
(5) Routine mouth care;
(6) Routine care of hair, nails, and skin;
(7) Use of glucometers;
(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;
(2) Sexual abuse;
(3) Verbal abuse.
(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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