The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
H. B. No. 367 As Reported by the House Health and Aging CommitteeAs Reported by the House Health and Aging Committee
129th General Assembly | Regular Session | 2011-2012 |
| |
Cosponsors:
Representatives Grossman, Murray, Fende, Antonio, Duffey, Hackett, Sears
A BILL
To amend sections 109.57, 1337.11, 2133.01, 2317.54,
3701.881, 3712.01, 3712.03, 3712.09, 3721.01,
3795.01, 3963.01, 4719.01, 4752.02, 5119.70, and
5119.71 and to enact sections 3712.031, 3712.041,
3712.051, and 3712.061 of the Revised Code
regarding licensure of pediatric respite care
programs.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.57, 1337.11, 2133.01, 2317.54,
3701.881, 3712.01, 3712.03, 3712.09, 3721.01, 3795.01, 3963.01,
4719.01, 4752.02, 5119.70, and 5119.71 be amended and sections
3712.031, 3712.041, 3712.051, and 3712.061 of the Revised Code be
enacted to read as follows:
Sec. 109.57. (A)(1) The superintendent of the bureau of
criminal identification and investigation shall procure from
wherever procurable and file for record photographs, pictures,
descriptions, fingerprints, measurements, and other information
that may be pertinent of all persons who have been convicted of
committing within this state a felony, any crime constituting a
misdemeanor on the first offense and a felony on subsequent
offenses, or any misdemeanor described in division (A)(1)(a),
(A)(8)(a), or (A)(10)(a) of section 109.572 of the Revised Code,
of all children under eighteen years of age who have been
adjudicated delinquent children for committing within this state
an act that would be a felony or an offense of violence if
committed by an adult or who have been convicted of or pleaded
guilty to committing within this state a felony or an offense of
violence, and of all well-known and habitual criminals. The person
in charge of any county, multicounty, municipal, municipal-county,
or multicounty-municipal jail or workhouse, community-based
correctional facility, halfway house, alternative residential
facility, or state correctional institution and the person in
charge of any state institution having custody of a person
suspected of having committed a felony, any crime constituting a
misdemeanor on the first offense and a felony on subsequent
offenses, or any misdemeanor described in division (A)(1)(a),
(A)(8)(a), or (A)(10)(a) of section 109.572 of the Revised Code or
having custody of a child under eighteen years of age with respect
to whom there is probable cause to believe that the child may have
committed an act that would be a felony or an offense of violence
if committed by an adult shall furnish such material to the
superintendent of the bureau. Fingerprints, photographs, or other
descriptive information of a child who is under eighteen years of
age, has not been arrested or otherwise taken into custody for
committing an act that would be a felony or an offense of violence
who is not in any other category of child specified in this
division, if committed by an adult, has not been adjudicated a
delinquent child for committing an act that would be a felony or
an offense of violence if committed by an adult, has not been
convicted of or pleaded guilty to committing a felony or an
offense of violence, and is not a child with respect to whom there
is probable cause to believe that the child may have committed an
act that would be a felony or an offense of violence if committed
by an adult shall not be procured by the superintendent or
furnished by any person in charge of any county, multicounty,
municipal, municipal-county, or multicounty-municipal jail or
workhouse, community-based correctional facility, halfway house,
alternative residential facility, or state correctional
institution, except as authorized in section 2151.313 of the
Revised Code.
(2) Every clerk of a court of record in this state, other
than the supreme court or a court of appeals, shall send to the
superintendent of the bureau a weekly report containing a summary
of each case involving a felony, involving any crime constituting
a misdemeanor on the first offense and a felony on subsequent
offenses, involving a misdemeanor described in division (A)(1)(a),
(A)(8)(a), or (A)(10)(a) of section 109.572 of the Revised Code,
or involving an adjudication in a case in which a child under
eighteen years of age was alleged to be a delinquent child for
committing an act that would be a felony or an offense of violence
if committed by an adult. The clerk of the court of common pleas
shall include in the report and summary the clerk sends under this
division all information described in divisions (A)(2)(a) to (f)
of this section regarding a case before the court of appeals that
is served by that clerk. The summary shall be written on the
standard forms furnished by the superintendent pursuant to
division (B) of this section and shall include the following
information:
(a) The incident tracking number contained on the standard
forms furnished by the superintendent pursuant to division (B) of
this section;
(b) The style and number of the case;
(c) The date of arrest, offense, summons, or arraignment;
(d) The date that the person was convicted of or pleaded
guilty to the offense, adjudicated a delinquent child for
committing the act that would be a felony or an offense of
violence if committed by an adult, found not guilty of the
offense, or found not to be a delinquent child for committing an
act that would be a felony or an offense of violence if committed
by an adult, the date of an entry dismissing the charge, an entry
declaring a mistrial of the offense in which the person is
discharged, an entry finding that the person or child is not
competent to stand trial, or an entry of a nolle prosequi, or the
date of any other determination that constitutes final resolution
of the case;
(e) A statement of the original charge with the section of
the Revised Code that was alleged to be violated;
(f) If the person or child was convicted, pleaded guilty, or
was adjudicated a delinquent child, the sentence or terms of
probation imposed or any other disposition of the offender or the
delinquent child.
If the offense involved the disarming of a law enforcement
officer or an attempt to disarm a law enforcement officer, the
clerk shall clearly state that fact in the summary, and the
superintendent shall ensure that a clear statement of that fact is
placed in the bureau's records.
(3) The superintendent shall cooperate with and assist
sheriffs, chiefs of police, and other law enforcement officers in
the establishment of a complete system of criminal identification
and in obtaining fingerprints and other means of identification of
all persons arrested on a charge of a felony, any crime
constituting a misdemeanor on the first offense and a felony on
subsequent offenses, or a misdemeanor described in division
(A)(1)(a), (A)(8)(a), or (A)(10)(a) of section 109.572 of the
Revised Code and of all children under eighteen years of age
arrested or otherwise taken into custody for committing an act
that would be a felony or an offense of violence if committed by
an adult. The superintendent also shall file for record the
fingerprint impressions of all persons confined in a county,
multicounty, municipal, municipal-county, or multicounty-municipal
jail or workhouse, community-based correctional facility, halfway
house, alternative residential facility, or state correctional
institution for the violation of state laws and of all children
under eighteen years of age who are confined in a county,
multicounty, municipal, municipal-county, or multicounty-municipal
jail or workhouse, community-based correctional facility, halfway
house, alternative residential facility, or state correctional
institution or in any facility for delinquent children for
committing an act that would be a felony or an offense of violence
if committed by an adult, and any other information that the
superintendent may receive from law enforcement officials of the
state and its political subdivisions.
(4) The superintendent shall carry out Chapter 2950. of the
Revised Code with respect to the registration of persons who are
convicted of or plead guilty to a sexually oriented offense or a
child-victim oriented offense and with respect to all other duties
imposed on the bureau under that chapter.
(5) The bureau shall perform centralized recordkeeping
functions for criminal history records and services in this state
for purposes of the national crime prevention and privacy compact
set forth in section 109.571 of the Revised Code and is the
criminal history record repository as defined in that section for
purposes of that compact. The superintendent or the
superintendent's designee is the compact officer for purposes of
that compact and shall carry out the responsibilities of the
compact officer specified in that compact.
(B) The superintendent shall prepare and furnish to every
county, multicounty, municipal, municipal-county, or
multicounty-municipal jail or workhouse, community-based
correctional facility, halfway house, alternative residential
facility, or state correctional institution and to every clerk of
a court in this state specified in division (A)(2) of this section
standard forms for reporting the information required under
division (A) of this section. The standard forms that the
superintendent prepares pursuant to this division may be in a
tangible format, in an electronic format, or in both tangible
formats and electronic formats.
(C)(1) The superintendent may operate a center for
electronic, automated, or other data processing for the storage
and retrieval of information, data, and statistics pertaining to
criminals and to children under eighteen years of age who are
adjudicated delinquent children for committing an act that would
be a felony or an offense of violence if committed by an adult,
criminal activity, crime prevention, law enforcement, and criminal
justice, and may establish and operate a statewide communications
network to be known as the Ohio law enforcement gateway to gather
and disseminate information, data, and statistics for the use of
law enforcement agencies and for other uses specified in this
division. The superintendent may gather, store, retrieve, and
disseminate information, data, and statistics that pertain to
children who are under eighteen years of age and that are gathered
pursuant to sections 109.57 to 109.61 of the Revised Code together
with information, data, and statistics that pertain to adults and
that are gathered pursuant to those sections.
(2) The superintendent or the superintendent's designee shall
gather information of the nature described in division (C)(1) of
this section that pertains to the offense and delinquency history
of a person who has been convicted of, pleaded guilty to, or been
adjudicated a delinquent child for committing a sexually oriented
offense or a child-victim oriented offense for inclusion in the
state registry of sex offenders and child-victim offenders
maintained pursuant to division (A)(1) of section 2950.13 of the
Revised Code and in the internet database operated pursuant to
division (A)(13) of that section and for possible inclusion in the
internet database operated pursuant to division (A)(11) of that
section.
(3) In addition to any other authorized use of information,
data, and statistics of the nature described in division (C)(1) of
this section, the superintendent or the superintendent's designee
may provide and exchange the information, data, and statistics
pursuant to the national crime prevention and privacy compact as
described in division (A)(5) of this section.
(4) The attorney general may adopt rules under Chapter 119.
of the Revised Code establishing guidelines for the operation of
and participation in the Ohio law enforcement gateway. The rules
may include criteria for granting and restricting access to
information gathered and disseminated through the Ohio law
enforcement gateway. The attorney general shall permit the state
medical board and board of nursing to access and view, but not
alter, information gathered and disseminated through the Ohio law
enforcement gateway.
The attorney general may appoint a steering committee to
advise the attorney general in the operation of the Ohio law
enforcement gateway that is comprised of persons who are
representatives of the criminal justice agencies in this state
that use the Ohio law enforcement gateway and is chaired by the
superintendent or the superintendent's designee.
(D)(1) The following are not public records under section
149.43 of the Revised Code:
(a) Information and materials furnished to the superintendent
pursuant to division (A) of this section;
(b) Information, data, and statistics gathered or
disseminated through the Ohio law enforcement gateway pursuant to
division (C)(1) of this section;
(c) Information and materials furnished to any board or
person under division (F) or (G) of this section.
(2) The superintendent or the superintendent's designee shall
gather and retain information so furnished under division (A) of
this section that pertains to the offense and delinquency history
of a person who has been convicted of, pleaded guilty to, or been
adjudicated a delinquent child for committing a sexually oriented
offense or a child-victim oriented offense for the purposes
described in division (C)(2) of this section.
(E) The attorney general shall adopt rules, in accordance
with Chapter 119. of the Revised Code, setting forth the procedure
by which a person may receive or release information gathered by
the superintendent pursuant to division (A) of this section. A
reasonable fee may be charged for this service. If a temporary
employment service submits a request for a determination of
whether a person the service plans to refer to an employment
position has been convicted of or pleaded guilty to an offense
listed in division (A)(1), (3), (4), (5), or (6) of section
109.572 of the Revised Code, the request shall be treated as a
single request and only one fee shall be charged.
(F)(1) As used in division (F)(2) of this section, "head
start agency" means an entity in this state that has been approved
to be an agency for purposes of subchapter II of the "Community
Economic Development Act," 95 Stat. 489 (1981), 42 U.S.C.A. 9831,
as amended.
(2)(a) In addition to or in conjunction with any request that
is required to be made under section 109.572, 2151.86, 3301.32,
3301.541, division (C) of section 3310.58, or section 3319.39,
3319.391, 3327.10, 3701.881, 5104.012, 5104.013, 5123.081,
5126.28, 5126.281, or 5153.111 of the Revised Code or that is made
under section 3314.41, 3319.392, 3326.25, or 3328.20 of the
Revised Code, the board of education of any school district; the
director of developmental disabilities; any county board of
developmental disabilities; any entity under contract with a
county board of developmental disabilities; the chief
administrator of any chartered nonpublic school; the chief
administrator of a registered private provider that is not also a
chartered nonpublic school; the chief administrator of any home
health agency; the chief administrator of or person operating any
child day-care center, type A family day-care home, or type B
family day-care home licensed or certified under Chapter 5104. of
the Revised Code; the administrator of any type C family day-care
home certified pursuant to Section 1 of Sub. H.B. 62 of the 121st
general assembly or Section 5 of Am. Sub. S.B. 160 of the 121st
general assembly; the chief administrator of any head start
agency; the executive director of a public children services
agency; a private company described in section 3314.41, 3319.392,
3326.25, or 3328.20 of the Revised Code; or an employer described
in division (J)(2) of section 3327.10 of the Revised Code may
request that the superintendent of the bureau investigate and
determine, with respect to any individual who has applied for
employment in any position after October 2, 1989, or any
individual wishing to apply for employment with a board of
education may request, with regard to the individual, whether the
bureau has any information gathered under division (A) of this
section that pertains to that individual. On receipt of the
request, the superintendent shall determine whether that
information exists and, upon request of the person, board, or
entity requesting information, also shall request from the federal
bureau of investigation any criminal records it has pertaining to
that individual. The superintendent or the superintendent's
designee also may request criminal history records from other
states or the federal government pursuant to the national crime
prevention and privacy compact set forth in section 109.571 of the
Revised Code. Within thirty days of the date that the
superintendent receives a request, the superintendent shall send
to the board, entity, or person a report of any information that
the superintendent determines exists, including information
contained in records that have been sealed under section 2953.32
of the Revised Code, and, within thirty days of its receipt, shall
send the board, entity, or person a report of any information
received from the federal bureau of investigation, other than
information the dissemination of which is prohibited by federal
law.
(b) When a board of education or a registered private
provider is required to receive information under this section as
a prerequisite to employment of an individual pursuant to division
(C) of section 3310.58 or section 3319.39 of the Revised Code, it
may accept a certified copy of records that were issued by the
bureau of criminal identification and investigation and that are
presented by an individual applying for employment with the
district in lieu of requesting that information itself. In such a
case, the board shall accept the certified copy issued by the
bureau in order to make a photocopy of it for that individual's
employment application documents and shall return the certified
copy to the individual. In a case of that nature, a district or
provider only shall accept a certified copy of records of that
nature within one year after the date of their issuance by the
bureau.
(c) Notwithstanding division (F)(2)(a) of this section, in
the case of a request under section 3319.39, 3319.391, or 3327.10
of the Revised Code only for criminal records maintained by the
federal bureau of investigation, the superintendent shall not
determine whether any information gathered under division (A) of
this section exists on the person for whom the request is made.
(3) The state board of education may request, with respect to
any individual who has applied for employment after October 2,
1989, in any position with the state board or the department of
education, any information that a school district board of
education is authorized to request under division (F)(2) of this
section, and the superintendent of the bureau shall proceed as if
the request has been received from a school district board of
education under division (F)(2) of this section.
(4) When the superintendent of the bureau receives a request
for information under section 3319.291 of the Revised Code, the
superintendent shall proceed as if the request has been received
from a school district board of education and shall comply with
divisions (F)(2)(a) and (c) of this section.
(5) When a recipient of a classroom reading improvement grant
paid under section 3301.86 of the Revised Code requests, with
respect to any individual who applies to participate in providing
any program or service funded in whole or in part by the grant,
the information that a school district board of education is
authorized to request under division (F)(2)(a) of this section,
the superintendent of the bureau shall proceed as if the request
has been received from a school district board of education under
division (F)(2)(a) of this section.
(G) In addition to or in conjunction with any request that is
required to be made under section 3701.881, 3712.09, 3721.121,
5119.693, or 5119.85 of the Revised Code with respect to an
individual who has applied for employment in a position that
involves providing direct care to an older adult or adult
resident, the chief administrator of a home health agency, hospice
care program, home licensed under Chapter 3721. of the Revised
Code, adult day-care program operated pursuant to rules adopted
under section 3721.04 of the Revised Code, adult foster home, or
adult care facility may request that the superintendent of the
bureau investigate and determine, with respect to any individual
who has applied after January 27, 1997, for employment in a
position that does not involve providing direct care to an older
adult or adult resident, whether the bureau has any information
gathered under division (A) of this section that pertains to that
individual.
In addition to or in conjunction with any request that is
required to be made under section 173.27 of the Revised Code with
respect to an individual who has applied for employment in a
position that involves providing ombudsperson services to
residents of long-term care facilities or recipients of
community-based long-term care services, the state long-term care
ombudsperson, ombudsperson's designee, or director of health may
request that the superintendent investigate and determine, with
respect to any individual who has applied for employment in a
position that does not involve providing such ombudsperson
services, whether the bureau has any information gathered under
division (A) of this section that pertains to that applicant.
In addition to or in conjunction with any request that is
required to be made under section 173.394 of the Revised Code with
respect to an individual who has applied for employment in a
position that involves providing direct care to an individual, the
chief administrator of a community-based long-term care agency may
request that the superintendent investigate and determine, with
respect to any individual who has applied for employment in a
position that does not involve providing direct care, whether the
bureau has any information gathered under division (A) of this
section that pertains to that applicant.
In addition to or in conjunction with any request that is
required to be made under section 3712.09 of the Revised Code with
respect to an individual who has applied for employment in a
position that involves providing direct care to a pediatric
respite care patient, the chief administrator of a pediatric
respite care program may request that the superintendent of the
bureau investigate and determine, with respect to any individual
who has applied for employment in a position that does not involve
providing direct care to a pediatric respite care patient, whether
the bureau has any information gathered under division (A) of this
section that pertains to that individual.
On receipt of a request under this division, the
superintendent shall determine whether that information exists
and, on request of the individual requesting information, shall
also request from the federal bureau of investigation any criminal
records it has pertaining to the applicant. The superintendent or
the superintendent's designee also may request criminal history
records from other states or the federal government pursuant to
the national crime prevention and privacy compact set forth in
section 109.571 of the Revised Code. Within thirty days of the
date a request is received, the superintendent shall send to the
requester a report of any information determined to exist,
including information contained in records that have been sealed
under section 2953.32 of the Revised Code, and, within thirty days
of its receipt, shall send the requester a report of any
information received from the federal bureau of investigation,
other than information the dissemination of which is prohibited by
federal law.
(H) Information obtained by a government entity or person
under this section is confidential and shall not be released or
disseminated.
(I) The superintendent may charge a reasonable fee for
providing information or criminal records under division (F)(2) or
(G) of this section.
(J) As used in this section:
(1) "Pediatric respite care program" and "pediatric respite
care patient" have the same meanings as in section 3712.01 of the
Revised Code.
(2) "Sexually oriented offense" and "child-victim oriented
offense" have the same meanings as in section 2950.01 of the
Revised Code.
(2)(3) "Registered private provider" means a nonpublic school
or entity registered with the superintendent of public instruction
under section 3310.41 of the Revised Code to participate in the
autism scholarship program or section 3310.58 of the Revised Code
to participate in the Jon Peterson special needs scholarship
program.
Sec. 1337.11. As used in sections 1337.11 to 1337.17 of the
Revised Code:
(A) "Adult" means a person who is eighteen years of age or
older.
(B) "Attending physician" means the physician to whom a
principal or the family of a principal has assigned primary
responsibility for the treatment or care of the principal or, if
the responsibility has not been assigned, the physician who has
accepted that responsibility.
(C) "Comfort care" means any of the following:
(1) Nutrition when administered to diminish the pain or
discomfort of a principal, but not to postpone death;
(2) Hydration when administered to diminish the pain or
discomfort of a principal, but not to postpone death;
(3) Any other medical or nursing procedure, treatment,
intervention, or other measure that is taken to diminish the pain
or discomfort of a principal, but not to postpone death.
(D) "Consulting physician" means a physician who, in
conjunction with the attending physician of a principal, makes one
or more determinations that are required to be made by the
attending physician, or to be made by the attending physician and
one other physician, by an applicable provision of sections
1337.11 to 1337.17 of the Revised Code, to a reasonable degree of
medical certainty and in accordance with reasonable medical
standards.
(E) "Declaration for mental health treatment" has the same
meaning as in section 2135.01 of the Revised Code.
(F) "Guardian" means a person appointed by a probate court
pursuant to Chapter 2111. of the Revised Code to have the care and
management of the person of an incompetent.
(G) "Health care" means any care, treatment, service, or
procedure to maintain, diagnose, or treat an individual's physical
or mental condition or physical or mental health.
(H) "Health care decision" means informed consent, refusal to
give informed consent, or withdrawal of informed consent to health
care.
(I) "Health care facility" means any of the following:
(2) A hospice care program, pediatric respite care program,
or other institution that specializes in comfort care of patients
in a terminal condition or in a permanently unconscious state;
(4) A home health agency;
(5) An intermediate care facility for the mentally retarded;
(6) A regulated community mental health organization.
(J) "Health care personnel" means physicians, nurses,
physician assistants, emergency medical technicians-basic,
emergency medical technicians-intermediate, emergency medical
technicians-paramedic, medical technicians, dietitians, other
authorized persons acting under the direction of an attending
physician, and administrators of health care facilities.
(K) "Home health agency" has the same meaning as in section
3701.881 of the Revised Code.
(L) "Hospice care program" has and "pediatric respite care
program" have the same meaning meanings as in section 3712.01 of
the Revised Code.
(M) "Hospital" has the same meanings as in sections 3701.01,
3727.01, and 5122.01 of the Revised Code.
(N) "Hydration" means fluids that are artificially or
technologically administered.
(O) "Incompetent" has the same meaning as in section 2111.01
of the Revised Code.
(P) "Intermediate care facility for the mentally retarded"
has the same meaning as in section 5111.20 of the Revised Code.
(Q) "Life-sustaining treatment" means any medical procedure,
treatment, intervention, or other measure that, when administered
to a principal, will serve principally to prolong the process of
dying.
(R) "Medical claim" has the same meaning as in section
2305.113 of the Revised Code.
(S) "Mental health treatment" has the same meaning as in
section 2135.01 of the Revised Code.
(T) "Nursing home" has the same meaning as in section 3721.01
of the Revised Code.
(U) "Nutrition" means sustenance that is artificially or
technologically administered.
(V) "Permanently unconscious state" means a state of
permanent unconsciousness in a principal that, to a reasonable
degree of medical certainty as determined in accordance with
reasonable medical standards by the principal's attending
physician and one other physician who has examined the principal,
is characterized by both of the following:
(1) Irreversible unawareness of one's being and environment.
(2) Total loss of cerebral cortical functioning, resulting in
the principal having no capacity to experience pain or suffering.
(W) "Person" has the same meaning as in section 1.59 of the
Revised Code and additionally includes political subdivisions and
governmental agencies, boards, commissions, departments,
institutions, offices, and other instrumentalities.
(X) "Physician" means a person who is authorized under
Chapter 4731. of the Revised Code to practice medicine and surgery
or osteopathic medicine and surgery.
(Y) "Political subdivision" and "state" have the same
meanings as in section 2744.01 of the Revised Code.
(Z) "Professional disciplinary action" means action taken by
the board or other entity that regulates the professional conduct
of health care personnel, including the state medical board and
the board of nursing.
(AA) "Regulated community mental health organization" means a
residential facility as defined and licensed under section 5119.22
of the Revised Code or a community mental health agency as defined
in section 5122.01 of the Revised Code.
(BB) "Terminal condition" means an irreversible, incurable,
and untreatable condition caused by disease, illness, or injury
from which, to a reasonable degree of medical certainty as
determined in accordance with reasonable medical standards by a
principal's attending physician and one other physician who has
examined the principal, both of the following apply:
(1) There can be no recovery.
(2) Death is likely to occur within a relatively short time
if life-sustaining treatment is not administered.
(CC) "Tort action" means a civil action for damages for
injury, death, or loss to person or property, other than a civil
action for damages for a breach of contract or another agreement
between persons.
Sec. 2133.01. Unless the context otherwise requires, as used
in sections 2133.01 to 2133.15 of the Revised Code:
(A) "Adult" means an individual who is eighteen years of age
or older.
(B) "Attending physician" means the physician to whom a
declarant or other patient, or the family of a declarant or other
patient, has assigned primary responsibility for the treatment or
care of the declarant or other patient, or, if the responsibility
has not been assigned, the physician who has accepted that
responsibility.
(C) "Comfort care" means any of the following:
(1) Nutrition when administered to diminish the pain or
discomfort of a declarant or other patient, but not to postpone
the declarant's or other patient's death;
(2) Hydration when administered to diminish the pain or
discomfort of a declarant or other patient, but not to postpone
the declarant's or other patient's death;
(3) Any other medical or nursing procedure, treatment,
intervention, or other measure that is taken to diminish the pain
or discomfort of a declarant or other patient, but not to postpone
the declarant's or other patient's death.
(D) "Consulting physician" means a physician who, in
conjunction with the attending physician of a declarant or other
patient, makes one or more determinations that are required to be
made by the attending physician, or to be made by the attending
physician and one other physician, by an applicable provision of
this chapter, to a reasonable degree of medical certainty and in
accordance with reasonable medical standards.
(E) "Declarant" means any adult who has executed a
declaration in accordance with section 2133.02 of the Revised
Code.
(F) "Declaration" means a written document executed in
accordance with section 2133.02 of the Revised Code.
(G) "Durable power of attorney for health care" means a
document created pursuant to sections 1337.11 to 1337.17 of the
Revised Code.
(H) "Guardian" means a person appointed by a probate court
pursuant to Chapter 2111. of the Revised Code to have the care and
management of the person of an incompetent.
(I) "Health care facility" means any of the following:
(2) A hospice care program, pediatric respite care program,
or other institution that specializes in comfort care of patients
in a terminal condition or in a permanently unconscious state;
(3) A nursing home or residential care facility, as defined
in section 3721.01 of the Revised Code;
(4) A home health agency and any residential facility where a
person is receiving care under the direction of a home health
agency;
(5) An intermediate care facility for the mentally retarded.
(J) "Health care personnel" means physicians, nurses,
physician assistants, emergency medical technicians-basic,
emergency medical technicians-intermediate, emergency medical
technicians-paramedic, medical technicians, dietitians, other
authorized persons acting under the direction of an attending
physician, and administrators of health care facilities.
(K) "Home health agency" has the same meaning as in section
3701.881 of the Revised Code.
(L) "Hospice care program" has and "pediatric respite care
program" have the same meaning meanings as in section 3712.01 of
the Revised Code.
(M) "Hospital" has the same meanings as in sections 3701.01,
3727.01, and 5122.01 of the Revised Code.
(N) "Hydration" means fluids that are artificially or
technologically administered.
(O) "Incompetent" has the same meaning as in section 2111.01
of the Revised Code.
(P) "Intermediate care facility for the mentally retarded"
has the same meaning as in section 5111.20 of the Revised Code.
(Q) "Life-sustaining treatment" means any medical procedure,
treatment, intervention, or other measure that, when administered
to a qualified patient or other patient, will serve principally to
prolong the process of dying.
(R) "Nurse" means a person who is licensed to practice
nursing as a registered nurse or to practice practical nursing as
a licensed practical nurse pursuant to Chapter 4723. of the
Revised Code.
(S) "Nursing home" has the same meaning as in section 3721.01
of the Revised Code.
(T) "Nutrition" means sustenance that is artificially or
technologically administered.
(U) "Permanently unconscious state" means a state of
permanent unconsciousness in a declarant or other patient that, to
a reasonable degree of medical certainty as determined in
accordance with reasonable medical standards by the declarant's or
other patient's attending physician and one other physician who
has examined the declarant or other patient, is characterized by
both of the following:
(1) Irreversible unawareness of one's being and environment.
(2) Total loss of cerebral cortical functioning, resulting in
the declarant or other patient having no capacity to experience
pain or suffering.
(V) "Person" has the same meaning as in section 1.59 of the
Revised Code and additionally includes political subdivisions and
governmental agencies, boards, commissions, departments,
institutions, offices, and other instrumentalities.
(W) "Physician" means a person who is authorized under
Chapter 4731. of the Revised Code to practice medicine and surgery
or osteopathic medicine and surgery.
(X) "Political subdivision" and "state" have the same
meanings as in section 2744.01 of the Revised Code.
(Y) "Professional disciplinary action" means action taken by
the board or other entity that regulates the professional conduct
of health care personnel, including the state medical board and
the board of nursing.
(Z) "Qualified patient" means an adult who has executed a
declaration and has been determined to be in a terminal condition
or in a permanently unconscious state.
(AA) "Terminal condition" means an irreversible, incurable,
and untreatable condition caused by disease, illness, or injury
from which, to a reasonable degree of medical certainty as
determined in accordance with reasonable medical standards by a
declarant's or other patient's attending physician and one other
physician who has examined the declarant or other patient, both of
the following apply:
(1) There can be no recovery.
(2) Death is likely to occur within a relatively short time
if life-sustaining treatment is not administered.
(BB) "Tort action" means a civil action for damages for
injury, death, or loss to person or property, other than a civil
action for damages for breach of a contract or another agreement
between persons.
Sec. 2317.54. No hospital, home health agency, ambulatory
surgical facility, or provider of a hospice care program or
pediatric respite care program shall be held liable for a
physician's failure to obtain an informed consent from the
physician's patient prior to a surgical or medical procedure or
course of procedures, unless the physician is an employee of the
hospital, home health agency, ambulatory surgical facility, or
provider of a hospice care program or pediatric respite care
program.
Written consent to a surgical or medical procedure or course
of procedures shall, to the extent that it fulfills all the
requirements in divisions (A), (B), and (C) of this section, be
presumed to be valid and effective, in the absence of proof by a
preponderance of the evidence that the person who sought such
consent was not acting in good faith, or that the execution of the
consent was induced by fraudulent misrepresentation of material
facts, or that the person executing the consent was not able to
communicate effectively in spoken and written English or any other
language in which the consent is written. Except as herein
provided, no evidence shall be admissible to impeach, modify, or
limit the authorization for performance of the procedure or
procedures set forth in such written consent.
(A) The consent sets forth in general terms the nature and
purpose of the procedure or procedures, and what the procedures
are expected to accomplish, together with the reasonably known
risks, and, except in emergency situations, sets forth the names
of the physicians who shall perform the intended surgical
procedures.
(B) The person making the consent acknowledges that such
disclosure of information has been made and that all questions
asked about the procedure or procedures have been answered in a
satisfactory manner.
(C) The consent is signed by the patient for whom the
procedure is to be performed, or, if the patient for any reason
including, but not limited to, competence, minority, or the fact
that, at the latest time that the consent is needed, the patient
is under the influence of alcohol, hallucinogens, or drugs, lacks
legal capacity to consent, by a person who has legal authority to
consent on behalf of such patient in such circumstances, including
either of the following:
(1) The parent, whether the parent is an adult or a minor, of
the parent's minor child;
(2) An adult whom the parent of the minor child has given
written authorization to consent to a surgical or medical
procedure or course of procedures for the parent's minor child.
Any use of a consent form that fulfills the requirements
stated in divisions (A), (B), and (C) of this section has no
effect on the common law rights and liabilities, including the
right of a physician to obtain the oral or implied consent of a
patient to a medical procedure, that may exist as between
physicians and patients on July 28, 1975.
As used in this section the term "hospital" has the same
meaning as in section 2305.113 of the Revised Code; "home health
agency" has the same meaning as in section 5101.61 of the Revised
Code; "ambulatory surgical facility" has the meaning as in
division (A) of section 3702.30 of the Revised Code; and "hospice
care program"
has and "pediatric respite care program" have the
same meaning meanings as in section 3712.01 of the Revised Code.
The provisions of this division apply to hospitals, doctors of
medicine, doctors of osteopathic medicine, and doctors of
podiatric medicine.
Sec. 3701.881. (A) As used in this section:
(1) "Applicant" means both of the following:
(a) A person who is under final consideration for appointment
to or employment with a home health agency in a position as a
person responsible for the care, custody, or control of a child;
(b) A person who is under final consideration for employment
with a home health agency in a full-time, part-time, or temporary
position that involves providing direct care to an older adult.
With regard to persons providing direct care to older adults,
"applicant" does not include a person who provides direct care as
a volunteer without receiving or expecting to receive any form of
remuneration other than reimbursement for actual expenses.
(2) "Criminal records check" and "older adult" have the same
meanings as in section 109.572 of the Revised Code.
(3) "Home health agency" means a person or government entity,
other than a nursing home, residential care facility, or hospice
care program, or pediatric respite care program, that has the
primary function of providing any of the following services to a
patient at a place of residence used as the patient's home:
(a) Skilled nursing care;
(c) Speech-language pathology;
(d) Occupational therapy;
(e) Medical social services;
(f) Home health aide services.
(4) "Home health aide services" means any of the following
services provided by an individual employed with or contracted for
by a home health agency:
(a) Hands-on bathing or assistance with a tub bath or shower;
(b) Assistance with dressing, ambulation, and toileting;
(c) Catheter care but not insertion;
(d) Meal preparation and feeding.
(5) "Hospice care program" has and "pediatric respite care
program" have the same meaning meanings as in section 3712.01 of
the Revised Code.
(6) "Medical social services" means services provided by a
social worker under the direction of a patient's attending
physician.
(7) "Minor drug possession offense" has the same meaning as
in section 2925.01 of the Revised Code.
(8) "Nursing home," "residential care facility," and "skilled
nursing care" have the same meanings as in section 3721.01 of the
Revised Code.
(9) "Occupational therapy" has the same meaning as in section
4755.04 of the Revised Code.
(10) "Physical therapy" has the same meaning as in section
4755.40 of the Revised Code.
(11) "Social worker" means a person licensed under Chapter
4757. of the Revised Code to practice as a social worker or
independent social worker.
(12) "Speech-language pathology" has the same meaning as in
section 4753.01 of the Revised Code.
(B)(1) Except as provided in division (I) of this section,
the chief administrator of a home health agency shall request the
superintendent of the bureau of criminal identification and
investigation to conduct a criminal records check with respect to
each applicant. If the position may involve both responsibility
for the care, custody, or control of a child and provision of
direct care to an older adult, the chief administrator shall
request that the superintendent conduct a single criminal records
check for the applicant. If an applicant for whom a criminal
records check request is required under this division does not
present proof of having been a resident of this state for the
five-year period immediately prior to the date upon which the
criminal records check is requested or does not provide evidence
that within that five-year period the superintendent has requested
information about the applicant from the federal bureau of
investigation in a criminal records check, the chief administrator
shall request that the superintendent obtain information from the
federal bureau of investigation as a part of the criminal records
check for the applicant. Even if an applicant for whom a criminal
records check request is required under this division presents
proof that the applicant has been a resident of this state for
that five-year period, the chief administrator may request that
the superintendent include information from the federal bureau of
investigation in the criminal records check.
(2) Any person required by division (B)(1) of this section to
request a criminal records check shall provide to each applicant
for whom a criminal records check request is required under that
division a copy of the form prescribed pursuant to division (C)(1)
of section 109.572 of the Revised Code and a standard impression
sheet prescribed pursuant to division (C)(2) of section 109.572 of
the Revised Code, obtain the completed form and impression sheet
from each applicant, and forward the completed form and impression
sheet to the superintendent of the bureau of criminal
identification and investigation at the time the chief
administrator requests a criminal records check pursuant to
division (B)(1) of this section.
(3) An applicant who receives pursuant to division (B)(2) of
this section a copy of the form prescribed pursuant to division
(C)(1) of section 109.572 of the Revised Code and a copy of an
impression sheet prescribed pursuant to division (C)(2) of that
section and who is requested to complete the form and provide a
set of fingerprint impressions shall complete the form or provide
all the information necessary to complete the form and shall
provide the impression sheets with the impressions of the
applicant's fingerprints. If an applicant, upon request, fails to
provide the information necessary to complete the form or fails to
provide fingerprint impressions, the home health agency shall not
employ that applicant for any position for which a criminal
records check is required by division (B)(1) of this section.
(C)(1) Except as provided in rules adopted by the department
of health in accordance with division (F) of this section and
subject to division (C)(3) of this section, no home health agency
shall employ a person as a person responsible for the care,
custody, or control of a child if the person previously has been
convicted of or pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.21, 2907.22, 2907.23,
2907.25, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01,
2911.02, 2911.11, 2911.12, 2919.12, 2919.22, 2919.24, 2919.25,
2923.12, 2923.13, 2923.161, 2925.02, 2925.03, 2925.04, 2925.05,
2925.06, or 3716.11 of the Revised Code, a violation of section
2905.04 of the Revised Code as it existed prior to July 1, 1996, a
violation of section 2919.23 of the Revised Code that would have
been a violation of section 2905.04 of the Revised Code as it
existed prior to July 1, 1996, had the violation been committed
prior to that date, a violation of section 2925.11 of the Revised
Code that is not a minor drug possession offense, or felonious
sexual penetration in violation of former section 2907.12 of the
Revised Code;
(b) A violation of an existing or former law of this state,
any other state, or the United States that is substantially
equivalent to any of the offenses listed in division (C)(1)(a) of
this section.
(2) Except as provided in rules adopted by the department of
health in accordance with division (F) of this section and subject
to division (C)(3) of this section, no home health agency shall
employ a person in a position that involves providing direct care
to an older adult if the person previously has been convicted of
or pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.11, 2905.12, 2907.02, 2907.03, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.12, 2907.25, 2907.31,
2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11,
2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21,
2913.31, 2913.40, 2913.43, 2913.47, 2913.51, 2919.25, 2921.36,
2923.12, 2923.13, 2923.161, 2925.02, 2925.03, 2925.11, 2925.13,
2925.22, 2925.23, or 3716.11 of the Revised Code.
(b) A violation of an existing or former law of this state,
any other state, or the United States that is substantially
equivalent to any of the offenses listed in division (C)(2)(a) of
this section.
(3)(a) A home health agency may employ conditionally an
applicant for whom a criminal records check request is required
under division (B) of this section as a person responsible for the
care, custody, or control of a child until the criminal records
check regarding the applicant required by this section is
completed and the agency receives the results of the criminal
records check. If the results of the criminal records check
indicate that, pursuant to division (C)(1) of this section, the
applicant does not qualify for employment, the agency shall
release the applicant from employment unless the agency chooses to
employ the applicant pursuant to division (F) of this section.
(b)(i) A home health agency may employ conditionally an
applicant for whom a criminal records check request is required
under division (B) of this section in a position that involves
providing direct care to an older adult or in a position that
involves both responsibility for the care, custody, and control of
a child and the provision of direct care to older adults prior to
obtaining the results of a criminal records check regarding the
individual, provided that the agency shall request a criminal
records check regarding the individual in accordance with division
(B)(1) of this section not later than five business days after the
individual begins conditional employment. In the circumstances
described in division (I)(2) of this section, a home health agency
may employ conditionally in a position that involves providing
direct care to an older adult an applicant who has been referred
to the home health agency by an employment service that supplies
full-time, part-time, or temporary staff for positions involving
the direct care of older adults and for whom, pursuant to that
division, a criminal records check is not required under division
(B) of this section. In the circumstances described in division
(I)(4) of this section, a home health agency may employ
conditionally in a position that involves both responsibility for
the care, custody, and control of a child and the provision of
direct care to older adults an applicant who has been referred to
the home health agency by an employment service that supplies
full-time, part-time, or temporary staff for positions involving
both responsibility for the care, custody, and control of a child
and the provision of direct care to older adults and for whom,
pursuant to that division, a criminal records check is not
required under division (B) of this section.
(ii) A home health agency that employs an individual
conditionally under authority of division (C)(3)(b)(i) of this
section shall terminate the individual's employment if the results
of the criminal records check requested under division (B)(1) of
this section or described in division (I)(2) or (4) of this
section, other than the results of any request for information
from the federal bureau of investigation, are not obtained within
the period ending thirty days after the date the request is made.
Regardless of when the results of the criminal records check are
obtained, if the individual was employed conditionally in a
position that involves the provision of direct care to older
adults and the results indicate that the individual has been
convicted of or pleaded guilty to any of the offenses listed or
described in division (C)(2) of this section, or if the individual
was employed conditionally in a position that involves both
responsibility for the care, custody, and control of a child and
the provision of direct care to older adults and the results
indicate that the individual has been convicted of or pleaded
guilty to any of the offenses listed or described in division
(C)(1) or (2) of this section, the agency shall terminate the
individual's employment unless the agency chooses to employ the
individual pursuant to division (F) of this section. Termination
of employment under this division shall be considered just cause
for discharge for purposes of division (D)(2) of section 4141.29
of the Revised Code if the individual makes any attempt to deceive
the agency about the individual's criminal record.
(D)(1) Each home health agency shall pay to the bureau of
criminal identification and investigation the fee prescribed
pursuant to division (C)(3) of section 109.572 of the Revised Code
for each criminal records check conducted in accordance with that
section upon the request pursuant to division (B)(1) of this
section of the chief administrator of the home health agency.
(2) A home health agency may charge an applicant a fee for
the costs it incurs in obtaining a criminal records check under
this section, unless the medical assistance program established
under Chapter 5111. of the Revised Code reimburses the agency for
the costs. A fee charged under division (D)(2) of this section
shall not exceed the amount of fees the agency pays under division
(D)(1) of this section. If a fee is charged under division (D)(2)
of this section, the agency shall notify the applicant at the time
of the applicant's initial application for employment of the
amount of the fee and that, unless the fee is paid, the agency
will not consider the applicant for employment.
(E) The report of any criminal records check conducted by the
bureau of criminal identification and investigation in accordance
with section 109.572 of the Revised Code and pursuant to a request
made under division (B)(1) of this section is not a public record
for the purposes of section 149.43 of the Revised Code and shall
not be made available to any person other than the following:
(1) The individual who is the subject of the criminal records
check or the individual's representative;
(2) The home health agency requesting the criminal records
check or its representative;
(3) The administrator of any other facility, agency, or
program that provides direct care to older adults that is owned or
operated by the same entity that owns or operates the home health
agency;
(4) Any court, hearing officer, or other necessary individual
involved in a case dealing with a denial of employment of the
applicant or dealing with employment or unemployment benefits of
the applicant;
(5) Any person to whom the report is provided pursuant to,
and in accordance with, division (I)(1), (2), (3), or (4) of this
section.
(F) The department of health shall adopt rules in accordance
with Chapter 119. of the Revised Code to implement this section.
The rules shall specify circumstances under which the home health
agency may employ a person who has been convicted of or pleaded
guilty to an offense listed or described in division (C)(1) of
this section but who meets standards in regard to rehabilitation
set by the department or employ a person who has been convicted of
or pleaded guilty to an offense listed or described in division
(C)(2) of this section but meets personal character standards set
by the department.
(G) Any person required by division (B)(1) of this section to
request a criminal records check shall inform each person, at the
time of initial application for employment that the person is
required to provide a set of fingerprint impressions and that a
criminal records check is required to be conducted and
satisfactorily completed in accordance with section 109.572 of the
Revised Code if the person comes under final consideration for
appointment or employment as a precondition to employment for that
position.
(H) In a tort or other civil action for damages that is
brought as the result of an injury, death, or loss to person or
property caused by an individual who a home health agency employs
in a position that involves providing direct care to older adults,
all of the following shall apply:
(1) If the agency employed the individual in good faith and
reasonable reliance on the report of a criminal records check
requested under this section, the agency shall not be found
negligent solely because of its reliance on the report, even if
the information in the report is determined later to have been
incomplete or inaccurate;
(2) If the agency employed the individual in good faith on a
conditional basis pursuant to division (C)(3)(b) of this section,
the agency shall not be found negligent solely because it employed
the individual prior to receiving the report of a criminal records
check requested under this section;
(3) If the agency in good faith employed the individual
according to the personal character standards established in rules
adopted under division (F) of this section, the agency shall not
be found negligent solely because the individual prior to being
employed had been convicted of or pleaded guilty to an offense
listed or described in division (C)(1) or (2) of this section.
(I)(1) The chief administrator of a home health agency is not
required to request that the superintendent of the bureau of
criminal identification and investigation conduct a criminal
records check of an applicant for a position that involves the
provision of direct care to older adults if the applicant has been
referred to the agency by an employment service that supplies
full-time, part-time, or temporary staff for positions involving
the direct care of older adults and both of the following apply:
(a) The chief administrator receives from the employment
service or the applicant a report of the results of a criminal
records check regarding the applicant that has been conducted by
the superintendent within the one-year period immediately
preceding the applicant's referral;
(b) The report of the criminal records check demonstrates
that the person has not been convicted of or pleaded guilty to an
offense listed or described in division (C)(2) of this section, or
the report demonstrates that the person has been convicted of or
pleaded guilty to one or more of those offenses, but the home
health agency chooses to employ the individual pursuant to
division (F) of this section.
(2) The chief administrator of a home health agency is not
required to request that the superintendent of the bureau of
criminal identification and investigation conduct a criminal
records check of an applicant for a position that involves
providing direct care to older adults and may employ the applicant
conditionally in a position of that nature as described in this
division, if the applicant has been referred to the agency by an
employment service that supplies full-time, part-time, or
temporary staff for positions involving the direct care of older
adults and if the chief administrator receives from the employment
service or the applicant a letter from the employment service that
is on the letterhead of the employment service, dated, and signed
by a supervisor or another designated official of the employment
service and that states that the employment service has requested
the superintendent to conduct a criminal records check regarding
the applicant, that the requested criminal records check will
include a determination of whether the applicant has been
convicted of or pleaded guilty to any offense listed or described
in division (C)(2) of this section, that, as of the date set forth
on the letter, the employment service had not received the results
of the criminal records check, and that, when the employment
service receives the results of the criminal records check, it
promptly will send a copy of the results to the home health
agency. If a home health agency employs an applicant conditionally
in accordance with this division, the employment service, upon its
receipt of the results of the criminal records check, promptly
shall send a copy of the results to the home health agency, and
division (C)(3)(b) of this section applies regarding the
conditional employment.
(3) The chief administrator of a home health agency is not
required to request that the superintendent of the bureau of
criminal identification and investigation conduct a criminal
records check of an applicant for a position that involves both
responsibility for the care, custody, and control of a child and
the provision of direct care to older adults if the applicant has
been referred to the agency by an employment service that supplies
full-time, part-time, or temporary staff for positions involving
both responsibility for the care, custody, and control of a child
and the provision of direct care to older adults and both of the
following apply:
(a) The chief administrator receives from the employment
service or applicant a report of a criminal records check of the
type described in division (I)(1)(a) of this section;
(b) The report of the criminal records check demonstrates
that the person has not been convicted of or pleaded guilty to an
offense listed or described in division (C)(1) or (2) of this
section, or the report demonstrates that the person has been
convicted of or pleaded guilty to one or more of those offenses,
but the home health agency chooses to employ the individual
pursuant to division (F) of this section.
(4) The chief administrator of a home health agency is not
required to request that the superintendent of the bureau of
criminal identification and investigation conduct a criminal
records check of an applicant for a position that involves both
responsibility for the care, custody, and control of a child and
the provision of direct care to older adults and may employ the
applicant conditionally in a position of that nature as described
in this division, if the applicant has been referred to the agency
by an employment service that supplies full-time, part-time, or
temporary staff for positions involving both responsibility for
the care, custody, and control of a child and the direct care of
older adults and if the chief administrator receives from the
employment service or the applicant a letter from the employment
service that is on the letterhead of the employment service,
dated, and signed by a supervisor or another designated official
of the employment service and that states that the employment
service has requested the superintendent to conduct a criminal
records check regarding the applicant, that the requested criminal
records check will include a determination of whether the
applicant has been convicted of or pleaded guilty to any offense
listed or described in division (C)(1) or (2) of this section,
that, as of the date set forth on the letter, the employment
service had not received the results of the criminal records
check, and that, when the employment service receives the results
of the criminal records check, it promptly will send a copy of the
results to the home health agency. If a home health agency employs
an applicant conditionally in accordance with this division, the
employment service, upon its receipt of the results of the
criminal records check, promptly shall send a copy of the results
to the home health agency, and division (C)(3)(b) of this section
applies regarding the conditional employment.
Sec. 3712.01. As used in this chapter:
(A) "Hospice care program" means a coordinated program of
home, outpatient, and inpatient care and services that is operated
by a person or public agency and that provides the following care
and services to hospice patients, including services as indicated
below to hospice patients' families, through a medically directed
interdisciplinary team, under interdisciplinary plans of care
established pursuant to section 3712.06 of the Revised Code, in
order to meet the physical, psychological, social, spiritual, and
other special needs that are experienced during the final stages
of illness, dying, and bereavement:
(1) Nursing care by or under the supervision of a registered
nurse;
(2) Physical, occupational, or speech or language therapy,
unless waived by the department of health pursuant to rules
adopted under division (A) of section 3712.03 of the Revised Code;
(3) Medical social services by a social worker under the
direction of a physician;
(4) Services of a home health aide;
(5) Medical supplies, including drugs and biologicals, and
the use of medical appliances;
(6) Physician's services;
(7) Short-term inpatient care, including both palliative and
respite care and procedures;
(8) Counseling for hospice patients and hospice patients'
families;
(9) Services of volunteers under the direction of the
provider of the hospice care program;
(10) Bereavement services for hospice patients' families.
"Hospice care program" does not include a pediatric respite
care program.
(B) "Hospice patient" means a patient, other than a pediatric
respite care patient, who has been diagnosed as terminally ill,
has an anticipated life expectancy of six months or less, and has
voluntarily requested and is receiving care from a person or
public agency licensed under this chapter to provide a hospice
care program.
(C) "Hospice patient's family" means a hospice patient's
immediate family members, including a spouse, brother, sister,
child, or parent, and any other relative or individual who has
significant personal ties to the patient and who is designated as
a member of the patient's family by mutual agreement of the
patient, the relative or individual, and the patient's
interdisciplinary team.
(D) "Interdisciplinary team" means a working unit composed of
professional and lay persons that includes at least a physician, a
registered nurse, a social worker, a member of the clergy or a
counselor, and a volunteer.
(E) "Palliative care" means treatment for a patient with a
serious or life-threatening illness directed at controlling pain,
relieving other symptoms, and enhancing the quality of life of the
patient and the patient's family rather than treatment for the
purpose of cure. Nothing in this section shall be interpreted to
mean that palliative care can be provided only as a component of a
hospice care program or pediatric respite care program.
(F) "Physician" means a person authorized under Chapter 4731.
of the Revised Code to practice medicine and surgery or
osteopathic medicine and surgery.
(G) "Attending physician" means the physician identified by
the hospice patient or the, pediatric respite care patient,
hospice patient's family, or pediatric respite care patient's
family as having primary responsibility for the hospice patient's
medical care of the hospice patient or pediatric respite care
patient.
(H) "Registered nurse" means a person registered under
Chapter 4723. of the Revised Code to practice professional
nursing.
(I) "Social worker" means a person licensed under Chapter
4757. of the Revised Code to practice as a social worker or
independent social worker.
(J) "Pediatric respite care program" means a program operated
by a person or public agency that provides inpatient respite care
and related services, including all of the following services,
only to pediatric respite care patients and, as indicated below,
pediatric respite care patients' families, in order to meet the
physical, psychological, social, spiritual, and other special
needs that are experienced during or leading up to the final
stages of illness, dying, and bereavement:
(1) Short-term inpatient care, including both palliative and
respite care and procedures;
(2) Nursing care by or under the supervision of a registered
nurse;
(3) Physician's services;
(4) Medical social services by a social worker under the
direction of a physician;
(5) Medical supplies, including drugs and biologicals, and
the use of medical appliances;
(6) Counseling for pediatric respite care patients and
pediatric respite care patients' families;
(7) Bereavement services for respite care patients' families.
"Pediatric respite care program" does not include a hospice
care program.
(K) "Pediatric respite care patient" means a patient, other
than a hospice patient, who is less than twenty-seven years of age
and to whom all of the following conditions apply:
(1) The patient has been diagnosed with a disease or
condition that is life-threatening and is expected to shorten the
life expectancy that would have applied to the patient absent the
patient's diagnosis, regardless of whether the patient is
terminally ill.
(2) The diagnosis described in division (K)(1) of this
section occurred while the patient was less than eighteen years of
age.
(3) The patient has voluntarily requested and is receiving
care from a person or public agency licensed under this chapter to
provide a pediatric respite care program.
(L) "Pediatric respite care patient's family" means a
pediatric respite care patient's family members, including a
spouse, brother, sister, child, or parent, and any other relative
or individual who has significant personal ties to the patient and
who is designated as a member of the patient's family by mutual
agreement of the patient, the relative or individual, and the
patient's interdisciplinary team.
Sec. 3712.03. (A) In accordance with Chapter 119. of the
Revised Code, the public health council shall adopt, and may amend
and rescind, rules:
(1) Providing for the licensing of persons or public agencies
providing hospice care programs within this state by the
department of health and for the suspension and revocation of
licenses;
(2) Establishing a license fee and license renewal fee for
hospice care programs, neither of which shall, except as provided
in division (B) of this section, exceed six hundred dollars. The
fees shall cover the three-year period during which an existing
license is valid as provided in division (B) of section 3712.04 of
the Revised Code.
(3) Establishing an inspection fee for hospice care programs
not to exceed, except as provided in division (B) of this section,
one thousand seven hundred fifty dollars;
(4) Establishing requirements for hospice care program
facilities and services;
(5) Providing for a waiver of the requirement for the
provision of physical, occupational, or speech or language therapy
contained in division (A)(2) of section 3712.01 of the Revised
Code when the requirement would create a hardship because such
therapy is not readily available in the geographic area served by
the provider of a hospice care program;
(6) Providing for the granting of licenses to provide hospice
care programs to persons and public agencies that are accredited
or certified to provide such programs by an entity whose standards
for accreditation or certification equal or exceed those provided
for licensure under this chapter and rules adopted under it;
(7) Establishing interpretive guidelines for each rule
adopted under this section.
(B) Subject to the approval of the controlling board, the
public health council may establish fees in excess of the maximum
amounts specified in this section, provided that the fees do not
exceed those amounts by greater than fifty per cent.
(C) The department of health shall:
(1) Grant, suspend, and revoke licenses for hospice care
programs in accordance with this chapter and rules adopted under
it;
(2) Make such inspections as are necessary to determine
whether hospice care program facilities and services meet the
requirements of this chapter and rules adopted under it; and
(3) Implement and enforce provisions of this chapter and
rules adopted under it as such provisions apply to hospice care
programs.
Sec. 3712.031. (A) In accordance with Chapter 119. of the
Revised Code, the director of health shall adopt, and may amend
and rescind, rules:
(1) Providing for the licensing of persons or public agencies
providing pediatric respite care programs within this state by the
department of health and for the suspension and revocation of
licenses;
(2) Establishing a license fee and license renewal fee for
pediatric respite care programs, neither of which shall, except as
provided in division (B) of this section, exceed six hundred
dollars. The fees shall cover the three-year period during which
an existing license is valid as provided in division (B) of
section 3712.041 of the Revised Code.
(3) Establishing an inspection fee not to exceed, except as
provided in division (B) of this section, one thousand seven
hundred fifty dollars;
(4) Establishing requirements for pediatric respite care
program facilities and services;
(5) Providing for the granting of licenses to provide
pediatric respite care programs to persons and public agencies
that are accredited or certified to provide such programs by an
entity whose standards for accreditation or certification equal or
exceed those provided for licensure under this chapter and rules
adopted under it;
(6) Establishing interpretive guidelines for each rule
adopted under this section.
(B) Subject to the approval of the controlling board, the
director of health may establish fees in excess of the maximum
amounts specified in this section, provided that the fees do not
exceed those amounts by greater than fifty per cent.
(C) The department of health shall:
(1) Grant, suspend, and revoke licenses for pediatric respite
care programs in accordance with this chapter and rules adopted
under it;
(2) Make such inspections as are necessary to determine
whether pediatric respite care program facilities and services
meet the requirements of this chapter and rules adopted under it;
and
(3) Implement and enforce provisions of this chapter and
rules adopted under it as such provisions apply to pediatric
respite care programs.
Sec. 3712.041. (A) Every person or public agency that
proposes to provide a pediatric respite care program shall apply
to the department of health for a license. Application shall be
made on forms prescribed and provided by the department, shall
include such information as the department requires, and shall be
accompanied by the license fee established by rules adopted by the
director of health under division (A) of section 3712.031 of the
Revised Code.
The department shall grant a license to the applicant if the
applicant is in compliance with this chapter and rules adopted
under it.
(B) A license granted under this section shall be valid for
three years. Application for renewal of a license shall be made at
least ninety days before the expiration of the license in the same
manner as for an initial license. The department shall renew the
license if the applicant meets the requirements of this chapter
and rules adopted under it.
(C) Subject to Chapter 119. of the Revised Code, the
department may suspend or revoke a license if the licensee made
any material misrepresentation in the application for the license
or no longer meets the requirements of this chapter or rules
adopted under it.
Sec. 3712.051. (A) As used in this division, "person" does
not include a member of an interdisciplinary team, as defined in
section 3712.01 of the Revised Code, or any individual who is
employed by a person or public agency licensed under section
3712.041 of the Revised Code.
Except as provided in division (B) of this section, no person
or public agency, other than a person or public agency licensed
pursuant to section 3712.041 of the Revised Code, shall hold
itself out as providing a pediatric respite care program, or
provide a pediatric respite care program, or use the term
"pediatric respite care program" or any term containing "pediatric
respite care" to describe or refer to a health program, facility,
or agency.
(B) Division (A) of this section does not apply to any of the
following:
(2) A home providing nursing care;
(3) A home health agency, if it provides services under
contract with a person or public agency providing a pediatric
respite care program licensed under section 3712.041 of the
Revised Code;
(4) A regional, state, or national nonprofit organization
whose members are providers of pediatric respite care programs,
individuals interested in pediatric respite care programs, or
both, as long as the organization does not provide or represent
that it provides pediatric respite care programs.
(C) The department of health shall petition the court of
common pleas of any county in which a person or public agency,
without a license granted under section 3712.041 of the Revised
Code, is holding itself out as providing a pediatric respite care
program, is providing a pediatric respite care program, or is
representing a health program, facility, or agency as a pediatric
respite care program, for an order enjoining that person or public
agency from conducting those activities without a license. The
court has jurisdiction to grant injunctive relief upon a showing
that the respondent named in the petition is conducting those
activities without a license.
Any person or public agency may request the department to
petition the court for injunctive relief under this division, and
the department shall do so if it determines that the person or
public agency named in the request is violating division (A) of
this section.
Sec. 3712.061. (A) Any person or public agency licensed under
section 3712.041 of the Revised Code to provide a pediatric
respite care program shall do all of the following:
(1) Provide a planned and continuous pediatric respite care
program, the medical components of which shall be under the
direction of a physician;
(2) Ensure that care is available twenty-four hours a day and
seven days a week;
(3) Establish an interdisciplinary plan of care for each
pediatric respite care patient and the patient's family that:
(a) Is coordinated by one designated individual who shall
ensure that all components of the plan of care are addressed and
implemented;
(b) Addresses maintenance of patient-family participation in
decision making; and
(c) Is reviewed by the patient's attending physician and by
the patient's interdisciplinary team immediately prior to or on
admission to each session of respite care.
(4) Have an interdisciplinary team or teams that provide or
supervise the provision of pediatric respite care program services
and establish the policies governing the provision of the
services;
(5) Maintain central clinical records on all pediatric
respite care patients under its care.
(B) A provider of a pediatric respite care program may
arrange for another person or public agency to furnish a component
or components of the pediatric respite care program pursuant to a
written contract. When a provider of a pediatric respite care
program arranges for a home health agency to furnish a component
or components of the pediatric respite care program to its
patient, the care shall be provided by a home health agency
pursuant to a written contract under which:
(1) The provider of a pediatric respite care program
furnishes to the contractor a copy of the pediatric respite care
patient's interdisciplinary plan of care that is established under
division (A)(3) of this section and specifies the care that is to
be furnished by the contractor;
(2) The regimen described in the established plan of care is
continued while the pediatric respite care patient receives care
from the contractor, subject to the patient's needs, and with
approval of the coordinator of the interdisciplinary team
designated pursuant to division (A)(3)(a) of this section;
(3) All care, treatment, and services furnished by the
contractor are entered into the pediatric respite care patient's
medical record;
(4) The designated coordinator of the interdisciplinary team
ensures conformance with the established plan of care; and
(5) A copy of the contractor's medical record and discharge
summary is retained as part of the pediatric respite care
patient's medical record.
Sec. 3712.09. (A) As used in this section:
(1) "Applicant" means a person who is under final
consideration for employment with a hospice care program or
pediatric respite care program in a full-time, part-time, or
temporary position that involves providing direct care to an older
adult or pediatric respite care patient. "Applicant" does not
include a person who provides direct care as a volunteer without
receiving or expecting to receive any form of remuneration other
than reimbursement for actual expenses.
(2) "Criminal records check" and "older adult" have the same
meanings as in section 109.572 of the Revised Code.
(B)(1) Except as provided in division (I) of this section,
the chief administrator of a hospice care program or pediatric
respite care program shall request that the superintendent of the
bureau of criminal identification and investigation conduct a
criminal records check with respect to each applicant. If an
applicant for whom a criminal records check request is required
under this division does not present proof of having been a
resident of this state for the five-year period immediately prior
to the date the criminal records check is requested or provide
evidence that within that five-year period the superintendent has
requested information about the applicant from the federal bureau
of investigation in a criminal records check, the chief
administrator shall request that the superintendent obtain
information from the federal bureau of investigation as part of
the criminal records check of the applicant. Even if an applicant
for whom a criminal records check request is required under this
division presents proof of having been a resident of this state
for the five-year period, the chief administrator may request that
the superintendent include information from the federal bureau of
investigation in the criminal records check.
(2) A person required by division (B)(1) of this section to
request a criminal records check shall do both of the following:
(a) Provide to each applicant for whom a criminal records
check request is required under that division a copy of the form
prescribed pursuant to division (C)(1) of section 109.572 of the
Revised Code and a standard fingerprint impression sheet
prescribed pursuant to division (C)(2) of that section, and obtain
the completed form and impression sheet from the applicant;
(b) Forward the completed form and impression sheet to the
superintendent of the bureau of criminal identification and
investigation.
(3) An applicant provided the form and fingerprint impression
sheet under division (B)(2)(a) of this section who fails to
complete the form or provide fingerprint impressions shall not be
employed in any position for which a criminal records check is
required by this section.
(C)(1) Except as provided in rules adopted by the public
health council in accordance with division (F)(1) of this section
or by the director of health in accordance with division (F)(2) of
this section, and subject to division (C)(2) of this section, no
hospice care program or pediatric respite care program shall
employ a person in a position that involves providing direct care
to an older adult or pediatric respite care patient if the person
has been convicted of or pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.11, 2905.12, 2907.02, 2907.03, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.12, 2907.25, 2907.31,
2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11,
2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21,
2913.31, 2913.40, 2913.43, 2913.47, 2913.51, 2919.25, 2921.36,
2923.12, 2923.13, 2923.161, 2925.02, 2925.03, 2925.11, 2925.13,
2925.22, 2925.23, or 3716.11 of the Revised Code.
(b) A violation of an existing or former law of this state,
any other state, or the United States that is substantially
equivalent to any of the offenses listed in division (C)(1)(a) of
this section.
(2)(a) A hospice care program or pediatric respite care
program may employ conditionally an applicant for whom a criminal
records check request is required under division (B) of this
section prior to obtaining the results of a criminal records check
regarding the individual, provided that the program shall request
a criminal records check regarding the individual in accordance
with division (B)(1) of this section not later than five business
days after the individual begins conditional employment. In the
circumstances described in division (I)(2) of this section, a
hospice care program or pediatric respite care program may employ
conditionally an applicant who has been referred to the hospice
care program or pediatric respite care program by an employment
service that supplies full-time, part-time, or temporary staff for
positions involving the direct care of older adults or pediatric
respite care patients and for whom, pursuant to that division, a
criminal records check is not required under division (B) of this
section.
(b) A hospice care program or pediatric respite care program
that employs an individual conditionally under authority of
division (C)(2)(a) of this section shall terminate the
individual's employment if the results of the criminal records
check requested under division (B) of this section or described in
division (I)(2) of this section, other than the results of any
request for information from the federal bureau of investigation,
are not obtained within the period ending thirty days after the
date the request is made. Regardless of when the results of the
criminal records check are obtained, if the results indicate that
the individual has been convicted of or pleaded guilty to any of
the offenses listed or described in division (C)(1) of this
section, the program shall terminate the individual's employment
unless the program chooses to employ the individual pursuant to
division (F) of this section. Termination of employment under this
division shall be considered just cause for discharge for purposes
of division (D)(2) of section 4141.29 of the Revised Code if the
individual makes any attempt to deceive the program about the
individual's criminal record.
(D)(1) Each hospice care program or pediatric respite care
program shall pay to the bureau of criminal identification and
investigation the fee prescribed pursuant to division (C)(3) of
section 109.572 of the Revised Code for each criminal records
check conducted pursuant to a request made under division (B) of
this section.
(2) A hospice care program or pediatric respite care program
may charge an applicant a fee not exceeding the amount the program
pays under division (D)(1) of this section. A program may collect
a fee only if both of the following apply:
(a) The program notifies the person at the time of initial
application for employment of the amount of the fee and that,
unless the fee is paid, the person will not be considered for
employment;
(b) The medical assistance program established under Chapter
5111. of the Revised Code does not reimburse the program the fee
it pays under division (D)(1) of this section.
(E) The report of a criminal records check conducted pursuant
to a request made under this section is not a public record for
the purposes of section 149.43 of the Revised Code and shall not
be made available to any person other than the following:
(1) The individual who is the subject of the criminal records
check or the individual's representative;
(2) The chief administrator of the program requesting the
criminal records check or the administrator's representative;
(3) The administrator of any other facility, agency, or
program that provides direct care to older adults or pediatric
respite care patients that is owned or operated by the same entity
that owns or operates the hospice care program or pediatric
respite care program;
(4) A court, hearing officer, or other necessary individual
involved in a case dealing with a denial of employment of the
applicant or dealing with employment or unemployment benefits of
the applicant;
(5) Any person to whom the report is provided pursuant to,
and in accordance with, division (I)(1) or (2) of this section.
(F)(1) The public health council shall adopt rules in
accordance with Chapter 119. of the Revised Code to implement this
section only as it applies to hospice care programs. The rules
shall specify circumstances under which a hospice care program may
employ a person who has been convicted of or pleaded guilty to an
offense listed or described in division (C)(1) of this section but
meets personal character standards set by the council.
(2) The director of health shall adopt rules in accordance
with Chapter 119. of the Revised Code to implement this section
only as it applies to pediatric respite care programs. The rules
shall specify circumstances under which a pediatric respite care
program may employ a person who has been convicted of or pleaded
guilty to an offense listed or described in division (C)(1) of
this section but meets personal character standards set by the
director.
(G) The chief administrator of a hospice care program or
pediatric respite care program shall inform each individual, at
the time of initial application for a position that involves
providing direct care to an older adult or pediatric respite care
patient, that the individual is required to provide a set of
fingerprint impressions and that a criminal records check is
required to be conducted if the individual comes under final
consideration for employment.
(H) In a tort or other civil action for damages that is
brought as the result of an injury, death, or loss to person or
property caused by an individual who a hospice care program or
pediatric respite care program employs in a position that involves
providing direct care to older adults or pediatric respite care
patients, all of the following shall apply:
(1) If the program employed the individual in good faith and
reasonable reliance on the report of a criminal records check
requested under this section, the program shall not be found
negligent solely because of its reliance on the report, even if
the information in the report is determined later to have been
incomplete or inaccurate;
(2) If the program employed the individual in good faith on a
conditional basis pursuant to division (C)(2) of this section, the
program shall not be found negligent solely because it employed
the individual prior to receiving the report of a criminal records
check requested under this section;
(3) If the program in good faith employed the individual
according to the personal character standards established in rules
adopted under division (F) of this section, the program shall not
be found negligent solely because the individual prior to being
employed had been convicted of or pleaded guilty to an offense
listed or described in division (C)(1) of this section.
(I)(1) The chief administrator of a hospice care program or
pediatric respite care program is not required to request that the
superintendent of the bureau of criminal identification and
investigation conduct a criminal records check of an applicant if
the applicant has been referred to the program by an employment
service that supplies full-time, part-time, or temporary staff for
positions involving the direct care of older adults or pediatric
respite care patients and both of the following apply:
(a) The chief administrator receives from the employment
service or the applicant a report of the results of a criminal
records check regarding the applicant that has been conducted by
the superintendent within the one-year period immediately
preceding the applicant's referral;
(b) The report of the criminal records check demonstrates
that the person has not been convicted of or pleaded guilty to an
offense listed or described in division (C)(1) of this section, or
the report demonstrates that the person has been convicted of or
pleaded guilty to one or more of those offenses, but the hospice
care program or pediatric respite care program chooses to employ
the individual pursuant to division (F) of this section.
(2) The chief administrator of a hospice care program or
pediatric respite care program is not required to request that the
superintendent of the bureau of criminal identification and
investigation conduct a criminal records check of an applicant and
may employ the applicant conditionally as described in this
division, if the applicant has been referred to the program by an
employment service that supplies full-time, part-time, or
temporary staff for positions involving the direct care of older
adults or pediatric respite care patients and if the chief
administrator receives from the employment service or the
applicant a letter from the employment service that is on the
letterhead of the employment service, dated, and signed by a
supervisor or another designated official of the employment
service and that states that the employment service has requested
the superintendent to conduct a criminal records check regarding
the applicant, that the requested criminal records check will
include a determination of whether the applicant has been
convicted of or pleaded guilty to any offense listed or described
in division (C)(1) of this section, that, as of the date set forth
on the letter, the employment service had not received the results
of the criminal records check, and that, when the employment
service receives the results of the criminal records check, it
promptly will send a copy of the results to the hospice care
program or pediatric respite care program. If a hospice care
program or pediatric respite care program employs an applicant
conditionally in accordance with this division, the employment
service, upon its receipt of the results of the criminal records
check, promptly shall send a copy of the results to the hospice
care program or pediatric respite care program, and division
(C)(2)(b) of this section applies regarding the conditional
employment.
Sec. 3721.01. (A) As used in sections 3721.01 to 3721.09 and
3721.99 of the Revised Code:
(1)(a) "Home" means an institution, residence, or facility
that provides, for a period of more than twenty-four hours,
whether for a consideration or not, accommodations to three or
more unrelated individuals who are dependent upon the services of
others, including a nursing home, residential care facility, home
for the aging, and a veterans' home operated under Chapter 5907.
of the Revised Code.
(b) "Home" also means both of the following:
(i) Any facility that a person, as defined in section 3702.51
of the Revised Code, proposes for certification as a skilled
nursing facility or nursing facility under Title XVIII or XIX of
the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.A. 301,
as amended, and for which a certificate of need, other than a
certificate to recategorize hospital beds as described in section
3702.522 of the Revised Code or division (R)(7)(d) of the version
of section 3702.51 of the Revised Code in effect immediately prior
to April 20, 1995, has been granted to the person under sections
3702.51 to 3702.62 of the Revised Code after August 5, 1989;
(ii) A county home or district home that is or has been
licensed as a residential care facility.
(c) "Home" does not mean any of the following:
(i) Except as provided in division (A)(1)(b) of this section,
a public hospital or hospital as defined in section 3701.01 or
5122.01 of the Revised Code;
(ii) A residential facility for mentally ill persons as
defined under section 5119.22 of the Revised Code;
(iii) A residential facility as defined in section 5123.19 of
the Revised Code;
(iv) An adult care facility as defined in section 5119.70 of
the Revised Code;
(v) An alcohol or drug addiction program as defined in
section 3793.01 of the Revised Code;
(vi) A facility licensed to provide methadone treatment under
section 3793.11 of the Revised Code;
(vii) A facility providing services under contract with the
department of developmental disabilities under section 5123.18 of
the Revised Code unless section 5123.192 of the Revised Code makes
the facility subject to the requirements of this chapter;
(viii) A facility operated by a hospice care program licensed
under section 3712.04 of the Revised Code that is used exclusively
for care of hospice patients;
(ix) A facility operated by a pediatric respite care program
licensed under section 3712.041 of the Revised Code that is used
exclusively for care of pediatric respite care patients;
(x) A facility, infirmary, or other entity that is operated
by a religious order, provides care exclusively to members of
religious orders who take vows of celibacy and live by virtue of
their vows within the orders as if related, and does not
participate in the medicare program established under Title XVIII
of the "Social Security Act" or the medical assistance program
established under Chapter 5111. of the Revised Code and Title XIX
of the "Social Security Act," if on January 1, 1994, the facility,
infirmary, or entity was providing care exclusively to members of
the religious order;
(x)(xi) A county home or district home that has never been
licensed as a residential care facility.
(2) "Unrelated individual" means one who is not related to
the owner or operator of a home or to the spouse of the owner or
operator as a parent, grandparent, child, grandchild, brother,
sister, niece, nephew, aunt, uncle, or as the child of an aunt or
uncle.
(3) "Mental impairment" does not mean mental illness as
defined in section 5122.01 of the Revised Code or mental
retardation as defined in section 5123.01 of the Revised Code.
(4) "Skilled nursing care" means procedures that require
technical skills and knowledge beyond those the untrained person
possesses and that are commonly employed in providing for the
physical, mental, and emotional needs of the ill or otherwise
incapacitated. "Skilled nursing care" includes, but is not limited
to, the following:
(a) Irrigations, catheterizations, application of dressings,
and supervision of special diets;
(b) Objective observation of changes in the patient's
condition as a means of analyzing and determining the nursing care
required and the need for further medical diagnosis and treatment;
(c) Special procedures contributing to rehabilitation;
(d) Administration of medication by any method ordered by a
physician, such as hypodermically, rectally, or orally, including
observation of the patient after receipt of the medication;
(e) Carrying out other treatments prescribed by the physician
that involve a similar level of complexity and skill in
administration.
(5)(a) "Personal care services" means services including, but
not limited to, the following:
(i) Assisting residents with activities of daily living;
(ii) Assisting residents with self-administration of
medication, in accordance with rules adopted under section 3721.04
of the Revised Code;
(iii) Preparing special diets, other than complex therapeutic
diets, for residents pursuant to the instructions of a physician
or a licensed dietitian, in accordance with rules adopted under
section 3721.04 of the Revised Code.
(b) "Personal care services" does not include "skilled
nursing care" as defined in division (A)(4) of this section. A
facility need not provide more than one of the services listed in
division (A)(5)(a) of this section to be considered to be
providing personal care services.
(6) "Nursing home" means a home used for the reception and
care of individuals who by reason of illness or physical or mental
impairment require skilled nursing care and of individuals who
require personal care services but not skilled nursing care. A
nursing home is licensed to provide personal care services and
skilled nursing care.
(7) "Residential care facility" means a home that provides
either of the following:
(a) Accommodations for seventeen or more unrelated
individuals and supervision and personal care services for three
or more of those individuals who are dependent on the services of
others by reason of age or physical or mental impairment;
(b) Accommodations for three or more unrelated individuals,
supervision and personal care services for at least three of those
individuals who are dependent on the services of others by reason
of age or physical or mental impairment, and, to at least one of
those individuals, any of the skilled nursing care authorized by
section 3721.011 of the Revised Code.
(8) "Home for the aging" means a home that provides services
as a residential care facility and a nursing home, except that the
home provides its services only to individuals who are dependent
on the services of others by reason of both age and physical or
mental impairment.
The part or unit of a home for the aging that provides
services only as a residential care facility is licensed as a
residential care facility. The part or unit that may provide
skilled nursing care beyond the extent authorized by section
3721.011 of the Revised Code is licensed as a nursing home.
(9) "County home" and "district home" mean a county home or
district home operated under Chapter 5155. of the Revised Code.
(B) The public health council may further classify homes. For
the purposes of this chapter, any residence, institution, hotel,
congregate housing project, or similar facility that meets the
definition of a home under this section is such a home regardless
of how the facility holds itself out to the public.
(C) For purposes of this chapter, personal care services or
skilled nursing care shall be considered to be provided by a
facility if they are provided by a person employed by or
associated with the facility or by another person pursuant to an
agreement to which neither the resident who receives the services
nor the resident's sponsor is a party.
(D) Nothing in division (A)(4) of this section shall be
construed to permit skilled nursing care to be imposed on an
individual who does not require skilled nursing care.
Nothing in division (A)(5) of this section shall be construed
to permit personal care services to be imposed on an individual
who is capable of performing the activity in question without
assistance.
(E) Division (A)(1)(c)(ix) of this section does not prohibit
a facility, infirmary, or other entity described in that division
from seeking licensure under sections 3721.01 to 3721.09 of the
Revised Code or certification under Title XVIII or XIX of the
"Social Security Act." However, such a facility, infirmary, or
entity that applies for licensure or certification must meet the
requirements of those sections or titles and the rules adopted
under them and obtain a certificate of need from the director of
health under section 3702.52 of the Revised Code.
(F) Nothing in this chapter, or rules adopted pursuant to it,
shall be construed as authorizing the supervision, regulation, or
control of the spiritual care or treatment of residents or
patients in any home who rely upon treatment by prayer or
spiritual means in accordance with the creed or tenets of any
recognized church or religious denomination.
Sec. 3795.01. As used in sections 3795.01, 3795.02, and
3795.03 of the Revised Code:
(A) "Assist suicide" or "assisting suicide" means knowingly
doing either of the following, with the purpose of helping another
person to commit or attempt suicide:
(1) Providing the physical means by which the person commits
or attempts to commit suicide;
(2) Participating in a physical act by which the person
commits or attempts to commit suicide.
(B) "Certified nurse practitioner," "certified
nurse-midwife," and "clinical nurse specialist" have the same
meanings as in section 4723.01 of the Revised Code.
(C) "CPR" has the same meaning as in section 2133.21 of the
Revised Code.
(D) "Health care" means any care, treatment, service, or
procedure to maintain, diagnose, or treat a person's physical or
mental condition.
(E) "Health care decision" means informed consent, refusal to
give informed consent, or withdrawal of informed consent to health
care.
(F) "Health care facility" means any of the following:
(2) A hospice care program or pediatric respite care program
as defined in section 3712.01 of the Revised Code;
(4) A home health agency;
(5) An intermediate care facility for the mentally retarded.
(G) "Health care personnel" means physicians, nurses,
physician assistants, emergency medical technicians-basic,
emergency medical technicians-intermediate, emergency medical
technicians-paramedic, medical technicians, dietitians, other
authorized persons acting under the direction of an attending
physician, and administrators of health care facilities.
(H) "Physician" means a person who is authorized under
Chapter 4731. of the Revised Code to practice medicine and surgery
or osteopathic medicine and surgery.
Sec. 3963.01. As used in this chapter:
(A) "Affiliate" means any person or entity that has ownership
or control of a contracting entity, is owned or controlled by a
contracting entity, or is under common ownership or control with a
contracting entity.
(B) "Basic health care services" has the same meaning as in
division (A) of section 1751.01 of the Revised Code, except that
it does not include any services listed in that division that are
provided by a pharmacist or nursing home.
(C) "Contracting entity" means any person that has a primary
business purpose of contracting with participating providers for
the delivery of health care services.
(D) "Credentialing" means the process of assessing and
validating the qualifications of a provider applying to be
approved by a contracting entity to provide basic health care
services, specialty health care services, or supplemental health
care services to enrollees.
(E) "Edit" means adjusting one or more procedure codes billed
by a participating provider on a claim for payment or a practice
that results in any of the following:
(1) Payment for some, but not all of the procedure codes
originally billed by a participating provider;
(2) Payment for a different procedure code than the procedure
code originally billed by a participating provider;
(3) A reduced payment as a result of services provided to an
enrollee that are claimed under more than one procedure code on
the same service date.
(F) "Electronic claims transport" means to accept and
digitize claims or to accept claims already digitized, to place
those claims into a format that complies with the electronic
transaction standards issued by the United States department of
health and human services pursuant to the "Health Insurance
Portability and Accountability Act of 1996," 110 Stat. 1955, 42
U.S.C. 1320d, et seq., as those electronic standards are
applicable to the parties and as those electronic standards are
updated from time to time, and to electronically transmit those
claims to the appropriate contracting entity, payer, or
third-party administrator.
(G) "Enrollee" means any person eligible for health care
benefits under a health benefit plan, including an eligible
recipient of medicaid under Chapter 5111. of the Revised Code, and
includes all of the following terms:
(1) "Enrollee" and "subscriber" as defined by section 1751.01
of the Revised Code;
(2) "Member" as defined by section 1739.01 of the Revised
Code;
(3) "Insured" and "plan member" pursuant to Chapter 3923. of
the Revised Code;
(4) "Beneficiary" as defined by section 3901.38 of the
Revised Code.
(H) "Health care contract" means a contract entered into,
materially amended, or renewed between a contracting entity and a
participating provider for the delivery of basic health care
services, specialty health care services, or supplemental health
care services to enrollees.
(I) "Health care services" means basic health care services,
specialty health care services, and supplemental health care
services.
(J) "Material amendment" means an amendment to a health care
contract that decreases the participating provider's payment or
compensation, changes the administrative procedures in a way that
may reasonably be expected to significantly increase the
provider's administrative expenses, or adds a new product. A
material amendment does not include any of the following:
(1) A decrease in payment or compensation resulting solely
from a change in a published fee schedule upon which the payment
or compensation is based and the date of applicability is clearly
identified in the contract;
(2) A decrease in payment or compensation that was
anticipated under the terms of the contract, if the amount and
date of applicability of the decrease is clearly identified in the
contract;
(3) An administrative change that may significantly increase
the provider's administrative expense, the specific applicability
of which is clearly identified in the contract;
(4) Changes to an existing prior authorization,
precertification, notification, or referral program that do not
substantially increase the provider's administrative expense;
(5) Changes to an edit program or to specific edits if the
participating provider is provided notice of the changes pursuant
to division (A)(1) of section 3963.04 of the Revised Code and the
notice includes information sufficient for the provider to
determine the effect of the change;
(6) Changes to a health care contract described in division
(B) of section 3963.04 of the Revised Code.
(K) "Participating provider" means a provider that has a
health care contract with a contracting entity and is entitled to
reimbursement for health care services rendered to an enrollee
under the health care contract.
(L) "Payer" means any person that assumes the financial risk
for the payment of claims under a health care contract or the
reimbursement for health care services provided to enrollees by
participating providers pursuant to a health care contract.
(M) "Primary enrollee" means a person who is responsible for
making payments for participation in a health care plan or an
enrollee whose employment or other status is the basis of
eligibility for enrollment in a health care plan.
(N) "Procedure codes" includes the American medical
association's current procedural terminology code, the American
dental association's current dental terminology, and the centers
for medicare and medicaid services health care common procedure
coding system.
(O) "Product" means one of the following types of categories
of coverage for which a participating provider may be obligated to
provide health care services pursuant to a health care contract:
(1) A health maintenance organization or other product
provided by a health insuring corporation;
(2) A preferred provider organization;
(5) Workers' compensation.
(P) "Provider" means a physician, podiatrist, dentist,
chiropractor, optometrist, psychologist, physician assistant,
advanced practice nurse, occupational therapist, massage
therapist, physical therapist, professional counselor,
professional clinical counselor, hearing aid dealer, orthotist,
prosthetist, home health agency, hospice care program, pediatric
respite care program, or hospital, or a provider organization or
physician-hospital organization that is acting exclusively as an
administrator on behalf of a provider to facilitate the provider's
participation in health care contracts. "Provider" does not mean a
pharmacist, pharmacy, nursing home, or a provider organization or
physician-hospital organization that leases the provider
organization's or physician-hospital organization's network to a
third party or contracts directly with employers or health and
welfare funds.
(Q) "Specialty health care services" has the same meaning as
in section 1751.01 of the Revised Code, except that it does not
include any services listed in division (B) of section 1751.01 of
the Revised Code that are provided by a pharmacist or a nursing
home.
(R) "Supplemental health care services" has the same meaning
as in division (B) of section 1751.01 of the Revised Code, except
that it does not include any services listed in that division that
are provided by a pharmacist or nursing home.
Sec. 4719.01. (A) As used in sections 4719.01 to 4719.18 of
the Revised Code:
(1) "Affiliate" means a business entity that is owned by,
operated by, controlled by, or under common control with another
business entity.
(2) "Communication" means a written or oral notification or
advertisement that meets both of the following criteria, as
applicable:
(a) The notification or advertisement is transmitted by or on
behalf of the seller of goods or services and by or through any
printed, audio, video, cinematic, telephonic, or electronic means.
(b) In the case of a notification or advertisement other than
by telephone, either of the following conditions is met:
(i) The notification or advertisement is followed by a
telephone call from a telephone solicitor or salesperson.
(ii) The notification or advertisement invites a response by
telephone, and, during the course of that response, a telephone
solicitor or salesperson attempts to make or makes a sale of goods
or services. As used in division (A)(2)(b)(ii) of this section,
"invites a response by telephone" excludes the mere listing or
inclusion of a telephone number in a notification or
advertisement.
(3) "Gift, award, or prize" means anything of value that is
offered or purportedly offered, or given or purportedly given by
chance, at no cost to the receiver and with no obligation to
purchase goods or services. As used in this division, "chance"
includes a situation in which a person is guaranteed to receive an
item and, at the time of the offer or purported offer, the
telephone solicitor does not identify the specific item that the
person will receive.
(4) "Goods or services" means any real property or any
tangible or intangible personal property, or services of any kind
provided or offered to a person. "Goods or services" includes, but
is not limited to, advertising; labor performed for the benefit of
a person; personal property intended to be attached to or
installed in any real property, regardless of whether it is so
attached or installed; timeshare estates or licenses; and extended
service contracts.
(5) "Purchaser" means a person that is solicited to become or
does become financially obligated as a result of a telephone
solicitation.
(6) "Salesperson" means an individual who is employed,
appointed, or authorized by a telephone solicitor to make
telephone solicitations but does not mean any of the following:
(a) An individual who comes within one of the exemptions in
division (B) of this section;
(b) An individual employed, appointed, or authorized by a
person who comes within one of the exemptions in division (B) of
this section;
(c) An individual under a written contract with a person who
comes within one of the exemptions in division (B) of this
section, if liability for all transactions with purchasers is
assumed by the person so exempted.
(7) "Telephone solicitation" means a communication to a
person that meets both of the following criteria:
(a) The communication is initiated by or on behalf of a
telephone solicitor or by a salesperson.
(b) The communication either represents a price or the
quality or availability of goods or services or is used to induce
the person to purchase goods or services, including, but not
limited to, inducement through the offering of a gift, award, or
prize.
(8) "Telephone solicitor" means a person that engages in
telephone solicitation directly or through one or more
salespersons either from a location in this state, or from a
location outside this state to persons in this state. "Telephone
solicitor" includes, but is not limited to, any such person that
is an owner, operator, officer, or director of, partner in, or
other individual engaged in the management activities of, a
business.
(B) A telephone solicitor is exempt from the provisions of
sections 4719.02 to 4719.18 and section 4719.99 of the Revised
Code if the telephone solicitor is any one of the following:
(1) A person engaging in a telephone solicitation that is a
one-time or infrequent transaction not done in the course of a
pattern of repeated transactions of a like nature;
(2) A person engaged in telephone solicitation solely for
religious or political purposes; a charitable organization,
fund-raising counsel, or professional solicitor in compliance with
the registration and reporting requirements of Chapter 1716. of
the Revised Code; or any person or other entity exempt under
section 1716.03 of the Revised Code from filing a registration
statement under section 1716.02 of the Revised Code;
(3) A person, making a telephone solicitation involving a
home solicitation sale as defined in section 1345.21 of the
Revised Code, that makes the sales presentation and completes the
sale at a later, face-to-face meeting between the seller and the
purchaser rather than during the telephone solicitation. However,
if the person, following the telephone solicitation, causes
another person to collect the payment of any money, this exemption
does not apply.
(4) A licensed securities, commodities, or investment broker,
dealer, investment advisor, or associated person when making a
telephone solicitation within the scope of the person's license.
As used in division (B)(4) of this section, "licensed securities,
commodities, or investment broker, dealer, investment advisor, or
associated person" means a person subject to licensure or
registration as such by the securities and exchange commission;
the National Association of Securities Dealers or other
self-regulatory organization, as defined by 15 U.S.C.A. 78c; by
the division of securities under Chapter 1707. of the Revised
Code; or by an official or agency of any other state of the United
States.
(5)(a) A person primarily engaged in soliciting the sale of a
newspaper of general circulation;
(b) As used in division (B)(5)(a) of this section, "newspaper
of general circulation" includes, but is not limited to, both of
the following:
(i) A newspaper that is a daily law journal designated as an
official publisher of court calendars pursuant to section 2701.09
of the Revised Code;
(ii) A newspaper or publication that has at least twenty-five
per cent editorial, non-advertising content, exclusive of inserts,
measured relative to total publication space, and an audited
circulation to at least fifty per cent of the households in the
newspaper's retail trade zone as defined by the audit.
(6)(a) An issuer, or its subsidiary, that has a class of
securities to which all of the following apply:
(i) The class of securities is subject to section 12 of the
"Securities Exchange Act of 1934," 15 U.S.C.A. 78l, and is
registered or is exempt from registration under 15 U.S.C.A.
78l(g)(2)(A), (B), (C), (E), (F), (G), or (H);
(ii) The class of securities is listed on the New York stock
exchange, the American stock exchange, or the NASDAQ national
market system;
(iii) The class of securities is a reported security as
defined in 17 C.F.R. 240.11Aa3-1(a)(4).
(b) An issuer, or its subsidiary, that formerly had a class
of securities that met the criteria set forth in division
(B)(6)(a) of this section if the issuer, or its subsidiary, has a
net worth in excess of one hundred million dollars, files or its
parent files with the securities and exchange commission an S.E.C.
form 10-K, and has continued in substantially the same business
since it had a class of securities that met the criteria in
division (B)(6)(a) of this section. As used in division (B)(6)(b)
of this section, "issuer" and "subsidiary" include the successor
to an issuer or subsidiary.
(7) A person soliciting a transaction regulated by the
commodity futures trading commission, if the person is registered
or temporarily registered for that activity with the commission
under 7 U.S.C.A. 1 et. seq. and the registration or temporary
registration has not expired or been suspended or revoked;
(8) A person soliciting the sale of any book, record, audio
tape, compact disc, or video, if the person allows the purchaser
to review the merchandise for at least seven days and provides a
full refund within thirty days to a purchaser who returns the
merchandise or if the person solicits the sale on behalf of a
membership club operating in compliance with regulations adopted
by the federal trade commission in 16 C.F.R. 425;
(9) A supervised financial institution or its subsidiary. As
used in division (B)(9) of this section, "supervised financial
institution" means a bank, trust company, savings and loan
association, savings bank, credit union, industrial loan company,
consumer finance lender, commercial finance lender, or institution
described in section 2(c)(2)(F) of the "Bank Holding Company Act
of 1956," 12 U.S.C.A. 1841(c)(2)(F), as amended, supervised by an
official or agency of the United States, this state, or any other
state of the United States; or a licensee or registrant under
sections 1321.01 to 1321.19, 1321.51 to 1321.60, or 1321.71 to
1321.83 of the Revised Code.
(10)(a) An insurance company, association, or other
organization that is licensed or authorized to conduct business in
this state by the superintendent of insurance pursuant to Title
XXXIX of the Revised Code or Chapter 1751. of the Revised Code,
when soliciting within the scope of its license or authorization.
(b) A licensed insurance broker, agent, or solicitor when
soliciting within the scope of the person's license. As used in
division (B)(10)(b) of this section, "licensed insurance broker,
agent, or solicitor" means any person licensed as an insurance
broker, agent, or solicitor by the superintendent of insurance
pursuant to Title XXXIX of the Revised Code.
(11) A person soliciting the sale of services provided by a
cable television system operating under authority of a
governmental franchise or permit;
(12) A person soliciting a business-to-business sale under
which any of the following conditions are met:
(a) The telephone solicitor has been operating continuously
for at least three years under the same business name under which
it solicits purchasers, and at least fifty-one per cent of its
gross dollar volume of sales consists of repeat sales to existing
customers to whom it has made sales under the same business name.
(b) The purchaser business intends to resell the goods
purchased.
(c) The purchaser business intends to use the goods or
services purchased in a recycling, reuse, manufacturing, or
remanufacturing process.
(d) The telephone solicitor is a publisher of a periodical or
of magazines distributed as controlled circulation publications as
defined in division (CC) of section 5739.01 of the Revised Code
and is soliciting sales of advertising, subscriptions, reprints,
lists, information databases, conference participation or
sponsorships, trade shows or media products related to the
periodical or magazine, or other publishing services provided by
the controlled circulation publication.
(13) A person that, not less often than once each year,
publishes and delivers to potential purchasers a catalog that
complies with both of the following:
(a) It includes all of the following:
(i) The business address of the seller;
(ii) A written description or illustration of each good or
service offered for sale;
(iii) A clear and conspicuous disclosure of the sale price of
each good or service; shipping, handling, and other charges; and
return policy;.
(b) One of the following applies:
(i) The catalog includes at least twenty-four pages of
written material and illustrations, is distributed in more than
one state, and has an annual postage-paid mail circulation of not
less than two hundred fifty thousand households;
(ii) The catalog includes at least ten pages of written
material or an equivalent amount of material in electronic form on
the internet or an on-line computer service, the person does not
solicit customers by telephone but solely receives telephone calls
made in response to the catalog, and during the calls the person
takes orders but does not engage in further solicitation of the
purchaser. As used in division (B)(13)(b)(ii) of this section,
"further solicitation" does not include providing the purchaser
with information about, or attempting to sell, any other item in
the catalog that prompted the purchaser's call or in a
substantially similar catalog issued by the seller.
(14) A political subdivision or instrumentality of the United
States, this state, or any state of the United States;
(15) A college or university or any other public or private
institution of higher education in this state;
(16) A public utility as defined in section 4905.02 of the
Revised Code or a retail natural gas supplier as defined in
section 4929.01 of the Revised Code, if the utility or supplier is
subject to regulation by the public utilities commission, or the
affiliate of the utility or supplier;
(17) A person that solicits sales through a television
program or advertisement that is presented in the same market area
no fewer than twenty days per month or offers for sale no fewer
than ten distinct items of goods or services; and offers to the
purchaser an unconditional right to return any good or service
purchased within a period of at least seven days and to receive a
full refund within thirty days after the purchaser returns the
good or cancels the service;
(18)(a) A person that, for at least one year, has been
operating a retail business under the same name as that used in
connection with telephone solicitation and both of the following
occur on a continuing basis:
(i) The person either displays goods and offers them for
retail sale at the person's business premises or offers services
for sale and provides them at the person's business premises.
(ii) At least fifty-one per cent of the person's gross dollar
volume of retail sales involves purchases of goods or services at
the person's business premises.
(b) An affiliate of a person that meets the requirements in
division (B)(18)(a) of this section if the affiliate meets all of
the following requirements:
(i) The affiliate has operated a retail business for a period
of less than one year;
(ii) The affiliate either displays goods and offers them for
retail sale at the affiliate's business premises or offers
services for sale and provides them at the affiliate's business
premises;
(iii) At least fifty-one per cent of the affiliate's gross
dollar volume of retail sales involves purchases of goods or
services at the affiliate's business premises.
(c) A person that, for a period of less than one year, has
been operating a retail business in this state under the same name
as that used in connection with telephone solicitation, as long as
all of the following requirements are met:
(i) The person either displays goods and offers them for
retail sale at the person's business premises or offers services
for sale and provides them at the person's business premises;
(ii) The goods or services that are the subject of telephone
solicitation are sold at the person's business premises, and at
least sixty-five per cent of the person's gross dollar volume of
retail sales involves purchases of goods or services at the
person's business premises;
(iii) The person conducts all telephone solicitation
activities according to sections 310.3, 310.4, and 310.5 of the
telemarketing sales rule adopted by the federal trade commission
in 16 C.F.R. part 310.
(19) A person who performs telephone solicitation sales
services on behalf of other persons and to whom one of the
following applies:
(a) The person has operated under the same ownership,
control, and business name for at least five years, and the person
receives at least seventy-five per cent of its gross revenues from
written telephone solicitation contracts with persons who come
within one of the exemptions in division (B) of this section.
(b) The person is an affiliate of one or more exempt persons
and makes telephone solicitations on behalf of only the exempt
persons of which it is an affiliate.
(c) The person makes telephone solicitations on behalf of
only exempt persons, the person and each exempt person on whose
behalf telephone solicitations are made have entered into a
written contract that specifies the manner in which the telephone
solicitations are to be conducted and that at a minimum requires
compliance with the telemarketing sales rule adopted by the
federal trade commission in 16 C.F.R. part 310, and the person
conducts the telephone solicitations in the manner specified in
the written contract.
(d) The person performs telephone solicitation for religious
or political purposes, a charitable organization, a fund-raising
council, or a professional solicitor in compliance with the
registration and reporting requirements of Chapter 1716. of the
Revised Code; and meets all of the following requirements:
(i) The person has operated under the same ownership,
control, and business name for at least five years, and the person
receives at least fifty-one per cent of its gross revenues from
written telephone solicitation contracts with persons who come
within the exemption in division (B)(2) of this section;
(ii) The person does not conduct a prize promotion or offer
the sale of an investment opportunity;
(iii) The person conducts all telephone solicitation
activities according to sections 310.3, 310.4, and 310.5 of the
telemarketing sales rules adopted by the federal trade commission
in 16 C.F.R. part 310.
(20) A person that is a licensed real estate salesperson or
broker under Chapter 4735. of the Revised Code when soliciting
within the scope of the person's license;
(21)(a) Either of the following:
(i) A publisher that solicits the sale of the publisher's
periodical or magazine of general, paid circulation, or a person
that solicits a sale of that nature on behalf of a publisher under
a written agreement directly between the publisher and the person.
(ii) A publisher that solicits the sale of the publisher's
periodical or magazine of general, paid circulation, or a person
that solicits a sale of that nature as authorized by a publisher
under a written agreement directly with a publisher's
clearinghouse provided the person is a resident of Ohio for more
than three years and initiates all telephone solicitations from
Ohio and the person conducts the solicitation and sale in
compliance with 16 C.F.R. part 310, as adopted by the federal
trade commission.
(b) As used in division (B)(21) of this section, "periodical
or magazine of general, paid circulation" excludes a periodical or
magazine circulated only as part of a membership package or given
as a free gift or prize from the publisher or person.
(22) A person that solicits the sale of food, as defined in
section 3715.01 of the Revised Code, or the sale of products of
horticulture, as defined in section 5739.01 of the Revised Code,
if the person does not intend the solicitation to result in, or
the solicitation actually does not result in, a sale that costs
the purchaser an amount greater than five hundred dollars.
(23) A funeral director licensed pursuant to Chapter 4717. of
the Revised Code when soliciting within the scope of that license,
if both of the following apply:
(a) The solicitation and sale are conducted in compliance
with 16 C.F.R. part 453, as adopted by the federal trade
commission, and with sections 1107.33 and 1345.21 to 1345.28 of
the Revised Code;
(b) The person provides to the purchaser of any preneed
funeral contract a notice that clearly and conspicuously sets
forth the cancellation rights specified in division (G) of section
1107.33 of the Revised Code, and retains a copy of the notice
signed by the purchaser.
(24) A person, or affiliate thereof, licensed to sell or
issue Ohio instruments designated as travelers checks pursuant to
sections 1315.01 to 1315.18 of the Revised Code.
(25) A person that solicits sales from its previous
purchasers and meets all of the following requirements:
(a) The solicitation is made under the same business name
that was previously used to sell goods or services to the
purchaser;
(b) The person has, for a period of not less than three
years, operated a business under the same business name as that
used in connection with telephone solicitation;
(c) The person does not conduct a prize promotion or offer
the sale of an investment opportunity;
(d) The person conducts all telephone solicitation activities
according to sections 310.3, 310.4, and 310.5 of the telemarketing
sales rules adopted by the federal trade commission in 16 C.F.R.
part 310;
(e) Neither the person nor any of its principals has been
convicted of, pleaded guilty to, or has entered a plea of no
contest for a felony or a theft offense as defined in sections
2901.02 and 2913.01 of the Revised Code or similar law of another
state or of the United States;
(f) Neither the person nor any of its principals has had
entered against them an injunction or a final judgment or order,
including an agreed judgment or order, an assurance of voluntary
compliance, or any similar instrument, in any civil or
administrative action involving engaging in a pattern of corrupt
practices, fraud, theft, embezzlement, fraudulent conversion, or
misappropriation of property; the use of any untrue, deceptive, or
misleading representation; or the use of any unfair, unlawful,
deceptive, or unconscionable trade act or practice.
(26) An institution defined as a home health agency in
section 3701.881 of the Revised Code, that conducts all telephone
solicitation activities according to sections 310.3, 310.4, and
310.5 of the telemarketing sales rules adopted by the federal
trade commission in 16 C.F.R. part 310, and engages in telephone
solicitation only within the scope of the institution's
certification, accreditation, contract with the department of
aging, or status as a home health agency; and that meets one of
the following requirements:
(a) The institution is certified as a provider of home health
services under Title XVIII of the Social Security Act, 49 Stat.
620, 42 U.S.C. 301, as amended;
(b) The institution is accredited by either the joint
commission on accreditation of health care organizations or the
community health accreditation program;
(c) The institution is providing passport services under the
direction of the Ohio department of aging under section 173.40 of
the Revised Code;
(d) An affiliate of an institution that meets the
requirements of division (B)(26)(a), (b), or (c) of this section
when offering for sale substantially the same goods and services
as those that are offered by the institution that meets the
requirements of division (B)(26)(a), (b), or (c) of this section.
(27) A person licensed to provide a hospice care program by
the department of health pursuant to section 3712.04 or 3712.041
of the Revised Code to provide a hospice care program or pediatric
respite care program when conducting telephone solicitations
within the scope of the person's license and according to sections
310.3, 310.4, and 310.5 of the telemarketing sales rules adopted
by the federal trade commission in 16 C.F.R. part 310.
Sec. 4752.02. (A) Except as provided in division (B) of this
section, no person shall provide home medical equipment services
or claim to the public to be a home medical equipment services
provider unless either of the following is the case:
(1) The person holds a valid license issued under this
chapter;
(2) The person holds a valid certificate of registration
issued under this chapter.
(B) Division (A) of this section does not apply to any of the
following:
(1) A health care practitioner, as defined in section 4769.01
of the Revised Code, who does not sell or rent home medical
equipment;
(2) A hospital that provides home medical equipment services
only as an integral part of patient care and does not provide the
services through a separate entity that has its own medicare or
medicaid provider number;
(3) A manufacturer or wholesale distributor of home medical
equipment that does not sell directly to the public;
(4) A hospice care program or pediatric respite care program,
as defined by section 3712.01 of the Revised Code, that does not
sell or rent home medical equipment;
(5) A home, as defined by section 3721.01 of the Revised
Code;
(6) A home health agency that is certified under Title XVIII
of the "Social Security Act," 79 Stat. 286 (1965), 42 U.S.C. 1395,
as a provider of home health services and does not sell or rent
home medical equipment;
(7) An individual who holds a current, valid license issued
under Chapter 4741. of the Revised Code to practice veterinary
medicine;
(8) An individual who holds a current, valid license issued
under Chapter 4779. of the Revised Code to practice orthotics,
prosthetics, or pedorthics;
(9) A pharmacy licensed under Chapter 4729. of the Revised
Code that either does not sell or rent home medical equipment or
receives total payments of less than ten thousand dollars per year
from selling or renting home medical equipment;
(10) A home dialysis equipment provider regulated by federal
law.
Sec. 5119.70. (A) As used in sections 5119.70 to 5119.88 of
the Revised Code:
(1) "Owner" means the person who owns the business of and who
ultimately controls the operation of an adult care facility and to
whom the manager, if different from the owner, is responsible.
(2) "Manager" means the person responsible for the daily
operation of an adult care facility. The manager and the owner of
a facility may be the same person.
(3) "Adult" means an individual eighteen years of age or
older.
(4) "Unrelated" means that an adult resident is not related
to the owner or manager of an adult care facility or to the
owner's or manager's spouse as a parent, grandparent, child,
stepchild, grandchild, brother, sister, niece, nephew, aunt, or
uncle, or as the child of an aunt or uncle.
(5) "Skilled nursing care" means skilled nursing care as
defined in section 3721.01 of the Revised Code.
(6)(a) "Personal care services" means services including, but
not limited to, the following:
(i) Assistance with activities of daily living;
(ii) Assistance with self-administration of medication, in
accordance with rules adopted under section 5119.79 of the Revised
Code;
(iii) Preparation of special diets, other than complex
therapeutic diets, for residents pursuant to the instructions of a
physician or a licensed dietitian, in accordance with rules
adopted under section 5119.79 of the Revised Code.
(b) "Personal care services" does not include "skilled
nursing care" as defined in section 3721.01 of the Revised Code. A
facility need not provide more than one of the services listed in
division (A)(6)(a) of this section for the facility to be
considered to be providing personal care services.
(7) "Adult family home" means a residence or facility that
provides accommodations and supervision to three to five unrelated
adults, at least three of whom require personal care services.
(8) "Adult group home" means a residence or facility that
provides accommodations and supervision to six to sixteen
unrelated adults, at least three of whom require personal care
services.
(9) "Adult care facility" means an adult family home or an
adult group home. For the purposes of sections 5119.70 to 5119.88
of the Revised Code, any residence, facility, institution, hotel,
congregate housing project, or similar facility that provides
accommodations and supervision to three to sixteen unrelated
adults, at least three of whom require personal care services, is
an adult care facility regardless of how the facility holds itself
out to the public. "Adult care facility" does not include:
(a) A facility operated by a hospice care program licensed
under section 3712.04 of the Revised Code that is used exclusively
for care of hospice patients;
(b) A facility operated by a pediatric respite care program
licensed under section 3712.041 of the Revised Code that is used
exclusively for care of pediatric respite care patients;
(c) A nursing home, residential care facility, or home for
the aging as defined in section 3721.01 of the Revised Code;
(c)(d) An alcohol and drug addiction program as defined in
section 3793.01 of the Revised Code;
(d)(e) A residential facility for the mentally ill licensed
by the department of mental health under section 5119.22 of the
Revised Code;
(e)(f) A facility licensed to provide methadone treatment
under section 3793.11 of the Revised Code;
(f)(g) A residential facility licensed under section 5123.19
of the Revised Code or otherwise regulated by the department of
developmental disabilities;
(g)(h) Any residence, institution, hotel, congregate housing
project, or similar facility that provides personal care services
to fewer than three residents or that provides, for any number of
residents, only housing, housekeeping, laundry, meal preparation,
social or recreational activities, maintenance, security,
transportation, and similar services that are not personal care
services or skilled nursing care;
(h)(i) Any facility that receives funding for operating costs
from the department of development under any program established
to provide emergency shelter housing or transitional housing for
the homeless;
(i)(j) A terminal care facility for the homeless that has
entered into an agreement with a hospice care program under
section 3712.07 of the Revised Code;
(j)(k) A facility approved by the veterans administration
under section 104(a) of the "Veterans Health Care Amendments of
1983," 97 Stat. 993, 38 U.S.C.A. 630, as amended, and used
exclusively for the placement and care of veterans.
(10) "Sponsor" means an adult relative, friend, or guardian
of a resident of an adult care facility who has an interest in or
responsibility for the resident's welfare.
(11) "Ombudsperson" means a "representative of the office of
the state long-term care ombudsperson program" as defined in
section 173.14 of the Revised Code.
(12) "Mental health agency" means a community mental health
agency, as defined in division (H) of section 5122.01 of the
Revised Code, under contract with an ADAMHS board pursuant to
division (A)(8)(a) of section 340.03 of the Revised Code.
(13) "ADAMHS board" means a board of alcohol, drug addiction,
and mental health services;.
(14) "Mental health resident program participation agreement"
means a written agreement between an adult care facility and the
ADAMHS board serving the alcohol, drug addiction, and mental
health service district in which the facility is located, under
which the facility is authorized to admit residents who are
receiving or are eligible for publicly funded mental health
services.
(15) "RSS administrative agency" means an entity that
provides administrative services regarding the residential state
supplement program on behalf of the department of mental health,
either by having entered into a contract with the department to
serve in that capacity or by having the department otherwise
delegate to it the responsibility to serve in that capacity.
(B) For purposes of sections 5119.70 to 5119.88 of the
Revised Code, personal care services or skilled nursing care shall
be considered to be provided by a facility if they are provided by
a person employed by or associated with the facility or by another
person pursuant to an agreement to which neither the resident who
receives the services nor the resident's sponsor is a party.
(C) Nothing in division (A)(6) of this section shall be
construed to permit personal care services to be imposed upon a
resident who is capable of performing the activity in question
without assistance.
Sec. 5119.71. A person seeking a license to operate an adult
care facility shall submit to the director of mental health an
application on a form prescribed by the director and the
following:
(A) In the case of an adult group home seeking licensure as
an adult care facility, evidence that the home has been inspected
and approved by a local certified building department or by the
division of labor in the department of commerce as meeting the
applicable requirements of sections 3781.06 to 3781.18 and 3791.04
of the Revised Code and any rules adopted under those sections and
evidence that the home has been inspected by the state fire
marshal or fire prevention officer of a municipal, township, or
other legally constituted fire department approved by the state
fire marshal and found to be in compliance with rules adopted
under section 3737.83 of the Revised Code regarding fire
prevention and safety in adult group homes;
(B) Valid approvals of the facility's water and sewage
systems issued by the responsible governmental entity, if
applicable;
(C) A statement of ownership containing the following
information:
(1) If the owner is an individual, the owner's name, address,
telephone number, business address, business telephone number, and
occupation. If the owner is an association, corporation, or
partnership, the business activity, address, and telephone number
of the entity and the name of every person who has an ownership
interest of five per cent or more in the entity.
(2) If the owner does not own the building or if the owner
owns only part of the building in which the facility is housed,
the name of each person who has an ownership interest of five per
cent or more in the building;
(3) The address of any adult care facility and any facility
described in divisions (A)(9)(a) to (j)(k) of section 5119.70 of
the Revised Code in which the owner has an ownership interest of
five per cent or more;
(4) The identity of the manager of the adult care facility,
if different from the owner;
(5) The name and address of any adult care facility and any
facility described in divisions (A)(9)(a) to (j)(k) of section
5119.70 of the Revised Code with which either the owner or manager
has been affiliated through ownership or employment in the five
years prior to the date of the application;
(6) The names and addresses of three persons not employed by
or associated in business with the owner who will provide
information about the character, reputation, and competence of the
owner and the manager and the financial responsibility of the
owner;
(7) Information about any arrest of the owner or manager for,
or adjudication or conviction of, a criminal offense related to
the provision of care in an adult care facility or any facility
described in divisions (A)(9)(a) to (j)(k) of section 5119.70 of
the Revised Code or the ability to operate a facility;
(8) Any other information the director may require regarding
the owner's ability to operate the facility.
(D) If the facility is an adult group home, a balance sheet
showing the assets and liabilities of the owner and a statement
projecting revenues and expenses for the first twelve months of
the facility's operation;
(E) A statement containing the following information
regarding admissions to the facility:
(1) The intended bed capacity of the facility;
(2) If the facility will admit persons referred by or
receiving services from an ADAMHS board or a mental health agency,
the total number of beds anticipated to be occupied as a result of
those admissions.
(F) A nonrefundable license application fee in an amount
established in rules adopted under section 5119.79 of the Revised
Code.
Section 2. That existing sections 109.57, 1337.11, 2133.01,
2317.54, 3701.881, 3712.01, 3712.03, 3712.09, 3721.01, 3795.01,
3963.01, 4719.01, 4752.02, 5119.70, and 5119.71 of the Revised
Code are hereby repealed.
|