03/21/2024

Public Comment Period Opens for Assisted Living Waiver Memory Care Rules

The Assisted Living Waiver for Memory Care rules have been reopened for public comment. Rule 173-39-02.16 of the Administrative Code establishes the specific requirements to become, and to remain, certified by the Ohio Department of Aging (ODA) to provide the assisted living service. The comment period closes on Friday, March 31. 

Notably, the rule adds the mention of critical access payment to be included in the rates listed in the appendix to rule 5160-1-06.5, where current payment rates are housed. Additionally, it amends language that would have permitted any single room within an assisted living community to be designated as a memory care unit. The new language allows for single rooms / dispersed units to be designated as memory care only when there is another section of the facility that is designated as memory care. 

The complete list of changes are as follows:  

1. Use “basic service” and “memory care” throughout the rule. 
2. Reconcile unnecessary differences with, and eliminate unnecessary restatements of, ODH’s licensure rules.
3. Remove the words “stand-alone memory care unit” from paragraph (D)(2)(b) of this rule and explain that a provider may add a single-occupancy resident unit to an existing memory care section even if the resident unit is not next door to the existing memory care section. 
4. Give providers flexibility in paragraphs (C)(7) and (D)(3)(a) of this rule to use LPNs who are not under the direction of an RN because the definition of “LPN” in RC §4723.01 allows LPNs to be under the direction of a list of healthcare professionals. The amendment to paragraph (D)(3)(a) of this rule will correspond with a forthcoming refiling of rule 173-39-01 of the Administrative Code to amend the definition of “LPN.” 
5. Limit the training for a memory-care staff member on common behavior challenges in paragraph (D)(4)(c) of this rule to training on common behavior challenges that are specific to dementia. 
6. Refer, in paragraph (E)(1)(c) of this rule, to critical access rates in ODM’s rule 5160-1-06.5 of the Administrative Code. The reference will say “(if applicable)” to not imply that this rule establishes critical access rates. At the time of the writing of this BIA, Ohio is seeking authority from the Centers for Medicare and Medicaid Services (CMS) to offer critical access rates. Using “(if applicable)” will be important if CMS does not approve the request to offer critical access rates but this rule takes effect with the term “critical access rates” in it. ODA provides references to rates rules at the end of this rule to be helpful. This rule does not establish rates. 

LeadingAge Ohio is preparing comments on this rule, while also working to develop guidance for both the certifying staff from the Passport Administrative Agencies on how to survey staffing levels and call light response times. Since implementation of the memory care payment, there has been wide variation among certifying staff as to how they are documenting compliance with the rules. 

Comments and recommendations can be sent to rules@aging.ohio.gov.