08/24/2023

ODA Adult Day Rules Walk Back Pandemic Flexibilities

Last week the Ohio Department of Aging (ODA) provided public notice of rescinded and proposed rule updates to Ohio Administrative Code (OAC) 173-39-02.1 ODA provider certification: adult day service after filing appropriate documents with the Joint Committee Agency on Rule Review on August 18, 2023. ODA filed a Business Impact Analysis that states the following regulatory intent to OAC 173-39-02.1:

ODA’s proposed new rule will achieve the following: 

1. No longer offer in-home option in the definition of “adult day service” in paragraph (A) of this rule or refer an in-home option throughout this rule. 

ODA originally offered this option as a means to keep adult day providers from going out of business during the early stages of the COVID-19 public health emergency (PHE). ODA has no record of any providers currently using that option which was confirmed by stakeholders. (See ODA’s response to question #11.) 

1. Include references to rule 173-39-02.18 of the Administrative Code instead of rule 173-39-02.13 of the Administrative Code because ODA will rescind rule 173-39-02.13 of the Administrative Code on July 1, 2023. 
2. No longer include the misplaced requirement for a case manager to conduct an assessment, because this rule regulates certified providers, but does not regulate case managers. 
3. No longer include the requirement for providers to complete performance reviews of each staff member. 
4. Use significantly fewer regulatory restrictions (e.g., “shall”) to comply with R.C. §§ 106.03 and 121.951. 1 

This proposal includes some of the substantive changes noted above. This proposal also includes numerous non substantive changes which account for a majority of the differences between the proposed new rule and the rule being proposed for rescission. 

Lastly, the proposed new rule contains additional non-substantive improvements compared to the rule being proposed for rescission. LeadingAge Ohio plans to submit comments to encourage ODA to incorporate additional regulatory flexibilities, including paying for missed / call-off days as well as changing the required staffing ratios for adult day services. 

ODA will conduct a public hearing on this rule on September 19, 2023 at 10:00AM in Room 420 Rhodes Tower, 4th Floor 30 E Broad St Columbus, OH 43215.

To compare the rescinded rule and the proposed draft, visit the filing details on The Registrar of Ohio’s page.  

To review details of the public hearing, visit the notice page.