(B)

1. (1) Except as provided in division (B)(2) of this section and rules adopted under division (E)(3) of this section, for purposes of section 5165.03 of the Revised Code, the department of developmental disabilities shall determine in accordance with section 1919(e)(7) of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.A. 301, as amended, and regulations adopted under section 1919(f)(8)(A) of that act whether, because of the individual's physical and mental condition, a mentally retarded individual seeking admission to a nursing facility requires the level of services provided by a nursing facility and, if the individual requires that level of services, whether the individual requires specialized services for mental retardation.

2. (2) A determination under this division is not required for any of the following:

   1. (a) An individual seeking readmission to a nursing facility after having been transferred from a nursing facility to a hospital for care;

   2. (b) An individual who meets all of the following conditions:

      1. (i) The individual is admitted to the nursing facility directly from a hospital after receiving inpatient care at the hospital;
      2. (ii) The individual requires nursing facility services for the condition for which the individual received care in the hospital;
      3. (iii) The individual's attending physician has certified, before admission to the nursing facility, that the individual is likely to require less than thirty days of nursing facility services.
   3. (c) An individual transferred from one nursing facility to another nursing facility, with or without an intervening hospital stay.

(D)

1. (1) In the case of a nursing facility resident who has continuously resided in a nursing facility for at least thirty months before the date of a review and determination under division (C) of this section, if the resident is determined not to require the level of services provided by a nursing facility, but is determined to require specialized services for mental retardation, the department, in consultation with the resident's family or legal representative and care givers, shall do all of the following:

   1. (a) Inform the resident of the institutional and noninstitutional alternatives covered under the state plan for medical assistance;
   2. (b) Offer the resident the choice of remaining in the nursing facility or receiving covered services in an alternative institutional or noninstitutional setting;
   3. (c) Clarify the effect on eligibility for services under the state plan for medical assistance if the resident chooses to leave the facility, including its effect on readmission to the facility;
   4. (d) Provide for or arrange for the provision of specialized services for the resident's mental retardation in the setting chosen by the resident.
2. (2) In the case of a nursing facility resident who has continuously resided in a nursing facility for less than thirty months before the date of the review and determination under division (C) of this section, if the resident is determined not to require the level of services provided by a nursing facility, but is determined to require specialized services for mental retardation, or if the resident is determined to require neither the level of services provided by a nursing facility nor specialized services for mental retardation, the department shall act in accordance with its alternative disposition plan approved by the United States department of health and human services under section 1919(e)(7)(E) of the "Social Security Act."
3. (3) In the case of an individual who is determined under division (B) or (C) of this section to require both the level of services provided by a nursing facility and specialized services for mental retardation, the department of developmental disabilities shall provide or arrange for the provision of the specialized services needed by the individual or resident while residing in a nursing facility.

(E) The department of developmental disabilities shall adopt rules in accordance with Chapter 119. of the Revised Code that do all of the following:

1. (1) Establish criteria to be used in making the determinations required by divisions (B) and (C) of this section. The criteria shall not exceed the criteria established by regulations adopted by the United States department of health and human services under section 1919(f)(8)(A) of the "Social Security Act."
2. (2) Specify information to be provided by the individual or nursing facility resident being assessed;
3. (3) Specify any circumstances, in addition to circumstances listed in division (B) of this section, under which determinations under divisions (B) and (C) of this section are not required to be made.