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Big News: DODD Re-Classifies Parents of Minors as 'Providers': Free Choice of Provider Now Applies

Writer's picture: End Ohio's Parent PenaltyEnd Ohio's Parent Penalty

In a surprising twist, Ohio’s Department of Developmental Disabilities (DODD) seems to have contradicted the state’s long-standing position on how parents of minor children are categorized in Ohio’s Medicaid system. In a recent legal motion to dismiss our mandamus filing, DODD referred to parents of minor children as “providers”—a classification with major legal implications under federal law.


The Centers for Medicare and Medicaid Services (CMS) is clear:

"When legally responsible individuals are used to deliver services, all required statutory and regulatory components of 1915(c) waivers must continue to be met, including, but not limited to, an individual’s free choice of providers.”


This is a big deal. If parents of minors are now considered providers, then under federal law, their children have the right to freely choose them instead of accepting any "willing and able" stranger off the street. This directly clashes with the state’s current practices.


Ohio’s Contradictory Stance

To sidestep federal free choice of provider protections, the Ohio Department of Medicaid (ODM) has argued that parents of minors are not “providers.” Instead, ODM claims they are merely employees of provider, meaning the child’s free choice of provider rights only apply when picking the care agency—not the individual worker.


ODM’s Stephen Alexander testified at the December 2023 JCARR hearing:

"The provider in this case [when a parent of a minor is a direct care worker] is the agency. They’re the ones who actually bill, and so it’s not getting at the specific individual workers coming out to somebody’s home. And so, for example, I think what this represents is a misunderstanding of what the free choice of provider rule does.”


ODM's loophole of labeling parents of minors as "direct care workers" instead of "providers" allows the state to prevent disabled children from freely choosing their parents as their caregivers, treating parents as “last resort” options only, even if the child disapproves of--or is frightened of-- the "willing and able" stranger who attempts to replace the parent.


A Major Shift

However, in this week’s legal filing, DODD reversed course. In a motion filed on DODD's behalf by Ohio Attorney General Dave Yost, DODD categorizes parents of minors as “providers” subject to monitoring and annual reviews by county boards, citing several laws (ORC 5126.15 and OAC 5123-4-02) that deal exclusively with how county boards supervise and coordinate with “providers,” not individual agency employees.


This is a bombshell revelation. If parents of minors are considered true “providers,” as DODD now argues in court, then their children should have a federally protected right to choose them as their providers without interference. Yet in practice, state rules like OAC 5160-44-32 and DODD’s 4-6 month parent replacement mandate block this choice by forcing children to replace their parent caregivers with strangers against their will.


A Legal and Ethical Contradiction

This contradiction highlights a major problem with Ohio’s policies:


  1. If parents are providers, as DODD now asserts, then children with disabilities have the federally protected right to freely choose their parents as their providers. Both OAC 5160-44-32 and DODD's 4-6 month parent replacement guidance appear to violate this right.


  2. If parents are not providers, as ODM previously testified, then DODD’s replacement mandate targeting parents specifically is discriminatory and has no legal basis.


The state cannot have it both ways. By treating parents as providers when it benefits their court arguments but denying them that classification whenever it helps children with disabilities, DODD and ODM are engaging in inconsistent and unjust policymaking.


What This Means for Families

This development is a game-changer for disability families across Ohio. It raises urgent questions:


  • Why are children with disabilities being denied their federally protected right to freely choose their parent caregivers?


  • Why is the state enforcing policies that disrupt families and limit stability for children with profound needs?


What You Can Do

We’re investigating this issue further and exploring legal options to protect children's rights. If you or your child has experienced a violation of federal free choice of provider rights, please reach out to us and share your story.

 

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