Court of Appeals of Ohio, Twelfth District, Butler
FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
Katherine J. Bockbrader, Assistant Attorney General, for
Webster & Associates, Co., LPA, Geoffrey E. Webster, Mary
L. Pisciotta, for appellant.
1} Appellant, Stacey Bacon, appeals from a decision
of the Butler County Court of Common Pleas that affirmed an
administrative decision issued by the Ohio Department of Job
and Family Services ("ODJFS") on behalf of the Ohio
Department of Medicaid. ODJFS's decision denied
Bacon's request for 84 hours of weekly private duty
nursing services on the basis that such services were not
medically necessary and Bacon's need for care could be
met through homemaker/personal care providers with medication
certification and nursing task delegation.
2} Bacon, who is approximately 38 years old, was
severely injured in a car accident as a teenager. Bacon is
now nonverbal and has diagnoses that include severe traumatic
brain injury with severe cognitive deficits and behavioral
problems, seizure disorder, use of a g-tube, non-psychiatric
brain syndrome, hydrocephalus (acquired), Kluver-Bucy
Syndrome, organic personality disorder, neurogenic bladder,
aphasia and visual agnosia, a VP shut, and severe gait
3} Bacon is eligible for Medicaid. For a number of
years Bacon received waiver nursing services under the
Transition Developmental Disabilities waiver
program. This program permitted Bacon to receive
private duty nursing ("PDN") from a licensed
practical nurse acting at the discretion of a registered
nurse for 12 hours a day, seven days a week, for a total of
84 hours per week. The Transition Developmental Disabilities
waiver program was phased out and Bacon was enrolled in the
Individual Options waiver program in 2017. The Department of
Developmental Disabilities ("DODD"), through an
interagency agreement with the Ohio Department of Medicaid,
administers the Individual Options waiver program.
4} As a prerequisite to receiving PDN services under
the Individual Options waiver program, an individual must
meet certain requirements and must receive PDN authorization
from the Ohio Department of Medicaid or its designee.
See Ohio Adm.Code 5160-12-02.3(A). The Butler County
Board of Developmental Disabilities ("BCBODD") was
tasked, pursuant to R.C. 5126.055(A)(1), with performing an
assessment and evaluation of Bacon so it could make a
recommendation to DODD about whether DODD should approve or
deny Bacon's application for PDN services. After
completing a nursing task assessment, BCBODD recommended
Bacon's request be denied.
5} Bacon was notified by DODD in March 2017 that her
request for 84 weekly hours of PDN services had been denied.
DODD determined that Bacon's needs could be met by
providers that do not require nursing licensure.
Specifically, DODD found that Bacon's needs could be met
through the services of Homemaker/Personal Care
("HPC") providers with medication certification
and nursing task delegation.
6} Bacon disagreed with DODD's denial of PDN
hours and timely requested a state hearing on the decision,
as permitted by Ohio Adm.Code 5101:6-3-01(B)(6). On May 19,
2017, after an evidentiary hearing, a hearing officer issued
a decision sustaining Bacon's appeal. The state hearing
decision found that
[BCBODD] ha[d] not identified a qualified, certified
homemaker personal care provider trained to meet
[Bacon's] need for care; specifically, there [was] no
evidence of a qualified waiver aide authorized (both legally
and by the county board) to administer PRN seizure medication
or otherwise follow seizure protocol. There [were] no
physician's orders or current Plan of Care supporting
authorization of a waiver aide to provide [Bacon's] care
and ensure health and safety.
state hearing decision directed BCBODD to complete a new
face-to-face assessment of Bacon's need for care,
"giving due consideration to all available documentation
from [Bacon's] physicians and medical providers."
BCBODD was also ordered to "identify services which can
be provided through homemaker personal care/delegation with
medication certification, as well as those which require
provision through waiver nursing, in order to ensure
[Bacon's] health and safety."
7} BCBODD performed a follow-up in-home nursing task
assessment on May 24, 2017 with Bacon, Bacon's parents
and guardians, and her independent LPN provider and support
coordinator. As a result of this assessment, BCBODD again
recommended Bacon's request for 84 hours of weekly PDN
services be denied. DODD agreed, finding that the nursing
task assessment "[did] not reflect a complexity of care
that require[d] continuous nursing care." DODD informed
Bacon it was terminating the 84 hours of PDN care and
replacing it with the services of HPC providers with
medication certification and nursing task delegation. Bacon
requested a second state hearing on the matter.
8} After holding an evidentiary hearing on October
10, 2017, the state hearing officer affirmed DODD's
decision. Bacon filed an administrative appeal with ODJFS. On
November 16, 2017, ODJFS issued an administrative appeal
decision affirming the state hearing decision, finding that
"it is permissible to delegate the activities in
question [regarding Bacon's care] to HPC individuals. The
new assessment has shown that [Bacon's] condition is
stable * * * [and her] needs can be met [through] the HPC
9} Bacon appealed ODJFS's November 16, 2017
decision to the Butler County Court of Common Pleas. Bacon
argued ODJFS's opinion was "not in accordance with
the law and [was] not supported by reliable, probative, and
substantial evidence." Specifically, Bacon argued the
evidence presented before the state hearing officer
demonstrated that skilled nursing care and 84 hours of PDN
services were medically necessary given her severe medical
issues, propensity for seizures, and unstable medication
regime, which included the administration of "PRN
medication," or "as-needed medication," to
control her seizure activity.
10} Bacon's appeal was referred to a magistrate,
and the parties filed merit briefs on the issues raised in
Bacon's appeal. On October 1, 2018, the magistrate issued
a decision affirming ODJFS's November 16, 2017 decision
to deny Bacon's request for 84 hours of weekly PDN
services. The magistrate found that while it was clear from
the record that Bacon needs "substantial care," it
was also clear that DODD had "fully considered the
severity of Ms. Bacon's medical needs and the level of
care necessary to meet those needs." The magistrate
concluded that ...