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Bacon v. Ohio Department of Medicaid

Court of Appeals of Ohio, Twelfth District, Butler

August 12, 2019

STACEY BACON, Appellant,
v.
OHIO DEPARTMENT OF MEDICAID, Appellee.

          APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2017-12-2776.

          Katherine J. Bockbrader, Assistant Attorney General, for appellee.

          Webster & Associates, Co., LPA, Geoffrey E. Webster, Mary L. Pisciotta, for appellant.

          OPINION

          HENDRICKSON, P.J.

         {¶ 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.[1]

         {¶ 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 disturbance.

         {¶ 3} Bacon is eligible for Medicaid. For a number of years Bacon received waiver nursing services under the Transition Developmental Disabilities waiver program.[2] 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.[3] 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")[4] providers with medication certification and nursing task delegation.[5]

         {¶ 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.

         The 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 providers."

         {¶ 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.[6]

         {¶ 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 ...


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