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Sharp v. Ohio Department of Job and Family Services

Court of Appeals of Ohio, Fifth District, Licking

December 24, 2019

JULIE SHARP, GUARDIAN, ON BEHALF OF DANIEL SHARP, WARD Plaintiff-Appellant
v.
OHIO DEPARTMENT OF JOB AND FAMILY SERVICES Defendant-Appellee

          Civil appeal from the Licking County Court of Common Pleas, Case No. 18 CV 1093

         JUDGMENT: Reversed and Vacated

          For Plaintiff-Appellant S. ADELE SHANK

          For Defendant-Appellee THERESA DIRISAMER Assistant Attorney General

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          GWIN, P.J.

         {¶1} Appellant appeals the May 29, 2019 judgment entry of the Licking County Court of Common Pleas affirming an administrative decision issued by appellee the Ohio Department of Job and Family Services ("ODJFS") on behalf of the Ohio Department of Medicaid.

         Facts & Procedural History

         {¶2} Appellant Julie Sharp is the mother and legal guardian of Daniel Sharp. Daniel is nineteen years old and has been diagnosed with Type 1 diabetes, autism, and epilepsy without status epilepticus. Daniel receives Medicaid Services through the Ohio Department of Developmental Disabilities ("ODODD"). Daniel currently receives fifty-one hours of private duty nursing ("PDN") services per week. He began receiving these services through the ODODD waiver program and Interim Healthcare in 2016, but he has received PDN services under various programs since he was three years old. On December 17, 2017, the Licking County Board of Developmental Disabilities conducted a Nursing Task Assessment ("NTA") for Daniel's annual redetermination of eligibility for services.

         {¶3} ODODD reviewed the information submitted by the Licking County Board of Developmental Disabilities and denied the request for fifty-one hours of PDN per week on the basis that such services were not medically necessary. ODODD notified appellant via letter on February 8, 2018 of its intent to terminate PDN services effective February 26, 2018, and stated Daniel's need for care could be met through Homemaker/Personal Care ("HPC") providers with medication certification and nursing task delegation.

         {¶4} Appellant appealed the decision of ODODD to terminate the PDN services. A hearing officer conducted an audio hearing on April 2, 2018. Donna Patterson ("Patterson"), Medicaid Health Systems Administrator 2, stated ODODD received a 485 Plan of Care document for Daniel, listing diagnoses of autism, Type 1 diabetes without complications, and epilepsy, nonintractable and without status epilepticus. ODODD also received the NTA completed by the Licking County Board of Developmental Disabilities.

         {¶5} Patterson testified that, based upon the documentation received from Licking County, Daniel needs to have his glucose checked every two hours, his insulin pump adjusted accordingly, his vital signs checked, his pump site changed every three days, and have insulin administered, via the insulin pump, the dosage of which is based upon his glucose reading. As Patterson looked at the sixty day NTA summary, she noted: Daniel had no falls, no urgent care visits, and no ER visits during the sixty days; Daniel lives at home with his family; and the caregiver had no questions, complaints, or concerns. Patterson was concerned that Daniel's 485 plan was inadequate because it did not contain a written, documented order from a physician as to a sliding scale of insulin. However, Patterson made clear it is not appellant's responsibility to make sure the 485 plan of care is correct.

         {¶6} Specifically with regards to Daniel's insulin, Patterson stated the insulin order in the plan of care states 100 units per milliliter, pump solution, continuous subcutaneous delivery via the insulin pump with the doses adjusted per finger-stick blood sugar. Further, Patterson testified that the documentation reflects Daniel's blood sugars are checked every two hours and adjustments are made based upon the blood sugar level and/or there are snacks given to Daniel with varying levels of carbohydrates to prevent hypoglycemia. Patterson noted the documentation indicates the PDN is primarily provided while Daniel is at school and, during this time, his blood sugar was checked routinely every two hours and snacks were provided at the carbohydrate level based upon his finger-stick blood sugar, "as well as there were modifications made to the insulin pump dosage."

         {¶7} Patterson stated Daniel's insulin administration can be provided by HPC providers with a Level 1 and Level 3 certification, so long as the insulin is provided through a subcutaneous injection or pump. Patterson testified the NTA and 485 plan of care submitted support this determination due to the stability of Daniel's condition. Patterson stated that even if the HPC service is utilized, there would be no service change for Daniel until an appropriate provider was located to meet his needs.

         {¶8} Julie Sharp testified Daniel is a brittle diabetic and his glucose can vary wildly. Mrs. Sharp stated Daniel is receiving PDN services five days per week, nine hours per day, and has had the same nurse for the past twelve years.

         {¶9} Doug Sharp, Daniel's father, testified the combination of Daniel's conditions, along with an extremely low IQ of 59, puts Daniel in a situation where he is unable to share with his caregiver his condition, specifically with regards to either low or high blood sugar. Thus, the family relies on the independent decision-making of a skilled nurse to make a decision on whether or not his symptoms are related to blood sugar, an autism behavior, or epilepsy. Mr. Sharp testified Daniel needs someone at the nurse skill level to make the right decision at the moment. Mr. Sharp explained the reason why there is no sliding scale included in the physician's orders as it relates to insulin is because the decisions are made in real-time, based upon the physical symptoms the nurse sees at the time, in addition to Daniel's activity levels. Mr. Sharp stated the family previously attempted to use delegated nursing for respite care for Daniel, but could not find a provider willing to provide the care because of the level of complexity of Daniel's medical issues. Mr. Sharp submitted letters from the following individuals: Jennifer Jones ("Jones"), the nurse who completed the NTA submitted to ODODD; Kristen Kenney ("Kenney"), one of three physicians treating Daniel; Rebecca Morrison ("Morrison"), a PhD who has worked with Daniel since 2003; Sarah Milby ("Milby"), RN; and Amy Caywood ("Caywood"), RN at the clinic where Daniel goes for his diabetes.

         {¶10} Jones is the nurse who completed the NTA for Daniel that Patterson based her testimony upon. Jones stated in her letter that she gathered information from: Daniel's doctor's orders, a review of nurses' notes, a review of Daniel's psychoeducational assessment, her interview with Daniel's nurse, and her conversation with Daniel's service and support administrator. Jones stated Daniel's insulin regulation is not just a simple task of following physician's orders and giving an exact does of insulin; rather, there is assessment that must go into the decision before the insulin is given and this assessment comes from a nurse who can use his or her assessment skills and respond accordingly with medical knowledge. If Daniel's blood sugar goes too high, it can cause a life-threatening state called diabetic ketoacidosis and if his blood sugar drops too low, it can immediately be life threatening by leading to seizure and loss of consciousness.

         {¶11} Jones believes actually giving Daniel the insulin is the easy part, but what is not easy in Daniel's case is the assessment portion of the insulin administration, considering there are several factors involved each time an insulin injection is given, including the pump site location, Daniel's activity level, and his food intake. Each of these factors affects whether the insulin dose needs adjusted. Jones considers Daniel's case to be a complex one with his diabetes and autism, as Daniel is not able to tell someone he is not feeling well, so the nurse must be diligent in her assessment skills to identify if Daniel is having low blood sugar or high blood sugar so as to provide immediate treatment to bring his blood sugar back to normal. Jones stated that no day is ever the same for Daniel because there are daily insulin adjustments, meaning the nurse overrides the amount of insulin the pump indicates be given to give more or less insulin.

         {¶12} Jones teaches classes to unlicensed personnel so they can, with nursing delegation, administer insulin. Jones believes there are times when it is safe to have certified staff care for and administer insulin; however there are circumstances in which it is unsafe to do so when there is a lot of daily changes of insulin dosing and assessment required for such dosing, and each individual circumstance is different. Jones does not think Daniel's case is one where it is safe for a non-nurse to administer insulin because with every blood sugar check, there is decision-making, as documented in the nurse's notes, where the nurse gave more or less insulin than indicated by the pump to avert low blood sugar. Jones does not believe this type of decision-making is within ...


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