Rudd v. Ohio Dept. of Job & Family Servs.

[Cite as Rudd v. Ohio Dept. of Job & Family Servs., 2015-Ohio-3796.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
TIMOTHY RUDD :
:
Plaintiff-Appellant : C.A. CASE NO. 2015-CA-9
:
v. : T.C. NO. 14-326
:
OHIO DEPARTMENT OF JOB : (Civil Appeal from
& FAMILY SERVICES : Common Pleas Court)
:
Defendant-Appellee :
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OPINION
Rendered on the ___18th___ day of ____September ___, 2015.
...........
BYRON K. BONAR, Atty. Reg. No. 0002602, Legal Aid of Western Ohio, Inc., 20 S.
Limestone Street, Suite 220, Springfield, Ohio 45502
Attorney for Plaintiff-Appellant
JAMES H. LOCKWOOD, Atty. Reg. No. 0088434, Assistant Attorney General, Health and
Human Services Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215
Attorney for Defendant-Appellee
.............
FROELICH, P.J.
{¶ 1} Timothy Alan Rudd appeals from a judgment of the Miami County Court of
Common Pleas, which affirmed an administrative decision that terminated Rudd’s
home-delivered meals through Medicaid and the Department of Job and Family Services
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(ODJFS) on the basis that it was duplicative of other services provided to him.
{¶ 2} For the following reasons, the judgment of the trial court will be affirmed.
{¶ 3} Rudd, age 62, has been diagnosed with a variety of established medical
conditions. He receives Social Security Disability and various services from the ODJFS
and Medicaid through the Ohio Home Care Waiver Program. Under the program, he
receives two two-hour visits from personal care aides each day, seven days per week,
and one visit from a nurse each day. Prior to a reassessment of services conducted in
2014, he also received two home-delivered meals each day from a company, Clossman
Catering, that specializes in providing meals for people with medical conditions that are
affected by their diets.
{¶ 4} In March 2014, ODJFS completed an assessment of Rudd’s services and
determined that, because the personal care aides were present in Rudd’s home during
two meals per day and were doing some cooking for him, the home-delivered meal
service was an impermissible duplication of services under Ohio Adm.Code
5160-46-04(D)(3)a). The agency indicated its intention to discontinue the
home-delivered meals. Rudd appealed from the decision to discontinue this service,
arguing that the meals were a medical necessity and were not duplicative because they
were specially tailored to his medical needs. Rudd did not dispute that the aides cooked
for him, but he argued that the home-delivered meals should continue due to his
diagnoses and dietary restrictions. The hearing officer found that Rudd’s personal care
aides were “present during meal time and were doing meal preparation”; the officer also
noted that one of the aides reported that she “always makes extra food and puts it in the
freezer” so that Rudd could eat it if he got hungry when an aide was not present, that
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Rudd’s “cupboards and freezer are full,” and that she “supplements [Rudd’s] HDMs with
the food she prepares since the HDMs are not big enough.” Based on this evidence, the
hearing officer found that Rudd’s home-delivered meals were a duplication of services
that violated Ohio Adm.Code 5160-46-04(D)(3).
{¶ 5} Rudd filed an administrative appeal from the hearing officer’s finding, and a
hearing was held in April 2014. The Administrative Appeal Officer agreed with the
hearing officer that Rudd’s home-delivered meals were duplicative of the other services
provided to him and therefore should be terminated. The Decision stated:
While there is no question that a proper diet is important to effectively
manage [Rudd’s medical condition], there is no evidence that the meals
being provided are provided as [a] therapeutic diet that has been ordered by
a licensed physician. Additionally, there is significant evidence that the
appellant is not managing his diet appropriately even with the home
delivered meals. * * * While the home delivered meals may provide some
benefit to the appellant’s management of his [condition], there is no
indication that the appellant’s home health aides cannot work with a
dietician to provide appropriate meals for the appellant.
The Appeal Officer concluded that the home-delivered meals were “not cost effective and
a duplication of services.”
{¶ 6} Rudd appealed the administrative decision to the Miami County Court of
Common Pleas pursuant to R.C. 5101.35(E) and R.C. 119.12. On February 25, 2015,
based on its review of the record that was developed during the administrative
proceedings, the trial court found that the administrative decision was supported by
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reliable, probative, and substantial evidence and was in accordance with the law; it
affirmed the administrative decision to terminate Rudd’s home-delivered meals.
{¶ 7} Rudd appeals from the trial court’s judgment, raising three assignments of
error.
The Common Pleas Court erred by abusing its discretion when
it gave more weight to hearsay evidence than to Mr. Rudd’s sworn
testimony presented at the administrative hearing.
The Common Pleas Court erred by committing an error of law
when it failed to give any deference to the opinions of Mr. Rudd’s
treating physicians.
The Common Pleas Court erred by abusing its discretion when
it ignored that Mr. Rudd met the regulatory requirement for home
delivered meals which was that home delivered meals be ordered by a
physician.
{¶ 8} Rudd asserts that the trial court improperly weighed the evidence presented
at the administrative hearing, that it did not give appropriate deference to the opinions of
his physicians, and that it abused its discretion in affirming the administrative decision.
{¶ 9} “An appeal from an administrative appeal decision of the Director of the Job
and Family Services Agency may be taken in the court of common pleas pursuant to R.C.
119.12.” Gruber v. Ohio Dept. of Job & Family Serv., 153 Ohio App. 3d 6, 2003-Ohio
2528, 790 N.E.2d 800, ¶ 12 (6th Dist.). “Under R.C. 119.12, the court of common pleas
must review an agency order to determine whether ‘the order is supported by reliable,
probative, and substantial evidence and is in accordance with law.’ ” Id. “An appellate
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court, on the other hand, is limited to determining whether the common pleas court
abused its discretion in reviewing the evidence in support of the administrative order.”
Id., citing Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63
Ohio St. 3d 705, 707, 590 N.E.2d 1240 (1992). (Other citation omitted). “Issues of law,
however, are reviewed de novo.” Gruber at ¶ 12, citing Sohi v. Ohio State Dental Bd., 130
Ohio App. 3d 414, 421, 720 N.E.2d 187 (1st Dist.1998). See also Rodefer v. Colbert,
2015-Ohio-1982, 35 N.E.3d 852, ¶ 14 (2d Dist.). Thus, when a court of appeals reviews
a common pleas court’s decision in an administrative appeal, its standard of review is far
more circumscribed than that employed by the court of common pleas. Farran v.
Cleveland Civ. Serv. Comm., 8th Dist. Cuyahoga No. 99851, 2014-Ohio-823, ¶ 2.
{¶ 10} Ohio Adm. Code 5160-46-04(D), the regulation related to home-delivered
meals under the Ohio Home Care Waiver and Medicaid programs, states, in pertinent
part:
(D)(1) “Home delivered meal service” is defined as the provision of meals to
a consumer who has a need for a home delivered meal based on a deficit in
an ADL [activities of daily living] or a deficit in an IADL [instrumental
activities of daily living] identified during the assessment process. The
service includes the preparation, packaging and delivery of a safe and
nutritious meal(s) to a consumer at his or her home. A consumer may be
authorized to receive up to two home delivered meals per day.
(2) Home delivered meals:
(a) Shall be furnished in accordance with menus that are approved in writing
by a licensed dietitian who is currently registered with the commission on
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dietetic registration.
(b) Shall take into consideration the consumer’s medical restrictions,
religious, cultural and ethnic background and dietary preferences.
(c) Shall be prepared by a provider who is in compliance with Chapters
918., 3715. and 3717. of the Revised Code, and all applicable
Administrative Code rules adopted thereunder. For the purposes of this
rule, reheating a prepared home delivered meal is not the same as
preparing a meal.
***
(f) May include a therapeutic diet that requires a daily amount or distribution
of one or more specific nutrients in order to treat a disease or clinical
condition, or eliminate, decrease or increase certain substances in the
consumer’s diet. A therapeutic diet must be ordered by a licensed
physician. A new order must be documented in the consumer’s clinical
record every ninety days.
(3) Home delivered meals shall not:
(a) Include services or activities performed in excess of what is approved on
the consumer’s all services plan.
(b) Supplement or replace meal preparation activities that occur during the
provision of waiver nursing, personal care aide, adult day health center,
home care attendant or any other similar services.
(c) Supplement or replace the purchase of food or groceries.
***
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{¶ 11} The ODJFS, the staff hearing officer, and the administrative appeal officer,
found that the home-delivered meals were duplicative under Ohio Adm.Code
5160-46-04(D)(3), which precludes home-delivered meals if they “supplement or replace”
other meal preparation activities that the consumer receives. The trial court found
substantial, probative and reliable evidence to support this conclusion.
{¶ 12} First, Rudd asserts that the trial court gave improper weight to hearsay
evidence, namely the case notes compiled by his caregivers; he contends that his sworn
testimony was entitled to greater weight.
{¶ 13} Although administrative appeals to government agencies are required to
comport with fundamental aspects of due process, they are not judicial proceedings.
Consequently, the rules of evidence “do not directly apply in administrative
proceedings[.]” Plain Loc. Schools Bd. of Edn. v. Franklin Cty. Bd. of Rev., 130 Ohio
St.3d 230, 2011-Ohio-3362, 957 N.E.2d 268, ¶ 20; Simon v. Lake Geauga Printing Co.,
69 Ohio St. 2d 41, 44, 430 N.E.2d 468 (1982); Farran, 8th Dist. Cuyahoga No. 99851,
2014-Ohio-823, ¶ 5. It is a well-settled principle of administrative law that administrative
agencies are not bound by the rules of evidence and that hearsay is admissible in
administrative proceedings. Shephard v. Ohio Dept. of Job & Family Serv., 166 Ohio
App.3d 747, 2006-Ohio-2313, 853 N.E.2d 335, ¶ 22 (8th Dist.).
{¶ 14} When evidence is admitted despite being hearsay, the trier of fact must
consider whether the evidence is reliable enough to be considered substantial and
probative. In re Petition for Annexation of 162.631 Acres, 52 Ohio App. 3d 8, 15, 556
N.E.2d 200 (10th Dist.1988). Evidence is reliable if it “can be confidently trusted” and
there is “a reasonable probability that the evidence is true.” Beachland Ents. Inc. v.
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Cleveland Bd. of Rev., 8th Dist. Cuyahoga No. 99770, 2013-Ohio-5585, ¶ 63-34. The
reliability of evidence goes to its weight, not its admissibility. Farran at ¶ 5.
{¶ 15} The personal care aides and nurse who work with Rudd did not testify at
the hearing; the content of their case notes was hearsay. We need not elaborate on this
characterization, because even if the notes were hearsay, they were admissible in the
administrative proceedings if the court found them to be reliable. Although Rudd testified
at the hearing, he relied on evidence such as the opinions of his doctor and food-service
provider, as reflected in letters he references and presented at the hearing; because the
doctors and food-service provider did not testify at the hearing, much of the evidence
offered by Rudd was also hearsay. Since reliable hearsay is permitted in administrative
proceedings, and because both parties relied on such evidence to some extent, we
cannot agree with Rudd’s argument that the administrative hearing officer or the trial court
erred in crediting such evidence.
{¶ 16} Rudd also contends that the trial court erred in failing to give deference to
the opinions of his treating physician. Rudd submitted a letter from his podiatrist which
stated the importance of Rudd’s eating meals specifically prepared for a person with his
medical condition, that the home delivery of meals from Clossman was meeting this need,
that “[p]reparation of meals by a home health aide from food purchased with food stamps
would * ** not meet these requirements,” and that a change in Rudd’s home-delivered
meals “may put his health at risk.”1
{¶ 17} The administrative hearing officer and the trial court could have reasonably
1
The record also contains a letter from a nurse practitioner at an internist’s practice,
stating, in total, “Please allow my patient, Timothy Rudd, to have home delivered meals
due to [his medical condition] and physical deconditioning.” Rudd does not make
reference to this letter in his brief.
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concluded that the letter submitted by the podiatrist did not compel the continuation of
home-delivered meals. First, the letter was not written until April 8, 2014 (after the March
reassessment by ODJFS), and Rudd does not claim that this letter was the basis for the
provision of his home-delivered meals. While acknowledging the importance of a
healthy diet, the administrative hearing officer specifically noted the absence of any
evidence in the podiatrist’s letter or otherwise that the home-delivered meals or any
“therapeutic diet” had been ordered for Rudd by a licensed physician.
{¶ 18} Second, the podiatrist’s letter does not address the duplication of services
which was at the core of ODJFS’s decision to terminate the home-delivered meals.
Rudd’s need for meals designed with his medical issues in mind was not in dispute. The
relevant question was whether Rudd’s home-delivered meals were supplementing or
replacing meal preparation activities provided by the personal care aides. Steve
Knowland, a clinical supervisor with CareStar (an agency that administers Medicaid
programs in Ohio), testified at the administrative appeal hearing that the Ohio Home Care
program provides a “cost-effective alternative” (staying in one’s own home) for Medicaid
recipients who are “medically appropriate for institutional placement.”
{¶ 19} Third, other evidence presented at the hearing or in the record
contradicted assumptions in the podiatrist’s letter that Rudd’s food was “purchased
with food stamps” and that a personal care aide’s cooking could not meet Rudd’s dietary
requirements. Knowland testified that Rudd’s personal care aides had been or could be
trained to provide meals appropriate to Rudd’s particular medical condition. (He did not
know if the current aides had been trained for that purpose.) The aides’ notes reflected
that they helped him with his finances, that he had money for food, that Rudd’s pantry was
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well-stocked, that the aides prepared extra food for him in case he got hungry when the
aides were not there or when the meals did not satisfy him, and that he ordered food over
the internet and enlisted the aides to collect food from food banks. Knowland stated that
the home-delivered meals are not a means of addressing shortfalls or other demands on
one’s budget, and that an individual receiving ODJFS services can request a review of his
budget, food stamp allowance, etc., if financial difficulties need to be addressed. The
record did not require the hearing officer to accept the podiatrist’s apparent assumption
that Rudd’s food came primarily from food stamps or the doctor’s conclusion that home
health aides could not prepare food that would “meet [Rudd’s] requirements.”
{¶ 20} Finally, Rudd argues that he was entitled to home-delivered meals because
he “met the regulatory requirement” that such meals be ordered by a physician. In
support of this argument, Rudd relies on his own testimony at the hearing that his “primary
doctor” had ordered the meals and had “designed a meal plan” for him. He also asserts
in his brief that home-delivered meals “would never have been delivered if they had not
been ordered by a physician.”
{¶ 21} Rudd’s arguments are weakened by the record in several respects. First,
Ohio Adm.Code 5160-46-04(D)(1) states that the meals may be provided where a need is
identified in the ODJFS assessment process; it does not necessarily require an order
from a physician. A physician’s order is required for a “therapeutic diet that requires a
daily amount or distribution of one or more specific nutrients;” where a “therapeutic diet” is
required, a “new order must be documented in the consumer’s clinical record every ninety
days.” In other words, not all home-delivered meals are provided pursuant to a
therapeutic diet ordered by a physician, and the administrative hearing officer found no
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evidence of such an order in Rudd’s case. Moreover, the regulation treats a doctor’s
order as a condition of eligibility for certain home-delivered meals; it does not require
home-delivered meals to be provided on a doctor’s order.
{¶ 22} Rudd had been receiving home-delivered meals for many years at the time
of the hearing, and he did not provide any conclusive evidence that a doctor had issued
an order for a “therapeutic diet” or had renewed such an order every ninety days.
Clossman submitted a letter stating that its “dietetically approved meals” are provided
“under the auspices of the consumer’s doctor via signed doctor’s orders which authorize
consumer appropriate diets,” but the letter does not contain any statements specifically
related to Rudd.
{¶ 23} Viewing the evidence as a whole, we cannot conclude that the
administrative hearing officer was required to credit the podiatrist’s opinion or that the trial
court abused its discretion in finding that there was reliable, probative and substantial
evidence to support the decision of the hearing officer. Knowland’s testimony
established that personal care aides provided through the Ohio Home Care and Medicaid
program were capable of providing medically-appropriate meals, and the case notes
established that Rudd’s personal care aides were, in fact, cooking and shopping for him
to supplement the home-delivered meals provided by Clossman. Based on the
evidence presented at the hearing, the trial court did not abuse its discretion in affirming
the administrative officer’s conclusion that Rudd was receiving a duplication of services,
and that such supplemental or replacement services were prohibited by Ohio Adm.Code
5160-46-04(D)(3).
{¶ 24} The assignments of error are overruled.
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{¶ 25} The judgment of the trial court will be affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Byron K. Bonar
James H. Lockwood
Hon. Jeannine N. Pratt