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

[Cite as Herubin v. Ohio Dept. of Job & Family Servs., 2022-Ohio-3243.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
BELLA HERUBIN AS EXECUTOR OF THE
ESTATE OF JOSEPH T. HERUBIN,
Plaintiff-Appellant,
v.
OHIO DEPT. OF JOB AND FAMILY SERVICES,
Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0109
Civil Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2021 CV 12
BEFORE:
Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. John A. McNally, III, John A. McNally, III, Co., LPA, 100 East Federal St., Suite 600,
Youngstown, Ohio 44503 for Plaintiff-Appellant and
Atty. Julie E. Brigner, Atty. Kelly Richardson, Health and Human Services Section, 30
East Broad Street, 26th Floor, Columbus, Ohio 43215 for Defendant-Appellee.
Dated: September 14, 2022
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Robb, J.
{¶1} Appellant Bella Herubin as Executor of the Estate of Joseph T. Herubin
appeals the decision of the Mahoning County Common Pleas Court affirming the
administrative decision made by Appellee Ohio Department of Job and Family Services
(ODJFS), which upheld the denial of the applicant’s Medicaid application. The estate
contends the common pleas court should have ordered ODJFS to approve the Medicaid
application because the pandemic made it factually impossible for the decedent’s former
authorized representative (his son) to comply with verification requirements, as he was
unable to secure an appointment with a bank to set up a trust and open a trust account.
For the following reasons, the common pleas court’s judgment is affirmed.
STATEMENT OF THE CASE
{¶2} On March 20, 2020, Joseph T. Herubin filed an application for Medicaid.
Specifically, he sought Long-Term Care (LTC) benefits, as he was residing at a nursing
home facility. He appointed his son, Mark Herubin, as his authorized representative to
assist in the process. Mahoning County Department of Job and Family Services
(MCDJFS) interviewed the son on March 26, 2020 and informed him of the verification
and eligibility requirements.
{¶3} The same day, a checklist was mailed to the applicant and the son, which
listed the required verifications with a due date of April 6, 2020. It contained a warning
that the failure to submit the requested information may result in the denial of the
application. One item on the checklist was the value of life insurance. The checklist was
accompanied by instructions on proper ways to spend down resources and explained
there was a resource limit of $2,000. Also included was information on Medicaid estate
recovery upon the death of an institutionalized recipient.
{¶4} In addition, the checklist explained a Qualified Income Trust (QIT) was
required in order to become eligible if the applicant’s monthly gross income exceeded
$2,349. An instructional QIT packet was attached, clearly stating a person with income
over that amount would not become eligible until a valid QIT was executed and a financial
account for the trust was established for the deposit of income above the eligibility level.
The applicant was encouraged to consult an attorney with legal questions. The applicant
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was provided with a hotline number for QIT questions and a list of local banks where a
QIT account can be set up, with an advisement some nursing homes assist with the QIT
process or “you may want to consult with your own attorney.” There was also a link to a
standard QIT form.
{¶5} After the son provided some verifications, the agency’s July 7, 2020 letter
listed the outstanding verifications with a deadline of July 22, 2020. Again, the letter:
warned that the failure to submit the requested information may result in the denial of the
application; advised the Medicaid resource limit was $2,000; and asked for life insurance
cash values. As the applicant’s monthly income was $4,160, the letter required the
establishment of a QIT with a deposit of $1,811 (based on the applicant’s monthly income
exceeding $2,349). See Ohio Admin.Code 5160:1-6-03.1(B) (if an individual is ineligible
under base Medicaid due to excess income, he may become eligible if his income is equal
to or less than the special income level {SIL}, which was $2,349 effective 1/1/20).
{¶6} On this topic of the required QIT, the July 20, 2020 response letter from the
applicant’s son said he called several Chase Bank branches in the area and was advised
“this is a matter that is handled by the courts.” He said he then called the hotline in order
to obtain documents for his completion and submission to Chase Bank.
{¶7} As to the agency’s request for the face value, cash value, and ownership of
the New York Life insurance policy that deducted money for a premium from the
applicant’s Chase bank account, the son said there was no life insurance policy from this
company in the applicant’s name. There was no explanation for the premium deducted
from the account (which can be seen on the bank statement), and there was no statement
about whether the policy was in the spouse’s name. (The agency had also asked for the
cash value of the applicant’s life insurance policies through John Hancock, and the son
obtained a letter from that company showing the surrender value for two policies.)
{¶8} The son’s letter also said the applicant’s attorney was in the process of
transferring real property back to the applicant and the applicant’s spouse (Bella Herubin)
which had been conveyed to the son and his brother on March 6, 2020. (Later, deeds
reconveying the property to Bella Herubin were signed by each of the applicant’s sons on
August 20 and September 3, 2020.)
{¶9} On July 22, 2020, the applicant died. On July 30, 2020, MCDJFS issued a
denial of the Medicaid application. The decision said eligibility was determined based on
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the application and the applicant failed to provide the requested verifications. The
applicant’s wife, through an attorney, requested a state hearing with ODJFS.
{¶10} The state hearing proceeded on November 23, 2020. The representative
from MCDJFS testified as to the history, the failed verifications, and the income of $4,160,
which placed the applicant over the limit without a QIT and an accompanying account. It
was disclosed that between the issuance of the two written checklists, the son was also
orally advised that the applicant would need to establish a QIT to be eligible for LTC
Medicaid. The applicant’s attorney testified the family told him they submitted all the
needed documents, noting he was only involved in the deeds. The record was therefore
left open for several days so any additional evidence of documents submitted to MCDJFS
could be added to the record. No further evidence on the life insurance, the QIT, or a QIT
account was provided.
{¶11} On December 1, 2020, the “state hearing decision” affirmed the denial of
the Medicaid application. This decision noted the son said he checked with New York
Life and learned his father had no existing policy. The decision also pointed to the
disclosure in the July 20, 2020 letter that the son started looking into a QIT, which
confirmed that no QIT or account had been established before the applicant died on July
22, 2020. It was concluded: “Without this account established, the Applicant would have
been over the SIL of $2,349 based on his monthly countable income of $4,160. Thus,
even if the verification issue were set aside, MCDJFS would still have been correct to
deny this application due to the Appellant being over the income limit for potential LTC
Medicaid eligibility.”
{¶12} A request for an administrative appeal from the state hearing decision was
filed with ODJFS. On December 10, 2020, the state hearing decision was affirmed. After
reviewing the facts, the ODJFS decision found: “The cash value of the New York Life
policy was never provided nor was evidence of the establishment of a QIT ever received
by the Agency.” It was concluded the state hearing decision and the MCDJFS decision
were correct because the verifications were not received or in the record (even after
additional time was provided based on the attorney’s statement that he was told the
required documents were sent).
{¶13} From this “administrative appeal decision,” a timely appeal was filed in the
common pleas court on January 5, 2021. The court set a briefing schedule with a non-
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oral hearing date. (4/23/21 & 6/20/21 J.E.). The common pleas court granted a motion
for substitution of parties upon learning the decedent’s spouse had just been appointed
as the executor of his estate. (2/2/21 J.E.).
{¶14} The estate’s merit brief in the common pleas court alleged the
administrative decision was “procedurally defective” because the son made every effort
to comply with the requirements of MCDJFS but was thwarted by COVID-19 closures.
The brief said the son encountered issues in dealing with documentary requests in the
height of the pandemic “specifically in July-August, 2020.” An affidavit from the son was
filed, which stated: in the summer of 2020, the nursing home financial staff directed him
to Chase Bank on a certain street to set up the trust, but it was locked due to the pandemic
and his calls were unsuccessful; he then called two other Chase Bank branches upon the
urging of the nursing home, but they were closed; he made an appointment for his father
with the Chase Bank branch in Salem; and his father died a few days before the
appointment. The affidavit was signed on July 27, 2021.
{¶15} The response brief filed by ODJFS argued the administrative decision was
supported by reliable, probative, and substantial evidence and in accordance with law, as
the applicant failed to demonstrate a QIT was established and funded in order to decrease
his countable income, which exceeded the eligibility limits. ODJFS pointed out
Appellant’s argument on appeal did not apply to the failure to provide verification of the
insurance policy through New York Life. The agency further pointed out the estate did
not contest these facts and the sole argument on appeal asked the court to ignore the
law. ODJFS cited to the waiver doctrine, arguing the claim about the pandemic affecting
the establishment of a QIT was not raised in the state hearing. ODJFS also asked the
court to strike the affidavit as it was outside the certified administrative record.
{¶16} ODJFS additionally pointed out there was no dispute the applicant’s
income was over the eligibility limit. It was explained that even if a QIT could somehow
be deemed established in July 2020 (when the son claimed he encountered a delay),
such a decision would not provide for past Medicaid coverage because the three-month
retroactive eligibility for LTC only applies if the applicant was income-eligible at the time.
See Ohio Admin.Code 5160:1-2-01(M)(1)(b)(iii). As discussed in the next section, the
agency also claimed the common pleas court lacked jurisdiction due to the initial
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captioning of the notice of appeal in the name of the decedent in the care of his family,
which was how ODJFS captioned the case in the administrative proceedings.
{¶17} The estate’s reply brief responded to the jurisdictional argument by citing
the statutory provision allowing the notice of appeal to be extended to six months for good
cause. The estate then said the only fact at issue was whether it was “factually
impossible” to comply with the Medicaid requirement to establish a QIT in the summer of
2020. As to life insurance verification, the estate claimed the applicant could not be
expected to prove a negative and pointed out the existence of such a policy was denied
in the son’s July 2020 letter.
{¶18} On November 10, 2021, the common pleas court affirmed the administrative
decision. The court struck the son’s affidavit upon concluding the court was confined to
the record as certified. The court found the claim of hardship in establishing a QIT due
to the pandemic was waived because it was not raised at the administrative hearing,
pointing out this was the estate’s only argument on appeal. The court concluded the
administrative appeal decision was supported by reliable, probative, and substantial
evidence and in accordance with law. The estate filed a timely notice of appeal in this
court.
JURISDICTION OF THE COMMON PLEAS COURT
{¶19} Before reaching the estate’s assignment of error, we address the
jurisdictional argument in ODJFS’s brief. It is argued the common pleas court lacked
subject matter jurisdiction over the administrative appeal because the notice of appeal
was not originally filed by the estate, even though the court allowed substitution of the
estate soon after the appeal was filed. It is pointed out the statute defining the “appellant”
in the notice of appeal invoking the common pleas jurisdiction does not specifically include
an authorized representative (which is discussed in administrative regulations on internal
appeals.1)
1 It is also noted Civ.R. 17 (A) states the following: “Real party in interest. Every action shall be prosecuted
in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express
trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party
authorized by statute may sue in his name as such representative without joining with him the party for
whose benefit the action is brought.” (Emphasis added.)
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{¶20} According to the relevant statute, “An appellant who disagrees with an
administrative appeal decision of the director of job and family services or the director's
designee issued under division (C) of this section may appeal from the decision to the
court of common pleas pursuant to section 119.12 of the Revised Code.” R.C.
5101.35(E). “The appellant shall mail the notice of appeal to the department of job and
family services and file notice of appeal with the court within thirty days after the
department mails the administrative appeal decision to the appellant.” R.C.
5101.35(E)(3). This statute defines “Appellant” as “an applicant, participant, former
participant, recipient, or former recipient of a family services program who is entitled by
federal or state law to a hearing regarding a decision or order of the agency that
administers the program.” R.C. 5101.35(A)(2).
{¶21} “When a statute confers a right to appeal, the appeal can be perfected only
in the mode the statute prescribes.” Pryor v. Director, Dept. of Job & Family Servs., 148
Ohio St.3d 1, 2016-Ohio-2907, 68 N.E.3d 729, ¶ 12 (where the administrative appeal
statute expressly said the “filing of the notice of the appeal” was the only jurisdictional
requirement, the inclusion of the information required in the notice of appeal itself is the
only condition precedent to vest jurisdiction in the court). “[N]aming proper parties and
fulfilling service requirements are jurisdictional requirements in cases that involve statutes
that clearly require such for jurisdiction.” Spencer v. Freight Handler Inc., 131 Ohio St.3d
316, 2012-Ohio-880, 964 N.E.2d 1030, ¶ 19.
{¶22} The January 5, 2021 timely notice of appeal to the common pleas court was
captioned “Joseph Herubin c/o The Family of Joseph Herubin.” (This was the caption
used on page one of the administrative agency’s December 10, 2020 order appealed to
the common pleas court). On January 29, 2021, the estate filed a motion to be substituted
as the party filing the appeal. The common pleas court granted the substitution replacing
“Joseph Herubin c/o The Family of Joseph Herubin” with “Joseph Herubin, Bella A.
Herubin, Executor of the Estate of Joseph T. Herubin Sr.” (2/2/21 J.E.).
{¶23} ODJFS claims the notice of appeal was not captioned in the name of a
proper appellant as the applicant was deceased and the family did not meet the specific
statutory definition of appellant. Although the case proceeded through the administrative
process without a personal representative appointed by the probate court, Ohio Admin.
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Code 5101:6-3-02(A)(1),(3)(a) allows an authorized representative of the decedent to
request a state hearing administrative appeal.
{¶24} ODJFS points out the court process is distinguishable because a decedent
has no legal capacity to file a lawsuit or an appeal to a court and his “family” is not a
legally recognized substitute for the decedent. Because “a party must actually or legally
exist,” a deceased person cannot be a party to an action. Baker v. McKnight, 4 Ohio
St.3d 125, 127, 447 N.E.2d 104 (1983) (while adopting a theory allowing for correction of
a misnomer for a deceased defendant). “The executor of an estate, as a legal
representative, settles the decedent's affairs and ‘stands in [the decedent's] shoes' as far
as entitlement to benefits is concerned.” Hopper v. Nicholas, 106 Ohio St. 292, 302, 140
N.E. 186 (1922).
{¶25} ODJFS agrees the estate would be the proper party. However, ODJFS
contends the January 5, 2021 notice of appeal did not vest the common pleas court with
jurisdiction because it was not filed by the estate (which did not exist at the time) and the
subsequent substitution could not save the appeal from this defect. ODJFS also
complains that in addition to adding the estate as a party, the substitution and the court’s
entry said, “Bella A. Herubin, individually, shall remain as a Plaintiff,” even though her
name was not previously specified in the notice of appeal. (Rather, the decedent’s family
in general was in the caption after his name and “c/o”). ODJFS points out a spouse does
not meet the definition of an appellant in R.C. 5101.35(A)(2) even if the “Family” portion
of the prior caption were to be construed as naming the spouse.
{¶26} Pertinent to the latter topic, the Eighth District has concluded a nursing
home previously named as the authorized representative had standing to file the notice
of appeal in the common pleas court. Tiggs v. Ohio Dept. of Job & Family Servs., 2018-
Ohio-3164, 118 N.E.3d 985, ¶ 28 (8th Dist.). Here, the decedent named his son as the
authorized representative, and the decedent’s spouse requested the state hearing appeal
from the initial denial. See Ohio Admin.Code 5101:6-3-02(A)(1) (the authorized
representative can request state hearing), (3)(a) (written authorization as authorized
representative is not required if it cannot be obtained because of the individual's death or
incapacity and the representative is acting in the individual's best interest), (b) (applicant’s
spouse does not require written authorization as authorized representative in order to
request a state hearing). However, in Tiggs, the applicant was still alive when the
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authorized representative filed the appeal, which they found distinguishable from cases
involving a theory of lapsed authority.
{¶27} In any event, the case at bar involved a substitution of parties which
amended the notice of appeal and which is distinct from any case with a substitution of
parties occurring after the notice of appeal time ended. The statute providing the notice
of appeal deadline in the common pleas court contains the following special provision
cited by Appellant:
The appeal shall be governed by section 119.12 of the Revised Code
except that: * * * The appellant shall mail the notice of appeal to the
department of job and family services and file notice of appeal with the court
within thirty days after the department mails the administrative appeal
decision to the appellant. For good cause shown, the court may extend the
time for mailing and filing notice of appeal, but such time shall not exceed
six months from the date the department mails the administrative appeal
decision. Filing notice of appeal with the court shall be the only act
necessary to vest jurisdiction in the court.
(Emphasis added.) R.C. 5101.35(E)(3). Compare R.C. 119.12(D) (15 days to appeal
unless otherwise provided by law specific to a particular agency). Therefore, even if no
notice of appeal had been filed within 30 days of December 10, 2020, the court could
have extended the time for good cause and allowed an original notice of appeal to be
filed on January 29, 2021 (and for months thereafter).
{¶28} The estate’s January 29, 2021 motion to be substituted as the party who
filed the appeal was filed a mere 24 days after the timely notice of appeal was filed and
less than three weeks after the general 30-day appellate date had passed. The letters of
authority from the probate court were attached, showing the decedent’s wife was
appointed as the executor on January 22, 2021.
{¶29} The common pleas court’s grant of substitution is essentially a finding of
good cause for the amendment of the notice of appeal via the substitution of parties so
that the executor of the decedent’s estate was the appellant on the decedent’s behalf.
The court could have allowed an extension to file the notice of appeal up to six months
after the administrative decision. R.C. 5101.35(E)(3). Consequently, a timely notice of
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appeal was brought by the admittedly proper party well within the time for filing an
extended notice of appeal.
{¶30} Notably, ODJFS made this same jurisdictional argument in its August 30,
2021 response brief to Appellant’s merit brief filed in the common pleas court, arguing a
decedent cannot file an action or appeal in a court without being represented by the
fiduciary of his estate and the February 2, 2021 substitution did not cure the jurisdictional
defect. The common pleas court implicitly rejected this argument by proceeding to
address Appellant’s administrative appeal, thereby reaffirming its prior decision allowing
substitution and implicitly confirming the existence of good cause for the amendment of
the notice of appeal. Due to this history and the statute specifically allowing the common
pleas court to extend the date for a complete notice of appeal by up to six months for
good cause, the jurisdictional argument by ODJFS is rejected.
{¶31} Lastly, we note the cases relied upon by ODJFS are not on point. In one
case, a decedent’s son and power-of-attorney filed the appeal from the Medicaid denial:
“Since the representative of [the decedent’s] estate, and not [the son], in his individual
capacity or as a lapsed attorney-in-fact, was the real party in interest to prosecute the
action in the trial court, the trial court did not have jurisdiction to entertain the
administrative appeal.” Santa v. Ohio Dept. of Human Servs., 136 Ohio App.3d 190, 195,
736 N.E.2d 86 (8th Dist.2000). The Santa case is distinguishable because “[t]he estate
of [the decedent] Santa was not substituted as a party at any point in the proceedings
before the administrative agency or the trial court.” Id. at 193. There was thus no
application of the statutory good cause extension to perfect the appeal.
{¶32} In the other cited case, a nursing home initiated appeals from the denial of
Medicaid within the administrative system as the authorized representative of the
decedent. Saber Health Care v. Ohio Dept. of Job & Family Servs., 4th Dist. Adams No.
20CA1107, 2020-Ohio-4044, ¶ 3. The original notice of appeal to the common pleas
court was filed on June 6, 2019 purportedly by the decedent; however, it was voluntarily
dismissed. Id. at ¶ 3-4. In November 2019, a notice of appeal was filed by the nursing
home and by a person who had a pending probate application to be appointed special
administrator, citing (E)(3) of R.C. 5101.35. Id. at ¶ 4-5. The person was later appointed
administrator on December 2, 2019. The common pleas court thereafter dismissed the
appeal.
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{¶33} Notably, the decedent’s administrator did not appeal to the appellate court;
only the nursing home appealed. Id. at ¶ 33. The appellate court found the nursing home
was not an appellant under R.C. 5101.35(A)(2) and its authorized representative status
did not extend to an appeal in the common pleas court. Id. at ¶ 22-26. The court also
observed that the person who filed the notice of appeal in the common pleas court was
not designated as the administrator by the probate court until after he filed the notice of
appeal, noting “Appellant cites no authority to support the proposition that would allow
[this person’s] appointment to relate back to the time of the filing of the notice of appeal.”
Id. at ¶ 33.
{¶34} There is no indication a motion to substitute a party was filed in Saber once
the person who filed the notice of appeal was granted the letters of administration, and
that person did not appeal to the appellate court. Moreover, although the appellate court
failed to specifically reveal the date of the final administrative order, it appears by the time
the person was finally appointed as the personal representative of the decedent, the six-
month potential period for an extended appeal was expired (which is why the Saber court
was discussing relation back to the November appeal filed by the would-be administrator).
Accordingly, the cases cited by ODJFS are distinguishable.
{¶35} As we reject the ODJFS jurisdictional argument, we move on to address
Appellant’s assignment of error on appeal.
ASSIGNMENT OF ERROR
{¶36} Appellant’s sole assignment of error contends:
“The Trial Court erred by not taking into account the exigencies of the Pandemic,
when it was at its highest, in upholding the decision of [ODJFS] in not granting Medical
benefits to [Appellant].”
{¶37} R.C. 119.12(M) requires a common pleas court to uphold an administrative
decision on Medicaid if it is “supported by reliable, probative, and substantial evidence
and is in accordance with the law.” Estate of Atkinson v. Ohio Dept. of Job & Family
Servs., 144 Ohio St.3d 70, 2015-Ohio-3397, 40 N.E.3d 1121, ¶ 17. Legal questions are
reviewed de novo by the reviewing courts. Spitznagel v. State Bd. of Edn., 126 Ohio
St.3d 174, 2010-Ohio-2715, 931 N.E.2d 1061, ¶ 14.
{¶38} On factual questions, the court of common pleas “is confronted with the
issue of whether the decision is against the manifest weight of the evidence.” Arlen v.
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State of Ohio, State Med. Bd., 61 Ohio St.2d 168, 175, 399 N.E.2d 1251 (1980). The
common pleas court does not conduct a trial de novo but views the credibility of witnesses
and the weight of the evidence in the record while giving “due deference to the
administrative resolution of evidentiary conflicts.” University of Cincinnati v. Conrad, 63
Ohio St.2d 108, 110-111, 407 N.E.2d 1265 (1980).
{¶39} “The appellate court's review is even more limited than that of the trial court.”
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). “While it
is incumbent on the trial court to examine the evidence, this is not a function of the
appellate court. The appellate court is to determine only if the trial court has abused its
discretion i.e., being not merely an error of judgment, but perversity of will, passion,
prejudice, partiality, or moral delinquency.” Id. The appellate court cannot substitute its
judgment for that of the administrative agency or the common pleas court. Id.{¶40} The estate does not dispute that verification was lacking as to a QIT or trust
account and does not dispute there was, in fact, no trust established or account opened.
“The properly executed QIT document, proof of the establishment of the QIT account,
documentation of the required monthly deposit amount, and verification of monthly
deposits from an income source or sources into the QIT account, including efforts to have
income deposited directly into the QIT account, must be submitted along with the
application for Medicaid for an individual needing LTC services.” Ohio Adm.Code 5160:1-
6-03.2(I). “The establishment of the QIT must be documented, including the location of
the QIT account, the QIT account number, and details regarding who has access to the
QIT account. The title of the QIT account must clearly identify it as a QIT account in the
name of the individual.” Ohio Adm.Code 5160:1-6-03.2(G).
{¶41} “The administrative agency shall deny the individual's application when the
individual fails to provide the necessary information or verifications, or request assistance
and cooperate with obtaining verifications, within the time specified in the second
verification request.” Ohio Adm.Code 5160:1-2-01(H)(5)(c). Without a QIT and account,
the applicant was not eligible for Medicaid due to his gross monthly income, which was
well above the SIL.
{¶42} Nevertheless, the estate argues the applicant, through his son, made every
effort to comply with documentary requests but was thwarted by pandemic closures. The
estate notes the trial court would have been aware of pandemic closures, as courts were
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experiencing limited operation. The estate cites the son’s affidavit as allegedly showing
the impossibility of compliance with requests from MCDJFS.
{¶43} ODJFS says the estate fails to explain how a court can overlook the
applicant’s failure to establish a QIT or a trust account before his death, noting the agency
would have sought reimbursement from the QIT after death for benefits paid if a QIT
account existed. As the agency alternatively pointed out below, retroactivity can only be
applied for a limited time and only for periods in the institution that the applicant was
eligible by income. It is observed the estate’s claim in the common pleas court was based
on issues allegedly occurring in the days before the applicant’s death. ODJFS points out
the income-eligibility and QIT information was provided to the applicant and the son in
March 2020, and there was no reference (even in the untimely affidavit) to attempting to
establish a QIT earlier than July 2020.
{¶44} Regardless, as ODJFS emphasizes, the trial court rejected Appellant’s
pandemic impossibility argument by pointing to the prohibition on considering evidence
outside of the record and to waiver principles. The common pleas court does not conduct
a trial de novo and is limited by R.C. 119.12 as to the evidence it can consider. University
of Cincinnati, 63 Ohio St.2d at 110 (giving due deference to the administrative resolution
of evidentiary conflicts). This statute specifically states: “Unless otherwise provided by
law, in the hearing of the appeal, the court is confined to the record as certified to it by
the agency.” R.C. 119.12(K). The next sentence provides: “Unless otherwise provided
by law, the court may grant a request for the admission of additional evidence when
satisfied that the additional evidence is newly discovered and could not with reasonable
diligence have been ascertained prior to the hearing before the agency.” Id.
{¶45} The estate presented no argument for application of the second sentence
in division (K) of R.C. 119.12, and there is no indication its requirements were satisfied.
That is, there was no newly discovered evidence or evidence that could not have
reasonably been discovered prior to the hearing before the agency. Accordingly, the
common pleas court properly struck the son’s affidavit presented for the first time in the
estate’s merit brief in the common pleas court.
{¶46} With the affidavit stricken, ODJFS then points out the topic of impossibility
due to pandemic closures was not raised in the son’s letter to MCDJFS prior to the denial
decision or to the state hearing officer at the hearing where testimony was taken. The
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agency urges the common pleas court was reasonable in finding waiver of the issue. The
estate did not argue to the common pleas court and does not argue in the brief in this
appeal that the issue was timely raised administratively. (In fact, the brief in this court
does not directly challenge the application of waiver or the striking of the affidavit.)
{¶47} We note, in the administrative appeal of the state hearing decision, counsel
claimed in the notice of appeal that the hearing examiner ignored the “effects of COVID”
and referred to the son’s attempts to establish a QIT and the applicant’s “death two days
later.” The estate does not mention this or argue it was a preservation. ODJFS says this
was a vague argument and did not articulate a claim that the pandemic made establishing
a QIT impossible. Rather, the claim made it sound like the applicant died of COVID-19
two days after the son attempted to start the QIT process. Also, the establishment of the
QIT was distinct from the opening of a trust account as made clear in the March 26, 2020
paperwork packet provided to the applicant and the authorized representative. This
paperwork provided a link to a QIT template, a hotline number, and an advisement to
consult an attorney (if the applicant and authorized representative could not handle the
QIT establishment process themselves).
{¶48} In any event, the pandemic issue was not raised to MCDJFS. Instead, a
different argument was raised about the QIT; the son disclosed the bank said the trust
was a court matter and he then requested paperwork from the hotline. Moreover, there
is no assertion or indication the issue was raised at the initial state hearing, where the
son could have testified or presented the affidavit he first submitted on appeal to the
common pleas court. Issues which were not raised at the administrative level are waived
in the appeal to the court. BRT Transport LLC v. Ohio Dept. of Job & Family Servs., 10th
Dist. Franklin No. 14AP-800, 2015-Ohio-2048, ¶ 25; Southgate I & II, Inc. v. Ohio Dept.
of Health, 7th Dist. Mahoning No. 97-CA-182 (Nov. 16, 1999). See also 1609 Gilsey
Invests., Inc. v. Liquor Control Comm., 10th Dist. Franklin No. 07AP-1069, 2008-Ohio-
2795, ¶ 10 (“Errors which are not brought to the attention of the administrative agency by
objection or otherwise are waived and may not be raised on appeal.”), citing, e.g., Stores
Realty Co. v. City of Cleveland, Bd. of Bldg. Standards & Bldg. Appeals, 41 Ohio St.2d
41, 43, 322 N.E.2d 629 (1975) (failure to object to a matter in the administrative
proceeding waives the matter on appeal to a court).
Case No. 21 MA 0109
– 15 –
{¶49} “The rule compelling a party to present all legitimate issues before the
administrative tribunal is required in order to preserve the integrity of the proceedings
before that body and to endow them with a dignity beyond that of a mere shadow-play.”
State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 82, 679 N.E.2d 706 (1997)
(wasting judicial and administrative resources by permitting a party to raise the failure to
consider an issue on which the party remained silent). Accordingly, the common pleas
court did not legally err or abuse its discretion in applying the waiver doctrine.
{¶50} Lastly, in the event the issues were to be reached, the estate points out the
son’s letter to MCDJFS denied the existence of a life insurance policy through New York
Life. The estate then claims it is impossible to prove a negative, besides the son stating
there was no policy in his letter. ODJFS responds by pointing out the applicant’s bank
statement showed a premium was paid to this company just before the Medicaid
application was filed.
{¶51} “A life insurance policy is a countable resource to the policy owner for
medical assistance purposes if it generates a CSV [cash surrender value]. * * * The
individual must submit all policies that the individual and spouse own.” Ohio Adm.Code
5160:1-3-05.12(C)-(D). The March 2020 checklist advised that the “Proof of current value
of * * * life insurance” was a required outstanding verification and “If you are married, you
must submit the same information for your spouse (even if separated).” A verification
sent to MCDJFS showed the face value but not the cash or surrender value. The July
2020 checklist specifically advised the applicant that he was required to disclose the face
value, the cash value, and ownership of the New York Life policy and expressly pointed
to the Chase Bank statement showing the premium withdrawal.
{¶52} The son’s letter merely stated no policy was in the applicant’s name, without
stating the cash value of the policy or acknowledging it was owned by the spouse. This
is distinct from a situation where the agency generally asks for the value of any life
insurance policies for the applicant and spouse and the applicant replies by stating none
exist for either individual. ODJFS points out the policy’s cash value was not provided to
the agency at any point. A letter from the company that made the electronic bank
withdrawal could have been obtained if there was in fact, no policy related to either spouse
(just as the applicant obtained a letter from the other life insurance company to show cash
value after the prior verification merely showed face value). At oral argument, counsel
Case No. 21 MA 0109
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argued if the face value was known, then the county would have known the cash value
was some amount less than the face value (apparently presuming the amount would not
have affected the eligibility decision). We note Appellant’s sole argument on appeal to
the common pleas court about pandemic closures did not appear to encompass this
additional missing verification cited in the administrative appeal decision.
{¶53} Regardless, with an unfavorable decision on the lack of a QIT or the
required account, the issue of an additional lacking verification is irrelevant. There was
no QIT or trust account established. In the absence of these trust-related items, the
applicant never became eligible for Medicaid before he died because his income
exceeded the eligibility limits. The estate’s argument on appeal did not dispute these
facts and law. In sum, the common pleas court did not abuse its discretion in concluding
the administrative decision denying the application for Medicaid was supported by
reliable, probative, and substantial evidence and was in accordance with the law.
{¶54} For the foregoing reasons, we affirm the decision of the common pleas court
upholding the denial of Medicaid.
Waite, J., concurs.
D’Apolito, J., concurs.
Case No. 21 MA 0109
[Cite as Herubin v. Ohio Dept. of Job & Family Servs., 2022-Ohio-3243.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against the
Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.