[Cite as Bacon v. Ohio Dept. of Medicaid, 2019-Ohio-3226.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




STACEY BACON,                                         :

      Appellant,                                      :      CASE NO. CA2019-01-017

                                                      :           OPINION
   - vs -                                                          8/12/2019
                                                      :

OHIO DEPARTMENT OF MEDICAID,                          :

      Appellee.                                       :




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



Katherine J. Bockbrader, Assistant Attorney General, Health and Human Services Section,
30 East Broad Street, 26th Floor, Columbus, Ohio 43215, for appellee

Webster & Associates, Co., LPA, Geoffrey E. Webster, Mary L. Pisciotta, 17 South High
Street, Suite 770, Columbus, Ohio 43215, for appellant



        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
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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


1. R.C. 5160.31(B)(2) authorizes the Ohio Department of Job and Family Services to handle the administrative-
appeal process for appeals filed in accordance with R.C. 5101.35 on behalf of the Ohio Department of Medicaid.
Cook v. Ohio Dept. of Job and Family Services, 10th Dist. Franklin Nos. 14AP-852 and 14AP-853, 2015-Ohio-
4966, ¶ 7, fn. 2. See also Paczko v. Ohio Dept. of Job and Family Services, 8th Dist. Cuyahoga No. 105783,
2017-Ohio-9024, ¶ 3, fn. 1 ("Although Ohio's Medicaid program is administered by the Ohio Department of
Medicaid, the Ohio Department of Job and Family Services acts as the Medicaid department's agent for
administrative appeals").

2. "Waiver nursing services" are those "services provided to an individual who requires the skills of a registered
nurse or licensed practical nurse working at the direction of a registered nurse." Ohio Adm.Code 5123:2-9-
39(20). Waiver nursing services do not include:

                 (a) Services delegated in accordance with Chapter 4723. of the Revised Code
                 and rules adopted thereunder, and performed by persons who are not licensed
                 nurses in accordance with Chapter 4723. of the Revised Code;

                 (b) Services that require the skills of a psychiatric nurse;

                 (c) Visits performed for the purpose of conducting a registered nurse
                 assessment as set forth in rule 5160-12-08 of the Administrative Code including
                 but not limited to, an outcome and assessment information set or any other
                 assessment;

                 (d) Registered nurse consultations as set forth in rule 5160-12-08 of the
                 Administrative Code including but not limited to, those performed by registered
                 nurses for the sole purpose of directing licensed practical nurses in the
                 performance of waiver nursing services or directing personal care aides or
                 home health aides employed by a medicare-certified home health agency or
                 otherwise-accredited agency;

                 (e) Visits performed for the sole purpose of meeting the home care attendant
                 service registered nurse visit requirements set forth in rules 173-39-02.24 and
                 5160-46-04.1 of the Administrative Code; or


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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



                 (f) Services performed in excess of the number of hours approved pursuant to,
                 and as specified in, the individual service plan.

Ohio Adm.Code 5123:2-9-39(20)(a)-(f).

3. "Private duty nursing (PDN)" is a "continuous nursing service that requires the skills of and is performed by
either a registered nurse (RN) or a licensed practical nurse (LPN) at the direction of a registered nurse. * * * A
covered PDN visit must * * * be more than four hours in length but less than or equal to twelve hours in length per
nurse, on the same date or during a twenty-four-hour time period." Ohio Adm.Code 5160-12-02(A).

4. Since 2003, Ohio law has authorized HPC providers to perform certain health related activities and to
administer medications, upon completion of required training. See R.C. 5123.42. "'Homemaker/personal care'
means the coordinated provision of a variety of services, supports, and supervision necessary to ensure the
health and welfare of an individual who lives in the community." Former Adm.Code 5123:2-9-30(B)(11). HPC
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                                                                                       Butler CA2019-01-017

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



providers may provide "[m]edical and health care services that are integral to meeting the daily needs of the
individual such as routine administration of medication or tending to the needs of individuals who are ill or require
attention to their medical needs on an ongoing basis." Former Adm.Code 5123:2-9-30(B)(11)(f). See also Ohio
Adm.Code 5123-9-30(B)(10).

5. A "delegation" is "the transfer of responsibility for the performance of a selected nursing task from a licensed
nurse authorized to perform the task to an individual who does not otherwise have the authority to perform the
task." Ohio Adm.Code 4723-13-01(B).
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                                                                                      Butler CA2019-01-017

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



6. PRN medication derives its name from the Latin phrase pro re nata, meaning "as needed." "As-needed
medication" is "any medication that is not scheduled to be administered at a routine time, but is given in response
to a resident's complaint or expression of discomfort or other indication of a specified condition." Ohio
Adm.Code 4723-27-01(C).
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                                                                        Butler CA2019-01-017

severity of Ms. Bacon's medical needs and the level of care necessary to meet those needs."

The magistrate concluded that the "[a]dministrative [a]ppeal decision * * * challenged by

[Bacon was] supported by reliable, probative, and substantial evidence."

       {¶ 11} Bacon filed objections to the magistrate's decision on October 12, 2018,

arguing that the decision was contrary to law as it permitted HPC providers, as unlicensed

personnel, to administer PRN medication when HPC providers were not authorized to do so

under Ohio law or by Bacon's plan of care. Bacon contended that two of her medications,

Ativan and Diastat, are controlled substances which make the administration of the

medication nondelegable and prohibited from administration by HPC providers. Bacon also

objected to the magistrate's decision on the basis that the magistrate and DODD had failed to

give proper deference to Bacon's treating and examining physicians regarding the medical

necessity of PDN services.

       {¶ 12} On October 17, 2018, five days after Bacon filed her objections, the common

pleas court adopted the magistrate's decision. The court's entry stated, in whole, as follows:

              This matter is before the Court upon a Magistrate's Decision filed
              in this case on October 1, 2018. The Court finds that the
              Magistrate has issued a Decision, and a copy of the Magistrate's
              Decision has been filed herein. For the reasons more fully set
              forth within the Magistrate's Decision, the Court hereby ADOPTS
              the Magistrate's Decision in its entirety in the manner set forth in
              the Decision.

              There is no just reason for delay.

              IT IS SO ORDERED.

       {¶ 13} The court's entry adopting the magistrate's decision was not served on the

parties. As a result, on January 19, 2019, the common pleas court set forth an entry

directing the clerk of courts to issue service of its October 17, 2018 "Entry Adopting

Magistrate's Decision" on the parties. From this entry Bacon timely appealed, raising two

assignments of error for review.
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                                                                         Butler CA2019-01-017

       {¶ 14} Assignment of Error No. 1:

       {¶ 15} THE COMMON PLEAS COURT ERRED BY VIOLATING RULE 53.

       {¶ 16} In her first assignment of error, Bacon argues the common pleas court erred by

adopting the magistrate's decision without conducting an independent review of the

magistrate's recommendations or ruling on her objections.

       {¶ 17} Civ.R. 53(D)(4)(d) provides that

              [i]f one or more objections to a magistrate's decision are timely
              filed, the court shall rule on those objections. In ruling on
              objections, the court shall undertake an independent review as to
              the objected matters to ascertain that the magistrate has properly
              determined the factual issues and appropriately applied the law.
              Before so ruling, the court may hear additional evidence but may
              refuse to do so unless the objecting party demonstrates that the
              party could not, with reasonable diligence, have produced that
              evidence for consideration by the magistrate.

(Emphasis added.)

       {¶ 18} Therefore, "Civ.R. 53(D)(4)(d) imposes a mandatory duty on the trial court to

dispose of a party's timely-filed objections to a magistrate's decision." Lynch v. Lynch, 12th

Dist. Warren No. CA2006-12-145, 2007-Ohio-7083, ¶ 8. Although not required to "address

each and every portion of an objection raised by [a] party," the court is nonetheless required

to "rule on each objection." (Emphasis sic.) Pietrantano v. Pietrantano, 12th Dist. Warren

No. CA2013-01-002, 2013-Ohio-4330, ¶ 20. A trial court's failure to rule on objections and to

conduct an independent review of the magistrate's decision as required by Civ.R. 53(D)(4)(d)

constitutes an abuse of discretion. Ohio Bar Liab. Ins. Co. v. CCF Dev., LLC, 12th Dist.

Butler Nos. CA2017-12-170 and CA2017-12-175, 2018-Ohio-3988, ¶ 22.

       {¶ 19} "Ordinarily, a reviewing court will presume that the trial court performed an

independent review of the magistrate's decision." Id. at ¶ 23, citing Kairn v. Clark, 12th Dist.

Warren Nos. CA2013-06-059 and CA2013-08-071, 2014-Ohio-1890, ¶ 11. Therefore, "the

party asserting error bears the burden of affirmatively demonstrating the trial court's failure to
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                                                                                      Butler CA2019-01-017

perform its duty of independent analysis." Pietrantano at ¶ 14. "[S]imply because a trial

court adopted the magistrate's decision does not mean that the court failed to exercise

independent judgment." Id. "A trial court may adopt a magistrate's decision in whole or in

part pursuant to Civ.R. 53(D)(4)(b) so long as the court fully agrees with the magistrate's

findings 'after weighing the evidence itself and fully substituting its judgment for that of the

[magistrate.]'" Kairn at ¶ 11, quoting Pietrantano at ¶ 14.

        {¶ 20} Under the facts presented in this case, we find that Bacon has affirmatively

demonstrated that the trial court failed to perform its duty of an independent review and failed

to rule on her objections. Bacon's objections were timely filed on Friday, October 12, 2018.

Five days later, the trial court adopted the magistrate's decision in a brief entry that did not

(1) note that objections had been filed, (2) mention or discuss the merits of the objections, (3)

rule on the objections, (4) indicate it had conducted an independent review of the matters

objected to, or (5) reference any specific portion of the transcript or any exhibit admitted into

evidence that would tend to demonstrate the court conducted the requisite independent

review.7

        {¶ 21} Accordingly, as the trial court failed to comply with the requirements of Civ.R.

53(D)(4)(b), we find the court abused its discretion. See Lynch, 2007-Ohio-7083 at ¶ 8-9;

Batty v. Batty, 12th Dist. Butler No. CA2017-10-151, 2018-Ohio-4934, ¶ 9. Bacon's first

assignment of error is therefore sustained, the trial court's decision adopting the magistrate's

October 1, 2018 decision is reversed, and the matter is remanded for the trial court to review

and rule on Bacon's objections in accordance with Civ.R. 53(D)(4)(d).


7. Compare the present case to Hampton v. Hampton, 12th Dist. Clermont No CA2007-03-033, 2008-Ohio-868,
¶ 16-17, where we found that although the trial court had not cited to any specific portion of the transcript or any
exhibit admitted into evidence in overruling appellant's objections, the court had nonetheless demonstrated it had
conducted an independent analysis where it stated the "objection is not well taken as the Court finds the Decision
of the Magistrate to be supported by the evidence presented." Unlike in Hampton, the trial court did not mention
that any objection had been filed, did not rule on the objection, and did not indicate it had independently reviewed
any evidence presented in the case.
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                                                                     Butler CA2019-01-017

       {¶ 22} Assignment of Error No. 2:

       {¶ 23} THE TRIAL COURT ERRED BY AFFIRMING APPELLEE'S ELIMINATION OF

BACON'S PDN HOURS.

       {¶ 24} In her second assignment of error, appellant argues the trial court erred in

affirming the ODJFS's decision to eliminate 84 hours of weekly private duty nursing services

on the basis that such services were not medically necessary and Bacon's needs could be

met through the use of HPC providers with medication certification and nursing task

delegation. However, in light of our resolution of Bacon's first assignment of error, we find

this assignment of error is moot and need not be addressed. See App.R. 12(A)(1)(c).

       {¶ 25} Judgment reversed and the matter remanded for further proceedings consistent

with this opinion.


       RINGLAND and PIPER, JJ., concur.




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