[Cite as Mocznianski v. Ohio Dept. of Medicaid, 2020-Ohio-165.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

Terrence L. Mocznianski,                            :

                Appellant-Appellant,                :
                                                                     No. 18AP-894
v.                                                  :              (C.P.C. No. 18CV-4855)

Ohio Department of Medicaid,                        :             (REGULAR CALENDAR)

                Appellee-Appellee.                  :




                                           D E C I S I O N

                                   Rendered on January 21, 2020


                On brief: The DuBose Law Firm, LLC, and Shakeba DuBose,
                for appellant. Argued: Shakeba DuBose.

                On brief: Dave Yost, Attorney General, Stephanie Deters,
                and Roger Carroll, for appellee. Argued: Stephanie Deters.

                  APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} Appellant, Terrence L. Mocznianski, appeals the October 31, 2018 decision
and entry of the Franklin County Court of Common Pleas, which affirmed the May 24, 2018
final adjudication order issued by appellee, Ohio Department of Medicaid ("ODM"). For
the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} This matter arises out of a determination that appellant had been overpaid
for services he provided as caregiver to his disabled sibling. On February 22, 2017, the Ohio
Department of Developmental Disabilities ("ODDD") sent appellant, by certified mail, a
notice of overpayment and request for voluntary repayment. In the notice, ODDD advised
appellant it had completed a Home and Community-Based Services Medicaid waiver
No. 18AP-894                                                                              2


review ("waiver review") of his services for the period from July 1, 2011 through June 30,
2014.     Pursuant to R.C. 5164.58(B)(1) and Ohio Adm.Code 5160-71-02(A), ODDD
requested appellant make a voluntary repayment in the amount of $94,293.76, in addition
to accrued interest in the amount of $9,377.71 and daily interest in the amount of $9.69
from the date of the notice until receipt of payment. On March 20, 2017, appellant sent a
letter to ODDD disputing the alleged overpayment.
        {¶ 3} On April 26, 2017, ODDD sent appellant notice of intended action and
opportunity for hearing. In the notice, ODDD stated that, because it had been unable to
secure voluntary repayment or enter into a negotiated settlement, it was proposing the
director of ODM issue an adjudication order finding appellant received an overpayment.
On May 22, 2017, appellant sent a letter disputing the proposed adjudication order and
requesting a hearing pursuant to R.C. Chapter 119.
        {¶ 4} On March 6, 2018, an ODDD hearing examiner held a hearing on the matter.
At the hearing, Halina Schroeder, audit chief of ODDD, testified she supervised the ODDD
employees who conducted the Medicaid waiver review of appellant's services. Schroeder
explained that Medicaid waiver reviews are reviews of claims billed by and paid to Medicaid
providers for services to individuals with developmental disabilities. In the review, ODDD
employees ensure providers have submitted service documentation validating the nature
and extent of services provided in compliance with the requirements in the Ohio
Administrative Code.
        {¶ 5} Schroeder testified that auditors utilize a risk-based approach when selecting
providers for review. Appellant was selected under this approach because he was a highly
paid provider who was providing a significant number of hours consistently throughout the
waiver review period, which encompassed July 1, 2011 through June 30, 2014. Auditors
conducted the review on the first month of each quarter of the review period. Schroeder
testified that appellant, during the review period, provided "homemaker/personal care" to
his sibling, who lived with him. During the review period, appellant received a total of
$283,270.00 for 69,600 units of service, each of which comprised a 15-minute billing
period.
        {¶ 6} According to Schroeder, an ODDD auditor, on September 16, 2016, sent
appellant a waiver review notification letter informing him that he had been selected for a
No. 18AP-894                                                                                           3


waiver review. The ODDD auditor requested from appellant service documentation
corresponding to the waiver review time period. The ODDD auditor also requested from
the Lucas County Board of Developmental Disabilities ("LCBDD"), the county-level agency
responsible for providing training to providers and completing review processes on behalf
of ODDD, documentation for the relevant time period. Thereafter, another ODDD auditor
reviewed the documentation and made findings that were incorporated into a report.
        {¶ 7} According to Schroeder, on February 22, 2017, ODDD sent by certified mail
a notice, which was admitted into the record, to appellant of the completion of the waiver
review report. ODDD attached to the notice the waiver review report in addition to relevant
statutory and administrative code provisions. ODDD also attached to the notice an invoice
and a request for voluntary repayment of the overpayment.
        {¶ 8} Schroeder testified that, ODDD, in the waiver review report, found there were
23,168 units of provided service that were undocumented or unsupported in violation of
the applicable provisions of the Ohio Administrative Code, resulting in an overpayment
amount of $94,293.76, plus interest. In the waiver review report, ODDD specifically found
that the service documentation lacked the following: (1) "Number of Units of Delivered
Service (APC)"; (2) "Arrival and Departure Times (APC, through 4/18/12)"; and (3) "Begin
and End Times of Delivered Service (APC, effective 4/19/12)." (ODDD Hearing, State's Ex.
15 at 14.)1
        {¶ 9} Schroeder testified that without the inclusion of the number of units on the
service documentation "it's difficult to determine whether or not the correct number of
units was billed and/or determine how many units of service were actually provided."
(Mar. 6, 2017 Tr. at 22.) Schroeder further testified that appellant was not authorized to
provide 24-hour service, because the "individual service plan specifically stated that natural
supports were also to be provided to the individual, and 'natural supports' is when family
or friends provide * * * care for the individual as a normal course of [the] family unit."
(Mar. 6, 2017 Tr. at 31-32.) Schroeder stated that natural supports were not eligible for
payment.




1We note that the February 22, 2017 notice identified "APC" as the "service code" for "Homemaker Personal
Care." (State's Ex. 15 at 1.)
No. 18AP-894                                                                               4


       {¶ 10} Schroeder testified that after the waiver review report was sent to appellant,
ODDD provided appellant with an opportunity to submit additional documentation.
Appellant did not submit any additional service documentation but, instead, provided
documentation that he claimed showed the LCBDD had informed him that his
documentation was acceptable. However, the documentation provided by appellant did
not alter the findings because it was either outside the applicable review period or did not
relate to the missing information from appellant's service documentation.
       {¶ 11} According to Schroeder, LCBDD was responsible for completing compliance
reviews for ODDD's Office of Provider Standards and Review. Schroeder stated that
compliance reviews did not serve the same purpose as the audits performed for waiver
reviews because LCBDD did not review "the documentation to any claims paid or any
billing submitted by the providers." (Mar. 6, 2017 Tr. at 38.) Furthermore, unlike waiver
reviews, the compliance reviews did not involve the issuance of recoverable findings and
typically only covered a three-month period of the provider's documentation. As a result,
the compliance reviews were not determinative of the findings made under a waiver review.
Schroeder stated that the "county boards are responsible for assisting providers and
providing training as designated by [ODDD], but ultimately it's the provider's responsibility
to be compliant and knowledgeable of the rules in relation to the services that they're
providing and being paid for." (Mar. 6, 2017 Tr. at 38.)
       {¶ 12} Schroeder testified that, during the waiver review process, waiver review
auditors found LCBDD, on behalf of the ODDD Office of Provider Standards and Review,
completed a compliance summary report of appellant's service documentation. In the
compliance summary report, which was dated September 19, 2012 within the review
period, the LCBDD reviewer found appellant was not aware he had to include the number
of units of provided service. Appellant was also not aware that he was required to provide
the arrival and departure times. In the report, the reviewer indicated that appellant would,
beginning October 17, 2012, revise his documentation to comply with the applicable rules
by including the place of service, group size, number of units of provided service, and the
beginning and end times of the provided service.
       {¶ 13} Appellant did not appear at the hearing but, instead, submitted written
arguments and documents, which were admitted into the record and considered by the
No. 18AP-894                                                                              5


hearing examiner. On March 20, 2018, the ODDD hearing examiner issued a report and
recommendation, recommending the director of ODM issue an adjudication order of
overpayment to appellant in the amount of $94,293.76, in addition to accrued interest in
the amount of $15,635.97 and daily interest in the amount of $11.63. On April 4, 2018,
appellant filed an objection to the hearing examiner's report and recommendation. On
May 24, 2018, the director of ODM issued an adjudication order finding appellant received
an overpayment in the amount of $94,293.76, in addition to interest as set forth in the
hearing notice.
       {¶ 14} On June 7, 2018, appellant appealed to the common pleas court. On
October 31, 2018, after being fully briefed by the parties, the common pleas court filed its
decision and entry affirming the May 24, 2018 decision of the ODM director.
II. Assignments of Error
       {¶ 15} Appellant appeals and assigns the following two errors for our review:
              [I.] The Franklin County Court of Common Pleas erred in
              finding that Mr. Mocznianski's due process rights were not
              violated when the Hearing Examiner erroneously attributed
              evidence to Mr. Mocznianski and then drew improper
              inferences from said evidence.

              [II.] The Franklin County Court of Common Pleas erred in
              failing to determine that estoppel applies against the State in
              this instance where the record demonstrates that the State
              uses terms interchangeably and where agents of the State
              provide guidance that conflicts with applicable administrative
              rule requirements.

For ease of discussion, we consider appellant's assignments of error out of order.
III. Analysis
       {¶ 16} In his assignments of error, appellant asserts the common pleas court erred
in affirming the ODM director's final adjudication order requiring appellant to repay the
Medicaid overpayment. We begin by reviewing the applicable law and precedent.
A. Applicable Law
       {¶ 17} R.C. 5164.58 provides state agencies in contract with ODM for the
administration of components of the Medicaid program with the authority to commence
No. 18AP-894                                                                                               6


actions to recover Medicaid overpayments made to a Medicaid provider.2 In recovering an
overpayment pursuant to R.C. 5164.58, the state agency must first attempt to obtain
recovery of the overpayment by notifying the Medicaid provider of the overpayment and
requesting voluntary repayment. R.C. 5164.58(B)(1). If the state agency is unable to obtain
voluntary repayment, the state agency must provide the Medicaid provider with notice of
an opportunity for a hearing in accordance with R.C. Chapter 119. R.C. 5164.58(B)(2). If
the Medicaid provider timely requests a hearing, the state agency must conduct the hearing
and then transmit its hearing officer's report and recommendation to the ODM director for
final adjudication. R.C. 5164.58(B)(2).
        {¶ 18} Here, the period of time relevant to this appeal, namely the waiver review
period from July 1, 2011 through June 30, 2014, encompasses multiple revisions to the
controlling administrative code provisions. Former Ohio Adm.Code 5123:2-9-05, effective
from the beginning of the waiver review period until April 19, 2012, provided that the
purpose of the rule was to "set[] forth the requirements of the information that must be
maintained by the provider of services in order to fully disclose the nature and extent of the
services delivered" by Medicaid providers. Former Ohio Adm.Code 5123:2-9-05(A).
Furthermore, former Ohio Adm.Code 5123:2-9-05(B) provided in pertinent part as follows:
                "Service documentation" means the maintenance of all
                records and information on one or more documents,
                including documents that can be printed from electronic
                software programs, in such a manner as to fully disclose the
                nature and extent of the services delivered and must include
                each of the following items to validate medicaid
                reimbursement:

                ***

                (9) Number of units of the delivered service or continuous
                amount of uninterrupted time during which the service was
                provided;

                (10) Group size in which the services were delivered as defined
                in paragraph (D)(12) of rule 5123:2-9-06 of the
                Administrative Code;


2See R.C. 5162.35 (providing authority for ODM to enter into contracts with other state agencies or political
subdivisions to administer components of the Medicaid program); R.C. 5164.57 (providing for recovery by
ODM of Medicaid overpayments).
No. 18AP-894                                                                                            7


                 (11) Arrival and departure times of the provider of service's
                 site visit to the recipient's location or of the recipient's visit to
                 the provider of service's location[.]

        {¶ 19} Former Ohio Adm.Code 5123:2-9-30, as effective between April 19, 2012 and
the end of the waiver review period,3 provided that its purpose was to "define
homemaker/personal care and set forth provider qualifications, requirements for service
delivery and documentation of services, and payment standards for the service." Former
Ohio Adm.Code 5123:2-9-30(A). Furthermore, former Ohio Adm.Code 5123:2-9-30
provided in pertinent part as follows:
                 (B)(20) "Service documentation" means all records and
                 information on one or more documents, including documents
                 that may be created or maintained in electronic software
                 programs, created and maintained contemporaneously with
                 the delivery of services, and kept in a manner as to fully
                 disclose the nature and extent of services delivered that shall
                 include the items delineated in paragraph (E) of this rule to
                 validate payment for medicaid services.

                 ***

                 (E) Service documentation for homemaker/personal care
                 shall include each of the following to validate payment for
                 medicaid services:

                 ***

                 (9) Group size in which the service was provided.

                 ***
                 (11) Number of units of the delivered service or continuous
                 amount of uninterrupted time during which the service was
                 provided.

                 (12) Begin and end times of the delivered service.

B. Standard of Review
        {¶ 20} In an administrative appeal under R.C. 119.12, a common pleas court "may
affirm the order of the agency complained of in the appeal if it finds, upon consideration of

3 Although not
             relevant to the disposition of this matter, we note that former Ohio Adm.Code 5123:2-9-30 was
amended twice during the relevant time period, once effective September 1, 2013 and again on January 1,
2014.
No. 18AP-894                                                                              8


the entire record and any additional evidence the court has admitted, that the order is
supported by reliable, probative, and substantial evidence and is in accordance with law."
R.C. 119.12(M). See Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619 (1993). To be "reliable,"
evidence must be dependable and true within a reasonable probability. Our Place, Inc. v.
Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571 (1992). See also Rupert v. Ohio Dept.
of Rehab. & Corr., 10th Dist. No. 17AP-173, 2017-Ohio-8377, ¶ 9. To be "probative,"
evidence must be relevant or, in other words, tend to prove the issue in question. Id. To be
"substantial," evidence must have importance and value. Id. "[A]n administrative appeal
to the common pleas court does not provide a trial de novo, but rather 'the Court of
Common Pleas must give due deference to the administrative resolution of evidentiary
conflicts.' " (Internal citations omitted.) Capital Care Network of Toledo v. Ohio Dept. of
Health, 153 Ohio St.3d 362, 2018-Ohio-440, ¶ 25, quoting Univ. of Cincinnati v. Conrad,
63 Ohio St.2d 108, 110-11 (1980).
       {¶ 21} The standard of review for a court of appeals in an administrative appeal is
even more limited. As to factual issues, we must determine whether the common pleas
court abused its discretion. Avalon Resort & Spa LLC v. State Unemp. Comp. Rev. Comm.,
10th Dist. No. 18AP-212, 2018-Ohio-4294, ¶ 20, citing Miracle Home Health Care, LLC v.
Ohio Dept. of Job & Family Servs., 10th Dist. No. 12AP-318, 2012-Ohio-5669, ¶ 18. An
abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). However, when determining
whether the agency's decision was in accordance with law, we exercise plenary review.
Avalon at ¶ 20, citing BNA Constr., Ltd. v. Dir. of Ohio Dept. of Job & Family Servs., 10th
Dist. No. 16AP-317, 2017-Ohio-7227, ¶ 25, citing BRT Transp., LLC v. Ohio Dept. of Job &
Family Servs., 10th Dist. No. 14AP-800, 2015-Ohio-2048, ¶ 15.
C. Second Assignment of Error—Whether Estoppel Applies
       {¶ 22} In his second assignment of error, appellant asserts the common pleas court
erred in affirming the final adjudication order because county and state agents had
previously assured him that his service documentation was adequate. Although appellant
only frames his arguments regarding estoppel in general terms, he relies on cases involving
both equitable and promissory estoppel in support of his arguments.
No. 18AP-894                                                                                 9


       {¶ 23} The doctrines of equitable and promissory estoppel, while related, contain
distinctions. Under the doctrine of equitable estoppel, " 'a representation of past or existing
fact made to a party who relies upon it reasonably may not thereafter be denied by the party
making the representation if permitting the denial would result in injury or damage to the
party who so relies.' " Hortman v. Miamisburg, 110 Ohio St.3d 194, 2006-Ohio-4251, ¶ 20,
quoting 4 R. Lord, Williston on Contracts, Section 8:3, 28-31 (4th Ed.1992). " 'The purpose
of equitable estoppel is to prevent actual or constructive fraud and to promote the ends of
justice.' " Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, ¶ 43,
quoting Ohio State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143, 145 (1990). " 'A prima
facie case of equitable estoppel requires proof of (1) a factual representation that, (2) is
misleading, (3) induces actual reliance that is reasonable and in good faith, and (4) causes
detriment to the relying party.' " Garb-Ko, Inc. v. Benderson, 10th Dist. No. 12AP-430,
2013-Ohio-1249, ¶ 17, quoting Hudson v. Petrosurance, Inc., 10th Dist. No. 08AP-1030,
2009-Ohio-4307, ¶ 38, citing Ruch v. Ohio Dept. of Transp., 10th Dist. No. 03AP-1070,
2004-Ohio-6714, ¶ 14.
       {¶ 24} Promissory estoppel is defined as " '[a] promise which the promisor should
reasonably expect to induce action or forbearance on the part of the promisee or a third
person and which does induce such action or forbearance is binding if injustice can be
avoided only by enforcement of the promise.' " Hortman at ¶ 23, quoting 1 Restatement of
the Law 2d, Contracts, Section 90, at 242 (1981). In order to establish a claim for
promissory estoppel, the party must prove " '(1) a clear, unambiguous promise, (2) that the
person to whom the promise was made relied on the promise, (3) that reliance on the
promise was reasonable and foreseeable, and (4) that the person claiming reliance was
injured as a result of reliance on the promise.' " Garb-Ko at ¶ 18, quoting Ford Motor Credit
Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601, ¶ 96 (10th Dist.), citing Pappas v.
Ippolito, 177 Ohio App.3d 625, 2008-Ohio-3976, ¶ 55 (8th Dist.). See Malempati v. Indep.
Inpatient Physicians, Inc., 10th Dist. No. 12AP-565, 2013-Ohio-3543, ¶ 25. "Thus, the key
distinction between the two doctrines [of promissory and equitable estoppel] is whether the
estoppel arises from a promise and not a misstatement of fact." Hortman at ¶ 24.
       {¶ 25} The Supreme Court of Ohio has held that "as a general rule, the principle of
estoppel does not apply against a state or its agencies in the exercise of a governmental
No. 18AP-894                                                                               10


function." Frantz at 145-46. See Hortman at ¶ 25 (holding that "the doctrines of equitable
estoppel and promissory estoppel are inapplicable against a political subdivision when the
political subdivision is engaged in a governmental function"); Sun Refining & Marketing
Co. v. Brennan, 31 Ohio St.3d 306, 307 (1987). Underlying this general rule is the rationale
that "[a] properly functioning government cannot tolerate individual state actors binding
the state to actions that exceed or contravene its authority." Ohio Assn. of Pub. School
Employees v. School Employees Retirement Sys. Bd., 10th Dist. No. 04AP-136, 2004-Ohio-
7101, ¶ 49.
       {¶ 26} Here, pursuant to the authority granted by R.C. 5164.58, ODDD was
performing a government function by identifying a Medicaid overpayment to a provider
and commencing an action to recover the overpayment. See Cook v. Ohio Dept. of Job &
Family Servs., 10th Dist. No. 14AP-852, 2015-Ohio-4966, ¶ 38. Appellant does not contest
that ODDD and ODM were acting in a governmental function in this matter but, instead,
provides citation to two cases in arguing that an exception to the general rule applies.
       {¶ 27} First, appellant cites to Ormet Corp. v. Lindley, 69 Ohio St.2d 263 (1982), a
per curiam decision of the Supreme Court of Ohio, in which the court applied an exception
to the general rule that estoppel " 'does not apply against the state with regard to a taxing
statute.' " (Emphasis added.) Ormet at 265, quoting Am. Handling Equip. Co. v. Kosydar,
42 Ohio St.2d 150, 153 (1975). In Ormet, the court considered whether equitable estoppel
operated to prevent the state from assessing taxes retroactively upon activities that, for a
period of over 20 years, had been found by a named tax agent to be exempt from taxation.
As rationale for applying an exception, the court stated that " 'where a long-established
practice has been followed, such administrative practice does have much persuasive
weight.' " Id. at 266, quoting Recording Devices v. Bowers, 174 Ohio St. 518, 520 (1963).
       {¶ 28} Importantly, the exception in Ormet was specifically recognized with regard
to a "taxing statute." Id. at 265. As a result, we find Ormet to be distinguishable from the
facts in this case. Nonetheless, even if we were to consider the evidence presented by
appellant, he fails to demonstrate a longstanding administrative practice of the kind found
in Ormet.
       {¶ 29} In his brief before this court, appellant specifically points to two
communications he allegedly received from county and state agents on October 12, 2015
No. 18AP-894                                                                               11


and November 4, 2016.          Appellant contends these communications demonstrate
assurances on the part of county and state agents that his documentation was in compliance
with the applicable provisions of the administrative code. Appellant argues that "the fact
that he has been told these things as recent as October 2015 and November 2016, supports
that county agents acting on behalf of the state agency have said the same or similar things
over the past 13 years." (Appellant's Brief at 31.) Contrary to appellant's contention,
nothing in the record supports that the practice predated the documents on which appellant
relies. Indeed, the provider compliance review dated September 19, 2012 and testimony
from Schroeder about the same provides evidence that appellant had been previously
informed his documentation was not in compliance with applicable administrative code
provisions. Thus, the administrative practice in Ormet, which continued unchallenged for
over 20 years, cannot be considered comparable to the period in this matter. Ormet at 266.
Therefore, because appellant has failed to demonstrate a longstanding administrative
practice, we cannot find the exception in Ormet applies in the present case. Weiss v.
Limbach, 64 Ohio St.3d 79, 81 (1992); Besl Corp. v. Pub. Util. Comm., 45 Ohio St.2d 146,
150 (1976); Cleveland State Univ. v. Cleveland Elec. Illum. Co., 8th Dist. No. 52689 (Oct.
15, 1987).
       {¶ 30} Next, appellant cites to our decision in Pilot Oil Corp. v. Ohio Dept. of
Transp., 102 Ohio App.3d 278 (10th Dist.1995), in which we found that "promissory
estoppel applies against the state" where "the state had full opportunity to make an
informed decision" and "(1) the state uses its discretion in the interpretation of a law or
rule, (2) the state's interpretation is not violative of legislation passed by the General
Assembly of Ohio, and (3) the elements of promissory estoppel are otherwise met." Pilot
Oil at 283. Here, appellant fails to meet the third listed requirement of Pilot Oil because he
fails to demonstrate that a state agent made "a clear, unambiguous promise," an element of
promissory estoppel. Garb-Ko at ¶ 18. Appellant's claims that ODDD and ODM "waive the
applicability of certain rules and use certain terms interchangeably" are not sufficient to
demonstrate a clear, unambiguous promise. (Appellant's Brief at 30-31.) As a result,
appellant cannot meet the requirements for application of the doctrine of promissory
estoppel and we cannot find that the exception in Pilot Oil applies in this case. Kistler v.
Conrad, 10th Dist. No. 04AP-1095, 2006-Ohio-3308, ¶ 28 (finding that Ohio Bureau of
No. 18AP-894                                                                             12


Workers' Compensation's "certification of appellee was not a promise of continued
certification").
       {¶ 31} Accordingly, we overrule appellant's second assignment of error.
D. Whether Appellant's Due Process Rights Were Violated
       {¶ 32} In his first assignment of error, appellant asserts the common pleas court
erred in affirming the final adjudication order because his due process rights were violated
by the hearing examiner's erroneous attribution of evidence to appellant in the fourth
finding of fact in the hearing examiner's report and recommendation. Appellant contends
that he was prejudiced by the errors in the fourth finding of fact and improper inferences
drawn therefrom.
       {¶ 33} The hearing examiner, in the fourth finding of fact in the March 20, 2018
report and recommendation, stated:
               Appellant further submitted a summary report of a provider
               compliance review on September 19, 2012, during the review
               period. Technical assistance was given to Appellant regarding
               service delivery documentation. Appellant submitted a plan of
               compliance which states: "As of 10/17/12, revised H/PC
               documentation sheet will be implemented. Place of Service,
               Group Size, Number of units of the delivered service and begin
               and end times of the delivered service will be documented
               according to rule." (State's Exhibit 14, p. 2)
(Report & Recomm. at 15-16.) Appellant contends this finding of fact was in error because
ODDD submitted the September 19, 2012 summary report into evidence, not appellant.
Furthermore, appellant contends an agent of the state completed the September 19, 2012
summary report, not appellant. Appellant also contends there was no evidence that
technical assistance was given to appellant or that appellant submitted a plan of
compliance.
       {¶ 34} The common pleas court found the misattribution of the submission to
appellant was not a violation of due process because it "could be a mere scrivener[']s error
and nothing more." (Decision at 7.) The trial court also found there was no internal
inconsistency in the findings of the hearing examiner as a result of the hearing examiner's
consideration of ODDD's exhibit 14.
       {¶ 35} On review, it is clear the hearing examiner erred in stating in the fourth
finding of fact that appellant submitted the September 19, 2012 summary report. This
No. 18AP-894                                                                                  13


statement by the hearing examiner is contradicted in the same finding of fact by the hearing
examiner's citation of "State's Exhibit 14." (Report & Recomm. at 16.) Additionally, the
hearing examiner listed the "[c]opy of Appellant's 2012 provider compliance review and
plan of compliance" under "State's Exhibits" in a list of the documentary evidence
considered. (Report & Recomm. at 13.)
       {¶ 36} However, regardless of any error resulting from the fourth finding of fact in
the hearing examiner's report, appellant cannot demonstrate prejudice. The hearing
examiner ultimately found the evidence related to provider compliance reviews was not
determinative of the matter. Instead, the hearing examiner found the ultimate issue was
"whether the appellant's documentation is sufficient to support the claim or claims for
payment according to the requirements of the [applicable administrative code provisions]."
(Report & Recomm. at 18.) The hearing examiner concluded that appellant's "fail[ure] to
indicate the number of units or the beginning and ending times of service, or to indicate '24
hours,' is insufficient to meet the requirement of the rule, because part of the services
authorized in the ISP are 'natural supports,' which are not reimbursable." (Report &
Recomm. at 18.)
       {¶ 37} Evidence in the record reflects that appellant failed to properly provide in his
service documentation the number of units of service in compliance with both former Ohio
Adm.Code 5123:2-9-05 and 5123:2-9-30. Furthermore, insofar as appellant listed the units
of service as 24-hours in the service documentation, ODDD introduced testimony that such
measurement was not in accordance with the requirements of both former Ohio Adm.Code
5123:2-9-05 and 5123:2-9-30. Specifically, Schroeder testified that appellant was not
authorized to provide 24-hour care because the service plan required "natural supports,"
which were not eligible for payment. (Mar. 6, 2017 Tr. at 31.) Thus, the common pleas
court did not err in finding there was sufficient reliable, probative, and substantial evidence
in the record to support the final adjudication order.
       {¶ 38} As a result, we find any error related to the fourth finding of fact in the hearing
examiner's report to be harmless. See Conrad at 111 (finding that a court of common pleas
may reverse an administrative decision where it "determines that there exist legally
significant reasons for discrediting certain evidence relied upon by the administrative body,
and necessary to its determination") (Emphasis added.); Woodford v. Ohio Real Estate
No. 18AP-894                                                                       14


Comm., 10th Dist. No. 18AP-778, 2019-Ohio-2885, ¶ 20; Ohio Am. Health Care, Inc. v.
Ohio Bd. of Nursing, 10th Dist. No. 13AP-1020, 2014-Ohio-2422, ¶ 22. Therefore, we
cannot agree with appellant that his due process rights were violated. Accordingly, we
overrule appellant's first assignment of error.
IV. Conclusion
       {¶ 39} Having overruled appellant's two assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                  Judgment affirmed.
                      BROWN and LUPER SCHUSTER, JJ., concur.
