[Cite as Graves v. Dept. of Job & Family Servs., 2017-Ohio-5695.]
                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



 MIRIAM GRAVES                                      :               JUDGE
                                                    :               Hon. Patricia A. Delaney, P.J.
         Appellant-Appellant                        :               Hon. Craig R. Baldwin, J.
                                                    :               Hon. Earle E. Wise, Jr., J.
 -vs-                                               :
                                                    :
 OHIO DEPARTMENT OF JOB                             :               Case No. 17 CAH 02 0012
 AND FAMILY SERVICES                                :
                                                    :
         Appellee-Appellee                          :               OPINION



 CHARACTER OF PROCEEDING:                                           Appeal from the Court of Common
                                                                    Pleas, Case Nos. 15 CVF 08 0572
                                                                    and 15 CVF 10 0668



 JUDGMENT:                                                          Affirmed




 DATE OF JUDGMENT:                                              June 30, 2017




 APPEARANCES:

 For Appellant-Appellant                                            For Appellee-Appellee

 JUDITH E. GALEANO                                                  J. ANDREW STEVENS
 JUSTIN A. MOROCCO                                                  30 East Broad Street
 425 Metro Place South                                              26th Floor
 Suite 420                                                          Columbus, OH 43215
 Dublin, OH 43017
Wise, Earle, J.

        {¶ 1}     Appellant-Appellant, M i r i a m G r a v e s , a p p e a l s t h e J a n u a r y

1 7 , 2 0 1 7 judgment entry of the Court of Common Pleas of Delaware County, Ohio,

affirming the decision of appellee-appellee, Ohio Department of Job and Family

Services, denying her request for a hearing to address concerns about her in-home

care.

                            FACTS AND PROCEDURAL HISTORY

        {¶ 2} Appellant has quadriparesis and is mute. She needs constant care. She

is a Medicaid recipient receiving in-home care through the Ohio Home Care Waiver.

Her agency provider is CareStar, and she has a case manager. Care providers must be

approved under the All Services Plan in order to provide care to recipients. Appellant's

mother, Wende Graves, is appellant's legal guardian over her person.

        {¶ 3} In 2015, appellant's care provider, Wynde Young, went on maternity leave.

According to appellant, during this leave, Ms. Young was removed from the approved

care provider list under the All Services Plan. Upon Ms. Young's return from maternity

leave, she was not reinstated as an approved provider and therefore, Ms. Young was

unable to provide services to appellant. At some time, Ms. Young gave up her "I.P.

number" to be an approved provider under the All Services Plan. As a result, appellant

had to find an alternate care provider.

        {¶ 4} On June 17, 2015, Ms. Graves, on behalf of appellant, requested a state

hearing with appellee to address the concerns with CareStar and her case manager,

complaining that Ms. Young was not allowed to return from maternity leave, and

indicating that Ms. Young "gave up her I.P. number as she was no longer allowed to

work." On July 6, 2015, appellee denied the request, stating the complained of issue "is



not appealable to the Bureau of State Hearings, pursuant to 5101:6-5-03 of the Ohio
Administrative Code." Ms. Graves filed an administrative appeal, claiming appellant had

the right "to choose her provider that is willing and qualified" and not permitting Ms.

Young to return was not permissible under Ohio Adm.Code 5101:6-3-01(B)(13).              By

decision dated July 31, 2015, appellee affirmed the denial because subsection (B)(13)

was inapplicable to her case.

         {¶ 5} On August 21, 2015, Ms. Graves filed a second request for a hearing,

again complaining that appellant was no longer being cared for by Ms. Young following

her maternity leave, and complaining that the All Services Plan required appellant to

complete tasks she was unable to perform i.e., notify the case manager if a care

provider arrives late, departs early, works a partial shift, or does not show up, and sign a

care provider's time sheet after every completed shift. Appellant sought a new case

manager, and a non-discriminatory All Services Plan. On August 26, 2015, appellee

denied the request, stating the issue "has been previously decided through the state

hearing process." Again, Ms. Graves filed an administrative appeal. By decision filed

September 9, 2015, appellee affirmed the denial pursuant to Ohio Adm.Code 5101:6-5-

03(C)(6) because "the issue has been previously decided through the state hearing

process."

         {¶ 6} On August 28, and October 6, 2015, appellant filed appeals with the trial

court.    The two appeals were consolidated.      Each party filed a brief.    In her brief,

appellant added the additional complaint that when Ms. Young was on maternity leave,

the case manager limited the time that appellant had care providers in the home.

Appellant claimed her care was reduced from sixteen hours per day to twelve hours per



day, and overnight care was eliminated.      This issue was never before appellee.       By

judgment entry filed January 17, 2017, the trial court affirmed appellee's decisions.

         {¶ 7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
                                             I

      {¶ 8} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN DETERMINING

THAT THE OHIO DEPARTMENT OF JOB AND FAMILY SERVICES HAD THE RIGHT

TO DENY APPELLANT A STATE HEARING REGARDING HER ISSUES, WHICH

EFFECTIVELY REDUCED HER BENEFITS, WITH THE CASE MANAGEMENT

AGENCY."

                                             II

      {¶ 9}   "THE TRIAL COURT ERRED IN FINDING THAT APPELLANT WAS NOT

ENTITLED TO A HEARING AFTER DENYING HER THE ABILITY TO REQUEST A

REPLACEMENT CARE MANAGER."

                                             III

      {¶ 10} "THE TRIAL COURT ERRED FINDING THAT APPELLANT WAS NOT

ENTITLED TO A HEARING WHEN APPELLANT'S BENEFITS WERE EFFECTIVELY

REDUCED AS APPELLANT, WHO HAS QUADRIPARESIS AND IS NON-VERBAL,

WAS REQUIRED TO PERFORM IMPOSSIBLE TASKS DUE TO HER DISABILITY."

                                         I, II, III

      {¶ 11} Appellant claims the trial court erred in affirming appellee's denials of her

requests for a state hearing. We disagree.


      {¶ 12} Our standard of review on a trial court's application of administrative rules

is de novo.   McClendon v. Ohio Department of Education, 8th Dist. Cuyahoga No.

104292, 2017-Ohio-197, ¶ 9.

      {¶ 13} Ohio Adm.Code 5101:6-3-01 covers grounds for requesting a state

hearing. Subsection (A) provides the following:



              (A) The right to a state hearing is limited to actions by the Ohio

      department of job and family services (ODJFS), the Ohio department of
       medicaid (ODM), the local agency, or an agent of ODJFS, ODM, or the

       local agency. A hearing need not be granted when a change in state or

       federal law, or local agency policy adopted pursuant to options authorized

       in state law, requires automatic adjustments of benefits for classes of

       recipients.   If the reason for the request is the misapplication of the

       change to the appellant's individual circumstances, hearing rights exist.



       {¶ 14} Subsection (B) lists fourteen "grounds for requesting a state hearing in

regard to family services program benefits." Appellant argues subsection (B)(2) applies

which states: "The agency has proposed or acted to reduce, suspend, terminate, or

withhold benefits, or the assistance group believes that the level of benefits is not

correct."   Appellant argues under these provisions, she is entitled to a state hearing

because CareStar is a provider for Ohio Home Care Waiver which is a service program

administered by the Ohio Department of Medicaid, and it was CareStar who reduced or

withheld her care. Appellant's Brief at 6.



       {¶ 15} Appellee argues the subsection does not apply, as there is no evidence of

a reduction of benefits and the issue was not raised in her requests for a state hearing.

Appellee's Brief at 2.

       {¶ 16} In its January 17, 2017 judgment entry affirming the denials, the trial court

stated the following:



              Appellant argues in her brief that she is entitled to a state hearing

       under OAC 5101:6-3-01(B)(2).          She reasons that the hours that she

       receives care has effectively been reduced by Carestar refusing to allow

       her prior nurse to return. However, the Court is limited to review of the

       record in this matter.   Appellants request for a state hearing and her
      appeal of the ODJFS decision does not reference any hours or benefits

      being reduced or withheld. Accordingly, the Court concludes that ODJFS

      made the correct decision on the information they had before them.

             In regards to the second administrative appeal, Appellant requested

      a new case manager and a new All Services Plan under the Ohio

      Department of Medicaid administered waiver program.         Appellant is not

      entitled to a state hearing under OAC 5101:6-3-01 for these requests.

      Again, Appellants request for hearing and appeal did not reference any

      reduction in the level of benefits she was being provided. Additionally, the

      list of grounds for a state hearing set forth in OAC 5101:6-3-01 does not

      include the issues complained of by Appellant.        Further, she was not



      entitled to a state hearing for her nurse not returning after maternity leave

      as reasoned above.



      {¶ 17} Based upon our review, we concur with the trial court's analysis. The two

requests for a state hearing did not allege any reduction in benefits. Appellant's main

complaint was that her chosen care provider was not permitted to provide her services

after her return from maternity leave. The fact that appellant cannot have the care

provider of her choice is not contemplated under subsection (B)(2).            Appellant's

secondary complaint was that she was required to complete tasks she was unable to

perform, and she requested a new case manager and a non-discriminatory All Services

Plan. Again, these issues are not contemplated under any of the grounds listed in Ohio

Adm.Code 5101:6-3-01.

      {¶ 18} Appellant's required tasks under the All Services Plan includes notifying

the case manager if a care provider arrives late, departs early, works a partial shift, or

does not show up, and signing a care provider's time sheet after every completed shift.
Appellant's condition prevents her from completing these tasks. However, her mother,

as legal guardian, can perform these tasks on her behalf. There is no evidence in the

record of a reduction in benefits because appellant cannot personally perform these

tasks on her own.

      {¶ 19} Upon review, we find the trial court did not err in affirming appellee's

decisions.


      {¶ 20} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.




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