[Cite as Rudd v. Ohio Dept. of Job & Family Servs., 2015-Ohio-3796.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      MIAMI COUNTY

TIMOTHY RUDD                                          :
                                                      :
        Plaintiff-Appellant                           :    C.A. CASE NO. 2015-CA-9
                                                      :
v.                                                    :    T.C. NO. 14-326
                                                      :
OHIO DEPARTMENT OF JOB                                :    (Civil Appeal from
& FAMILY SERVICES                                     :     Common Pleas Court)
                                                      :
        Defendant-Appellee                            :


                                              ...........

                                              OPINION

              Rendered on the ___18th___ day of ____September ___, 2015.

                                              ...........

BYRON K. BONAR, Atty. Reg. No. 0002602, Legal Aid of Western Ohio, Inc., 20 S.
Limestone Street, Suite 220, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellant

JAMES H. LOCKWOOD, Atty. Reg. No. 0088434, Assistant Attorney General, Health and
Human Services Section, 30 East Broad Street, 26th Floor, Columbus, Ohio 43215
     Attorney for Defendant-Appellee

                                            .............

FROELICH, P.J.

        {¶ 1} Timothy Alan Rudd appeals from a judgment of the Miami County Court of

Common Pleas, which affirmed an administrative decision that terminated Rudd’s

home-delivered meals through Medicaid and the Department of Job and Family Services
                                                                                            -2-
(ODJFS) on the basis that it was duplicative of other services provided to him.

       {¶ 2} For the following reasons, the judgment of the trial court will be affirmed.

       {¶ 3} Rudd, age 62, has been diagnosed with a variety of established medical

conditions. He receives Social Security Disability and various services from the ODJFS

and Medicaid through the Ohio Home Care Waiver Program. Under the program, he

receives two two-hour visits from personal care aides each day, seven days per week,

and one visit from a nurse each day. Prior to a reassessment of services conducted in

2014, he also received two home-delivered meals each day from a company, Clossman

Catering, that specializes in providing meals for people with medical conditions that are

affected by their diets.

       {¶ 4} In March 2014, ODJFS completed an assessment of Rudd’s services and

determined that, because the personal care aides were present in Rudd’s home during

two meals per day and were doing some cooking for him, the home-delivered meal

service was an impermissible duplication of services under Ohio Adm.Code

5160-46-04(D)(3)a).        The   agency indicated    its   intention   to   discontinue   the

home-delivered meals. Rudd appealed from the decision to discontinue this service,

arguing that the meals were a medical necessity and were not duplicative because they

were specially tailored to his medical needs. Rudd did not dispute that the aides cooked

for him, but he argued that the home-delivered meals should continue due to his

diagnoses and dietary restrictions. The hearing officer found that Rudd’s personal care

aides were “present during meal time and were doing meal preparation”; the officer also

noted that one of the aides reported that she “always makes extra food and puts it in the

freezer” so that Rudd could eat it if he got hungry when an aide was not present, that
                                                                                       -3-
Rudd’s “cupboards and freezer are full,” and that she “supplements [Rudd’s] HDMs with

the food she prepares since the HDMs are not big enough.” Based on this evidence, the

hearing officer found that Rudd’s home-delivered meals were a duplication of services

that violated Ohio Adm.Code 5160-46-04(D)(3).

       {¶ 5} Rudd filed an administrative appeal from the hearing officer’s finding, and a

hearing was held in April 2014. The Administrative Appeal Officer agreed with the

hearing officer that Rudd’s home-delivered meals were duplicative of the other services

provided to him and therefore should be terminated. The Decision stated:

       While there is no question that a proper diet is important to effectively

       manage [Rudd’s medical condition], there is no evidence that the meals

       being provided are provided as [a] therapeutic diet that has been ordered by

       a licensed physician. Additionally, there is significant evidence that the

       appellant is not managing his diet appropriately even with the home

       delivered meals. * * * While the home delivered meals may provide some

       benefit to the appellant’s management of his [condition], there is no

       indication that the appellant’s home health aides cannot work with a

       dietician to provide appropriate meals for the appellant.

The Appeal Officer concluded that the home-delivered meals were “not cost effective and

a duplication of services.”

       {¶ 6} Rudd appealed the administrative decision to the Miami County Court of

Common Pleas pursuant to R.C. 5101.35(E) and R.C. 119.12. On February 25, 2015,

based on its review of the record that was developed during the administrative

proceedings, the trial court found that the administrative decision was supported by
                                                                                              -4-
reliable, probative, and substantial evidence and was in accordance with the law; it

affirmed the administrative decision to terminate Rudd’s home-delivered meals.

         {¶ 7} Rudd appeals from the trial court’s judgment, raising three assignments of

error.

               The Common Pleas Court erred by abusing its discretion when

         it gave more weight to hearsay evidence than to Mr. Rudd’s sworn

         testimony presented at the administrative hearing.

               The Common Pleas Court erred by committing an error of law

         when it failed to give any deference to the opinions of Mr. Rudd’s

         treating physicians.

               The Common Pleas Court erred by abusing its discretion when

         it ignored that Mr. Rudd met the regulatory requirement for home

         delivered meals which was that home delivered meals be ordered by a

         physician.

         {¶ 8} Rudd asserts that the trial court improperly weighed the evidence presented

at the administrative hearing, that it did not give appropriate deference to the opinions of

his physicians, and that it abused its discretion in affirming the administrative decision.

         {¶ 9} “An appeal from an administrative appeal decision of the Director of the Job

and Family Services Agency may be taken in the court of common pleas pursuant to R.C.

119.12.” Gruber v. Ohio Dept. of Job & Family Serv., 153 Ohio App.3d 6, 2003-Ohio

2528, 790 N.E.2d 800, ¶ 12 (6th Dist.). “Under R.C. 119.12, the court of common pleas

must review an agency order to determine whether ‘the order is supported by reliable,

probative, and substantial evidence and is in accordance with law.’ ” Id. “An appellate
                                                                                        -5-
court, on the other hand, is limited to determining whether the common pleas court

abused its discretion in reviewing the evidence in support of the administrative order.”

Id., citing Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63

Ohio St.3d 705, 707, 590 N.E.2d 1240 (1992). (Other citation omitted). “Issues of law,

however, are reviewed de novo.” Gruber at ¶ 12, citing Sohi v. Ohio State Dental Bd., 130

Ohio App.3d 414, 421, 720 N.E.2d 187 (1st Dist.1998). See also Rodefer v. Colbert,

2015-Ohio-1982, 35 N.E.3d 852, ¶ 14 (2d Dist.).     Thus, when a court of appeals reviews

a common pleas court’s decision in an administrative appeal, its standard of review is far

more circumscribed than that employed by the court of common pleas.              Farran v.

Cleveland Civ. Serv. Comm., 8th Dist. Cuyahoga No. 99851, 2014-Ohio-823, ¶ 2.

        {¶ 10} Ohio Adm. Code 5160-46-04(D), the regulation related to home-delivered

meals under the Ohio Home Care Waiver and Medicaid programs, states, in pertinent

part:

        (D)(1) “Home delivered meal service” is defined as the provision of meals to

        a consumer who has a need for a home delivered meal based on a deficit in

        an ADL [activities of daily living] or a deficit in an IADL [instrumental

        activities of daily living] identified during the assessment process. The

        service includes the preparation, packaging and delivery of a safe and

        nutritious meal(s) to a consumer at his or her home. A consumer may be

        authorized to receive up to two home delivered meals per day.

        (2) Home delivered meals:

        (a) Shall be furnished in accordance with menus that are approved in writing

        by a licensed dietitian who is currently registered with the commission on
                                                                                  -6-
dietetic registration.

(b) Shall take into consideration the consumer’s medical restrictions,

religious, cultural and ethnic background and dietary preferences.

(c) Shall be prepared by a provider who is in compliance with Chapters

918., 3715. and 3717. of the Revised Code, and all applicable

Administrative Code rules adopted thereunder. For the purposes of this

rule, reheating a prepared home delivered meal is not the same as

preparing a meal.

***

(f) May include a therapeutic diet that requires a daily amount or distribution

of one or more specific nutrients in order to treat a disease or clinical

condition, or eliminate, decrease or increase certain substances in the

consumer’s diet.         A therapeutic diet must be ordered by a licensed

physician. A new order must be documented in the consumer’s clinical

record every ninety days.

(3) Home delivered meals shall not:

(a) Include services or activities performed in excess of what is approved on

the consumer’s all services plan.

(b) Supplement or replace meal preparation activities that occur during the

provision of waiver nursing, personal care aide, adult day health center,

home care attendant or any other similar services.

(c) Supplement or replace the purchase of food or groceries.

***
                                                                                         -7-
       {¶ 11} The ODJFS, the staff hearing officer, and the administrative appeal officer,

found that the home-delivered meals were duplicative under Ohio Adm.Code

5160-46-04(D)(3), which precludes home-delivered meals if they “supplement or replace”

other meal preparation activities that the consumer receives.        The trial court found

substantial, probative and reliable evidence to support this conclusion.

       {¶ 12} First, Rudd asserts that the trial court gave improper weight to hearsay

evidence, namely the case notes compiled by his caregivers; he contends that his sworn

testimony was entitled to greater weight.

       {¶ 13} Although administrative appeals to government agencies are required to

comport with fundamental aspects of due process, they are not judicial proceedings.

Consequently, the rules of evidence “do not directly apply in administrative

proceedings[.]” Plain Loc. Schools Bd. of Edn. v. Franklin Cty. Bd. of Rev., 130 Ohio

St.3d 230, 2011-Ohio-3362, 957 N.E.2d 268, ¶ 20; Simon v. Lake Geauga Printing Co.,

69 Ohio St.2d 41, 44, 430 N.E.2d 468 (1982); Farran, 8th Dist. Cuyahoga No. 99851,

2014-Ohio-823, ¶ 5. It is a well-settled principle of administrative law that administrative

agencies are not bound by the rules of evidence and that hearsay is admissible in

administrative proceedings. Shephard v. Ohio Dept. of Job & Family Serv., 166 Ohio

App.3d 747, 2006-Ohio-2313, 853 N.E.2d 335, ¶ 22 (8th Dist.).

       {¶ 14} When evidence is admitted despite being hearsay, the trier of fact must

consider whether the evidence is reliable enough to be considered substantial and

probative. In re Petition for Annexation of 162.631 Acres, 52 Ohio App.3d 8, 15, 556

N.E.2d 200 (10th Dist.1988). Evidence is reliable if it “can be confidently trusted” and

there is “a reasonable probability that the evidence is true.” Beachland Ents. Inc. v.
                                                                                         -8-
Cleveland Bd. of Rev., 8th Dist. Cuyahoga No. 99770, 2013-Ohio-5585, ¶ 63-34. The

reliability of evidence goes to its weight, not its admissibility. Farran at ¶ 5.

       {¶ 15} The personal care aides and nurse who work with Rudd did not testify at

the hearing; the content of their case notes was hearsay. We need not elaborate on this

characterization, because even if the notes were hearsay, they were admissible in the

administrative proceedings if the court found them to be reliable. Although Rudd testified

at the hearing, he relied on evidence such as the opinions of his doctor and food-service

provider, as reflected in letters he references and presented at the hearing; because the

doctors and food-service provider did not testify at the hearing, much of the evidence

offered by Rudd was also hearsay. Since reliable hearsay is permitted in administrative

proceedings, and because both parties relied on such evidence to some extent, we

cannot agree with Rudd’s argument that the administrative hearing officer or the trial court

erred in crediting such evidence.

       {¶ 16} Rudd also contends that the trial court erred in failing to give deference to

the opinions of his treating physician. Rudd submitted a letter from his podiatrist which

stated the importance of Rudd’s eating meals specifically prepared for a person with his

medical condition, that the home delivery of meals from Clossman was meeting this need,

that “[p]reparation of meals by a home health aide from food purchased with food stamps

would * ** not meet these requirements,” and that a change in Rudd’s home-delivered

meals “may put his health at risk.”1

       {¶ 17} The administrative hearing officer and the trial court could have reasonably

1
 The record also contains a letter from a nurse practitioner at an internist’s practice,
stating, in total, “Please allow my patient, Timothy Rudd, to have home delivered meals
due to [his medical condition] and physical deconditioning.” Rudd does not make
reference to this letter in his brief.
                                                                                         -9-
concluded that the letter submitted by the podiatrist did not compel the continuation of

home-delivered meals. First, the letter was not written until April 8, 2014 (after the March

reassessment by ODJFS), and Rudd does not claim that this letter was the basis for the

provision of his home-delivered meals.       While acknowledging the importance of a

healthy diet, the administrative hearing officer specifically noted the absence of any

evidence in the podiatrist’s letter or otherwise that the home-delivered meals or any

“therapeutic diet” had been ordered for Rudd by a licensed physician.

       {¶ 18} Second, the podiatrist’s letter does not address the duplication of services

which was at the core of ODJFS’s decision to terminate the home-delivered meals.

Rudd’s need for meals designed with his medical issues in mind was not in dispute. The

relevant question was whether Rudd’s home-delivered meals were supplementing or

replacing meal preparation activities provided by the personal care aides.           Steve

Knowland, a clinical supervisor with CareStar (an agency that administers Medicaid

programs in Ohio), testified at the administrative appeal hearing that the Ohio Home Care

program provides a “cost-effective alternative” (staying in one’s own home) for Medicaid

recipients who are “medically appropriate for institutional placement.”

       {¶ 19} Third, other evidence presented at the hearing or in the record

contradicted   assumptions in the podiatrist’s letter that Rudd’s food was “purchased

with food stamps” and that a personal care aide’s cooking could not meet Rudd’s dietary

requirements. Knowland testified that Rudd’s personal care aides had been or could be

trained to provide meals appropriate to Rudd’s particular medical condition. (He did not

know if the current aides had been trained for that purpose.) The aides’ notes reflected

that they helped him with his finances, that he had money for food, that Rudd’s pantry was
                                                                                          -10-
well-stocked, that the aides prepared extra food for him in case he got hungry when the

aides were not there or when the meals did not satisfy him, and that he ordered food over

the internet and enlisted the aides to collect food from food banks. Knowland stated that

the home-delivered meals are not a means of addressing shortfalls or other demands on

one’s budget, and that an individual receiving ODJFS services can request a review of his

budget, food stamp allowance, etc., if financial difficulties need to be addressed. The

record did not require the hearing officer to accept the podiatrist’s apparent assumption

that Rudd’s food came primarily from food stamps or the doctor’s conclusion that home

health aides could not prepare food that would “meet [Rudd’s] requirements.”

         {¶ 20} Finally, Rudd argues that he was entitled to home-delivered meals because

he “met the regulatory requirement” that such meals be ordered by a physician. In

support of this argument, Rudd relies on his own testimony at the hearing that his “primary

doctor” had ordered the meals and had “designed a meal plan” for him. He also asserts

in his brief that home-delivered meals “would never have been delivered if they had not

been ordered by a physician.”

         {¶ 21} Rudd’s arguments are weakened by the record in several respects. First,

Ohio Adm.Code 5160-46-04(D)(1) states that the meals may be provided where a need is

identified in the ODJFS assessment process; it does not necessarily require an order

from a physician. A physician’s order is required for a “therapeutic diet that requires a

daily amount or distribution of one or more specific nutrients;” where a “therapeutic diet” is

required, a “new order must be documented in the consumer’s clinical record every ninety

days.”     In other words, not all home-delivered meals are provided pursuant to a

therapeutic diet ordered by a physician, and the administrative hearing officer found no
                                                                                            -11-
evidence of such an order in Rudd’s case. Moreover, the regulation treats a doctor’s

order as a condition of eligibility for certain home-delivered meals; it does not require

home-delivered meals to be provided on a doctor’s order.

       {¶ 22} Rudd had been receiving home-delivered meals for many years at the time

of the hearing, and he did not provide any conclusive evidence that a doctor had issued

an order for a “therapeutic diet” or had renewed such an order every ninety days.

Clossman submitted a letter stating that its “dietetically approved meals” are provided

“under the auspices of the consumer’s doctor via signed doctor’s orders which authorize

consumer appropriate diets,” but the letter does not contain any statements specifically

related to Rudd.

       {¶ 23} Viewing the evidence as a whole, we cannot conclude that the

administrative hearing officer was required to credit the podiatrist’s opinion or that the trial

court abused its discretion in finding that there was reliable, probative and substantial

evidence to support the decision of the hearing officer.               Knowland’s testimony

established that personal care aides provided through the Ohio Home Care and Medicaid

program were capable of providing medically-appropriate meals, and the case notes

established that Rudd’s personal care aides were, in fact, cooking and shopping for him

to supplement the home-delivered meals provided by Clossman.                   Based on the

evidence presented at the hearing, the trial court did not abuse its discretion in affirming

the administrative officer’s conclusion that Rudd was receiving a duplication of services,

and that such supplemental or replacement services were prohibited by Ohio Adm.Code

5160-46-04(D)(3).

       {¶ 24} The assignments of error are overruled.
                                                                 -12-
      {¶ 25} The judgment of the trial court will be affirmed.

                                       .............

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Byron K. Bonar
James H. Lockwood
Hon. Jeannine N. Pratt
