[Cite as Sharp v. Ohio Dept. of Job & Family Servs., 2019-Ohio-5397.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                             JUDGES:
JULIE SHARP, GUARDIAN, ON                            :       Hon. W. Scott Gwin, P.J.
BEHALF OF DANIEL SHARP, WARD                         :       Hon. Craig R. Baldwin, J.
                                                     :       Hon. Earle E. Wise, J.
                        Plaintiff-Appellant          :
                                                     :
-vs-                                                 :       Case No. 2019 CA 00047
                                                     :
OHIO DEPARTMENT OF JOB AND                           :
FAMILY SERVICES                                      :       OPINION

                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                 Civil appeal from the Licking County Court
                                                         of Common Pleas, Case No. 18 CV 1093



JUDGMENT:                                                Reversed and Vacated



DATE OF JUDGMENT ENTRY:                                  December 24, 2019



APPEARANCES:

For Plaintiff-Appellant                                  For Defendant-Appellee

S. ADELE SHANK                                           THERESA DIRISAMER
3380 Tremont Road                                        Assistant Attorney General
Suite 270                                                30 East Broad Street
Columbus, OH 43221                                       26th Floor
                                                         Columbus, OH 43215-3400
Licking County, Case No. 2019 CA 00047                                                 2


Gwin, P.J.

      {¶1}   Appellant appeals the May 29, 2019 judgment entry of the Licking County

Court of Common Pleas affirming an administrative decision issued by appellee the Ohio

Department of Job and Family Services (“ODJFS”) on behalf of the Ohio Department of

Medicaid.

                                  Facts & Procedural History

      {¶2}   Appellant Julie Sharp is the mother and legal guardian of Daniel Sharp.

Daniel is nineteen years old and has been diagnosed with Type 1 diabetes, autism, and

epilepsy without status epilepticus. Daniel receives Medicaid Services through the Ohio

Department of Developmental Disabilities (“ODODD”). Daniel currently receives fifty-one

hours of private duty nursing (“PDN”) services per week. He began receiving these

services through the ODODD waiver program and Interim Healthcare in 2016, but he has

received PDN services under various programs since he was three years old.           On

December 17, 2017, the Licking County Board of Developmental Disabilities conducted

a Nursing Task Assessment (“NTA”) for Daniel’s annual redetermination of eligibility for

services.

      {¶3}   ODODD reviewed the information submitted by the Licking County Board

of Developmental Disabilities and denied the request for fifty-one hours of PDN per week

on the basis that such services were not medically necessary. ODODD notified appellant

via letter on February 8, 2018 of its intent to terminate PDN services effective February

26, 2018, and stated Daniel’s need for care could be met through Homemaker/Personal

Care (“HPC”) providers with medication certification and nursing task delegation.
Licking County, Case No. 2019 CA 00047                                                   3


       {¶4}   Appellant appealed the decision of ODODD to terminate the PDN services.

A hearing officer conducted an audio hearing on April 2, 2018.          Donna Patterson

(“Patterson”), Medicaid Health Systems Administrator 2, stated ODODD received a 485

Plan of Care document for Daniel, listing diagnoses of autism, Type 1 diabetes without

complications, and epilepsy, nonintractable and without status epilepticus. ODODD also

received the NTA completed by the Licking County Board of Developmental Disabilities.

       {¶5}   Patterson testified that, based upon the documentation received from

Licking County, Daniel needs to have his glucose checked every two hours, his insulin

pump adjusted accordingly, his vital signs checked, his pump site changed every three

days, and have insulin administered, via the insulin pump, the dosage of which is based

upon his glucose reading. As Patterson looked at the sixty day NTA summary, she noted:

Daniel had no falls, no urgent care visits, and no ER visits during the sixty days; Daniel

lives at home with his family; and the caregiver had no questions, complaints, or concerns.

Patterson was concerned that Daniel’s 485 plan was inadequate because it did not

contain a written, documented order from a physician as to a sliding scale of insulin.

However, Patterson made clear it is not appellant’s responsibility to make sure the 485

plan of care is correct.

       {¶6}   Specifically with regards to Daniel’s insulin, Patterson stated the insulin

order in the plan of care states 100 units per milliliter, pump solution, continuous

subcutaneous delivery via the insulin pump with the doses adjusted per finger-stick blood

sugar. Further, Patterson testified that the documentation reflects Daniel’s blood sugars

are checked every two hours and adjustments are made based upon the blood sugar

level and/or there are snacks given to Daniel with varying levels of carbohydrates to
Licking County, Case No. 2019 CA 00047                                                      4


prevent hypoglycemia. Patterson noted the documentation indicates the PDN is primarily

provided while Daniel is at school and, during this time, his blood sugar was checked

routinely every two hours and snacks were provided at the carbohydrate level based upon

his finger-stick blood sugar, “as well as there were modifications made to the insulin pump

dosage.”

       {¶7}   Patterson stated Daniel’s insulin administration can be provided by HPC

providers with a Level 1 and Level 3 certification, so long as the insulin is provided through

a subcutaneous injection or pump. Patterson testified the NTA and 485 plan of care

submitted support this determination due to the stability of Daniel’s condition. Patterson

stated that even if the HPC service is utilized, there would be no service change for Daniel

until an appropriate provider was located to meet his needs.

       {¶8}   Julie Sharp testified Daniel is a brittle diabetic and his glucose can vary

wildly. Mrs. Sharp stated Daniel is receiving PDN services five days per week, nine hours

per day, and has had the same nurse for the past twelve years.

       {¶9}   Doug Sharp, Daniel’s father, testified the combination of Daniel’s

conditions, along with an extremely low IQ of 59, puts Daniel in a situation where he is

unable to share with his caregiver his condition, specifically with regards to either low or

high blood sugar. Thus, the family relies on the independent decision-making of a skilled

nurse to make a decision on whether or not his symptoms are related to blood sugar, an

autism behavior, or epilepsy. Mr. Sharp testified Daniel needs someone at the nurse skill

level to make the right decision at the moment. Mr. Sharp explained the reason why there

is no sliding scale included in the physician’s orders as it relates to insulin is because the

decisions are made in real-time, based upon the physical symptoms the nurse sees at
Licking County, Case No. 2019 CA 00047                                                      5


the time, in addition to Daniel’s activity levels. Mr. Sharp stated the family previously

attempted to use delegated nursing for respite care for Daniel, but could not find a

provider willing to provide the care because of the level of complexity of Daniel’s medical

issues.   Mr. Sharp submitted letters from the following individuals:        Jennifer Jones

(“Jones”), the nurse who completed the NTA submitted to ODODD; Kristen Kenney

(“Kenney”), one of three physicians treating Daniel; Rebecca Morrison (“Morrison”), a

PhD who has worked with Daniel since 2003; Sarah Milby (“Milby”), RN; and Amy

Caywood (“Caywood”), RN at the clinic where Daniel goes for his diabetes.

       {¶10} Jones is the nurse who completed the NTA for Daniel that Patterson based

her testimony upon. Jones stated in her letter that she gathered information from:

Daniel’s doctor’s orders, a review of nurses’ notes, a review of Daniel’s

psychoeducational assessment, her interview with Daniel’s nurse, and her conversation

with Daniel’s service and support administrator. Jones stated Daniel’s insulin regulation

is not just a simple task of following physician’s orders and giving an exact does of insulin;

rather, there is assessment that must go into the decision before the insulin is given and

this assessment comes from a nurse who can use his or her assessment skills and

respond accordingly with medical knowledge. If Daniel’s blood sugar goes too high, it

can cause a life-threatening state called diabetic ketoacidosis and if his blood sugar drops

too low, it can immediately be life threatening by leading to seizure and loss of

consciousness.

       {¶11} Jones believes actually giving Daniel the insulin is the easy part, but what

is not easy in Daniel’s case is the assessment portion of the insulin administration,

considering there are several factors involved each time an insulin injection is given,
Licking County, Case No. 2019 CA 00047                                                     6


including the pump site location, Daniel’s activity level, and his food intake. Each of these

factors affects whether the insulin dose needs adjusted. Jones considers Daniel’s case

to be a complex one with his diabetes and autism, as Daniel is not able to tell someone

he is not feeling well, so the nurse must be diligent in her assessment skills to identify if

Daniel is having low blood sugar or high blood sugar so as to provide immediate treatment

to bring his blood sugar back to normal. Jones stated that no day is ever the same for

Daniel because there are daily insulin adjustments, meaning the nurse overrides the

amount of insulin the pump indicates be given to give more or less insulin.

       {¶12} Jones teaches classes to unlicensed personnel so they can, with nursing

delegation, administer insulin. Jones believes there are times when it is safe to have

certified staff care for and administer insulin; however there are circumstances in which it

is unsafe to do so when there is a lot of daily changes of insulin dosing and assessment

required for such dosing, and each individual circumstance is different. Jones does not

think Daniel’s case is one where it is safe for a non-nurse to administer insulin because

with every blood sugar check, there is decision-making, as documented in the nurse’s

notes, where the nurse gave more or less insulin than indicated by the pump to avert low

blood sugar. Jones does not believe this type of decision-making is within the scope of

practice for certified staff, as they are not allowed to make any decisions based on

assessment, and they are not allowed to override the dose of insulin the pump identifies

be given to Daniel.

       {¶13} Jones concluded it is her opinion that Daniel is not one of the cases in which

it is advantageous for him to have a non-nurse tend to his blood sugar needs throughout
Licking County, Case No. 2019 CA 00047                                                        7


the day due to his frequent fluctuations and need for constant adjustments and he should

continue with the nursing care he currently has in place.

       {¶14} In her letter, Morrison stated she has worked with Daniel since 2003 at

Oakstone Academy and that Daniel has an extremely low IQ and an inability to articulate

his internal feelings and perceptions, as he is unable to assist verbally or physically in his

daily medical care. Morrison believes that in Daniel’s case, delegated nursing could be

deadly because multiple symptoms mirror each other among his diagnoses. Morrison

stated Daniel, “requires frequent medical interventions to stabilize blood sugar that in my

opinion requires skilled nursing” and “ongoing nursing care is the only reason he remains

medically stable.”

       {¶15} Kenney described Daniel’s three medical conditions as serious and, in

combination, “create a high level of difficulty and complexity managing his day-to-day

treatment and require skilled nursing care.” Because of his Type 1 diabetes, Daniel

experiences “frequent and wide” fluctuations of glucose levels requiring continuous

monitoring by manual glucose checks every two hours. While the pump is programmed

for typical blood glucose levels, the nurse determines the insulin dosing throughout the

day based on the glucose readings, amount of food consumed, activity levels, and any

alarms triggered by the pump. Kenney stated these adjustments of insulin that occur

throughout the day are in “real time” and require the individual judgment of a nurse for

appropriate dosing. Kennedy opined the, “presence of all three conditions, combined with

Daniel’s limited communication and reasoning abilities, create a medical complexity that

requires a high level of nursing care, expertise, and independent decision-making each

day and the skill level required for Daniel’s care is greater than that of the typical caregiver
Licking County, Case No. 2019 CA 00047                                                     8


due to the need to make independent judgment for appropriate treatment and medical

dosing throughout the day and the need to give injections as needed.”

        {¶16} Milby’s letter stated that, because of Daniel’s seizure and diabetic history, a

skilled nurse assesses and acts on acute changes to promote the best possible outcome

for Daniel. Caywood’s letter provided that Daniel experiences frequent fluctuations in his

blood sugar readings and is not able to verbalize how he is feeling or symptoms of high

or low glucose, so it is important to have a nurse who is able to assess his non-verbal

cues.

        {¶17} The hearing officer left the record of the hearing open until April 6, 2018 to

allow ODODD to review the additional evidence provided by appellant during the hearing.

ODODD did not add any rebuttal to this evidence.

        {¶18} The hearing officer issued a decision on May 1, 2018 overruling appellant’s

appeal, finding that though appellant requires assistance with all aspects of care, this

assistance does not need to be provided by licensed nurses. On July 6, 2018, the case

was remanded to the hearing officer by ODJFS to issue a supplemental decision that

includes addressing appellant’s evidence accepted at the hearing. The hearing officer

issued a supplemental decision on July 30, 2018, finding the additional evidence did not

show how the private duty nursing services meet the generally accepted standards of

medical practice or that private duty nursing services are clinically appropriate in this

case. The hearing officer characterized the letters by Morrison and Jones as indicating

Daniel would benefit from continued private duty nursing services, but that there was no

evidence to indicate the services were medically necessary and could not be performed
Licking County, Case No. 2019 CA 00047                                                       9


by trained and certified HPC providers. The hearing officer again denied appellant’s

appeal.

       {¶19} Appellant appealed the decision of the hearing officer to ODJFS, which

conducts state administrative reviews of Medicaid waiver denials.

       {¶20} On September 14, 2018, ODJFS affirmed the decision of the hearing officer.

The decision states, in pertinent part: an HPC with proper certification and nursing

delegation is more than capable of following the physician’s order and seek further orders

as necessary; the lowest cost requirement of medical necessity is not met with PDN

because HPC services are 35% less expensive than PDN; since a properly certified HPC

with nursing delegation can meet Daniel’s needs and costs less than PDN, PDN is not

medically necessary; ODODD was not responsible for the NTA and 485 plan; even taking

into account the updated 485 plan, HPC services are appropriate; the letters submitted

by appellant do not mean PDN is medically necessary; and there is nothing to provide a

specific basis for requiring PDN over HPC.

       {¶21} On October 18, 2018, appellant appealed the decision of ODJFS to the

Licking County Court of Common Pleas. Appellant filed a brief on February 15, 2019.

Appellee filed a brief on March 15, 2019. Appellant filed a reply brief on March 29, 2019.

       {¶22} The trial court issued a judgment entry on May 29, 2019. As to appellant’s

argument that ODJFS misconstrued the statutory and administrative code provisions that

regulate the delegation of nursing skills and tasks, the trial court found ODJFS was not in

error in finding the monitoring of the insulin delegable because it is routine. The trial court

reasoned, “while the dose varies, Mr. Sharp is routinely, as appellant defines the term

‘routine’ in her brief, monitored and given insulin or food.” The trial court stated the
Licking County, Case No. 2019 CA 00047                                                     10


administrative rules for delegating the administration of insulin are not inconsistent with

the requirement in R.C. 5123.42(C) that the doses be routine because the nurse

delegating the task is accountable for any decision to delegate the task. As to the balance

of appellant’s assignments of error, the trial court found the decision of ODJFS was

supported by reliable, probative, and substantial evidence, namely the NTA and 485 plan

of care.

       {¶23} Appellant appeals the May 29, 2019 judgment entry of the Licking County

Court of Common Pleas and assigns the following as error:

       {¶24} “I. THE TRIAL COURT MISCONSTRUED THE OHIO STATUTES AND

ADMINISTRATIVE CODE PROVISIONS THAT REGULATE THE DELEGATION OF

NURSING SKILLS AND TASKS.

       {¶25} “II.   THE     TRIAL     COURT      ERRED       IN   FINDING      THAT      THE

ADMINISTRATIVE DECISION WAS SUPPORTED BY RELIABLE, PROBATIVE, AND

SUBSTANTIAL EVIDENCE.

       {¶26} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO OVERRULE THE

ADMINISTRATIVE DECISION FOR FAILING TO MEET ITS BURDEN OF PROOF.

       {¶27} “IV. THE TRIAL COURT ERRED WHEN IT FOUND THAT DANIEL HAD

NOT BEEN DENIED DUE PROCESS AND THE EQUAL PROTECTION OF THE LAW.”

                                        Standard of Review

       {¶28} The common pleas court’s “review of the administrative record is neither a

trial de novo nor an appeal on questions of law only, but a hybrid review in which the court

‘must apprise all the evidence as to the credibility of the witnesses, the probative character

of the evidence, and the weight thereof.’” Andrews v. Bd. of Liquor Control, 164 Ohio St.
Licking County, Case No. 2019 CA 00047                                                    11


275, 131 N.E.2d 390 (1955). The trial court reviews an order to determine whether it is

supported by a preponderance of reliable, probative, and substantial evidence and is in

accordance with the law. Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d

570, 589 N.E.2d 1303 (1992). Reliable evidence is “dependable; that is, it can be

confidently trusted. In order to be reliable, there must be a reasonable probability that the

evidence is true.” Id. Probative evidence “is evidence that tends to prove the issue in

question; it must be relevant in determining the issue.” Id. Substantial evidence “is

evidence with some weight; it must have importance and value.” Id.

       {¶29} Due deference must be given to the administrative resolution of conflicting

testimony. Crumpler v. State Bd. of Edn., 71 Ohio App.3d 526, 594 N.E.2d 1071 (10th

Dist. 1991). On questions of law, the common pleas court conducts a de novo review in

determining whether the administrative order is “in accordance with law.” Ohio Historical

Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466, 613 N.E.2d 591 (1993).

       {¶30} On appeal to this Court, the standard of review is more limited. Unlike the

court of common pleas, a court of appeals does not determine the weight of the evidence.

Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d

705, 590 N.E.2d 1240 (1992). In reviewing the court of common pleas’ determination that

the administrative order was supported by a preponderance of reliable, probative, and

substantial evidence, this Court’s role is limited to determining whether the court of

common pleas abused its discretion. Roy v. Ohio State Med. Bd., 80 Ohio App.3d 675,

610 N.E.2d 562 (10th Dist. 1992). Absent an abuse of discretion on the part of the trial

court, a court of appeals cannot substitute its judgment for that of the administrative body

or the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 614 N.E.2d 748 (1993).
Licking County, Case No. 2019 CA 00047                                                     12


However, on the question of whether the administrative order was in accordance with the

law, this Court’s review is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicine

v. State Emp. Relations Bd., 63 Ohio St.3d 339, 587 N.E.2d 835 (1992); Montgomery v.

Ohio Dept. of Job and Family Serv., 5th Dist. Delaware No. 11 CAH 06 0054, 2012-Ohio-

574.

                                                  I.

         {¶31} In her first assignment of error, appellant argues the trial court misconstrued

Ohio statutes and administrative code provisions that regulate the delegation of nursing

skills and tasks and thus the administrative order was not in accordance with the law. We

agree.

         {¶32} The trial court, in adopting the argument of appellee, found that while

Daniel’s insulin dose varies, Daniel is “routinely” monitored and the nurse delegating the

task is accountable for any decision to delegate; thus, delegation in this case is

permissible pursuant to R.C. 5123.42. Appellee contends that while the dose of insulin

is not necessarily constant, the administration of insulin to Daniel is routine because the

doses are habitual and not emergency doses.

         {¶33} R.C. 5123.42 permits developmental disabilities personnel who are not

specifically authorized by other provisions of the Revised Code to administer medications

or perform health-related activities to individuals with developmental disabilities under

specific conditions. Specifically, at issue in this case, is R.C. 5123.42(C)(1)(e), which

provides that “with nursing delegation, developmental disabilities personnel may

administer routine doses of insulin through subcutaneous injections, inhalation, and

insulin pumps.”
Licking County, Case No. 2019 CA 00047                                                   13


       {¶34} Appellee argues the term “routine” contained in R.C. 5123.42(C)(1)(e) is the

same as the term “prescribed” in Ohio Adm. Code 5123:2-6-03. We disagree. Ohio Adm.

Code 5123:2-6-03 provides that, with nursing delegation, developmental disabilities

personnel may “administer prescribed insulin through subcutaneous injection, inhalation,

and insulin pump.” The General Assembly utilizes both the term “routine” and the term

“prescribed” in R.C. 5123.42. The statute states the administration of “routine” doses of

insulin through insulin pumps may be delegated. The statute also states the following

may be delegated: the administration of “oral and topical prescribed medications,” the

administration of “prescribed medications through gastrostomy and jejunostomy tubes, if

the tubes being used are stable and labeled,” and administration of “prescribed

medications for the treatment of metabolic glycemic disorders through subcutaneous

injections.” It is evident from the plain language of the statute that the two terms are not

used interchangeably. Appellee contends the term “prescribed” is the same as the term

“routine” in the sense that both deal with non-emergency doses. However, “routine” is

not defined in R.C. 5123.42 and “prescribed medication,” as defined in the Ohio

Administrative Code, is not limited to routine doses. Ohio Adm. Code 5123:2-6-01(HH)

(defining “prescribed medication” as a drug administered according to the instructions of

a licensed health professional”).

       {¶35} Additionally, other Administrative Code provisions use the word “routine”

with regards to delegable insulin tasks, demonstrating that the terms “prescribed” and

“routine” are not interchangeable. The section of the Ohio Administrative Code pertaining

to private duty nursing requirements and coverage provides that “nursing tasks and

activities that shall only be performed by an RN include, but are not limited to, * * * (3)
Licking County, Case No. 2019 CA 00047                                                  14


programming of a pump to deliver medications including, but not limited to, epidural,

subcutaneous, and IV (except routine doses of insulin through a programmed pump).”

Ohio Adm. Code 5160-12-02(C)(3).

       {¶36} Further, Ohio Adm. Code 5123:2-6-03(A) specifically references R.C.

5123.42, stating, “[d]evelopmental disabilities personnel who are not specifically

authorized by other provisions of the Revised Code to perform health-related activities or

administer prescribed medication may do so pursuant to R.C. 5123.42 of the Revised

Code * * *.” Thus, it is clear the provisions of R.C. 5123.42 must be met in order for

delegation to occur.

       {¶37} To the extent that the rule and statute conflict with regard to the terms

“routine” and “prescribed,” the statute prevails and thus ODJFS’ interpretation of the word

“routine” is not entitled to deference. Williams v. Spitzer Autoworld Canton, LLC, 122

Ohio St.3d 546, 2009-Ohio-3554, 913 N.E.2d 410; Lang v. Dir., Ohio Dept. of Job and

Family Services, 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636; In re: Avon

Skilled Nursing and Rehabilitation, 10th Dist. Franklin No. 18AP-863, 2019-Ohio-3790

(due deference to an agency’s interpretation of the rules may be disregarded when

judicial construction makes it imperative to do so).

       {¶38} R.C. 5123.42 does not define the term “routine.” Words in a statute must

be given their common, plain, and ordinary meaning unless contrary intention clearly

appears or is otherwise indicated. Rice v. Village of Johnstown Planning & Zoning

Commission, 5th Dist. Licking No. 19-CA-18, 2019-Ohio-4037. Merriam-Webster defines

“routine” as, “a regular course of procedure,” or “of a commonplace or repetitious

character.” Merriam-Webster’s Collegiate Dictionary, 11th Ed. (2009).
Licking County, Case No. 2019 CA 00047                                                   15


       {¶39} While appellee and the trial court focus on the fact that the monitoring of

Daniel is routine and the fact that Daniel continually needs some dose of insulin routinely,

the plain language contained in the statute specifically states that the dose must be

routine. Upon our plenary review, we find the testimony and evidence demonstrate

ODJFS’ order is not in accordance with R.C. 5123.42 and thus is not in accordance with

the law. The only evidence in this case demonstrates Daniel’s dose of insulin is not a

regular course of procedure or of a commonplace or repetitious character, due to the

complexity of his medical conditions.

       {¶40} Patterson testified that the insulin order in the plan of care states 100 units

per milliliter, pump solution, however, Daniel’s blood sugar is checked every two hours

and, based upon this level and Daniel’s carbohydrates, “there were modifications made

to the insulin pump dosage.” Doug Sharp testified there is no sliding scale included in the

physician’s orders with regards to insulin because the decisions are made in real-time,

based upon Daniel’s blood sugar, his activity level, and the physical symptoms seen by

the nurse at the time. Jones stated Daniel’s insulin regulation is not a simple task of

following physician’s orders and giving an exact dose of insulin; rather, a nurse must do

an assessment prior to giving the insulin dose and factors such as Daniel’s activity level,

food intake, and pump location affects the insulin dose. Jones stated that no day is ever

the same for Daniel because there are daily insulin adjustments, meaning the nurse

overrides the pump and gives more or less than is indicated by the pump. Kenney stated

that while the pump is programmed for typical blood glucose levels, the nurse determines

the amount of insulin dosing throughout the day based on the glucose readings, amount

of food consumed, activity levels, and alarms triggered by the pump. Kenney described
Licking County, Case No. 2019 CA 00047                                                    16


these adjustments of insulin dosing as occurring in “real time” and stated they require the

individual judgment of a nurse for appropriate dosing. The nursing notes in the NTA

demonstrate the units given to Daniel vary during each day, vary from day to day, and

show that the same fingerstick blood sugar level does not necessarily require the same

dose of insulin each time. The fact that the delegating nurse has the final say on whether

a dose can be administered does not make a non-routine dose of insulin a delegable task

under R.C. 5123.42.

       {¶41} Appellant’s first assignment of error is sustained.

                                              II. & III.

       {¶42} In her second and third assignments of error, appellant make essentially the

same argument, that the trial court abused its discretion in finding the administrative

decision was supported by a preponderance of the reliable, probative, and substantial

evidence. We agree with appellant. As this Court has previously stated, a determination

that an agency decision is supported by reliable, probative, and substantial evidence does

not meet the standard; rather, the decision must be supported by a preponderance of

such evidence. Okey v. City of Alliance Planning Comm., 5th Dist. Stark No. 2018 CA

00144, 2019-Ohio-2390.

       {¶43} Pursuant to the analysis in our first assignment of error, we find the trial

court abused its discretion in finding the preponderance of the reliable, probative, and

substantial evidence demonstrated that Daniel’s insulin doses are routine. Appellee has

the burden to establish, by a preponderance of the evidence, that Daniel’s insulin dose is

routine in order to establish that Daniel’s insulin administration can be done by a certified

HPC provider with nurse delegation. Ohio Adm. Code 5101:6-7-01(C)(1)(c). All of the
Licking County, Case No. 2019 CA 00047                                                   17


evidence presented, including the testimony of Patterson, demonstrates that Daniel’s

insulin dose varies each day and varies from day to day.

       {¶44} Appellee focuses much of its argument on the issue of “medical necessity”

and argues that ODJFS’ determination that PDN is not “clinically appropriate in its type,

frequency, extent, duration, and delivery setting” and is not “the lowest cost alternative

that effectively addresses and treats the medical problem” is supported by reliable,

probative, and substantial evidence.

       {¶45} We first note that there is no evidence in the record that PDN is not the

lowest cost alternative to ensure the health and welfare of Daniel, as stated in Ohio Adm.

Code 5123-2-39(D)(3)(c). Counsel for appellee at the administrative hearing stated that

“HPC providers generally cost about 35 percent less than licensed nursing.” However,

there is no evidence about the cost of PDN versus the cost of a certified HPC provider as

it applies to Daniel and no evidence of the cost of the HPC provider with the certifications

required to administer insulin to Daniel.     The statement by counsel is not reliable,

probative, or substantial evidence on the issue of whether certified HPC service with

nurse delegation is the lowest cost alternative to ensure the health and welfare of Daniel.

       {¶46} Both the hearing officer and ODJFS found there was no specific evidence

that PDN was medically necessary for Daniel. However, both the hearing officer and

ODJFS discounted the evidence appellant presented regarding medical necessity,

classifying it as physician recommendations.

       {¶47} The only evidence presented by appellee as to why PDN is now not

clinically appropriate to meet Daniel’s health and welfare needs and/or is not appropriate

in “type, amount, duration, scope, and intensity” is the testimony of Patterson that the
Licking County, Case No. 2019 CA 00047                                                     18


NTA and 485 plan of care demonstrate that PDN is not medically necessary. However,

the plan of care calls for skilled nursing, as does the nurse who completed the NTA

(Jones).

       {¶48} Both the hearing officer and ODJFS found the evidence provided by

appellant with regards to medical necessity, such as the physician’s orders in the 485

plan for skilled nursing five days a week, 9.9 hours per day, Kenney’s opinion that Daniel’s

three medical conditions, “combined with Daniel’s limited communication and reasoning

abilities, create a medical complexity that requires a high level of nursing care, expertise,

and independent decision-making each day and the skill level required for Daniel’s care

is greater than that of the typical caregiver due to the need to make independent judgment

for appropriate treatment,” and Jones’ statement that Daniel’s care requires constant

assessment that is not within the scope of certified HPC providers, was not dispositive of

the issue of medical necessity because the Ohio Administrative Code states, “the fact

that a physician * * * renders, prescribes, orders, certifies, recommends, approves, or

submits a claim for * * * service does not, in and of itself, make the * * * service medically

necessary and does not guarantee payment for it.” Ohio Adm. Code 5160-1-01(D).

       {¶49} We recognize that due deference must be given to the hearing officer and

ODJFS’ administrative resolution of conflicting testimony. However, in this case, both the

hearing officer and ODJFS’ found that appellant did not present any specific evidence of

medical necessity, yet simultaneously discounted the specific evidence of medical

necessity presented by appellant as “physician recommendations.”

       {¶50} Based upon the totality of the evidence, we find the trial court abused its

discretion in finding the agency decision was supported by a preponderance of the
Licking County, Case No. 2019 CA 00047                                                  19


reliable, probative, and substantial evidence. Appellant’s second and third assignments

of error are sustained.

                                               IV.

       {¶51} In her fourth assignment of error, appellant contends the trial court abused

its discretion when it found Daniel had not been denied Due Process and Equal Protection

of the Law. However, appellant does not identify a specific equal protection violation in

this case. Further, as to appellant’s due process argument, due process requires a

government agency to provide an individual with reasonable notice and a meaningful

opportunity to be heard before a final administrative decision. Ohio Assn. of Public School

Emp. v. Lakewood City School Dist. Bd. of Edn., 68 Ohio St.3d 175, 624 N.E.2d 1043

(1994). In this case, appellant was provided with reasonable notice and a meaningful

opportunity to be heard before the state hearing officer and ODJFS issued their decisions.

Accordingly, appellant’s fourth assignment of error is overruled.

       {¶52} Based on the foregoing, appellant’s first, second, and third assignments of

error are sustained.
Licking County, Case No. 2019 CA 00047                                         20


      {¶53} The May 29, 2019 judgment entry of the Licking County Court of Common

Pleas is reversed and we reverse and vacate the decision and order by ODJFS.



By Gwin, P.J.,

Baldwin, J., and

Wise, Earle, J., concur
