                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0454n.06

                                          No. 17-4301

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 CYNTHIA CARPENTER-BARKER, as next friend )
                                                                                FILED
                                                                          Aug 31, 2018
 on behalf of Megan Carpenter,              )
                                            )                         DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,                )
                                            )
                                                               ON APPEAL FROM THE
                v.                          )
                                                               UNITED STATES DISTRICT
                                            )
                                                               COURT     FOR      THE
 OHIO       DEPARTMENT         OF MEDICAID; )
                                                               SOUTHERN DISTRICT OF
 DIRECTOR BARBARA SEARS, in her official )
                                                               OHIO
 capacity,                                  )
                                            )
        Defendants-Appellees.               )
                                            )



BEFORE: SILER, MOORE, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Ohio’s Medicaid program provides to plaintiff’s disabled, adult daughter in-home nursing

care. Plaintiff sued defendants, alleging their continual attempts to reduce the number of nursing

hours placed her daughter at risk of institutionalization and failed to provide services in as

integrated a setting as possible, in violation of the Americans with Disabilities Act and the

Rehabilitation Act of 1973. The district court granted summary judgment in favor of defendants.

Because we agree that plaintiff failed to raise any genuine issue of material fact on her

discrimination claims, we affirm.
No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


                                                 I.

         This lawsuit follows numerous state-agency proceedings involving the proper level of

medical care Megan Carpenter should receive. By all accounts, Megan is gravely ill. She suffers

from a panoply of serious conditions, most concerning among them her “sub-cortical myoclonus

(a short-circuiting that occurs in the brain-stem and that triggers seizure activity),” which can be

life threatening if unidentified and left untreated. Moreover, Megan is substantially immobile;

presents with self-injurious behavior, outbursts, and aggression; is nonverbal; and is wholly unable

to care for herself. Megan’s conditions have been lifelong, complex, progressive, and potentially

fatal.   As a result of these serious and life-threatening conditions, Megan’s physician has

continually ordered that she receive 24/7 nursing care.

         Megan lives with her mother, plaintiff Cynthia Carpenter-Barker, and receives various

forms of government assistance to help defray the costs of the large amount of care she requires.

One major form of assistance is the “Individual Options” program offered by defendants, the Ohio

Department of Medicaid and its director Barbara Sears. This program “provides home and

community-based services to people with developmental disabilities who would otherwise require

institutionalization.” Megan also receives private duty nursing services provided through the

Medicaid State Plan, which is administered by defendants.

         Under Ohio law, private duty nursing hours must be pre-authorized every year. See Ohio

Admin. Code 5160-12-02.3(D). Before 2008, defendants authorized Megan to receive 24/7 private

duty nursing care, as ordered by her treating physician. That year, however, defendants attempted

to reduce Megan’s authorization for services from 168 to 112 hours per week. Megan successfully

challenged this evaluation through the state-agency process and retained her 168 weekly hours of

private duty nursing.


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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


       In 2009, defendants again tried to reduce Megan’s private duty nursing hours to 112 per

week. This time, the state hearing officer found defendants’ decision to reduce the private duty

nursing hours reasonable. Plaintiff and Megan appealed that decision to the Administrative Appeal

Section of the agency, and the appeals panel found 112 hours of private duty nursing care

insufficient and that Megan required 128 weekly hours of private duty nursing. The appeals panel

determined that Megan did not require a private duty nurse for 40 hours during the week because

she attended a workshop during normal work hours; but the panel reasoned that nursing care was

still necessary for the other 128 hours of the week.

       In 2010, defendants again tried to reduce Megan’s nursing hours to 112 per week. Megan

again appealed defendants’ initial determination, and the state hearing officer dismissed her

appeal, agreeing with defendants that the reduction in private duty nursing hours was supported

by the evidence. Megan again appealed to the Administrative Appeal Section, which overturned

the state hearing officer’s decision and found the 128 weekly hours she had been receiving to be

medically necessary.

       The next assessment, in 2012, authorized 128 weekly hours of private duty nursing for

Megan, and it went unchallenged. But the following year, 2013, defendants authorized only

56 weekly hours of private duty nursing care. At the subsequent hearing, defendants argued that

Megan received “128 hours for [private duty nursing] services, 62 hours for [“Individual Options”]

services, 32 hours of workshop services, and this total is 222 hours; while total hours during 7 days

is 168 hours (24 hours x 7).” Defendants reasoned that the services were duplicative, and that

personal care aides could perform most of the tasks performed by nurses. Ultimately, the state

hearing officer agreed with defendants’ assessment that 56 weekly hours of private duty nursing

services were sufficient.


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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


       Plaintiff appealed this determination to the Administrative Appeal Section, which vacated

the state hearing officer’s decision and remanded for additional fact-finding. On remand, the state

hearing officer again recommended that Megan’s appeal be overruled. Responding to the specific

remand instructions given, the state hearing officer found that the “Individual Options” aides are

legally allowed to administer Megan’s prescription medications in the event of a seizure and the

agency could allow the aides to do so. On this basis, the state hearing officer agreed with

defendants’ recommendation that Megan receive 56 weekly hours of private duty nursing care.

The state hearing officer did not, however, allow plaintiff and Megan to present any documentary

evidence or witnesses at this second hearing.

       Plaintiff again appealed this determination to the Administrative Appeal Section. The

appeal panel found that the state hearing officer violated Megan’s due process rights by refusing

to consider her additional evidence at the remand proceeding. The panel vacated the decision and

“remand[ed] the matter for a further state hearing to answer the questions we previously posed and

carefully consider and analyze all the evidence presented including that from the Agency as well

as Appellant.” After this second remand, the state hearing officer again found that that “Individual

Options” aides are legally allowed to administer Megan’s prescription medications in the event of

a seizure, and that the agency could allow the aides to do so. Though plaintiff’s county Board of

Disability Determinations stated that aides would need additional training to administer her

medications, the county board planned to initiate conversations with Megan’s physician to

reasonably facilitate the reduction in private duty nursing hours to accommodate the change. The

state hearing officer again recommended that Megan’s appeal be overruled.

       Plaintiff again appealed to the Administrative Appeal Section, arguing that the state hearing

officer erred in concluding that “Individual Options” aides could administer Megan’s medications.


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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


The appeal panel held that, under Ohio Administrative Code § 5123:2-6-03, non-nursing aides

could administer medications, and the law also allowed nurses to delegate such tasks to the aides.

That said, the panel “agree[d] with the hearing officer that until the aides are appropriately trained

to administer [Megan]’s medication, [her] private duty nursing hours should not be reduced.”

Therefore, the appeals panel affirmed the decision of the state hearing officer but held that

enforcement of the order, and the reduction in private duty nursing hours, could not commence

until certified aides were trained and in place to administer Megan’s medications.

       Plaintiff appealed this final agency decision to the Butler County, Ohio, Court of Common

Pleas. On August 18, 2014, the parties entered into a settlement agreement, agreeing to dismiss

the case. In this settlement, defendants agreed not to reduce Megan’s private duty nursing hours

from 128 hours per week, subject to future assessments. The parties also agreed, consistent with

the ruling of the Administrative Appeal Section, that no certified aide could administer Megan’s

medication unless they met all the requirements of Ohio Administrative Code § 5123:2-6-03, nor

could they administer any “as needed” medication, “unless the prescribing order is written with

specific parameters precluding independent nursing judgment.”

       Two months after the settlement, defendants again evaluated the medical necessity of

Megan’s services, and recommended a reduction of private duty nursing hours, from 128 to 56 per

week, to begin on December 1, 2015. Plaintiff requested another state hearing to contest the

assessment, but filed this lawsuit before the completion of those proceedings. In her federal

complaint, she alleged that defendants violated Megan’s procedural due process rights, the

Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973.1 Plaintiff requested


       1
        The district court dismissed as moot plaintiff’s due process claim at the judgment-on-the-
pleadings stage because plaintiff explicitly limited the scope of that claim to defendants’ 2014
reduction of private duty nursing hours and the parties subsequently agreed not to reduce her hours
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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


that the district court declare that defendants had violated both the ADA and the Rehabilitation

Act, enjoin defendants from continuing to violate Megan’s due process rights, enjoin defendants

from continuing to discriminate against Megan on the basis of her disability, and award plaintiff

reasonable attorneys’ fees and costs. Defendants agreed to maintain Megan’s existing services

during the pendency of the federal lawsuit, so plaintiff withdrew her request for a state hearing on

the most recent assessment.

       After discovery, the parties filed cross-motions for summary judgment. The district court

ultimately agreed with defendants, granted their motion for summary judgment, and determined

that plaintiff’s ADA and Rehabilitation Act claims were meritless.          The court also denied

plaintiff’s requests for injunctive relief relating to future evaluations of the medical necessity of

Megan’s private duty nursing hours, because the responsibility for such evaluations had been

shifted by law from defendants to the Ohio Department of Developmental Disabilities, thereby

mooting plaintiff’s claim. However, the district court did grant plaintiff’s subsequent motion to

stay the judgment and for a preliminary injunction pending appeal. Plaintiff now appeals.

                                                 II.

       We review the grant of summary judgment de novo. Keith v. Oakland Cty., 703 F.3d 918,

923 (6th Cir. 2013). Summary judgment is proper “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “To prevail, the nonmovant must show sufficient evidence to create a genuine issue

of material fact, which is to say, there must be evidence on which the jury could reasonably find

for the nonmovant.’” Sumpter v. Wayne Cty., 868 F.3d 473, 480 (6th Cir. 2017) (internal quotation




in that year. Plaintiff does not challenge the district court’s dismissal of her due process claim on
appeal.
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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


marks and brackets omitted). All evidence and inferences therefrom must be viewed in the light

most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).




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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


                                                 III.

       On appeal, plaintiff argues that the district court erred in granting defendants’ summary

judgment motion regarding her ADA and Rehabilitation Act claims and denying her a permanent

injunction on mootness grounds. We address each in turn.

                                                  A.

       Section 504 of the Rehabilitation Act provides, in pertinent part, that “[n]o otherwise

qualified individual with a disability in the United States . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C.

§ 794(a). Similarly, Title II of the ADA mandates that “no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the benefits of

the services, programs, or activities of a public entity, or be subjected to discrimination by any

such entity.” 42 U.S.C. § 12132. The ADA provides that “[t]he remedies, procedures, and rights

set forth in [§ 505 of the Rehabilitation Act, 29 U.S.C. § 794a,] shall be the remedies, procedures,

and rights this subchapter provides to any person alleging discrimination on the basis of disability

in violation of section 12132 of this title.” 42 U.S.C. § 12133; see also Ability Ctr. of Greater

Toledo v. City of Sandusky, 385 F.3d 901, 905 (6th Cir. 2004). In other words, the remedies,

procedures, and rights available under Title II of the ADA parallel those available under the

Rehabilitation Act. See, e.g., Olmstead v. L.C., 527 U.S. 581, 606 n.16 (1999); 42 U.S.C.

§ 12134(b) (providing that regulations promulgated under the ADA shall be consistent with the

Rehabilitation Act).

       Congress enacted the ADA “to provide a clear and comprehensive national mandate for

the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1);


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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). The ADA’s prohibition of

discrimination in services, programs, or activities “encompasses virtually everything that a public

entity does.” Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998). Within the ADA,

Congress granted the Attorney General the authority to promulgate regulations necessary to its

implementation, 42 U.S.C. § 12134(a), which “are entitled to ‘controlling weight, unless they are

arbitrary, capricious, or manifestly contrary to the statute.’” Johnson, 151 F.3d at 570 (quoting

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)). One such

regulation known as the “integration mandate” provides that “[a] public entity shall administer

services, programs, and activities in the most integrated setting appropriate to the needs of

qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). An almost-identical regulation

promulgated under the Rehabilitation Act requires recipients of federal funds to “administer

programs and activities in the most integrated setting appropriate to the needs of qualified

handicapped persons.” 28 C.F.R. § 41.51(d).

       Though plaintiff’s complaint alleged violations of both the ADA and the Rehabilitation

Act, the district court was correct to rule that the complaint presents “essentially one claim”—that

defendants put Megan at risk of institutionalization by attempting to reduce her private duty

nursing hours in violation of the Supreme Court’s Olmstead opinion and the ADA’s and the

Rehabilitation Act’s integration mandates.2


       2
          To the extent that plaintiff’s arguments on appeal encompass both an integration claim
and a typical claim of disability discrimination, she waived the latter by stipulation below. In that
joint stipulation, the parties agreed that plaintiff and Megan did not “intend to seek any relief other
than” “a declaration from the Court that Defendants’ actions in proposing to reduce the number of
hours of [private duty nursing] services authorized for [Megan] through the State Medicaid plan
in 2014 places her at risk of institutionalization in violation of the ADA and Section 504,” “an
order from the Court requiring Defendants to reimburse the cost of providing [Megan] with the
amount of nursing services she needs to prevent institutionalization or a risk of
institutionalization,” and “an order from the Court requiring Defendants to refrain from attempting
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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


       In Olmstead, the two plaintiffs were intellectually disabled women who had been

institutionalized for psychiatric care at a Georgia hospital. 527 U.S. at 593. Both the plaintiffs’

psychologists (who were employed by the state) recommended that the plaintiffs be “treated

appropriately in a community-based setting,” but they nevertheless remained institutionalized. Id.

They filed suit, alleging that their confinement in a segregated environment violated the ADA. Id.

The Supreme Court agreed, holding that “[u]njustified isolation . . . is properly regarded as

discrimination based on disability.” Id. at 597; see also id. at 600. The Court noted that this

determination, based in the language of the ADA, “reflects two evident judgments”—first,

institutional placement of individuals who could benefit from community settings perpetuates

assumptions that such isolated persons are unworthy of participation in community life, and

second, confinement in an institution diminishes the life activities and enjoyment of such

individuals. Id. at 600–01. Thus, the Court held that unwarranted institutionalization was

discriminatory under the ADA because it required persons with mental disabilities to relinquish

participation in community life in order to receive needed medical services. Id. at 601.

       But the Court also explained what did not violate the integration mandate. The Court held

that a state is entitled to “rely on the reasonable assessments of its own professionals in determining

whether an individual ‘meets the essential eligibility requirements’ for habilitation in a

community-based program.” Id. at 602 (quoting 42 U.S.C. § 12131(2)). The Court also cited

favorably School Board of Nassar County v. Arline, 480 U.S. 273, 288 (1987), for the proposition

that “courts normally should defer to the reasonable medical judgments of public health officials,”



to reduce the number of hours of nursing services authorized for [Megan] unless or until [Megan]’s
treating physician determines that her medical conditions have improved such that her need for
nursing services is reduced . . . .” This stipulation limits plaintiff to Olmstead-type integration
claims, and we are bound by this stipulation. Varga v. Rockwell Intern. Corp., 242 F.3d 693, 699
(6th Cir. 2001).
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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


Olmstead, 527 U.S. at 602, and concluded that there was no genuine dispute over whether the

plaintiffs should have been granted community-based, noninstitutional care, because the

defendants’ “own professionals determined that community-based treatment would be appropriate

for [the plaintiffs], and neither woman opposed such treatment.” Id. at 603. Finally, the Court

cautioned that it was neither imposing a standard of care on the states nor holding that the ADA

required states to provide a certain level of benefits to disabled individuals. Id. at 603 n.14.3

Instead, the states must only “adhere to the ADA’s nondiscrimination requirement with regard to

the services they in fact provide.” Id. In sum, Olmstead requires that states accommodate

qualifying individuals by allowing them to receive their treatment in an integrated setting; it does

not set a standard of care or specifically require that states offer all the aid a patient wants.

        In the present case, plaintiff’s claims of discrimination are analogous to that which the

Supreme Court held the ADA does not require.              Plaintiff has not alleged that defendants

discriminated against Megan by offering certain services in an institutional setting but not in a

community-based setting. Megan’s care—at least what is at issue in this case—has been offered

in her own home. Instead, defendants have done what Olmstead specifically allows: they “rel[ied]

on the reasonable assessments of [their] own professionals” in determining what amount of private

duty nursing care Megan requires. Id. at 602; see also Arline, 480 U.S. at 288. In other words,

plaintiff’s claim fails because the ADA does not “impose[] on [defendants] a ‘standard of care’ for

whatever medical services they render,” nor does it “require[] [defendants] to ‘provide a certain




        3
        Medicaid does require that states that enter into a partnership with the government to
provide medical assistance to low-income families must provide certain baseline levels of care.
See 42 U.S.C. § 1396a(a)(10)(A). But neither party alleges that Ohio’s Medicaid system falls
below this baseline level.
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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


level of benefits to individuals with disabilities.’” Olmstead, 527 U.S. at 603 n.14 (citation

omitted).

       The parties presented the district court with voluminous records reflecting the

individualized determination defendants made regarding the reduction in Megan’s private duty

nursing hours. And while plaintiff has found much to protest about defendants’ medical judgments

and determinations of medical necessity, none of that rises to the level of discrimination proscribed

by the ADA and discussed in Olmstead. Id. at 600–01; see also id. at 603 n.14. In general,

individualized and fact-specific determinations of a disabled person’s medical needs, will not

constitute impermissible discrimination, and are in fact required under the ADA. 42 U.S.C.

§§ 12131(2), 12132; 28 C.F.R. § 35.130(d); Olmstead, 527 U.S. at 602. The state agency

proceedings that the parties have engaged in for years are better suited to address plaintiff’s

challenges to defendants’ medical judgment in seeking to lower Megan’s private duty nursing

hours. Absent evidence of discrimination under the ADA and Rehabilitation Act, or a violation of

the integration mandate, the district court correctly granted summary judgment in favor of

defendants.

       And though plaintiff cites several sister-circuit cases applying Olmstead for the proposition

that the risk of institutionalization can support a valid claim of discrimination under the ADA, the

district court correctly distinguished each. Each of those cases involved a broader policy that

happened to increase the risk of one or more individuals’ institutionalization, not a one-off needs

assessment. See Pashby v. Delia, 709 F.3d 307, 313, 315, 322–24 (4th Cir. 2013); M.R. v. Dreyfus,

697 F.3d 706, 723–24 (9th Cir. 2012); Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599,

602–03 (7th Cir. 2004); Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1178–79 (10th Cir.

2003); Townsend v. Quasim, 328 F.3d 511, 513–14 (9th Cir. 2003). While these cases provide


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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


reasonable applications of Olmstead’s holding, they do not address what occurred here—an

individualized determination by a state’s professionals of the proper level of care a single disabled

individual required. Though we need not decide whether an individualized determination can ever

support a claim under Olmstead, the individualized determinations here do not evince the sort of

discriminatory animus necessary to bring such a claim. Plaintiff has failed to present a jury-

submissible claim under Olmstead, and the district court properly entered summary judgment in

defendants’ favor.

                                                  B.

       Turning to plaintiff’s challenge to the district court’s denial of a permanent injunction on

mootness grounds, we also find no basis for reversal.

       “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of

Article III—when the issues presented are no longer ‘live’ or the parties lack a legally cognizable

interest in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). This “actual

controversy” requirement must exist at all stages of the litigation. Alvarez v. Smith, 558 U.S. 87,

92 (2009). “A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not

suffice to moot a case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 174 (2000). But “[a] case might become moot if subsequent events made it absolutely clear

that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. at 189

(quoting United States v. Concentrated Phospate Exp. Ass’n, 393 U.S. 199, 203 (1968)). We have

also noted that “cessation of the allegedly illegal conduct by government officials has been treated

with more solicitude by the courts than similar action by private parties . . . . [S]uch self-correction

provides a secure foundation for a dismissal based on mootness so long as it appears genuine.”

Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990) (quoting Ragsdale v. Turnock, 841 F.2d


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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


1358, 1365 (7th Cir. 1988)). That said, the party arguing that a change in law moots a case still

has a heavy burden of persuading the court that the challenged conduct cannot reasonably be

expected to recur. Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003).

         Akers is particularly on point. In that case, the Michigan Department of Corrections argued

that the plaintiffs’ challenges to its prior administrative rule were mooted by a change to that rule.

Id. This court, however, declined to find mootness and held that there was “no guarantee that [the

Michigan Department of Corrections] will not change back to its older, stricter Rule as soon as

this action terminates.” Id. This was so because rulemaking authority in that area of the law lay

solely with the defendant. Id. The same is true here. Rulemaking authority pertaining to the

administration of Medicaid and Medicaid funds has been granted solely to the Director of the Ohio

Department of Medicaid. Ohio Rev. Code § 5162.02. Therefore, it is not clear that the regulatory

change of the agency responsible for authorizing private duty nursing, see Ohio Admin. Code

§ 5160-12-02.3(D) (Jul. 1, 2017) (requiring the Ohio Department of Developmental Disabilities,

rather than defendants, to now administer private duty nursing requests), suffices to moot this

claim.     Even though defendants are not currently performing the private duty nursing

authorizations, there is no obvious reason why the court could not still enjoin defendants from

decreasing Megan’s weekly private duty nursing hours in the future—though the utility of such an

order under current Ohio law seems limited at best, given that defendants are not responsible for

assessing such requests.

         But, even assuming the district court erred in finding plaintiff’s claims for injunctive relief

moot, plaintiff has not met her burden of proving a right to a permanent injunction on the merits.

Because the district court correctly held that defendants did not discriminate against Megan under

the ADA or the Rehabilitation Act by reducing her private duty nursing hours, plaintiff failed to


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No. 17-4301, Carpenter-Barker v. Ohio Dep’t of Medicaid, et al.


establish actual success on her claim. See Am. Civil Liberties Union of Ky. v. McCreary Cty., Ky.,

607 F.3d 439, 445 (6th Cir. 2010). Without either establishing a violation or showing that any

hypothetical violation of the ADA and Rehabilitation Act would continue, plaintiff’s claims merit

no permanent injunction. Id. And the specific relief plaintiff requested—that defendants be

prevented from reducing Megan’s private duty nursing hours below the 128 per week she

previously received unless authorized by her treating physician—would violate Ohio law, which

requires the state agency to determine medical necessity. See Ohio Admin. Code § 5160-12-

02.3(D)(2). Federal law explicitly allows this procedure. 42 C.F.R. § 440.230(d) (“The agency

may place appropriate limits on a service based on such criteria as medical necessity or on

utilization control procedures.”). For these reasons, plaintiff’s claims for a permanent injunction

are meritless.

                                               IV.

       We affirm the judgment of the district court.




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