[Cite as Peck c/o Legacy Health Servs v. Dept. of Job and Family Servs., 2018-Ohio-2353.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


EVELYN PECK c/o LEGACY HEALTH                           :           OPINION
SERVICES d.b.a. MAPLEVIEW
COUNTRY VILLA,                                          :
                                                                    CASE NO. 2018-G-0152
                 Appellant,                             :

        - vs -                                          :

OHIO DEPARTMENT OF JOB &                                :
FAMILY SERVICES,
                                                        :
                 Appellee.
                                                        :


Administrative Appeal from the Geauga County Court of Common Pleas, Case No.
2017A000359.

Judgment: Affirmed.


Jennifer Ann Coy, sb2, Inc., 1426 North 3rd Street, Suite 200, P.O. Box 5400,
Harrisburg, PA 17110 (For Appellant).

Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215, and Rebecca L. Thomas, Assistant Attorney General,
State Office Tower, 30 East Broad Street, 26th Floor, Columbus, OH 43215 (For
Appellee).


DIANE V. GRENDELL, J.

        {¶1}     Appellant, Evelyn Peck c/o Legacy Health Services d/b/a Mapleview

Country Villa, appeals the dismissal of its appeal of an administrative appeal decision by

the Geauga County Court of Common Pleas. The issues before this court are whether

a reviewing court may amend a notice of appeal after the dismissal of the appeal and
whether a nursing facility may seek an undue hardship exemption as an authorized

representative on behalf of a client in the absence of express authorization to initiate

such a proceeding. For the following reasons, we affirm the decision of the court below.

      {¶2}   On May 4, 2017, Legacy Health Services d/b/a Mapleview Country Villa

filed a Notice of Appeal to Court of Common Pleas, providing as follows:

                    Pursuant to R.C. § 5101.35(E) and R.C. § 119.12, notice is

             hereby given that Legacy Health Services d/b/a Mapleview Country

             Villa (hereinafter “Mapleview”), on behalf of Evelyn Peck, as her

             Designated    Authorized    Representative,   by      and   through   its

             undersigned counsel, hereby appeals the ODJFS Bureau of State

             Hearings’ April 18, 2017 Administrative Appeal Decision, Appeal

             No. 4174041, to the Geauga County Court of Common Pleas.

The Notice was filed by Jennifer A. Coy of the law firm sb2 inc.

      {¶3}   The Administrative Appeal Decision, rendered by the Ohio Department of

Job and Family Services, provides the relevant factual background:

                    [Evelyn Peck] is 103 years old and in a nursing facility (NF).

             [Her] son is her Power of Attorney and authorized representative

             (AR). An application for long term care facility (LTCF) benefits was

             made by the son on July 25, 2016.         The application/verification

             process was completed by [Evelyn’s] son.        The application was

             approved with an RMCP [restricted Medicaid coverage period] from

             September 1, 2016 through January 31, 2017 and a partial for

             February 2017. * * * The RMCP resulted from an improper transfer




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               of $34,000 as a result of [Evelyn’s] son writing checks out of his

               mother’s account for that total.

                       On December 7, 2016, the NF issued a 30-day discharge

               notice to [Evelyn] and the AR.          * * *    The discharge was not

               appealed through the Department of Health.             On December 21,

               2016, a written request for an undue hardship exemption was

               submitted by the NF. * * *

                       The Agency denied that hardship request on January 13,

               2017 on the grounds that [Evelyn] was not in jeopardy of being

               denied basic needs due to not exhausting all legal remedies and

               appeals to challenge the planned discharge or to recover

               transferred assets. * * *

               ***

                       Having reviewed the record and decision, we must agree

               with the decision that the requirement of the rule1 is plain and

               [Evelyn] did not comply.

       {¶4}    On June 26, 2017, Job and Family Services filed a Motion to Dismiss for

the following reason: “The Court lacks jurisdiction because Legacy Health Services

d/b/a Mapleview Country Villa is not the real party in interest and lacks standing to

prosecute this appeal on Ms. Peck’s behalf.”

       {¶5}    On July 5, 2017, Attorney Coy, on behalf of Peck c/o Mapleview filed a

Motion in Opposition to Appellee’s Motion to Dismiss, contending that Mapleview had


1. Former Ohio Adm.Code 5160:1-3-07.2(N)(4)(d)(ii) [now 5160:1-6-06.6(E)(4)(b)]: “The Individual has
exhausted all administrative remedies to challenge the planned discharge.”


                                                 3
standing to bring the appeal as Peck’s authorized representative: “Prior to her

admission [to Mapleview Country Villa], Ms. Peck designated Mark Ross as her Power

of Attorney.    * * *     Mark Ross, in turn, executed a Designation of Authorized

Representative form on November 2, 2016 which designated Sharon Robinette of

Mapleview to serve as Ms. Peck’s authorized representative. * * * Sharon Robinette of

Mapleview retained sb2 inc. as legal counsel to represent Ms. Peck and appeal GDJFS’

denial of the Undue Hardship Exemption request.”

       {¶6}    On July 11, 2017, the trial court on its own motion advised the parties that

Evelyn Peck had died on June 5, 2017.

       {¶7}    On November 14, 2017, Attorney Coy, on behalf of “Plaintiff * * *

Mapleview Country Villa as authorized representative of Evelyn Peck,” filed a Motion for

Substitution of Party–Deceased Plaintiff, “giv[ing] notice of the Death of Plaintiff Evelyn

Peck in this action and mov[ing] that the Special Administrator of Evelyn Peck’s Estate,

Jennifer Coy, be substituted for Evelyn Peck as Plaintiff in the instant action pursuant to

Ohio R. Civ. P. 25(A).”

       {¶8}    On December 22, 2017, the trial court granted Job and Family Services’

Motion to Dismiss. The court ruled:

                     The Court agrees with ODJFS that Mapleview lacked

               standing to file an appeal with this Court on behalf of Evelyn Peck.

               Although OAC 5160-33, et seq., permits the designation of an

               Authorized Representative for purposes of applying for Medicaid

               benefits and for administrative appeals relative to those Medicaid

               benefits, the Administrative Code does not and cannot authorize




                                             4
             Mapleview to file an appeal with the Court of Common Pleas on

             behalf of Evelyn Peck.

                    A review of the Authorized Representative Designation

             purportedly authorizing Mapleview to prosecute the within appeal

             discloses that Mrs. Peck’s son, Mark Ross, authorized one Sharon

             Robinette, an employee of Mapleview, to act as Mrs. Peck’s

             Authorized     Representative.       Nothing   within   the   Authorized

             Representative Designation [sic] is there any provision which could

             reasonably be interpreted as the grant of authority to Mapleview to

             prosecute an appeal to the Court of Common Pleas on behalf of

             Evelyn Peck.

                    The attempt to substitute Jennifer Coy for Evelyn Peck is to

             no avail.    As stated above, Mapleview lacked standing to file a

             Notice of Appeal on behalf of Evelyn Peck. The Probate Court’s

             appointment of Jennifer Coy as Special Administrator of Evelyn

             Peck’s Estate does not relate back to and correct the faulty filing of

             the Notice of Appeal.

      {¶9}   On December 26, 2017, Attorney Coy on behalf of Peck c/o Coy as the

Special Administrator of Peck’s Estate filed a Motion for Leave to File an Amended

Notice of Appeal.

      {¶10} On January 26, 2018, Evelyn Peck c/o Jennifer A. Coy as Special

Administrator of the Estate of Evelyn Peck filed a Notice of Appeal. For the sake of




                                              5
convenience, the appellant shall be referred to as Mapleview. On appeal, the following

assignments of error are raised:

       {¶11} “[1.] The Geauga County Court of Common Pleas abused its discretion by

denying Appellant’s Motion for leave to file an Amended Notice of Appeal because it

failed to consider whether granting leave was in the interests of justice or whether

Appellant had acted in bad faith or caused undue delay. Had the Geauga County Court

of Common Pleas considered these factors it would have granted leave to file the

Amended Notice of Appeal.”

       {¶12} “[2.] The Geauga County Court of Common Pleas erred in concluding that

Appellant lacked standing to pursue an appeal to the Court of Common Pleas. Whether

Mapleview had authority to file a Notice of Appeal on behalf of Evelyn Peck is an issue

of capacity not standing.”

       {¶13} “[3.] The Geauga County Court of Common Pleas erred in concluding that

Mapleview lacked standing to pursue an appeal of an administrative appeal decision to

the court of common pleas.”

       {¶14} “[4.] The Geauga County Court of Common Pleas erroneously determined

that the nursing facility lacked organizational standing to pursue an appeal on a

resident’s behalf.”

       {¶15} In its first assignment of error, Mapleview argues that the trial court erred

in denying the Motion for Leave to File an Amended Notice of Appeal.

       {¶16} As Job and Family Services notes, the trial court never ruled on this

Motion as it was filed after the appeal had been dismissed. With respect to this Motion,

there is no judgment for this court to review.     The issue of whether the trial court




                                            6
retained jurisdiction to Rule on the Motion, raised by Job and Family Services, need not

be decided. Minnillo v. Friedland, 8th Dist. Cuyahoga No. 100359, 2014-Ohio-33, ¶ 8

(“[t]he termination of jurisdiction principle is that when a case is dismissed or reaches

final judgment, the trial court loses authority to proceed with any aspect of the case”).

        {¶17} The first assignment of error is without merit.

        {¶18} The next three assignments of error challenge the trial court’s dismissal of

the administrative appeal and will be considered jointly.2

        {¶19} Although the issue has been presented in terms of standing, we agree

with Mapleview that the issue is not whether it has been adversely affected by a

decision of Job and Family Services so as to have standing to bring the appeal.

Rollman & Sons Co. v. Bd. of Rev. of Hamilton Cty., 163 Ohio St. 363, 365, 127 N.E.2d

1 (1955) (“one who is not injured thereby cannot question the validity of a statute or an

order of an administrative body”).            The underlying administrative appeal was not

initiated in Mapleview’s name but on behalf of Peck by Mapleview through Mapleview’s

counsel, Jennifer Coy. The issue is not whether Mapleview had standing, but whether

Mapleview/Coy was duly authorized by Peck to file on her behalf. See T. Ryan Legg

Irrevocable Trust v. Testa, 149 Ohio St.3d 376, 2016-Ohio-8418, 75 N.E.3d 184, ¶ 15

(“[w]hen an attorney files an appeal, it is presumed he has the requisite authority to do

so”) (citation omitted).

        {¶20} Accordingly, Job and Family Services’ reliance on Harrison v. Pub. Util.

Comm., 134 Ohio St. 346, 347, 16 N.E.2d 943 (1938), for the proposition that “[u]nless

a statute otherwise provides it is fundamental that no one can appeal from an order to

which he is not a party,” is inapposite. Mapleview did not initiate the administrative

2. At oral argument, counsel for Mapleview withdrew the third assignment of error.


                                                   7
appeal to vindicate its own rights but those of Evelyn Peck. This much is evident from

the Administrative Appeal Decision being appealed.

        {¶21} As Mapleview’s authority to act on behalf of Peck is dependent upon

written authorization, Ohio Adm.Code 5160-1-33(A)(3), we shall review the construction

of the writing under the de novo standard proper for the construction of other written

documents. Long Beach Assn., Inc. v. Jones, 82 Ohio St.3d 574, 576, 697 N.E.2d 208

(1998).

        {¶22} The underlying administrative appeal arose from Mapleview’s efforts to

obtain an undue hardship exemption to a restricted Medicaid coverage period (or

RMCP) limiting Peck’s award of long term care facility benefits. R.C. 5163.30(C)(1)

(“[a]n institutionalized individual may be granted a waiver of all or a portion of the period

of ineligibility to which the individual would otherwise be subjected * * * if the ineligibility

would cause an undue hardship for the individual”).                     “The individual, his or her

authorized representative, or with the consent of the individual or his or her authorized

representative, the nursing facility in which the individual resides, may request an undue

hardship exemption.” Former Ohio Adm.Code 5160:1-3-07.2(N)(3).3

        {¶23} On November 2, 2016, Mark Ross executed an Authorized Representative

Designation Form, designating Sharon Robinette as an Authorized Representative for

Applicant/Recipient Evelyn Peck.4                The Form contains a space where the

Applicant/Recipient is to “CHECK ITEMS WHERE YOU WANT THE AUTHORIZED

3. The regulations establishing the exemption are now, with changes, found at Ohio Adm.Code 5160:1-6-
06.6.
4. The execution of the Designation Form is peculiar in that the Applicant/Recipient is identified as
Evelyn Peck yet the box designated Signature of Applicant/Recipient is signed by Mark G. Ross –
presumably in his capacity as power of attorney or authorized representative although this is not indicated
on the Form. Also, the designated Authorized Representative is identified as Sharon Robinette –
apparently in her individual capacity inasmuch as there is no indication on the Form that she has any
connection with Mapleview.


                                                    8
PERSON TO ASSIST YOU.” See Ohio Adm.Code 5160-1-33(A)(3) (“[t]he designation

of an authorized representative * * * must identify what duties the individual is

authorizing the representative to perform”).

      {¶24} The following items were               checked:   “Receive   instructions and/or

correspondence on my behalf” and “Provide information, documentation, and/or

verification about my case as determined necessary by Geauga County Job & Family

Services (‘GCJFS’).”

      {¶25} The following items were not checked: “File an application on my behalf”;

“Represent me in a State or local Hearing involving GCJFS or the Ohio Department of

Job & Family Services (‘ODJFS’)”; “Represent me in an interview”; “To act on my behalf

for any public assistance provided through SCDJFS [sic] and regarding any follow-up

information or actions concerning my continuing eligibility for services”; “Explain my

Rights and Responsibilities to me”; and “Other (specify).”

      {¶26} In a December 21, 2016 letter to Geauga County Job and Family

Services, Mapleview, “as authorized Rep,” was “requesting the Restricted Medicaid

against Evelyn Peck be reversed.”

      {¶27} We agree with the trial court that nothing in the Authorized Representative

Designation Form could reasonably be construed as authorizing Mapleview to

prosecute an appeal on Peck’s behalf or even to seek the undue hardship exemption.

The Form did nothing more than authorize Robinette (presumably on behalf of

Mapleview) to receive instructions and/or correspondence on Peck’s behalf and provide

information, documentation, and/or verification as required by Geauga Job and Family

Services.   CommuniCare, LLC v. Dungey, S.D.Ohio No. 2:17-cv-934, 2018 WL




                                               9
1762445, *5 (Apr. 12, 2018) (lawsuit filed by nursing facility on behalf of client was

dismissed where “none of the language of the authorized representative form allows for

such a lawsuit”). On this basis, we affirm the decision of the court below.

       {¶28} At oral argument, counsel for Mapleview conceded that the Authorized

Representative Designation Form was defective in that it did not authorize Mapleview to

act on behalf of Peck. Counsel maintained, however, that the lower court should have

allowed Mapleview to “correct” or “ratify” this defect by granting its Motion for

Substitution of Party–Deceased Plaintiff.

       {¶29} Mapleview’s argument is unavailing for several reasons. The Motion for

Substitution was filed pursuant to Civil Rule 25(A), which provides for the survival of

claims following the death of a party, and not Civil Rule 17(A), which provides that an

action shall not be dismissed on the ground that it is not prosecuted in the name of the

real party in interest unless an opportunity is allowed “for ratification of commencement

of the action by * * * the real party in interest.” Mapleview neither availed itself of Civil

Rule 17(A) in the lower court nor sought leave to “correct” or “ratify” the Authorized

Representative Designation Form.

       {¶30} Even if its Motion for Substitution had been based on Civil Rule 17(A), it

would not have cured the defect in the Authorized Representative Designation Form.

As noted above, the administrative appeal was properly filed in the name of Evelyn

Peck, the real party in interest at that time. By the time the Motion for Substitution was




                                             10
filed, Peck had died and there was no possibility of “ratifying” the Form and having such

ratification relate back to the filing of the appeal.5

       {¶31} Job and Family Services argues that the lower court’s decision should be

affirmed because an authorized representative may never, under any circumstances,

initiate an appeal on behalf of an applicant/recipient to the court of common pleas under

R.C. 5101.35(E). Job and Family Services cites the language of the statute that “[a]n

appellant who disagrees with an administrative appeal decision of the director of job and

family services or the director’s designee * * * may appeal from the decision to the court

of common pleas.”         An “appellant” is defined as “an applicant, participant, former

participant, recipient, or former recipient of a family services program.”                       R.C.

5101.35(A)(2).       Job and Family Services maintains that, since an authorized

representative is not expressly included within the definition of an “appellant,” such a

representative may not be authorized to initiate an appeal under R.C. 5101.35(E).

       {¶32} Job and Family Services also relies on federal Medicaid regulations that

an authorized representative’s ability to act on behalf of the applicant/recipient is limited

to “matters with the agency” (42 C.F.R. 435.923(b)(4)), and various common pleas court

decisions adopting its position.         Since we do not find Job and Family Services’

arguments on this issue conclusive and since it is not necessary to adopt such a broad

holding to affirm the lower court’s decision, we decline to do so.

       {¶33} The second and fourth assignments of error are without merit.




5. Although counsel for Mapleview spoke of ratifying the Authorized Representative Designation Form, in
fact a new Form, authorizing Mapleview to represent Peck and act on her behalf before Job and Family
Services, would have had to be executed.


                                                  11
      {¶34} For the foregoing reasons, the decision of the Geauga County Court of

Common Pleas dismissing the administrative appeal on behalf of Evelyn Peck is

affirmed. Costs to be taxed against the appellant.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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