Bacon v. Ohio Dept. of Medicaid

2021 Ohio 4537

• Court: Ohio Court of Appeals
• Decided: December 27, 2021
• Docket: CA2020-11-112 CA2020-11-119
• Status: Published

Opinion

[Cite as Bacon v. Ohio Dept. of Medicaid, 2021-Ohio-4537.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STACEY BACON, :

Appellant, : CASE NOS. CA2020-11-112 CA2020-11-119 : - vs - OPINION : 12/27/2021

OHIO DEPARTMENT OF MEDICAID, :

Appellee. :

ADMINISTRATIVE APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2017-12-2776

Webster & Associates, Co., LPA, and Geoffrey E. Webster and Mary L. Pisciotta, for appellant.

David Yost, Ohio Attorney General, and Katherine J. Bockbrader, Assistant Attorney General, for appellee.

BYRNE, J.

{¶1} Stacey Bacon appeals from a decision of the Butler County Court of Common

Pleas, which affirmed an administrative decision issued by the Ohio Department of Job and

Family Services ("ODJFS") on behalf of the Ohio Department of Medicaid ("Ohio

Medicaid").1 ODJFS's decision denied Bacon's request for 84 hours of weekly private duty

1. As explained below, this is the second time this case has been appealed to our court. Bacon v. Ohio Dept. of Medicaid, 12th Dist. Butler No. CA2019-01-017, 2019-Ohio-3226. Because the basic facts have not changed since the first appeal, we have repeated herein paragraphs from our previous decision, with minor modifications where needed to account for subsequent developments or to provide additional clarity. Butler CA2020-11-112 CA2020-11-119

nursing services on the basis that such services were not medically necessary and Bacon's

need for care could be met through homemaker/personal care providers with medication

certification and nursing task delegation. Bacon argues that the court failed to

independently review the magistrate's decision affirming the agency decision and that the

court otherwise erred in affirming the agency decision. We affirm, concluding that the record

reflects that the court independently reviewed the magistrate's decision and that the agency

decision was not contrary to law.

Factual Background

{¶2} Bacon, who is approximately 40 years old, was severely injured in a car

accident as a teenager. As a result, she is nonverbal and has diagnoses that include severe

traumatic brain injury with severe cognitive deficits and behavioral problems, seizure

disorder, use of a gastrostomy tube ("g-tube"), non-psychiatric brain syndrome,

hydrocephalus (acquired), Kluver-Bucy Syndrome, organic personality disorder,

neurogenic bladder, aphasia and visual agnosia, VP shunt, and severe gait disturbance.

{¶3} Bacon is eligible for Medicaid. Bacon had previously received waiver nursing

services under the Transition Developmental Disabilities waiver program.2 This program

permitted Bacon to receive private duty nursing services from a licensed practical nurse

acting at the discretion of a registered nurse for 12 hours a day, seven days a week, for a

total of 84 hours per week.3 The Transition Developmental Disabilities waiver program was

2. "Waiver nursing services" are those "services provided to an individual who requires the skills of a registered nurse or licensed practical nurse working at the direction of a registered nurse." Ohio Adm.Code 5123-9- 39(B)(18).

3. "Private duty nursing" is a "continuous nursing service that requires the skills of and is performed by either a registered nurse (RN) or a licensed practical nurse (LPN) at the direction of a registered nurse. * * * A covered [private duty nursing] visit must * * * be more than four hours in length but less than or equal to twelve hours in length per nurse, on the same date or during a twenty-four hour time period * * *." Ohio Adm.Code 5160-12-02(A).

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phased out and in 2017 Bacon was enrolled in the Individual Options waiver program. The

Department of Developmental Disabilities ("DODD"), through an interagency agreement

with the Ohio Department of Medicaid, administers the Individual Options waiver program.

{¶4} Under the new program, Bacon applied to continue receiving 84 weekly hours

of private duty nursing services. As a prerequisite to receiving private duty nursing services

under the Individual Options waiver program, an individual must meet certain requirements

and must receive private duty nursing services authorization from the Ohio Department of

Medicaid or its designee. Ohio Adm.Code 5160-12-02.3(A). The Butler County Board of

Developmental Disabilities ("BCBODD") was tasked, pursuant to R.C. 5126.055(A)(1), with

performing an assessment and evaluation of Bacon so it could make a recommendation to

DODD about whether DODD should approve or deny Bacon's application for private duty

nursing services. After completing a nursing task assessment, BCBODD recommended

Bacon's application be denied.

{¶5} In March 2017, DODD notified Bacon of the denial of her request for 84 weekly

hours of private duty nursing services. Instead, DODD determined that Bacon's needs

could be met by providers that do not require nursing licensure. Specifically, DODD found

that Bacon's needs could be met through the services of Homemaker/Personal Care

("HPC")4 providers with medication certifications and nursing task delegation.5

4. Since 2003, Ohio law has authorized DODD personnel trained as HPC providers to perform certain health related activities and to administer medications, upon completion of required training. See R.C. 5123.42. "'Homemaker/personal care' means the coordinated provision of a variety of services, supports, and supervision necessary to ensure the health and welfare of an individual who lives in the community." Ohio Adm.Code 5123-9-30(B)(10). HPC providers may provide "[m]edical and health care services that are integral to meeting the daily needs of the individual such as routine administration of medication or tending to the needs of individuals who are ill or require attention to their medical needs on an ongoing basis." Ohio Adm.Code 5123-9-30(B)(10)(f).

5. A "delegation" is "the transfer of responsibility for the performance of a selected nursing task from a licensed nurse authorized to perform the task to an individual who does not otherwise have the authority to perform the task." Ohio Adm.Code 4723-13-01(B).

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The First State Hearing

{¶6} Bacon disagreed with DODD's denial of private duty nursing hours and timely

requested a state hearing on the decision, as permitted by Ohio Adm.Code 5101:6-3-

01(B)(6). In May 2017, an ODJFS hearing officer held an evidentiary hearing.

{¶7} Sara Keller of BCBODD testified and stated that she had completed the

nursing task assessment for Bacon. Keller determined that all tasks that had been noted

for Bacon's care could be completed by a HPC provider. However, Keller admitted that no

one from BCBODD had physically examined Bacon to determine her care needs.

{¶8} Bacon's Mother, Kristy, testified that Bacon's medical condition was not stable

and that her needs were "always changing." When she was not at work, Kristy constantly

monitored Bacon for seizure activity. Kristy had once administered Bacon's seizure drug,

Ativan, and in doing so, had accidentally overdosed her, causing respiratory distress. Kristy

noted that Bacon suffered chronic urinary tract infections and that there was a connection

between such infections and Bacon's seizures. Kristy reported that the number of seizures

Bacon was suffering had been reduced, but that this was due to Bacon receiving a new

catheter every two weeks.

{¶9} Vickie Franz, a licensed practical nurse, testified that she had served as

Bacon's nurse for six years. In her opinion, Bacon required skilled nursing. Franz described

constantly monitoring Bacon for signs of seizure and for any changes that needed to be

reported. She also noted that Bacon's shunt was 20 years old, and she assessed it three

times daily. Franz would also assess the integrity of Bacon's MIC-KEY button. Franz

administered PRN6 medication as needed per Bacon's doctor's orders, including

6. "PRN" medication derives its name from the Latin phrase pro re nata, meaning "as needed." "As-needed medication" is "any medication that is not scheduled to be administered at a routine time, but is given in

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administering medication after Bacon experienced a seizure. Franz stated that it was not

possible to do what she did without exercising independent nursing judgment.

{¶10} The ODJFS officer subsequently issued a state hearing decision sustaining

Bacon's appeal. The state hearing decision found that:

[BCBODD] ha[d] not identified a qualified, certified homemaker personal care provider trained to meet [Bacon's] need for care; specifically, there [was] no evidence of a qualified waiver aide authorized (both legally and by the county board) to administer PRN seizure medication or otherwise follow seizure protocol. There [were] no physician's orders or current Plan of Care supporting authorization of a waiver aide to provide [Bacon's] care and ensure health and safety.

The state hearing decision directed BCBODD to complete a new face-to-face assessment

of Bacon's need for care, "giving due consideration to all available documentation from

[Bacon's] physicians and medical providers." BCBODD was also ordered to "identify

services which can be provided through homemaker personal care/delegation with

medication certification, as well as those which require provision through waiver nursing, in

order to ensure [Bacon's] health and safety."

The Second State Hearing

{¶11} In compliance with the hearing officer's decision, BCBODD performed a

follow-up in-home nursing task assessment with Bacon, Bacon's parents and guardians,

her independent LPN provider, and a support coordinator. As a result of this assessment,

BCBODD again recommended that Bacon's request for 84 hours of weekly private duty

nursing services be denied. DODD agreed, finding that the nursing task assessment "[did]

not reflect a complexity of care that require[d] continuous nursing care." DODD informed

response to a resident's complaint or expression of discomfort or other indication of a specified condition." Ohio Adm.Code 4723-27-01(C).

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Bacon it was terminating the 84 hours of private duty nursing services and replacing it with

the services of HPC providers with medication certification and nursing task delegation.

Bacon requested a second state hearing.

{¶12} A state hearing officer held a hearing in October 2017. Donna Patterson, a

registered nurse who is responsible for nursing authorizations in the nursing waiver

program, testified on behalf of DODD. Patterson testified about her review of Bacon's plan

of care prepared by her physician, also known as the "485 Plan of Care." This document

listed all of Bacon's physician's orders concerning her care, including a list of prescribed

medications, both routine and PRN. Patterson had also reviewed nursing logs which

depicted the daily activities of Bacon's nurses over two months in 2017. Patterson believed

that Bacon's nursing records indicated that the primary services Bacon was receiving from

her skilled nursing staff were not nursing tasks, but rather personal care services, including

hygiene services, assistance with meal preparation, meal assistance with feedings,

assistance with physical therapy, assisting with Bacon's orthotics, and moving Bacon.

Patterson believed that any nursing tasks being performed were incidental to the personal

services Bacon received.

{¶13} Patterson discussed Bacon's 485 Plan of Care and all its various orders and

opined that nearly all of Bacon's medically necessary needs could be met by an HPC

provider with Level 1 and Level 2 certification, with specific nurse training for Bacon's needs,

along with nursing delegation of certain nursing-specific tasks. To the extent that any task

could not be delegated to an HPC provider, then skilled nursing could be arranged as Bacon

was entitled to up to 14 hours per week of skilled nursing under a state plan home health

service.

{¶14} Patterson further offered that, based on her review of the nursing

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documentation, Bacon's condition was not unstable and did not require the level of care

necessary for constant skilled nurse monitoring. Patterson confirmed that she had reviewed

letters submitted by Bacon's physicians, in which all opined that Bacon needed skilled

nursing care. Patterson acknowledged the doctor's recommendations, but stated that from

her review of Bacon's nursing records, she could not find support for the conclusion that

Bacon was so unstable as to require private duty nursing services.

{¶15} Following the hearing, the state hearing officer issued a decision affirming

DODD's decision to deny Bacon's request for private duty nursing services. The hearing

officer found that there was no dispute that Bacon required around-the-clock care and noted

the physician letters, two of which advised that Bacon should have no less than 16 hours

daily of skilled nursing care. However, the hearing officer found that the nursing records

did not reflect "medical emergencies, seizures, infections or changes in [Bacon's] condition"

that could not be managed by a properly trained and certified HPC provider. The hearing

officer further noted that the physicians' letters were "general in nature."

{¶16} The hearing officer specifically noted one physician's letter which indicated

that monitoring by a skilled nurse was advised due to a recent change in Bacon's

medications. It was revealed during the hearing that the change in medication was to one

prescription, Effexor. The hearing officer noted that this monitoring could be accomplished

by a properly trained HPC provider under the supervision of a registered nurse or physician.

Ultimately, the hearing officer determined that DODD's determination that private duty

nursing services were not medically necessary in Bacon's case was supported by the

evidence presented at the hearing.7

7. The decision further indicated that BCBODD's support coordinator had provided Bacon's mother, Kristy, with the names of independent and agency HPC providers who were willing to work as Bacon's HPC staff.

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Administrative Appeal

{¶17} Bacon filed an administrative appeal with ODJFS.8 On November 16, 2017,

ODJFS issued an administrative appeal decision affirming the state hearing decision,

finding that "it is permissible to delegate the activities in question [regarding Bacon's care]

to HPC individuals. The new assessment has shown that [Bacon's] condition is stable * * *

[and her] needs can be met [through] the HPC providers."

Appeal to the Common Pleas Court and the Twelfth District Court of Appeals

{¶18} Bacon appealed the ODJFS decision to the Butler County Court of Common

Pleas. A magistrate issued a decision in October 2018 affirming the ODJFS decision to

deny Bacon's application for 84 hours of weekly private duty nursing services. The

magistrate found that while it was clear from the record that Bacon needs "substantial care,"

it was also clear that DODD had "fully considered the severity of Ms. Bacon's medical needs

and the level of care necessary to meet those needs." The magistrate concluded that the

"[a]dministrative [a]ppeal decision * * * challenged by [Bacon was] supported by reliable,

probative, and substantial evidence."

{¶19} Bacon objected to the magistrate's decision. She argued that the decision

was contrary to law as it permitted HPC providers, as unlicensed personnel, to administer

PRN medication when HPC providers were not authorized to do so under Ohio law or by

Bacon's 485 Plan of Care. Specifically, Bacon contended that two of her medications,

Ativan and Diastat, are controlled substances which make the administration of the

8. R.C. 5160.31(B)(2) authorizes the Ohio Department of Job and Family Services to handle the administrative-appeal process for appeals filed in accordance with R.C. 5101.35 on behalf of the Ohio Department of Medicaid. Cook v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin Nos. 14AP-852 and 14AP-853, 2015-Ohio-4966, ¶ 7, fn.2. Accord Paczko v. Ohio Dept. of Job & Family Servs., 8th Dist. Cuyahoga No. 105783, 2017-Ohio-9024, ¶ 3, fn. 1 ("Although Ohio's Medicaid program is administered by the Ohio Department of Medicaid, the Ohio Department of Job and Family Services acts as the Medicaid department's agent for administrative appeals").

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medication nondelegable and prohibited from administration by HPC providers. Bacon also

objected to the magistrate's decision on the basis that the magistrate and DODD had failed

to give proper deference to the opinion letters of Bacon's treating and examining physicians

regarding the medical necessity of private duty nursing services.

{¶20} On October 17, 2018, five days after Bacon filed her objections, and before

Ohio Medicaid responded, the common pleas court issued a brief entry adopting the

magistrate's decision.9 Other than stating it was adopting the magistrate's decision in its

entirety, the court did not explain its rationale. Bacon appealed to this court and argued

that the court erred by failing to conduct an independent review of the magistrate's

decision.10

{¶21} This court sustained Bacon's argument, holding that the trial court failed to

conduct an independent review and failed to rule on Bacon's objections. Bacon, 2019-

Ohio-3226 at ¶ 20. We specifically noted that the trial court's entry did not mention that

objections had been filed or otherwise discuss the merits of the objections. Id. We reversed

the trial court's adoption of the magistrate's decision and remanded the case so that the

trial court could review and rule on Bacon's objections. Id. at ¶ 21.

Post-Appeal Remand

{¶22} On remand, Ohio Medicaid filed a memorandum opposing Bacon's objections

to the magistrate's decision. Bacon subsequently filed a notice of supplemental authority

9. The entry stated, in whole, as follows:

This matter is before the Court upon a Magistrate's Decision filed in this case on October 1, 2018. The Court finds that the Magistrate has issued a Decision, and a copy of the Magistrate's Decision has been filed herein. For the reasons more fully set forth within the Magistrate's Decision, the Court hereby ADOPTS the Magistrate's Decision in its entirety in the manner set forth in the Decision. There is no just reason for delay. IT IS SO ORDERED.

10. Bacon also assigned error to the decision to eliminate her private duty nursing hours.

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along with a supporting memorandum. In it, Bacon directed the court to a recent opinion

from the Fifth District Court of Appeals, Sharp v. Ohio Dept. of Job & Family Servs., 5th

Dist. Licking No. 2019 CA 00047, 2019-Ohio-5397, which she stated addressed an appeal

with "facts, evidence and applicable law nearly identical to the case at bar."

{¶23} In July 2020, the trial court held a hearing at which the parties presented oral

argument on Bacon's objections. At the onset of the hearing, the court indicated that it had

reviewed the written memoranda filed in the case and was specifically interested in hearing

the parties' arguments regarding the Sharp case. The parties each presented the court with

their arguments, and the court questioned each side on the various issues presented.

{¶24} On October 7, 2020, the court issued a decision on Bacon's objections. The

decision noted the procedural history of the case and specifically noted Bacon's filing of the

supplemental notice with respect to the Sharp case. The court then overruled Bacon's

objections and adopted the magistrate's decision in its entirety. Bacon appealed, raising

two assignments of error.

Analysis

{¶25} Assignment of Error No. 1:

{¶26} THE COMMON PLEAS COURT ERRED BY VIOLATING RULE 53.

{¶27} Bacon contends that the trial court's October 7, 2020 entry adopting the

magistrate's decision again fails to demonstrate that the court engaged in an independent

review. Civ.R. 53(D)(4)(d), "Action on Objections," provides in relevant part,

[i]f one or more objections to a magistrate's decision are timely filed, the court shall rule on those objections. In ruling on objections, the court shall undertake an independent review as to the objected matters to ascertain that the magistrate has properly determined the factual issues and appropriately applied the law.

{¶28} Therefore, "Civ.R. 53(D)(4)(d) imposes a mandatory duty on the trial court to

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dispose of a party's timely filed objections to a magistrate's decision." Lynch v. Lynch, 12th

Dist. Warren No. CA2006-12-145, 2007-Ohio-7083, ¶ 8.

{¶29} Although the court is not required to "address each and every portion of an

objection raised by [a] party," the court is required to "rule on each objection." (Emphasis

sic.) Pietrantano v. Pietrantano, 12th Dist. Warren No. CA2013-01-002, 2013-Ohio-4330, ¶

20. A trial court's failure to rule on objections and to conduct an independent review of the

magistrate's decision as required by Civ.R. 53(D)(4)(d) constitutes an abuse of discretion.

Ohio Bar Liab. Ins. Co. v. CCF Dev., L.L.C., 12th Dist. Butler Nos. CA2017-12-170 and

CA2017-12-175, 2018-Ohio-3988, ¶ 22.

{¶30} "Ordinarily, a reviewing court will presume that the trial court performed an

independent review of the magistrate's decision." Id. at ¶ 23, citing Kairn v. Clark, 12th Dist.

Warren Nos. CA2013-06-059 and CA2013-08-071, 2014-Ohio-1890, ¶ 11. The party

asserting error has the burden of affirmatively demonstrating the trial court's failure to

perform an independent analysis. Pietrantano at ¶ 14. That a trial court adopted the

magistrate's decision in full does not mean that the court failed to exercise independent

judgment. Id. "A trial court may adopt a magistrate's decision in whole or in part pursuant

to Civ.R. 53(D)(4)(b) so long as the trial court fully agrees with the magistrate's findings

'after weighing the evidence itself and fully substituting its judgment for that of the

[magistrate].'" Kairn at ¶ 11, quoting Pietrantano at ¶ 14.

{¶31} Bacon contends that the court's decision failed to specifically address several

issues she raised through her objections, including (1) whether certain Ohio Administrative

Code provisions precluded HPC providers in her case, (2) whether HPC providers could

administer Bacon's PRN medications and controlled substances, (3) why the letters from

her treating physicians were not persuasive evidence of medical necessity for private duty

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nursing services, and (4) what evidence the magistrate relied on to find that Bacon was

"stable." Bacon also contends that the court failed to address the applicability of the Sharp

case.

{¶32} Upon consideration, we do not find that Bacon has affirmatively demonstrated

that the trial court failed to conduct an independent review of the magistrate's decision and

failed to rule on her objections. The trial court's entry summarized the procedural posture

of the case, including specifically noting that Bacon had filed objections to the magistrate's

decision and that the matter had been remanded by this court for "additional consideration"

of Bacon's objections. The court noted that Ohio Medicaid had since filed its memorandum

supporting the magistrate's decision and that Bacon had filed a notice of authority, with a

specific citation to the Sharp case. The court additionally observed that it had held an oral

hearing on the objection, at which counsel for both parties were present. The court then

stated,

After a full consideration of the record and of the briefings by counsel in the case, and after an oral hearing of the matter * * * the Court hereby OVERRULES [Bacon's] Objections, and ADOPTS the Magistrate's Decision in its entirety for the reasons more fully set forth within the Magistrate's Decision.

{¶33} We can presume that the trial court conducted an independent review of the

magistrates' decision and ruled on Bacon's objections based on (1) the post-remand filings

by both parties, (2) the oral argument hearing at which the court and parties discussed at

length the issues raised in the objections, and (3) the court's entry. Unlike the trial court's

October 17, 2018 entry, the court's October 7, 2020 entry specifically noted that Bacon had

filed objections, and specifically overruled those objections after a "full consideration" of the

filings and oral argument.

{¶34} Bacon also cites Stowe v. Chuck's Automotive Repair, L.L.C., 9th Dist.

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Summit No. 29017, 2019-Ohio-1158, which she effectively argues demonstrates the

minimal amount of legal analysis required in a trial court decision to allow a court of appeals

to find that the trial court conducted an independent review. In that case, the Ninth District

Court of Appeals found that the municipal court's entry reflected an independent review,

noting that the entry referred to testimony not referenced in the magistrate's decision and

observing that the court struck a finding of the magistrate. Id. at ¶ 9. Bacon argues that

the entry issued by the trial court in this case is devoid of any similar analysis indicating an

independent review.

{¶35} We do not find that Stowe compels the result Bacon seeks. Reference to

evidence and legal analysis is not required to demonstrate compliance with Civ.R.

53(D)(4)(d). See Hampton v. Hampton, 12th Dist. Clermont No. CA2007-03-033, 2008-

Ohio-868, ¶ 17. While discussion of evidence and legal analysis in the October 7, 2020,

entry would certainly have further supported our conclusion that the trial court engaged in

an independent review, the fact that neither is included in the entry does not affirmatively

demonstrate that the trial court failed to conduct an independent review.

{¶36} After oral argument in this court, Bacon filed two notices of supplemental

authority asking us to consider two recently decided cases, Scalise v. Johnston Invests.,

L.L.C., 9th Dist. Summit No. 29383, 2021-Ohio-2916, and State ex rel. Crilley v. Lowellville

Bd. of Edn., 7th Dist. Mahoning No. 20 MA 0128, 2021-Ohio-3333. Bacon argued that

Scalise and Crilley support her first assignment of error. Bacon is incorrect regarding both

cases.

{¶37} In Scalise the Ninth District held that the trial court failed to complete the

review required by Civ.R. 53(D)(4)(d). The Ninth District reached this conclusion because

the trial court included language in its entry indicating it had only examined the magistrate's

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findings of fact and conclusions of law to determine if they were sufficient to allow the trial

court to review the objections to the magistrate's decision; the entry did not include any

language indicating that the trial court had completed its own review as required by Civ.R.

53. Id. at ¶ 21. The trial court also inaccurately cited Civ.R. 53(D)(4)(c), rather than Civ.R.

53(D)(4)(d). Id. Scalise is not applicable here because the trial court's decision in this case

does not include the same type of problematic language.

{¶38} Bacon's reliance on Crilley is similarly misplaced. There, the trial court's

adoption of the magistrate's language was problematic because the magistrate merely cited

the relevant statutory language without offering any analysis. Therefore, neither the

magistrate's decision nor the trial court's decision contained any analysis regarding the

question before the court. Such is not the case here.

{¶39} This case is more like our case in Ohio Valley Associated Bldrs. & Contrs. v.

Rapier Elec., Inc., 12th Dist. Butler Nos. CA2013-07-110 and CA2013-07-121, 2014-Ohio-

1477. There, the appellant claimed that because the trial court summarily dismissed its

objections, "no review of any objection happened * * *." Id. at ¶ 29. We disagreed, noting

that the trial court held a hearing on the objections and heard arguments from both parties

regarding each of the objections. Additionally, the court noted that it had carefully reviewed

the decision of the magistrate, the filings of the parties, and the transcript of the

proceedings. Id. Similarly, the trial court in the case before us held a hearing on the

objections and its decision indicated it considered the record, the parties' filings on the

objections, and the arguments presented at oral hearing.

{¶40} For the reasons stated above, the record contains sufficient indicia of an

independent review pursuant to Civ.R. 53(D)(4)(d). We overrule Bacon's first assignment

of error.

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{¶41} Assignment of Error No. 2:

{¶42} THE TRIAL COURT ERRED IN AFFIRMING APPELLEE'S ELIMINATION OF

BACON'S PDN HOURS.

{¶43} Bacon argues that the trial court erred in affirming the ODJFS decision

denying her request for 84 weekly hours of private duty nursing services. She divides her

argument into three issues, described below.

{¶44} Before addressing Bacon's three issues, we note what Bacon does not

challenge on appeal. The magistrate's decision (as adopted by the trial court) concluded

that the state hearing officer's determination was "supported by reliable, probative, and

substantial evidence" when it found that most of the tasks required for Bacon's daily care

are "lower level tasks" not requiring private duty nursing services. These tasks included

meal preparation, meal assistance with feedings, assistance with physical therapy,

assisting with Bacon's orthotics, and moving Bacon. Bacon does not argue that the decision

erred in this respect. Instead, Bacon's issues presented for review focus on two specific

prescribed medications and the level of deference applied to the opinions of Bacon's

treating physicians.

First Issue 485 Plan of Care and Independent Nursing Judgment

{¶45} In her first issue presented for review, Bacon argues that "Ohio law precludes

unlicensed DODD personnel [that is, HPC providers] from administering PRN medication

unless the physician's order is written to preclude independent judgment." As previously

explained, "PRN medication" refers to medication that is prescribed to be used on an "as

needed" basis. In making her argument regarding PRN medications, Bacon only references

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two specific prescribed medications: Ativan and Diastat. 11

{¶46} Both Ativan and Diastat were prescribed with respect to Bacon's seizures.

The 485 Plan of Care's instruction for administering Ativan states: "Ativan 0.5 mg give 1

tablet per g-tube four times daily." Per this instruction, Ativan is administered in tablet form

via Bacon's gastrostomy tube on a strict schedule of four times daily. The 485 Plan of

Care's instruction for administering Diastat states: "Diastat 20mg syringe rectal gel give

rectally for seizure lasting >2 minutes PRN." Diastat, unlike Ativan, is a gel that is to be

administered topically via the rectum.

{¶47} A statute, R.C. 5123.42, authorizes HPC providers to administer certain

prescribed medications if they have completed certain training and certification. The statute

provides that "[w]ith nursing delegation, [HPC providers] may administer prescribed

medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable

and labeled." R.C. 5123.42(C)(3)(d). Virtually the same language is repeated at Ohio

Adm.Code 5123:2-6-03(C)(3)(b)(i). Because Bacon's 485 Plan of Care states that Ativan

is to be administered to Bacon via gastrostomy tube, R.C. 5123.42(C)(3)(d) and Ohio

Adm.Code 5123:2-6-03(C)(3)(b)(i) authorize a properly certified HPC provider to administer

Ativan to Bacon via her g-tube so long as the task was delegated by a nurse. This

conclusion is supported by Patterson's testimony at the second state hearing. Patterson

testified that because of her g-tube, Bacon required an HPC provider with Level 1 and Level

2 certification, along with registered nurse task delegation.

{¶48} The statute also provides that "[w]ithout nursing delegation, [HPC providers]

may administer oral and topical prescribed medications * * *." R.C. 5123.42(C)(3)(b). The

11. PRN medications are prescribed to be used "as needed." But the 485 Plan of Care states that Ativan is to be administered to Bacon in a predetermined dosage a fixed number of times per day. Therefore, Ativan is not a PRN medication as prescribed to Bacon. We will nevertheless include Ativan in our analysis.

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Ohio Revised Code does not define "topical prescribed medications" as used in the statute.

However, virtually the same language found in R.C. 5123.42(C) is repeated in Ohio

Adm.Code 5123:2-6-03(C)(3)(a)(ii). The applicable definitions section, Ohio Adm.Code

5123:2-6-01(RR), defines "topical prescribed medication" as "any prescribed medication

that is applied to the outer skin and drops applied to the eye, ear, or nose" and as also

including "transdermal prescribed medication or vaginal or rectal suppositories." Because

Bacon's 485 Plan of Care appears to require that Diastat be administered in a gel form

topically via the rectum, the prescription appears to fall within the definition of "topical

prescribed medication" in Ohio Adm.Code 5123:2-6-01(RR).

{¶49} The record is not entirely clear on this point. However, the magistrate's

decision referenced R.C. 5123.42's authorization of HPC providers to administer

medications, Bacon did not object to the magistrate's reliance on R.C. 5123.42, and on

appeal Bacon does not argue that the statute does not apply and did not point to anything

in the record indicating that R.C. 5123.42 does not authorize HPC providers to administer

Diastat. On the contrary, Bacon conceded that Diastat falls within the class of medications

covered by R.C. 5123.42(C)(3)(b) when she stated that "R.C. 5123.42(C)(3)(b) does

authorize aides, without nursing delegation, to 'administer oral and topical prescribed

medications and topical over-the-counter musculoskeletal medications'" before arguing that

the statute does not control because former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx) is a

more specific, later-adopted regulation (an argument we address below). Given that there

is some support in the record for the conclusion that the administration of Diastat is

authorized by R.C. 5123.42(C)(3)(b) and given that Bacon did not object to this conclusion

below or on appeal and effectively concedes as much, we assume that HPC providers are

authorized to administer Diastat to Bacon by R.C. 5123.42(C)(3)(b) and Ohio Adm.Code

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5123:2-6-03(C).12

{¶50} To summarize, a properly certified HPC provider may administer Diastat

without nursing delegation pursuant to R.C. 5123.42(C)(3)(b) and Ohio Adm.Code 5123:2-

6-03(C)(3)(a)(ii), and may administer Ativan with nursing delegation pursuant to R.C.

5123.42(C)(3)(d) and Ohio Adm.Code 5123:2-6-03(C)(3)(b)(i).

{¶51} While Bacon acknowledges R.C. 5123.42, she argues that HPC providers

cannot administer Ativan and Diastat to her as PRN medications because her 485 Plan of

Care requires the exercise of independent nursing judgment in conjunction with

administering these medications. Former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx) states

that HPC providers are barred from administering PRN medication "unless the order is

written with specific parameters which preclude independent judgment."13 Id. However,

Bacon ignores the overall context of the regulation in which this language appears. Rather

than imposing a rule that HPC providers may not administer medication if doing so involves

"independent judgment," the regulation simply describes the content of training that is to be

provided to HPC providers. In context, the regulation states:

(B) Training programs for developmental disabilities personnel

(1) Health-related activities and prescribed medication administration training program

12. The 485 Plan of Care suggests Diastat is applied topically to the rectum. Some record testimony implies Diastat is inserted into the rectum in gel form. The word "suppository" does not appear in the record. However, various dictionary definitions of "suppository" agree that a suppository dissolves and is absorbed by the body after insertion into the rectum. See, e.g., Merriam-Webster's Online Dictionary, https://www.merriam- webster.com/dictionary/suppository; Dictionary.com, https://www.dictionary.com/browse/suppository (same); Cambridge Dictionary, https://www.dictionary.cambridge.org/dictionary/English/suppository (same) (all accessed December 11, 2021). This seems consistent with the limited record testimony suggesting that Diastat is inserted into the rectum before being absorbed by the body. Even if Diastat is inserted into the rectum, Diastat is a gel that operates to dispense the prescribed medication in the same manner as a traditional suppository; i.e., it is dissolved and absorbed into the blood system after being inserted anally.

13. Ohio Adm.Code 5123:2-6-06(B)(1) was repealed effective January 14, 2021. Portions of the former code provision, including an identical version of the cited subsection (xx) on which Bacon relies, now appear at Ohio Adm.Code 5123-6-06. We will refer to the relevant regulatory language by the former citation.

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(a) A health-related activities and prescribed medication administration training program provided pursuant to this rule, to prepare developmental disabilities personnel to perform health-related activities, administer oral prescribed medication, administer topical prescribed medication, administer topical over-the-counter musculoskeletal medication, and administer oxygen and metered dose inhaled medication, shall be at a minimum a fourteen-hour course; one hour equals sixty minutes of classroom instruction.

***

(c) The health-related activities and prescribed medication administration training program shall address:

(xx) Limitations with respect to "as needed" (or "PRN") prescribed medication, which state that developmental disabilities personnel shall not administer a prescribed medication ordered by a physician or other licensed health professional authorized to prescribe drugs when the prescribed medication is to be administered as needed, unless the order is written with specific parameters which preclude independent judgment.

Former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx).

{¶52} Bacon's reliance on former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx) is

misplaced. The plain text of the regulation mandates that certain content be included in the

training of HPC providers, and that content includes a reference to HPC providers not

administering PRN medication "unless the order is written with specific parameters which

preclude independent judgment." However, the regulation does not itself impose this rule

regarding "independent judgment." Nor does Bacon direct our attention to any provision of

the Ohio Revised Code or the Ohio Administrative Code imposing any limitation on HPC

providers' administration of PRN medications that fall within the authorizations of R.C.

5123.42 or Ohio Adm.Code 5123:2-6-03. While former Ohio Adm.Code 5123:2-6-

06(B)(1)(b)(xx) suggests that HPC providers are not permitted to exercise "independent

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judgment" in administering PRN medications, the statutory or regulatory basis for this

assertion is unclear. If we were to adopt Bacon's interpretation of the former Ohio

Adm.Code 5123:2-6-06(B)(1)(b)(xx) we would effectively be amending the regulation by

converting it from what it is – that is, an instruction regarding the content of training – and

changing it into a regulation imposing a limitation on HPC providers. We may not simply

rewrite regulations in this manner. See Pelletier v. Campbell, 153 Ohio St.3d 611, 2018-

Ohio-2121, ¶ 20 (holding that "a court may not rewrite the plain and unambiguous language

of a statute * * *"). In our review of case law, we found zero cases holding or even

suggesting that former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx) imposes the "independent

judgment" rule regarding PRN medications that is urged by Bacon. We therefore find that

former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx) is inapplicable to this case.

{¶53} In addition to misreading former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx) as

imposing an "independent judgment" rule that the regulation does not impose, Bacon

argues that R.C. 5123.42 and former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx) conflict, and

that because "R.C. 5123.42 was last amended 10/12/16 and former OAC 5123:2-6-

06(B)(1)(b)(xx) became effective 11/6/17 * * * the specific regulation precluding aides from

administering PRN medications was adopted later and R.C. 1.51 dictates the lower court

defer to the special provision." Bacon correctly quotes R.C. 1.51 as setting forth the rule of

statutory construction that "If a general provision conflicts with a special or local provision *

* * [and] is irreconcilable, the special or local provision prevails as an exception to the

general provision, unless the general provision is the later adoption and the manifest intent

is that the general provision prevail." However, Bacon misapplies this rule of statutory

construction, which applies when analyzing the conflict between a more general statute and

a more specific statute. Even if Bacon were correct that the former Ohio Adm.Code 5123:2-

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6-06(B)(1)(b)(xx) imposed the "independent judgment" rule on which she relies, Bacon

would still be incorrect in arguing that a later-enacted more specific regulation necessarily

prevails over an earlier-enacted more general statute. In fact, a regulation may not

supersede, modify, or restrict a statute. State ex rel. Celebrezze v. Natl. Lime & Stone Co.,

68 Ohio St. 3d 377, 382 (1994) ("[A]n administrative rule that is issued pursuant to statutory

authority has the force of law unless it is unreasonable or conflicts with a statute covering

the same subject matter"), citing Youngstown Sheet & Tube Co. v. Lindley, 38 Ohio St. 3d

232, 234 (1988). Bacon's argument that former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx)

supersedes the clear language of R.C. 5123.42 is without merit.

{¶54} Bacon argues that Sharp, 2019-Ohio-5397, is on point and requires that we

hold that the administration of Bacon's seizure medications required the exercise of

independent nursing judgment and therefore requires that she receive her requested 84

hours of weekly private duty nursing services. In Sharp, the Fifth District examined whether

R.C. 5123.42 permitted an HPC provider, with nursing delegation, to administer insulin to a

Medicaid patient. Id. at ¶ 31-40. The Fifth District specifically examined former R.C.

5123.42(C)(1)(e), which provided that "with nursing delegation, developmental disabilities

personnel may administer routine doses of insulin through subcutaneous injections,

inhalation, and insulin pumps." (Emphasis added.) Id. at ¶ 33. The central issue in Sharp

was whether the Medicaid patient's insulin doses were "routine."

{¶55} The evidence in Sharp reflected that the patient suffered from Type I diabetes

and experienced "frequent and wide" fluctuations of glucose levels, which required

continual monitoring. Id. at ¶ 15. The patient's nurses made modifications to his insulin

doses based upon monitoring many different factors, including glucose readings, amount

of food consumed, activity levels, and alarms triggered by the insulin pump. Id. at ¶ 40.

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The adjustments of insulin dosing occurred in "real time." Id. On these facts, the Fifth

District found that the administration of insulin was not "routine" and required the judgment

of a licensed nurse, and that nursing delegation of the task was therefore impermissible

under R.C. 5123.42(C)(1)(e). Id.

{¶56} Sharp does not address or cite the statutory and regulatory sections at issue

here, namely R.C. 5123.42(C)(3)(b) and (d), and Ohio Adm.Code 5123:2-6-03(C)(3)(a)(ii)

and (b)(i). These statutory and regulatory provisions do not limit HPC personnel to

administering "routine" doses of medication, as does R.C. 5123.42(C)(1)(e), the provision

at issue in Sharp. Nor does Sharp address Bacon's argument regarding "independent

judgment" under the former Ohio Adm.Code 5123:2-6-06(B)(1)(b)(xx), or even cite that

regulation. Sharp is irrelevant to this case.

{¶57} For these reasons, and upon our review of the record, we find that the

administration of Ativan and Diastat by HPC providers is permissible under R.C. 5123.42

and the related regulations. Bacon's argument that HPC providers may not administer

Ativan and Diastat because doing so requires the exercise of independent judgment and

discretion is without merit.

Second Issue HPC Administration of Controlled Substances

{¶58} In her second issue presented for review, Bacon argues that Ativan and

Diastat are both controlled substances under Ohio law and the administration of controlled

substances is non-delegable as a matter of law.

{¶59} In support of this argument, Bacon cites two statutes within R.C. Chapter

4723, which sets forth the laws applicable to nurses and the Board of Nursing. First, Bacon

cites R.C. 4723.48, which provides that "[a] clinical nurse specialist, certified nurse-midwife,

or certified nurse practitioner * * * may delegate to a person not otherwise authorized to

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administer drugs the authority to administer to a specified patient a drug, unless the drug is

a controlled substance * * *."14 Second, Bacon cites R.C. 4723.489, which similarly provides

that "[a] person not otherwise authorized to administer drugs may administer a drug to a

specified patient if all of the following conditions are met: * * * [t]he authority to administer

the drug is delegated to the person by an advanced practice registered nurse who is a

clinical nurse specialist, certified nurse-midwife, or certified nurse practitioner [and] [t]he

drug * * * is not a controlled substance * * *."

{¶60} Bacon did not raise this argument either in the administrative proceedings or

before the magistrate. She raised it for the first time in her objections to the magistrate's

decision. Bacon's failure to raise this argument during the administrative proceedings

constitutes a waiver of the argument. Sammor v. Ohio Liquor Control Comm., 10th Dist.

Franklin No. 09AP-20, 2009-Ohio-3439, ¶ 25; MacConnell v. Ohio Dept. of Commerce, 10th

Dist. Franklin No. 04AP-433, 2005-Ohio-1960, at ¶ 21; Tipton v. Woltz, 9th Dist. Summit

No. 22722, 2005-Ohio-6989, ¶ 8 ("the failure to raise an issue before an administrative

board operates as a waiver of that issue later in the appeal process"). As a result, we need

not consider this argument further.

{¶61} Even if Bacon had not waived her argument that the administration of Ativan

and Diastat is prohibited because they are controlled substances, we would find Bacon's

argument meritless because R.C. 4723.48 and 4723.489 are inapplicable to HPC providers

because both statutes only apply to "a person not otherwise authorized to administer drugs."

HPC providers are authorized to administer drugs by other provisions of the Revised Code.

Specifically, under R.C. 5123.41 thru 5123.47, HPC providers with DODD certification are

14. Bacon also cites Ohio Adm.Code 4723-13-05(C), the relevant code provision promulgated under R.C. 4723.48.

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authorized to administer prescribed medications, with or without nursing delegation. R.C.

4723.48 and 4723.489 therefore do not bar HPC providers from administering Ativan or

Diastat.

{¶62} Our conclusion is bolstered by the very regulations issued to implement R.C.

4723.48 and 4723.489. Ohio Adm.Code 4723-13-02(B), which is titled "General

Information" and applies generally to the R.C. Chapter 4723 regulations, states:

(B) Nothing in this chapter shall be construed to prevent any person registered, certified, licensed, or otherwise legally authorized in this state under any law from engaging in the practice for which such person is registered, certified, licensed, or authorized.

"Otherwise legally authorized" may include, but is not limited to, authorization for medication administration pursuant to section 3313.713 of the Revised Code, DODD personnel authorized to perform tasks or activities pursuant to sections 5123.41 to 5123.47 of the Revised Code, and individuals authorized to administer medications or perform tasks pursuant to Title 47 of the Revised Code.

(Emphasis added.) Ohio Adm.Code 4723-13-02(B) makes clear that HPC providers

licensed under R.C. Chapter 5123 are not persons "not otherwise authorized to administer

drugs," and therefore R.C. 4723.48 and 4723.489 do not prevent nurses from delegating

administration of Ativan or Diastat to HPC providers. This is consistent with the plain

language of the relevant statutes in R.C. Chapters 5123 and 4723. It is also consistent with

R.C. 4723.071, which provides that the Board of Nursing:

shall adopt rules as it considers necessary to govern nursing delegation as it applies to developmental disabilities personnel who administer medications and perform health-related activities pursuant to the authority granted under section 5123.42 of the Revised Code. The board shall not establish in the rules any requirement that is inconsistent with the authority of developmental disabilities personnel granted under that section.

(Emphasis added.) The implication of this statute is that the General Assembly specifically

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intended that the rules governing the Board of Nursing should not conflict or limit the specific

statutory authorizations for DODD personnel set forth in R.C. Chapter 5123.

{¶63} We further observe that R.C. 4723.48 and 4723.489 appear limited to certain

categories of advanced practice registered nurses who have prescriptive authority,

suggesting that this section was not intended to have any impact on a registered nurse

delegating statutorily authorized tasks pursuant to R.C. Chapter 5123. Finally, R.C.

4723.489(F) requires the advanced practice registered nurse to be "physically present at

the location where" the delegated medication is administered. Interpreting this statute to

require a registered nurse to be physically present during an HPC provider's service would

render the HPC provider entirely superfluous and would be inconsistent with the system for

delegation to HPC providers outlined in R.C. Chapter 5123.

{¶64} Bacon also argues that a nurse, prior to delegating, must make specific

determinations required by Ohio Adm. Code 4723-13-05(6)(a)-(f). She cites testimony

suggesting that those determinations could not be made with respect to Bacon. This

argument is meritless for the reasons just outlined, including Ohio Adm.Code 4723-13-

02(B)'s clarification that the R.C. Chapter 4723 regulations do not apply to HPC providers

working with the DODD.

{¶65} For these reasons, and upon our review of the record, we find that Bacon's

arguments under her second issue presented for review are without merit.

Third Issue Deference to Bacon's Physicians' Opinions

{¶66} In her final issue, Bacon contends that the trial court erred in affirming the

agency decision because she presented evidence (through written letters and the 485 Plan

of Care) that her physicians all agreed she should receive skilled nursing care and her

physicians' opinions should have been given "controlling" deference.

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{¶67} In a letter dated February 27, 2017, Dr. Timothy D. Freeman wrote:

Ms bacon requires the services of a skilled nurse to assess for illness(in a non verbal, combative patient), monitor vital signs, hydration status and urine issues- has frequent infections.

[Sic throughout all letters.]

{¶68} In a letter dated March 9, 2017, Dr. Michael D. Privitera wrote:

Stacy Bacon is a patient under my care for a diagnosis of severe cognitive deficits related to a traumatic brain injury, behavioral problems related to traumatic brain injury and seizures that are medication resistant. In order to address Ms Bacon's health and safety needs, she requires no less than 16 hours of skilled nursing care each day. Do to the severity of this patients condition, please do not send nursing aids or a medical assistance. She will need a skilled nurse only. These services are necessary to manage her behavioral and cognition problems, observe for seizures and observe for adverse effects of medication.

{¶69} In a letter dated March 9, 2017, Dr. Derrick M. Kruger wrote:

Stacy Bacon has been under the care of myself and my colleagues Dr. David Rider (Pedodontist), and Dr. Ryan Harris, (Periodontist), for 8 years for her dental needs. Stacey's overall health is greatly influenced by her care and support she gets daily on her oral health. She has an implant supported bridge from teeth 6-9 which requires daily evaluation and care for both hygiene maintenance and stability. The overall health of her mouth must be maintained daily for any abnormalities, infection and the monitoring of the bridge for any mobility. It is our recommendation that Stacey continue receiving care from skilled nurses for her health and safety on a daily basis and provide the best oral care for her.

{¶70} In a letter dated May 2, 2017, Dr. Silke Bernert wrote:

Ms. Stacy Bacon was referred to my care for her severe traumatic brain injury resulting in multiple deficits to include cognitive, physical and behavioral impairments. Unfortunately, she also suffers from a seizure disorder that has been medication resistant. The patient requires at least 16 hours of skilled nursing care to address the patient's current medical concerns requiring the ability and training to monitor and respond appropriately to medical emergencies and to manage current medical, physical and behavioral conditions in order to

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minimize readmissions to acute care hospitals and prevent threats to her health and life.

{¶71} And in a follow-up letter dated October 3, 2017, Dr. Timothy D. Freeman wrote:

I have been treating Stacey for more than 10 yrs. She is a very complex patient who is s/p traumatic brain injury with frontal lobe syndrome, complex mood disorder , spasticity and choreo athetotic movement disorder. In addition she has epilepsy with partial onset and secondary generalization. We are in the process of adjusting her meds which I anticipate will take upwards of a year. I am need of expert nursing observations during this period because of the complexity of discerning seizure vs movement disorder vs mood issue. I am asking for continue skilled nursing services for this reason

Finally, in Dr. Freeman's 485 Plan of Care, he wrote "[Skilled nursing] approved for 12 hour

days 7 days a week."

{¶72} Citing multiple federal and state decisions, Bacon argues that a medical

opinion from a treating source must be given, "significant" and "controlling weight."15

However, the cases cited by Bacon for the proposition of an evidentiary presumption in

favor of the treating physician's opinion were premised on 20 C.F.R. 404.1527(c)(2).

However, the rule applicable to current claims eliminates deference to a treating physician's

opinion.16 20 C.F.R. 404.1520c, provides:

We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. When a medical source provides one or more

15. Bacon cites Holman v. Ohio Dept. of Human Servs., 143 Ohio App.3d 44, 53-54 (7th Dist.2001), citing Jones v. Secretary, Health & Human Servs., 945 F.2d 1365, 1370 (6th Cir.1991), fn. 7; Weaver v. Reagen, 886 F.2d 194, 200 (8th Cir.1989); Rush v. Parham, 625 F.2d 1150, 1156 (5th Cir.1980); A.M.L. v. Dept. of Health, Div. of Health Care Financing, 863 P.2d 44, 48 (Utah App.1993); Hummel v. Ohio Dept. of Job & Family Servs., 164 Ohio App.3d 776, 2005-Ohio-6651, ¶ 24-44 (6th Dist.); Gayheart v. Commr. of Social Sec., 710 F.3d 365, 376 (6th Cir.2013); and King v. Heckler, 742 F.2d 968, 973 (6th Cir.1984).

16. In revising its rules, the Social Security Administration noted that the evidentiary bias towards deferring to the treating physician's opinion may have influenced treating physicians to favor a finding of disability. Revisions to Rules Regarding the Evaluation of Medical Evidence, 81 Fed. Reg. 62560-01, 62573 (proposed Sept. 9, 2016), citing Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir.2006) (noting that a treating physician may bend over backwards to assist a patient in obtaining benefits).

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medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.

{¶73} With respect to the supportability and consistency factors discussed

above, the rule provides:

Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.

Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.

20 C.F.R. 404.1520c(c)(1) and (2).

{¶74} The applicable Ohio regulation for determining whether a service is medically

necessary provides:

the fact that a physician, dentist or other licensed practitioner renders, prescribes, orders, certifies, recommends, approves, or submits a claim for a procedure, item, or service does not, in and of itself make the procedure, item, or service medically necessary and does not guarantee payment for it.

Ohio Adm.Code 5160-1-01(D).

{¶75} Consequently, DODD was not required to give "significant' or "controlling"

weight or deference to Bacon's physicians' opinions in determining medical necessity. The

doctors' letters were general and summary in nature and were inconsistent with and

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unsupported by the evidence submitted at the hearings indicating that most of Bacon's care

did not require private duty nursing services, and that many services presently being

provided by Bacon's licensed practical nurse could also be performed by a properly certified

HPC provider under registered nurse supervision and with nursing task delegation.

{¶76} The evidence submitted over the course of the two state hearings in this

matter supports the finding that Bacon's requested 84 weekly hours of private duty nursing

services per week were not medically necessary. We find no error on the basis that the

agency did not give controlling deference to Bacon's physician opinion letters, and thus we

find that Bacon's third issue presented for review is without merit.

{¶77} Based on the above analysis, we find no error in the trial court's decision.

Having determined that Bacon's first, second, and third issues presented for review are

without merit, we overrule Bacon's second assignment of error.

{¶78} Judgment affirmed.

M. POWELL, P.J., and HENDRICKSON, J., concur.

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