[Cite as Mocznianski v. Ohio Dept. of Job & Family Servs., 2020-Ohio-1161.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Terrence Mocznianski, Guardian on Court of Appeals No. L-19-1076 behalf of Krista Mocznianski Trial Court No. CI0201804194 Appellant
v.
Ohio Department of Job and Family Services DECISION AND JUDGMENT
Appellee Decided: March 27, 2020
*****
Shakeba DuBose, for appellant.
Dave Yost, Ohio Attorney General, and Justin T. Radic, Senior Assistant Attorney General, for appellee.
MAYLE, J.
{¶ 1} Appellant, Kristina Mocznianski, through her brother and guardian, Terrence
Mocznianski, appeals the March 25, 2019 judgment of the Lucas County Court of
Common Pleas that overruled her appeal of a decision by appellee, the Ohio Department of Job and Family Services (“JFS”), that limited the number of hours of homemaker
personal care (“HPC”) services that Terrence could provide for Kristina. For the
following reasons, we affirm.
I. Background
{¶ 2} On May 21, 2018, the Lucas County Board of Developmental Disabilities
(“BODD”) sent Kristina a Medicaid due process notice1 informing her that Terrence
would be limited to providing her 60 hours per week of HPC services, effective May 18,
2018. The notice did not change the total HPC services hours—112 per week—to which
Kristina was entitled; it simply reduced the number of hours that Terrence could provide
from 112 to 60, with the remaining 52 hours per week to come from “another DD
provider(s).” The notice cited “Independent Provider Rule 5123:2-9-03” as the reason
for the change. Subject to a few exceptions, the rule—Ohio Adm.Code 5123:2-9-03—
limits the time any single “independent provider” performing “any medicaid-funded
services” can work to 60 hours per week, effective February 1, 2018.
{¶ 3} On May 25, 2018, Kristina, through Terrence, requested a state hearing with
JFS regarding the proposed change to Kristina’s services. She claimed that her
compromised immune system or low white blood cell (“WBC”) count—caused by
1 BODD initially provided Kristina with two Medicaid due process notices on April 13, 2018. One notice approved Kristina’s request for HPC services, and one purported to reduce Kristina’s HPC services “from 112 hours per week with Terrence to 60 hours per week with Terrence * * *.” BODD later withdrew the April 13 notices and replaced them with the May 21 notice. Thus, the April 13 notices are not at issue in this appeal.
2. leukopenia—entitled her to have only one HPC services provider. JFS held the state
hearing on August 8, 2018.2
{¶ 4} In a September 14, 2018 decision, the state hearing officer overruled the
appeal, finding that BODD properly limited the hours of HPC services that Terrence
could provide based on the restriction in Ohio Adm.Code 5123:2-9-03 capping the
number of hours a provider could work each week. The hearing officer concluded that
the medical evidence presented at the hearing did not support a finding that Kristina’s
“low normal white blood cell count [was] something that would prohibit her form [sic]
having three providers who work in concert to care for her.” The hearing officer also
found that Kristina’s situation did not meet the “emergency” exception to the overtime
rule in Ohio Adm.Code 5123:2-9-03(D)(1).
{¶ 5} On September 25, 2018, Kristina, through Terrence, sought an
administrative appeal of the state hearing officer’s decision. On September 28, 2018, JFS
affirmed the state hearing officer’s decision. After reviewing the evidence presented at
the state hearing, the JFS appellate panel upheld the hearing officer’s decision because
“[Kristina’s] brother at the state hearing indicated he did not object to additional
providers and the slightly below normal white blood cell count could be addressed by
proper protection procedures such as gloves, masks, etc.”
2 The administrative record in this case does not contain a transcript of the state hearing.
3. {¶ 6} On October 26, 2018, Kristina, through Terrence, appealed to the common
pleas court. On March 25, 2019, the court affirmed the state hearing officer’s and JFS’s
decisions to overrule Kristina’s appeal. After reviewing the administrative record, the
court determined that there was “reliable, probative and substantial evidence in the record
that Kristina would not be put at risk by having additional providers.”
{¶ 7} Kristina, through Terrence, now appeals, raising two assignments of error:
First Assignment of Error: The court erred in trial court erred in its
interpretation of O.A.C. 5123:2-9-03(D)(3)(a)(iii).
Second Assignment of Error[:] The lower court erred in finding
there is reliable, probative and substantial evidence in the record that
Kristina would not be put at risk by having additional providers.
II. Facts
{¶ 8} Kristina is a profoundly disabled adult who has, among other issues, Down
syndrome, dementia, seizure disorder, autism, and leukopenia. Most relevant to this case
is the leukopenia, which causes a decrease in the number of WBCs in a person’s blood.
Due to her disabilities, Kristina is unable to independently care for herself and requires
assistance with all activities of daily living, including feeding, dressing, bathing, and
toileting. Kristina is eligible, through the Medicaid individual options waiver program,
for 112 hours per week of HPC services to assist her with the activities of daily living
that she is unable to perform. Terrence, who is Kristina’s brother and guardian, has been
4. her primary caregiver since at least 2011.3 At the time the underlying dispute arose,
Terrence provided all of Kristina’s HPC services hours.
{¶ 9} In 2017, the Ohio Department of Developmental Disabilities, which
oversees the individual options waiver program at the state level, adopted Ohio
Adm.Code 5123:2-9-03 in response to changes in federal overtime rules. The rule limits
the time any single “independent provider” performing “any medicaid-funded services”
can work in a week to 60 hours, effective February 1, 2018. Terrence is an “independent
provider” and the HPC services that Kristina receives are “medicaid-funded services.”
{¶ 10} BODD is the local administrator for the individual options waiver program.
In late January 2018, BODD employees Lori Lawton, assistant director of service and
support, and Erika Fisher, service and support administration coordinator, had a
conference call with Terrence. According to Fisher’s case notes documenting the call,
they explained to Terrence that, although Kristina was still eligible for 112 hours of HPC
services a week, Terrence would be limited to providing only 60 of those hours each
week because of the new rule. To cover the remaining 52 hours per week, BODD
suggested that Terrence could find additional providers to work with Kristina, send
3 In his brief, Terrence says that he has provided all of Kristina’s HPC services since 2005. For support, he cites our decision in Mocznianski v. Ohio Dept. of Job & Family Servs., 195 Ohio App.3d 422, 2011-Ohio-4685, 960 N.E.2d 522, ¶ 6 (“From 2005 forward, [Kristina’s] brother was paid 16 hours per day (112 hours per week) for the services he provides.”). However, the administrative record in this appeal shows that Terrence has provided 112 hours of HPC services to Kristina since 2011. Regardless, the date Terrence began providing HPC services to Kristina is irrelevant to our decision.
5. Kristina to “Day Services” five days a week, or transition Kristina from one-on-one HPC
services to “Shared Living Services.” Terrence declined these options. He told Lawton
and Fisher that he was “grandfathered” from transitioning to shared living services
because of an earlier Medicaid appeal that allowed him to provide all 112 hours of
Kristina’s HPC services. He also claimed that Kristina’s immune system was
compromised because of her low WBC count, she had dementia that was “progressing,”
and working with additional providers “would put Kristina’s health at risk for serious
illness and/or hospitalizations” and “would be detrimental to Kristina Mocznianski’s
emotional and physical well-being.” BODD requested medical documentation to support
Terrence’s claims. Although he said he would provide the information within a week,
BODD did not receive any medical records until almost five months later.
{¶ 11} In the meantime, on April 13, 2018, Lawton sent Terrence a letter
informing him that BODD would only approve him to provide a maximum of 60 hours
per week of HPC services beginning on May 13, 2018. According to case notes written
on April 17, 2018, by Katie Screptock, a service and support specialist employed by
BODD, Terrence said that Kristina had been diagnosed with leukemia. Although
Kristina has leukopenia (low WBC count) and not leukemia (a type of blood cancer),
Screptock’s misstatement is irrelevant to this appeal.4 Screptock also noted that she had
4 Indeed, the state hearing officer noted that “[t]here had been some discussion of cancer but that was dispelled at the hearing.”
6. spoken to Fisher, Lawton, and another manager about Kristina’s health possibly making
Terrence eligible to provide all of Kristina’s HPC services. Later, on May 1, 2018,
Screptock reminded Terrence by email that BODD needed information about Kristina’s
medical condition to consider making an exception to the overtime rules.
{¶ 12} On May 21, 2018, Lawton sent another letter to Terrence that included a
Medicaid due process notice informing Kristina that she was approved for 112 hours per
week of HPC services, with 60 of those hours provided by Terrence and 52 hours
provided by another provider or providers. The explanation that BODD gave for the
change was “[d]ue to overtime and limit on number of hours in a work week an
Independent Provider may provide service.”
{¶ 13} The next day, on May 22, 2018, Terrence emailed Lawton and Screptock
information related to Kristina’s compromised immune system. Included with his email
were (1) a portion of Ohio Adm.Code 5123:2-9-03 with “(iii) The individual has a
compromised immune system and may be put at risk by having additional providers”
highlighted (emphasis sic); (2) a portion of an article from www.findatopdoc.com titled
“Top reasons for low white blood cell count” with “Low white blood cell count is often a
feature of immunodeficiency or a compromised immune system” highlighted (emphasis
sic); and (3) a document with Kristina’s name on it and the heading “CBC WITH AUTO
DIFFERENTIAL – Past Results” that showed numeric values in a variety of different
categories on six different dates with the results for “WBC” highlighted. The WBC
values for Kristina were:
7. May 29, 2014: 4.7 April 3, 2017: 2.8
February 6, 2015: 3.7 April 11, 2017: 3.8
January 19, 2016: 3.6 November 21, 2017: 3.2
The document listed the “Standard Range” for WBC as “4.8-10.8X10E9/L.”
{¶ 14} After receiving the medical information from Terrence, BODD asked Dr.
Michael Riethmiller, a physician with Mercy Health St. Vincent Medical Center
Occupational Health Services, to review the CBC results and provide his opinion on
“whether the WBC counts would constitute an immune deficiency so severe that only one
Medicaid provider should provide services to this 50 year old woman.”
{¶ 15} In his response, Dr. Riethmiller characterized the WBC counts in the test
results as “low normal or below normal.” He said that a low-normal number of WBCs is
between 3,800 and 4,300, depending on the lab, and Kristina’s counts dropped below that
range twice, once in April 2017 and once in November 2017. He also said that it was
important to look at the types of WBCs that were present. The two April 2017 tests—the
only dates that included results for specific types of WBCs—showed that Kristina’s
percentage of lymphocytes was in the normal range, percentage of monocytes was in the
slightly-above-normal range, and percentage of segmented neutrophils was in the low-
normal to slightly-below-normal range. Dr. Riethmiller explained that, generally
speaking, lymphocytes and monocytes protect the body from harmful viruses, while
neutrophils protect the body from harmful bacteria. He went on to say that,
8. [t]he only information submitted regarding whether or not more than
one Medicaid provider should provide services to an individual with an
immune deficiency was that of the white blood cell counts. However, the
immune system is much more complicated since there are other factors
involved including immunoglobulins, complement levels, and the presence
of B&T cells. It would therefore be important to know whether or not any
additional diagnostic studies have been performed in this situation to help
determine the immune status of this individual. In addition, it would be
important to know the history of this individual to determine whether or not
he or she had developed repeated infections.
He concluded that, even though Kristina’s WBC counts were in the low-normal to
slightly-below-normal range, he did not “consider them to be at an unsafe level.” He
noted that, in general, doctors would not consider a person on chemotherapy, which can
lower WBC counts, to have a compromised immune system until his or her WBC count
fell to “approximately 1,000.” He also opined that the number of providers Kristina had
was unimportant; instead, it was important than any providers wear gowns, gloves, and
face masks to prevent transmitting potentially infectious organisms to Kristina.
{¶ 16} To counter Dr. Riethmiller’s opinion, Kristina submitted a letter from Dr.
Feng Jiang, a physician with ProMedica Physicians Hematology/Oncology Associates.
The letter stated, in its entirety, that “[h]er white blood cells are low, which results in her
having a compromised immune [s]ystem. I would recommend limited exposure to
9. multiple providers to decrease the risk of infection.” Dr. Jiang’s notes from a May 30,
2018 visit with Kristina stated that she “developed leukopenia back to 2013 * * *.” He
noted that Kristina’s “blood counts has [sic] been stable in past 5 years * * *,” and said
that she could continue taking the medicine that he suspected was causing the leukopenia
“as long as her neutrophil count is above a 1000 [sic] * * *.” Although there was a
possibility that Kristina’s leukopenia was due to disease (not her medicine), Dr. Jiang did
not recommend doing further diagnostic tests, such as a bone marrow biopsy, because the
risks of the procedures outweighed the possible benefits. The visit note also said that Dr.
Jiang gave Terrence a letter that day that “states that [Kristina] might have low immune
system due to leukopenia, recommend to limit exposure to multiple providers to decrease
the risk of infection.”
{¶ 17} Based on this information, the state hearing officer overruled Kristina’s
appeal of BODD’s decision to limit Terrence’s HPC services provider hours. The
hearing officer determined that BODD reduced Terrence’s approved hours because of the
60-hour limit in Ohio Adm.Code 5123:2-9-03. Although BODD offered Terrence
several options for reducing the number of hours of HPC services that he provided, he
was unreceptive to the suggestions, primarily due to Kristina having a compromised
immune system and not reacting well to strangers. Terrence’s perception of Kristina’s
trouble with strangers was reinforced by testimony from Screptock and notes in
Kristina’s person-centered profile. However, at the hearing, Terrence testified that he
would not be opposed to a family friend taking on some of Kristina’s HPC services hours
10. or to a third provider taking some of the hours once the third provider acclimated to
Kristina’s personality.
{¶ 18} The hearing officer found Dr. Riethmiller’s report credible and, noting Dr.
Riethmiller’s conclusion that Kristina’s WBC counts were not at an “unsafe” level,
concluded that Kristina’s low-normal WBC count would not prohibit her from “having
three providers who work in concert to care for her.” Although Kristina’s doctor was out
of the country at the time of the hearing and her attorneys said that they could provide
more information about Kristina’s compromised immune system, the decision does not
indicate that the hearing officer received any additional information from Kristina’s
doctor. Additionally, the hearing officer rejected Kristina’s argument that the
“emergency” exception in Ohio Adm.Code 5123:2-9-03(D)(1)—which would allow
Terrence to continue providing all 112 hours of HPC services—applied to her situation
because an “‘emergency’ under the terms of the rule should be understood as ‘temporary’
in nature.”
{¶ 19} In the administrative appeal, JFS reviewed the information presented at the
state hearing and affirmed the hearing officer’s decision. JFS reached its conclusion
because Terrence “at the state hearing indicated he did not object to additional providers
and the slightly below normal white blood cell count could be addressed by proper
protection procedures such as gloves, masks, etc.”
{¶ 20} Following its review of the record, the Lucas County Court of Common
Pleas affirmed JFS’s decision. The court found that neither party disputed that Kristina
11. had a compromised immune system, but that there was reliable, probative, and substantial
evidence that Kristina would not be put at risk by having additional providers. Although
the common pleas court acknowledged some inconsistencies in Dr. Riethmiller’s
report—for example, saying he reviewed five sets of blood test results when the medical
record has six sets of results and opining that Kristina’s WBC levels are not unsafe
without reviewing additional information about Kristina’s health—the court did not “find
these issues to be legally significant reasons to discredit the report.” The court also
pointed to additional evidence in the record showing that Kristina’s health would not be
put at risk by having multiple providers, including Dr. Jiang allowing for “limited
exposure to multiple providers,” Terrence’s hearing testimony that he was not opposed to
having other providers in the home, and evidence that Kristina is not restricted from
contact with other people because she goes to restaurants, movies, and stores.
III. Law and Analysis
A. Standard of review for administrative appeals.
{¶ 21} In an administrative appeal under R.C. 119.12, the common pleas court
reviews the entire record and determines whether the agency’s order is supported by
reliable, probative, and substantial evidence and is in accordance with law. Capital Care
Network of Toledo v. Ohio Dept. of Health, 153 Ohio St.3d 362, 2018-Ohio-440, 106
N.E.3d 1209, ¶ 24. “‘Reliable’ evidence is dependable or trustworthy; ‘probative’
evidence tends to prove the issue in question and is relevant to the issue presented; and
‘substantial’ evidence carries some weight or value.” Ohio Civ. Rights Comm. v. Case
12. W. Reserve Univ., 76 Ohio St.3d 168, 178, 666 N.E.2d 1376 (1996), citing Our Place,
Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992). If
the agency’s decision is “supported by sufficient evidence and the law, the common pleas
court lacks authority to review the agency’s exercise of discretion * * *.” Capital Care
Network at ¶ 25.
{¶ 22} The scope of our review is much narrower: we review the common pleas
court’s decision for an abuse of discretion. Rossford Exempted Village School Dist. Bd.
of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705, 707, 590 N.E.2d 1240 (1992). A trial
court abuses its discretion where its decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). An unreasonable decision is one that lacks sound reasoning to support the
decision. Hageman v. Bryan City Schools, 2019-Ohio-223, 131 N.E.3d 423, ¶ 13 (10th
Dist.), citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “An arbitrary decision is one that lacks
adequate determining principle and is not governed by any fixed rules or standard.” Id.,
citing Porter, Wright, Morris & Arthur, LLP v. Frutta del Mondo, Ltd., 10th Dist.
Franklin No. 08AP-69, 2008-Ohio-3567, ¶ 11. And an unconscionable decision is one
“that affronts the sense of justice, decency, or reasonableness.” Id. In making this
determination, we do not weigh the evidence. Rossford Exempted Village School Dist. at
707.
13. {¶ 23} Where, however, questions of law are raised on appeal from an
administrative agency, “both the common pleas court and the court of appeals exercise
plenary powers of review.” Cameron v. Ohio Dept. of Transp., 108 Ohio App.3d 20, 23,
669 N.E.2d 874 (6th Dist.1995). The interpretation of an administrative rule is a question
of law. Averback v. Montrose Ford, Inc., 2019-Ohio-373, 120 N.E.3d 125, ¶ 16 (9th
Dist.); Howell v. Ohio Dept. of Job & Family Servs., 7th Dist. Belmont No. 08 BE 25,
2009-Ohio-1510, ¶ 29.
{¶ 24} With this standard of review in mind, we consider Kristina’s assignments
of error.
B. Ohio Adm.Code 5123:2-9-03(D) is unambiguous and not subject to interpretation.
{¶ 25} In her first assignment of error, Kristina argues that the common pleas
court erred in its interpretation of Ohio Adm.Code 5123:2-9-03. She essentially claims
that—despite Ohio Adm.Code 5123:2-9-03(D)(3)(a)(iii) authorizing an exception to the
overtime rule if the person being cared for has a compromised immune system and “may”
be put at risk by having multiple providers—the common pleas court required proof of
“more than a possibility of potential risk or [] some diagnosis or indication of a severe
immunodeficiency in order to be limited to one Medicaid provider.”
{¶ 26} In response, JFS contends that Kristina misconstrues the hearing officer’s
and common pleas court’s decisions. That is, rather than reading the exception to apply
only when the person in question has a severe immunodeficiency, the hearing officer
14. determined that the evidence did not support a finding that Kristina might be put at risk
by having multiple providers, and the common pleas court, after giving deference to the
agency’s findings of fact and interpretation of the rule, determined that the hearing
officer’s decision was supported by reliable, probative, and substantial evidence.
{¶ 27} At issue in this case is Ohio Adm.Code 5123:2-9-03(D), which states, in
pertinent part:
(1) Beginning February 1, 2018, after an independent provider has
worked sixty hours in a work week providing any medicaid-funded services
as an independent provider, that independent provider may provide
additional units of services under a home and community-based services
medicaid waiver component administered by the department as an
independent provider in that work week only:
(a) When authorized by the service and support administrator for the
individual for whom the additional services are provided in accordance
with paragraph (D)(3) of this rule; or
(b) Due to an emergency.
***
(3) As part of the assessment and person-centered planning process
set forth in rule 5123:2-1-11 of the Administrative Code, an individual and
his or her team shall identify known or anticipated events or circumstances
15. that will necessitate an individual’s independent provider to exceed the
limit established in paragraph (D)(1) of this rule.
(a) When known or anticipated events or circumstances will
necessitate an individual’s independent provider to exceed the limit, the
events and circumstances, including authorization for the independent
provider to exceed the limit for these specific events and circumstances,
shall be addressed in the individual service plan. Examples of known or
anticipated events or circumstances include but are not limited to:
(iii) The individual has a compromised immune system and may be
put at risk by having additional providers[.]
{¶ 28} Courts interpret administrative rules in the same manner as statutes.
McFee v. Nursing Care Mgt. of Am., Inc., 126 Ohio St.3d 183, 2010-Ohio-2744, 931
N.E.2d 1069, ¶ 27. If a rule is ambiguous—i.e., it is subject to more than one reasonable
interpretation—we can use all of the rules of statutory construction to determine the
rule’s meaning. Internatl. Bhd. of Elec. Workers, Local Union No. 8 v. Vaughn
Industries, Inc., 156 Ohio App.3d 644, 2004-Ohio-1655, 808 N.E.2d 434, ¶ 58 (6th
Dist.), citing Columbus & Franklin Cty. Metro. Park Dist. v. Shank, 65 Ohio St.3d 86,
103, 600 N.E.2d 1042 (1992), fn. 17; see also Turner v. Hooks, 152 Ohio St.3d 559,
2018-Ohio-556, 99 N.E.3d 354, ¶ 12 (“A [rule] is ambiguous if a reasonable person can
find different meanings in the [rule] and if good arguments can be made for either of two
16. contrary positions.” (Internal quotations omitted.)). However, when a rule is
unambiguous, we will not interpret it, but will apply it as written. Internatl. Bhd. of Elec.
Workers at ¶ 58, citing Columbus & Franklin Cty. Metro. Park Dist. at 103.
{¶ 29} In applying an unambiguous rule, we give the words of the rule their plain
and ordinary meaning. In re A.J., 148 Ohio St.3d 218, 2016-Ohio-8196, 69 N.E.3d 733,
¶ 19, citing State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio St.2d 51, 54,
386 N.E.2d 1107 (1979). The word “may” is generally construed as “optional,
permissive, or discretionary” unless there is a clear and unequivocal intent that it receive
a different construction. State ex rel. City of Niles v. Bernard, 53 Ohio St.2d 31, 34, 372
N.E.2d 339 (1978), citing Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 271
N.E.2d 834 (1971). “May” is also defined as “[t]o be a possibility.” Black’s Law
Dictionary 1127 (10th Ed.2014). The phrase “at risk” is not defined in Ohio Adm.Code
Chapter 5123:2, but commonly means “exposed to a usu[ally] specified danger * * *.”
Merriam Webster's Collegiate Dictionary 1011 (10th Ed.1996); see also Black’s Law
Dictionary 1524 (10th Ed.2014) (defining “risk” as “the chance of injury * * *”).
{¶ 30} After considering the rule, we see nothing in Ohio Adm.Code 5123:2-9-
03(D) that is ambiguous or subject to more than one reasonable interpretation.
Specifically, there is nothing clearly and unequivocally indicating that the word “may” in
section (D)(3)(a)(iii) should not receive its ordinary construction. Accordingly, we will
not interpret the rule, but will apply it as written.
17. {¶ 31} As written, although section (D)(1) limits a service provider to working a
maximum of 60 hours per week, section (D)(1)(a) allows the provider to exceed the 60-
hour limit if the agency service and support administrator authorizes the provider to
provide additional services. Any authorization must be done according to section (D)(3).
{¶ 32} Under section (D)(3), the person receiving services and her team—which,
as defined in Ohio Adm.Code 5123:2-1-11(B)(14), includes, among others, the person’s
guardian, providers, and an agency service and support administrator—are required to
identify events or circumstances that would require the provider to exceed the 60-hour
limit and incorporate those situations—and any attendant authorization for overtime—in
the person’s individual service plan, which is “the written description of services,
supports, and activities to be provided to an individual.” Ohio Adm.Code 5123:2-1-
11(B)(8).
{¶ 33} One of the bases in (D)(3) for authorizing overtime is when the person
receiving services has a compromised immune system and “may” be put “at risk” by
having more providers. Using the plain and ordinary meanings of “may” and “at risk”
indicates that the exception in (D)(3)(a)(iii) is applicable when there is a possibility that
the person receiving services would be exposed to danger or have a chance of being
injured by having additional providers.
{¶ 34} While Kristina argues that the common pleas court improperly required
proof of “more than a possibility of potential risk or [] some diagnosis or indication of a
severe immunodeficiency in order to be limited to one Medicaid provider,” we disagree.
18. The common pleas court determined that there was reliable, probative, and substantial
evidence that Kristina would not be put at risk by having additional providers—which
tracks the language of section (D)(3)(a)(iii), and is logically synonymous with saying
that, under the facts of this case, there is no possibility that Kristina would be exposed to
danger.
{¶ 35} We therefore reject Kristina’s argument that the common pleas court
misinterpreted Ohio Adm.Code 5123:2-9-03(D)(3), and we find Kristina’s first
assignment of error not well-taken.
C. The common pleas court did not abuse its discretion.
{¶ 36} In her second assignment of error, Kristina argues that the common pleas
court abused its discretion by upholding the administrative decision because the court
(1) relied on the “inaccurate and contradictory” report from Dr. Riethmiller,
(2) improperly determined that Kristina would not be put at risk by additional caregivers
based on her occasional exposure to other people in public, and (3) misconstrued Dr.
Jiang’s letter to permit limited exposure to multiple providers instead of reading the letter
as “recommend[ing] that Kristina not be exposed to multiple providers up to 7 hours per
day * * *.” (Emphasis sic.) JFS counters that Kristina misstates the findings made by the
hearing officer and the common pleas court and her arguments “ignore how the
undisputed facts contradict her position.” Our review of the record shows that the
common pleas court did not abuse its discretion by finding that Ohio Adm.Code 5123:2-
9-03(D)(3)(a)(iii) does not apply to Kristina.
19. {¶ 37} The evidence in the record shows the following:
Kristina had a low WBC count.
Dr. Jiang, a hematologist and oncologist, found that Kristina had a
compromised immune system due to her low WBC count.
Dr. Jiang permitted Kristina to continue taking the medicine he suspected
was causing the leukopenia as long as her neutrophil count was “above a
1000 [sic].”
Dr. Riethmiller, an occupational medicine doctor, characterized Kristina’s
WBC count as “low normal or below normal” and said that the levels of her
component WBCs (i.e., lymphocytes, monocytes, and neutrophils) ranged
from slightly below normal to slightly above normal.
Dr. Riethmiller said that information beyond WBC counts is required to
determine whether someone’s immune system is compromised.
Regardless, Dr. Riethmiller concluded that Kristina’s WBC counts were not
“at an unsafe level.”
Dr. Jiang recommended “limited exposure to multiple providers to decrease
Dr. Riethmiller, on the other hand, opined that the number of providers
Kristina had was unimportant, as long as the providers took precautions
20. (like wearing gowns, masks, and gloves) to avoid transmitting infectious
organisms.
Despite her low WBC count, Kristina was exposed to other people in public
settings such as restaurants and movie theaters.
At the time of the appeal, Kristina was only exposed to one provider—
Terrence, her brother—who helped with intimate tasks of daily living such
as eating and bathing.
{¶ 38} Conspicuously absent from this list is information regarding risk to
Kristina. That is, Kristina submitted very little evidence showing that there was a
possibility that she may be put at risk by having additional providers.
{¶ 39} The only evidence that Kristina submitted regarding risk was Dr. Jiang’s
letter, in which he “recommend[ed] limited exposure to multiple providers to decrease
the risk of infection.” Rather than reading Dr. Jiang’s letter as forbidding multiple
providers, the common pleas court interpreted the letter as giving permission for Kristina
to have some—albeit limited—exposure to more than one provider. This interpretation
was not unreasonable, arbitrary, or unconscionable, and we cannot find that the common
pleas court’s reading of Dr. Jiang’s letter was an abuse of discretion.
{¶ 40} Kristina also complains that the common pleas court improperly found that
she would not be put at risk by having multiple providers because she was exposed to
other people in public places. She argues that there is an “obvious difference” between
21. short public outings5 and being exposed to a provider for up to seven hours a day. This
argument is not supported by the record. Specifically, nothing in the record quantifies the
amount of risk—if any—that Kristina is exposed to by being in public or compares that
risk to the level of risk she would or could be exposed to at home by having additional
HPC services providers. Without evidence to the contrary, it was not unreasonable,
arbitrary, or unconscionable for the common pleas court to find that Kristina’s exposure
to other people in public supported JFS’s conclusion that Kristina would not be put at risk
by exposure to other people in her home.
{¶ 41} Finally, Kristina takes issue with Dr. Riethmiller’s report for three reasons.
First, she complains that he issued an opinion based only on limited information (i.e.,
Kristina’s WBC counts) while noting that other information—specifically results of other
diagnostic tests or a history of repeated infections—would be “important to know.” But
it was Kristina’s burden to demonstrate the applicability of the section (D)(3)(a)(iii)
exception, and Terrence did not provide BODD with any diagnostic tests or medical
information other than the few blood test results showing low WBC counts. Moreover,
Dr. Riethmiller’s opinion was properly limited to the information that he had, which was
5 There is nothing in the record showing the frequency or duration of Kristina’s public outings. Even so, Kristina claims that, because of her temperament and behavioral issues, “even if she does go out on occasion, it is more than obvious that these outing are not for extended periods of time.”
22. the test results that Terrence provided to BODD—stating that Kristina’s WBC counts,
specifically, were not at an “unsafe level.”6
{¶ 42} Second, Kristina points out that Dr. Riethmiller stated that he reviewed five
sets of test results when Kristina’s records contained six sets of test results. There is
nothing to suggest that Dr. Riethmiller’s reference to five sets of results instead of six sets
of results was anything more than a typographical error.
{¶ 43} Finally, Kristina argues that Dr. Riethmiller ignored the fact that all of her
WBC results “clearly indicated that they were under the standard range.” We
acknowledge the apparent discrepancies in the “low normal” range for WBC counts that
Dr. Riethmiller provided (“between 3,800 and 4,300”) and the “Standard Range”
included with Kristina’s blood test results (“4.8-10.8X10E9/L”) and Dr. Riethmiller’s
interpretation of the test results as falling “below normal levels” only twice. However,
given that no one disputes that Kristina has a compromised immune system, the common
pleas court did not err by accepting Dr. Riethmiller’s conclusion that Kristina’s WBC
counts were low only in April and November of 2017 as reliable, probative, and
substantial evidence supporting the administrative ruling. Dr. Riethmiller found that her
WBC counts were not low enough to be concerning and that the number of providers she
6 He justified this statement by saying that doctors are generally not concerned about patients on chemotherapy (which can decrease WBC counts) having compromised immune systems until their WBC counts fall below 1,000. Incidentally, Dr. Jiang’s notes in Kristina’s medical records lend some support to this conclusion. He allowed Kristina to continue taking the medicine that he believed was causing the leukopenia as long as her neutrophil count stayed above 1,000.
23. had was not important, assuming that the providers took appropriate precautionary
measures.
{¶ 44} Given all of this information, we cannot say that the common pleas court
acted in an unreasonable, arbitrary, or unconscionable manner by finding that the
identified issues with Dr. Riethmiller’s report were not “legally significant” enough to
discredit his conclusions.
{¶ 45} In sum, the common pleas court did not abuse its discretion by finding that
JFS’s decision was supported by reliable, probative, and substantial evidence and was in
accordance with law. Kristina did not present evidence that she “may be put at risk by
having additional providers,” so the common pleas court did not err in affirming JFS’s
decision that the exception to the overtime rule in Ohio Adm.Code 5123:2-9-
03(D)(3)(a)(iii) did not apply to her. Accordingly, Kristina’s second assignment of error
is not well-taken.
IV. Conclusion
{¶ 46} Based on the foregoing, the March 25, 2019 judgment of the Lucas County
Court of Common Pleas is affirmed. Kristina is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
24. Mocznianski v. Ohio Dept. of Job & Family Servs. C.A. No. L-19-1076
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
25.