Herubin v. Ohio Dept. of Job & Family Servs.

[Cite as Herubin v. Ohio Dept. of Job & Family Servs., 2022-Ohio-3243.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

BELLA HERUBIN AS EXECUTOR OF THE

ESTATE OF JOSEPH T. HERUBIN,

Plaintiff-Appellant,

v.

OHIO DEPT. OF JOB AND FAMILY SERVICES,

Defendant-Appellee.

OPINION AND JUDGMENT ENTRY

Case No. 21 MA 0109

Civil Appeal from the

Court of Common Pleas of Mahoning County, Ohio

Case No. 2021 CV 12

BEFORE:

Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.

JUDGMENT:

Affirmed.

Atty. John A. McNally, III, John A. McNally, III, Co., LPA, 100 East Federal St., Suite 600,

Youngstown, Ohio 44503 for Plaintiff-Appellant and

Atty. Julie E. Brigner, Atty. Kelly Richardson, Health and Human Services Section, 30

East Broad Street, 26th Floor, Columbus, Ohio 43215 for Defendant-Appellee.

Dated: September 14, 2022

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Robb, J.

{¶1} Appellant Bella Herubin as Executor of the Estate of Joseph T. Herubin

appeals the decision of the Mahoning County Common Pleas Court affirming the

administrative decision made by Appellee Ohio Department of Job and Family Services

(ODJFS), which upheld the denial of the applicant’s Medicaid application. The estate

contends the common pleas court should have ordered ODJFS to approve the Medicaid

application because the pandemic made it factually impossible for the decedent’s former

authorized representative (his son) to comply with verification requirements, as he was

unable to secure an appointment with a bank to set up a trust and open a trust account.

For the following reasons, the common pleas court’s judgment is affirmed.

STATEMENT OF THE CASE

{¶2} On March 20, 2020, Joseph T. Herubin filed an application for Medicaid.

Specifically, he sought Long-Term Care (LTC) benefits, as he was residing at a nursing

home facility. He appointed his son, Mark Herubin, as his authorized representative to

assist in the process. Mahoning County Department of Job and Family Services

(MCDJFS) interviewed the son on March 26, 2020 and informed him of the verification

and eligibility requirements.

{¶3} The same day, a checklist was mailed to the applicant and the son, which

listed the required verifications with a due date of April 6, 2020. It contained a warning

that the failure to submit the requested information may result in the denial of the

application. One item on the checklist was the value of life insurance. The checklist was

accompanied by instructions on proper ways to spend down resources and explained

there was a resource limit of $2,000. Also included was information on Medicaid estate

recovery upon the death of an institutionalized recipient.

{¶4} In addition, the checklist explained a Qualified Income Trust (QIT) was

required in order to become eligible if the applicant’s monthly gross income exceeded

$2,349. An instructional QIT packet was attached, clearly stating a person with income

over that amount would not become eligible until a valid QIT was executed and a financial

account for the trust was established for the deposit of income above the eligibility level.

The applicant was encouraged to consult an attorney with legal questions. The applicant

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was provided with a hotline number for QIT questions and a list of local banks where a

QIT account can be set up, with an advisement some nursing homes assist with the QIT

process or “you may want to consult with your own attorney.” There was also a link to a

standard QIT form.

{¶5} After the son provided some verifications, the agency’s July 7, 2020 letter

listed the outstanding verifications with a deadline of July 22, 2020. Again, the letter:

warned that the failure to submit the requested information may result in the denial of the

application; advised the Medicaid resource limit was $2,000; and asked for life insurance

cash values. As the applicant’s monthly income was $4,160, the letter required the

establishment of a QIT with a deposit of $1,811 (based on the applicant’s monthly income

exceeding $2,349). See Ohio Admin.Code 5160:1-6-03.1(B) (if an individual is ineligible

under base Medicaid due to excess income, he may become eligible if his income is equal

to or less than the special income level {SIL}, which was $2,349 effective 1/1/20).

{¶6} On this topic of the required QIT, the July 20, 2020 response letter from the

applicant’s son said he called several Chase Bank branches in the area and was advised

“this is a matter that is handled by the courts.” He said he then called the hotline in order

to obtain documents for his completion and submission to Chase Bank.

{¶7} As to the agency’s request for the face value, cash value, and ownership of

the New York Life insurance policy that deducted money for a premium from the

applicant’s Chase bank account, the son said there was no life insurance policy from this

company in the applicant’s name. There was no explanation for the premium deducted

from the account (which can be seen on the bank statement), and there was no statement

about whether the policy was in the spouse’s name. (The agency had also asked for the

cash value of the applicant’s life insurance policies through John Hancock, and the son

obtained a letter from that company showing the surrender value for two policies.)

{¶8} The son’s letter also said the applicant’s attorney was in the process of

transferring real property back to the applicant and the applicant’s spouse (Bella Herubin)

which had been conveyed to the son and his brother on March 6, 2020. (Later, deeds

reconveying the property to Bella Herubin were signed by each of the applicant’s sons on

August 20 and September 3, 2020.)

{¶9} On July 22, 2020, the applicant died. On July 30, 2020, MCDJFS issued a

denial of the Medicaid application. The decision said eligibility was determined based on

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the application and the applicant failed to provide the requested verifications. The

applicant’s wife, through an attorney, requested a state hearing with ODJFS.

{¶10} The state hearing proceeded on November 23, 2020. The representative

from MCDJFS testified as to the history, the failed verifications, and the income of $4,160,

which placed the applicant over the limit without a QIT and an accompanying account. It

was disclosed that between the issuance of the two written checklists, the son was also

orally advised that the applicant would need to establish a QIT to be eligible for LTC

Medicaid. The applicant’s attorney testified the family told him they submitted all the

needed documents, noting he was only involved in the deeds. The record was therefore

left open for several days so any additional evidence of documents submitted to MCDJFS

could be added to the record. No further evidence on the life insurance, the QIT, or a QIT

account was provided.

{¶11} On December 1, 2020, the “state hearing decision” affirmed the denial of

the Medicaid application. This decision noted the son said he checked with New York

Life and learned his father had no existing policy. The decision also pointed to the

disclosure in the July 20, 2020 letter that the son started looking into a QIT, which

confirmed that no QIT or account had been established before the applicant died on July

22, 2020. It was concluded: “Without this account established, the Applicant would have

been over the SIL of $2,349 based on his monthly countable income of $4,160. Thus,

even if the verification issue were set aside, MCDJFS would still have been correct to

deny this application due to the Appellant being over the income limit for potential LTC

Medicaid eligibility.”

{¶12} A request for an administrative appeal from the state hearing decision was

filed with ODJFS. On December 10, 2020, the state hearing decision was affirmed. After

reviewing the facts, the ODJFS decision found: “The cash value of the New York Life

policy was never provided nor was evidence of the establishment of a QIT ever received

by the Agency.” It was concluded the state hearing decision and the MCDJFS decision

were correct because the verifications were not received or in the record (even after

additional time was provided based on the attorney’s statement that he was told the

required documents were sent).

{¶13} From this “administrative appeal decision,” a timely appeal was filed in the

common pleas court on January 5, 2021. The court set a briefing schedule with a non-

Case No. 21 MA 0109

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oral hearing date. (4/23/21 & 6/20/21 J.E.). The common pleas court granted a motion

for substitution of parties upon learning the decedent’s spouse had just been appointed

as the executor of his estate. (2/2/21 J.E.).

{¶14} The estate’s merit brief in the common pleas court alleged the

administrative decision was “procedurally defective” because the son made every effort

to comply with the requirements of MCDJFS but was thwarted by COVID-19 closures.

The brief said the son encountered issues in dealing with documentary requests in the

height of the pandemic “specifically in July-August, 2020.” An affidavit from the son was

filed, which stated: in the summer of 2020, the nursing home financial staff directed him

to Chase Bank on a certain street to set up the trust, but it was locked due to the pandemic

and his calls were unsuccessful; he then called two other Chase Bank branches upon the

urging of the nursing home, but they were closed; he made an appointment for his father

with the Chase Bank branch in Salem; and his father died a few days before the

appointment. The affidavit was signed on July 27, 2021.

{¶15} The response brief filed by ODJFS argued the administrative decision was

supported by reliable, probative, and substantial evidence and in accordance with law, as

the applicant failed to demonstrate a QIT was established and funded in order to decrease

his countable income, which exceeded the eligibility limits. ODJFS pointed out

Appellant’s argument on appeal did not apply to the failure to provide verification of the

insurance policy through New York Life. The agency further pointed out the estate did

not contest these facts and the sole argument on appeal asked the court to ignore the

law. ODJFS cited to the waiver doctrine, arguing the claim about the pandemic affecting

the establishment of a QIT was not raised in the state hearing. ODJFS also asked the

court to strike the affidavit as it was outside the certified administrative record.

{¶16} ODJFS additionally pointed out there was no dispute the applicant’s

income was over the eligibility limit. It was explained that even if a QIT could somehow

be deemed established in July 2020 (when the son claimed he encountered a delay),

such a decision would not provide for past Medicaid coverage because the three-month

retroactive eligibility for LTC only applies if the applicant was income-eligible at the time.

See Ohio Admin.Code 5160:1-2-01(M)(1)(b)(iii). As discussed in the next section, the

agency also claimed the common pleas court lacked jurisdiction due to the initial

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captioning of the notice of appeal in the name of the decedent in the care of his family,

which was how ODJFS captioned the case in the administrative proceedings.

{¶17} The estate’s reply brief responded to the jurisdictional argument by citing

the statutory provision allowing the notice of appeal to be extended to six months for good

cause. The estate then said the only fact at issue was whether it was “factually

impossible” to comply with the Medicaid requirement to establish a QIT in the summer of

2020. As to life insurance verification, the estate claimed the applicant could not be

expected to prove a negative and pointed out the existence of such a policy was denied

in the son’s July 2020 letter.

{¶18} On November 10, 2021, the common pleas court affirmed the administrative

decision. The court struck the son’s affidavit upon concluding the court was confined to

the record as certified. The court found the claim of hardship in establishing a QIT due

to the pandemic was waived because it was not raised at the administrative hearing,

pointing out this was the estate’s only argument on appeal. The court concluded the

administrative appeal decision was supported by reliable, probative, and substantial

evidence and in accordance with law. The estate filed a timely notice of appeal in this

court.

JURISDICTION OF THE COMMON PLEAS COURT

{¶19} Before reaching the estate’s assignment of error, we address the

jurisdictional argument in ODJFS’s brief. It is argued the common pleas court lacked

subject matter jurisdiction over the administrative appeal because the notice of appeal

was not originally filed by the estate, even though the court allowed substitution of the

estate soon after the appeal was filed. It is pointed out the statute defining the “appellant”

in the notice of appeal invoking the common pleas jurisdiction does not specifically include

an authorized representative (which is discussed in administrative regulations on internal

appeals.1)

1 It is also noted Civ.R. 17 (A) states the following: “Real party in interest. Every action shall be prosecuted

in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express

trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party

authorized by statute may sue in his name as such representative without joining with him the party for

whose benefit the action is brought.” (Emphasis added.)

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{¶20} According to the relevant statute, “An appellant who disagrees with an

administrative appeal decision of the director of job and family services or the director's

designee issued under division (C) of this section may appeal from the decision to the

court of common pleas pursuant to section 119.12 of the Revised Code.” R.C.

5101.35(E). “The appellant shall mail the notice of appeal to the department of job and

family services and file notice of appeal with the court within thirty days after the

department mails the administrative appeal decision to the appellant.” R.C.

5101.35(E)(3). This statute defines “Appellant” as “an applicant, participant, former

participant, recipient, or former recipient of a family services program who is entitled by

federal or state law to a hearing regarding a decision or order of the agency that

administers the program.” R.C. 5101.35(A)(2).

{¶21} “When a statute confers a right to appeal, the appeal can be perfected only

in the mode the statute prescribes.” Pryor v. Director, Dept. of Job & Family Servs., 148

Ohio St.3d 1, 2016-Ohio-2907, 68 N.E.3d 729, ¶ 12 (where the administrative appeal

statute expressly said the “filing of the notice of the appeal” was the only jurisdictional

requirement, the inclusion of the information required in the notice of appeal itself is the

only condition precedent to vest jurisdiction in the court). “[N]aming proper parties and

fulfilling service requirements are jurisdictional requirements in cases that involve statutes

that clearly require such for jurisdiction.” Spencer v. Freight Handler Inc., 131 Ohio St.3d

316, 2012-Ohio-880, 964 N.E.2d 1030, ¶ 19.

{¶22} The January 5, 2021 timely notice of appeal to the common pleas court was

captioned “Joseph Herubin c/o The Family of Joseph Herubin.” (This was the caption

used on page one of the administrative agency’s December 10, 2020 order appealed to

the common pleas court). On January 29, 2021, the estate filed a motion to be substituted

as the party filing the appeal. The common pleas court granted the substitution replacing

“Joseph Herubin c/o The Family of Joseph Herubin” with “Joseph Herubin, Bella A.

Herubin, Executor of the Estate of Joseph T. Herubin Sr.” (2/2/21 J.E.).

{¶23} ODJFS claims the notice of appeal was not captioned in the name of a

proper appellant as the applicant was deceased and the family did not meet the specific

statutory definition of appellant. Although the case proceeded through the administrative

process without a personal representative appointed by the probate court, Ohio Admin.

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Code 5101:6-3-02(A)(1),(3)(a) allows an authorized representative of the decedent to

request a state hearing administrative appeal.

{¶24} ODJFS points out the court process is distinguishable because a decedent

has no legal capacity to file a lawsuit or an appeal to a court and his “family” is not a

legally recognized substitute for the decedent. Because “a party must actually or legally

exist,” a deceased person cannot be a party to an action. Baker v. McKnight, 4 Ohio

St.3d 125, 127, 447 N.E.2d 104 (1983) (while adopting a theory allowing for correction of

a misnomer for a deceased defendant). “The executor of an estate, as a legal

representative, settles the decedent's affairs and ‘stands in [the decedent's] shoes' as far

as entitlement to benefits is concerned.” Hopper v. Nicholas, 106 Ohio St. 292, 302, 140

N.E. 186 (1922).

{¶25} ODJFS agrees the estate would be the proper party. However, ODJFS

contends the January 5, 2021 notice of appeal did not vest the common pleas court with

jurisdiction because it was not filed by the estate (which did not exist at the time) and the

subsequent substitution could not save the appeal from this defect. ODJFS also

complains that in addition to adding the estate as a party, the substitution and the court’s

entry said, “Bella A. Herubin, individually, shall remain as a Plaintiff,” even though her

name was not previously specified in the notice of appeal. (Rather, the decedent’s family

in general was in the caption after his name and “c/o”). ODJFS points out a spouse does

not meet the definition of an appellant in R.C. 5101.35(A)(2) even if the “Family” portion

of the prior caption were to be construed as naming the spouse.

{¶26} Pertinent to the latter topic, the Eighth District has concluded a nursing

home previously named as the authorized representative had standing to file the notice

of appeal in the common pleas court. Tiggs v. Ohio Dept. of Job & Family Servs., 2018-

Ohio-3164, 118 N.E.3d 985, ¶ 28 (8th Dist.). Here, the decedent named his son as the

authorized representative, and the decedent’s spouse requested the state hearing appeal

from the initial denial. See Ohio Admin.Code 5101:6-3-02(A)(1) (the authorized

representative can request state hearing), (3)(a) (written authorization as authorized

representative is not required if it cannot be obtained because of the individual's death or

incapacity and the representative is acting in the individual's best interest), (b) (applicant’s

spouse does not require written authorization as authorized representative in order to

request a state hearing). However, in Tiggs, the applicant was still alive when the

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authorized representative filed the appeal, which they found distinguishable from cases

involving a theory of lapsed authority.

{¶27} In any event, the case at bar involved a substitution of parties which

amended the notice of appeal and which is distinct from any case with a substitution of

parties occurring after the notice of appeal time ended. The statute providing the notice

of appeal deadline in the common pleas court contains the following special provision

cited by Appellant:

The appeal shall be governed by section 119.12 of the Revised Code

except that: * * * The appellant shall mail the notice of appeal to the

department of job and family services and file notice of appeal with the court

within thirty days after the department mails the administrative appeal

decision to the appellant. For good cause shown, the court may extend the

time for mailing and filing notice of appeal, but such time shall not exceed

six months from the date the department mails the administrative appeal

decision. Filing notice of appeal with the court shall be the only act

necessary to vest jurisdiction in the court.

(Emphasis added.) R.C. 5101.35(E)(3). Compare R.C. 119.12(D) (15 days to appeal

unless otherwise provided by law specific to a particular agency). Therefore, even if no

notice of appeal had been filed within 30 days of December 10, 2020, the court could

have extended the time for good cause and allowed an original notice of appeal to be

filed on January 29, 2021 (and for months thereafter).

{¶28} The estate’s January 29, 2021 motion to be substituted as the party who

filed the appeal was filed a mere 24 days after the timely notice of appeal was filed and

less than three weeks after the general 30-day appellate date had passed. The letters of

authority from the probate court were attached, showing the decedent’s wife was

appointed as the executor on January 22, 2021.

{¶29} The common pleas court’s grant of substitution is essentially a finding of

good cause for the amendment of the notice of appeal via the substitution of parties so

that the executor of the decedent’s estate was the appellant on the decedent’s behalf.

The court could have allowed an extension to file the notice of appeal up to six months

after the administrative decision. R.C. 5101.35(E)(3). Consequently, a timely notice of

Case No. 21 MA 0109

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appeal was brought by the admittedly proper party well within the time for filing an

extended notice of appeal.

{¶30} Notably, ODJFS made this same jurisdictional argument in its August 30,

2021 response brief to Appellant’s merit brief filed in the common pleas court, arguing a

decedent cannot file an action or appeal in a court without being represented by the

fiduciary of his estate and the February 2, 2021 substitution did not cure the jurisdictional

defect. The common pleas court implicitly rejected this argument by proceeding to

address Appellant’s administrative appeal, thereby reaffirming its prior decision allowing

substitution and implicitly confirming the existence of good cause for the amendment of

the notice of appeal. Due to this history and the statute specifically allowing the common

pleas court to extend the date for a complete notice of appeal by up to six months for

good cause, the jurisdictional argument by ODJFS is rejected.

{¶31} Lastly, we note the cases relied upon by ODJFS are not on point. In one

case, a decedent’s son and power-of-attorney filed the appeal from the Medicaid denial:

“Since the representative of [the decedent’s] estate, and not [the son], in his individual

capacity or as a lapsed attorney-in-fact, was the real party in interest to prosecute the

action in the trial court, the trial court did not have jurisdiction to entertain the

administrative appeal.” Santa v. Ohio Dept. of Human Servs., 136 Ohio App.3d 190, 195,

736 N.E.2d 86 (8th Dist.2000). The Santa case is distinguishable because “[t]he estate

of [the decedent] Santa was not substituted as a party at any point in the proceedings

before the administrative agency or the trial court.” Id. at 193. There was thus no

application of the statutory good cause extension to perfect the appeal.

{¶32} In the other cited case, a nursing home initiated appeals from the denial of

Medicaid within the administrative system as the authorized representative of the

decedent. Saber Health Care v. Ohio Dept. of Job & Family Servs., 4th Dist. Adams No.

20CA1107, 2020-Ohio-4044, ¶ 3. The original notice of appeal to the common pleas

court was filed on June 6, 2019 purportedly by the decedent; however, it was voluntarily

dismissed. Id. at ¶ 3-4. In November 2019, a notice of appeal was filed by the nursing

home and by a person who had a pending probate application to be appointed special

administrator, citing (E)(3) of R.C. 5101.35. Id. at ¶ 4-5. The person was later appointed

administrator on December 2, 2019. The common pleas court thereafter dismissed the

appeal.

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{¶33} Notably, the decedent’s administrator did not appeal to the appellate court;

only the nursing home appealed. Id. at ¶ 33. The appellate court found the nursing home

was not an appellant under R.C. 5101.35(A)(2) and its authorized representative status

did not extend to an appeal in the common pleas court. Id. at ¶ 22-26. The court also

observed that the person who filed the notice of appeal in the common pleas court was

not designated as the administrator by the probate court until after he filed the notice of

appeal, noting “Appellant cites no authority to support the proposition that would allow

[this person’s] appointment to relate back to the time of the filing of the notice of appeal.”

Id. at ¶ 33.

{¶34} There is no indication a motion to substitute a party was filed in Saber once

the person who filed the notice of appeal was granted the letters of administration, and

that person did not appeal to the appellate court. Moreover, although the appellate court

failed to specifically reveal the date of the final administrative order, it appears by the time

the person was finally appointed as the personal representative of the decedent, the six-

month potential period for an extended appeal was expired (which is why the Saber court

was discussing relation back to the November appeal filed by the would-be administrator).

Accordingly, the cases cited by ODJFS are distinguishable.

{¶35} As we reject the ODJFS jurisdictional argument, we move on to address

Appellant’s assignment of error on appeal.

ASSIGNMENT OF ERROR

{¶36} Appellant’s sole assignment of error contends:

“The Trial Court erred by not taking into account the exigencies of the Pandemic,

when it was at its highest, in upholding the decision of [ODJFS] in not granting Medical

benefits to [Appellant].”

{¶37} R.C. 119.12(M) requires a common pleas court to uphold an administrative

decision on Medicaid if it is “supported by reliable, probative, and substantial evidence

and is in accordance with the law.” Estate of Atkinson v. Ohio Dept. of Job & Family

Servs., 144 Ohio St.3d 70, 2015-Ohio-3397, 40 N.E.3d 1121, ¶ 17. Legal questions are

reviewed de novo by the reviewing courts. Spitznagel v. State Bd. of Edn., 126 Ohio

St.3d 174, 2010-Ohio-2715, 931 N.E.2d 1061, ¶ 14.

{¶38} On factual questions, the court of common pleas “is confronted with the

issue of whether the decision is against the manifest weight of the evidence.” Arlen v.

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State of Ohio, State Med. Bd., 61 Ohio St.2d 168, 175, 399 N.E.2d 1251 (1980). The

common pleas court does not conduct a trial de novo but views the credibility of witnesses

and the weight of the evidence in the record while giving “due deference to the

administrative resolution of evidentiary conflicts.” University of Cincinnati v. Conrad, 63

Ohio St.2d 108, 110-111, 407 N.E.2d 1265 (1980).

{¶39} “The appellate court's review is even more limited than that of the trial court.”

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). “While it

is incumbent on the trial court to examine the evidence, this is not a function of the

appellate court. The appellate court is to determine only if the trial court has abused its

discretion i.e., being not merely an error of judgment, but perversity of will, passion,

prejudice, partiality, or moral delinquency.” Id. The appellate court cannot substitute its

judgment for that of the administrative agency or the common pleas court. Id.

{¶40} The estate does not dispute that verification was lacking as to a QIT or trust

account and does not dispute there was, in fact, no trust established or account opened.

“The properly executed QIT document, proof of the establishment of the QIT account,

documentation of the required monthly deposit amount, and verification of monthly

deposits from an income source or sources into the QIT account, including efforts to have

income deposited directly into the QIT account, must be submitted along with the

application for Medicaid for an individual needing LTC services.” Ohio Adm.Code 5160:1-

6-03.2(I). “The establishment of the QIT must be documented, including the location of

the QIT account, the QIT account number, and details regarding who has access to the

QIT account. The title of the QIT account must clearly identify it as a QIT account in the

name of the individual.” Ohio Adm.Code 5160:1-6-03.2(G).

{¶41} “The administrative agency shall deny the individual's application when the

individual fails to provide the necessary information or verifications, or request assistance

and cooperate with obtaining verifications, within the time specified in the second

verification request.” Ohio Adm.Code 5160:1-2-01(H)(5)(c). Without a QIT and account,

the applicant was not eligible for Medicaid due to his gross monthly income, which was

well above the SIL.

{¶42} Nevertheless, the estate argues the applicant, through his son, made every

effort to comply with documentary requests but was thwarted by pandemic closures. The

estate notes the trial court would have been aware of pandemic closures, as courts were

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experiencing limited operation. The estate cites the son’s affidavit as allegedly showing

the impossibility of compliance with requests from MCDJFS.

{¶43} ODJFS says the estate fails to explain how a court can overlook the

applicant’s failure to establish a QIT or a trust account before his death, noting the agency

would have sought reimbursement from the QIT after death for benefits paid if a QIT

account existed. As the agency alternatively pointed out below, retroactivity can only be

applied for a limited time and only for periods in the institution that the applicant was

eligible by income. It is observed the estate’s claim in the common pleas court was based

on issues allegedly occurring in the days before the applicant’s death. ODJFS points out

the income-eligibility and QIT information was provided to the applicant and the son in

March 2020, and there was no reference (even in the untimely affidavit) to attempting to

establish a QIT earlier than July 2020.

{¶44} Regardless, as ODJFS emphasizes, the trial court rejected Appellant’s

pandemic impossibility argument by pointing to the prohibition on considering evidence

outside of the record and to waiver principles. The common pleas court does not conduct

a trial de novo and is limited by R.C. 119.12 as to the evidence it can consider. University

of Cincinnati, 63 Ohio St.2d at 110 (giving due deference to the administrative resolution

of evidentiary conflicts). This statute specifically states: “Unless otherwise provided by

law, in the hearing of the appeal, the court is confined to the record as certified to it by

the agency.” R.C. 119.12(K). The next sentence provides: “Unless otherwise provided

by law, the court may grant a request for the admission of additional evidence when

satisfied that the additional evidence is newly discovered and could not with reasonable

diligence have been ascertained prior to the hearing before the agency.” Id.

{¶45} The estate presented no argument for application of the second sentence

in division (K) of R.C. 119.12, and there is no indication its requirements were satisfied.

That is, there was no newly discovered evidence or evidence that could not have

reasonably been discovered prior to the hearing before the agency. Accordingly, the

common pleas court properly struck the son’s affidavit presented for the first time in the

estate’s merit brief in the common pleas court.

{¶46} With the affidavit stricken, ODJFS then points out the topic of impossibility

due to pandemic closures was not raised in the son’s letter to MCDJFS prior to the denial

decision or to the state hearing officer at the hearing where testimony was taken. The

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agency urges the common pleas court was reasonable in finding waiver of the issue. The

estate did not argue to the common pleas court and does not argue in the brief in this

appeal that the issue was timely raised administratively. (In fact, the brief in this court

does not directly challenge the application of waiver or the striking of the affidavit.)

{¶47} We note, in the administrative appeal of the state hearing decision, counsel

claimed in the notice of appeal that the hearing examiner ignored the “effects of COVID”

and referred to the son’s attempts to establish a QIT and the applicant’s “death two days

later.” The estate does not mention this or argue it was a preservation. ODJFS says this

was a vague argument and did not articulate a claim that the pandemic made establishing

a QIT impossible. Rather, the claim made it sound like the applicant died of COVID-19

two days after the son attempted to start the QIT process. Also, the establishment of the

QIT was distinct from the opening of a trust account as made clear in the March 26, 2020

paperwork packet provided to the applicant and the authorized representative. This

paperwork provided a link to a QIT template, a hotline number, and an advisement to

consult an attorney (if the applicant and authorized representative could not handle the

QIT establishment process themselves).

{¶48} In any event, the pandemic issue was not raised to MCDJFS. Instead, a

different argument was raised about the QIT; the son disclosed the bank said the trust

was a court matter and he then requested paperwork from the hotline. Moreover, there

is no assertion or indication the issue was raised at the initial state hearing, where the

son could have testified or presented the affidavit he first submitted on appeal to the

common pleas court. Issues which were not raised at the administrative level are waived

in the appeal to the court. BRT Transport LLC v. Ohio Dept. of Job & Family Servs., 10th

Dist. Franklin No. 14AP-800, 2015-Ohio-2048, ¶ 25; Southgate I & II, Inc. v. Ohio Dept.

of Health, 7th Dist. Mahoning No. 97-CA-182 (Nov. 16, 1999). See also 1609 Gilsey

Invests., Inc. v. Liquor Control Comm., 10th Dist. Franklin No. 07AP-1069, 2008-Ohio-

2795, ¶ 10 (“Errors which are not brought to the attention of the administrative agency by

objection or otherwise are waived and may not be raised on appeal.”), citing, e.g., Stores

Realty Co. v. City of Cleveland, Bd. of Bldg. Standards & Bldg. Appeals, 41 Ohio St.2d

41, 43, 322 N.E.2d 629 (1975) (failure to object to a matter in the administrative

proceeding waives the matter on appeal to a court).

Case No. 21 MA 0109

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{¶49} “The rule compelling a party to present all legitimate issues before the

administrative tribunal is required in order to preserve the integrity of the proceedings

before that body and to endow them with a dignity beyond that of a mere shadow-play.”

State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 82, 679 N.E.2d 706 (1997)

(wasting judicial and administrative resources by permitting a party to raise the failure to

consider an issue on which the party remained silent). Accordingly, the common pleas

court did not legally err or abuse its discretion in applying the waiver doctrine.

{¶50} Lastly, in the event the issues were to be reached, the estate points out the

son’s letter to MCDJFS denied the existence of a life insurance policy through New York

Life. The estate then claims it is impossible to prove a negative, besides the son stating

there was no policy in his letter. ODJFS responds by pointing out the applicant’s bank

statement showed a premium was paid to this company just before the Medicaid

application was filed.

{¶51} “A life insurance policy is a countable resource to the policy owner for

medical assistance purposes if it generates a CSV [cash surrender value]. * * * The

individual must submit all policies that the individual and spouse own.” Ohio Adm.Code

5160:1-3-05.12(C)-(D). The March 2020 checklist advised that the “Proof of current value

of * * * life insurance” was a required outstanding verification and “If you are married, you

must submit the same information for your spouse (even if separated).” A verification

sent to MCDJFS showed the face value but not the cash or surrender value. The July

2020 checklist specifically advised the applicant that he was required to disclose the face

value, the cash value, and ownership of the New York Life policy and expressly pointed

to the Chase Bank statement showing the premium withdrawal.

{¶52} The son’s letter merely stated no policy was in the applicant’s name, without

stating the cash value of the policy or acknowledging it was owned by the spouse. This

is distinct from a situation where the agency generally asks for the value of any life

insurance policies for the applicant and spouse and the applicant replies by stating none

exist for either individual. ODJFS points out the policy’s cash value was not provided to

the agency at any point. A letter from the company that made the electronic bank

withdrawal could have been obtained if there was in fact, no policy related to either spouse

(just as the applicant obtained a letter from the other life insurance company to show cash

value after the prior verification merely showed face value). At oral argument, counsel

Case No. 21 MA 0109

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argued if the face value was known, then the county would have known the cash value

was some amount less than the face value (apparently presuming the amount would not

have affected the eligibility decision). We note Appellant’s sole argument on appeal to

the common pleas court about pandemic closures did not appear to encompass this

additional missing verification cited in the administrative appeal decision.

{¶53} Regardless, with an unfavorable decision on the lack of a QIT or the

required account, the issue of an additional lacking verification is irrelevant. There was

no QIT or trust account established. In the absence of these trust-related items, the

applicant never became eligible for Medicaid before he died because his income

exceeded the eligibility limits. The estate’s argument on appeal did not dispute these

facts and law. In sum, the common pleas court did not abuse its discretion in concluding

the administrative decision denying the application for Medicaid was supported by

reliable, probative, and substantial evidence and was in accordance with the law.

{¶54} For the foregoing reasons, we affirm the decision of the common pleas court

upholding the denial of Medicaid.

Waite, J., concurs.

D’Apolito, J., concurs.

Case No. 21 MA 0109

[Cite as Herubin v. Ohio Dept. of Job & Family Servs., 2022-Ohio-3243.]

For the reasons stated in the Opinion rendered herein, the assignment of error is

overruled and it is the final judgment and order of this Court that the judgment of the Court

of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed against the

Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.