[Cite as Communicare v. Ohio Dept. of Job & Family Servs., 2019-Ohio-3757.]

                              COURT OF APPEALS OF OHIO

                            EIGHTH APPELLATE DISTRICT
                               COUNTY OF CUYAHOGA

COMMUNICARE D.B.A.
NORTHWESTERN
HEALTHCARE CENTER                                    :

                Plaintiff-Appellant,                 :

                v.                                   :
                                                                          No. 106874
OHIO DEPARTMENT OF
JOB AND FAMILY SERVICES,                             :

                Defendant-Appellee.                  :



                              JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: September 19, 2019


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-17-886013


                                           Appearances:

                Nicholas A. Kulik, for appellant.

                Dave Yost, Ohio Attorney General, and Rebecca L.
                Thomas, Assistant Attorney General, for appellee.


EILEEN A. GALLAGHER, J.:

                  Appellant Communicare d.b.a. Northwestern Healthcare Center

(“Communicare”), as authorized representative of Mohsen Fanous, appeals the trial
court’s judgment affirming the decision of the Ohio Department of Job and Family

Services (“ODJFS”) that denied Fanous’ application for Medicaid benefits. As

discussed below, because Fanous’ known countable resources exceeded the

Medicaid eligibility limit, we affirm.

Factual and Procedural Background

               As reflected in the trial court’s decision, Fanous’ Medicaid application

was initially denied by the Cuyahoga County Department of Job and Family Services

because Fanous failed to verify potential resources. Fanous sought review by

ODJFS. The agency remanded the matter to the county for re-evaluation.

               The county subsequently determined that Fanous owned real estate

with an equity value of approximately $16,000. It also made subsequent requests

for Fanous to verify other potential resources. Fanous failed to respond to multiple

verification requests related to four active businesses and ten vehicles.

               Because Fanous’ known resources exceeded the Medicaid eligibility

limit and he failed to verify other resources, the county denied his application.

               Fanous again appealed to ODJFS. The agency determined that his

application was properly denied. Fanous appealed to the director of ODJFS and the

resulting administrative appeal decision affirmed the denial of Fanous’ application.

As reflected in the agency decision, at the time Fanous applied for Medicaid:

      [Fanous] owned four pieces of real property and one was sold for
      $9,000. Of the other properties, one had an equity value of $10,004,
      the second had an equity of $3,667.51 and the third had an equity value
      of $2,178. * * * The value of the properties all exceeded the resource
      limit both individually and collectively * * *.
                  Fanous sought review of the agency decision by the Cuyahoga County

Court of Common Pleas. Following its review, the court found that the decision

denying Fanous’ application was “supported by reliable, probative, and substantial

evidence.” It cited a “two-fold” basis for denying the application: (1) Fanous’ real

property constituted resources in excess of the Medicaid limit and (2) Fanous failed

to verify other potential countable resources. The court found that Fanous’ real

property was an independent and sufficient basis for denying the application.

Regardless of whether Fanous was entitled to assistance in responding to the

outstanding verifications, the application was properly denied because Fanous “still

owns resources, in the form of real property, that exceed the Medicaid eligibility

limit.”

                  The court found an alternative basis for affirming the agency decision,

determining that Communicare lacked legal standing to pursue the appeal in the

trial court.

Assignments of Error

                  On appeal to this court, Communicare asserts three assignments of

error:

          1. The court of common pleas erred in dismissing Mr. Fanous’ appeal
          for lack of jurisdiction and the dismissal is inconsistent with this court’s
          holding that a designated authorized representative has standing to
          bring an appeal of a Medicaid denial on behalf of the applicant.

          2. The court of common pleas erred in dismissing Mr. Fanous’ appeal
          in concluding that he owns available resources that exceed the
          Medicaid eligibility limit.
      3. The court of common pleas erred in dismissing Mr. Fanous’ appeal
      in concluding that Mr. Fanous and his authorized representation failed
      to provide the required verification to ODJFS.

We address the assignments of error in an order that aids our analysis.

Law and Analysis

Standard of Review

              In the context of this appeal, this court reviews whether the court of

common pleas abused its discretion in finding that the administrative agency’s

decision was supported by “reliable, probative, and substantial evidence.” Tiggs v.

Ohio Dept. of Job & Family Servs., 2018-Ohio-3164, 118 N.E.3d 985, ¶ 13 (8th Dist.)

citing Kinasz-Reagan v. Ohio Dept. of Job & Family Servs., 164 Ohio App.3d 458,

2005-Ohio-5848, 842 N.E.2d 1067 (8th Dist.), ¶ 11, fn. 2. The Supreme Court has

explained the extent of our review as follows:

      In reviewing an order of an administrative agency, an appellate court’s
      role is more limited than that of a trial court reviewing the same order.
      It is incumbent on the trial court to examine the evidence. Such is not
      the charge of the appellate court. The appellate court is to determine
      only if the trial court has abused its discretion.

Id., quoting Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40

Ohio St.3d 257, 260-261, 533 N.E.2d 264 (1988); see also Brown v. Ohio Dept. of

Job & Family Servs., 8th Dist. Cuyahoga No. 92008, 2009-Ohio-1096, ¶ 11 (“[T]he

record must show more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary, or uncounscionable.”).
Real Property as a Countable Resource

               In the second assignment of error Communicare argues that the trial

court erred by considering Fanous’ real property as a countable resource for purpose

of determining his Medicaid eligibility. Communicare does not dispute that the

value of Fanous’ real property exceeded the resource limit. Instead, it argues that

the properties should not have been considered as countable resources because

Fanous was not able to sell them.

               At the time Fanous applied for Medicaid benefits, per the relevant

regulation, if an applicant’s countable resources exceeded the $2,000 “resource

limit,” that person was not eligible for coverage. See former Ohio Admin.Code

5160:1-3-05.1(B)(8)(a), effective Aug. 1, 2016 (“‘Resource limit’ means maximum

combined value of all resources an individual can have an ownership interest in and

still qualify for medical assistance.”). For this purpose, “resources” include:

      [C]ash, other liquid asset, personal property, and real property an
      individual * * * has an ownership interest in, has the legal ability to
      access in order to convert to cash (if not already cash), and is not legally
      prohibited from using for support and maintenance.

former Ohio Admin.Code 5160:1-3-05.1(B)(7), effective Aug. 1, 2016.

               Communicare argues that the trial court erred by considering Fanous’

real property for eligibility purposes because Fanous was not able to sell the

properties. Fanous argues that because he could not sell the properties, he lacked

the “ability to convert [the properties] to cash.” Thus, according to its argument, the

properties fail to meet the definition of “resources.”
               We disagree. As stated, the plain language of the rule required a

person to have the “legal ability to access in order to convert to cash (if not already

cash) * * *.” Whether Fanous was able to find a purchaser is a wholly different

consideration from what the regulation contemplated, namely whether Fanous had

the legal authority to sell the properties in the first place.

               Additionally, Communicare argues that the trial court erred by

considering the properties as resources because Fanous was “unable to convert two

of his three real properties into cash within twenty (20) days.” As a basis for this

argument, he cites a definition of “liquid resources” from an unrelated federal

regulation.

               We also reject this argument. Notwithstanding the federal regulation,

nothing in former Ohio Admin.Code 5160:1-3-05.1 imposed a requirement that a

resource must be able to be converted to cash within 20 days before it can be

considered for eligibility purposes.

               The trial court did not abuse its discretion in affirming the

administrative appeal decision. The record is clear: the value of Fanous’ real

property was in excess of the Medicaid resource limit. We overrule this assignment

of error.

Standing

               In the first assignment of error, Communicare argues that the trial

court erred by determining it did not have standing to bring the appeal on the basis
of Tiggs v. Ohio Dept. of Job & Family Servs., 2018-Ohio-3164, 118 N.E.3d 985 (8th

Dist.), which was decided during the pendency of this appeal.

               In Tiggs, this court recognized that a long-term care nursing facility,

which had been designated as a resident’s Medicaid authorized representative, had

standing to file an appeal on behalf of the resident to challenge the termination of

his Medicaid benefits. See also Juanita Fowler Life Care Ctrs. of Am., Inc. v. Ohio

Dept. of Job & Family Servs., 8th Dist. Cuyahoga No. 106989, 2019-Ohio-1238,

¶ 10-13 (recognizing Tiggs is controlling and permits Medicaid authorized

representative to appeal to the trial court).

               Similar to Tiggs, Fanous executed a “designation of authorized

representative” form authorizing Communicare to “[t]ake any action that may be

needed to ensure that I receive or continue to receive [Medicaid benefits].”

               As to determining whether Communicare is a proper party to bring

this appeal, we find Tiggs to be indistinguishable and controlling. ODJFS disagrees

with this conclusion, but relies on arguments we have previously rejected, and has

thus “not identified any basis upon which to distinguish Tiggs from this case.”

Fowler at ¶ 13.

      {¶ 21} However, regardless of whether the trial erred in determining that

Communicare did not have standing to appeal, Communicare suffered no prejudice.

See Cincinnati Ins. Co. v. Thompson & Ward Leasing Co., 158 Ohio App.3d 369,

2004-Ohio-3972, 815 N.E.2d 1126, ¶ 19 (10th Dist.), citing Smith v. Flesher, 12 Ohio

St.2d. 107, 233 N.E.2d 137 (1967) (“Claimed error alone may not support reversal;
the party assigning error must demonstrate prejudice resulting therefrom.”). As

previously discussed, the trial court addressed the merits of the appeal and found

sufficient basis to conclude that the agency’s decision was appropriate because

Fanous’ real property caused him to exceed the resource limit and we found the

court did not abuse its discretion in so concluding. Accordingly, the court’s error in

determining Communicare lacked standing is harmless.

      {¶ 22} We overrule this assignment of error.

Assistance in Obtaining Verifications

      {¶ 23} In the third assignment of error, Communicare argues that the trial

court abused its discretion in affirming the administrative appeal decision because

“the agency failed to assist Mr. Fanous in obtaining verifications * * *.”

      {¶ 24} We disagree. Because Fanous’ known countable resources caused

him to exceed the eligibility limit, the status of the incomplete verifications is moot.

In affirming the agency decision, the trial court found as much, stating that “[e]ven

if this court found * * * Fanous was entitled to assistance from ODJFS in responding

to the verification forms, Mr. Fanous still owns resources, in the form of real

property, that exceed the Medicaid eligibility limit.” We find no abuse of discretion.

      {¶ 25} We overrule this assignment of error.

      {¶ 26} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR
