Inner City Living, Inc. v. Dept. of Dev. Disabilities , 2017 Ohio 8317 ( 2017 )

[Cite as Inner City Living, Inc. v. Dept. of Dev. Disabilities, 2017-Ohio-8317.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105255
INNER CITY LIVING, INC.
PLAINTIFF-APPELLANT
vs.
OHIO DEPARTMENT OF
DEVELOPMENTAL DISABILITIES
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Administrative Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-853695
BEFORE: S. Gallagher, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: October 26, 2017
ATTORNEYS FOR APPELLANT
Jeffrey J. Jurca
Sean P. Casey
Jurca & Lashuk
240 North Fifth Street, Suite 330
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Michael DeWine
Ohio Attorney General
Roger F. Carroll
Katherine J. Bockbrader
Assistant Attorneys General
30 East Broad Street, 26th Floor
Columbus, Ohio 43215
SEAN C. GALLAGHER, J.:
{¶1} Inner City Living, Inc. appeals the trial court’s decision affirming the Ohio
Department of Developmental Disabilities’ (“DODD”) revocation of Inner City Living’s
certification to provide services to developmentally disabled individuals. We affirm.
{¶2} In May 2014, DODD conducted a compliance review, as required for Inner
City Living to maintain its state-mandated certification. During that review, DODD
issued three “immediate citations” for conditions that represented an immediate risk to an
individual’s health, safety, and welfare. Two of Inner City Living’s employees did not
have the required first-aid or cardiopulmonary resuscitation (“CPR”) training; a company
vehicle that was used for transporting clients was unacceptably damaged (the driver-side
mirror was held in place with a paper towel); and Inner City Living had failed to conduct
required background checks for three staff members before hiring them, one of whom had
worked at the company for almost a year. In addition, and as provided in the compliance
review summary that followed the onsite visit, Inner City Living was cited for 34
violations, which included (1) the failure to provide and implement individual service
plans for two clients, (2) the failure to document nonmedical transportation, (3) the failure
to comply with several requirements regarding “unusual incidents,” (4) the failure to
conduct a myriad of background checks before hiring staff, (5) the lack of documentation
regarding necessary staff training, (6) the failure to complete a driver’s abstract for staff
members transporting clients, and (7) the failure to meet inspection and service
requirements for vehicles used for nonmedical transportation. None of the citations were
appealed despite the opportunity. Ohio Adm.Code 5123:2-2-04(D)(2).
{¶3} In light of the citations, Inner City Living’s certification was suspended.
Inner City Living could no longer take any new clients but could continue providing
services to existing ones. That suspension was also not appealed.
{¶4} Inner City Living had two weeks to prepare and submit a plan of correction
(“POC”) to address the 34 citations. Under Ohio Adm.Code 5123:2-2-04(D)(2), a
provider has 14 days from receipt of a compliance review summary that includes citations
to submit a written appeal or a written POC for each citation. A POC demonstrates the
steps the provider will take to correct the citation and create a system to prevent
reoccurrence. Inner City Living was unable to submit an acceptable POC within 14
days; however, DODD provided it with a two-month extension and technical assistance to
complete the requirement. By the end of July 2014, Inner City Living’s several attempts
to produce an acceptable POC were rejected and DODD began the process to revoke
Inner City Living’s certification by issuing formal notice according to the “Compliance
Review Protocol,” an internal guide for DODD employees regarding the compliance
review procedures. Inner City Living appealed the proposed revocation and requested an
administrative hearing, which was scheduled for the beginning of August 2014.
{¶5} Despite the notice of revocation and hearing, DODD provided Inner City
Living with another opportunity to comply with the health and safety requirements. See
Ohio Adm.Code 5123:2-2-04(D)(2)(b). In October, DODD followed up with an
unannounced visit to Inner City Living’s offices. During that visit, two more violations
were discovered. Inner City Living had not maintained sufficient documentation for
nonmedical transportation, and two staff members had not undergone the mandatory drug
tests required of all employees who transport clients. Because of the two new citations
and the failure to appeal those citations, Inner City Living was required to prepare a
second POC. Id.{¶6} At the end of October 2014, and despite the pending revocation notice,
DODD approved both a newly submitted POC for the 34 citations issued in May and a
POC for the two new violations discovered earlier in October. As part of the approval
process, DODD was set to conduct a compliance verification visit to confirm the
provider’s implementation of the remedial plan.
{¶7} In early December, during the compliance verification, DODD cleared the
two violations from October, but 13 of the 34 citations from May were found to be
ongoing. Inner City Living was providing services to clients that did not match the
client’s individual service plan, failed to maintain the appropriate incident logs, failed to
conduct background checks before hiring new employees — including verifications
through the “Abuser” and “Nurse Aid” registries, and failed to produce documentation
demonstrating that some staff members had received mandatory first-aid training. In
addition, DODD found new violations, two of which were of immediate concern. Inner
City Living hired a new employee who had six or more points on his driver’s license but
was nonetheless permitted to transport clients, and Inner City Living was performing the
wrong background checks with the Bureau of Criminal Investigation. Inner City Living
used the incorrect coding so that the background check was not pulling all the required
information that must be reviewed before new employees can be legally hired.
{¶8} In light of Inner City Living’s failure to ensure corrections were made and the
additional violations that were found during each follow-up visit, DODD proceeded with
the revocation of Inner City Living’s certification, although an amended notice of
revocation was issued in March 2015 to include the newer violations. The hearing
proceeded, and DODD found that Inner City Living’s certification should be revoked
based on the violations. Inner City Living filed an unsuccessful appeal under R.C.
119.12 to the Common Pleas Court of Cuyahoga County challenging DODD’s decision.
{¶9} In this appeal, Inner City Living contends that the trial court abused its
discretion in affirming the administrative action. We find no merit to Inner City Living’s
arguments.
{¶10} “Under R.C. 119.12, when a decision of a state board is appealed, a court of
common pleas must decide whether the board’s order was ‘supported by reliable,
probative, and substantial evidence and is in accordance with law.’” Spitznagel v. State
Bd. of Edn., 126 Ohio St.3d 174, 2010-Ohio-2715, 931 N.E.2d 1061, ¶ 14, quoting R.C.
119.12. “The court of appeals is even more limited in its review and can overturn
findings of fact ‘only if the trial court has abused its discretion.’” Id., quoting 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), and Lorain Cty. Bd. of Edn. v. State Emp. Relations Bd., 40
Ohio St.3d 257, 260-261, 533 N.E.2d 264 (1988). A court of appeals, however, reviews
questions of law under the de novo standard of review. Bartchy v. State Bd. of Edn., 120
Ohio St.3d 205, 2008-Ohio-4826, 897 N.E.2d 1096, ¶ 43.
{¶11} In the first assignment of error, Inner City Living claims the “trial court
erred in failing to find that Appellee did not give Appellant notice of the law or rule
directly involved as required by R.C. 119.07.”
{¶12} R.C. 119.07, in part, provides that an agency must provide notice that
includes the charges or other reasons for the proposed action and the law directly
involved. Generally, providing the relevant statutory sections upon which the
administrative action is being considered is sufficient. Richmond v. Ohio Bd. of Nursing,
10th Dist. Franklin No. 12AP-328, 2013-Ohio-110, ¶ 11. Issues can arise, however, if
the notice is overly specific. In Simic v. Accountancy Bd. of Ohio, 2014-Ohio-3237, 15
N.E.3d 1247, ¶ 16 (8th Dist.), for example, it was concluded that under R.C. 119.07, the
board’s notice of intent to take a proposed action under one specific subdivision of a
statute, with accompanying factual allegations, did not provide notice of an intent to
pursue the proposed action on a separate, undelineated subdivision that required a
different factual predicate. Id. at ¶ 17. The Accountancy Board of Ohio had provided
notice that it intended to take disciplinary action against an accounting firm for violation
of R.C. 4701.16(A)(11), which penalizes the firm for the failure to timely renew the
firm’s registration. Id. At the hearing, however, the board penalized the accountant
individually under R.C. 4701.16(A)(3) for engaging in unlicensed practice after the firm’s
registration renewal had been denied without a hearing, which was in contravention of the
statutory requirement. Id. It was therefore concluded that notice for the proposed action
was lacking; the accountant had not been provided notice that a sanction would be
imposed against him for operating without a license. Id.
{¶13} In this case, DODD’s notice of revocation complied with R.C. 119.07. The
revocation notice included a statement that DODD intended to revoke Inner City Living’s
certificate under R.C. 5123.166(B) because of the numerous violations found between
May and December 2014. According to Inner City Living, listing all potential reasons
supporting a revocation was not sufficient under R.C. 119.07 because DODD was
required to determine which subdivisions of R.C. 5123.166(B) were actually violated by
Inner City Living’s conduct in the notice.
{¶14} We decline to create such a nonsensical requirement — the agency is not
required to predetermine which section of the statute applies based on the alleged facts.
DODD provided Inner City Living with the specific violations that it intended to pursue
along with a lengthy factual recitation upon which the allegations were based.
According to an unambiguously drafted notice, DODD intended to demonstrate that the
revocation of Inner City Living’s certification was warranted under any of the enumerated
provisions of R.C. 5123.166(B)(1)-(9), which provides in part that the provider’s
certificate may be revoked for good cause. Subdivisions (B)(1)-(9) provide a
nonexhaustive list of what is considered to be “good cause,” including any other conduct
the director determines is or would be injurious to individuals who receive supported
living from the provider. That the decision was based on less than all of the R.C.
5123.166(B) categories is irrelevant; Inner City Living still had notice that DODD
intended to take action for that which was proven. The first assignment of error is
overruled.
{¶15} In the second, third, and fourth assignments of error, Inner City Living
contends (1) that DODD did not follow its protocol delineated in the “Compliance
Review Protocol” document, which provided that DODD would conduct up to three
compliance checks after accepting a POC; (2) that the revocation was improper because
none of the violations actually caused any harm to any developmentally disabled
individual (Inner City Living maintains that the violations “amounted to nothing more
than clerical errors”); and (3) that DODD deprived Inner City Living of due process by
not producing an internal “basic work flow” document that described the revocation
process once DODD decided to pursue revocation. None of these three assignments of
error complied with App.R. 16(A)(7). At a minimum, an appellant’s brief must include
an argument supported by legal authority. App.R. 16(A)(7).
{¶16} Inner City Living has not provided citation to authority demonstrating that
strict compliance with internal protocols generally describing the procedure, as opposed
to rules promulgated under the Revised Code or Administrative Code, precludes DODD
from taking administrative action. App.R. 16(A)(7). It is not an appellate court’s
responsibility to find and articulate legal authority to support an appellant’s assigned
error. Id. Further, even if we reviewed the factual underpinnings of the unsupported
argument, Inner City Living ignores the fact that the revocation notice was originally
issued in July 2014, under the process set forth in the “Compliance Review Protocol”
document and based on Inner City Living’s inability to timely submit an acceptable POC
for the May citations. The protocols that Inner City Living is relying on did not address
the particular circumstances of its case, in which DODD provided Inner City Living with
a second chance to submit the belated POC after the revocation proceedings had been
initiated; the document simply described a general procedure.
{¶17} Inner City Living also believes that DODD’s decision — that the unresolved
violations created a substantial risk to the health and safety of consumers — was not
based on substantial, reliable, or probative evidence because the violations were “clerical
errors.” This characterization is, at best, disingenuous. Inner City Living was cited for,
among other things, failing to timely conduct proper background checks of prospective
employees, failing to properly maintain vehicles used for transporting clients, failing to
ensure that employees had the required first-aid training, and failing to conduct drug
screening of employees who transported clients. These violations went beyond “mere
clerical” errors, and in addition, every visit yielded new violations, demonstrating that
Inner City Living was failing to maintain even a rudimentary level of compliance with its
certification requirements.
{¶18} Inner City Living is asking us to disregard the trial court’s conclusion that
the administrative decision was based on reliable, substantive, and probative evidence.
There has been no demonstration or even an argument that the trial court abused its
discretion in making that determination. Spitznagel, 126 Ohio St.3d 174,
2010-Ohio-2715, 931 N.E.2d 1061, at ¶ 14. It must be recognized that Inner City Living
is not contesting the underlying violations that were the basis of the revocation under R.C.
5123.166. See Our Place, Inc. v. Ohio Liquor Control Comm., 63 Ohio St.3d 570, 573,
589 N.E.2d 1303 (1992). DODD may revoke a provider’s certification regardless of
whether some or all of the deficiencies enumerated in the citations are corrected at the
time of the revocation hearing. Ohio Adm.Code 5123:2-2-04(F)(5). In light of the facts
that the violations were not challenged, that Inner City Living failed to appeal the
citations under Ohio Adm.Code 5123:2-2-04(D)(2), and that numerous violations
remained outstanding several months after being discovered, DODD’s decision to revoke
Inner City Living’s certification under R.C. 5123.166(B) was supported by reliable,
probative, and substantial evidence. Id.{¶19} With respect to the “basic work flow” document, Inner City Living contends
that the failure to timely produce the document deprived Inner City Living of due process
under the Ohio and United States Constitutions. According to Inner City Living,
“nothing could be more important to the preservation of a fair hearing than to allow
Appellant access to the document for the purposes of cross-examining [the witness]
regarding the validity” of her testimony that DODD proceeded with the July revocation
based on the “basic work flow” document. In its reply brief, however, Inner City Living
agrees that the revocation provisions “set forth in the [basic work flow] documents were
not even at issue” at the time DODD issued the notice of revocation. Essentially, Inner
City Living’s argument is that the “basic work flow” document was irrelevant to DODD’s
decision to revoke the certification in July 2014 because DODD’s decision to accept the
POCs in October meant that DODD should have adhered to its published, internal
protocol of conducting three compliance visits.
{¶20} This is precisely what the hearing officer concluded:
The [“basic work flow”] document sought is an internal policy, not
published, and [it] is immaterial at this point as to whether or not DODD
followed its own rules. The testimony by [DODD’s employee] established
that DODD did not follow the published “COMPLIANCE REVIEW
PROTOCOL” [indicating DODD would conduct three verification visits
after accepting a POC] and she explained why not. Hence for purposes of
this case the fact that DODD did not follow the “COMPLIANCE REVIEW
PROTOCOL” and the reason for doing so have been clearly established.
The question now becomes did DODD have to follow the published
protocol and since it did not what are the consequences?
It was immaterial whether the “basic work flow” document authorized DODD’s action
because there was an admission that the internal, published protocols were not followed
following the acceptance of the POC in October. Since the document was deemed
irrelevant and Inner City Living has not demonstrated otherwise, we have not been
provided a basis upon which we could conclude that the refusal to produce it for the
hearing was error. In light of the foregoing, we overrule the second, third, and fourth
assignments of error.
{¶21} And finally, in the fifth assignment of error, Inner City Living contends that
the trial court erred by not issuing findings of facts and conclusions of law under Civ.R.
52. Even if we assume Civ.R. 52 applied in this case, which we do only for the sake of
discussion, the rule requires the party to file a request for the findings of facts or
conclusions of law within seven days of the trial court’s order. GMC v. Joe O’Brien
Chevrolet, 118 Ohio App.3d 470, 479, 693 N.E.2d 317 (10th Dist.1997) (“unless the
court is making factual determinations on the basis of additional evidence not before the
administrative agency, Civ.R. 52 has no application to such review proceedings”);
Newman v. Indus. Glove Cleaning Co., 34 Ohio App.3d 41, 42, 516 N.E.2d 1278 (8th
Dist.1986). There was no timely request in this case, and therefore, there can be no error
for failing to issue findings of facts or conclusions of law under Civ.R. 52. Id. The fifth
assignment of error is overruled.
{¶22} The judgment of the trial court is 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 issue out of this court directing the common
pleas 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.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR