Harding Pointe, Inc. et al., Plaintiffs-Appellants, v. Ohio Department of Job and Family Services, Defendant-Appellee.
No. 13AP-258
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
November 5, 2013
[Cite as Harding Pointe, Inc. v. Ohio Dept. of Job & Family Servs., 2013-Ohio-4885.]
T. BRYANT, J.
(C.P.C. No. 07CV-150) (REGULAR CALENDAR)
DECISION
Rendered on November 5, 2013
Michael DeWine, Attorney General, and Rebecca L. Thomas, for appellee.
APPEAL from the Franklin County Court of Common Pleas
T. BRYANT, J.
{¶ 1} Plaintiffs-appellants, Harding Pointe, Inc. (“Harding Pointe“) and H&G Nursing Home, Inc. dba Adams County Manor (“Adams County Manor“), appeal from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Ohio Department of Job and Family Services (“ODJFS“). Because the trial court properly granted summary judgment for ODJFS, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} Pursuant to
{¶ 3} Pursuant to former
{¶ 4} Effective July 1, 2005, 2005 Am.Sub.H.B. No. 66 (“H.B. No. 66“) changed Ohio‘s Medicaid reimbursement system for nursing homes for fiscal year 2006.1 Under H.B. No. 66, capital costs were considered in determining adjustments to reimbursement rates only under specified circumstances. H.B. No. 66, Section 206.66.22(G)(1)(b) provided:
(G)(1) A nursing facility‘s rate established under this section shall not be subject to any adjustments except as follows:
* * *
(b) [T]he nursing facility‘s rate established under this section may be adjusted pursuant to a process established in rules adopted under section 5111.02 of the Revised Code to reflect a change in the nursing facility‘s capital costs due to any of the following: (i) A change of provider agreement that goes into effect before July 1, 2005, and for which a rate adjustment is not implemented before June 30, 2005;
(ii) A reviewable activity for which a certificate of need application is filed with the Director of Health before July 1, 2005, costs are incurred before June 30, 2005, and a rate adjustment is not implemented before June 30, 2005;
(iii) An activity that the Director of Health, before July 1, 2005, rules is not a reviewable activity and for which costs are incurred before June 30, 2005, and a rate adjustment is not implemented before June 30, 2005.
{¶ 5} Absent one of these circumstances, nursing homes were paid the same per-diem rate for fiscal year 2006 that they had been paid on June 30, 2005, plus a $1.95 add-on, if applicable. H.B. No. 66, Section 206.66.22(B) provided:
(B) Except as otherwise provided in this section, the provider of a nursing facility that has a valid Medicaid provider agreement on June 30, 2005, and a valid Medicaid provider agreement for fiscal year 2006 shall be paid, for nursing facility services the nursing facility provides during fiscal year 2006, the sum of the following:
(1) The rate the provider is paid for nursing facility services the nursing facility provides on June 30, 2005.
(2) Unless the nursing facility is exempt from paying the franchise permit fee, one dollar and ninety-five cents.
{¶ 6} Because it was inconsistent with the reimbursement methodology mandated for fiscal year 2006 under H.B. No. 66, former
(B) The following qualify for per diem payments under this section:
* * *
(3) A nursing facility to which all of the following apply:
(a) The nursing facility does not qualify for a payment pursuant to division (B)(1) of this section.
(b) The nursing facility, before June 30, 2007, completes a capital project for which a certificate of need was filed with the Director of Health before June 15, 2005, and for which at least one of the following occurred before July 1, 2005 * * *;
(i) Any materials or equipment for the capital project were delivered;
(ii) Preparations for the physical site of the capital project, including, if applicable, excavation, began;
(iii) Actual work on the capital project began.
(c) The costs of the capital project are not fully reflected in the capital costs portion of the nursing facility‘s Medicaid reimbursement per diem rate on June 30, 2005.
(d) The nursing facility files a three-month projected capital cost report with the Director of Job and Family Services not later than sixty days after the later of the effective date of this section or the date the capital project is completed.
HARDING POINTE
{¶ 8} Harding Pointe became a Medicaid provider of nursing home services through a change of provider agreement effective June 30, 2005. By letter dated June 20, 2006, Harding Pointe requested a capital cost rate adjustment for fiscal year 2006 pursuant to the June 30, 2005 change in provider agreement. The letter stated that the projected capital cost report required by former
{¶ 9} By letter dated July 6, 2006, ODJFS denied Harding Pointe‘s request, averring that it had received the projected capital cost report on June 2, 2005 and, pursuant to former
{¶ 10} Pursuant to an amended complaint filed December 14, 2007,2 Harding Pointe alleged that ODJFS‘s denial of its request for a capital cost rate adjustment constituted a retroactive application of law in violation of the provider agreements,
{¶ 11} Pursuant to a Civ.R. 12(B)(6) motion filed by ODJFS, the trial court dismissed Harding Pointe‘s equal protection and
{¶ 12} Harding Pointe opposed ODJFS‘s motion for summary judgment, advancing several arguments. Harding Pointe first argued that a genuine issue of material fact existed as to the submission date of its projected capital cost report.
{¶ 13} Harding Pointe also disputed the date on which ODJFS received the projected capital cost report. Harding Pointe maintained that ODJFS supported its assertion that it received the request on June 2, 2005 only with the affidavit of Julie Evers, the assistant bureau chief of the Bureau of Long Term Care Facilities for ODJFS in June 2005, and had not provided a time-stamped copy documenting the alleged June 2, 2005 receipt date. Harding Pointe further noted that Ms. Evers conceded in her deposition that she did not know whether the receipt date of June 2, 2005, as stated in her affidavit, referred to a time-stamp date or a postmark date and that she had no personal knowledge of the policies and procedures governing mail room procedures at ODJFS in June 2005.
{¶ 14} Harding Pointe also contended that ODJFS retroactively applied H.B. No. 66, Section 206.66.22 in denying its request for a capital cost rate adjustment. According to Harding Pointe, under former
{¶ 15} ODJFS responded that Harding Pointe could not create a genuine issue of material fact by asserting unsupported facts that contradicted its amended complaint. More specifically, ODJFS challenged Harding Pointe‘s new claim that it submitted its request for a capital cost rate adjustment prior to April 30, 2005. ODJFS pointed out that Harding Pointe‘s amended complaint alleged that it submitted its request on May 30, 2005. ODJFS argued that Harding Pointe failed to provide any corroborating evidence demonstrating that it submitted its request prior to April 30, 2005, and that neither Mr. Colleran nor Mr. Griffiths provided a specific date.
{¶ 16} ODJFS also argued that all the evidence in the record established June 2, 2005 as the date ODJFS received Harding Pointe‘s projected capital cost report. ODJFS noted that its July 6, 2006 letter indicated that ODJFS received the request
{¶ 17} ODJFS also disputed Harding Pointe‘s claim that ODJFS retroactively applied H.B. No. 66, Section 206.66.22(B). ODJFS argued that Harding Pointe had no vested right in the continuation of the reimbursement system in effect on June 30, 2005, given the July 1, 2005 change in the law. ODJFS reiterated that, pursuant to former
{¶ 18} As to Harding Pointe‘s claim that ODJFS did not receive the projected capital cost report on June 2, 2005, the trial court referred to Ms. Evers’ affidavit testimony establishing receipt on June 2, 2005. The court averred that Harding Pointe had failed to present any evidence contradicting that affidavit and instead argued only that ODJFS had not submitted sufficient evidence to support the affidavit. The court accordingly found that “credible undisputed evidence” established that ODJFS received Harding Pointe‘s projected capital cost report on June 2, 2005. (R. 173-76 Decision and Entry, 11.)
{¶ 19} Having determined that ODJFS received the projected capital cost report on June 2, 2005, the court found that Harding Pointe was not entitled to a rate adjustment pursuant to former
{¶ 20} The trial court further found that based on the foregoing analysis, Harding Pointe could not prevail on its due process claims or its claims based upon violations of
ADAMS COUNTY MANOR
{¶ 21} Adams County Manor is a Medicaid provider of nursing home services pursuant to an agreement with ODJFS. The Ohio Department of Health issued Adams County Manor a certificate of need authorizing the construction of a new facility at its existing site to house 74 long-term care beds. On February 14, 2006, phase one of the renovation project was completed. On February 28, 2006, Adams County Manor submitted a request to ODJFS for a capital cost rate adjustment pursuant to former
{¶ 22} On May 19, 2006, Adams County Manor received a letter from ODJFS dated May 16, 2006, which informed all qualifying Medicaid providers of ODJFS‘s implementation of the capital cost compensation program under H.B. No. 530. ODJFS explained that in order to receive reimbursement for capital costs, providers were required to file a three-month projected capital cost report with ODJFS “not later than sixty days after the later of the effective date of Section 606 18.06 of Am. Sub. H B 530 or the date the capital project is completed.” (R. 138, exhibit B.) The “general instructions” attached to the letter reiterated this requirement, and indicated that “[t]he period covered by the capital compensation cost report is the three month period beginning when the project was placed into service.” (R. 138, exhibit B.) The letter further stated that ODJFS had developed a cost report specifically for the capital cost compensation program and directed providers to the website where the application and cost report could be downloaded and printed.
{¶ 23} Adams County Manor‘s renovation project was completed on April 1, 2006. According to Houser, Adams County Manor did not submit an application for the capital cost compensation program at this time because: (1) the application requested the same information already submitted on February 28, 2006, and (2) ODJFS had not advised Adams County Manor that it was not processing its February 28, 2006 submission. On August 10, 2006, Adams County Manor filed a conforming application for the capital compensation program pursuant to H.B. No. 530. ODJFS rejected the application as untimely.
{¶ 24} Pursuant to the amended complaint filed December 14, 2007, Adams County Manor challenged the denial of its request for a capital cost rate adjustment under former
{¶ 25} ODJFS moved for summary judgment, arguing, as relevant here, that Adams County Manor was not entitled to a capital cost rate adjustment pursuant to former
{¶ 26} Adams County Manor opposed ODJFS‘s motion for summary judgment, first arguing that its February 28, 2006 submission under former
{¶ 28} Finally, Adams County Manor argued that its August 10, 2006 application complied with all the substantive requirements of H.B. No. 530, Section 606.18.06(B)(3).
{¶ 29} In its reply, ODJFS disputed Adams County Manor‘s contention that ODJFS was obligated to accept its February 28, 2006 submission under former
{¶ 30} The trial court rejected Adams County Manor‘s argument that former
II. ASSIGNMENTS OF ERROR
{¶ 31} Harding Pointe and Adams County Manor timely appeal from the trial court‘s judgment and advance the following three assignments of error for our review:
ASSIGNMENT OF ERROR I:
THE TRIAL COURT ERRED IN FINDING DEFENDANTS [SIC] DID NOT RETROACTIVELY APPLY LAWS TO HARDING POINTE AND SUBSEQUENTLY GRANTING DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT AGAINST HARDING POINT [SIC].
ASSIGNMENT OF ERROR II:
THE TRIAL COURT ERRED IN IGNORING OHIO LAW AND SUBSEQUENTLY FINDING ADAMS WAS NOT ENTITLED TO A RATE ADJUSTMENT AND WAS NOT ELIGIBLE TO PARTICIPATE IN THE H.B. 530 CAPITAL COMPENSATION PROGRAM. ASSIGNMENT OF ERROR III:
THE TRIAL COURT ERRED IN FINDING APPELLANTS DID NOT SUFFER A VIOLATION OF THEIR DUE PROCESS RIGHTS.
III. STANDARD OF REVIEW
{¶ 32} Because this matter was decided by the trial court on summary judgment, we first set forth the familiar standard of review governing summary judgment dispositions. Appellate review of a summary judgment disposition is de novo. Helton v. Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). “When reviewing a trial court‘s ruling on summary judgment, the court of appeals conducts an independent review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).
{¶ 33} Summary judgment is proper only when the party moving for summary judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence construed most strongly in that party‘s favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 (1997).
{¶ 34} When seeking summary judgment on grounds that the nonmoving party cannot prove its case, the moving party bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on an essential element of the nonmoving party‘s claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). A moving party does not discharge this initial burden under Civ.R. 56 by simply making a conclusory allegation that the moving party has no evidence to prove its case. Id. Rather, the moving party must affirmatively demonstrate by affidavit or other evidence allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. Id. If the moving party meets this initial burden, then the nonmoving party has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmoving party does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. Id.
IV. FIRST ASSIGNMENT OF ERROR – HARDING POINTE
{¶ 35} In this assignment of error, Harding Pointe first contends the trial court improperly granted summary judgment in favor of ODJFS because a genuine issue of material fact exists as to the date on which ODJFS received Harding Pointe‘s projected capital cost report. Harding Pointe argues that it provided credible affidavit testimony from Mr. Colleran to counter ODJFS‘s affidavit testimony from Ms. Evers that ODJFS received the report on June 2, 2005. Harding Pointe contends the trial court impermissibly weighed Mr. Colleran‘s testimony against Ms. Evers’ testimony and found Ms. Evers’ testimony more credible.
{¶ 37} Upon review of the record, we find that the trial court could not have “weighed” evidence regarding the date ODJFS received Harding Pointe‘s projected capital cost report because the only evidence which precisely established that date was submitted by ODJFS. Ms. Evers’ affidavit established that ODJFS received Harding Pointe‘s projected capital cost report on June 2, 2005. In his affidavit, Mr. Colleran stated only that he prepared and “submitted” the projected capital cost report on behalf of Harding Pointe in “late April 2005.” (R. 138, exhibit D.) However, Mr. Colleran‘s affidavit does not establish when ODJFS received the report. Indeed, Mr. Colleran‘s affidavit does not explain the meaning of the term “submitted” and does not precisely state the date the cost report was “submitted.” For example, if by “submitted” Mr. Colleran means that he “filed” the report with ODJFS in “late April 2005,” Harding Pointe may have been entitled to a capital cost rate adjustment under the law in effect prior to the effective date of H.B. No. 66 if ODJFS “received” the report at the time it was “filed.” However, if by “submitted” Mr. Colleran means that he “sent” the report in “late April 2005,” Harding Pointe may not have been entitled to a capital cost rate adjustment because the report could have been “sent” as late as April 30, 2005, and not “received” by ODJFS until May 1, 2005. As noted above, if ODJFS received Harding Pointe‘s report in May 2005, a rate adjustment would not be implemented until after the effective date of H.B. No. 66, and therefore would not include capital costs. The affidavit testimony submitted by Harding Pointe does not establish a genuine issue of material fact as to the date on which ODJFS received Harding Pointe‘s projected capital cost report.
{¶ 38} We further note that in its response to ODJFS‘s motion for summary judgment, Harding Pointe relied on Mr. Colleran‘s affidavit in an effort to establish the date its projected capital cost report was “submitted,” not the date ODJFS “received” the report. The trial court recognized this distinction and concluded that Harding Pointe had not presented any evidence contradicting Ms. Evers’ testimony as to the receipt date, having instead only argued that ODJFS had not submitted sufficient evidence to support Ms. Evers’ affidavit.
{¶ 39} Harding Pointe‘s second contention somewhat contradicts its first argument. As noted above, Harding Pointe first argues that a genuine issue of material fact exists as to when ODJFS received its projected capital cost report—an argument that seemingly acknowledges the relevance of
{¶ 40}
{¶ 41} Harding Pointe did not have a vested right to a reimbursement rate which included capital costs. The state has the right to enact, amend and repeal laws, including Medicaid reimbursement laws. Any rights Harding Pointe may have had under laws pertaining to the reimbursement system on June 30, 2005 ceased to exist when the General Assembly chose to amend those laws on July 1, 2005. Lawrence v. Edwin Shaw Hosp., 34 Ohio App.3d 137, 141 (10th Dist.1986).
{¶ 42} Moreover, the right to a provider agreement is not absolute. Such agreements must be renewed annually and ODJFS may “terminate, suspend, not enter into, or not renew” provider agreements with 30 days notice. Former
{¶ 43} Finally, to the extent Harding Pointe argues that it has a separate right to a capital cost rate adjustment pursuant to former
{¶ 44} The first assignment of error is overruled.
{¶ 45} In this assignment of error, Adams County Manor first contends the trial court erred in concluding that it was not entitled to a capital cost rate adjustment under former
{¶ 46} Regarding former
{¶ 47} As to former
{¶ 48} For these reasons, the trial court did not err in concluding that Adams County Manor was not entitled to a capital cost rate adjustment under former
{¶ 49} Adams County Manor next argues the trial court erred in concluding that it was not eligible to participate in the capital compensation program established under H.B. No. 530. Adams County Manor first maintains that because ODJFS was aware of the pending introduction of H.B. No. 530 at the time ODJFS received Adams County Manor‘s February 28, 2006 request for a capital cost rate adjustment under former
{¶ 50} Assuming, arguendo, that ODJFS could be compelled to do so, the cost report Adams County Manor submitted with its request under former
{¶ 51} Adams County Manor also contends the trial court erred in concluding that its August 10, 2006 application for the capital compensation program under H.B. No. 530 was untimely. We disagree.
{¶ 52} As noted above, ODJFS‘s May 16, 2006 letter expressly informed Adams County Manor that an application for the capital compensation program under H.B. No. 530 must be filed no later than 60 days after the later of the effective date of H.B. No. 530 or the date on which the project for which capital costs were incurred was completed. Adams County Manor‘s application thus was due no later than June 1, 2006. Adams County Manor‘s August 10, 2006 application was untimely, as it was filed well after that date.
{¶ 53} Adams County Manor contends it could timely have filed its application had ODJFS responded to its February 28, 2006 request under
{¶ 54} For these reasons, the trial court did not err in concluding that Adams County Manor was not eligible for the capital cost compensation program under H.B. No. 530.
{¶ 55} Finally, Adams County Manor‘s contention that it has a separate right under
{¶ 56} The second assignment of error is overruled.
VI. THIRD ASSIGNMENT OF ERROR – DUE PROCESS
{¶ 57} By the third assignment of error, both Harding Pointe and Adams County Manor contend the trial court erred in granting summary judgment to ODJFS on their procedural and substantive due process claims.
{¶ 58} In Kistler v. Ohio Bur. of Workers’ Comp., 10th Dist. No. 04AP-1095, 2006-Ohio-3308, ¶ 14, this court discussed the distinction between procedural and substantive due process:
Due process has been interpreted to contain two components: procedural and substantive. State v. Ward (1999), 130 Ohio App.3d 551, 557, 720 N.E.2d 603. ” ‘Procedural due process’ ensures that a state will not deprive a person of life, liberty, or property unless fair procedures are used in making that decision.” Id. The essence of substantive due process is the protection from certain arbitrary, wrongful governmental actions irrespective of the fairness of the procedures used to implement them. Southern Health Facilities, Inc. v. Somani (Dec. 29, 1995), Franklin App. No. 95APE06-826.
{¶ 59} Although the due process arguments asserted by both Harding Pointe and Adams County Manor are somewhat difficult to decipher, we perceive them to constitute a repackaging of their fundamental contentions, that is, that ODJFS improperly denied their requests for capital cost rate adjustments under former
{¶ 60} The third assignment of error is overruled.
VII. DISPOSITION
{¶ 61} Having overruled all three assignments error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and SADLER, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate District, assigned to active duty under authority of the Ohio Constitution, Article IV, Section 6(C).