INNER CITY LIVING, INC. v. OHIO DEPARTMENT OF DEVELOPMENTAL DISABILITIES
No. 105255
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 26, 2017
2017-Ohio-8317
S. Gallagher, J., Boyle, P.J., and Jones, J.
Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-853695
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
{¶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
{¶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
{¶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
{¶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
{¶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
{¶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
{¶12}
{¶13} In this case, DODD‘s notice of revocation complied with
{¶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
{¶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
{¶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.
{¶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
{¶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
{¶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
{¶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