Small World Early Childhood Ctr. v. Ohio Dept. of Job & Family Servs.Small World Early Childhood Ctr. v. Ohio Dept. of Job & Family Servs.
O P I N I O N
Rendered on the 27th day of October, 2017.
JOHNNA M. SHIA, Atty. Reg. No. 0067685 and ANTHONY S. VanNOY, Atty. Reg. No. 67052, 130 W. Second Street, Suite 1624, Dayton, Ohio 45402 Attorney for Plaintiff-Appellant
REBECCA L. THOMAS, Atty. Reg. No. 0066650, Assistant Attorney General, Health and Human Services Section, 30 E. Broad Street, 26th Floor, Columbus, Ohio 43215 Attorney for Defendant-Appellee
{¶ 1} Small World Early Childhood Center appeals from a judgment of the Montgomery County Court of Common Pleas, which dismissed, pursuant to
{¶ 2} Small World is a child daycare provider that had a contract with ODJFS to provide publicly-funded child care. In the spring of 2015, ODJFS received allegations that Small World was improperly in possession of Ohio Electronic Child Care (ECC) swipe cards and that Small World‘s staff was using the cards to check children into the center when they were not actually in attendance. ODJFS conducted an investigation.
{¶ 3} According to the termination decision on appeal, ODJFS personnel conducted a timed observation on April 23, 2015 and counted 62 children entering the center between 6:00 a.m. and 7:00 a.m. During the same time, Ohio ECC records showed 170 children were swiped in as having arrived at the center. ODJFS personnel returned on May 21, 2015, and performed another timed observation between 6:00 a.m. and 8:15 a.m. and observed 105 children arriving. Ohio ECC transactions for that same period showed that Small World had 217 children swiped in as arriving and receiving care. ODJFS staff entered the building and conducted a head-count; 108 children were present.
{¶ 4} ODJFS staff identified themselves to Small World staff, spoke to the owner, and asked for permission to search the facility. ODJFS located 99 Ohio ECC swipe cards. Interviews with Small World staff indicated that the center‘s owner, administrator, and office managers used the swipe cards. ODJFS collected billing and attendance records from Small World. ODJFS concluded that it had overpaid Small World by $442,963.67.
{¶ 5} On April 15, 2016, ODJFS provided Small World with a written Child Care Provider Investigative Report, recommending suspension and termination of the Provider Agreement, as well as a Proposed Suspension and Termination of Provider Agreement and Overpayment Collection Notice. (The investigative report and the notice are not part of the record.) On April 20, 2016, Small World filed an appeal of the suspension and termination decision with ODJFS. The same day, it sought reconsideration by ODJFS of the overpayment calculation.
{¶ 6} On November 16, 2016, ODJFS sent two decision letters to Small World, one of which denied Small World‘s appeal of the suspension and termination decision and the other denying reconsideration of the overpayment calculation. The reconsideration decision expressly stated that the “reconsideration decision is final and not subject to further review by the department.” The letter informing Small World of the suspension and termination decision similarly stated, “This appeal decision is final and not subject to further review by the department.” Both determinations were made by the bureau chief of ODJFS‘s Office of Fiscal and Monitoring Services, Monitoring and Consulting Services Division.
{¶ 7} On November 22, 2016, Small World filed a notice of appeal, pursuant to
{¶ 8} On December 19, 2016, ODJFS moved to dismiss the appeal for lack of jurisdiction, pursuant to
{¶ 9} On January 26, 2017, the trial court agreed with ODJFS and granted the motion to dismiss for lack of jurisdiction. Small World appeals the trial court‘s decision.
II. Jurisdiction to Small World‘s Administrative Appeal
{¶ 10} In its sole assignment of error, Small World claims that “[t]he trial court erred when it dismissed Small World‘s Administrative Appeal because Small World was entitled to judicial review pursuant to the Ohio Revised Code.”
{¶ 11} A motion to dismiss for lack of subject matter jurisdiction, pursuant to
{¶ 12} “It is well-settled law that a state is not subject to suit in its own courts unless it expressly consents to be sued.” Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 7. Since 1913, the Ohio Constitution has provided that “[s]uits may be brought against the state, in such courts and in such manner, as may be provided by law.”
{¶ 13}
A. R.C. Chapter 5104
{¶ 14} We begin with a review of the relevant portions of
{¶ 15} Certain provisions governing publicly funded child care required the creation of a process for applying for publicly funded child care, as well as procedures for determining whether the applicant is eligible to receive publicly funded child care. See
{¶ 16}
To the extent permitted by federal law and notwithstanding any other provision of the Revised Code that regulates state contracts or contracts involving the expenditure of state or federal funds, all contracts for publicly funded child care shall be entered into in accordance with the provisions of this chapter and are exempt from any other provision of the Revised Code that regulates state contracts or contracts involving the expenditure of state or federal funds.
Small World was a licensed child daycare provider that contracted with ODJFS to provide publicly funded child care, pursuant to
{¶ 17} Finally,
(D) Subject to the notice and appeal provisions of divisions (G) and (H) of this section, the department may suspend a contract entered into under
section 5104.32 of the Revised Code with an eligible provider if the department has initiated an investigation of the provider for either of the following reasons:(1) The department has evidence that the eligible provider received an improper child care payment as a result of the provider‘s intentional act.
(2) The department receives notice and a copy of an indictment, information, or complaint charging the eligible provider or the owner or operator of the provider with committing [certain offenses].
(E)(1) Except as provided in division (E)(2) of this section, the suspension of a contract under division (D) of this section shall continue until the department completes its investigation * * *.
(2) If the department initiates the termination of a contract that has been suspended pursuant to division (D) of this section, the suspension shall continue until the termination process is completed.
(F) An eligible provider shall not provide publicly funded child care while the provider‘s contract is under suspension pursuant to division (D) of this section. * * *
(G) Before suspending an eligible provider‘s contract pursuant to division (D) of this section, the department shall notify the eligible provider. * * *
(H) An eligible provider may file an appeal with the department regarding any proposal by the department to suspend the provider‘s contract pursuant to division (D) of this section. The appeal must be received by the department not later than fifteen days after the date the provider receives the notification described in division (G) of this section. The department shall review the evidence and issue a decision not later than thirty days after receiving the appeal. The department shall not suspend a contract pursuant to division (D) of this section until the time for filing the appeal has passed or, if the provider files a timely appeal, the department has issued a decision on the appeal.
(Emphasis added.)
{¶ 18}
{¶ 19} The rules for publicly funded child care are located in
{¶ 20}
(D) Can a child care provider request a review of an identified overpayment?
(1) A child care provider may request in writing to ODJFS that a reconsideration review be conducted for any identified overpayment that is subject to recoupment.
(2) The written request must be received by ODJFS no later than fifteen days after the date the provider receives the overpayment notice.
{¶ 21} Finally,
(F) What happens if ODJFS determines misuse of publicly funded child care or Ohio electronic child care (Ohio ECC) * * *?
ODJFS may do any of the following:
(1) Suspend the provider agreement entered into with ODJFS pursuant to
rule 5101:2-16-44 of the Administrative Code and in accordance withsection 5104.37 of the Revised Code .(2) Terminate the provider agreement entered into with ODJFS pursuant to
rule 5101:2-16-44 of the Administrative Code .
{¶ 22} In summary, no provision in
{¶ 23} Small World sought judicial review of ODJFS‘s decision under
{¶ 24}
Except as provided in division (A)(2) or (3) of this section, any party adversely affected by any order of an agency issued pursuant to an adjudication denying an applicant admission to an examination, or denying the issuance or renewal of a license or registration of a licensee, or revoking or suspending a license, or allowing the payment of a forfeiture under
section 4301.252 of the Revised Code may appeal from the order of the agency to the court of common pleas of the county in which the place of business of the licensee is located or the county in which the licensee is a resident.
(Emphasis added.) Alternatively,
{¶ 25}
“Agency” means, except as limited by this division, [1] any official, board, or commission having authority to promulgate rules or make adjudications in the civil service commission, the division of liquor control, the department of taxation, the industrial commission, the bureau of workers’ compensation, [2] the functions of any administrative or executive officer, department, division, bureau, board, or commission of the government of the state specifically made subject to
sections 119.01 to119.13 of the Revised Code , and [3] the licensing functions of any administrative or executive officer, department, division, bureau, board, or commission of the government of the state having the authority or responsibility of issuing, suspending, revoking, or canceling licenses.
(2) “Agency” also means any official or work unit having authority to promulgate rules or make adjudications in the department of job and family services, but only with respect to both of the following:
(a) The adoption, amendment, or rescission of rules that
section 5101.09 of the Revised Code requires be adopted in accordance with this chapter;(b) The issuance, suspension, revocation, or cancellation of licenses.
{¶ 26} “Adjudication” means “the determination by the highest or ultimate authority of an agency of the rights, duties, privileges, benefits, or legal relationships of a specified person, but does not include
{¶ 27} Small World argues that it was aggrieved by a decision of ODJFS and that it has a right to appeal that decision pursuant to
{¶ 28}
{¶ 29} Here, ODJFS is not one of the agencies specifically identified in
{¶ 30}
{¶ 31} Because the two decisions on appeal are not decisions of an “agency,” as defined by
{¶ 32} Small World further asserts that it can appeal the two ODJFS decisions, pursuant to
{¶ 33} The Supreme Court of Ohio has noted that many statutes incorporate
{¶ 34} To the extent that Small World argues that ODJFS‘s decision to terminate the provider‘s contract is invalid, because ODJFS failed to promulgate additional rules involving Title XX funding, that issue is not properly before us.
C. R.C. 5101.35
{¶ 35} Small World further claims that it was entitled to appeal to the court of common pleas pursuant to
Except as provided by division (G) of this section, an appellant who disagrees with a state hearing decision may make an administrative appeal to the director of job and family services in accordance with rules adopted under this section. This administrative appeal does not require a hearing, but the director or the director‘s designee shall review the state hearing decision and previous administrative action and may affirm, modify, remand, or reverse the state hearing decision. An administrative appeal decision is the final decision of the department and, except as provided in
section 5160.31 of the Revised Code , is binding upon the department and agency, unless it is reversed or modified on appeal to the court of common pleas.
{¶ 36}
{¶ 37} Small World asserts that it is an “appellant” of a decision of an “agency” administering a “family services program.” There is no question that the provision of publicly funded child care is a “family services program.”
{¶ 38} The parties dispute whether Small World constitutes an “appellant.” The term “appellant” is defined 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.”
{¶ 39} Small World asserts that it is an “appellant” under
{¶ 41} Small World‘s assignment of error is overruled.
{¶ 42} We note that providers of publicly funded child care, such as Small World, have a possible avenue for relief. The Ohio Supreme Court “has repeatedly determined in a long line of cases in varying contexts that when an agency‘s decision is discretionary and, by statute, not subject to direct appeal, a writ of mandamus is the sole vehicle to challenge the decision, by attempting to show that the agency abused its discretion.” Ohio Academy of Nursing Homes v. Ohio Dept. of Job & Family Servs., 114 Ohio St.3d 14, 2007-Ohio-2620, 867 N.E.2d 400, ¶ 23. As explained by the Ohio Supreme Court:
Two important competing concerns are implicated when a party wishes to challenge a particular state actor‘s decision that expressly is not appealable. The first concern is that the unavailability of an appeal indicates the clear intention that full discretion is to be entrusted to the state agency. The opposing concern is that if an agency‘s discretionary decision were truly allowed to be absolutely unchallengeable, an aggrieved party would have no remedy whatsoever, giving the state agency unfettered discretion and raising fundamental due process concerns. See
Section 16, Article I of the Ohio Constitution , which provides that a remedy shall be available “by due course of law.”In light of these very significant competing concerns, courts (including this court in many different situations) have determined that some level of review must be recognized. Furthermore, courts have determined that a writ of mandamus provides an appropriate balance between the extreme of allowing no challenge at all and the other alternative of completely ignoring the explicit directive that an agency‘s particular determination is not meant to be appealable. In such a mandamus action, the aggrieved party can challenge the agency‘s decision, but must demonstrate an abuse of discretion before relief can be provided.
{¶ 43} Whether an original action in mandamus is available to Small World specifically and whether it would be successful are not before us, and we state no opinion on the merits of any such action.
III. Conclusion
{¶ 44} The trial court‘s judgment will be affirmed.
HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Johnna M. Shia
Anthony S. VanNoy
Rebecca L. Thomas
Hon. Mary Katherine Huffman