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Inner City Living, Inc. v. Ohio Department of Developmental Disabilities

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 26, 2017


         Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-853695

          ATTORNEYS FOR APPELLANT Jeffrey J. Jurca Sean P. Casey Jurca & Lashuk

          ATTORNEYS FOR APPELLEE Michael DeWine Ohio Attorney General Roger F. Carroll Katherine J. Bockbrader Assistant Attorneys General

          BEFORE: S. Gallagher, J., Boyle, P.J., and Jones, J.


          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 ...

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