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Hand & Hand MRDD Residential Services, Inc. v. Ohio Department of Developmental Disabilities

Court of Appeals of Ohio, Tenth District

December 28, 2017

Hand & Hand MRDD Residential Services, Inc., Appellant-Appellant,
Ohio Department of Developmental Disabilities, Appellee-Appellee.

         APPEAL from the Franklin County Court of Common Pleas No. 16CV-00677.

         On brief:

          Ronald B. Noga, for appellant.

          Michael DeWine, Attorney General, and Stephanie Deters, for appellee.


          Ronald B. Noga.

          Stephanie Deters.


          SADLER, J.

         {¶ 1} Appellant-appellant, Hand & Hand MRDD Residential Services, Inc., appeals from the judgment entry of the Franklin County Court of Common Pleas affirming an adjudication order issued by appellee-appellee, Ohio Department of Developmental Disabilities, to revoke appellant's provider certifications. For the following reasons, we affirm the decision of the trial court.


         {¶ 2} At the time of adjudication of this matter, appellant was an agency certified by appellee to provide services to individuals with developmental disabilities since approximately 2004. Specifically, appellant was certified to provide Individual Options Wavier, Level One Waiver, Self-Empowered Life Funding Waiver, and Supported Living Provider services to individuals with developmental disabilities. Appellant provided such services for approximately 14 adult clients between the ages of 30 and 50 who lived at 9 different sites. The sites were not owned by appellant but, rather, appellant's employees would travel to the clients' homes to provide 24-hour care and supervision. John Flemon is the owner and CEO of appellant.

         {¶ 3} By two letters dated January 22, 2015, appellee suspended and also proposed the revocation of appellant's certifications pursuant to R.C. 5123.166. As the basis for the proposed revocation, appellee listed the result of appellant's December 2014 special provider compliance review which yielded 17 citations, prior provider compliance reviews yielding citations in 2006, 2008, and 2009, a suspension in 2010 based on the 2009 compliance review, and appellee's failure to implement and/or maintain its previously submitted plans of correction following previous compliance reviews.

         {¶ 4} A hearing on the matter was held on September 29 and 30, 2015. The hearing examiner issued her report and recommendation on November 5, 2015. In it, the hearing examiner concluded that appellee demonstrated by a preponderance of the evidence that there is good cause to revoke appellant's provider certification, pursuant to R.C. 5123.166, because the evidence showed appellant "committed acts of misfeasance, nonfeasance, and other conduct that was, or could be, injurious to the individuals served by [appellant]" pursuant to R.C. 5123.166(B)(4), (6), and (9). (Hearing Examiner Report at 33.) The hearing examiner noted that some of the numerous violations cited as part of the December 2014 compliance review were of a "fairly innocuous nature, " that appellee would not likely seek to revoke a certification on those issues alone, and that appellee's counsel agreed at the hearing this case is essentially about background checks, a process which includes checking a prospective employee's criminal record and with several registries, ensuring the person has certain valid, up-to-date certifications, and ensuring the person has at least a high school diploma or GED. (Hearing Examiner Report at 33.) The background checks are required "to make sure the prospective employee is a safe person to care for individuals with developmental disabilities." (Hearing Examiner Report at 34.) Regarding appellee's track record on this issue, the hearing examiner wrote:

The evidence presented at the hearing showed that Hand & Hand was found to have failed to complete those background checks several times, over a period of several years. Compliance reviews in 2006 and 2008 found instances where Hand & Hand had not completed the necessary background checks for employees who were working with developmentally-disabled clients. Both times, the provider submitted a plan of correction and gave assurances that it had addressed the problems. When a 2009 compliance review found the provider in violation of the same regulations, the Department suspended the provider's certification in early 2010. Manager Theresa Ryan testified that in response, Hand & Hand submitted one of the best plans of correction she had ever seen, thoroughly addressing how the violations had been corrected so that the Department could be assured that they would not occur again. An agent from the Department made a site visit and agreed that the provider had effectively changed its practices, so the suspension was lifted in March 2010. Then, when the 2014 compliance review was initiated, the reviewers found the same problems - employees were once again working without having had all of the required background checks, and one of them had disqualifying criminal offenses on her record. The fact that the same violations continued to occur even after repeated assurances that the deficiencies had been corrected is the basis for the Department's proposal to revoke Hand & Hand's certification.

(Hearing Examiner Report at 34.)

         {¶ 5} The hearing examiner further discussed appellant is a provider that agreed to comply with certain standards in exchange for Medicaid reimbursement, and, as such, appellee is justified in seeking to revoke the provider's certification "[w]hen those regulations are continually disregarded after the provider has given numerous assurances that it will comply." (Hearing Examiner Report at 35.) Regarding appellant's recent acquisition of an experienced consultant to address the deficiencies, the hearing examiner noted appellee "justifiably does not have confidence that the deficiencies have been permanently addressed so that they will not be found again." (Hearing Examiner Report at 35.)

          {¶ 6} The hearing examiner recognized there is no suggestions that appellant did anything to deliberately harm a client and that letters written on appellant's behalf attest to appellant's compassionate care for its clients. Nonetheless, the hearing examiner was persuaded background checks are a critical part of appellee's ability to protect consumers who have developmental disabilities which may limit their ability to advocate for themselves and who receive direct care from provider staff with limited supervision, and, therefore, citations involving the failure to conduct background checks are very serious. As a result, the hearing examiner recommended the revocation of appellant's certifications and, based on the mitigation evidence, recommended appellant be permitted to reapply for certification after a period of five years.

         {¶ 7} Appellant submitted the following objections to the recommendation of the hearing examiner:

1. The facts do not support a decertification based on the legal standard for good cause utilized by the Hearing Examiner.
2. The Hearing Examiner's finding of "good cause" to decertify is unsupportable when the negative impact of that result is balanced against the alleged deficiencies.

(Appellant's Objections to the Report and Recommendation of the Hearing Examiner at 2, 3.) On January 8, 2016, appellee's director issued an adjudication order adopting the hearing examiner's findings of fact and conclusions of law, approving the recommendation, and revoking appellant's certifications. Appellant filed a timely appeal with the court of common pleas.

         {¶ 8} On February 6, 2017, the court of common pleas issued its decision and entry upholding the adjudication order. In doing so, the court of common pleas noted appellant does not dispute any of the violations documented in the 2006, 2008, 2009, and 2014 compliance reviews occurred and found, based on the violations, appellee had good cause to revoke appellant's provider certification pursuant to R.C. 5123.166(B)(4) (misfeasance), R.C. 5123.166(B)(6) (nonfeasance), and R.C. 5123.166(B)(9) ("[o]ther conduct the director determines is or would be injurious to individuals who receive or would receive supported living from the person or government entity."). The court of common pleas determined appellant's first objection, which contended appellee had to prove actual harm as a result of appellant's violations under the nonfeasance and misfeasance section, was contrary to law based on the definition of both of those terms. The court of common pleas determined appellant's second objection, which concerned appellee violating the "Bill of Rights" codified in R.C. 5123.62, was not supported by any evidence and instead supported appellee's argument as to the importance of background checks. On considering the entire record, the court of common pleas found appellee's adjudication order supported by reliable, probative, and substantial evidence, to be in accordance with law, and, therefore, affirmed the order.

         {¶ 9} Appellant filed a timely appeal to this court.


         {¶ 10} Appellant presents three assignments of error:

[1.] The Trial Court erred in interpreting the provisions of O.R.C. Section 5123.166 relied on by the Court to support revocation of Hand & Hand's provider status by failing to recognize the requirement of proof of injury or actual harm thereby rendering the statute ...

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