State ex rel. Small Early World Learning Ctr. v. Ohio Dept. of Job & Family Servs. ( 2021 )

[Cite as State ex rel. Small Early World Learning Ctr. v. Ohio Dept. of Job & Family Servs., 2021-Ohio-954.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel., :
Small World Learning Center,
:
Relator,
:
v. No. 18AP-532
:
Ohio Department of (REGULAR CALENDAR)
Job and Family Services, :
Respondent. :
D E C I S I O N
Rendered on March 25, 2021
On Brief: Johnna M. Shia, for relator. Argued: Johnna M.
Shia.
On Brief: Dave Yost, Attorney General, and Rebecca L.
Thomas, for respondent. Argued: Rebecca L. Thomas.
IN MANDAMUS
ON OBJECTIONS TO MAGISTRATE'S DECISION
KLATT, J.
{¶ 1} Relator, Small World Early Childhood Development Center, Inc.,
commenced this original action in mandamus seeking an order compelling respondent,
Ohio Department of Job and Family Services ("ODJFS"), to (1) promulgate rules that would
specifically provide for a right to appeal an ODJFS decision to terminate a daycare provider
agreement ("agreement") to the common pleas court; and (2) vacate its decision to
terminate the agreement. In response, ODJFS filed a motion to dismiss relator's complaint.
No. 18AP-532 2
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
we referred this matter to a magistrate who issued a decision, including findings of fact and
conclusions of law. The magistrate determined that this court could not order ODJFS to
promulgate a rule to allow for an appeal to a common pleas court. Therefore, the magistrate
recommended that we grant ODJFS' motion to dismiss.
{¶ 3} Relator filed objections to the magistrate's decision. This court overruled in
part relator's objections to the magistrate's decision finding that this court could not order
ODJFS to promulgate a rule to allow for an appeal to a common pleas court. However, this
court sustained relator's objection to the dismissal because the magistrate failed to address
relator's claim that ODJFS abused its discretion in terminating the agreement. Therefore,
we remanded this case to the magistrate for further proceedings to address this claim.
{¶ 4} On remand, a different magistrate issued a decision, including findings of fact
and conclusions of law, which addressed the relator's claim that ODJFS abused its
discretion when it terminated the agreement. That decision is appended hereto. The
magistrate found that the terms of the agreement and various provisions of Ohio law
granted ODJFS the right to terminate the agreement without conducting the program
integrity review set forth in former Ohio Adm.Code 5101:2-16-72. The magistrate also
found that even if an integrity review had been required, the investigation ODJFS
conducted constituted an integrity review. Lastly, the magistrate determined that ODJFS
did not abuse its discretion in conducting its investigation or in terminating the agreement.
Therefore, the magistrate has recommended that we deny relator's request for a writ of
mandamus.
{¶ 5} Relator has filed objections to the magistrate's decision. It appears relator
presents three objections to the magistrate's decision: (1) the magistrate erred when he
found that the agreement could be terminated by ODJFS without an integrity review
conducted pursuant to former Ohio Adm.Code 5101:2-16-72; (2) contrary to the
magistrate's decision, the investigation conducted by ODJFS did not constitute an integrity
review; and (3) the magistrate erred in finding that ODJFS did not abuse its discretion when
it terminated the agreement and when it refused to reconsider that termination after relator
presented some additional records. For the following reasons, we find relator's objections
unpersuasive.
No. 18AP-532 3
{¶ 6} With respect to relator's first objection, relator fails to identify any provision
of the agreement that required ODJFS to conduct an integrity review pursuant to former
Ohio Adm.Code 5101:2-16-72 before it could exercise its termination right provided for in
the agreement. Nor does former Ohio Adm.Code 5101:2-16-72 negate or limit ODJFS'
termination rights set forth in the agreement. We agree with the magistrate that the terms
of the agreement and applicable provisions of Ohio law gave ODJFS the right to terminate
the agreement without conducting the integrity review provided for in former Ohio
Adm.Code 5101:2-16-72. Specifically, the magistrate noted that former Ohio Adm.Code
5101:2-16-44 stated that "[t]he provider agreement * * * may be terminated in accordance
with the terms contained in the agreement." Paragraph 31 of the agreement states that it
may be terminated by ODJFS upon 30 days written notice and shall terminate
automatically without written notice if there is a failure to honor the terms of the agreement
and related state, federal, or local law and regulations. Former R.C. 5104.32(D)(2)
expressly prohibited an eligible daycare provider from possessing or using an electronic
childcare card issued to a caretaker parent; knowingly seeking payment for publicly funded
childcare that was not provided; and knowingly accepting reimbursement for publicly
funded childcare that was not provided. ODJFS concluded from its investigation that
relator committed these violations. Although relator appears to dispute that it knowingly
sought or received payments for childcare it did not provide, relator does not dispute that
its staff possessed and used electronic childcare cards issued to caretaker parents. Based
upon relator's admitted violation of former R.C. 5104.32(D)(2) alone, ODJFS' termination
of the agreement was authorized by its terms and by Ohio law. In addition, the agreement
expressly granted ODJFS the absolute right to terminate the agreement on 30 days written
notice. We agree with the magistrate that relator has failed to show that an integrity review
provided for in former Ohio Adm.Code 5101:2-16-72 was required before ODJFS could
terminate the agreement. Therefore, we overrule relator's first objection.
{¶ 7} In its second objection, relator contends that the investigation ODJFS
conducted did not constitute an integrity review as contemplated by former Ohio
Adm.Code 5101:2-16-72. Because we have already determined that ODJFS was not
required to conduct an integrity review before terminating the agreement, this objection is
moot. Nevertheless, we agree with the magistrate that the investigation conducted by
No. 18AP-532 4
ODJFS prior to terminating the agreement would have constituted an integrity review
under former Ohio Adm.Code 5101:2-16-72. A "program integrity review" includes
"reviews, audits, investigation, and other activities carried out to ensure public programs
are limited to only eligible participants, and payments to providers for actual services
provided and conform to program rules." See former Ohio Adm.Code 5101:2-16-72(A). As
noted by the magistrate, ODJFS conducted an extensive investigation of relator that
involved on-site observations, the review of relator's attendance records, and the review of
records reflecting payments ODJFS made to relator over an 11-month period. The records
reviewed by ODJFS were largely provided by relator. Relator has articulated no persuasive
reason why this investigation would not constitute an integrity review. We also agree with
the magistrate that former Ohio Adm.Code 5101:2-16-72 did not require that all the
governmental entities identified in subsection (C) of that code provision be involved in the
investigation. Rather, it simply identified those entities that may conduct such a review,
which included ODJFS. For these reasons, we overrule relator's second objection.
{¶ 8} In its third objection, relator contends that the magistrate erred when he
failed to find an abuse of discretion by ODJFS in terminating the agreement. We disagree.
The conclusions that ODJFS drew from its investigation were based on its observations, the
review of records largely provided by relator, and relator's admissions. In light of the record
evidence and relator's clear contractual violations, we agree with the magistrate that relator
failed to show that ODJFS abused its discretion in terminating the agreement.
{¶ 9} Lastly, relator argues in its third objection that ODJFS abused its discretion
by not reconsidering its decision to terminate the agreement after relator submitted some
additional records. Again, we disagree.
{¶ 10} On April 15, 2016, ODJFS provided relator with a copy of its investigation
report, which recommended suspension and termination of the agreement. Relator
appealed the proposed suspension and termination to ODJFS and further requested that
ODJFS reconsider the overpayment calculation. On November 16, 2016, ODJFS notified
relator in writing that its appeal of the suspension and termination, as well as relator's
request for reconsideration of the overpayment calculation, were denied and that the
decision was final and not subject to further review by the department. Approximately one
month later, relator submitted to ODJFS additional records and again requested that
No. 18AP-532 5
ODJFS reconsider its termination decision and its overpayment calculation. ODJFS
refused.
{¶ 11} Given that relator did not submit these additional records to ODJFS until
approximately eight months after relator received a copy of the investigation report that
recommended suspension and termination of the agreement, and approximately one
month after the suspension and termination had become final, we agree with the magistrate
that relator failed to show that ODJFS abused its discretion. Moreover, relator's third
objection only challenges ODJFS' decision to terminate the agreement—not its
overpayment calculation. For the reasons previously noted, relator has failed to
demonstrate that ODJFS' decision to terminate the agreement violated its terms or any
provision of Ohio law. Therefore, we overrule relator's third objection.
{¶ 12} Following an independent review of this matter, we find that the magistrate
has properly determined the facts and applied the appropriate law. Therefore, we adopt
the magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, we deny relator's request
for a writ of mandamus.
Objections overruled; writ of mandamus denied.
BEATTY BLUNT and MENTEL, JJ., concur.
No. 18AP-532 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel., :
Small World Learning Center,
:
Relator,
:
v. No. 18AP-532
:
Ohio Department of (REGULAR CALENDAR)
Job and Family Services, :
Respondent. :
MAGISTRATE'S DECISION
Rendered on September 15, 2020
Johnna M. Shia, for relator.
Dave Yost, Attorney General, and Rebecca L. Thomas, for
respondent.
IN MANDAMUS
{¶ 13} This is the second magistrate's decision to issue in this original action in
which relator, Small World Early Childhood Development Center, Inc., requests a writ of
mandamus ordering respondent, Ohio Department of Job and Family Services ("ODJFS"),
to vacate its decisions suspending and terminating relator's daycare provider agreement
with ODJFS and denying relator's appeal of the termination decision, and to promulgate
rules providing for appeals to courts of a decision terminating a daycare provider
agreement.
No. 18AP-532 7
{¶ 14} On October 22, 2019, in State ex rel. Small World Early Learning Ctr. v.
Ohio Dept. of Job & Family Servs., 10th Dist. No. 18AP-532, 2019-Ohio-4329 ("Small
World"), this court issued a decision that overruled relator's first objection to the
magistrate's decision, overruled in part and sustained in part relator's second objection to
the magistrate's decision, adopted the magistrate's decision to the extent the magistrate
recommended ODJFS's motion to dismiss be granted with respect to the first count of
relator's complaint, and remanded the matter to the magistrate for further proceedings
with respect to the second count of relator's complaint.
{¶ 15} This original action is now before the magistrate on this court's remand.
Findings of Fact:
{¶ 16} 1. Relator is a licensed child care provider that had a provider agreement with
ODJFS to provide publicly funded daycare.
{¶ 17} 2. Paragraph 31 of the 2014 provider agreement provided that:
This agreement may be terminated by ODJFS upon thirty
days written notice. The notice will state the effective date of
termination and the basis of settlement. The Provider shall
cease providing publicly funded child care under this
agreement on the effective date of termination. This Provider
agreement shall terminate automatically without written
notice if: * * * (5) there is failure to honor the terms of this
agreement and related state, federal or local law and
regulation.
{¶ 18} 3. After receiving allegations that relator was improperly in possession of
Ohio Electronic Child Care ("ECC") swipe cards and that relator's staff was using those
cards to check children into the center when they were not actually in attendance, ODJFS
began an investigation.
{¶ 19} 4. In April and May 2015, ODJFS conducted two timed observations,
watching the number of children entering the facility. In the April 2015 timed observation,
ODJFS counted 62 children entering the facility between 6:00 a.m. and 7:00 a.m., and ECC
records showed 170 children were swiped into the facility during that time. In the May 2015
timed observation, ODJFS counted 105 children entering the facility between 6:00 a.m. and
8:15 a.m., and ECC records showed 217 children were swiped into the facility during that
time. ODJFS personnel entered the facility between 8:15 a.m. and 8:30 a.m. and counted
No. 18AP-532 8
108 children. ODJFS personnel also found numerous ECC swipe cards located at the front
desk of both Small World buildings.
{¶ 20} 5. Relator's owner, Christine Sanders, averred that ODJFS investigators
requested records from her after the May 2015 timed observation, and relator's staff
provided them.
{¶ 21} 6. Matthew Murray, a supervisor for ODJFS, averred that it was the practice
of his office to make copies of any records collected from on-site visits and then send them
to the provider. He attached to his affidavit certified mail receipts from the United States
Postal Office showing that ODJFS sent three shipments of copies of records to relator in or
before June 2015.
{¶ 22} 7. At the conclusion of its investigation, ODJFS substantiated the allegations
and determined that relator had been overpaid $442,963.67.
{¶ 23} 8. On April 15, 2016, ODJFS provided relator with a copy of its investigative
report, which recommended suspension and termination of the provider agreement and
indicated the overpayment would be collected.
{¶ 24} 9. Kierstyn Canter, a section chief for ODJFS, averred that ODJFS sent to
relator a copy of the overpayment-calculation spreadsheet, which included the children's
names, with the April 2016 investigative report.
{¶ 25} 10. On April 20, 2016, relator filed an appeal of the suspension and
termination, and sought reconsideration by ODJFS of the overpayment calculation.
{¶ 26} 11. On November 16, 2016, ODJFS notified relator that its appeal of the
suspension and termination, as well as its reconsideration of the overpayment calculation,
were both denied. The notice further informed relator that the appeal decision was final
and not subject to further review by the department.
{¶ 27} 12. In December 2016, Sanders attempted to submit to ODJFS additional
records, which included bus records from June to December 2014 and attendance records
for April 2015.
{¶ 28} 13. On November 22, 2016, relator filed a notice of appeal in the Montgomery
County Court of Common Pleas pursuant to R.C. 119.12 and 5101.35.
{¶ 29} 14. On December 19, 2016, ODJFS moved to dismiss the appeal for lack of
jurisdiction pursuant to Civ.R. 12(B)(1) arguing the decisions on appeal were not
No. 18AP-532 9
adjudications by an agency for purposes of R.C. Chapter 119 and that R.C. 5101.35 did not
provide statutory authority for an appeal of the decisions.
{¶ 30} 15. On January 26, 2017, the trial court granted ODJFS's motion to dismiss,
finding that relator failed to provide any authority to support a determination that it had
the right to appeal and, as such, the trial court lacked jurisdiction.
{¶ 31} 16. Relator appealed that decision to the Second District Court of Appeals. In
Small World Early Childhood Ctr. v. Ohio Dept. of Job and Family Servs., 2nd Dist. No.
27448, 2017-Ohio-8336 ("Small World (Second District)"), the court upheld the
determination of the common pleas court to dismiss the appeal. Specifically, the court
concluded:
[N]o provision in R.C. Chapter 5104 or administrative rule
related to the publicly funded child care authorizes an appeal
to the court of common pleas from an ODJFS decision
suspending or terminating a contract entered pursuant to
R.C. 5104.32 or a decision regarding an identified
overpayment.
Id. at ¶ 22.
{¶ 32} 17. On July 3, 2018, relator filed the instant mandamus action (1) requesting
that this court order ODJFS to promulgate rules that would specifically provide a right to
appeal to the common pleas court where relator and other parties similarly situated would
be able to present evidence and receive an independent review on appeal; and (2) asserting
that ODJFS abused its discretion by terminating the provider agreement.
{¶ 33} 18. On July 16, 2018, respondent filed a motion to dismiss on the ground that
the court cannot order ODJFS to promulgate such rules.
{¶ 34} 19. On August 14, 2018, relator filed a memorandum in response to the
motion to dismiss acknowledging there are no provisions in R.C. Chapter 5104 or the Ohio
Administrative Rules that authorize judicial review from this determination but asserting
ODJFS is clearly mandated to do so.
{¶ 35} 20. On August 27, 2018, respondent filed a reply.
{¶ 36} 21. On December 21, 2018, the magistrate issued a decision, in which she
granted respondent's motion to dismiss. Citing the analysis of the Second District Court of
Appeals in Small World (Second District), the magistrate found that this court could not
order ODJFS to promulgate a rule that will provide a remedy, i.e., an appeal to the common
No. 18AP-532 10
pleas court, that does not exist in the statute. Accordingly, the magistrate recommended
that the court grant ODJFS's motion to dismiss.
{¶ 37} 22. Relator filed objections to the magistrate's decision, and in Small World,
the court denied, in part, and sustained, in part, relator's objections. With regard to relator's
argument that this court should promulgate rules providing for appeal to the common pleas
court of a decision terminating a daycare provider agreement, the court agreed that
mandamus will not lie to compel ODJFS to enact rules providing for judicial appeal in these
circumstances. With regard to relator's argument that the complaint was not limited to
seeking a writ of mandamus compelling ODJFS to promulgate rules, the court found that
the complaint also set forth a second count alleging that ODJFS abused its discretion by
terminating the provider agreement, but the magistrate failed to address this argument.
The court remanded the matter to the magistrate for further proceedings on the second
count of relator's complaint.
{¶ 38} 23. On August 10, 2020, this magistrate was appointed and substituted as
magistrate in the present matter.
Conclusions of Law and Discussion:
{¶ 39} The magistrate recommends that this court deny relator's writ of mandamus.
{¶ 40} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 41} Relator argues that ODJFS abused its discretion when it summarily and
arbitrarily terminated its provider agreement without conducting a complete and thorough
integrity review, pursuant to Ohio Adm.Code 5101:2-16-72. Relator first contends that
although ODJFS terminated the provider agreement pursuant to R.C. 5104.32(D) and
5104.37, neither provision grants ODJFS authority to terminate a provider agreement. The
authority to terminate, relator contends, is only granted to ODJFS by Ohio Adm.Code
5101:2-16-72, and termination can only occur after an integrity review conducted by all
seven of the governmental entities listed in Ohio Adm.Code 5101:2-16-72(B), which did not
occur in the present case.
{¶ 42} Former R.C. 5104.32 provided, in pertinent part:
No. 18AP-532 11
(D)
(1) The department shall establish the Ohio electronic child
care system to track attendance and calculate payments for
publicly funded child care. The system shall include issuing an
electronic child care card to each caretaker parent to swipe
through a point of service device issued to an eligible provider,
as described in section 5104.31 of the Revised Code.
(2) Each eligible provider that provides publicly funded child
care shall participate in the Ohio electronic child care system.
A provider participating in the system shall not do any of the
following:
(a) Use or have possession of an electronic child care card
issued to a caretaker parent;
(b) Falsify attendance records;
(c) Knowingly seek payment for publicly funded child care
that was not provided;
(d) Knowingly accept reimbursement for publicly funded
child care that was not provided.
Former R.C. 5104.37 provided, in pertinent part:
(B) The department of job and family services may withhold
any money due under this chapter and recover through any
appropriate method any money erroneously paid under this
chapter if evidence exists of less than full compliance with this
chapter and any rules adopted under it.
(C) Notwithstanding any other provision of this chapter to the
contrary, the department shall take action against an eligible
provider as described in this section.
(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.
No. 18AP-532 12
***
(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.
{¶ 43} Former Ohio Adm.Code 5101:2-16-72 provided, in pertinent part:
(A) What is a program integrity review?
Program integrity reviews include reviews, audits,
investigations, and other activities carried out to ensure public
programs are limited to only eligible participants, and
payments to providers are for actual services provided and
conform to program rules.
(B) Who performs program integrity reviews?
The Ohio department of job and family services (ODJFS)
performs program integrity reviews along with the Ohio
auditor of state, Ohio attorney general, Ohio inspector general,
U.S. department of health and human services (HHS), the HHS
office of inspector general, and the U.S. government
accountability office.
(C) Who shall comply with publicly funded child care program
integrity reviews?
Child care providers with a provider agreement pursuant to
rule 5101:2-16-44 of the Administrative Code and caretakers
determined eligible for publicly funded child care pursuant to
rule 5101:2-16-30 of the Administrative Code shall cooperate
and participate in reviews conducted by ODJFS, the Ohio
auditor of state, the Ohio inspector general, the Ohio attorney
general, any entity acting on behalf of ODJFS, or the federal
government.
No. 18AP-532 13
***
(F) What happens if ODJFS determines misuse of publicly
funded child care or Ohio electronic child care (Ohio ECC) as
defined pursuant to paragraph (B) of rule 5101:2-16-71 of the
Administrative Code?
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 with section 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.
{¶ 44} In the present matter, the magistrate finds relator's arguments unavailing.
Both the Ohio Administrative Code and the provider agreement entered into between
ODJFS and relator specifically provide for termination without a program integrity review
pursuant to Ohio Adm.Code 5101:2-16-72. Paragraph 31 of the 2014 provider agreement
provides that the agreement may be terminated by ODJFS upon 30 days written notice,
and shall terminate automatically without written notice if there is a failure to honor the
terms of the agreement and related state, federal, or local law and regulations.
{¶ 45} Former Ohio Adm.Code 5101:2-16-44, entitled "Provider agreement for
payment of publicly funded child care," provided, in pertinent part:
(P) The provider agreement as entered into with ODJFS, may
be terminated in accordance with the terms contained in the
agreement.
{¶ 46} Thus, former Ohio Adm.Code 5101:2-16-44 specifically indicates that the
terms of the provider agreement control, and the provider agreement here permits
termination of the agreement with 30 days written notice for any reason, and automatic
termination of the agreement without written notice if a party fails to honor the terms of
the agreement.
{¶ 47} Furthermore, even if a "program integrity review" were required, ODJFS's
current investigation met the definition, as former Ohio Adm.Code 5101:2-16-72(A)
provides that a program integrity review includes reviews, audits, investigations, and other
No. 18AP-532 14
activities to ensure participants and providers are following the program rules. Relator's
contention that such a review requires the participation of all seven governmental entities
listed in Ohio Adm.Code 5101:2-16-72(B) is unfounded. The list of entities included in Ohio
Adm.Code 5101:2-16-72(B) is not a list of entities required for every review, but a list of
entities that may participate in an investigative review along with ODJFS. This is apparent
by the use of the disjunctive "or" in the listing of entities in Ohio Adm.Code 5101:2-16-72(C).
{¶ 48} Relator next argues that ODJFS abused its discretion when it summarily and
arbitrarily relied upon an incomplete, unreliable, and self-serving investigative report and
incomplete records to terminate relator's provider agreement. Relator first contends that,
although ODJFS relied upon attendance records from June 2014 through April 2015, these
records were incomplete and missing a six-month timeframe that relator provided later.
Relator contends it did not know what records were collected by ODJFS until after ODJFS
proposed to terminate the provider agreement.
{¶ 49} However, relator has not shown a clear legal right to the relief sought. Despite
relator's contention that the records relied upon were incomplete, relator was responsible
for what records were submitted to ODJFS. Relator's owner, Christine Sanders, admitted
in her affidavit that ODJFS investigators requested records from her, and relator's staff
provided them. Although Sanders also claimed in her affidavit that she and her employees
were intimidated and rushed at the time they provided the records, there is no evidence
that relator ever timely informed ODJFS that it had additional records. It was not until
December 2016 that Sanders attempted to submit additional records, which was well after
ODJFS issued its final decision. Notwithstanding, as noted by ODJFS, the majority of the
additional records are in the form of bus records that do not meet the record of daily
attendance requirements set forth in Ohio Adm.Code 5101:2-12-20(L). Ohio Adm.Code
5101:2-12-20(L) provides that the record of daily attendance must be recorded by a child
care staff member upon the child's arrival and departure and include the names and birth
dates of children, the names of the child care staff members responsible for the group, and
the designated area used as home base. Furthermore, although relator asserts that it was
unaware of what records ODJFS collected from relator at the time of the May 2015
investigation, Matthew Murray, a supervisor for ODJFS, averred that ODJFS sent copies to
relator in or before June 2015 via certified mail.
No. 18AP-532 15
{¶ 50} Relator also asserts that the investigative report did not mention specific
names, contain written statements, contain the actual ECC information for the timed visual
observations, contain the names of the children involved, or indicate that the record
collection was not complete. However, as already mentioned above, there is no evidence
that relator timely informed ODJFS that it did not submit all of its records. Furthermore,
as for relator's claim that the investigative report did not include the names of the children
involved, relator presents no evidence to support such claim, and ODJFS counters that it
would have no reason to redact the names of the children to keep them confidential from
the provider. Canter also averred that ODJFS sent to relator an unredacted version of the
overpayment-calculation spreadsheet, which included the children's names, with the April
2016 investigative report.
{¶ 51} Finally, relator argues that ODJFS failed to consider relator's difficult
position and the unrealistic nature of the ECC system. However, relator cannot show that
ODJFS had a clear legal duty to provide the relief relator requests . ODJFS was under no
clear legal duty to not enforce the provider agreement, Ohio Revised Code, or Ohio
Administrative Code because relator believed the ECC system was complicated, unrealistic,
and difficult to adapt to real-life circumstances, and put too much responsibility in the
hands of the caretakers. Relator chose to enter into a provider agreement with ODJFS to
become a publicly-funded child care provider and agreed to abide by the rules in the
provider agreement, Ohio Revised Code, and Ohio Administrative Code. That ODJFS held
relator to the terms of the provider agreement and laws and rules of Ohio is not a ground
for granting mandamus relief.
{¶ 52} Accordingly, it is the magistrate's recommendation that this court deny
relator's complaint for a writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
No. 18AP-532 16
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).