STATE, EX REL. REBEL, v. WHITE, 26 Ohio St.2d 207 (1971)

271 N.E.2d 282

THE STATE, EX REL. REBEL, v. WHITE, DIR., DEPT. OF PUBLIC WELFARE. THE STATE, EX REL. MCGLOTHLIN, v. WHITE, DIR., DEPT. OF PUBLIC WELFARE.

Nos. 70-309 and 70-328Supreme Court of Ohio.
Decided June 23, 1971.

Mandamus — Remedy not available, when — To compel payment of medical assistance funds to nursing homes — R.C. 5101.51 — Requirements — Nursing homes ineligible to receive funds, when — Contracts for services — Conditions.

IN MANDAMUS.

Relators own and operate nursing homes. Each executed an agreement with the Department of Public Welfare to provide services to Aid for Aged recipients under the vendor payment program authorized by R.C. 5101.51, financed with state and federal matching funds, for medical assistance to recipients of such aid. The agreements provided, inter alia, that “vendor payment is provided for services rendered in licensed skilled nursing homes under the following conditions:

“B. The home will currently be licensed as a skilled nursing home by the Ohio Department of Health or by a city health department whose licensing program has been approved by the Ohio Department of Health.

“C. No action to deny or revoke the license is pending.”

Thereafter, each relator began receiving vendor payments from the Department of Public Welfare for welfare patients.

Following hearings, relator McGlothlin’s license to operate a nursing home was revoked by the Director of the Ohio Department of Health on December 11, 1967, and relator Rebel’s license to operate a nursing home was revoked

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by the director on August 20, 1968. Both revocations were for violations of Department of Health regulations.

It was specifically forbidden by federal law (81 Stats. at L. 907) to use any federal matching funds for payments to any nursing home which did not meet fully all state licensure requirements after June 30, 1968.

On May 29, 1968, vendor payments to relator McGlothlin were terminated, and on September 1, 1968, relator Rebel’s vendor payments were stopped.

Thereafter, direct payments were made by the Department to welfare recipients in relators’ nursing homes, and relators were paid by them the amounts provided by law, a sum less then relators received under the vendor payment program.

In each case, the Court of Common Pleas reversed the license revocation orders of the Director of Health. In the case of relator McGlothlin, the license to operate a nursing home was ordered reinstated. In each case, the order of revocation was suspended during the appeal.

Following the courts’ reversals of the revocation orders, relator Rebel was placed on the rolls as qualified to receive vendor payments and, in November 1969, such payments began. Relator McGlothlin was notified in June 1969 that it was necessary for her to reapply for vendor payments and she then declined; but, on June 30, 1970, she filed application and requalified in August 1970. In September 1970 relator McGlothlin began receiving vendor payments.

In these actions relators seek to compel the Director of the Department of Public Welfare to cause payment to be made to them for services rendered for the additional sums (the difference between vendor payments and direct payments) withheld during the time each relator was determined to be ineligible for vendor payments.

Messrs. Thompson, Swope Burns and Mr. Richard F. Swope, for relators.

Mr. William J. Brown, attorney general, and Miss Winifred A. Dunton, for respondent.

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Per Curiam.

The writs of mandamus are denied. Relators have not clearly shown any clear obligation imposed by law on respondent to cause the payments sought by these actions.

The Department of Public Welfare is authorized by R.C. 5101.51
to provide medical assistance to recipients of aid “as long as federal funds are provided for such assistance.” R.C. 5101.51
also provides that any program for such assistance must conform to requirements of the Social Security Act.

Federal matching funds are specifically denied any state for payments to any nursing home for services provided during any time it is not licensed as a nursing home.

In the cases of relators, the Director of Public Welfare was forbidden to pay them from federal funds while their licenses to operate nursing homes were suspended or before they qualified under proper standards for vendor payments. In the absence of federal matching funds, no state funds were available for the vendor-payment program. Thus, there was no fund from which respondent could make the payments sought.

Additionally, the agreement each relator signed as requisite to receiving vendor payments from the Department of Public Welfare conditioned vendor payment on there being no action pending to deny or revoke relator’s nursing home license and that the home be licensed as a skilled nursing home. Since these terms of the agreement were not met during the times for which relators seek payment, their actions fail.

Writs denied.

O’NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.

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