Order: OHIO LEGAL RIGHTS SERVICES vs HARBORSIDE HEALTHCARE

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                I a Ma

c
bev}

IN THE COURT OF COMMON PLEAS:

MONTGOMERY COUNTY, OHIO

OHIO LEGAL RIGHTS SERVICE 2008 CV 2098
Plaintiff, JUDGE FRANCES MCGEE
-V- MAGISTRATE DAVID H. FUCHSMAN
HARBORSIDE HEALTHCARE MAGISTRATE’S DECISION
NEW LEBANON,
Defendant.

TO: Honorable FRANCES MCGEE
FROM: Magistrate DAVID H. FUCHSMAN

This matter is currently before the undersigned Magistrate pursuant to Rule 53 of the
Ohio Rules of Civil Procedure and a specific Order of Reference filed by the Court on June 9,
2008.
I. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS

On March 3, 2008, Plaintiff Ohio Legal Rights Service (hereinafter “OLRS”) filed a
Complaint for Declaratory, Injunctive and Monetary Relief against Defendant Harborside
Healthcare in an attempt to “remedy Defendant's refusal to provide a private and confidential
setting in which to communicate with persons upon request of the Ombudsman Section of

Plaintiff Ohio Legal Rights Service” contending that “such refusal violates Ohio Revised Code

-1-§5123.604(B).”' In the Complaint’s “Prayer for Relief,” the Plaintiff requested the Court to:

A.

E.

F,

Declare that the Defendant is a provider of services to persons with mental
retardation;

Declare that the Defendant’s refusal to provide to the Ombudsman Section the
ability to communicate with a resident in a private and confidential setting
constituted a violation of Ohio Revised Code §5123.604(B);

Permanently enjoin Defendant from withholding the right to communicate in a
private and confidential setting with J.R.;

Impose a fine upon Defendant in an amount up to one thousand dollars in
accordance with Ohio Revised Code §5123.99(D);

Award to Plaintiff attorney’s fees and costs of this action; and

Grant Plaintiff any other relief which this Court finds just and proper.”

Defendant Harborside Healthcare filed an Answer to the Complaint on April 2, 2008. In

its Answer, Defendant admitted paragraphs 3, 5, 7, 15 and 16 of the Complaint, which stated as

follows:

3,

15.

Defendant Harborside Healthcare...is a nursing home that provides services
through nursing, physical therapists, social workers and other staff...

Upon information and belief, J.R. is a person with mental retardation who is
receiving services while he resides at Harborside...

Pursuant to her investigation, Ombudsman Adonna Wilson requested to
communicate with J.R. in a private and confidential setting at Harborside...

Defendant is a provider of services to persons with mental retardation.

' Complaint for Declaratory, Injunctive and Monetary Relief (hereinafter
“Complaint”), filed on March 3, 2008.

2 Id.

-2-16. The request of the Ombudsman Section to communicate in a private and
confidential setting with J.R. was a lawful demand of the Ombudsman Section?

Defendant denied all other allegations in Plaintiff's Complaint. Also, in its Answer, Defendant

asserted the following affirmative defenses:

. The Complaint fails to state a claim upon which relief can be granted against
Harborside.

. Plaintiff's action is barred by the doctrines of estoppel, waiver and/or laches.

. Harborside’s conduct was reasonable.

. Harborside has performed all obligations owed to Plaintiff.

. Plaintiff's Complaint for injunctive relief is moot.

. Plaintiff's Complaint is not justiciable.

. If Plaintiff sustained damages by reason of the matters alleged in the Complaint,

then said damages were caused solely by or contributed to by the acts or fault of
Plaintiff or other third parties, and were not caused or contributed to by any acts or
fault of Defendant.

. The damages sought by Plaintiff are excessive, unreasonable, and not proximately
caused by any conduct of Harborside.‘

On May 8, 2008, Defendant filed a Motion for Declaratory and Summary Judgment,
which included a memorandum of law in support thereof. Defendant argued that it “is entitled to
a declaratory judgment in its favor that [it] did not violate Ohio Revised Code §5123.602 or Ohio

Revised Code §5123.604,” because it “never denied OLRS the right to meet with J.R.” and it

See Answer of Defendant Harborside Healthcare New Lebanon (hereinafter
“Answer”), filed April 2, 2008 and Complaint.
‘ See Answer.

-3-“has the right to set reasonable visitation policies.”* Filed with the Motion was the affidavit of

Timothy Schultz, signed on May 5, 2008. The affidavit of Mr. Schultz, the Administrator of

Defendant Harborside, stated in pertinent part:

5.

On or about January 18, 2008, resident J.R. was admitted to Harborside from
home with an admitting diagnosis of epilepsy, hypertension, multiple fractures
from being struck by a car, mental retardation, and a concussion.

J.R. was removed from his home as a result of neglect and unsafe conditions and
was admitted to Harborside by his court-appointed guardian, Mary Ditmer.

On February 5, 2008, OLRS’ representative, Adonna Wilson, entered Harborside,
unannounced, and demanded to interview J.R. No attempt had been made by
OLRS to contact me or J.R.’s guardian to schedule the interview.

Harborside informed Ms. Wilson that J.R. had a court-appointed guardian and that
she needed to be contacted prior to any meeting with J.R. Ms. Wilson disputed
that she needed the consent of the guardian before interviewing J.R.

Harborside immediately contacted Ms. Ditmer, J.R.’s guardian, who then
immediately instructed Harborside that Ms. Wilson could not interview her ward
without her being present. Ms. Ditmer also stated that no one from OLRS’
organization had contacted her prior to coming to Harborside.

At that time, Harborside requested that Ms. Wilson reschedule her meeting with
J.R. until she obtained the guardian’s permission to interview her ward, J.R. and
coordinated the interview in order to permit the guardian to be present at the
interview.

Later that day, I received a call from Ron Smith at OLRS, stating that Harborside
had no authority to prohibit a meeting between OLRS and J.R. Harborside once
again informed Mr. Smith that J.R. had a court appointed guardian who stated that
she wanted to be present during any such meeting.

On March 5, 2008, J.R.’s guardian, Mary Ditmer, contacted Harborside to inform
them that she was trying to work out an arrangement with OLRS for them to meet

See Motion for Declaratory and Summary Judgment, p. 5-7.

-4-with J.R. She stated that she would consent to such a meeting as long as J.R.’s
daily routine was not interrupted and that Harborside was informed prior to the
meeting.

On March 7, 2008, | received a phone call from Ms. Wilson requesting to arrange
a day and time wherein she could come to Harborside to meet with J.R. [
immediately contacted Ms. Ditmer who agreed that a meeting could take place so
long as J.R.’s therapy and other scheduled appointments were not compromised.

1 then contacted Ms. Wilson and the parties agreed on March 10, 2008 for
Plaintiff to meet with J.R.

Indeed, OLRS visited with J.R. on March 10, 2008, in a private setting, with no
further concerns or issues.

It is Harborside’s policy to contact a resident’s court appointed guardian when
issues arise that affect his/her ward. This includes a request to meet with the
resident by resident advocate groups such as OLRS.

On June 20, 2008, Plaintiff filed its Cross-Motion for Summary Judgment and Opposition

to Defendant’s Motion for Summary Judgment, which was supported by a memorandum of law.
In the memorandum, Plaintiff presents a two-fold argument. First, Plaintiff argues that, based
upon undisputed facts, it is entitled to judgment as a matter of law because “Defendant’s refusal
of a private meeting between Plaintiff and J.R. constitutes a unjustifiable and inexcusable
violation of state law.”® More specifically, Plaintiff argues that a guardian’s lack of consent does
not excuse Defendant’s failure to permit an immediate meeting with J.R. in a private and
confidential setting. Secondly, Plaintiff argues that a guardian ad litem, in contrast to a guardian

appointed by the probate court following an adjudication of the ward’s incompetence, “holds

Plaintiff's Cross-Motion for Summary Judgment and Opposition to Defendant’s
Motion for Summary Judgment, p. 5.

-5-only narrow authority in regard to the specific litigation for which he or she was appointed.”

Plaintiff reasons that since court documents characterize Ms. Ditmer as J.R.’s “guardian ad

litem,” not his guardian, even if lack of a guardian’s consent did provide a legitimate excuse for

failure to allow an ombudsman to meet with a person protected under Ohio Revised Code

§5123.60 et seq., such an exception would not apply in the case at bar due to Ms. Ditmer’s

alleged limited authority. Filed with the Motion/Opposition is the affidavit of Adonna Wilson,

singed May 20, 2008. The affidavit of Ms. Wilson, an ombudsman with the Ombudsman

Section of Ohio Legal Rights Service whose duties include “investigating allegations of abuse

and neglect of individuals with disabilities,” states in pertinent part:

3.

On or about January 28, 2008 OLRS learned of J.R.’s placement in Harborside
Healthcare New Lebanon (“Harborside”) as a result of a major unusual incident
report regarding neglect and unsafe conditions in J.R.’s home.

At that time I determined it appropriate to investigate the situation by interviewing
J.R., in accordance with my authority under R.C. Section 5123.602.

My investigation was independent of any litigation, including Case No. 2008
8002/A in the Preble County Probate Court.

On February 5, 2008 I made my first visit to Harborside...and attempted to meet
with JR.

On February 5, I arrived at Harborside at approximately 1:25 p.m. At that time it
appeared to be a period of open visitation and another person was visiting with
JR.

I spoke briefly but not privately or confidentially with J.R. I asked J.R. whether a
visit would be convenient for him at that time and he stated that it would. My
visit did not appear to disrupt or interfere with the care of J.R., or any other

7 Id. p. 7.resident, in any way, nor did J.R., or any other resident, seem to be disturbed by
my presence in any way.

9. Harborside staff told me that I could not meet with J.R. privately. Harborside
staff stated that J.R.’s “guardian” needed to give permission for me to meet
confidentially with J.R. It did not appear that any other visitor was excluded from
visitation other than myself.

10. Acting at the request of the guardian ad litem, Harborside denied me ready access
to meet privately with J.R. on February 5, 2008.

11. At the request of the guardian ad litem, for approximately five weeks Harborside
denied me the right to meet confidentially with J.R. On March 10, 2008 I was
allowed to meet with J.R. in a private setting.

Also attached to Plaintiff's Motion/Opposition, are a print-out from Defendant’s website and
several court documents from Preble County Case No. 2008 8001/A, styled “In the Matter of
(J.R.], Mentally Retarded Adult in Need of Protective Services.” The website printout, under the
heading “Visiting Hours,” states “Visitors are always welcome.” The Preble County Probate
Court documents are as follows:

. An Entry and Order dated January 18, 2008, which states in pertinent part that “It
is...ordered...that the MR/DD Board be allowed to admit [J.R.], via Guardian ad
Litem Mary Ditmer, to Harborside of New Lebanon...[and that] the Court assign a
Guardian ad Litem to [J.R.] in order to ensure his best interests are met and to

avoid misrepresentation by [J.R.’s] mother that she is his guardian.

. An order dated January 18, 2008, which states in pertinent part: “it is further
ordered that Mary A. Ditmer be appointed Guardian Ad Litem of [J.R.].”

. An Entry and Order dated January 25, 2008, which states in pertinent part “It
is...ordered that...[J.R.’s] mother, [S.R.], will be allowed to visit him under the
supervision of Mary Ditmer, Guardian ad Litem.

On January 25, 2008, Defendant filed a “Consolidated Memorandum...in Opposition to

Plaintiff's Cross Motion for Summary Judgment and in Support of Defendant’s Motion for

-7-Declaratory and Summary Judgment.” Defendant first argues that its motion should be granted
because “the Ombudsman Section lacked jurisdiction and authority to demand that (it] permit an
immediate interview of J.R. at [its] facility."> More specifically, Defendant argues (1) that “the
Ombudsman Sections’s statutory authority to conduct investigations and interviews is limited to
formal complaints;’® (2) that “[Plaintiff] has failed to allege or provide any evidence that any
complaint relating to J.R. was ever filed with the Ombudsman Section;'” (3) that “in the absence
of receiving a complaint, OLRS does not have jurisdiction to investigate and conduct interviews
regarding a ‘major unusual incident report’ received from MM/DD,”"' (4) that “OLRS cannot
reach beyond the plain scope of the applicable statutes and its own rules governing investigations
by the Ombudsman Section;”” and (5) that “[it] did not violate R.C. 5123.602 because Wilson’s
request to interview J.R. was not a lawful action pursuant to R.C. Chapter 5123.""% Defendant

then argues that its motion should be granted and that Plaintiff's motion should be denied

8 Consolidated Memorandum of Defendant HHCI Limited Partnership D/B/A
Harborside Healthcare-New Haven Rehabilitation and Nursing Center in
Opposition to Plaintiffs Cross Motion for Summary Judgment and in Support of
Defendant’s Motion for Declaratory and Summary Judgment, p. 3.

° Id. at 4.
0 Id. at 5.
un Id. at 6.
e Id at 8.

Id. at 10. This Magistrate gives negligible weight to the fact that Defendant
admitted in its Answer that Ms. Wilson’s request to interview J.R. was “lawful.”
The Magistrate addresses the issue on its merits, rather than the pleading, alone.

-8-because it “was justified in deferring to J.R.’s court-appointed guardian ad litem with respect to
Wilson’s demand to interview J.R.”'* Specifically, Defendant stated that it “acted in accordance
with probate court orders regarding J.R.’s admission to the facility under supervision of his
guardian ad litem,”"’ and that “Wilson’s demand to interview J.R. without his guardian ad litem’s
approval is inappropriate under the circumstances.”"* Finally, Defendant argued that Plaintiff
“cannot recover its attorneys fees,” because it has not “cited a statute authorizing such an award”
or “alleged any frivolous conduct by, or sought punitive or exemplary damages from
{Defendant].”!”

In support of its “Consolidated Memorandum...in Opposition to Plaintiff's Cross Motion
for Summary Judgment and in Support of Defendant’s Motion for Declaratory and Summary
Judgment,” Defendant attaches the affidavit of Lyle B. Brown, Esq., one of its attorneys.
Brown’s affidavit authenticates a printout from Plaintiff's website, as well as additional
documents from the Preble County Case No 2008 8002/A, including the January 18, 2008 “R.C.
5126.331 Petition for the Issuance of an Emergency Ex Parte Order,” the January 18, 2008

“Entry and Order,” the January 22, 2008 “Complaint R.C. 5126.33,” and the January 25, 2008

“Entry and Order."
“ Id.

8 Id at 11.

16 Id. at 13.

” Id-at 14-15.

Id. See affidavit of Brown and attachments,

-9-On August 1, 2008 Plaintiff filed its “Reply Brief in Response to Defendant’s
Memorandum in Opposition of Plaintiff's Cross Motion for Summary Judgment.” Plaintiff
argues that its “Ombudsman Section had jurisdiction over and properly investigated the matter
involving J.R.,”"? and that “Defendant was not acting in accordance with probate court order
when it denied Ms. Wilson the right to meet privately with J.R.”° Plaintiff also argues that
“Defendant improperly offered additional arguments and requested additional relief in its
Consolidated Memorandum.””!

On September 16, 2008, the Magistrate heard oral arguments on the cross-motions for
summary judgment. At the hearing, the Magistrate gave the parties fourteen (14) days in which
to file supplemental briefs. On September 30, 2008, Defendant filed a “Supplemental
Memorandum...in Opposition to Plaintiff's Cross Motion for Summary Judgment and in Support
of Defendant’s Motion for Declaratory and Summary Judgment.” In this Supplemental
Memorandum, Defendant attempts to distinguish the case of Office of Protection and Advocacy
for Persons with Disabilities v. Armstrong, 266 F, Supp. 2d 303 (D. Conn. 2003), which was
cited by Plaintiff at the hearing, from the case at bar.

The parties agree that there are no disputed facts that would preclude summary judgment

as a matter of law. Accordingly, this matter is now ripe for decision.

“Plaintiff's Reply Brief in Response to Defendant’s Memorandum in Opposition
of Plaintiff's Cross Motion for Summary Judgment” at p. 2.

0 Id. at 3.
2 Id.

-10-Il. LAW AND ANALYSIS

In addressing the cross-motions for summary judgment filed by the parties, the Magistrate

, must consider several issues. First, the Magistrate must determine whether the actions of the

Ombudsman section were “lawful” pursuant to R.C. 5123.604. Defendant argues that the
actions of the Ombudsman Section were not lawful because Plaintiff “lacked jurisdiction and
authority to demand the [Defendant] permit an immediate interview of J.R. at [its] facility.”
Second, the Magistrate must determine whether, as a matter of law, Defendant’s conduct violated
R.C. 5123.604 thereby entitling Plaintiff to damages pursuant to R.C. $123.99. Third, the
Magistrate must determine whether Mary Ditmer’s status as either “guardian” or “guardian ad
litem” is material for purposes of granting or denying summary judgment to either party. Finally,
the Magistrate must determine what damages, if any, are appropriate and whether a hearing on
damages is necessary.

A. Summary Judgment Standard and Evidentiary Requirements

Summary judgment is appropriate where:

1) there is no genuine issue as to any material fact;

2) the moving party is entitled to judgment as a matter of law, and

3) reasonable minds can come to but one conclusion, and that conclusion is adverse

to the party against whom the motion for summary judgment is made, who is

2 Again, the Magistrate ignores the Answer of Defendant, which admits that “[t]he
request of the Ombudsman Section to communicate in a private and confidential
setting with J.R. was a lawful demand of the Ombudsman Section.”

-11-entitled to have the evidence construed most strongly in his favor.
Harless v. Willis Day Warehousing Co., Inc., (1978) 54 Ohio St. 2d 64, 66. See also Ohio Civil
Rule 56(C).

In Dresher v. Burt, (1996), 75 Ohio St. 3d 280, the Ohio Supreme Court discussed the
respective burdens of the moving and non-moving party in a motion for summary judgment when
the moving party asserts that a nonmoving party has no evidence to establish an essential element
of the nonmoving party’s case. With respect to the moving party, the Court stated:

«__.the moving party bears the initial burden of demonstrating that there are no genuine
issues of material fact concerning an essential element of the opponent’s case. To
accomplish this, the movant must be able to point to evidentiary materials of the type
listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. The
evidentiary materials listed in Civ.R. 56(C) include ‘the pleading, depositions, answers to
interrogatories, written admissions, affidavits, transcripts of evidence in the pending case,
and written stipulations of fact, if any.’ These evidentiary materials must show that there
is no genuine issue as to any material fact, and that the moving party is entitled to
judgment as a matter of law. While’ the movant is not necessarily obligated to place any
of these evidentiary materials in the record, the evidence must be in the record or the
motion cannot succeed....[A] moving party does not discharge its initial burden under
Civ.R. 56(C) simply by making a conclusory assertion that the nonmoving party has no
evidence to prove its case. The assertion must be backed by some evidence of the type
listed in Civ.R. 56(C) which affirmatively shows that the nonmoving party has no
evidence to support its party’s claims. If the moving party fails to satisfy its initial
burden, the motion for summary judgment must be denied.”

With respect to the burden of the non-moving party, the Dresher Court stated:

“If the moving party has satisfied its initial burden, the nonmoving party has a reciprocal
burden outlined n the last sentence of CivR. 56(E), which provides that:
‘When a motion for summary judgment is made and supported as provided in this
tule, an adverse party may not rest upon the mere allegations or denials of his
pleadings, but his response, by affidavit or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine issue for trial. If he does
not so respond, summary judgment, if appropriate, shall be entered against him.””

-12-In the context of a summary judgment motion, the non-moving party must have the

evidence construed most strongly in its favor. Horton v. Harwick Chem. Corp., 73 Ohio St. 3d

679, $995 Ohio 286, 653 N.E.2d 1196, paragraph 3 of the syllabus.

B. The Plaintiff had jurisdiction and authority to demand that the Defendant
permit an immediate interview of J.R. at its facility, even though no “formal
complaint” had been filed. Despite the lack of a “formal complaint,” the
request of the Ombudsman Section to communicate in a private and
confidential setting with J.R. was a lawful demand of the Ombudsman
Section pursuant to R.C.5123.601 et seq.

Before addressing the issue of whether Defendant has violated the law by refusing to
permit Plaintiff's ombudsman, Ms. Wilson, to immediately interview J.R. in a private and
confidential setting, the Magistrate first addresses the issue of whether Plaintiff had authority to
make such a request in the first place. Defendant argues that “in the absence of receiving a
complaint, OLRS does not have jurisdiction to investigate and conduct interviews regarding a
‘major unusual incident report’ received from MR/DD”® and that it “did not violate R.C.
5123.602 because [the Ombudsman’s] request to interview J.R. was not a lawful action pursuant
to R.C. Chapter 5123.”"* Plaintiff counters by arguing that it did have authority and/or

jurisdiction to investigate J.R.’s situation because the language of R.C. Section 5123.601(B)

provides that its “authority arises not only from the filing of a complaint with OLRS, but also

3 Consolidated Memorandum of Defendant...in Opposition to Plaintiff's Cross

Motion for Summary Judgment and in Support of Defendant's Motion for
Declaratory and Summary Judgment, p. 6.

a Id at 7.

-13-from ‘any deficiencies which come to its attention,

99925

A recitation of the applicable law is helpful. The Ohio Legal Rights Service was created

under R.C. 5123.60. Its purposes are outlined at R.C, 5123.60(A):

A legal rights service is hereby created and established to protect and advocate the rights
of ...mentally retarded persons...; to receive and act upon complaints conceming
institutional and hospital practices and conditions of institutions for mentally
retarded...persons...; and to assure that all persons detained, hospitalized, discharged or
institutionalized, and all persons whose detention, hospitalization, discharge, or
institutionalization is sought or has been sought...are fully informed of their rights and
adequately represented by counsel...

The “Ombudsperson Section” of the Legal Rights Service was created under R.C. 5123.601(B):

... There is hereby created within the legal rights service the ombudsman section. The
administrator of the legal rights service shall adopt rules in accordance with Chapter 119
of the Revised Code establishing procedures for receiving complaints and conducting
investigations for the purposes of resolving and mediating complaints from mentally
retarded,...persons, their relatives, their guardians, and interested citizens, public officials,
and governmental agencies or any deficiencies which come to its attention conceming
any activity, practice, policy, or procedure it determines is adversely affecting or may
adversely affect the health, safety, welfare, and civic or human rights of any mentally
retarded, ... persons....7¢

R.C. 5123.60 also states that:

Nothing in this section shall prohibit the legal rights service from taking appropriate

action when the administrator determines it is necessary...”

With respect to the authority of the Ombudsman Section to retrieve information and conduct

interviews, R.C. $123.602 provides in pertinent part:

25

2%

Plaintiff's Reply Brief in Response to Defendant’s Memorandum in Opposition of
Plaintiff's Cross Motion for Summary Judgment, p. 2.

Emphasis added.
Emphasis added.

-14-...[T]he ombudsperson section of the legal rights service may, in order to carry out its
duties under this chapter, make necessary inquiries and obtain information it considers
necessary. Upon receiving a complaint and in the course of conducting an
investigation in accordance with division (B) of section 5123.60! [5123.60.1] of the
Revised Code, the section shall have ready access to the premises and records of all
providers of services to mentally retarded...persons and shall have the right to
communicate in a private and confidential setting with any mentally
retarded...persons, with their parents, guardians, or advocates, and with employees of
any provider.”®
Defendant argues that the language of R.C. 5123.60(B) and R.C. 5123.602 limit the
authority of the Ombudsman Section to conduct “private and confidential interview(s]” with
“mentally retarded” persons to those instances when a formal complaint has been filed. This
Magistrate disagrees. “A basic rule of statutory construction [is] that words in statutes should not
be construed to be redundant, nor should any words be ignored.””” Under R.C. 5123.601(B), the
Ombudsman Section has authority to “conduct investigations for the purposes of resolving and
mediating...any deficiencies which come to its attention concerning any activity...it determines is
adversely affecting or may adversely affect the health, safety...of any mentally retarded...person.”
Under R.C. 5123.602, “in the course of conducting an investigation in accordance with
division (B) of section 5123.601 [5123.60.1] of the Revised Code, the [Ombudsman] section
shall have ready access to the premises and records of all providers of services to mentally

retarded...persons and shall have the right to communicate in a private and confidential

setting with any mentally retarded...persons.” To adopt Defendant’s argument would be to

a Bold emphasis added. Italics in original.

» In Re Andrews, 2008 Ohio 4791, *P6 (citing E. Ohio Gas Co. V. Pub. Util.
Comm. (1989) 39 Ohio St. 3d 295, 299).

-15-ignore these portions of the applicable statutes-something which this Magistrate is reticent to do.

Accordingly, this Magistrate concludes, as a matter of law, that the Plaintiff, by and
through its ombudsman, Ms. Wilson, had jurisdiction and authority to demand that the Defendant
permit an interview of J.R. at its facility, even though no “formal complaint” had been filed.

c. Defendant has violated R.C. 5123.604 by failing to comply with Plaintiff's
lawful demand, pursuant to R.C. 5123.602 and/or R.C.5123.60(E), to
immediately interview J.R. in a private and confidential setting. The
reasonableness of Defendant’s actions is immaterial.

Defendant argues that it did not violate R.C. 5123.604(B) because it was reasonable to
refuse an immediate private and confidential meeting with J.R. when his “guardian” refused to
consent to such meeting. In effect, Defendant argues that the reasonableness of its denial is a
defense. This argument fails under the plain language of the governing statutes.

R.C. 5123.604(B) provides in pertinent part:

No person shall knowingly interfere with lawful actions of the ombudsperson section,

refuse entry to its representatives, fail to comply with its lawful demands, or offer any

compensation, gratuity, or promise thereof in an effort to influence the outcome of any
matter being considered by the section.”
Having already determined that the demands of Ms. Wilson, the ombudsman, were “lawful,” in
that she had authority to request a private and confidential meeting with J.R. despite the fact that
no “formal complaint” had been filed, the Magistrate must now consider whether her demand

that such interview be conducted immediately was “lawful.” In other words, the Magistrate must

determine whether, as a matter of law, the Defendant was required to permit an immediate

” Emphasis added.

-16-interview with J.R., despite the fact that Ms. Wilson did not pre-arrange the interview and despite

the fact that Ms. Ditmer (J.R.’s “guardian” or “guardian ad litem’) did not consent. In order to

make this determination, the Magistrate relies upon R.C. 5123.60(E) and R.C. 5123.602.

As noted supra, under R.C. 5123.602, “in the course of conducting an investigation ...,

the [Ombudsman] section shall have ready access to the premises and records of all providers

of services to mentally retarded...persons and shall have the right to communicate ina private

and confidential setting with any mentally retarded...persons.”*’ The Ombudsman Section is

a subsection of the Legal Rights Service®? R.C. 5123.60(E) provides:

3

2

The legal rights service shall be completely independent of the department of mental
health and the department of mental retardation and developmental disabilities and,
notwithstanding section 109.02 of the Revised Code, shall also be independent of the
office of the attorney general. The administrator of the legal rights service, staff, and
attorneys designated by the administrator to represent persons detained, hospitalized, or
institutionalized under this chapter or Chapter 5122. of the Revised code shall have
ready access to the following:

ql) During normal business hours and at other reasonable times, all records...

(2) Any records maintained in computerized data banks of the departments or
boards...

(3) During their normal working hours, personnel of the departments,
facilities, boards, agencies, institutions, hospitals, and other service-
providing entities;

(4) at any time, all persons detained, hospitalized, or institutionalized;
persons receiving services under this chapter or Chapter 340., 51119.,

Emphasis added.

See R.C. 5123.601(B): “There is hereby created within the legal rights service the
ombudsman section.

-17-5122., or 5126. of the Revised Code; and persons who may be3
represented by the service pursuant to division (L) of this section.

(5) Records of a community residential facility...and mental health services, or
acontract agency of a county board of mental retardation and
developmental disabilities with one of the following consents:

(a) The consent of the person, including when the person is a minor or
has been adjudicated incompetent;

(b) The consent of the person’s guardian of the person, if any, or the
parent if the person is a minor;

(c) No consent, if the person is unable to consent for any reason, and
the guardian of the person, if any, or the parent of the minor, has
refused to consent or has not responded to a request for the consent
and either of the following has occurred:

(i) A complaint regarding the person has been received by the
legal rights service;

(ii) the legal rights service has determined that there is probable
cause to believe that such person has been subjected to
abuse or neglect.”

“In Ohio it is a settled principle of statutory construction that words used in a statute are

to be given their plain and ordinary meaning, unless the legislative intent indicates otherwise.”**

The Court of Appeals for the Second District, Montgomery County, has “recognized...two

methods whereby a court may ascertain whether a word used within a statute caries a meaning

3 Emphasis added.

“ Shields y. Dayton Board of Education, 1984 Ohio App. LEXIS (2" Dist. Court of

Appeals, Montgomery County) at *6 (citing Lake County National Bank v.
Kosydar, (1973) 36 Ohio St. 2d 189; In re Appropriation for Hwy. Purposes.

(1969) 18 Ohio St. 2d 214.)

-18-other than its plain and ordinary meaning: ‘One is by the use of an explicit statutory definition of
the word...’... ‘[T]he other is by ascertaining that an adherence to the plain and ordinary meaning
of the word would defeat the legislative purpose in the enactment of the statute. In the latter case
‘the strict letter of an act must...yield to its evidence spirit and purpose.” Additionally, the .
Court of Appeals for the Second District has stated that “the comerstone of statutory construction
is legislative intention,” and in determining such intention, courts “look to language employed
and to the purpose to be accomplished.” Finally, “it is well-established that in ascertaining the
legislative intent of a statute, it is the duty of [the] court to give effect to the words used [in the
* statute], not to delete words used or to insert words not used.”?”

Again, the Ombudsman Section is a subsection of the Legal Rights Service.** Therefore,
members of the Ombudsman Section are part of the “staff” of the legal rights service.” As part
of the staff of the Legal Rights Service, the individual ombudsman (in this case, Ms. Wilson)

“shall have ready access to...at any time, all persons detained, hospitalized, or

institutionalized,” which would, of course, include J.R., who was institutionalized at Defendant’s

8 Id. at *6 (quoting Fleischman Construction Co. v. United States (1926) 270 U.S.
349, 360; and citing Cochrel v. Robinson (1925) 113 Ohio St. 526.)

6 Id. at *6-*7 (citing State ex rel, Francis v. Sours (1944) 143 Ohio St. 120, 124).
7 Id. at *7 (citing Dougherty v, Torrence (1982) 2 Ohio St. 3d 69, 70).

3% See R.C. 5123.601(B): “There is hereby created within the legal rights service the
ombudsman section.

» As the term “staff” is used in R.C. 5123.60(E).

-19-facility.” More specifically, Ms. Wilson, shall have ready access to the premises and records
of all providers of services to mentally retarded...persons and shall have the right to
communicate in a private and confidential setting with any mentally retarded...persons.”"!
If the legislature had meant to restrict Plaintiff's access (or the access of its ombudsmen)
to “persons...institutionalized,” such as J.R., then presumably it would have so stated. For
example, Plaintiffs access to records is limited to “during normal business hours,” and
Plaintiff's access to personnel is timited to “during their normal working hours.” The legislature
placed no such time restrictions on Plaintiff's ability to meet with institutionalized persons such
as J.R. Additionally, for example, Plaintiff's access to records sometimes requires consent—of
the person, a parent, a guardian, etc. Again, the legislature placed no such consent requirements
on Plaintiff's ability to meet with institutionalized persons such as J.R., whether in a private and
confidential setting or otherwise.” The Legislature clearly stated that Plaintiff's “staff” may
meet with persons like J.R. “at any time,” and that a staff member shall have “ready access” to

such persons.

9 RC. 5123.60(E).

a Emphasis added.

a Of course, J.R. himself was free to refuse to meet with Ms. Wilson, pursuant to

R.C. 5123.62, which provides that, as a “mentally retarded person,” he has the
“right to communicate freely with persons of [his] choice in any reasonable
manner [he] choose[s].” However, the undisputed facts indicate that J.R. was
willing to meet with Ms. Wilson in a private and confidential setting at the time of
her initial request.

-20-What does “ready” access mean? Because, as discussed supra, words in a statute are to
be given their “plain and ordinary meaning,” it is appropriate to consider the dictionary definition
of “ready.” Webster’s Ninth New Collegiate Dictionary defines “ready” as follows:

ready...adj readi.er; -est...1 a : prepared mentally or physically for some experience or

action b : prepared for immediate use  2 a (1) : willingly disposed:

INCLINED <~ to agree to his proposal> (2): likely to do something indicated  b : spontaneously prompt 3 : notably dexterous, adroit, or

skilled  4 : immediately available  syn see QUICK -

readiness 7...

Given these definitions, one may ascertain that by “ready access,” the Legislature meant that the
ombudsman must have “immediately available” access or “spontaneously prompt” access to
residents such as J.R. Because such “ready” access was denied, as a matter of law, Defendant
violated R.C. 5123.604 (B) by failing to “comply with [Ms. Wilson’s] lawful demands.”

Defendant may question whether the term “ready access” carries a meaning other than its
“plain and ordinary meaning.” The purpose of Chapter 5123.60 ef seq is to “protect and advocate
the rights of mentally...retarded persons.” This purpose is best furthered by interpreting “ready
access” to have its “plain and ordinary” meaning, i.e. “immediate access.” By granting
“immediate access” to “mentally retarded” persons like J.R., Plaintiff and its Ombudsman
Section are best able to protect such persons. The purpose of the statutes does not support a

different reading of the term “ready access.” Again, because such access was denied, as a matter

of law, Defendant violated R.C. 5123.604.

a

Emphasis added.

-21-D. Because the applicable statutes do not require consent before “staff” of the
Legal Rights Service may meet with “mentally retarded persons” in a
“private and confidential setting,” it is immaterial whether Ms. Ditmer was
J.R.’s “guardian” or his “guardian ad litem.”

In briefing the issues herein, a question was raised as to the status of Ms. Ditmer, who
was appointed by the Preble County Probate Court to act as “guardian ad litem” of J.R. for the
purpose of admitting J.R. to Defendant’s facility, and “in order to ensure his best interests are
met and to avoid misrepresentation by [J.R.’s] mother that she is his guardian.” Plaintiff argues
that a guardian ad litem, as opposed to a guardian appointed by the court upon adjudication of a
ward’s incompetence, has limited powers which do not include the ability to confer or withhold
consent for visitation with an Ombudsman.

In reviewing the documents of record in the Preble County Probate Court, this Magistrate
determines that there is an issue of fact as to the extent of Ms. Ditmer’s powers as “guardian ad
litem.” However, this issue of fact is not material because this Magistrate has concluded, supra,
that lack of a guardian’s (or guardian ad litem’s) consent is not a defense to the lawful demand

of an ombudsman to meet with a mentally retarded person in a private and confidential setting.

Regardless of a guardian’s (or guardian ad litem’s) consent or lack thereof, a facility such as

“ See Entry and Order dated January 18, 2008, and attached to Defendant’s
“Consolidated Memorandum...in Opposition to Plaintiff's Cross Motion for
Summary Judgment and in Support of Defendant’s Motion for Declaratory and
Summary Judgment,” as an exhibit to the affidavit of Lyle B. Brown.

“ Under the wording of the documents, the Preble County Probate Court arguably
intended Ms. Ditmer’s responsibilities to J.R. to be broader than those of a typical
guardian ad litem.

-22-Defendant has no right to refuse to comply with the lawful demands of the ombudsman. Such a
tuling is necessary to promote the purpose of the statutes at issuc-i.c. protection of vulnerable
persons. In certain situations, requiring the consent of a guardian (or guardian ad litem) might
thwart the goals of the Legal Rights Services, such as when the guardian is related to, or is the
alleged abuser of the protected person. As noted supra, this Magistrate concludes, as a matter of
law, that lack of consent (either from a “guardian” who has been appointed after adjudication of a
ward’s incompetence, or from a “guardian ad litem”) is not a defense to an action against a
facility for failure to comply with the lawful demands of an ombudsman. Therefore, the question
of Ms. Ditmer’s status is immaterial.

E. Having determined that there are no genuine issues of material fact and that,
as a matter of law, Defendant has violated R.C. 5123.604(B) by failing to
comply with Plaintiff's request for an immediate private and confidential
interview of J.R., the Magistrate concludes that Plaintiff is entitled to
damages pursuant to R.C. 5123.99. As a matter of law, Plaintiff may not
recover attorney fees and an award of statutory damages in the amount of
one hundred dollars ($100.00) is appropriate.

As noted above, as a matter of law, Defendant violated R.C. 604(B) by “fail[ing] to
comply with [Plaintiffs] lawful demands” to interview J.R. immediately in a private and
confidential setting on February 5, 2008. It is undisputed that a request to interview J.R. was
made by the Plaintiff to the Defendant on only this one occasion. It is also undisputed that
Defendant allowed Plaintiff to interview J.R. in a private and confidential setting on March 10,
2008, after Ms. Ditmer consented to the interview. Additionally, while Plaintiff was waiting to

interview him, J.R. was in a safe setting-Defendant’s facility. Defendant’s facility was not the

target of Plaintiff's investigation and (according to Preble County Probate Court documents) J.R.

-23-was not permitted to have unsupervised meeting with the target of the investigation-his mother.
Finally, while it is not a defense, the parties do agree that Defendant’s refusal was based upon the
instructions of Ms. Ditmer. Keeping these undisputed facts in mind, the Magistrate must
consider what damages, if any, are recoverable as a matter of law.

R.C. 5123.99 provides in pertinent part that “[w]hoever violates division (B) of section
5123.604(B) of the Revised Code shall be fined not more than one thousand dollars. Each
violation constitutes a separate offense.” Having determined that the undisputed facts support a
finding of only one offense, the Magistrate concludes as a matter of law that Plaintiff's damages
under R.C. 5123.99 may not exceed one thousand dollars ($1,000.00). For the reasons set out
above, the Magistrate does not find Defendant’s violation to be aggravated. Consequently, the
Magistrate finds, as a matter of law, that an award of one hundred dollars ($100.00) in statutory
damages is appropriate for the conduct found herein.

With respect to attorney fees, this Magistrate agrees with Defendant that Plaintiff is
“barred from recovering attorney fees in this declaratory judgment action because it has not: (1)
cited a statute authorizing such an award on a declaratory judgment action; or (2) alleged any
frivolous conduct by, or sought punitive or exemplary damages from [Defendant].”"° Therefore,
no evidence need be presented at a hearing regarding attorney fees because attorney fees are not

recoverable herein as a matter of law.

“6 See p. 15 of Defendant’s “Consolidated Memorandum...” filed on July 25, 2008,
wherein Defendant cites R.C. 2721.16(A)(1)(a)-(b) and Pasco v. State Auto. Mut.
Ins. Co., Franklin App. No. 04 Ap-696, 2005 Ohio 2387 at paragraph 18.

-24-II. MAGISTRATE’S DECISION
WHEREFORE, the Magistrate decides:
1) That the Plaintiff's Motion for Partial Summary Judgment be GRANTED;

2) That the Defendant’s Motion for Declaratory and Summary Judgment be
DENIED;

3) That judgement be entered in favor of the Plaintiff and against the Defendant in
the amount of one hundred dollars ($100.00)

4) That Defendant is permanently enjoined from withholding the right of Plaintiff to
communicate in a private and confidential setting with J.R. in the future.

5) That Defendant be responsible for the court costs of the action.
The parties are referred to Civil Rule 53 and Rule 2.31 of the Rules of the Montgomery

County Common Pleas Court regarding the filing of objections to the Magistrate’s Decision.

Pursuant to Civil Rule 53, either party may file objections to this Magistrate’s Decision within

fourteen (14) days of the time stamped date of this entry.

Except for a claim of plain error, a party shall not assign as error on appeal the court’s

adoption of any factual finding or legal conclusions, whether or not specifically designated as a

finding of fact or conclusion of law under Civil Rule $3(D)(3)(a)(ii), unless the party has

objected to that finding or conclusion as required by Civil Rule 53(D)(3)(b).

Da SSSA

MAGISTRATE DAVID H. FUCHSMAN

-25-Copies of the above were sent to all parties listed below by ordinary mail this date of filing.

Michelle F. Atkinson
Ronald L. Smith

Ohio Legal Rights Service
50 West Broad Street
Suite 1400

Columbus, Ohio

(614) 466-7264

Attorneys for Plaintiff

Alan E. Schabes

Jennifer M. Turk

Benesch Friedlander Coplan & Aronoff, LLP
41 South High, suite 2600

Columbus, Ohio 43215

(514) 223-9300

Attorneys for Defendant

Magistrate’s Office (937) 225-4168

-26-