In re Seltzer - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of Ohio
are being transmitted electronically beginning May 27, 1992,
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Moyer.
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Official Reports.

In re Seltzer.
[Cite as In re Seltzer (1993), Ohio St.3d .]
Administrative procedure -- Workers' compensation -- Suspension
issued pursuant to R.C. 4121.44(R) not subject to judicial
review under R.C. Chapter 119.
Orders of the Administrator of the Bureau of Workers'
Compensation, issued pursuant to R.C. 4121.44(R),
are not subject to judicial review under the Administrative
Procedure Act, R.C. Chapter 119.
(No. 92-1400 -- Submitted June 1, 1993 -- Decided
September 1, 1993.)
Appeal from the Court of Appeals for Franklin County, No.
91AP-677.
On February 1, 1991, appellant, the Administrator of the
Bureau of Workers' Compensation ("bureau"), issued an order,
titled "adjudication order," to appellee, Dr. Gerard Seltzer. The
order notified Seltzer that as of March 8, 1991, the bureau and
self-insuring employers would no longer pay Seltzer for services
and supplies he provided to bureau claimants. The order stated
that the bureau had been informed by the Ohio Department of Human
Services ("ODHS") that Seltzer's provider agreement with ODHS had
been terminated effective October 27, 1983. The order also stated
that Seltzer had previously been given an opportunity to appeal
the termination to ODHS. Seltzer filed a notice of appeal from the
bureau's order, pursuant to R.C. 119.12, with the bureau and the
Franklin County Court of Common Pleas.
On March 5, 1991, the administrator sent two new letters to
Seltzer. The first letter informed Seltzer that the February 1,
1991 order was rescinded and referred to an enclosed new letter
suspending Seltzer effective April 9, 1991. The second letter
notified Seltzer that the bureau had been informed that Seltzer
had been excluded from participation as a provider under the
federal Medicare and Medicaid programs "by reason of substandard
practice." The suspension letter indicated that pursuant to R.C.
4121.44(R) and Ohio Adm. Code 4123-07-41, Seltzer was suspended
from participation in the state workers' compensation system. The
order also stated that the suspension became "effective without a
hearing pursuant to R.C. 4121.44(R) and since you have been

afforded due process under the federal programs as set forth in
the attached order of 10-27-83 from the U.S. Department of Health
and Human Services." The letter also informed Seltzer that the
period of time for the bureau suspension coincided with the
remaining period of the suspension by the federal government,
until 1998, and that he could apply for reinstatement when
eligible.
Attached to the March 5 order was a letter dated October 27,
1983, from the Office of the Inspector General of the United
States Department of Health and Human Services. The letter
indicated that Seltzer had been notified of his proposed exclusion
from participation in the Medicare program, that Seltzer had
submitted evidence in opposition to the proposed exclusion, and
that the agency still intended to exclude Seltzer from
participating in the Medicare program. Included in the notice was
the finding that Seltzer "furnished items and services that are
substantially in excess of the beneficiary's needs and/or a
quality that does not meet professionally recognized standards of
care." Attached to the notice of exclusion letter, and
incorporated by reference, was a nine-page document titled "Final
Decision -- Exclusion of Gerard Seltzer, M.D. ***" In addition to
discussing a number of billing violations, the decision concluded
that "[t]he records contained in Dr. Seltzer's file from 1978
forward are sufficient to establish that he has furnished services
that were unnecessary, potentially harmful, and of a quality that
does not meet professionally recognized standards of health
care."
Seltzer amended his notice of appeal to include the new
suspension order. The trial court stayed execution of the
suspension pending final disposition of the case.
The bureau filed a motion to dismiss, claiming the trial
court lacked jurisdiction over the appeal. The trial court found
that the administrator's act did not constitute an adjudication.
Instead, the court found the administrator's act to be merely a
ministerial act for which Seltzer had no right to appeal under
R.C. Chapter 119.
The court of appeals reversed the trial court. The court
found that the administrator's order was an "adjudication" within
the meaning of R.C. 119.01(D). As a result, the court found that
the common pleas court had jurisdiction to hear Seltzer's appeal.
The court also found that a proceeding which meets the definition
of "adjudication" under R.C. Chapter 119.12 also meets the
definition of a quasi-judicial proceeding over which the common
pleas courts have revisory jurisdiction as contemplated under
Section 4(B), Article IV of the Ohio Constitution.
This cause is now before this court pursuant to the allowance
of a motion to certify the record.

Walter, Haverfield, Buescher & Chockley, John H. Gibbon,
Kenneth A. Zirm and C. David Paragas, for appellee.
Lee Fisher, Attorney General, Cordelia Glenn and William J.
McDonald, Assistant Attorneys General, for appellant.

Wright, J. This case presents the issue of whether orders
issued by the Administrator of the Bureau of Workers' Compensation
pursuant to R.C. 4121.44(R) are subject to review under the
Administrative Procedure Act, R.C. Chapter 119. For the reasons

stated below we find that such orders are not subject to appellate
review pursuant to R.C. Chapter 119.
The Ohio Constitution provides for the creation of the courts
of common pleas. The Constitution, however, does not confer
jurisdiction on the courts. Rather, it provides that the grant of
jurisdiction must be conferred on the courts by the legislature.
Section 4(B), Article IV of the Constitution reads: "The courts
of common pleas and divisions thereof shall have such original
jurisdiction over all justiciable matters and such powers of
review of proceedings of administrative officers and agencies as
may be provided by law." (Emphasis added.)
The enactment of R.C. 119.12 conferred jurisdiction on the
common pleas courts to review certain adjudicatory orders rendered
by Ohio administrative agencies. R.C. 119.12 provides in part:
"*** Any party adversely affected by any order of an agency issued
pursuant to any other adjudication may appeal to the court of
common pleas of Franklin County ***." Therefore, the key question
presented by this appeal is whether a suspension issued by the
bureau under R.C. 4121.44(R) is an "order of an agency issued
pursuant to any other adjudication."
To answer this question it is helpful to consider the
legislative amendment to R.C. 4121.44 which became effective
November 3, 1989. (143 Ohio Laws, Part II, 3197, 3294-3297.) The
amendment included the addition of R.C. 4121.44(Q) and (R). Both
of these divisions relate to the suspension of health care
providers from participation in the treatment of workers'
compensation claimants. R.C. 4121.44(Q) requires the
administrator to "provide standards and procedures for the
determination of exclusion" (emphasis added), and "for the
suspension from participation" of health care providers who engage
in certain practices as part of the treatment of bureau
claimants. R.C. 4121.44(Q) specifically provides that the rules
"provide procedures for review and appeal, pursuant to Chapter
119. of the Revised Code." (Emphasis added.)
R.C. 4121.44(R) requires the administrator to "provide for
the suspension from participation in the treatment of workers'
compensation claimants any health care provider" (emphasis added)
whose agreement with ODHS has been terminated "as a result of a
determination, made pursuant to an adjudicatory hearing conducted
in accordance with Chapter 119. of the Revised Code ***." It also
requires that any health care provider who has been excluded from
the Medicare or Medicaid programs "by reason of substandard
practice, shall be suspended from participation in the treatment
of workers' compensation claimants." (Emphasis added.)
The differences between divisions (Q) and (R) are apparent.
Division (Q) requires the administrator to establish standards and
procedures to terminate and suspend health care providers.
Division (R) merely requires the administrator to provide for
suspensions which are automatic under two circumstances: (1) the
provider has been terminated by ODHS after an R.C. Chapter 119
proceeding, or (2) the provider has been terminated by the federal
government under the Medicaid or Medicare programs for substandard
care.
Under division (Q), the General Assembly specifically
included a right to review and appeal in compliance with R.C.
Chapter 119. The General Assembly did not include this appeal
provision in division (R). Instead, it appears that the General

Assembly intended a termination under division (R) to be a simple,
straightforward matter. The provider would have already had the
opportunity to challenge the charges against him or her in either
the R.C. Chapter 119 proceeding provided by ODHS or the hearing
and appeal procedures provided by the Social Security
Administration. This comparison of the language in divisions (Q)
and (R) leads us to conclude that the General Assembly did not
intend to allow orders issued under R.C. 4121.44(R) to be appealed
under R.C. Chapter 119.
Whether or not the General Assembly intended the orders
issued under division (R) to be appealable, Seltzer argues, and
the court of appeals found, that such orders are, in fact,
appealable because they are "adjudication" orders as defined in
R.C. 119.01(D). R.C. 119.01(D) provides: "'Adjudication' means
the determination by the highest or ultimate authority of an
agency of the rights, duties, privileges, benefits, or legal
relationships of a specified person, but does not include the
issuance of a license in response to an application with respect
to which no question is raised, nor other acts of a ministerial
nature." (Emphasis added.) We have defined a "ministerial act"
as "'*** one which a person performs in a given state of facts, in
a prescribed manner, in obedience to the mandate of legal
authority, without regard to or the exercise of his own judgment
upon the propriety of the act being done.'" Trauger v. Nash
(1902), 66 Ohio St. 612, 618, 64 N.E. 558, 559.
The court of appeals found that the administrator's decision
to issue the order against Seltzer was not a ministerial act. The
court reasoned that the administrator had to exercise discretion
in determining whether Seltzer's termination under the Medicare
program was "by reason of substandard practice" because that
actual phrase does not appear in the federal termination notice
and decision. In addition, Seltzer argues that two other factors
also reflect the exercise of discretion by the administrator: (1)
the decision to apply R.C. 4121.44(R) to Seltzer "retroactively,"
and (2) the determination that the procedures used by the federal
government in 1983 accorded Seltzer due process.
Seltzer argues that the administrator exercised discretion in
deciding to apply R.C. 4121.44(R) "retroactively" to providers
such as him, who were already suspended by the federal government
at the time division (R) was enacted. For support, he refers to
R.C. 1.48, which states: "A statute is presumed to be prospective
in its operation unless expressly made retrospective." He also
refers to the fact that "'[i]t is a well settled rule of law that
statutes should not receive a retroactive construction, unless the
intention of the legislature is so clear and positive as by no
possibility to admit of any other construction.'" Cincinnati v.
Seasongood (1889), 46 Ohio St. 296, 304, 21 N.E. 630, 633. We are
not persuaded by Seltzer's argument for two reasons: (1) the clear
language of the statute mandates its application to Seltzer, and
(2) the statute is being applied to Seltzer prospectively, not
retrospectively. R.C. 4121.44(R) states unequivocally: "*** any
health care provider who has been excluded" from the federal
programs "shall be suspended ***." (Emphasis added.) Seltzer was
a health care provider who had been excluded from the Medicare
program. Thus, the administrator did not exercise discretion in
deciding to suspend Seltzer -- the clear language of the statute
required it. Moreover, the statute is not being applied

retroactively. Seltzer is being suspended by the bureau only
prospectively for the balance of the term of the federal
suspension.
Likewise, we are not persuaded by Seltzer's argument that the
administrator exercised discretion in determining that the federal
review and appeal procedures afforded Seltzer due process. R.C.
4121.44(R) requires only that the administrator determine that a
health care provider has been excluded under either the Medicare
or Medicaid programs. The statute does not require that the
administrator review those proceedings to determine whether due
process was afforded. It was the General Assembly, not the
administrator, which decided that no Ohio review of the federal
proceedings was necessary because federal law provides notice,
hearings, and review prior to termination.1 Indeed, Seltzer does
not ever suggest that he was denied due process in the federal
proceedings.
With regard to Seltzer's and the court of appeals' conclusion
that the administrator exercised discretion in determining that
Seltzer was suspended from the federal program "by reason of
substandard practice," we must again disagree. The federal
termination decision contained the following language: "The
records *** are sufficient to establish that [Seltzer] has
furnished services that were unnecessary, potentially harmful, and
of a quality that does not meet professionally recognized
standards of health care." (Emphasis added.)
We find that the language contained in the federal decision
is sufficiently similar to the phrase "substandard practice" so as
not to require any discretion on the part of the administrator.
It is not realistic to expect that the language in the Ohio
statute will match exactly the language used in every instance by
the federal government. Here, the phrase used in the federal
decision, "does not meet professionally recognized standards of
health care," is so obviously equivalent to the phrase contained
in R.C. 4121.44(R), "substandard practice," that it did not
require discretion on the part of the administrator to determine
that Seltzer's suspension by the federal government necessitated
his suspension from the state workers' compensation program.
Having found that the administrator's decision to suspend a
provider under R.C. 4124.44(R) is a ministerial act, we conclude
that such a decision is not an "adjudication" as defined in R.C.
119.01(D). Therefore we hold that orders of the Administrator of
the Bureau of Workers' Compensation, issued pursuant to R.C.
4121.44(R), are not subject to judicial review under the
Administrative Procedure Act, R.C. Chapter 119.
Accordingly, we reverse the judgment of the court of appeals
and reinstate the decision of the trial court.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Douglas, Resnick and Pfeifer, JJ.,
concur.
F.E. Sweeney, J., dissents and would affirm.
FOOTNOTE:
1 As previously noted, a provider suspended by the
administrator because of an ODHS suspension must have been
afforded R.C. Chapter 119 review and appeal procedures as part of
the ODHS suspension. Thus, any provider suspended by the
administrator under R.C. 4121.44(R) will have already received due
process in the underlying suspension proceedings, either as part