Summary
holding that where an alleged duty has already been carried out, a writ of mandamus will not be granted to compel observance of the law generally
Summary of this case from State ex rel. Fenley v. Ohio Historical SocietyOpinion
No. 80-1740
Decided July 22, 1981.
Mandamus — To compel timely payment of Medicaid provider claims — Writ denied — Prospective relief requested.
IN MANDAMUS.
Pursuant to R.C. 5111.02, the Ohio Department of Public Welfare (ODPW) administers a state plan to provide medical assistance under Title XIX of the Social Security Act (Section 1396, Title 42, U.S. Code). Relators, Home Care Pharmacy, Inc., and Beeber Pharmacies, Inc., are engaged in the retail pharmaceutical business, and are parties to Medicaid provider agreements with ODPW. As providers under the Medicaid program, relators render services to qualified recipients and thereafter submit their claims for reimbursement to ODPW. Prior to reimbursement, ODPW must obtain certification from the Office of Budget and Management (OBM) that adequate cash is available for payment.
From September 1980, through February 1981, the state of Ohio experienced a cash flow problem. During this period, OBM instituted a policy whereby payment obligations were classified into "priority" and "nonpriority" categories. Except for nursing homes, payments to Medicaid providers were placed in the nonpriority category. The effect of this policy was that relators' reimbursements from the state, while delayed, were paid between 45 and 65 days after claims were received by ODPW. In May 1981, a similar cash flow problem arose and OBM instituted the same prioritizing practice.
Relators basically contend that this policy violates the provisions of Section 1396a(a)(37), Title 42, U.S. Code, and 42 C.F.R. 447.45(d). Consequently, relators instituted this action on behalf of themselves and a purported class of pharmaceutical Medicaid providers seeking an order compelling respondents, OBM and ODPW, to prioritize their claims in order that they be timely paid, and that interest be awarded on claims not timely paid.
Section 1396a, Title 42, U.S. Code, in part, provides:
"(a) A state plan for medicaid assistance must —
"***
"(37) provide for claims payment procedures which (A) ensure that 90 per centum of claims for payment (for which no further written information or substantiation is required in order to make payment) made for services covered under the plan and furnished by health care practitioners through individual or group practices or through shared health facilities are paid within 30 days of the date of receipt of such claims and that 99 per centum of such claims are paid within 90 days of the date of receipt of such claims, and (B) provide for procedures of prepayment and postpayment claims review, including review of appropriate data with respect to the recipient and provider of a service and the nature of the service for which payment is claimed, to ensure the proper and efficient payment of claims and management of the program;"
42 C.F.R. 447.45(d) provides, in pertinent part:
" Timely processing of claims. (1) The Medicaid agency must require providers to submit all claims no later than 12 months from the date of service.
"(2) The agency must pay 90 percent of all clean claims from practitioners, who are in individual or group practice or who practice in shared health facilities, within 30 days of the date of receipt.
"(3) The agency must pay 99 percent of all clean claims from practitioners, who are in individual or group practices or who practice in shared health facilities, within 90 days of the date of receipt.
"(4) The agency must pay all other claims within 12 months of the date of receipt, except in the following circumstances:***."
Messrs. Vorys, Sater, Seymour Pease, Mr. James H. Hedden and Mr. Eric R. Gilbertson, for relators.
Mr. William J. Brown, attorney general, Mr. David H. Beaver, Ms. Karen L. Nowak and Mr. Thomas V. Martin, for respondents.
While relators' complaint raises the issue of claims remaining unpaid from the prior fiscal crisis, no evidence has been provided to this court which supports a finding that any claims remain unpaid.
Essentially, relators argue since the prioritizing practice resulted in delayed payments during the prior fiscal crisis, that its implementation now, or in the future, will again result in delayed payments. Relators request issuance of a writ of mandamus requiring respondents to comply with Section 1396a(a)(37), Title 42, U.S. Code, and 42 C.F.R. 447.45(d), to insure that payments will not be delayed in the future.
Clearly relators request prospective relief. Mandamus will not lie to remedy the anticipated nonperformance of a duty.
"*** The function of mandamus is to compel the performance of a present existing duty as to which there is a default. It is not granted to take effect prospectively, and it contemplates the performance of an act which is incumbent on the respondent when the application for a writ is made." State, ex rel. Federal Homes Properties, Inc., v. Singer (1967), 9 Ohio St.2d 95, 96.
We find no present injury exists. Therefore, the writ relators request would do nothing more than order respondents to comply with an existing statute. It is well-established that "a writ of mandamus will not issue to compel the observance of law ***." State, ex rel. Kay, v. Fuerst (1951), 156 Ohio St. 188.
Relators further request that a writ of mandamus issue to compel respondents to pay interest on all claims that were delayed as a result of the last fiscal crisis. Relators contend they are entitled to this relief under the provisions of R.C. 2743.18(A). We disagree. This statute is part of the Court of Claims Act and is applicable only to actions brought in the Court of Claims. Therefore, "`[i]n the absence of a statute requiring it***interest cannot be adjudged against the state for delay in the payment of money.'" Lewis v. Benson (1979), 60 Ohio St.2d 66, 67, quoting from the fourth paragraph of the syllabus in State, ex rel. Parrott, v. Board of Public Works (1881), 36 Ohio St. 409.
For the foregoing reasons, relators' request for the issuance of a writ of mandamus is denied.
In view of our holding, we need not address relators' request to certify this cause as a class action.
Writ denied.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.