[Cite as Linder v. Ohio Dept. of Aging, 2022-Ohio-177.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ILANA LINDER, : APPEAL NO. C-210247 TRIAL NO. A-1903952 Appellant-Appellant, :
vs. : O P I N I O N.
OHIO DEPARTMENT OF AGING, :
Appellee-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 26, 2022
Ilana Linder, pro se,
David Yost, Ohio Attorney General, Angela M. Sullivan, Assistant Attorney General, and Theresa R. Dirisamer, Assistant Attorney General, for Appellee Ohio Department of Aging. OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Ilana Linder, pro se, appeals the order of the Hamilton County Court
of Common Pleas dismissing on mootness grounds Linder’s administrative appeal of
the Ohio Department of Aging’s (“ODA”) decision denying Linder’s application to
become a provider for an ODA administered program. The record demonstrates that
ODA certified Linder as a provider during the pendency of the administrative appeal
and that any decision by the lower court on the merits of Linder’s appeal could not
afford Linder any additional relief. Consequently, we affirm.
Background Facts and Procedure
{¶2} In January 2019, Linder applied to become a Choices Home Care
Attendant provider for the ODA administered Medicaid waiver program PASSPORT.
ODA denied her application due to her failure to participate in an in-person
precertification review. Linder appealed that decision to the court of common pleas
under R.C. 119.12, arguing that former Ohio Adm. Code 173-39-03(B)(4), which was
in effect at the time of the application, did not require an in-person precertification
review.
{¶3} While Linder’s administrative appeal was pending in the common
pleas court, Linder submitted a second application to ODA and obtained the sought
after certification from the ODA. Her second application was governed by an
amended version of the code that changed the challenged language, thereby
specifically requiring an in-person precertification review for the provider type at
issue.
{¶4} As a result of these subsequent events, ODA filed a motion to dismiss
the administrative appeal as moot. ODA’s initial motion relied solely on Linder’s
2 OHIO FIRST DISTRICT COURT OF APPEALS
reapplication. But ODA later supplemented the motion to dismiss with evidence
demonstrating that Linder had been certified as a provider in Ohio and was
providing services under a PASSPORT provider agreement. ODA argued the action
no longer met the jurisdictional requirement of a justiciable matter.
{¶5} ODA explained that various legal provisions including R.C. 173.39(B)
precluded reimbursement to Linder for any preapproval services Linder may have
provided to a Medicaid patient. Under the law, the only exception to reimbursement
pertained to providers who prior to performing services had a contract with the ODA
or its designee, or those who had received a grant to perform the services, see R.C.
173.392(A), neither of which applied to Linder. Thus, ODA argued the appeal had
been rendered moot by the subsequent approval because the common pleas court
could afford Linder no further relief.
{¶6} Linder opposed ODA’s initial motion to dismiss the administrative
appeal. She claimed her appeal was not moot even if she obtained certification
because the court could order reimbursement for services she may have provided
before obtaining the necessary certification. Linder, however, did not provide any
legal authority allowing such reimbursement.
{¶7} About nine months after ODA supplemented its motion to dismiss,
the common pleas court granted ODA’s motion and dismissed the appeal on
mootness grounds. Linder timely appealed that decision to this court. In one
assignment of error, Linder argues the common pleas court erred by dismissing her
administrative appeal under the mootness doctrine.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Mootness Doctrine
{¶8} Ohio’s Constitution sets forth the fundamental limitations on the
jurisdiction of the common pleas courts. See State ex rel. Barclays Bank PLC v.
Court of Common Pleas, 74 Ohio St.3d 536, 660 N.E.2d 458 (1996). Section 4(B),
Article IV of the Ohio Constitution vests the common pleas courts with “such original
jurisdiction over all justiciable matters * * * as may be provided by law.” This
justiciability requirement involves deciding “ ‘actual controversies between parties
legitimately affected by specific facts and render[ing] judgments which can be
carried into effect.’ ” State ex rel. Barclays Bank PLC at 542, quoting Fortner v.
Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970).
{¶9} This case involves an administrative appeal. An actual case or
controversy must exist at all stages of appellate review. See State ex rel. Cincinnati
Enquirer v. Hunter, 141 Ohio St.3d 419, 2014-Ohio-5457, 24 N.E.3d 1170; In re
Bailey, 1st Dist. Hamilton Nos. C-040014 and C-040479, 2005-Ohio-3039. A
reviewing court “need not render an advisory opinion on a moot question or rule on a
question of law that cannot affect matters at issue in a case.” In re Bailey at ¶ 9. This
includes where the controversy has become “hypothetical, academic [and] dead.”
(Citation omitted.) State ex rel. Cincinnati Enquirer at ¶ 6.
{¶10} When a case becomes “technically moot” due to an event occurring
after filing, the court should dismiss it unless the court in its discretion determines a
mootness-doctrine exception warrants further consideration of an issue. See, e.g.,
Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d 28, 31, 505 N.E.2d 966
(1987); James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 791, 600 N.E.2d 736
(10th Dist.1991).
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Generally, an administrative appeal is moot as a matter of law where
the record demonstrates the appellant has achieved all the relief the court could
afford her with regard to the matters on appeal. See Soltesz v. Ohio Dept. of Job &
Family Servs., 10th Dist. Franklin No. 19AP-444, 2020-Ohio-365, ¶ 13. Where an
administrative appeal can restore rights of the appellant, the appeal is not academic
and, therefore, it is not moot. See Artists & Writers Assn. v. State Dept. of Liquor
Control, 96 Ohio App. 121, 125-127, 121 N.E.2d 263 (10th Dist.1953). This case,
however, does not involve the restoration of rights such as the escrowed liquor
license at issue in Artists & Writers Assn.
{¶12} Linder argues her administrative appeal is not academic, even though
she has now been approved and the challenged code provision amended, because she
was denied a significant source of income before her approval. This argument,
however, does not overcome the lack of redressability, because the record
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[Cite as Linder v. Ohio Dept. of Aging, 2022-Ohio-177.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
ILANA LINDER, : APPEAL NO. C-210247 TRIAL NO. A-1903952 Appellant-Appellant, :
vs. : O P I N I O N.
OHIO DEPARTMENT OF AGING, :
Appellee-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 26, 2022
Ilana Linder, pro se,
David Yost, Ohio Attorney General, Angela M. Sullivan, Assistant Attorney General, and Theresa R. Dirisamer, Assistant Attorney General, for Appellee Ohio Department of Aging. OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Ilana Linder, pro se, appeals the order of the Hamilton County Court
of Common Pleas dismissing on mootness grounds Linder’s administrative appeal of
the Ohio Department of Aging’s (“ODA”) decision denying Linder’s application to
become a provider for an ODA administered program. The record demonstrates that
ODA certified Linder as a provider during the pendency of the administrative appeal
and that any decision by the lower court on the merits of Linder’s appeal could not
afford Linder any additional relief. Consequently, we affirm.
Background Facts and Procedure
{¶2} In January 2019, Linder applied to become a Choices Home Care
Attendant provider for the ODA administered Medicaid waiver program PASSPORT.
ODA denied her application due to her failure to participate in an in-person
precertification review. Linder appealed that decision to the court of common pleas
under R.C. 119.12, arguing that former Ohio Adm. Code 173-39-03(B)(4), which was
in effect at the time of the application, did not require an in-person precertification
review.
{¶3} While Linder’s administrative appeal was pending in the common
pleas court, Linder submitted a second application to ODA and obtained the sought
after certification from the ODA. Her second application was governed by an
amended version of the code that changed the challenged language, thereby
specifically requiring an in-person precertification review for the provider type at
issue.
{¶4} As a result of these subsequent events, ODA filed a motion to dismiss
the administrative appeal as moot. ODA’s initial motion relied solely on Linder’s
2 OHIO FIRST DISTRICT COURT OF APPEALS
reapplication. But ODA later supplemented the motion to dismiss with evidence
demonstrating that Linder had been certified as a provider in Ohio and was
providing services under a PASSPORT provider agreement. ODA argued the action
no longer met the jurisdictional requirement of a justiciable matter.
{¶5} ODA explained that various legal provisions including R.C. 173.39(B)
precluded reimbursement to Linder for any preapproval services Linder may have
provided to a Medicaid patient. Under the law, the only exception to reimbursement
pertained to providers who prior to performing services had a contract with the ODA
or its designee, or those who had received a grant to perform the services, see R.C.
173.392(A), neither of which applied to Linder. Thus, ODA argued the appeal had
been rendered moot by the subsequent approval because the common pleas court
could afford Linder no further relief.
{¶6} Linder opposed ODA’s initial motion to dismiss the administrative
appeal. She claimed her appeal was not moot even if she obtained certification
because the court could order reimbursement for services she may have provided
before obtaining the necessary certification. Linder, however, did not provide any
legal authority allowing such reimbursement.
{¶7} About nine months after ODA supplemented its motion to dismiss,
the common pleas court granted ODA’s motion and dismissed the appeal on
mootness grounds. Linder timely appealed that decision to this court. In one
assignment of error, Linder argues the common pleas court erred by dismissing her
administrative appeal under the mootness doctrine.
3 OHIO FIRST DISTRICT COURT OF APPEALS
Mootness Doctrine
{¶8} Ohio’s Constitution sets forth the fundamental limitations on the
jurisdiction of the common pleas courts. See State ex rel. Barclays Bank PLC v.
Court of Common Pleas, 74 Ohio St.3d 536, 660 N.E.2d 458 (1996). Section 4(B),
Article IV of the Ohio Constitution vests the common pleas courts with “such original
jurisdiction over all justiciable matters * * * as may be provided by law.” This
justiciability requirement involves deciding “ ‘actual controversies between parties
legitimately affected by specific facts and render[ing] judgments which can be
carried into effect.’ ” State ex rel. Barclays Bank PLC at 542, quoting Fortner v.
Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970).
{¶9} This case involves an administrative appeal. An actual case or
controversy must exist at all stages of appellate review. See State ex rel. Cincinnati
Enquirer v. Hunter, 141 Ohio St.3d 419, 2014-Ohio-5457, 24 N.E.3d 1170; In re
Bailey, 1st Dist. Hamilton Nos. C-040014 and C-040479, 2005-Ohio-3039. A
reviewing court “need not render an advisory opinion on a moot question or rule on a
question of law that cannot affect matters at issue in a case.” In re Bailey at ¶ 9. This
includes where the controversy has become “hypothetical, academic [and] dead.”
(Citation omitted.) State ex rel. Cincinnati Enquirer at ¶ 6.
{¶10} When a case becomes “technically moot” due to an event occurring
after filing, the court should dismiss it unless the court in its discretion determines a
mootness-doctrine exception warrants further consideration of an issue. See, e.g.,
Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d 28, 31, 505 N.E.2d 966
(1987); James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 791, 600 N.E.2d 736
(10th Dist.1991).
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Generally, an administrative appeal is moot as a matter of law where
the record demonstrates the appellant has achieved all the relief the court could
afford her with regard to the matters on appeal. See Soltesz v. Ohio Dept. of Job &
Family Servs., 10th Dist. Franklin No. 19AP-444, 2020-Ohio-365, ¶ 13. Where an
administrative appeal can restore rights of the appellant, the appeal is not academic
and, therefore, it is not moot. See Artists & Writers Assn. v. State Dept. of Liquor
Control, 96 Ohio App. 121, 125-127, 121 N.E.2d 263 (10th Dist.1953). This case,
however, does not involve the restoration of rights such as the escrowed liquor
license at issue in Artists & Writers Assn.
{¶12} Linder argues her administrative appeal is not academic, even though
she has now been approved and the challenged code provision amended, because she
was denied a significant source of income before her approval. This argument,
however, does not overcome the lack of redressability, because the record
demonstrates Linder had achieved all the relief that the court could have afforded
her with regard to the matters on appeal.
Exceptions to the Mootness Doctrine
{¶13} As previously stated, a court may exercise discretion to address on the
merits a “technically moot” case if a mootness-doctrine exception applies. See, e.g.,
Franchise Developers, 30 Ohio St.3d at 31, 505 N.E.2d 966. Linder now argues
exceptions to the mootness doctrine apply, including the exception for adverse
collateral consequences and the exception for important constitutional questions.
See id.; Brown v. City of Dayton, 2d Dist. Montgomery No. 24900, 2012-Ohio-3493.
ODA contends Linder waived these arguments by failing to raise them in the lower
court when opposing the motion to dismiss.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Linder’s reply brief contains no citation to her assertion of these
arguments in the lower court, and our review of the record demonstrates Linder did
not present them to the court below. Granted, ODA first moved for dismissal of the
administrative appeal when Linder reapplied for provider certification, instead of
waiting until the department approved her certification. The latter event is the
dispositive action rendering the administrative appeal moot. But ODA
supplemented its motion to dismiss with evidence of, and arguments related to,
Linder’s subsequent approval. The lower court did not rule on ODA’s motion to
dismiss for more than eight months after that supplemental filing. Thus, Linder had
ample time to bring the mootness-doctrine-exception arguments to the attention of
the lower court.
{¶15} Because Linder did not present the mootness-doctrine-exception
arguments in the lower court, she forfeited her right to raise them for the first time
on appeal. See, e.g., Ditech Fin., LLC v. Balimunkwe, 1st Dist. Hamilton No. C-
180445, 2019-Ohio-3806, ¶ 11, quoting State ex rel. Zollner v. Indus. Comm., 66
Ohio St.3d 276, 278, 611 N.E.2d 830 (1993) (“[A] party who fails to raise an
argument in the court below waives his or her right to raise it [on appeal].”); U.S.
Bank Natl. Assn. v. Broadnax, 1st Dist. Hamilton No. C-180650, 2019-Ohio-5212, ¶
13; Carlson v. City of Cincinnati, 1st Dist. Hamilton No. C-190631, 2020-Ohio-4685,
¶ 33 (“Except for claims of plain error, the failure to raise an issue at the trial-court
level acts as a waiver of the issue on appeal.”). Moreover, Linder does not argue the
plain-error doctrine applies. Thus, this court considers these new arguments waived.
6 OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶16} The common pleas court did not err by dismissing Linder’s
administrative appeal on mootness grounds. Accordingly, we overrule the
assignment of error and affirm the lower court’s judgment.
Judgment affirmed.
CROUSE, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.