State ex rel. Home Care Pharmacy, Inc. v. Creasy, 80-1740

• Decision Date: 22 July 1981
• Docket Number: No. 80-1740,80-1740
• Citation: 67 Ohio St.2d 342,423 N.E.2d 482,21 O.O.3d 215
• Parties: , 21 O.O.3d 215 The STATE ex rel. HOME CARE PHARMACY, INC., et al. v. CREASY, Dir., et al.
• Court: Ohio Supreme Court

Page 342

67 Ohio St.2d 342

423 N.E.2d 482, 21 O.O.3d 215

The STATE ex rel. HOME CARE PHARMACY, INC., et al. v. CREASY, Dir., et al.

No. 80-1740.

Supreme Court of Ohio.

July 22, 1981.

Vorys, Sater, Seymour & Pease, James H. Hedden and Eric R. Gilbertson, Columbus, for relators.

William J. Brown, Atty. Gen., David H. Beaver, Karen L. Nowak and Thomas V. Martin, Asst. Attys. Gen., for respondents.

PER CURIAM.

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, 223 N.E.2d 824.

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, 101 N.E.2d 730.

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, 397 N.E.2d 396, 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. ²

Writ denied.

FRANK D. CELEBREZZE, C. J., and WILLIAM B. BROWN, PAUL W. BROWN, SWEENEY, LOCHER, HOLMES and CLIFFORD F. BROWN, JJ., concur.

1 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...