[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

Hulsmeyer v. Hospice of Southwest Ohio, Inc., Slip Opinion No. 2014-Ohio-5511.] 

NOTICE

This slip opinion is subject to formal revision before it is published in 

an advance sheet of the Ohio Official Reports. Readers are requested 

to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 

65 South Front Street, Columbus, Ohio 43215, of any typographical or 

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2014-OHIO-5511 

HULSMEYER, APPELLEE AND CROSS-APPELLANT, v. HOSPICE OF SOUTHWEST 

OHIO, INC., ET AL., APPELLANTS AND CROSS-APPELLEES. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as Hulsmeyer v. Hospice of Southwest Ohio, Inc., 

Slip Opinion No. 2014-Ohio-5511.] 

An employee or other person used to perform work or services who reports or 

indicates an intention to report suspected abuse or neglect of a long-termcare-facility or residential-care-facility resident is not required to report 

or indicate an intent to report the suspected abuse or neglect to the Ohio 

director of health in order to state a claim for retaliatory discharge under 

R.C. 3721.24. 

(Nos. 2013-1644 and 2013-1766—Submitted—Decided December 23, 2014.) 

APPEAL and CROSS-APPEAL from and CERTIFIED by the Court of Appeals for 

Hamilton County, No. C-120822, 2013-Ohio-4147. 

_________________ 

SYLLABUS OF THE COURT

An employee or other person used to perform work or services who reports or 

indicates an intention to report suspected abuse or neglect of a long-term-
Supreme Court of Ohio 

2

care-facility or residential-care-facility resident is not required to report or 

indicate an intent to report the suspected abuse or neglect to the Ohio 

director of health in order to state a claim for retaliatory discharge under 

R.C. 3721.24. 

____________________ 

KENNEDY, J. 

I. Introduction 

{¶ 1} In this opinion we address (1) a discretionary appeal by Hospice of 

Southwest Ohio, Inc. (“Hospice”), Joseph Killian, Hospice’s chief executive 

officer, and Brookdale Senior Living, Inc. (“Brookdale”), (2) a cross-appeal by 

Patricia Hulsmeyer, and (3) a certified-conflict case from the First District Court 

of Appeals. The certified conflict by the court of appeals is whether “an 

employee or another individual used by a person or government entity to perform 

work or services [must] report or indicate an intention to report suspected abuse 

or neglect of a nursing home resident to the Ohio Director of Health to state a 

claim for retaliation under R.C. 3721.24(A).” Appellants and cross-appellees 

assert the following proposition of law: “R.C. 3721.24 and 3721.22 are related 

statutes that should be read together and, when read together, a claim for 

retaliation under R.C. 3721.24 requires a person reporting suspected abuse or 

neglect to make that report to the Director of Health.” 

{¶ 2} On cross-appeal, Hulsmeyer asserts the following proposition of 

law: “If R.C. §3721.24 protects only employees or other persons who make 

reports of suspected abuse or neglect of a resident to the Director of Health, then 

persons who make such reports to an employer, to a family member of the 

resident, to law enforcement, or to other appropriate persons or entities must be 

permitted to assert claims for retaliation in violation of public policy.” 

{¶ 3} Initially, we address an issue regarding the certified question that 

was not raised by any party and does not change the outcome in this case but that 
January Term, 2014 

3

we believe needs to be addressed to ensure the clarity of our holding. The issue 

certified as being in conflict contemplates reporting suspected abuse or neglect of 

a “nursing home resident.” R.C. 3721.24 discusses reporting abuse of a 

“resident,” and “resident” is defined in R.C. 3721.21(F) as including “a resident, 

patient, former resident or patient, or deceased resident or patient of a long-term 

care facility or a residential care facility.” (Emphasis added.) Accordingly, we 

modify the issue certified as follows: 

Must an employee or another individual used by a person 

or government entity to perform work or services make a report 

or indicate an intention to report suspected abuse or neglect of a 

long-term-care-facility or a residential-care-facility resident to 

the Ohio Director of Health to state a claim for retaliation under 

R.C. 3721.24(A)? 

{¶ 4} We answer the certified question in the negative and hold that an 

employee or other person used to perform work or services who reports or 

indicates an intention to report suspected abuse or neglect of a long-term-carefacility or a residential-care-facility resident is not required to report or indicate an 

intent to report the suspected abuse or neglect to the Ohio director of health in 

order to state a claim for retaliatory discharge under R.C. 3721.24. Because we 

hold that Hulsmeyer has stated a cognizable retaliatory-discharge claim under 

R.C. 3721.24, we decline to address her cross-appeal. Accordingly, we affirm the 

judgment of the court of appeals. 

II. Facts and Procedural History 

{¶ 5} Hospice is an organization that provides nursing care for persons 

who are terminally ill. Hospice does not have its own facility to provide inpatient 

care in southwest Ohio. Instead, it provides nursing care to patients where they 
Supreme Court of Ohio 

4

live. In 2011, Hospice provided care to residents of a residential care facility 

owned by Brookdale, including Pat Cinquina, an 81-year-old woman. 

{¶ 6} Because Hulsmeyer’s claims were resolved on a motion to dismiss 

for failure to state a claim, in reviewing this case, we accept as true all material 

allegations in her complaint and construe all reasonable inference in her favor. 

Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988). In 

April 2010, Hospice hired Patricia Hulsmeyer as a registered-nurse case manager. 

Eight months later, Hulsmeyer was promoted to team manager. As a team 

manager, Hulsmeyer oversaw the care of Hospice patients and monitored the 

work of other Hospice nurses and aides. At an October 19, 2011 patient-care 

meeting, a Hospice nurse indicated that she had noticed bruising on Cinquina and 

that she suspected that abuse or neglect by Brookdale’s staff had caused the 

bruises. Rachel Brown, an aide, divulged that she had used her cell phone to take 

pictures of bruising on Cinquina’s body. Brown forwarded the pictures to 

Hulsmeyer’s phone. A Hospice nurse and staff doctor at the meeting advised 

Hulsmeyer that she was obligated to notify Brookdale and Cinquina’s family of 

the suspected abuse or neglect. Hulsmeyer immediately called Brookdale and 

reported the suspected abuse or neglect to Cindy Spaunagle, Brookdale’s director 

of nursing, who indicated that she would examine Cinquina and then contact 

Cinquina’s daughter after the examination. Hulsmeyer then informed Isha 

Abdullah, the chief clinical officer of Hospice, of the suspected abuse or neglect. 

And after she left Abdullah’s office, Hulsmeyer informed Cinquina’s daughter of 

the suspected abuse or neglect. 

{¶ 7} At a November 2011 meeting at Brookdale to discuss Cinquina’s 

care, Brown’s cell phone was passed around so that the photo of Cinquina’s 

bruising could be seen. Attending the meeting were Hulsmeyer, Spaunagle, 

nurses, Cinquina’s son and daughter, and others. 
January Term, 2014 

5

{¶ 8} Contrary to the assertion in Hulsmeyer’s complaint, Abdullah 

claimed in a deposition that she did not learn of the suspected abuse or neglect 

until she received a call from a Brookdale employee. Abdullah claimed that 

Hulsmeyer violated Hospice’s company policy by not first reporting the suspected 

abuse or neglect to Hospice management. 

{¶ 9} On November 30, 2011, Hospice terminated Hulsmeyer. The 

termination letter stated that Hospice has a “policy that states, ‘All suspected 

abuse, neglect or exploitation of patients and suspected abuse or neglect of 

children will be reported immediately to CEO/designee.’ ” The letter gives three 

reasons for Hulsmeyer’s discharge: (1) Hulsmeyer permitted photos of Cinquina 

to be taken without receiving authorization from a person with power of attorney, 

(2) Hulsmeyer notified Brookdale and Cinquina’s daughter of the suspected abuse 

or neglect without first notifying Hospice, in violation of Hospice’s policy, and 

(3) Hulsmeyer improperly shared the photos at a patient-care conference to 

discuss Cinquina’s care, which was attended by staff from both Hospice and 

Brookdale and Cinquina’s family, before informing Hospice of the suspected 

abuse or neglect. 

{¶ 10} On the termination letter, next to the word “Comments” is the 

following handwritten statement by Hulsmeyer: 

I do not agree with the above statement. I was not 

provided guidance by my superiors in regards to the policy 

regarding suspected abuse/neglect. I reported the concerns that 

were brought to my attention on 10/19 to Isha Abdulla[h], CCO. 

I asked her for direction on how to handle the situation. I told her 

that social work and the team [doctor] stated I should and was 

obligated to notify the facility and the family of the concerns. 

She did not discourage me from doing so. 
Supreme Court of Ohio 

6

I did not authorize photos of the patient to be taken any 

time. 

{¶ 11} Hulsmeyer filed a civil action seeking damages against Hospice, 

Joseph Killian, and Brookdale. The complaint alleged that she had a statutory 

retaliatory-discharge claim under R.C. 3721.24 and a common-law wrongfuldischarge claim against Hospice and Killian for firing her for reporting suspected 

abuse or neglect and against Brookdale for inducing Hospice to fire her. Hospice, 

Killian, and Brookdale filed motions to dismiss alleging that Hulsmeyer’s 

statutory retaliatory-discharge claim failed to state a claim upon which relief 

could be granted. The motions to dismiss alleged that an employee may file a 

retaliatory-discharge claim under R.C. 3721.24 only if the employee reported the 

suspected abuse or neglect to the Ohio director of health, which Hulsmeyer did 

not do. The trial court agreed and granted the motions to dismiss regarding 

Hulsmeyer’s retaliatory-discharge claims under R.C. 3721.24. The trial court also 

held that Hulsmeyer’s common-law wrongful-discharge claim failed to state a 

claim because R.C. 3721.24 was an adequate statutory remedy to protect society’s 

interests in encouraging employees to report suspected abuse or neglect. 

{¶ 12} Hulsmeyer appealed. The court of appeals reversed the trial 

court’s judgment in part and affirmed it in part. The court of appeals reversed the 

trial court’s judgment to the extent that it dismissed Hulsmeyer’s statutory 

retaliatory-discharge claim. The court of appeals held that the plain language of 

R.C. 3721.24(A) does not require an employee or other person to report suspected 

abuse or neglect to the Ohio director of health in order to be protected from 

retaliation. However, the court of appeals affirmed the trial court judgment to the 

extent that it dismissed Hulsmeyer’s common-law wrongful-discharge claim. 

{¶ 13} We accepted Hospice’s, Killian’s, and Brookdale’s joint 

discretionary appeal and Hulsmeyer’s cross-appeal. 138 Ohio St.3d 1412, 2014-
January Term, 2014 

7

Ohio-566, 3 N.E.3d 1215. We also determined that a conflict exists and 

consolidated the cases. Id. 

III. Analysis 

{¶ 14} R.C. 3721.24 provides a retaliatory-discharge cause of action for 

employees who are terminated for reporting or indicating an intention to report 

suspected abuse or neglect of long-term-care-facility or residential-care-facility 

residents. The question is whether the report of suspected abuse or neglect must 

be made to the director of health in order to state a cognizable retaliatorydischarge claim. 

{¶ 15} Hospice, Killian, and Brookdale (hereinafter referred to 

collectively as “defendants”) argue that R.C. 3721.24 is ambiguous because it 

does not indicate to whom an employee must report or intend to report suspected 

abuse or neglect. Therefore, defendants argue, we should interpret R.C. 3721.24 

by reading it in pari materia with R.C. 3721.22 and hold that an employee must 

report or indicate an intention to report the suspected abuse or neglect to the 

director of health in order to have a cognizable retaliatory-discharge claim under 

R.C. 3721.24. 

{¶ 16} Hulsmeyer counters that there is no need to interpret R.C. 3721.24 

because its plain language does not limit to whom a report of suspected abuse or 

neglect must be made. Alternatively, in her cross-appeal, Hulsmeyer argues that 

if the court holds that an employee has a cognizable retaliatory-discharge claim 

under R.C. 3721.24 only if the employee reports or intends to report the suspected 

abuse or neglect to the Ohio director of health, then the court should recognize a 

common-law wrongful-discharge cause of action if the employee suffers 

retaliation for making the report or intending to make the report to someone other 

than the director of health. 

 
Supreme Court of Ohio 

8

A. R.C. 3721.22 and 3721.24 

{¶ 17} In 1990, the General Assembly passed Am.Sub.H.B. No. 822, 

which enacted R.C. 3721.22 and 3721.24. Am.Sub.H.B. 822, 143 Ohio Laws, 

Part IV, 6652, 6689, 6692. 

{¶ 18} We begin our analysis by examining R.C. 3721.24, the provision in 

question, and R.C. 3721.22, the provision that defendants argue is pivotal in 

construing R.C. 3721.24. 

{¶ 19} R.C. 3721.22 states: 

(A) No licensed health professional who knows or 

suspects that a resident has been abused or neglected, or that a 

resident’s property has been misappropriated, by any individual 

used by a long-term care facility or residential care facility to 

provide services to residents, shall fail to report that knowledge 

or suspicion to the director of health. 

(B) Any person, including a resident, who knows or 

suspects that a resident has been abused or neglected, or that a 

resident’s property has been misappropriated, by any individual 

used by a long-term care facility or residential care facility to 

provide services to residents, may report that knowledge or 

suspicion to the director of health. 

(C) Any person who in good faith reports suspected 

abuse, neglect, or misappropriation to the director of health, 

provides information during an investigation of suspected abuse, 

neglect, or misappropriation conducted by the director, or 

participates in a hearing conducted under section 3721.23 of the 

Revised Code is not subject to criminal prosecution, liable in 

damages in a tort or other civil action, or subject to professional 
January Term, 2014 

9

disciplinary action because of injury or loss to person or property 

allegedly arising from the making of the report, provision of 

information, or participation in the hearing. 

 (D) If the director has reason to believe that a violation of 

division (A) of this section has occurred, the director may report 

the suspected violation to the appropriate professional licensing 

authority and to the attorney general, county prosecutor, or other 

appropriate law enforcement official. 

(E) No person shall knowingly make a false allegation of 

abuse or neglect of a resident or misappropriation of a resident’s 

property, or knowingly swear or affirm the truth of a false 

allegation, when the allegation is made for the purpose of 

incriminating another. 

(Emphasis added.) 

{¶ 20} R.C. 3721.24 states: 

 

(A) No person or government entity shall retaliate against 

an employee or another individual used by the person or 

government entity to perform any work or services who, in good 

faith, makes a report of suspected abuse or neglect of a resident 

or misappropriation of the property of a resident; indicates an 

intention to make such a report; provides information during an 

investigation of suspected abuse, neglect, or misappropriation 

conducted by the director of health; or participates in a hearing 

conducted under section 3721.23 of the Revised Code or in any 

other administrative or judicial proceedings pertaining to the 

suspected abuse, neglect, or misappropriation. For purposes of 
Supreme Court of Ohio 

10

this division, retaliatory actions include discharging, demoting, or 

transferring the employee or other person, preparing a negative 

work performance evaluation of the employee or other person, 

reducing the benefits, pay, or work privileges of the employee or 

other person, and any other action intended to retaliate against the 

employee or other person. 

(B) No person or government entity shall retaliate against 

a resident who reports suspected abuse, neglect, or 

misappropriation; indicates an intention to make such a report; 

provides information during an investigation of alleged abuse, 

neglect, or misappropriation conducted by the director; or 

participates in a hearing under section 3721.23 of the Revised 

Code or in any other administrative or judicial proceeding 

pertaining to the suspected abuse, neglect, or misappropriation; or 

on whose behalf any other person or government entity takes any 

of those actions. For purposes of this division, retaliatory actions 

include abuse, verbal threats or other harsh language, change of 

room assignment, withholding of services, failure to provide care 

in a timely manner, and any other action intended to retaliate 

against the resident. 

(C) Any person has a cause of action against a person or 

government entity for harm resulting from violation of division 

(A) or (B) of this section. If it finds that a violation has occurred, 

the court may award damages and order injunctive relief. The 

court may award court costs and reasonable attorney’s fees to the 

prevailing party. 

(Emphasis added.) 
January Term, 2014 

11

B. Statutory Construction 

{¶ 21} The goal of statutory construction is to ascertain and give effect to 

the intent of the General Assembly. State v. Hairston, 101 Ohio St.3d 308, 2004-

Ohio-969, 804 N.E.2d 471, ¶ 11, citing Slingluff v. Weaver, 66 Ohio St. 621, 64 

N.E. 574 (1902), paragraph one of the syllabus. In determining the intent of the 

General Assembly, “we must first look to the statutory language and the purpose 

to be accomplished.” Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 

2011-Ohio-2723, 950 N.E.2d 938, ¶ 12. 

{¶ 22} When statutory language is ambiguous, the rules of statutory 

interpretation must be applied to determine the intent of the legislature. Wingate 

v. Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979). “The in pari materia

rule of construction may be used in interpreting statutes where some doubt or 

ambiguity exists.” State ex rel. Herman v. Klopfleisch, 72 Ohio St.3d 581, 585, 

651 N.E.2d 995 (1995), citing State Farm Mut. Auto. Ins. Co. v. Webb, 54 Ohio 

St.3d 61, 63-64, 562 N.E.2d 132 (1990); State ex rel. Celebrezze v. Allen Cty. Bd. 

of Commrs., 32 Ohio St.3d 24, 27-28, 512 N.E.2d 332 (1987). “ ‘In reading 

statutes in pari materia and construing them together, this court must give a 

reasonable construction that provides the proper effect to each statute.’ ” Blair v. 

Sugarcreek Twp. Bd. of Trustees, 132 Ohio St.3d 151, 2012-Ohio-2165, 970 

N.E.2d 884, ¶ 18, quoting State ex rel. Cordray v. Midway Motor Sales, Inc., 122 

Ohio St.3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 25, citing Maxfield v. 

Brooks, 110 Ohio St. 566, 144 N.E. 725 (1924), paragraph two of the syllabus. 

{¶ 23} However, “[w]hen the statutory language is plain and 

unambiguous, and conveys a clear and definite meaning, we must rely on what 

the General Assembly has said.” Jones v. Action Coupling & Equip., Inc., 98 

Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. 

of Trustees v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). The court 

must give effect to the words used, making neither additions nor deletions from 
Supreme Court of Ohio 

12

words chosen by the General Assembly. Columbia Gas Transm. Corp. v. Levin,

117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19, citing Cline v. Ohio 

Bur. of Motor Vehicles, 61 Ohio St.3d 93, 97, 573 N.E.2d 77 (1991). 

C. R.C. 3721.24 Is Not Ambiguous 

{¶ 24} Defendants argue that R.C. 3721.24 is ambiguous because it does 

not indicate to whom a report of suspected abuse or neglect must be made and 

that when R.C. 3721.24 is construed in pari materia with R.C. 3721.22, it is clear 

that in order to file a retaliatory-discharge claim, a report of suspected abuse or 

neglect must be made to the director of health. Defendants cite Sheet Metal 

Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s Refrig., Heating & Air 

Conditioning, Inc., 122 Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, in 

support of its argument that R.C. 3721.24 is ambiguous. 

{¶ 25} In Sheet Metal Workers’ Internatl. Assn., the issue was whether 

R.C. 4115.05 requires paying the prevailing wage to an employee “whose work is 

not performed on the actual project site but who works on materials that will be 

used in or in connection with the project.” Id. at ¶ 25. The court found R.C. 

4115.05 to be ambiguous on this issue because “[t]here is no reference in R.C. 

4115.05 to where the work must be performed, i.e. whether it must be directly on 

the project cite or be performed off-site.” Id. at ¶ 29. The court construed “the 

language of the entire prevailing-wage statutory scheme along with the related 

regulations” in concluding that the General Assembly did not intend for 

employers to pay the prevailing wage to persons who do not work on site. Id. at 

¶ 38. We find Sheet Metal Workers’ Internatl. Assn. to be distinguishable. 

{¶ 26} “[T]he General Assembly, in enacting a statute, is assumed to have 

been aware of other statutory provisions concerning the subject matter of the 

enactment even if they are found in separate sections of the Code.” Meeks v. 

Papadopulos, 62 Ohio St.2d 187, 191-192, 404 N.E.2d 159 (1980), citing State ex 

rel. Darby v. Hadaway, 113 Ohio St. 658-659, 150 N.E. 36 (1925). And the 
January Term, 2014 

13

General Assembly’s use of particular language to modify one part of a statute but 

not another part demonstrates that the General Assembly knows how to make that 

modification and has chosen not to make that modification in the latter part of the 

statute. See Maggiore v. Kovach, 101 Ohio St.3d 184, 2004-Ohio-722, 803 

N.E.2d 790, ¶ 27; In re Election of Member of Rock Hill Local School Dist. Bd. of 

Edn., 76 Ohio St.3d 601, 608, 669 N.E.2d 1116 (1996). Finally, we have held 

that if the General Assembly could have used a particular word in a statute but did 

not, we will not add that word by judicial fiat. See In re Application of Columbus 

S. Power Co., 138 Ohio St.3d 448, 2014-Ohio-462, 8 N.E.3d 863, ¶ 26 (“The 

court must give effect to the words used, making neither additions nor deletions 

from words chosen by the General Assembly. * * * Certainly, had the General 

Assembly intended to require that electric-distribution utilities prove that carrying 

costs were ‘necessary’ before they could be recovered, it would have chosen 

words to that effect”). 

{¶ 27} R.C. 3721.22(A) requires licensed health professionals to report 

abuse “to the director of health.” That same requirement of reporting to the 

director of health is not found in R.C. 3721.24. Because the General Assembly 

enacted R.C. 3721.22 and 3721.24 in the same bill, we presume that the absence 

of any requirement in R.C. 3721.24 that a report, or intent to report, suspected 

abuse or neglect must be made to the director of health was intentional. If the 

General Assembly had intended to afford protection to only those employees who 

reported, or indicated an intention to report, suspected abuse or neglect to the 

director of health, it could have done so by inserting the words “to the director of 

health” after the word “report” in R.C. 3721.24(A), or by incorporating the 

requirement from R.C. 3721.22. It did neither. And we will not add those words 

by judicial fiat. See Clark v. Scarpelli, 91 Ohio St.3d 271, 291, 744 N.E.2d 

719 (2001) (Cook, J., dissenting) (“the role of a court is not to decide what the 
Supreme Court of Ohio 

14

law should say; rather, the role of this court is to interpret what the law says as it 

has been written by the General Assembly” [emphasis sic]). 

{¶ 28} Furthermore, the different reporting requirements of R.C. 3721.22 

and 3721.24 are consistent with their different purposes. In addition to providing 

immunity from both civil lawsuits and criminal prosecution to persons who report 

suspected abuse or neglect, R.C. 3721.22 addresses the obligations of reporting 

suspected abuse or neglect. It explicitly requires that licensed health professionals 

report suspected abuse or neglect “to the director of health.” R.C. 3721.22(A). It 

also provides that “[a]ny person, including a resident” “may” report suspected 

abuse or neglect “to the director of health.” R.C. 3721.22(B). The purpose of 

requiring that such reports be made to the director of health is that the director of 

health has the authority and obligation to investigate, make findings, and report 

findings of abuse or neglect to law enforcement. See R.C. 3721.23. 

{¶ 29} In contrast, the purpose of R.C. 3721.24 is to protect persons from 

retaliatory discharge for reporting suspected abuse or neglect of long-term-carefacility and residential-care-facility residents. See generally Dolan v. St. Mary’s 

Mem. Home, 153 Ohio App.3d 441, 2003-Ohio-3383, 794 N.E.2d 716 (1st Dist.), 

¶ 17 (the purpose of R.C. Chapter 3721 is to protect “the rights of nursing-home 

residents and of others who would report violations of those rights” [emphasis 

added]). Providing employees broader reporting options than those found in R.C. 

3721.22 is consistent with the purpose of preventing retaliation against 

employees. Employees may be more likely to report suspected abuse or neglect 

to someone other than the director of health, such as a resident’s family member 

or a coworker. 

IV. Conclusion 

{¶ 30} The plain language of R.C. 3721.24 protects employees or other 

persons used to perform work or services from retaliation for reporting or 

indicating an intention to report suspected abuse or neglect of residents of long-
January Term, 2014 

15

term care facilities or residential care facilities and does not require that the report 

be made to the director of health. Therefore, we answer the certified question in 

the negative and hold that an employee or other person used to perform work or 

services who reports or indicates an intention to report suspected abuse or neglect 

of a long-term-care-facility or residential-care-facility resident is not required to 

report or indicate an intent to report the suspected abuse or neglect to the Ohio 

director of health in order to state a claim for retaliatory discharge under R.C. 

3721.24. 

{¶ 31} In this case, Hulsmeyer’s reporting the suspected abuse or neglect 

to Brookdale and to the resident’s children triggered the protection of R.C. 

3721.24. Therefore, the court of appeals did not err in reversing the portion of the 

trial court’s judgment that dismissed Hulsmeyer’s claim for retaliation under R.C. 

3721.24. Because Hulsmeyer has a cognizable retaliatory-discharge claim under 

R.C. 3721.24, we decline to consider her cross-appeal asserting that she has a 

common-law wrongful-discharge claim. 

{¶ 32} Accordingly, we affirm the judgment of the court of appeals and 

remand the cause to the trial court with instructions to reinstate Hulsmeyer’s 

retaliatory-discharge claim under R.C. 3721.24. However, although we have 

determined that the “report” mentioned in R.C. 3721.24 does not need to be a 

report to the director of health to trigger protection from retaliation, we make no 

judgment on the merits of Hulsmeyer’s claim. We therefore remand this cause to 

the trial court for further proceedings consistent with this opinion. 

Judgment affirmed 

and cause remanded. 

O’CONNOR, C.J., and YARBROUGH, LANZINGER, and O’NEILL, JJ., concur. 

PFEIFER, J., concurs separately. 

FRENCH, J., dissents. 
Supreme Court of Ohio 

16

STEPHEN A. YARBROUGH, J., of the Sixth Appellate District, sitting for 

O’DONNELL, J. 

___________________________ 

PFEIFER, J., concurring. 

{¶ 33} I concur in the judgment, syllabus, and almost every other part of 

the majority opinion. I agree with Justice French, however, that Patricia 

Hulsmeyer should be allowed to assert a common-law claim for wrongful 

discharge in violation of public policy. See Sutton v. Tomco Machining, Inc., 129 

Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 7-9. 

___________________________ 

FRENCH, J., dissenting. 

{¶ 34} Because I would answer the certified-conflict question in the 

affirmative, I respectfully dissent. 

{¶ 35} In my view, a statutory cause of action under R.C. 3721.24 arises 

only after an employee or other person used to perform work or services reports 

or indicates an intention to report suspected abuse or neglect of a resident to the 

Ohio director of health. Nevertheless, I would adopt the proposition of law raised 

by Patricia Hulsmeyer’s cross-appeal and hold that an employee who reports or 

indicates an intention to report suspected abuse or neglect of a resident not to the 

director of health but to another appropriate person, such as the reporter’s 

employer, the long-term care facility or residential care facility, the resident’s 

family, or law enforcement, may assert a common-law claim for wrongful 

discharge in violation of public policy. 

{¶ 36} The General Assembly enacted R.C. 3721.22 to 3721.26 together, 

as part of a comprehensive scheme governing reports of abuse and neglect of 

long-term-care-facility or residential-care-facility residents. Am.Sub.H.B. No. 

822, 143 Ohio Laws, Part IV, 6652, 6689-6694. As particularly relevant here, 

R.C. 3721.22, 3721.23, and 3721.24 are interrelated. 
January Term, 2014 

17

{¶ 37} R.C. 3721.22(A) requires a “licensed health professional” to report 

known or suspected abuse or neglect of a resident to the director of health, 

whereas R.C. 3721.22(B) permits any other person, including a resident, to report 

known or suspected abuse or neglect to the director of health. The director of 

health is, in turn, required to “receive, review, and investigate allegations of abuse 

or neglect of a resident” and to make findings regarding those allegations. R.C. 

3721.23(A). Any person who makes a good-faith report to the director of health 

under R.C. 3721.22, provides information during the director’s investigation 

under R.C. 3721.23 or participates in a hearing conducted by the director under 

R.C. 3721.23 is immune from criminal prosecution, damages in a civil action, and 

professional discipline. R.C. 3721.22(C). 

{¶ 38} R.C. 3721.24 provides additional protection for a person who 

reports suspected abuse or neglect of a resident. R.C. 3721.24(A) prohibits 

retaliation against an employee or other person used to perform work or services 

who makes a good-faith report of suspected abuse or neglect of a resident, 

indicates an intention to make such a report, provides information during an 

investigation conducted by the director of health under R.C. 3721.23 or 

participates in a hearing under R.C. 3721.23 or other administrative or judicial 

proceedings pertaining to the suspected abuse or neglect. R.C. 3721.24(C) 

establishes a cause of action for harm resulting from prohibited retaliation. 

{¶ 39} The crux of this case lies in R.C. 3721.24’s silence as to the person 

to whom a person must report or indicate an intention to report suspected abuse or 

neglect in order to claim statutory protection from retaliation. Despite the 

statute’s silence on that issue, the majority concludes that R.C. 3721.24 is 

unambiguous and holds that a plaintiff need not report or indicate an intention to 

report suspected abuse or neglect to the director of health in order to have a 

cognizable claim under R.C. 3721.24. In contrast, I conclude that the statute is 

ambiguous because the silence in R.C. 3721.24(A) regarding the recipient of a 
Supreme Court of Ohio 

18

report renders the statute subject to varying interpretations. Sheet Metal Workers’ 

Internatl. Assn., Local Union No. 33 v. Gene’s Refrigeration, Heating & Air 

Conditioning, Inc., 122 Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 29 

(finding ambiguity because R.C. 4115.05 did not specify whether work had to be 

performed on the construction-project site to be subject to prevailing-wage 

requirements). 

{¶ 40} When a statute is ambiguous, we look to the statutory language, 

the circumstances in which the statute was enacted, legislative history, and the 

consequences of a particular construction to determine the legislature’s intent. Id. 

We also construe statutes pertaining to the same subject matter in pari materia “to 

discover and carry out legislative intent.” Id. at ¶ 38, citing State ex rel. Ellis 

Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio-4920, 874 

N.E.2d 780, ¶ 13. Accordingly, we should read R.C. 3721.24 in pari materia with 

R.C. 3721.22 and 3721.23, which were enacted at the same time and relate to the 

same subject matter. See Sheet Metal Workers’ Internatl. Assn. at ¶ 33-38 

(reading R.C. 4115.05 in the context of the entire prevailing-wage statutory 

scheme and related regulations). 

{¶ 41} R.C. 3721.22 authorizes, and in some cases mandates, reports of 

actual or suspected abuse or neglect of residents to the director of health, and R.C. 

3721.23 requires the director of health to receive and act upon those reports. R.C. 

3721.24 protects from retaliation a person who reports suspected abuse or neglect 

or who participates in the resultant investigatory and/or adjudicatory process. The 

Revised Code does not provide for reports of abuse or neglect to recipients other 

than the director of health. Moreover, the immunity provided by R.C. 3721.22(C) 

and the prohibition against retaliation established by R.C. 3721.24 arise not only 

from reports of abuse or neglect, but also from participation in the investigatory 

process that, pursuant to R.C. 3721.23, results from reports to the director of 

health. Reading these statutes together, I conclude that a statutory claim under 
January Term, 2014 

19

R.C. 3721.24 requires a report, or an indication of intent to report, to the director 

of health. See Arsham-Brenner v. Grande Point Health Care Community, 8th 

Dist. Cuyahoga No. 74835, 2000 WL 968790, *6 (July 13, 2000). 

{¶ 42} The majority’s reading of R.C. 3721.24, in isolation from the 

related provisions, suggests that there is no limitation whatsoever on the recipient 

of a report of suspected abuse or neglect. Under the majority’s reading, an 

employee’s statutory entitlement to protection from retaliation would extend far 

beyond the employee’s reporting of suspected abuse to obvious and appropriate 

recipients, like the employee’s supervisor or the resident’s family. For example, 

an employee would be entitled to protection upon casually relating suspicions of 

abuse or neglect to the employee’s spouse, a neighbor, a news station or an online 

message board. In light of the overlap between R.C. 3721.22 through 3721.24, 

the director of health’s statutory responsibility for investigating allegations of 

resident abuse or neglect, and the silence in R.C. 3721.24, I cannot agree that the 

General Assembly intended such a broad application. 

{¶ 43} Despite my conclusion regarding R.C. 3721.24, I would hold that 

Hulsmeyer’s complaint stated a cognizable common-law claim for wrongful 

discharge in violation of public policy. A public-policy wrongful-discharge claim 

requires proof of the following elements: (1) a clear public policy is manifested in 

a state or federal constitution, in a statute or administrative regulation, or in the 

common law, (2) dismissing the employee under circumstances like the plaintiff’s 

would jeopardize the public policy, (3) conduct related to the public policy 

motivated the employer to dismiss the plaintiff, and (4) the employer lacked an 

overriding legitimate business justification for the dismissal. Collins v. Rizkana, 

73 Ohio St.3d 65, 69-70, 652 N.E.2d 653 (1995), citing Painter v. Graley, 70 

Ohio St.3d 377, 384, 639 N.E.2d 51 (1994), fn. 8. The first two elements—the 

clarity and jeopardy elements—are questions of law for the court. Id. at 70. 
Supreme Court of Ohio 

20

{¶ 44} Cross-appellees, Brookdale Senior Living, Inc., Hospice of 

Southwest Ohio, Inc., and Joseph Killian, do not dispute the existence of clear 

public policy encouraging the reporting of abuse and neglect of long-term-carefacility or residential-care-facility residents and protecting those who make such 

reports. R.C. 3721.22 and 3721.24 express that clear policy. The General 

Assembly has also “enunciated a public policy in favor of special protection of 

nursing-home residents through its passage of the Ohio Nursing Home Patients’ 

Bill of Rights, R.C. 3721.10 et seq.” Hayes v. Oakridge Home, 122 Ohio St.3d 

63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 51 (Pfeifer, J., dissenting). As relevant 

here, a resident is entitled to have any significant change in the resident’s health 

status promptly reported to the resident’s sponsor. R.C. 3721.13(A)(32). A 

“sponsor” is “an adult relative, friend, or guardian of a resident who has an 

interest or responsibility in the resident’s welfare.” R.C. 3721.10(D). 

{¶ 45} In opposition to Hulsmeyer’s cross-appeal, cross-appellees argue 

only that the absence of a common-law claim does not jeopardize the public 

policy encouraging the reporting of suspected resident abuse and neglect. First, 

consistent with their arguments to the trial court and the court of appeals, they 

argue that R.C. 3721.24 provides a sufficient and appropriate remedy to vindicate 

the public policy. The court of appeals agreed and held that Hulsmeyer was not 

entitled to maintain a public-policy wrongful-discharge claim, because she had a 

remedy by way of a statutory claim under R.C. 3721.24. 2013-Ohio-4147, 998 

N.E.2d 517, ¶ 31 (1st Dist.). While an applicable statutory remedy may justify a 

refusal to recognize a public-policy wrongful-discharge claim, see Dolan v. St. 

Mary’s Mem. Home, 153 Ohio App.3d 441, 2003-Ohio-3383, 794 N.E.2d 716 (1st 

Dist.), I conclude that R.C. 3721.24 does not provide Hulsmeyer an adequate 

remedy, because it does not apply to employees, like Hulsmeyer, who report 

suspicions of resident abuse or neglect to someone other than the director of 

health. 
January Term, 2014 

21

{¶ 46} Cross-appellees also argue, for the first time to this court, that the 

public policy encouraging reports of abuse and neglect is not jeopardized in the 

absence of a public-policy wrongful-discharge claim, because, even without a 

claim under R.C. 3721.24, Hulsmeyer could have reported any reasonable 

suspicion of abuse or neglect to her employer pursuant to Ohio’s Whistleblower 

Statute, R.C. 4113.52. Review of Hulsmeyer’s complaint, however, demonstrates 

the inapplicability of that statute. 

{¶ 47} R.C. 4113.52 applies when 

an employee becomes aware in the course of the employee’s 

employment of a violation of any state or federal statute or any 

ordinance or regulation of a political subdivision that the 

employee’s employer has authority to correct, and the employee 

reasonably believes that the violation is a criminal offense that is 

likely to cause an imminent risk of physical harm to persons or a 

hazard to public health or safety, a felony, or an improper 

solicitation for a contribution. 

R.C. 4113.52(A). But there is no indication in Hulsmeyer’s complaint that she 

suspected a criminal offense that was likely to cause an imminent risk of physical 

harm, a felony or an improper solicitation for a contribution that her employer had 

authority to remedy. Rather, Hulsmeyer alleged that she believed the likely cause 

of the resident’s bruising was an excessively tightened bag from a Foley catheter. 

Furthermore, R.C. 4113.52(D) protects from retaliation an employee who has 

made a report to her employer or to a prosecuting or regulatory authority, whereas 

Hulsmeyer alleges that Hospice terminated her for reporting the suspected abuse 

to Pat Cinquina’s family and for allegedly not informing Hospice. Accordingly, 
Supreme Court of Ohio 

22

the facts as alleged in Hulsmeyer’s complaint do not demonstrate the availability 

of whistle-blower protection under R.C. 4113.52. 

{¶ 48} As the trial court decided this case on Civ.R. 12(B)(6) motions to 

dismiss, the question whether retaliation actually occurred is not ripe for 

determination, but if Hulsmeyer’s allegations of retaliation are true, permitting the 

alleged retaliation for Hulsmeyer’s reporting of suspected abuse or neglect would 

be contrary to the public policy underlying R.C. 3721.22 and 3721.24, even 

without a report to the director of health. See Sutton v. Tomco Machining, Inc., 

129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 25-27 (retaliatory 

dismissal of an employee who is injured on the job, but who has not yet instituted 

a workers’ compensation claim, jeopardizes public policy against retaliation in 

R.C. 4123.90, even though R.C. 4123.90 does not provide a statutory remedy in 

that situation). And terminating Hulsmeyer for informing Cinquina’s family of 

the suspected abuse would be contrary to the requirement that a resident’s sponsor 

be promptly informed of any change in the resident’s medical status and would 

jeopardize the public policy evident in R.C. 3721.13. For these reasons, I would 

reverse the court of appeals’ judgment and remand the cause to the trial court for 

reinstatement of Hulsmeyer’s common-law wrongful-discharge claim. 

Accordingly, I respectfully dissent. 

___________________________ 

Robert A. Klingler Co., L.P.A., Robert A. Klingler, and Brian J. Butler, 

for appellee and cross-appellant. 

Tucker Ellis, L.L.P., Susan M. Audey, and Victoria L. Vance, for 

appellant and cross-appellee Brookdale Senior Living, Inc. 

Dinsmore & Shohl, L.L.P., Michael W. Hawkins, and Faith C. Whittaker, 

for appellants and cross-appellees Hospice of Southwest Ohio, Inc., and Joseph 

Killian. 
January Term, 2014 

23

The Gittes Law Group, Fredrick M. Gittes, and Jeffrey P. Vardaro, urging 

affirmance for amicus curiae Ohio Employment Lawyers Association. 

Ohio Disability Rights and Law Center, Inc., Andrew Brennan, Kristen 

Henry, and Michael Kirkman, urging affirmance for amici curiae Disability 

Rights Ohio, AARP, National Senior Citizens Law Center, National Law Health 

Program, and National Disability Rights Network. 

____________________________