Ohio daycares sue to end Department of Health rules on group sizes

Ohio daycares sue to end Department of Health rules on group sizes
40 Ohio daycares have filed suit to enjoin the state from enforcing pandemic related restrictions. (Source: Pixabay)

WARREN COUNTY, Ohio (FOX19) - Dozens of Ohio daycares are suing the Ohio Department of Health to halt enforcement of pandemic-related rules.

The 1851 Center for Constitutional Law, a nonprofit legal center located in Columbus, filed suit in the Warren County Court of Common Pleas Tuesday.

Ohio Gov. Mike DeWine and Ohio Department of Health Director Dr. Amy Acton permitted daycares to reopen in the state May 31 with sector-specific rules. The official ODH order came down May 29.

The order’s rules can be found in full here.

Pertinent to the lawsuit, according to a news release from the 1851 Center, are the orders’ “arbitrary” rules on group sizes and staff-to-student ratios.

The order’s rules reduce the number of pre-schoolers and school-aged children a single staff member may care for from 14 and 20, respectively, to nine in each case.

The rules also reduce the number of children who may be within the same room, regardless of the size of the space, down from 40 to nine, according to the release.

“Defendants continue to obstruct rather than advance Ohioans’ physical and mental health, all the while having continuously overinflated the risk of harm to the general public,” the lawsuit reads. “The pandemic itself has inflicted no deaths on Ohio children, apart from those caused by the policies of Defendants.”

The lawsuit argues Ohio agency or administrative regulations, which include the ODH order, cannot overrule express legislative statutes on the same subject. Regulations that attempt to do so, the plaintiffs say, violate Ohio’s separation of powers.

The lawsuit also spends considerable time challenging the legal basis of Acton’s authority in issuing pandemic-related regulations and instituting criminal penalties for violating those regulations, as previous lawsuits from Ohio gyms, amusement parks and music venues have done.

“The Ohio Department of Health, its Director [Amy Acton], and county health departments claim the authority to criminalize and otherwise sanction Ohio Daycares for adhering to safe practices that are expressly protected by the Ohio General Assembly,” the lawsuit reads.

And later: “The Director’s Order on Child Care Services and any materially similar rules or orders are imposed pursuant to vague and unfettered enforcement authority that creates the crime of operating a daycare even within express legislative parameters; this violates the doctrine of separation of powers.”

Acton stepped down as ODH Director June 11.

Maurice Thompson is executive director of the 1851 Center.

“The Ohio Constitution protects Ohioans from unelected government administrators attempting to override statutes passed by elected representatives, no matter what the rationale,” Thompson said.

“These regulations are particularly pernicious because they limit child care options for parents needing to return to work, dramatically raise the costs of these options, and threaten to bankrupt Ohio daycares.”

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