and we ask the court to reverse the e p a just decision so we commute by i like to address to procedural issues first and then reserve most of my time for issues on the merits of the violations but first i'm after the administrative hearing he'll jay off your report and recommendation that when the system director by your system director then issued a decision on the final work on which was or if that director consult with legal counsel for the part interviewing the hero of the city and legal counsel assist in writing whatever the director right would be it's appropriate prevented from consulting with legal counsel or hears or her i don't think that well that's the case with every to this very view it it is and that's why i think the a p a has in their very explicit requirements that sort of that expertly cation must be made part of the record industry that really didn't need to be part of the record but it's oh it's a very i think bright line pass that if there's any expertly communication by the able j v or the director that must be part of the record that's according to section recently by this court in the first district about the mandatory timeframe in section three dish two twelve c of the nursing home care act the department has no later than sixty days to issue its determination argues that a survey processing was made by a supervisor on decided that there was a violation but that was done within the sixty time over outside that sixty eight time period the supervisor on amended the survey processing was made a new form of legal action taken settled and made the conclusion that the violation was actually true violations of the code exit time of the service so the conclusion of the survey in this case it was january eighth two thousand and the issue about the terminations i think the question for the court is van driver had to turn on very quickly and resident are one sitting in the back seat fell for her face on the dashboard and sustained injuries and later  your admission part of example i can't say this for certain but given how highly regulated everything is in the state would not surprise you that there's a specific regulation requiring seat belt or harness tracks in  to second guess of the civil these operations retrospective we didn't say after the accident happened we think you should have had a different best practice in place now we have never applied on that before and none of the other regulations i just you know we can talk about what's reasonable and more maybe the standard care in a tort context but that's different than eight government agency tom implementing standard that has as only applied to that facility after the accident but let me your honor let me talk about the issue about the a patient parkin and checking everybody in this case about the van ride was d s p lockett was the driver who the residents looked for she felt or they left the facility and said everybody ready to go in buckle then yes after the first half she got back in the van bookbind burden of proof to show that with us and all the evidence in the record indicated the seat belt was hot we can speculate or draw inferences that it wasn't but that's not evidence of black and i'm like ok you  the protection of these residents who are very vulnerable dependent on others to provide care and there's a certain standard of care in a duty that attaches when deeds facilities are licensed to be done a strategy in place to minimize risk for their particular service if if you decide to provide service all the more reason why you should provide very you know their capabilities are not the grown ups but they're not it's a six year old six and a half year old and that in this case you also have somebody who you have an elderly person and all those frailties that when in the in the meantime there's there there is it really undermines the purpose of of the yes to protect residents who are so vulnerable  i don't disagree with any bad who could but you put out some pretty harsh penalties on this particular facility when the department s often even specify the people who need to be blocked when in these circumstances it was supposed to be obvious to the silly but why wouldn't this is obvious to the department that's my problem i understand that mitigate the penalty well fine thing suffers here in other words seems to me this is a different case have there been a specific regulation in place that's putting their license to stay in business in jeopardy and also twenty thousand dollars fine seems pretty harsh like why should we improve your thinking that action this  regulations governing treatment of patients well first of all i don't think that mean i don't think that it is such a harsh penalty in light of the violation now the idea that look there's no way that that's the best insurance that's you know or listening to clips so i mean it and given and this is not just a negligence this is there's a definition of lacked neglect and as i changes the original findings from the survey to i guess was some sort of penalty that was imposed it was hard for me to sort of record it certainly was much much less than what the department  particular facility no i don't agree with that but i don't know if that's where you want to help but stack you laid about that when you look at this record now the record to record everything in the on you know the department's expertise and its policies and its purposes which may be able to say you know it's a much more it's a sponsor you know they're not there not necessarily and you know it's a well because i think that flows from this why not succulent the record and find out exactly what happened after he directly got they all just recommendation to make additional factual findings and different  to your other people even though the administrative procedure act and the code i don't know why that wouldn't be true for every agency told you or the law they might speculate why the department may not like the there's no there's nothing off the record here and this is not something that's unusual that agencies do and it's it's it's the legislative mandate to go to the agency to you know there's this process and it starts with we hear a report of an incident and then you go through the evaluation process the investigation of this incident in which you know not that's not unusual i mean that's how the ministry of decencies generally are structured and you couldn't i don't know how you'd have any other way of you know to assistant director should then not be able to say you know i don't agree really then what's the point of review by the assistant director you know they have that authority and they have that duty to make that final make the final call evidence there's no evidence in the record that supports it alas it's clearly erroneous they wouldn't come to this you know the situation and review it should it should be and you know i think this case you know i mean it's that the this is the director looked at the record came to different conclusions she looked at the facts and the plight of them to log different we're talking here about the situation and whether it meets these the definition of and whether the act and or required the facility to have a policy specific the seatbelt use with the application of facts to the laws under the clearly erroneous standard saying that the the  believe that section three hundred twenty two eighty six give or take a couple sections there but it lays out on factors for the department to consider in setting the bubble violation and fine and i think any review happens that's a negative outcome to the resident the facilities at all that's certainly different than the statutory definition of