ILLINOIS OFFICIAL REPORTS

Appellate Court

Aurora Manor, Inc. v. Department of Public Health, 2012 IL App (1st) 112775

Appellate Court

Caption

AURORA MANOR, INC., Plaintiff-Appellee and Cross-Appellant, v.

THE DEPARTMENT OF PUBLIC HEALTH; TERESA GARATE,

Assistant Director, The Department of Public Health; and DAMON T.

ARNOLD, Director, The Department of Public Health, DefendantsAppellants and Cross-Appellees.

 District & No. First District, Third Division

Docket No. 1-11-2775

Rule 23 Order filed

Rule 23 Order

withdrawn

Opinion filed

August 23, 2012

September 20, 2012

September 26, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In an action arising from an incident in which a resident eloped from

plaintiff’s nursing home, an administrative law judge’s finding that the

Department of Public Health made its determination of violations by

plaintiff within the 60-day requirement of the Nursing Home Care Act

was not clearly erroneous.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 10-CH-50386; the

Hon. Sophia H. Hall, Judge, presiding.
Judgment Affirmed in part and reversed in part.

Counsel on

Appeal

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,

Solicitor General, and Paul Racette, Assistant Attorney General, of

counsel), for appellants.

Polsinelli Shughart PC, of Chicago (Jason T. Lundy and Meredith A.

Duncan, of counsel), for appellee.

Panel JUSTICE STERBA delivered the judgment of the court, with opinion.

Justices Fitzgerald Smith and Pucinski concurred in the judgment and

opinion.

OPINION

¶ 1 Defendant-appellant and cross-appellee the Illinois Department of Public Health

(Department) issued a notice of violation and fine assessment to plaintiff-appellee and crossappellant Aurora Manor, Inc., after completion of a survey following an incident in which

a resident eloped from Aurora Manor’s facility. Following administrative review, the

determination of violation and the assessment of a $5,000 fine were affirmed. Aurora Manor

sought review in the circuit court, and the court voided the order imposing the violation and

fine. On appeal, the Department contends it made a determination of violation after 59 days,

within the 60-day limit imposed by section 3-212 of the Nursing Home Care Act (Act) (210

ILCS 45/3-212(c) (West 2008)). For the reasons that follow, we reverse the judgment of the

circuit court voiding the Department’s final order, thus reinstating the Department’s order.

¶ 2 BACKGROUND

¶ 3 At approximately 3:40 a.m. on December 3, 2008, a resident of the Aurora Rehabilitation

and Living Center in Aurora, Illinois, exited the facility unnoticed by staff. The resident was

spotted by a medi-van driver in the parking lot, who then informed the facility. The resident

was found by the medi-van driver and a nurse from the facility about 15 minutes later

wandering in a T-shirt and trousers on the side of a road that ran parallel to an interstate

highway. In response to the incident, the Department conducted a licensure survey

investigation that was completed on February 3, 2009. On April 15, 2009, the Department

issued a notice to Aurora Manor that it had committed multiple violations of the Act and the

Department’s regulations and assessing a $5,000 fine. On April 22, 2009, Aurora Manor

requested a hearing to contest the determination of violations.

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¶ 4 Prior to the hearing, Aurora Manor filed a motion to dismiss on the grounds that the

Department lost subject matter jurisdiction when the Department failed to determine the

existence of a violation within 60 days of completion of the inspection survey, as required

by the Act. Aurora Manor argued the notice of violations was the determination required by

the Act, and the notice of violations was not issued until 71 days after completion of the

survey. The Department responded that it made its determination prior to the issuance of the

notice, and recorded it on the “Illinois Department of Public Health; SNF/NF Survey

Processing Log” (log) dated April 3, 2009, within the 60-day period. The administrative law

judge (ALJ) found that “the Department determined that a violation existed on April 3, 2009,

59 days after completion of its survey.” Therefore, the ALJ concluded the occurrence of

violations was determined within the 60-day limit imposed by section 3-212(c) of the Act

and recommended that the motion to dismiss be denied. The Department adopted this

recommendation on November 2, 2009, and denied Aurora Manor’s motion to dismiss.

¶ 5 An administrative hearing was held on July 13, 2010, at which three witnesses testified,

including the surveyor, Daniel Pletcher. He testified that he completed the survey on

February 3, 2009, and that he was the only surveyor involved in the investigation. The ALJ

issued a report and recommendations on October 25, 2010, and concluded that the

Department had proven bya preponderance of the evidence that AuroraManor violated three

separate Department regulations, that the violations constituted a “Type A” violation, and

that a $5,000 fine was appropriate. On November 3, 2010, the Department adopted the

findings of the ALJ in its final order, imposing a Type A violation and a $5,000 fine.

¶ 6 On November 24, 2010, Aurora Manor filed a complaint for administrative review in the

circuit court of Cook County. Aurora Manor again argued that the Department lost subject

matter jurisdiction when it failed to determine whether violations had occurred within 60

days of completion of the survey. The circuit court found “the plain language of section 3-

212(c) demonstrate[d] that the Survey Processing Log [was] not the ‘determination’ of a

violation” because it was signed by a reviewer and did not indicate its purpose. Based on a

comment on the log stating that the facility comments had been reviewed, the circuit court

noted that the log might be the report referred to in section 3-212(c) of the Act. Therefore,

the circuit court found that the Department made its determination more than 60 days after

completion of the survey, and declared the Department’s final order void. The Department

timely filed this appeal.

¶ 7 ANALYSIS

¶ 8 The Department contends that the determination of violations was made after completing

a legal review and then recorded by the Director’s designee on the log on April 3, 2009.

Aurora Manor responds that the notice of violations is the determination, and that the log is

at most onlya recommendation to the Department’s Director. This court reviews the findings

of the administrative agency, and not those of the circuit court. Exelon Corp. v. Department

of Revenue, 234 Ill. 2d 266, 272 (2009).

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¶ 9 The appropriate standard of review is determined by whether the question is one of fact,

one of law, or a mixed question of fact and law. Cinkus v. Village of Stickney Municipal

Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). The findings and conclusions on

questions of fact made by the administrative agency are held to be prima facie true and

correct. 735 ILCS 5/3-110 (West 2010). Therefore, the court will not reweigh the evidence

or substitute its judgment for that of the agency, but will only ascertain if the findings of fact

are against the manifest weight of the evidence. Cinkus, 228 Ill. 2d at 210. In contrast, an

agency’s determinations on questions of law are not binding on a reviewing court and are

reviewed de novo. Cinkus, 228 Ill. 2d at 210-11. However, courts give substantial weight and

deference to an agency’s interpretation of an ambiguous statute. Illinois Consolidated

Telephone Co. v. Illinois CommerceComm’n, 95 Ill. 2d 142, 152 (1983). Where the agency’s

interpretation involves resolution of jurisdictional questions, “ ‘judicial deference to

administrative interpretation applies in full strength.’ ” Id. at 152-53 (quoting Pan American

World Airways, Inc. v. Civil Aeronautics Board, 392 F.2d 483, 496 (D.C. Cir. 1968)).

¶ 10 Mixed questions of law and fact are “ ‘questions in which the historical facts are admitted

or established, the rule of law is undisputed, and the issue is whether the facts satisfy the

statutory standard, or to put it another way, whether the rule of law as applied to the

established facts is or is not violated.’ ” (Internal quotation marks omitted.) Cinkus, 228 Ill.

2d at 211 (quoting American Federation of State, County & Municipal Employees, Council

31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577 (2005)). An

agency’s findings on mixed questions of law and fact are reviewed under a clearly erroneous

standard of review and, consequently, will not be reversed unless the reviewing court has a

definite and firm conviction that a mistake has been made. Cook County Republican Party

v. Illinois State Board of Elections, 232 Ill. 2d 231, 245 (2009). This standard affords more

deference to the agency on the basis of its experience and expertise than the de novo

standard, but less deference than the manifest weight of the evidence standard applied to an

agency’s findings of fact. AFM Messenger Service, Inc. v. Department of Employment

Security, 198 Ill. 2d 380, 392, 395 (2001).

¶ 11 The question of whether the notice of violation is the determination that a violation

occurred requires interpretation of the Act. The interpretation of statutory provisions is a

question of law reviewed de novo. Mattis v. State Universities Retirement System, 212 Ill.

2d 58, 76 (2004). Section 3-212(c) of the Act required, at the time in question, that violations

“be determined *** no later than 60 days after completion of each inspection, survey and

evaluation.” 210 ILCS 45/3-212(c)(West 2008). Section 3-301 of the Act requires that after

1

“the Director or his designee determines that a facility is in violation of this Act *** he shall

serve a notice of violation upon the licensee within 10 days thereafter.” 210 ILCS 45/3-301

(West 2008). Therefore, according to the plain language of the statute, the Department has

60 days after completion of the survey to make a determination of a violation, and 10 days

Section 3-212 has since been amended to allow 90 days for determinations. See 210 ILCS 1

45/3-212(c) (West 2010).

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after making that determination to serve a notice of violation upon the licensee. Equating 2

the determination of a violation with the notice of violation would render the 10 days the Act

allows to serve a notice of violation after making a determination a nullity. This would

violate the rule of statutory construction that, if at all possible, a statute should be construed

so that no part is rendered a nullity. See Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92,

105 (2003). The primary rule of statutory construction is to give effect to the intent of the

legislature, and the legislature clearly intended the determination of a violation and notice

of violation to be separate events. See Exelon, 234 Ill. 2d at 274. Thus, we conclude that the

notice of violation is not the same as the determination of the violation.

¶ 12 The question of whether the log constitutes a determination of violation requires

consideration of whether the log satisfies the statutory standard for such a determination.

This presents a mixed question of law and fact to be reviewed for clear error. The version of

section 3-212(c) of the Act in effect at the time provides as follows:

“Upon completion of each inspection, surveyand evaluation, the appropriate Department

personnel who conducted the inspection, surveyor evaluation shall submit a copyof their

report to the licensee upon exiting the facility, and shall submit the actual report to the

appropriate regional office of the Department. Such report and any recommendations for

action by the Department under this Act shall be transmitted to the appropriate offices

of the associate director of the Department, together with related comments or

documentation provided by the licensee which may refute findings in the report, which

explain extenuating circumstances that the facility could not reasonably have prevented,

or which indicate methods and timetables for correction of deficiencies described in the

report. Without affecting the application of subsection (a) of Section 3-303, any

documentation or comments of the licensee shall be provided within 10 days of receipt

of the copy of the report. Such report shall recommend to the Director appropriate action

under this Act with respect to findings against a facility. The Director shall then

determine whether the report’s findings constitute a violation or violations of which the

facility must be given notice. Such determination shall be based upon the severity of the

finding, the danger posed to resident health and safety, the comments and documentation

provided by the facility, the diligence and efforts to correct deficiencies, correction of the

reported deficiencies, the frequency and duration of similar findings in previous reports

and the facility’s general inspection history. Violations shall be determined under this

subsection no later than 60 days after completion of each inspection, survey and

evaluation.” 210 ILCS 45/3-212(c) (West 2008).

Section 1-110 of the Act defines “Director” as “the Director of Public Health or his

designee.” 210 ILCS 45/1-110 (West 2008).

¶ 13 According to the plain language of the statute, three actions are required before a

determination can be made: (1) the Department personnel who conducted the survey must

Both parties agree that the 10-day requirement to provide notice to the facility once a

2

determination of violation has been made is not mandatory.

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submit a copy of their report to the licensee and send the original to the appropriate regional

office of the Department; (2) the licensee must be given 10 days to submit comments or

documentation refuting findings in the report; and (3) the report, any recommendations for

action, and the facility’s comments must then be transmitted to the appropriate offices of the

associate director of the Department. The Director or his designee must then determine

whether the report’s findings constitute a violation, taking into consideration multiple

factors, including any comments or documentation provided by the facility.

¶ 14 The Department contends that the log is the determination made by the Director’s

designee after receiving the report, recommendations, and facility comments. Aurora Manor

responds with several alternative arguments, contending that the log is the surveyor’s report

or, at most, the recommendation for action required to be transmitted to the associate director

of the Department before a determination can be made; that allowing the reviewer to make

the final determination renders the Director a mere rubber stamp; and that the legislature

could not have intended for the Department to make a determination of violation without

providing a copy of the actual determination to the facility. Unfortunately, because the record

contains no documentation regarding the actual process followed by the Department in

making its determination, we must determine whether the ALJ’s decision was clearly

erroneous based on our review of the log itself, comparing the actual document to the

statutory requirements.

¶ 15 The record does not include any specific reasons for the ALJ’s denial of Aurora Manor’s

motion to dismiss on jurisdictional grounds. In the ALJ’s report and recommendations

entered on October 25, 2010, the ALJ made an express finding of fact that the Department

made its determination of violation on April 3, 2009. In the Department’s response to Aurora

Manor’s motion to dismiss, the Department stated that it records the exact date of its

determination of violation in every survey case on the survey processing log form, and it

attached a copy of the pertinent log. There was no other document attached to the response,

and we have found no other document in the record dated April 3, 2009, that could

conceivably constitute a determination of violation. Thus, it is apparent that the ALJ’s

finding was based on his conclusion that the log constituted the determination of violation.

¶ 16 The log was completed by someone other than Pletcher, the surveyor who conducted the

inspection. However, it is not clear from the face of the document whether it was generated

by the regional office or by the associate director’s office. The signature line simply contains

the designation “Reviewer.” The majority of the fields on the log were populated by

computer entries and contain background information such as the facility name and location

and various date entries, including the date the immediate jeopardy was abated, the dates

forms and packages are due, and future date indicators. The form includes a 60-day field that

is populated with “04/04/09.” A reviewer number and name are also shown in this portion

of the log. The bottom section of the log contains a few handwritten comments and notations

and a reviewer’s signature and identification number. The comments section of the log

contains two handwritten lines: “Legal review completed 4/3/09” and “Facilities comments

reviewed 3/16/09.” The log also shows a handwritten “1” next to the number of violations,

and the line next to “A” is checked, the same violation type cited in the notice of violations

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served on Aurora Manor. Although there is nothing specific on the log to indicate whether

it is a recommendation or a final determination, the reviewer’s signature and handwritten

identification number do not match the computer-generated reviewer name and number

shown earlier on the log, and Pletcher’s name does not appear on the log.

¶ 17 We now turn to Aurora Manor’s various arguments that the log does not constitute the

determination of violation. Aurora Manor first contends that the log is the report itself. This

argument has no merit on its face. The report is prepared by the surveyor and a copy of the

report is given to the facility upon completion of the survey. The log contains no mention of

Pletcher and is dated 59 days after the date Pletcher completed his investigation and provided

Aurora Manor with a copy of the report. Notably, Aurora Manor has stated that it did not

receive a copy of the log until after it received the notice of violation and later argues that if

the log is the determination, it should have received a copy of the log before receiving the

notice. Moreover, the record contains a document entitled “Incident Investigation Report”

with Pletcher’s name listed as the surveyor as well as the dates the investigation was initiated

and completed, and copies of Pletcher’s investigation interview notes. For all of these

reasons, the log is clearly not the report required by the Act. Aurora Manor also contends that

the log is not the determination because it does not reference specific violations of the Act.

However, there is nothing in the statute that requires the determination itself to reference

specific violations. Aurora Manor further contends that if the reviewer who prepares the log

is the individual who makes the determination, the Department’s Director becomes “a mere

clerical worker or rubber-stamp.” However, the statute clearly defines “Director” as the

Director or his designee, and the designee would be anyone who is given the authority by the

Director to make the determination. Aurora Manor further contends that a conclusion that

the log constitutes the determination leads to absurd results, because the facility has no

access to the log and does not receive a copy of it unless the facility appeals the notice.

However, the statute requires the facility be given notice within 10 days after a determination

has been made, but does not require the Department to provide evidence of the determination

itself. Finally, Aurora Manor contends that, at most, the log is the recommendation referred

to in the statute. However, there is nothing on the face of the log to indicate that it is merely

a recommendation rather than the actual determination.

¶ 18 Based upon our review of the statutory requirements and the log itself, together with the

entire record, we do not have a definite and firm conviction that a mistake was made by the

ALJ. There is nothing on the log to indicate that it was merely a recommendation or that it

originated from the regional office, and it appears that the person who completed the log

could have been a second reviewer because a separate name and identification number appear

earlier on the log. The comments indicate that the statutory requirement of considering the

facility comments was satisfied, and further indicate that a legal review was completed,

seeming to indicate a more final step in the process. Thus, the ALJ’s finding that the

Department made its determination of violations on April 3, 2009, within the 60-day

requirement, was not clearly erroneous.

¶ 19 Aurora Manor next contends that collateral estoppel bars the Department from arguing

the log represents the date the determination was made, relying on this court’s decision in

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Pinnacle Opportunities, Inc. v. Department of Public Health, No. 1-09-2090 (2010)

(unpublished order underSupremeCourt Rule 23). “Collateral estoppel maybe applied when

the issue decided in the prior adjudication is identical with the one presented in the current

action, there was a final judgment on the merits in the prior adjudication, and the party

against whom estoppel is asserted was a party to, or in privity with a party to, the prior

adjudication.” Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d

71, 77 (2001). Here, the first requirement is not satisfied. The issue in Pinnacle was whether

the 60-daylimitation in section 3-212 of the Act was mandatory or directory. Thus, collateral

estoppel does not apply.

¶ 20 Finally, we address Aurora Manor’s contention on cross-appeal that it is entitled to

attorney fees because it prevailed on its complaint for administrative review. Because we are

reversing the judgment of the circuit court, this argument is no longer valid. Moreover, the

circuit court did not err in denying Aurora Manor’s motion for award of attorney fees and

litigation expenses. Aurora Manor is not entitled to attorney fees simply because it prevailed

in the circuit court. Section 10-55(c) of the Illinois Administrative Procedure Act provides:

“In any case in which a party has any administrative rule invalidated by a court for any

reason, including but not limited to the agency’s exceeding its statutory authority or the

agency’s failure to follow statutory procedures in the adoption of the rule, the court shall

award the party bringing the action the reasonable expenses of the litigation, including

reasonable attorney’s fees.” 5 ILCS 100/10-55(c) (West 2010).

In the case sub judice, no administrative rule was invalidated, even at the circuit court level.

Thus, the trial court correctly denied the motion for award of attorney fees and litigation

expenses.

¶ 21 Forthe aforementioned reasons, the judgment of the circuit court declaring void the final

order of the Department is reversed and the Department’s final orderis reinstated. The circuit

court’s order denying Aurora Manor’s motion for the award of attorney fees and litigation

expenses is affirmed.

¶ 22 Affirmed in part and reversed in part.

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