## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Auror a Manor, In c. v. D epartm ent of Public Health , 2012 IL App (1st) 112775

Appellate Court Caption AURORA MANOR, I NC., Plaintiff-Appellee and Cross-Ap p el lant, v. THE DEPARTMENT OF P UB L I C HEAL TH; TERESA GARATE, Assistant Direc tor, The Depa rtment of Public He al t h ; and DAMON T. ARNOL D, Direc tor, The Depa rtment o f Public Hea lth, DefendantsAppellants and Cross-A

ppellees.

District & N o. First District, Third Division Docke t 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filed Rule 23 Order withdrawn Opinion filed August 23, 2012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 : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by t h e Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising from an incident in which a resident eloped from plaintiff’s nursing home, an ad m i nistrative law judge ’s finding that the Depa rtment of Public Hea lth made its deter mination of violations by plaintiff within the 60-day require ment of the Nursing Home Care Act was not cle arly

err oneous.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-CH-50386; the Hon. Sophia H. Hall, Judge, pr esiding

.J udg ment Affir med in part a

nd reve rsed in par

t.

Counsel on Appea l L i s a Madig an, Attorney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Paul Racette, Assistant Attorney Gene ral, of counsel), f

or appe llants.

Polsi nelli Sh u ghart PC, of Chicag o (Jason T. Lundy and Mere dith A. Dunca n, of counse l), for a

ppellee.

Panel J USTI CE STERBA deliver ed the judg ment of the c ourt, with opinion.
J ustices Fitzge rald Smit h and Pu ci n s k i concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant- appellant and cross-a ppellee t h e I l l i n o i s De p ar t m en t o f P ub l ic Hea lth (De partment) issued a notice of violation and fine assessment to plaintiff-a ppellee and crossappellant Aurora Manor, I nc., after completion of a survey following an incident in which

a resident el o ped from Aurora Manor’ s fac ility

. Following administrative revie w, the deter mination of violation and the assessment of a $5,000 fine wer e aff irmed. Aurora Manor
soug ht revie w in the circ uit court, and the court voided the order imposing the violation and fine. On appea l, the Depa

rtment contends it made a deter mination of violation afte r 59 day s, within the 60-day limit imposed by section 3-212 of the Nursing Home Care Act (Ac t) (210 I L CS 45/3-212(c) (West 2008)). For the rea sons that follow, we reve rse the judgme nt of the circ uit c ourt voiding the Depa rtment’s final order
, thus r einstating the Depa rtment’s order

.

¶ 2 BA CKGROUND
¶ 3 At approximately 3:40 a.m. on Dec ember 3, 2008, a resident of the Aurora Rehabilitation and L iving Center in Aurora
, I llinois
, exit ed the fac ility unnoticed by staff. The resident was spotted by a medi-van driver in the parking lot, who then informed the fac ility

. The resident

was found by the medi-v an d ri ver and a nurse from the fac ility about 15 minutes later wande ring in a T-shirt and t ro u s er s o n the side of a road that ran para llel to an interstate highw ay

. In response to the incident, the Depa rt m en t conducte d a licensure survey investigation that was completed on Fe bruar y 3, 2009. On April 15, 2009, the De partment issued a notice to Aurora Manor that it had committed multipl e violations of the Act and the Depa rtment’s regu l at i o n s and assessing a $5,000 fine. On April 22, 2009, Aurora Manor
reque sted a he aringto contest the dete rmination of violations.

-2-¶ 4 Prior to the hear in g, Au ro ra M an o r filed a motion to dismiss on the g rounds that the

Depa rtment lost subject matter jurisdiction when the Depa rtm en t failed to deter

mine the exis tence of a violation within 60 day s of completion of the inspection survey , as required by the Act. Aurora Manor argued the notice of violations was the deter mination require d by
t h e Act, and the notice of violations was not issued until 71 day s afte r completion of t h e survey

. The Depa

rtment responde d that it made its deter mination prior to the issuance of the notice, and rec orded it on the “I llinois Depa rtment of Public He al t h ; SNF/NF Survey Processing L og ” (log ) dated April 3, 2009, within the 60-day period. The administrative law judge (AL J ) found that “the Depa rtment deter

mined that a violation exis ted on April 3, 2009, 59 day s afte r completion of its survey .” There fore, the AL J conclude d the occur renc e of violations was determined withi n the 60-day lim i t i m p o s ed by section 3-212(c) of the Act and rec ommended that the motion to dismiss be denied. The De p artment adopted this

rec ommendation on November 2, 2009, and denie d Aurora Manor’ s motion t o dismiss

. ¶ 5 An administrative hear ing was held on J uly 13, 2010, at which three witnesses testified, including the surveyor, Daniel Pletcher. He testified that he completed the survey on Fe bruar y 3, 2009, and that he was the only surveyor involved in the investigation. The AL J issued a repor

t and rec ommendations on October 25, 2010, and conclu d ed that the Depa rtment had proven by a preponde ranc e of the evidenc e that Aurora Manor violated three
separ ate Depa

rtment regulations, that the violations constituted a “Ty pe A” violation, and that a $5,000 fine was appropriate. On November 3, 2010, the Depa rtment adopted the finding s of the AL J in its final order, imposinga Ty pe A violation and a

$5,000 fine.
¶ 6 On November 24, 2010, Aurora Manor filed a complaint for administrative revie w in the circ uit court of Cook County . Aurora Manor ag ain argued that the Depa rtment lost subject
matter jurisdiction when it failed to deter mine whether violations had occur red within 60 day s of completion of the sur vey . The c ircuit court f

ound “the plain lang

uag e of se ction 3- 212(c) demonstrate[d] that the Survey Processing L og [ wa s ] n o t the ‘dete rmination’ of a violation” beca

use it wa s signe d by a revie wer and did not indicate its pur pose. Ba sed on a comment on the logstating that the fac ility comments had be en re viewed, the circ uit c ourt noted that the logmight be the repor t refe rre d to in section 3-212(c) of the Act. The ref ore, the circ uit c ourt found that the Depa rtment made its de termination more than 60 day s afte r completion of the survey , and decla red the Depa

rtment’s final order void. T he Depa rtment timely filed this appea l.

¶ 7 ANALYSI S
¶ 8 The Depa

rtment contends that the d e te rmination of violations was made afte r completing

a leg al revie w and then rec orded by the Direc tor’s desig nee on the log on April 3, 2009. Aurora Manor responds that the notice of violations is the deter mination, and that the log is
at most only a rec ommendation to the Depa rtment’s Direc tor. This court revie ws the finding s of the administrative ag ency , and not those of the circ uit court. Exe lon Corp. v. Departme nt of Reve nue , 234 I ll. 2d 266, 272 (2009).

-3-¶ 9 The appropr iate standard of revie w is deter mined by whether the question is one of fac t,

one of law, or a mix ed question of fac t an d l aw. Cinkus v. Village of Stickney Municipal Officers Electoral Board
, 228 I ll. 2d 200, 210 (2008). The finding s and conclusions on questions of fac t made by the admin i s t ra t i v e agency are held to be prima facie true and

corr ect. 735 I L CS 5/3-110 (West 2010). There fore
, the court will not rew eig h the evidenc e

or substitut e its judgme nt for that of the ag ency , but will only asce rtain if the finding s of fac t

are ag ainst the manifest weig ht of the evidenc e. Cinkus
, 228 I ll. 2d at 210. In contra st, an ag ency ’s deter

minations on questions of law ar e n o t binding on a revie wing court and are revie wed de novo

. Cinkus
, 228 I ll. 2d at 210-11. Howeve r, courts g ive substantial weight and defe renc e to an ag ency ’s interpre tation of an ambiguous statute. Illinois Con s o l i dated Telephone Co. v. Illinois Commerce Comm’n
, 95 I ll. 2d 142, 152 (1983). Where the ag ency ’s interpre tation involves resolution of jurisdictional questions, “ ‘judicial defe renc e to administrative interpre tation applies in full streng th.’ ” Id

. at 152-53 (quoting Pan American W orld Airways, Inc. v. Civil Aeronautics Board, 392 F.2d 483, 496 ( D.C. Cir. 1968)).
¶ 10 Mix ed questions of law and fac t are “ ‘questions in which the historical fac ts are admitted

or established, the rule of law is undisputed, and the issue is whether the fa ct s satisfy the statutory standard, or to put it another way , whether the rule of law as applied to the established fac ts is or is not violated.’ ” (Interna l quotation marks omitted.) Cinkus
, 228 I ll. 2d at 211 (quoting American Fede ration of State, County & Municipal Employe es, Council 31 v. Illinois State Labor Relations Board, State Panel
, 216 I ll. 2d 5 6 9
, 5 7 7 (2005))

. An
ag ency ’s finding s on mix ed questions of law and fac t are revie wed under a clea rly err oneous standard of revie w and, conseque ntly
, will not be reve rsed unless the revie wing court has a definite and firm conviction that a mistake has been made. Cook County Republican Party

v. Illinois State Board ofElections
, 232 I ll. 2d 231, 245 (2009). This standard aff ords more defe renc e to the ag ency on the basis of its experience and experti s e than the de novo standard, but less defe renc e than the manifest weight of the evidenc e standard applied to an ag ency ’s finding s of fac t. AFM Messe nger Servic e, In c. v. Departme nt of Employme nt Security , 198 I ll. 2d 380, 392, 395 (2001). ¶ 11 T h e q u estion of whether the notice of violation is the deter mination that a v i o l at i o n

occur red require s interpre tation of the Act. The interpre tation of statutory p ro v i sions is a question of l aw reviewe d de novo

. Ma t t is v. Stat e Universities Retireme nt System
, 212 I ll. 2d 58, 76 (2004). Section 3-212(c ) of the Act require d, at the time in question, that violations “be deter mined *** no later than 6 0 day s afte r completion of eac h inspection, survey and evaluation.” 210 I L CS 45/3-212(c) (West 2008). Section 3-301 of the Act require s that afte r 1 “the Direc tor or his desig nee deter mines that a fac ility is in violation of this Act *** he shall

serve a notice of violation upon the licensee within 10 day s there afte r.” 210 I L CS 45/3-301 (West 2008). Ther efor e, ac cordingto the plain languag e of the statute, the Depa rtment has 60 day s afte r completion of the surve y to make a de termination of a violation, and 10 day s

Sec ti on 3- 212 has si nce bee n amended to al low 90 days for det er m ina ti ons

. See 210 I LCS 1 45/ 3- 212( c) (W est 201 0).

-4-afte r m aking that deter mination to serve a noti ce of vi olation upon the l icense e. Equating 2 the deter mination of a violation with the notice of violation would rende r the 10 day s the Act allows to serve a notice of violation afte r making a deter mination a nu l l i t y

. T h i s would violate the rule of statutory construction that, if at all possible, a statute should be construed

s o that no part is rende red a nullity

. See Eads v. Heritage Enterprises, Inc.
, 204 I ll. 2d 92
, 105 (2003). The primary rule of statutory const ru cti on is to g ive eff ect to the intent of the leg islature, and the l eg islature clearly intended the deter mination of a v i o l ation and noti ce of violation to be separ ate events. See Exe lon
, 234 I ll. 2d at 274. Thus, we conclude that the notice of violation is not the same a s the deter mination of the violation. ¶ 12 The question of whether the log const i t u t es a d et er m i n at i o n o f v i o l ation require s consideration o f wh et her the log satisfies the statutory standard for such a deter mination. This prese nts a mix ed question of law and fac t to be revie wed for clea r err or. The version of section 3-212( c) of

the Act in ef

fec t at the time provides as f ollows: “Upon c o mp le ti o n o f eac h inspection, survey and evaluation, the appropr iate Depa rtment personne l who conducte d the inspection, survey or evaluation shall submit a copy of their
repor t to the licensee upon exit ing the fac ility
, and shall subm it the actual r eport to the
appropr iate reg ional office of the Depa rtment. Such repor

t and any rec ommendations for action by the Department under this Act s h al l be transmitt ed to the appropriate offices of the associate direc tor of the Depa rtment, toge ther with related comments or documentation provided by the licensee which may ref ute finding s in the repor

t, which explain extenuating circ umstances that the fac ility could not rea sonably have preve nted,

or which indicate methods and timetables for corr ection of defic iencies descr ibed in the
repor t

. Wit hout aff

ecting the application of subsection (a) of Section 3-303, any documentation or comments of the licensee shall be provided within 10 day s of rec eipt of the copy of the repor

t. Such repor

t shall rec ommend to the Direc tor appropr iate action

u n d er this Act with respe ct to finding s ag ainst a fac ility

. The Direc tor shall then deter mine whether the repor

t’s finding s constitute a violation or violations of which the fac ility must be g iven notice. Such deter mination shall be based upon the sever ity of the finding
, the dang er posed to resident health and safe ty , the comments and documentation provided by the fac ility
, the diligenc e and eff orts to corr ect defic iencies, corr ection of the
repor ted defic iencies, the fre quency and duration of simil ar finding s in previous repor ts and the fac ility ’s g ener al inspection history

. Violations shall be deter mined under this subsection no later than 60 day s afte r co m p l eti on of eac h inspection, survey and evaluation.” 210 I L CS 45/ 3-212(c ) (West 2008).

Section 1-110 of the Act d ef i n es “Dire ctor” as “the Direc tor of Public Hea lth or his desig nee.” 210 I L CS 45/ 1-110 (West 2008). ¶ 13 According to the plain languag e of the statute, three actions are re q u i re d b ef o re a deter mination can be made: ( 1) t he Department personnel who conducte d the s urvey must

Both p a r t i e s agree tha t the 10- day re qui re m ent to pro vide not ic e to the fa ci li ty onc e a 2 det erm ina ti on o f viol at ion has bee n made i s no t mandat ory.

-5-submit a copy of their repor t to the licensee and send the orig inal to the appropr iate reg ional office of the Depa

rtment; (2) the licensee must be g iven 10 day s to submit comm en t s or documentation ref

uting finding s in the repor t; a nd (3) the repor

t, a ny rec ommendations for action, and the fac ility ’s comments must then be transmitted to the appropriate office s of the

asso ci at e direc tor of the Depa rtment. The Direc tor or his desig nee must then deter mine whether the repor

t’s finding s constitute a violation, taking into consider at i o n m ultiple fac tors, including a

ny comments or docume ntation provided by the fa cility

. ¶ 14 T h e De p ar t m en t contends that the log is the deter mination made by the Dire ct o r’ s desig nee afte r rec eiving the repor t, rec ommendations, and fac ility comments. Aurora Manor responds with sever al alternative arguments, contending that the log is the surveyor’s repor t
or, at most, the rec ommendation for action require d to be transmitted to the associate direc tor of the Depa

rtment befor e a deter

mination c an be made; that allowing the revie wer to make the final d eter

mination rende rs the Direc tor a mere rubber stamp; and that the leg islature could not have intended for the Depa rtment to make a dete rm i n ati on of violation without providing a copy of the actua l deter mination to the fac ility

. Unfortuna tely
, beca use the rec ord contains no documentation reg arding the actua l proce ss followed b y the Depa rtment in making its determination, we must deter mine whether the AL J ’s decision was clea rly

err on eo u s b ased on our revie w of the log itself, comparing the actua l document to the statutory require ments. ¶ 15 The rec ord does not include any specific rea sons for the AL J ’s denial of Aurora Manor’ s motion to dismiss on jurisdictional g round s

. I n the AL J ’s repor t and rec ommendations
enter ed on Oc tober 25, 2010, the AL J made an express findingof fa ct that the De partment made its deter

mination of violation on April 3, 2009. In the Depa rtment’s response to Aurora Manor’ s motion to dismiss
, the Depa rtment s t at ed t h at it rec ords the exact date of its deter m i n at i o n o f v iolation in ever y survey case on the survey proce ssing log form, and it attache d a copy of the pertinent log. There was no other document attache d to the response , and we h ave found no other document in the rec ord dated April 3, 2009, that could

conce ivably constitute a deter mination of violation. Thus, i t i s appar ent that the AL J ’s finding was based on his conclusion that the log constituted the deter mination of violation.
¶ 16 The log was completed by someone other than Pletcher, the surveyor who conducte d the inspection. Howeve r, it is not clea r from the fac e of the document whether it was g ener ated by the reg ional office or by the associate direc tor’s office

. The signature line simply contains the desig nation “Review er.” The majority of the fields on the log wer e populated by computer entries and contain background information such as the fac ility name and location

an d v arious date entries, including the date the immediate jeopar dy was abate d, the dates forms and packa g es are due, and future date indicators. The form includes a 60-day field that is populated with “04/04/09.” A r eviewe r number a nd name a

re a lso shown in this portion of the log. The bottom section of the log contains a few handwr itten comments and notations and a revie wer ’s signature and identification number

. T h e comments section of the log contains two handwr itten lines: “L eg al revie w completed 4/3/09” and “F acilities comments revie wed 3/16/09.” The log also shows a handwr itten “ 1” next to the number of violations, and the line next to “A” is chec ked, the same violation ty pe cited in the notice of violations

-6-serve d on Aurora Manor. Although there is nothing spec ific on the logto indica te whether it is a rec ommendation o r a fi nal deter mination, the revie wer ’s signature and handwr itten identification number do no t m at ch the computer- g ener ated revie wer name and number shown ea rlier on the log , and Pletcher ’s name doe s not appea r on the log

. ¶ 17 We now turn to Aurora Manor’ s various ar guments that the logdoes not constitute the deter mination of violation. Aurora Manor first contends that the log is the repor t itself. This
argument has no merit on its fa ce. The repor t is prepa red by the surveyor and a copy of the
repor t is g iven to the fac ility upon completion of the survey

. The log contains no mention of Pletcher and is dated 59 day s afte r the date Pletcher completed his investigation and provided Aurora Manor with a copy of the repor t. Notably
, Aurora Manor has stated that it did not

rec eive a copy of the log until afte r it rec eived the notice of violation and later argues that if the l og i s t he determination, it should have rec eived a copy of the log before rece iving the notice. Moreover, the rec ord contains a docu m ent entit led “I ncident I nvestig ation Report” with Pletcher’ s name listed as the surveyor as well as the dates the investigation was initiated

an d co m p l eted, and copies of Pletcher’ s investigation interview notes. For all of these

rea sons, the log is clea

rly not the repor

t require d by the Act. Aurora Manor also contends that the log is not the deter

mination beca

use it does not ref

ere nce specific violations of the Act. Howeve r, there is nothing in the statute that require s the deter mination i t s elf to ref

ere nce specific violations. Aurora Manor further contends that if the revie wer who prepa res the log is the individual who makes the deter mination, the Depa

rtment’s Direc tor become s “a mere cler ical worke r or rubber -stamp.” Howeve r, the statute clea rly define s “Dire ctor” as the Direc tor or his designee, and the desig nee would be anyone who is g iven the authority by the Direc tor to make the determ i n at i o n

. Aurora Manor further contends t hat a conclusion t hat the log constitutes the deter mination leads to ab s u rd results, beca use the fac ility has no

acc ess to the log and does not rec eive a copy of it unless the fac ility appea ls the notice. Howeve r, the statute require s the fac ility be g iven notice within 10 day s afte r a deter mination has been made, but does not require the Depa rtment to provide evidenc e of the deter mination itself. Finally
, Aurora Manor contends that, at most, the log is the rec ommendation ref err ed
to in the statute. Howeve r, there is nothing on the fac e of the log to indicate that it is mere ly

a re commendation rather than the actua l determination.
¶ 18 Ba sed upon our revie w of the statutory require ments and the log itself, toge ther with the entire rec ord, we do not have a definite and firm conviction that a mistake was made by the AL J

. There is nothing on the logto indicate that it was mer ely a re commendation or that it

o ri gi n at ed from the reg ional office
, and it appea rs that the person who completed the log could have been a second revie wer beca use a separ ate na

me a n d id e ntification number appea r

ear lier on the log . The c omments indica te that the statutory require ment of considering the fac ility comments was satisfied, and further indicate that a leg al revie w was completed, seeming to indicate a more final step in the proce ss. Thus, t h e AL J ’s finding that the Depa rtment made its deter

mination of violations on April 3
, 2009, within the 60-day require ment, was not cle arly err oneous. ¶ 19 Aurora Manor next contends that collater al estoppel bars the Depa rtment from ar guing the l og repr esents the date the deter mination was made, rel yi n g o n this court’s decision in

-7-Pinnacle Opportunities, Inc. v. Departme nt of Public Health
, No. 1-09-2090 (2010)

(unpublished order und e r Su p r e me Co u

rt Rule 23). “Collatera l estoppel may be applied when the issue decide d in the prior adjudication is ide ntical with the one prese nted in the curr ent action, there was a final judgme nt on the merits in the prior adjudication, and t h e p ar t y aga i n s t wh o m estoppel is asser ted was a party to, or in privity with a party to, the pri o r adjudication.” Du Page Forklift Servic e, Inc. v. Material Handling Servic es, Inc.
, 195 I ll. 2d 71, 77 (2001). Her e, the first require ment is not satisfied. The issue in Pinnacle was whether the 60-day limit ation in section 3-212 of the Act was mandatory or direc tory

. Thus, collater al estoppel does not apply

. ¶ 20 Finally
, we addre ss Aurora Manor’ s co n t en t i o n o n cr o ss-appe al that it is entitled to attorney fee s beca

use it preva iled on its complaint for administrative revie w. Be cause we are

reve rsing the judgme nt of the circ uit c ourt, this a rgument is no longe r valid. Moreove r, the circ uit court did not err in denying Aurora M an o r’ s m o t i o n for awar d of attorney fee s and litigation expenses. Aurora Manor is not entitled to attorney fee s simply beca use it preva iled in the circ uit court. Section 10-55(c ) of the I llinois Administrative Procedur e Act provides:

“In any case in which a pa

rty has any administrative rule inva lidated by a cour t f or any

rea son, including but not limit ed to the ag ency ’s exceeding its statutory authority or the
ag ency ’s failure to follow statutory proce dures in the adoption of the rule, the court shall

awa rd the pa rty bring ing the action the r easona ble expenses of the litig ation, including

rea sonable a

ttorney ’s fe es.” 5 I L CS 100/ 10-55(c ) (West 2010).

In the case sub judice
, no administrative rule was invalidated, even at the circ uit court level. Thus, the trial court corr ectly denied the motion for awa rd of at t o rn ey fe es and litigation
expenses. ¶ 21 For the afor ementioned rea sons, the judgme nt of the circ uit court decla ring void the final order of the Depa

rtment is reve rsed and the Depa rtment’s final order is reinstated. The circ uit court’s order denying Aurora Manor’ s motion for the awa rd of attorney fee s and li tigation expenses is affirme d.

¶ 22 Affir

med in part a

nd reve rsed in par

t.

-8-