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Burke v. Dept. of Registration & Education

OPINION FILED MAY 1, 1980.

SERENA B. BURKE ET AL., PLAINTIFFS-APPELLANTS,

v.

THE DEPARTMENT OF REGISTRATION & EDUCATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR L. DUNNE, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 29, 1980.

The plaintiffs, Serena B. Burke, Suthida Earmsmuth, Belen B. Ledda, Philomena Viegas and Srisamorn Bancham appeal from an order entered by the circuit court of Cook County affirming the denial of registered nurse licensure to them by the defendant, the Department of Registration & Education (the Department). On appeal the plaintiffs argue (1) Rule K(b), under which they were denied licensure by endorsement, does not apply to them, and (2) that application of Rule K(b) to them results in a denial of equal protection and due process.

The Illinois Nursing Act (Ill. Rev. Stat. 1977, ch. 111, par. 3401 et seq.) provides that one must be licensed in order to practice professional nursing in Illinois. One method of qualifying for an Illinois license is to pass the national test pool examination in Illinois. The examination is administered periodically, in identical form, in each of the 50 States. It consists of five subject areas and a passing grade is required for each subject.

Rule K(b), which was duly promulgated by the Department, provides:

"Applicants who fail a test or tests three times must repeat the entire course, both theory and nursing practice, in that subject matter area in an approved program of nursing before they will be permitted to write the test for the fourth time."

The second method of qualifying for a license is known as "licensure by endorsement." If a person has been licensed in another State which has "substantially equal" licensing requirements, that person may be licensed "by endorsement" in Illinois without taking the examination. Ill. Rev. Stat. 1977, ch. 111, par. 3428.

In determining whether the licensing provisions of other States are "substantially equal" to Illinois' licensing requirements, the Department has looked to Rule K(b)'s provision for repeating courses in the failed subjects. The Department has interpreted "substantially equal" to mean that where another State does not have a three-failure rule comparable to that contained in Rule K(b), the "substantially equal" requirement has not been met.

The nurses here have each passed the examination in other States following at least three failures. Three of the plaintiffs failed the exam twice in Illinois and two of the plaintiffs failed the exam three times in Illinois before being successful in other States. They each applied in Illinois for licensure under the endorsement provision of the statute. Each plaintiff was advised that because of the number of times she had failed the examination her application would not be considered by the Department until she had taken the Rule K(b) courses.

Rule K(b) has been interpreted in various ways since 1972. Although the record and briefs are rather unclear as to the different interpretations and when they occurred, we believe the following sequence is accurate.

The rule was initially interpreted so as not to count examination failures which occurred prior to 1972, the year in which Rule K(b) was promulgated. Furthermore, until June of 1974, an applicant could fail the examination three times in Illinois, subsequently pass the examination in another State and be licensed in that other State, and be eligible for licensure by endorsement in Illinois without repeating the course work specified in Rule K(b).

In June 1974, the Department decided that if an individual failed the examination three times in Illinois he or she could not get an Illinois license without repeating the course work even if that person subsequently passed the examination in another State, and was licensed by that other State.

This interpretation led to legal proceedings in 1975, brought on behalf of applicants who had failed the examination three times in Illinois and subsequently passed it in another State but who, unlike those failing the examination three times or more in other States, were required to repeat courses under Rule K(b) in order to be licensed in Illinois. Those actions were settled by granting licensure by endorsement to the plaintiff/applicants. Pursuant to the settlement, persons similarly situated were also permitted to submit applications for licensure by endorsement within 90 to 120 days.

Finally, in June of 1977, the Department determined that failures in States other than Illinois should be treated no differently from failures occurring in Illinois. Beginning with that date, the Department has been denying licensure by endorsement to any applicant who has failed the examination three ...


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