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People v. Gurell

OPINION FILED OCTOBER 4, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT AND CROSS-APPELLEE,

v.

MYRON GURELL ET AL., APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County, the Hon. Kenneth J. Cohen, Judge, presiding.

CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 2, 1983.

This case involves a criminal prosecution initiated pursuant to the Nursing Home Care Reform Act of 1979 (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4151-101 et seq.). Early in 1981, defendants were partners in the operation of the Mill View Nursing Center. They were charged in the circuit court of Cook County with certain violations of the Act. The court held the Act and regulations promulgated thereunder unconstitutional. The State appealed directly to this court. 87 Ill.2d R. 603.

Pursuant to the Act, the Illinois Department of Public Health is required to license and certify facilities such as Mill View. (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4153-101.) To carry out these regulatory functions the Department is authorized to prescribe minimum standards for these facilities by way of Department rules and regulations. Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4153-202.

Sections 1-129, 1-130 and 1-131 of the Act (Ill. Rev. Stat. 1979, ch. 111 1/2, pars. 4151-129, 4151-130, 4151-131) define three classes of violations — type A, type B and type C.

Section 1-129 provides:

"A `Type "A" violation' means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom. (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4151-129.)

Section 1-130 defines a type B violation as follows:

"A `Type "B" violation' means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility directly threatening to the health, safety or welfare of a resident." (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4151-130.)

Section 1-131 defines a type C violation as follows:

"A `Type "C" violation' means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility which indirectly threatens the health, safety or welfare of a resident." (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4151-131.)

Section 3-305 (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4153-305) provides civil penalties for a violation of the Act or any rule adopted thereunder.

In addition to the civil penalties, section 3-318 (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4153-318) provides that no person shall "[i]ntentionally fail to correct or interfere with the correction of a Type `A' or Type `B' violation within the time specified on the notice or approved plan of correction" and provides that a violation of this section constitutes a Class A misdemeanor.

Early in 1981, pursuant to section 3-301 of the Act (Ill. Rev. Stat. 1979, ch. 111 1/2, par. 4153-301), the Department gave notice to the Mill View facility that it was in violation of numerous Department regulations, including the following:

"The facility shall have written policies and procedures, governing all services provided by the facility which shall be formulated by a Resident Care Policy Committee consisting of at least the administrator, the advisory physician or the medical advisory committee and representatives of nursing and other services in the facility. These policies shall be in compliance with the Act and all rules promulgated thereunder. These written policies shall be followed in operating the facility and shall be reviewed at least annually by this committee, as evidenced by written, signed and dated minutes of such a meeting. (B, C)"

"All medications shall be administered only by licensed medical or licensed nursing personnel in accordance with their respective licensing requirements. They shall be administered as soon as possible after doses are prepared and administered by the same person who prepared the doses for administration, except under single unit dose packaged distribution systems. Each dose administered shall be ...


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