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09/02/87 the Grove School, v. the Department of Public

September 2, 1987

THE GROVE SCHOOL, PLAINTIFF-APPELLANT

v.

THE DEPARTMENT OF PUBLIC HEALTH, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

513 N.E.2d 973, 160 Ill. App. 3d 937, 112 Ill. Dec. 364 1987.IL.1277

Appeal from the Circuit Court of Cook County; the Hon. George M. Marovich, Judge, presiding.

APPELLATE Judges:

JUSTICE RIZZI delivered the opinion of the court. WHITE and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI

Plaintiff, Grove School, appeals from a judgment of the circuit court of Cook County confirming an order of defendant, the Illinois Department of Public Health. On administrative review, the Illinois Department of Public Health found that plaintiff committed a type B violation (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-130) and denied plaintiff's motion to dismiss the administrative proceedings for lack of timeliness. Plaintiff contends that the finding that it was guilty of abuse was against the manifest weight of evidence, and that the hearing and decisions of defendant were void because it failed to grant a hearing within 30 days. We affirm.

Plaintiff is a privately operated not-for-profit school in Lake Forest, Illinois, which offers care and education to persons with multiple handicaps and developmental disabilities. Plaintiff is licensed and regulated by the Nursing Home Care Reform Act of 1979 (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-101 et seq.), and defendant is the State agency that administers the Act.

The incident which precipitated this matter occurred on December 18, 1984. Beth Johnson, plaintiff's employee, accompanied Sharon, a resident, from a classroom building to the skilled nursing facility, which was approximately 150 feet. Johnson was with Sharon for 20 minutes, during which time Sharon repeatedly fell down and resisted being lifted to her feet. She had behaved similarly on other occasions prior to December 1984. After struggling with Sharon for 20 minutes in 20 degree to 30 degree temperatures, Johnson could no longer lift her and proceeded to drag Sharon along the concrete sidewalk for a distance of 10 feet. Two other of plaintiff's employees, Harland Snowden and Manuel Perez, observed Johnson struggling with Sharon and came over to assist in transporting her into the building. When they were inside, a nurse examined Sharon and found two abrasions on her back, which were approximately 1 1/2 by 3 inches.

E. Robert Matson, plaintiff's executive director, learned of the incident on December 20, 1984, and reported it to defendant and to the Lake Forest police department. On December 31, 1984, the health facility surveillance nurse investigated the incident, and plaintiff received a notice of a type A violation. (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-129.) Shortly thereafter, plaintiff requested a hearing. Eight or nine months later, plaintiff was notified that the Department of Public Aid was recouping its $3,400 payment received under the Quality Incentive Program , because plaintiff had a type A violation pending. When plaintiff contacted defendant regarding the violation, defendant realized that the hearing request had been overlooked and promptly scheduled it. Prior to the hearing, plaintiff filed a motion to dismiss the violation due to defendant's failure to grant a timely hearing. The hearing officer ruled on plaintiff's motion at the close of a hearing which was conducted in December 1985. He recommended that plaintiff's motion to dismiss be denied and that the violation be reduced to a type B violation. Defendant accepted the recommendation of the hearing officer, refused to impose a sanction on plaintiff and issued a final order. On review, the circuit court confirmed the administrative order and this appeal followed.

Plaintiff contends that the finding that it was guilty of abuse was against the manifest weight of the evidence because the conduct of its employee was reasonable under the circumstances. The findings of an administrative agency on questions of fact are considered prima facie true and correct, and a reviewing court has no authority to substitute its judgment for that of the agency unless the administrative order was against the manifest weight of the evidence. (Batley v. Kendall County Sheriff's Department Merit Com. (1981), 99 Ill. App. 3d 622, 425 N.E.2d 1201; Burke v. Board of Review (1985), 132 Ill. App. 3d 1094, 477 N.E.2d 1351.) Therefore, the sole function of the reviewing court is to determine whether the findings are contrary to the manifest weight of the evidence. Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.

Here, there was a finding by defendant that plaintiff violated section 390.3240 of the Illinois Administrative Code, which states:

"[An] owner, licensee, administrator, employee or agent of a facility shall not abuse or neglect a resident." (77 Ill. Adm. Code sec. 390.3240 (1985).)

"Abuse" is defined in section 1-103 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-103) as "[a] physical or mental injury . . . inflicted on a resident other than by accident." Defendant determined that the act of abuse of plaintiff's employee was a type B violation. Section 1-130 of the Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 4151-130) defines a type B violation as "a condition or occurrence . . . directly threatening to the health, safety or welfare of a resident." Here, it is undisputed that plaintiff's employee dragged a resident on concrete for approximately 10 feet, causing a physical injury in the form of abrasions to the resident's back. This conduct came within the statutory definition of "abuse," as well as a type B violation.

Plaintiff, however, claims that its employee's treatment of the resident was not "abuse" because it was reasonable under the circumstances, and the resulting injuries were accidental. Testimony was presented which described the weather conditions and the resident's behavior the day of the incident. In spite of these factors, there was sufficient evidence for defendant's findings, so that a court could not reweigh the evidence or make an independent determination of fact. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 469 N.E.2d 1085.) By the same token, plaintiff's argument that its employee's conduct was accidental also has no merit where the injuries that the ...


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