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01/17/95 FRANCES HOUSE v. ILLINOIS DEPARTMENT

January 17, 1995

FRANCES HOUSE, INC., D/B/A SMITH SQUARE, PLAINTIFF-APPELLEE,
v.
ILLINOIS DEPARTMENT OF PUBLIC HEALTH, DR. JOHN LUMPKIN, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC HEALTH, AND HEIDI BROWN, ADMINISTRATIVE LAW JUDGE, ILLINOIS DEPARTMENT OF PUBLIC HEALTH, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court for the Ninth Judicial Circuit, Knox County, Illinois. No. 93-MR-160. Honorable David R. Hultgren Judge, Presiding.

Released for Publication February 21, 1995.

Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. MC Cuskey, Justice. Justice Lytton delivered the opinion of the court: Breslin and McCUSKEY, JJ., concur.

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

The Illinois Department of Public Health (IDPH) appeals from a decision of the circuit court of Knox County holding that IDPH was time barred from proceeding against Frances House, an intermediate care facility for the developmentally disabled, for violation of an administrative regulation. The trial court reversed an order of the Deputy Director of IDPH finding that Frances House was guilty of a Type B violation of IDPH regulations. We affirm the judgment.

Background

M.P. was 52 years old and had cerebral palsy, epileptic seizures and mild retardation. She had lived at home with her parents until they were no longer able to care for her. In her home environment, she had never been taught to dress or feed herself or to use the toilet; she also lacked sufficient muscle strength to transfer herself to and from her wheelchair.

After two months of rehabilitation therapy at Franciscan Rehabilitation Center in Rock Island, Illinois, M.P. was assessed for final placement by her doctor and the rehabilitation staff; they agreed that an intermediate facility for the developmentally disabled would be appropriate. On April 19, 1991, M.P. was admitted to a group home managed by Frances House, Inc.

At the time of her placement in the Frances House group home, M.P. was determined to need the assistance of only one person in order to transfer from a wheelchair to a bed or toilet using a transfer board. Upon admission, staff members found that, because her severe anxiety made her unwilling to help herself, and because she weighed over 200 pounds, M.P. required two or three persons to transfer her. However, the group home had only one staff person on duty during the night shift.

According to the record, M.P. was often uncooperative with the staff and made slow progress in learning to control urination and to cooperate when attempting a transfer. During her first month at Frances House, she fell three times, all without injury and all during transfers. Some nights when only one staff member was present, M.P. could not be taken to the toilet and consequently urinated or defecated in her bed. For a time a catheter was used to eliminate the need for toilet assistance, but after some infections developed, the catheter was removed.

One month after admission, M.P. was provided with a hospitalbed equipped with a pull bar, and the staff received further training in the use of a transfer board. M.P. continued to receive physical therapy at the Franciscan Rehabilitation Center to increase her muscle strength and over a period of several months learned to transfer to and from her wheel chair with the use of a transfer board. By the time of the administrative hearing in October, 1992, M.P. was fully habilitated.

During May of 1991, IDPH received three complaints concerning the care M.P. was receiving, and a surveyor visited the home to investigate, as required by section 3-702(d) of the Nursing Home Care Act (210 ILCS 45/3-702(d) (West 1992)). On June 6, 1991, the surveyor conducted an exit conference at Frances House, informing the facility that a "valid report" of abuse, neglect or other deficiency had been made. Frances House provided comments on the investigator's findings on June 21, and a final recommendation was made that the findings constituted administrative warnings of violations of rules.

After review by IDPH, revised findings were issued on January 28, 1992, upgrading the infractions from administrative warnings to Type B violations of four IDPH regulations. Administrative warnings are issued for violations that do not directly threaten the health, safety or welfare of a resident, while the more serious Type B violations are those which do directly threaten the health, safety or welfare of a resident. (A Type A violation threatens serious mental or physical harm or endangers life.) Section 702(d) specifies that IDPH "must determine within 30 working days if any rule or provision of the Act has been violated." In this case, the administrative determination of violations took place 7 1/2 months after the initial investigation.

Frances House then requested an administrative hearing. Prior to the hearing, IDPH dropped all charges except one Type B violation for failure of the facility to comply with 77 Ill. Admin. Code, Sec. 350.1060(f) (1992): "Appropriate training and habilitation program shall be provided residents with hearing, vision, perceptual, or motor impairments, in cooperation with appropriate staff." The hearing was completed on October 16, 1992, and the final report and recommendation of the administrative law judge was issued on April 21, 1993, finding that the facility was guilty of the Type B violation. A final order was issued by the Deputy Director of IDPH on May 13, 1993, 208 days after the hearing, adopting ...


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