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John v. Department of Professional Regulation

June 17, 1999

ALEYAMMA JOHN, PLAINTIFF-APPELLEE,
v.
THE DEPARTMENT OF PROFESSIONAL REGULATION, AND NIKKI M. ZOLLAR, DIRECTOR OF THE DEPARTMENT OF) PROFESSIONAL REGULATION, DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Justice Hall

Appeal from the Circuit Court of Cook County Honorable Thomas Durkin, Judge Presiding.

Defendant, the Department of Professional Regulation ("Department"), appeals from the circuit court's reversal of its decision denying plaintiff, Aleyamma John ("plaintiff"), a nursing license by endorsement. The trial court remanded the matter to the Department with instructions to issue a license to plaintiff. On appeal, the Department contends: (1) the 1990 amendment (Pub. Act 86-596, eff. January 1, 1990) to the Illinois Nursing Act of 1987 ("Act") (225 ILCS 65/15 (West 1996)), which requires applicants to pass the National Council Licensure Examination (NCLEX) within a three-year period, applies to candidates for licensure by endorsement; and (2) the 1990 amendment to the Act was not retroactively applied to plaintiff. For the following reasons, we reverse and remand the judgment of the circuit court.

The following facts are relevant to this appeal. Plaintiff was licensed as a registered nurse in Florida in September of 1993. As a prerequisite for licensure, plaintiff was required to successfully complete the NCLEX within three years. Plaintiff failed the NCLEX in the State of Illinois in February 1987, July 1987, February 1988, July 1988 and February 1989. Plaintiff failed the NCLEX in the State of Florida in July 1992 and February 1993.

On her eighth attempt, plaintiff passed the NCLEX in the State of Florida in July 1993. Plaintiff filed an application for licensure by endorsement of her Florida registered nurse's license in December 1996 with the State of Illinois. The Department denied plaintiff's application in March 1997. The Department explained that in order to be eligible for licensure by endorsement, plaintiff must have been licensed under a statute that was substantially equal to the statute in force in Illinois at the date of her licensure in another state. The Florida statute under which plaintiff was licensed was not substantially equal to the licensing requirements in effect in Illinois. Specifically, the statute in Illinois requires an applicant to pass the NCLEX within three years. The Florida statute contained no such provision.

Plaintiff did not successfully complete the NCLEX within three years. In addition, because plaintiff graduated from a nursing program in India, the Department requested she provide evidence that she passed the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination. Plaintiff failed to comply. For these reasons, the Department denied plaintiff's application for licensure by endorsement.

Plaintiff filed a complaint for administrative review of the Department's final decision. The circuit court reversed the Department's decision denying plaintiff licensure by endorsement and remanded the matter for action consistent with its ruling. The circuit court held: (1) the three-year rule applied to applicants for licensure by endorsement; and (2) the "cut-off" date for the passage of the NCLEX for those applicants who had taken the examination prior to the 1990 amendment of the Act was March 1993. Although plaintiff had not complied with the licensing requirements of the State of Illinois, the trial court reasoned that plaintiff should be issued a license since she passed the exam "only a few months after the March 1993 cut-off date."

The circuit court stayed its order for 30 days, pending appeal. The Department's timely appeal followed. This court entered a stay of the circuit court's order pending resolution of the appeal.

Initially, we note that the Department's decision to deny a professional license is subject to judicial review under the Administrative Review Law (735 ILCS 5/3-101 (West 1996)), (225 ILCS 65/44 (West 1996)). Where the facts before the administrative agency are not in dispute, their legal effect is a matter of law. Fitzpatrick v. Human Rights Commission, 267 Ill. App. 3d 386, 390, 642 N.E.2d 486 (1994). Questions of law are reviewed de novo. Envirite Corp. v. Illinois Environmental Protection Agency, 158 Ill. 2d 210, 214, 632 N.E.2d 1035 (1994). The reviewing court also recognizes that the Department's construction of the Act is entitled to substantial deference and should be affirmed unless it is clearly erroneous. O'Hare-Midway Limousine Service, Inc. v. Baker, 232 Ill. App. 3d 108, 111, 596 N.E.2d 795 (1992).

We must first determine whether requiring applicants to pass the NCLEX within three years, as set forth in the 1990 amendment of section 15 of the Act, is applicable to licensure by endorsement under section 19 of the Act. The Department contends that the amendment of the Act does so extend. We agree.

Section 19 of the Act sets forth the requirements for licensure by endorsement and provides in relevant part:

"[A]n applicant who is a registered professionalnurse***licensed by examination under the laws ofanother state***shall, without examination, be granted alicense as a registered professional nurse***by the Department:

(1) whenever the requirements of such state***were atthe date of the license substantially equal to therequirements then in force in this State***or

(2) whenever such requirements of anotherstate***together with educational andprofessional qualifications, as distinguishedfrom practical experience, of the applicant sinceobtaining a license as a registered professionalnurse***in such state***are substantially equal to therequirements in force in Illinois at the time ofapplication for licensure as a registered nurse***inIllinois." 225 ILCS 65/19(a) (West 1996).

In Illinois, as well as in Florida, to receive a professional registered nurse's license by examination, applicants are required to pass the NCLEX. However, in 1990, the Illinois Act was amended and now requires applicants to pass the examination within three years. As a result of the 1990 amendment to the Act, the Illinois and Florida statutes are not substantially equal. Section 15 of the ...


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