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Udi #10, LLC, D/B/A Pekin Manor v. the Department of Public Health; ) William Bell

February 1, 2012

UDI #10, LLC, D/B/A PEKIN MANOR,
PLAINTIFF-APPELLANT,
v.
THE DEPARTMENT OF PUBLIC HEALTH; ) WILLIAM BELL, ACTING DEPUTY DIRECTOR OF THE DEPARTMENT OF PUBLIC HEALTH; AND DAMON T. ARNOLD, DIRECTOR OF THE DEPARTMENT OF PUBLIC HEALTH,
DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 10 CH 6144 HONORABLE WILLIAM O. MAKI, JUDGE PRESIDING.

The opinion of the court was delivered by: Presiding Justice Steele

2012 IL App (1st) 103476

PRESIDING JUSTICE STEELE delivered the judgment of the court, with opinion. Justices Neville and Murphy concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, UDI #10, LLC, d/b/a Pekin Manor (UDI), appeals from a circuit court order affirming an administrative decision that UDI violated the Nursing Home Care Act (Act) (210 ILCS 45/3-101 et seq. (West 2008)). After an administrative hearing, the Department's director determined UDI committed a Type "A" violation when its employees failed to perform cardiopulmonary resuscitation (CPR) on R1*fn1 , a resident of UDI's Pekin Manor facility. The trial court found the Department retained jurisdiction over the matter and that UDI relied on an incorrect section of the Act. We affirm.

¶ 2 BACKGROUND

¶ 3 R1 was a 77-year-old resident of UDI, a 92-bed skilled nursing home care facility located in Pekin, Illinois. Pekin Manor is licensed by the Department as a skilled nursing facility that provides care, treatment and residency to the elderly. On August 19, 2007, R1 experienced a choking incident. Later that day, he choked again and became unresponsive, which led his wife to call UDI staff for help. The staff failed to perform CPR, although they were unsure whether he had a do not resuscitate (DNR) order. Additionally, they did not stay with him until paramedics arrived, contrary to the facility policy. When the paramedics arrived, they were neither met at the door nor directed to R1's room, which was also contrary to facility policy. When the paramedics found the correct room, no UDI staff members were attending R1, who was not breathing and had no pulse. The paramedics then performed CPR on R1. They noted R1 had large amounts of food in his mouth and oropharynx, which they suctioned out. They transported him to the hospital, where he later died that same day.

¶ 4 As a result of R1's death, a complaint was filed, leading to the Department investigating UDI. The investigation revealed a DNR order was signed by R1's wife on August 9, 2007, and R1 signed one himself on August 16, 2007. However, UDI requires a doctor's signature on the DNR orders, which neither document contained. The investigation also revealed UDI's policy requires a resident's DNR status to be kept in his or her chart. R1's chart did not indicate whether he had a DNR order. The Department found UDI failed to follow its own policies when it did not ensure that its staff performed emergency treatment on R1.

¶ 5 On March 7, 2008, the Department issued a notice to UDI of a Type "A" violation of the Act and the Department's regulations. The notice explained the incident, issued a conditional six-month license for UDI, assessed a $10,000 fine against UDI, and indicated UDI would be placed on a quarterly list of violators of the Act. Additionally, the notice informed UDI of its right to request an administrative hearing regarding the decision.

¶ 6 UDI exercised its right to a hearing in March 2008. In May 2008, UDI filed a motion to dismiss the charge for lack of jurisdiction. UDI argued the Department's March 7, 2008, determination that UDI violated the Act fell outside the 60-day time frame mandated in section 3-212(c) of the Act (210 ILCS 45/3-212(c) (West 2008)). The Department filed a response asserting the time frame for determining violations is merely directory, not mandatory, and therefore, there was no loss of jurisdiction.

¶ 7 In September 2008, a Department administrative law judge (ALJ) recommended denying UDI's motion to dismiss, reasoning UDI's argument was based on section 3-212(c) of the Act (210 ILCS 45/3-212(c) (West 2008)), which applies to violations discovered during general Department inspections. Here, the violation was based on an inspection pursuant to an outside complaint. The Department's acting deputy director denied the motion to dismiss.

¶ 8 UDI then sought administrative review of the denial of its motion to dismiss in the circuit court. The trial court found the Department's jurisdiction was proper in this case and that section 3-702(d) of the Act (210 ILCS 45/3-702(d) (West 2008)) applied, not section 3-212(c) of the Act (210 ILCS 45/3-212(c) (West 2008)), because the violation was determined after a complaint investigation. The court therefore held it lacked jurisdiction over UDI's administrative review action. The matter continued before the Department.

ΒΆ 9 On September 29, 2009, the ALJ conducted a hearing on UDI's motion to dismiss. On January 14, 2010, the ALJ issued a written recommendation to the director concluding the Department proved UDI violated regulations regarding DNR orders and emergencies, and to have the violation classified as type "A." On January 20, 2010, the acting deputy director adopted the ALJ's report and recommendation. On February 11, 2010, UDI filed a complaint for administrative review in the circuit court, alleging the Department lacked jurisdiction for failing to comply with section 3-212(c) of the Act. The ...


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