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Aurora Manor, Inc v. the Department of Public Health; Teresa Garate

September 26, 2012


Appeal from the Circuit Court of Cook County No. 10 CH 50386 Honorable Sophia H. Hall, Judge Presiding.

The opinion of the court was delivered by: Justice Sterba

JUSTICE STERBA delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.


¶ 1 Defendant-appellant and cross-appellee the Illinois Department of Public Health (Department) issued a notice of violation and fine assessment to plaintiff-appellee and cross-appellant Aurora Manor, Inc., after completion of a survey following an incident in which a resident eloped from Aurora Manor's facility. Following administrative review, the determination of violation and the assessment of a $5,000 fine were affirmed. Aurora Manor sought review in the circuit court, and the court voided the order imposing the violation and fine. On appeal, the Department contends it made a determination of violation after 59 days, within the 60-day limit imposed by section 3-212 of the Nursing Home Care Act (Act) (210 ILCS 45/3-212(c) (West 2008)). For the reasons that follow, we reverse the judgment of the circuit court voiding the Department's final order, thus reinstating the Department's order.


¶ 3 At approximately 3:40 a.m. on December 3, 2008, a resident of the Aurora Rehabilitation and Living Center in Aurora, Illinois, exited the facility unnoticed by staff. The resident was spotted by a medi-van driver in the parking lot, who then informed the facility. The resident was found by the medi-van driver and a nurse from the facility about 15 minutes later wandering in a T-shirt and trousers on the side of a road that ran parallel to an interstate highway. In response to the incident, the Department conducted a licensure survey investigation that was completed on February 3, 2009. On April 15, 2009, the Department issued a notice to Aurora Manor that it had committed multiple violations of the Act and the Department's regulations and assessing a $5,000 fine. On April 22, 2009, Aurora Manor requested a hearing to contest the determination of violations.

¶ 4 Prior to the hearing, Aurora Manor filed a motion to dismiss on the grounds that the Department lost subject matter jurisdiction when the Department failed to determine the existence of a violation within 60 days of completion of the inspection survey, as required by the Act. Aurora Manor argued the notice of violations was the determination required by the Act, and the notice of violations was not issued until 71 days after completion of the survey. The Department responded that it made its determination prior to the issuance of the notice, and recorded it on the "Illinois Department of Public Health; SNF/NF Survey Processing Log" (log) dated April 3, 2009, within the 60-day period. The administrative law judge (ALJ) found that "the Department determined that a violation existed on April 3, 2009, 59 days after completion of its survey." Therefore, the ALJ concluded the occurrence of violations was determined within the 60-day limit imposed by section 3-212(c) of the Act and recommended that the motion to dismiss be denied. The Department adopted this recommendation on November 2, 2009, and denied Aurora Manor's motion to dismiss.

¶ 5 An administrative hearing was held on July 13, 2010, at which three witnesses testified, including the surveyor, Daniel Pletcher. He testified that he completed the survey on February 3, 2009, and that he was the only surveyor involved in the investigation. The ALJ issued a report and recommendations on October 25, 2010, and concluded that the Department had proven by a preponderance of the evidence that Aurora Manor violated three separate Department regulations, that the violations constituted a "Type A" violation, and that a $5,000 fine was appropriate. On November 3, 2010, the Department adopted the findings of the ALJ in its final order, imposing a Type A violation and a $5,000 fine.

¶ 6 On November 24, 2010, Aurora Manor filed a complaint for administrative review in the circuit court of Cook County. Aurora Manor again argued that the Department lost subject matter jurisdiction when it failed to determine whether violations had occurred within 60 days of completion of the survey. The circuit court found "the plain language of section 3-212(c) demonstrate[d] that the Survey Processing Log [was] not the 'determination' of a violation" because it was signed by a reviewer and did not indicate its purpose. Based on a comment on the log stating that the facility comments had been reviewed, the circuit court noted that the log might be the report referred to in section 3-212(c) of the Act. Therefore, the circuit court found that the Department made its determination more than 60 days after completion of the survey, and declared the Department's final order void. The Department timely filed this appeal.


¶ 8 The Department contends that the determination of violations was made after completing a legal review and then recorded by the Director's designee on the log on April 3, 2009. Aurora Manor responds that the notice of violations is the determination, and that the log is at most only a recommendation to the Department's Director. This court reviews the findings of the administrative agency, and not those of the circuit court. Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 272 (2009).

¶ 9 The appropriate standard of review is determined by whether the question is one of fact, one of law, or a mixed question of fact and law. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). The findings and conclusions on questions of fact made by the administrative agency are held to be prima facie true and correct. 735 ILCS 5/3-110 (West 2010). Therefore, the court will not reweigh the evidence or substitute its judgment for that of the agency, but will only ascertain if the findings of fact are against the manifest weight of the evidence. Cinkus, 228 Ill. 2d at 210. In contrast, an agency's determinations on questions of law are not binding on a reviewing court and are reviewed de novo. Cinkus, 228 Ill. 2d at 210-11. However, courts give substantial weight and deference to an agency's interpretation of an ambiguous statute. Illinois Consolidated Telephone Co. v. Illinois Commerce Comm'n, 95 Ill. 2d 142, 152 (1983). Where the agency's interpretation involves resolution of jurisdictional questions, " 'judicial deference to administrative interpretation applies in full strength.' " Id. at 152-53 (quoting Pan American World Airways, Inc. v. Civil Aeronautics Board, 392 F.2d 483, 496 (D.C. Cir. 1968)).

¶ 10 Mixed questions of law and fact are " 'questions in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated.' " (Internal quotation marks omitted.) Cinkus, 228 Ill. 2d at 211 (quoting American Federation of State, County & Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill. 2d 569, 577 (2005)). An agency's findings on mixed questions of law and fact are reviewed under a clearly erroneous standard of review and, consequently, will not be reversed unless the reviewing court has a definite and firm conviction that a mistake has been made. Cook County Republican Party v. Illinois State Board of Elections, 232 Ill. 2d 231, 245 (2009). This standard affords more deference to the agency on the basis of its experience and expertise than the de novo standard, but less deference than the manifest weight of the evidence standard applied to an agency's findings of fact. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 392, 395 (2001).

¶ 11 The question of whether the notice of violation is the determination that a violation occurred requires interpretation of the Act. The interpretation of statutory provisions is a question of law reviewed de novo. Mattis v. State Universities Retirement System, 212 Ill. 2d 58, 76 (2004). Section 3-212(c) of the Act required, at the time in question, that violations "be determined *** no later than 60 days after completion of each inspection, survey and evaluation." 210 ILCS 45/3-212(c) (West 2008).*fn1 Section 3-301 of the Act requires that after "the Director or his designee determines that a facility is in violation of this Act *** he shall serve a notice of violation upon the licensee within 10 days thereafter." 210 ILCS 45/3-301 (West 2008). Therefore, according to the plain language of the statute, the Department has 60 days after completion of the survey to make a determination of a violation, and 10 days after making that determination to serve a notice of violation upon the licensee.*fn2 Equating the determination of a violation with the notice of violation would render the 10 days the Act allows to serve a notice of violation after making a determination a nullity. This would violate the rule of statutory construction that, if at all possible, a statute should be construed so that no part is rendered a nullity. See Eads v. Heritage Enterprises, Inc., 204 Ill. 2d 92, 105 ...

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