Appeal from the Circuit Court of Cook County. 10 CH 54816 The Honorable Mary L. Mikva, Judge Presiding.
The opinion of the court was delivered by: Justice Pucinski
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.
¶ 2 The present case arises from a finding by the Illinois Department of Public Health (Department) that Maplewood Care Inc. (Maplewood), a nursing facility in Elgin, Illinois, had failed to properly conduct a background check and supervise a 21-year-old resident with a criminal record (R3), which resulted in the rape of a 69-year-old resident (R2). Maplewood had submitted an incorrect birth date for R3 and thus did not obtain R3's criminal history. Under the Nursing Home Care Act (Act) (210 ILCS 45/1-101 et seq. (West 2008)) and the Skilled Nursing and Intermediate Care Facilities Code (77 Ill. Adm. Code 300), nursing homes are required to perform a criminal background check on all its residents. If the background check reveals that the resident is a registered sex offender or on parole or probation for a felony offense, the facility is required to notify the Department. The Department then issues a "Criminal History Analysis Report" (CHAR) containing its risk analysis regarding the resident. The facility is then required to fashion an appropriate care plan for the resident in compliance with the Act and the regulations under the Skilled Nursing and Intermediate Care Facilities Code. Here, because Maplewood supplied an incorrect birth date for R3, it did not receive R3's criminal history, and thus never notified the Department so that the Department could issue a CHAR for use in Maplewood's care plan for R3. Subsequently, R3 raped R2.
¶ 3 On April 15, 2009, the Department issued a notice to Maplewood that it had committed "Type A" violations and "Type B" violations of the Act and the Department's regulations. The Department's notice of violation stated that Maplewood committed violations of the following provisions of the Skilled Nursing and Intermediate Care Facilities Code (77 Ill. Adm. Code 300):
(1) a Type B violation of section 300.620(d)(3) (77 Ill. Adm. Code 300.620(d)(3) (2007) (prohibiting a facility from admitting or keeping a resident who is an identified offender without properly requesting a criminal background check)); (2) a Type A violation of section 300.1210(a) (77 Ill. Adm. Code 300.1210(a), amended at 23 Ill. Reg. 8106 (eff. July 15, 1999) (requiring a facility to provide necessary care and service to its residents)); and (3) a Type A violation of section 300.3240(a) (77 Ill. Adm. Code 300.3240(a) (1991) (prohibiting neglect of residents)). The Department had also included in its notice of violation a Type B violation of section 300.615(g) (77 Ill. Adm. Code 300.615(g), amended at 30 Ill. Reg. 5213 (eff. Mar. 2, 2006) (setting forth the procedural requirements for conducting background checks on all new admissions and reporting to the Department)). However, the Department later withdrew this violation of section 300.615(g). The Department issued a conditional six-month license, fined Maplewood $20,000, and placed Maplewood on a quarterly list of violators of the Act. Maplewood requested an evidentiary hearing to contest the notice of violations.
¶ 4 In support of its notice of violations, the Department called two witnesses at the hearing, Vicki Hill, a Maplewood psychiatric rehabilitation specialists coordinator, who was R3's caseworker, and Jamie Lloyd, Maplewood's administrator. Maplewood called one witness, Mark Thompson, its former social service director and assistant administrator. The following facts were adduced at the administrative hearing:
¶ 5 R3 was first admitted to Maplewood in April 2008 because he was diagnosed with bipolar disorder with aggression and a history of polysubstance abuse and needed structure and supervision. R3 reported to the staff that he had attempted suicide 10 or more times and had been hospitalized 18 or 19 times. Maplewood requested a criminal background check on R3 from the Illinois State Police. The background check revealed convictions for aggravated battery with a weapon, aggravated battery, domestic battery, driving without a license, and false report of an offense. R3 had been sentenced to two years in prison for the aggravated-battery-with-a-weapon conviction and to lesser punishments for the other convictions. After serving his sentence, R3 was placed on probation. R3 also had a physical altercation with another resident at his first nursing home placement. As required, Maplewood submitted the background check results to the Department for the Department to make a risk assessment of R3. The Department is then supposed to issue a CHAR back to the facility.
¶ 6 While the CHAR from the Department was pending, based on the results of the background check, Maplewood also classified R3's risk for its own internal purposes. R3 was assigned Vicki Hill as his caseworker, with whom he met weekly. Hill, along with a team of clinical professionals at Maplewood, developed a care plan for R3 which included R3's criminal history and history of aggression, with interventions that would be followed in the event R3 exhibited aggressive or violent behavior at Maplewood.
¶ 7 Thompson testified that he was aware of R3's criminal background and classified R3 as "medium" risk. Thompson testified that of the 12 times he had submitted criminal histories to the Department, he had never seen the Department classify any resident as "high" risk. Thompson reviewed and agreed with Maplewood's care plan for R3.
¶ 8 Almost immediately after his admission to Maplewood in April 2008, R3 exhibited behavioral and criminal problems. On May 1, 2008, R3 smoked marijuana with other residents. On May 7, R3 borrowed another resident's vehicle and left the facility. An officer attempted to pull over R3 for a traffic violation but R3 fled and returned to Maplewood. The police followed R3 to Maplewood and took him into custody for violating his probation. Maplewood discharged R3 that same day. At the time, Maplewood had not yet received the CHAR from the Department regarding R3. Thereafter, no Department CHAR was received due to R3's discharge.
¶ 9 In summer 2008, R3 was admitted to a different facility, All Faith Nursing Home, which also requested a background check on R3. This background check included all the previous convictions as well as the recent charges for fleeing the police and speeding.
¶ 10 In November 2008, R3 was readmitted to Maplewood because he needed structure and supervision. Maplewood again requested a background check on R3, but provided the Illinois State Police with an incorrect birth date for R3. Because of that error, the background check indicated that R3 had no criminal record, Maplewood did not notify the Department that R3 was an identified offender, and the Department did not draft and issue a CHAR.
¶ 11 However, Hill was again assigned as R3's caseworker. Hill was aware of R3's previous psychological and criminal history. A November 2008 document titled "Minimum Data Set" prepared by Hill reflected that R3 had a history of violence, including violence to others within the last year. Another document drafted by Hill indicated that R3 had been involved in a physical altercation with another resident at his first nursing facility placement prior to his first admission to Maplewood. Another document drafted by Hill stated that R3 had impaired decision-making at times, tended not to follow policies at times, and frequently tended to be the focus of negative attention. While interviewing him in November 2008, Hill found R3 to be evasive in discussing his issues. From November 2008 through January 2009, Hill found R3 to be noncompliant with his treatment plan for substance abuse, including alcohol and drug use and not attending meetings. R3 had been a cocaine user but denied that he had a substance-abuse problem. Hill further testified that upon R3's readmission in November 2008, R3's diagnoses and history were the same, and that the Minimum Data Set report for his second admission indicated R3 has had addictive behaviors, harms himself, and exhibits violent behaviors. R3 had a history of aggression and was involved in a physical altercation with another resident at his first nursing home placement. Hill testified that R3's care plan regarding ways to deal with R3's aggression required staff intervention. R3 was to be redirected by staff when agitated.
¶ 12 Nurses' notes during R3's second admission to Maplewood reflected the following. On November 13, 2008, R3 was awake all night playing video games in the dining room. On November 15, 2008, upon returning to Maplewood after being out of the facility on a pass, R3 was suspected of having used alcohol. On December 7, 2008, again upon returning to Maplewood after having been out on a pass, R3 was suspected of being under the influence of substances but would not disclose what he had taken. A test revealed R3 had a blood alcohol level of 0.08. On December 21, 2008, R3 was observed walking unsteadily in the hallway, unable to talk freely and confused. An alcohol test came back negative, but drug use was suspected.
¶ 13 On December 5, 2008, R3 had informed Maplewood staff that he was sexually frustrated and had increased sexual urges and thoughts due to separation from his fiancee. R3 was advised by the staff to masturbate. There was no additional monitoring of R3 after December 5, 2008. R3 is 6 feet tall and weighed 217 pounds.
¶ 14 On January 17, 2009, at around 1 a.m. R2 left his room on the first floor and went to R2's room, which was on the second floor in the opposite wing. The Department's Exhibit 20 was an overview map of Maplewood, depicting that the building was in the shape of an "X," with a nurse's station in the middle of the intersection of wings on each floor. No one monitored R3 and stopped his movement. R3 entered R2's room and raped her vaginally and anally. At the time, R2 was 69 years old.
¶ 15 R3 called the police himself to report his assault. A nurse doing rounds entered R2's room and observed R2 was naked and looked terrified. R2 reported the incident and told her someone was in the bathroom. The nurse found R3 in R2's bathroom. Police officers arrived on the scene. The police ran a warrant check on R3 and discovered he had an outstanding warrant for battery and was taken into custody. While in custody, R3 admitted that he sexually assaulted R2. R3 pleaded guilty to aggravated criminal sexual assault of R2 and was sentenced to 12 years in prison.
¶ 16 R2 was hospitalized with vaginal and rectal tears and was emotionally distraught and looked "terrified." R2 did not have any previous interactions with R3 and denied consenting to have sex with him. However, Maplewood's internal investigation concluded that the sex had been "consensual." Maplewood submitted a final report to the Department concluding that the sexual intercourse was consensual. The report further stated that R2 had not alleged that R3 had sexually assaulted her and did not appear to be in distress, and that R3 had "no history of any inappropriate behaviors" and "is known to be cooperative and respectful." Further, the report submitted by Maplewood stated that R3's "criminal background check shows no record."
¶ 17 Jamie Lloyd, the licensed administrator of Maplewood, testified that during the time of R3's first admission to Maplewood in April of 2008 Maplewood did not receive a CHAR for R3 because he was discharged prior to the receipt of the CHAR. Lloyd was unaware if anyone on Maplewood's staff requested a CHAR in November 2008 when R3 was readmitted and did not inquire as to why there was no CHAR after receiving the notice of violations. Lloyd acknowledged that Maplewood submitted an incorrect background check for R3 because it contained the wrong birth date for R3.
¶ 18 Lloyd testified that when he arrived at Maplewood at 12:45 a.m. on January 17, 2008 after being notified of the incident he spoke with the charge nurse "Cindy" Maria Lao Mangahas and a police officer. Lloyd reviewed Mangahas's statement, which indicated that she entered R2's room during rounds and found R2 naked and moaning with a terrified look on her face, and that R2 told her a man "made love to her in the front and back and it hurts" and told Mangahas someone was in the bathroom. Mangahas found R3 in the bathroom. Lloyd reviewed Maplewood's final report and the conclusion that the sexual intercourse was consensual and stated he was unable to draw a conclusion "one-way or the other, as I was not able to interview either people involved, or had access to any of the hospital information or police information." Lloyd testified that two consultants from SIR Management assisted in his investigation and signed off on the final report submitted to the Department. Lloyd testified he expressed his concerns with the conclusion in the report with the two consultants but not to the Department. Lloyd stated he did not report the inaccurate statement in the report that R2 "did not sound in distress" to the Department because the Department surveyor arrived.
¶ 19 The administrative law judge took judicial notice of R3's prior convictions of domestic battery, aggravated battery with a weapon, and complaint for battery and warrant for failure to appear, as well as the conviction for aggravated criminal sexual assault against R2. The administrative law judge also took notice that in January 2009 (at the time of his rape of R2) R3's diagnoses included schizophrenia, and bipolar disorder with aggression. The administrative law judge also noted Maplewood's progress note dated December 5, 2008, which stated that R3 stated he had increased sexual urges and that Maplewood admitted there was no additional monitoring of R3. The administrative law judge also noted Maplewood "failed to do an accurate background check on R3."
¶ 20 On November 19, 2010, the administrative law judge issued her report and recommendation and made the following findings: (1) The Department proved Maplewood violated section 300.620(d)(3), based on the admission of R3 as an identified offender without properly requesting a criminal background check, reporting the results of the check to the Department if certain convictions are revealed, and incorporating the Department's risk analysis into the resident's care plan. (2) Maplewood violated section 300.1210(a) when it failed to provide general supervision and oversight for R2 and R3. (3) Maplewood violated section 300.3240(a) based on Maplewood's failure to submit R3's correct birthdate to the State Police for the background check and failed to obtain an updated criminal history and a risk analysis from the Department for R3's care plan, which resulted in the neglect of both R2 and R3 by permitting R3 to leave his room and enter R2's room in the middle of the night and sexually assault her. (4) Maplewood did not take corrective action following the rape and instead submitted a report to the Department that stated the incident was consensual when this statement was belied by Maplewood's own staff who discovered R3 in R2's room right after the assault.*fn1
¶ 21 The Department's final order adopted the administrative law judge's report and recommendation. Maplewood filed the instant action in circuit court against the Department, its Director, and the Assistant Director, appealing the Department's ...