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Community Living Options, Inc. v. Department of Public Health

Court of Appeals of Illinois, Fourth District

December 12, 2013

THE DEPARTMENT OF PUBLIC HEALTH; WILLIAM BELL, Acting Deputy Director of Public Health; TERESA GARATE, Assistant Director of Public Health; and DAMON T. ARNOLD, Director of the Department of Public Health, Defendants-Appellees.

Appeal from Circuit Court of Sangamon County No. 10MR648 Honorable John Schmidt, Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court, with opinion. Justices Turner and Steigmann concurred in the judgment and opinion.



¶ 1 In January 2009, defendants, the Illinois Department of Public Health, William Bell, Teresa Garate, and Damon T. Arnold (collectively, the Department), conducted an investigation concerning an automobile accident involving a resident who was under the care of plaintiff, Community Living Options, Inc., d/b/a Bellefontaine Place (Bellefontaine), an intermediate-care facility for the developmentally disabled. In April 2009, the Department sent Bellefontaine a notice of violations pursuant to the Nursing Home Care Act (Act) (210 ILCS 45/1-101 to 3A-101 (West 2008)). The Department's notice (1) alleged Bellefontaine committed (a) a violation of section 350.620(a) of title 77 of the Illinois Administrative Code (Code) (77 Ill. Adm. Code 350.620(a) (1989) (Intermediate Care of the Developmentally Disabled Facilities Code)) for failing to have written policies covering resident transportation, and (b) a violation of section 350.3240(a) of the Code (77 Ill. Adm. Code 350.3240(a) (1991)) for the neglect of its resident; (2) determined the violations constituted a Type A violation of the Act (see 210 ILCS 45/1-129 (West 2008) (defining Type A violation)); (3) issued a conditional license; and (4) assessed a $20, 000 fine pursuant to section 3-305(1) of the Act (210 ILCS 45/3-305(1) (West 2008)). An administrative law judge (ALJ) held a hearing on the violations and issued a report which recommended (1) the alleged section 350.620(a) violation be reduced to a Type B violation, (2) the alleged section 350.3240(a) violation be dismissed, and (3) the conditional license and fine be dismissed. In October 2010, the Department issued a final order, rejecting the ALJ's recommendation and affirming the violations and penalties as stated in the notice. In October 2010, Bellefontaine filed a complaint for administrative review, requesting reversal of the Department's decision. In April 2011, Bellefontaine filed a motion to supplement the administrative record requesting documents from the period between the ALJ's report and the Department's final order. The circuit court denied the motion. In October 2012, the circuit court affirmed the Department's decision.

¶ 2 Bellefontaine appeals, arguing (1) the Department "lost jurisdiction" when it failed to make its violation determination pursuant to the 60-day time frame provided by section 3-212(c) of the Act (210 ILCS 45/3-212(c) (West 2008)); (2) the Department erroneously determined it violated sections 350.620(a) and 350.3240(a) of the Code; and (3) the circuit court erred in denying its motion to supplement the record. We disagree and affirm.


¶ 4 Bellefontaine is a 16-bed intermediate-care facility for the developmentally disabled located in Waterloo, Illinois. Bellefontaine provides supervision, services, and a residence to developmentally disabled adults. The underlying events involve a 79-year-old female resident of Bellefontaine, whom we will refer to as R1. R1 had an intelligence quotient (IQ) of 51 and the functional equivalency of 6 years, 6 months. She had resided at Bellefontaine since 1988 and was diagnosed with mental retardation, cerebral palsy, speech and hearing impairment, and dementia.

¶ 5 A. The Automobile Accident

¶ 6 On December 3, 2008, Andrea Lockett, Bellefontaine's employee, was driving a facility van with R1 and two other residents, whom we will refer to as R2 and R3. The van had a driver's and passenger's seat in the front with a space between the two seats, and three bench seats in the rear. R3 sat in the front passenger's seat, R2 sat behind the driver's seat, and R1 sat in the middle of the first bench seat.

¶ 7 Lockett testified, at the administrative hearing, she observed seat belts across the residents' waists and heard them click. She asked if everyone's seat belt was fastened and everyone replied they were ready to go. Lockett testified Bellefontaine did not have a written policy specifying how she was to transport residents or ensure residents were securely fastened into their seats. Lockett drove to a day-training program where she dropped off R3. She stopped the van, removed the keys, and walked R3 in. Upon returning to the van, she visually checked R1's and R2's seat belts, which appeared to be fastened, and asked if they were ready to go. She then proceeded to drive to Belleville, Illinois, for R1's and R2's medical appointments. Approximately five minutes from their destination, a truck suddenly braked in front of her. Lockett braked to avoid the truck. R1 came forward and hit the dash with her head. R1 was transported to St. Elizabeth's Hospital in Belleville and she died the next day from the blunt trauma she sustained from the accident.

¶ 8 B. The Department's Investigation, Determination and Notice

¶ 9 On January 8, 2009, a Department investigator completed a survey investigation of the accident. The investigator reviewed Bellefontaine's policies concerning its vehicles and resident transport, written statements, and Bellefontaine's interviews with R2 and Lockett.

¶ 10 1. The Survey Processing Log

¶ 11 Jonathan Siegel, the Department's chief of the Division of Long-Term Care Field Operations, Quality Review Section, and acting chief of the Division of Quality Care Assurance, testified he determined two potential violations of the Department's regulations on February 23, 2009. He completed the Department's survey processing log on February 23, 2009, and the legal action form on the next day, February 24, 2009. The survey processing log includes computer-generated fields containing background information about Bellefontaine. The log shows a handwritten "2" next to the number of violations, and a "2" next to the Type A violation. The handwritten numbers contain Siegel's initials next to them and it is possible to see the "2" was written over a "1." The bottom section of the log contains handwritten comments, the reviewers' signatures, identification numbers, and the date "2/23/09." The comments state, "Comments reviewed. Violations cited."

¶ 12 The Department's legal action form reflected the assessment of fines and the imposition of a conditional license against Bellefontaine. When Siegel initially completed the form, he determined a $50, 000 fine. Then on April 2, 2009, he changed the fine to $20, 000 and amended the form to reflect two Type A violations.

¶ 13 At the hearing, Siegel explained the changes to the log and form. He testified it was a "shorthand method" to cite only one violation on the log, list the total fine on the form, and then break down the violations in the notice. However, pursuant to a circuit court ruling, Siegel determined he should identify violations separately. See Rosewood Care Center, Inc. v. Illinois Department of Public Health, Nos. 4-09-0463, 4-09-0516 cons. (Mar. 10, 2010) (unpublished order under Supreme Court Rule 23) (vacating the Sangamon County circuit court's judgment the Department's notice of violation to the licensee was not timely). He did this on April 2, 2009, when he changed the number "1" to "2" on both the log and form.

¶ 14 2. The April 9, 2009, Notice

¶ 15 On April 9, 2009, the Department issued a notice as previously stated.

¶ 16 C. The Administrative Proceedings

¶ 17 In June 2010, a Department ALJ held an evidentiary hearing. Lockett's and Siegel's testimony are summarized above. Additional testimony is summarized below.

¶ 18 James Haney, an investigator for Community Living Options, testified he assisted in the internal investigation. He concluded R1's seat belt became unbuckled during the trip and she came out of the seat when Lockett applied the brakes. An interview was conducted with R2 (R2 has an IQ of 40 and the functional equivalency of 6 years, 0 months, and is diagnosed with severe mental retardation, cerebral palsy, and dementia). In the interview, R2 stated she would assist buckling and unbuckling R1's seat belt as R1 could not do it for herself. R2 buckled R1's seat belt on the date of the accident. She did not unbuckle R1's seat belt. Haney testified Bellefontaine, at the time of the accident, did not have a specific policy providing for employees to secure residents for transport.

¶ 19 Angela Wiley, Bellefontaine's administrator, testified she obtained Lockett's cell phone records, which indicated she was not on the phone when she applied the brakes. Wiley testified Bellefontaine had no facility policy mandating residents be belted prior to leaving the facility in a vehicle. However, it was the facility's practice for all residents to be secured in a seat belt prior to leaving.

¶ 20 Timothy Mills, Jr., an emergency paramedic, testified he spoke with R1 after the accident. She told him she was restrained but it felt loose.

¶ 21 Greg Elfrink's stipulated testimony stated he was Bellefontaine's maintenance director. He checked the van's seat belts on December 3, 2008. They were in working order.

¶ 22 D. The ALJ's Report

¶ 23 In September 2010, the ALJ, John G. Abrell, issued a 23-page report and recommendations. The report includes a thorough review of the testimony and discussion of the law. The ALJ found (1) Bellefontaine's "Vehicle Maintenance Checklist" "contained a requirement to 'check belts to lock properly and for wear, ' which was to be performed by maintenance staff on a weekly basis"; (2) R1's "seat[]belt sometimes had to be buckled and unbuckled"; (3) R1 told Mills, the paramedic, " 'she was restrained, but it felt very loose' "; (4) "no evidence was presented of any statutory or regulatory requirement mandating that passengers, other than front seat passengers, of a motor vehicle operated on a street or highway in this State wear a properly adjusted and fastened seat safety belt"; and (5) "no evidence was presented of any statutory or regulatory requirement mandating that nursing home staff secure, or assist in securing, nursing home residents in a properly adjusted and fastened seat safety belt."

¶ 24 On the alleged section 350.620(a) violation, the ALJ found, on the date of the accident (1) "there was no facility policy providing for employees to secure residents in the vans, to buckle their seat[]belts, when they were going to be transporting them"; (2) "it was the facility's practice that all residents be secured in a seat[]belt prior to leaving in the vehicle"; and (3) "transporting residents to appointments was a service provided to residents[, ] although there was no written policy in place to insure that residents were securely fastened into their seats in the van." The ALJ found section 350.620(a) of the Code required written policies and procedures. He did not agree "that failing to have a written policy rises to the level of a substantial probability of death or serious injury" to support a Type A violation.

¶ 25 On the alleged section 350.3240(a) violation, the ALJ stated, (1) the Department's neglect "allegations may arguably relate to supervision and oversight within the meaning of those definitions, " but (2) neither the Act nor the Code contains a requirement for Bellefontaine's staff "to personally check residents' seat belts to insure they were properly adjusted and fastened." The ALJ found the Department had not established its neglect allegation.

ΒΆ 26 The ALJ recommended (1) the alleged section 350.620(a) violation be reduced to a Type B violation, (2) the alleged section 350.3240(a) violation be dismissed, (3) the $20, 000 fine be ...

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