                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




       Aurora Manor, Inc. v. Department of Public Health, 2012 IL App (1st) 112775




Appellate Court            AURORA MANOR, INC., Plaintiff-Appellee and Cross-Appellant, v.
Caption                    THE DEPARTMENT OF PUBLIC HEALTH; TERESA GARATE,
                           Assistant Director, The Department of Public Health; and DAMON T.
                           ARNOLD, Director, The Department of Public Health, Defendants-
                           Appellants and Cross-Appellees.



District & No.             First District, Third Division
                           Docket No. 1-11-2775


Rule 23 Order filed        August 23, 2012
Rule 23 Order
withdrawn                  September 20, 2012
Opinion filed              September 26, 2012


Held                       In an action arising from an incident in which a resident eloped from
(Note: This syllabus       plaintiff’s nursing home, an administrative law judge’s finding that the
constitutes no part of     Department of Public Health made its determination of violations by
the opinion of the court   plaintiff within the 60-day requirement of the Nursing Home Care Act
but has been prepared      was not clearly erroneous.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CH-50386; the
Review                     Hon. Sophia H. Hall, Judge, presiding.
Judgment                   Affirmed in part and reversed in part.


Counsel on                 Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal                     Solicitor General, and Paul Racette, Assistant Attorney General, of
                           counsel), for appellants.

                           Polsinelli Shughart PC, of Chicago (Jason T. Lundy and Meredith A.
                           Duncan, of counsel), for appellee.


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



                                             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.


¶2                                        BACKGROUND
¶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.

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¶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.


¶7                                       ANALYSIS
¶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).


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¶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).1 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



               1
               Section 3-212 has since been amended to allow 90 days for determinations. See 210 ILCS
       45/3-212(c) (West 2010).

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       after making that determination to serve a notice of violation upon the licensee.2 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 (2003). The primary rule of statutory construction is to give effect to the intent of the
       legislature, and the legislature clearly intended the determination of a violation and notice
       of violation to be separate events. See Exelon, 234 Ill. 2d at 274. Thus, we conclude that the
       notice of violation is not the same as the determination of the violation.
¶ 12       The question of whether the log constitutes a determination of violation requires
       consideration of whether the log satisfies the statutory standard for such a determination.
       This presents a mixed question of law and fact to be reviewed for clear error. The version of
       section 3-212(c) of the Act in effect at the time provides as follows:
           “Upon completion of each inspection, survey and evaluation, the appropriate Department
           personnel who conducted the inspection, survey or evaluation shall submit a copy of their
           report to the licensee upon exiting the facility, and shall submit the actual report to the
           appropriate regional office of the Department. Such report and any recommendations for
           action by the Department under this Act shall be transmitted to the appropriate offices
           of the associate director of the Department, together with related comments or
           documentation provided by the licensee which may refute findings in the report, which
           explain extenuating circumstances that the facility could not reasonably have prevented,
           or which indicate methods and timetables for correction of deficiencies described in the
           report. Without affecting the application of subsection (a) of Section 3-303, any
           documentation or comments of the licensee shall be provided within 10 days of receipt
           of the copy of the report. Such report shall recommend to the Director appropriate action
           under this Act with respect to findings against a facility. The Director shall then
           determine whether the report’s findings constitute a violation or violations of which the
           facility must be given notice. Such determination shall be based upon the severity of the
           finding, the danger posed to resident health and safety, the comments and documentation
           provided by the facility, the diligence and efforts to correct deficiencies, correction of the
           reported deficiencies, the frequency and duration of similar findings in previous reports
           and the facility’s general inspection history. Violations shall be determined under this
           subsection no later than 60 days after completion of each inspection, survey and
           evaluation.” 210 ILCS 45/3-212(c) (West 2008).
       Section 1-110 of the Act defines “Director” as “the Director of Public Health or his
       designee.” 210 ILCS 45/1-110 (West 2008).
¶ 13       According to the plain language of the statute, three actions are required before a
       determination can be made: (1) the Department personnel who conducted the survey must


               2
               Both parties agree that the 10-day requirement to provide notice to the facility once a
       determination of violation has been made is not mandatory.

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       submit a copy of their report to the licensee and send the original to the appropriate regional
       office of the Department; (2) the licensee must be given 10 days to submit comments or
       documentation refuting findings in the report; and (3) the report, any recommendations for
       action, and the facility’s comments must then be transmitted to the appropriate offices of the
       associate director of the Department. The Director or his designee must then determine
       whether the report’s findings constitute a violation, taking into consideration multiple
       factors, including any comments or documentation provided by the facility.
¶ 14        The Department contends that the log is the determination made by the Director’s
       designee after receiving the report, recommendations, and facility comments. Aurora Manor
       responds with several alternative arguments, contending that the log is the surveyor’s report
       or, at most, the recommendation for action required to be transmitted to the associate director
       of the Department before a determination can be made; that allowing the reviewer to make
       the final determination renders the Director a mere rubber stamp; and that the legislature
       could not have intended for the Department to make a determination of violation without
       providing a copy of the actual determination to the facility. Unfortunately, because the record
       contains no documentation regarding the actual process followed by the Department in
       making its determination, we must determine whether the ALJ’s decision was clearly
       erroneous based on our review of the log itself, comparing the actual document to the
       statutory requirements.
¶ 15       The record does not include any specific reasons for the ALJ’s denial of Aurora Manor’s
       motion to dismiss on jurisdictional grounds. In the ALJ’s report and recommendations
       entered on October 25, 2010, the ALJ made an express finding of fact that the Department
       made its determination of violation on April 3, 2009. In the Department’s response to Aurora
       Manor’s motion to dismiss, the Department stated that it records the exact date of its
       determination of violation in every survey case on the survey processing log form, and it
       attached a copy of the pertinent log. There was no other document attached to the response,
       and we have found no other document in the record dated April 3, 2009, that could
       conceivably constitute a determination of violation. Thus, it is apparent that the ALJ’s
       finding was based on his conclusion that the log constituted the determination of violation.
¶ 16       The log was completed by someone other than Pletcher, the surveyor who conducted the
       inspection. However, it is not clear from the face of the document whether it was generated
       by the regional office or by the associate director’s office. The signature line simply contains
       the designation “Reviewer.” The majority of the fields on the log were populated by
       computer entries and contain background information such as the facility name and location
       and various date entries, including the date the immediate jeopardy was abated, the dates
       forms and packages are due, and future date indicators. The form includes a 60-day field that
       is populated with “04/04/09.” A reviewer number and name are also shown in this portion
       of the log. The bottom section of the log contains a few handwritten comments and notations
       and a reviewer’s signature and identification number. The comments section of the log
       contains two handwritten lines: “Legal review completed 4/3/09” and “Facilities comments
       reviewed 3/16/09.” The log also shows a handwritten “1” next to the number of violations,
       and the line next to “A” is checked, the same violation type cited in the notice of violations

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       served on Aurora Manor. Although there is nothing specific on the log to indicate whether
       it is a recommendation or a final determination, the reviewer’s signature and handwritten
       identification number do not match the computer-generated reviewer name and number
       shown earlier on the log, and Pletcher’s name does not appear on the log.
¶ 17        We now turn to Aurora Manor’s various arguments that the log does not constitute the
       determination of violation. Aurora Manor first contends that the log is the report itself. This
       argument has no merit on its face. The report is prepared by the surveyor and a copy of the
       report is given to the facility upon completion of the survey. The log contains no mention of
       Pletcher and is dated 59 days after the date Pletcher completed his investigation and provided
       Aurora Manor with a copy of the report. Notably, Aurora Manor has stated that it did not
       receive a copy of the log until after it received the notice of violation and later argues that if
       the log is the determination, it should have received a copy of the log before receiving the
       notice. Moreover, the record contains a document entitled “Incident Investigation Report”
       with Pletcher’s name listed as the surveyor as well as the dates the investigation was initiated
       and completed, and copies of Pletcher’s investigation interview notes. For all of these
       reasons, the log is clearly not the report required by the Act. Aurora Manor also contends that
       the log is not the determination because it does not reference specific violations of the Act.
       However, there is nothing in the statute that requires the determination itself to reference
       specific violations. Aurora Manor further contends that if the reviewer who prepares the log
       is the individual who makes the determination, the Department’s Director becomes “a mere
       clerical worker or rubber-stamp.” However, the statute clearly defines “Director” as the
       Director or his designee, and the designee would be anyone who is given the authority by the
       Director to make the determination. Aurora Manor further contends that a conclusion that
       the log constitutes the determination leads to absurd results, because the facility has no
       access to the log and does not receive a copy of it unless the facility appeals the notice.
       However, the statute requires the facility be given notice within 10 days after a determination
       has been made, but does not require the Department to provide evidence of the determination
       itself. Finally, Aurora Manor contends that, at most, the log is the recommendation referred
       to in the statute. However, there is nothing on the face of the log to indicate that it is merely
       a recommendation rather than the actual determination.
¶ 18       Based upon our review of the statutory requirements and the log itself, together with the
       entire record, we do not have a definite and firm conviction that a mistake was made by the
       ALJ. There is nothing on the log to indicate that it was merely a recommendation or that it
       originated from the regional office, and it appears that the person who completed the log
       could have been a second reviewer because a separate name and identification number appear
       earlier on the log. The comments indicate that the statutory requirement of considering the
       facility comments was satisfied, and further indicate that a legal review was completed,
       seeming to indicate a more final step in the process. Thus, the ALJ’s finding that the
       Department made its determination of violations on April 3, 2009, within the 60-day
       requirement, was not clearly erroneous.
¶ 19       Aurora Manor next contends that collateral estoppel bars the Department from arguing
       the log represents the date the determination was made, relying on this court’s decision in

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       Pinnacle Opportunities, Inc. v. Department of Public Health, No. 1-09-2090 (2010)
       (unpublished order under Supreme Court Rule 23). “Collateral estoppel may be applied when
       the issue decided in the prior adjudication is identical with the one presented in the current
       action, there was a final judgment on the merits in the prior adjudication, and the party
       against whom estoppel is asserted was a party to, or in privity with a party to, the prior
       adjudication.” Du Page Forklift Service, Inc. v. Material Handling Services, Inc., 195 Ill. 2d
       71, 77 (2001). Here, the first requirement is not satisfied. The issue in Pinnacle was whether
       the 60-day limitation in section 3-212 of the Act was mandatory or directory. Thus, collateral
       estoppel does not apply.
¶ 20        Finally, we address Aurora Manor’s contention on cross-appeal that it is entitled to
       attorney fees because it prevailed on its complaint for administrative review. Because we are
       reversing the judgment of the circuit court, this argument is no longer valid. Moreover, the
       circuit court did not err in denying Aurora Manor’s motion for award of attorney fees and
       litigation expenses. Aurora Manor is not entitled to attorney fees simply because it prevailed
       in the circuit court. Section 10-55(c) of the Illinois Administrative Procedure Act provides:
           “In any case in which a party has any administrative rule invalidated by a court for any
           reason, including but not limited to the agency’s exceeding its statutory authority or the
           agency’s failure to follow statutory procedures in the adoption of the rule, the court shall
           award the party bringing the action the reasonable expenses of the litigation, including
           reasonable attorney’s fees.” 5 ILCS 100/10-55(c) (West 2010).
       In the case sub judice, no administrative rule was invalidated, even at the circuit court level.
       Thus, the trial court correctly denied the motion for award of attorney fees and litigation
       expenses.
¶ 21      For the aforementioned reasons, the judgment of the circuit court declaring void the final
       order of the Department is reversed and the Department’s final order is reinstated. The circuit
       court’s order denying Aurora Manor’s motion for the award of attorney fees and litigation
       expenses is affirmed.


¶ 22       Affirmed in part and reversed in part.




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