                                    2015 IL App (1st) 140750

                                                                             SECOND DIVISION
                                                                                October 13, 2015



No. 1-14-0750



FRANCES HOUSE, INC., d/b/a Kanthak House,             )             Appeal from the
                                                      )             Circuit Court of
                     Plaintiff-Appellee,              )             Cook County
                                                      )
v.                                                    )
                                                      )              No. 11 CH 30059
THE ILLINOIS DEPARTMENT OF PUBLIC HEALTH; )
THERESA GARATE, Assistant Director of the Illinois    )
Department of Public Health; and DR. DAMON T.         )
ARNOLD, Director of the Illinois Department of Public )             Honorable
Health,                                               )             Peter Flynn,
                     Defendants-Appellants.           )             Judge Presiding.


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


                                           OPINION


¶1      Defendant Illinois Department of Public Health (the Department) appeals from an order

of the circuit court that reduced plaintiff Kanthak House's ("Kanthak") violation of section

350.700(b) of Title 77 of the Illinois Administrative Code (Code) (77 Ill. Adm. Code 350.700(b),

amended at 13 Ill. Reg. 19451 (eff. Dec. 1, 1989) (Intermediate Care of the Developmentally

Disabled Facilities Code))) from a "Type A" classification to an administrative warning, and

vacated the $5,000 fine and six month conditional license. The Department argues that this court

should affirm the Director's, Dr. Damon Arnold's, classification of Kanthak's violation as "Type
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A." For the following reasons, we reverse the circuit court but affirm the Director's classification

of Kanthak's section 350.700(b) violation as a "Type A" violation and reinstate the $5,000 fine

and six month conditional license.

¶2                                       BACKGROUND

¶3      Kanthak, an intermediate care facility for the developmentally disabled, is licensed by

the Department pursuant to the Nursing Home Care Act (Care Act) (210 ILCS 45/1-101 et seq.

(West 2008)). The facility is located in Ottawa, Illinois and houses 16 residents. Intermediate

care facilities for the developmentally disabled are licensed and regulated by the Department.

¶4     In 2009, a 59-year-old mentally disabled woman (hereinafter “R4”) resided at Kanthak.

On August 22, 2009, R4 shoplifted a 300-count bottle of aspirin during a shopping trip to

Walmart with the Kanthak staff and other residents. The staff was unaware that R4 had

shoplifted the aspirin until they discovered the bottle later that day in her possession. The bottle

was taken away from R4 and stored in administrator Melissa Terry's office in an unlocked desk

drawer. No facts indicate that the office door was locked.

¶5     Sometime on September 29, 2009, R4 went into the office, took out the aspirin bottle,

and ingested about 100 pills. Terry was in the dining room assisting another resident at the time.

No one else was in the office when R4 ingested the pills. R4 later told Terry that she had taken

the pills. Terry called 911 immediately and R4 was taken to a local emergency room.

¶6     R4 was given activated charcoal, admitted to the Intensive Care Unit (ICU), and

monitored for poisoning by salicylates (the analgesic agents in aspirin). A toxic level of

salicylate is above 30. R4's levels were monitored every two hours. R4's level was 21 upon




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arrival and rose to 25 two hours later. R4 suffered two seizures because of the metabolic

disturbance caused by the aspirin: one partial seizure and one toxic-clonic seizure.

¶7     R4 gave different reasons to different people for taking the pills. She told Terry she had a

headache. R4 told the treating hospital physician, Dr. Gueorguiev, that she had a headache, she

wanted to kill herself, changed her mind and said she wanted to kill someone else, and that she

wanted to return to her birthplace. Dr. Gueorguiev observed that R4 stated “she has everything

you ask her for,” and that her suicidal and homicidal thoughts were “questionable” and “cannot

be very serious.” He also concluded that “the rest of [R4's] chronic conditions have remained

stable.”

¶8     On October 1, 2009, R4 was discharged from the hospital and involuntarily admitted to

the hospital's inpatient mental health unit. R4 spent six days there, after which she was released

because her past psychiatrist, Dr. Glavin, reported that she was less depressed, and was not

suicidal or homicidal. R4 was then released back to Kanthak. Kanthak did not notify the

Department of R4's incident or hospitalization.

¶9     On September 30, 2009, the day after R4 ingested the aspirin, Kanthak's safety

committee had a meeting to address the cause of the incident. As a result of the meeting, the

committee determined that “[m]edication will not be stored in an office,” and that “[s]tolen items

will be returned to the store immediately.”

¶ 10   On December 11, 2009, the Department conducted its mandatory annual licensure survey

of Kanthak. During the survey, Deborah Montgomery, the health care facility surveillance nurse

responsible for investigating Kanthak, discovered that Kanthak failed to report the R4 incident to

the Department. As a result of Kanthak's failure to report, on February 3, 2010, the Department



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issued a notice of violations pursuant to sections 1-101 to 3A-101 of the Act (210 ILCS 45/1-101

to 3A-101 (West 2008)). The Department's notice alleged that Kanthak violated: (1) section

350.620(a) of title 77 of the Code, which requires facilities to have "written policies and

procedures governing all services provided by the facility,"; (2) section 350.700(b) of Title 77 of

the Code, which requires facilities to notify the Department of serious incidents or accidents,

with "serious" defined to include instances of "physical harm or injury"; (3) section 350.1060(e)

of Title 77 of the Code, which requires facilities to develop and administer individualized

programs for managing residents' behaviors; and (4) section 350.1210 of Title 77 of the Code

which requires facilities to provide all services necessary to maintain residents' good health. 77

Ill. Adm. Code 350.620(a), 350.700(b), 350.1060(e), 350.1210, amended at 13 Ill. Reg. 19451

(eff. Dec. 1, 1989).

¶ 11   The violation notice classified Kanthak's infractions as “one or more Type A violations.”

A "Type A" violation is a violation of the Act or the Department's regulations “which creates a

condition or occurrence relating to the operation and maintenance of a facility” that (1) creates a

substantial probability that the risk of death or serious mental or physical harm to a resident will

result therefrom or (2) has resulted in actual physical or mental harm to a resident. 210 ILCS

45/1-129 (West 2008). The specified statutory penalties for a "Type A" violation include a fine

of at least $5,000, as well as automatic issuance of a conditional license for six months. 77 Ill.

Adm. Code 350.282(a)(1)(A), (a)(2), amended at 13 Ill. Reg. 19451 (eff. Dec. 1, 1989). The

Department assessed a $5,000.00 fine and placed Kanthak's license on conditional status for six

months. Kanthak requested an administrative hearing.




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¶ 12   On April 12, 2011, the parties appeared before an administrative law judge (ALJ). Prior

to the start of the hearing, the Department withdrew the charged violation of section 350.1060(e).

77 Ill. Adm. Code 350.1060(e), amended at 13 Ill. Reg. 19451 (eff. Dec. 1, 1989). The

Department submitted several exhibits, including R4's medical records relating to her September

2009 emergency room and follow-up care. Additionally, the Department entered Kanthak's

internal Policy 5.24 (Policy 5.24) into evidence. Policy 5.24 states that "[a]ny facility employee

or agent who witnesses or suspects a violation of resident rights, abuse, or neglect, as well as

injuries of unknown source shall immediately report the matter to facility management." The

policy included “abuse” and “neglect” definitions.

¶ 13   Two witnesses testified at the hearing: Melissa Terry and Deborah Montgomery, the

Health Care Facility Surveillance Nurse who investigated Kanthak in December 2009. Deborah

Montgomery testified on behalf of the Department. She had been a registered nurse since 1983

and was an employee of the Department at the time of the December 2009 inspection. She

testified as to the R4 incident. She testified regarding R4's hospital records from the September

29, 2009 emergency room trip and ICU admission, and her inpatient mental health care treatment

and release back to Kanthak. She also testified as to Policy 5.24. Finally, she opined that based

on her Kanthak investigation, Kanthak did not provide “what was needed to maintain the safety

of the individual ,” “did not provide safety” related to the unsecured aspirin bottle, and “did not

provide monitoring of a close enough nature to keep R4 safe.”

¶ 14   Melissa Terry testified on behalf of Kanthak. She testified that at the time of the R4

incident, she was employed as the Qualified Mental Retardation [sic] Professional (QMRP) at

Kanthak. She began working there since April 2009. R4 had lived at Kanthak since November



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2000. Terry had become familiar with R4's behavior plan and “addressed [R4's] behaviors of

throwing objects, hitting, and some other aggressive behaviors.” She testified that R4 did go on

the August 22, 2009 shopping trip to Walmart and that R4 shoplifted a 300-count bottle of

aspirin on that trip. She testified that Kanthak confiscated the stolen aspirin bottle from R4 and

stored it “in an office at the facility.” Terry testified that on September 29, 2009, R4 told Terry

that she ingested the pills and Terry called 911. Terry also testified to R4's September 29, 2009

emergency room trip and ICU admission, inpatient mental health care treatment, and release

back to Kanthak. Terry testified that Policy 5.24 only applied when there had been a suspected

violation of resident rights, abuse, neglect, or injury from an unknown source. She did not think

that the R4 incident triggered the policy and therefore, the policy did not require reporting to the

Department. She also testified that there was no need to report the R4 incident “[b]ecause there

was no significant harm or injury caused to R4.”

¶ 15   Kanthak also called Montgomery as a witness “as if under cross examination pursuant to

§2-1102 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1102 [(West __)].” She testified

that “she was the only Department representative conducting the survey” of Kanthak.

Montgomery testified that “she concluded that Kanthak[ ] did not follow its Policy 5.24” as to

the R4 incident. She testified that after reading R4's discharge summary, she verified “that R4's

physician indicated that R4 had a mild toxicity range as a result of her ingesting the aspirin” and

“that she did not do an investigation into how much aspirin would need to be ingested for R4 to

be in a severe toxicity range.” She also testified that “R4's treating physician indicated that R4's

levels never came to a danger zone and no treatment was required.”




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¶ 16   On July 11, 2011, the ALJ issued his report and recommendation. The ALJ found no

violation of section 350.620(a) of Title 77 of the Code or section 350.1210 of Title 77 of the

Code, but found that Kanthak violated section 350.700(b) of Title 77 of the Code because it

failed to notify the Department of the incident that caused physical harm or injury to a resident.

The ALJ found Kanthak's claims that R4 did not suffer sufficient harm or injury to trigger the

regulation to be “disingenuous” and “unpersuasive.” The ALJ found that the failure to notify the

Department “prevented [it] from being able to conduct its own independent investigation,” thus

precluding it from potentially identifying issues and violations, making recommendations, or

taking corrective action. The ALJ found that the violation constituted a "Type A" violation and

recommended a $5,000 fine and issuance of a six-month conditional license.

¶ 17   On August 8, 2011, the Department's Director adopted the ALJ's report and entered a

"Final Order" that assessed a "Type A" violation against Kanthak for the section 350.700(b)

violation, levied a $5,000 fine against Kanthak, and imposed a six-month conditional license

against Kanthak.

¶ 18   On August 24, 2011, Kanthak timely filed a petition for administrative review in the

circuit court seeking reversal of the Department's order. Kanthak argued that it did not violate

section 350.700(b) of title 77 of the Code and that such violation did not amount to a "Type A"

violation. After briefing and oral argument, the circuit court affirmed the Department's finding

of a section 350.700(b) violation, but reversed the designation of the violation as “Type A” and

remanded the matter to the Department to reclassify the violation in light of two considerations:




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(1) the perceived contradiction between Kanthak Policy 5.24's reporting requirements and those

in section 350.700(b); and (2) the effect of the 2010 statutory amendments to the Care Act. 1

¶ 19   On November 16, 2012, on remand, the ALJ found that no contradiction existed between

finding that Kanthak satisfied its own reporting requirements but failed to satisfy the reporting

requirements in section 350.700(b) of title 77 of the Code because section 350.700(b) “requires

that the Department be notified of any serious incident or accident,” with “serious” defined as

“any incident or accident that causes physical harm or injury to a resident.” The ALJ further

found “[t]his Tribunal's recommendation of a Type 'A' violation is premised upon Kanthak['s]

interpretation and implementation of its Policy 5.24 which is the antithesis of the reporting

requirements found in ICFDD Code Section 350.700(b).” The ALJ also found that “Kanthak['s]

error was further compounded by interpreting harm as 'significant harm or injury' whereas

ICFDD Code Section 350.700(b) only requires 'physical harm or injury.' ” As for the "Type A"

classification, the ALJ found that Kanthak took a narrow view of what must be reported under

Policy 5.24. Compared to section 350.700(b), Policy 5.24's narrow reporting requirements give

Kanthak virtually unlimited discretion to decide what to report. Because of this, the ALJ

determined that Policy 5.24 “ 'creates a condition *** relating to the operation and maintenance

1
       On remand, the ALJ determined, and the parties agree here, that the July 2010

amendments to the Care Act and the related amendments creating and modifying the MR/DD

Community Care Act (Pub. Act 96-339, §1-101.05 (eff. July 1, 2010) (amending 210 ILCS 47/1-

101.05 (West 2010))) and the ID/DD Community Care Act (Pub. Act 97-227, §73 (eff. Jan 1,

2012) (amending 210 ILCS 47/1-101 (West 2012)) were inapplicable and did not affect the

assessed violation or penalty.



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of a facility presenting a substantial probability that death or serious mental or physical harm will

result therefrom.' ” The ALJ also found that the amendments to the Care Act effective after July

1, 2010 did not apply here. The Department thereafter adopted the ALJ's \addendum in its

remand order. Kanthak again appealed to the circuit court.

¶ 20   Before the circuit court a second time, Kanthak renewed its challenge to the Department's

violation classification, again arguing that its violation of section 350.700(b) of Title 77 of the

Code did not rise to the level of a "Type A" or "Type B" violation. After briefing and oral

argument, on February 10, 2014, the circuit court entered an order that: (1) reversed the

classification of the reporting violation as “Type A” and removed the $5,000 fine; (2) held that

the section 350.700(b) violation here was not a "Type A" or "Type B" violation; and (3) directed

the Department to impose the only remaining sanction, an “administrative warning.” The

Department did not adopt the circuit court's orders and now appeals.

¶ 21                                  ANALYSIS

¶ 22   Before we address the merits of the Department's arguments, we must address the

appropriate standard of review. In administrative review cases, “this court review[s] the

Director’s decision and not the decision of the ALJ or the circuit court.” Parikh v. Division of

Professional Regulation of the Department of Financial & Professional Regulation, 2014 IL

App (1st) 123319, ¶ 19 (citing Lindemulder v. Board of Trustees of the Naperville Firefighters’

Pension Fund, 408 Ill. App. 3d 494, 500 (2011). The applicable standard of review “depends on

the question presented.” Parikh, 2014 IL App (1st) 123319, ¶ 19 (citing Comprehensive

Community Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d 455 (2005)). “When

an issue of pure law is raised, we review de novo.” Parikh, 2014 IL App (1st) 123319, ¶ 19



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(citing Village Discount Outlet v. Department of Employment Security, 384 Ill. App. 3d 522, 525

(2008)). “When the issue raised is one of fact, we will only ascertain whether such findings of

fact are against the manifest weight of the evidence.” Parikh, 2014 IL App (1st) 123319, ¶ 19

(citing Provena Covenant Medical Center v. Department of Revenue, 236 Ill. 2d 368, 386-87

(2010)). Lastly, “[a] mixed question of law and fact is reviewed under the clearly erroneous

standard.” Parikh, 2014 IL App (1st) 123319, ¶ 19 (citing Heabler v. Illinois Department of

Financial & Professional Regulation, 2013 IL App (1st) 111968, ¶ 17). A mixed question of law

and fact is one “ '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.' ” Parikh, 2014 IL

App (1st) 123319, ¶ 19 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)).

¶ 23   There is no dispute between the parties here that the question presented is a mixed

question of law and fact and therefore the clearly erroneous standard should apply. We are in

agreement because the question presented here is whether the facts satisfy the statutory standard

for classifying a violation as "Type A."

¶ 24   The clearly erroneous standard of review lies between the manifest weight of the

evidence standard and the de novo standard, and lends some deference to the agency's decision.

Lombard Public Facilities Corp. v. Department of Revenue, 378 Ill. App. 3d 921 (2008). The

Board's decision will be deemed clearly erroneous only where, upon review of the entire record,

we are “left with the definite and firm conviction that a mistake has been committed.” (Internal

quotation marks omitted.) AFM Messenger Service, Inc. v. Department of Employment Security,

198 Ill. 2d 380, 393 (2001).




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¶ 25   Kanthak does not dispute the finding that it violated section 350.700(b) of Title 77 of the

Code here. The only question before us is whether Kanthak's violation is properly classified as a

"Type A" violation. A "Type A" violation is as follows:

       "[A] violation of the [Care] Act or the Department's regulations 'which creates a

       condition or occurrence relating to the operation and maintenance of a facility' that (i)

       creates a substantial probability that the risk of death or serious mental or physical harm

       to a resident will result therefrom or (ii) has resulted in actual physical or mental harm to

       a resident." Community Living Options, Inc. v. Department of Public Health, 2013 IL

       App (4th) 121056, ¶ 36 (citing 210 ILCS 45/1-129 (West 2008)).

¶ 26   Here, the ALJ found that Kanthak failed to report the R4 incident and thus violated

section 350.700(b) of Title 77 of the Code, which requires facilities to notify the Department of

serious incidents or accidents, with "serious" defined to include instances of "physical harm or

injury." The Department adopted this finding and decided that a Type A penalty was

appropriate. Clearly, it would be preferable that the Act set forth the range of penalties in a more

straightforward manner such that questions similar to what we have considered can be

minimized in the future. That stated, we find the Department was within its authority in the

imposition of the Type A penalty.

¶ 27   Applying the essentially undisputed facts of this case and the violation section

350.700(b), which is not contested by Kanthak, to the statutory definition of a "Type A" offense,

the Director's finding can be summarized as: Kanthak's implementation and interpretation of its

duty to report under Policy 5.24, as required by section 350.700(b) of the Code, resulted in a

failure to report to the Department that a resident gained access to an unsecured desk in the



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facility, ingested over 100 pills necessitating an emergency 911 call resulting in immediate

medical intervention and admission to the ICU. Kanthak's implementation and interpretation of

its policy is a condition relating to the operation of the facility that creates a substantial

probability that the risk of death or serious physical harm will result to a resident is a Type A

violation under the Act. This finding is not manifestly erroneous. We are cognizant of the fact

that the failure to report the R4 incident did not per se cause R4 to ingest 100 aspirin pills

resulting in her admission to the ICU, clearly a dangerous circumstance that resulted in physical

harm to R4. However, Kanthak's interpretation of its duty to report, as dramatically

demonstrated by the R4 incident which includes its failure to report, as found by the Director,

“prevented [the Department] from being able to conduct its own independent investigation,” thus

precluding the Department from potentially identifying issues and violations, making

recommendations, or taking corrective action which is a condition that creates a substantial

probability that the risk of death or serious harm to Kanthak residents will occur in the future

because the Department will be unaware and unable to take remedial action to prevent a

reoccurrence. Common sense dictates that, where there is a failure to report a serious incident

like the one involving R4, there is a substantial probability that future serious incidents will not

be reported. For these reasons, we are not convinced that the Director's decision to categorize

Kanthak's section 350.700(b) violation as a "Type A" violation was clearly erroneous. After

reviewing the record before us we are not left with a definite and firm conviction that a mistake

has been committed. See AFM Messenger Service, Inc., 198 Ill. 2d at 393.

¶ 28                                      CONCLUSION




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¶ 29   For the above reasons, we reverse the circuit court but affirm the decision of the Director

finding that Kanthak's section 350.700(b) violation was a "Type A" offense and affirm the

corresponding penalties.

¶ 30   The Director's decision is affirmed.




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