                                         2018 IL App (3d) 170177

                                Opinion filed August 16, 2018
     ____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2018

     LAKEWOOD NURSING AND                     )
     REHABILITATION CENTER, LLC,              )
                                              )   Appeal from the Circuit Court
            Plaintiff-Appellant,              )   of the 12th Judicial Circuit,
                                              )   Will County, Illinois.
            v.                                )
                                              )
     THE DEPARTMENT OF PUBLIC                 )   Appeal No. 3-17-0177
     HEALTH; LAMAR HASBROUCK, Director of )       Circuit No. 14-MR-1184
     Public Health; and HELEN SAUVAGEAU,      )
                                              )
            Defendants                        )   The Honorable
                                              )   John C. Anderson,

     (The Department of Public                )   Judge, presiding.

     Health and Lamar Hasbrouck,              )

     Director of Public Health,               )

     Defendants-Appellees).                   )

                                              )
     ____________________________________________________________________________

            JUSTICE McDADE delivered the judgment of the court, with opinion. 

            Presiding Justice Carter and Justice Schmidt concurred in the judgment and opinion. 


     ________________________________________________________________________

                                                OPINION

¶1          Plaintiff Lakewood Nursing and Rehabilitation Center, LLC (Lakewood), filed a notice

     of involuntary transfer and discharge against Helen Sauvageau for failure to pay for her

     residency. Sauvageau filed a request for hearing, which the parties agreed to stay when
     Sauvageau applied for Medicaid. Two days after Sauvageau’s application was denied, Lakewood

     requested defendant Illinois Department of Public Health (IDPH) to set a hearing date. Sixty-

     eight days after Lakewood’s request, a hearing was held. IDPH approved the discharge 30 days

     after the receipt of its final ruling. Lakewood filed a complaint in the circuit court, arguing that

     (1) IDPH’s ruling is void because it violated statutory time requirements, and (2) IDPH erred

     when it required Lakewood to keep Sauvageau as a resident for an additional 30 days. IDPH

     filed a motion to dismiss, which the trial court granted. Lakewood appealed, and this court

     reversed the trial court’s decision. On remand, the trial court determined that IDPH did not

     violate statutory time requirements and that it had the discretion to impose the 30-day extension.

     Lakewood appealed. We reverse.

¶2                                                  FACTS

¶3          This case involves an involuntary discharge of a resident of Lakewood. In 2012, Helen

     Sauvageau became a Lakewood resident and initially paid for her residency through her pension

     and social security without the assistance of government financial aid. In August 2013,

     Sauvageau stopped paying Lakewood.

¶4          On October 28, 2013, Lakewood sent Sauvageau a notice of involuntary transfer or

     discharge and opportunity for hearing. The notice stated that it was seeking to discharge

     Sauvageau because she failed to pay for her stay at Lakewood. On November 1, 2013,

     Sauvageau filed an involuntary transfer or discharge request for hearing and, the next day, filed

     an application for Medicaid. On January 13, 2014, her Medicaid application was denied. On

     January 15, 2014, Lakewood’s attorney informed IDPH of the denial and requested IDPH to set

     an intent to discharge hearing date.




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¶5          On February 10, 2014, a prehearing was held. Lakewood filed a motion to dismiss its

     hearing request, arguing that the IDPH no longer had jurisdiction to hold a hearing because it

     would be doing so after the 10-day limitations period in section 3-411 of the Nursing Home Care

     Act (210 ILCS 45/3-411 (West 2014)). In Sauvageau’s response to the motion to dismiss, she

     claimed that, through an exchange of e-mails, the parties had agreed to stay the hearing pending

     her application for medical assistance, that failure to hold a hearing would violate her due

     process rights, and that the original discharge notice was defective. Sauvageau explained that she

     applied for medical assistance, that the application was denied, and that she was currently

     appealing the denial. IDPH denied the motion to dismiss, determining that the language within

     the section was directory rather than mandatory. It reasoned that there was no negative language

     denying a hearing if the time requirement was not met and that strict compliance of the time

     requirement would cause more adverse effects than a delay.

¶6          On March 24, 2014, an evidentiary hearing was held. At the hearing, Sauvageau’s

     attorney stated that “we can stipulate to the fact that there are monies due and owing to

     Lakewood Nursing Home. I don’t know that we can stipulate to the exact amount that they are

     claiming but we can definitely stipulate that we didn’t pay because we ran out of money, and we

     applied for the Medicaid and we’ve been still in that process with the intent that Medicaid will

     eventually be approved. It is approved with the spend down and we are hoping to appeal and get

     some better terms out of that.” The administrative law judge (ALJ) recommended, based on

     Sauvageau’s stipulation that she owed money to Lakewood, that the notice of involuntary

     transfer or discharge should be approved “30 days subsequent to the receipt of the final ruling in

     this matter.” The chief ALJ adopted the recommendation in its final administrative order.




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¶7          Lakewood filed a complaint in the Will County circuit court. The complaint alleged that

     the hearing and final order is void because they violate the statutory time requirements. It also

     claimed that the final order unconstitutionally required Lakewood to keep Sauvageau as a

     resident for an additional 30 days after the order was issued. IDPH filed a motion to dismiss,

     arguing that Lakewood’s claims were moot because Lakewood received the relief it sought as

     Sauvageau no longer lived in the facility. It also claimed that the trial court only has jurisdiction

     to review final administrative decisions and that Sauvageau does not challenge the decision but

     rather seeks “declaratory relief regarding the timing of the Department’s actions.” The trial court

     granted the motion to dismiss.

¶8          Lakewood appealed, and this court reversed and remanded the trial court’s decision in

     Lakewood Nursing & Rehabilitation Center, LLC v. Department of Public Health, 2015 IL App

     (3d) 140899. This court determined that the issues were moot because relief was not available to

     Lakewood once Sauvageau left the facility. However, the court found that the public interest and

     the capable of repetition yet evading review exceptions applied. Id. ¶¶ 19, 30, 36. This court

     stated that the time requirement issues that Lakewood presented were too premature for its

     review and would be better addressed on remand. Id. ¶ 40.

¶9          On remand, the parties stipulated to the following facts:

                            “1. On July 6, 2012, Helen Sauvageau (hereinafter

                    ‘Resident’) became a resident at Lakewood Nursing and

                    Rehabilitation Center (hereinafter ‘Lakewood’) and was a private

                    pay resident (meaning, Resident was not receiving governmental

                    financial aid; Resident had a pension and Social Security) until

                    August 2013, when Resident no longer paid for her nursing stay.


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       2. On October 20, 2013, the facility filed a ‘Notice of Intent

to Discharge’ Resident due to her failure to pay.

       3. Resident hired an attorney, who, on November 1, 2013,

filed a Notice of Hearing with IDPH for the intended discharge.

       4. On or about November 2, 2013, Resident filed an

application for Medicaid, which stayed the intent to discharge

hearing.

       5. On January 13, 2014, Resident’s Medicaid application

was denied. Resident’s request for Medicaid was denied for her

stay at Lakewood because Resident gifted her house to her

daughter.

       6. On January 15, 2014, Lakewood’s attorney informed

IDPH of the denial and requested the intent to discharge hearing be

set.

       7. IDPH scheduled the intent to discharge for hearing to

occur March 24, 2014 (68 days after January 15, 2014).

       8. On March 24, 2014, the intent to discharge hearing was

held. At said hearing, Resident’s attorney stipulated that Resident

had not paid for her stay, and that monies were owed to Lakewood.

       9. On May 6, 2014 (43 days after the intent to discharge

hearing was held), IDPH signed the Final Order in the intent to

discharge case, and mailed said Order to the parties on May 7,

2014 (44 days after the intent to discharge hearing was held).

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          10. In said Final Order, IDPH ordered the facility to allow

Resident to stay in the facility an additional 30 days from the date

of the Final Order.

          11. Lakewood did not consent to the hearing being held

more than 10 days after Medicaid denial being issued.

          12. Lakewood did not consent to the Final Order being

issued more than 14 days after the intent to discharge hearing was

held.

          13. Lakewood did not consent to the language in the Final

Order allowing Resident to remain in the facility for 30 days.

          14. Both parties agree that the Nursing Home Care Act, 210

ILCS 45 (more specifically, Art. III Pt. 4 ‘Discharge and Transfer’;

210 ILCS 45/3-401 through 210 ILCS 45/3-423) governs this

review.

          15. Both parties agree to limit the issues to those set forth

in the Appellate Court remand Order, specifically:

          (a) Does the Nursing Home Care Act require IDPH to hold

an intent to discharge hearing not later than 10 days after a hearing

request is filed?

          (b) Does the Nursing Home Care Act require IDPH to

render a decision on the discharge within 14 days after a hearing

request is filed?




                                     6

                              (c) Does IDPH have the authority under the Nursing Home

                      Care Act to issue an Order directing the nursing care facility to

                      allow the Resident facing discharge to remain at the facility for a

                      specific period of time after the issuance of a Final Order on the

                      merits of the discharge hearing?”

¶ 10          Lakewood argued that section 3-411’s time requirement that IDPH shall hold a hearing

       no later than 10 days after a hearing request is filed and render a decision within 14 days after the

       filing of the hearing request are mandatory because (1) the statutory provision affects public and

       private rights, (2) the provision contains negative language, and (3) the provision unambiguously

       construes specific time requirements. Furthermore, Lakewood claimed that section 3-413 of the

       Nursing Home Care Act (210 ILCS 45/3-413 (West 2014)) did not give IDPH authority to

       approve the notice 30 days after the final ruling.

¶ 11          The circuit court held that section 3-411’s time requirements were directory for three

       reasons: (1) without negative language, provisions that construe procedural commands are

       generally interpreted as directory, (2) the court must give some deference to an administration’s

       interpretation of the Act it’s responsible for administering, and (3) the Act is intended for the

       protection of nursing home residents and their interests are more protected under a directory

       interpretation of the statute. The court also ruled that section 3-413 did not prevent IDPH from

       requiring a period of time a resident is allowed to stay after its decision. It determined that

       section 3-418, which gives IDPH authority to prepare transfer or discharge plans to ensure the

       protection of residents, allowed IDPH the discretion to approve the notice 30 days after the final

       ruling. Lakewood appealed.

¶ 12                                               ANALYSIS


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¶ 13          Lakewood appeals the trial court’s ruling, arguing that the court’s interpretation of

       section 3-411 and section 3-413 was error. We note that Sauvageau is no longer a resident of

       Lakewood. However, this court has previously determined that these issues meet the mootness

       exceptions. Therefore, we review Lakewood’s claims.

¶ 14          In construing a statute, the function of the court is to ascertain and give effect to the intent

       of the legislature by examining the entire statute. Grove School v. Department of Public Health,

       160 Ill. App. 3d 937, 941 (1987). Where the language is clear, it must be given effect without

       resort to further aids of construction, and a court may not read into it any exceptions, conditions,

       or limitations that the agency did not express. Davis v. Toshiba Machine Co., 186 Ill. 2d 181,

       184-85 (1999). “Determining whether a provision is mandatory or directory is primarily a matter

       of ascertaining the intention of the legislature.” Alpern v. License Appeal Comm’n, 38 Ill. App.

       3d 565, 567 (1976). The construction of a statute is a question of law reviewed de novo. Hayashi

       v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 16.

¶ 15                                            I. Section 3-411

¶ 16          First, Lakewood claims that the IDPH lacked jurisdiction because it violated section 3­

       411’s statutory time requirements. Citing Carrigan v. Illinois Liquor Control Comm’n, 19 Ill. 2d

       230, 233 (1960), Lakewood states that generally statutory time requirements are discretionary;

       however, there are two exceptions: (1) the provision injuriously affects public or private rights or

       (2) the provision contains negative language. Under the first exception, it argues that the

       following public and private rights are affected by section 3-411’s statutory time period: (1) the

       rights of Medicare or Medicaid patients awaiting admission, (2) the resident’s right to have an

       “expeditious hearing and determination,” (3) the contract rights of Lakewood to avoid keeping

       nonpaying residents, and (4) potential increased cost on Lakewood to house nonpaying residents.


                                                         8

       Under the second exception, it claims that the “no later than” language within section 3-411

       constitutes negative language because it prohibits any hearings after expiration of the 10-day

       period. Furthermore, it alleges that section 3-411 unambiguously mandates specific time

       requirements. It posits that the 34-day requirement in section 3-413 is specifically calculated to

       include the 10-day and 14-day requirements in section 3-411 and, therefore, indicates that

       section 3-411’s time requirements are mandatory.

¶ 17          IDPH argues that the time requirements of section 3-411 do not apply because the statute

       applies to involuntary discharges other than an action by the Department of Healthcare and

       Family Services (DHFS) with respect to the Title XIX Medicaid recipient. IDPH alleges that this

       case involves an action by the DHFS because Sauvageau had applied for Medicaid shortly after

       she requested a hearing. Alternatively, IDPH claims that section 3-411 should be given a

       directory interpretation. In particular, IDPH claims that the purpose of the Act is to protect

       nursing home residents and that residents would be injured under a mandatory construction,

       rather than a directory construction, because it would (1) affect the residents’ ability to

       effectively proceed with their claims, (2) “ ‘encourage facilities to obscure issues and delay in

       providing necessary information,’ ” (3) affect the court’s compliance with other provisions in the

       statute, and (4) violate federal law as it could affect due process rights.

¶ 18          The mandatory or directory question “ ‘ “simply denotes whether the failure to comply

       with a particular procedural step will or will not have the effect of invalidating the governmental

       action to which the procedural requirement relates.” ’ ” In re M.I., 2013 IL 113776, ¶ 16 (quoting

       People v. Robinson, 217 Ill. 2d 43, 51-52 (2005)). Under the mandatory or directory question,

       statutes are mandatory if the intent of the legislature dictates a particular consequence for failure

       to comply with the provision. Id. However, in the absence of legislative intent, the statute is


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       directory and no particular consequence flows from noncompliance. Id. “If a provision of a

       statute states that the time for performance of an official duty without any language denying

       performance after a specified time, it is directory.” Grove School v. Department of Public

       Health, 160 Ill. App. 3d 937, 941 (1987). However, “if the time period is provided to safeguard

       someone’s rights, it is mandatory, and the agency cannot perform its official duty after the time

       requirement has passed.” Id. (citing Andrews v. Foxworthy, 71 Ill. 2d 13 (1978)).

¶ 19          Section 3-411 provides time periods for when the IDPH must hold a hearing on a notice

       for involuntary transfer or discharge and render a decision. It states:

              “The Department of Public Health, when the basis for involuntary transfer or discharge is

              other than action by the Department of Healthcare and Family Services (formerly

              Department of Public Aid) with respect to the Title XIX Medicaid recipient, shall hold a

              hearing at the resident’s facility not later than 10 days after a hearing request is filed, and

              render a decision within 14 days after the filing of the hearing request.” 210 ILCS 45/3­

              411 (West 2014).

¶ 20          In regard to IDPH’s initial argument, the plain language of section 3-411 states that the

       section does not apply when an action by the DHFS with respect to the Title XIX Medicaid

       recipient is the basis for involuntary transfer or discharge. Here, although IDPH argues that this

       language applies to this case because Sauvageau applied for Medicaid after her request for a

       hearing, Sauvageau is not considered a Medicaid recipient but rather a Medicaid applicant

       during the proceedings and her Medicaid application is not a basis for the involuntary discharge.

       Therefore, we reject IDPH’s initial argument.

¶ 21          In regard to IDPH’s alternative argument, IDPH cites Grove School, 160 Ill. App. 3d 937,

       and Moon Lake Convalescent Center v. Margolis, 180 Ill. App. 3d 245 (1989), for the


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       proposition that the right that section 3-411 was designed to protect would be more injured under

       a mandatory construction rather than a directory construction. In Grove School, plaintiff argued

       that IDPH’s administrative decision was void because it failed to comply with time requirements

       stated in section 3-704 of the Nursing Home Care Act. 160 Ill. App. 3d at 940. The relevant

       portion of section 3-704 stated that, “ ‘The Department shall commence [the] hearing within 30

       days of receipt of the request for a hearing ***.’ ” Id. at 940-41 (quoting Ill. Rev. Stat. 1985, ch.

       111½, ¶ 4153-704). The First District stated that the purpose of the Nursing Home Care Act was

       to protect nursing home patients and held that the rights of those individuals are more injuriously

       affected by a mandatory interpretation of the statute. Id. at 941. It also found that there was no

       negative language within the Act. Id. Therefore, it ruled that section 3-704’s language was

       directory. Id.

¶ 22           In Margolis, 180 Ill. App. 3d at 254-55, the First District reviewed whether the time

       requirements in section 3-702(d) of the Nursing Home Care Act were mandatory or directory.

       The statute stated that,

               “ ‘A determination about a complaint which alleges a Type A violation shall be made by

               the Department, in writing, within 7 days after the complaint’s receipt. A determination

               about a complaint which alleges a Type B or C violation shall be made by the

               Department, in writing, within 30 days after the complaint’s receipt.’ ” (Emphases in

               original.) Id. at 254 (quoting Ill. Rev. Stat. 1983, ch. 111½, ¶ 4153-702(d)).

       The court noted that the purpose of the Nursing Home Care Act was to protect nursing home

       residents. Id. at 255-56. In light of the Nursing Home Care Act’s purpose, it believed that a

       mandatory construction of section 3-702(d) would result in “obvious” consequences such as

       unaddressed resident abuses, incomplete and inaccurate determinations, and “encourage facilities


                                                        11 

        to obscure issues and delay in providing necessary information.” Id. at 256. It further explained

        that a mandatory interpretation would be “more injurious to residents than the benefits the

        residents would receive.” Id. Ultimately, the court found that the provision in section 3-702(d)

        was directory. Id. at 254-55.

¶ 23           Here, the term “not later than 10 days” in section 3-411 constitutes negative language.

        Illinois courts, including this court, have determined that language prohibiting a further action

        constitutes negative language and, therefore, a mandatory construction. See Frances House, Inc.

        v. Department of Public Health, 269 Ill. App. 3d 426, 431 (1995) (determining that the phrase

        “not to exceed 90 days” within section 3-707 of the Nursing Home Care Act constituted negative

        language and was, therefore, mandatory); Foley v. Civil Service Comm’n, 89 Ill. App. 3d 871,

        873 (1980) (finding that the phrase “no longer than” within Rule VII of the General Procedure

        for Review of Police Psychological Exam was negative language, and therefore, Rule VII

        required a mandatory construction); Lincoln Park Realty, Inc. v. Chicago Comm’n on Human

        Relations, 9 Ill. App. 3d 186, 189-90 (1972) (ruling that an ordinance stating that, “ ‘No report

        shall be delayed more than sixty days after the date of the issuance of notice for the

        commencement of the first hearing’ ” was “clearly negative,” and thus, the provision was

        mandatory). Therefore, we determine that the provision is mandatory.

¶ 24	          Sauvageau filed a notice of hearing on November 1, 2013. The next day, she filed an

        application for Medicaid and the parties agreed to stay the hearing. In January, Sauvageau’s

        Medicaid application was denied and Lakewood requested IDPH to set a hearing date. However,

        the hearing was not scheduled until March 2014, 68 days after Lakewood’s request. Because the

        provision is mandatory, we find that IDPH lost jurisdiction because it did not conduct a hearing




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       in 10 days. Because we find that IDPH lacked jurisdiction, we need not determine whether IDPH

       erred when it did not render its decision within 14 days in accordance with the section.

¶ 25                                            II. Section 3-413

¶ 26          Next, Lakewood alleges that section 3-413 did not give IDPH authority to delay the

       effective date of its order by 30 days after its issuance. Section 3-413 governs the time period in

       which a facility may discharge a resident. It states:

              “If the Department determines that a transfer or discharge is authorized under Section 3­

              401, the resident shall not be required to leave the facility before the 34th day following

              receipt of the notice required under Section 3-402, or the 10th day following receipt of

              the Department’s decision, whichever is later, unless a condition which would have

              allowed transfer or discharge in less than 21 days as described under paragraphs (a) and

              (b) of Section 3-402 develops in the interim.” 210 ILCS 45/3-413 (West 2014).

¶ 27          Looking at the plain language of section 3-413, it does not give IDPH authority to

       approve the notice of transfer and discharge 30 days after the receipt of the final ruling. See

       O’Grady v. Cook County Sheriff’s Merit Board, 260 Ill. App. 3d 529, 534 (1994) (“Any power

       or authority claimed by an administrative agency must find its source within the provisions of the

       statute by which the agency was created.”). The section only requires Lakewood to maintain

       Sauvageau as a resident for 34 days following the receipt of the notice or 10 days following the

       receipt of the final ruling. Therefore, we find that IDPH’s ruling regarding the 30-day extension

       is void. See Walsh v. Champaign County Sheriff’s Merit Comm’n, 404 Ill. App. 3d 933, 938

       (2010) (any action beyond the administrative agency’s statutory authority is void).

¶ 28          IDPH argues that section 3-418 gave it “broad, discretionary” authority to approve the

       notice 30 days after the receipt of the final ruling. Section 3-418 states: “The Department shall


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       prepare resident transfer or discharge plans to assure safe and orderly removals and protect

       residents’ health, safety, welfare and rights.” 210 ILCS 45/3-418 (West 2014).

¶ 29          “A court presumes that the legislature intended that two or more statutes which relate to

       the same subject are to be read harmoniously so that no provisions are rendered inoperative.”

       Knolls Condominium Ass’n v. Harms, 202 Ill. 2d 450, 458-59 (2002). When a general statutory

       provision and a specific statutory provision exist in the same act, the specific provision controls

       and should be applied. Id. at 459.

¶ 30          Here, section 3-413 specifically addresses the time period in which a resident is not

       required to leave the facility. Section 3-418 provides a general provision that allows IDPH to

       prepare discharge plans for safe and orderly removals. Based on the rules of statutory

       interpretation, we determine that section 3-413 controls in this case. Therefore, we reject IDPH’s

       argument.

¶ 31                                             CONCLUSION

¶ 32          The judgment of the circuit court of Will County is reversed.

¶ 33          Reversed.




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