                            2016 IL App (2d) 151214
                        Nos. 2-15-1214 & 2-16-0057 cons.
                         Opinion filed November 3, 2016
 ___________________________________________________________________________

                                         IN THE

                           APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

MANORCARE HEALTH SERVICES, LLC;              )   Appeal from the Circuit Court
HCR HEALTHCARE, LLC; and HCR                 )   of McHenry County.
MANORCARE, INC.,                             )
                                             )
         Plaintiffs-Appellees,               )
                                             )
v.                                           )   No. 14-MR-569
                                             )
THE ILLINOIS HEALTH FACILITIES AND )
SERVICES REVIEW BOARD; KATHRYN J. )
OLSON, as Chair of the Illinois Health       )
Facilities and Services Review Board; JOHN )
HAYES, as Vice Chair of the Illinois Health  )
Facilities and Services Review Board; PHILIP )
BRADLEY, JAMES J. BURDEN, DEANNA )
J. DEMUZIO, DALE GALASSIE, ALAN              )
GREIMAN, DAVID PENN, and RICHARD H. )
SEWELL, as Members of the Illinois Health )
Facilities and Services Review Board; THE    )
DEPARTMENT OF PUBLIC HEALTH;                 )
LAMAR HASBROUCK, as Director of the          )
Department of Public Health; THE SPRINGS )
AT CRYSTAL LAKE; FAIR OAKS HEALTH )
CARE CENTER; and CRYSTAL PINES               )
REHABILITATION AND HEALTH CARE )
CENTER,                                      )
                                             )
         Defendants                          )
                                             )
(The Illinois Health Facilities and Services )
Review Board; Kathryn J. Olson, as Chair of )
the Illinois Health Facilities and Services  )
Review Board; John Hayes, as Vice Chair of )
the Illinois Health Facilities and Services  )
2016 IL App (2d) 151214


Review Board; Philip Bradley, James J. Burden,)
Deanna J. Demuzio, Dale Galassie, Alan        )
Greiman, David Penn, and Richard H. Sewell, )
As Members of the Illinois Health Facilities  )
And Services Review Board; The Springs at     ) Honorable
Crystal Lake; and Fair Oaks Health Care       ) Michael T. Caldwell,
Center, Defendants-Appellants).               ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
       Justices Jorgensen and Spence concurred in the judgment and opinion.

                                          OPINION

¶1     Plaintiffs, ManorCare Health Services, LLC, HCR Healthcare, LLC, and HCR

ManorCare, Inc. (collectively referred to as ManorCare), filed an application with defendant the

Illinois Health Facilities and Services Review Board (the Board) for a certificate of need to

construct a new nursing-home facility in Crystal Lake, Illinois. Three local nursing homes

opposed the application: defendants The Springs at Crystal Lake (The Springs), Fair Oaks Health

Care Center (Fair Oaks), and Crystal Pines Rehabilitation and Health Care Center (Crystal

Pines). The Board denied the application, and ManorCare filed a complaint for administrative

review in the circuit court of McHenry County, naming as additional defendants the Board’s

members and the Department of Public Health. The circuit court reversed the Board’s decision

and instructed the Board to issue a certificate of need. The Board and its members appeal, as do

The Springs and Fair Oaks. For the reasons that follow, we reverse the circuit court’s judgment

and affirm the decision of the Board.

¶2                                      I. BACKGROUND

¶3     ManorCare hoped to construct a 130-bed skilled-nursing facility on an 8.9-acre parcel at

the intersection of Route 176 and Terra Cotta Road in Crystal Lake. To do so, it was required to

apply for and receive a certificate of need from the Board. ManorCare emphasized in its April




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24, 2012, application that the number of area residents over the age of 65 was expected to grow

by 7.5% between 2011 and 2016. Additionally, the Board’s bed-need formula showed a need for

469 additional skilled-nursing-facility beds in McHenry County by 2018.           ManorCare also

highlighted the lack of available private nursing-home rooms in the county, a need that

ManorCare intended to address with 50 private rooms. ManorCare further noted that, in the

United States, there are 43 licensed skilled-nursing-facility beds for every 1,000 persons over the

age of 65; the number of such beds within both a 5-mile and a 10-mile radius of ManorCare’s

proposed Crystal Lake facility was far below the national average. A 2010 McHenry County

“Healthy Community” study also found that there was a lack of sufficient nursing-home options

in the county.

¶4     In its application, ManorCare declared that McHenry County residents were leaving the

area for nursing-care services. In support of that conclusion, ManorCare noted that in 2010

2,627 residents in the area received Medicare discharges to skilled-nursing facilities. If each of

those patients required the average 30-day Medicare stay at a nursing facility, that would equal

78,810 patient days. However, the existing facilities in the area had provided only 68,944 days

of Medicare services in 2010. Therefore, ManorCare posited, it was reasonable to assume that

9,866 of the required 78,810 days of care had been provided outside of the county. Again

assuming an average 30-day stay, ManorCare calculated that 328 patients had left McHenry

County for nursing-care services. ManorCare asserted that it intended to bring those patients

back to McHenry County.

¶5     On the other hand, ManorCare acknowledged in its application that data indicated that

existing nursing homes in the area were being underutilized.          According to the Board’s

regulations, the target utilization rate for long-term nursing-care services is an annual average




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occupancy of 90% of licensed beds.         77 Ill. Adm. Code 1125.210(c)-(d) (2011).          In its

application, ManorCare advanced possible reasons for the underutilization of existing facilities.

For example, some facilities might have taken licensed beds out of service; it was also possible

that families might have chosen not to use the existing facilities, because of poor performance

records.

¶6     The three existing nursing-home facilities in Crystal Lake—The Springs, Crystal Pines,

and Fair Oaks—each objected to ManorCare’s application and argued that there was no need for

the project. They noted that Crystal Pines was in the middle of a $500,000 renovation project.

Also, Fair Oaks was undergoing a $3.25 million renovation that included adding 16 private

rooms. The Springs was a five-star facility that currently had over 30 beds available. The

Springs had also recently received regulatory approval to expand its bed capacity.

¶7     Before the Board considers an application for a certificate of need, the Board’s staff

reviews the application and prepares a staff report.        According to the staff report here,

ManorCare’s application, as originally submitted, complied with 16 of 20 review criteria. The

initial application did not meet the “service demand” criterion, because ManorCare did not

submit letters from hospitals and physicians projecting the number of patient referrals to the

proposed facility. See 77 Ill. Adm. Code 1125.540 (2011). Additionally, the application did not

meet the “service accessibility” criterion, i.e., it did not show that “[t]he number of beds being

established or added for each category of service is necessary to improve access for planning

area residents.” 77 Ill. Adm. Code 1125.570 (2011). To comply with this criterion, the applicant

must document that at least one of the following factors exists in the planning area: (1) an

absence of the proposed service; (2) access limitations due to the payor status of patients or

residents; (3) existing providers’ restrictive admission policies; (4) a medical-care problem in the




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area, such as an average family-income level that is below the poverty level or a designation of

the area as a “Medically Underserved Area,” a “Health Professional Shortage Area,” or a

“Medically Underserved Population”; or (5) all services within a 45-minute normal travel time

meeting or exceeding the 90% occupancy standard. 77 Ill. Adm. Code 1125.570(a) (2011).

According to the staff report, there was no absence of the proposed service in the planning area.

Nor were there access limitations, restrictive admission policies, or indicators of medical-care

problems in the area. Additionally, 18 of the 26 facilities within 45 minutes of ManorCare’s

proposed location were not operating at target occupancy.

¶8        The staff report also noted that ManorCare’s application did not meet the “unnecessary

duplication/maldistribution” criterion. See 77 Ill. Adm. Code 1125.580 (2011). That criterion

states:

                  “(b) The applicant shall document that the project will not result in

          maldistribution of services. Maldistribution exists when the identified area (within the

          planning area) has an excess supply of facilities, beds and services characterized by such

          factors as, but not limited to:

                          (1) A ratio of beds to population that exceeds one and one-half times the

                  State average;

                          (2) Historical utilization (for the latest 12-month period prior to

                  submission of the application) for existing facilities and services that is below the

                  [90%] occupancy standard ***; or

                          (3) Insufficient population to provide the volume or caseload necessary to

                  utilize the services proposed by the project at or above occupancy standards.” 77

                  Ill. Adm. Code 1125.580(b) (2011).




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According to the staff report, 11 of the 17 facilities within 30 minutes of the proposed facility

were not at target occupancy. Additionally, the average occupancy of those 17 facilities was

only 81.38%, which indicated that there were approximately 161 long-term-care beds not being

used in the 30-minute area.

¶9     Finally, due to the underutilization of existing facilities within both 30 and 45 minutes of

the proposed facility, the staff report determined that ManorCare’s application did not meet the

“impact of project on other area providers” criterion. See 77 Ill. Adm. Code 1125.580(c) (2011).

That criterion requires an applicant to document that, within 24 months after the completion of

the proposed project, the project will not lower below 90% the utilization rates of other area

providers and will not further lower the utilization rates of facilities that are currently operating

below 90%. See 77 Ill. Adm. Code 1125.580(c) (2011).

¶ 10   The Board first considered ManorCare’s application at its July 23, 2012, meeting. Board

member James Burden asked a question regarding the projected need for 469 additional beds in

McHenry County by 2018. A staff member for the Board explained that, pursuant to the relevant

statute, bed need was calculated for 10-year periods. Accordingly, in 2008, the calculated need

was for 469 additional beds by 2018. However, the staff member explained, the statute had

recently been amended to provide that bed need would be calculated for five-year periods. The

Board voted 7-1 against the project at the July 23 meeting. Burden indicated that his vote against

the project was based on “several factors, not the least of which would be my concern for the

projection of health needs at least six years in advance.” He added, “I think we can address that

in the future adequately.” Other Board members stated that they voted against the project for the

same reasons.

¶ 11   On July 25, 2012, the Board issued an intent-to-deny letter, in response to which




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ManorCare could submit additional information and appear before the Board again. One of the

arguments that ManorCare raised in its response was that its application had met more criteria

than any other skilled-nursing-facility application that the Board had approved in the past three

years. The Board’s staff subsequently drafted a supplemental report in which it determined that

ManorCare had submitted sufficient referral information to meet the “service demand” criterion.

However, the application still did not meet the “service accessibility,” “unnecessary

duplication/maldistribution,” and “impact of project on other area providers” criteria.

Specifically, based on new information that had been released since the original staff report was

prepared, the supplemental report noted that, of the 26 existing facilities within 45 minutes of the

proposed project, 20 were not operating at target occupancy and 1 was not yet operational.

Additionally, 14 of the 17 facilities within 30 minutes of the proposed project were not at target

occupancy, and their average occupancy was 79.48%.         According to the amended staff report,

Crystal Pines, Fair Oaks, and The Springs had utilization rates of 88.20%, 84.60%, and 64.40%,

respectively.

¶ 12   The Board addressed ManorCare’s application at a second meeting, on December 10,

2012. Burden again addressed the 10-year projection of bed need, asking the Board staff: “Why

do we continue to see projected occupancy data going up to 2018?” Burden continued: “How in

the hell do we know? We can’t tell sometimes two years how we’re going to be.” When a staff

member explained that the bed-need projection was “our inventory estimate of how many beds

are going to be needed in that Planning Area” by 2018, Burden responded: “that’s the first time

I’ve seen that lengthy of a bed-need methodology projected out that far, and I guess there’s a

reason for it that I’m missing.” A representative of the Illinois Department of Public Health then

explained to the Board that, although the applicable statute had recently been amended to require




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5-year bed-need projections, it had been using 10-year projections for the past several years. The

Board voted 5-3 to deny ManorCare’s application. On December 17, 2012, the Board sent

ManorCare a letter denying the certificate of need, based on noncompliance with the “service

accessibility,” “unnecessary duplication/maldistribution,” and “impact on other area providers”

criteria.

¶ 13    ManorCare exercised its right to a hearing before an administrative law judge (the ALJ).

The ALJ allowed The Springs, Crystal Pines, and Fair Oaks to intervene in the proceedings. The

Board filed a motion in limine seeking to bar ManorCare from introducing evidence relating to

any projects other than the proposed ManorCare facility.         In its response to the motion,

ManorCare explained that it intended to introduce evidence showing that, from September 2008

through October 2012, the Board considered 26 other applications to establish new nursing

homes and that, although each of those applications had negative findings with respect to the

current utilization of existing providers in the planning area, the Board approved each

application. ManorCare argued that this evidence demonstrated that “the Board grants new

nursing home [certificate-of-need] applications despite non-conformance with ‘current

utilization’ criteria.” ManorCare also contended that this evidence showed that its application

was in compliance with the Board’s standards, criteria, and plans. The ALJ granted the motion

in limine, prohibiting ManorCare from introducing evidence relating to other projects.

¶ 14    Prior to and during the administrative hearing, there were lengthy discussions about

ManorCare presenting an offer of proof with respect to the evidence that was excluded per the

motion in limine. Much of the debate centered on whether the documents that ManorCare

wanted to introduce had already been included in the record during prehearing motion practice.

Although the ALJ purported to deny ManorCare’s request to make an offer of proof, the record




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2016 IL App (2d) 151214


contains a 38-page, 177-paragraph written offer of proof submitted by ManorCare. (The parties

also supplemented the record in the trial court with the documents that ManorCare had hoped to

introduce at the administrative hearing.)

¶ 15    Two witnesses testified at the administrative hearing. Donald Reppy, the director of

health planning for HCR ManorCare, Inc., testified about the various reasons why ManorCare

believed that there was a need for a new nursing home in Crystal Lake. Those reasons were

consistent with what ManorCare had emphasized in its application (the projected need for 469

additional beds by 2018, the aging population, the lack of private rooms, the below-average

number of beds per 1,000 residents over the age of 65, the 2010 finding that there was a lack of

nursing-home options in the county, and ManorCare’s conclusion that residents were leaving the

county for nursing care). Reppy also explained that the 90% target utilization rate reflects past

utilization, because it is based on information from previous years. Accordingly, an area might

need nursing homes in the future even though existing facilities are operating below target

utilization.

¶ 16    Michael Constantino, a senior project reviewer with the Department of Public Health,

detailed the staff reports that were prepared in connection with ManorCare’s application. When

asked about the 161 unused nursing-care beds within 30 minutes of the proposed facility, he

acknowledged that this number could be skewed by “dead beds,” which are licensed beds that

are not set up for use. Furthermore, Constantino acknowledged that the “service accessibility,”

“unnecessary duplication/maldistribution,” and “impact on other area providers” criteria all deal

with the utilization rates of existing facilities. However, utilization rate is a completely separate

consideration from bed need. According to Constantino, no single factor, including bed need, is

controlling.




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¶ 17   At the conclusion of the administrative hearing, the ALJ submitted a report finding that

ManorCare had failed to establish compliance with the “service accessibility,” “unnecessary

duplication/maldistribution,” and “impact on other area providers” criteria.             The ALJ

recommended that the Board render a final administrative decision denying the application. On

August 27, 2014, the Board accepted the ALJ’s report and issued its final decision, denying

ManorCare’s application for a certificate of need.

¶ 18   ManorCare filed an action for administrative review in the trial court. On November 13,

2015, the trial court entered an order reversing the Board’s decision and directing it to issue a

certificate of need. The Springs, Crystal Pines, and Fair Oaks filed a notice of appeal, and the

Board and its members subsequently filed a separate notice of appeal. This court consolidated

the two appeals. Crystal Pines thereafter requested leave to withdraw as an appellant, and we

granted the motion.

¶ 19                                      II. ANALYSIS

¶ 20   The appellants argue that the Board’s decision to deny ManorCare’s application was

neither clearly erroneous nor arbitrary and capricious. They also argue that the ALJ acted within

his discretion by prohibiting ManorCare from introducing evidence of unrelated projects.

¶ 21   We review the Board’s final decision, not the trial court’s order. Mercy Crystal Lake

Hospital & Medical Center v. Illinois Health Facilities & Services Review Board, 2016 IL App

(3d) 130947, ¶ 17. Reviewing the Board’s ultimate decision to grant or deny a permit requires us

to examine the legal effect of the facts, which presents a mixed issue of law and fact. Mercy

Crystal Lake Hospital, 2016 IL App (3d) 130947, ¶ 17. Under the “clearly erroneous” standard,

we will not reverse unless the entire record leaves us “ ‘with the definite and firm conviction that

a mistake has been committed.’ ” AFM Messenger Service, Inc. v. Department of Employment




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2016 IL App (2d) 151214


Security, 198 Ill. 2d 380, 395 (2001) (quoting United States v. United States Gypsum Co., 333

U.S. 364, 395 (1948)). Furthermore, an administrative decision may be overturned where it is

arbitrary and capricious. Marion Hospital Corp. v. Illinois Health Facilities Planning Board,

324 Ill. App. 3d 451, 455 (2001). An administrative decision is arbitrary and capricious where

the agency: “(1) relies on factors which the legislature did not intend for the agency to consider;

(2) entirely fails to consider an important aspect of the problem; or (3) offers an explanation for

its decision which runs counter to the evidence before the agency, or which is so implausible that

it could not be ascribed to a difference in view or the product of agency expertise.” Greer v.

Illinois Housing Development Authority, 122 Ill. 2d 462, 505-06 (1988). “While an agency is

not required to adhere to a certain policy or practice forever, sudden and unexplained changes

have often been considered arbitrary.” Greer, 122 Ill. 2d at 506. The “arbitrary and capricious”

standard of review is the least demanding standard, the equivalent of the “abuse of discretion”

standard. Greer, 122 Ill. 2d at 497.

¶ 22   In reviewing an application for a permit to construct a new nursing-home facility, the

Board must consider the numerous factors that are outlined in the administrative regulations.

The Board has the discretion to approve an application even though the proposed project does

not comply with all review criteria. See 77 Ill. Adm. Code 1130.660(a), amended at 30 Ill. Reg.

14852 (eff. Sept. 1, 2006). No single criterion is more important than any other (Mercy Crystal

Lake Hospital, 2016 IL App (3d) 130947, ¶ 22), and the Board uses its judgment and expertise to

consider and balance the applicable criteria (Charter Medical of Cook County, Inc. v. HCA

Health Services of Midwest, Inc., 185 Ill. App. 3d 983, 989 (1989)).

¶ 23   The Board ultimately determined that ManorCare’s application did not meet the “service

accessibility,” “unnecessary duplication/maldistribution,” and “impact on other area providers”




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criteria. At the hearing before the ALJ, ManorCare attempted to demonstrate why a certificate of

need should be issued despite the fact that the application did not comply with all applicable

criteria. Reppy, ManorCare’s own witness, even acknowledged that the application did not meet

multiple criteria and was not “entitled” to approval. ManorCare now changes tune and argues

that it complied with these three criteria, which it refers to collectively as the “Current Utilization

criteria.” In support of that position, ManorCare emphasizes that it presented evidence that the

population of McHenry County was aging, that there was a lack of nursing-home options and

private rooms in the county, that the county had a below-average number of beds per 1,000

seniors, and that calculations derived from Medicare data suggested that residents were leaving

the county for nursing care. ManorCare also notes that “dead beds” could have affected the

utilization rates of existing facilities in the area.

¶ 24    The Board’s conclusion that ManorCare’s application did not meet all applicable criteria

was not clearly erroneous. Reppy acknowledged that the application did not meet all applicable

criteria. Additionally, the Board detailed the number of existing facilities within 30 and 45

minutes of the proposed project that were operating below the target utilization rate. Although

ManorCare introduced some evidence to support its position that there was a need for the

proposed facility, it is not our role to reweigh the evidence. Provena Health v. Illinois Health

Facilities Planning Board, 382 Ill. App. 3d 34, 47 (2008).

¶ 25     ManorCare further argues that the Board’s decision was arbitrary and capricious,

because the Board rejected its own bed-need calculation. By statute, the Board is required to

project future bed need by planning area. When ManorCare filed its application, the statute

called for 10-year projections. 20 ILCS 3960/12.5 (West 2010). Accordingly, the Board had

projected in 2008 that McHenry County would need 469 additional beds by 2018. The statute




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was amended in August 2012 to require five-year projections. Pub. Act 97-1115 (eff. Aug. 27,

2012) (amending 20 ILCS 3960/12.5).

¶ 26   Emphasizing certain comments made by Board members at the meetings in July and

December 2012, ManorCare proposes that the Board rejected its own bed-need determination.

However, it is apparent that the Board was merely refusing to find that the 10-year bed-need

projection was dispositive on the issue of whether there was a need for ManorCare’s project.

“The stated bed-need in a planning area is a projection; it does not create a fixed pool of beds or

bind the Board.” Provena Health, 382 Ill. App. 3d at 47. Although projected bed need is “a

critical factor in determining need,” the Board may “deny a proposed project if not needed even

though there is a projected bed need.” Charter Medical, 185 Ill. App. 3d at 988.

¶ 27   ManorCare offered numerous reasons why it believed that there was a need for another

nursing home in Crystal Lake, even though competitors were operating below the target

utilization rate. On the other hand, The Springs, Fair Oaks, and Crystal Pines vehemently

opposed the application and insisted that there was no need for this particular project. In light of

the conflicting evidence, the Board’s assessment of need was not clearly erroneous, and the

record does not support ManorCare’s argument that the Board rejected its own bed-need

determination. Moreover, we note that the comments that ManorCare highlights were made at

the meetings when the Board initially considered the application; they were not part of the final

administrative decision.   We review the Board’s final administrative decision denying the

application. Mercy Crystal Lake Hospital, 2016 IL App (3d) 130947, ¶ 17; see 77 Ill. Adm.

Code 1125.140 (2011) (“final administrative decision” means the action taken by the Board after

an administrative hearing or the waiver of such hearing).




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¶ 28    ManorCare also argues that the Board’s decision was arbitrary and capricious because

the Board had a practice of granting applications despite noncompliance with the “Current

Utilization criteria.” To that end, ManorCare wanted to introduce evidence showing that in the

four years preceding its application—and again during the pendency of these proceedings—the

Board had universally approved other projects that did not comply with those criteria.

ManorCare notes that the regulations provide that the parties may present evidence and

arguments that are “relevant to the question of consistency and conformity of the proposed

project with the adopted standards, criteria or plans upon which the finding and decision of [the

Board] was made.” 77 Ill. Adm. Code 1130.1110(f), adopted at 30 Ill. Reg. 14852, 14971 (eff.

Sept. 1, 2006). According to ManorCare: “Evidence regarding the Board’s own practice of

approving new nursing home [certificate-of-need] applications despite non-conformance with the

Current Utilization criteria is clearly relevant to the question of the ‘consistency and conformity’

of the ManorCare project with the Board’s standards, criteria, plans and prior findings and

decisions.” (Emphasis added.) Similarly, ManorCare contends that such evidence supports its

theory that “non-conformance with Current Utilization criteria is no impediment to the Board’s

granting new nursing home applications, and that the Board’s denial of ManorCare’s application

was an abrupt and irrational departure from past practice.”

¶ 29   The ALJ granted the motion in limine, preventing ManorCare from introducing evidence

along these lines. We review for an abuse of discretion an administrative agency’s decisions

regarding the admission of evidence. Wilson v. Department of Professional Regulation, 344 Ill.

App. 3d 897, 909 (2003).

¶ 30   We find no abuse of discretion. No two applications will ever be truly identical, and the

decision whether to overlook noncompliance necessarily requires the Board to evaluate each




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project individually and as a whole. There are any number of circumstances that might influence

the Board’s decision to overlook noncompliance for one project but not another. For example,

there might be a particular need for a specialized service within a given area. See Marion

Hospital Corp., 324 Ill. App. 3d at 457 (the Board’s decision to overlook noncompliance with a

review criterion was justified where no facility in that particular part of the state could have met

all criteria so as to offer open-heart-surgery services).     There are also varying degrees of

compliance and noncompliance. An unopposed project in an unpopulated area of the state might

not meet the “Current Utilization criteria” where the few existing facilities in the region operate

at 89% capacity; another project in a more populated area might encounter numerous objecting

competitors that are operating significantly below target capacity.

¶ 31   ManorCare contends that there is no indication in the record that the Board exercised its

discretion in this fashion. According to ManorCare, instead of weighing the applicable criteria,

the Board “rejected half the scale and only considered one side—Current Utilization.” We

disagree. The Board heard evidence both in favor of and against ManorCare’s application. The

Board ultimately denied the application and articulated its bases for doing so. As explained

above, that decision was not clearly erroneous. ManorCare does not cite any authority that

would require the Board to justify here its decisions to issue permits to other applicants.

¶ 32   Additionally, the regulations are clear about what evidence is relevant at an

administrative hearing:

       “In a hearing to consider the denial of a permit ***, the applicant shall have the burden of

       establishing that the proposed project *** for which application for permit *** is made is

       consistent with the standards, criteria, or plans adopted by [the Board] upon which the

       finding and decision of [the Board] was made; only such testimony and evidence as is




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       relevant shall be offered or accepted.” 77 Ill. Adm. Code 1130.1110(e), adopted at 30 Ill.

       Reg. 14852, 14971 (eff. Sept. 1, 2006).

Section 1130.1110(f) similarly provides that “[a]ll parties to an administrative hearing shall have

the right to give testimony, produce evidence, cross-examine adverse witnesses and present

arguments relevant to the question of consistency and conformity of the proposed project with

the adopted standards, criteria or plans upon which the finding and decision of [the Board] was

made.” 77 Ill. Adm. Code 1130.1110(f), adopted at 30 Ill. Reg. 14852, 14971 (eff. Sept. 1,

2006). Instead of showing that its application was consistent with the Board’s standards, criteria,

or plans, ManorCare wanted to show that noncompliance with such standards, criteria, or plans

was “no impediment” to approval. Contrary to ManorCare’s suggestion, section 1130.1110 does

not mention a given project’s consistency and conformity with the Board’s “prior findings and

decisions.” The regulations specify the burden that ManorCare had to meet, and the proffered

evidence was not relevant to meeting that burden.

¶ 33   Furthermore, if the ALJ had allowed ManorCare to introduce the proffered evidence, this

court might now be reviewing dozens of unrelated projects to determine whether they were

indeed comparable to ManorCare’s proposal. The record reflects that defendants were prepared

to dispute whether those projects were actually similar to ManorCare’s proposed project.

However, none of this is relevant to the issue of whether ManorCare’s proposal conformed to the

Board’s adopted standards, criteria, or plans.

¶ 34   We find support in Caliendo v. Martin, 250 Ill. App. 3d 409 (1993). In that case, two

officers were discharged by a police board for accepting bribes during traffic stops. Caliendo,

250 Ill. App. 3d at 411. On appeal, the officers argued that the board’s decision was arbitrary

and unreasonable because, in unrelated cases, the board had suspended rather than discharged




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other officers who engaged in similar conduct. Caliendo, 250 Ill. App. 3d at 418. Although this

proffered evidence had not been presented to the board, the court determined that the proffered

evidence did not merit a remand to the board, because the unrelated cases “did not involve the

same surrounding circumstances.” Caliendo, 250 Ill. App. 3d at 421. The court distinguished

this from a prior case in which the police board had entered grossly disparate sanctions against

two officers for violations arising out of the same incident. Caliendo, 250 Ill. App. 3d at 420.

Like the officers in Caliendo, ManorCare wants to analogize its proposal to unrelated projects to

show that the Board’s action was arbitrary and capricious. We find that such evidence is

irrelevant, because the other projects do not involve the same circumstances.

¶ 35   ManorCare’s reliance on Commonwealth Edison Co. v. Illinois Commerce Comm’n, 180

Ill. App. 3d 899 (1988), is misplaced.       ManorCare cites Commonwealth Edison for the

proposition that “an agency action that represents an abrupt departure from past practice is not

entitled to the same degree of deference by a reviewing court.” Commonwealth Edison, 180 Ill.

App. 3d at 909. However, Commonwealth Edison bears no similarity to the matter at hand. In

that case, Commonwealth Edison wanted to reduce the seasonal differential between its rates

while maintaining revenue neutrality. Commonwealth Edison, 180 Ill. App. 3d at 901-02. After

a two-year legal battle, the Illinois Commerce Commission (ICC) entered a rate schedule in

April 1988; that schedule would achieve revenue neutrality within 12 months from the date of

the decision rather than during the calendar year. Commonwealth Edison, 180 Ill. App. 3d at

902. After the appellate court stayed the April 1988 decision, Commonwealth Edison filed a

petition to revise the schedule, on an expedited basis and without notice to interested parties.

Commonwealth Edison, 180 Ill. App. 3d at 902-03. The ICC allowed the petition and entered an




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order in June 1988 setting a modified rate schedule that was based on a calendar year.

Commonwealth Edison, 180 Ill. App. 3d at 903.

¶ 36   The appellate court reversed the June 1988 order, finding that the ICC’s decision was

arbitrary and capricious. Commonwealth Edison, 180 Ill. App. 3d at 906. Among the reasons

was that, in previous published decisions dating back to 1979, the ICC had always used a 12-

month revenue-neutralization period rather than a calendar-year period when setting

Commonwealth’s Edison’s rates. Commonwealth Edison, 180 Ill. App. 3d at 908. The ICC had

even admitted in a brief that “ ‘[i]t is a fundamental principle of utility regulation that rates are

set by the [ICC] through use of a 12-month measuring period.’ ” Commonwealth Edison, 180 Ill.

App. 3d at 908. Under these circumstances, the court concluded that the ICC had “radically

altered its past practice regarding the time-frame for analyzing revenue neutrality without notice

to interested parties, a hearing, or any readily apparent reason.” Commonwealth Edison, 180 Ill.

App. 3d at 909.

¶ 37   Unlike in Commonwealth Edison, the method the Board used to evaluate ManorCare’s

application was not different from the method it had applied in the past. Instead, because

ManorCare’s application did not comply with all applicable review criteria, the Board had the

discretion to grant or deny the permit. There is ample support in the record for the Board’s

decision to deny the permit. 1

¶ 38   ManorCare also argues that the ALJ erred in refusing to allow it to present an offer of

proof. However, the record on appeal contains ManorCare’s detailed written offer of proof. The

       1
           Having determined that the proffered evidence was irrelevant, there is no need to

address the parties’ dispute as to whether ManorCare was attempting to engage in “comparative

review.”



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parties also supplemented the record in the trial court with the documents that ManorCare

intended to introduce into evidence. The purpose of an offer of proof is “to preserve error in the

exclusion of evidence by disclosing the nature of offered evidence to which an objection is

successfully interposed.” Board of Education of Community Unit School District No. 337 v.

Board of Education of Community Unit School District No. 338, 269 Ill. App. 3d 1020, 1030-31

(1995). The record is clear as to what evidence ManorCare wanted to introduce and why it

wanted to do so. Accordingly, any error by the ALJ in refusing to allow the offer of proof does

not justify reversing the Board’s decision.

¶ 39   Finally, ManorCare complains about the ALJ’s statement that the application “does not

meet all of the review criteria considered by the Board.” ManorCare notes that the regulations

indicate that “[t]he failure of a project to meet one or more review criteria *** shall not prohibit

the issuance of a permit.” 77 Ill. Adm. Code 1130.660(a), amended at 30 Ill. Reg. 14852, 14936

(eff. Sept. 1, 2006). We find no error in the ALJ’s statement. As explained above, the Board’s

finding that ManorCare did not meet three of the review criteria was not clearly erroneous.

Moreover, it is clear that the ALJ understood that the Board had discretion to approve the project

despite noncompliance with all of the criteria. Indeed, the ALJ specifically acknowledged that

“[t]he Board had discretion to approve Respondent’s application, despite non-compliance with

all review criteria, but the Board did not determine that Respondent’s factors outweighed non-

compliance with the Board’s criteria.”

¶ 40                                     III. CONCLUSION

¶ 41   For the reasons stated, we reverse the judgment of the circuit court of McHenry County

and affirm the decision of the Illinois Health Facilities and Services Review Board.

¶ 42   Circuit court judgment reversed.




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