                                                                             SECOND DIVISION
                                                                             FEB. 22, 2011
No. 1-10-1081

SHERMAN WEST COURT,                                   )       Appeal from the
                                                      )       Circuit Court of
                Plaintiff-Appellant,                  )       Cook County
                                                      )
       v.                                             )       No. 09 L 50978
                                                      )
DAMON T. ARNOLD, THE DEPARTMENT                       )       Honorable
OF HEALTH, WILLIAM A.BELL, and                        )       Mary K. Rochford,
ROSELLA D. FESSENDEN,                                 )       Judge Presiding.
                                                      )
                Defendants-Appellees.                 )

       JUSTICE CONNORS delivered the judgment of the court, with opinion.
       Presiding Justice Cunningham and Justice Harris concurred in the judgment and opinion.

                                            OPINION

       Plaintiff Sherman West Court seeks judicial review of an administrative decision by

defendant Illinois Department of Public Health (IDPH). The circuit court affirmed the decision

of IDPH. We find that IDPH's decision is not subject to judicial review because it was not a

final order under the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2008)). We

vacate the circuit court's judgment and remand with directions to dismiss the complaint.

                                         BACKGROUND

       Defendant Rosella Fessenden's father was a resident at a nursing home operated by

plaintiff Sherman West Court when he allegedly suffered a stroke. Fessenden filed a complaint

against plaintiff with IDPH under the Nursing Home Care Act (210 ILCS 45/3-701 et seq. (West

2008)), alleging that plaintiff's employees did not adequately recognize the signs of the stroke or

give her father adequate emergency care. IDPH investigated the complaint but determined that it


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was unfounded. Fessenden was dissatisfied with IDPH's initial determination, so she filed a

request for an administrative hearing.

       Plaintiff entered an appearance in front of the designated hearing officer, as is its right in

such a situation. See 210 ILCS 45/3-702(g) (West 2008). Before the hearing occurred,

however, plaintiff learned that IDPH and Fessenden had entered into a settlement agreement

under which IDPH agreed to reinvestigate Fessenden's complaint against plaintiff and Fessenden

agreed to withdraw her request for a hearing. Plaintiff noticed that the face of the order adopting

the settlement agreement contained a material scrivener's error in the number identifying the

complaint, so it filed a motion to vacate the order with the hearing officer.

       The order was duly vacated, and at the following status conference, plaintiff objected to

the settlement agreement. However, it was unclear whether plaintiff had standing to object to

the agreement because it was not the complainant, so the hearing officer set a briefing schedule

on the issue. Following full briefing and oral arguments, the hearing officer found that plaintiff

did not have standing to object to the settlement agreement and recommended to the Director of

IDPH that a new order be issued adopting the agreement. Defendant Bell, the acting Deputy

Director of IDPH, accepted the hearing officer's recommendation and issued an order that stated

in pertinent part: “[IDPH], by agreement, is to reinvestigat[e] Complaint #0773998[] and

reconsider the determination in this case.” The rest of the order contained boilerplate language

reciting that the Director of IDPH had adopted the hearing officer's findings. Importantly, the

order purported to be a “final administrative decision” within the meaning of the Nursing Home

Care Act (210 ILCS 45/3-713 (West 2008)) and the Administrative Review Law (735 ILCS 5/3-



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101 (West 2008)).

       In response, plaintiff filed a complaint with the circuit court of Cook County, seeking

judicial review of IDPH's order adopting the settlement agreement and ordering reinvestigation

of Fessenden’s complaint. The circuit court affirmed the order, finding among other things that

plaintiff did not have a right to object to the settlement agreement. Plaintiff timely filed a notice

of appeal, and this case is now before us.

                                             ANALYSIS

       The primary question presented in this case is whether plaintiff has standing to object to

the settlement agreement between Fessenden and IDPH, which required IDPH to reinvestigate

Fessenden's complaint against plaintiff. Because this is an administrative order, however, we

must first consider the threshold question of whether the order is subject to judicial review. See

Ill. Const. 1970, art. VI, § 9. Although this issue was not raised in the circuit court, lack of

subject matter jurisdiction may be raised for the first time on appeal by any party or this court

sua sponte. See In re M.W., 232 Ill. 2d 408, 417 (2009) (“[L]ack of subject matter jurisdiction is

not subject to waiver ***.”).

       When a complaint against a facility is filed under the Nursing Home Care Act, IDPH is

responsible for investigating the complaint and determining whether it is either an “invalid

report,” a “valid report,” or an “undetermined report.” (Internal quotation marks omitted) 210

ILCS 45/3-702(d) (West 2008). IDPH must notify the complainant of the outcome of its

investigation and its findings, as well as any corrective action that IDPH plans to take against the

facility. See 210 ILCS 45/3-702(e) (West 2008). If the complainant is not satisfied with the



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results of the investigation or IDPH's response, the complainant may request a hearing. See 210

ILCS 45/3-702(g) (West 2008). The hearing must be conducted by either the Director of IDPH

or a designated hearing officer, who is responsible for taking evidence, hearing witnesses under

oath, making findings of fact, and submitting a recommendation to the director of IDPH for a

decision. See 210 ILCS 45/3-705, 3-707, 3-708 (West 2008).

        The Director's decision following a hearing is “subject to judicial review exclusively as

provided in the Administrative Review Law [(735 ILCS 5/3-101 et seq. (West 2008))].” 210

ILCS 45/3-713(a) (West 2008). Under the Administrative Review Law, courts may only

judicially review an administrative decision that both (1) “affects the legal rights, duties or

privileges of parties,” and (2) “terminates the proceedings before the administrative agency.”

735 ILCS 5/3-101 (West 2008); see Searles v. Board of Education of the City of Chicago, 369

Ill. App. 3d 500, 504 (2006).

        In light of the above principles, the dispositive jurisdictional question in this case is

whether IDPH's decision to reinvestigate Fessenden's complaint was a final administrative

decision within the meaning of section 3-101 of the Administrative Review Law (735 ILCS 5/3-

101 (West 2008)) and section 3-713(a) of the Nursing Home Care Act (210 ILCS 45/3-713(a)

(West 2008)). We find that IPDH’s order was not a final decision for two independent reasons.

        First, IDPH's order did not follow a hearing. Section 3-713(a) of the Nursing Home Care

Act (210 ILCS 45/3-713(a) (West 2008)) authorizes judicial review only of “[f]inal

administrative decisions after hearing” (emphasis added), and no hearing within the meaning of

the Nursing Home Care Act occurred in this case. A “hearing” under the Nursing Home Care



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Act includes, among other things, the presentation of evidence (210 ILCS 45/3-708 (West

2008)), the testimony of witnesses under oath (210 ILCS 45/3-705 (West 2008)), the

representation of parties by counsel (210 ILCS 45/3-706 (West 2008)), a verbatim transcript of

the proceedings (210 ILCS 45/3-706 (West 2008)), and findings of fact by the hearing officer

(210 ILCS 45/3-707 (West 2008)).

        This case is somewhat unusual because Fessenden originally requested a hearing but later

withdrew her request, yet not before plaintiff, Fessenden, and IDPH's representative had

appeared several times in front of the hearing officer. However, neither these appearances nor

any of the hearing officer’s other actions constituted a hearing within the meaning of the Nursing

Home Care Act. Although the hearing officer required the parties to submit briefs and heard oral

arguments on the issue of whether plaintiff had standing to object to the settlement agreement, at

no point in this process did the hearing officer make any findings of fact or take evidence or

testimony from any witnesses. Any appearances before the hearing officer were limited to only

legal questions, not factual ones. Because there was no hearing, IDPH's order adopting the

settlement agreement and ordering reinvestigation of Fessenden's complaint is not subject to

judicial review at this time.

        Second, even if we were to find that a hearing had occurred, IDPH's order is not subject

to judicial review because it did not terminate the proceedings before IDPH, meaning that it

cannot be a final administrative order. See 735 ILCS 5/3-101 (West 2008); Searles, 369 Ill.

App. 3d at 504. The order stated that IDPH would “reinvestigat[e]” Fessenden's complaint and

“reconsider the determination in this case.” Rather than closing Fessenden's case, the plain



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language of the order indicates that IDPH intended to retain jurisdiction over it pending some

later final determination. Cf. Searles, 369 Ill. App. 3d at 504 (“These actions by the Board ***

were indicative of the Board's intention to retain jurisdiction over the matter and were not ***

indicative of its intention that the letter serve as its final adjudication of the matter.”). Because

IPDH's order did not end its involvement in this case, the order is not a final administrative order

that is subject to judicial review.

        Plaintiff raises two arguments on this point that we will address briefly. First, plaintiff

asserts that the order was final because it terminated the proceedings before the hearing officer.

We reject this contention. Section 3-101 of the Administrative Review Law (735 ILCS 5/3-101

(West 2008)) defines a final order as one that “terminates the proceedings before the

administrative agency” (emphasis added) not as an order that terminates the proceedings before

a particular hearing officer. The hearing officer in this case was merely a designated

representative of the director of IDPH (see 210 ILCS 45/3-704(a) (West 2008)). The fact that

the order adopting the settlement agreement terminated the proceedings in front of the hearing

officer is irrelevant to the question of finality because the order did not also terminate all

proceedings before IDPH as an administrative agency.

        Second, plaintiff points out that the face of the order is captioned “FINAL ORDER” and,

along with other boilerplate language, states that it is a “final administrative decision within the

provisions of the Nursing Home Care Act and the Administrative Review Law.” The presence

of this language does not affect our analysis. It is well established that it is the substance of an

order, not its form, that matters for the purpose of determining whether it is subject to review as



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either an interlocutory or a final order. See, e.g., In re A Minor, 127 Ill. 2d 247, 260 (1989) (“An

apple calling itself an orange remains an apple.”); see also generally Marsh v. Evangelical

Covenant Church of Hinsdale, 138 Ill. 2d 458 (1990) (discussing finality of orders for purposes

of appeal).

        The mere fact that IDPH's order in this case purports to be a final order that is subject to

judicial review is irrelevant. Instead, the order's effect is what matters. The order in this case

did not end IDPH's involvement in Fessenden's complaint, and it is therefore not a final order

under the Administrative Review Law (735 ILCS 5/3-101 (West 2008)). Significant confusion

over the jurisdictional question in this case could have been avoided had IDPH not used what

appears to be a standardized form order. The boilerplate language declaring that the order is a

final one under the Administrative Review Law easily allows a reader to falsely presume that the

order is subject to immediate judicial review when, in fact, it is not.

                                           CONCLUSION

        As discussed above, IDPH's order adopting the settlement agreement and ordering

reinvestigation of Fessenden's complaint was not a final administrative order because it did not

follow a hearing and it did not terminate the proceedings in front of IDPH. Because the order

was not a final administrative order, it is not subject to judicial review at this time. We therefore

vacate the judgment of the circuit court and remand with directions to dismiss plaintiff's

complaint. Because the order is not subject to judicial review, we do not reach the question of

whether plaintiff had standing to object to the settlement agreement.

        Vacated and remanded with directions.



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