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 1-14-0750
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.