Kurtz v. Illinois Department of Public Health

2023 IL App (1st) 210236-U

• Court: Appellate Court of Illinois
• Decided: June 28, 2023
• Docket: 1-21-0236
• Status: Unpublished

Opinion

2023 IL App (1st) 210236-U

THIRD DIVISION June 28, 2023

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

No. 1-21-0236 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________ ESTATE OF FRANK KURTZ, by JULIA KURTZ, INDEPENDENT ) ADMINISTRATOR; and JULIA KURTZ, INDIVIDUALLY, ) ) Appeal from Plaintiffs, ) the Circuit Court ) of Cook County v. ) ) ILLINOIS DEPARTMENT OF PUBLIC HEALTH, NIRAV SHAH, ) DIRECTOR; COUNCIL FOR JEWISH ELDERLY d/b/a ) 2018-CH-07977 LIEBERMAN CENTER FOR HEALTH AND REHABILITATION; ) and MICHAEL GOTTESMAN, EXECUTIVE DIRECTOR, ) ) Defendants-Appellees ) ) Honorable (ESTATE OF FRANK KURTZ, by JULIA KURTZ, ) Celia G. Gamrath, INDEPENDENT ADMINISTRATOR, ) Judge Presiding ) Plaintiff-Appellant). )

PRESIDING JUSTICE McBRIDE delivered the judgment of the court. Justices Reyes and Burke concurred in the judgment.

ORDER

¶1 Held: Evidence of nonpayment for stay in long-term care facility supported Department of Health’s approval of facility’s notice of intent to involuntarily discharge resident; administrative hearing regarding nonpayment could proceed despite appeal of Medicaid penalty period, and hearing was not fundamentally unfair. 1-21-0236 ¶2 The Estate of Frank Kurtz appeals from a circuit court order upholding the determination

of the Illinois Department of Public Health (DPH) that, because of nonpayment, Frank Kurtz could

be involuntarily transferred or discharged from a long-term care facility, Lieberman Center for

Health and Rehabilitation (Lieberman Center). Frank Kurtz’s wife, Julia Kurtz, is also a party and

has been involved in these proceedings as his representative. To avoid confusion between the two,

we will depart from our convention of referring to individuals by their last names and respectfully

use only their first names. The Estate argues that when evaluating Lieberman Center’s notice of

intent to transfer or discharge for nonpayment, the administrative law judge disregarded the finding

of a different agency, Illinois Department of Human Services (DHS), that Frank made a resources

spenddown that qualified him for Medicaid funding that would reduce his debt to the facility. The

Estate also argues that the administrative law judge did not hold the facility to a federal regulation

about involuntarily discharging Medicaid-pending residents, should have postponed the hearing

while Frank appealed Medicaid penalties, and made other improper or unfair rulings. Lieberman

Center responds that the appeal is moot due to Frank’s death, or that the decision should be

affirmed where the evidence established nonpayment, there was no evidence of the resources

spenddown that would trigger Medicaid funding, and that all of the Estate’s other arguments lack

merit.

¶3 In its response brief, Lieberman Center asks us to strike the statement of facts section of

the Estate’s opening brief, as it is argumentative and incomplete rather than the required neutral

recitation of facts necessary to understand the appeal. See Ill. S. Ct. R. 341(h)(6) (eff. Oct. 1, 2020)

(requiring an appellant’s brief to provide a statement of facts that “contain[s] the facts necessary

to an understanding of the case, stated accurately and fairly without argument or comment, and

-2- 1-21-0236 with appropriate reference to the pages of the record on appeal”). For example, in what is supposed

to be an impartial history, the Estate states on pages 10 and 11 of its brief that the facility’s attorney

“challenged” and “blam[ed]” Julia and “pushed aggressively” toward hearing, and when the

administrative law judge proceeded with the hearing as scheduled, the judge “accepted Lieberman

[Center]’s demands” and “ignor[ed] Julia’s plea[s].” Tellingly, these same non-neutral word

choices reoccur on pages 21 and 22, in the Estate’s argument. Additionally, the facts section goes

beyond what the record supports and at times treats the Estate’s contentions as if they were fact.

As examples, the Estate states without any basis that the agency is tasked with “four primary areas

of inquiry” (which is one of the Estate’s arguments for reversal) and that it verified the Kurtzes

“medical expenditures” to other healthcare providers (another argument for reversal). Moreover,

the facts section recaps the entire hearing at issue in only five sentences and provides no account

whatsoever of the evidence. Other instances of argumentative, incomplete, or unsupported

statements are scattered throughout the Estate’s statement of “facts.” The Estate does not refute

Lieberman Center’s criticism of the brief. When a brief does not comply with the rules, we have

inherent authority to strike the noncompliant material or even dismiss the appeal. Hubert v.

Consolidated Medical Laboratories, 306 Ill. App. 3d 1118, 1120 (1999). The argumentative and

incomplete brief is noncompliant, but not so misleading that it hinders our analysis of the issues,

particularly when we have benefit of Lieberman Center’s thorough and more diplomatic

presentation. In our discretion, we are disregarding the Estate’s improper statements rather than

striking them or dismissing the Estate’s appeal. Haubner v. Abercrombie & Kent International,

Inc., 351 Ill. App. 3d 112, 117 (2004).

¶4 Lieberman Center points out, and the Estate does not disagree, that a separate departure

-3- 1-21-0236 from the rules occurs on pages 1 through 4 of the Estate’s opening brief, in a section entitled,

“Preliminary Statement and Nature of the Case.” This entire section is counter to Rule 341(h)(2),

which requires an “introductory paragraph” about the “nature of the action” and “the judgment

appealed from”–not the multiple paragraphs that span four pages of the Estate’s brief. Ill. S. Ct. R.

341(h)(2) (eff. Oct. 1, 2020). The rule offers the following illustration of a suitable introductory

paragraph: “This action was brought to recover damages occasioned by the alleged negligence of

the defendant in driving his automobile. The jury rendered a verdict for the plaintiff upon which

the court entered the judgment from which this appeal is taken. No questions are raised on the

pleadings.” Ill. S. Ct. R. 341(h)(2) (eff. Oct. 1, 2020). We agree that the Estate has violated the

rule, particularly when there is a sharp contrast between its introductory “paragraph” and the model

paragraph. We cannot cull an introductory paragraph from the Estate’s lengthy presentation.

Accordingly, we are disregarding the first four numbered pages of the opening brief. Haubner, 351

Ill. App. 3d at 117.

¶5 Lieberman Center also argues we should dismiss the appeal as moot, because Frank’s death

means that vacating the agency’s decision cannot give Frank a right to return to the long-term care

facility or provide any other effective relief. An appeal will be dismissed as moot when it does not

involve an actual controversy or the court cannot grant the petitioning party effectual relief.

Lakewood Nursing & Rehabilitation Center v. Department of Public Health, 2015 IL App (3d)

140899, ¶ 17. Courts of review generally do not consider moot or abstract questions for lack of

jurisdiction. Lakewood Nursing, 2015 IL App (3d) 140899, ¶ 17. The Estate counters that

Lieberman Center is procedurally barred from arguing mootness, because it did not timely raise

the argument in the circuit court or file a cross-appeal setting out issues other than the ones that

-4- 1-21-0236 the Estate chose to present in its appeal. We find this unpersuasive, because the record on appeal

discloses that Lieberman Center did ask the circuit court to consider whether the case was moot;

and even if mootness was being raised for the first time on appeal, mootness is grounds for

dismissing an appeal for lack of jurisdiction. See Lakewood Nursing, 2015 IL App (3d) 140899,

¶ 17. The Estate also argues, however, that the collateral consequences exception to mootness is

applicable. There are three exceptions to the mootness doctrine: (1) the public interest exception;

(2) the capable of repetition yet evading review exception; and (3) the collateral consequences

exception. In re Deborah S., 2015 IL App (1st) 123596, ¶ 18. The latter exception to mootness

applies if a party could suffer some future adverse repercussion if the order on appeal were not

reviewed. In re Deborah S., 2015 IL App (1st) 123596, ¶ 18. The collateral consequences

exception is decided on a case-by-case basis. In re Deborah S., 2015 IL App (1st) 123596, ¶ 20.

¶6 In In re Deborah S., 2015 IL App (1st) 123596, the collateral consequences exception was

applied where the circuit court determined an individual was subject to involuntary commitment

to a mental health facility for up to 90 days. The respondent appealed, conceding that her appeal

was moot because the 90-day order had expired, but maintaining that the order was subject to an

exception. In re Deborah S., 2015 IL App (1st) 123596, ¶ 19. The appellate court agreed, observing

that the Illinois Vehicle Code allows the Secretary of State to deny the renewal or retention of a

person’s driver’s license if there is good cause to believe that the person would not be able to

operate a vehicle safely due to a mental disability. In re Deborah S., 2015 IL App (1st) 123596,

¶ 24 (citing 625 ILCS 5/6-103(5), (8) (West 2012)). However, the vehicle code mandates those

consequences where a person has been adjudged to be afflicted with or suffering from a mental

disability. In re Deborah S., 2015 IL App (1st) 123596, ¶ 24 (citing 625 ILCS 5/6-103(5), (8)

-5- 1-21-0236 (West 2012)). In the respondent’s case, “her ability to seek employment similar to that she has

held in the past [which required a driver’s license] would be negatively impacted by the

involuntary admission order in a way that differs from the impact caused solely by her mental

diagnosis. In re Deborah S., 2015 IL App (1st) 123596, ¶ 24. Accordingly, the collateral

consequences exception was applicable and the court proceeded to address the substantive

arguments of the appeal. In re Deborah S., 2015 IL App (1st) 123596, ¶ 24.

¶7 Lieberman Center has sued Frank and Julia for nonpayment for Frank’s stay at Lieberman

Center. Lieberman Center’s multicount lawsuit was filed in the circuit court of Cook County’s law

division (Council for Jewish Elderly v. Estate of Frank Kurtz, No. 16-L-008894 (Cir. Ct. Cook

County)) and it progressed to a final judgment, which is now on appeal. The law division matter

and this administrative agency matter involve some of the same parties, and the Estate argues that

they are litigating some of the same issues, particularly when the allegations in the law division

matter include Frank’s status as a Medicaid-approved individual, his spenddown requirement, and

the entry of the administrative decision authorizing Frank’s involuntary transfer or discharge due

to nonpayment. Thus, the unreviewed administrative decision could be used to Lieberman Center’s

advantage in its separate law division claim and the Estate and Julia would suffer future adverse

repercussions if the order on appeal were not reviewed. Accordingly, the collateral consequences

exception does apply and we will address the appeal.

¶8 Frank, who was born in 1949, moved into Lieberman Center in Skokie, Illinois on

September 13, 2013. He executed a contract with the facility which stated the terms of his

residency, including a daily private payor rate. On September 22, 2014, the long-term care facility

completed a form that was promulgated by DPH as of February 2013 for use when giving “Notice

-6- 1-21-0236 of Involuntary Transfer or Discharge and Opportunity for Hearing for Nursing Home Residents.”

The preprinted portion of the notice form stated, “This facility seeks to transfer or discharge you

pursuant to the regulations of the Health Care Financing Administration 1 for states and long-term

care facilities, 42 C.F.R. 483.12 (‘federal regulations’).” The form continued, “As recorded in your

clinical record in accordance with Section 483.12(a)(4) of the federal regulations, the reason for

this proposed transfer or discharge is,” and was followed by various possible reasons for a

resident’s involuntary transfer or discharge. The facility checked the box next to the reason, “you

have failed, after reasonable and appropriate notice, to pay for your stay at this facility,

483.12(a)(2)(v).” Lieberman Center also filled in the portion of the form indicating where it

intended to move Frank, which was to a facility in Glenview, Illinois on October 24, 2014.

¶9 Frank gave his wife, Julia, power of attorney. Within 10 days of the notice, she retained

legal counsel and contested the notice by requesting a hearing before DPH. On December 30,

2014, Julia submitted Frank’s application to DHS for medical assistance through the Medicaid

program. The DPH proceedings regarding the notice were periodically continued for more than a

year. On December 16, 2015, DHS denied Frank’s Medicaid application, stating that his eligibility

could not be determined due to his failure to provide necessary information. He sought

reconsideration after providing additional documents. Another year passed. In September 2016,

Frank’s attorney withdrew and Julia began representing her husband in the DPH proceedings.

During a prehearing conference that same month, the facility’s attorney said that Frank owed

1 The Health Care Financing Administration was a federal agency which has been renamed Centers for Medicare and Medicaid Services as it has “oversight of the Medicare program, the Federal portion of the Medicaid program, and related quality assurance activities.” Health Care Finance (sic) Administration, Federal Register, https://www.federalregister.gov/agencies/health-care-finance-administration (last visited June 12, 2023).

-7- 1-21-0236 Lieberman Center $228,893.

¶ 10 On February 24, 2017, DHS approved Frank’s Medicaid application, but with two

conditions, stating:

“This is the decision made about your application for Medical Assistance dated

12/30/2014.

APPROVED starting 09/2014.

You are eligible for medical assistance. Starting 09/2014, you will owe the facility

where you live $266,360.60 each month unless changes occur or you use other medical

bills or receipts to reduce this amount (see attached calculations).

You are eligible for medical assistance but because of a non-allowable transfer of

resources, the state will not pay for long term care services *** for 11 months and 27 days.

This is called a penalty period[.]”

¶ 11 The approval decision was accompanied by a “HFS Form 2500,” “Nursing

Home/Supportive Living Facility Calculation,” dated February 24, 2017, which indicated in part

that Frank’s “Monthly Nursing Home Charges” were $10,350 and “Starting 09/2014, you have

$266,360.60 available to apply toward the cost of your care at the facility where you are living.

Healthcare and Family Services will pay any remaining cost up to its payment rate.” The attached

calculations showed that the $266,360.60 that Frank “owe[d] the [residential] facility” included,

among other things, his “Cash and bank accounts” totaling almost $259,000. The record on appeal

attributes the benefit penalty period to disallowed transfers of assets that were made prior to

applying for Medicaid.

¶ 12 Throughout the remainder of 2017, the administrative law judge continued to hold

-8- 1-21-0236 prehearing conferences with the parties. Julia reported receiving the Medicaid approval and said

that an appeal was underway. She also reported that Lieberman Center had filed a civil suit

regarding the nonpayment. We note that three years had passed since the facility notified Frank of

its intent to transfer or discharge him for nonpayment. The facility’s attorney reported that Frank’s

unpaid balance was increasing.

¶ 13 At the end of 2017, DHS generated three additional Form 2500s which have caused

disagreement between the parties. Although each was dated December 1, 2017, the Form 2500s

pertained to “1/2017,” “2/2017,” and “3/2017,” respectively. Each of the three forms consisted of

four pages and was numbered accordingly, that is, the first page of each was marked “Page 1 of

4,” and so on until the last page of each was numbered “Page 4 of 4.” Each form stated in part,

“This notice informs you of the amount of your monthly resources or income available to apply

toward your medical care costs.” For January 2017, DHS calculated that Frank would make a

resource spenddown of $266,360.60 (the same amount stated in the Medicaid approval letter issued

nearly a year prior), and then in the ensuing months of February and March 2017, there would be

a zero spenddown of resources.

¶ 14 At a prehearing conference on January 2, 2018, Julia reported receiving the Form 2500s

from DHS, but she described them as one seven-page notice dated December 1, 2017, which

indicated that the “spend down amount due is now zero” and so “[Frank] has no liability.” She

indicated she would send the new notice to the administrative law judge and the facility’s attorney.

She also stated that Medicaid had been awarded as of September 2014, the Kurtz family had paid

for Frank’s care in September and October 2014, and Medicaid had paid the facility for the months

of November 2014 through December 2017. She also said that there would be “a final hearing at

-9- 1-21-0236 the end of January/beginning of February on this issue.” Accordingly, the administrative law judge

set the matter for status at the end of February 2018.

¶ 15 Before that next status date, Julia sent the administrative law judge and the facility’s

attorney the Form 2500 for March 2017. Lieberman Center’s attorney e-mailed in response and

included the administrative law judge on the distribution list:

“Thanks, Julia.

Unfortunately, this document doesn’t tell us anything we didn’t already know and does

not change the outstanding balance owed to the facility. This calculation presumes that

Frank was spending down the $266,360.60 by paying the monthly charges billed by the

facility. This can be seen by tracing back the previous months’ calculations. I’ve attached

the [three] HFS [Form] 2500s from January through March of 2017, as well as the initial

HFS [Form] 2500 for September 2014 to illustrate. Simply put, Frank was not paying his

bills throughout that time, pursuant to the spenddown requirement and that’s why we’re

[still] pursuing this involuntary discharge. Furthermore, I expect Frank would continue to

owe his monthly income, less any applicable deductions, to the facility after the spenddown

was met.”

¶ 16 Julia answered with a lengthy e-mail explaining why she believed “the involuntary

discharge petition no longer applies.” Essentially, she related that a DHS representative stated

“during an impromptu hearing held by telephone” that Frank’s spenddown requirement had been

met and was no longer “ ‘on the table,’ ” and that Julia had submitted “more than $320,000 in

medical bills and payments” for various other medical expenses (i.e., not long-term care expenses)

Frank incurred between 2009 and December 2017 that satisfied the spenddown amount.

- 10 - 1-21-0236 ¶ 17 Lieberman Center’s attorney e-mailed in response that he was not “taking a position one

way or the other” on whether Frank had incurred other healthcare expenses that could be credited

toward the spenddown requirement, but that this was established by the Form 2500 Julia had

tendered. Also, until the spenddown was met, Medicaid would not pay Lieberman Center for any

of Frank’s skilled nursing care, which meant that the facility’s charges between November 2014

through March 2017 remained outstanding. The facility’s attorney also reiterated from his earlier

e-mail that after the spenddown was met, the facility was required to invoice Frank’s monthly

“personal income” or “total personal liability,” which DHS had calculated to be $2077.96, and that

Frank would need to pay that amount before Medicaid would pay his remaining monthly costs.

¶ 18 The parties continued to exchange e-mails, but they repeated their positions and were

unable to reach a resolution.

¶ 19 At the next prehearing conference on February 23, 2018, Julia represented that in January

2018, she received a bill from Lieberman Center reflecting a zero balance due and that she was

currently waiting for DHS to determine how much of Frank’s monthly Social Security benefits

were to be contributed towards his ongoing stay at the facility. The facility’s attorney said he had

not been informed of this recent development. Julia then offered to e-mail the zero-balance bill to

the administrative law judge and the facility’s attorney. The administrative law judge set the next

prehearing conference date for March 23, 2018, but the facility’s attorney subsequently asked that

the parties reconvene as soon as possible because he had learned from his client that instead of a

zero balance, Lieberman Center’s invoice for Frank’s care reflected no third-party payments and

a continuing “significant outstanding balance.” The attorney e-mailed the administrative law judge

and Julia:

- 11 - 1-21-0236 “While I agree that the invoice is misleading in this regard and I would prefer the

facility did not structure the invoice that way, it does not change the fact that there is still

a significant outstanding balance owed to the facility. I am working with [my client] to

update the invoice to reflect all private pay charges that are required per Medicaid rules

and the calculations specific to this case.”

¶ 20 The administrative law judge gave the parties a choice between rescheduling to March 9

or 13, 2018, and wrote to Julia:

“As always, during the hearing, [Lieberman Center] will have the burden of proving

that the ITD should be granted as a result of the nonpayment of the past incurred private

pay amounts and/or failure to pay the personal portion that has been due and owing since

March 2017. You, or your legal representative, if you choose to retain legal advice, will be

charged [at the hearing] with showing that sufficient payments have been made to pay for

the service[s] that have been rendered by the nursing facility. The only reason this did not

occur this morning was based on your representation that you had an invoice from the

facility showing a zero balance and Attorney Kelly’s representation that he had not been

provided with the same information. Attorney Kelly’s post status conference e-mail has

placed us back to the point I believed we were at prior to this morning[’s] status

conference.”

¶ 21 The administrative law judge concluded her e-mail by emphasizing that the dispute could

not remain at a stalemate:

“[A]n impasse has occurred and there is a need to move forward. Attorney Kelly has

already indicated that he is available at 9:00 a.m. on Friday, 3/9 or Tues., 3/13 for a status

- 12 - 1-21-0236 hearing. I will extend the courtesy of allowing you to pick one of the two dates by Monday,

2/26 for the next status hearing. If I do not hear from you; I will pick a date and will notify

you of the same. Once the next status hearing is established, I will cancel the 3/23/18 date.”

¶ 22 Julia replied that she had met the spenddown, only the penalty was at issue, and that she

was awaiting another date in Frank’s Medicaid penalty appeal.

¶ 23 The facility’s attorney disagreed with her:

“[F]rom the information you and the facility have provided me, Medicaid will not pay

for any dates of service until proof of payment of the private pay amounts is provided to

DHS, establishing that the spenddown was met. We have received no indication from DHS

that this was done and are required to bill the private pay amount until directed otherwise.

As with before, I do not rule out the possibility that adjustments to the spenddown amount

may be made, but given the information provided, Medicaid payments will not be coming

to the facility unless and until something changes and we need to proceed on that basis.”

¶ 24 After more e-mails, the administrative law judge set the next status (not a hearing) for

March 13, 2018, which was the later of the two dates she had offered. At the status date, Julia

reiterated that Frank’s spenddown had been met, the only issue remaining in the Medicaid appeal

were the penalties, a DHS hearing occurred on February 28, 2018, and no further dates were

pending. The facility’s attorney said that he was seeking verification from DHS that the spenddown

had been met by the payment of other healthcare expenses. The administrative law judge recorded

in her conference report and order, “The problem everyone is having, including DPH, is the fact

that there has been no documentation received by DPH or [the facility’s attorney] to substantiate

what Mrs. Kurtz has said.” Julia said she would try to get support from her DHS caseworker, and

- 13 - 1-21-0236 the facility’s attorney said that he would contact the analyst in the Office of the Inspector General

within DHS that was involved with Julia’s appeal. The administrative law judge continued the

matter to March 29, 2018.

¶ 25 More e-mails ensued on March 14 and 15, 2018. The administrative law judge posed a

question to the facility’s attorney: “I would like to clarify something. We all agreed that the

spenddown was met in March of 2017. I believe you said the facility has not been paid yet from

Medicaid. Is this correct or did Medicaid start paying the facility after March 2017 when the

spenddown was met?” The facility’s attorney responded in part:

“It is my understanding that Medicaid will not begin payment to the facility until the

facility shows that it received payment pursuant to the spenddown that was calculated. I’d

like to clarify that we do not agree that the spenddown was actually met, but rather it was

calculated by DHS that it should have been met in March 2017, had full payment been

tendered to Lieberman Center up to that date. As of my most recent conversation with my

client, I was informed that no Medicaid payment has been received because [payment from

Frank was a prerequisite].”

¶ 26 On March 16, 2018, the administrative law judge amended the conference report and order

she entered on March 13, 2018. Stating with regard to the Form 2500 that Julia was relying upon,

“On or around January 23, 2018, [DPH] was provided a HFS 2500 form *** which indicated that

the resident’s spenddown had been met on/around March 2017 and the (sic) Healthcare and Family

Services would pay the remaining cost of the resident’s care at the facility up to its payment rate.”

Based on that information, the ALJ changed the March 29, 2018 status date to a formal prehearing

date at which “a discovery schedule will be set and an evidentiary hearing date will be assigned.”

- 14 - 1-21-0236 ¶ 27 The administrative law judge’s conference report and order for March 29, 2018 indicated

that the facility’s attorney reported that Frank owed $427,371 from November 2014 through April

2018, the facility had asked DHS to verify the spenddown payment that was reflected in the

December 1, 2017 Form 2500, and without that verification, the facility would not be paid by

Medicaid. The attorney also said that no appeal was pending and that the facility was ready to

proceed to hearing. Julia said she agreed that the spenddown had been met, but that she was still

appealing the penalty issue, and about $27,000 in transferred funds were in dispute there. She said

the facility’s past due figure was incorrect, as only $215,000 remained after resources had been

shifted or waived. The administrative law judge set the matter for an evidentiary hearing on May

3, 2018, to determine “whether the involuntary transfer or discharge is authorized for the reasons

specified *** in the Notice of Involuntary Transfer or Discharge.” Using bold typeface, the

administrative law judge emphasized, “Each party shall provide all other parties with a copy

of any document that it may offer into evidence as well as a list containing the name and

address of any witness who may be called to testify by the close of business April 12, 2018.”

¶ 28 Julia did not disclose any documents or witnesses or ask the administrative law judge to

issue any subpoenas prior to the discovery cut off on April 12, 2018. On that date, the facility’s

attorney disclosed that its two witnesses would be Dr. Michael Gottesman, the facility’s executive

director, and Veronica Melecio, one of the facility’s billing support specialists. The attorney also

disclosed Frank’s contract with the facility; the Medicaid approval letter and Form 2500 dated

February 24, 2017; the three Form 2500s dated December 1, 2017 with regard to “01/2017,”

“02/2017” and “03/2017”; and the facility’s bill dated March 28, 2018, itemizing the unpaid

charges for Frank’s care since November 1, 2014 and totaling $427,371.

- 15 - 1-21-0236 ¶ 29 On April 30, 2018, three days before the scheduled hearing, Julia filed a motion to continue.

In a cover e-mail, she anticipated that the motion would be denied and asked that the attached

exhibits be available to her at the hearing, that her witnesses include the facility’s attorney and the

two individuals disclosed by the facility, that her husband be excused from attending for health

reasons, and that her friend be allowed to attend. The attached exhibits included various facility

bills, notices from the facility’s civil suit, and documents from the Medicaid proceedings. In the

motion itself, which was 13 pages of double-spaced text, Julia sought a continuance on grounds

that her appeal of the Medicaid penalties was still pending. She argued that until the penalty issue

was resolved, Lieberman Center could not generate an accurate bill for her husband’s stay at the

long-term care facility, and thus the facility itself was unprepared for the hearing it had been

seeking.

¶ 30 That same day, the facility’s attorney sent an e-mail objecting to a continuance and Julia

responded in support. The next day, May 1, 2018, the administrative law judge denied the

continuance on grounds that, by departmental regulations, it was untimely, and because Julia did

not disclose, as required by departmental regulations, when she learned that a continuance was

needed and what steps she had taken to avoid one. The administrative law judge also sent an e-

mail detailing the parameters of the hearing, including that because Julia had not met the discovery

deadline, the hearing witnesses and documents would be limited to the ones disclosed by the

facility, but Julia would have the opportunity for cross-examination; Julia would not be able to call

the facility’s attorney as a witness; Frank’s presence was excused; and Julia’s friend would be

allowed to attend.

¶ 31 On May 3, 2018, the hearing proceeded as scheduled. The parties stipulated to the

- 16 - 1-21-0236 admission of the facility’s exhibits. They also stipulated that Frank was approved for Medicaid,

but they did not stipulate about the spenddown or penalty. Julia stipulated that the Kurtzes made

no payments to the facility since November 2014. The administrative law judge stated that the

Illinois evidentiary and procedural rules were controlling, but that she would give Julia some

leeway because she was not an attorney. The judge granted Julia’s request that her motion for a

continuance be made part of the record.

¶ 32 The first witness was the facility’s executive director, Dr. Michael Gottesman, who

testified about the facility’s payment requirements and its contract with residents, including that

Frank had not met his contractual payment obligations. Dr. Gottesman also testified that residents

approved for Medicaid still have payment obligations because they are required to contribute their

personal income and in some instances they are subject to a spenddown requirement or penalty.

Dr. Gottesman also testified that Frank had not cured his outstanding balance after receiving the

facility’s notice of intent to transfer or discharge due to nonpayment. Julia cross-examined Dr.

Gottesman about some of the contract terms, the dates on the contract, and whether the facility

issued bills each month.

¶ 33 When Julia indicated she had her own questions, the administrative law judge reminded

Julia that because of her noncompliance with the witness disclosure deadline, her questions should

be limited to the scope of direct examination.

¶ 34 Veronica Melecio, who handled Medicaid billing for Lieberman Center, testified that

Medicaid coverage approval did not necessarily mean that Medicaid benefits would be disbursed

as of the person’s eligibility date. She described the spenddown and penalty period concepts.

Melecio stated that a spenddown requirement could be satisfied not only by paying the long-term

- 17 - 1-21-0236 care facility, but also by paying other medical expenses, such as hospital bills. However, if those

other payments were made, the facility and the resident would receive notice from DHS or HFS

that other medical expenses had been credited toward the spenddown.

¶ 35 In Frank’s particular case, he applied for Medicaid about a year after he was admitted as a

resident, and he was approved for Medicaid effective September 2014, but with a spenddown

requirement of $266,360.60 and a penalty period of 11 months and 27 days. Accordingly, the

facility continued to bill Frank monthly as a “private pay” client, for his room and board. Frank,

however, did not make any payments to the facility to meet the spenddown amount.

¶ 36 Melecio was next questioned about the three Form 2500s dated December 1, 2017. She

testified that the forms contained calculations, including the facility’s private pay rates and what

the resident was supposed to pay to the facility, and that the resident’s payments would result in a

resource reduction amount that in turn reduced the spenddown amount. When HFS issued the

Form 2500s, the agency had not verified that Frank was actually turning over any of his income to

the facility or had met the spenddown requirement. The forms contained calculations only and they

were not intended as verifications. Instead, when the facility received payment from a resident, the

facility would document that fact to Medicaid, and then Medicaid would determine when to begin

sending funds to the facility. Without that documentation, Medicaid would not pay Lieberman

Center. Alternatively, if a resident satisfied their spenddown amount by paying other allowed

expenses, that would show up on documentation that the facility received from Medicaid. In

Frank’s case, however, Lieberman Center’s billing office had not received documentation that he

had met the spenddown by paying those alternative types of expenses.

¶ 37 Melecio also testified that meeting the spenddown would not have eliminated Frank’s

- 18 - 1-21-0236 monthly payment obligation to the facility. Even if Frank “met his spenddown and the proof of the

payment had been processed and approved and Medicaid was actually effective beginning March

of 2017,” Frank’s monthly payment obligation to the facility would not reduce to zero. The Form

2500s indicated that he was supposed to pay the facility approximately $2000 per month after

meeting the spenddown. Frank, however, had not made those ongoing payments to the facility.

¶ 38 Melecio also confirmed that the facility received no payments from Medicaid. The

facility’s bill dated March 28, 2018 reflected private pay charges dating back to November 2014,

resulting in an outstanding balance of $427,371.

¶ 39 Julia cross-examined Melecio. Some of her questions, however, were general, hypothetical

questions about billing practices, amending bills, payments from Medicaid, and the Form 2500s,

rather than questions about Frank’s particular case. Other questions were cumulative of the direct

examination, asked and answered, or went beyond the scope of direct examination and the

administrative law judge sustained objections from the facility’s attorney. At various points,

Melecio stated that she did not understand Julia’s questions.

¶ 40 Julia said that one of the facility’s bills that she wanted entered into evidence was dated

after the disclosure deadline. The administrative law judge considered admitting the bill, as well

as allowing the facility to admit its most recent bill which likewise was dated after the discovery

deadline. After further discussion, the administrative law judge decided to adhere to the discovery

schedule and not allow either party to submit their additional documents. This concluded the

hearing.

¶ 41 On May 8, 2018, the administrative law judge issued her report and recommendation. She

determined that the Kurtzes had not made any payments to the facility since November 2014 and

- 19 - 1-21-0236 that Frank, who was still residing at Lieberman Center, had an outstanding balance through March

28, 2018 of $427,371. In addition, a letter from DHS and HFS indicated that Frank was approved

for Medicaid as of September 2014, but he had not paid his portion of the $266,360 spenddown

required by the agencies. Consequently, no Medicaid payments are being made to the facility and

Frank had an outstanding balance. The Nursing Home Care Act, 210 ILCS 45/3-401(d) (West

2014), provides that a facility may involuntarily transfer or discharge a resident who has failed,

after reasonable and appropriate notice, to pay (or to have paid under Medicare or Medicaid) for a

stay at the facility. Under these circumstances, this facility was entitled to involuntarily transfer or

discharge Frank for nonpayment. Based on these findings of fact and conclusions of law, the

administrative law judge recommended that the Lieberman Center’s notice of involuntary transfer

or discharge be affirmed.

¶ 42 The administrative law judge’s report and recommendation were forwarded to the

department’s director. Upon reviewing the record, on June 10, 2018, the director adopted the report

and recommendation, determining that the facility would be allowed to involuntarily transfer or

discharge Frank.

¶ 43 The facility, however, did not act on the director’s order. On June 23, 2018, Frank was

hospitalized in poor health and did not seek to return to the facility before his death on September

4, 2018.

¶ 44 On June 25, 2018 (during Frank’s hospitalization), the Kurtzes sought administrative

review in the circuit court, and filed an emergency motion to stay the director’s decision. One of

the exhibits to the emergency motion was a determination from DHS dated March 30, 2018, which

reduced the amount that had been used to calculate the penalty period of 11 months and 27 days.

- 20 - 1-21-0236 In July 2018, the facility opposed the motion to stay, arguing that good cause for a stay was lacking

when Frank was not residing at the facility due to his hospitalization and because the director’s

decision was proper. The circuit court denied the stay.

¶ 45 In August and September 2018, DPH filed the administrative record in the circuit court,

including an audio recording of the administrative hearing.

¶ 46 In October 2018, DPH moved to dismiss the appeal as moot due to Frank’s death in

September 2018 which precluded the court from granting effective relief. Julia opposed dismissal,

arguing that the facility could use the contents of the administrative decision to the Kurtzes’

disadvantage in the facility’s separate civil action for nonpayment. Julia indicated she was seeking

the probate court’s formal appointment as the independent administrator of her husband’s estate.

The circuit court continued the motion to dismiss and directed Julia to amend the complaint. In

April 2019, Julia filed an amended complaint indicating the plaintiffs were the estate, by its

independent administrator, but also Julia, individually. That same month, April 2019, an attorney

filed a “limited scope appearance,” indicating that he would assist and advise Julia only in certain

aspects. Following the conclusion of the circuit court case, that attorney withdrew and is not

involved in this appeal.

¶ 47 In May 2019, DPH renewed its motion to dismiss for mootness and also observed that

Julia, as an individual, lacked standing to oppose the director’s decision approving Frank’s

involuntary discharge. In September 2019, after considering the parties’ arguments, the circuit

court determined that Julia lacked standing and dismissed her from the proceedings, but the court

rejected the other arguments for dismissal. The circuit court was persuaded by Julia’s argument

that the collateral consequence exception to mootness should apply, as the facility might use the

- 21 - 1-21-0236 director’s decision “as a way to bolster its claims” in the separate civil action.

¶ 48 Accordingly, the parties next addressed the merits of the administrative decision, as well

the Estate’s additional arguments. The circuit court was unpersuaded by the Estate’s arguments

and in February 2021 affirmed the director’s decision. The Estate initiated this appeal in March

2021 and the parties have spent nearly two years preparing their appellate briefs.

¶ 49 We are reviewing the decision of the department rather than the decision of the circuit

court. Khan v. Department of Healthcare & Family Services, 2016 IL App (1st) 143908, ¶ 8. Under

the Administrative Review Law, the scope of judicial review includes all questions of law and fact

presented by the record before the court. 735 ILCS 5/3-110 (West 2000). AFM Messenger Service,

Inc. v. Department of Employment Security, 198 Ill. 2d 380, 390 (2001). The review standard,

which determines the degree of deference given to the agency’s decision, depends on whether an

issue presented for our consideration is a question of fact, a question of law, or a mixed question

of fact and law. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200,

210 (2008). The Estate presents three main issues.

¶ 50 The Estate’s first appellate contention is that the DPH administrative law judge lacked

authority to “overrule and disregard” a DHS determination that Frank satisfied his spenddown

requirement by December 1, 2017. Despite the Estate’s wording, it is arguing that the hearing

evidence did not support the outcome. The issue of whether the evidence presented in the

administrative hearing warranted the outcome is a mixed question of law and fact because it

involves the application of the relevant statutory provisions to particular facts. Gayan v. Illinois

Department of Human Services, 342 Ill. App. 3d 1035, 1039 (2003) (mixed question was presented

when addressing agencies’ determination that a resident of a long-term care facility was required

- 22 - 1-21-0236 to spend down assets of a certain trust before receiving Medicaid coverage); Senno v. Department

of Healthcare & Family Services, 2015 IL App (1st) 132837, ¶ 34 (quoting Parikh v. Division of

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

(1st) 123319, ¶ 19 (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”)).

¶ 51 We address mixed questions under the clearly erroneous standard. Gayan, 342 Ill. App. 3d

at 1039 (courts review the department’s application of Medicaid law to the facts for clear error);

Khan, 2016 IL App (1st) 143908, ¶ 8. This standard of review is “between the manifest weight of

the evidence standard and a de novo standard, so as to provide ‘some deference’ to the agency’s

decision.” AFM Messenger, 198 Ill. 2d at 392 (quoting City of Belvidere v. Illinois State Labor

Relations Board, 181 Ill. 2d 191, 205 (1998)). The clear error standard gives the agency deference,

in acknowledgment of the agency’s experience and expertise in resolving matters under its

jurisdiction. AFM Messenger Service, 198 Ill. 2d at 394; Abrahamson v. Illinois Department of

Professional Regulation, 153 Ill. 2d 76, 97-98 (1992) (explaining that a significant reason for

giving substantial weight and deference to an agency’s interpretation of an ambiguous statute is

that “agencies can make informed judgments upon the issues, based on their experience and

expertise”). Under the clear error standard, we will reverse only when we come to the definite and

firm conviction that a mistake was made. Cinkus, 228 Ill. 2d at 211; Hanks v. Department of

Healthcare & Family Services, 2015 IL App (1st) 132847, ¶ 19.

¶ 52 The Estate’s contention that DHS reached a “final decision” (which DPH had no authority

to “overrule”) that Frank met his spenddown obligation is based to some extent on the three Form

- 23 - 1-21-0236 2500s dated December 1, 2017 indicating that Frank would pay $266,360.60 from his resources

by March 2017. These documents do not support the Estate’s appeal. Billing specialist Melecio

testified in numerous ways to the contrary. Melecio stated that the forms contained calculations of

when the spenddown would be met and were not verification that any payments were actually

made in satisfaction of the spenddown requirement. For example, during the facility’s direct

examination of Melecio, the following exchange occurred:

“Q. All right. Does H.F.S. verify that the income that’s calculated in Section K

[‘Resource Reduction’] is actually being turned over to the facility when it issues these

2500 forms?

A. Can you ask that again?

Q. Yes. When H.F.S. first issues this, this form, *** has it actually verified that any of

that income has been turned over to the facility?

A. No.

Q. Okay. And does, when H.F.S. issues this form, does it verify, has it already verified

that any of the private pay charges that are calculated into this reduction has been paid to

the facility?

***

A. [No, it’s] not saying, stating that he has actually reached the spenddown. There is

no verification for that.

Q. Okay. So[,] there’s no verification that any of these reductions have actually been

received by the facility?

A. Yes.

- 24 - 1-21-0236 Q. Okay. So[,] if that’s the case, then how does Medicaid determine when to be, when

to begin releasing payments to the facility? How do they know?

A. Medicaid would know once I give them documentation stating that we received

payment and that the resident actually met the spenddown.

Q. Okay. So[,] what if the resident hasn’t done that?

A. Then we will not receive payment from Medicaid.”

¶ 53 Later, she was asked whether Lieberman Center had received any documents that

suggested Frank met his spenddown requirement by “us[ing] his funds on other allowable

expenses,” outside of Lieberman Center, Melecio answered, “No.” During cross-examination

Melecio testified that Line B(4) on the Form 2500s, which is entitled “Allowable Medical

Expenses (incurred up to 6 months prior),” would have been the place to enter medical expenses

from other sources. On the three forms in the record on appeal, Line B(4) was left blank and no

reductions for medical expenses are indicated anywhere on the forms. Melecio was also asked

during cross-examination, “And so is it your understanding when you see that form [for March

2017] that the spenddown has been met when you see this form?,” Melecio responded, “No.”

Another question posed to Melecio was, “If *** you had received confirmation that the spenddown

had been met *** if you had received that verification, would you have started billing him back

for March, from March 2017?,” to which Melecio responded, “I did not receive the verification.”

¶ 54 The Estate argues that Melecio’s testimony is contradicted by documents which the Estate

has attached to its appellate reply brief. This is Julia or the Estate’s latest inappropriate attempt to

avoid the discovery deadline set by the administrative law judge five years ago when she ordered

on March 29, 2018: “Each party shall provide all other parties with a copy of any document

- 25 - 1-21-0236 that it may offer into evidence *** by the close of business April 12, 2018.” (Emphasis in

original.) Julia missed the disclosure deadline entirely, sought to avoid the consequences by

seeking a continuance three days before the hearing and attaching her discovery documents to her

motion, failed to disclose why she had not timely sought a continuance, and argued at the hearing

that certain documents, nevertheless, should be admitted. Furthermore, the first document the

Estate now relies upon bears the date “06/08/20,” and, thus, seems to have been generated well

after the administrative proceedings that we have been asked to review for error; the second

document is an excerpt from a deposition that was taken on October 26, 2020 in a separate

administrative proceeding (not the administrative proceeding on appeal); and the third document

is an affidavit dated August 18, 2022. These documents are not properly before this court. Cannici

v. Village of Melrose Park, 2019 IL App (1st) 181422, ¶ 36 (courts cannot consider

evidence outside of the record of the administrative appeal); 735 ILCS 5/3-110 (West 2016) (in an

administrative review case, “No new or additional evidence in support of or in opposition to any

finding, order, determination or decision of the administrative agency shall be heard by the court”).

Even so, the Estate argues, “These facts should have been disclosed to the [administrative hearing

judge] in the hearing, but they were not,” and that they would have precluded the administrative

law judge from ruling in favor of Lieberman Center. These new documents do not undermine

Melecio’s testimony or support the Estate’s argument regarding the three Form 2500s dated

December 1, 2017.

¶ 55 In addition to the Form 2500s, the Estate cites a DHS administrative law judge’s ruling

dated March 30, 2018, about the propriety of a penalty period of ineligibility for financial

assistance for nearly one year, between September 1, 2014 and August 27, 2015, “because [Frank]

- 26 - 1-21-0236 transferred assets for less than fair market value (FMV) in the 5 years preceding the application

date.” The Estate contends that the DHS judge also “found that Frank Kurtz’s resource spenddown

had been met,” and yet the DPH judge subsequently usurped the authority of DHS to make

Medicaid determinations and “overruled and disregarded” the finding. We cannot consider the

DHS order and additional documents that the Estate cites because none of them was tendered at

the administrative hearing, and one of them even postdates the hearing. Cannici, 2019 IL App (1st)

181422, ¶ 36; 735 ILCS 5/3-110 (West 2016).

¶ 56 The Estate attacks the administrative law judge’s finding that Frank failed to pay the

spenddown and contends that the judge “substituted her own personal interpretation” of the Form

2500s for that of the Medicaid-providing agencies. But the administrative law judge’s report and

recommendation to the DPH director reflected what the hearing evidence showed: the forms

contained calculations of the spenddown that was anticipated over time; and did not reflect that

Frank satisfied Medicaid’s spenddown obligation by actually paying Lieberman Center’s charges

or reducing the amount that he owed directly to the facility by actually paying expenses incurred

with some other healthcare provider(s). According to the hearing record, the facility’s claim was

for November 2014 to April 2018, Julia stipulated to making no payments since November 2014,

and Melecio testified that Lieberman Center had received no payments since November 2014.

Melecio also testified that the Form 2500s were not verifications of spenddown payments to the

facility or another provider. Melecio testified that if her employer received spenddown payments,

she would have relayed this information to the agencies, and that if Frank made spenddown

payments to other providers, the agencies would have relayed this information to Lieberman

Center. We also note that Form 2500 is entitled “Nursing Home/Supportive Living Facility

- 27 - 1-21-0236 Calculation” (emphasis added), rather than “spenddown verification.” Nevertheless, throughout

the years of payment demands, Julia cited the Form 2500s as spenddown verification. On one

occasion, she cited to Lieberman Center its own supposed zero-balance invoice in January 2018

as evidence that the spenddown was met, but this was simply not borne out by the facility’s records

and Julia did not cite this invoice again in the subsequent pre-hearing conferences. In addition,

even if the spenddown had been satisfied, it is undisputed that Frank never began tendering the

monthly Social Security benefits that are itemized on the Form 2500s and, thus, disregarded the

agency’s calculations and did not pay the facility his share of his costs so as to trigger Medicaid

payments for the remaining balance.

¶ 57 Both federal law and the Illinois Nursing Home Care Act provide limited and similar

reasons that a facility may involuntarily discharge a resident, such as concerns for health or safety.

Nonpayment for services was a permissible reason for a facility to involuntarily transfer or

discharge a resident under the federal regulation that was cited in the form which Lieberman Center

used to notify Frank of its intent in the fall of 2014, 42 C.F.R. § 483.12(a)(2)(v), which was in

effect April 18, 2013 through November 27, 2016). It stated:

“(2) “Transfer and discharge requirements. The facility must permit each resident to

remain in the facility, and not transfer or discharge the resident from the facility unless

(v) The resident has failed, after reasonable and appropriate notice, to pay for (or to

have paid under Medicare or Medicaid) a stay at the facility.” 42 C.F.R. §483.12(a)(2)(v)

(2014).

¶ 58 Illinois law similarly provided:

- 28 - 1-21-0236 “A facility may involuntarily transfer or discharge a resident only for one or more of

the following reasons:

(a) for medical reasons;

(b) for the resident’s physical safety;

(c) for the physical safety of other residents, the facility staff or facility visitors; or

(d) for either late payment or nonpayment for the resident’s stay[.]” 210 ILCS 45/3-

401 (West 2000).

¶ 59 Thus, the director’s decision that Frank could be discharged for nonpayment was well-

supported by both the facts and the law. We are not left with a definite and firm conviction that a

mistake was made by the administrative agency.

¶ 60 Also lacking merit is the Estate’s second main contention, that the federal regulation we

quoted above and which Lieberman Center cited in its notice regarding nonpayment, 42 C.F.R.

§ 483.12(a)(2)(v) (2014), was updated as 42 C.F.R. § 483.15(c)(1)(i)(E) (2018) prior to the

administrative hearing and required the administrative law judge to make certain findings which

she failed to make. Language added to the prior statute is underlined below:

“(c) Transfer and discharge–

(1) Facility requirements–

(i) The facility must permit each resident to remain in the facility, and not transfer

or discharge the resident from the facility unless–

(E) The resident has failed, after reasonable and appropriate notice, to pay for

(or to have paid under Medicare or Medicaid) a stay at the facility. Non-payment applies

- 29 - 1-21-0236 if the resident does not submit the necessary paperwork for third party payment or after the

third party, including Medicare or Medicaid, denies the claim and the resident refuses to

pay for his or her stay.” 42 C.F.R. § 483.15(c)(1)(i)(E) (2018).

¶ 61 The administrative law judge’s recommendation referred to the recodified regulation but

did not expressly address which version of the regulation applied. Given the similarity in the two

regulations, we see no reason for the administrative law judge to specify. Nevertheless, the Estate

contends that the prior statute was “ambiguous” and “confusing,” so it was “materially changed”

to “a stricter set of rules and procedures” requiring the administrative law judge to make four

elements-based findings. Specifically, the Estate argues that the new regulation required the

administrative law judge to ensure that (1) Frank submitted “the necessary paperwork” for

Medicaid long-term care benefits, (2) Lieberman Center submitted a claim for payment from

Medicaid, (3) Medicaid denied Lieberman Center’s claim, and 4) Lieberman Center next billed

Frank for its “unpaid services” and Frank refused to pay the facility’s “final bill.” According to

the Estate, the administrative decision should be vacated because the judge “never articulated or

addressed the facts needed to meet the protections provided under the new regulation.”

¶ 62 Where there is “a dispute as to whether the governing legal provisions were interpreted

correctly by an administrative agency, the case presents a purely legal question for which our

review is de novo.” CBS Outdoor, Inc. v. Department of Transportation, 2012 IL App (1st)

111387, ¶ 26; Palm v. Holocker, 2018 IL 123152, ¶ 21 (the de novo standard applies in instances

of statutory construction). The primary rule of statutory construction is to ascertain and give effect

to the legislature’s intent. Palm, 2018 IL 123152, ¶ 21. The most reliable indicator of that intent is

found in the legislature’s language, giving those words their plain and ordinary meaning. Palm,

- 30 - 1-21-0236 2018 IL 123152, ¶ 21. Clear and unambiguous language is to be given effect without resort to

other aids of construction. Palm, 2018 IL 123152, ¶ 21. Statutes must be construed in a manner

which “avoid[s] absurd, unreasonable, or unjust results that the legislature could not have

intended.” Palm, 2018 IL 123152, ¶ 21.

¶ 63 We will assume for purposes of argument that a regulation adopted after Lieberman Center

issued its notice and Frank sought administrative hearing was applicable to the hearing. Nothing

in the regulation supports the contention that a material change occurred, or that the decision was

supposed to include any particular elements or specific findings, let alone the four-step process the

Estate has authored. The section’s continued focus on whether payment has occurred does not

suggest a markedly different approach.

¶ 64 Although the Estate cites a federal register entry, it is a 185-page PDF document which

shows that the revision to the statute at issue was only a small change in a comprehensive

regulatory update, most of which focused on and made greater amendments to other matters

involving long-term care facilities that participate in federal medical assistance programs. The

Federal Register entry begins with the following “SUMMARY”

“This final rule will revise the requirements that Long-Term Care facilities must meet

to participate in the Medicare and Medicaid programs. These changes are necessary to

reflect the substantial advances that have been made over the past several years in the

theory and practice of service delivery and safety. These revisions are also an integral part

of our efforts to achieve broad-based improvements both in the quality of health care

furnished through federal programs, and in patient safety, while at the same time reducing

procedural burdens on providers.” Emphasis added. Medicare and Medicaid Programs;

- 31 - 1-21-0236 Reform for Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68688,

https://www.federalregister.gov/documents/2016/10/04/2016-23503/medicare-and

medicaid-programs-reform-of-requirements-for-long-term-care-facilities (last visited June

12, 2023).

¶ 65 The entry also contains an “Executive Summary” which explains that the various

regulations “have not been comprehensively reviewed and updated since 1991 [citation], despite

substantial changes in service delivery in this setting.” Medicare and Medicaid Programs; Reform

for Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68688,

(https://www.federalregister.gov/documents/2016/10/04/2016-23503/medicare-and-medicaid-

programs-reform-of-requirements-for-long-term-care-facilities, last visited June 12, 2023).

Section 483.15(c)(1)(i)(E) is not identified in the summary of significant amendments.

¶ 66 Nevertheless, the Estate expects us to conclude that the prior regulation was ambiguous, in

need of “greater precision” in the criteria for involuntary transfer or discharge due to non-payment,

and that the new version contains the four elements the Estate has devised. We are not persuaded

that “[t]he regulations specifically prescribe a course of action for the [long-term care] facility and

do not involve an element of judgment or choice.” The Estate’s four elements are unreasonable

and would impose empty formalities on the long-term care facility. As the Estate would have it,

an involuntary discharge could not be approved by DPH without specific evidence that a claim

was submitted to Medicaid and “denie[d],” regardless of Medicaid’s payment practices, which

costs Medicaid would or would not cover for a particular client, or what conditions were imposed

on the client to trigger Medicaid payment. Even if the resident’s Medicaid application was

successful, but the benefits were insufficient, the facility would need to knowingly submit

- 32 - 1-21-0236 ineligible bills for government payment in order to obtain evidence that a claim was “denie[d].”

The Estate’s proposed reading also requires a subsequent renewed payment demand to the resident,

regardless of the circumstances under which payment was previously sought and was not

forthcoming. Nothing in the statute’s language suggests that federal regulators intended to promote

improper billing or empty procedural burdens. The Estate’s reading is implausible. See Palm, 2018

IL 123152, ¶ 21 (courts construe statutes in order to avoid absurd, unreasonable, or unjust results

that were not intended by the legislature).

¶ 67 A statute should be read as a whole, rather than as isolated words or phrases, and construed

so as to give effect to every word, clause, and sentence. Palm, 2018 IL 123152, ¶ 21. The retention

of the first full sentence indicates that the focus of the statute continues to be on whether the

resident has failed to pay for, or have Medicare or Medicaid pay for, the stay at the long-term care

facility. The addition of the sentence regarding non-payment and the resident’s submission of “the

necessary paperwork for third party payment” clarifies that the concept of nonpayment must allow

the resident to seek payment through Medicare or Medicaid. The last clause regarding the third-

party’s denial of the claim is not relevant here.

¶ 68 The evidence presented at the administrative hearing satisfied section 483.15(c)(1)(i)(E),

to the extent that the new regulation applied. The evidence showed that Frank’s application for

Medicaid was approved, with conditions, including a resources spenddown, but the spenddown

amount was neither submitted to Lieberman Center nor reduced by other payment(s). The evidence

included billing specialist Melecio’s testimony that under those circumstances, Medicaid

payments would not be forthcoming. Melecio indicated that Lieberman Center could not inform

Medicaid that it had received the spenddown amount directly from Frank and Lieberman Center

- 33 - 1-21-0236 did not receive verification from the agencies that Frank had tendered the spenddown to some

other provider(s). In addition, Julia testified that, at the time of the hearing in 2018, the Kurtzes

had not paid any money to the facility since November 2014. Based on this evidence, the director

properly allowed Lieberman Center to proceed with Frank’s involuntary transfer or discharge.

Nothing about the revision to the federal regulation required otherwise.

¶ 69 The Estate contends that its remaining arguments concern due process. The Estate argues

that the administrative law judge erred by conducting a hearing without waiting for final resolution

of Frank’s Medicaid penalty period, failing to uphold the principle of substantial justice, denying

a request for a continuance, and adhering to a discovery deadline. Although the Estate characterizes

these as due process violations subject to de novo review, they essentially concern the

administrative law judge’s rulings about how the hearing would be conducted and are reviewed

for an abuse of discretion. Wilson v. Department of Professional Regulation, 344 Ill. App. 3d 897,

907 (2003) (administrative agency’s decision regarding the conduct of its hearing and the

introduction of evidence is properly governed by an abuse of discretion standard and subject to

reversal only if there is demonstrable prejudice to the party); In re D.T., 212 Ill. 2d 347, 356 (2007)

(the abuse of discretion standard is “traditionally reserved for decisions made by a trial judge in

overseeing his or her courtroom or in maintaining the progress of a trial” such as by controlling

discovery or allowing or excluding certain evidence); Desai v. Metropolitan Sanitary District of

Greater Chicago, 125 Ill. App. 3d 1031, 1033 (1984) (an administrative body has broad discretion

in conducting its hearings). The abuse of discretion standard is the most deferential standard of

review available. In re D.T., 212 Ill. 2d at 356. An abuse of discretion occurs when the agency’s

decision was arbitrary or capricious, or unless no reasonable person would agree with the

- 34 - 1-21-0236 [agency’s] position.” Windsor Clothing Store v. Castro, 2015 IL App (1st) 142999, ¶ 48.

¶ 70 Contrary to the Estate’s contention, the administrative law judge’s decision not to delay

the nonpayment hearing until final resolution of Frank’s Medicaid appeal regarding the penalty

period did not deprive Frank of due process. To recap regarding Frank’s Medicaid status, he was

initially approved with a resources spenddown requirement and also, due to disallowed transfers

of approximately $123,120, a penalty period of nearly 12 months was imposed. When the facility’s

notice of involuntary transfer or discharge for nonpayment was heard, Frank had completed his

appeal of the spenddown figure, fixing it at $266,361, but he had not submitted that amount to

Lieberman Center or obtained verification of otherwise satisfying the spenddown amount.

According to the DHS administrative law judge’s decision on March 30, 2018, the value of the

disallowed asset transfers was $123,120 which DHS stipulated it would reduce to $27,000.

Because the value of disallowed assets is converted into a penalty period, the reduction in

disallowed asset transfers would reduce the length of Frank’s penalty period. The DHS

administrative law judge, however, was not tasked with examining the spenddown requirement.

The Estate subsequently sought judicial review, and the circuit court found in March 2021 that the

remaining transfers were not properly disallowed, and thus, the penalty period was entirely

eliminated. However, the length of the penalty period or even the existence of a penalty period

was unrelated to the spenddown requirement and did not affect the fact that Frank was subject to

the spenddown requirement and had not satisfied it.

¶ 71 The statutes and regulations that the Estate cites do not support its contention that the

administrative law judge violated Frank’s right to due process by proceeding to hearing on the

issue of nonpayment in 2018 while the separate issue of a penalty period was yet to be finalized

- 35 - 1-21-0236 until 2021. Federal law states that a nursing facility may not involuntarily transfer or discharge a

resident during the time that they are appealing to the department from the facility’s notice of intent

to involuntarily transfer or discharge the person. 42 C.F.R. § 483.15(c)(1)(ii) (2017) (stating

transfer and discharge rights, and that, generally, the facility may not transfer or discharge the

resident “while the appeal is pending”). See also 42 C.F.R. § 431.230 (2013) (stating with regard

to medical assistance programs, that when the agency sends a 5-day or 10-day notice, and the

beneficiary requests a hearing within that timeframe, the agency may not terminate or reduce

services until a decision is rendered after a hearing, with limited exceptions); 42 C.F.R. §

431.220(a)(3) (2017) (stating with regard to medical assistance programs, when a State agency

must grant a hearing). These regulations do not support the Estate’s contention that federal law

prevents a nursing facility from involuntarily transferring or discharging a resident while any

Medicaid appeal is pending.

¶ 72 The Estate also cites section 3-406 of the Care Act, which provides that when the basis for

an involuntary transfer or discharge is the result of an action by HFS regarding a Medicaid

recipient, and a hearing request is filed with HFS, then the 21-day period for initiating the

involuntary transfer or discharge does not begin until HFS or a court of competent jurisdiction

renders its final decision in the matter, and notice of the decision is received by the resident and

the facility. 210 ILCS 45/3-406 (West 2020). It is unclear that the State law applies here where the

basis for Lieberman Center’s notice of involuntary transfer or discharge was section

483.12(a)(2)(v) of the federal regulations, and not the State act. Nevertheless, the HFS decision in

February 2017 established the general parameters of Frank’s Medicaid assistance, approving it

effective September 2014, setting the spenddown amount and penalty period. Nothing in section

- 36 - 1-21-0236 3-406 provides that a hearing on a facility’s intent to transfer or discharge for nonpayment must

be delayed to await a decision on a Medicaid-related matter (a penalty period) that would neither

result in, nor cure, the nonpayment status.

¶ 73 Even if the Estate’s contentions were supported by the statutes, that would not resolve the

question of due process because “[m]inimum procedural requirements are a matter of federal

constitutional law, and the process due in a given situation is not controlled by state statutory

provisions.” People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 205 (2009). The Estate contends

that instead of being an “inconsequential or tangential issue,” the penalty period could affect the

timing of Medicaid assistance as well as the amount of assistance that was ultimately available for

Frank’s stay at Lieberman Center. But even if that were correct, Frank’s spenddown debt to the

facility would not be eliminated by any determination of the penalty period. The payment

deficiencies shown by the hearing evidence remained, in that Frank had not paid the facility any

amount in years, he had not paid his spenddown to the facility to trigger any Medicaid assistance,

and there was no evidence that he had satisfied the spenddown some other way and reduced his

debt to Lieberman Center. Moreover, even with no penalties, and even assuming that the

spenddown was met by paying another provider, Frank had a continuing obligation to Lieberman

Center to contribute his income of about $2000 during his unpaid stay. Under those circumstances,

the administrative law judge did not deny Frank due process by declining to further delay the

hearing to await the outcome of Frank’s appeal of the penalty period.

¶ 74 The Estate contends that substantial justice was not done because Julia was disadvantaged

as “a self-represented litigant.” The Estate contends that a “fundamentally unfair proceeding ***

merits correction by the courts” and cites generally to Strickland v. Washington, 466 U.S. 668

- 37 - 1-21-0236 (1984) (habeas corpus decision establishing when a criminal defendant’s right to counsel is

violated by counsel’s ineffective performance). The hearing transcript indicates that the

administrative law judge tried to give Julia “a little latitude” as a non-attorney and did not hold her

to the same standards applied to the facility’s attorney. Furthermore, “administrative procedure is

simpler, less formal and less technical than judicial procedure.” Desai, 125 Ill. App. 3d at 1033.

But pro se litigants are presumed to know the applicable rules and procedures and must comply

with them as would be required of an attorney. See JPMorgan Chase Bank, National Association

v. Jones, 2019 IL App (1st) 181909, ¶ 29; In re Estate of Pellico, 394 Ill. App. 3d 1052, 1067

(2009) (“the fact that Gregory was not represented by counsel when he appeared before the circuit

court and filed a responsive pleading does not affect his waiver of any objection to personal

jurisdiction”). We do not agree with the Estate’s contention that the proceeding, when viewed in

totality, was fundamentally unfair.

¶ 75 The Estate also takes issue with the administrative law judge’s denial of a continuance,

contending that good cause was shown by the fact that there was an ongoing appeal of the penalty

period determination and that Julia filed the motion on Monday, April 30, 2018 “four days prior

to the hearing” on Thursday, May 3, 2018. The department counters that this was only three days

before the scheduled hearing.

¶ 76 Regardless of whether it was three or four days in advance, as the judge discussed in her

order denying the continuance, under the department’s procedures, a motion for a continuance

shall be granted only for good cause shown, filed at least five working days prior to the hearing,

and made immediately when the requesting party becomes aware that a continuance is needed. 77

Ill. Admin. Code § 100.8(e) (2014) (stating practice and procedure in DPH administrative

- 38 - 1-21-0236 hearings). The procedural code also states that the motion must indicate when the party learned of

the need for a continuance, the steps that were taken to avoid seeking one, and the current reasons

supporting a continuance. 77 Ill. Admin. Code § 100.8(e) (2014).

¶ 77 Julia’s motion for a continuance spanned 13 pages of single-spaced text and was

accompanied by various exhibits, but it did not satisfy either of these requirements. The hearing

was scheduled on March 29, 2018, to occur 35 days later on May 3, 2018, but Julia filed her motion

32 days later and three days before the hearing. The motion was untimely. Despite its length, it did

not contain any argument that required the administrative law judge to delay the hearing. In

claiming that “good cause” was shown, the Estate reiterates that the Medicaid appeal of the penalty

had not reached its final resolution. However, as we discussed above, the administrative law judge

was not required to delay the hearing for that reason. The record does not indicate that the decision

was arbitrary, capricious, or that no reasonable person would agree with the decision. Denying the

continuance was not an abuse of discretion.

¶ 78 The Estate also contends that the administrative law judge refused to admit “new” evidence

at the hearing that would have materially affected the outcome. The Estate’s “new” evidence

consisted of three bills from Lieberman Center dated February through April 2018, respectively,

and the DHS decision entered by the (other) administrative law judge on March 30, 2018 regarding

the Medicaid penalty period. The Estate argues that the DPH administrative law judge “made a

deliberate decision to exclude evidence that would contradict her findings, thereby *** enabling

her to conclude that Frank still owed his Medicaid spenddown to the facility.” To the extent that

the Estate is suggesting that the administrative law judge had improper motives, there is no basis

for such a vilifying suggestion and the record shows that no abuse of discretion occurred.

- 39 - 1-21-0236 ¶ 79 The department’s regulations require that a party disclose its hearing documents and

witnesses “at least 21 days prior.” 77 Ill. Admin. Code § 100.12(b), (c) (2014). That timeline may

be adjusted upon a showing of “good cause,” which occurs when the party “through no fault of its

own, did not have knowledge of a document to be offered into evidence or the name of a witness

within the timeframe necessary for compliance with Section 100.12(b) and (c), and provided notice

of the evidence or witness to the opposing party as soon as possible after learning about the

existence of the evidence or witness.” 77 Ill. Admin. Code § 100.13(n) (2014).

¶ 80 The record shows that the March 29, 2018 pre-hearing order expressly informed Julia of

the April 12, 2018 deadline for disclosing documents and witnesses that she intended to present at

the hearing, and that the administrative law judge even used boldface font to draw the parties’

attention to the discovery deadline. Julia did not make any disclosures within the deadline. Instead,

she first asked to submit documents in her cover e-mail for her untimely continuance motion, just

three days before the hearing. The administrative law judge was not required to excuse Julia’s

noncompliance with the procedural rule and expand the scope of the imminent hearing merely

because Julia was not an attorney. See JPMorgan Chase Bank, 2019 IL App (1st) 181909, ¶ 29; I In re Estate of Pellico, 394 Ill. App. 3d at 1067. Furthermore, only one of the three sequential

monthly bills was dated after the discovery deadline (it was issued on the deadline, April 12, 2018)

and thus Julia’s exhibits were not “new” and were known to her prior to the discovery cutoff.

Despite the Estate’s contention that these bills would have materially affected the outcome of the

hearing, they did not establish that Frank no longer owed a past-due balance or that Medicaid

would pay that past-due balance, and the hearing evidence affirmatively established Frank’s

liability.

- 40 - 1-21-0236 ¶ 81 As for the DHS decision dated March 30, 2018, it appears that Julia submitted that

document for the first time when she filed for administrative review in the circuit court. It cannot

be said that the administrative law judge unreasonably excluded a document that was not tendered.

Also, despite the Estate’s contention that this too would have materially affected the administrative

law judge’s decision, as we discussed above, the DHS decision concerned the penalty period, not

the spenddown requirement, and did not undermine the hearing’s outcome.

¶ 82 The Estate’s last contention is that Julia should have been permitted to call the facility’s

two witnesses as her own, direct witnesses, because those people would already attend the hearing.

The administrative law judge was not, however, required to overlook Julia’s disregard for the

discovery cutoff date, and Julia did engage in cross-examination. The Estate also suggests that

Julia’s cross-examination was unnecessarily restricted by objections from the facility’s attorney

and by the judge’s “spontaneously” ruling without Lieberman Center’s counsel first objecting. The

Estate contends the judge unfairly “attempted to curtail the exploration of any evidence that might

negatively impinge on [the facility’s] position,” and that “Frank’s rights were crushed” by rulings

that were “technically correct” but “fundamentally unfair.”

¶ 83 The hearing transcript belies the Estate’s portrayal of the hearing as fundamentally unfair.

The transcript discloses that the facility’s attorney raised permissible objections and was courteous

during Julia’s cross-examination, that the administrative law judge gave Julia some leeway as a

non-attorney, and that the hearing management and evidentiary rulings were reasonable and not

an abuse of discretion. The rulings did not individually or cumulatively impair Frank’s right to due

process.

¶ 84 For these reasons, we affirm the judgment of the circuit court which upheld the department

- 41 - 1-21-0236 director’s final administrative decision.

¶ 85 Affirmed.

- 42 -