ILLINOIS OFFICIAL REPORTS
Appellate Court
UDI #10, LLC v. Department of Public Health, 2012 IL App (1st) 103476
Appellate Court UDI #10, LLC, d/b/a Pekin Manor, Plaintiff-Appellant, v. THE
Caption DEPARTMENT OF PUBLIC HEALTH; WILLIAM BELL, Acting
Deputy Director of the Department of Public Health; and DAMON T.
ARNOLD, Director of the Department of Public Health, Defendants-
Appellees.
District & No. First District, Third Division
Docket No. 1-10-3476
Rule 23 Order filed December 28, 2011
Rule 23 Order
withdrawn January 24, 2012
Opinion filed February 1, 2012
Held An order affirming an administrative decision of the Department of
(Note: This syllabus Public Health that plaintiff nursing home violated the Nursing Home
constitutes no part of Care Act when its employees failed to perform CPR on a resident was
the opinion of the court affirmed where section 3-702 of the Act, which deals with investigations
but has been prepared of complaints, applied rather than section 3-212(a), which deals with
by the Reporter of inspections, and although the Department did not comply with the
Decisions for the provision of section 3-702 stating that the facility “shall” be notified of
convenience of the the Department’s findings within 10 days of the determination, that
reader.)
provision was not mandatory, and the Department did not lose
jurisdiction when notification was given more than 10 days after the
determination.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-6144; the
Review Hon. William O. Maki, Judge, presiding.
Judgment Affirmed.
Counsel on Polsinelli Shughart PC, of Chicago (Jason T. Lundy and Meredith A.
Appeal Duncan, of counsel), for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Paul Racette, Assistant Attorney General, of
counsel), for appellees.
Panel PRESIDING JUSTICE STEELE delivered the judgment of the court,
with opinion.
Justices Neville and Murphy concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, UDI #10, LLC, d/b/a Pekin Manor (UDI), appeals from a circuit court order
affirming an administrative decision that UDI violated the Nursing Home Care Act (Act)
(210 ILCS 45/3-101 et seq. (West 2008)). After an administrative hearing, the Department’s
director determined UDI committed a Type “A” violation when its employees failed to
perform cardiopulmonary resuscitation (CPR) on R11, a resident of UDI’s Pekin Manor
facility. The trial court found the Department retained jurisdiction over the matter and that
UDI relied on an incorrect section of the Act. We affirm.
¶2 BACKGROUND
¶3 R1 was a 77-year-old resident of UDI, a 92-bed skilled nursing home care facility located
in Pekin, Illinois. Pekin Manor is licensed by the Department as a skilled nursing facility that
provides care, treatment and residency to the elderly. On August 19, 2007, R1 experienced
a choking incident. Later that day, he choked again and became unresponsive, which led his
wife to call UDI staff for help. The staff failed to perform CPR, although they were unsure
whether he had a do not resuscitate (DNR) order. Additionally, they did not stay with him
until paramedics arrived, contrary to the facility policy. When the paramedics arrived, they
were neither met at the door nor directed to R1’s room, which was also contrary to facility
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R1’s name is withheld to protect his identity.
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policy. When the paramedics found the correct room, no UDI staff members were attending
R1, who was not breathing and had no pulse. The paramedics then performed CPR on R1.
They noted R1 had large amounts of food in his mouth and oropharynx, which they suctioned
out. They transported him to the hospital, where he later died that same day.
¶4 As a result of R1’s death, a complaint was filed, leading to the Department investigating
UDI. The investigation revealed a DNR order was signed by R1’s wife on August 9, 2007,
and R1 signed one himself on August 16, 2007. However, UDI requires a doctor’s signature
on the DNR orders, which neither document contained. The investigation also revealed
UDI’s policy requires a resident’s DNR status to be kept in his or her chart. R1’s chart did
not indicate whether he had a DNR order. The Department found UDI failed to follow its
own policies when it did not ensure that its staff performed emergency treatment on R1.
¶5 On March 7, 2008, the Department issued a notice to UDI of a Type “A” violation of the
Act and the Department’s regulations. The notice explained the incident, issued a conditional
six-month license for UDI, assessed a $10,000 fine against UDI, and indicated UDI would
be placed on a quarterly list of violators of the Act. Additionally, the notice informed UDI
of its right to request an administrative hearing regarding the decision.
¶6 UDI exercised its right to a hearing in March 2008. In May 2008, UDI filed a motion to
dismiss the charge for lack of jurisdiction. UDI argued the Department’s March 7, 2008,
determination that UDI violated the Act fell outside the 60-day time frame mandated in
section 3-212(c) of the Act (210 ILCS 45/3-212(c) (West 2008)). The Department filed a
response asserting the time frame for determining violations is merely directory, not
mandatory, and therefore, there was no loss of jurisdiction.
¶7 In September 2008, a Department administrative law judge (ALJ) recommended denying
UDI’s motion to dismiss, reasoning UDI’s argument was based on section 3-212(c) of the
Act (210 ILCS 45/3-212(c) (West 2008)), which applies to violations discovered during
general Department inspections. Here, the violation was based on an inspection pursuant to
an outside complaint. The Department’s acting deputy director denied the motion to dismiss.
¶8 UDI then sought administrative review of the denial of its motion to dismiss in the circuit
court. The trial court found the Department’s jurisdiction was proper in this case and that
section 3-702(d) of the Act (210 ILCS 45/3-702(d) (West 2008)) applied, not section 3-
212(c) of the Act (210 ILCS 45/3-212(c) (West 2008)), because the violation was determined
after a complaint investigation. The court therefore held it lacked jurisdiction over UDI’s
administrative review action. The matter continued before the Department.
¶9 On September 29, 2009, the ALJ conducted a hearing on UDI’s motion to dismiss. On
January 14, 2010, the ALJ issued a written recommendation to the director concluding the
Department proved UDI violated regulations regarding DNR orders and emergencies, and
to have the violation classified as Type “A.” On January 20, 2010, the acting deputy director
adopted the ALJ’s report and recommendation. On February 11, 2010, UDI filed a complaint
for administrative review in the circuit court, alleging the Department lacked jurisdiction for
failing to comply with section 3-212(c) of the Act. The circuit court affirmed the acting
deputy director’s decision on November 4, 2010. UDI filed a timely notice of appeal to this
court on November 16, 2010.
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¶ 10 DISCUSSION
¶ 11 At issue is whether the circuit court erred in affirming the final administrative order
finding the Department had jurisdiction. UDI argues the Department lost jurisdiction over
UDI’s alleged violations when it issued a notice 183 days after the survey, in violation of
section 3-212(c) of the Act. In its brief, the Department argues section 3-702 of the Act
applies, not section 3-212(c) of the Act. Thus, we evaluate whether section 3-212(c) of the
Act, which addresses inspections, or section 3-702(c) of the Act, which addresses complaints
and investigations, is controlling. Because the construction of a statute is a question of law,
we review the merits of this cause de novo. In re Application of County Treasurer & Ex
Officio County Collector of Cook County, 2011 IL App (1st) 101966, ¶ 20.
¶ 12 Inspection Under the Act
¶ 13 Section 3-212 of the Act, entitled “Inspection,” states in pertinent part:
“The Department, whenever it deems necessary in accordance with subsection (b), shall
inspect, survey and evaluate every facility to determine compliance with applicable
licensure requirements and standards.” 210 ILCS 45/3-212(a) (West 2008).
When the inspection is complete, a report is submitted to both the licensee and the regional
office of the Department:
“The Director shall then determine whether the report’s findings constitute a violation
or violations of which the facility must be given notice. *** Violations shall be
determined under this subsection no later than 60 days after completion of each
inspection, survey and evaluation.” 210 ILCS 45/3-212(c) (West 2008).
¶ 14 Complaints and Investigations Under the Act
¶ 15 Section 3-702(a) of the Act states in pertinent part:
“A person who believes that this Act or a rule promulgated under this Act may have been
violated may request an investigation. *** The Department shall act on such complaints
via on-site visits or other methods deemed appropriate to handle the complaints with or
without such identifying information, as otherwise provided under this Section.” 210
ILCS 45/3-702(a) (West 2008).
¶ 16 The Department investigates all complaints alleging abuse within seven days of receiving
them, unless the complaint is regarding abuse or neglect indicating a resident’s life is in
imminent danger, which would be investigated within 24 hours. All other complaints are
investigated within 30 days. If a complaint is classified as “a valid report,” the Department
has 30 days to determine whether any rules or provisions of the Act have been violated. 210
ILCS 45/3-702(d) (West 2008). In particular, the Act provides:
“In all cases, the Department shall inform the complainant of its findings within 10 days
of its determination unless otherwise indicated by the complainant, and the complainant
may direct the Department to send a copy of such findings to another person.*** The
Department shall also notify the facility of such findings within 10 days of the
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determination, but the name of the complainant or residents shall not be disclosed in this
notice to the facility. The notice of such findings shall include a copy of the written
determination; the correction order, if any; the warning notice, if any; the inspection
report; or the State licensure form on which the violation is listed.” 210 ILCS 45/3-702(e)
(West 2008).
¶ 17 Our supreme court has stated that “[t]he primary rule of statutory construction is to
ascertain and give effect to the intention of the legislature, and that inquiry appropriately
begins with the language of the statute.” People v. Woodard, 175 Ill. 2d 435, 443 (1997). If
the language of a statute is clear and unambiguous, we do not resort to other aides of
statutory construction. Id. at 443. In determining the statute’s plain meaning, we consider the
statute in its entirety, the subject being addressed, and the apparent purpose of the legislature
in enacting the statute. In re Application of County Treasurer, 2011 IL App (1st) 101966,
¶ 21. If possible, a statute should be construed so that no language is rendered meaningless
or superfluous. Id. Where a statute’s meaning is ambiguous, courts may look beyond the
statutory language and consider the law’s purpose, the evil that it was intended to remedy,
and the statute’s legislative history. Id. ¶ 22. Furthermore, we may consider the resulting
consequences from construing the statute in either manner and presume the legislature
intended no inconvenient, absurd or unjust consequences. Id.
¶ 18 When a statute specifies a time for the performance of an official duty, the statute will
be considered directory only if the rights of the parties cannot be injuriously affected by
failure to act within the time indicated in the statute. Lincoln Manor, Inc. v. Department of
Public Health, 358 Ill. App. 3d 1116, 1119 (2005). “However, where such statute contains
negative words, denying the exercise of the power after the time named, or where a disregard
of its provisions would injuriously affect public interests or private rights, it is not directory
but mandatory.” Carrigan v. Illinois Liquor Control Comm’n, 19 Ill. 2d 230, 233 (1960).
¶ 19 Next, we consider whether section 3-212(c) of the Act (210 ILCS 45/3-212(c) (West
2008)) applies to matters initiated by the Department in investigating complaints. UDI argues
the Act does not distinguish between various types of surveys in setting the time period
during which the Department determines violations of the Act. However, the plain language
of section 3-702 of the Act outlines the time frame for investigations pursuant to the filing
of a complaint. Section 3-212 of the Act does not mention inspections following the filing
of a complaint. 210 ILCS 45/3-212(c) (West 2008). By merely separating the provisions, the
Act distinguishes between different types of surveys: those conducted after a complaint was
filed and those that were not.
¶ 20 UDI claims the Act must be read as a whole to avoid “absurd results.” UDI also contends
this court should read sections 3-702 and 3-212(c) of the Act together. This reading means
the Department makes its determination of violations after a complaint investigation within
30 working days pursuant to section 3-702(d) of the Act (210 ILCS 45/3-702(d) (West
2008)), but no later than 60 days pursuant to section 3-212(c) of the Act (210 ILCS 45/3-
212(c) (West 2008)). UDI is correct that statutes are to be read in their entirety. People v.
McCurry, 2011 IL App (1st) 093411, ¶ 12. However, when a statute provides two separate
time frames for two separate situations, we interpret the statute by applying its plain
language. UDI cites J.S.A v. M.H., 224 Ill. 2d 182, 197 (2007), to support its argument:
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“One of the fundamental principles of statutory construction is to view all provisions
of an enactment as a whole. In re Donald A.G., 221 Ill. 2d 234, 246 (2006). Accordingly,
words and phrases must be interpreted in light of other relevant provisions of the statute
and must not be construed in isolation. Michigan Avenue National Bank, 191 Ill. 2d at
504.”
However, UDI fails to cite the next three sentences, which read:
“We clarify, however, that where–as in the instant cause–there are two separate statutory
enactments to be construed, this rule of construction does not mean that the provisions
of the two separate enactments are to be construed together as a whole. To the contrary,
we must construe each enactment separately, and only view the provisions within each
enactment as a whole. Therefore, in the matter at bar, we will separately construe each
of the relevant statutory enactments.” Id.
¶ 21 We agree with the ALJ and the trial court that the Department possessed proper
jurisdiction, and that section 3-702(d) of the Act applies in this case, not section 3-212(c),
because UDI’s violation was determined pursuant to a complaint investigation. In this case,
the Department concluded a requested investigation following the incidents surrounding R1’s
death. The investigation concluded September 6, 2007, and at that time was classified as a
valid report. The Act states the “Department shall also notify the facility of such findings
within 10 days of the determination.” 210 ILCS 45/3-702(e) (West 2010). Here, notice was
not given until March 2008. UDI also claims the time frame in section 3-702(e) of the Act
is mandatory and the Department’s determination that a violation occurred was untimely
made. “A provision is mandatory under this dichotomy when there is negative language
prohibiting further action in the case of noncompliance or when the right the provision is
designed to protect would generally be injured under a directory reading.” (Internal quotation
marks omitted.) In re Rufus T., 409 Ill. App. 3d 969, 973 (2011). Courts look to the context
of statutory provisions to determine legislative intent:
“Generally, the use of the word ‘shall’ in a statute is regarded as indicating a
mandatory rather than a directory intent. The rule is not, however, an inflexible one; the
statute may be interpreted as permissive, depending upon the context of the provision and
the intent of the drafters.” Woodard, 175 Ill. 2d at 445.
The use of the word “shall” is often determinative of whether a statute is mandatory as
opposed to permissive, but “shall” has never been considered determinative of whether a
statute is mandatory or directory. Id. Failure to comply with a mandatory statutory
requirement will have the effect of invalidating the governmental action to which the
procedural requirement relates. Id.
¶ 22 In Moon Lake Convalescent Center v. Margolis, 180 Ill. App. 3d 245, 248 (1989), this
court reversed a trial court’s order setting aside the decision of the director of the Department
and reinstated an order revoking Moon Lake’s license for violations found by the director
during an inspection. In that case, the circuit court found the Department had no jurisdiction
to proceed against Moon Lake, because it failed to determine alleged violations of the Act
within the time limits outlined under section 3-702(d) of the Act. Id. at 254. The court in
Moon Lake concluded:
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“[S]ection 3-702(d) time frames are directory rather than mandatory. The primary
purpose of the Act undoubtedly is to protect nursing home residents. The legislature
promulgated the Act amid concern over reports of inadequate and degrading treatment
of nursing home care residents.” Id. at 255-56.
We agree that the welfare of nursing home residents is paramount and that the death of a
resident due to violations by UDI is shocking to the conscience. The Department filed its
notice of findings after the deadline in section 3-702(d) of the Act. However, just as the
Moon Lake court concluded, we do not find the protection of the residents depends upon a
mandatory interpretation of the section. “Such a construction would be more injurious to
residents than the benefits the residents would receive.” Id. at 256; see also Frances House,
Inc. v. Department of Public Health, 269 Ill. App. 3d 426, 429 (1995) (citing Moon Lake,
180 Ill. App. 3d at 256, with approval).
¶ 23 We recognize that Moon Lake was distinguished by this court in Lincoln Manor, Inc. v.
Department of Public Health, 358 Ill. App. 3d 1116 (2005). In that case, a resident of
Lincoln Manor nursing home exited the home without knowledge of the staff, only to fall and
fracture a hip. Id. at 1117-18. The Department conducted an inspection, after which a notice
of violations under the Act was issued to Lincoln Manor in excess of the 120-day time period
required under section 3-707 of the Act. Id. at 1118. The circuit court found the
Department’s finding of a violation of the Act void, and the appellate court affirmed. Id. at
1117. However, we note the court in Lincoln Manor explicitly acknowledged section 3-
707(d) of the Act, which was at issue in Moon Lake, was not at issue in Lincoln Manor (nor
is it at issue in this case). The court in Lincoln Manor also noted section 3-702 of the Act,
which was at issue in Moon Lake and in the case before us, is directory (not mandatory)
because it does not include negative language. Id. at 1120. Moreover, the Lincoln Manor
court cited Sutherland Statutory Construction in its treatment of negative language in how
such language appears in statutes:
“According to Sutherland Statutory Construction:
‘Negative words in a grant of power should never be construed as directory. Where
an affirmative direction is followed by a negative or limiting provision, it becomes
mandatory. Negative words do not always compel an imperative construction nor
does their absence compel directory construction. However, the absence of negative
words may be considered in support of directory construction.’ 3 N. Singer,
Sutherland Statutory Construction § 57:9, at 37 (6th ed. 2001).” Lincoln Manor, 358
Ill. App. 3d at 1119.
Therefore, the Lincoln Manor court at once acknowledges section 3-702(d) of the Act as it
appears in Moon Lake as directory and distinguishes its ruling from that in Moon Lake.
¶ 24 Because we conclude section 3-702 of the Act applies, we need not evaluate UDI’s
question whether the negative language of “no later than” contained in section 3-212 of the
Act creates a mandatory deadline the Department is required to follow. Additionally, because
we find the Department had proper jurisdiction, UDI is not entitled to an award of expenses
and attorney fees.
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¶ 25 CONCLUSION
¶ 26 In sum, we conclude the Department retained jurisdiction over the matter. We reject
UDI’s argument the Department lost jurisdiction when it did not comply with section 3-
212(c) of the Act in issuing an untimely determination of violations. We agree with the trial
court and the ALJ that section 3-702 of the Act applies in this case and a finding that UDI
violated the Act is in the best interest of the residents of the facility. Based upon the
foregoing, we accordingly affirm the Department’s administrative decision.
¶ 27 Affirmed.
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