Concepts Plus, Inc. v. Dep't of Pub. Health

2017 IL App (1st) 160839-U

CONCEPTS PLUS, INC., d/b/a PINE TERRACE, Plaintiff-Appellant, v. THE DEPARTMENT OF PUBLIC HEALTH;NIRAV D. SHAH, Director of Public Health;LAMAR HASBROUCK, Director of Public Health; andDAVID N. CARVALHO, Deputy Director of Public Health, Defendants-Appellees.

No. 1-16-0839

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DIVISION

June 12, 2017

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

No. 14 CH 2367

Honorable Neil H. Cohen, Judge Presiding.

JUSTICE MIKVA delivered the judgment of the court.

Presiding Justice Connors and Justice concurred.

ORDER

¶ 1 Held: We confirm the decision of the Illinois Department of Public Health with the reduction in fine imposed by the circuit court where the decision of the administrative agency was not clearly erroneous, an abuse of discretion, or against the manifest weight of the evidence.

¶ 2 After an administrative hearing, the Illinois Department of Public Health (the Department) issued an order finding that plaintiff, Concepts Plus, Inc., d/b/a Pine Terrace (Pine Terrace), violated five sections of the Intermediate Care Developmental Disability Facilities Code (Code) (77 Ill. Adm. Code 350.110 et seq.), assessing a fine of $20,000, and affirming the issuance of the facility's conditional license. The circuit court, on appeal, reversed the Department's finding as to one violation, affirmed its findings as to the remaining violations, and remanded the matter to the Department to make a corresponding adjustment to the amount of the fine imposed on Pine Terrace. On remand, the Department's amended order reflected this partial reversal, but failed to change the amount of the fine. The circuit court reduced the fine to $16,000 on a second appeal and again remanded the case to the Department for imposition of the reduced fine. On appeal, Pine Terrace challenges the circuit court's orders only with respect to the four remaining violations, asking this court to vacate all fines and sanctions imposed by the Department in connection with those violations. For the following reasons, we confirm the order issued by the Department, as modified by the circuit court.

¶ 3 BACKGROUND

¶ 4 Pine Terrace is an intermediate care facility for adults with developmental disabilities. On May 6, 2010, the Department inspected Pine Terrace pursuant to section 350.200 of the Code (77 Ill. Adm. Code 350.200 (1995)) in regards to unrelated incidents involving two Pine Terrace residents, who have been referred to throughout these proceedings as R2 and R4, respectively. Following these inspections, the Department issued Pine Terrace a notice citing the facility with a total of seven "Type A" violations of the Code (see 77 Ill. Adm. Code 350.330 (2006)), assessed Pine Terrace a fine of $40,000, ordered it to immediately remedy these violations, and issued it a temporary "Conditional License" for the operation of the facility that was conditioned upon its compliance with the notice. Pine Terrace contested the notice at an administrative hearing.

¶ 5 A. Administrative Hearing

¶ 6 The three-day administrative hearing took place in September 2013. The evidence put forth at the hearing included the testimony, summarized below, of the two Department surveyors who investigated the incidents and six individuals who worked at Pine Terrace or other related facilities and who provided a first-hand account of the incidents in question.

¶ 7 1. R4

¶ 8 R4 was a 50-year-old male resident of Pine Terrace who was nonverbal and diagnosed with profound mental retardation and seizure disorder. R4 was taken to the hospital on March 18, 2010, and was diagnosed with pneumonia. He was released the same day with a prescription for antibiotics and instructions for his care. R4's condition severely worsened and he was admitted to the hospital on March 28. Several days later, R4 was put on life support, and he died on April 4 when his guardian elected to discontinue treatment. The Code violations Pine Terrace was cited for in connection with R4 included the failure to notify R4's physician of a change in his condition that threatened his health, and the failure to provide adequate professional nursing services to meet R4's needs.

¶ 9 a. Stephen Troop's Investigation

¶ 10 Stephen Troop, the health facility supervisor who investigated this incident for the Department, testified that his investigation involved reviewing R4's records and interviewing about a dozen employees of both Pine Terrace and Lakeside Day Training Center (Lakeside), where R4 attended vocational training on weekdays. According to Mr. Troop's investigation, R4 first demonstrated symptoms of pneumonia on March 18 when he was at Lakeside. The Lakeside staff called the paramedics, and R4 was taken to the emergency department at Vista Medical Center (Vista), where he was treated, placed on the antibiotic Levaquin with orders to continuetaking it for 10 days, and discharged with care instructions. R4 began taking the antibiotic on March 19 and completed the 10-day regimen as prescribed.

¶ 11 Mr. Troop testified that the discharge instructions were not specific to R4, but were written for patients with pneumonia. The instructions required a physician to be notified if the patient had a fever of over 101 degrees Fahrenheit that was not relieved by medicine, if he continued to have a fever after two to four days of treatment, if he coughed up smelly or blood-tinged sputum, if he developed shortness of breath or chest pain, if he did not improve within three to five days, or if he otherwise seemed to be getting worse and not better.

¶ 12 The nurse consultant for Pine Terrace, Chris Helfrich, created progress notes to track R4's condition. Nurse Helfrich had no direct contact with R4 between March 18 and 28; her notes were created "[f]rom phone conversations, with staff, through e-mails." Nurse Helfrich told Mr. Troop that "once she tells a staff person [instructions] over the phone, it's that staff person's responsibility to instruct the other direct care staff on what's to be monitored for R4." Based on what Nurse Helfrich told Mr. Troop, it was his understanding that Pine Terrace staff was "monitoring and observing" R4 and would report to Nurse Helfrich.

¶ 13 Mr. Troop testified that R4's March 19 progress note indicated that he had no shortness of breath, that he had "minimal nonproductive cough intermittently," and that he was afebrile, i.e., had no fever. On March 20 and 21, there was no documented record of R4 demonstrating a fever or other symptoms listed on the discharge instructions that would require a physician to be notified.

¶ 14 Lakeside required doctor's approval before R4 could return to that facility. On March 22, Pine Terrace took R4 to the physician's office and he was examined by a physician's assistant. According to the physician's assistant's notes and the physician's order issued during that visit,the care plan was to continue present management; R4 would continue taking the antibiotics and take Robitussin as needed. R4 stayed at Pine Terrace on March 22 and 23, and returned to Lakeside on March 24.

¶ 15 Mr. Troop testified that, according to Lakeside staff, from March 24 to March 26, R4 appeared "[l]ethargic, very tired, very quiet, [and he] refused to engage." At Lakeside on March 26, R4 had a fever of 99.5 degrees and "was very lethargic, very tired, coughing," and he kept his head down on his desk. Because no one from Pine Terrace was available to bring R4 home; the decision was made to keep him at Lakeside and reevaluate his condition after lunch. "Purportedly there were no other symptoms at that time after lunch" and R4 remained at Lakeside until the end of the day. Mr. Troop testified that on March 26 there is a record of R4 moaning, but he saw no documentation of R4 wheezing, having shortness of breath, or having trouble breathing.

¶ 16 On March 28, R4 ate breakfast but later did not want to come out of his room for lunch. He was given milk and juice and "went right to bed." Medication administration records indicate that R4 was given Tylenol at 9:10 a.m. and medication for a "[p]ainful cough" at 1 p.m. R4 stayed "under covers" after that and his dinner was brought to him at 5:20 p.m. By the time he was checked at 8 p.m., R4 "was in a state of distress"—staff believed he had a fever but were unable to take his temperature—and he was "moaning" as he was transported to the hospital. The physician's assistant told Mr. Troop that neither she nor the doctor was made aware of R4's fever on March 26 or 28; nor were they contacted about R4's condition at all after March 24.

¶ 17 On March 30, R4 was placed on a ventilator. He passed away on April 4 when his guardian elected to discontinue life support.¶ 18 b. Lakeside Day Training Center Staff

¶ 19 Three Lakeside employees also testified at the hearing that, on March 18, 2010, R4 "was not himself" and appeared to be ill: he was coughing and "shaking uncontrollably," his jaw was clenched, and he felt warm to the touch. R4's temperature was 100 degrees Fahrenheit. After Pine Terrace was notified of his condition, Lakeside called paramedics, who arrived and took R4 to Vista.

¶ 20 Lakeside's note for R4 for March 24 stated that he "appeared lethargic, head down, refused to communicate, appeared tired today. Refused to engage. Very quiet today." His March 25 note repeated essentially the same things and his March 26 note stated that he "appeared tired today. He had a cough today and fever. [Pine Terrace] staff was notified, reported."

¶ 21 c. Kira Grahame

¶ 22 Kira Grahame testified that in March 2010 she was a regional trainer for Lakeside assigned to a region that included Pine Terrace. According to Ms. Grahame, Pine Terrace staff would have documented R4's temperature if it was "over whatever was indicated by the physician."...