Lexington Healthcare Center of Elmhurst v. State of Illinois

OPINION

STORINO, J.

Pursuant to Section 10-55 (a) of the Illinois Administrative Procedure Act (“APA”) (5 ILCS 100/10-55 (a)), Claimant, Lexington Healthcare Center of Elmhurst, a skilled nursing facility, brings this claim arising out of its successful challenge to the Illinois Department of Public Health’s (“IDPH”) November 17, 2009, notice of violation and its imposition of a $25,000 fine and conditional license. Claimant seeks $34,168.58 for costs and attorneys’ fees incurred in the underlying administrative proceeding and additionally for this action in the Court of Claims. This claim is before the Court upon a recommendation of the Commissioner following an evidentiary hearing.

FACTUAL BACKGROUND

I. Relevant Rules Regarding Regulation of Skilled Nursing Facilities in Illinois

Skilled nursing care facilities in Illinois are regulated by the IDPH pursuant to the Illinois Nursing Home Care Act (“NHCA”) (210 ILCS 45 et seq.) and the Illinois Skilled Nursing and Intermediate Care Facilities Code (“Code”) (77 Ill.Adm.Code §300 et seq.) The Code requires that skilled nursing facilities develop and implement a comprehensive care plan (“care plan”) for each resident. Each care plan must include measurable objectives and timetables to meet the resident’s medical, nursing, and mental and psychosocial needs that are identified in the resident’s comprehensive assessment. §300.1212 (a). The comprehensive assessment of resident needs must be overseen and supervised by the director of nursing services (“DON”), which every skilled nursing facility is required to have. §300.1220 (a) (b) (2).

The DON is also responsible for supervising and overseeing coordination of the care and services provided to residents, as well as the development of an up-to-date resident care plan for each resident based on the resident’s comprehensive assessment, individual needs and goals to be accomplished, physician’s orders, and personal care and nursing needs. §300.1220 (b) (7), (b) (3). The written plan must be reviewed and modified in keeping with the care needed as [*165] indicated by the resident’s condition and shall be reviewed at least every three months. §300.1220 (b) (3).

The Code also requires that on a 24-hour/seven-day-a-week basis, all nursing personnel evaluate residents to ensure they each receive adequate supervision and assistance to prevent accidents. §300.1210 (d) (6).

II. The IDPH Licensure Investigation

Three IDPH surveillance nurses (“surveyors”) conducted a licensure investigation of Claimant’s facility from August 25, 2009, to September 2, 2009. IDPH routinely conducts licensure investigations (also called surveys) to determine if a skilled nursing facility violated any provisions of the NHCA or other applicable regulations such as the Code. IDPH surveyors reviewed all records (including medical) of a 14-resident sample at Claimant’s facility. They found that, within the last year, four residents (R10, R6, R12, and R23), whose care plans and comprehensive assessments labeled them as having a high risk for falls, had each suffered multiple falls and at least one or more fall-related injuries.

Since the October 21, 2008, update to her care plan, R10 had three falls within a 30-day period; about four months later, she had three more falls within another 30-day period. A few days after one of these falls, she was diagnosed with a broken shoulder.

R6 fractured her right ankle due to a fall about six and a half months after her care plan was updated on September 15, 2008. The fall was never documented on her care plan, and no incident report was ever made.

R12 had been at Claimant’s facility since October 2008, and within a month of the May 19, 2009, update to his care plan, he had three falls in three consecutive months, two of which caused injuries that included a broken hip. Two of R12’s falls had not been documented in his care plan.

R23 had been at Claimant’s facility since December 28, 2008, and after her December 31, 2008, care plan she had two falls within five months of each other; the first one, occurring in March 2009, caused a two-inch laceration on the back of her head. One of Claimant’s employees told a surveyor that no one had analyzed why any of R12’s three falls or R23’s two falls had occurred.

Based on information in these records and information gathered during on-site visits and interviews with residents and staff, IDPH surveyors prepared their report and the IDPH issued Claimant a notice of violation, alleging that with respect to Residents 6, 10, 12, and 23, Claimant committed Type A violations by violating one or more of the following sections of the Code: §300.1210 (a) (failure to develop or implement a care plan to address the needs identified in a resident’s comprehensive assessment); §300.1210 (d) (6) (failure of nursing staff to evaluate residents to ensure each resident receives adequate supervision and assistance to prevent accidents); §300.1220 (b) (2) and (b) (7) (failure of facility’s director of nursing services to oversee the comprehensive assessment of residents’ needs and to coordinate nursing services); [*166] and §300.3240 (a) (failure to ensure residents were not abused or neglected). IDPH’s classification of Claimant’s violations as type “A” means that it alleged that Claimant’s violation of one or more of the above sections either resulted in or created a substantial probability of physical or mental harm to R10, R12, R23, and R6. See 77 Ill. Adm. Code §300.274 (b) (1).

III. The IDPH Hearing in Front of an ALJ

Claimant then filed a request for hearing, which occurred on August 30, 2011, before an administrative law judge (“ALJ”). The essence of IDPH’s argument supporting the violations was that the falls sustained by R10, R12, R23, and R6 indicated that Claimant either must not have been following the care plan designed for those residents, that it was not properly developing the care plans to begin with, or that it was not adequately supervising them. Further, Claimant’s failure to properly document R6’s, R12’s or R23’s falls and injuries in their care plans shows that care plans were not being properly implemented and that the Claimant was not taking proper measures to prevent abuse and neglect at its facility.

After reviewing the evidence, which included the testimony of the three surveyors that investigated Claimant’s facility, the ALJ found, among other things, that all four residents were at a high risk for falling and that their falls and injuries documented by IDPH in its investigation had indeed occurred. However, the ALJ concluded that IDPH failed to prove by “a mere preponderance of the evidence” that Claimant violated sections §300.1210 (a), §300.1210 (b) (6), §300.1220 (b) (2), §300.1220 (b) (7), or §300.3240 (a) of the Code with respect to any of the four residents.

The ALJ explained that even though IDPH presented evidence that each resident suffered a series of falls, and some of those falls resulted in injury, IDPH did not present sufficient evidence demonstrating “what type of care outlined within each resident’s plan of care the facility failed to provide” or “what services or supervision measures the facility could have provided that may have resulted in minimizing falls.” Without such evidence, IDPH could not meet its burden in establishing that Claimant violated any of the cited sections of the Code. The ALJ noted that based on the testimony of the three IDPH surveyors, all the residents were assessed and had a plan of care in place, were provided with medical attention after each incident, and were re-evaluated after each incident.

Thereafter, a final IDPH order adopting the findings of fact and conclusions of law and recommendations of the ALJ’s report dismissed the violations and ordered that no fine be imposed. Claimant subsequently applied to IDPH for reimbursement of its litigation expenses, which IDPH rejected finding that the administrative record did not support the presumption that this agency made any allegations which were without reasonable cause and found to be untrue. Claimant then filed its Complaint now before this Court.

ANALYSIS

5 ILCS 100/10-55 (a) establishes four elements to recover for a litigation expense claim arising out of an administrative proceeding: (1) the proceeding was initiated by a state agency, (2) which made an allegation against the Claimant, (3) that was found to be untrue, and was (4) [*167] made without reasonable cause. Claimant bears the burdens of strict proof and persuasion on each element of recovery under Section 10-55 (a). Lake Environmental, Inc. v. State, 54 Ill. Ct. Cl. 408, 410 (2001). In this instance, only the reasonable cause element is at issue.

When determining whether a State agency’s charges were based on reasonable cause, it does not matter if the charges were incorrect. As we noted in Lake Environmental, “a State agency can be wrong while being reasonable.” Lake Environmental, 54 Ill. Ct. Cl. at 410. Only charges that are “so wide off the mark and so unsupported or unsupportable,” are considered by this Court to have been made without reasonable cause. Id. Further, whether an agency’s charges were based on reasonable cause is to be analyzed as of the date of those charges (November 17, 2009) and not retrospectively with the advantage of hindsight. Id.

Applying these standards, we must now determine whether Claimant has established that there was no reasonable cause behind Respondent’s charges that Claimant violated one or more of the following sections: §300.1210 (a), §300.1210 (b) (6), §300.1220 (b) (2), §300.1220 (b) (7), or §300.3240 (a). We will discuss these violations in light of the following facts IDPH’s investigation revealed regarding each of the four residents:

R10

R10 was admitted to Claimant’s facility in October 2006. Her plan of care, as updated on October 21, 2008, stated she had a high risk of falling related to having an unsteady gait, not using an assistive device, failing to hold onto rails in the hallway, impaired safety awareness, and periods of agitation and wandering. The approach listed in her care plan to address these problems included supervising/assisting her when ambulating, transferring her with caution, providing close supervision when she was agitated/anxious, monitoring her location, and placing her at the nurse’s station as needed.

R10 had six falls documented in her care plan since the October 21, 2008, update. She had two in November 2008, one in December 2008, two in April 2009, and one in May 2009. When she fell on April 4, 2009, staff assisted her to the floor while she was falling. She suffered right elbow discoloration. After her fall on April 8, 2009, she had tiny bruises on her left hand. On April 13, 2009, her right shoulder was hurting her and was purplish and swollen. X-rays determined she fractured her right shoulder. Despite these falls, it was not until June 27, 2009, that her care plan was amended to add a new approach to address her falls: placing a bed alarm in her bed while she was sleeping. It was amended again on September 9, 2009, to add the approach of “close supervision monitor (movement) when she becomes agitated.”

R12

R12 was admitted to Claimant’s facility on October 14, 2008. His plan of care, as updated on May 19, 2009, states “problems/concerns” that R12 was at “risk for falls related to impaired standing balance, needs support, assistive device to stand, impaired safety aware…does not use call light, history of falls at home.” His plan of care’s approach included, “non clutter environment…transfer with caution times one assist, place at the nurse’s station for monitoring, and ambulate with assistive device, a rolling walker, and staff to assist with ambulation.”

[*168] Incident records indicate that he fell on June 16, 2009, as he was being walked by a Certified Nursing Aide (CNA); he fell again on July 9, 2009, suffering abrasions to his head and knee, and on August 7, 2009, he fell and suffered a fractured hip and a laceration above his eyebrow.

His plan of care was not updated with information about his falls in June and July of 2009. Further, one of Claimant’s interviewed employees stated that Claimant’s fall committee was in the process of updating its system and had not analyzed any of these three falls. Although, on June 21, Claimant did update the approaches in R12’s plan of care to include “educate staff to insure that resident environment is clutter free.” His plan of care was also updated a few days after his August 7, 2009, fall to include “anticipate resident’s needs and provide assistance to prevent fall.”

R23

R23 was admitted to Claimant’s facility on December 28, 2008, and her plan of care, dated December 31, 2008, states in “problems/concerns” that R23 “has risk for falls, unsteady gate, impaired balance, impaired coordination, weakness, a history of falls at home, the resident receives medication that could cause falls.” The plan of care’s approach included “use assistive devices like wheelchair, assist when transferring, ambulating use gait belt…frequently remind[ing] to ask for assistance to transfer.” At some point she was discharged and then readmitted on February 18, 2009, with a diagnosis of visual loss and cerebral vascular accident.

According to a facility incident report, she had a fall on March 21, 2009, which caused a head laceration requiring two staples and occurred in the shower room when R23’s shower chair rolled out from underneath her as she attempted to scoot back on it while the CNA assisting R23 had her back turned to get R23’s personal items. Nurse’s notes from July 21, 2009, indicate that R23 had bruises on the inside of thigh, for which she was unable to remember the cause. Claimant’s employee told the surveyor that R23’s fall and bruise of unknown origin had not been assessed and that the facility fall committee was just formulating. On August 13, 2009, a notation was made to her plan of care regarding a concern about her risk for falls. However, her care plan had never been updated to include either the July 21 or March 21 incidents.

R6

R6 was an 80-year old with Parkinson’s, Degenerative Joint Disease, Dementia, and onesided weakness from a previous stroke. Her plan of care, updated September 15, 2008, stated that R6 was “at risk for falls as a result of her impaired balance, decreased function, functional ability with mobility and her ADL skills.” Her plan of care approaches included, “assisting the resident with toileting, utilizing one to two assists as needed during the transfers, and to assist with toileting.”

IDPH surveyors found out through nurse’s notes that R6 complained of right foot and ankle pain on May 2, 2009, that was subsequently diagnosed as an ankle fracture. No incident report was made regarding this fracture. One of Claimant’s administrators told a surveyor that she did not know why one was never completed. She did however provide a hand-written letter from the nurse’s aide assisting R6 on May 2, 2009.

[*169] The nurse’s aide stated that he was assisting R6 with toileting and that, as R6 was standing by the toilet grab bar, the nurse’s aide turned away to retrieve her wheelchair from under the sink. During that point, R6’s leg gave out and she started falling. The nurse’s aide stated that he caught R6 and sat her in the wheelchair, at which point she started complaining about her ankle/foot pain. The nurse’s aide also stated that he spoke to the DON about this fall. However, this fall was not recorded in her plan of care or analyzed.

CONCLUSION

In almost one-third of the 14-person random sample collected, residents with a high risk for falls had, during a one-year period, fallen one or more times and suffered one or more of the following injuries: a right shoulder fracture, a left leg fracture, an abrasion on the right side of the head and knee, a two-inch laceration on the back of the head, or a right ankle fracture. Given that these injuries occurred in the context of the facts highlighted in the next paragraph, we find that it was not off the mark to charge that physical harm, or the substantial probability thereof, resulted from Claimant’s failure to either properly implement or develop a care plan to prevent falls (§300.1210 (a)), to properly supervise the residents (§300.1210 (b) (6)), or to ensure that residents in its facility were not being neglected (§300.3240 (a)).

R10 had three falls within a 30-day period and then about four months later, three more falls within another 30-day period, one of which resulted in injury; R12 had one fall every month for three months, two of which resulted in injury. Despite this, no new approaches to prevent falls were added to R10’s care plan until a month after her sixth fall, and the only two approaches added to R12’s were inconsequential or redundant. In addition, no incident report was made for R6’s fall and resultant broken ankle, and information about her fall was also not added to her care plan. Furthermore, information about two of R12’s three falls was never added to his care plan. In fact, none of the five falls between R12, R6, or R23 were ever analyzed, despite the fact that four of those falls resulted in injury (three falls and two injuries for R12, and one fall and injury each for R6 and R23.

Thus, for all the above mentioned reasons, we find that Claimant has failed to establish that there was no reasonable cause to support Respondent’s charges of Type A violations. As a result, Claimant’s claim must be denied.

IT IS HEREBY ORDERED that Claimant’s claim is denied.