Gallaher v. Hasbrouk

• Decision Date: 31 December 2013
• Docket Number: Docket No. 1–12–2969.
• Citation: 3 N.E.3d 913,378 Ill.Dec. 348,2013 IL App (1st) 122969
• Parties: Victoria GALLAHER, Plaintiff–Appellant, v. LaMar HASBROUK, Director of Public Health, John Abrell, Chief Administrative Law Judge of the Department of Public Health, and the Department of Public Health, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 122969

3 N.E.3d 913

378 Ill.Dec. 348

Victoria GALLAHER, Plaintiff–Appellant,

v.LaMar HASBROUK, Director of Public Health, John Abrell, Chief Administrative Law Judge of the Department of Public Health, and the Department of Public Health, Defendants–Appellees.

Docket No. 1–12–2969.

Appellate Court of Illinois, First District, Fifth Division.

Dec. 31, 2013.

Emily Johnson, of Hunter & Johnson P.C., of Godfrey, and Edward Clancy, of Ungaretti & Harris, LLP, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Christopher M.R. Turner, Assistant Attorney General, of counsel), for appellees.

OPINION

Justice McBRIDE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Victoria Gallaher, a paramedic and emergency medical services instructor, sought injunctive relief and a declaratory judgment from the circuit court of Cook County to suspend and ultimately dismiss an administrative action brought by the State of Illinois to revoke her instructor's license. The trial court enjoined the administrative action, but later rejected Gallaher's contention that the defendant State agency was misconstruing its statutory authority to revoke her license without first implementing a “plan of correction” to address her alleged misconduct. Gallaher appeals from the trial court's adverse ruling on cross-motions for summary judgment, primarily contending that a section of the Illinois Emergency Medical Services (EMS) Systems Act (hereinafter EMS Act) entitled “Facility, system, and equipment violations; Plans of Correction” (210 ILCS 50/3.130 (West 2010)), applies to individuals and entitled Gallaher to a plan of correction. The three defendants to this appeal are LaMar Hasbrouk, Director of the Department of Public Health, John Abrell, chief administrative law judge of the Department of Public Health, and the Department of Public Health, which we will refer to collectively as the Department.

¶ 2 Gallaher resides in Nauvoo, Illinois, a small community west-southwest of Chicago on the banks of the Mississippi River, across from the state of Iowa. Gallaher contends she currently holds “Emergency Medical Technician–Paramedic” or “EMT–P” licenses in the states of Illinois (210 ILCS 50/3.100, 3.50(c) (West 2012)), Iowa, and Missouri, although the Department counters that her Missouri EMT–P license expired on September 30, 2009. In any event, the credential at issue is Gallaher's Illinois license as an “EMS Lead Instructor” (210 ILCS 50/3.65 (West 2010)).¹

¶ 3 Section 3.65 of the EMS Act is entitled “EMS Lead Instructor” and consists of two parts. The first part, subsection (a), defines “EMS Lead Instructor” as “a person who has successfully completed a course of education as prescribed by the Department, and who is currently approved by the Department to coordinate or teach education, training and continuing education courses, in accordance with standards prescribed by this Act and rules adopted by the Department pursuant to this Act.” 210 ILCS 50/3.65(a) (West 2010).

¶ 4 The second part, subsection (b), specifies that the Department has “the authority and responsibility” to take certain actions with regard to EMS Lead Instructors. These acts include to dictate minimum education requirements and testing requirements for EMS Lead Instructor candidates, to charge fees to each EMS Lead Instructor candidate for his or her examination and certification and recertification, to require that courses for EMS personnel be “coordinated” by at least one approved EMS Lead Instructor, and to set “standards and procedures for awarding EMS Lead Instructor approval to persons previously approved by the Department to coordinate such courses.” Of particular interest here is that the final paragraphs of subsection (b) state that the Department also has “the authority and responsibility” to:

“(7) Suspend or revoke the approval of an EMS Lead Instructor, after an opportunity for a hearing, when findings show one or more of the following:

(A) The EMS Lead Instructor has failed to conduct a course in accordance with the curriculum prescribed by this Act and rules adopted by the Department pursuant to this Act; or

(B) The EMS Lead Instructor has failed to comply with protocols prescribed by the Department through rules adopted pursuant to this Act.” 210 ILCS 50/3.65(b) (West 2010).

¶ 5 Section 3.65 is the statute the Department has relied upon in its proceedings against Gallaher. 210 ILCS 50/3.65 (West 2010). According to the Department, Gallaher misstepped in 2007, first by failing to obtain a site code and system approval for EMS courses she began teaching at the high school in Warsaw, Illinois, and again when she was the Lead Instructor for an EMS conference convened in Nauvoo where a speaker taught “pediatric warming/re-warming methods which were not part of the National EMT Curriculum, were contrary to accepted standards of pre-hospital care, unaccepted by pediatric medicine and * * * dangerous.” The Illini EMS System/Genesis Medical Center (not the Department itself) (hereinafter Illini EMS System), notified Gallaher of its intent to suspend her license on April 19, 2007, but on May 21, 2007, the Illini EMS System converted the proposed suspension into a one-year probation with conditions, essentially that Gallaher could not teach an EMS course without being directly supervised by the Illini EMS System coordinator. According to the Department, Gallaher taught at the Warsaw high school in violation of the local probation and supervision order.

¶ 6 On or about November 9, 2007, the Department (not the Illini EMS System) called Gallaher and her attorney to a meeting to ask for a “plan of correction,” purportedly to avoid further disciplinary measures and a formal administrative action. In December 2007, Gallaher submitted a proposed plan of correction which included that she obtain a site code before the start date of any new course and be supervised for 90 days by an EMS Lead Instructor who would evaluate Gallaher's teaching.

¶ 7 The Department did not respond to Gallaher's proposed plan of correction and, instead, in February of 2008, filed a notice of intent to suspend her teaching license based on her conduct at the high school. The Department alleged that Gallaher's failure to obtain site codes and system approval from the local EMS medical director (210 ILCS 50/3.100 (West 1996)) was contrary to the protocol prescribed by the Department through its administrative rules and was unprofessional in violation of the EMS Act. See 77 Ill. Adm.Code 515.500(a), (b), (c) (2003); 210 ILCS 50/3.65(b)(7), 3.50(d)(8) (West 1996). The Department further alleged that Gallaher's failure to prevent the nonstandard teaching or to take any steps to correct the nonstandard teaching was contrary to the requirement that classes be consistent with the national EMT curriculum adopted by the Department and was unprofessional. 77 Ill. Adm.Code 515.500(d) (2003); 210 ILCS 50/3.50(d)(8), 3.65(b)(7)(A) (West 1996). In March of 2008, Gallaher denied the Department's allegations, refiled her plan of correction, and requested an administrative hearing. It was in these administrative proceedings that Gallaher first argued that prior to initiating a license suspension hearing pursuant to section 3.65 of the EMS Act, the Department had to follow the protocol set out in section 3.130 of the EMS Act. 210 ILCS 50/3.65, 3.130 (West 1996). The version of section 3.130 that was then in effect was simply entitled “Violations; Plans of Correction” and stated as follows.

“Except for emergency suspension orders, or actions initiated pursuant to Section 3.90(b)(10) of this Act [which concerns hospitals known as trauma centers], prior to initiating an action for suspension, revocation, denial, nonrenewal, or imposition of a fine pursuant to this Act, the Department shall:

(a) Issue a Notice of Violation which specifies the Department's allegations of noncompliance and requests a plan of correction to be submitted within 10 days after receipt of the Notice of Violation;

(b) Review and approve or reject the plan of correction. If the Department rejects the plan of correction, it shall send notice of the rejection and the reason for the rejection. The party shall have 10 days after receipt of the notice of rejection in which to submit a modified plan;

(c) Impose a plan of correction if a modified plan is not submitted in a timely manner or if the modified plan is rejected by the Department;

(d) Issue a Notice of Intent to fine, suspend, revoke, nonrenew or deny if the party has failed to comply with the imposed plan of correction, and provide the party with an opportunity to request an administrative hearing. The Notice of Intent shall be effected by certified mail or by personal service, shall set forth the particular reasons for the proposed action, and shall provide the party with 15 days in which to request a hearing.” 210 ILCS 50/3.130 (West 1996).

¶ 8 Gallaher moved for summary judgment in the administrative proceedings, arguing that license revocation was premature because the Department had not followed the plan of correction procedure set out in section 3.130 and its companion Administrative Code, title 77, section 515.160, which adds detail to the statute. 77 Ill. Adm.Code 515.160, (amended at 20 Ill. Reg. 11602, eff. April 15, 1997). Gallaher reiterated that she was also disputing the allegations that she violated the suspension order. On September 8, 2010, the assistant chief administrative law judge (ALJ) assigned to the matter recommended that the agency accept Gallaher's argument that section 515.160 was controlling and entitled her to a plan of correction, but also conclude that Gallaher's motion for summary judgment should be denied because there were questions of fact as to whether Gallaher ignored the suspension order. The ALJ further recommended that the Department's notice of...