People v. Gurell, 56904

• Decision Date: 04 October 1983
• Docket Number: No. 56904,56904
• Citation: 98 Ill.2d 194,74 Ill.Dec. 516,456 N.E.2d 18
• Parties: , 74 Ill.Dec. 516 The PEOPLE of the State of Illinois, Appellant and Cross-Appellee, v. Myron GURELL et al., Appellees and Cross-Appellants.
• Court: Illinois Supreme Court

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456 N.E.2d 18 98 Ill.2d 194, 74 Ill.Dec. 516 The PEOPLE of the State of Illinois, Appellant and Cross-Appellee,
v.
Myron GURELL et al., Appellees and Cross-Appellants. No. 56904. Supreme Court of Illinois. Oct. 4, 1983.
Rehearing Denied Dec. 2, 1983.

[98 Ill.2d 199]

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[74 Ill.Dec. 517] John W. Cooley, Chicago, for appellees and cross-appellants; Stone, McGuire &

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Benjamin,[74 Ill.Dec. 518] Judith Schwartz Sherwin, Gutstein & Schwartz, Chicago, of counsel.

Neil F. Hartigan, Atty. Gen., Michael B. Weinstein, Asst. Atty. Gen., Chicago, for appellant and cross-appellee; Richard M. Daley, State's Atty., Cook County, Glenn E. Carr, Chief, Public Interest Bureau, Michael Kreloff, Stuart Sikes, Asst. State's Attys., Lynn Worley, Chicago, of counsel.

Greg McHugh, Senior Citizens Legal Services, River Forest, Kathy Swanson, Senior Citizens Legal Services, Evanston, for Illinois Citizens for Better Care.

RYAN, Chief Justice:

This case involves a criminal prosecution initiated pursuant to the Nursing Home Care Reform Act of 1979 (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4151-101 et seq.). Early in 1981, defendants were partners in the operation of the Mill View Nursing Center. They were charged in the circuit court of Cook County with certain violations of the Act. The court held the Act and regulations promulgated thereunder unconstitutional. The State appealed directly to this court. 87 Ill.2d R. 603.

Pursuant to the Act, the Illinois Department of Public Health is required to license and certify facilities such as Mill View. (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4153-[98 Ill.2d 200] 101.) To carry out these regulatory functions the Department is authorized to prescribe minimum standards for these facilities by way of Department rules and regulations. Ill.Rev.Stat.1979, ch. 111 1/2, par. 4153-202.

Sections 1-129, 1-130 and 1-131 of the Act (Ill.Rev.Stat.1979, ch. 111 1/2, pars. 4151-129, 4151-130, 4151-131) define three classes of violations--type A, type B and type C.

Section 1-129 provides:

"A 'Type "A" violation' means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility presenting a substantial probability that death or serious mental or physical harm to a resident will result therefrom." (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4151-129.)

Section 1-130 defines a type B violation as follows:

"A 'Type "B" violation' means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility directly threatening to the health, safety or welfare of a resident." (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4151-130.)

Section 1-131 defines a type C violation as follows:

"A 'Type "C" violation' means a violation of this Act or of the rules promulgated thereunder which creates a condition or occurrence relating to the operation and maintenance of a facility which indirectly threatens the health, safety or welfare of a resident." (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4151-131.)

Section 3-305 (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4153-305) provides civil penalties for a violation of the Act or any rule adopted thereunder.

In addition to the civil penalties, section 3-318 (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4153-318) provides that no person shall "[i]ntentionally fail to correct or interfere with the correction of a Type 'A' or Type 'B' violation within the time specified on the notice or approved plan of [98 Ill.2d 201] correction" and provides that a violation of this section constitutes a Class A misdemeanor.

Early in 1981, pursuant to section 3-301 of the Act (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4153-301), the Department gave notice to the Mill View facility that it was in violation of numerous Department regulations, including the following:

"The facility shall have written policies and procedures, governing all services provided by the facility which shall be formulated by a Resident Care Policy Committee consisting of at least the administrator, the advisory physician or the medical advisory committee and representatives of nursing and other services in the facility. These policies shall be in compliance with the Act and all rules

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[74 Ill.Dec. 519] promulgated thereunder. These written policies shall be followed in operating the facility and shall be reviewed at least annually by this committee, as evidenced by written, signed and dated minutes of such a meeting. (B, C)"

"All medications shall be administered only by licensed medical or licensed nursing personnel in accordance with their respective licensing requirements. They shall be administered as soon as possible after doses are prepared and administered by the same person who prepared the doses for administration, except under single unit dose packaged distribution systems. Each dose administered shall be properly recorded in the clinical record by the person who administers the doses. (See 09.01.04.00) (A, B)"

"Medically prescribed diets shall be recorded in the resident's medical record and served as ordered. The resident shall be observed to determine acceptance of the diet and these observations shall be recorded in his record. (B, C)"

The designations of A, B or C in parentheses following each regulation indicate the class of violation that may apply to the particular regulation.

Inasmuch as the trial court disposed of this case on the pretrial motion, and no evidence was taken, we do not [98 Ill.2d 202] have a detailed picture of the facts involved.

On August 11, 1981, six charges were filed against the defendants, each of whom was a general partner in Mill View Associates, the operator of the Mill View Nursing Home facility. In four counts, the defendants are charged with having on April 28, 1982, April 29, 1982, June 15, 1981, and June 27, 1981, committed the offense of failure to correct violations in that they intentionally failed to correct the type B violation of "unlicensed personnel administering medication and performing medical procedures," within the time specified in a report of correction. A fifth count charged that on or about March 3, 1981, through July 1, 1981, defendants committed the offense of failure to correct violations in that they intentionally failed to correct a type B violation of "failure to record observations of resident's acceptance of medically prescribed diets in the resident's clinical records" within the time specified in a report of correction. A sixth charge alleged that on or about July 1, 1981, defendants committed the offense of failure to correct violations in that they intentionally failed to correct the type B violation of "failure to document that a resident care policy in the facility had been reviewed annually by a resident care policy committee" within the time specified in the approved plan of correction. These criminal charges stem from alleged violations of the three regulations quoted above.

In a pretrial motion the defendants moved to quash the misdemeanor complaints, alleging that the Nursing Home Care Reform Act of 1979 and the regulations were unconstitutional.

Section 1-113 of the Act (Ill.Rev.Stat.1979, ch. 111 1/2, par. 4151-113) exempts from the operation of the Act a home, institution or other place operated by the Federal government or agency thereof, or by the State of Illinois. The defendants challenged the constitutionality of the...