Jeffrey Schweizer v. State of Illinois

OPINION

BIRNBAUM, CJ.

THIS MATTER is before the Court on a Complaint seeking litigation expenses pursuant to the Administrative Procedure Act, 5 ILCS 100/10-55. Claimant, Jeffrey Schweizer, incurred substantial costs and attorney’s fees defending himself against an allegation of physical abuse brought by the Office of the Inspector General (OIG) for the Department of Human Services (DHS). A hearing was conducted by Commissioner Mikva on August 1, 2018. Thereafter, the parties submitted post trial briefs and other memoranda.

FACTS

Claimant was employed at Futures Unlimited, Inc., (Futures) a facility for individuals with developmental disabilities. He had worked at Futures for approximately five years. The agency regarded Claimant as an excellent employee. Prior to the incident in question, he had never been disciplined.

In June 2012, two employees of Futures submitted Critical Incident Reports regarding an interaction that occurred between Claimant and “J.H.” (name redacted), a recipient of residential and day services at Futures. At that time, J.H. was a 37-year old male diagnosed with ADHD, moderate mental retardation and bipolar disorder. He wore two hearing aids but still had some difficulty hearing; J.H. communicated with others using a mixture of modified International Sign Language and his own “home signs.” His behavioral issues included physical aggression towards others.

The incident occurred in a classroom. Claimant was teaching and supervising the students when J.H. started hitting and pulling the hair of a student sitting next to him. According to the two employee witnesses, Claimant walked over to J.H., hit him on the shoulder and pulled his hair. Claimant then said to J.H., “How would you like that?” J.H. showed no reaction to the contact.

Futures gave Claimant a written warning regarding the incident. The agency did not report the incident to the OIG. In July 2012, the OIG received a report from an anonymous source that, sometime between June 11 and June 15, 2012, Claimant hit J.H. As required, the OIG opened an investigation.

[*148] According to the OIG’s Investigative Report, the investigator spoke to the two employees who reported the incident and their supervisor. The investigator also reported a brief attempt to talk to J.H. before concluding that J.H. was “non-verbal” and unable to answer any questions. The investigator spoke about interactions between Claimant and J.H. with several clients of the agency, who gave vague and often conflicting reports. The investigator also spoke to Claimant who stated that he put his hand on J.H.’s arm to get his attention and put his hand on J.H.’s hair and ear. Claimant denied either hitting J.H. or pulling his hair.

In August 2012, the OIG determined that the allegation of physical abuse was “substantiated,” meaning that there was a preponderance of the evidence to support the allegation pursuant to the Department of Human Services Act, 20 ILCS 1305/1-17. The report stated that Claimant did not cause any bodily harm to J.H., but the contact was non-accidental, and “was insulting and provoking in nature.” In September 2012, Futures requested the OIG to reconsider its finding. OIG granted reconsideration but upheld the substantiated finding. Futures indicated that, at that point, it felt it had no choice but to terminate Claimant’s contract.

The OIG is required by law to report findings of physical abuse by health care workers to the Health Care Worker Registry maintained by the Illinois Department of Health. 20 ILCS 1305/1-17(s)(1). State-operated facilities may not employ an individual whose name is on the Registry with a substantiated finding of physical abuse. 210 ILCS 46/3-206.05. The OIG notified Claimant that his name would be reported to the Registry. Claimant requested an administrative hearing as provided by statute “to determine if the substantiated finding warrants reporting to the Registry.” 20 ILCS 1305/1-17(s)(2).

A hearing was held before Administrative Law Judge (ALJ) Susan Bradshaw. At the hearing, the two employees who reported the incident testified. According to the ALJ’s written decision, their stories were consistent with what they told the OIG and with each other except as to the degree of force with which Claimant hit J.H. on the shoulder. The Executive and Assistant Directors of Futures both testified that Claimant was a dedicated and outstanding employee who worked extremely well with the clients. Stipulated testimony by J.H. stated that he never recalled Claimant touching him in a way he found hurtful or shameful. J.H. said he missed Claimant and missed talking to him. Claimant testified. According to the decision, Claimant stated that he stepped in because he believed J.H. was disrupting the group and putting himself at risk. Claimant chose what he thought was the least disruptive manner in which to intervene. He struck J.H. lightly with his hand and tugged at his hair, without causing J.H. any pain. The ALJ concluded that the OIG failed to demonstrate that the substantiated finding against Claimant warranted reporting him to the Health Care Worker Registry.

THE TRIAL

At the trial before Commissioner Mikva, Kendall Dugger was qualified as an expert in the design and implementation of methodologies for the collection, analysis and presentation of data for litigation purposes. Mr. Dugger testified about his preparation of a methodology and computer program to examine 490 reports from the DHS OIG investigating allegations of physical abuse. The methodology involved the input of information from the reports into a [*149] secure computer program. The program then generated statistical information about the investigative reports.

Among many findings, Mr. Dugger’s program showed that victims in the database were interviewed in 383 investigations; of those, 11 (2.9%) of the allegations were substantiated. The victim was not interviewed in 95 investigations; of those, 14 (14.6%) were substantiated. It was unclear whether the victims were interviewed in 12 investigations. Of those, one (8.3%) was substantiated. In 134 cases, somebody other than the victim made the original complaint to the OIG. Of those, the victim was interviewed in 57 cases and four (7%) were substantiated; the victim was not interviewed in 77 cases and 13 (16.7%) were substantiated.

Edward Feldman, a partner at Miller, Shakman and Beem, was qualified as an expert in the reasonableness of litigation fees and costs. Mr. Feldman testified that the hours spent by Claimant’s attorneys were reasonable and necessary; he opined that their hourly rate was “shockingly low.” He testified that the hours and hourly rate charged by the expert Mr. Dugger were also reasonable. Finally, while admitting that the testimony was self-serving, he stated that his own hours and hourly rate reviewing the billing in the case were reasonable.

Lois McCarthy testified for the State. Ms. McCarthy worked for the DHS OIG first as an investigator and later as a supervisor. Between 2011 and 2012, she convened a group that revised the OIG section of the rules implementing the DHS Act. They added “contact of an insulting or provoking nature” to the definition of “bodily harm” in Rule 50.10. 59 Ill. Adm. Code 50.10. She explained that prior to the addition, the OIG felt unable to sanction physical contact by workers, such as spitting or even slapping, that left no mark or injury but was clearly abusive. She stated that the change was challenged by a union group on behalf of state employees but approved by the Joint Committee on Administrative Rules, the legislative consortium that oversees rulemaking in Illinois.

Ms. McCarthy testified that mitigating circumstances cannot alter a finding but can reduce the culpability of the employee. She testified that thought was given to being consistent from one investigation to the next but, generally, each investigation involved different circumstances and different facts, and each was reviewed on its own merits.

She explained that the hearing before an ALJ to see whether a name should be reported to the Registry is called a 50.90 hearing, in reference to the portion of the rule that provides the review. 59 Ill. Adm. Code 50.90. She testified that a finding of abuse stands, regardless of what happens at the 50.90 hearing. The only way for a worker to appeal the underlying finding of abuse, according to Ms. McCarthy, is to appeal the finding to the Circuit Court.

ANALYSIS

Claimant seeks reimbursement of the “reasonable expenses” incurred in his defense against the abuse allegation pursuant to the Illinois Administrative Procedure Act (APA), 5 ILCS 100-10-55. The APA provides for litigation fees as follows:

[*150] In any contested case initiated by the agency that does not proceed to court for

judicial review…, any allegation made by the agency without reasonable cause

and found to be untrue shall subject the agency making the allegation to the

payment of reasonable expenses, including reasonable attorney’s fees, actually

incurred in defending against that allegation by the party against whom the case

was initiated.

5 ILCS 100/10-55(a). Thus, a claimant must prove both that the allegation was made without reasonable cause and was found to be untrue. See Zezulak v. State of Illinois, 65 Ill. Ct. Cl. 174, 176 (2012).

Claimant makes what he calls a legal argument concerning the validity of Rule 50.10. The DHS Act defines “physical abuse” as “an employee’s non-accidental and inappropriate contact with an individual that causes bodily harm.” 20 ILCS 1305/1-17(b). Rule 50.10 was revised to define “bodily harm” to include “[a]ny injury, damage or impairment to an individual’s physical condition, or making physical contact of an insulting or provoking nature with an individual.” 59 Ill. Adm. Code 50.10. Claimant argues that the revision of the Rule exceeded the scope of the DHS Act and is therefore, void.

While the Court will defer to an agency’s interpretation of its own rules, it will not give effect to an administrative rule that conflicts with the statutory act. See Cahokia Nursing and Rehab. Cen. v. State, 50 Ill. Ct. Cl. 278 (2007). Claimant correctly notes that, in drafting the Illinois statute on criminal battery, the legislature made an explicit distinction between contact that causes “bodily harm” and contact that is “insulting or provoking.” 720 ILCS 5/12-3(a). According to Claimant, if the legislature had intended for contact that is insulting or provoking to constitute physical abuse under the DHS Act, it would have done so with the same specificity.

For several reasons, the Court finds that including “contact of a provoking or insulting nature” as a form of physical abuse does not conflict with the legislature’s use of the term “bodily harm” in the DHS Act. First, Rule 50.10 is not defining activity with criminal consequences. Rather, it is implementing and enforcing the intent of the OIG portion of the DHS Act: To protect vulnerable individuals receiving services in state-operated facilities, 20 ILCS 1305/1-17(a). The legislature gave the agency broad authority to implement the intent of the Act. 20 ILCS 1305/1-17(g). Additionally, the legislature has amended the OIG portion of the Act since the revision and has not changed the physical abuse provision. It is worth noting that, while a distinction is drawn between the two types of battery, both constitute criminal activity. Under certain circumstances, contact that causes no harm but is insulting or provoking may constitute a Class 3 or even a Class 2 felony. 720 ILCS 5/12-3.05(h); See People v. McBrien, 144 Ill. App. 3d 489 (1986). Claimant’s legal argument regarding Rule 50.10 fails.

Claimant argues that, as a factual matter, the OIG’s investigation and substantiated determination were both unreasonable. As to the investigation, Claimant particularly faults the investigator for concluding after one minute that he could not communicate effectively with J.H. Claimant points to several individuals who reported an ability to communicate with J.H. through both verbal and non-verbal means. Claimant points to the results from Mr. Dugger’s analysis showing a difference in the percentage of substantiated findings depending on whether or not the [*151] alleged victim was interviewed. According to Claimant, the OIG further erred in failing to find as a mitigating circumstance that his action was in defense of others.

The Court finds that neither the investigation nor the substantiated finding in this case were without unreasonable cause within the meaning of the APA. It was not unreasonable to quickly terminate attempts to interview J.H. who, besides having difficulty communicating, was very likely to become distressed having to discuss Claimant with a stranger. In addition, the stipulated testimony of J.H. at the administrative hearing was far from an absolute exoneration of Claimant; thus, there is no reason to believe that an interview with J.H. would have led to a different finding.

It was not unreasonable that the OIG did not list “defense of others” as a mitigating circumstance. At the time of the OIG hearing, the evidence suggested that it was at least as likely that Claimant was trying to teach J.H. a lesson as to protect one student from another. Again, there is no reason to believe that finding “defense of others” to be a mitigating circumstance would have changed the substantiated finding.

Mr. Dugger’s statistical evidence, while provocative, fails to prove that there was anything unreasonable about the investigation or its results. The statistical differences between outcomes depending on whether or not the victims were interviewed are not especially remarkable. In many instances, the numbers are too small to have any significance. Most allegations of abuse (350 of 490) were made by the alleged victim; in those cases, the victim necessarily was interviewed. Also, in those cases, victim reporters are likely to be the least reliable witnesses and their allegations are among the hardest to prove.

When a third party reported the allegation against the worker, the OIG interviewed the victim less than half the time (40.7 percent). Thus, the failure to interview the victim in this case was not out of the ordinary. Among the 490 cases analyzed by Mr. Dugger, a substantiated finding of abuse was made against a worker who reportedly pulled on a victim’s ear and said, “That doesn’t feel good, does it?” But most importantly, the 490 cases are very different and cannot be meaningfully compared based on a few selected factors. The witnesses varied. Coworkers, such as those who witnessed and initially reported the allegation in this case, reasonably could be determined to be more credible and reliable than other witnesses. The alleged victims also varied, ranging from an individual with mild retardation and mood disorder to one with profound mental retardation and pervasive development disorder. The allegations ranged from placing an individual in a chokehold to knocking a hat off an individual’s head. Frequently, the reports of abuse were too vague to allow for any significant follow-up. Sometimes, the allegations were too outrageous to take seriously such as shooting an individual and pulling out all of an individual’s hair. Individuals known to make false accusations made several of the allegations. Some allegations were made and then rescinded by the alleged victim. In sum, whether the alleged victim was or was not interviewed, at least without controlling for other factors, does not provide a meaningful measure between the 490 cases.

Claimant also maintains that the evidence was insufficient to suggest that J.H. was provoked or insulted by Claimant’s contact. The nature of the conduct in these cases is judged by the context in which it occurred and the relationship between the parties. See People v. Fultz.

[*152] 2012 Ill. App. 2d 101101, ¶48. Thus, J.H. did not have to say or otherwise show that he was insulted or provoked. The investigator could reasonably conclude from the context that the contact was insulting and provoking.

Claimant also failed to prove the second prong of the APA test, namely that the OIG’s determination was found to be untrue. Claimant asserts that the Court’s summary judgment order found that Claimant was not required to prove at trial that the allegation was found to be untrue. However, the summary judgment order makes no finding, explicit or implicit, about Claimant’s burden to prove both prongs of the test. Moreover, a ruling on a motion for summary judgment is not a final, appealable order and, thus, has no binding effect. It cannot constitute, as Claimant alleges, the law of the case. See O’Rourke v. McIlvaine, 2014 Ill. App. 2d 131191, ¶15.

Claimant further argues that the ALJ’s decision that Claimant’s name should not be reported to the Registry constituted a finding that the allegation is untrue. To understand the meaning of the ALJ’s decision in Claimant’s case it is helpful to compare the case of Zezulak v. State of Illinois, 65 Ill. Ct. Cl. 174 (2012). The Claimant in Zezulak had been found guilty of “egregious neglect” and the DHS OIG notified him of its intent to report the finding to the Nurse Aide Registry. As in this case, the administrative hearing was held before ALJ Susan Bradshaw. In Zezulak, the ALJ found that the “OIG had substituted its own judgment in the absence of expert testimony.” The ALJ “concluded that the OIG failed to demonstrate ‘egregious neglect’ by a preponderance of the evidence, and therefore the matter would not be reported to the Nurse Aide Registry.” Id. at 176.

In this case, by contrast, ALJ Bradshaw decided the case should not be reported for reasons other than an absence of proof by the OIG. Quoting from AFSCME v. State, 124 Ill. 2d 246 (1988) and Dept. of CMS v. Valero, 401 Ill. App. 3d 1127 (2010), the ALJ stated.

“[T]he purpose of the Health Care Worker Registry is “to prevent those who have

been the subject of a substantiated finding of abuse from abusing again.” …While

recognizing that a public policy exists to protect disabled individuals… “[t]here is

simply no policy that mandates the discharge of all employees found guilty of

mistreatment of a service recipient when the arbitrator expressly finds that the

grievants were exemplary mental health employees, when punishment has been

imposed and when no nexus exists between the infraction and patient’s tragic

death.”

As to Claimant (Petitioner therein), the ALJ continued: “In this matter, it is not hard to determine that Petitioner poses no real risk to other services recipients. His record is outstanding. The act complained of was so minimal that it caused no reaction whatever by J.H. In fact, J.H. misses Petitioner, and J.H., the agency and other services recipients would be deprived of his innovation and beneficial services if his name was to be sent to the Health Care Worker Registry.” The decision concludes: “If Petitioner’s name and an abuse finding were to be sent to the Registry, evidence in this matter leads to the conclusion that this would be a loss to Petitioner, to J.H., to Futures Unlimited, and to other Futures Unlimited clients whose lives have been enriched through Petitioner’s presence.”

[*153] Thus, the ALJ very consciously did not find that the allegation of physical abuse by Claimant was untrue. Rather, she found that other circumstances warranted a decision not to report Claimant’s name. In this regard, the ALJ had discretion that the OIG lacked.

Claimant questions how, in a 50.90 hearing, he was supposed to obtain a finding that the allegation of physical abuse was untrue because the question at the hearing is whether to send a name to the Registry. The ALJ’s decision in Zezulak shows that an allegation may be found unsubstantiated in a 50.90 hearing. Claimant also could have appealed the finding of abuse to the Circuit Court under the Administrative Review Act, 735 ILCS 5/3-101 et. seq.

As noted in Zezulak, the Court is sympathetic to individuals such as Claimant who have to expend large sums of their own money to defend themselves. Nevertheless, Claimant has not met his burden to prove that he is entitled to litigation costs in this case. IT IS THEREFORE HEREBY ORDERED that the claim is denied.