author: Per Curiam Per Curiam Frederick, J.

text:
    (No. 91-CV-2003

      In re Application of Darlene Cox and Darnice Crump

      Order filed May 5, 1993.

      Opinion filed May 5, 1993.

      Opinion filed December 12, 1994.

    Devereux Bowly, for Claimants.
    Roland W. Burris, Attorney General (Charles A. Davis, Jr. and Paul H. Cho, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam

This cause coming to be heard on the motion of State to dismiss, due notice having been given, and the Court being fully advised in the premises, this Court hereby finds:

(1) That the Claimant is now deceased.

(2) That the Attorney General’s office has notified the Court of the Claimant’s death.

It is, therefore, hereby ordered that the motion to dismiss Claimant, Lafayette Cox, is cause number 91-CV-2003 be, and is hereby granted.

OPINION

Per Curiam

This claim arises out of an incident that occurred on February 15, 1991. Darlene Cox and Darnice Crump, wife and sister, respectively, of the deceased victim, Rohn Cox, seek compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1, et seq.

This Court has carefully considered the applications for benefits submitted on March 21, 1991, and December 31, 1991, respectively, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

(1) That on February 15, 1991, Rohn Cox, age 36, was a victim of a violent crime as defined in section 2(c) of the Act (740 ILCS 45/2(c)), to wit: first degree murder. 720 ILCS 5/9 — 1.

(2) That the crime occurred in Chicago, Illinois, and all of the eligibility requirements of section 6.1 of the Act have been met.

(3) That the Claimant, Darlene Cox, seeks compensation for funeral expenses and for loss of support for the victim’s minor child, Krystal Cox. The Claimant, Darnice Crump, seeks compensation for funeral and burial expenses.

(4) That according to section 10.1(c) of the Act, a person related to the victim is eligible for compensation for funeral expenses of the victim to the extent to which he has paid or become obligated to pay such expenses.

(5) That funeral and burial expenses were incurred as a result of the victims death in the amount of $2,094.60, $1,000 of which was paid by the victims now-deceased father, leaving a balance of $1,094.60. The Claimant, Darnice Crump, has paid $1,028 toward this amount, and the Claimant, Darlene Cox, has paid the remaining balance of $66.60.

(6) That section 8.1 of the Act states that no award of compensation shall be made for any portion of the applicants claim that is not substantiated by the applicant.

(7) That the Claimant, Darlene Cox, has not submitted adequate documentation to substantiate her claim that the victims minor daughter, Krystal Cox, was dependent upon the victim for support.

(8) That the Claimants have not received any reimbursements that can be counted as an applicable deduction under the Act.

(9) That the Claimants have complied with pertinent provisions of the Act and qualify for compensation thereunder.

(10) That the Claimant, Darlene Cox, is entitled to an award based on the following:

Paid funeral expenses $66.60

(11) That the Claimant, Darnice Crump, is entitled to an award based on the following:

Paid funeral expenses $1,028.00

It is hereby ordered that the sum of $66.60 (sixty-six dollars and sixty cents) be and is hereby awarded to Darlene Cox, wife of Rohn Cox, an innocent victim of a violent crime.

It is further ordered that the sum of $1,028 be and is hereby awarded to Darnice Crump, sister of the deceased victim, Rohn Cox.

OPINION

Frederick, J.

This claim arises out of an incident that occurred on February 15, 1991. Darlene Cox, wife of the deceased victim, Rohn Cox, and Darnice Crump, his sister, seek compensation for funeral and burial expenses. Darlene Cox also seeks compensation for loss of support for the victims minor child, Kiystal Cox, pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the “Act.” 740 ILCS 45/1, et seq.

On May 5, 1993, this Court issued an order finding that Rohn Cox was the victim of a violent crime. However, the Court denied the claim for loss of support on the basis that Claimant, Darlene Cox, did not submit adequate documentation to substantiate her claim that the victim’s minor daughter, Krystal Cox, was dependent upon the victim for support. The Court did order that Darlene Cox be awarded $66.60 and that Darnice Crump be awarded $1,028 for funeral expenses.

On June 3, 1993, within 30 days of the denial order, Claimant, Darlene Cox, requested in writing that this case be heard before a Commissioner pursuant to section 13.1(a) of the Act.

On April 8, 1994, a hearing was conducted before the Commissioner. Claimant, Darlene Cox, appeared and testified. Also present at the hearing were the minor child’s grandmothers, Carrie Smith and Arlena Cox, who testified on behalf of Claimant.

Claimant, Darlene Cox, testified that Krystal Cox was the daughter of Rohn Cox. In support, she offered into evidence a copy of a birth certificate indicating that Krystal Ki’ana Cox was born to Darlene Denise Smith and Rohn Cox on November 19,1985.

Darlene Cox testified that she was familiar with Rohn Cox’s business practices and where he worked at the time of his death. Claimant’s Exhibit No. 1, which is an application for employment dated February 5, 1990, indicates that Mr. Cox had one child.

To support her claim that Rohn Cox supported Krystal, Claimant submitted into evidence a copy of a W-4 form indicating that Mr. Cox had one other dependent including himself. Darlene Cox further testified that the other dependent was their daughter, Krystal Cox. Also presented was Rohn Cox’s 1988 tax return, wherein he claimed Krystal Cox as his dependent.

When asked how Rohn Cox supported Krystal Cox, Claimant, Darlene Cox, testified that, “he would buy her clothes. And he would give me money to go shopping and buy whatever she needed.” Ms. Cox testified that during a period when Rohn had a job, he would give her money on a regular basis, with a regular basis being every two weeks. At the time of his death, Rohn Cox was working and regularly supporting the child. Darlene Cox testified that a week before his death, he made a payment to her.

Ms. Carrie Smith, Claimant’s mother, testified that she worked with Mr. Cox at J & S Professional Associates prior to his death. Admitted into evidence was Rohn Cox’s 1990 W-2 statement from J & S Professional Associates. Rohn Cox worked at J & S for about one year.

Ms. Arlena Cox testified that she was aware that her son, Rohn Cox, was supporting Krystal. She testified that on several occasions when she was with Rohn, he would cash his check and spend money on Krystal and give money to his wife. Arlena Cox testified that on a regular basis, her son would give money to buy clothes and food to Darlene every time he got paid, which was every two weeks.

Mrs. Cox stated that her son, Rohn, had a very good relationship with his daughter.

Mrs. Carrie Smith testified that during the five years that Krystal was alive before her father died, she was aware that Rohn Cox supported his daughter. On several occasions if Rohn Cox was unable to see his daughter, he would give money to Mrs. Smith to give to Darlene for his child. Mrs. Smith stated that Rohn bought his child clothes and food and would send her money every pay day.

Darlene Cox stated that there was no set figure as to how much money Rohn gave her to support Krystal but on the average it was around $75 every two weeks. Mrs. Smith agreed with the $75.

Claimant presented an employer report indicating the net bi-weekly earnings of the decedent for the six months prior to decedent’s death as follows:

September 4,1990 $142.57

September 18,1990 249.79

276.14 October 2,1990

231.00 October 16, 1990

319.82 October 30, 1990

November 13,1990 269.20

November 27,1990 281.53

December 11, 1990 278.91

December 25,1990 258.72

January 8, 1991 230.07

January 22, 1991 300.02

February 5,1991 326.27

February 19, 1991 173.84

The applicant for benefits under the Crime Victims Compensation Act has the burden of proving loss of support by a preponderance of the evidence. (In re Application of DeBartolo (1984), 36 Ill. Ct. Cl. 442.) Dependency must be proved by a preponderance of the evidence. (In re Application of Sole (1976), 31 Ill. Ct. Cl. 713.) From the evidence in the record, we infer that it was more probable than not that the victim was contributing to the support of his daughter, Krystal Cox, at the time of the crime.

This Court has also held that a claimant must prove by a preponderance of the evidence that the victim earned money during the six months prior to his death. (In re Application of Sole, supra.) Having reviewed the record, we find there is sufficient evidence presented to prove it was more probably true than not true that the victim had earnings during the six-month period prior to his death.

The evidence is less clear on the amount contributed by the victim for the support of Krystal Cox. (In re Application of Crissie (1992), 44 Ill. Ct. Cl. 443.) The Act provides for loss of support compensation for dependents of the victim. Krystal Cox is the dependent of the victim. The Act further states that loss of support shall be determined on the basis of the victims average monthly earnings for the six months immediately preceding the date of the injury or on $500 per month, whichever is less. In re Application of Nancy (1983), 36 Ill. Ct. Cl. 437.

We find that using the average monthly earnings of the victim for the six months prior to his death and applying the statutory guidelines for child support of 20% of net income for one child that the victims child support obligation would have been $111.20 per month. 750 ILCS 5/505.

Krystal was dependent upon Rohn Cox for support. According to the testimony, the sums provided for support of Krystal may have averaged $75 every two weeks. Claimants exhibit would indicate that $75 from Rohns fluctuating net earnings for the six months preceding his death would be between 25% to 50% of his net earnings. The Court finds it is not reasonable to believe he paid 25% to 50% of his net income for support.

Krystal will become an adult on November 19, 2003. She was five years and three months old when her father died. She would have been legally dependent on him for 12 years and nine months (663 weeks). The Court finds that Rohn Cox was providing support to his daughter in the sum of $25.66 per week.

The lost support by Krystal for 663 weeks would be $17,012.58. The Court has previously awarded $66.60 to Darlene Cox and $1,028 to Damice Crump.

It is the order of the Court that Krystal Cox, the dependent daughter of the victim, be awarded $17,012.58 for loss of support.

The Claimants interest would be best served if the award hereunder would be paid pursuant to the installment provision of section 11.1 of the Act. In re Application of Shepherd (1984), 36 Ill. Ct. Cl. 515.

It is therefore hereby ordered that the sum of $17,012.58 be and the same is hereby awarded to Darlene Cox, mother of Kiystal Cox, minor child of Bohn Cox, an innocent victim of a violent crime, to be paid and disbursed as follows:

(a) $5,012.58 to be paid to Darlene Cox in a lump sum for the use and benefit of Kiystal Cox;

(b) Eighty equal monthly payments of $150 to be paid to Darlene Cox for the use and benefit of Kiystal Cox;

(c) In the event of the death or marriage of the Claimant or the Claimants child, it is the duty of the Claimant or her personal representative to inform this Court in writing of such marriage or death for the purpose of the possible modification of the award.


source: Caselaw Access Project

author: Sommer, C.J. Sommer, C.J.

license: Public Domain

text:
    (No. 92-CV-0426

      In re Application of Brenda Lanham

      Opinion filed April 27, 1994.

      Order on petition for rehearing filed August 9, 1994.

    Gary L. Peterlin, for Claimant.
    Roland W. Burris, Attorney General (Paul H. Cho, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Sommer, C.J.

This cause arises from the Claimants request for review of this Courts decision of April 30, 1993, under the Crime Victims Compensation Act (hereinafter referred to as the Act), and the Claimants motion for waiver of the lien created by section 17 of the Act and attorney fees.

In this claim, the deceased victim left surviving a wife, Brenda Lanham, and three minor children. Due to the fact that the filing was beyond the statute of limitations, Brenda Lanham was excluded from any award, but the minor children remained eligible. 740 ILCS 45/6.1.

As the victim had an income in excess of $1,000 per month, the loss of support as measured by the Act was determined to be $1,000 multiplied by the 153 months of dependency remaining to the youngest minor. (740 ILCS 45/2.) Therefore, the loss of support as determined under the Act was $153,000.

The victims wife, Brenda Lanham, received the proceeds of a life insurance policy in the amount of $160,000. Under the terms of the Act the amount of the life insurance policy, minus $25,000, was treated as an applicable deduction under the Act. (740 ILCS 45/10.1.) After making this deduction ($153,000-$ 135,000), the Court determined the amount of the award to be $18,000.

In her request for review, the Claimant argues that since she did not receive any award under the Act, the life insurance, which was payable to her, is hers and may not be used as a deduction from the loss of support experienced by the minor children.

Section 10.1(e) of the Act provides that:

"An award shall be reduced by the amount of the benefits, payments or awards ° 0 0 except 0 “ 5 the net proceeds of the first $25,000 of life insurance that would inure to the benefit of the applicant *'*or any other person dependent for tire support of a deceased victim ° ° has received 0 °

The above section of the Act essentially states that life insurance shall be deducted from an award where the benefits would go to the applicant or other persons dependent for support by the deceased victim.

Brenda Lanham is the applicant in this claim, though it could be argued that she was acting only as a representative of the minor children, who are the trué applicants. However, had she not filed late, she would have been found to be dependent for support on the deceased. As evidence of such dependency, Brenda Lanham was found as a dependent in the dram shop action filed as a result of the victims death. Therefore, we find that the proceeds of the life insurance went to the benefit of Brenda Lanham who was the applicant and also dependent for the support on the deceased victim, and such proceeds may be deducted from the award. Though dependent upon the deceased victim, Brenda Lanham was found ineligible on other grounds.

Had Brenda Lanham qualified under the Act, the maximum award of $25,000 would have been received due to her potential of many years of dependency. The childrens dependency is limited to the time that they are minors, in this cáse 153 months.

A dram shop action was instituted as a result of the victim s death, and awards were made to Brenda Lanham and the three minor children. Though the dram shop action was settled by an order entered on April 8, 1991, there seems to be no notification of such in the Courts file, or in the application by the Claimant. The application for benefits under the Act was filed on September 3, 1991.

The Claimant is requesting the Court to waive the lien created by the dram shop recovery under the authority of In re Application of Setuko Cobb (1992), 44 Ill. Ct. Cl. 438. The holding in Cobb is that when the circuit court award does not compensate the Claimant fully, as defined by the Act, the lien created by the circuit court award may be waived. In this claim, because of the life insurance, the Claimants were fully compensated as defined by the Act. The Act measured the loss of support to the children at $153,000. Thus, this claim is more similar to In re Application of Lavorini (1989), 42 Ill. Ct. Cl. 390, where the applicant was fully compensated by the circuit court and the Court of Claims award for the loss as defined by the Act. Therefore, we cannot waive the lien in the present claim.

The matter of the waiver of the lien is more well understood, if the situation is reversed. That is, the situation where recoveries from third-party sources are made before the crime victims award is made. In that situation, the third-party recoveries are deducted in full or part against the amount of loss as determined by the Act. The lien simply recovers these deductions when the crime victim s award is made first.

The fact that a Claimant may have actual damages exceeding those compensable under the Act is not material, as this Court is empowered to grant only those awards as authorized by the language of the Act.

The Court notes that the dram shop recovery was not reported on the application filed in this Court; therefore, no adjustment of the award was made due to the dram shop award, some of which accrued to the children, and would be deductible under section 10 — 1(e) of the Act. This, however, is a matter for the Attorney General to consider.

Finally, section 12 states that fees may be charged to the Claimant when the attorney attends a hearing and the Court determines such fees as reasonable. The Claimants attorney did attend the oral argument. However, in light of the situation in this claim, this Court will only approve actual reasonable expenses to attend the hearing, if the Claimant’s attorney petitions therefore.

It is therefore ordered that the Claimant’s request for additional compensation and to discharge the lien is denied and the request for attorney fees is granted in the form of actual reasonable expenses to attend the hearing only, provided the Claimant’s attorney wishes to apply for same.

ORDER

Sommer, C.J.

This cause coming to be heard on the Claimant’s motion to reconsider, which we will consider to be a petition for rehearing of an opinion issued April 27, 1994, due notice having been given, and this Court being fully advised, finds that Court of Claims Regulations section 790.220 requires that petitions for rehearing “shall state briefly the points supposed to have been overlooked or misapprehended by the Court, with authorities and suggestions concisely stated in support of the points.”

The Claimant in her motion states:

“1. The Opinion is erroneous based on law.
2. The Opinion is erroneous based on fact.”

Such conclusory statements as made by the Claimant are not sufficient under rule 22.

It is therefore ordered that the Claimants motion to reconsider is denied.


author: Per Curiam Frederick, J.

text:
    (No. 92-CV-0761

      In re Application of Catherine Dixon

      Order filed July 22, 1992.

      Opinion filed December 2, 1994.

    Legal Asst. Foundation of Chicago (Devereux Bowly, of counsel), for Claimant.
    Roland W. Burris, Attorney General (Charles A. Davis, Jr., Assistant Attorney General, of counsel), for Respondent.
   ORDER

Per Curiam

This claim arises out of an incident that occurred on September 19, 1991. Catherine Dixon, mother of the deceased victim, Kevin Dixon, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1, et seq.

This Court has carefully considered the application for benefits submitted on October 18, 1991, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

(1) That on September 19,1991, the victim was shot by an unknown offender. The incident occurred near 1559 East 76th Street, Chicago, Illinois. Police investigation revealed that as the victim was waiting for the traffic light to change, he became involved in a verbal altercation with the occupants of the vehicle that had stopped next to his automobile. The victim then exited from his vehicle, armed with a baseball bat, and swung the bat in the direction of the window of the automobile in which the offender was a passenger. The offender then shot the victim. The offender has not been apprehended.

(2) That section 10.1 of the Act indicates factors used to determine entitlement to compensation. Specifically, section 10.1(d) of the Act states that an award shall be reduced or denied according to the extent to which the victims acts or conduct provoked or contributed to his injury or death, or to the extent to which any prior criminal conviction or conduct of the victim may have directly or indirectly contributed to the injury or death of the victim.

(3) That it appears from the investigatory report and the police report that during a verbal altercation, the victim swung a baseball bat in the direction of the passenger window of an automobile in which the offender was a passenger. The offender then shot the victim.

(4) That the victim’s conduct contributed to his death to such an extent as to warrant that the Claimant be denied entitlement to compensation.

(5) That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby denied.

OPINION

Frederick, J.

This claim arises out of an incident that occurred on September 19, 1991. Catherine Dixon, mother of the deceased victim, Kevin Dixon, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the “Act.” 740 ILCS 45/1, et seq.

This Court originally considered the investigatory report filed by the office of the Attorney General and preliminarily denied the claim pursuant to an order dated July 22, 1992. The Claimant requested a hearing and an opportunity to present evidence.

The cause was tried before Commissioner Turner on January 22, 1993. Neither party filed a brief, although the Commissioner entered a docket entry on January 22, 1993, that “Parties will file briefs 60 days from the date they receive a hearing transcript.” Commissioner Turner did not file a Commissioners report prior to his resignation as a Commissioner.

The Court originally denied the claim as the Court found, based on the investigatory report and police report, that the victim swung a baseball bat in the direction of the passenger window of the vehicle in which the offender was a passenger. The offender then shot the victim. The Court, relying on section 10.1(d) of the Act, denied the award as the victims acts or conduct provoked or contributed to his death.

As a preliminary matter, we find that police reports are admissible in Crime Victims Compensation Act cases. The statute makes it clear that all documents and information are to be considered by the Court even if that evidence would not be admissible in a court of law. Police reports, while not generally admissible in the circuit court or in the Court of Claims in general claims cases, nonetheless are admissible in Crime Victims Compensation Act cases because of the statutory language. Therefore, while the Commissioner found the reports inadmissible, we can rule in this case because the Commissioner made the police reports part of the record. We will consider the police reports in making our decision.

Claimant, Catherine Dixon, testified she was the mother of the victim, Kevin Dixon. She was called to the hospital on the afternoon of September 19, 1991. Her son was dead from an apparent gunshot wound to the head from a small handgun. The police told her that her son had been shot in a drive-by shooting. Mrs. Dixon was not present at the shooting. She did not know her son to keep a baseball bat in his car and had never seen him threaten anyone with a baseball bat. The gunshot to her son that she saw was by the eyebrow.

The Claimant also called Reverend Joseph J. Rainey to testify on her behalf. On September 19, 1991, a member of the church came to him and told him that Kevin Dixon had been killed over on 76th Street. Reverend Rainey went to the scene of the shooting. When he arrived, the body had been moved. There were people standing around. Reverend Rainey saw Kevins car and a couple of police officers around it. The car was parked against the curb. He saw no baseball bats. He was not present when Kevin was killed. The police report lists the offense as homicide/lst degree murder. The report also indicates the victim sustained a single gunshot wound to the right side of the head. The victim was shot while standing between the two cars and fell to the ground outside his drivers door. A baseball bat was recovered at the scene. The report lists witnesses as Sharon L. Jones and Robert A. Warmack, Johnny Smith, Michelle Davis-Balfour, and Johnny Kenniel. Sharon Jones told the police investigator that on September 19, 1991, Kevin Dixon drove up and asked her and her boyfriend, Johnny Smith, if they would follow him so he could drop his car off to be fixed and they would then give him a ride home. They agreed and followed Kevin Dixon. They were headed east on 76th Street and stopped at a stoplight. To the left of Kevin was a green Chevrolet. She saw Dixon reach into the back seat and then get out of the car. Kevin was looking toward Sharon Jones. She heard a shot and saw Kevin fall on his face alongside of his car. Just prior to the shooting, she saw the passenger of the offenders vehicle lean toward the driver. She saw the passenger shoot Kevin. Robert Warmack was sitting in his car approximately four cars behind Kevins car. He heard a shot. He saw the victim fall to the ground. The offenders vehicle then fled south on Stony Island. Neither witness Jones nor witness Warmack could recall seeing the victim with a bat in his hand.

Michelle Davis Balfour was Kevin Dixons girlfriend. She apparently was not present during the incident. The police evidently were not able to locate Johnny Smith [Kenniel] on September 19, 1991. The report indicates a baseball bat was recovered on the scene alongside the victim. The reports also indicate that the victim sustained a gunshot wound to the right side of the head approximately three inches above the right ear.

Johnny Kenniel, who was referred to as Johnny Smith previously herein, was interviewed on September 20, 1991. He indicated he was a passenger in the Sharon Jones vehicle. He observed Kevins vehicle stopped at the stoplight with the offenders vehicle next to it. Their vehicle was right behind Kevins vehicle. He observed a verbal altercation between the people in front of him. He saw Kevin reach into his rear seat and then exit from his vehicle with a baseball bat in his hands. The victim then swung the bat in the direction of the front passenger window of the vehicle stopped to the north of the victim. The passenger in the vehicle then leaned toward the driver and fired one shot from a handgun at Kevin. Kevin then fell to the ground. Kenniel then chased the other vehicle but lost it. He went to the hospital and then a liquor store to calm his nerves.

The Crime Victims Compensation Act is a secondary source of compensation. (In re Application of Lavorini (1989), 42 Ill. Ct. Cl. 390.) Section 4.1 of the Act requires the Attorney General to investigate all claims and prepare and present a report of each applicant’s claim to the Court of Claims prior to the issuance of an order by the Court. The Attorney General is also charged with the duty to represent the interests of the State of Illinois in any hearing before the Court of Claims. Section 8.1 of the Act indicates that no award of compensation shall be made for any portion of the applicant’s claim that is not substantiated by the applicant.

Section 9.1 of the Act states that in determining whether an applicant is entitled to compensation, the Court of Claims shall consider the facts stated in the application, other material and information submitted, and the report of the Attorney General. Section 12.1 allows for awards without hearing and such procedure disposes of the vast majority of these crime victims claims.

As applicable to the present case, section 13.1 of the Act states:

“a) A hearing before the Commissioner of the Court of Claims shall be held for those claims in which: o o o
(3) a claim has been disposed of without a hearing and an applicant has been denied compensation or has been awarded compensation which he thinks is inadequate and he petitions the Court of Claims for a hearing within 30 days of the date of issuance of the order sought to be reviewed. The petition shall set forth the reasons for which review is sought and a recitation of any additional evidence the applicant desires to present to the Court. 0 * *
b) At hearings held under this Act before Commissioners of the Court of Claims, any statement, document, information or matter may be received in evidence if in the opinion of the Court or its Commissioner such evidence would contribute to a determination of the claim, regardless of whether such evidence would be admissible in a court of law.”

We could dispose of this claim solely on the basis that Claimant failed to file her petition within 30 days of the issuance of the Court’s order denying the claim. The Courts order denying the claim was entered on July 22, 1992. The petition for hearing was filed August 26, 1992. However, because of the arguments raised by counsel in the arguments before the Commissioner, we choose to make some additional observations. The late-filed petition filed by Claimant indicated a request for a hearing. It further indicated that Claimant felt the decision was based on hearsay and that there was evidence the victim was shot in the back of the head and therefore not a threat to anyone.

On July 22, 1992, the Court made certain findings based on the police reports and investigatory reports. The only issues before the Commissioner were whether the victims conduct contributed to his death to such an extent that the Claimant be denied entitlement to compensation for failure to meet a condition precedent for compensation under the Act and the amount of the funeral bill. The Claimant failed to present any evidence which touched on these issues even though several eyewitnesses were listed in the police reports. The Claimant was granted the opportunity to present medical evidence, forensic evidence or personal witnesses to offer any evidence contrary to the findings made by the Court. Claimant offered no such evidence. In re Application of Lavorini (1989), 42 Ill. Ct. Cl. 390.

The Claimant had the burden of proof to prove her claim and failed to do so. (In re Application of Bavido (1992), 44 Ill. Ct. Cl. 449.) Wherefore, the petition having been untimely filed and Claimant having offered no evidence contrary to the record herein which supports the conclusion that the victims conduct contributed to his death as previously found by this Court, this claim is denied.


author: Per Curiam Jann, J. Jann, J.

text:
    (No. 93-CV-0449

      In re Application of Edgar J. Dones

      Order filed March 26, 1993.

      Opinion filed January 12, 1995.

      Order on petition for reconsideration filed May 3, 1995.

    Cheryl B. Dworkin, for Claimant.
    Roland W. Burris and Jim Ryan, Attorneys General (Charles A. Davis, Jr., and Paul H. Cho, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam

This claim arises out of an incident that occurred on September 21, 1991. The Claimant, Edgar J. Dones, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1, et seq.

This Court has carefully considered the application for benefits submitted on August 18, 1992, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

(1) That on September 21, 1991, the Claimant was shot. The incident occurred at a vacant warehouse located at 701 North Kilpatrick, Chicago, Illinois. The Claimant refused to provide any information about the incident to the investigating officer. As a result, the Chicago police department closed its investigation.

(2) That section 6.1(c) of the Act states that a person is entitled to compensation under the Act if the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant.

(3) That it appears from the police report that the Claimant declined to cooperate fully with law enforcement officials in the apprehension and prosecution of the assailant, in that he refused to provide any information about the incident to the investigating officer.

(4) That by reason of the Claimants refusal to fully cooperate with law enforcement officials in the apprehension and prosecution of the assailant as required by the Act, he is not eligible for compensation thereunder.

(5) That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby denied.

OPINION

Jann, J.

Claimant seeks to recover medical expenses under the Crime Victims Compensation Act, hereinafter referred to as the “Act.” (740 ILCS 45/1, et seq.) Claimants application was denied by order of the Court on March 26, 1993. The denial of the claim was based upon Claimants failure to fully cooperate with law enforcement officials in the apprehension and prosecution of the assailant who shot Claimant.

Claimant requested a hearing in a timely manner and a hearing was held before Commissioner Phillip M. Turner on March 11,1994.

Claimant testified that on November 9, 1981, he had been out drinking in several bars until closing time sometime between 2:00 a.m. and 4:00 a.m. and proceeded to a motorcycle “clubhouse” at 600 N. Kilpatrick, Chicago, Illinois. (Note the actual date of the incident per police report and hospital records was September 21, 1991.) Claimant was a member of the “D.C. Eagles” motorcycle club. The clubhouse belonged to another motorcycle club where Claimant did not actually know anyone. Claimant continued drinking for an unspecified amount of time and a number of persons unknown to Claimant came into the clubhouse after bars in the area closed.

As Claimant stood in a group of people he heard one or two shots and collapsed. He was wounded in the abdomen. His memory of the incident was unclear but he recalled hearing someone say “better take this guy to the hospital.” A person unknown to Claimant helped him up and out of the club into a car. He was taken to Our Lady of the Resurrection Hospital where surgery was performed and he remained in intensive care for three days. Claimant was unarmed at the time of the shooting and stated there had been no argument or altercation prior to the shooting.

Claimant was heavily medicated following surgery and had tubing in his nose and mouth, making communication virtually impossible. Claimants mother and sister both testified that Claimant was unable to recognize them or speak for several days after surgery.

Claimant’s attorney elicited testimony from Claimant, his mother and sister which clearly indicated Claimant was unable to discuss the incident with police officers who came to the hospital to investigate the case.

The police report and supplement report were introduced and admitted into evidence. Claimant’s attorney disputed several aspects of the reports. Claimant’s name was misspelled on two parts of the report, which resulted in considerable confusion when Claimant’s attorney subpoenaed the report. It appears from testimony that this spelling error may have also resulted in problems Claimant’s parents had in contacting the police to follow up on the investigation. We find Claimant made reasonable attempts to cooperate with the investigation in this matter.

The police reports indicate that an emergency medical technician at the hospital observed. Claimant’s arrival at the hospital and took down the license number of the car which had dropped him off. A computer check disclosed that the car was owned by Martin Joyce. Mr. Joyce was interviewed by police.

The police report indicates that “Mr. Joyce was at a party in a vacant warehouse at 701 N. Kilpatrick. The warehouse was being used as a clubhouse for the D.C. Eagles Motorcycle Gang. The warehouse was divided into three rooms. Joyce was in the bar area and the victim was in the backroom where there was a pool table. Joyce heard a gunshot and then saw a male white walk from the backroom with an automatic handgun in his hand.” Joyce drove the victim to the hospital.

Joyce, unfortunately, was not called by Claimant or the State to testify at the hearing. His testimony would have been most helpful in ascertaining the events of the morning in question. Claimant did not know Joyce and had never met him until the incident. Claimant never spoke to Joyce after the incident. Joyce did not know the person who shot Claimant.

Although Claimants injuries are most regrettable, we must deny his claim. Claimant has failed to present competent evidence that a violent crime as defined by section 2(c) of the Act was committed. Claimant admitted he did not know what happened when he was shot. No other witnesses testified to support the contention that Claimant was intentionally shot. We have no evidence to determine whether the offender’s actions constituted reckless conduct under 720 ILCS 5/12 — 5.

Claimant has also failed to substantiate his medical expenses. He testified that the bills totaled "around $30,000” but no bills were introduced into evidence or appear as part of the Court’s file.

Claimant’s attorney has also petitioned the Court for fees in the amount of $2,500. Pursuant to section 12 of the Act, counsel may not receive fees for his services in preparing or presenting the application before the Court of Claims. He may however, charge fees for representing the applicant at a hearing but only in such amount as the Court determines to be reasonable. Claimant’s attorney appeared twice for hearings in this matter. We find Claimant’s attorney is entitled to $750 in fees.

This claim is hereby denied and dismissed with prejudice.

ORDER

Jann, J.

This cause comes on to be heard on Claimants motion to reconsider, styled as “Motion to Vacate Order and for New Trial and Oral Argument.” Respondent has not filed a response.

Claimant sought compensation pursuant to the Crime Victims Compensation Act (the Act), 740 ILCS 45/1, et seq. Claimants claim was denied by order of March 26, 1993. Claimant requested a hearing which was held on March 11, 1994. At said hearing Claimant provided evidence that he had, in fact, cooperated with law enforcement in the investigation and apprehension of his assailant to the best of his abilities. However, Claimant was unable to provide evidence that a violent crime as defined by the Act occurred. His testimony also raised questions as to whether Claimant was engaged in lawful activity (i.e., possible trespass in an abandoned warehouse), at the time of his injury.

Claimants testimony indicated that he did not know his assailant or anyone else at the scene of the incident. The person who took Claimant to the hospital, Martin Joyce, was unknown to Claimant. Mr. Joyce told police investigators he did not see what happened as he was in another room. Joyce did not know the person who shot Claimant. Claimants claim was denied by opinion of January 12, 1995, for failure to meet a condition precedent under the Act.

Claimant objects to the Courts denial of the claim based upon failure to meet an additional condition precedent under the Act. Claimant has misinterpreted the Act. Each and every condition precedent must be met and substantiated by Claimant in order to recover. Claimant is responsible for proving each element of his case and failure to prove any element is grounds for denial. Claimants argument of surprise is further disingenous as the hearing transcript indicates that the Commissioner and Claimants counsel, Claimant and the assistant Attorney General engaged in a discussion of the question of whether there was competent evidence of the commission of a violent crime as defined by the Act. Claimant offered no evidence in the discussion at hearing or in his petition for reconsideration which could substantiate his claim other than a vague statement that “testimony” would show reckless conduct was committed. No person was identified to provide said testimony nor was there any offer of proof by affidavit or otherwise.

Section 16 of the Act, “Modification of dispositions — Newly discovered facts” provides:

“« 0 0 No hearing need be held, however, unless the written request states facts which were not known to the applicant or by the exercise of reasonable diligence could not have been ascertained by him at the time of the entry of the order sought to be modified and which would have directly affected the determination of whether or not compensation should be awarded and, if so, the amount of that compensation.”

Based upon the foregoing, Claimants petition for reconsideration is hereby denied.


text:
    (No. 93-CV-1843

      In re Application of Mary Mandley

      Order filed April 30, 1993.

      Opinion filed January 30, 1995.

    Mary Mandley, pro se, for Claimant.

      Roland W. Burris and Jim Ryan, Attorneys General (Charles A. Davis, Jr. and Paul H. Cho, Assistant Attorneys General, of counsel), for Respondent.
   ORDER

Per Curiam

This claim arises out of an incident that occurred on August 8,1992. The Claimant, Mary Mandley, seeks compensation pursuant to the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1, et seq.

This Court has carefully considered the application for benefits submitted on January 15, 1993, on the form prescribed by the Attorney General, and an investigatory report of the Attorney General of Illinois, which substantiates matters set forth in the application. Based upon these documents and other evidence submitted to the Court, the Court finds:

(1) That on August 8, 1992, the Claimant was assaulted by two offenders who were not known to her. The incident occurred at 6436 North Greenview, Chicago, Illinois. Police investigation revealed that the Claimant went to the offenders home after her dog had bitten the offenders daughter. While attempting to discuss the incident, the Claimant became involved in an argument with the offender. During this argument, the offender and her son assaulted the Claimant, which resulted in her falling down the offenders front porch stairs. The Claimant sustained a broken wrist and left the offender’s home. Charges of battery were placed against the offender and her son, but were later dismissed when the Claimant failed to make court appearances.

(2) That section 6.1(c) of the Act states that a person is entitled to compensation under the Act if the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant.

(3) That it appears from an investigation by the Attorney General’s office that the Claimant declined to cooperate fully with law enforcement officials in the apprehension and prosecution of the assailant, in that she failed to pursue the criminal prosecution of the offenders by not appearing in court. As a result of these actions, the criminal charges against the offenders were dismissed.

(4) That by reason of the Claimant’s refusal to fully cooperate with law enforcement officials in the apprehension and prosecution of the assailant as required by the Act, she is not eligible for compensation thereunder.

(5) That this claim does not meet a required condition precedent for compensation under the Act.

It is hereby ordered that this claim be, and is hereby denied.

OPINION

Frederick, J.

Claimant, Mary Mandley, seeks compensation for medical expenses pursuant to the Crime Victims Compensation Act (740 ILCS 45/1, et seq), hereinafter referred to as the “Act.” The claim arises out of an incident wherein Claimant has alleged that she was the victim of a battery that occurred on August 8,1992. This court initially issued an order on April 30, 1993, denying the claim. The Court, relying on the investigatory report, denied the claim because the Claimant decided not to cooperate fully with law enforcement officials in the apprehension and prosecution of the assailant, in noncompliance with the requirement of section 6.1(c) of the Act. 740 ILCS 45/6.1(c).

On June 7, 1993, more than 30 days after the Court order denying the claim, Claimant requested a review by way of letter. Her letter states that she dropped the charges because she, “did not have the money to keep going to court.” She wrote that she could not keep closing her day care and that she was also going to the doctor and therapy five times a week. She was also having domestic problems. While we could deny the claim solely on the basis that the request for review was not timely filed, we will discuss the testimony of Claimant.

A hearing was conducted on April 8, 1994, before the Commissioner, at which Claimant appeared and testified. Claimant testified that the circumstances of her life kept her from pursuing the prosecution of the offender. The circumstances she raises are as follows:

(a) Claimant was self-employed, taking care of children and could not afford paying someone to cover for her;

(b) Claimant was going through a divorce and had an order of protection in place (not against the offender on this battery);

(c) Claimant was going through therapy for her broken wrist;

(d) Claimant went to two court dates and she was exhausted; and

(e) Claimant was afraid the offender, a 16- to 17-year-old male living two doors from her, might take revenge on her son.

The incident which led to the battery arose because of a dispute over a dog. Claimants wrist was broken and she was in a cast. Claimant operates a day care service (of three or four children) and does not have any employees. She pressed charges but when she went to court, the case was continued.

Claimant did not have health insurance and was not receiving Medicaid or other public aid. She presented two bills from Dr. Dennis B. Drennan in the sum of $700 and $125. Claimant is also still seeking the five expenses itemized in her application. She also had her glasses crushed. None of the bills have been paid.

On cross-examination, Claimant stated that when she told the “public defender” (an attorney she described as her attorney) that she could no longer make the court appearances, he went before the judge and said Claimant was dropping the charges. The charges were dropped.

Section 6.1(c) of the Act specifies that a person is entitled to compensation if the applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant. It is obvious that the attendance of multiple court appearances in a criminal proceeding present hardship, and inconvenience, to numerous victims or complaining witnesses. It may detrimentally impact one person more than others. However,

the Act requires a person to cooperate fully and does not recognize any exceptions based upon circumstances. In this case it appears that Claimant not only allowed the charges to be dropped, but agreed to the charges being dropped at one of the court proceedings.

The Crime Victims Compensation Act is intended to aid and assist crime victims under certain circumstances to receive compensation to help pay for the damages they have sustained but the rules and procedures applicable to such claims must be followed before the Court can award benefits. (In re Application of Geraghty (1989), 42 Ill. Ct. Cl. 388.) The Legislature provided the rules and this Court is bound by the acts and all procedures set forth by the Legislature before the Court can award any benefits under the Act. (Geraghty at 390.) The legislature has provided the rule that a claimant must cooperate fully with law enforcement' officials in the apprehension and prosecution of the assailant. (In re Application of Dymon (1992), 45 Ill. Ct. Cl. 460.) This Court cannot amend or modify the requirement of full cooperation in the prosecution of the assailant. It is up to the Legislature to create exceptions, not this Court.

It is clear from the testimony there was not full cooperation in the prosecution of the offender by the Claimant in this case. While we are sympathetic to the plight of Claimant, we are constrained to strictly follow the law. The Claimant has failed to prove by a preponderance of the evidence that she has met all conditions precedent for an award under the Act. For the foregoing reasons, it is the order of this Court that the claim be and hereby is denied.


author: Sommer, C.J.

text:
    (No. 94-CV-2026
    Leon Reams, Claimant, v. The State of Illinois, Respondent.

      Opinion filed May 5, 1995.

    Leon Reams, pro se, for Claimant.
    Jim Ryan, Attorney General, for Respondent.
   OPINION

Sommer, C.J.

This claim is before the Court on a petition for extension of time to file a claim filed by Leon Reams under the provisions of the Crime Victims Compensation Act, hereafter referred to as the Act. 740 ILCS 45/1, et seq.

An order was entered by this Court assigning this claim to a Commissioner to determine the facts surrounding the Claimants failure to file a claim within a year of the date of the crime as required by section 6.1(a) of the Act. A hearing was held before Commissioner Clark on December 8, 1994. The evidence consists of the Claimants testimony and bills submitted by the Claimant documenting expenses incurred for medical treatment.

The Claimant testified that he was shot on February 13, 1990, on Highland Avenue in Alton, Illinois, while he was driving home from work. He was treated at Alton Memorial Hospital in Alton, Illinois, and later at a veterans hospital. The bullet is still lodged in the Claimants shoulder, and the Claimant suffers from numbness in his left arm and limitation of movement. In January 1991, the Claimants U.S. Army Reserve unit was called up to serve in Operation Desert Storm. The Claimant was stationed in Fort Campbell, Kentucky, and was released from duty on May 27, 1991. The Claimant testified that he was unaware that he may have been eligible for compensation through the Act until he talked to a police officer sometime between May 1991 and January 1992 — one to two years after the shooting. The Claimant stated that he spoke with an assistant Attorney General during that time but did not officially file a claim until January 1994, nearly three years after the shooting. The Claimant submitted medical bills from Alton Memorial Hospital, totalling $589.30, which he paid himself. There were no charges for treatment at the veteran s hospital. The Claimant reported no lost wages as a result of his injury.

Section 6.1(a) of the Act states that to receive compensation under the Act, a person must file an application with the Illinois Court of Claims within one year of the occurrence of the crime. The Court may grant extensions, but has turned down requests for extensions and denied claims when the claimants have stated they were unaware of the Act until after the deadline for filing expired. Lack of knowledge on the part of a claimant is not an exception provided for under the rules of the Act. In re Application of Hutcherson (1985), 37 Ill. Ct. Cl. 491; In re Application of Reaves (1985), 37 Ill. Ct. Cl. 427.

Because of his service in Operation Desert Storm, the Claimant may have been eligible for an extension because he was activated approximately 11 months after the shooting occurred. However, he was released from duty in May 1991 but failed to file a claim until January 1994, nearly four years after the shooting. The Claimant contends that he was informed of the Act sometime between May 1991 and January 1992. It is unclear why the Claimant failed to ñle a claim until at least two years later. Regardless, the fact that the Claimant may have been unaware of the Act as late as January 1992 provides no basis for an exception to the statutory deadline.

Because the Claimant failed to file a claim until nearly four years after the shooting and because the Claimant has offered no reason that would provide the basis to make an exception in his case, it is hereby ordered by this Court that the Claimants claim is denied.


author: Frederick, J.

text:
    (No. 80-CC-0867
    Mohawk Medical Center, Inc., Claimant, v. The State of Illinois, Respondent.

      Opinion filed September 20, 1995.

    Sheldon A. Harris, for Claimant.
    Jim Ryan, Attorney General (Cara Le Fevour Smith, Assistant Attorney General, of counsel), for Respondent.
   OPINION

Frederick, J.

The Claimant, Mohawk Medical Center, Inc., filed its claim in the Court of Claims on December 6, 1979. The Claimant seeks One Hundred Three Thousand Nine Hundred Ninety-Seven & 49/100 Dollars ($103,997.49) from' the Illinois Department of Public Aid as a participant in the States Medicaid program for claims that were disallowed by the department. This cause and the claim of Francisco Roque, M.D. (80-CC-0035) were consolidated for trial.

On May 16, 1987, the Respondent filed a consolidated department report. A first amendment to the consolidated department report was filed on May 30, 1990. Pursuant to section 790.140 of the Court of Claims Regulations (74 Ill. Adm. Code 790.140), the departmental report and amendment thereto are considered to be prima facie evidence of the facts set forth therein. (Memorial Medical Center v. State (1988), 40 Ill. Ct. Cl. 73.) The record indicates copies of the original report and amendment were sent to Claimants counsel as required. Also, pursuant to our regulations as stated in Court of Claims Regulations (74 Ill. Adm. Code 790.20), it is our practice to follow the Illinois Code of Civil Procedure except as provided in our rules. This is an important distinction as it affects the weight we give to requests to admit and department reports. Our rule on the prima facie evidentiary value of department reports is a specific rule in this Court and as such supersedes the Illinois Code of Civil Procedure in regards to requests to admit where there are conflicts. The prima facie facts established by the departmental report and the facts established by the testimony, exhibits and Requests to Admit are that Claimant, Mohawk Medical Center, Inc., seeks vendor payments totaling $103,997.49 pursuant to section 11 — 13 of the Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 13, now 305 ILCS 5/11 — 13) for medical services which it alleges were invoiced to the Illinois Department of Public Aid (“IDPA”) during 1978. The identity of such medical services was not indicated in Claimants complaint. Subsequently, in response to Respondents discoveiy requests, Claimant produced copies of IDPA-form drug invoices, representing total gross billings (before reduction to ID-PAs maximum-payment ceilings for the drugs and other pharmacy items invoiced) of $101,376.54. Claimant designated the services identified on these invoices as the intended subject of its claim in this proceeding.

Claimant, Mohawk Medical Center, Inc. (hereinafter referred to as “Mohawk”), is an Illinois corporation. Its sole shareholder and “administrator” is Alan Hartzman. Mohawk operated a facility at 832 West Madison Street in Chicago in 1977 and early 1978. The facility consisted of a number of physicians’ offices and a pharmacy, located within a single building.

Mohawk refused to identify the names of certain of its employees who performed their occupational duties within their building. Mr. Hartzman has identified Mr. Everett McCollough as the pharmacist who operated Mohawk’s pharmacy. Mohawk’s drug invoices (DPA form 215) produced by Mohawk as representing the goods which are the subject of this lawsuit identify the physicians who prescribed said goods (drug and other medical items) as follows: Timothy D. Brandt, Eng June Chang, Sidney Fabian, Calvin Irwin Lewis, Sinisa Momir Princevac, Francisco T. Roque, Ben Irwin Smaller and Zinod Savalal Zazeri. Mr. Hartzman has not supplied any other information to identify the names and professional credentials of these individuals or any other employees of Mohawk.

Dr. Roque had previously testified that, at all times relevant to this claim, he practiced at Mohawk as an employee of Mohawk. In his deposition, Dr. Roque stated that he was not salaried, and was unable to recall what arrangements he had with Mr. Hartzman concerning payment of compensation for his services at Mohawk.

IDPA staff were alerted in 1977 to possible MAP-participation violations by Mohawk and its physicians by the substantial number of drug invoices and physician statements for medical services received from the facility and its physicians which indicated that the IDPA recipients, whom they were treating, were drug addicts or abusers and that questionable medical practices may have been utilized in the treatment of such patients’ illnesses.

An on-site review was conducted at Mohawk’s facility on January 11,1978, by an IDPA physician-consultant and a registered nurse, the latter being an employee of the department’s Professional Standards Unit. The reviewers inspected the medical records prepared by Mohawk physicians Roque, Lewis and Smaller, who were then still employed and practicing at the facility. The review team reported the following findings concerning Mohawk and its physicians and pharmacy:

1. Large numbers of patients are seen daily at Mohawk for minimal care.

2. Multiple prescriptions are given to patients during a visit.

3. Patients seen at Mohawk are receiving no specific treatment or service except for continuing or perpetuating a drug habit or dependency.

Based on the on-site reviewers’ report, copies of medical records reviewed during the review, and the personal testimony of Dr. Timothy Brandt (former Mohawk physician), the State Medical Advisoiy Committee recommended at its January 14, 1978, meeting that Drs. Brandt, Chin, Lewis, Roque and Smaller be terminated as MAP-participants and that future invoices from Mohawk be disallowed and payment of them be denied by IDPA.

IDPA staff then attempted to initiate an audit of the business and medical records of Mohawk Pharmacy, the drug-dispensing portion of the Mohawk facility business. On March 21, 1978, an IDPA staff member telephoned Mr. Hartzman, informed him of the department’s intention to conduct an audit of the pharmacy’s records, and asked that Mr. Hartzman agree to a date for the audit to begin. Mr. Hartzman would not set a date until he had first discussed the matter with his attorney. He stated he would call the IDPA representative back that afternoon but did not do so.

On March 23, 1978, the IDPA representative again phoned Mr. Hartzman who responded that all matters would have to be handled through his attorney. The representative then called David Blumenfeld, Mr. Hartzman’s attorney. Mr. Blumenfeld responded that as the pharmacy had not received an IDPA payment on its drug invoices since mid-December, 1977, the status of the pharmacy would have to be clarified before Mohawk would allow the proposed audit of its records to proceed. Mr. Blumenfeld would not agree to set a date either for an initial interview (the first step in the audit procedure) or for the conduct of an audit of Mohawks pharmacy records.

The IDPA representative reports having driven past the Mohawk facility on March 29, 1978, and observed that the facility was boarded up and apparently closed. IDPA’s Bureau of Program Integrity staff received no communication from Mr. Hartzman or Mr. Blumenfeld concerning the proposed audit following the March 23, 1978, phone conversation.

On April 10, 1978, IDPA served upon Mr. Hartzman, as Mohawks administrator, and upon Attorney Blumenfeld, Mohawks registered agent, its notice of intent to terminate and right to hearing as then provided in section 12 — 4.25 of the Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, par. 12 — 4.25, added by Public Act 80 — 2, eff. Dec. 1, 1977). The effect of this notice was to terminate Mohawk’s status as a participant in IDPA’s MAP. The stated grounds for termination were (a) that Mohawk and its employees had provided care and treatment to addicts without any of them having obtained the required Dangerous Drug Abuse Commission (IDDC) licenses to conduct such activities; and (b) that the pharmacy had refused to allow IDPA to conduct an audit of its records. All claims-processing activities by IDPA, with respect to invoices received from Mohawk, were suspended effective April 10,1978, in accordance with statute.

On or about July 13, 1978, IDPA issued its final administrative decision which included Hearing Officer Marilyn Kuhr’s memorandum of findings following the hearing held on Mohawks administrative appeal.

On or about August 8, 1978, Mohawk commenced a Cook County Circuit Court action (Docket No. 78-L-15824) entitled Complaint for Declaratory Judgment, Injunction, Writ of Certiorari, Judicial Review of Administrative Proceedings and for Other Relief. The circuit court upheld IDPAs termination decision, ruling that it was not contrary to the manifest weight of the evidence presented. That judgment was affirmed by the First District Appellate Court in Mohawk Medical Center, Inc. v. Quern, filed June 4, 1988. 84 Ill. App. 3d 1026.

As a condition of its continuing entitlement to receive “FFP” (Federal financial participation, or Federal matching funds) in the costs of operating IDPAs Medical Assistance Program (MAP), the department is obligated to administer Illinois’ program in compliance with Federal statutes and regulations. The Federal-State cooperative endeavor is reflected in a State plan, an agreement between the State and the Federal Department of Health and Human Services (DHHS, formerly DHEW), the terms of which are prescribed by Federal statute. See, e.g., 24 USCA, Sec. 1396a, et seq., and compare section 12 — 4.5 of the Public Aid Code, Ill. Rev. Stat. 1979, ch. 23, par. 12 — 4.5.

All states’ Medicaid plans are required to:

“8 8 8 provide for agreements with every person or institution providing services under the State plan under which such person or institution agrees (A) to keep such records as are necessary to disclose fully the extent of the services provided to individuals receiving assistance under the State plan, and (B) to furnish the State agency (IDPA) or the Secretary [of HHS] with such information, regarding any payments claimed by such person or institution for providing services under the State plan, as the State agency or the Secretary may from time to time request.” 42 USCA, sec. 1396a(27), amended Jan. 2,1968, by Public Law 90 — 248.

The same provider (medical vendor) requirement was, in 1977, the subject of Federal regulation, section 450.21 of Title 42, Code of Federal Regulations (CFR), which provided that each States Medicaid plan must require that:

"Every person or institution [i.e. every medical vendor] providing services under the State plan [must agree] (a) [t]o keep such records as are necessary fully to disclose the extent of the [medical] services provided to individuals receiving assistance under the State plan; and (b) [t]o furnish the State agency [here, IDPA] with such information, regarding any payments claimed by such [vendor] for providing services under the State plan, as the State agency may from time to time request.” 34 FR 14649, Sept. 20, 1969; redesignated at 42 FR 52827, Sept. 30,1977.

By Federal law, this required State-plan provision is one of tire many terms and conditions which a vendor agrees to, upon the vendors request to be enrolled to participate in IDPAs MAP. Mohawk Medical Center, Inc., a retail drug store located at 832 W. Madison St., Chicago, Illinois, submitted to IDPA its MAP enrollment application in December, 1976, bearing the signature of Al Hartzman as owner or corporate officer. In so doing, Mr. Hartzman and Mohawk agreed to comply with all applicable Federal and State laws and regulations, and to comply also with the participation requirements explained in IDPAs MAP Handbook for Pharmacies, issued in January, 1977, to all participating pharmacy-vendors.

Page 30 of the Handbook for Pharmacies, Topic 148 is entitled “Audits” and explains that “[a] 11 services for which charges are made to [IDPA] are subject to audit”; and that one of the purposes of such audits is to enable IDPA to monitor MAP-participating health care facilities and services as required by Federal regulations and State law. Such audits may relate to all of the vendors services charged (invoiced) for payment by IDPA and may address all such charged services, whether or not previously paid by the department. If an audit reveals that the vendor has submitted incorrect charges, and thus that incorrect payments were made by IDPA, the vendor must make restitution through recoupment procedures. A necessary implication of this agreed condition of the vendors participation is the departments right to audit its records also as they relate to suspended IDPA invoices which the vendor has submitted for payment, i.e. those invoices which IDPA has received from the vendor but not yet paid.

IDPA Professional Standards review staff had been allowed some access to certain physicians’ medical charts for certain patients during their January 1978, visit to the Mohawk facility. That review-visit had focused upon the nature and quality of “treatment” which such patients were receiving from Mohawk’s physicians. The audit, proposed to begin in March, 1978, was intended to review the Mohawk’s pharmacy’s records, as those records related to the drug invoices, both paid and unpaid, which Mohawk had submitted to IDPA, for goods dispensed during the period beginning with its MAP-enrollment (December 1976) through its MAP-termination in April of 1978. The proposed audit would have addressed the pharmacy’s back-up records (script written by Mohawk’s physicians, records of drugs and other items actually dispensed independent of Mohawk’s DPA-form drug invoice billings), records of Mohawk’s wholesale purchases of drugs and related pharmacy items, any available inventory records of drugs and items in stock, etc. Such audit would thus have included a review of Mohawk’s back-up support for this claim to determine if such records supported Mohawk’s invoices for the 32,798 separate drug and related items allegedly scripted and dispensed during the 43 business days covered by the $101,376.54 in DPA invoices which are the subject of Mohawk’s claim.

The pharmacy audit of Mohawk’s records pertaining to drugs and related items invoiced to IDPA was never permitted to take place. Mohawk and Mr. Hartzman have produced no evidence that their pharmacy dispensed 2,044 containers of “drug No. 00746620 Selsun Blue Shampoo Lotion” during this 43-day period as invoiced to IDPA. No documentary support has been offered for the 1,513 bars of 00722300 Lowila Cake 3.75 oz. allegedly dispensed during this same period as invoiced or to support 2,815 containers of 50008052 Alcohol-Rubbins, 70%, 480 cc., 684 items of 60009924 elastic bandage, 940 tubes of 60009916 dermatologic preparations, and 2,520 items (37,971 tablets) of 50000763 Hydroxyzine Tab/Cap 100 mg., unusually large dosages of this sedating drug. These are only some of the items and quantities of items which Mohawk and Hartzman invoiced to IDPA for payment as having allegedly been sold by their pharmacy during the 43 specific days of service during December, 1977, through March 1978.

One of the many factors which IDPA audit staff look for in conducting a pharmacy vendor audit is the extent of correlation between volume and detail of the vendor’s wholesale purchases and inventory and the volume and detail of its drug billings to IDPA. Another factor involves a comparison of the vendor’s wholesale purchases of drugs having a known potential for abuse, whether alone or in combination with other drugs, against the quantity of sales of such drugs as invoiced to IDPA for payment. Such comparisons are impossible to make when the vendor refuses to allow an audit to occur.

Mr. Hartzman denied IDPA all access to such records while Mohawk was a MAP participant and such refusal was a sufficient ground for Mohawk’s removal from the program.

The Illinois Dangerous Drugs Commission (IDDC) was established by the General Assembly, through the Dangerous Drug Abuse Act, to implement and coordinate the efforts of the private and public sectors in more effectively treating and rehabilitating those Illinois citizens who were suffering the effects of addiction to or abuse of harmful drugs (Ill. Rev. Stat. 1977, ch. 9114, par. 120.1 et seq.). Section 14 of the Act prohibited any person from establishing, opening, conducting, operating or maintaining a facility, or otherwise providing any services, “for the treatment, care, rehabilitation * * * of addicts and abusers of dangerous drugs without first obtaining a license from the [IDDC].” Criminal penalties are provided for violations of the Act, including the operation of such a facility, or a physicians practice of medicine “significantly devoted to the treatment, care, rehabilitation * * * of patients suffering from such afflictions.” Neither Dr. Roque nor the Mohawk pharmacy had ever obtained the required IDDC license to engage in the activities and supply the goods and services which are the subjects of this claim.

It is apparent that the same license requirement, as a condition to Mohawk’s opening of its facility, was just as applicable to its pharmacy operation. A very significant portion of the pharmacy’s IDPA-invoiced sales were of drugs in grossly excessive quantities and having well-known abuse potential which the pharmacy was dispensing to known drug abusers.

The appellate court’s November 1980 opinion issued to Dr. Roque’s appeal (Roque v. Quern) (1980), 90 Ill. App. 3d 1015, 414 N.E.2d 161, 46 Ill. Dec. 439), describes the regulatory and licensure scheme found in the comprehensive provisions of the Act for the purposes of controlling abusers’ access to abusable drugs and of discouraging profiteering in drug-related transactions to the detriment of such abusers by members of the health care community and others. Mohawk pharmacy’s inventory was the source of the drugs which Dr. Roque and the other seven Mohawk physicians were prescribing for their abuser-patients.

IDPA conducted a complete, computerized analysis of all of the data reported by Mohawk on each of its drug invoices which are the subject of this claim. The analysis indicates that during a period of only 43 business days (December 15, 20 and 22, 1977; January 3 through 17, 19, 21 and 23 through 31, 1978; February 6, 7, 12, 16, 18, 20, 21, 22, 25 and 27, 1978; and March 2, 3, 4 and 6, 1978), Mohawk alleges that it filled a total of 32,798 prescriptions based upon script written by the eight Mohawk physicians previously named herein consisting of drugs and other goods allegedly dispensed to 3,601 different patients over the course of 4,993 different patient-visits as determined by the “date of service” on which a given pharmacy item was allegedly dispensed to a named patient as reported in Mohawk’s DPA-form 215 invoices.

The analysis indicates the quantities of Pentazocine (Talwin) and Tripelennamine HCL tablets (PBZ) dispensed by Mohawk as reflected in its IDPA invoices. Mohawk charged for 4,944 separate prescriptions for Talwin, consisting of 74,659 tablets dispensed. During the same period, Mohawk charged for 4,898 separate prescriptions for PBZ (Tripelennamine), consisting of 73,513 tablets. Mohawk provided these drugs over the course of 4,993 patient visits to a total of 3,601 patients. Thus, during the 43 business days covered by the drug invoices here in issue, an average patient-visit resulted in the pharmacy’s dispensing 0.99018 Talwin prescription (averaging 15.1009 tablets or capsules per prescription) and 0.98097 Tripelennamine (PBZ) prescription (averaging 15.0088 tablets or capsules per prescription).

Also dispensed during this period were the following antihistamines: Hydroxyzine, 2,520 prescriptions of 100 milligram tablets (total of 37,971 tablets dispensed) as well as 761 prescriptions of 50 mg. tablets (total of 10,711 tablets), and lesser quantity of 25 mg. tablets; Promethazine (Phenergran), 139 prescriptions; as well as the following anti-depressants: Amitriptyline, 1,022 prescriptions of 50 mg. tablets (total of 14,480 tablets dispensed), and lesser quantities of 25 mg. tablets; Doxepin, 545 prescriptions of 10 mg. tablets (total of 3,888 tablets dispensed), and lesser quantity of 5 mg. tablets. Also dispensed were a number of cough preparations with high alcohol content such as: Dimetane expectorant, 445 prescriptions and Benylin expectorant, 17 prescriptions.

The significance of Mohawks drug-dispensing practices as compared with the needs of its clientele becomes apparent when viewed in the context of addicts’ use of the drugs which Mohawk was dispensing.

Talwin (Pentazocine) is a potent narcotic analgesic prescribed for the relief of moderate to severe pain. Since its introduction in the American pharmaceutical market in 1967, Talwin’s ability to produce psychic craving, euphoria, tolerance and physical dependence has been well-documented. Since 1976, heroin addicts in the Chicago area have used Talwin in combination with other agents for its euphoric effects. PBZ (Tripelennamine), an antihistamine, is a particularly popular drug for use in such combinations with Talwin to achieve this desired effect.

“T’s and B’s,” “T’s and Blues,” “Tops and Bottoms,” “Toms and Bettys,” and “Tricycles and Bicycles” are all slang terms for the Talwin-PBZ combination. “Blues” is derived from the light-blue colored Tripelennamine tablets, and “T’s” from Talwin. Users inject varying ratios of Talwin and PBZ tablets until the desired subjective or euphoric effects are obtained. PBZ reportedly delays the onset and prolongs the duration of the Talwin-induced euphoria. The tablets are dissolved in a small quantity of water and the solution is filtered and then injected intravenously. Addicts experience a rush, reportedly indistinguishable from that of heroin, of 5 to 10 minutes duration, followed by a euphoria which is prolonged for several hours by the drug mixture. Then, the addicts experience restlessness, irritability, abdominal cramps, general malaise and other symptoms as described by Dr. Roque in his testimony. Repeated injections produce repeated rushes.

“Ts and Blues,” in combination, are sold as a set— one tablet of each drug — that costs $10 to $12 on the street. The combination is used primarily as an inexpensive substitute for heroin when the latter is in short supply or of poor quality. Some users report a preference for “Ts and Blues” over heroin, owing to a more consistent high achieved with this mixture. According to pharmacologic theory, the intravenous administration of Talwin should worsen, not reheve, the effects of an addicts wididrawal from heroin dependence because Talwin acts as a narcotic antagonist. Nevertheless, the symptoms of withdrawal can sometimes be relieved by using “T’s and Blues.” Antihistamines, such as those dispensed by Mohawk, are often combined with Talwin. Alcohol is frequently ingested by users in conjunction with “Ts and Blues” injections to modify the “speedy” effects. Sedative agents, including anti-depressants, are used by addicts to counter the severe anxiety, depression, panic and inability to relax associated with the down side of narcotic use.

Mohawks drug-dispensing pattern for these 43 days of invoiced services correlates closely with the “Ts and Blues” use of Mohawks patients. Virtually every patient received Talwin and either PBZ or another antihistamine. Approximately 50 percent of the patients received an antidepressant and 1 in 10 received a cough syrup of high alcoholic content. Talwin mixed with the antihistamine produced the high, with ethanol ingested to stabilize the stimulatory effects. Antidepressants blunted the after-effects.

Mohawk and its physicians were among the Chicago-area pharmacies who had attracted IDPAs attention, beginning in 1977 and 1978, with MAP invoices reflecting grossly excessive prescriptions of drugs with well-known abuse potential and physicians’ invoices showing services consisting of perfunctory examinations followed by the writing of script for such drugs. It was just such practices which the Illinois Dangerous Drug Commission was attempting to control and eventually eliminate.

These prescribing and dispensing practices cannot be said to represent any legitimate form of treatment nor do they serve to provide any medical benefit to Mohawk’s patients.

The Illinois Department of Public Aid (IDPA) pays medical vendors for certain medical services rendered to those persons whom IDPA has determined to be eligible for medical assistance under the Medical Assistance Program (MAP) which IDPA administers. When such persons have been determined to have satisfied all such requirements, they are found to be recipients of medical assistance. Payments to medical vendors are conditional upon the satisfaction of IDPA’s requirements, including:

a. the vendor has been enrolled as a MAP participant;

b. the services for which the vendor is billing IDPA have been rendered to a person who, at the time of the service, was an eligible recipient;

c. the services for which the vendor is billing IDPA were services for which IDPA has agreed to pay in the program under which the recipient was eligible (“covered services”);

d. where prior approval for such a particular service is required and the vendor is billing for such a service, that the prior approval has been validly obtained;

e. the vendor has properly prepared its invoices (bills and rebills) and has timely submitted such invoices to IDPA in compliance with IDPAs requirements.

Each of these requirements is established by Federal and State law and regulations; each of these requirements is also explained in detail in IDPAs MAP handbooks for providers, which handbooks IDPA has distributed to all vendors who participate in the MAP.

Compliance with these requirements is essential to the efficient processing of invoices. IDPA receives and adjudicates an average of 3.2 million medical service claims each month. These invoices represent services to many of the 1.1 million Illinoisans who are IDPA recipients of medical assistance. A vendors failure to prepare its invoices properly and submit them within the required time periods not only makes it increasingly difficult and expensive for IDPA to process claims accurately, it also may jeopardize the IDPAs ability to receive from the federal government the matching funds available for many of IDPAs proper payments. Memorial Medical Center v. State (1988), 40 Ill. Ct. Cl. 73.

At no time during the operation of Claimants clinic did Claimant apply for, obtain or possess a license to operate a facility for the care, treatment or rehabilitation of addicts and abusers of dangerous drugs, as required by the provisions of the Dangerous Drug Abuse Act. (Ill. Rev. Stat. 1977, ch. 91%, par. 120.1 et seq.) During the period of December, 1976, through March of 1978, none of the physicians employed by Claimant at the Mohawk Medical Center possessed a license to care for, treat or rehabilitate addicts and abusers of dangerous drugs, as required by the Dangerous Drug Abuse Act. During the course of the proceedings in this case, Claimant did produce IDPA form drug invoices showing a total claim of $101,376.54. The Claimant claims it dispensed pharmaceuticals and medical goods to 3,601 IDPA recipients over the course of 4,993 alleged patient-visits.

The Respondent did not serve Claimant with a written notice for an audit by IDPA. In Mohawk Medical Center, Inc. v. Quern (1988), 84 Ill. App. 3d 1026, the appellate court affirmed the Illinois Department of Public Aid’s termination of Mohawk as a vendor of medical goods and services under the Medical Assistance Program.

In March of 1978, Mohawk ceased its operations. Mohawk’s claim for vendor payments was denied by notice letter on October 29, 1979. The notice stated that, “The basis for this decision include the pharmacy’s refusal to allow a Department of Public Aid audit and the fact that Mohawk Medical Center, Inc. was closed by the Department of Public Health for operating without a license.”

The memorandum decision of the hearing officer is crucial to the determination of this claim and is therefore set out here in its entirety with Mohawk substituted for Respondent so that confusion can be avoided.

“Mohawk Medical Center, Inc. Pharmacy received a notice dated April 10, 1978, from the Illinois Department of Public Aid stating an intention to terminate its participation as a vendor in the Medical Assistance Program, Ill. Rev. Stat., 1977 and Supp. 1978, Ch. 23, Sec. 5 — 1, et seq. A hearing to be conducted under the ‘Rules for Medical Vendor Administrative Proceedings’ (effective December 27, 1977 and amended May 26, 1978) promulgated by the Department under Ill. Rev. Stat. 1977 and Supp. 1978, Ch. 23, Sec. 12— 4.25, 12 — 4.26, 12 — 4.27 and 12 — 13, was scheduled for May 8, 1978. Both Mr. Alan Hartzman and Mr. David Blumenfeld as registered agent received copies of this notice.
There were two stated grounds for termination. One was that an ‘owner and/or corporate officer’ of the pharmacy, Mr. Alan Hartzman, was an administrator of a medical center at the same location which treated narcotic addicts without a Dangerous Drug Abuse Commission license alleged to be necessary under Ill. Rev. Stat., 1977, Ch. 9114, Sec. 120.14. If the Department’s allegations were true, either the medical center or Mr. Hartzman would be in violation of state law. If Mr. Hartzman himself were required to have a license, which he failed to obtain, and if he were proven to be an officer or 5%-or-greater owner of tire Respondent pharmacy, then the Respondent pharmacy could be terminated under Department rule 4.51(i)(l) because ‘an officer or person owning (directly or indirectly) 5% or more of the share of stock or other evidences of ownership in a corporate vendor * * * has engaged in practices prohibited by applicable Federal or State law or regulation * * *.’ If the medical center itself were shown to be a vendor as defined in Section 4.22 of Department rules and was required to have a license which it did not obtain, and Mr. Hartzman were shown to be its administrator while having the same incidences of ownership in the Respondent pharmacy as discussed above, then the Mohawk pharmacy could be terminated under Section 4.51(i)(2) because ‘an officer or person owning (directly or indirectly) 5% or more of the shares of stock or other evidences of ownership in a corporate vendor * * * was a person with management responsibility for a vendor at the time that such vendor engaged in practices prohibited by applicable federal or State law or regulation * ° *.’ The second ground for termination in the Department’s notice is that the Respondent pharmacy refused to allow a Department audit of the pharmacy, and is thus in violation of Department rule 4.51(d) because it ‘failed to furnish any information requested by the Department regarding payments for providing goods or services, or has failed to furnish all information required by the Department in connection with the rendering of services or supplies to recipients of public assistance by the vendor, his agent, employer or employee.’ The above two grounds for termination fall within the purview of Ill. Rev. Stat., 1977 and Supp. 1978, Ch. 23, Sec. 12 — 125(A)(d) and (h).
The May 8, 1978, session scheduled by the above notice was postponed because Mohawk’s counsel arrived more than an hour late, unaccompanied by Mr. Alan Hartzman, whom Department counsel had asked to call as an adverse party witness. He was unable to proceed, stating that he was in the middle of a jury trial and had ‘called a recess’ specifically to appear here. It was clear he could not present Mohawk’s case but wanted the Department to present its case. Department counsel had one witness available, had subpoenaed another witness who had not appeared, and had expected to call Mr. Hartzman as his first witness. Mohawk’s counsel was adamant that Mr. Hartzman be called only after the Department had presented the remainder of its case, a question the hearing officer said would be decided at a subsequent session at which both parties were to have all witnesses available and to be ready to proceed and conclude the matter. That session could not be scheduled for more than a month because of Mohawk’s counsel’s trial calendar, since he stated that his current jury trial would run four weeks.
At the June 12, 1978, session, Mohawk failed to appear. Department counsel was asked to call Mohawk's counsel’s office approximately one-half hour after the scheduled starting time and represented for the record that his office staff said they had not heard from him all morning. After another brief wait, Department counsel presented his case, with the exception of questioning Mr. Hartzman who had not appeared. He asked that Mohawk be terminated both on the basis of his evidence under Department rule 4.51(d) and (i) and under rule 9.60, which reads in pertinent part: ‘If the vender without good cause, fails to appear at a hearing or formal conference scheduled by the Department, the Department's action or decision and the grounds asserted as the basis therefor shall be a final and binding administrative determination.’
Several hours after the conclusion of this session, both Mohawk’s counsel and his secretary called this hearing officer to ask for another session, without giving any reason for the request. Mohawk’s counsel then submitted a motion which stated that Department counsel had previously been informed by both himself and his secretary of the need for a continuance and had promised to schedule another date. The stated reason for the continuance was that Mohawk's counsel had been unable to go ahead ‘on this date (June 12, 1978) as said Robert E. Gorgon was starting a trial in Waukegan in tire matter of Larson v. Libertyville, 75-L-462,’ although this trial ultimately did not go airead as scheduled. Mohawk asks for a transcript of the Department’s case and the opportunity to present a defense to that case. Department counsel denies ever being approached about a continuance prior to the June 12,1978, session.
Since either the Chief or designated hearing officer decides whether or not to grant continuances, Department scheduling letters explicitly direct parties to call hearing officers if a continuance is necessary. Since this hearing officer was never contacted, it does not appear that Mohawk ever requested a continuance. Department counsel would have little reason to ignore such a request since Mr. Hartzman was to be his first witness. The ‘scheduling’ problems raised at both sessions appear to be directed toward avoiding malting Mr. Hartzman available as a witness until the Department had presented all other evidence. If Mohawk’s counsel’s Waukegan trial did not go ahead as scheduled, there was no reason for him not to attend the June 12, 1978, session. Further, it does not appear that a trial was even scheduled as claimed. The attached certified copies of orders entered by the Lake County Circuit Court in Larson v. Libertyville, 75-L-462, on the nearest dates (June 7 and 16, 1978) show that the case had just been transferred to a new judge and new parties were being brought into the action.
Therefore, the hearing officer finds that Mohawk failed to appear ‘without good cause’ and under Department rule 9.60 has no discretion to consider either the Department’s presentation or any other evidence since the grounds stated in the Departments notice of termination by rule ‘shall be a final and binding administrative decision.' ”

The Circuit Court of Cook County affirmed the departments decision as not being contrary to the manifest weight of the evidence. The First District Appellate Court affirmed the judgment. (84 Ill. App. 3d 1026.) Pursuant to Department Rule 4.51(d) and (i) and under Rule 9.60, the two grounds asserted for the basis of the termination became final and binding administrative determinations.

Claimant seeks to relitigate these final determinations in this Court. We decline to do so. We find that Mr. Alan Hartzman, an owner and/or corporate officer of the pharmacy, was the administrator of a medical center at the same location which treated narcotic addicts without a Dangerous Drug Abuse Commission license necessary-under the Dangerous Drug Abuse Act. (Ill. Rev. Stat. 1977, Ch. 9FA, par. 120.14.) This is a violation of State law. We further find that the Claimant pharmacy refused to allow a department audit of the pharmacy and is therefore in violation of Department Rule 4.51(d). The above two grounds for termination fall within the purview of Ill. Rev. Stat., 1977 and Supp. 1978, Ch. 23, section 12— 4.25(A)(d), (H) of the Public Aid Code. Ill. Rev. Stat. 1977, ch. 23, par. 12 — 4.25(A)(d), (h).

The Claimant should have contested these issues at the administrative hearing. If the Claimant had submitted to an audit or prevailed at the termination hearing, they may very well have prevailed and obtained compensation. We will never know because Claimant refused to submit to an audit and failed to attend the termination hearing. To prevail in this Court, a claimant must exhaust all other remedies and sources of recovery, whether administrative or judicial. Clearly this Claimant failed to exhaust his remedies. (Watkins v. State (1992), 45 Ill. Ct. Cl. 203; Lyons v. State (1981), 34 Ill. Ct. Cl. 268; Fowler v. State (1982), 44 Ill. Ct. Cl. 431; University of Chicago Professional Services Offices v. State (1990), 42 Ill. Ct. Cl. 277.) In University of Chicago Professional Services Offices v. State, supra, at 281, this Court held that full compliance with the Department of Public Aid rules and handbook is a prerequisite for exhaustion of remedies. Claimant has clearly failed to exhaust its remedies and for that reason alone this claim is subject to dismissal.

Claimant argues it is not collaterally estopped to raise the issue of proper audit procedure. Claimant states the only findings in the July 14, 1978, memorandum recite Mohawks failure to appear without good cause thereby making the notice of termination finding. Claimant fails to consider that the grounds stated in the notice became a final decision by Claimants failure to appear at the hearing. The time to have litigated the audit issue was at the administrative hearing. This Courts exhaustion of remedies law is clear that you cannot bypass a remedy and then tiy to relitigate the issue in the Court of Claims. Claimant failed to litigate the audit issue in the administrative proceedings where it could have been raised.

Beyond the exhaustion of remedies basis, the Claimant is collaterally estopped from raising the issue in the Court of Claims. Collateral estoppel applies upon proof that the issue decided in the prior adjudication is identical with the one presented in the current suit, the prior suit was terminated with a final judgment on the merits, and the party against whom the estoppel is asserted was a party or in privity with a party in the prior suit. (In Re Nau (1992), 153 Ill. 2d 406.) Mohawk was a party to the administrative proceeding involving termination in the MAP program. The issue of the audit was decided at the administrative decision by virtue of the fact that Claimants failure to appear made the grounds stated in the notice of termination a final administrative decision. The administrative action ended in a final judgment of termination which was affirmed by the Circuit Court of Cook County and the First District Appellate Court.

We, therefore, find Claimant failed to allow an audit and Claimant was not properly licensed. There is no question that Claimant was properly terminated and that Claimant should have been terminated as a vendor under the State program. Claimant argues, however, that even if Mohawk was rightfully terminated, they would be entitled to payment for pharmaceuticals sold prior to termination. The argument by Claimant fails to take into account the provision of section 12 — 15 of the Public Aid Code, which had an effective date of December 1, 1977, and section 12 — 15.1, which also had an effective date of December 1, 1977. Section 12 — 15 states:

“§12 — 15. Vendor Fraud and Abuse — Civil Recoveries. Any person, firm, corporation, association, agency, institution or other legal entity (other than an individual recipient) that willfully, by means of a false statement or representation, or by concealment of any material fact, or by other fraudulent scheme or device on behalf of himself or others, obtains or attempts to obtain benefits or payments under this Code to which he or it is not entitled, shall be hable for repayment of any excess benefits or payments received, and, in addition to pay any other penalties provided by law, civil penalties of (1) interest on the amount of the excess benefits or payments at the maximum legal rate in effect on the date the payment was made to said person, firm, corporation, association, agency, institution or other legal entity for the period from the date upon which payment was made to the date upon which repayment is made to the State, (2) an amount not to exceed 3 times the sum of $2,000 for each excessive claim for benefits or payments.
Any person, firm, corporation, association, agency, institution or other legal entity (other than an individual recipient) who, without intent to violate this Code, obtains benefits or payments under this code to which he or it is not entitled, or in a greater amount than that to which he or it is entitled shall be hable for any excess benefits or payments received.
Civil recoveries provided for in this Section may be recoverable pursuant to court proceedings initiated by the Attorney General.” Added by P.A. 80 — 2, 2nd Sp. Sess., Sec. 2, eff. December 1,1977.

Section 12 — 15.1 of the Public Aid Code states:

“§12 — 15.1. Vendor Fraud and Kickbacks — Penalty. Any person, firm, corporation, association, agency, institution, or other legal entity that willfully, by means of a false statement or representation, or by concealment of any material fact, or by other fraudulent scheme or device on behalf of himself or others, obtains or attempts to obtain benefits or payments under the Public Aid Code to which he or it is not entitled, or in a greater amount than that to which he or it is entitled; or who solicits, offers or receives any kickbacks or bribes in connection with the furnishing of medical assistance; or who solicits, offers or receives any rebate of any fee or charge for referring any individual to another person for the furnishing of medical assistance under the Public Aid Code shall be guilty of a Class 2 felony.” Added by P.A. 80 — 2, 2nd Sp. Sess., Sec. 2, eff. Dec. 1,1977.

If the State can recover overpayments, they can surely defend non-payments for claims not properly substantiated.

We find that the Claimant willfully concealed material facts by refusing to submit to an audit for those invoices for which it seeks payment in this Court. We also find that by concealment of material facts, Claimant is trying to obtain payments under the Public Aid Code to which it is not entitled for the reasons heretofore stated. To assist Claimant in its attempt to achieve its ill-gotten gains would verge on being criminal. The required provider agreement required by title 43 Public Health Chapter IV-Health Care Financing Administration, section 431.107(b)(2) required the provider to furnish the agency with any information they may request regarding payments claimed by the provider furnishing services. This Claimant failed and refused to do so.

Based on the evidence of the medications provided, the lack of proper licensure, and the care provided at Mohawk, it is no wonder Claimant did not want to be audited.

We also find that because of the number of addicts treated at Mohawk that the Claimant was in violation of its requirement to have a license under the Illinois Dangerous Drug Abuse Act. On that basis alone, this claim should be denied. Neither Dr. Roque nor any of the other physicians working at Mohawk Medical Center were licensed under the Illinois Dangerous Drug Abuse Act nor was the center itself so licensed.

Finally, section 14 of the Court of Claims Act (705 ILCS 505/14) states whenever any fraud against the State of Illinois is practiced or attempted by any Claimant in the proof, statement, establishment or allowance of any claim or any part of any claim, the claim or part thereof shall be forever barred from prosecution in the Court. Claimant, since the initial submission of the bills at issue, has attempted to avoid an audit of those bills, has practiced without the proper licenses, and attempted to obtain payment by willfully failing to provide the information requested at the entrance visit. As the Claimant was not properly licensed, we find by clear and convincing evidence that a payment for services to an improperly licensed provider would constitute fraud. Section 111(12) of the provider participation requirements requires a provider to furnish to the Department on the form and manner requested, pertinent information regarding services for which charges are made. Section 111(15) requires the provider to comply with the requirements of applicable Federal and State law and the participant shall not engage in practices prohibited by applicable Federal and State law. It would be a fraud on this Court to pay Claimant while Claimant willfully violates the requirements of participation in the program that Claimant agreed to do.

For the foregoing reasons, it is the order of this Court that the claim of Claimant be and hereby is denied.