Yap v. Zollar

12/31/97

No. 1--96--0141

MARIA R. YAP, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
NIKKI M. ZOLLAR, as Director of the )
Illinois Department of Professional )
Regulation, ILLINOIS DEPARTMENT OF )
PROFESSIONAL REGULATION, and the )
members of the Committee of Nurse )
Examiners, ) Honorable
) Edwin M. Berman,
Defendants-Appellants. ) Judge Presiding.

JUSTICE BURKE delivered the opinion of the court:

Defendants Nikki Zollar, Director of the Illinois Department of
Professional Regulation, and the Illinois Department of Professional Regulation
(Department) appeal from an order of the circuit court reversing the Department's
decision denying plaintiff Maria Yap licensure by endorsement as a professional
registered nurse. On appeal, defendants argue that: (1) the Department's
application of section 15 of the Illinois Nursing Act of 1987 (Act) (225 ILCS
65/15 (West 1993)) did not constitute a prohibited retroactive application of the
statute because the Department denied Yap's application based on the Act as it
existed in May 1995, and Yap was not deprived of a property or liberty interest
because she did not have a vested right to a license; (2) the trial court erred
in reversing the Department's decision because Yap failed to satisfy Illinois'
statutory requirements for licensure by endorsement based on the fact that the
licensing requirements in Minnesota, where Yap first became licensed, "were not
substantially equal to the Illinois requirements for licensure then in force";
(3) the change made to section 15 of the Act was merely procedural and not
substantive and only clarified existing law; (4) contrary to Yap's argument that
she complied with the requirements of a 1990 amendment to section 15 of the Act
and that her "time of application" cannot be considered to have started to run
prior to the 1990 amendment, there "is simply no basis to ignore the first
examination attempt," and the fact that the Department considered that
examination does not mean that the Department retroactively applied the 1990
amendment; (5) Yap's application would have been properly denied under the "six
times within three years" rule required for passing the exam which was in effect
between 1988 and 1990; (6) even if this court finds that the Act cannot be
applied retroactively to deny Yap licensure by endorsement in Illinois, pursuant
to Valdez v. Zollar, 281 Ill. App. 3d 329, 665 N.E.2d 560 (1996), and de la Rosa
v. Zollar, 291 Ill. App. 3d 855, 684 N.E.2d 811 (1997), all pre-1990 applicants
were required to pass the National Council Licensure Examination (NCLEX) by March
1993 and, because Yap did not pass the exam until 1994, her application was
properly denied; and (7) the State's statutory interests in the licensing of
qualified nurses outweigh whatever inequity Yap may have suffered due to the
application of the 1990 amendment to section 15 of the Act. For the reasons set
forth below, we affirm.
Yap graduated from nursing school in the Philippines in 1979. In February
1987, Yap first attempted to pass the NCLEX exam in Illinois. The NCLEX is a
standardized nationwide exam given to all applicants who want to practice nursing
in the United States. Yap took and failed the exam in Minnesota in July 1992,
February 1993 and July 1993. Yap took and passed the exam in Minnesota in
February 1994, and was issued a license to practice nursing in that state on
March 3, 1994. On June 15, 1994, Yap also was issued a license by endorsement
in Florida and, on July 19, 1994, she was issued a license by endorsement in
Indiana.
In May 1995, Yap applied for licensure by endorsement in Illinois based
upon her Minnesota license. On June 15, 1995, the Department sent Yap a letter
denying her application for licensure by endorsement to practice nursing in
Illinois. The letter stated that, as of the date of Yap's licensure in Florida
(June 15, 1994),[fn1] section 15 of the Illinois Nursing Act of 1987 (Act) (225
ILCS 65/15 (West 1993)) required an applicant to pass the NCLEX exam within three
years of the applicant's first attempt, and because Yap had not passed the exam
within three years of her first attempt (February 1987), she could not be
licensed by endorsement in Illinois. The letter also stated that the Act
prescribed that the requirements in effect in the state of original licensure at
the time of an applicant's licensure had to be substantially equal to the
Illinois licensure requirements in effect at that time and, in Yap's case, they
were not substantially equal because Minnesota did not impose any time limits for
passing the NCLEX. The letter instructed Yap that under section 15 of the Act,
she must successfully recomplete an approved registered professional nursing
education program and submit a new application and supporting documentation
meeting all requirements in effect at the date of application.
On July 11, 1995, Yap filed a complaint for administrative review of the
Department's decision denying her licensure by endorsement. In her complaint,
Yap alleged that the Illinois licensure requirements in effect at the time she
first attempted the NCLEX exam in Illinois in 1987 required an applicant to pass
the exam within six attempts over an unlimited period of time. Yap also alleged
that the "six-failure" rule was repealed in January 1990, and replaced with a
provision which required an applicant to pass the NCLEX within three years of the
applicant's first attempt. Yap further alleged that the 1990 provision could not
be applied retroactively to her application for licensure by endorsement because
to do so would deny her equal protection and due process of law.
In its response to Yap's complaint, the Department stated that it had
denied Yap's application for licensure by endorsement because the licensing
requirements in her state of original licensure, Minnesota, were not
"substantially equal" to those in Illinois as prescribed by the Illinois Act.
The Department contended that "Illinois, unlike Florida,[fn2] requires that
those who do not pass the licensing examination within three years of the first
time they take the examination must complete the entire course of study." The
Department argued that Yap did not pass the NCLEX within three years from the
date of her first examination in 1987 in Illinois and, because she did not pass
the exam until 1994 in Minnesota, she could not be licensed in Illinois by
endorsement. The Department further argued that its application of the amended
1990 statute did not constitute improper retroactive application of that statute
because the change in the statute was procedural, rather than substantive.
In Yap's reply to the Department's response to her complaint, she argued
that the 1990 amendment to section 15 was substantive in nature, and therefore
could not be applied retroactively to her. Yap further argued that applying the
1990 amendment to her would deprive her of her constitutional right to pursue her
profession.
At the hearing on Yap's complaint on December 6, 1995, the trial court
discussed the fact that several cases were pending in this court "dealing" with
the same issue as the one presented by Yap. The trial court specifically
discussed Banzon v. Zollar, No. 95 CH 2119, in which another circuit court judge
ruled that the "same amended provision" of the Act could not be applied
retroactively. The trial court in the present case then ruled that the 1990
amendment could not be applied retroactively to Yap, stating:
"In view of what I stated on the record here with
regard to the previous ruling by Judge Getty and my
feelings that he is correct in that ruling, that this--
you cannot grant retroactive capability to a rule in the
middle of the game.
And I feel that's what this has done. ***
And there is really no sense in several courts
around this division to say the same thing.
I adopt his brief and ruling with regard to this
case."
The trial court then entered an order reversing the Department's decision denying
Yap's licensure by endorsement. This appeal followed.
The Department first argues that it's application of section 15 of the Act
did not constitute a prohibited retroactive application of the statute because
it denied Yap's application based on the Act in effect in May 1995, and Yap was
not deprived of a property or liberty interest because she did not have a vested
right to a license.
Yap contends that the trial court properly reversed the Department's
decision because it constituted an unconstitutional retroactive application of
section 15 of the Act. Yap argues that when she first took the NCLEX exam in
1987 in Illinois, she reasonably relied on the statute in effect at that time,
which required passage of the NCLEX exam within six attempts in an unlimited
period of time, and that to now change the requirements to passage within three
years of her first attempt to take the exam in 1987 would deprive her of her
constitutional right to pursue her profession.
"It is well settled that the factual findings of an administrative agency
are deemed prima facie true and correct and the agency's decision based thereon
may be disturbed by a court sitting in administrative review only where that
decision is contrary to the manifest weight of the evidence." Butlas v. Board
of Fire and Police Commissioners, 171 Ill. App. 3d 189, 193, 524 N.E.2d 1172
(1988). "When the question raised on review is purely legal, such as statutory
construction, an agency's interpretation should receive deference because it
flows from its experience and expertise," and this court's review is de novo.
Thomas M. Madden & Co. v. Department of Revenue, 272 Ill. App. 3d 212, 215, 651 N.E.2d 218 (1995). In the present case, there are no factual issues in dispute,
and the only issue is whether the Department's denial of Yap's application for
licensure by endorsement constituted an improper retroactive application of
sections 15 and 19 of the Act. Therefore, this court's review of the issues
presented is de novo.
"[A] retroactive change in the law is one that takes away or impairs vested
rights under existing laws, or creates a new obligation, imposes a new duty, or
attaches a new disability in respect of transactions or considerations already
past." Valdez, 281 Ill. App. 3d at 333. "Generally, a statute will be deemed
to operate prospectively and will not be given a retroactive effect unless the
language of the statute is clear in requiring it." Royal Imperial Group, Inc.
v. Joseph Blumberg & Associates, Inc., 240 Ill. App. 3d 360, 364, 608 N.E.2d 178
(1992). However, this presumption can be rebutted by showing that the amendment
merely affects a procedural as opposed to a substantive matter, or merely
clarifies existing law. Royal, 240 Ill. App. 3d at 364-65. A statute may also
be applied retroactively if such an operation appears "by necessary or
unavoidable implication." U.S. Steel Credit Union v. Knight, 32 Ill. 2d 138,
142, 204 N.E.2d 4 (1965).
When Yap first attempted the NCLEX, the relevant provision of the Act
regarding the requirements for licensure in this State provided, in pertinent
part:
"Any person in this State or in any other State or
territory of the United States who shall fail any
examination a total of 6 times, to determine the fitness
of such person to receive a license as a licensed
practical nurse shall thereafter be ineligible to take
any further examination until such time as such person
shall submit to the Department full evidence as the
Department may deem satisfactory, of the recompletion of
the entire course of study equivalent in the judgment of
the Department to the course of study required as a
prerequisite to admission to the initial examination."
(Emphasis added.) Ill. Rev. Stat. 1985, ch. 111, par.
3428.2.
In 1987, the Act was amended, effective January 1, 1988, and provided, in
pertinent part:
"[A]ny person in this State or in any other jurisdiction
of the United States who fails any examination a total
of 6 times within 3 years to determine the fitness of
such person to receive a license as a registered
professional nurse or a licensed practical nurse, shall
thereafter be ineligible to take any further examination
or examinations, or be issued a license, until such time
as such person shall submit to the Department full
evidence as the Department may deem satisfactory, of the
recompletion of the entire course of study, in the
judgment of the Department, to the course of study as
specified in Sections 12 and 13 respectively, of this
Act." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 111,
par. 3515.
The General Assembly also approved two additional amendments to section 15 on the
same day, September 1, 1989. Public Act 86--615, effective September 1, 1989,
amended section 15 as follows:
"However, any person in this State or in any other
jurisdiction of the United States who fails to pass an
examination any examination a total of 6 times within 3
years to determine the fitness of such person to receive
a license as a registered professional nurse or a
licensed practical nurse, shall thereafter be ineligible
to take any further examination or examinations, or be
issued a license, until such time as such person shall
submit to the Department full evidence as the Department
may deem satisfactory, of the recompletion of the entire
course of study, in the judgment of the Department, to
the course of study as specified in Sections 12 and 13
respectively, of this Act." Pub. Act 86--615, eff.
September 1, 1989, 1989 Ill. Laws 3344, 3356.
Public Act 86--596, effective January 1, 1990, amended section 15 as follows:
"However, any person in this State or in any other
jurisdiction of the United States who fails any
examination a total of 6 times within 3 years to
determine the fitness of such person to receive a
license as a registered professional nurse or a licensed
practical nurse, shall thereafter be ineligible to take
any further examination or examinations, or be issued a
license, until such time as such person shall submit to
the Department full evidence as the Department may deem
satisfactory, of the recompletion of the entire course
of study, in the judgment of the Department, to the
course of study as specified in Section 12 and 13
respectively, of this Act." (Emphasis added.) Pub. Act
86--596, eff. January 1, 1990, 1989 Ill. Laws 3213,
3227.
The 1989 Illinois Revised Statutes contained the September 1, 1989, amendment
language to section 15 requiring that the exam be passed "within 3 years" as
amended in Public Act 86--615, and the amendment history stated, "Amended by P.A.
86--596, 3, eff. Jan. 1, 1990; P.A. 86--615, 4, eff. Sept. 1, 1989; P.A. 86--
1028, Art. II, 2--56, eff. Feb. 5, 1990." (Emphasis added.) Ill. Rev. Stat.
1989, ch. 111, par. 3515. The next publication of the Illinois Revised Statutes
was in 1991 and it contained the identical provision published in the 1989
Illinois Revised Statutes. After enactment of these two simultaneous amendments,
the Act was then again amended, effective February 5, 1990, and provided, in
pertinent part:
"[A]ny person in this State or in any other jurisdiction
of the United States who fails to pass an examination
within 3 years to determine the fitness of such person
to receive a license as a registered professional nurse
or a licensed practical nurse, shall thereafter be
ineligible to take any further examination or
examinations, or be issued a license, until such time as
such person shall submit to the Department full evidence
as the Department may deem satisfactory, of the
recompletion of the entire course of study, in the
judgment of the Department, to the course of study as
specified in Section 12 and 13 respectively, of this
Act." (Emphasis added.) 225 ILCS 65/15 (West 1993);
Pub. Act 86--1028, eff. February 5, 1990, 1990 Ill. Laws
1, 388.
The Act also provided that an applicant who requested licensure by endorsement
would be granted such licensure "whenever the requirements of such state, or
territory of the United States were at the date of license substantially equal
to the requirements then in force in this State." 225 ILCS 65/19(a)(1) (West
1993).
We initially observe that the February 5, 1990, amendment is the amendment
at issue here because it superseded the January 1, 1990, amendment. Hyatt Corp.
v. Sweet, 230 Ill. App. 3d 423, 433, 594 N.E.2d 1243 (1992). The issue of
whether the 1990 amendment to section 15 of the Act could be applied
retroactively to an applicant for licensure by endorsement who first took the
NCLEX exam before the 1990 amendment was addressed by this court in Valdez, 281
Ill. App. 3d 329. In Valdez, two plaintiffs, Maryann Valdez and Nida Gaffud,
were denied licensure by endorsement by the Department based on the January 1,
1990,[fn3] amendment to the Act. Valdez first attempted and failed the NCLEX
exam in 1987. She then failed the exam in February 1988, February 1990, July
1990, February 1991, February 1992 and July 1992. She finally passed the exam
in Minnesota on her eighth attempt in February 1993. Gaffud first attempted and
failed the NCLEX exam in 1983. She then failed the exam in February 1984, July
1984, July 1985 and July 1991. Gaffud finally passed the exam in Wisconsin on
her sixth attempt in February 1993.
When both Valdez and Gaffud first attempted to pass the NCLEX exam, the
Illinois statute provided that applicants would be allowed a total of six
attempts within an unlimited period of time before being required to recomplete
their course of study. When both Valdez and Gaffud passed the exam in 1993, the
Illinois statute provided that an applicant must pass the exam within three
years, after which time the applicant would be required to recomplete his or her
course of study. Both Minnesota, where Valdez passed the exam, and Wisconsin,
where Gaffud passed the exam, had admission rules identical to Illinois' Act but
for the three-year time limitation imposed by Illinois' 1990 amendment to the
Act. Valdez, 281 Ill. App. 3d at 332.
The Valdez court held that the January 1990 amendment could not be applied
retroactively to "preclude additional NCLEX attempts [by Valdez and Gaffud] under
its three-year time limit before March 1993 because such a change would have
created a new obligation and imposed a new duty with respect to the past
consideration of previous exams." Valdez, 281 Ill. App. 3d at 333. The Valdez
court further stated:
"Whether a particular expectation rises to the level of
a vested right is not capable of precise definition, but
it should be a complete and unconditional demand or
exemption that may be equated with a property interest.
[Citation.] For a particular expectation to be strong
enough to render it complete and unconditional, we
believe that a major factor must be the reasonable
reliance that the expectation induces. [Citations.] In
this matter, the plaintiffs detrimentally relied on the
statute as it existed before 1990. They lost the
opportunity to attempt additional exams before their
three-year time limit expired. We find that the lack of
any time restrictions for passing the NCLEX before 1990
was an unconditional exemption that rose to the level of
a vested right." Valdez, 281 Ill. App. 3d at 333.
The Valdez court also declared that "March 1993 [is] *** when the three-year
limit could first be enforced to bar pre-1990 NCLEX applicants from future NCLEX
attempts, because March 1993 is when the 1990 amendment would first begin to bar
others who had initially attempted NCLEX after the amendment's effective date--
those who initially tried NCLEX in February 1990." Valdez, 281 Ill. App. 3d at
335.
In the present case, based on Valdez, we find that the February 5, 1990,
amendment could not be applied retroactively to preclude Yap's licensure by
endorsement. When Yap first took the NCLEX exam in February 1987, the Act
provided that an applicant could take the exam a total of six times within an
unlimited period of time before being required to recomplete the entire course
of study equivalent to the study required as a prerequisite to admission to the
initial examination. To deny Yap her license by endorsement based upon her
licensure in Minnesota in March 1994 and the application of the February 1990
amendment to the Act, requiring that an applicant pass the exam within three
years of first attempting the exam, would deprive Yap of a vested right because
she, being in the same position as the Valdez plaintiffs, reasonably relied on
the 1987 statute which allowed an applicant six attempts to pass the exam within
an unlimited period of time.
The Department also argues that the trial court erred in reversing it's
decision denying Yap licensure because Yap failed to satisfy Illinois' statutory
requirements for licensure by endorsement based on the fact that the licensing
requirements in Minnesota, where Yap first became licensed, "were not
substantially equal to the Illinois requirements for licensure then in force."
Because we find that the 1990 amendment cannot be applied retroactively to Yap's
application for licensure by endorsement, the Department's argument that its
denial of Yap's application for licensure was proper fails. Yap passed the
examination within three years of her first attempt after the 1990 amendment
became effective. Thus, even though the Minnesota statute, as the Department
contends, allowed for unlimited attempts, Yap clearly passed the exam within the
time limits set forth in the 1990 amendment to Illinois' Act.
The Department next argues that the change made to section 15 of the Act
was merely procedural, not substantive, and only clarified existing law. When
Yap first attempted the NCLEX exam, the Illinois statute allowed for an unlimited
time period. The act was subsequently amended to require passage within three
years. Because the February 1990 amendment significantly changed the time limit
required to pass the exam, we find that the change was substantive. As the
Valdez court stated, the Department cannot preclude additional NCLEX attempts
under the three-year provision to an applicant who first took the exam when the
statute provided for no time limit because the change in the statute would have
created a new obligation and imposed a new duty with respect to the past
consideration of previous exams. Valdez, 281 Ill. App. 3d at 333.
The Department's further arguments, that there "is simply no basis to
ignore *** [Yap's] first examination attempt" and the fact that the Department
considered that examination does not mean that the Department retroactively
applied the 1990 amendment, also fail in light of our holding that the 1990
amendment cannot be applied retroactively to Yap; the Department simply could not
base its denial of Yap's licensure by endorsement by calculating a three-year
time period from her pre-1990 first attempt to pass the exam. We also briefly
note that the Department's argument that Yap's application would have been
properly denied under the "six times within three years" rule required for
passing the exam which was in effect between 1988 and 1990 is without merit. The
Department did not deny Yap's licensure based on the 1988 statute. Additionally,
as the Valdez court recognized, the statute in effect from 1988 to 1990 placed
no limits on examination attempts if those attempts were spaced so that six were
not taken in a three-year period and, in fact, here Yap passed the exam on her
fifth attempt.
The Department also contends, however, that even if we find that the Act
cannot be applied retroactively to deny Yap licensure in Illinois, pursuant to
Valdez and de la Rosa, all pre-1990 applicants were required to pass the NCLEX
exam by March 1993 and, because Yap did not pass the exam until 1994, her
application was properly denied.
In de la Rosa, the plaintiff attempted and failed the NCLEX exam in July
1984, July 1986, February 1987, July 1987, and July 1993. The plaintiff passed
the exam in February 1994 and received her license as a registered nurse in
California on March 31, 1994. Thereafter, she was licensed by endorsement in
Indiana in July 1994, and subsequently applied for licensure by endorsement in
Illinois. The Department denied her application for licensure by endorsement
because she did not pass the exam within the three-year time limit prescribed by
the Illinois statute in effect at the time of her application. The trial court
reversed the Department's decision.
The de la Rosa court,[fn4] after discussing the Valdez decision and
restating that the January 1990 amendment to section 15 of the Act, requiring
that an applicant pass the exam within three years after her first attempt, could
not be applied retroactively to pre-1990 applicants, held that the plaintiff, who
was a pre-1990 applicant, was properly denied licensure by endorsement because
she failed to pass the exam by March 1993, the date the Valdez court had declared
as applicable to pre-1990 applicants. In so holding, the de la Rosa court
rejected the plaintiff's argument that "the three-year period begins to run from
the date of plaintiff's first attempt to pass the exam after the January 1990
effective date of the amended Act," stating:
"This contention controverts our decision in Valdez. In
our view, such an application of the statute could allow
pre-1990 applicants to elect not to make a first attempt
to pass the exam until more than three years after
January 1993 and still have three additional years
within which to qualify for licensure. Moreover, pre-
1990 applicants would be in a better position than post-
1990 applicants because they would be allowed more time
to pass the exam.
***
"In accordance with our holding in Valdez, we
believe plaintiff had an ample amount of time to have
discovered and adjusted to the 1990 amendment. *** We
determine that there was no detrimental reliance by
plaintiff in being required to comply with the current
provisions of the Act, which have been in effect since
1990, and that plaintiff had only a mere expectation in
the continuance of the Act that did not rise to the
level of a vested right. [Citation.] Thus, we hold
that, under these circumstances, the application of the
1990 amendment to plaintiff's situation does not
constitute retroactivity." de la Rosa, 291 Ill. App. 3d
at 861-62.
Accordingly, the de la Rosa court reversed the trial court, holding that the
Department's decision denying the plaintiff licensure by endorsement was proper
because, pursuant to Valdez, the plaintiff was required to pass the exam by
March 1993 but did not pass it until 1994.
While, we agree with the Valdez and de la Rosa courts to the extent that
the 1990 amendment cannot be retroactively applied to pre-1990 applicants, we
respectfully disagree with those courts that Yap was required to pass the exam
by March 1993 based on our determination that Yap had no notice of the March
1993 deadline.
"The long-standing rule is that the prospective application of statutes
is to be preferred to retroactive application because of the fundamental
principle of jurisprudence that the retroactive application of new laws is
usually unfair and the general consensus that notice or warning of the rule
should be given in advance of the action whose effects are to be judged."
Harraz v. Snyder, 283 Ill. App. 3d 254, 259, 669 N.E.2d 911 (1996) citing Moshe
v. Anchor Organization for Health Maintenance, 199 Ill. App. 3d 585, 598, 557 N.E.2d 451 (1990); Burke v. Department of Registration & Education, 83 Ill. App.
3d 647, 650, 404 N.E.2d 961 (1980) (holding that notice of a change in an
agency's interpretation of a rule that substantially affects an applicant's
licensure must be given before that new rule can be binding). In the present
case, the February 1990 amendment to section 15 does not place a pre-1990
applicant on notice that she was required to pass the exam by March 1993, as
opposed to within three years from her first attempt after the 1990 amendment,
as that amendment plainly states, and retroactive application of the 1990
amendment to Yap to preclude her licensure by endorsement therefore would be
unfairly prejudicial to her because of the lack of notice.
Yap also would not be on notice of the March 1993 deadline based on the
Department's regulation which was promulgated shortly after the 1990 amendment
of section 15 of the Act. Section 1300.25 of the Illinois Administrative Code
(68 Ill. Adm. Code 1300.25 (1996)), effective June 12, 1990, controlling the
NCLEX examination and licensure by endorsement provides, in pertinent part:
"If the examination is not passed within three years
from the date of the first examination taken, regardless
of jurisdiction in which the examination was written,
the applicant shall not be permitted to retake the
examination until such time as the applicant has
successfully recompleted the entire approved nursing
education program as set forth in Section
1300.40(h)(9)." 68 Ill. Adm. Code 1300.25(b)(3)
(1996).
The regulation does not state that an applicant who attempted the NCLEX before
the 1990 amendment must pass the exam before March 1993; the regulation merely
repeats the 1990 amendment's requirement of passage of the exam within three
years of an applicant's first attempt, as of 1990. Thus, based on the
Department's section 1300.25(b)(3) regulation, Yap could not have been on notice
that she was required to pass the NCLEX exam by March 1993. We also briefly note
that the first time Yap could have been aware of the March 1993 deadline declared
in Valdez was in May 1996, when the Valdez decision was issued.
Based on the foregoing, we therefore find that Yap was not on notice that
she was required to pass the exam by March 1993 and, because she passed the exam
in February 1994 within three years of her first attempt in July 1992 after
enactment of the 1990 amendment to the Act, the Department's denial of her
licensure by endorsement was erroneous.
The Department also argues, however, that the State's significant
"statutory interests" in the licensing of qualified nurses outweigh whatever
inequity Yap may have suffered due to the application of the three-year
requirement. In support of its argument, the Department relies on Yu v. Clayton,
147 Ill. App. 3d 350, 497 N.E.2d 1278 (1986), and Wineblad v. Department of
Registration and Education, 161 Ill. App. 3d 827, 515 N.E.2d 705 (1987). These
cases, however, are distinguishable. As the Valdez court stated, the plaintiffs
in Yu and Wineblad "did not reasonably rely on the previous rules." Valdez, 281
Ill. App. 3d at 334. In the case at bar, Yap detrimentally relied on the 1987
statute, losing the opportunity to attempt additional exams before expiration of
the three-year time limit of the 1990 amendment. While the State's interest in
licensing medical providers is of great importance, where an applicant is
"already licensed in other states, this court has been less ready to accept
arguments that severe actions are necessary to ensure the quality of medical care
in this state." Valdez, 281 Ill. App. 3d at 336. In the case at bar, based on
the fact that the amendment constituted a "severe action" because it affected a
vested right and Yap was already licensed in Minnesota, we find that the State's
interest in ensuring the quality of medical care does not outweigh Yap's right
to pursue her profession and her reasonable reliance on the statute as it existed
in 1987.
Lastly, we briefly note that Binkley v. Zollar, 289 Ill. App. 3d 189, 681 N.E.2d 153 (1997), upon which the Department relies in support of its argument
that Yap should be denied licensure in Illinois, is also distinguishable from the
case at bar. In Binkley, the plaintiff did not first attempt the NCLEX exam
until February 1990, after the relevant statutory provision had been amended to
provide that an applicant must pass the exam within three years from her first
attempt and, therefore, the plaintiff in that case, unlike Yap in the present
case, was on notice that she was required to pass the exam within three years of
her first attempt. Here, as stated above, Yap had no notice of the March 1993
deadline for pre-1990 applicants.
For the reasons stated, we affirm the judgment of the circuit court.
Affirmed.
McNAMARA and CERDA, JJ., concur.
[fn1]While the Department's letter indicated that Yap's original state of
licensure was Florida, in actuality, her original state of licensure was
Minnesota in March 1994.
[fn2]Later in its response to Yap's complaint, the Department referred to
the date of Yap's licensure in Minnesota. It also appears that the Department
was comparing the Illinois statute with the Minnesota statute in effect at the
time of licensure for purposes of the Illinois Nursing Act of 1987. Indeed, the
Department stated in its response that Yap was "ineligible for licensure by
endorsement in Illinois because Minnesota's requirements for licensure in 1994
were not substantially similar to the Illinois requirements" and, unlike the
statute in effect in Illinois, the Minnesota statute imposed no time limits for
passing the NCLEX exam.
[fn3]While the three-year limitation period within which to pass the exam
from an applicant's first attempt was at issue in Valdez, the Valdez court
indicated that the amended statute was effective January 1, 1990, and cited to
"225 ILCS 65/15 (West 1992)." However, while the cited statute contained the
three-year limitation language, as discussed above, the January 1, 1990,
amendment provided that failure to pass the exam "a total of 6 times" would
require recompleting the entire course of study. It was the February 5, 1990,
amendment, which superseded the January 1, 1990, amendment which provided for
passing the exam within three years.
[fn4]Both Valdez and de la Rosa were authored by the same justice of this
court, and the January 1, 1990, amendment was stated as the amendment at issue
in de la Rosa, as it was in Valdez.