Binkley v. Zollar

                                                  FIFTH DIVISION
                                                  FILED: 6/13/97












No.  1-96-3073

CONSTANCIA O. BINKLEY,                  )    APPEAL FROM THE
                                        )    CIRCUIT COURT OF
          Plaintiff-Appellant,          )    COOK COUNTY
                                        )
                    v.                  )
                                        )
NIKKI M. ZOLLAR, Director of the        )
Illinois Department of Professional     )
Regulation, and KITTIE D. WEST, Manager )
of the Nurse Licensing Unit of the      )
Illinois Department of Professional     )
Regulation,                             )    HONORABLE
                                        )    DOROTHY KINNAIRD,
          Defendants-Appellees.         )    JUDGE PRESIDING.


     JUSTICE HOFFMAN delivered the opinion of the court:      
     The plaintiff, Constancia O. Binkley, appeals from an order of
the circuit court affirming a decision of the Illinois Department
of Professional Regulation (Department) denying her application for
licensure as a registered professional nurse.  For the reasons
which follow, we affirm.
     After completing a three-year course of study, the plaintiff
received a degree in nursing from St. Anne's School of Nursing in
the Philippine Islands, and was licensed as a registered nurse in
that country in 1982.  The plaintiff migrated to the United States
in 1988, and has been employed as a nurse-technician and certified
nurse assistant at Michael Reese Hospital in Chicago since November
1989.  
     The plaintiff registered to take the National Council
Licensure Examination for Registered Nurses (NCLEX) in Illinois in
July 1989, but was absent from the test due to illness.  Thereaf-
ter, the plaintiff took and failed the NCLEX in Minnesota in
February 1990, February 1991, July 1991, February 1992, July 1992,
and February 1994.  In July 1994, the plaintiff passed the NCLEX in
Minnesota and was licensed as a registered professional nurse in
that state on July 13, 1994.      
     Supported by her Minnesota license, the plaintiff applied to
the Department on October 24, 1994, for a license to practice as a
registered professional nurse in Illinois under the endorsement of
license provisions of section 19 of the Illinois Nursing Act (Act)
(225 ILCS 65/19 (West 1994)).  The Department denied her
application on November 2, 1994, because, on the date that the
plaintiff received her license to practice as a registered
professional nurse in Minnesota, that state's requirements to be
licensed by examination were not substantially equal to the
Illinois requirements in effect at that time.  Specifically, her
application was denied because she failed to pass the licensing
examination within three years as required by section 15 of the Act
(225 ILCS 65/15 (West 1994)).         
     On December 6, 1994, the plaintiff filed a complaint for
administrative review in the circuit court.  The circuit court
affirmed the decision of the Department, and this appeal followed. 
     Relying upon the decision in Murry v. Department of Profes-
sional Regulation, 279 Ill. App. 3d 655, 664 N.E.2d 716 (1996), the
plaintiff argues that the requirement that an applicant pass a
licensing examination within a three-year period as set forth in
section 15 of the Act applies only to licensure by examination and
not licensure by endorsement under section 19 of the Act.  We
disagree, and decline to follow Murry.  
     Section 19 of the Act provides that:
          "(a)  Upon payment of the required fee, and pursuant
     to rules and regulations promulgated by the Department,
     an applicant who is a registered professional nurse ***
     licensed by examination under the laws of another state
     or territory of the United States shall, without
     examination, be granted a license as a registered
     professional nurse *** by the Department:
          (1)  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 ***; or
               (2)  whenever such requirements of another
          state or territory of the United States together
          with educational and professional qualifications,
          as distinguished from practical experience, of the
          applicant since obtaining a license as a registered
          professional nurse *** in such state or territory
          of the United States are substantially equal to the
          requirements in force in Illinois at the time of
          application for licensure as a registered nurse ***
          in Illinois."  225 ILCS 65/19(a) (West 1994).    
          Thus, to be eligible for licensure by endorsement, an applicant
must be licensed by examination as a registered professional nurse
under the laws of another state or territory of the United States,
and the requirements for licensure in such other state or territory
on the date that an applicant was so licensed must have been
substantially equal to the requirements in force in Illinois at
that time.  
     To be licensed as a professional registered nurse by exami-
nation in both Illinois and Minnesota, applicants must pass the
NCLEX.  Illinois, unlike Minnesota, has a time limit within which
an applicant must pass the examination.  Section 15 of the Act
provides that "any 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 ***, 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"
specified in section 12 of the Act.  225 ILCS 65/15 (West 1994). 
     There is no question that the plaintiff's failure to pass the
NCLEX within three years would have rendered her ineligible to be
licensed by examination in Illinois by reason of the provisions of
section 15 of the Act.  The issue before us, however, is whether
her failure to pass the NCLEX within three years also renders her
ineligible for licensure by endorsement under section 19 of the Act
as a consequence of Minnesota's failure to impose the same three-
year requirement for passing the examination.
     As stated earlier, the court in Murry held that the three-year
examination passage rule set forth in section 15 of the Act applies
only to licensure by examination, not licensure by endorsement
under section 19 of the Act.  Murry, 279 Ill. App. 3d at 659.  In
reaching that conclusion, the court found that application of the
three-year rule to licensure by endorsement was the product of the
Department's regulations, specifically, section 1300.30 of title 68
of the Administrative Code which states that passage of the
examination within three years from the date that it is first taken
"shall be a requirement for Illinois nurse licensure by
endorsement" (68 Ill. Adm. Code  1300.30(7) (1994)).  See Murry,
279 Ill. App. 3d at 658-59.  According to the Murry court, such a
regulation is inconsistent with the legislative intent with regard
to licensing.  Murry, 279 Ill. App. 3d at 658.  We must
respectfully disagree with the conclusion reached in Murry, and the
reasoning that the court employed to reach that conclusion.     
     Because the practice of professional nursing affects the
public health, safety, and welfare, the legislature declared it to
be subject to regulation and control (225 ILCS 65/2 (West 1994)),
and authorized the Department to promulgate rules to implement,
interpret, or make specific the provisions and purposes of the Act
(225 ILCS 65/10(a) (West 1994)).   The Department has interpreted
section 19 of the Act to mean that licensure by endorsement is not
available to a person who, although licensed by examination as a
registered professional nurse in another jurisdiction, would have
been ineligible for licensure by examination in this State by
reason of our stricter requirements.  In furtherance of that
interpretation, the Department promulgated a regulation making the
three-year rule of section 15 of the Act applicable to those
seeking licensure by endorsement under section 19.  We believe that
such an interpretation is both reasonable and consistent with the
purposes of the Act. 
     The primary rule of statutory construction, to which all other
rules of construction are subordinate, is to determine and give
effect to the intent of the legislature.  People ex rel. Baker v.
Cowlin, 154 Ill. 2d 193, 607 N.E.2d 1251 (1992).  In determining
the intent of the legislature, courts should first consider the
language of the statute and, where that language is clear, it
should be given effect without resorting to other aids for
construction.  Baker, 154 Ill. 2d  at 197.  By clear and unambiguous
language, section 15 of the Act imposes a three-year period within
which a person must pass an examination in order to be licensed as
a registered professional nurse by examination in Illinois. 
Section 19 of the Act, also by clear and unambiguous language,
provides for licensure by endorsement, but only if the applicant is
licensed by examination in another jurisdiction that imposes
requirements for licensure that are substantially equal to those in
force in Illinois.  
     A state that permits a person to take a licensing examination
an unlimited number of times until passage can hardly be said to
have substantially equal requirements as a state, such as Illinois,
which limits the period within which a applicant must pass a
licensing examination to three years and, in the event that the
applicant fails to pass the examination within such a period,
requires proof of further study.  It would be an anomaly for
Illinois to require applicants for a license by examination to pass
a licensing examination within three years, but permit others who
failed to pass the very same examination within three years to be
licensed by endorsement.  Such an interpretation would encourage
Illinois residents unable to pass the NCLEX within a three-year
period, like the plaintiff in this case and the plaintiff in Murry,
to cross into a neighboring state that has no comparable three-year
rule, take the examination as many times as is necessary in order
to pass, obtain a license to practice as a registered professional
nurse in such a jurisdiction, and then apply for licensure in
Illinois by endorsement, thereby effectively avoiding the
requirements of section 15 of the Act.  Either the ability to pass
a licensing examination within three years reflects on one's
ability to practice as a registered professional nurse, or it does
not.  Our legislature thinks that it does (see 225 ILCS 65/15 (West
1994)), and the Department's interpretation of section 19 of the
Act in this case is wholly consistent with that legislative
determination and the plain language of the statute. 
     The decision of the circuit court affirming the Department's
denial of licensure in this case is affirmed.
     Affirmed.
     HOURIHANE and SOUTH, JJ., concur.