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Administrative / Health Care Law

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An Overview of the Illinois Department of Financial and Professional Regulation

By Michael V. Favia and Marlene E. Siedlarz

Attorneys representing doctors, dentists and other licensees before the Illinois Department of Financial and Professional Regulation must know the policies and procedures of the agency to best represent their clients.

Diamond Brownridge was a beautiful five year old who, at the end of September 2006, went for a routine visit to her dentist in Chicago's Little Village Neighborhood. The visit turned out deadly when following the administration of anesthesia Diamond went into a coma, and then, four days later, died.¹

The Department of Financial and Professional Regulation took immediate action following her death and suspended the dentist's, Dr. Hicham K. Riba's, license. Although the act regulating dentists differs in some respects from the Medical Practice Act of 1987, as amended in 2006 - which is the focus of this article - in taking immediate action in Dr. Riba's case, the Department showed not only the extent to which it has the power to regulate certain professions, but also how important it is for attorneys representing their clients in front of the Department to know the inner workings of that office.

Representing licensees at the Department of Financial and Professional Regulation is definitely a balancing act for most attorneys. On the one side there is the licensee, who may be unfairly accused of violating his or her professional or occupational act. On the other, there is the public, the members of which have every right to be protected against unqualified licensees. This is especially true in the area of doctor-patient relationships.

In fulfilling its mission to protect the public and ensure proper qualifications for licensees, the Department frequently calls before it members of the various licensed professions to determine whether they have violated applicable statutes, and if so, what discipline should be administered.² Licensees called before the Department often seek legal help in negotiating what may seem an invasive and distressing process. For attorneys who are unfamiliar with the Department and its disciplinary process, this overview may be helpful.

The department structure

The Department of Financial and Professional Responsibility is divided into two divisions: 1) licensing and testing and 2) statewide enforcement.³

The main task of the licensing and testing division is to ensure that applicants for licenses who fall under the division's jurisdiction are qualified. In overseeing the applicants and the Department's procedures, the licensing and testing division works with over 40 professional and occupational boards and committees that serve in an advisory capacity to the Department.⁴

To fulfill its main task, the licensing and testing division processes the application, reviews the applicant's history, and, if necessary, convenes a professional licensing board or committee to review the application in more detail.⁵ The division also administers appropriate tests and, if the applicant fulfills all necessary requirements, distributes licenses.⁶

The statewide enforcement division enforces the 49 professional and occupation legislative acts that regulate the conduct of professions and occupations in the state.⁷ It is divided into investigative and prosecutions divisions.⁸

The investigative division follows up on complaints received from the public, other practitioners, and law enforcement and other governmental agencies.⁹ When an investigation yields enough evidence to prosecute a licensee under the statutory authority set out in the applicable professional or occupational practice act, the case is referred to a staff attorney in the prosecutions division.¹⁰ The prosecutions division's duty is to ensure that licensees who violate a professional practice act are disciplined appropriately within the bounds of due process.

Informal process

There are two ways in which cases referred to the prosecutions division may be addressed: 1) an informal hearing or 2) a formal evidentiary hearing. In determining what hearing to proceed with, the Department will consider, among other factors, the nature of the charges, the level of cooperation from complaining parties, and the sufficiency of the evidence presented.¹¹ In an informal hearing, the prosecution and the licensee have an opportunity to negotiate the kind of disciplinary measure that the licensee will be faced with.

During the informal hearing the licensee will have an opportunity to present his or her side of the story and hear what the Department has learned about the alleged situation.¹² The notice of an informal hearing, including a statement of the alleged violations, is sent to the licensee at least 10 days before the conference.¹³

The licensee is well advised to bring his or her attorney to the informal hearing, though representation by counsel is not required. A knowledgeable, well-prepared attorney can be instrumental in assuring that the scope of the questions is limited to the charges, that proper protocol is followed, and that mitigating factors are raised. Also, a skilled attorney can always try to persuade the Department to reconsider its case or render a lesser discipline.

In addition to the licensee and his or her attorney, the division attorney and a member of a disciplinary board will also be present.¹⁴ The informal conference can result in a recommendation that the case be closed, investigated further, or referred to a formal hearing, or that a consent order be entered.¹⁵

Frequently, an informal conference will result in the drafting of a consent order. The consent order may include either a disciplinary or a non-disciplinary action. Examples of disciplinary actions include reprimand, suspension, revocation, probation, and/or fines.¹⁶ Non-disciplinary actions include remedial continuing medical education, referral to treatment, and/or administrative warning.¹⁷

Once the consent order has been issued and forwarded to the respondent, he or she has 30 days to sign and return it.¹⁸ If the licensee fails to return the consent order, the Department presumes that he or she does not agree to it.¹⁹

Once the proposed consent order is properly executed, it will be presented at the disciplinary board meeting for the board's consideration. If accepted, the order will then be presented to the director who will, within 15 days, either sign the consent order, return it to the board with changes, or enter a modified order under the variance procedure provided for under the Medical Practice Act.

Generally, the director approves the proposed and properly executed consent order.²⁰ Once that happens, the respondent is deemed to have waived the right to a formal hearing and administrative review.

Formal process

The formal-level process is governed by the Department's procedural rules, which address the initiation of the complaint, answers, motions, subpoenas, discovery, and evidence. Additionally, the Administrative Procedure Act and each professional and occupational licensing act contain rules for adjudicatory actions. These procedural rules ensure that fundamental fairness and due process are adhered to.

For most alleged wrongful actions by physicians, the Department must bring an action against a licensee within five years of the receipt of a complaint and not more than 10 years after the date of the incident or act under certain grounds or circumstances as set forth in section 60/22 of the Medical Practice Act of 1987, as amended in 2006.²¹ Specifically, the five-year limitation does not apply to alleged violations relating to practicing under a false name, fraud or misrepresentation in applying for or procuring a license, or cheating on the licensing exam. For professional negligence settlements/judgments the Department has an additional two years from the receipt of notification, as specified in detail in section 60/23.

For the licensee, the formal-level process begins with the filing of a written verified complaint setting out the facts for either suspension or revocation of a license under the Medical Practice Act of 1987.²² The complaint is filed by the prosecuting attorney with the clerk of the court within the adjudicative services unit of the Department. At least 30 days prior to the hearing date, the licensee, now called a respondent, should be provided with a written notification of 1) the charges made against him or her, 2) the time and place of the hearing, and 3) the opportunity to file a written answer.²³

Notice may be given by personal delivery or by certified or registered mail at the address last known to the Department.²⁴ The answer, given under oath, has to be submitted in writing within 20 days after the respondent receives the notice.²⁵

If the accused fails to submit an answer most professional acts and specifically the Medical Practice Act states that "[such failure] will be taken against [him] and [his] license may be suspended, revoked, placed on probationary status, or have other disciplinary action.....as the Department may deem proper taken with regard thereto."²⁶ Alternatively, the respondent may file a motion to dismiss or other motion.

If a formal disciplinary hearing is necessary, the rules will allow both sides to present their positions, defenses, and any mitigating factors via an evidentiary hearing process.²⁷ Specifically, the formal hearing is an administrative proceeding, open to the public, involving the licensee and his or her counsel, an administrative law judge, a board or committee member, and a Department prosecutor.²⁸

Also, in most cases, both sides retain the services of experts to testify on their behalf. The respondent and other witnesses are usually called to give testimony, as necessary. The hearing may take several days to weeks to complete.

Even if the formal proceeding is already underway, at any time before the conclusion of the hearing the parties may attempt to settle the case. If the parties decide to settle, the Department attorney will prepare a stipulation and recommendation for settlement, which, if approved by the board and signed by the director, will close the case. Once the case is closed, the respondent is deemed to have waived administrative review.

Although in most cases referred to the Department there is a hearing prior to the board taking any action, if, after consultation with the chief or deputy medical coordinator, the director decides that immediate action should be taken, he or she can do so.

For example, in the case of a physician the director can take immediate action, including suspending a license, if the director finds that allowing the accused physician to continue seeing patients would constitute "an immediate danger to the public."²⁹ If the director acts in this manner, the disciplinary board has to conduct a hearing within 15 days after the suspension.³⁰ Although summary suspensions are infrequent, they do occur.³¹

Here, as in most cases, the Department conducts its hearings according to its administrative procedure. The parties can seek to subpoena persons and hospital records, depose witnesses, and investigate business premises of a licensee.³²

The standard of proof used during this administrative proceeding is "clear and convincing" evidence of a violation,³³ and the discovery process is generally conducted in a quasi-formal manner. However, one should look to 68 Ill Adm Code Section 1110.130, which sets forth rules for discovery for guidance.

At the conclusion of the formal hearing, the complete file will be forwarded to the board for deliberation. A Department attorney is present at the deliberations to draft the board's findings of fact, conclusions of law, and recommendation to the director.

After its deliberations, the disciplinary board will recommend to the director what type of disciplinary action, if any, should be taken in the case. Such disciplinary action can include license termination, revocation, suspension, probation, reprimand, and censure.³⁴ How-ever, if the evidence demonstrates that the licensee did not violate his or her professional or occupational practice act, the Board can order that licensee to remain in good standing.³⁵

After the disciplinary board makes its recommendation to the director, a copy of the report created by the board will be served on the licensee who will then have 20 days to motion to the Department for a rehearing.³⁶ If the respondent decides not to file a motion for a rehearing, at the end of the 20 days the director can decide to follow the board's recommendation and sign the order.³⁷

If the respondent decides to file a motion for rehearing within the 20-day period, it should be filed with the clerk, who will forward a copy to the Department attorney who handled the case. The Department attorney then prepares a response to the motion for a rehearing.

The attorney will also prepare an order, which, along with the entire case record, is forwarded to the director, who can either grant a rehearing or accept the board's recommendations. If the director accepts the board's recommendation and signs the order, it then becomes final.

Once the order has been entered, the physician can file an appeal in a circuit court.³⁸ The licensee has 35 days to file the appeal in the circuit court.³⁹ If the licensee decides to file an appeal, the decision of the board and the director will stay effective until the decision in the appeal case.⁴⁰

Once the case is totally completed and all appeals have been exhausted, the licensee whose license has been suspended, revoked, or terminated may file a petition for restoration with the clerk to have his or her license restored by the department. The reopened case is then assigned to a department attorney and a new hearing may be commenced.

Conclusion

The Illinois Department of Financial and Professional Regulation is charged with ensuring that professional and occupational standards of practice are upheld and that professional practice statutes are energetically enforced. Department investigators and attorneys work diligently to perform this duty. Attorneys representing clients before the Department should be familiar with its policies and procedures if they are to provide the best representation possible.

Marlene E. Siedlarz is a 2004 graduate of the University of Illinois College of Law and is practicing with Wolfe & Stec, Ltd in Woodridge.

1. See, Brendan McCarthy, Autopsy: Girl sedated at dentist died of lack of oxygen to her brain, Chi Trib (Sept 28, 2006), available at http://www.topix.net/content/trb/3890387100272128799325816146770944249817.
2. The statutes that govern professional and occupational groups can be found at 225 ILCS 2/1 et seq and Ill Adm Code, Title 68.
3. General Information Pamphlet, online at http://www.idfpr.com/dpr/NEWSRLS/pubs.asp.
4. Illinois Department of Professional Regulation, Biennial Report for Fiscal Years 2001 and 2002 at 27, online at http://www.idfpr.com/dpr/NEWSRLS/
nrelease/01-02%20report.pdf.
5. Id at 15.
6. Id.
7. General Information Pamphlet (cited in note 3).
8. Biennial Report for Fiscal Years 2001 and 2002 at 9-10 (cited in note 4).
9. Id. Complaints can be called in to the Depart-ment's Complaint Intake Unit by calling 312-814-6190, filed online at www.dpr.state.il.us, or by writing to the Unit at the Chicago office.
10. Id at 9.
11. See, for example, 68 Ill Adm Code 1285.205(c)(4).
12. Id at 1285.220(e).
13. Id at 1285.220(b).
14. Id at 1285.220(c).
15. Id at 1285.220(f)(1)-(4).
16. Id at 1285.225(b)(1).
17. Id at 1285.225(b)(2).
18. Id at 1285.225(a).
19. Id.
20. Biennial Report for Fiscal Years 2001 and 2002 at 10 (cited in note 4).
21. 225 ILCS 60/22.
22. 225 ILCS 60/36.
23. Id.
24. Id.
25. Id.
26. Id. See also §37.
27. 225 ILCS 60/37.
28. Biennial Report for Fiscal Years 2001 and 2002 at 10 (cited in note 4).
29. 225 ILCS 60/37.
30. Id.
31. Going back to the Diamond Brownridge case described in the introduction to this article, a summary suspension procedure was applied to Dr. Hicham K. Riba. Although the dental practice act is a little different from other occupational acts, it may be useful to look at the timeline for the Department's response to Dr. Riba's case. The immediate response of the Department shows the seriousness with which the Department takes licensing cases:

Timeline of Diamond Brownridge's case and the Depart-ment's response
September 23, 2006 - Diamond visits the dentist's office
September 27, 2006 - Diamond dies
September 29, 2006 - The Department suspends Dr. Riba's license
October 13, 2006 - The Department schedules a hearing

32. 225 ILCS 60/38.
33. 68 Ill Adm Code 1110.190.
34. 225 ILCS 60/40.
35. Biennial Report for Fiscal Years 2001 and 2002 at 10 (cited in note 4).
36. 225 ILCS 60/40.
37. Id.
38. 225 ILCS 60/41.
39. Biennial Report for Fiscal Years 2001 and 2002 at 10 (cited in note 4).
40. 225 ILCS 60/41.