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Posted on Wednesday, July 5^th 2006

Goldberg Law Group includes Illinois Department of Professional Regulation attorneys that can also address Illinois dental license issues. Contact us for more information.

I. Introduction

The Illinois Department of Professional Regulation (IDPR) oversees the Illinois statutes that govern the licensure and discipline of professional and occupational groups. The statutes that govern these groups are found in chapter 225 of the Illinois Compiled Statutes. IDPR is legislatively mandated to administer and enforce 44 separate legislative acts that regulate the conduct of many professions and occupations in Illinois, including physician licenses, Illinois dental licenses, and many other health care professions. While IDPR regulates numerous professional and occupational licenses (a complete list can be found at IDPR's official website-www.state.il.us/dpr.), this article will focus on representing physicians subject to IDPR disciplinary action. According to paragraph 60/2.2 of 225 Illinois Compiled Statutes 1996,

II. A General Overview of the Enforcement Division of IDPR

A. Investigations

The Division of Statewide Enforcement is responsible for investigations of alleged violations of any regulatory statutes under the Department's jurisdiction. The disciplinary process begins when the Department becomes aware of a complaint against a licensee, including Illinois dental licenses. Once a complaint (emanating from the public, practitioners or governmental agencies) has been reviewed, it is assigned to a Department investigator. The investigator is responsible for determining if there has been a potential violation of a licensing law, or Department Rules and Regulations. 225 ILCS 60/22 (A)(1)-(43) set forth the grounds upon which the Department may seek disciplinary action against a physician. Furthermore, 68 Ill. Admin. Code Section 1285.240 sets forth the standards for three frequently plead allegations: dishonorable, unethical or unprofessional conduct; immoral conduct and gross negligence. It should be noted that section 60/22 states that the Department must bring an action against a physician within three years after receipt of a complaint and not more than five years after the date of the incident or act alleged to have violated Section 60/22. However, 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 for cheating on the licensing examination.

After developing the facts in a case where there appears to be a violation, the investigator refers the case to a prosecuting attorney. Frequently, a professional will contact an Illinois Department of Professional Regulation attorney when an IDPR investigator contacts him or her. At that juncture, the attorney should contact the investigator, and request that all further inquiries pertaining to the professional be channeled through counsel.

C.Prosecutions

The prosecutions unit seeks to ensure that licensees who are accused of violating a professional act are properly disciplined. If there is insufficient evidence to indicate a violation of the particular licensing statute, the investigative file is normally closed. After a case has been referred to a prosecuting attorney, the investigation of the professional can often continue in order to build a solid case against the professional, and to determine whether to file formal charges and a prayer for disciplinary action.

When a case is originally referred to the prosecutions unit, frequently it is handled informally, through the consent order process, whereby the Department and the professional avoid the time and expense of a formal hearing and negotiate a settlement. Present at a physician's informal conference are the prosecutor, a board member from the Medical Disciplinary Board, sometimes the investigator and the physician, who may be represented by an attorney. The informal conference is confidential. The Medical Disciplinary Board is created pursuant to 225 ILCS 60/7, which states that the Disciplinary Board shall consist of 9 members, appointed by the Governor.

According to 68 Ill. Adm. Code Section 1285.220 notice of the informal conference will be sent to the physician at least 10 days before it is scheduled. At the informal conference the prosecutor and the board member inform the physician of the allegations against him or her and ask for an explanation. None of the formalities of a hearing pertain. The conference is much like a typical business meeting. While most of the questions will be directed to the physician, the Illinois Department of Professional Regulation attorney may interject at any time, and the physician may confer with counsel as often as desired. The physician may present any mitigation that might assist the Board. When both sides are finished discussing the allegations, the prosecutor and the board member will have a private discussion outside the presence of the physician and counsel. After the brief discussion, the physician and counsel will be called back into the conference room and informed of the disciplinary action recommended, if any. According to Title 68 Ill. Adm. Code Section 2185.225 if the physician agrees in principle to the proposed action, the prosecutor will draft a consent order to be formally accepted or rejected by the physician within 30 days. If accepted by the physician, the consent order must be approved by a majority of the Board and the Director of the Department before it becomes a final order.

Pursuant to 225 ILCS 60/36, if the case is not closed and the parties do not enter into a consent order, the prosecuting attorney will file a complaint and a preliminary hearing date will be scheduled. Thereafter, the physician must answer or otherwise plead within 20 days. According to 225 ILCS 60/38 the Disciplinary Board or the Department has the power to subpoena and bring before it any person in this State (including the accused) and to take testimony either orally or by deposition.

Discovery is generally conducted in an informal manner. However, attorneys should look to 68 Ill. Adm. Code Section 1110.130, which sets forth, rules for discovery. Title 68 states that discovery shall not be the subject of motions, except when a motion is made alleging failure to comply. Upon written request served on the opposing party, any party shall be entitled to the name and address of any witness who may be called to testify; copies of any document, which may be offered as evidence; and a description of any other evidence, which may be offered. Whether or not a request is made during discovery a registrant shall be entitled to any exculpatory evidence in the Department's possession, and copies of any investigative report, which purports to be a memorandum of interview of the registrant. Upon a written request served on the professional, at any time after a Complaint is filed, or at any stage of the hearing, the professional will be required to produce documents, books, records or other evidence which relate directly to conduct of the trade, occupation or profession.

If a case goes to a hearing, it is held before an IDPR hearing officer and a Medical Board Member. The hearing is an administrative proceeding conducted pursuant to the Administrative Procedure Act, the Medical Practice Act and the Department's procedural rules. 68 Ill. Adm. Code 1110.190 states that the burden of proof rests with the Department and a recommendation for discipline may be made by the Committee or hearing officer only where the Department establishes by clear and convincing evidence that the allegations of the Complaint are true. Hearings are open to the public. At the completion of the hearing, the hearing officer's recommendation, along with the complete file and transcript are forwarded to the Medical Disciplinary Board for deliberation. The Board can order that the physician's license remain in good standing, or they can order disciplinary action, which can include license termination, revocation, suspension, probation reprimand and censure. The physician shall have 20 days thereafter to request a rehearing. If a rehearing is not requested within 20 days or is denied, the Board's order is forwarded to the Director of the Department, and once signed by the Director, the order is final. A final order may be appealed to the circuit court within 35 days under the Illinois Administrative Review Act. In some cases, an appeal may be carried as far as the United States Supreme Court.

D. Conclusion

The vast majority of the cases brought against physicians, and all professionals regulated by IDPR, are settled short of a formal hearing. However, if a consent order cannot be negotiated, it is crucial that attorneys representing physicians, or any professionals, be well versed in the applicable policies and procedures. Specific attention should be given to 225 ILCS 60/1-60/63 and the Administrative Procedure Act