On October 17, 2014, the Illinois Supreme Court upheld the constitutionality of a law that requires the Department of Financial and Professional Regulation (the “Department”) to permanently revoke the licenses of health-care workers convicted of sex-related crimes or crimes relating to battery of patients. The Court affirmed the decision of the appellate court, which affirmed the circuit court’s judgment to dismiss the plaintiffs’ complaints against the Department for permanently revoking their licenses.[1]
In 2011, the Illinois General Assembly amended the Department of Professional Regulation Law[2] (the “Act”) to add Section 2105-165 which states that:
When a licensed health care worker . . . (1) has been convicted of a criminal act that requires registration under the Sex Offender Registration Act; (2) has been convicted of a criminal battery against any patient in the course of patient care or treatment, including any offense based on sexual conduct or sexual penetration; (3) has been convicted of a forcible felony;[3] or (4) is required as a part of a criminal sentence to register under the Sex Offender Registration Act, then . . . the license of the health care worker shall by operation of law be permanently revoked without a hearing.[4] [5]
The Act also addresses applicants for health care worker licenses by permanently barring any individual who has been convicted of the above-listed offenses from obtaining licensure as a health care worker.[6] Additionally, the Act requires prosecutors, such as State’s Attorneys, to report to the Department any health care worker who has been charged with any of the listed offenses, in order to ensure these health care workers “practice only with a chaperone during all patient encounters pending the outcome of the criminal proceedings.”[7]
Section 2105-165(g) authorizes the Department to “adopt rules necessary to implement this Section,”[8] such as the process by which the Department permanently revokes a health care worker’s license.[9] For purposes of Section 2105-165 of the Act, the term “licensed health care worker” is defined by administrative rule and includes physicians, dentists, mental health professionals, nurses, and many other professionals.[10] The process of imposing a chaperone order on a health care worker charged with any of the listed offenses in Section 2105-165 is also set by administrative rule.[11]
In Hayashi, one chiropractor and two physicians challenged the constitutionality of Section 2105-165 of the Act.[12] Bradley Hiroshi Hayashi, a licensed chiropractic physician, was convicted of misdemeanor battery in 2007 for inappropriately touching a patient during treatment.[13] Nercy Jafari, a licensed physician, was convicted of misdemeanor criminal sexual abuse in 2001 and was required to register as a sex offender for inappropriately touching a female patient.[14] Mohammed Khalleluddin, also a licensed physician, was convicted of four counts of misdemeanor battery in 2000 related to sexual misconduct with female patients. All three plaintiffs’ licenses were disciplined by the Department under the Medical Practice Act[15] prior to enactment of Section 2105-165 the Act.[16] After Section 2105-165 became effective, the Department permanently revoked their licenses in accordance with the process established by administrative rule.[17] The plaintiffs filed for administrative review in the Circuit Court of Cook County, where their cases were consolidated.
The plaintiffs made several arguments challenging the revocation of their licenses on constitutional grounds.[18] In its opinion authored by Justice Anne M. Burke, the Court disagreed with each of the arguments, four of which will be discussed briefly in this article.
First, the plaintiffs argued that Section 2105-165 of the Act did not apply to them because “there is no clear expression of legislative intent that individuals convicted of a listed offense prior to the Act's effective date are subject to mandatory revocation of their licenses.”[19] The Court disagreed, finding that the plain language of the statute “clearly indicates that the legislature intended it to apply to convictions predating its effective date.”[20] The Court added that “[t]he phrase, ‘has been convicted,’ . . . is in the present perfect tense. . . . ‘[H]as been convicted,’ as used in the Act, thus refers to health care workers” who have been convicted of any of the offenses listed in Section 2105-165(a), regardless of when they were convicted.[21] Therefore, Section 2105-165 applies to “convictions imposed prior to the Act’s effective date.”[22]
Next, the plaintiffs contended that Section 2105-165 of the Act was “impermissibly retroactive in violation of their substantive due process rights”[23] because their “licenses were revoked as a consequence of their prior convictions.”[24] Applying the Landgraf[25] test to the Act, the Court held that “[t]he Act’s impact on plaintiffs . . . is solely prospective and not impermissibly retroactive” because it did not affect the plaintiffs’ rights to practice their respective health care professions prior to the enactment of Section 2105-165. The Court found that “Section 2105-165 defines new per se eligibility requirements with which licensees must comply in order to practice their health care professions” rather than imposing new consequences on their convictions or their rights to practice their professions prior to the statute’s effective date.[26]
The plaintiffs also asserted that revocation of their licenses without a hearing, pursuant to Section 2105-165 of the Act, violated their procedural due process rights.”[27] The court noted that “[d]ue process is a flexible concept which ‘requires only such procedural protections as fundamental principles of justice and the particular situation demand.’”[28] In determining that the Act complies with procedural due process, the Court applied a three-part test[29] and concluded that the plaintiffs received sufficient due process because, inter alia, the “fact of the conviction itself triggers the revocation of a health care license under the Act” and because plaintiffs “received due process in the underlying criminal proceedings.”[30]
Finally, the plaintiffs argued that the doctrine of res judicata[31] barred their licenses from being permanently revoked because the Department had previously disciplined their licenses under the Medical Practice Act based on their criminal convictions.[32] The Court concluded that the three requirements[33] for res judicata were not met because:
the facts, conditions, and issues involved in the disciplinary proceedings pursuant to the Medical Practice Act were different from those in the revocation proceedings. At the time the Department imposed its disciplinary orders, Illinois law did not require revocation for the particular offenses listed in the Act. The Department could not have enforced section 2105-165 against plaintiffs' licenses because the Act did not exist.
Thus, the Court held that the doctrine did not apply to plaintiffs’ circumstances and ultimately affirmed the lower court’s judgment dismissing their complaints.[34]
Azeema Akram serves as Assistant General Counsel for the Illinois Department of Financial and Professional Regulation, Division of Professional Regulation. Ms. Akram received a Bachelor of Arts degree in International Studies/Latin American Studies and a Multicultural Studies Certificate from the University of Missouri. She received her Juris Doctor degree and a Health Law Certificate from DePaul University College of Law in 2013. Thank you to Mark Thompson and Martha Reggi for their input on this article.
[1] Hayashi at 17.
[2] 20 ILCS 2105.
[3] The constitutionality of Section 2105-165(3) of the Act was not an issue in Hayashi and has not been addressed by the Court. At the time of publication, Carlos Romero v. Illinois Department of Financial and Professional Regulation et al., 13 CH 23647 (December 16, 2014) was the first decision concerning Section 2105-165(3). The circuit court referenced Hayashi in its opinion dismissing the plaintiff's complaint against the Department with prejudice.
[4] 20 ILCS 2105/2105-165(a). See also 68 Ill. Admin. Code § 1130.100.
[5] “The purpose of the Act was to protect the health, safety, and welfare of the public by ensuring that individuals convicted of certain sex offenses would no longer be eligible to practice medicine in Illinois. 20 ILCS 2105/2105-10 (West 2012); 97th Ill. Gen. Assem., Senate Proceedings, May 18, 2011, at 27 (statements of Senator Dillard).” Hayashi at 3.
[6] 20 ILCS 2105/2105-165(b).
[7] 20 ILCS 2105/2105-165(c). See also 68 Ill. Admin. Code § 1130.130.
[8] 20 ILCS 2105/2105-165(g).
[9] Pursuant to 68 Ill. Admin. Code 1130.100, the Department is required to send a Notice of Intent to Issue Permanent Revocation Order to a licensee subject to permanent revocation under Section 2105-165 of the Act. This Notice identifies the reason for the Department’s intent to permanently revoke the license and states that the licensee has 20 days to submit a written response contesting the Department’s intended action on one of three grounds specified in the rule. After 20 days, the Department issues an order permanently revoking the license if no response is received from the licensee, or the licensee fails to establish one of the grounds specified in the rule.
[10] 68 Ill. Admin. Code § 1130.110.
[11] 68 Ill. Admin. Code 1130.100.
[12] A fourth physician, Angelo Consiglio, was part of the challenge in the lower courts and did not file a petition to the Supreme Court. Hayashi at 4. See also Andrew Maloney, Ex-doctors fail to sway justices on license law, Chicago Daily Law Bulletin, at http://www.chicagolawbulletin.com/Archives/2014/10/17/Doctors-License-Opinion-10-17-14.aspx.
[13] Hayashi at 2.
[14] Id.
[15] 225 ILCS 60.
[16] Hayashi at 2-3.
[17] Hayashi at 3; 68 Ill. Admin. Code 1130.100.
[18] The Court outlined the plaintiffs’ arguments as follows:
“In this court, plaintiffs challenge the revocation of their licenses on a number of grounds. They contend that the Act: (1) does not apply to individuals who were convicted of a triggering offense prior to the Act's effective date; (2) is impermissibly retroactive and impairs certain fundamental rights, in violation of substantive due process (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2); (3) violates procedural due process; (4) is unenforceable based on the res judicata effect of the previous discipline imposed by the Department; (5) violates the federal and state constitutional protections against double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, § 10); (6) violates the prohibition against bills of attainder in the United States Constitution (U.S. Const., art. I, §§ 9, 10); (7) violates the takings clause in the United States Constitution (U.S. Const., amend. V); and (8) violates the federal and state constitutional prohibitions against ex post facto laws (U.S. Const., art. I, §§ 9, 10; Ill. Const. 1970, art. I, § 16).
We find no merit in any of plaintiffs' claims, and, consequently, affirm the appellate court's judgment affirming the circuit court's dismissal of plaintiffs' complaints.”
Hayashi at 2.
[19] Hayashi at 4.
[20] Hayashi at 5.
[21] Id.
[22] Hayashi at 6.
[23] Pursuant to U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2.
[24] Hayashi at 6, 7.
[25] Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994). Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27,38 (2001). “Under Landgraf, if the legislature has clearly prescribed the temporal reach of the statute, the legislative intent must be given effect absent a constitutional prohibition. Where there is no express provision regarding the temporal reach, the court must determine whether applying the statute would have a ‘retroactive’ or ‘retrospective’ impact, that is, ‘whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.’ Landgraf, 511 U.S. at 280.” Hayashi at 6-7.
[26] Hayashi at 7; See Consiglio v. IDFPR, 2013 IL App (1st) 121142 at 9 (April 8, 2013).
[27] Hayashi at 10.
[28] Citing Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 92 (1992). Hayashi at 13.
[29]
“Courts should consider the following factors in evaluating a due process claim: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest and the value, if any, of any additional or substitute procedural safeguards; and (3) the government's interest, including the administrative burdens that any additional or substitute procedural safeguards would entail. People ex reI. Birkett v. Konetski, 233 Ill. 2d 185, 201 (2009); People ex reI. Eppinga v. Edgar, 112 Ill. 2d 101, 107 (1986) (citing Mathews v. Eldridge, 424 U.S. 319,335 (1976)).” Hayashi at 13.
[30] Hayashi at 14.
[31] “’Res judicata promotes judicial economy by preventing repetitive litigation and also protects parties from being forced to bear the unjust burden of relitigating essentially the same case.’ Arvia v. Madigan, 209 Ill. 2d 520,533 (2004).” Hayashi at 15.
[32] Hayashi at 15.
[33] “For res judicata to apply, three requirements must be met: (1) a final judgment on the merits rendered by a court of competent jurisdiction; (2) identity of causes of action; and (3) identity of parties or their privies. Hudson v. City of Chicago, 228 Ill. 2d 462, 470-71 (2008).” Hayashi at 15.
[34] Hayashi at 16.