that you have you have the ability dismisses action because session eleven thousand one thirty day of the department's rules require that if there's a violation of the rules that dismissal is a rim is the appropriate remedy in proceedings before the department now that's important because i think that they takes what what the question is here and that question is presented is whether the department misconstrued its rules and not producing that derives letter so it's not a one thirty of the department rule and that rule plainly state and section the one that will plainly states the doctor approach is entitled to without hope here any evidence which tends to support the sister state action under section sixty twenty two eight twelve of the medical practice act the only thing the department has to do in order to show by lation of that act is brady and a certified copy of the record from the other state and say ok this person was once i was subject to discipline other in another state so that's the only thing they do that's have to show a violation of that act so because of that we actually have a sister state action to go to the hearing the and are going about whether he actually violated the act and so his position regarding display through the entire proceeding was that my violation in kentucky was only administrative violation and we made a he says when you have a generally when we in the department have a clinical privilege action which is very similar to the just a violation some type of violation and he gave a sample of completely medical records generally in those circumstances the department doesn't prosecute the case they we just have some type of nine disciplinary action such it's such the point where and so that's what his letter said and so that letter supported our position and because the department refused to produce that letter they violated section eleven thousand and one their their their rules and that's only one basis on which they violated it as as you heard when i read the section a couple of minutes ago also when when you have evidence which questions the credibility of a part of the witness that's a separate and distinct way that you violate that statute if you don't produce that it and here the only other witness other than dr ro that was included on the department's witness list remedy here is his dismissal and if you look at section eleven one thousand and eleven thousand and one thirty eight it actually says that when you bring when somebody when a licensee brings impose here and so let me just say this we've made that argument we first made that argument and i motion to dismiss in a proceeding this the department didn't rip their response to that argument but we made our night at nine a right but they had a chance to respond to that hearing and they didn't say oh this missile is not appropriate remedy we also made that argument and i'm most for the harim in front of the apartment the department did not say no that  rule so our view is that they they waive that argument but regardless even if you don't find a way that argument we feel that their interpretation of the rule which they're suggesting that department can can keep can have any sanction when they violate their rules is wrong and when you look at the statute i think one thing you have to do is you have to look at consider the cardinal principle or stature a structure construction which matters here and discretion to decide what sanction to impose against against itself now let me let me explain to you a little bit what there are here so they're telling the court that you know you should impose and you should review this under an abus discretion standard and so especially what they're saying is that the director who's a top official in the department should have better dorothy to decide sanctions against his own department with no meaningful appellate review  this is what they're telling and this is a legitimate concern because just recently not tonight we talked about this in our brief the executive branch actually tried to address th issue which is which is a structural buys issue in the part and so governor around or past executive order six last year two thousand and sixteen and what that executive order does is it really doesn't need certain officials in  department importantly carrying office and other adjudicators so that they are no longer employees of the park that they potentially have to decide against so essentially we're talking about the same issue here a structural bias issue so this is an issue that you should take into consideration when you're typing that language in the statute and i agree with that wrote under the plain language of that statute this missile is appropriate remedy and also when you look at the rules  statutory interpretation it makes sense and it's not just so that that's that's that so that's the best of any part of it so let me move to due process some of them and apart from review standard in cases involving professional licenses like this one and one or course all the due process requires an agency to provide the licensee any information which will help the licensee and preparation of his or her fence and in other words they have to provide anything that might be helpful to the humors now this rule applies regardless of what you find with regards to the department's rules and i don't either but labor this point is clear and what  this testimony might be helpful the doctor the growth and regarding the present the published issue because for due process we do have to show prejudice this letter would have provided meaningful information our brief and i'll point out who well that lamp that reviewing courts talking consider discipline imposed in similar cases to decide whether that discipline imposed in the case before them which i'm reasonable let me ask you a question the information that you have in your disposal is the tribune article yes so let me did any of those cases if you know if it was explained in the article involve the privileges revoked the rule list are restricted how the department treats them what does that have to do with this case well it's just that back to you you actually you actually bring up important point because that should not be a policy and not that ali yeah ok but but if that is the policy and i believe that's a policy that they follow one of the one of the main issues is that we have that policy in place he was a licensee he might he might as well not even show up to the hearing because here discipline is pre determined but i'll tell you how i suppose it works if you look at the cases like i'll point out who well that lamb and palin and other cases which which we cited in our brief when courts are looking at whether the department has exactly the problem is that what we have here is when you have a situation which if you if you believe dr sacrifies letter they don't generally department doesn't impose discipline when you have administrative violation or something very minor the only way to get that information is talking to him but because that information is not it's not public and so by not allowing us to speak to him and not giving us a slighter before we had a chance to actually call him up and talk to him they prevented us from getting the information that we need in order to fully question whether the appropriate discipline wasn't posts here decision if they find that decision is either overly harsh in view of mitigating circumstances or unrelated to the purpose of the act and so this is a special abuse of this question standard that applies here and in general the shiz of discretion standard really irrelevant turning to the first point affectively doubling doctor the growth discipline makes no sense here when you look at mitigating factors and not to get too much in the facts but i think the facts here port doc would grow in his team at american specially health actually after response here they consider kentucky law before ever peer review into filing talking they went through the law they found they thought that hey we only need to get licenses in order to do these  and that's what they did he went out he got a license he got a license for his peer reviewers but what they didn't realize was there was this very obscure rule in kentucky which requires that in addition to having a license to do a peer review you also have to be separately registered with the state do it and this is the only state where does dr post is license a six state six states and this is the only state that requires that in illinois that's required but what stops  liberal and his team found learned of the violation here once they learned of this kentucky law they immediately stopped one period they stopped doing it and they went and they register with kentucky and they did everything they were supposed libro for his part he agreed to settle the matter with kentucky even though and took the blame even though he never actually performed a peer review and not only that he came to the pirate right away and he said this is what basis for mirroring to discipline against dr pro license it really makes no sense so you're saying that the department of professional regulation law there are nine aggravating factors they are saying can only come up with one factor she said  lack contrition which based on the record that that i just laid out to you this really doesn't make any sense she also stretch to come up with two or what she calls secondary factors essentially t discipline and reason point of view of the mitigating circumstances but their discipline is also unrelated to protecting the public well the public health and welfare of illinois citizens and that is the purpose of the act  reason why this discipline is related to protecting the health and welfare of illinois citizens now move on finally today due process argument is an elementary requirement of due process that an agency decisions must be solely based on the evidence it gives at the hearing and illinois codify this requirement and department of of of the director as and this is a quote as a matter of course the department sanctions for violation of section twenty two a twelfth of the act is proportionate to the undermine discipline imposed by such a state so it's not a libro as this court held in monitor says department of professional regulation the practice of medicine in addition to skill and knowledge requires honesty and integrity to the highest degree to ensure that medical professionals licensed in the state are continually meeting the standard the medical practice act authorizes the department to discipline and impose fines upon several enumerated grounds one of these grounds includes for adverse action taken by another state against higher practic discipline by the department like the discipline here is entitle to a high level of deference and should only be overturned when the decision is an abuse of discretion in other words only when no reasonable person could agree with it or when it is arbitra and unrelated to the purposes of the act unable to make the showing here doctrinal bro instead dedicates the bulk of his arguments to purported procedural and due process violations with respect to the first of these arguments the director did not abuse discretion and denying the motion to dismiss over the purported non production of the doctor's act araya letter it also was not a violation of doctor approach due process rights for the director not to grant the motion to dismiss or reopen the hearing case in its entirety over the non production of the letter we submit that this severe sanction and again we look to this court's case and in remarriage of bradley dismissing a case over discovery violation is found in that case to be quote a severe sanction and we know it's a discretionary decision because when we look to the regulations we see that discovery motions are limited to those seeking sanctions and also discovery motions are not allowed before they al unless they are in the form of a motion to dismiss so a motion to dismiss over discovery violation is in essence a motion for sanctions so the l j of the director is that said with discretion over whether to dismiss the case or that we argue that this severe sanction of dismissal is not appropriate here when we consider the very tenuous connection that the letter bears to this case now in the letter i i believe we suited that doctors discipline and he hypothesizes that potentially they may have resulted from administrative violations he does not make a blanket statement that the department does not punish or penalize administrative errors and even we look to the medical practices act we see can and do result and violations but even more importantly the relevance of this letter hinges on whether the treatment of an in and near administrative violation but as the director found here this ethical conduct requirements so this was not a mere registration it was making sure that these doctors who work had clients that were the insurance companies when they were denying coverage had the proper credentials and as  director found the work that ash was doing had the power to deny services it's partially deny services were approved services for patients the claims that were reviewed went to determining the appropriate care for a particular patient so this  licenses in the state are hearing not only to the laws of illinois but that we expect again the highest standards of integrity and honesty of our doctors are professionals here with that new songs well with respect to  that goes to a kind of a lack of contrition argument which was that actual pro was in an oversight capacity and he oversaw his team of doctors so he although he says you know it's not particularly review the the forms so i did not actually perform a peer review the doctor did not accept that characterization and again you know we can think of an analogous situation in a legal context where an associate might draft a document and the partner would not be able to say well yes i signed the document but i didn't actually review the record so similarly here i think the director was troubled by during the hearing the lack of contrition by saying you know i did not personally conduct  there so you are the lack of contrition was a twofold it was it was that the denial of the wrongdoing which was agreed to in the kentucky or but it was also the consistent attempt to and this is a quote from the directors or consistently attempted to minimize the violation of how if he entered into greed or yes which punished yes and which will be on his doesn't that totally undercut one part of the two point person argument that you're making it shows contrition that he admitted that he violated  rules and he said that he did in one fashion or another and accepted that punishment so that has to wipe out the idea that somehow he's not contrite or raises an awful lot of it says you know you plead guilty you know yeah now i understand about the second part that he was trying to explain and that explanation was not accepted by the record your honor it does not wipe out that what was said with respect to the kentucky action was with respect to the kentucky action he agreed and the kentucky action yes i did violate it here we have an independent violation it's an independent violation under illinois law to violate a sister state's law so here in this action he did not unlike in kentucky he did not say that he violated he in fact said the exact opposite he said i did not violate acknowledges that the legal team missed that requirement there's no way that he could not have agreed that that was obviously an oversight however he refused to acknowledge his responsibility in being an oversight capacity  the well for instance but that's excellent question in his letter to the department he initially reported his violation he said the reason i entered into it is because i recognize my responsibilities at the hearing however he made no is that it's been adjudicated but yet in our action he backtracks and says well ok i say reads that for an expedited to expedite the process for here and this in illinois i'm going to say i did not actually do it and that was troubling to the preparing discovery is not constitutionally required an administrative hearing what is required every ministry of hearing what is required is that the agency act reasonably that there is an opportunity to be heard to cross examine adverse witnesses and to have an impartial absolutely not cracked he could have been called but he was not called as a witness by dr liberal in addition doctors act a riot was not called as a witness so although he was listed on the department list of witnesses he was saying well this is basically this is what we do we mere that seems to me to be a total lack or a failure to exercise discretion like you had unofficial policy that could that even though our own state doesn't think it's important to have this they have this regulation it was violating tax ok i don't understand how anybody used their law we're going to mirror the discipline there has been no opportunity for the department to counter this what is a factual contention it is a factual contention on the part of doctoral a problem that the department has this purported policy mitigating aggravating factors that ultimately it turns out that yes this is going to be symmetrical is really no aggravating factors if this was recent i totally i can't even grasp that with within two years that that qualified its recent and the question for this horror but isn't it better to address address something like this recent quickly rather than absolutely it is labor and independent requirements is that an individual who has been disciplined you know if i say department so that's an independent requirement there is no good behavior or this is you know encouraging this type of behavior to to report that is already required a registrant that they that they are required to do so so by you know hanging back and refusing to disclose this occurred that is that is actually an independent violation but under the that's not present i'm sorry that's not present here because there isn't any hanging right there isn't but an argument raised by dr libro is well if you're going to look to reason see that's going to hinder people from reporting and that's not the case because the law is that they're required to report so there's no ill effects of public policy they're  i think that with respect to this particular case we have to look at the fact that although dr olah bro has practiced you know for many years that the fact that this occurred recently in his career was a factor that committed that militate in favor of discipline and the question is what is that something that no reasonable person could agree with and again we have to remember that that was only one of the factors that the director relied on but the key factor here again was the lack of contrition you know downplaying what was at stake here was not merely you know registration it was affecting medicaid recipients coverage the decisions that were being made by doctor will probably pass along to you the only one well under our law however we require that no need to have a sister state discipline provision right because it would be an independent violation of my ma so we have to look to the fact that not only do we expect doctors in this state to be adhering to our laws we ex determine discipline and that's why to your question with respect to notice it's not merely notice of the kentucky discipline it is it is to make sure that individuals license in our states are not only adhering to boss of another state and think about it from an illinois patient you know consumer perspective they would expect a doctor that they go to see or that they have services rendered that not only are they hearing to our laws they would expect them to be adhering t because under the law your honor we expect doctors to be held to the highest standards of integrity and it's not simply a hearing to have laws here in the sister state violation law recognizes that we expect doctors to be hearing to other states was as well and again i just want to highlight this purported policy this is a factual argument that we never with respect to mirroring sister states is one that there is some sort of prejudicial going into the hearing and rubber stamping this this is a factual argument that department never had an opportunity to refute the orders that doctrinal bro has read to you were brought in at the circuit court level they are not properly part of the ministry of record the only way for the department to have refuted  example we had no opportunity to bring an order where sister state discipline were at the sister state had imposed discipline of x and the state went to disappoint why we had no opportunity to show that that occurs that there was not a rubber fact issues where our department cannot have an opportunity to make its own case and we cite cruel and the jones case both recent cases where this court refused to go beyond forfeiture consider an argument where there was fact questions at issue to this violation a kentucky but really i really don't feel like i buy a late law even though i took the blame for it and so that's what he was doing he was talking about mitigation when he said look i did actually peer review file he wasn't regards to dr zacharias letter we learned and i and i just want to make that clear because because it's important we learned about the letter four days before the hearing from this article we had no idea what was what was in the substance of that letter we kept we filed a motion to dismiss before hearing we asked the hearing officer to have him produce a letter or dismiss action she refused to having produced a letter we never saw that letter but what's important is the substance of her decision essentially the same this letter makes no difference to this particular case she's already said that this company isn't relevant here so there would be no reason for us to call d witness and talk to him about something and ask him questions about something that they ok they have an officer already told this wasn't relevant you probably would understand understand what would what would happen in that circumstance we got the letter after the hearing we raise the issue to the director about look we want to we want to question dr dr zacharia now that we have this letter he refused to allow us to questions after that riot and then not give any reasons for it until it was time for him to register which would have been probably got take another two years so it's not like you have to rush every year sell the recency just i think it's a corn stand just to make any sense  of curiosity a senior practitioner who one would think is successful they take upon his involvement in these peer reviewed activities in other states what is the motivation the if you look at the record you'll see that he was schooled in illinois he's from he's from illinois and so it was his first license so it's illinois license it's like kind of kind of his baby and he doesn't like having a scarlet letter on his license for  for the rest of his life and actually probably probably at after he dies that's baskin to be on his record so that's one motivation also he just didn't like the fairness of the process and the part felt like it was unfair he felt like throughout the process he wasn't treated fairly and the problem one of the it one of the reasons why a lot of these issues that we raise here don't come up is because the license don't have the resources to challenge for instance this policy which the department is asked to ignore put it's obvious they follow they don't have the resources to challenge it so because he has resources to come and say this is not right this