## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Gross v. De

partm ent of Finan cial & Professional Regul ation , 2011 IL App (1st) 103101

Appellate Court Caption ROBERT C. G ROSS
, Plaintiff-Appellant, v. THE DEPARTMENT OF FI NANCIAL AND PROFESSI ONAL REGULATI ON and DANI EL E. BLU THARDT, Acting Direc tor of the Division of Professional Regulation of the Depa

rtment of Financ ial and Professional Regulation, Def endants-A

ppellees.

District & N o. First District, Third Division Docke t No. 1-10-3101

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed September 28, 2011

November

1, 2011 November

2, 2011

Held (No te : This syl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The Depa rtment of Financ ial and Professiona l Re g u la ti o n p r o p e rly p lace d plaintiff’s license to prac tice medicine in “Refuse to Renew” status on the basis of the actions of t h e C o l orado State Boa rd of Medica l Ex aminers placing plaintiff’s Color ad o l icense perma nently on inactive status, despite the fac t that no hear ings wer e held and no discipline was imposed by a hear ing panel, since placing plaintiff’s license in perma nent inactive
status qualified as disciplinary action ag ainst plaintiff for purposes of the I llinois Medica l Practice Act.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 09-CH-24019; the Hon. Martin S. Ag ran, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l L aw Offic es of Alan Rhine, of Chicag o (Alan Rhine, o f co u n s el), for appellant.

L isa Madig an, Attorney Gene ral, of Chicag o (L aura Wunder, Assistant Attorney Gene ral, of c ounsel), for appellee

.

Panel J USTI CE NEVI L L E delivere d the judg ment of the c ourt, with opinion.
J ustices Murphy

and Salone c oncurr ed in the judg ment and opinion.

OP INION ¶ 1 Dr. Robert Gross filed a complaint for administrative revie w of a decision of the I llinois Depa rtment of Financ ial and Profe s s i o n al Regulation (Department), which held that the Depa rtment would ref

use to rene w Dr. Gross’s license . The Depa rtment based its decision

on a settlement rea ched betwee n Dr. Gross and an inquiry panel of the Colorado State Boa rd of Medica l Ex aminers (Colorado Boa rd). When the C o l orado Boa rd beg an to investigate alleg ations of misconduct brought ag ainst Dr. Gross, Dr. Gross agree d to have the Colorado Boa rd place his license perma nently on inactive status so that the Colorado Boa rd would not formally charg e him and he would not need to underg o the proce ss of a full investigation and hear ing. Dr. Gross argued to the Depa rtment and on administrative revie w that the Department should not discipline him based on the Colorado settlement beca use t h e Colorado Boa

rd never char g ed him with misconduct and it never imposed discipline on him. The trial court aff

irmed the Depa

rtment’s decision to ref

use to rene w Dr. Gross’s license. Dr. Gross now a

ppeals. ¶ 2 We find that the Depa rtment did not clea

rly err when it held that the agree ment to pla ce Dr. Gross’s license permane ntly on inactive status counts as di sciplinary action within the meaning of the I llinois Medica l Practice Act of 1987 (I llinois Act) (225 I L C S 6 0 /1 et s eq. (West 2006)). The ref

ore, w e af firm the dec isions of the trial court a nd the Depa

rtment.

¶ 3 BA CKGROUND ¶ 4 Dr

. Gr o s s held licenses to prac tice medicine in Colorado, Michig an and I llinois

. Dr

. Gross did not rene w his I llinois license afte r it expired in 2005. In May 2006, the Colorado Boa rd revie wed seven of Dr. Gross’s case s and ref err ed the m at t er to the state Attorney Gene ral for

the i nitiation of di sciplinary proce eding s ag ainst Dr. Gross. Dr. Gross rea ched
an agree ment with the Colorado B oard in August 2006. The agree d order provides:
“4. I t is the intent of the parties and the purpose of this *** Orde r *** to provide for

a settle m en t o f al l matters set forth [i n the alleg ations] *** without the nece ssity of holding a formal disciplinary

hear ing. ***

***

-2-6. The Panel has revie wed seven of Respondent’s surg ical case s and has found that Respondent failed to meet g ener ally acc epted standards of medical prac tice with reg ard
to sever al case s. Respondent does not admit and specific ally denies all alleg ations of unprofe ssional conduct. In order to resolve the differ ence s betwee n the parties and avoid the expense and uncer

tainty of litigation, t h e p ar ties have agree d to the terms of this Orde r. 7. The parties specific ally agree that the terms of this Orde r are authorized by §§ 12- 36-117(1) (p) a

nd 12-36-118( 5)(g )(I I I ), C.R.S. [ Colorado Revised Statutes].

PERMANENT L I CENSE I NACTIVATI ON 8. Commencing on the eff ective date of th i s Or d er , Respondent’s license will be place d on inactive status.
9. Following inactivation of his license, Respondent shall not perf orm any act requiringa license issued by the B oard.
10. Respon d en t agr ees that the inactivation of his license shall be perma nent and Respondent shall not apply to rea ctivate his license at any time in the future. * * *
14. Th i s Or d er and all its terms shall have the same forc e and eff ect as an order
enter ed afte r a formal disciplinary hear ing pursuant to § 12-36-118( 5)(g )(I I I ), C.R.S

. except that it may

not be appe aled. ***

* * * 18. *** [T] his Order shall be repor ted [t o] t he F eder ation of State Medica l Boa rds, the National Practitioner Data Ba nk/Healthca

re Integ rity and Protection Data Ba nk *** and as othe rwise r equire d by law.” ¶ 5 In Marc h 2007, the Depa rtment notified Dr. Gross that it intended to place his license in “Refuse to Renew” status. Dr. Gross reque sted a hearing on the alleg ations raised in support of the proposa l to refuse to rene w his license. ¶ 6 At the hear ing, the Depa rtment relied primarily on the agree d order enter ed in Colorado. The Depa rtment showed the administrative law judge (AL J ) the Colorado Medica l Practice Act (Colorado Act) (Colo. Rev. Stat. § 12-36-101 et seq. (2007))

. The parties specifie d that two sections of the Colora do Act author ized the Colorado order . Those sec tions provide: “ ‘Unprofe ssional conduct’ a s used in this article mea ns: * * * (p) Any act or omission which fails to meet g ener ally acc epted standards of medical
prac tice[.] ” Colo. Rev. Stat. § 12-36-117(1)(p) (2007)

. “I f the hear ings panel finds the char g es proven and order s that discipline be imposed, it shall also determine the e x tent of such discipline, whic h shall be in the for m of a letter of admonition, suspension for a definite or inde finite period, or revoc ation of license to prac tice. In lieu of a suspension, the hear ings panel may impose a fine ***.” Colo. Rev. Stat. § 12-36-118(5)( g )(I I I ) (2007)

.

-3-¶ 7 Dr. Gr oss testified that he had worke d at a hospital in Colorado, and he disag ree d with

the executive committee of the hospital about the way the committee ran the hospital. That disag ree ment prec ipitated the alleg ations of unprofe ssional conduct. When the Colorado Boa rd informed him about the alleg ations, he elec ted to neg otiate. The Colorado Boa rd
agree d not to formally charg e Dr. Gross wit h v iolating the Colorado Act, and in exchang e Dr. Gross agr ee d t o have his Colorado license place d perma nently on inactive status. He explained that he and his wife had decide d to move to Michig an, so he no longe r neede d the Colorado license. He informed the Michig an licensing ag ency of the Colorado order
, and the Michig an licensingag ency allowed him to continue pra cticingmedicine in Michig an. ¶ 8 In April 2007, the Colorado Boa rd sent Dr. Gross a letter telling him what he neede d to do to reta in his inactive license. The Colorado Boa rd did not offe r to make the license active. Dr. Gross admitted that, acc ording to the Colorado order
, the Colorado Boa rd would repor

t the agree ment with Dr. Gross to the Na tional Practitioner Data B ank. ¶ 9 The AL J held that the Colorado Boa rd had taken disciplinary action ag ainst Dr. Gross’s license to pra ctice in Colorado. A ccor ding to se ction 22(A)( 12) of the I llinois Act: “The Depa

rtment may revoke
, suspend, place on probationar y status, ref

use to rene w, or take any other disciplinary action as the Depa rtment may deem proper with reg ard to the license *** of any person issued under this Act to prac tice medicine *** upon any of the followingg rounds: * * * (1 2 ) Di sciplinary action of another state or jurisdiction ag ainst a license *** to prac tice as a

medical doc tor[.] ” 225 I L CS 60/ 22(A)( 12) (West 2006). ¶ 10 T h e ALJ h el d t h at the section applied, and the Colorado Boa rd’s order justified the Depa rtment’s decision to place Dr. Gross’s license i n “Refuse to Renew” status. The Depa rtment’s medical disciplinary board adopted the AL J ’s finding s and rec ommendations. The Direc to r d enied Dr. Gross’s motion for rehe aring

. Dr. Gross soug ht administrative revie w. The tria l court denie d Dr. Gr oss relief. D r. Gross now a ppeals.

¶ 11 ANALYSI S ¶ 12 Standard of Re view ¶ 13 The parties do not disag ree about questions of fac t and they agree about what statutes we must interpre t, but they disagree about the application of t h e l aw to the fac ts. The parties
agree that we revie w the Depa rtment’s decision, which applied section 22(A)( 12) of the I llinois Act to the undisput ed fa ct s , fo r clea r err or. See AFM Messe nger Servic e, Inc. v. Departme nt of Employment Se curity , 198 I ll. 2d 380, 392 (2001).

¶ 14 Disciplinary Action ¶ 15 Dr. Gross contends that the Colorado Boa rd did not take “disciplinary action,” within the meaning of section 22(A)( 12) of the I llinois Act, beca use the Colorado Act limit s the kinds of discipline the Colorado Boa rd may impose. The Colorado Act specifie s that if a hear ings
p an el finds charg es of unprofe ssional conduct proven, the hear ings panel may order t h e

-4-imposit ion of di scipline, “which shall be in the fo rm o f a letter of admonit ion, suspension

for a definite or indefinite period, or revoc ation of license to prac tice. In lieu of a suspension, the hearing s panel may impose a fine.” C olo. Rev. S t at

. § 12-36-118( 5)(g )(I I I ) (2007). An inquiry panel in Colorado investigated the alleg ations ag ainst Dr. Gross, but the panel filed

no formal char g es, and no hear ings panel ever addre ssed the alleg ations. See Colo. Rev. Stat. §§ 12-36-118( 1)(b)
, (1)( c) (2007). The Colorado Boa rd agree d to place Dr. Gross’s license

on inactive status pe rmane ntly
, and the Colorado Act does not list such ac tion as a form of discipline a hea

ring s panel may

impose. ¶ 16 We a gree with D r. Gross that the Colora do Act did not authorize any hear ings panel to impose discipline on Dr. Gross without holding a hear ing on the charg es. Howeve r, we find that the inquiry panel could agree to take, and Dr. Gross could agree to acc ept, the action of placing the license in perma nent inactive status. See Colo. Rev. Stat. § 12-36-118( 5)(g )(I I I ) (2007). We must decide whether placing Dr. Gross’s license in perma nent inact i v e s t at us counts as disciplinary action. The finding that the action does not count as discipline imposed by a hear ings panel does not resolve the issue of whether the action qualifies as a disciplinary action within the meaningof the I llinois Act. ¶ 17 The I llinois Act define s “disciplinary action” as “r ev o ca t i o n, suspension, probation, supervision, prac tice modification, repr imand, require d education, fines or any other action taken by the Depa

rtment ag ainst a person holding a license.” 225 I L CS 60/2(4) (West 2006). We must decide whether placing Dr. Gross’s license on perma nent inactive status qualifies

as “pra ctice modification *** or any other action taken by the Depa rtment ag ainst a person holding a license.” 225 I L CS 60/2(4) (West 2006). Three fac ts persua de us that the Colorado action her e qualifie s as a disciplinary action take n ag ainst Dr. Gr oss. ¶ 18 First, by placing Dr. Gross’s license on inactive status, the Colorado Boa rd has modified Dr. Gross’ s prac tice: it has restric ted him from prac ticing in Colorado, albeit with his

acc eptanc e of the restric tion. The Colorado Boa rd’s action there fore qualifies as “pra ctice modification.” ¶ 19 Second, the Colo ra d o Bo ar d wo uld reg ard the action as disciplinary if another state’s board ha d taken similar steps ag ainst a doctor. T he Colorado Ac t specifies: “The discipline of a license to prac tice medicine *** in another state *** shall be deeme d
to be unprofe ssional conduct. For purposes of this subsection ***, ‘discipline’ includes
any sanction require d to be repor ted pursuant to 45 CFR 60.8. This subsection *** shall apply only to discipline that is based upon an act or omission in such other state *** that is define d substantially the same as unprofe ssional conduct pursuant to *** this section.” Colo. Rev. St at. § 12-36-117( 1.5)(b) (2) ( 2007). The pa rties agree d that Colorado would re port the ac tion taken with respe ct to Dr. Gr oss’s license to the National Prac titioner Data B ank. The Code of Fe dera l Re gulations pr ovides:
“Ea ch Boa

rd of Medica l Ex aminers must repor t to the Data Ba

nk any action b as ed on

rea sons relating to a phy sician’s *** profe ssional competenc e or profe ssional conduct– (1) Which revoke s or suspends (or otherwise restric ts) a phy sician’s *** license[.]” 45 C.F.R. § 60.8(a) (1) ( 2007). The agree ment to repor

t the action to the National Practitioner Data Ba nk, as a restric tion on

-5-Dr. Gross’s license which the Colorado Boa rd must repor

t pursuant to 45 CFR § 60.8, makes the ac tion count as discipline for the Colora do Act. ¶ 20 Finally
, the parties expressly agree d that the Colorado Act, particula rly in sections 12-36- 117(1)(p) and 12-36-118( 5)(g )(I I I ), auth orized the agree ment, and that the agree ment had the

s am e forc e and eff

ect as an order entered after a formal disciplinary hear ing under sect i o n 12-36-118( 5)(g )(I I I ). The cited sections g overn discipline for unprofe ssional conduct. Thus, the parties agree d that the order had the forc e and eff ect of an order entered following a hear ing c oncer

ning disc ipline for unprof essional conduc t. ¶ 21 Dr. Gross’s agree ment with the Colorado Boa rd has s o me c h a

r a c teristics in common with

a plea of nolo contende re

. When a party pleads nolo contende re to a char g e, that party does

n o t ad mit that he committed the char g ed misconduct, but he acc epts some form of the
conseque nces just as though he had committed the char g ed misconduct. See North Carolina

v. Alford
, 400 U.S. 25, 35-36 (1970). Her e, Dr. Gross did not admit wrong doing, but he

acc epted, as a conseque nce o f t h e charg es, a restric tion on his license that prec luded him from ac tively

prac ticing in Colorado. ¶ 22 The I llinois Act provides that the Depa rtment may discipline a phy sician based on “the entry of a *** nolo contende re plea to a felony char g e” in any juris d i ct i o n

. 225 I L CS 60/22(A)( 3) (West 2008). Whil e this section does not direc tly apply
, we find that it indicates that the De p ar tment will treat a failure to contest char g es in other states as grounds for disciplining a phy sician in I llinois

.

¶ 23 CONCLUSI ON ¶ 24 Although we find that the Colorado Boa rd did not impose discipline on Dr. Gross afte r

a hear ing, we hold that the Depa rtment did not commit clea r err or when it conclude d that the Colorado Boa

rd had taken “disciplinary action” ag ainst Dr. Gross’s license. The Depa rtment’s findingjustified the decision to place Dr. Gross’s I llinois license in “ Refuse
to Renew” status. Acc ording ly
, we aff irm the judgme nt of the trial court and the Depa rtment.

¶ 25 Affir

med.

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