Law is seldom known to change quickly with the times or be considered current. That being said, one aspect of the Illinois Department of Financial and Professional Regulation’s (IDFPR’s) practice has been altered in a possible attempt to enter into the 21st century – but at a burden and cost to many licensed professionals with consequences that could result in a default suspension of your license to practice.
What constitutes “Proper Notice” in IDFPR communications?
The concept of “notice” is fundamental to any area of law. This requirement under due process provides notification or warning of a legal process that may affect one’s rights, freedoms, or duties. In addition, proper notice should include information regarding any potential claims, contact information of the entity bringing about the claims, and potential steps that need to be taken by the individual to whom notice has been served. 68 Ill. Adm. Code 1110.70(a). When the IDFPR provides notice to a licensed professional, it can be in the form of a “Notice of Preliminary Hearing” with an attached formal Complaint.[1] Illinois Statute requires that the IDFPR provide notice at least 30 days before a hearing date, present the accused with written charges, the time and date of the hearing, and instructions to file their written answer within 20 days after the service of notice. 225 ILCS 60/36(b).
Historically, the IDFPR would serve written notice via Certified Mail, which would alert the IDFPR if notice had successfully reached its intended recipient. However, the notice provisions have recently changed. The IDFPR now has the ability to serve written notice by regular US mail or just via email, the preferred method now utilized by the IDFPR, thus eliminating any return proof of service. The IDFPR’s burden to properly provide notice has been replaced with the licensed professional’s burden to acknowledge receipt of notice by taking whatever action is set forth in the notice. This change requires licensed professionals to be on high alert for any service of notice, especially notice sent via email. Failure to open an email from the IDFPR can result in dire consequences – including the suspension of one’s license.
Consequences of Failing to Answer Proper Notice
If an individual fails to provide an answer to a formal Complaint, the IDFPR will send out an “Order to Answer or be Held in Default.” If the Complaint still goes unanswered, an Administrative Law Judge will hold the individual in default, thus transferring the matter to the licensed professional’s Disciplinary Board to deliberate further actions. The Board will then send the individual a “20 Day Notice” outlining the Board’s Recommendation for discipline for the allegations within the unanswered Complaint. The cost of an unanswered notice from the IDFPR can result in default against them and their license may be suspended, revoked, placed on probationary status, or other disciplinary action, including limiting the scope, nature or extent of their practice, as the Department may deem proper. 225 ILCS 60/36(b). Discipline following unanswered notice, such as the suspension of one’s license, may lead to additional penalties against the professional if they continue to practice as if their license were active and unencumbered. Most discipline stemming from unanswered notice will be public and posted on the IDFPR’s License Lookup and in the case of physicians, for example, a disciplinary action will be reported to the National Practitioner Data Bank along with numerous other collateral consequences. These may include repercussions with other states where the individual may be licensed, hospital privileges, Medicare or Medicaid provider status, and health insurance provider status.
Even though this change is recent, Crick Walanka Law Group has represented several licensed professionals negatively affected by this new digital method of serving notice.
An Illinois licensed physician received a physical 20 Day Notice at her home address as well as an electronic version via email. The physician failed to see this notice within the time-frame allowed, for she was out of state receiving cancer treatment. The IDFPR held the physician in default for failing to answer, and eventually placed her license on indefinite suspension. After a complex series of events, the physician’s Illinois license was ultimately placed back into active status. This physician who is licensed in other states is still experiencing the consequences of the default suspension with other state licensing agencies and boards.
An Illinois licensed registered nurse was sent a Notice of Preliminary Hearing and Complaint to her email. This message was filtered into her spam folder and she failed to discover the email until a 20 Day Notice was sent via email almost four months later. Her nursing license had been held in default for failing to answer and appear at a status hearing in front of an Administrative Law Judge, and was placed on indefinite suspension due to the allegations within the Complaint.
An Illinois licensed physician was first notified of his license suspension by his employer, as the physician never received any formal written notice from the IDFPR. After checking in with his local post office and learning they had no record of a written letter, he discovered a non-descript email from the IDFPR buried within advertisements, dated many months prior. By the time he discovered the notice, he had already been held in default and placed on suspension.
The main takeaways of these common situations are simple:
- Continue to update the IDFPR with any changes to your physical address and email address. This is a requirement by law and failure to do so can result in additional claims and consequences. 20 ILCS 2105/2105-7.
- Many email providers also have the option to filter incoming emails to certain inboxes. If this option is available, it would be very beneficial to filter any email ending in “@illinois.gov” into your primary inbox.
- Consistently check all inboxes and folders of the email address that has been registered with the IDFPR. When the IDFPR sends emails, they usually appear to come from a single person, which can understandably raise concerns regarding spam and viruses. At times, they can also be sent from “FPR.orders.” However, these email addresses usually end in “@illinois.gov” and have subjects such as:
- Case No. 1234-56789
- IDFPR v. (YOUR LAST NAME) – Case No. 1234-56789
- (YOUR LAST NAME) or (YOUR FULL NAME) – Notice
- Document Name (Notice of …)
- [EXTERNAL] Notice of Order
- FW: Scanned from a Xerox Multifunction Printer
- Act quickly and find representation. IDFPR default proceedings can move quickly and are often confusing and complex. Without proper representation, the IDFPR may enter an action that could result in additional discipline or complete revocation of your license.
[1] IDFPR notices can take many different forms depending on the situation. These can include a “Notice of Intent to Deny” if the IDFPR is planning on denying a license application or a “Notice of Intent to Refuse to Renew” if the IDFPR is planning to deny a renewal application. They may also send a “Notice of Informal Conference” when they would like to meet with an individual to resolve a case through a negotiated settlement but have yet to file a formal Complaint. The example cited above, the “Notice of Preliminary Hearing,” occurs when the prosecutions unit has already filed a formal Complaint.