Olefsky v. Ill. Dep't of Fin. & Prof'l Regulation
| Decision Date | 16 December 2016 |
| Docket Number | No. 1-15-2843,1-15-2843 |
| Parties | ALAN H. OLEFSKY, M.D., Plaintiff-Appellant, v. THE ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION; JAY STEWART, Director of The Division of Professional Regulation of The Illinois Department of Financial and Professional Regulation; and BRENT E. ADAMS, Secretary of The Illinois Department of Financial and Professional Regulation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
Honorable Sophia Hall, Judge Presiding.
¶ 1 Held: Administrative agency's determination that plaintiff violated sections 22(A)(9) and 22(A)(34) of the Medical Practice Act of 1987 is confirmed, where agency's factual and credibility findings were not against the manifest weight of the evidence and its ultimate conclusion was not clearly erroneous; however, because a number of the violations found by agency were overturned on administrative review, this matter is remanded to the agency for reconsideration of the sanction to be imposed upon plaintiff for the remaining, confirmed violations.
¶ 2 Plaintiff-appellant, Alan H. Olefsky, M.D., brought this action for administrative review against defendants-appellees, the Illinois Department of Financial and Professional Regulation; Jay Stewart, Director of the Division of Professional Regulation of the Illinois Department of Financial and Professional Regulation; and Brent E. Adams, Secretary of the Illinois Department of Financial and Professional Regulation (collectively, the Department), seeking reversal of the Department's conclusion that plaintiff's medical license should be indefinitely suspended for a minimum of three years due to multiple violations of the Medical Practice Act of 1987 (the Act). 225 ILCS 60/1 et seq. (2014). The circuit court confirmed the Department's decision in part and reversed it in part, and plaintiff has appealed.
¶ 3 For the following reasons, we confirm the Department's finding that plaintiff violated two sections of the Act, and remand this matter to the Department for it to reconsider the discipline to be imposed for those remaining, confirmed violations.
¶ 5 The record reflects that plaintiff was first licensed as a physician in Florida in 1987 and in Illinois in 1988. The record also reflects that plaintiff has a significant history of drug and alcohol abuse, as well as related discipline with respect to his state and federal medical licenses and permits.
¶ 6 In 1989, plaintiff presented two forged prescriptions for a fictitious patient to a pharmacy in Florida. While plaintiff was acquitted of criminal charges brought by the State of Florida, the incident resulted in the federal Drug Enforcement Agency (DEA) revoking plaintiff's federal registration and permit to prescribe controlled substances in 1992. As a result of this action taken by the DEA, the Department's predecessor and plaintiff agreed to the entry of a consent order placing plaintiff's Illinois medical license on probation for one year.
¶ 7 Between 2002 and 2004, after plaintiff regained his DEA registration, he issued a number of false prescriptions for controlled substances in the names of others for his personal use. Hewas also convicted for driving under the influence. These incidents led the Department to temporarily suspend plaintiff's medical license and his Illinois controlled substance license. In November 2006, the Department and plaintiff agreed to the entry of a second consent order placing plaintiff's medical license on probation for a minimum of five years. The conditions of that probation required plaintiff to, inter alia, abstain from alcohol, and submit quarterly reports as to his compliance with his probation. However, in January 2007, plaintiff was hospitalized for alcohol poisoning, which led the Department to again temporarily suspend plaintiff's medical license.
¶ 8 In May 2007, the Department and plaintiff agreed to the entry of a third consent order which again placed plaintiff's medical license on probation for a minimum of five years, to begin at the conclusion of an additional period of temporary suspension. Conditions of that probation again required plaintiff to submit quarterly reports as to his compliance with his probation. This probationary period began in December 2007, when plaintiff's license was restored to active status.
¶ 9 The record also reflects that plaintiff twice applied to again obtain a DEA registration to prescribe controlled substances. His first attempt was denied in a final order entered in August 2007 (2007 DEA order), while the second application was denied in a final order entered in April 2011 (2011 DEA order). The DEA's decision in each instance was based, in part, upon the DEA's conclusion that the public interest would not be served by granting a registration to plaintiff in light of his extensive history of alcohol and drug use and his fraudulent use of false prescriptions. Moreover, while plaintiff waived his right to a hearing with respect to the denial of his initial application, the 2011 DEA order was entered only after an administrative hearing at which plaintiff was found to have provided false testimony.
¶ 10 In June 2013, the Department initiated the proceedings at issue here by filing an administrative complaint against plaintiff seeking further discipline with respect to his Illinois medical license and Illinois controlled substance license. The operative, two-count, second amended complaint was filed in July 2014. In count I, the Department alleged that plaintiff had failed to report the 2007 DEA order to the Department, either in any of the quarterly reports he was required to file pursuant to his probation, or in his 2008 application for the renewal of his Illinois medical license, in violation of sections 22(A)(9), 22(A)(12), 22(A)(15), and 22(A)(34) of the Act. 225 ILCS 60/22(A)(9), 22(A)(12), 22(A)(15), 22(A)(34) (West 2014). In count II, the Department alleged that plaintiff had failed to report the 2011 DEA order to the Department, either in any of the quarterly reports he was required to file pursuant to his probation, or in his 2011 application for the renewal of his Illinois medical license, in violation of sections 22(A)(9), 22(A)(12), 22(A)(15), and 22(A)(34) of the Act. Id. In each count, the DEA asserted that these failures required that plaintiff's medical license and Illinois controlled substance license be "suspended, revoked, or otherwise disciplined." Plaintiff did not file an answer to this administrative complaint.
¶ 11 An evidentiary hearing was held before an administrative law judge (ALJ) in July 2014. The Department called plaintiff and Temple Hall, the Department probation compliance investigator assigned to plaintiff, as witnesses. The Department also introduced numerous exhibits into evidence, which included extensive documentary evidence regarding defendant's prior federal and Illinois disciplinary proceedings, the three prior consent orders, the 2007 and 2011 DEA orders, the quarterly reports filed by plaintiff in accordance with his probation, and plaintiff's 2008 and 2011 applications for renewal of his Illinois medical license. Plaintiff testified briefly on his own behalf and entered a single document into evidence.
¶ 12 The evidence presented at the hearing demonstrated that plaintiff never explicitly informed the Department of the 2007 or 2011 DEA orders denying his applications for DEA registration. Ms. Hall specifically testified that this information was not contained in any of plaintiff's quarterly reports, and that neither plaintiff, nor anyone on his behalf notified her of those orders in any other manner. This was despite the fact that plaintiff's quarterly reports required him to indicate whether or not he had "been terminated/suspended/disciplined, [or] been denied/lost privileges or resigned," and to provide a "detailed explanation" to any affirmative answer to that question. Ms. Hall did testify that two quarterly reports for 2010 could not be located in the Department's files, and they were, therefore, not presented at the hearing. Ms. Hall did testify that any communications received from plaintiff or his attorney should be in the Department's files.
¶ 13 In addition, neither DEA order was reported on the face of plaintiff's 2008 or 2011 applications for renewal of his Illinois medical license. This is despite the fact that the 2008 application specifically required plaintiff to indicate if he had been denied a license or permit in the last three years and to "attach" a "detailed explanation" for any affirmative response. While in his 2008 renewal application plaintiff affirmatively responded "yes" to this question, he merely stated that an explanation was "submitted [and] on file." The 2008 renewal application introduced by the Department contained no attachment containing a detailed explanation.
¶ 14 For his part, plaintiff affirmatively testified that he did inform the Department about the 2007 DEA order, but his testimony about how this occurred was vague and inconsistent. He alternatively testified that he "believed" or "assumed" that his attorney provided that information. He provided similarly vague and inconsistent testimony regarding how the Department was notified of the 2011 DEA order. Plaintiff introduced an unsigned, undateddocument into evidence at the hearing that contained a narrative of his disciplinary history from 1989 to 2007. While this narrative did disclose the 2007 DEA order, it made no mention of the 2011 DEA order. Once again, plaintiff testified that he "believed" that it had been...
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