The Illinois legislature has been generally progressive in enacting measures to help people with a criminal record avoid being stigmatized for life.  In 2003, as a state senator, President Obama sponsored one of the earliest of these measures, authorizing courts to grant certificates relieving collateral consequences. In 2011, however, Illinois took several steps backwards when it enacted legislation automatically barring some criminal record holders from ever working in a variety of licensed health care fields.  The law has since become the subject of litigation and further legislation that leaves many would-be medical licensees to face an uncertain future.

What follows is a description of the law’s enactment, subsequent court challenges, and potential legislative fixes.

Background

In the summer of 2010, the Chicago Tribune published a series of articles about doctors and other licensed health care professionals who had been convicted or accused of inappropriate sexual conduct involving their patients.  Despite their misconduct, these individuals were still licensed to practice. The General Assembly’s response to the investigative series was swift.

During the 2011 legislative session, lawmakers moved to amend the health care licensing code to apply an automatic lifetime bar to licensure for anyone convicted of the following offenses: 1) a battery or sexual offense against a patient during treatment or care; 2) a conviction mandating registration as a sex offender (which includes certain Class A misdemeanors that essentially involve consensual contact between minors); and 3) a “forcible felony.” The amendment did not provide a right to contest the decision to revoke or deny a license, through either a pre- or post-license revocation hearing. The amendment applied to both current and future license holders in fields such as licensed practical nurse, registered nurse, occupational therapist, speech pathologist, athletic trainer, optometrists, dental hygienists. See 68 Ill. Adm. Code 1130.110.

The lifetime bar went into effect on August 20, 2011.  See 20 ILCS § 2105/2105-165. Shortly thereafter the Illinois Department of Financial and Professional Regulation’s (IDFPR), the state’s largest licensing agency, began revoking the licenses of any health care worker convicted of a battery against a patient or a sex offense resulting in mandated sex offender registration.  By October 2015, the IDFPR had revoked 110 licenses. Of that number, 11 involved crimes against a patient.

In February 2013, the IDFPR issued regulations identifying what crimes were forcible felonies, the third category of prohibitive offense. Inexplicably, the IDFPR did not rely on the Illinois Criminal Code’s definition of “forcible felony,” choosing to draft its own. The IDFPR’s definition includes offenses that are not within the code’s definition while excluding others. For example, the IDFPR excluded the following offenses that are expressly included in the code’s definition: burglary, residential burglary, aggravated arson, and arson. At the same time, the IDFPR added offenses such as aggravated battery not resulting in severe bodily harm, possession of a deadly substance, and eight terrorism-related offenses (including making a terrorist threat, falsely making a terrorist threat, and causing a catastrophe) that are not expressly enumerated in the code. While those offenses may fall within the code’s catch-all provision (“‘Forcible felony’ means … and any other felony which involves the use of threat of physical force or violence against any individual.”), it is unclear why the IDFPR chose to single them out rather than adopting the statute’s more flexible definition.

The IDFPR would later argue that it was not bound by the code’s definition since the 2011 law did not explicitly incorporate the code’s definition.

 

Court Challenges

Since its enactment, several licensed health care workers and license applicants have challenged the legality of the lifetime bar. The most significant ruling was issued by the Illinois Supreme Court in 2014.

Lifetime Bar for Sex Offenses Against Patients Upheld

In Hayashi v. IDFPR, 2014 IL 116023 (Oct. 17, 2014), three former health care licensees challenged the constitutionality of the lifetime bar after their licenses were revoked. All of the plaintiffs had been convicted of sexual offenses involving a patient within the past 14 years. On appeal, their cases were consolidated. The plaintiffs sought to overturn the bar on several grounds: procedural due process (no right to a pre-revocation hearing), substantive due process (deprivation of property and retroactive application), and res judicata. The Illinois Supreme Court upheld the lifetime bar.

On the substantive due process issue, the Court explained:

It is the responsibility of the legislature, not the courts, to balance plaintiffs’ interests in the practice of their health care professions against the State’s interests in regulating medical licenses and protecting the public. …. Section 2105-165 imposes mandatory revocation of health care licenses on plaintiffs based on their convictions of certain criminal offenses during the course of patient care or treatment. There is no question that the means chosen by the legislature is rationally related to the goal of protecting the public health, safety and welfare and is a valid exercise of the State’s power to regulate health care professionals.

It followed that the law provided adequate procedural due process by giving licensees 20 days (from the receipt of notice of the intent to revoke) to challenge the factual basis of the revocation by providing proof that they had not been convicted of a prohibitive offense.  The Court explained: “Any additional procedures would add to the Department’s administrative and fiscal burdens with no added benefit to plaintiffs.”

The Court did not decide if the licensing bar amounted to an unconstitutional ex post facto law; nor was the Court was not asked to determine if the lifetime bar was constitutional as applied to individuals whose criminal conduct did not involve a patient or sex crime, or had occurred years earlier.

Forcible Felony Bar Struck Down

In early August, a Cook County circuit court judge ruled that the 2011 law’s forcible felony bar was unconstitutional on its face, while also striking down the IDFPR’s definition of forcible felony.  Anderson v. IDFPR, No. 16 CH 2611 (Ch. Ct., Aug. 19, 2016).

The plaintiff in Anderson was denied an LPN license on the basis of a 20-year-old conviction for aggravated battery to a police officer.  She was 20 years old when she was arrested.

Under the Criminal Code, aggravated battery does not expressly qualify as a forcible felony unless the physical contact causes the victim to suffer “great bodily harm or permanent disability or disfigurement.” 720 ILCS 5/2-8.  In other words, while aggravated battery is always classified as a felony it is not always classified as a forcible felony.

The plaintiff in Anderson argued that her application should not have been denied because her conviction did not meet the Criminal Code’s definition of a forcible felony. The IDFPR disagreed, stating that it was not bound to apply the code’s definition, and was free to create its own more expansive definition

The court sided with the plaintiff, holding that the IDFPR exceeded its statutory authority when it failed to rely on the code’s forcible felony definition.  The court explained that since the law did not provide any indication to the contrary, the term must be understood to refer to its settled legal definition – the one contained in the Criminal Code.

The court went on to hold that the forcible felony bar was unconstitutional on its face because the legislature failed to identify the harm it sought to prevent by barring everyone convicted of a forcible felony.  In delivering the ruling, the judge noted, “There is no question that in enacting [the 2011 law], the laudable legislative intention was to protect the public from health care workers who have been convicted of sex crimes,” and distinguished the case from Hayashi, which dealt with an as applied challenge by licensees that were subject to the bar because of sex crimes against patients, not forcible felonies.

In September, the court denied the IDFPR’s motion to reconsider. The ruling has been stayed while the IDFPR prepares to appeal the decision to the Illinois Supreme Court.

 

A Legislative Fix?

The broad consequences of the 2011 law first surfaced in 2013, when the IDFPR began revoking/denying licenses based on forcible felony convictions that fell within its own regulatory definition. These were crimes that did not involve a patient and were not sexual in nature. In some cases, the crime occurred when the applicant was a teenager.

In 2014, one state senator introduced legislation that would reinstate the right to a hearing to contest some of the IDFPR’s revocation and denial decisions based on forcible felonies.  But it was not until August of this year that legislation was finally enacted to address some of the problems with the law’s forcible felony bar. That legislation, Public Act 99-0886, is slated to take effect on January 1, 2017.

Unfortunately, P.A. 99-0886 does not go far enough to resolve all of the problems the 2011 law created.  Instead of eliminating the forcible felony bar, it substitutes a five-year mandatory bar (or three years from release from confinement, whichever is greater) for the mandatory lifetime bar.  After the mandatory bar expires, an applicant or person whose license was revoked may petition for licensure or reinstatement.  In determining whether to grant or reinstate the license, IDFPR must consider 15 factors, including the seriousness of the offenses, motive, contrition, the date of conviction, and disciplinary history.  The Act does not otherwise affect the forcible felony bar.

Procedurally, it is unclear who will be responsible for reviewing these petitions. Normally, the job of reviewing applications for licensure rests with the licensing board, whose appointed members work in the profession. Currently, however, it is the IDFPR, not the licensing board, who has been revoking and reviewing applications of those impacted by the 2011 law.

P.A. 99-0886 provides little guidance in answering this question. It merely provides that the “Department” shall evaluate these applications. Only time will tell if the IDFPR intends to continue excluding health care licensing boards from the applicant review process.

Adding further confusion and uncertainty is what impact the Anderson ruling will have on whether P.A. 99-0886 will take effect on January 1, 2017.  Though the Act makes changes to the nature of the forcible felony bar, it does not address the fundamental problem identified in Anderson — the fact that the 2011 law did not identify the harm that the forcible felony bar was intended to prevent.

Against this backdrop, health care worker licensing in Illinois could remain in limbo for several more years – blocking the professional aspirations of many hardworking citizens.

 

For more information on relief from collateral consequences in Illinois, visit the CCRC’s Illinois state profile here.