Section 100.1  Authority and Applicability

 

a)         This Part governing practice and procedure for administrative hearings is promulgated pursuant to Section 5-10(a)(i) of the Illinois Administrative Procedure Act (IAPA). Subpart B provides rules for Department hearings.  Subpart C provides rules for hearings under the Smoke Free Illinois Act.

 

b)         This Part governs all contested cases in the Department of Public Health, State of Illinois, except as noted in subsection (d) of this Section.  When a licensing statute prescribes certain procedures or requirements for licensure hearings, those procedures or requirements will be followed as though they were set forth in this Part.  If there is a conflict between the licensing statute and this Part, the licensing statute shall prevail.

 

c)         This Part also applies to contested cases resulting from the Department's administration of any program on behalf of the United States government.  If there is a conflict between federal regulations and this Part, federal regulations shall prevail.

 

d)         This Part does not govern informal administrative procedures established by the Department to resolve licensing issues or conflicts prior to initiating any action requiring a formal hearing.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.2  Definitions and Incorporated and Referenced Materials

 

a)         Definitions

 

"Administrative law judge" or "hearing officer" means any attorney licensed to practice law in Illinois and authorized by the Director to preside at an administrative hearing. 

 

"Alleged violator" means a person or entity issued a citation under the Smoke Free Illinois Act.

 

"Business Day" means any day when the Department's offices are open.

 

"Citation" means a document alleging a violation of the Smoke Free Illinois Act.

 

"Contested case" has the meaning ascribed to it in Section 1-30 of the IAPA and shall include hearings pursuant to the Smoke Free Illinois Act (SFIA).

 

"Day" means a calendar day, unless otherwise specified.

 

"Default" or "default judgment" means a written order entered after due process requirements of adequate notice and opportunity for hearing have been provided and the respondent fails to appear, defend, or answer; or a written order entered as an ultimate sanction for improper conduct.  This order is considered a final order.

 

"Department" means the Illinois Department of Public Health.

 

"Director" means the Director or the designee of the Director of the Department of Public Health.

 

"Dismissal for Want of Prosecution" means any instance where a Complainant fails to actively participate in a case which they have initiated.

 

"Electronic mail" means a communication by electronic means which is automatically retained and stored and may be readily accessed or retrieved.

 

"Enforcing agency" has the meaning ascribed to it in Section 40 of the Smoke Free Illinois Act.

 

"Final order" or "final decision" means a written order that disposes of a case or action, either with or without the imposition of a penalty, sanction, or other action.

 

"License" has the meaning ascribed to it in Section 1-35 of the IAPA.

 

"Licensing" has the meaning ascribed to it in Section 1-40 of the IAPA.

 

"Person" has the meaning ascribed to it in Section 1-60 of the IAPA.

 

"Personal information" includes any Social Security, Medicaid, Medicare, or health insurance numbers.

 

"Video conferencing application" refers to video conferencing applications such as WebEx, Zoom, Skype, etc.

 

b)         Referenced Materials

The following federal laws, State laws and rules, and Illinois Supreme Court Rules are referenced in this Part:

 

1)         Social Security Act (42 U.S.C. 1395 and 1396)

 

2)         Health Insurance Portability and Accountability Act of 1996 (HIPAA) (110 U.S.C. 1936)

 

3)         Illinois Administrative Procedure Act [5 ILCS 100]

 

4)         Nursing Home Care Act [210 ILCS 45]

 

5)         MC/DD Act [210 ILCS 46]

 

6)         ID/DD Community Care Act [210 ILCS 47]

 

7)         Smoke Free Illinois Act (SFIA) [410 ILCS 82]

 

8)         Specialized Mental Health Rehabilitation Act of 2013 (SMHRF Act) [210 ILCS 49]

 

9)         Code of Civil Procedure [735 ILCS 5]

 

10)        Administrative Review Law [735 ILCS 5/Art. III]

 

11)        Personal Information Protection Act [815 ILCS 530]

 

12)        Specialized Mental Health Rehabilitation Facilities Code (77 Ill. Adm. Code 380)

 

13)        Health Facilities and Services Review Board:  Health Facilities Planning Procedural Rules (77 Ill. Adm. Code 1130)

 

14)         Illinois Supreme Court Rule 216:  Admission of Fact or of Genuineness of Documents

 

15)         Illinois Supreme Court Rule 13: Appearances – Time to Plead – Withdrawal

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.3  Parties to Hearings

 

a)         Except for hearings conducted pursuant to the Nursing Home Care Act (NHCA), MC/DD Act, SMHRF Act, or the ID/DD Act, the parties to an administrative hearing before the Department are the Department (as Complainant) and the Respondent.

 

b)         For hearings conducted pursuant to the NHCA, MC/DD Act, SMHRF Act, or the ID/DD Act:

 

1)         In a Complainant's hearing (Section 3-702(g) of the NHCA, MC/DD Act, or the ID/DD Act), the parties are the Department and the Complainant.  The facility that was investigated may participate as a third party (see Section 100.6 of this Part).

 

2)         In a denial of access hearing (Section 2-110(d) of the NHCA, MC/DD Act, or the ID/DD Act), the parties are the person who requested a hearing based on denial of access to a facility and the facility.

 

3)         In an involuntary transfer/discharge hearing, the parties are the resident who is to be transferred/discharged and the facility.

 

4)         In all other NHCA, MC/DD Act, SMHRF Act, or ID/DD Act hearings, the parties are the Department (as Complainant) and facility (as Respondent).  If the action resulted from a complaint filed with the Department, the person who filed the complaint may participate as a third party.

 

5)         A third party shall file an appearance with the administrative law judge on or before the date of the prehearing conference, if one is scheduled, or prior to the hearing date if no prehearing conference was scheduled.

 

c)         A Respondent or alleged violator is a person or entity against whom a complaint or petition is filed or to whom a citation or notice of an opportunity for hearing is directed.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.4  Appearance – Right to Counsel

 

a)         Any party to a proceeding may appear and be represented by a private attorney authorized to practice law in the State of Illinois at the party's own cost.  Any individual party may waive this right and represent himself or herself.  For hearings conducted pursuant to Sections 2-110(d) and 3-410 of the NHCA, the MC/DD Act, and the ID/DD Act, a visitor or resident shall have the option of being represented by a non-attorney of his or her choosing.  A corporation, a limited liability company, partnership, association, or certified local health department shall appear and be represented only by an attorney authorized to practice law in the State of Illinois.  A shareholder, corporate officer, employee, or member of the board of directors may not appear or represent a corporation or association unless that individual is authorized to practice law in the State of Illinois.

 

b)         All persons appearing in proceedings before the Department, including a visitor's or resident's non-attorney representative, shall conform to the standards of ethical conduct required of attorneys before the courts of Illinois.  If any person or attorney does not conform to those standards, the administrative law judge may decline to permit that person to appear in any proceeding.

 

c)         Any attorney or other person appearing before the Department as a representative of a visitor or resident shall file an Appearance form containing: the name of the party represented; the name, address, electronic mail address, and telephone number of the attorney or representative; an affirmative statement that the attorney is or is not duly licensed in the State of Illinois; and the written signature of the attorney or representative.

 

d)         Special appearances are not recognized.  The initial appearance, regardless of form, is deemed a general appearance.

 

e)         An attorney may withdraw his or her appearance and/or representation only upon motion and appropriate ruling by the administrative law judge in accordance with Illinois Supreme Court Rule 13. However, attorneys may be substituted without motion upon notice to all parties and the administrative law judge if the substitution will not delay the proceedings, a statement to that effect is contained in the notice, and a substitute Appearance form is filed concurrently with the notice.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.5  Emergency Action

 

If the Director finds that the public interest, safety, or welfare imperatively requires emergency action, and if the Director incorporates a finding to that effect in an order, summary suspension of a license or summary suspension of authorization to conduct a particular activity may be ordered, pending proceedings for revocation, termination or other action.  Those proceedings shall be promptly instituted and determined. (Section 10-65 of the IAPA)

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.6  Hearings Requested by Complainants Pursuant to Section 3-702 of the Nursing Home Care Act, Section 3-704 of the MC/DD Act, or Section 3-704 of the ID/DD Community Care Act

 

Pursuant to Section 3-702(g) of the NHCA, Section 3-704 of the MC/DD Act, and Section 3-704 of the ID/DD Act, a complainant who is dissatisfied with the determination or investigation of his or her complaint by the Department may request a hearing.  (Section 3-702(g) of the NHCA, Section 3-704 of the MC/DD Act, and Section 3-704 of the ID/DD Act). Any complainant requesting a hearing shall be deemed to have consented in writing to disclosure of their name and may further agree to accept service of all documents in this matter by email, provided that the complainant has an email address and consents to receiving service by email.

 

a)         The parties to administrative hearing pursuant to this Section are the Department and the Complainant.  The facility shall be given notice of any such hearing and may participate in the hearing as a third party (Section 3-702(g) of the NHCA, Section 3-704 of the MC/DD Act, and Section 3-704 of the ID/DD Act).  A request to participate as a third party must be filed in accordance with Section 100.3(b)(5) of this Part.

 

b)         For the purposes of this Section, a Complainant is an individual who has filed a complaint pursuant to the NHCA, the MC/DD Act, Section 3-704 of the MC/DD Act, and Section 3-704 of the ID/DD Act.  If the individual filing the complaint indicates that she or he is acting as the agent of an organization or another individual, and so requests, the organization or other individual will be the Complainant for the purposes of this Section.  In that case, the individual who acted as agent for the organization or other individual will be a "referring agent".  Unless objected to by the Complainant, the referring agent shall be entitled to receive Notice of Complaint Determination and any request for hearing made pursuant to this Part.

 

c)         In accordance with Sections 3-703 through 3-712 of the NHCA, Section 3-704 of the MC/DD Act, and Section 3-704 of the ID/DD Act, the Director shall designate an administrative law judge to conduct hearings requested by dissatisfied Complainants.  All hearings shall be conducted pursuant to the provisions of this Part.

 

d)         The Department shall not release or produce copies of any record containing the personal health information of any individual to a Complainant, as defined in this Section, unless the Complainant possesses legal authority under a written power of attorney, guardianship, certified copy of a court order, or other written HIPAA compliant authorization.

 

e)         Dissatisfied Complainants pursuant to this Section shall have the opportunity to contest the adequacy of the Department's investigation and its determination as to whether the complaint was valid, invalid, or undetermined and also the Department's determination as to whether to issue any violation as a result of the determination.  Whenever "determination" is used in this Section, it shall include any investigation resulting in the determination.

 

f)         Dissatisfied Complainants pursuant to this Section do not have the opportunity to contest any other determinations or decisions of the Department regarding the adequacy and completeness of the investigation.

 

g)         Nothing contained in this Section shall be deemed to entitle a dissatisfied Complainant to additional hearings or to a rehearing of a case that has already been the subject of a formal administrative hearing or a Final Order.

 

h)         Complainants pursuant to this Section shall carry the burden to prove, by a preponderance of the evidence, that the aforesaid determinations of the Department were improper.

 

i)          At the conclusion of the hearing, the administrative law judge shall prepare a report in accordance with Section 100.15, and make a recommendation to the Director specifying whether the complaint should be reinvestigated and/or any invalid or undetermined finding should be changed to a valid finding or the Department should reconsider the failure to cite a facility with any violation.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.7  Initiation of a Contested Case

 

a)         In contested cases, except those held pursuant to Section 100.6, the Department shall serve on the Respondent a Notice of Opportunity for an Administrative Hearing, which shall contain:

 

1)         a statement of the time, place, and nature of the action;

 

2)         a statement of the legal authority and jurisdiction under which the hearing is to be held;

 

3)         a reference to the particular Sections of the applicable substantive and procedural statutes and rules;

 

4)         allegations of noncompliance;

 

5)         a statement of the procedure for requesting an administrative hearing (see Section 10-25 of the IAPA), including a date by which the request must be received by the Department, which must be at least 10 days after the Notice is mailed or personally served;

 

6)         unless the case is brought pursuant to Title XVIII (health insurance for the aged and disabled) or XIX (medical assistance) of the Social Security Act, or the NHCA, the MC/DD Act, or the ID/DD Act, a statement setting forth the requirement of an Answer, pursuant to subsection (d) of this Section; and

 

7)         except where a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted, the consequences of a failure to respond, and the official file or reference number.  (Section 10-25 of the IAPA)

 

b)         For hearings conducted pursuant to Section 100.6, the Notice shall include:

 

1)         a citation to the legal authority for conducting the hearing;

 

2)         an advisory to complainants concerning the rules of procedure under which the hearing will be conducted; 

 

3)         the name of the Administrative Law Judge who will preside over the prehearing conference;

 

4)         date, time and call-in information for the prehearing conference.

 

c)         A person who receives a Notice of an Opportunity for an Administrative Hearing must submit a written request for a hearing to the Department.  The request is to be sent to the Department at the address stated in the Notice and must be received by the date set forth in the Notice.  Failure to comply with this Section shall constitute a waiver of the person's right to an administrative hearing. 

 

d)         Upon receipt of a timely written request for hearing, the Department shall issue a Notice of Hearing or Prehearing Conference.  The Notice of Hearing or Prehearing Conference shall contain:

 

1)         a statement of the time, place, and nature of the hearing;

 

2)         a statement of the legal authority and jurisdiction under which the hearing is to be held; and

 

3)         the names and mailing addresses of the administrative law judge, all parties, and all other persons to whom the agency gives notice of the hearing, unless otherwise confidential by law.  (Section 10-25 of the IAPA)

 

e)         Unless the case is brought pursuant to Title XVIII or XIX of the Social Security Act, the NHCA, the MC/DD Act, or the ID/DD Act, a written Answer to the Allegations of Noncompliance shall be filed by a Respondent. The Answer must be served on all parties within 20 days after receipt of the notice alleging noncompliance.  However, if the Respondent fails to submit a timely written request for hearing, the Respondent waives its right to Answer.  If a Respondent fails to file a timely Answer, each alleged violation of a statute or Department rule by the Respondent shall be deemed to have been judicially admitted and, therefore, no longer subject to dispute by the Respondent.  If the Respondent has insufficient knowledge of the facts to form a belief as to the truth of the allegation, the Respondent may so state with an affidavit of insufficient knowledge.  If the Respondent wishes to raise defenses that are affirmative in nature or would be likely to take the Department by surprise, the Respondent must do so in the Answer.  If Affirmative Defenses are filed within an Answer, the Department shall reply to the Affirmative Defenses within 20 days after receipt of the Answer.

 

f)         A pleading may be freely amended at any time prior to the conclusion of a hearing.  Amendments to Answers may be allowed upon proper motion at any time during the pendency of the proceedings on terms that are just and reasonable.  However, a prior Answer shall be admissible and may be used to cross-examine the person preparing or verifying the prior Answer.

 

g)         All written documents provided for under this Section shall be liberally construed with a view toward doing substantial justice between the parties.

 

h)         Venue shall be the location designated in the Notice of Administrative Hearing.  Venue may be moved to another location upon stipulation by all parties or upon a showing to and a finding by the administrative law judge that exceptional circumstances make it desirable, in the interest of justice, to allow a change of venue.  Exceptional circumstances include, but are not limited to, age, infirmity, transmission of communicable disease including, but not limited to, COVID-19, or inability to travel due to ill health.  However, mere inconvenience shall not constitute grounds for a change in venue.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.8  Motions

 

a)         Motions, unless made during a hearing, shall be made in writing and shall set forth the relief or order sought and the legal authority for the action requested.  Except as otherwise provided in this Part or by a specific statute, motions may seek any relief or order recognized in the Code of Civil Procedure and Rules of the Illinois Supreme Court, and shall include a reference to the applicable Section of the Code or Rules in both the heading and body of the Motion.  Motions based on a matter that does not appear of record shall be supported by affidavit.

 

b)         Written motions shall be titled as to the party making the motion and the nature of the relief sought.  The title shall be in capital letters and shall be placed either below the caption or to the right of the caption beneath the docket number.  No motion shall be identically titled with any other motion.  Examples of properly-titled motions:  Respondent's Motion to Dismiss, Respondent's Second Motion to Dismiss.

 

c)         Motions directed at the pleadings, if not raised at the earliest opportunity, shall be deemed waived, absent a showing of exceptional circumstances.

 

d)         The administrative law judge shall not have the authority to dismiss, postpone, vacate, or overturn an Order or Notice issued by the Director, but may make a recommendation to the Director at any time that circumstances merit such a recommendation.

 

e)         Motions to continue a hearing shall be granted only for good cause shown. Motions for a continuance shall be in writing and shall be made immediately upon a party becoming aware that a continuance will be needed.  The party moving for a continuance shall file an affidavit in support of their motion, which, at a minimum, states: when the party learned that a continuance was needed, the steps that were taken to avoid the need for a continuance, and the current reasons the continuance is needed.  Continuances may also be granted by agreement of the parties.

 

f)         Whenever possible, as much of the hearing as possible shall be completed, and only those matters that must be continued shall be continued.

 

g)         If there is an unforeseen emergency, motions to continue a hearing may be made by telephone or by videoconferencing application, rather than in writing.  Motions by telephone shall be made through a conference call involving the administrative law judge and all parties, and shall be confirmed within five business days by the filing of a written motion. Motions made by videoconferencing application shall involve the administrative law judge and all parties, and shall be confirmed within five business days by the filing of a written motion.

 

h)         Responses shall be in writing unless made at a prehearing conference or a hearing.

 

i)          On a motion to disqualify an administrative law judge made by any party, the administrative law judge who is the subject of the motion shall determine whether he or she should be disqualified on the basis of bias or conflict of interest, and shall remove himself or herself if a determination is made that bias or a conflict of interest exists. If the motion is granted, the Director, or their designee, shall appoint a new administrative law judge.  A motion for the disqualification of an administrative law judge shall be based upon the alleged bias or conflict of interest of the administrative law judge.  An adverse ruling, in and of itself, shall not constitute bias or conflict of interest. (Section 10-30 of the IAPA)  Motions for substitution of an administrative law judge pursuant to Section 2-1001(a) of the Code of Civil Procedure shall not be permitted.

 

j)          The following shall constitute bias or conflict of interest for the purpose of disqualification under subsection (i):

 

1)         The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;

 

2)         The judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during that association as a lawyer concerning the matter, or the judge has been a material witness concerning it;

 

3)         The judge was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy (provided that referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subsection (j)) or, for a period of seven years following the last date on which the judge represented any party to the controversy while the judge was an attorney engaged in the private practice of law;

 

4)         The judge knows that any of the following persons has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other more than minimal interest that could be substantially affected by the proceeding:

 

A)        the judge individually;

 

B)        a fiduciary with ties to the judge;

 

C)        the judge's spouse, parent, or child, wherever residing; or

 

D)        any other member of the judge's family residing in the judge's household.

 

k)         Demands for a Bill of Particulars shall not be allowed.

 

l)          Requests for an extension of time other than to continue a hearing shall be in writing and may be granted for good cause shown.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.9  Form of Papers

 

a)         Absent prior leave from the Director or the administrative law judge assigned to a given matter, all documents filed in any proceedings, except exhibits, shall be computer generated, with text being double-spaced and using a 12 point font.  All documents' margins shall be set at one (1) inch throughout the document.  Long quotations shall be single spaced and indented.

 

b)         All pleadings, written motions, or notices filed in the administrative proceedings shall be dated and signed by the party filing the paper or his or her attorney or representative.

 

c)         Pleadings, written motions, and notices shall contain the docket number for the proceeding (once set), the mailing address and electronic mail address of the party filing the paper, provided that the complainant has an electronic mail address, or, if represented by an attorney or other representative, the name, business address, electronic mail address, and telephone number (including area code) of such attorney or representative.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.10  Service

 

a)         Notices under Section 100.7(a) shall be served either personally, by certified mail or by electronic mail upon all parties (including complainants under the NHCA, the MC/DD Act, the SMHRF Act, and the ID/DD Act when applicable) or their agents appointed to receive service of process unless the applicable licensing statute requires a different form of service, in which case service shall conform to the statute.

 

b)         Service to the last official electronic mail or mailing address of a party or agent provided to the Department by a party shall be considered in compliance with this Section. Notices and citations sent by certified mail to the last known mailing address of a party or agent which are returned to the Department as unclaimed or refused by the addressee shall be considered served.  For purposes of this Section, the "last official electronic or mailing address" shall be:  the electronic mail and/or mailing address listed on the most recent application submitted to the Department, unless the Department has been subsequently notified in writing of a change of address.  For certified nursing assistants and habilitation aides, the "most recent application" shall be the information submitted by the training program or testing entity that qualified the individual to be entered on the registry. 

 

c)         Service of pleadings or motions under this Section, unless otherwise provided for in this Section, shall be made by any manner consistent with the provisions of Section 10-75 of the Illinois Administrative Procedure Act.  When any party or parties have appeared by attorney, service upon the attorney shall be deemed service upon the party or parties.  All pleading or motions under this Section shall also be served upon the administrative law judge.

 

d)         Proof of service under subsection (b) shall be by either:

 

1)         certificate of attorney; or

 

2)         affidavit or verification by certification.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.11  Prehearing Conferences

 

a)         The administrative law judge shall schedule an initial prehearing conference for all cases, which may be conducted in-person, telephonically, or by videoconference.  Subsequent prehearing conferences shall be scheduled by the administrative law judge, as necessary.  Except for those cases arising under Section 2-110(d) and 3-410 of the NHCA, Section 3-401 of the ID/DD Act, and Section 3-401 of the MC/DD Act, the complainant and respondent shall be prepared to discuss the following issues at the initial prehearing conference:

 

1)         the prospects for settlement of the matter and the length of time anticipated by both parties to reach a resolution;

 

2)         the simplification of the issues;

 

3)         amendments to the pleadings;

 

4)         the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;

 

5)         the limitation of the number of expert witnesses;

 

6)         any other matters that may aid in the disposition of the hearing; and

 

7)         a hearing date.

 

b)         In any proceedings under this Section in which the Department has not scheduled a prehearing conference, any party to the proceedings may request the scheduling of a prehearing conference.  The request shall be made in writing and received by the administrative law judge at least five days prior to the scheduled date of hearing.  The requesting party shall serve all other parties to the proceedings with a copy of the request.

 

c)         Upon the receipt of a request for a prehearing conference in accordance with subsection (b), the administrative law judge shall schedule the prehearing conference and notify all parties of the date, time, and place of the conference.

 

d)         After a prehearing conference, the administrative law judge shall make a written report that recites any action taken by the administrative law judge and any agreements made by the parties as to any of the matters considered. The administrative law judge's written report for the initial prehearing conference shall set a date for holding an evidentiary hearing in the matter that will provide the parties with sufficient time to explore the possible settlement of the case, as well as adequate time to prepare the matter for hearing, if necessary.

 

e)         Any party may request additional prehearing conferences.  The administrative law judge may deny or grant such a request, based on the nature of the motion.

 

f)         A certified stenographic reporter (court reporter) will not be present at a prehearing conference unless one of the parties to the proceeding requests the Department to make arrangements for a court reporter to be present.  The request shall be received by the Department at least two working days in advance of the scheduled prehearing conference.  The party requesting the presence of the court report shall be billed directly for the attendance fee of the reporter.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.12  Discovery

 

a)         Prior to the initial prehearing conference, the Department shall provide all parties with a copy of all of the Department's inspection or investigative reports resulting in the Allegations of Noncompliance or the Notice of Opportunity for an Administrative Hearing.  If no pre-hearing conference is held, the Department shall provide copies of the investigative reports prior to the hearing.

 

b)         At least 21 days prior to the commencement of the hearing, and consistent with Section 100.19(b), each party shall provide all other parties with a copy of any document that it may seek to offer into evidence.  This subsection shall not require any party to again provide copies of those documents already provided by the Department under subsection (a).

 

c)         At least 21 days prior to the commencement of the hearing, each party shall provide all other parties with a list containing the name and address of any witness who may be called to testify.

 

d)         All parties shall be entitled to any exculpatory evidence in the Department's possession that tends to support the Respondent's position or that would impeach the credibility of a Department witness.

 

e)         The Respondent shall produce documents, books, records, or other evidence that relates directly to conduct of the business entity or other subject of the administrative hearing within seven days upon a written request by the Department.

 

f)         All parties shall be under a continuing obligation to promptly update requested discovery until the hearing is concluded without the necessity for further or additional requests.

 

g)         There shall be no depositions for discovery purposes or interrogatories allowed in any proceedings brought pursuant to this Part, except as agreed to by the parties.

 

h)         Requests to Admit Facts and Genuineness of Documents shall be allowed in accordance with Supreme Court Rule 216.

 

i)          Nothing contained in this Section shall preclude the parties from agreeing to the voluntary exchange of more information than is required.

 

j)          Copies of any record containing the personal health information of any individual shall not be shared with a third party (see Section 100.3(b)), unless that third party possesses legal authority to access personal health information under a written power of attorney, certified copy of a court order or other written HIPAA compliant authorization.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.13  Hearings

 

a)         All hearings conducted in any proceedings shall be open to the public.

 

b)         Hearings will be conducted by the Director or by an administrative law judge appointed by the Director.  If the Director conducts the hearings, any reference in this Section to the administrative law judge shall be read to refer to the Director.

 

c)         The administrative law judge shall have all authority necessary to conduct a hearing, take all necessary actions to avoid delay, maintain order, to ensure the development of a clear and complete record, and to set reasonable limits on the scope of testimony or argument.  He or she shall also have the authority to:

 

1)         Administer oaths and ensure that all witnesses are duly sworn;

 

2)         Issue subpoenas;

 

3)         Hold informal conferences for the settlement, simplification, or definition of issues;

 

4)         Make rulings on all procedural requests, motions, and other similar matters;

 

5)         Continue the hearing from time to time when necessary;

 

6)         Examine witnesses; and

 

7)         Rule upon the admissibility of any evidence or testimony which a party seeks to enter into the record.

 

d)         In instances where a party has failed to comply with an administrative law judge's rulings, orders, or instructions, the administrative law judge, may, on motion or sua sponte, enter such orders as are just, including, among others, the following:

 

1)         that further proceedings be stayed until the order or rule is complied with;

 

2)         that the offending party be barred from filing any other pleadings relating to any issue to which the refusal or failure relates;

 

3)         that the offending party be barred from maintaining any particular claim or defense relating to that issue;

 

4)         that a witness be barred from testifying concerning that issue;

 

5)         that, as to claims or defenses asserted in any pleading to which that issue is material, an order of default be entered against the offending party or that his or her pleading be dismissed without prejudice; or

 

6)         that any portion of the offending party's pleadings relating to that issue be stricken and, if thereby made appropriate, judgment be entered as to the issue.

 

e)         In addition, the administrative law judge shall have the authority to prohibit the participation of any person who acts with disrespect towards the administrative law judge or the participants in a hearing, or who creates a disturbance, poses a safety risk, or otherwise impedes the administrative law judge from being able to conduct a hearing.  Upon their own authority, or at the request of a party to the proceeding, the administrative law judge may recommend dismissal of an action when a party's conduct is so obstreperous, disruptive, or dangerous as to make the conduct of further proceedings in a matter impractical, potentially dangerous, or otherwise ill-advised.

 

f)         The administrative law judge shall direct all parties to enter their appearances on the record.

 

g)         Written opening arguments and written closing arguments shall not be permitted unless allowed by the administrative law judge.

 

h)         Parties may, by stipulation, agree upon any facts involved in the proceeding.  The facts stipulated shall be considered as evidence in the proceeding.  The administrative law judge shall accept all stipulations as conclusive fact binding the stipulating parties, unless he or she makes a finding on the record that the stipulation is made in bad faith, together with the basis of the bad faith determination.  Unless precluded by law, disposition may be made of any contested case by stipulation, agreed settlement, consent order, default or motion.

 

i)          At any stage of the hearing or after all parties have completed the presentation of their evidence, the administrative law judge may call for further testimony, subject to cross-examination by the parties.

 

j)          The rules of evidence and privilege as applied in civil cases in the circuit courts of this State shall be followed.  Evidence not admissible under those rules of evidence may be admitted, however, (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.  Immaterial, irrelevant or unduly repetitious material shall be excluded. A copy of the whole or any part of an admissible book, record, paper or memorandum of the Department that is made by photostatic or other method of accurate and permanent reproduction shall be admitted in evidence at the hearing without further proof of the accuracy of the copy. Objections to evidentiary offers may be made and shall be noted in the record. (Section 10-40(a) of the IAPA)

 

k)         Official notice may be taken of matters of which the circuit courts of this State may take judicial notice. In addition, official notice may be taken of generally recognized technical or scientific facts within the Department's specialized knowledge.  Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material noticed, including any staff memoranda or data, and they shall be afforded an opportunity to contest the material so noticed.  The Department's experience, technical competence and specialized knowledge may be utilized in the evaluation of evidence. (Section 10-40(c) of the IAPA)

 

l)          A party may offer into evidence any of the following documents without foundation or other proof, provided that a copy of the document has been timely provided to all other parties in accordance with Section 100.12(b):

 

1)         Records and reports of health care facilities, doctors, nurses, physical therapists or other health care providers; however, these records and reports shall not include affidavits or other documents specifically prepared for litigation;

 

2)         Investigation reports from governmental law enforcement agencies;

 

3)         Records of any regularly conducted activity; and,

 

4)         The enforcing agency's inspection or investigative reports produced pursuant to Section 100.12(a).

 

m)        Evidentiary depositions shall be allowed for good cause shown, including, but not limited to, age, infirmity, or inability to travel due to ill health.

 

n)         Absent a showing of good cause, no document shall be offered into evidence that was not disclosed in accordance with the requirements of Section 100.12(b), and no witness shall testify whose name was not provided pursuant to Section 100.12(c).  For purposes of this subsection, a showing of good cause shall mean that a party, through no fault of its own, did not have knowledge of a document to be offered into evidence or the name of a witness within the timeframe necessary for compliance with Section 100.12(b) and (c), and provided notice of the evidence or witness to the opposing party as soon as possible after learning about the existence of the evidence or witness.

 

o)         The Director or the administrative law judge will make a record of the hearing in all administrative hearings under this Part, using such technology for recording the hearing as either the Director or the administrative law judge determines to be adequate for preserving a record of the hearing.  Any person may make arrangements to obtain a copy of the record.  The Department reserves the right to employ a certified stenographic reporter, and will do so when required by statute.  Unless an applicable statute expressly provides otherwise, the actual costs of the stenographic reporter's attendance, if one was employed, and the transcript or transcripts shall be shared equally among the parties whenever a party requests review of a Department decision by the circuit court.  The party shall provide payment prior to the Department's transmission of the transcript to the circuit court.

 

p)         Corrections to the transcript of the record limited to transcription errors may be made by the Director or an administrative law judge.

 

q)         At the request of any party, the administrative law judge may exclude all witnesses from the hearing room, or, in the case of video conferenced proceedings, by barring witnesses from the videoconference until such time as they have first testified in the hearing, except that each party or a representative of a party, in addition to legal counsel, shall be allowed to remain.

 

r)          All objections shall be raised using a short and concise statement of the basis for the objection.

 

s)         The administrative law judge shall have the authority to conduct hearings on motions and other matters by telephonic or other electronic means, so long as all parties of record are afforded the option to attend using a similar electronic method.  If the administrative law judge permits the use of electronic means, the administrative law judge and all parties may choose to participate from any location.  However, if a controlling statute mandates the location of a hearing, all parties shall be afforded the option to attend from a statutorily mandated location.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.14  Subpoenas

 

a)         Subpoenas requiring the attendance and the giving of testimony by witnesses, and subpoenas duces tecum requiring the production of books, papers, records or memoranda, may be issued by the Director or the administrative law judge upon his or her own motion or upon the written request of any party upon a showing of the relevancy of the request to the issues in the hearing.  For good cause shown, the Director or the administrative law judge may deny or modify the request for subpoenas.  Alternatively, an attorney of record may issue subpoenas pursuant to Section 2-1101 of the Code of Civil Procedure.  Copies of the subpoenas and any documents obtained by subpoenas duces tecum shall be promptly served on all other parties.  No Department employee shall be subject to a subpoena without prior express authorization of the administrative law judge.

 

b)         Subpoenas issued by the Director or the administrative law judge upon the request of a party to the proceeding shall be delivered to the requesting party, who shall be responsible for serving the subpoenas.  Subpoenas shall be served personally or by certified mail at least seven days before the date on which appearance or production is required.  Copies of the subpoenas and any documents obtained by subpoenas duces tecum shall be promptly served on all other parties.

 

c)         The witness fee for attendance and travel shall be the same as the fee of witnesses before the circuit courts of this State.  When a witness is subpoenaed by the Director, or by the administrative law judge upon his or her own motion or upon the request of the Department, the witness fee shall be paid in the same manner as other expenses of the agency.

 

d)         The appearance at the hearing of a party, or a person who at the time of the hearing is an officer, director or employee of a party, may be required by serving the party with a notice designating the person who is required to appear at least seven days before the date on which appearance is required.

 

e)         Subpoenas shall be enforced in the same manner as subpoenas issued by the circuit courts of this State.

 

(Source:  Amended at 38 Ill. Reg. 19538, effective September 22, 2014)

 

Section 100.15  Administrative Law Judge's Report and Recommendations

 

At the conclusion of a hearing at which the Director has not presided, the administrative law judge shall make a written report of the hearing, with his or her findings of fact and conclusions of law and his or her recommendations, if any, to the Director. 

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.16  Proposal for Decision (Repealed)

                                                                                   

(Source:  Repealed at 35 Ill. Reg. 7701, effective April 29, 2011)

 

Section 100.17  Final Orders

 

a)         A written final order shall be issued in every contested case. A final order shall include findings of fact and conclusions of law, separately stated.  All final orders shall specify whether they are final and subject to the Administrative Review Law and any applicable licensing statute. (Section 10-50 of the IAPA)

 

b)         A final order shall be served on parties or their agents appointed to receive service of process, by any means that will satisfy the requirements for service of process under Section 10-25 of the IAPA.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.18  Records of Proceedings

 

a)         A full and complete record shall be kept of all proceedings. The record shall include the following:

 

1)         all pleadings (including all notices and responses thereto), motions, and rulings;

 

2)         an audio recording or stenographic transcript of the hearing, if any, and all evidence received;

 

3)         a statement of matters officially noticed;

 

4)         any offers of proof, objections and rulings thereon;

 

5)         any proposed findings and exceptions;

 

6)         any decision, opinion, or report by the administrative law judge;

 

7)         all staff memoranda or data submitted to the administrative law judge or members of the Department in connection with their consideration of the case; and

 

8)         any communication prohibited by Section 10-60 of the IAPA.  No such communication shall form the basis for any finding of fact. (Section 10-35 of the IAPA)

 

b)         The record shall not contain the following unless a party requests that the document or documents be included in the record:

 

1)         Subpoenas;

 

2)         Requests for Subpoenas:

 

3)         Cover letters;

 

4)         Notices of Filing;

 

5)         Certificates of Mailing for regular mail; and

 

6)         Discovery Requests.

 

c)         The Department shall be the official custodian of the records of administrative hearings held before the Department.

 

(Source:  Amended at 34 Ill. Reg. 11768, effective July 30, 2010)

 

Section 100.19  Miscellaneous

 

a)         Ex parte consultation. Except in the disposition of matters that the Department is authorized by law to entertain or dispose of on an ex parte basis, the administrative law judge or Director shall not, after notice of hearing, communicate directly or indirectly, in connection with any other issue of fact, with any person or party, his or her representative, or any person interested in the outcome of the proceeding, except upon notice and opportunity for all parties to participate.  However, a Department member may communicate with other members of the Department and an administrative law judge may have the aid and advice of one or more personal assistants.

 

1)         An ex parte communication received by the Director, any Department employee, or the administrative law judge shall be made a part of the record of the pending matter, including all written communications, all written responses to the communications, and a memorandum stating the substance of all oral communications and all responses made and the identity of each person from whom the ex parte communication was received.

 

2)         Communications regarding matters of procedure and practice, such as the format of pleadings, number of copies required, manner of service, and status of proceedings, are not considered ex parte communications under this Section.  (Section 10-60 of the IAPA)

 

b)         Personal information. A party shall neither file in conjunction with any pleading, nor seek to introduce into evidence at any hearing, any document that contains unredacted personal information, as defined under Section 100.2. Administrative law judges shall reject the filing of any pleading that contains unredacted personal information. Additionally, an administrative law judge shall not receive into evidence any document containing unredacted personal information.

 

c)         Computation of Time.  The time within which any act under this Section is to be done shall be computed by excluding the first day and including the last, unless the last day is a Saturday, Sunday or a holiday as defined or fixed by statute in force in this State, and then it shall also be excluded.  If the day succeeding the last day is a Saturday, Sunday or a holiday as defined or fixed by statute in force in this State, that day shall also be excluded.

 

d)         Construction of Rules.  In case of any conflict between this Part and the IAPA or a specific licensing statute, the terms of the latter shall control.

 

e)         If the hearing is being conducted pursuant to federal law and there is a conflict between this Part and federal procedural or evidentiary requirements, then the federal requirements shall control.

 

f)         Waiver.  Compliance with any or all provisions concerning contested cases may be waived by written stipulation of all parties. (Section 10-70 of the IAPA)

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.25  Initiation of a Hearing

 

a)         An alleged violator receiving a citation pursuant to the Smoke Free Illinois Act (SFIA) shall submit a request for hearing to the enforcing agency that issued the citation.  The enforcing agency shall forward the request to the Department for scheduling. Failure to request a hearing within 10 calendar days after the citation is received (or failure to attend a hearing when scheduled) or failure to pay the total amount of the fine, without objection, within 28 calendar days after the citation is issued will result in a final decision and order being entered against the alleged violator.

 

b)         The Department shall serve written notice to all parties of the time, place, nature, and location of the hearing, not less than 10 days prior to the hearing. (SFIA Section 40(d) and IAPA Section 10-25)

 

c)         The Notice of Hearing shall include the following:

 

1)         A statement of the time, place, telephone number and nature of the hearing;

 

2)         A statement of legal authority and jurisdiction under which the hearing is to be held;

 

3)         The names, mailing addresses, and electronic mail addresses of the Administrative Law Judge, all parties, and all other persons who are given notice of the hearing (IAPA Section 10-25);

 

4)         Copies of the original citation and any documents to be introduced pursuant to Section 100.60(d); and

 

5)         Information as to how the alleged violator can access a copy of this Part and the SFIA on the Department's website.

 

d)         Notice shall be sufficient if served personally or if sent by certified mail to the alleged violator's address as it appears on the citation or as maintained with the Illinois Secretary of State as of the date of service.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.35  Parties to Hearings

 

The parties to the hearing shall be the enforcing agency and the alleged violator, unless the Department issues the citation, in which case the Department shall be a party. (SFIA Section 40(d))

 

(Source:  Added at 34 Ill. Reg. 11768, effective July 30, 2010)

 

Section 100.40  Right to Counsel

 

An opportunity shall be afforded all parties to be represented by private legal counsel at the party's own cost and to respond and present evidence and argument. (IAPA Section 10-25) An individual may represent himself or herself. A corporation, limited liability company, partnership, association, certified local health department, municipality or county shall appear and be represented only by an attorney authorized to practice law in the State of Illinois. A shareholder, corporate officer, employee or member of the board of directors may not appear or represent a business entity, association or local health department unless that individual is authorized to practice law in the State of Illinois.

 

(Source:  Added at 34 Ill. Reg. 11768, effective July 30, 2010)

 

Section 100.45  Prehearing Conference

 

A telephonic prehearing conference may be scheduled by the administrative law judge in accordance with Section 100.11.

 

(Source:  Added at 34 Ill. Reg. 11768, effective July 30, 2010)

 

Section 100.50  Motions

 

All Motions brought in a proceeding taking place under the SFIA shall conform to the requirements for Motions set forth under Section 100.8.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.55  Discovery

 

All discovery in SFIA cases shall proceed according to the provisions for discovery under Section 100.12. All parties shall be under a continuing obligation to promptly update requested discovery until the hearing is concluded without the necessity for further or additional requests.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.60  Hearings

 

a)         The administrative law judge shall be an attorney licensed to practice law in Illinois who is appointed by the Director to preside at an administrative hearing. The procedure for disqualification of an administrative law judge set out in Section 100.8(i) applies to this Subpart.

 

b)         All hearings shall be open to the public. The administrative law judge will determine whether to conduct the hearing through telephonic or videoconference technology, based on travel distances for all parties and witnesses, the need to expedite the proceeding, or the availability of a location.

 

1)         The hearing shall be conducted at the nearest regional office of the Department, or in a location contracted by the Department in the county where the citation was issued. (SFIA Section 40(d)) If the hearing is conducted electronically in accordance with subsection (b), unless otherwise agreed by all parties, at least one party or the administrative law judge shall attend the hearing at the nearest regional office or in a location contracted by the Department in the county where the citation was issued. 

 

2)         All exhibits intended to be offered into evidence during a telephonic hearing shall be received by the administrative law judge no later than 24 hours prior to the hearing. Exhibits may be submitted to the administrative law judge through U.S. Mail, electronic mail or fax.

 

c)         If no court reporter is present, the administrative law judge will make an audio or audiovisual recording of the proceedings and will maintain the recording until 90 days after the Director has entered a final order, unless a timely notice of civil administrative review is filed, in which case the administrative law judge will cause the audio recordings to be transcribed by a certified stenographic reporter and will cause the transcript to become part of the official record.  A party requesting a copy of the transcription or initiating a legal review or appeal shall be billed directly for the copy.

 

d)         The rules of evidence and privilege as applied in civil cases in the circuit courts of this State shall be followed. Evidence not admissible under those rules of evidence may be admitted, however (except where precluded by statute), if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. Immaterial, irrelevant, or unduly repetitious material shall be excluded. Objections to evidentiary offers may be made and shall be noted in the record. (IAPA Section 10-40(a))

 

e)         A party may offer any of the following documents into evidence without further foundation:

 

1)         Official police investigative reports and narratives, prepared by sworn Illinois police officers, sheriff's deputies and officers of the Illinois State or Secretary of State Police, prepared in the course of their official duty;

 

2)         The enforcing agency's inspection or investigative reports produced pursuant to Section 100.12(a); or

 

3)         Copies of any official records maintained by a governmental agency.

 

f)         The failure of an alleged violator to appear, after receiving proper notice under Section 100.25, shall result in a default judgment being entered by the administrative law judge. A default judgment entered against a violator after a failure to appear may be vacated by the Director within 15 days after entry in cases in which the alleged violator, upon written motion, can demonstrate good cause, as that term is construed under Illinois law, for the failure to appear. In cases in which an enforcing agency fails to have any witness appear, the administrative law judge shall dismiss the case against the alleged violator.  An alleged violator's failure to appear or an enforcing agency's failure to have a witness appear in one particular case shall not have any effect on any other case.  

 

g)         An alleged violator may request an expedited hearing by making a written request to the administrative law judge, who will then set the matter for hearing within 120 days after actual receipt of such a written request.  However, no subsequent continuance shall deprive the Department of jurisdiction or compel a dismissal.

 

(Source:  Amended at 46 Ill. Reg. 8158, effective May 5, 2022)

 

Section 100.70  Report and Recommendations

 

The administrative law judge shall prepare a recommended decision, including findings of fact and conclusions of law, separately stated, in accordance with Section 100.15 of this Part.

 

(Source:  Added at 34 Ill. Reg. 11768, effective June 30, 2010)

 

Section 100.80  Final Order and Payment of Fines

 

a)         The Director shall issue a final order, which shall either adopt or reject the findings of fact and conclusions of law, separately stated (IAPA Section 10-50). 

 

b)         All fines shall be paid in full within 10 calendar days after the final order is served.

 

c)         Fines not paid in accordance with Section 100.80(b) may be collected by the Department through a private collection agency authorized to transact business in Illinois.

 

(Source:  Added at 34 Ill. Reg. 11768, effective July 30, 2010)

 

Section 100.90  Record of Hearing

 

A record of the hearing proceedings shall be kept in accordance with Sections 100.18 and 100.60(c).

 

(Source:  Added at 34 Ill. Reg. 11768, effective July 30, 2010)