Leone v. Division of Professional Regulation of the Department of Financial & Professional Regulation

2024 IL App (4th) 220753

• Court: Appellate Court of Illinois
• Decided: December 10, 2024
• Docket: 4-22-0753
• Status: Published

Opinion

2024 IL App (4th) 220753 FILED NO. 4-22-0753 December 10, 2024 Carla Bender th IN THE APPELLATE COURT 4 District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

CHRISTOPHER D. LEONE, D.C., ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County THE DEPARTMENT OF FINANCIAL AND ) No. 15MR436 PROFESSIONAL REGULATION, DIVISION OF ) PROFESSIONAL REGULATION; and CECILIA ) ABUNDIS, in Her Official Capacity as Acting Director ) of the Department of Financial and Professional ) Honorable Regulation, ) Jennifer M. Ascher, Defendants-Appellants. ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court, with opinion. Justices Steigmann and Grischow concurred in the judgment and opinion.

OPINION

¶1 This administrative matter has a protracted procedural history stretching over a decade and

involves facts well outside of that time frame. This appeal arises from an attempt by defendants

the Department of Financial and Professional Regulation (Department) and Cecilia Abundis, in

her official capacity as Acting Director of the Department of Financial and Professional Regulation

(Director) to impose discipline upon plaintiff Christopher D. Leone, D.C., due to certain activities

performed as a licensed chiropractor in the state of Illinois. This matter has been reviewed by the

circuit court of Sangamon County on three separate occasions; none of those reviews resulted in

affirmance of the Director’s decision. The Department appeals the latest reversal of its decision,

presenting multiple contentions of error. For the reasons that follow, we reverse the circuit court and affirm the Director’s decision.

¶2 I. BACKGROUND

¶3 A. Prior Incidents

¶4 Leone has practiced as a chiropractor since 1999 and initially practiced in the state

of Washington. In 2003, the Washington administrative agency responsible for supervising the

chiropractic profession acted against Leone based on the allegation that he “failed to document

self-care treatment” for a patient. The agency’s allegations included the mention of a letter written

by Leone in which he admitted that he had failed to complete the required documentation. That

letter is not included in the record. The matter was resolved pursuant to an informal disposition

via stipulation. While the Washington agency alleged a factual basis in paragraph 1.3 of the

stipulation for its disposition, the following language was also included: “[Leone] does not admit

any of the allegations in the Statement of Allegations and Summary of Evidence or in paragraph

1.3 above. This Stipulation to Informal Disposition shall not be construed as a finding of

unprofessional conduct or inability to practice.” The stipulation also made clear that Leone was

not being subjected to “formal disciplinary action.” Leone agreed to, among other things, return

the fees charged to the patient and engage in additional training pertaining to “record keeping.”

¶5 Leone began practicing in Illinois in 2004, and in 2010, the Department alleged that

he utilized misleading advertisements in promoting his services. The Department also alleged that

Leone used inappropriate contracts, resulting in billing disputes with several clients. The matter

was resolved with a consent order, pursuant to which Leone admitted to the allegations and was

reprimanded with a $5000 fine and a requirement that he undertake 20 hours of continuing

education; 10 of those hours were to focus on Medicare billing and insurance coding and another

10 on record keeping.

-2- ¶6 In 2013, the United States Attorney filed an information in the Central District of

Illinois alleging that Leone “knowingly and fraudulently” submitted Medicare claims of less than

$1000 for one-on-one physical therapy services that were not provided. See 18 U.S.C. § 1003

(2012). The billing at issue was submitted to both private insurance companies and Medicare and

referenced billing code 97110 in the Physician’s Current Procedural Terminology Manual (CPT).

Billing code 97110 indicates that a therapeutic procedure or exercise was performed to “develop

strength and endurance, range of motion and flexibility” in the patient. To qualify for payment

under this code, direct one-on-one contact between the provider and patient was required.

¶7 Following negotiation, the parties entered into a plea agreement, pursuant to which

Leone pleaded guilty to the one-count information and stipulated to a factual basis for his plea.

The stipulation recited that, despite the requirements for billing under code 97110, Leone’s

practice

“was not to provide one-on-one physical therapy. Instead, [Leone] or one of his

staff would instruct the patient how to use physical therapy equipment located in a

‘sun room’ area of his office. After that initial instruction, however, neither [Leone]

nor any of his employees were present in the therapy room. Patients performed all

physical therapy treatment on their own, without any supervision or direct one-on-

one contact with [Leone] or any other employee. [Leone] was not present in the

physical therapy room, which was separate from the room in which he was

contemporaneously administering spinal adjustments to other patients.

Notwithstanding this, notations and automatic entries in the patient charts falsely

stated that the patients received hands-on, one-on-one physical therapy from the

provider.”

-3- The stipulation went on to detail charges for services Leone was alleged to have provided to four

patients that were submitted to Medicare in the amount of $150. Those services were not actually

provided, and the claims were submitted “with the knowledge that he did not perform the service

charged.”

¶8 The plea agreement detailed that Leone submitted 1324 claims under code 97110

to private insurance companies from 2005 through 2011, demanding payment in the sum of

$93,900; Leone was paid $48,624.48 for those billed services. As part of the plea agreement, Leone

was required to pay restitution of $48,624.28 to the private insurance companies. Leone also

acknowledged that he had read the plea agreement, that the stipulated facts were true, and that he

was pleading guilty because he was in fact guilty. The court accepted the plea and stipulation and

entered judgment on one count of submitting a false demand against the United States (Medicare

fraud), a misdemeanor. Leone received three years of probation and was ordered to pay restitution

and perform 1440 hours of community service not to be associated “with, or include any medical

or chiropractic care.” Leone immediately paid the restitution judgment.

¶9 B First Administrative Proceeding

¶ 10 Shortly after the Medicare fraud charge was filed against Leone, the Department,

in September 2013, filed a five-count complaint alleging multiple violations of the Medical

Practices Act of 1987 (Act) (225 ILCS 60/22(A)(5), (6), (21), (25) (West 2012)). Counsel for

Leone filed an appearance in the matter, and several continuances followed. During the litigation,

Leone applied to renew his chiropractic license. One of the questions on the application asked

whether he had been convicted of any criminal offense, state or federal, since July 2011; Leone

answered, “No,” failing to document the Medicare fraud conviction.

¶ 11 In June 2014, the Department filed a six-count amended complaint. The

-4- Department alleged that Leone engaged in dishonorable, unethical, or unprofessional conduct

likely to deceive, defraud, or harm the public (225 ILCS 60/22(A)(5) (West 2014)) (count I);

obtained fees by fraud, deceit, or misrepresentation (id. § 22(A)(6)) (count II); made or filed false

records or reports (id. § 22(A)(21)) (count III); was guilty of gross, willful, and continued

overcharging for professional services (id. § 22(A)(25)) (count IV); used false, fraudulent, or

deceptive statements in documents connected with his chiropractic practice (id. § 22(A)(31))

(count V); and committed fraud or misrepresentation in applying to renew his license (id.

§ 22(A)(9)) (count VI). Leone filed an answer to the amended complaint admitting the factual

circumstances as pleaded but “denie[d] that there was no visual supervision by himself or any other

employee.”

¶ 12 The matter proceeded to a hearing, where, among other things, Leone’s plea

agreement and conviction in the federal case were submitted, along with the prior Washington and

Illinois disciplinary documents, as well as the 2014 licensing renewal application. Eight witnesses

testified at the hearing, including Leone, Dr. Mario Fucinari, Dr. Evan Gwilliam, and several

character witnesses. By agreement of the parties, Leone proceeded first in the proceedings before

the administrative law judge (ALJ). Also relevant, Leone’s counsel throughout the administrative

hearings lodged objections because no member of the Medical Disciplinary Board (Board) was

present; the objections were overruled.

¶ 13 1. Leone’s Testimony

¶ 14 Leone testified that he began practicing as a chiropractor in 1999 in Washington

and opened his own practice in Illinois in 2004. His wife had a nursing degree and worked as his

assistant. His office was a “110-year-old mansion style home” that was converted into his

chiropractic practice on the main floor, with an apartment on the second floor.

-5- ¶ 15 Services billed under code 97110 were therapeutic exercises “to rehabilitate the

spine and restore range of motion and movement and alignment.” Following spinal adjustments,

patients would be instructed on how to perform exercises on a treadmill, stair climber, or exercise

ball. Leone would instruct patients on how to perform exercises initially and his wife would then

supervise them. Leone explained that patients would perform exercises in the sunroom of his

office. Pictures of this room were submitted into evidence, which were taken from the front desk

area where his wife would have been seated during the workday. A video of the inside of the office

was also placed into evidence. The exercises billed under code 97110 were performed by patients

in the sunroom while Leone’s wife was supervising from the desk, approximately 12 feet away.

Leone could also see patients in the exercise room from the adjusting room in order to provide

“dual supervision” of the exercising patients. Patients would never be exercising in the sunroom

without someone watching them.

¶ 16 Turning to the plea agreement in the Medicare fraud case, Leone disagreed with the

factual statements contained in the stipulation of facts that patients performed all therapeutic

exercises on their own without supervision or direct one-on-one contact with Leone or any of his

employees. While Leone agreed that he did not have direct one-on one contact, he contended that

he and his wife provided visual and verbal supervision. He also disagreed with the statement that

entries in his patient’s charts falsely stated he provided hands on, one-on-one physical therapy.

While the therapy was not “hands on, 100 percent,” there were varying degrees of visual, verbal,

and manual supervision.

¶ 17 Attempting to explain his federal guilty plea, Leone said that he was unable to

modify the language in the plea agreement, as “the time for negotiations had run out” and the plea

was a “take-it-or-leave-it” proposition. He ultimately would still have pleaded guilty to the

-6- misdemeanor charge but would have reworded the factual basis in the plea, even though he was

“not exactly sure” what he did wrong to warrant the federal conviction. Leone read the plea

agreement line by line and, although it contained false information, he signed it. He did not dispute

the number of times listed in the plea agreement that he billed private insurers for services under

code 97110. Since the conviction, Leone had made improvements to his billing and documentation

practices to ensure all visits were properly documented and billed.

¶ 18 Regarding the licensing renewal application, Leone testified that he understood the

question asking whether he had been convicted of any crime since July 31, 2011, to mean whether

there were “any new convictions that the Department was unaware of at the time of the renewal

application.” He agreed the renewal application question was straightforward and not confusing.

When he completed the application, the present litigation based on the federal conviction had

already been pending for almost a year. He did not receive legal advice on how to complete the

application but called a Department help line to inquire if he should answer yes or no to the

application; he did not testify to the response he received.

¶ 19 Leone stated that he received “discipline” from a licensing agency while practicing

in Washington for failing to keep accurate records of a patient’s home exercises and received a

reprimand. He was also disciplined in Illinois, having received a reprimand for using prepaid

contracts. The licensing agencies required Leone to take additional training regarding record

keeping practices.

¶ 20 2. Fucinari’s Testimony

¶ 21 Fucinari testified on behalf of Leone as an expert in chiropractic documentation,

coding, compliance, and ethics. His testimony focused on health care compliance pertaining to the

delegation of therapy services coded under 97110. In 2010, Leone took a continuing education

-7- course taught by Fucinari relating to documentation, coding, and compliance. Course topics

included billing under code 97110. Leone hired Fucinari to assist with the federal case as an expert

witness and inspect Leone’s office.

¶ 22 Chiropractors could delegate certain tasks that did not require licensing, such as

physical therapy, to their assistants if (1) the assistant was properly trained; (2) the chiropractor

had established a treatment plan setting forth the frequency, duration, and goals of the activities;

and (3) the chiropractor was available to assist if required. Fucinari went on to explain that direct

one-on-one contact with the patient included the assistant being in contact “visually, verbally, or

manually.” For example, a patient could be directed to walk on a treadmill for 15 minutes and

visual supervision could be delegated to a properly trained assistant and that service would qualify

to be billed under code 97110. Even though the supervision of the therapy was delegated,

regulations allowed for the service to be billed as if the chiropractor provided it himself.

¶ 23 Fucinari visited Leone’s office, where he was shown office protocols and how

Leone and his chiropractic assistant provided the physical therapy services billed under code

97110. The arrangement of Leone’s office allowed the assistant to supervise patients’ physical

therapy exercises from the front desk. If the assistant maintained visual and verbal contact with

the patient while seated at the desk, this would constitute sufficient supervision. He believed that

Leone met the standard of care for delegating duties to an assistant. He acknowledged that his

opinions as to whether Leone’s practices conformed to established standards were based solely on

what was relayed to him by Leone, a review of some practice notes in patient records, and the

office’s care plan.

¶ 24 Fucinari agreed that being convicted of Medicare fraud cast a bad light on the

chiropractic profession and the health care community. Taken as true, the facts in the guilty plea

-8- did not show patient harm, but the statements in the guilty plea established that neither Leone nor

his assistant provided a sufficient level of supervision to patients while performing exercises billed

under code 97110. Further, Fucinari had reviewed at least three patient files where Leone had

documented “one-on-one physical therapy,” despite Fucinari’s belief Leone did not “meet the

threshold for one-on-one direct supervision.” While Leone was not in compliance, there was no

evidence of an intent to mislead. As to whether the conduct in Leone’s guilty plea violated ethical

standards, Fucinari was unable to offer an opinion because he could not “testify as to the intent of

[Leone].” However, Leone violated an ethical tenet of the American Medical Association’s

(AMA) chiropractor ethical code by failing to disclose the prior conviction on his renewal

application.

¶ 25 3. Gwilliam’s Testimony

¶ 26 Gwilliam testified as a medical coding expert pertaining to therapy services coded

under 97110. He had a chiropractic degree and expertise in the field, including certifications and

experience teaching coding and the creation of educational materials on that subject. Gwilliam was

licensed to practice in Utah but practiced previously in Washington and Oregon. He explained that

the CPT manual was created and maintained by the AMA, and it provides procedure codes that

are government approved to be used on insurance claim forms for reimbursement. The manual is

a national baseline, with state specific regulations that could also apply. Code 97110 is the

approved billing code for physical therapy exercises and requires the provider to have direct, one-

on-one verbal, visual, or physical contact with the patient. Regardless of whether the provider

billed Medicare or a private insurance company, the patient must receive supervision as required.

¶ 27 Gwilliam did not visit Leone’s office but had reviewed pictures of it.

Hypothetically, if a provider had visual or verbal contact with a patient approximately 12 feet away

-9- while completing exercises, that would generally be sufficient to satisfy the billing requirement of

code 97110. However, Gwilliam did not review any patient records. Instead, he formed his

opinions from reviewing the Department’s complaint, the complaint in the federal case, Fucinari’s

report, and photographs and video of Leone’s office. In his opinion, it appeared better record

keeping would have prevented some of the issues Leone was facing.

¶ 28 Regarding the plea agreement, Gwilliam stated the facts in the plea established that

there was no supervision and without supervision, the services could not be appropriately billed

under code 97110. He testified, “If there was no supervision, then the code was not satisfied.”

¶ 29 4. Character Witnesses

¶ 30 The ALJ then heard from five character witnesses for Leone. All the witnesses were

members of the same church community and generally had a positive view of Leone and his

reputation in the community as an individual and as a chiropractor.

¶ 31 5. ALJ Report and Recommendation

¶ 32 The ALJ issued his report and recommendation, finding that, pursuant to the guilty

plea in the federal case, Leone had admitted that his patients performed physical therapy on their

own without supervision. Also, Leone admitted in his plea that entries in patient records indicating

that they received hands-on or one-on-one physical therapy were false. Further, the guilty plea

established that Leone knowingly submitted claims to Medicare for services that he did not

provide. Leone had also billed private insurers numerous times under the same code as Medicare.

¶ 33 The ALJ concluded that an element of the crime of which Leone was convicted was

the submission of a fraudulent demand for payment because his patients were unsupervised during

therapeutic exercises. The conviction also established that he engaged in false billing and false

entries in patient records. All of these acts constituted violations of the Act as set forth in counts I

- 10 - through V of the Department’s administrative complaint. Moreover, the failure to disclose the

federal conviction in the renewal application established a violation of the Act as set forth in count

VI. The ALJ rejected Leone’s argument raised during closing arguments that expert testimony was

required to prove a deviation from the ethical standard alleged in counts I through V. The ALJ

reasoned that those counts involved “issues of fraud and false statements, and do not require the

Board to draw upon their own professional skill and scientific training to produce findings.” The

ALJ recommended an indefinite suspension of Leone’s license for a minimum of two years.

¶ 34 6. The Board’s Recommendation and the Director’s Decision

¶ 35 Leone filed exceptions and a motion for rehearing, asking for reconsideration of the

ALJ’s report and recommendation. The Board adopted the ALJ’s factual findings, conclusions of

law, and recommended discipline. The Director denied Leone’s exceptions and request for

rehearing and adopted the ALJ’s factual findings and conclusions of law. The Director imposed

an indefinite suspension of Leone’s license for a minimum of two years.

¶ 36 7. Review in the Circuit Court

¶ 37 Leone filed a complaint in the circuit court for administrative review of the

Director’s decision, as well as an emergency motion to stay the enforcement of the administrative

decision. The court granted the motion for a stay, allowing Leone to continue to practice during

the pendency of the case. The matter then languished in the court for three years, with little to no

activity.

¶ 38 Both Leone and the attorney general on behalf of the Department filed briefs and

eventually presented argument to the circuit court. Leone argued, among other things, that (1) the

Department was required to present expert testimony establishing that the statements in the plea

agreement showed a deviation from the applicable standard of care leading to violations of the

- 11 - Act; (2) it was improper for the Department to solely rely on the statements in the plea agreement

to establish a violation; (3) his due process rights were violated when a Board member was not

present during the hearing; (4) the indefinite suspension for a minimum of two years was overly

harsh; and (5) the decision was clearly erroneous.

¶ 39 The Department argued, among other things, that Leone’s statements in the plea

agreement were binding judicial admissions or invoked collateral estoppel and that the plea was

evidence supporting the Department’s factual findings. Given that this was a clear-cut issue of a

breach of ethics supported by a guilty plea and conviction, the Department argued, expert

testimony was not required to show that false billing, false patient records, and omissions on the

license application violated the Act. Further, there was caselaw on point stating that a member of

the Board did not need to be present to ensure due process. Moreover, there was evidence that

supported the Department’s determination that Leone violated the Act, and the discipline imposed

was within the Director’s discretion.

¶ 40 The circuit court reversed the administrative decision, finding that expert testimony

was required to establish the Department’s allegations in the administrative complaint. The court

found that collateral estoppel did not bar Leone from attempting to rebut the statements in the

guilty plea and that the ALJ viewed the factual basis in the guilty plea as indisputable. The matter

was remanded for the presentation of expert testimony by the Department. The court also

recommended that if after the hearing on remand, discipline was imposed, the circumstances of

the case militated in favor of probation and not suspension.

¶ 41 C. Director’s Refusal to Conduct Administrative Hearing and Circuit Court’s Order

¶ 42 Following the circuit court’s order, the Director issued an intransigent order stating,

“I disagree with the Court’s ruling.” The Director explained that expert testimony was required

- 12 - when the subject matter of the hearing was such that “only persons of special skill or experience

in that area are capable of forming a correct judgment with respect to the applicable facts.”

However, in this case, “[t]he trier of fact is capable of determining that a conviction for Medicare

fraud is a conviction for fraud for the purposes of the [Act],” based on Leone’s “stipulated

admissions of Medicare and insurance fraud.” The Director stated, “The assessment of this

information does not require scientific knowledge, expertise, or experience.” Further, the Director

found the count based on the fraudulent renewal application had been proven and was not

addressed by the court in reversing the Department’s decision. The Director refused to “re-open

the proceedings to present unnecessary expert testimony,” rejected the recommendation of a

sentence of probation, and asked the court to reconsider its ruling; in the alternative, the Director

asked that the circuit court reverse the Department’s decision without a remand so the Department

could appeal the matter to the appellate court. The Director then reimposed the indefinite two-year

suspension of Leone’s license.

¶ 43 Leone once again filed an emergency motion to stay the enforcement of the

suspension, which was granted by an agreed order. At a subsequent hearing, the circuit court once

again remanded the matter to the Department for proceedings consistent with its prior order.

¶ 44 D. Second Administrative Proceeding

¶ 45 The matter returned before the same ALJ as the previous hearing. By agreement of

the parties, the transcripts and exhibits of the prior proceeding were admitted into evidence. At the

second hearing, Dr. Richard Dietzen testified as an expert for the Department and Fucinari as an

expert for Leone.

¶ 46 1. Dr. Richard Dietzen

¶ 47 Dietzen testified that he had been a chiropractor in Illinois for 39 years, owned a

- 13 - private chiropractic office, and was formerly director of a hospital’s chiropractic department. He

served in various positions for the Illinois Chiropractic Society, including serving twice as

president, and he was involved in approving the Illinois Chiropractic Society’s code of ethics.

Dietzen served on the National University of Health Sciences’ Board of Trustees and the Illinois

Medical Licensing Board. He had previously testified as an expert witness in cases involving

ethics, but he had no certifications in coding or compliance.

¶ 48 Deitzen reviewed the testimony and exhibits, including the plea agreement from

the prior proceedings, as well as the American Chiropractic Code of Ethics and the Illinois

Chiropractic Society of Ethics. The state and national ethical standards are “almost verbatim,” and

the same standards are also mirrored in the Act. He did not review Leone’s patients’ medical

records and did not visit his office, but he was familiar with the photos of the office in evidence.

¶ 49 Chiropractors who engaged in Medicare fraud violated several tenets of

chiropractic ethics. To a reasonable degree of chiropractic certainty, Deitzen was able to opine,

based on the plea agreement, that it was “very evident *** that [Leone] billed for services he

wasn’t doing and wasn’t coding properly.” It was hypothetically possible in Leone’s open-plan

office for someone in another room, including a chiropractic assistant, to visually supervise a

patient doing exercises in the sunroom. Leone would have been in compliance if the patient was

supervised. However, it was Dietzen’s understanding of the plea agreement that there was no

supervision.

¶ 50 It was apparent there was a pattern of overcharging for services that were not

provided, false notations in patient records to support the false charges, and the submission of false

claims to insurance that went on for at least five years. Leone had been required to take several

classes and was apparently well versed in medical coding, even taking one of Fucinari’s classes

- 14 - which Dietzen held in high regard. It was clear that Leone was not ignorant of coding requirements,

as he “was well schooled in the language of healthcare.” To make five years’ worth of mistakes

“makes it very serious.” Leone obtained fees by fraud, deceit, or misrepresentation, and those

actions fell below the professional and ethical standards required of chiropractors in Illinois.

Leone’s conduct, along with his past disciplinary history, “demonstrate[d] a pattern of behavior

that [was] not acceptable.”

¶ 51 2. ALJ Report and Recommendation

¶ 52 The ALJ found that Dietzen testified with credibility and consistency, while

Leone’s testimony was less credible given the admissions made in the plea agreement. The ALJ

found Leone’s testimony to be self-serving and that he was repeatedly required to take continuing

education in record keeping and Medicare billing. The ALJ also found that Leone’s explanation

of the omission on his renewal application was not credible and Fucinari’s testimony supported a

finding that failing to disclose the conviction was a violation of the Act. The ALJ further found

that Fucinari’s opinion that Leone billed in conformance with code 97110 relied on Leone’s

“self-serving representations” and “unreasonably discount[ed]” Leone’s admissions in the guilty

plea. Fucinari himself “acknowledged that he would make different findings if [Leone’s]

admissions in the Plea Agreement were true.” Dietzen’s opinions were consistent with the

evidence in the record, including Leone’s admissions in his plea agreement, Leone’s experts’

opinions regarding the standard for billing under code 97110, and Leone’s conduct as described in

the plea agreement. The ALJ concluded that the Department had established all the counts in the

complaint.

¶ 53 In coming to a recommended sanction, the ALJ weighed the aggravating and

mitigating factors. In aggravation, Leone had prior discipline in Washington and Illinois that led

- 15 - to him being required to attend additional continuing education regarding record keeping, billing,

and coding; he committed multiple serious offenses; he was motivated by financial gain, as

indicated by his billing history; injured insurers waited up to nine years for reimbursement; and he

lacked contrition for his offenses. The offenses were serious and impacted numerous facets of the

relationship between the public and medical providers, ultimately impacting public health and

safety. In mitigation, restitution was paid in full as ordered by the federal court. Leone made

voluntary remedial changes to his office’s documentation practices, and the positive testimony of

the character witnesses was considered. The recommendation was that Leone’s license be

suspended indefinitely for a minimum of two years.

¶ 54 3. The Board’s Recommendation and the Director’s Decision

¶ 55 Leone filed a motion for rehearing, asking for reconsideration of the ALJ’s report

and recommendation. The Board once again adopted the ALJ’s factual findings, conclusions of

law, and recommended discipline. The Director denied Leone’s request, issuing a detailed order

rejecting numerous arguments and imposing an indefinite suspension of Leone’s license for a

minimum of two years.

¶ 56 4. Review in the Circuit Court

¶ 57 Leone once again filed a complaint for administrative review in the circuit court,

and he successfully sought a stay of enforcement of the Director’s decision. The court ultimately

reversed the Department’s decision, finding that (1) due process was violated where a Board

member was not present to hear live testimony and there was no clear indication the Board had

reviewed the record; (2) the decision could not rely on Dietzen’s testimony where he was not an

expert in chiropractic billing compliance or coding and did not review the medical records or bills

at issue and did not observe Leone’s office; (3) there was no legal authority to support the

- 16 - imposition of a two-year indefinite suspension; and (4) the indefinite suspension violated the

court’s prior order finding probation to be a reasonable punishment.

¶ 58 This appeal followed.

¶ 59 II. ANALYSIS

¶ 60 “The Act provides that all final administrative decisions of the Department are

subject to judicial review, pursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq.

(West 2020)).” Sharma v. Division of Professional Regulation of Department of Financial &

Professional Regulation, 2023 IL App (3d) 220095, ¶ 16 (citing 225 ILCS 60/41 (West 2020)).

“Review extends to all questions of law and fact presented by the record.” Western Illinois

University v. Illinois Educational Labor Relations Board, 2021 IL 126082, ¶ 30 (citing 735 ILCS

5/3-110 (West 2016). The question presented on appeal determines the standard of review applied.

Id. Questions of law are reviewed de novo, while the Department’s findings of fact will be deemed

prima facie true and correct unless they are against the manifest weight of evidence. Id., “A mixed

question of law and fact is reviewed for clear error.” Id.

¶ 61 A. Procedural Due Process

¶ 62 The circuit court found that the Department failed to afford due process to Leone.

However, on administrative review, we review the decision of the Department, rather than that of

the court below. Id. It is, then, incumbent on Leone to advance any due process argument. While

his brief mentions due process in two headings, he offers no substantive argument in support of

that assertion. We agree with the Department that Leone has forfeited any contentions that might

have been made in this regard.

¶ 63 Even if the issue was not forfeited, it lacks merit. “[A]n administrative proceeding

is governed by the fundamental principles and requirements of due process of law. However, due

- 17 - process is a flexible concept and requires only such procedural protections as fundamental

principles of justice and the particular situation demand.” Abrahamson v. Illinois Department of

Professional Regulation, 153 Ill. 2d 76, 92 (1992). “An administrative hearing comports with due

process where the parties are given (1) the opportunity to be heard, (2) the right to cross-examine

adverse witnesses, and (3) impartiality in ruling on the evidence.” Sharma, 2023 IL App (3d)

220095, ¶ 18 (citing Wolin v. Department of Financial & Professional Regulation, 2012 IL App

(1st) 112113, ¶ 25). We review a claimed due process violation de novo and will only reverse on

due process grounds where there is a showing of prejudice. Id.

¶ 64 The argument that a Board member must be present at the administrative hearing

level finds its roots in a single sentence from the opinion in Abrahamson. Referring to due process

and the presence of board members, the court in Abrahamson stated, “The court has specifically

held that it is sufficient if even only one Board member listened to the live testimony.”

Abrahamson, 153 Ill. 2d at 95. The issue with relying on this sentence in isolation is that the

preceding language in the opinion appeared to obviate the need for even one board member to be

present: “It is settled that, absent express statutory language to the contrary, agency members

making the final decision need not be present when the evidence is taken, so long as they review

the record of proceedings.” Id. (Emphasis added.)

¶ 65 The Appellate Court, First District, recognized this distinction in Kafin v. Division

of Professional Regulation of Department of Financial & Professional Regulation, 2012 IL App

(1st) 111875, ¶ 33, holding that “the Abrahamson decision support[ed] the conclusion that, absent

express statutory language to the contrary, Board members need not be present when the evidence

is taken so long as they review the record of proceedings before rendering their recommendation.”

(Internal quotation marks omitted.) The court went on to find that the Act did not contain express

- 18 - statutory language requiring the presence of Board members at the hearing and the record showed

that the Board members reviewed the record before issuing a decision. Id. Kafin was followed by

Masood v. Division of Professional Regulation of Department of Financial & Professional

Regulation, 2023 IL App (1st) 220657, ¶ 76, finding that “cases following Abrahamson have

explicitly clarified that no Board members are required to be present at the hearing, so long as they

review the record of proceedings before rendering their recommendation.”

¶ 66 We find no reason to depart from the prior rulings of the appellate court, and Leone

provides none, so we conclude that the physical absence of a Board member at the hearing below

does not constitute a violation of Leone’s due process rights.

¶ 67 The circuit court in this case also found that due process was not afforded where

only one Board member signed the findings of fact, conclusions of law, and recommendation to

the Director. In Sharma, the Appellate Court, Third District, rejected the argument that where only

the chairperson signed the Board’s findings and recommendation, the decision lacked a quorum

and was not supported by the majority of the Board. The Sharma court found that “the Board’s

recommendation to the Director provide[d] that it was made by a majority of its members,” that

there was “no authority requiring that each Board member sign the recommendation,” and that the

chairperson signed the Board’s report on behalf of the Board following an executive order from

the governor suspending in-person attendance by members of a public body due to COVID-19.

Sharma, 2023 IL App (3d) 220095, ¶ 28. Sharma supports the conclusion that there was no

violation of Leone’s procedural due process rights as a result of the Board’s decision being signed

by only one of its members.

¶ 68 B. Administrative Decision

¶ 69 1. Necessity and Adequacy of Dietzen’s Testimony

- 19 - ¶ 70 Leone and the Department quarrel over the need for expert testimony in this matter

to establish violations of the Act. The Department argues that the actions of Leone are so clear cut

and violative of the Act that expert testimony is not required. Leone points to established precedent

requiring the use of expert testimony to establish violations of the Act and further argues that

Dietzen did not possess the required qualifications to opine on whether the actions of Leone would

violate the Act.

¶ 71 It is undisputed that Leone submitted charges under billing code 97110. It also does

not appear to be disputed that this billing code requires some degree of supervision of the patient’s

exercises. Both of Leone’s experts acknowledged this point. There is also no dispute that Leone’s

assistant could have provided that supervision; Dietzen conceded as much. The factual dispute in

the record is whether such supervision was provided. The substance of Leone’s admissions in his

federal stipulation is that such supervision was not provided; the substance of his testimony was

that such supervision was provided. This represents a factual dispute, which the experts are

unlikely to be of assistance in resolving. See John Crane Inc. v. Allianz Underwriters Insurance

Co., 2020 IL App (1st) 180223, ¶ 20 (noting it is for the trier of fact to resolve factual disputes,

and it need not take expert testimony on a subject as “conclusive,” but rather may afford expert

testimony the appropriate weight based “upon the facts and reasons which form the basis of the

expert’s opinion.” (Internal quotation marks omitted.)). Indeed, the experts in the case disagreed

about little when it comes to what should have been done.

¶ 72 Here, Leone pled guilty to submitting a false demand for payment upon the United

States. See 18 U.S.C § 1003 (2012) (“Whoever knowingly and fraudulently demands or endeavors

to obtain any share or sum in the public stocks of the United States *** shall be fined under this

title or imprisoned not more than five years, or both.”). In his plea, Leone admitted to billing for

- 20 - services that were not actually provided to his patients as claimed, “and the instruments containing

the demands for payment of public money, therefore were false when they were submitted” and

“were submitted to Medicare with the knowledge that he did not perform the service charged.”

¶ 73 The definition of fraud is well known to those in the legal community and often

does not require expert assistance in detecting its presence. See FRAUD, Black’s Law Dictionary

(12th ed. 2024) (“A knowing misrepresentation or knowing concealment of a material fact made

to induce another to act to his or her detriment.”). The commonsense understanding of the concept

of fraud and the conduct admitted to in the guilty plea plainly supports the counts in the

administrative complaint alleging that Leone (1) engaged in dishonorable, unethical, or

unprofessional conduct of a character likely to deceive, defraud, or harm the public; (2) obtained

a fee by fraud, deceit, or misrepresentation; and (3) made a false, fraudulent, or deceptive statement

in a document connected with practice under the Act.

¶ 74 The guilty plea supports the conclusion that Leone knowingly and intentionally

submitted claims for reimbursement to private insurance companies for services provided under

code 97110 where the services did not meet the requirements to be paid under that code. This

pattern went on for approximately five years, resulting in 1324 false claims in the amount of

$93,900. During this time, Leone engaged in additional training on the topic of record keeping and

billing under code 97110. The experts were all in agreement that, if true, these facts show gross,

willful, and continued overcharging for professional services, including filing false statements for

the collection of fees for which services were not rendered. Plainly understood, this conduct

supports the charge that Leone willfully engaged in making or filing false records or reports in his

practice.

¶ 75 Relying on Chase v. Department of Professional Regulation, 242 Ill. App. 3d 279,

- 21 - 288 (1993), Leone argues that expert testimony was necessary in this case. The court in Chase

found that the Department’s disciplinary action against an architect required expert testimony

because the case involved “technical concepts” and it was “impossible” for “laymen vis-à-vis

architecture, to determine from this record whether [the defendant] violated the Act.” Id. In this

case, however, the experts having specialized knowledge were largely in agreement about what

the professional standards required; the dispute was about whether there had been any supervision

corresponding to Leone’s billings under code 97110. Their expertise was of no assistance in

resolving this factual dispute.

¶ 76 A layperson is more than capable of determining the connection between the

conduct alleged in the complaint, admitted in the guilty plea, and prohibited by the Act without

expert testimony. Cf. Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 59 (2000) (finding expert

testimony is not required where a layperson could readily appraise the connection between medical

treatment and injury). Again, this is a matter that involves issues commonly understood by the

public at large.

¶ 77 We also note that the parties agreed below that Leone would present his case first.

Consequently, even before the Department was required to put on any evidence, expert or

otherwise, Leone’s own experts provided the testimony necessary to conclude that it would violate

professional standards to submit bills under code 97110 if there had been no supervision of the

patient. As such, any testimony by Dietzen would have been superfluous on that point.

Consequently, we do not find it necessary to scrutinize his testimony further.

¶ 78 2. Findings of Fact and Ultimate Decision

¶ 79 Leone next argues that the testimony of Fucinari and Gwilliam established that

there were no violations of the Act. Our review of the record establishes that the findings of fact

- 22 - are supported by the evidence and that the ultimate decision was not clearly erroneous. While the

“clearly erroneous” standard is highly deferential, it does not relegate judicial review to mere blind

deference to the Department’s order. Western Illinois University, 2021 IL 126082, ¶ 70. Further,

the Department’s “findings of fact will be deemed prima facie true and correct unless they are

against the manifest weight of evidence. [Citation.]” Id. ¶ 30. Determinations as to the weight of

evidence and the credibility of witnesses are uniquely within the province of the Department, and

we will not substitute our judgment for that of the Department. Reynolds v. Champaign County

Officers Electoral Board, 379 Ill. App. 3d 423, 425 (2008). “The [Department’s] decision should

be upheld when the record contains competent evidence.” Village of Franklin Park v. Sardo, 2020

IL App (1st) 191161, ¶ 24 (citing Robbins v. Board of Trustees of the Carbondale Police Pension

Fund, 177 Ill. 2d 533, 538 (1997)).

¶ 80 “In examining an administrative agency’s factual findings, a reviewing court does

not weigh the evidence or substitute its judgment for that of the agency. Instead, a reviewing court

is limited to ascertaining whether such findings of fact are against the manifest weight of the

evidence.” (Internal quotation marks omitted.) Van Dyke v. White, 2016 IL App (4th) 141109,

¶ 19. An administrative agency’s factual determinations are against the manifest weight of the

evidence if the opposite conclusion is clearly evident. Id.

¶ 81 The crux of the argument presented by Leone in his brief is that both Gwilliam and

Fucinari testified that Leone did not violate the Act when billing for services under code 97110.

Of course, this is a simplistic view of the testimony. In fact, what the two experts actually testified

to was that based on their understanding of how services were provided, Leone’s assistant

supervised the therapy exercises patients would perform in the sunroom from the front desk,

approximately 12 feet away. This understanding was based on conversations with Leone and an

- 23 - examination of the layout of his practice. In their view, the assistant was sufficiently trained so

that if supervision was delegated to her and she visually supervised the patients’ complete

exercises, there was no violation of the Act. However, when confronted with the admissions in the

guilty plea, both experts admitted that if the services were provided as stipulated to in the plea

agreement, then the services were improperly billed and the entries in patient files were inaccurate.

¶ 82 Here, there were two competing versions of events. One version is reflected in

Leone’s guilty plea and stipulation to one count of misdemeanor Medicare fraud, pursuant to which

he admitted that it was his practice to bill insurance companies pursuant to code 97110 for therapy

exercises performed by his patients without any supervision from him or any of his employees. In

the other, Leone repudiated the admissions in his guilty plea, stating he was unable to articulate

what he did wrong to result in the federal conviction, except for failing to properly communicate

to the United States attorney a chiropractor’s ability to delegate supervision to an employee. Leone

suggests the language of the plea agreement fails to capture the nuance of a chiropractor’s ability

to delegate supervision and how that supervision can be carried out. Essentially, Leone asks us to

intervene on judicial review and reweigh the evidence and reassess the credibility of witnesses,

which we are unable to do. See Siddiqui v. Illinois Department of Professional Regulation, 307 Ill.

App. 3d 753, 762 (1999). The trier of fact is entitled to judge the credibility of witnesses, resolve

any conflicts in the evidence, and draw reasonable inferences and conclusions from the facts, not

the appellate court. Id. In this matter, there is competent evidence in the record that supports the

findings of the Department and decision of the Director, and therefore, we refuse to overturn the

decision. Sardo, 2020 IL App (1st) 191161, ¶ 24.

¶ 83 Leone cites Romano v. Municipal Employees Annuity & Benefit Fund of Chicago,

384 Ill. App. 3d 501 (2008), in an apparent attempt to argue that the guilty plea is insufficient to

- 24 - establish a violation of the Act. In Romano, the plaintiff, a former City of Chicago Water

Department employee, pled guilty to a felony—federal mail fraud—arising from participation in

a scheme to pay bribes to management at the city’s water department, in exchange for trucking

business. Id. at 501-02. Following the felony conviction, the plaintiff’s municipal pension benefits

were terminated. Id. at 501. Applying a judicially crafted “but for” test, the Romano majority

concluded that “there was no evidence before the Board that the manner in which the plaintiff

discharged his duties as a municipal employee was either a material element or a substantial factor

in his conviction for mail fraud” and “nothing in the Plea Agreement establishes that the plaintiff

used his position with the City to facilitate the crime to which he pled guilty or that his conviction

was the result of a misuse of that position.” Id. at 505.

¶ 84 Romano is clearly distinguishable, as here, Leone stipulated to committing the

conduct underlying his federal plea while practicing as a chiropractor, so Romano’s “but for” test

is inapplicable to these facts. More to the point, both parties agree that a misdemeanor conviction

does not establish a per se violation of the Act. Rather, it is the conduct Leone stipulated to in his

plea—as accepted by the finder of fact—that establishes his violations of the Act. Furthermore,

Leone was not barred from rebutting the admissions in the guilty plea during the proceedings. It is

evident his admissions were not treated as judicial admissions, but as evidentiary admissions which

could be weighed by the trier of fact against the totality of the evidence. See Green v. Jackson,

289 Ill. App. 3d 1001, 1008 (1997) (stating that “judicial admissions do not include admissions

made during the course of other court proceedings,” but such statements constitute “evidentiary

admissions”); Firstmark Standard Life Insurance Co. v. Superior Bank FSB, 271 Ill. App. 3d 435,

438 (1995) (stating that “a judicial admission does not include an admission made during the

course of another court proceeding; such an admission is only an evidentiary admission”).

- 25 - ¶ 85 We also find that the Department established a violation of the Act where Leone

failed to note the federal conviction on his renewal application. The experts that testified in the

proceedings below agreed on that point. While Leone points to his own testimony and claims the

rejection of his version of events is “nonsensical,” the testimony of his own experts provides the

applicable standard by which he is measured, and his stipulation provides the facts showing a

departure from that standard. The remainder of the evidence on this point does not show the finding

was clearly erroneous.

¶ 86 C. Discipline

¶ 87 Leone’s final argument focuses on his discipline. He asserts that (1) the decision to

impose an indefinite two-year suspension was contrary the circuit court’s order to impose

probation; (2) the Department does not have the authority to impose an indefinite term of

suspension; (3) the Department improperly considered certain evidence in formulating the severity

of discipline; (4) the discipline in this case is incongruent with that imposed in similar matters; and

(5) the discipline is unrelated to the purpose of the Act.

¶ 88 When considering an administrative sanction, a reviewing court “ ‘defers to the

administrative agency’s expertise and experience in determining what sanction is appropriate to

protect the public interest.’ ” Gruwell v. Illinois Department of Financial & Professional

Regulation, 406 Ill. App. 3d 283, 295 (2010) (quoting Abrahamson, 153 Ill. 2d at 99). The

Department abuses its discretion when it imposes discipline that is overly harsh in view of the

mitigating circumstances or unrelated to the purpose of the Act. Sharma, 2023 IL App (3d)

220095, ¶ 41. “ ‘The purpose of the Act is to protect the public health and welfare from those not

qualified to practice medicine.’ ” Id. (quoting Kafin, 2012 IL App (1st) 111875, ¶ 42).

¶ 89 A review of the initial circuit court order in this matter reveals that it merely

- 26 - recommended that the Department consider probation as a punishment; it did not make a ruling to

that effect. Indeed, the court recognized during arguments that it lacked the authority to order a

specific discipline on remand of the matter to the Department. Leone does not direct this court’s

attention to any authority allowing a circuit court to predetermine the discipline for a violation of

the Act on judicial review while at the same time remanding the matter back to the Department for

further proceedings. The most recent circuit court order finding that the suspension violated this

recommendation constituted clear error.

¶ 90 Turning to the Department’s ability to impose a minimum two-year indefinite term

of suspension, pursuant to section 22(A) of the Act, “[t]he Department may revoke, suspend, place

on probation, reprimand, refuse to issue or renew, or take any other disciplinary or non-

disciplinary action as the Department may deem proper with regard to the license or permit of

any person issued under this Act.” (Emphasis added) (225 ILCS 60/22(A) (West 2022)). The

language “any other disciplinary *** action” (id.) plainly encompasses indefinite suspensions. See

Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130, ¶ 25 (“When interpreting a statute, the primary

objective is to give effect to the legislature’s intent, which is best indicated by the plain and

ordinary language of the statute itself.”). Leone fails to acknowledge this language in the statute

and specifically omits any reference to it when discussing the Department’s authority under the

statutory scheme.

¶ 91 Despite this unambiguous grant of authority in section 22, Leone directs our

attention to section 43 of the Act, which states that “[a]t any time after the successful completion

of a term of probation, suspension, or revocation of a license, the Department may restore the

license to the licensee, unless after an investigation and a hearing, the Secretary determines that

restoration is not in the public interest.” (Emphasis added) (225 ILCS 60/43 (West 2022)). This,

- 27 - he argues, means any suspension must have a definite term. We are unpersuaded. Leone’s

interpretation not only contradicts the explicit language in the statutory section discussing

disciplinary action (id. § 22), the use of the word “term” in the subsequent section discussing

restoration of licensing from discipline (id. § 43) is not in conflict with an indefinite suspension

with a minimum two-year term. This section does not support Leone’s argument, as the language

following the word “term” states the Department “may” restore the license. Further, the indefinite

suspension does have an initial term of two years.

¶ 92 Leone acknowledges that recent decisions from the appellate court have rejected

the identical argument that he is advancing in this appeal, relying on essentially the same reasoning

expressed above. See Masood, 2023 IL App (1st) 220657, ¶ 80; Sharma, 2023 IL App (3d) 220095,

¶¶ 37-40. Nonetheless, Leone argues that the word indefinite does not appear in the statute; that

the word “term” implies a fixed punishment; and that “[i]f the legislature had intended for the

Department to be authorized to issue indefinite suspensions, it would have stated ‘indefinite’

suspension in Section 22 of the Act.” Again, the statute allows the Department to take any

disciplinary action it deems proper. 225 ILCS 60/22 (West 2022). The discipline imposed in this

matter is within that broad grant of authority.

¶ 93 Leone next argues that the fact his discipline relies on the false assertion that he has

been previously disciplined twice is a ground for reversal. We disagree. Leone focuses on his

Washington disciplinary matter, arguing that in fact the matter did not result in discipline or an

admission of fault by Leone. However, Leone testified that he was disciplined in Washington, and

he articulated the reason for that discipline and the remedial measures he was required to undertake

to comply with the consent order. The Department was not solely relying on the documentation of

the proceedings from the Washington licensing authority. Looking at those documents, it is clear

- 28 - the stipulation states that it was not a “formal disciplinary action,” but the testimony and document

itself lead to the undeniable inference there was informal discipline meted out pursuant to an

agreed stipulation. We are unable to agree with Leone that the Washington matter did not result in

discipline, albeit of an informal nature.

¶ 94 Next, Leone cites numerous cases in an attempt to establish that the discipline in

this case is overly harsh, noting a lack of uniformity. The cases relied on by Leone mostly concern

inappropriate sexual contact or relations by providers and their patients. We note that each

disciplinary matter is unique and that in cases where “facts are strikingly similar to those in another

case, a degree of uniformity in the discipline imposed should be sought.” In re Clayter, 78 Ill. 2d

276, 283 (1980). However, when the cases submitted for comparison are not similar, “the need for

‘uniformity’ disintegrates.” Walsh v. Department of Insurance, 2016 IL App (1st) 150439, ¶ 22.

Given the factual variances, the cases cited by Leone offer no assistance in evaluating the discipline

imposed in this matter. We are unable to conclude that there is a fatal variance in the discipline

imposed in this matter when compared to the cases relied on by Leone.

¶ 95 Finally, we address the argument that the punishment crafted by the Department

fails to advance the purpose of the Act and is overly harsh in light of the mitigating circumstances.

The Department and the Director have certainly given us reason for pause. The unprincipled,

intransigent decision of the former Director to outright reject the initial remand of the circuit court

looms over these proceedings. Further, as mentioned, these proceedings have been anything but

prompt, at one point experiencing a three-year hiatus at the circuit court level. Counsel for Leone

acknowledged that after the circuit court entered the injunction staying enforcement of the

suspension pending appeal during the first administrative review, counsel was ready to proceed,

but the case remained in stasis due to turnover at the attorney general’s office, resulting in a

- 29 - dereliction of prosecution.

¶ 96 Despite these factual eccentricities, the mitigating factors found by the ALJ and the

Director and the purpose of the Act do not indicate that the discipline in this case was overly harsh

or that it failed to serve the end of protecting the public health and welfare from those not qualified

to practice medicine. See Sharma, 2023 IL App (3d) 220095, ¶ 41. There was no abuse of

discretion in the discipline imposed. Id.

¶ 97 III. CONCLUSION

¶ 98 For the reasons stated, we reverse the circuit court’s judgment and affirm the

Director’s decision.

¶ 99 Circuit court judgment reversed.

¶ 100 Director’s decision affirmed.

- 30 -