Masood v. Division of Professional Regulation of the Department of Financial and Professional Regulation

2023 IL App (1st) 220657

• Court: Appellate Court of Illinois
• Decided: April 26, 2023
• Docket: 1-22-0657
• Status: Published

Opinion

2023 IL App (1st) 220657

THIRD DIVISION April 26, 2023

No. 1-22-0657 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

SHAHID MASOOD, M.D., ) Appeal from the ) Circuit Court ) of Cook County Plaintiff-Appellant, ) ) v. ) ) No. 21 CH 05718 THE DIVISION OF PROFESSIONAL REGULATION ) OF THE DEPARTMENT OF FINANCIAL AND ) PROFESSIONAL REGULATION, and CECILIA ) ABUNDIS, in Her Official Capacity as Acting ) Director of the Division of Professional Regulation, ) ) Honorable ) David B. Atkins, Defendants-Appellees. ) Judge Presiding. _____________________________________________________________________________

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.

OPINION

¶1 In this case, plaintiff, Shahid Masood, M.D., was found to have violated the Medical

Practice Act of 1987 (Medical Practice Act) (225 ILCS 60/1 et seq. (West 2020)). and the Illinois

Controlled Substances Act (720 ILCS 570/100 et seq. (West 2020)) based on findings that he

excessively overprescribed controlled substances over extended periods of time to two patients

with underlying substance abuse issues. Based on those violations, the acting director (Director)

of the Division of Professional Regulation of the Department of Financial and Professional No. 1-22-0657

Regulation (Department) indefinitely suspended Masood’s medical licenses for a minimum period

of two years. Masood appeals.

¶2 The record shows that Masood is a physician holding a physician and surgeon license and

a controlled substance license, both issued by the Department, an administrative agency tasked

with licensing and regulating professions and trades, including physicians in Illinois. See 20 ILCS

2105/2105-1 et seq. (West 2020); 225 ILCS 60/1 et seq. (West 2020).

¶3 In 2018, the United States Drug Enforcement Administration (DEA) investigated Masood

regarding his narcotic prescription practices. The investigation ultimately resulted in Masood

entering into a memorandum of agreement with the DEA on October 3, 2018, which among other

things, restricted his ability to prescribe schedule II controlled substances for three years.

¶4 Meanwhile, the Department filed an administrative complaint against Masood on August

17, 2018, and an amended administrative complaint, thereafter, on March 4, 2019. The amended

complaint alleged (1) that Masood improperly prescribed very large amounts of several controlled

substances—totaling more than 750,000 tablets over a two-year period—to multiple patients at his

practice, including out of state patients; (2) that Masood engaged in improper care of patient S.J.;

(3) that Masood improperly treated S.W.—a registered nurse employed by Masood with a history

of substance abuse—by prescribing her excessive quantities of controlled substances and failing

to monitor her drug use; and (4) that Masood improperly treated patient M.S.—an Ohio resident

who traveled to be treated by Masood—by failing to evaluate him for warning signs of addiction

and continuing to prescribe him excessive quantities of controlled substances.

¶5 The matter proceeded to a hearing over the course of several days before an administrative

law judge (ALJ). At the outset of the hearing, the Department withdrew the second count against

Masood regarding patient S.J. Later, during the course of the hearing, the Department was given

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leave to file a second amended complaint, adding a fifth count alleging that Masood failed to

comply with an October 2018 subpoena by not providing complete copies of S.W. and M.S.’s

medical records.

¶6 The Department first called Masood as an adverse witness, questioning him initially as to

his care of patient S.W. Masood testified that S.W. was employed as a nurse in his office beginning

in June 2016. Masood acknowledged that S.W. was on probation by the Department for substance

abuse at the time she was employed with his practice, but Masood claimed that he was unaware of

that probation.

¶7 S.W. was initially seen by another doctor in his practice to obtain an Adderall prescription

(a schedule II stimulant), on March 6, 2017. Two days later, on March 8, 2017, S.W. was admitted

to the emergency room where she was suspected mixing of controlled substances and alcohol.

Masood testified that he saw her during the hospital visit, but he did not write in the records for

that hospital stay that she was an employee of Masood’s practice, that she had been prescribed

Adderall by a partner in his practice, or that she was mixing alcohol and controlled substances.

¶8 After the hospital stay, S.W. had several visits with another doctor in Masood’s practice,

and the medical records of those visits did not include any documented issues with pain or

abnormalities. A range of motion test was conducted by another doctor in April 2017, with normal

results. The other doctor saw S.W. several more times until September 2017, and never noted any

pain or discomfort.

¶9 In October 2017, Masood had his first office visit with S.W., during which he noted that

she had discomfort in her left shoulder and lumbar spine. Masood claimed he consulted her

prescription monitoring profile, which would have indicated what prescription medications she

had been prescribed in the past, but he did not document doing so. Other than checking the

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prescription monitoring profile, Masood did not make any other effort to obtain her prior medical

information, explaining that he believed he had all he needed and that he did not intend to keep

her as a long-term patient.

¶ 10 At that first office visit, Masood prescribed her 210 tablets at 30 milligrams of oxycodone

(a schedule II opioid) and 90 tablets at two milligrams of Xanax (a schedule IV benzodiazepine).

Masood admitted on cross-examination that he did not document any of these prescriptions in the

office notes, only in a separate medication log. Masood claimed that he was just continuing

medications that had already been prescribed to S.W. by a pain clinic, but he admitted that there

was nothing in the records that showed he verified any prior treatment. Masood also testified that

he did not ask S.W. to do a drug screen or a urine test when she first came to him as a patient.

¶ 11 Less than two weeks after S.W.’s visit with Masood, S.W. saw another doctor in Masood’s

practice. That doctor performed another range of motion exam, again not noting any limitations

on movement consistent with the discomfort Masood noted, and nothing in the other doctor’s notes

indicated shoulder or lumbar spine discomfort. At her next visit with Masood two weeks later,

however, Masood increased her monthly oxycodone prescription from 210 tablets to 240, without

any documented physical exam.

¶ 12 In November 2017, Masood also prescribed S.W. 120 tablets at 350 milligrams of Soma (a

schedule IV muscle relaxant) with five refills. Two months later, on January 4, 2018, S.W. called

Masood, who then wrote her another Soma prescription, this time for 140 tablets at 350 milligrams

with 11 refills, intended to be refills for the entire year.

¶ 13 Meanwhile, on December 18, 2017, S.W. came for an early office visit. Masood increased

the number of monthly Xanax tablets from 90 to 100 at 30 milligrams and continued the same

oxycodone and Adderall prescriptions.

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¶ 14 On January 15, 2018, S.W. was seen by Masood at an office visit. Masood again wrote her

prescriptions for 240 tablets of oxycodone at 30 milligrams and 60 tablets of Adderall at 30

milligrams, while increasing her Xanax prescription to 120 tablets at two milligrams. He

prescribed the same at office visits in February and April 2018 and by phone in March 2018. At a

May 3, 2018, office visit, Masood noted that she had some discomfort in her lumber spine. Masood

acknowledged during his testimony that he did not document any issue with her shoulder, which

meant that it must have been better. Masood, however, continued the same treatment regimen but

noted that she was depressed and added Zoloft—an antidepressant—and Deplin—a vitamin that

makes Zoloft more effective. Later that month, Masood voluntarily surrendered his DEA

registration while he was under investigation with the DEA.

¶ 15 Masood testified that he was aware of the dangers of prescribing Soma, oxycodone, and

Xanax together and acknowledged that it could suppress an individual’s respiratory system.

Masood also testified that he was aware of the 2016 Centers for Disease Control and Prevention

(CDC) guidelines for pain management. These guidelines calculate a morphine milligram

equivalent (MME), which provides a numeric value for opioids prescribed and a recommended

limit. Masood admitted that he was aware of the MME conversions and that doctors should avoid

prescribing 90 milligrams of opiate therapy daily or more. He acknowledged that S.W.’s

oxycodone prescription alone was the equivalent of over 300 MME. He also added a Xanax

prescription to S.W.’s regimen, 90 tablets monthly, and admitted that CDC guidelines state that

one should be careful when prescribing oxycodone with benzodiazepines such as Xanax. Masood

claimed, however, that the above guidelines did not apply to S.W. because they were only for “new

patients” and not for patients with chronic pain, but he acknowledged again that he did not

document anything about his knowledge of her prior usage.

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¶ 16 Masood also testified he treated three members of the “S” family from Toledo, Ohio.

Masood began seeing one member, M.S., in July 2009 and certified him as homebound, even

though M.S. understood that he lived in Toledo, Ohio, visited family in Chicago, and regularly

visited Masood’s office in Joliet, Illinois. Masood prescribed M.S. a series of controlled

substances: 150 tablets of Percocet (a Schedule II opioid), 60 tablets of oxycodone at 20

milligrams, and 90 tablets Xanax at two milligrams. Masood testified that he kept this regimen

from March or April 2013 until January 2018.

¶ 17 Meanwhile, on March 20, 2017, Masood received a call from M.S.’s son and daughter-in-

law telling him that M.S. had been found unresponsive with a packet of white powder. The

daughter-in-law told Masood that M.S.’s house burned down when he was under the influence,

that he was possibly using heroin, that he was involved in selling prescription drugs, and that she

wanted Masood to stop prescribing him pain medication. The daughter-in-law also said that M.S.

was erratic, angry, belligerent, and a danger to himself and others. Masood then sent M.S. a letter,

dated March 21, 2017, telling M.S. that Masood would no longer prescribe controlled substances

to individuals who resided outside of Illinois and also that he could not continue to prescribe him

medications given the possibility that M.S. was involved in criminal activities.

¶ 18 About three weeks later, on April 11, 2017, M.S. came to Masood’s office. Masood

testified that M.S. was accompanied by two sisters, one of whom was his power of attorney, and

they told Masood that the daughter-in-law was “making up stories” and that M.S. was taking the

medications as prescribed and not selling or abusing them. Masood, however, did not document

that any other family members were present or anything else about this discussion. During this

visit, M.S. also reported that his medication had been stolen. Masood testified that M.S. had on at

least one prior occasion called the office to say that his medications had been stolen and once to

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say that he had lost his prescription. Masood did not document anything in his notes about

addressing the termination letter with M.S., and he did not do a drug screen during that office visit.

Masood admitted that he continued to prescribe controlled substances to M.S. for another eight or

nine months after the March 2017 letter.

¶ 19 On November 7, 2017, Masood’s office received a phone call from M.S.’s son, informing

him that M.S. had overdosed the previous day, that he was at a hospital in Ohio, that he was put

on Suboxone—a medication used to treat opiate addiction, and that the family was concerned that

M.S. was abusing and selling drugs.

¶ 20 On December 4, 2017, M.S. reported to Masood that he was in a hospital for treatment for

depression. Masood testified that he trusted M.S. that his hospitalization was for depression and

that he “was not aware of the addiction part.” Masood did not make any efforts to verify M.S.’s

report or to obtain any medical records regarding M.S.’s hospitalization.

¶ 21 On December 28, 2017, Masood’s practice received an e-mail from M.S.’s daughter-in-

law, in which she wrote that she was “document[ing] [her] continued effort to make Dr. Masood

aware that [her] father [ ] has been selling and abusing his medications, which [she] fe[lt] [we]re

being overprescribed by Dr. Masood.” The daughter-in-law outlined that M.S. had suffered

multiple overdoses and hospitalizations, was in car accidents, and was arrested for intent to sell

oxycodone, all resulting from M.S.’s ongoing addiction. The e-mail further stated that Masood had

been aware of M.S.’s circumstances since March 2017.

¶ 22 On January 4, 2018, M.S. came to Masood’s office. At that time, Masood gave M.S. a

termination letter that stated that Masood’s office would no longer provide medical services,

prescribe medication, or treat M.S. in the office. Masood gave M.S. a one-month supply of

medication and discharged him from his care.

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¶ 23 The Department’s expert, Dr. Asokumar Buvanendran, testified that he is a physician

board-certified in anesthesiology and pain management and was appointed as the representative

from the American Society of Anesthesiologists to work on the initial review of the 2016 CDC

guidelines for pain management. Dr. Buvanendran testified that those guidelines applied to

patients with chronic pain. Dr. Buvanendran testified that, for patients complaining of pain, a

physician should first try “non-pharmacology therapies,” and then non-opioid medications, before

opioid medications are considered. Then, if opioid medications are required, a physician should

start patients on the “lowest effective dose.” He further explained that it is important for doctors

to conduct risk assessments and to monitor patients on pain management through methods such as

examining the Illinois Prescription Monitoring Program (PMP) to determine if the patient has been

prescribed similar controlled substances from other physicians. Dr. Buvanendran also testified that

it was important to do periodic urine tests to determine if the patient is appropriately taking

medication.

¶ 24 With regard to S.W., Dr. Buvanendran noted that because S.W. had been on probation for

substance abuse, she was at extremely high risk for substance abuse. Dr. Buvanendran testified

that there were no positive physical examination findings in April 2017 for S.W. and that he

considered the subsequent prescription of 210 oxycodone tablets for shoulder and lumbar

discomfort to be “very high.” According to guidelines, there is documented evidence of high risk

when prescribing above 90 MME to a patient, and Masood was prescribing 315 MME of

oxycodone. Moreover, the oxycodone was coupled with benzodiazepines, which created a danger

of increased potency. Dr. Buvanendran also explained that it would be customary for a physician

to obtain a detailed history and do a complete physical examination of the patient before

prescribing opiates to a patient, which Masood did not do. He also testified that Masood did not

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document doing any kind of drug screen test or consulting the PMP in caring for S.W.

¶ 25 Dr. Buvanendran further testified that the frequency of some of the visits was “high[ly]

significan[t]” and indicated that S.W. was seeking early refills, which meant that she had consumed

a 30-day supply in a shorter timeframe. He explained that to continue prescribing controlled

substances to a patient seeking an early refill, a physician should document the reason why the

patient consumed the previously prescribed amount early, have a risk assessment discussion

including checking the PMP, probably do urine toxicology, and reinforce the “narcotic agreement

that the physician has with the patient.” Dr. Buvanendran explained that a narcotic agreement is

an “agreement or contract where a patient and physician agree on setting parameters when issuing

opioids where the patient would follow the instructions of the prescriber in relation to the

controlled substances.” Based on Dr. Buvanendran’s review of the medical records, it did not

appear that Masood had a narcotic agreement with S.W. There was also nothing documented to

indicate that Masood utilized any tool, such as checking the PMP or doing urine toxicology, to

verify that S.W. was in compliance with the medication regimen.

¶ 26 Dr. Buvanendran testified that there were particular dangers of increased morbidity and

mortality associated with the drug combinations that Masood prescribed to S.W. Dr. Buvanendran

concluded that the clinical findings throughout Masood’s treatment of S.W. did not clinically

justify prescribing her 240 oxycodone tablets on top of Xanax, Soma, and Adderall. Dr.

Buvanendran further concluded that Masood deviated from the standard of care and practice as it

related to the prescription of controlled substances and that the controlled substances prescribed

by Masood were “excessive.”

¶ 27 With regard to M.S., Dr. Buvanendran testified that there were many red flags that should

have alerted Masood not to prescribe more controlled substances to him and that Masood did not

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review the PMP or do urine toxicology “at appropriate or periodic time points given the

combination of the drugs prescribed.” Dr. Buvanendran pointed to the fact that M.S. was coming

from another state and M.S.’s pattern of reporting that prescriptions were lost or stolen. He noted

in particular one instance where the medical records showed that M.S. gave different stories as to

how his prescription had been either lost or destroyed. Dr. Buvanendran testified that this would

“raise a significant concern for [Dr. Buvanendran] as a clinician.” Dr. Buvanendran also pointed

to instances in which the timing of M.S.’s reports would indicate that M.S. would have been

without his medications for several days, and Dr. Buvanendran would expect in those

circumstances that M.S. would have withdrawal symptoms based on his history and level of

prescriptions. The records, however, did not indicate symptoms of withdrawal, nor did they

document any effort by Masood to determine how M.S. was “getting by” without those controlled

substances. Dr. Buvanendran would expect that when a patient reports that a medication or a

prescription is lost or stolen, a physician should do a drug screen, urine toxicology, and engage in

a risk assessment evaluation, none of which were documented by Masood. Dr. Buvanendran also

testified that the March 2017 discharge letter suggested that there had been previous conversations

with M.S. about possible illegal activity and yet Masood continued to prescribe him medications.

¶ 28 Dr. Buvanendran concluded, as to M.S., that Masood deviated from the expected standard

of care in that there were multiple red flags that should have alerted Masood that the amount of

controlled substances prescribed was inappropriate.

¶ 29 On cross-examination, Masood’s counsel asked Dr. Buvanendran about whether he

personally prescribes controlled substances to his patients and whether the facility where he works

performs drug screens. Dr. Buvanendran replied yes to both questions. The Department objected

to the latter question, arguing that Dr. Buvanendran’s personal practice was irrelevant to his expert

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testimony. The ALJ allowed the question and answer to stand. Counsel for Masood then asked

whether Dr. Buvanendran “ever ha[d] a patient tell [him] that they can’t afford something.” The

Department objected again, and the ALJ sustained the objection. Counsel for Masood then made

an offer of proof of the remaining questions that he wanted to ask about Dr. Buvanendran’s

personal practice, specifically, (1) whether he had ever had a patient tell him that he or she does

not have insurance, (2) whether he had ever had a patient not follow instructions for pain

management, and (3) whether he had ever had a patient come to him with limited resources.

¶ 30 In his defense, Masood called Dr. Lawrence Robbins, who was qualified and testified as

an expert in pain management and psychopharmacology. Dr. Robbins testified that the CDC

guidelines were “suggestions and not mandated” and criticized the CDC for not “mak[ing] it clear

that [the guidelines] applied to new patients and patients just going on opioids and not patients on

higher doses to begin with.” Dr. Robbins testified that S.W. “came in on a certain dose and he was

grandfathered in to prescribe these medicines.” Dr. Robbins acknowledged that S.W. was on a

“fairly high dose” of both oxycodone and Xanax but testified that there was a “therapeutic reason”

for prescribing those medications, as S.W. had documented chronic pain and anxiety. When asked

whether he believed that Masood was “within the standard of care with respect to his treatment of

S.W.,” Dr. Robbins answered that he “d[id]n’t think there is an accepted standard of care of chronic

pain patients. There are suggestions but his treatment was very good.”

¶ 31 Regarding M.S., Dr. Robbins testified that if a patient’s family member calls and makes a

complaint about abuse and misuse of medicines that the doctor is prescribing, a doctor should take

that report “very seriously.” Dr. Robbins thought Masood handled the situation “appropriately” by

sending a dismissal letter based on the phone call. When asked whether it was appropriate for

Masood to continue treating M.S. after the dismissal letter, Dr. Robbins responded that it “depends

11 No. 1-22-0657

on the situation” and there may have been “extenuating circumstances[.] [S]ometimes you trust

the patient that they won’t engage in be aberrant behaviors that are significant going forward, so

it really depends.” Dr. Robbins was asked several times about whether Masood increased S.W.’s

dosage at the second visit based on records reflecting that he prescribed 210 tablets at 30

milligrams of oxycodone at the first visit and 240 tablets at 30 milligrams at the second visit. Dr.

Robbins repeatedly gave nonresponsive answers, denied that the dosage was increased, or

speculated that S.W. had been prescribed the higher dose by the pain clinic prior to seeing Masood.

¶ 32 Dr. Robbins testified that Masood was checking the PMP, but he acknowledged that his

belief was not based on anything documented in the medical records but was because he

“believe[d] [Masood].” Dr. Robbins was asked whether, accordingly to the guidelines,

“prescription data monitoring program is important in monitoring compliance with the treatment

agreement,” and he responded that was “absolutely incorrect,” but when presented with a copy of

the guidelines he agreed, “That’s what it says.”

¶ 33 Following the hearing, the ALJ issued an 89-page report and recommendation. The ALJ

found that the Department proved counts III and IV, regarding his treatment of patients S.W. and

M.S., by clear and convincing evidence. The ALJ found that by prescribing excessive quantities

of controlled substances to these two patients, Masood breached the accepted standard of care,

engaged in dishonorable and unethical conduct, and prescribed medication for uses other than

those medically accepted.

¶ 34 The ALJ found that Masood prescribed excessive amounts of controlled substances when

treating S.W. The ALJ noted Masood’s testimony that he was unaware of S.W.’s probation but

found that testimony incredible. The ALJ further noted that on several occasions, the medical

records reflected no discomfort or other pain, which the ALJ found strongly supported a conclusion

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that the medications administered were excessive.

¶ 35 The ALJ concluded that Masood was not prescribing medication for a medically accepted

therapeutic purpose but rather with the intent to provide S.W. with sufficient controlled substances

to maintain her “physical or psychological addiction to, habitual or customary use of, or

dependence on” those controlled substances. The ALJ further found that the controlled substances

were prescribed to S.W. “without *** necessary care or monitoring,” noting Dr. Buvanendran’s

testimony that Masood deviated from the standard of care by not starting S.W. on the lowest

quantity of opioids required and not performing a risk assessment before increasing the dosage—

all particularly harmful given S.W.’s history of substance abuse.

¶ 36 Turning to the count involving patient M.S., the ALJ found that Masood inappropriately

prescribed controlled substances and breached his physician’s responsibility in treating M.S. over

the course of a decade. The ALJ agreed with Dr. Buvanendran’s assessment that Masood missed

many “red flags” regarding M.S., including that he traveled “hundreds of miles” from Ohio to see

Masood, M.S.’s repeated “losses” of medication, and warnings from M.S.’s family. The ALJ found

Masood’s testimony that he believed M.S.’s excuses about his prescriptions being stolen to be

incredible. Instead, the ALJ found that M.S. was clearly seeking drugs from Masood and that

Masood was aware of “M.S.’s drug seeking” yet continued to supply him with controlled

substances. The ALJ also concluded, as to M.S., that Masood was not prescribing medication for

a medically accepted therapeutic purpose but rather with the intent to provide him with sufficient

controlled substances to maintain his “physical or psychological addiction to, habitual or

customary use of, or dependence on” those controlled substances.

¶ 37 The ALJ concluded, however, that the Department had not proven the first count, based on

the DEA’s reports that Masood prescribed a very large total sum of controlled substances over a

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two-year period, because Masood’s patient monitoring program data had not been introduced into

evidence. The ALJ also found that the Department had not proven its allegation regarding

Masood’s lack of compliance with the Department’s subpoena.

¶ 38 Based on the two proven counts against Masood, the ALJ recommended that Masood’s

licenses be suspended indefinitely for at least two years. The ALJ noted that Masood’s offenses

were very serious and dangerous to his patients. In addition to harming those individuals, the ALJ

noted that the improper prescribing of opioids harms the general public, reduces the public’s trust

in physicians, and contributes to the normalization of improperly using controlled substances. The

ALJ found that Masood’s lack of contrition for his actions was an aggravating factor in the

recommended sentence, and Masood “demonstrated no appreciation for the profound risks he took

with his patients’ lives and health.” In mitigation, the ALJ noted that Masood stated that he was

not currently practicing pain management and that he did not intend to do so in the future.

¶ 39 The ALJ concluded that

“it [wa]s in the interest of [Masood] and the general public that [Masood]

understands that ignoring warnings of a patient’s misuse of controlled substances

and inappropriately prescribing controlled substances is a very serious matter that

risks harming the public and the practice of medicine. Furthermore, the [ALJ]

conclude[d] that it is in the interest of [Masood] and the general public that

[Masood] understands that prescribing controlled substances for reasons other than

medically accepted therapeutic purposes so that [Masood]’s patients may misuse

controlled substances is a profoundly serious matter that risks harming the public

and the practice of medicine. To make certain that [Masood] understands the

severity of his conduct and its potentially harmful results, and to provide [Masood]

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with time to consider the matter, the [ALJ] recommend[ed] that [Masood]’s

physician license be suspended indefinitely for a minimum of two years, and that

[Masood]’s controlled substance license also be suspended indefinitely for a

minimum of two years.”

¶ 40 Thereafter, the Medical Disciplinary Board (Board) reviewed the record and adopted the

ALJ’s findings of fact, conclusions of law, and recommended discipline. The Director of the

Division of Professional Regulation then entered an order on November 9, 2021, finding the

recommended discipline appropriate.

¶ 41 The Director concluded that,

“[a]t best, [Masood] appears to be unable to conduct proper due diligence when it

comes to treating these patients and prescribing them controlled substances. The

totality of reasons patient M.S. derived in order to obtain controlled substances

would strain credulity for even those who are not qualified to serve as an expert

witness. [Masood]’s failure to check the PMP for patient S.W. or consider the

disciplinary action on her license that even a cursory human resources investigation

would detect *** reflects naivete at best.”

¶ 42 The Director then emphasized that Masood’s

“violations are serious in nature. Both patients’ histories contained serious red flags

that went unnoticed or ignored. In the instant matter, both of these patients were

encouraged by [Masood]’s actions or inaction to keep pursuing controlled

substances from him. *** On a larger level, [Masood’s] approach to prescribing

controlled substances ha[s] the potential to harm other patients under [his] care and

contribute[s] to the opioid epidemic.”

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The Director further recognized that this was not an isolated incident, but rather an approach to

two patients that was “almost mechanical in frequency and amount and occurred over a number of

years.” The Director noted that Masood showed no contrition for his offenses and found that his

“conduct is not reflective of a medical professional who warrants the public trust.” Accordingly,

the Director ordered both Masood’s physician and surgeon license and controlled substance license

“indefinitely suspended for a minimum period of two (2) years.”

¶ 43 The next day, on November 10, 2021, Masood filed a complaint for administrative review

in the circuit court. Among other things, Masood alleged that the ALJ’s findings of fact “presented

an incomplete record of the evidence and testimony presented at the hearing” and that the hearing

procedure was improper in that no Board members were present. Masood also alleged that the ALJ

improperly allowed certain testimony, “impermissibly limited cross-examination,” and improperly

admitted certain exhibits. Masood also alleged that the ALJ improperly weighed evidence

regarding his care for patients S.W. and M.S. and that the discipline imposed was overly harsh.

¶ 44 Two days later, on November 12, 2021, Masood sought an emergency stay of enforcement

of the administrative agency’s decision pending administrative review. The circuit court denied

Masood’s motion for an emergency stay, and Masood filed an interlocutory appeal from that order.

In an earlier appeal in this case, this court affirmed the denial, as Masood failed to provide a

sufficient record for this court to review his challenge. Masood v. Division of Professional

Regulation of the Illinois Department of Financial & Professional Regulation, 2022 IL App (1st)

211530-U, ¶ 30.

¶ 45 Thereafter, the case proceeded in the circuit court. Following briefing and oral arguments

by the parties on the complaint for administrative review, the circuit court entered a written order

on April 21, 2022, denying administrative review. The circuit court determined that none of the

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Department’s findings were against the manifest weight of the evidence. Additionally, while the

indefinite suspension of Masood’s licenses for a minimum of two years was “substantial,” it was

not an abuse of discretion, as it was supported by “numerous aggravating factors,” including the

seriousness of the offenses, the presence of multiple violations, the impact on victims, and

Masood’s testimony indicating that he did not believe his conduct was wrongful. The court also

found no errors in the ALJ’s evidentiary rulings, or with the Board members not being present,

given that it stated that “a majority of the Board concurred in [the decision] after reviewing the

record.”

¶ 46 Masood filed a timely notice of appeal from that order. In this court, Masood raises several

challenges to the Director’s decision. Specifically, Masood contends that the findings that he

violated the Controlled Substances Act and Medical Practice Act were against the manifest weight

of the evidence. Masood also alleges that the ALJ erred in disallowing certain intended cross-

examination of Dr. Buvanendran and in allowing Dr. Buvanendran to testify to “undisclosed

opinions.” Next, Masood claims that the Director’s order “must be reversed” because the

Department failed to follow “mandatory procedures,” in that no member of the Board was present

during the disciplinary hearing and because only one member signed the Board’s recommendation.

Finally, Masood contends that the discipline imposed was inappropriate.

¶ 47 Final administrative decisions made by the Department pursuant to the Medical Practice

Act are subject to judicial review under the provisions of the Administrative Review Law. 225

ILCS 60/41 (West 2020); 735 ILCS 5/3-101 et seq. (West 2020). In reviewing a final

administrative decision, we review the Director’s decision and not the ALJ’s or the circuit court’s

determination. Parikh v. Division of Professional Regulation of the Department of Financial &

Professional Regulation, 2014 IL App (1st) 123319, ¶ 19. The standard of review depends on the

17 No. 1-22-0657

question presented; this court reviews factual questions under the manifest weight of the evidence

standard, questions of law de novo, and mixed questions of law and fact under the clearly erroneous

standard. Heabler v. Illinois Department of Financial & Professional Regulation, 2013 IL App

(1st) 111968, ¶ 17; Kafin v. Division of Professional Regulation of the Department of Financial &

Professional Regulation, 2012 IL App (1st) 111875, ¶ 31. An administrative agency’s decision is

considered clearly erroneous only “when the reviewing court is left with the definite and firm

conviction that a mistake has been committed.” (Internal quotation marks omitted.) Cinkus v.

Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 211 (2008). An

administrative agency’s factual determinations are against the manifest weight of the evidence

only “if the opposite conclusion is clearly evident.” Parikh, 2014 IL App (1st) 123319, ¶ 28.

¶ 48 It “is for the Director, as the trier of fact, to evaluate all evidence, judge the credibility of

witnesses, resolve any conflicts in the evidence, and draw reasonable inferences and conclusions

from the facts.” Anderson v. Department of Professional Regulation, 348 Ill. App. 3d 554, 561

(2004). “The Director may accept or reject as much or as little of a witness’s testimony as he

pleases.” Morgan v. Department of Financial & Professional Regulation, 388 Ill. App. 3d 633,

658 (2009). It is not the function of this court to “ ‘reevaluate witness credibility or resolve

conflicting evidence,’ but rather to determine only ‘whether the findings of fact are supported by

the manifest weight of the evidence.’ ” Id. (quoting Ulysse v. Lumpkin, 335 Ill. App. 3d 886, 893

(2002)).

¶ 49 Masood contends that the Director’s order must be reversed because the ALJ misapplied

the legal standard required to demonstrate Masood’s intent. Masood refers to the ALJ’s conclusion

that Masood was prescribing controlled substances to S.W. and M.S. with the “inten[t] to provide

[them] with controlled substances sufficient to maintain [their] physical or psychological

18 No. 1-22-0657

addiction, habitual or customary use, [or] dependence” on those controlled substances in violation

of section 312(h) of the Controlled Substances Act. 720 ILCS 570/312(h) (West 2020). Masood

contends that, even if the evidence showed that he was aware of the “drug-seeking” intents of S.W.

and M.S., there was no evidence that Masood’s subjective intent was to maintain their addiction.

Masood contends that the Director applied an “objective negligence” standard, rather than finding

“subjective intent,” and that pursuant to Ruan v. United States, 597 U.S. ___, ___, 142 S. Ct. 2370,

2381 (2022), a higher mens rea is required.

¶ 50 As an initial matter, the Attorney General, representing the appellees in this appeal, asserts

that Masood’s argument is raised for the first time on appeal and, as a result, the argument is

forfeited and this court should not consider it. See Keeling v. Board of Trustees of the Forest Park

Police Pension Fund, 2017 IL App (1st) 170804, ¶ 45 (“A party forfeits administrative review of

issues and defenses not placed before the administrative agency.”). It is well settled that a party on

administrative review forfeits any argument not presented to the agency. See Demesa v. Adams,

2013 IL App (1st) 122608, ¶ 52.

¶ 51 Masood claims that the argument is not forfeited because he argued in his motion for

rehearing “that the Department did not demonstrate Counts III and IV by clear and convincing

evidence.” In Masood’s motion for rehearing, he claimed that the Department “did not meet its

burden of proof.” Masood’s argument on this point, however, was essentially that the ALJ should

have weighed the evidence differently, believing Masood’s and his expert’s denials and

explanations, and disbelieving the testimony of Dr. Buvanendran. Masood never raised the

argument he now seeks review of in this court—that the Department utilized an incorrect legal

standard in assessing his intent. Accordingly, that argument is forfeited. 1

1 Masood also contends that the issue was not forfeited because he alleged that the Department “failed to prove a specific underlying violation of the Illinois Controlled Substances Act” in his complaint 19 No. 1-22-0657

¶ 52 Forfeiture aside, we are unpersuaded by Masood’s challenge. Masood relies on Ruan, 597

U.S. at ___, 142 S. Ct. at 2381, a case interpreting the “mens rea required to convict” under a

federal criminal statute. The United States Supreme Court in that case considered two consolidated

cases in which doctors were criminally convicted for dispensing controlled substances. The

Supreme Court determined that both courts of appeals had incorrectly understood the applicable

scienter requirement when they allowed the convictions based on the issuing of a prescription that

“ ‘was objectively not in the usual course of professional practice’ ” (id. at ___, 142 S. Ct. at 2376)

or based on actions that “ ‘were outside the usual course of professional medical practice’ ” (id. at

___, 142 S. Ct. at 2375). The Supreme Court concluded that the prosecution “must prove beyond

a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized

manner.” Id. at ___, 142 S. Ct. at 2382. While the Supreme Court noted the subjective nature of

the requisite intent, it explained that intent could, “of course,” be proven through circumstantial

evidence, and “the more unreasonable a defendant’s asserted beliefs or misunderstandings are,

especially as measured against objective criteria, the more likely the jury…will find that the

Government has carried its burden” as to the intent requirement. (Internal quotation marks

omitted.) Id. at ___, 142 S. Ct. at 2382.

¶ 53 Initially, we question Ruan’s applicability in this context, as Masood was not criminally

prosecuted but was rather the subject of professional discipline. As the Controlled Substances Act

makes clear, an individual’s registration to distribute controlled substances may be revoked for a

violation, regardless of whether it results in a criminal conviction. See 720 ILCS 570/304(a)(5)

(West 2020). And many of the concerns underlying Ruan are not applicable to a disciplinary

for administrative review. Masood’s general challenge again did not advance the specific complaint he raises here, and nonetheless, the arguments made in his complaint for administrative review are not relevant to whether the issue was before the administrative agency. See Keeling, 2017 IL App (1st) 170804, ¶ 45. 20 No. 1-22-0657

proceeding motivated by a need to protect the public and uphold professional standards of conduct.

Compare Ruan, 597 U.S. at ___, 142 S. Ct. at 2376-77 (“[O]ur criminal law seeks to punish the

vicious will. *** Consequently, when we interpret criminal statutes, we normally start from a

longstanding presumption, traceable to the common law, that Congress intends to require a

defendant to possess a culpable mental state.” (Internal quotation marks omitted)), with Carter-

Shields v. Alton Health Institute, 201 Ill. 2d 441, 458 (2002) (“The Medical Practice Act regulat[es]

medical professionals in order to protect the public welfare ***.” (Internal quotation marks

omitted.)).

¶ 54 Nonetheless, even assuming that a subjective intent is necessary under the statute, we

would find no reason to overturn the Director’s conclusion on this issue. The nature of a person’s

intent is a factual question (People v. Testa, 261 Ill. App. 3d 1025, 1031 (1994)), which this court

reviews under the manifest weight of the evidence standard (Parikh, 2014 IL App (1st) 123319,

¶ 28). As stated above, an administrative agency’s factual determinations are against the manifest

weight of the evidence only “if the opposite conclusion is clearly evident.” Id. Although Masood

denies having the requisite intent, “a mental state is seldom subject to direct proof and must

generally be inferred from circumstances which warrant the inference.” People v. Kline, 41 Ill.

App. 3d 261, 266 (1976).

¶ 55 Here, the evidence before the Director showed that Masood ignored red flags to continue

prescribing unreasonably high dosages of controlled substances, despite S.W. and M.S.’s obvious

drug-seeking behaviors. With regard to S.W., Dr. Buvanendran testified that the dosages that

Masood prescribed were excessive and not clinically justified. The ALJ also relied on the fact that

S.W. had documented substance abuse issues and that Masood increased her dosage during the

course of the eight months he saw her, despite there being no documented clinical reason to do so.

21 No. 1-22-0657

Likewise, as to M.S., who drove from Toledo, Ohio, to Joliet, Illinois, to see Masood, the Director

found that Masood continued to provide him controlled substances over excuses that “strain[ed]

credulity.” Additionally, Masood continued M.S.’s prescriptions, even after warnings from M.S.’s

family members about his substance abuse issues and illegal activities. In these circumstances, we

do not find “the opposite conclusion”—i.e., that Masood did not prescribe controlled substances

with the “inten[t] to provide [S.W. and M.S.] with controlled substances sufficient to maintain

[their] physical or psychological addiction, habitual or customary use, [or] dependence” (720 ILCS

570/312(h) (West 2020))—“clearly evident.” See Parikh, 2014 IL App (1st) 123319, ¶ 28.

¶ 56 Masood next claims that the Department failed to prove that Masood violated the Medical

Practice Act. Specifically, the ALJ and Director found that the Department demonstrated, by clear

and convincing evidence, that Masood violated section 22(A)(5), (17), and (33) of the Medical

Practice Act (225 ILCS 60/22(A)(5), (17), (33) (West 2020)) in his treatment of patients S.W. and

M.S. These subsections permit the Department to impose discipline on a medical licensee for,

respectively, “[e]ngaging in dishonorable, unethical or unprofessional conduct of a character likely

to deceive, defraud or harm the public,” “[p]rescribing *** any drug classified as a controlled

substance *** for other than medically accepted therapeutic purposes,” and “[v]iolating state or

federal laws or regulations relating to controlled substances.” Id.

¶ 57 The purpose of the Medical Practice Act is to regulate medical professionals in Illinois to

protect the public welfare. Carter-Shields, 201 Ill. 2d at 458. And “[t]he practice of medicine, in

addition to skill and knowledge, requires honesty and integrity of the highest degree.” Maun v.

Department of Professional Regulation, 299 Ill. App. 3d 388, 400 (1998). The Medical Practice

Act embodies the state’s “legitimate concern for maintaining high standards of professional

conduct [which] extends beyond the initial licensing.” Id.

22 No. 1-22-0657

¶ 58 First, Masood contends that the Department failed to demonstrate a violation of the

Controlled Substances Act, and therefore, it “follows” that the Department failed to demonstrate a

violation of section 22(A)(33) of the Medical Practice Act, which permits the Department to

discipline a licensee for violating state and federal laws related to controlled substances. As we

previously rejected Masood’s argument regarding the Controlled Substances Act, we need not

further address this claim.

¶ 59 The bulk of Masood’s remaining challenges attack the weight assigned to evidence and the

assessment of witness credibility. Although Masood generally takes issue with the ALJ’s findings,

we reiterate that this court reviews the Director’s decision, and not the ALJ’s determination

(Parikh, 2014 IL App (1st) 123319, ¶ 19), and that it is not the function of this court to reweigh

the evidence, reevaluate witness credibility, or make an independent determination of the facts

(Parikh v. Division of Professional Regulation of the Department of Financial & Professional

Regulation, 2012 IL App (1st) 121226, ¶ 31). Rather, a reviewing court determines only “ ‘whether

the findings of fact are supported by the manifest weight of the evidence.’ ” Morgan, 388 Ill. App.

3d at 658 (quoting Ulysse, 335 Ill. App. 3d at 893).

¶ 60 Masood claims that the ALJ chose to disregard Masood’s testimony that he did not know

about S.W.’s prior substance abuse history and probation. Although Masood denied knowing that

S.W. was on probation by the Department, the record before the Director showed that S.W. was a

nurse at Masood’s practice and that the consent order disciplining her license was a public record.

Dr. Buvanendran testified that he would, and did, have knowledge of the disciplinary history of all

nurses in his practice and that he would be aware of that information before a nurse was hired.

Based on the evidence, the Director found that Masood’s failure to “consider the disciplinary

action on her license that even a cursory human resources investigation would detect *** reflects

23 No. 1-22-0657

naivete at best.” In these circumstances, we find no basis to overturn the Director’s assessment of

credibility or rejection of Masood’s denial.

¶ 61 Masood also claims that the ALJ did not give enough weight to Dr. Robbins’s testimony.

This court, however, defers to the agency’s assessment of the testimony and the credibility of the

witnesses (Matos v. Cook County Sheriff’s Merit Board, 401 Ill. App. 3d 536, 542 (2010)), and the

ALJ made extensive findings as to Dr. Robbins’s credibility, noting that he had a “nervous

demeanor,” was “evasive,” and engaged in “rote denial.” The ALJ also noted that Dr. Robbins

testified inconsistently with the medical records, calling his familiarity with Masood’s practices

into question. The ALJ further found that Dr. Robbins “engag[ed] in needless parsing of questions”

to “avoid[ ] answering” them, ultimately finding him to be “not a credible witness.” We find no

basis to overturn that assessment.

¶ 62 Masood next points to one particular statement made by Dr. Buvanendran, acknowledging

that Masood was treating M.S. for chronic pain, which is a medically accepted purpose.

Specifically, on cross-examination, the following exchange occurred:

“[MASOOD’S COUNSEL]: For M.S., you would agree that Dr. Masood is

trying to—therapeutically trying to treat this patient?

[DR. BUVANENDRAN]: The patient has chronic pain.

***

[MASOOD’S COUNSEL]: *** I am asking you about Dr. Masood’s care.

You would agree that he is trying to therapeutically treat the patients?

[DR. BUVANENDRAN]: Well, I would have to answer that question by—

[MASOOD’S COUNSEL]: Yes or no?

[DR. BUVANENDRAN]: Well, I have to qualify that.

24 No. 1-22-0657

[MASOOD’S COUNSEL]: I can ask you a follow up, but I want a yes or

no first.

[DR. BUVANENDRAN]: Correct, yes.”

¶ 63 Based on this statement, Masood contends that it is against the manifest weight of the

evidence to conclude that he violated the Medical Practice Act in relation to M.S. because even

Dr. Buvanendran “believed” that Masood was “therapeutically treating Patient M.S.” Masood’s

argument takes a single “yes” and reads it completely out of context considering Dr.

Buvanendran’s entire testimony. Although Dr. Buvanendran acknowledged that M.S. had chronic

pain, he testified extensively about the red flags that should have alerted Masood to M.S.’s drug-

seeking. Based on the evidence, we find no basis to disturb the Director’s determination that

Masood violated the Medical Practice Act in the course of treating S.W. and M.S.

¶ 64 Masood next contends that the ALJ made improper evidentiary rulings as to Dr.

Buvanendran. Masood asserts that his challenge is a “pure question of the applicability of law and

legally required scope of cross examination” and accordingly, “it must be reviewed under the

de novo standard.” In support, he cites a case for the general proposition that questions of law are

reviewed de novo. He provides no support, however, for his assertion that the ALJ’s evidentiary

rulings constitute questions of law.

¶ 65 To the contrary, this court reviews an administrative agency’s decision regarding the

admission of evidence for an abuse of discretion. Danigeles v. Illinois Department of Financial &

Professional Regulation, 2015 IL App (1st) 142622, ¶ 89. This court has held that an

“administrative decision will not be overturned because the administrative judge failed to observe

the rules of evidence unless the error ‘materially affected the rights of any party and resulted in

25 No. 1-22-0657

substantial injustice to [the party].’ ” Kafin, 2012 IL App (1st) 111875, ¶ 38 (quoting 735 ILCS

5/3-111(b) (West 2008)).

¶ 66 Masood’s complaint stems from the ALJ’s decision not to allow Masood’s counsel to ask

certain questions about Dr. Buvanendran’s personal practice. Specifically, Masood’s counsel

elicited testimony that Dr. Buvanendran prescribes controlled substances to his patients and that

the facility where he works performs drug screens. The ALJ, however, found that further testimony

as to Dr. Buvanendran’s personal practice was not relevant, and counsel was not permitted to ask

whether Dr. Buvanendran had ever had a patient who had limited resources, who did not have

insurance, who could not “afford something,” or who did not follow instructions for pain

management.

¶ 67 Masood first argues that he should have been allowed to elicit testimony from Dr.

Buvanendran about his personal practice, relying on a medical malpractice case, Schmitz v. Binette,

368 Ill. App. 3d 447 (2006). In Schmitz, a medical expert testified that the standard of care did not

require a doctor to perform a particular test and that the test was unreasonably dangerous and

ineffective. However, during the expert’s earlier deposition, he had stated that he personally

performed the test “ ‘quite readily, quite commonly.’ ” Id. at 461. This court held that the jury was

entitled to hear the inconsistent testimony, which may have provided additional insight to the jury

regarding the testimony. Id.

¶ 68 We initially question the applicability of Schmitz here, as it was a medical malpractice case

and not an administrative proceeding. See Kimble v. Illinois State Board of Education, 2014 IL

App (1st) 123436, ¶ 79 (“the strict rules of evidence that apply in a judicial proceeding are not

applicable to proceedings before an administrative agency”). Nonetheless, cases following Schmitz

have clarified that personal practice testimony is only relevant to credibility if there is an indication

26 No. 1-22-0657

that it will be inconsistent with testimony relating to standard of care. See Taylor v. County of

Cook, 2011 IL App (1st) 093085, ¶¶ 28-29; Swift v. Schleicher, 2017 IL App (2d) 170218, ¶ 88.

¶ 69 Here, Masood points to no prior testimony by Dr. Buvanendran, or any other reason to

believe that the evidence would show that Dr. Buvanendran’s personal practice is inconsistent with

his testimony relating to the standard of care. Moreover, this court does not see how Masood’s

counsel proposed questions, relating to whether he had treated patients without insurance and with

limited resources, and whether any patients had not followed his instructions, would elicit any

testimony that would be inconsistent with the standard of care to which he testified.

¶ 70 Additionally, regardless of the propriety of the ALJ’s ruling, an incorrect evidentiary ruling

can only be the basis of reversal if the error resulted in substantial injustice. See Danigeles, 2015

IL App (1st) 142622, ¶ 82 (“An evidentiary ruling, even if incorrect, will not be reversed unless

there is ‘demonstrable prejudice to the complaining party.’ ”); Village of Stickney v. Board of

Trustees of the Police Pension Fund, 347 Ill. App. 3d 845, 852-53 (2004) (holding that the Board’s

decision to exclude cross-examination conducted by party was not reversible error because the

party did not show that it was prejudiced by that ruling).

¶ 71 Masood contends that he established prejudice because he was precluded from

“challenging Dr. Buvanendran’s knowledge and experience, which go directly to the weight given

his testimony” and that “[a]s an anesthesiologist practicing at Rush University, [the intended]

testimony would have established that Dr. Buvanendran did not possess the specialized knowledge

or experience in treating pain management patients as a primary care physician in Joliet.” Masood

further contends that his counsel’s questions would “have demonstrated that Dr. Buvanendran was

unaware of the daily practices of primary care physicians, particularly those in underserved areas

who were required to treat pain management patients.” Masood assumes, with no evidence to

27 No. 1-22-0657

support such contentions, that Dr. Buvanendran does not care for patients with limited resources

and that the standard of care for physicians is different based on the income of the patients they

serve. Moreover, although he contends that the evidentiary rulings prevented him from adequately

challenging Dr. Buvanendran’s credibility, Masood’s counsel argued in closing that Dr.

Buvanendran was “an ivy-tower physician, [who] has no feel for what it’s like to practice in the

Joliet area, with the type of practice Dr. Masood has.” It is clear, however, that the ALJ and

Department were not persuaded by Masood’s attacks on Dr. Buvanendran’s credibility on this

basis, and there is no reason to believe that answers to Masood’s counsel’s proffered questions

would have had any effect on that credibility assessment, or the outcome of the proceeding.

¶ 72 Masood next claims that the ALJ improperly allowed Dr. Buvanendran to testify to

opinions that were not disclosed during discovery, which he claims violates his due process rights

and section 1110.130(b) of Title 68 of the Illinois Administrative Code (68 Ill. Adm. Code

1110.130(b) (2019)). Specifically, Masood alleges that Dr. Buvanendran was improperly

“permitted to provide expert testimony and opinions regarding Dr. Masood’s practice and his care

for Patients S.W. and M.S. over Dr. Masood’s objection, where Dr. Masood was not previously

provided an expert report or otherwise provided with a description of the testimony and evidence

that was to be offered.”

¶ 73 In support, he cites the administrative regulation that, as relevant here, requires parties to

disclose, upon written request, (1) the name and address of witnesses, including experts, who may

testify, (2) copies of documentary evidence, and (3) a “description of any other evidence that may

be offered.” Id. Masood relies on paragraph (3), which requires “[a] description of any other

evidence” (emphasis added) (id.), to allege that the Department was required to provide a

description of Dr. Buvanendran’s testimony. A fair reading of the section, however, makes clear

28 No. 1-22-0657

that the phrase “description of any other evidence” does not apply to the testimony of witnesses,

including expert witnesses, as they are enumerated earlier in the section. 2

¶ 74 Additionally, even if the Department had been required to provide a description of Dr.

Buvanendran’s anticipated testimony, which we do not find, the question for purposes of a due

process challenge is whether such failure rendered the proceedings fundamentally unfair. See Lyon

v. Department of Children & Family Services, 335 Ill. App. 3d 376, 385 (2002) (“we find no basis

in the record for holding that the proceedings were fundamentally unfair, at least with respect to

discovery”).

¶ 75 “Where an administrative proceeding gives the petitioner a fair opportunity to be heard,

including the opportunity to cross-examine witnesses and present evidence, generally this is

considered sufficient to insure due process and a fair, impartial hearing.” Anderson v. Human

Rights Comm’n, 314 Ill. App. 3d 35, 48 (2000). In this case, Masood received the essential

elements of a fair hearing before an administrative agency, and we find no basis to conclude that

the proceedings were fundamentally unfair.

¶ 76 Masood also argues that his due process rights were violated because no Board member

attended the hearing and because only one Board member signed the Board’s recommendation.

Masood relies on Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76

(1992), to assert that the Medical Practice Act requires at least one Board member be present to

listen to live testimony. Masood, however, misunderstands the holding of Abrahamson. While the

court in Abrahamson determined that the presence of one Board member was sufficient to afford

due process, it did not conclude that it was necessary. To the contrary, the court in Abrahamson

2 Interestingly, in the administrative proceedings, Masood did not appear to interpret the rule as requiring a description of expert testimony, as Masood himself did not produce any expert reports or further information beyond the name of his expert witness.

29 No. 1-22-0657

stated that “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. at 95. Additionally, 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.

Kafin, 2012 IL App (1st) 111875, ¶ 33. We disagree with Masood’s contention that Kafin is

incompatible with Abrahamson and decline his invitation to find that it was wrongly decided.

¶ 77 Masood also argues that the requirement that the Board review the transcript was not

satisfied here, taking issue with the Board’s statement that it reviewed “the record,” rather than

specifically stating that it reviewed the “transcript.” An agency is “presumed to act lawfully”

(Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 210 (2004))

and is “entitled to the presumption that it properly read and considered the evidence” (Glaser v.

City of Chicago, 2018 IL App (1st) 171987, ¶ 27). Masood has provided nothing to support an

inference that the record reviewed by the Board did not include a transcript of the proceedings, or

to rebut the above presumptions.

¶ 78 Masood also argues that because only the Board chairperson signed the recommendation,

it was not made by a majority of the Board members. Masood, however, cites no requirement that

all Board members must sign the recommendation. Moreover, in the Director’s order, she noted

that at the time of the Board’s meeting, the governor of Illinois had issued a disaster declaration

related to public health concerns and, pursuant to an executive order, the requirement for in-person

attendance by members of a public body under the Open Meetings Act (5 ILCS 120/1 et seq. (West

2020)) was suspended. As such, the chairperson signed the Board’s report on behalf of the Board,

which was operating remotely. Additionally, even if a single signature from the Board chairperson

is not sufficient, Masood has provided no argument as to how the failure to obtain signatures from

30 No. 1-22-0657

the rest of the board members rendered the proceedings fundamentally unfair, particularly where

he acknowledges that the recommendation itself indicates that it was made by a majority of its

members.

¶ 79 Finally, Masood raises several challenges the propriety of the sanction imposed by the

Director. First, he asserts that the indefinite nature of the discipline imposed was “not legally

permitted,” as the Medical Practice Act provides that the Department “may revoke, suspend, place

on probation, reprimand, refuse to issue or renew” a license (225 ILCS 60/22(A) (West 2020)),

and the Controlled Substances Act provides that a controlled substances license “may be denied,

refused renewal, suspended, or revoked” by the Department (720 ILCS 570/304(a) (West 2020)).

Masood contends that the Medical Practice Act refers to a “term” of suspension (see 225 ILCS

60/43 (West 2020) (noting that the Department may restore a license “after the successful

completion of a term of *** suspension” (emphasis added))) and the word “indefinite” does not

appear.

¶ 80 Here, the Department “indefinitely suspended” Masood’s licenses “for a minimum period

of two (2) years.” Accordingly, the discipline imposed contained a term of two years, at which

time Masood can seek restoration of his license. Contrary to Masood’s argument that suspensions

must be for a set term at which time a license would be automatically restored, the Medical Practice

Act explicitly contemplates the indefinite nature of suspensions, setting forth the procedure for

restoring a license following a term of suspension. Id. (“At any time after the successful completion

of a term of *** suspension *** 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.”).

31 No. 1-22-0657

¶ 81 Masood next argues that the Director violated section 40(c) of the Medical Practice Act by

not including the grounds on which the discipline was based and any “terms and conditions” of

the discipline. See id. § 40(c) (“Each order of revocation, suspension, or other disciplinary action

shall contain a brief, concise statement of the ground or grounds upon which the Department’s

action is based, as well as the specific terms and conditions of such action.”). Masood’s argument

that the Director’s decision did not contain the grounds for discipline is belied by the record, as

the Director extensively discussed Masood’s violations and why discipline was warranted in the

eight-page decision. Additionally, Masood’s licenses were suspended in their entirety, and it is not

clear what “terms or conditions” of that suspension could have been imposed.

¶ 82 Masood also alleges that the Director abused her discretion in the discipline imposed

because it “was not warranted by the underlying facts.” Where, as here, we are reviewing the

propriety of a particular sanction imposed by the Director, the standard of review is whether the

Director abused his or her discretion in the imposition of the sanction. Kafin, 2012 IL App (1st)

111875, ¶ 42; Reddy v. Department of Professional Regulation, 336 Ill. App. 3d 350, 354 (2002).

An abuse of discretion occurs only when no reasonable person could agree with the decision at

issue. Lake Environmental, Inc. v. Arnold, 2015 IL 118110, ¶ 16. The Director abuses his or her

discretion when a sanction is imposed that is (1) overly harsh, arbitrary or unreasonable in view of

the mitigating circumstances or (2) unrelated to the purpose of the statute. Siddiqui v. Department

of Professional Regulation, 307 Ill. App. 3d 753, 763 (1999); Kafin, 2012 IL App (1st) 111875,

¶¶ 42-43. On review, “[w]e must defer to the administrative agency’s expertise and experience in

determining what sanction is appropriate to protect the public interest.” Reddy, 336 Ill. App. 3d at

354. Although “the hearing officer may consider sanctions imposed in similar cases,” “each case

32 No. 1-22-0657

must be considered on its merits [citation], and it is for the Department to determine the appropriate

sanction in each case.” Siddiqui, 307 Ill. App. 3d at 764.

¶ 83 Deferring to the Director’s expertise and experience, as we must, our review of the record

reveals that the Director properly exercised her discretion when she imposed an indefinite

suspension for a minimum of two years. Among other factors, the Director relied on the serious

nature of Masood’s violations, the harm to those patients and the public, the length of time and

frequency with which the violations occurred, the discipline imposed by the DEA, and Masood’s

lack of contrition in determining the appropriate discipline.

¶ 84 Masood, however, argues that his failure to accept responsibility was improperly

considered as an aggravating factor. He relies on In re Wigoda, 77 Ill. 2d 154 (1979), claiming it

suggests that “the Department is not permitted to use Dr. Masood’s disagreement with the

Department’s allegations to justify a harsher punishment.” Wigoda, however, addressed the issue

of reinstatement of a license rather than discipline, explaining that the “[r]espondent’s assertion of

innocence[ ] and *** his lack of repentance, are factors to be considered in considering a petition

for reinstatement,” but that those factors were, alone, not sufficient to bar the reinstatement of his

license. (Emphasis added.) Id. at 159. Masood contends that under Wigoda, “a physician admitting

his mistake is a positive character trait that the Department can take into consideration, but the fact

that the physician does not believe he committed any alleged violations based upon his belief is

not an appropriate consideration to hold against the physician in imposing discipline.” Here,

however, the relevant statute expressly provides that Masood’s “lack of contrition for the offenses”

is an aggravating factor that the Department “shall consider” in determining the appropriate

discipline. 20 ILCS 2105/2105-130(b)(7) (West 2020).

33 No. 1-22-0657

¶ 85 Masood also argues that the discipline imposed violates a uniformity requirement in

administrative decisions. Although the Illinois Supreme Court has held that a “ ‘degree of

uniformity’ ” is required in other types of disciplinary proceedings, the court has also made clear

that “ ‘each case must still be determined on its own merits.’ ” In re Spencer, 68 Ill. 2d 496, 501

(1977). In the context of physician discipline, this court has clarified that although “ ‘the hearing

officer may consider sanctions imposed in similar cases *** each case must be considered on its

merits [citation], and it is for the Department to determine the appropriate sanction in each case.’ ”

Nwaokocha v. Illinois Department of Financial & Professional Regulation, 2018 IL App (1st)

162614, ¶ 56; see also Robbins v. Department of State Police Merit Board, 2014 IL App (4th)

130041, ¶ 50 (declining to consider whether a discharge was unreasonable because the agency

failed to consider unrelated cases in making its determination).

¶ 86 In support of his argument, Masood cites an exhibit he attached to his motion for rehearing

of the ALJ’s decision. That exhibit was entitled “Compilation of Public Disciplinary Precedent”

and included very brief, generally one-sentence-long, descriptions of other disciplinary actions,

the violations, and the discipline imposed. In this court, Masood contends that those disciplinary

actions show that the Department imposed lesser sanctions in similar “or *** more egregious”

cases.

¶ 87 Masood, however, has not provided a sufficient record with which this court could compare

this action with any other disciplinary proceeding. Masood’s descriptions also only refer to the

violations as involving “inappropriate” prescribing of controlled substances, without any further

information as to the severity of the violations or the length of time over which they occurred. As

the record contains only Masood’s characterization of the violations and discipline imposed, but

nothing to provide additional information about the underlying facts or to verify the accuracy of

34 No. 1-22-0657

Masood’s descriptions, Masood has failed to show any other proceedings that require a different

result in his case. See Siddiqui, 307 Ill. App. 3d at 764 (finding that the sanctions imposed in other

proceedings did not warrant a different result where the plaintiff physician “merely cite[d] the

outcome in these cases with no discussion of the facts supporting the sanctions”).

¶ 88 Masood also contends that the ALJ had an improper punitive motive, based on the ALJ’s

remark that the discipline would allow time for Masood to “understand[ ] the severity of his

conduct.” He contends that the purpose of sanctions authorized by the Medical Practice Act is not

to punish, but rather “to protect the public health and welfare from those not qualified to practice

medicine,” citing Reddy, 336 Ill. App. 3d at 355.

¶ 89 We reiterate, again, that we review the decision of the Director, and not that of the ALJ.

Nonetheless, and contrary to Masood’s assertion, the ALJ’s comment about giving Masood time

to understand the severity of his violations before allowing him to practice medicine again was an

appropriate response to Masood’s lack of contrition and a proper comment driven by the need to

protect the public health and welfare.

¶ 90 For the first time on appeal, Masood also argues that only his controlled substance license

should have been suspended and not his physician and surgeon license because, according to him,

the ALJ and Director did not identify “any concern regarding Dr. Masood’s practice as a primary

care physician outside of his pain management practice or controlled substance prescribing.” This

argument is forfeited as Masood failed to raise it in front of the Department. Keeling, 2017 IL App

(1st) 170804, ¶ 45; see Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278 (1998)

(holding that an appellate court properly refused to consider an issue for failure to raise it during

the administrative proceedings). Nonetheless, the Medical Practice Act specifically authorizes the

Department to suspend a license issued under the act for “[p]rescribing *** any drug classified as

35 No. 1-22-0657

a controlled substance *** for other than medically accepted therapeutic purposes” and for

“[v]iolating state or federal laws or regulations relating to controlled substances.” 225 ILCS

60/22(A)(17), (33) (West 2020). Accordingly, there is no requirement that the Department

establish a violation unrelated to controlled substances to suspend a medical practice license, and

we find no abuse of the discretion by the Director in choosing to suspend both licenses in this case.

¶ 91 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 92 Affirmed.

36 No. 1-22-0657

Masood v. Division of Professional Regulation of the Department of Financial & Professional Regulation, 2023 IL App (1st) 220657

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 21-CH-05718; the Hon. David B. Atkins, Judge, presiding.

Attorneys Michael K. Goldberg, Dominic A. Velloze, and Jonathan for Youseph, of Goldberg Law Group, LLC, of Chicago, for Appellant: appellant.

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Anna W. Gottlieb, Assistant Attorney Appellee: General, of counsel), for appellees.