Section 190.20  Hearings


a)         Upon written request, made within 90 days after any administrative action or regulatory decision made pursuant to the Act, the Secretary will authorize a formal hearing to review the propriety of administrative actions and regulatory decisions by issuing a notice of hearing.


b)         The notice shall be served personally or by certified or registered mail or as otherwise provided by law upon the parties or their agents appointed to receive service of process and shall include the following:


1)         A statement of the time, place and nature of the hearing.


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


3)         A reference to the particular Sections of the substantive and procedural statutes and rules involved.


4)         Except when a more detailed statement is otherwise provided for by law, a short and plain statement of the matters asserted, the consequences of a failure to respond, and the official file or other reference number.


5)         The names and mailing addresses of the hearing officer, all parties and all other persons to whom the agency gives notice of the hearing, unless otherwise confidential by law.


c)         An opportunity shall be afforded all parties to be represented by legal counsel and to respond and present evidence and argument.


d)         Unless precluded by law, disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.


e)         Hearing Officers


1)         The hearing officer designated by the Secretary shall be an attorney licensed to practice in Illinois and shall have the authority to:


A)        examine or permit examination of any witness under oath;


B)        determine the order of appearance of all parties;


C)        receive all evidence and testimony and rule on its admissibility as well as require the production of any relevant document or witness;


D)        rule on objections to evidence; and


E)        make a written report with recommendations to the Secretary that shall include findings of fact and conclusions of law with respect to the claim. Findings of fact shall be based exclusively on the evidence and on matters officially noticed.


2)         Petitioner or respondent may petition the Secretary to disqualify the appointed hearing officer for bias or conflict of interest by presenting the Secretary with convincing and compelling evidence of the hearing officer's bias or conflict of interest.  An adverse ruling shall not constitute bias or conflict of interest.


f)         General Provisions


1)         When a hearing is scheduled pursuant to this Part, the petitioner or his or her attorney shall be notified by certified or registered mail, return receipt requested, at least 10 days prior to the date set for the hearing.  Delivery of notice to the United States Postal Service shall constitute delivery.


2)         A continuance shall be granted for good cause by the hearing officer. The continuance shall be:


A)        in writing, in duplicate and signed by the petitioner or his or her attorney and shall state the reasons for the request;


B)        delivered to the hearing officer at least three days prior to the scheduled hearing.


3)         For the purposes of subsection (f)(2), good cause shall require the petitioner to demonstrate real and compelling need for additional time.  It shall include but not be limited to illness, service in the armed forces, etc.


4)         Failure to attend a hearing shall result in the dismissal of the party's petition and the assessment of the costs for such a hearing upon the party.  A person whose petition has been so dismissed shall not resubmit until the assessed costs have been paid.


5)         Any party to a proceeding may order a court reporter to transcribe the proceeding.  If the petitioner makes the request, he or she shall pay all costs associated with the transcript.  If the court reporter is ordered by the hearing officer, any party may purchase a transcript.


6)         The Secretary shall assess all costs and attorneys' fees against any party who has unreasonably delayed a proceeding or has filed a claim in bad faith.  "Unreasonable delay of a proceeding" shall be determined to exist upon a preponderance of evidence indicating that the petitioner is purposely delaying the hearing either actively or through inattention to detail.  A determination of "filing a claim in bad faith" requires a preponderance of evidence that the hearing petition was filed merely to stay Division action with no intent for expeditious resolution of the contested issue.


g)         Conduct of Hearings


1)         The hearing officer shall open the hearing by presenting for the record his or her letter of authorization from the Secretary.


2)         The rules of evidence and privilege as applied in civil cases in Illinois Circuit Courts shall be followed.  The hearing officer may admit evidence not admissible under those rules if the evidence could be relevant to the case. Irrelevant, immaterial or unduly repetitious evidence shall be excluded.  Evidence not admissible under those rules of evidence may be admitted (except when precluded by statute) if it is a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and the interests of the parties will not be prejudiced, any part of the evidence may be received in written form.


3)         The hearing officer may, on his or her own motion or the motion of one of the parties, take notice of matters of which Illinois Circuit Courts may take judicial notice.  Notice may be taken of generally recognized technical or scientific facts within the Division's specialized knowledge if parties are notified, before or during the hearing, and if afforded an opportunity to contest the material so noticed [5 ILCS 100/10-40(c)]. The burden of opposing any material admitted upon notice shall be upon the party so opposing.


4)         No Division employee or hearing officer shall, after notice of a hearing, communicate with any party or his or her attorney in connection with any issue in the hearing except upon notice and opportunity for all parties to participate.


5)         The record of any hearing shall include:


A)        all pleadings, and evidence received whether admitted or excluded;


B)        a statement of all matters officially noticed;


C)        all offers of proof, objections, and rulings on objections;


D)        all proposed findings and exceptions;


E)        any decision, opinion or report by the hearing officer;


F)         any communication prohibited by this Part, although the communication shall not form the basis for any finding of fact;


G)        any evidence excluded by the hearing officer, even though that evidence is not used in the determination of the claim;


H)        a proceeding transcript recorded by any means that will adequately insure the preservation of the testimony.


6)         Within 90 days after the hearing or the receipt of all necessary documents, the hearing officer shall report to the Secretary, pursuant to 38 Ill. Adm. Code 190.20.


7)         Within 30 days after receiving the report of the hearing officer, the Secretary shall issue a decision, which shall be served on the claimant and other parties personally or by registered or certified mail, return receipt requested.  Copies of the hearing officer's report to the Secretary are available upon written request.


h)         Petition to Reconsider


1)         Within 30 days after receipt of the Secretary's decision, any party may petition the Secretary for reconsideration based upon a verified petition.  An affidavit shall accompany the petition stating that the decision was against the manifest weight of the evidence, was contrary to law, or was arbitrary or capricious, and is affected by newly discovered evidence not in existence at the time of the initial hearing or that could not have been discovered using due diligence at that time.


2)         The Secretary shall determine within 15 days whether to reconsider the case.  If reconsideration is allowed, a hearing shall be held pursuant to this Part and shall be limited to the issues raised by the petition and affidavit.  If reconsideration is denied, the Secretary's initial decision shall be the final administrative decision of the Division.


(Source:  Amended at 37 Ill. Reg. 12450, effective July 16, 2013)