Capitol - Your Illinois News Radar » Another judge rules that IDPH director violated due process rights
SUBSCRIBE to Capitol Fax      Advertise Here      Mobile Version     Exclusive Subscriber Content     Updated Posts    Contact
To subscribe to Capitol Fax, click here.
Another judge rules that IDPH director violated due process rights

Thursday, Jul 28, 2016

* This is the third time a judge has done something like this in just the past month

A Cook County judge today ordered the head of the state health department to reconsider adding irritable bowel syndrome to the list of conditions eligible for treatment with medical marijuana.

Circuit Judge Anna Helen Demacopoulos ruled that Illinois Department of Public Health Director Nirav D. Shah violated procedural due process rights when he used his own review standard to deny the Medical Cannabis Advisory Board’s recommendation to add IBS to the list.

Beyond that, Demacopoulos ruled, the controlling statute and guidelines that govern Illinois’ medical marijuana program are silent regarding what kind of standard the director can use when issuing final decisions based on board recommendations.

“There is no IDPH rule, nor is there any language in the [Compassionate Use of Medical Cannabis Pilot Program] Act, empowering the [d]irector to conduct his own investigation or add materials to the record that were not considered at the hearing,” Demacopoulos wrote in her nine-page memorandum and order.

While it appears Shah employed a standard to consider evidence from “adequate, well controlled clinical trials,” Demacopoulos ruled, it’s a standard the plaintiff did not have a chance to challenge before a decision was made.

“The [d]irector’s supplying of evidence post-hearing indicates demonstrable prejudice to the plaintiff and therefore serves as a basis for reversal,” she wrote.

- Posted by Rich Miller        

  1. - Homer J. Quinn - Thursday, Jul 28, 16 @ 10:00 am:

    get him out, if he thinks his personal biases are above the law.

  2. - Ghost - Thursday, Jul 28, 16 @ 10:08 am:

    Why the ridiculous lockdown on canabis? they prescribe norco!! for IBS without restriction. where are the dept rules listing medical conditions for which it prescribing narcotics is not allowed??? this idea that highly addictive narcatic meds are untestricted in the conditions for which they can be prescribed while less addictive canabis can not be prescribed defies logic.

  3. - illinoised - Thursday, Jul 28, 16 @ 10:18 am:

    I have IBS. My internist told me the best thing he could prescribe me, marijuana, is not allowed. I hate the medicine I currently use.

  4. - Norseman - Thursday, Jul 28, 16 @ 10:19 am:

    I’m putting on my tinfoil hat. I can’t help but suspect that the frat boys told him to deny these additions. They don’t want to see an expansion of the program.

    If I’m wrong, then the Director is being poorly served by his legal counsel.

  5. - 100 miles west - Thursday, Jul 28, 16 @ 10:21 am:

    There are many article about the reduction in scripts written in states with medical marijuana programs. Fewer pills sold means less money for the medical industrial complex.

  6. - Louis G. Atsaves - Thursday, Jul 28, 16 @ 10:23 am:

    ” . . . the controlling statute and guidelines that govern Illinois’ medical marijuana program are silent regarding what kind of standard the director can use when issuing final decisions based on board recommendations.”

    Give the man little or no legislative guidance, then pound on him over every decision made.

    Legislating and rule making by judicial fiat, now times three.

  7. - Demoralized - Thursday, Jul 28, 16 @ 10:59 am:


    The judge noted the lack of guidance. The ruling criticized him for using his own standard and then not providing any avenue to review his standards and for anyone to appeal his decision.

  8. - Morgan County - Thursday, Jul 28, 16 @ 11:05 am:

    Just go ahead and legalize it.

  9. - frisbee - Thursday, Jul 28, 16 @ 11:31 am:

    Legalize it, tax it, regulate it. Let the current medical businesses get a few years to make their money back and then some for being first movers but open up the doors for entrepreneurs who don’t have 6 or 7 figures to become the job creators for this cottage industry.

  10. - Norseman - Thursday, Jul 28, 16 @ 12:05 pm:

    Upon closer review of the issue, this portion of the law is poorly written. Following is the pertinent section:

    (410 ILCS 130/45)
    (Section scheduled to be repealed on January 1, 2018)
    Sec. 45. Addition of debilitating medical conditions. Any citizen may petition the Department of Public Health to add debilitating conditions or treatments to the list of debilitating medical conditions listed in subsection (h) of Section 10. The Department of Public Health shall consider petitions in the manner required by Department rule, including public notice and hearing. The Department shall approve or deny a petition within 180 days of its submission, and, upon approval, shall proceed to add that condition by rule in accordance with the Administrative Procedure Act. The approval or denial of any petition is a final decision of the Department, subject to judicial review. Jurisdiction and venue are vested in the Circuit Court. (emphasis added)

    Not only does it not provide no guidance on additions, most laws provide that decisions are subject to administrative review before being taken to the courts. So the director’s decision can be appealed administratively which would allow an aggrieved party to submit further information. From my reading, this law takes away that process and takes it direct to the courts.

    The rules provide for an extensive reveiw process with the addition of an advisory board. It requires the submission of extensive information by a petitioner and a review process by an advisory committee. The committee then makes a recommendation according to the following provision of the rule:

    The written report of findings shall include a medical justification for the recommendation based upon the individual or collective expertise of the Advisory Board membership. The medical justification shall delineate between the findings of fact made by the Advisory Board and scientific conclusions of evidence-based medical research.

    That the director, a physician, finds the recommendation to be deficient based upon his own expertise and research into the issue is not unreasonable. Without seeing the briefs or the opinions, I don’t know what was argued but I suspect it refers to the point that the director’s decision by statute is appealable only to the court.

    Basically, simplify the process by legalizing and taxing. We need the revenue and we need the ganja to try and get through the Rauner era of incompetence.

    If not, then revise the statute to provide guidance and change the review process.

  11. - Norseman - Thursday, Jul 28, 16 @ 12:06 pm:

    “does it not provide guidance”

  12. - Ghost - Thursday, Jul 28, 16 @ 12:46 pm:

    Norseman and Astaves BUT due process is not remotely vague. you can not add secret evidence after the cas has been heard and think it is legit….

    Not even remotely vague. On top of that he did not give the parties an opportunity to address the new evidence he introduced for the first time afyer the evidentiary hearing. this is not vaguely acceptable. unless your aiming for kafkaesque society

  13. - Norseman - Thursday, Jul 28, 16 @ 1:10 pm:

    Ghost, we’re normally on the same wavelength, but you’re letting your emotions run a little bit.

    They did get their due process. The law said go to court, they went to court and won. “Secret,” don’t be dramatic. There was nothing that specifically prevented the director from researching and discussing additional information. The court put it’s two cents in saying there should be a better process. They need to deal with it. No big conspiracy here. Poor legislative work, but no conspiracy.

  14. - tired and retired - Thursday, Jul 28, 16 @ 4:17 pm:

    Basic principles of due process require that the litigants get the opportunity to know what evidence is being presented so that they can respond. A tribunal is not permitted to consider evidence that was not presented at a time the parties had the opportunity to respond. The fact that they had a review process available to them to overturn the Director’s personal after the fact investigation is not the due process that they were denied. Very basic principles of due process in fact prohibit the director from conducting his own, independent after the fact investigation.

  15. - Nobody - Thursday, Jul 28, 16 @ 8:39 pm:

    There are six of these cases about conditions. Buckle up…

  16. - Lynn S. - Friday, Jul 29, 16 @ 1:10 am:

    Hasn’t the director lost 3 of those 6 cases filed so far? Wouldn’t it perhaps be more prudent to make a statement deciding in favor of the parties he discriminated against, change the pot laws, and ask that the suits be withdrawn?

    But I’m just a girl, and not a lawyer or a doctor, so what do I know? (shrugs shoulders, considers walking away…)

Sorry, comments for this post are now closed.

* Did he actually say anything?
* Sanguinetti says she’s not ruling out run for governor
* With $500 million in state support, UI-led research institute officially underway in Chicago
* *** UPDATED x4 Bourne, ILGOP responds, Clark was on Rauner payroll in '14 *** 95th District Dem candidate touts embellished record as volunteer firefighter
* Yesterday's stories

Visit our advertisers...






* Sanguinetti says she's not ruling out run f.....
* Bill allowing medical cannabis in public school.....
* Illinois' Racially Tone Deaf Governor Claim.....
* Rauner praises CSL, pledges state support..
* UI-led Discovery Partners Institute officially .....
* Raises for teachers capped at 3 percent in last.....
* Emanuel, Rauner together for once—on the U of I.....
* Rauner razzes JB the Plumber — Black Caucus cal.....
* School district leaders ask Rauner to veto $400.....
* Morning Spin: Rauner says US border policy spli.....

* Peoria officials create videos to promote the city
* Chicago teen eligible for parole next April in 2014 killing
* Caterpillar plant in Texas reminder of trade conflict stakes
* The Latest: Chicago teen apologizes in Facebook feud slaying
* The Latest: Chicago teen sentenced in Facebook feud slaying
* Artist sues NRA for including 'The Bean' sculpture in video
* Teen in 'Making a Murderer' asks high court to take his case
* Wounded boy stable after Bloomington shooting that killed 3
* Indiana city offers online reporting of certain crimes
* Settlement reached in lawsuit by slain woman's parents

* Illinois politicians seek answers to family separations at border
* 80+ years later, Meredosia woman sees the opening of another new bridge
* Chatham man wins Illinois Bicentennial coin design contest
* Rauner to consider allowing medical cannabis for opioid patients
* Bipartisan work yields gun bills, fate rests with Rauner
* Rauner names Justin Blandford curator of Governor's Mansion
* Rauner names Williamsville woman interim HFS director
* Both Rauner and Pritzker have donated to Mansion renovations
* Both candidates for governor have donated to Mansion renovations
* Illiopolis boy helps push bill to cover hearing aids for kids

* American Airlines to feds: Do not put detained immigrant kids on our flights
* United, American Airlines to feds: Do not put detained immigrant kids on our flights
* Amazon's new health venture gets a high-profile chief
* Koch network starts campaign against Trump's tariffs
* Caterpillar's record profit can’t save it from trade-war carnage

* U.S. support for brutal Central American dictators led to today’s border crisis
* Tanning — the good, the bad and the ugly of this summer ritual
* ‘Creed II’ trailer released — sons of Apollo Creed and Ivan Drago will face off
* Matt Forte asks Bears for job, clarifies: ‘I wasn’t joking’
* Kate Spade Foundation to donate $1M for suicide prevention
* Teen gets maximum juvenile sentence for Endia Martin murder
* The Mouse is chasing the Fox
* NHL Awards 2018: Start time, live stream and what will be announced
* American Airlines asks US not to put migrant children on its flights
* Surprise of a lifetime pike (with video) from the Calumet: Fish of the Week

* Victims testify to Illinois lawmakers on CPS sex abuse scandal: 'I will never be the same again'
* Petition asks CTA to install blue lights to prevent suicide
* Trump says he'll be 'signing something' on detained children
* After tossing 'positive' simulated game, Cubs starter Yu Darvish could begin rehab stint Monday
* United CEO on transporting migrant children separated from parents: 'We want no part of it'
* Defense mulling plea offer in case of girl, 16, charged with mother's murder
* Jet's serving $2 pizzas to celebrate opening of 20th Chicago location
* It's easier to get a mortgage in 2018, according to a new study
* Teen in 'Making a Murderer' asks Supreme Court to take his case
* Allies disappointed by 'big bang' of U.S. walkout from U.N. Human Rights Council

» June 19, 2018 - Full Show
» Lawmakers To Hold Public Hearing Over CPS Sexual Abuse Cases
» Eddie Russell Jr.‘s Family Sues Peoria; Helping Veterans Graduate; Inmates And Mental Health Care
» Morning Shift Live From the Streeterville Farmer's Market
» Eddie Russell Jr.; Veterans in College; Inmates and Mental Health
» June 18, 2018 - Full Show
» Illinois Bicentennial Coin Unveiled
» Austin Texas, Like Chicago, Is Struggling With Pedestrian Safety
» Push To Bridge Gender Wage Gap Continues
» Pediatrics For Transgender Kids; ‘Pay What You Can’ Yoga Studio; Illinois Politics

* Guest View: Addressing the higher cost of compliance with our ADA consent decree
* MArc Thiessen: But her emails? You're dang right her emails.
* Byron York: What Republicans suspect about the FBI's Trump-Russia probe
* Catherine Rampell: We'll be cleaning up Trump's mess for generations
* Illinois politicians seek answers to family separations at border
* 80+ years later, Meredosia woman sees the opening of another new bridge
* Chatham man wins Illinois Bicentennial coin design contest
* E.J. Dionne: GOP moderates fold to Trumpism
* Rauner to consider allowing medical cannabis for opioid patients
* George Will: Congress suffers arthritic knees from genuflecting to presidential power

* 6 foodie things to do before the end of June
* Commander shares vision for ‘Showcase Wing’ at SAFB
* AMC pushes boundaries through innovative officer development programs
* Scott AFB trains for Active Shooter scenario
* Chance of showers, thunderstorms this afternoon
* Washington library director now Peoria library director
* During City Council meeting, Edwardsville mayor again apologizes for blackface photo
* 'A devastating blow': Clinton Walmart to close in July
* Village's Mound Street will be closed for 2 weeks

* Why Illinois will start testing ninth, 10th graders with PSAT
* Instagram unveils new video service in challenge to YouTube
* Say what? Croatia coach: Argentina the 'easiest game for us'
* Chicago teen eligible for parole next April in 2014 killing
* AMC Theatres unveils $20-a-month rival to MoviePass

* Rauner razzes JB the Plumber — Black Caucu...
* Civil Rights Leaders Slam Trump Administra...
* Rep. Gutierrez brings children to House fl...
* Gutierrez gathers children on House floor ...
* Morning Spin: Rauner says US border policy...
* Ramadan & Eid Festivities in Greater C...
* Gay commissioner candidate holds Pride fun...
* Bill would require all American flags to b...

* Morning Spin: Rauner says US border policy......
* Representative wants answers on ICE arrests...
* Illinois attorney general demands end to &......
* Feds give $200K to cleanup contaminated Ch......
* City receives $500K to clean up contaminat......

* Duckworth Statement on Senate Passage of N......
* Duckworth Statement on Trump Administratio......
* Duckworth...
* Trump slammed for policies on immigrant ch......
* Duckworth Statement on Trump's Withdra......

* The play Bull in a China Shop and more of the best things to do in Chicago this week
* Drag queens find unlikely spot to perform—on a 50-foot climbing wall
* The Beachwood Radio Sports Hour #205: Did The Cubs Keep The Right Guys?
* The [Wednesday] Papers
* Walsh resigns from Turning Point USA's advisory board over leadership's devotion to Trump
* Grieving Illinois father to attend White House meeting Friday
* Thorner: Trump works to shrink America's debilitating trade deficit
* What Is Intersectionality?
* World Cup Notebook: Ronaldo Is The King Of The World
* Hitting Left with the Klonsky Brothers. Episode #71. Springfield’s #MeToo Movement and the impending Janus decision.

* New Illinois 104 Bridge Opens in Meredosia
* IL Department on Aging Recognizes World Elder Abuse Awareness Month
* 2017 Wabash County Tentative Multiplier Announced
* Liquor Control Commission Underage Compliance Report for Cook County
* Liquor Control Commission Underage Compliance Report for Will Count

* Facebook Groups may soon charge monthly subscription fees for access
* China’s plastic waste ban will leave 111 million tons of trash with nowhere to go
* Instagram now has 1 billion users worldwide
* ZTE nubia Z18 real-life picture shows no notch, impressive screen-to-body ratio
* Instagram announces IGTV, a standalone app for longer videos
* Inside Detroit’s crumbling train station that Ford plans to transform into a mobility lab
* OPPO Find X launching in Europe with Automobili Lamborghini Edition, too

* Son of White Sox coach excels in pro debut
* Indians' Mike Clevinger: Strikes out 10 in win over White So...
* 2018 AZL White Sox Preview
* 2018 AZL White Sox Preview
* White Sox's Danny Farquhar posts video of himself throwi...
* Junior Legion, White Sox split doubleheaders
* White Sox Minor Keys: June 19, 2018

Main Menu
Pundit rankings
Subscriber Content
Blagojevich Trial
Updated Posts

June 2018
May 2018
April 2018
March 2018
February 2018
January 2018
December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004

Blog*Spot Archives
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005


RSS Feed 2.0
Comments RSS 2.0

Hosted by MCS SUBSCRIBE to Capitol Fax Advertise Here Mobile Version Contact Rich Miller