Pritzker Indicates That IDFPR Will Take Action Against Professional Licensees Who Jump The Gun On Reopening

After over two months on personal and professional lockdown, we all want things to return to some semblance of “normal” at the earliest opportunity, while also remaining cognizant of the continuing public health risks posed by COVID-19. Business owners and service providers, including those who hold professional licenses, are desperate to get back to work and bring in income after sitting idle for what seems like forever.

But we are currently only in phase two of Gov. JB Pritzker’s administration five-phase “Restore Illinois” plan. This means that, depending on the course of the virus in the coming weeks, most businesses will continue to remain shuttered or extremely limited in operations for weeks to come, at minimum.

That’s not good enough for many professionals and business owners, especially in less hard-hit areas Downstate. From bars to salons to retail stores, many folks are defying public health orders and are opening their doors despite the prohibitions against doing so. But if you hold a professional license and start serving customers, clients, or patients in violation of the state’s current rules, you could be putting your professional license at risk.

In recent days, Pritzker has made it clear that he will turn up the heat on those businesses that open prematurely. This includes professional licensees.  At his May 14th daily COVID-19 briefing, Pritzker sternly issued the following warning:

“For the small minority of businesses that choose to ignore the medical doctors and the data and to ignore your legal obligations for the residents of your communities, there will be consequences. Businesses that ignore the executive orders, that ignore the law, will be held accountable by our department of Professional Regulation. There are enforcement mechanisms here that we will be using against them.”

“Practicing Beyond the Scope Permitted By Law”

The Illinois Department of Financial and Professional Regulation (IDFPR) has not as of yet issued any statements relating to the governor’s comments or provided any detail as to what actions they plan on taking, if any, against licensees who provide services to the public in violation of applicable laws and orders. However, it seems clear that they have the power to sanction licensees for such transgressions, including suspending their licenses.

All Illinois professional licensing acts enumerate scores of reasons a licensee can face disciplinary action, as do the administrative rules that apply to each act. Violating applicable laws or orders, or putting the health and safety of the public at risk, generally can constitute bases for sanctions against a licensee.

For example, the administrative rules that govern barbers, hairstylists, nail salons, and other cosmetologists provide that IDFPR “may suspend or revoke a license, refuse to issue or renew a license, or take other disciplinary action based upon its findings of dishonorable, unethical or unprofessional conduct… which is interpreted to include, but is not limited to, the following acts or practices:

  • Engaging in conduct likely to deceive, defraud or harm the public, or demonstrating a willful disregard for the health, welfare or safety of a client or student.  Actual injury need not be established;
  • Practicing or offering to practice beyond the scope permitted by law, or accepting and performing professional responsibilities that the licensee knows or has reason to know that he/she is not competent to perform;

Again, it remains unclear how aggressively IDFPR will pursue licensees who violate COVID-19 restrictions before they are lifted. Hopefully, it will be a moot point soon enough. But until then, licensees should be aware that they may be putting their business or career at long-term risk for short-term gain.

Louis Fine: Chicago Professional License Defense Attorney

This is an unprecedented and challenging time for everyone, including licensed professionals. During this crisis, I remain committed to being a resource, counselor, and advocate for all Illinois licensees as they navigate the rapidly changing legal, regulatory, and practical landscape.

If you have questions or concerns about your professional license or COVID-19, please contact me immediately. Call (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Flying Blind: When Your Professional License Comes Under Attack, Will You Even Know Why?

Under the Fifth Amendment to the U.S. Constitution, no person shall be “deprived of life, liberty, or property, without due process of law.” While the Fifth Amendment only applies to the federal government, the Fourteenth Amendment provides identical protections from unfair deprivation of those things by a state.

The Illinois Department of Financial and Professional Regulation (IDFPR) is a body of the state of Illinois. And your professional license is your property, likely one of your most valuable possessions insofar as your livelihood depends on it. This means that when the IDFPR initiates formal proceedings that could result in the denial, suspension, or revocation of your license, you are entitled to due process of law before they take such actions.

But due process in the context of administrative hearings like those before the IDFPR may not mean what you think it means. In fact, there is a good chance that you won’t receive the same due process protections that are your rights in a criminal prosecution or even in a civil lawsuit. This includes being fully informed of the allegations against you.

Due process involves many substantive and procedural aspects depending on the nature of the proceedings. One such element of due process is the right to know exactly why you are in the crosshairs of prosecutors, a plaintiff, or an administrative body. After all, you can’t properly mount a defense if you don’t know what you are defending yourself against.

In criminal cases, the Sixth Amendment gives defendants the right “to be informed of the nature and cause of the allegation” they face. The Federal Rules of Civil Procedure, as well as Illinois’ rules of civil procedure, contain similar requirements that a plaintiff’s complaint must provide sufficient detail to apprise the defendant of the claim for which they are being sued.  

When a complaint fails to contain enough information to either support a claim or afford the defendant an ability to respond, the defendant can move to dismiss the complaint on that basis.

Licensees facing formal IDFPR disciplinary action also have the right to be adequately advised of the allegations against them and can move to dismiss a complaint if the Department falls short in this regard.

The problem is that the standards that apply in administrative proceedings are much more forgiving to those making the accusations, allowing them to pursue catastrophic sanctions against licensees with minimal detail as to why they are doing so.

Under the Illinois Administrative Procedure Act (APA), agencies like the IDFPR only need to provide the following in their formal complaints regarding the claims against a licensee:

  • A statement of the legal authority and jurisdiction under which  the proceeding is to be held;
  • A reference to the particular sections of the substantive and procedural statutes and rules involved;
  • Except where a more detailed statement is required by law, a short and plain statement of the matters asserted;

Courts have held that the charges filed before an administrative agency like IDFPR “need not be drawn with the precision required of pleadings in judicial actions. They only must be drawn sufficiently so that the alleged wrongdoer is reasonably apprised of the case against him to intelligently prepare his defense.” Siddiqui v. Department of Professional Regulation.

“In determining whether the respondent has adequate notice, a court may consider the discovery and other materials available to the respondent.” Secrest v. Department of Corrections. But this just leads to another due process problem inherent in IDFPR proceedings.

Limited Discovery Rights

The process of investigating, obtaining evidence, and eliciting testimony relevant to a case – whether it be a civil, criminal, or administrative proceeding like IDFPR disciplinary hearings – is known as “discovery.” It’s how the parties find out the facts, whether they help or hurt their respective cases. It is a fundamental aspect of fairness, and if a party is not permitted to fully develop the evidence necessary to support their case or challenge the evidence obtained by the other side, it is an inherently unfair process.

In formal IDFPR disciplinary proceedings, the licensee’s ability to pursue the discovery necessary to defend themselves is extremely limited. In fact, the extent of allowable discovery is determined by the very people who are prosecuting the case. Once the Department provides names of witnesses, including the name of any individual whose complaint may be at the heart of the proceedings, a respondent cannot take their depositions unless the Department’s attorney agrees. If the Department nixes a deposition request, that means the respondent will not be able to confront that witness, learn what his testimony will be, or attack the veracity of his testimony until the actual hearing. That is manifestly unjust and leaves a respondent and their attorney fighting with one arm tied behind their back.

Similarly, if there are witnesses that the licensee wishes to subpoena for testimony, those subpoenas have to be authorized and approved by the Department. Again, the very people seeking to deprive someone of their professional license can also deprive them of their ability to defend themselves.

With the deck so stacked against licensees, it is crucial that you retain an experienced IDFPR defense attorney to protect your rights, your license, and your livelihood if you find yourself in the Department’s sights.

Louis Fine: Chicago Professional License Defense Attorney

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will get you back to your clients and your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Pritzker Executive Order Gives Hospitals and Healthcare Workers Immunity From Civil Liability During COVID-19 Crisis

With Illinois hospitals and healthcare workers overwhelmed on the front lines of the COVID-19 pandemic, and with freshly minted doctors and retired healthcare professionals being called into the fight, Gov. JB Pritzker signed an Executive Order providing them with immunity from civil liability for “rendering assistance” during the crisis.

Executive Order 2020-19, issued on April 1, 2020, directs “all Health Care Facilities, Health Care Professionals, and Health Care Volunteers, as defined in Section 1 of the order, to render assistance in support of the State’s response to” the COVID-19 disaster proclamation. It provides that all such facilities, professionals, and volunteers:

“shall be immune from civil liability for any injury or death alleged to have been caused by any act or omission… which injury or death occurred at a time when [the hospital, professional, or volunteer] was engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak, unless it is established that such injury or death was caused by gross negligence or willful misconduct”

As defined in the order, “health care facilities” include “any government-operated site providing health care services established for the purpose of responding to the COVID-19 outbreak,” such as the field hospital recently established at McCormick Place. The order also covers hospitals, skilled and intermediate care nursing facilities, skilled and intermediate facilities under the ID/DD Community Care Act, skilled mental health rehabilitation facilities, kidney disease treatment centers, emergency medical service providers, outpatient surgery centers, and institutions that provide major medical diagnostic equipment, among others.

Health care professionals for purposes of the order include “all licensed or certified health care or emergency medical services workers” providing services at a health care facility in response to the COVID-19 outbreak or “are working under the direction of the Illinois Emergency Management Agency or the Department of Public Health in response to the Gubernatorial Disaster Proclamations.”

Health care volunteers are defined as volunteers or unlicensed medical or nursing students who are working under IEMA or DPH in response to the governor’s disaster proclamation.

The order cites several statutory bases for the grant of immunity, including the Illinois Emergency Management Agency Act, the Good Samaritan Act, and the Emergency Medical Services Systems Act.

The immunity provided through the governor’s order is just one of several steps that Illinois has taken to make it easier for desperately needed physicians and health care workers to participate in the COVID-19 battle, including expedited healthcare license reinstatement and streamlined out-of-state licensing.

Louis Fine: Chicago Professional License Defense Attorney

This is an unprecedented and challenging time for everyone, including licensed professionals. During this crisis, I remain committed to being a resource, counselor, and advocate for all Illinois licensees as they navigate the rapidly changing legal, regulatory, and practical landscape.

If you have questions or concerns about your professional license or how these variances and other COVID-19 changes affect you, please contact me immediately. Call (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

URGENT COVID-19 Professional Licensing Update

Pritzker Paves Way for Expedited Healthcare License Reinstatement

IDFPR Issues Emergency Variances and Extensions

With the vast majority of Illinois residents working from home – or not working at all – because of the COVID-19 pandemic, the Illinois Department of Financial and Professional Regulation (IDFPR) has announced several variances and extensions that impact all 1.3 million Illinoisans with professional licenses. It is likely that these first five variances, issued on March 18th, 2020, will not be the last.

Healthcare Workers: Expedited Reinstatement and Streamlined Out-of-State Licensing

In fact, at his Saturday, March 21st daily coronavirus press conference, Gov. JB Pritzker issued a plea to retired healthcare workers to join the fight against the virus, indicating that the state would expedite licensing and waive fees for any healthcare professionals seeking reinstatement. “Applications will be processed on an expedited basis, and we’ll be coordinating with hospitals and health care sites throughout the state to deploy these re-enlisted medical professionals to the frontlines,” Pritzker said.

Today, March 23rd, IDFPR announced several actions to implement this directive. Specifically:

  • Physicians whose licenses are expired or inactive for less than three years can temporarily restore their license, for no fee or continuing education requirement, to work under the direction of Illinois Emergency Management Agency (“IEMA”) and the Illinois Department of Public Health (“IDPH”) or in a long-term care facility, hospital, or federally qualified health center (“FQHC”). Application for physician reinstatement can be found here.
  • Physician Assistants whose licenses are inactive or in non-renewed status for less than three years can also temporarily restore their license, for no fee or continuing education requirement, to work under the direction of IEMA and IDPH or in a long-term care facility, hospital, or FQHC. Applications for reinstatement can be found here.
  • Licensed practical nurses, registered professional nurses, advanced practice registered nurses, and respiratory care therapists whose licenses are inactive or in nonrenewed status for less than five years can also temporarily restore their license, for no fee or continuing education requirement, to work under the direction of IEMA and IDPH or in a long-term care facility, hospital, or FQHC. Applications for reinstatement can be found here.
  • Out-of-State physicians, nurses, physician assistants, pharmacists, and respiratory care therapists may practice in Illinois if they are licensed in another state and are in good standing. These licensees must be operating under the authority of IEMA/IDPH or at a long-term care facility, hospital or FQHC, and must meet the standards of care mandated by the respective health care acts. They must provide contact information and dates of arrival and departure on forms provided by IDFPR. This temporary practice approval expires on September 30, 2020. Applications for an Out-of-State Temporary Practice Permit can be found here.

In addition to these healthcare-focused changes, other COVID-19 variances issued by IDFPR include:

Upcoming License Renewal Extensions

Any professional licenses issued by the Department that have renewal dates between March 1st, 2020 through and including July 31st, 2020 are granted an automatic extension to renew to September 30th, 2020.

Continuing Education Obligations

All current licensees whose license renewal deadlines fall between March 1st, 2020 and July 31st, 2020 shall have up to, and including, September 30th, 2020 to complete their continuing education coursework.

The Department is also allowing licensees to complete their continuing education coursework remotely without requiring live attendance. The variance allows for interactive webinars and online distance education courses in addition to currently permitted methods.

Louis Fine: Chicago Professional License Defense Attorney

This is an unprecedented and challenging time for everyone, including licensed professionals. During this crisis, I remain committed to being a resource, counselor, and advocate for all Illinois licensees as they navigate the rapidly changing legal, regulatory, and practical landscape.

If you have questions or concerns about your professional license or how these variances and other COVID-19 changes affect you, please contact me immediately. Call (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Cognitive Decline Among Older Physicians Leading to Increased Screening

For every accomplished physician who dreams of retiring early, there is one who can’t imagine giving up the work that brings them so much personal and professional satisfaction and financial security. Every year, 20,000 American doctors turn 65, but only half of them retire by then. Thousands of physicians continue to practice well past their 70th, even 80th, birthdays. It is estimated that one in every eight practicing doctors in the U.S. is over 65, overseeing 50-70 million office visits and 11 million to 20 million hospitalizations each year.

One In Eight Doctors Over 70 Found to Have Significant Cognitive Deficits

With so many patients receiving care from physicians 65 and up, many hospitals and healthcare systems are also increasing their scrutiny of the cognitive abilities and faculties of these senior clinicians. Major institutions such as Scripps Health Care, Intermountain Healthcare, Stanford Hospitals and Clinics, and Penn Medicine have implemented mandatory cognitive screens for older practitioners.

At Yale New Haven Hospital, for example, all applicants 70 or older who seek reappointment to the medical staff are required to have an objective evaluation of cognitive function as part of the two-year reappointment process. What a recent round of that testing revealed was that one in eight doctors who participated in the screening had cognitive deficits that were likely to impair their ability to practice medicine independently.

Testing or No Testing, Cognitive Issues Raise Professional Licensing Concerns

The wisdom and efficacy of such testing programs is subject to debate, with many arguing that age-based screening is empirically unjustified or inherently discriminatory. Whether subject to required testing or not, however, all older physicians who continue to treat patients later in life will at some point face difficult questions about their abilities and the prudence of continuing to practice.

Confronting issues of cognitive decline, if not impairment, is no easy task, personally and professionally. But recognizing any such concerns is also an ethical imperative. Continuing to practice while suffering from cognitive impairment significant enough to raise concerns about patient safety can subject a physician of any age to disciplinary action and the loss of their license.

The Illinois Medical Practice Act (the “Act”), for example, makes it a basis for suspension or revocation of a license for a physician to practice if they have a:
• Mental illness or disability which results in the inability to practice under this Act with reasonable judgment, skill or safety.
• Physical illness, including, but not limited to, deterioration through the aging process… which results in a physician’s inability to practice under this Act with reasonable judgment, skill, and safety.

The Act also imposes reporting requirements on certain health care executives regarding “impaired” physicians, defined as those who lack the ability “to practice medicine with reasonable skill and safety due to physical or mental disabilities as evidenced by a written determination or written consent based on clinical evidence including deterioration through the aging process or loss of motor skill… of sufficient degree to diminish a person’s ability to deliver competent patient care.”

Doctors, for all their talents, are as vulnerable as anyone else to the inevitable effects of time and aging. While debate may continue as to the best way to identify and remediate instances of age-related cognitive or physical impairment, doctors who practice well into their golden years need to combine their clinical judgment with self-awareness when evaluating the wisdom of continuing to treat patients. Failing to do so puts both patients and professional licenses at risk.

Louis R. Fine: Chicago Physician License Defense Attorney

Throughout my career, I have been protecting the livelihoods and professional futures of physicians and other health care providers before the IDFPR, combining insight and experience with zealous and strategic advocacy.

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will protect your Illinois physician’s license and get you back to your patients and your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

New CPA Licensure Model Looks to “Future-Proof” the Profession

The Internal Revenue Code contains three times as many pages as it did in 1980. There are four times more accounting standards and five times more auditing standards than there were the year Ronald Reagan was elected president, according to the American Institute of Certified Public Accountants (AICPA). During that same 40-year span, technology has fundamentally changed not only the accounting profession but every business and industry that it serves. Nevertheless, CPA licensure standards and requirements have barely changed since the time when fax machines were the epitome of cutting-edge technology.

That appears poised to change. Working with the National Association of State Boards of Accountancy (NASBA), the AICPA has proposed a dramatic reconceiving of what new members of the profession need to know, understand, and demonstrate competence in.

Part of the groups’ CPA Evolution initiative, the proposed standards come after they received over 2,000 comments throughout the latter half of 2019 in response to their release of five guiding principles to inform the creation of a new licensure model last summer. Those comments overwhelmingly supported a rethinking of CPA licensure, including the need for a regime that put a larger emphasis on technology skills and knowledge and required new CPAs to demonstrate strong core competencies in the basics of the profession.

Core + Disciplines

The proposed standards are based on a “core + disciplines” licensure model. The core consists of deep and strong training and testing in accounting, auditing, tax, and technology that all candidates would be required to complete. Each CPA candidate would then select a specific discipline in which they demonstrate even deeper skills and knowledge. Those disciplines include:

  • Tax compliance and planning
  • Business reporting and analysis
  • Information systems and controls

Regardless of which discipline a candidate chooses, the new model will result in full CPA licensure, with the same rights and privileges as any other CPA.

The NASBA and the AICPA believe that the new licensure standards will “future-proof” CPAs as the profession and the technology that it utilizes continue to evolve. The groups expect to finalize the new model this summer, followed by a sustained multi-year effort to implement the new licensure standard across the country. If the proposed core + disciplines model is ultimately adopted, it likely will result in changes to the Uniform Accountancy Act and Model Rules, implementation of new professional education requirements, and the creation of a new Uniform CPA Examination.

We will keep abreast of the progress of this initiative and provide updates as events warrant.

Louis Fine: Chicago CPA License Defense Attorney

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on accountants and other professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.

Task Force Recommends More Breaks, Shorter Shifts, and Fewer Responsibilities for Illinois Pharmacists

Pharmacists are highly trained and knowledgeable professionals. They handle and dispense powerful drugs to vulnerable patients who rely on them for guidance and for their careful filling and dispensing of prescriptions.

But pharmacists are also human. Their jobs come with business pressures, policies, and priorities that may impede their ability to fulfill their duties as they should. These pressures can have tragic consequences when pharmacists feel like they can’t spend the time needed to properly advise patients about their prescription. Overwhelmed and overworked pharmacists may also make any number of critical errors between the time they receive a prescription from a patient or their physician and the time they dispense the prescribed medication.

These problems manifested themselves in a 2016 Chicago Tribune investigation which found that pharmacists at 52% of 255 Chicagoland pharmacies failed to adequately warn customers about drug interactions that could result in adverse health consequences or death.

As a result of this shocking report, the state of Illinois formed a task force to examine and make recommendations on “how to further advance the practice of pharmacy in a manner that recognizes the needs of the healthcare system, patients, pharmacies, pharmacists, and pharmacy technicians.” 

On October 11, 2019, the Illinois Collaborative Pharmaceutical Task Force released its final Report and Recommendations.

An Assembly-Line Process

The report found that pharmacists felt overwhelmed by an assembly-line process at busy pharmacies where they are expected to fill hundreds of prescriptions in a single shift. In turn, pharmacists routinely skipped breaks and meals and became easily distracted due to competing priorities and too many responsibilities relating to the management and operation of pharmacy practices.

 In the report, the task force made the following recommendations:

  • Increasing whistleblower protections for pharmacists and pharmacy technicians who report violations of the Pharmacy Practice Act (the “Act”);
  • Adding new grounds for discipline of licensed pharmacists under the Act, including:
    • Failing to provide “adequate time for a pharmacist to complete professional duties and responsibilities”;
    • Failing to provide “sufficient personnel to prevent fatigue, distraction or other conditions that interfere with a pharmacist’s ability to practice with competency and safety or creates an environment that jeopardizes patient care”;
    • Failing to provide “appropriate opportunities for uninterrupted rest periods and meal breaks”;
  • Adding a new section to the Act entitled “Pharmacy Work Conditions,” which states that:
    • Employers “shall keep and maintain a complete and accurate record of the daily break periods of its pharmacists”;
    • Employers “shall not require a pharmacist, student pharmacist, or pharmacy technician to work longer than twelve (12) continuous hours per day, inclusive of the breaks”;
    • A pharmacist working longer than six continuous hours per day shall be allowed to take a 30-minute uninterrupted meal break and one 15-minute break, as well as one additional break if working 12 hours per day.
    • No pharmacist shall work longer than five hours per day without the opportunity to take an uninterrupted meal break.

A bill currently pending in the Illinois legislature would incorporate the task force’s recommendations into the Pharmacy Practice Act. The bill also includes new provisions for disciplinary action, including written warnings or fines against the pharmacy, pharmacist, and pharmacist-in-charge that would be posted online and could not be expunged, as well as possible license revocation for repeat violations. The bill is expected to become law during the current legislative session.

Louis R. Fine: Chicago Pharmacist License Defense Attorney

Throughout my career, I have been protecting the livelihoods and professional futures of pharmacists and other health care providers before the IDFPR, combining insight and experience with zealous and strategic advocacy.

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will protect your Illinois pharmacist’s license and get you back to your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Telemedicine and Physician Licensing: How the 19th Century is Holding Back the 21st

teleAdvancements in technology almost always outpace efforts by legislators and regulators to address the new realities, issues, and concerns that arise from such innovations. Laws that made sense even a short ten years ago can quickly become anachronistic, if not counterproductive.

Such is the dilemma facing physicians and healthcare providers who see telemedicine as a key way to address a growing physician shortage, especially in rural and other underserved areas. That shortage is expected to grow to 120,000 doctors by 2030, according to a 2018 report by the Association of American Medical Colleges.

51 Different Licenses

The problem is that while the internet knows no borders, medical licenses do. Increasingly, the inability of physicians to provide remote care to patients in other states where they are not licensed is holding back telemedicine’s potential and unnecessarily denying patients access to quality healthcare.

Physicians must be licensed in each state where their current and future patients are located, so a doctor wanting to counsel patients through telemedicine would need to obtain and stay compliant with licensing requirements in up to 51 jurisdictions governed by 51 different medical boards imposing 51 different standards, conditions, and rules.

The current state-based medical licensing regime traces its roots back to the 19th Century, and the system is clearly showing its age. While effective and robust licensing is still essential in ensuring quality of care, the lack of license reciprocity and portability between states is now more of a hindrance to providing such care than a help.

That is why already active efforts to change medical licensing to facilitate telemedicine continue to gain steam. The most successful of these efforts to date has been the Federation of State Medical Licensing Board’s (FSMB) work establishing the Interstate Medical Licensure Compact. Physicians in good standing can freely practice in any of the states participating in the compact so long as they possess a “full and unrestricted” license in their state of principal license (SPL). To date, only 24 states, including Illinois, have joined the compact.

A Uniform, Nationwide System

This still leaves too many doctors and too many patients locked out of telemedicine. As noted by the authors of a recent article in the American Journal of Managed Care, “The impact of restricting telemedicine falls hardest on poor patients, the uninsured, and those who rely on state Medicaid programs, many of whom lack access to reliable transportation and cannot travel across state lines to see specialists.”

That is why the FSMB and other telemedicine advocates have advanced several proposals to enhance license portability and reduce regulatory barriers to telemedicine. They all are based around a mutual recognition scheme whereby states honor each other’s medical licenses based on models that have been successfully used in Europe and Australia and by the Veterans Health Administration, US military, and US Public Health Service.

Adoption of a nationwide licensing scheme would be facilitated by establishing consistent standards for using and regulating telemedicine services, the sharing of malpractice, medical error, and license cancellation or suspension information between states, and other federal and state-level reforms.

Any efforts that would streamline the physician licensing process while at the same time increasing access to healthcare for those who need it most should be encouraged.

Louis R. Fine: Chicago Physician License Defense Attorney

Throughout my career, I have been protecting the livelihoods and professional futures of physicians and other health care providers before the IDFPR, combining insight and experience with zealous and strategic advocacy.

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will protect your Illinois physician’s license and get you back to your patients and your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Illinois Adult Use Cannabis Dispensary Applications Are Ready. Are You?

pot appIf you want to obtain a license to own and operate an Illinois adult use cannabis dispensary, your time has come. On October 1st, the Illinois Department of Financial and Professional Regulation (IDFPR), which is charged with implementing and administrating multiple aspects of the state’s adult use marijuana program under the Cannabis Regulation and Tax Act (the “Act”), made available the application form for new Conditional Adult Use Dispensing Organization Licenses.

These licenses, applications for which must be hand-delivered to the Department’s Chicago offices no later noon on January 2, 2020, are “conditional” in that they do not allow the licensee to purchase or sell marijuana until they have found a suitable location (which they must do within 180 days), passed an inspection by IDFPR, and paid the registration fee. All available conditional licenses will be issued no later than May 1, 2020.

Once these requirements are met, the Department will award the licensee an Adult Use Dispensing Organization License, which authorizes the holder to legally obtain and sell cannabis pursuant to the Act.

In a previous post, I discussed application fees, the number of licenses that the Department will issue, the criteria that the Department will use in choosing licensees, and general ownership requirements. Now that applications are available for preparation and completion, let’s discuss what is involved in the application itself.

In short, a lot.

Hundreds of Pages of Supporting Documentation Required

The application form itself is all of one page long, but the supporting documentation that must be gathered, prepared, and submitted is voluminous and comprehensive. This isn’t just a matter of making copies of existing records; applicants must develop detailed plans covering several aspects of dispensary operation. IDFPR will not consider any application that lacks the required exhibits.

In addition to the fee and Principal Officer application form, applicants must submit a:

  • Table of Organization, Ownership and Control and Business Operating Agreements
  • Dispensing Organization Agent Training and Education Plan
  • Purchaser Education Plan
  • Business Plan
  • Recalls, Quarantine, and Destruction Plan
  • Security Plan
  • Inventory Monitoring and Recordkeeping Plan
  • Proposed Floor Plan
  • Operating Plan
  • Plan for Community Engagement
  • Diversity Plan
  • Anonymized Document or Resume for Each Proposed Principal Officer (demonstrating education, knowledge, or experience in the cannabis industry)
  • Financial Information
  • Evidence of Status as a Social Equity Applicant, if applying as a Social Equity Applicant
  • Labor and Employment Practices Plan (optional)
  • Environmental Plan (optional)
  • Evidence of Status as an Illinois Owner (optional)
  • Evidence of Status as a Veteran (optional)

For each of the foregoing exhibits, IDFPR has established detailed and specific requirements as to what applicants need to include. Given how much is involved in preparing a dispensary application, January 2, 2020 doesn’t seem that far away. Aspiring Illinois cannabis entrepreneurs need to fire up their efforts immediately, if they haven’t already done so.

Need Help With Your Illinois Adult Use Cannabis Dispensary Application? Call Me Today.

If you are considering entering the legal cannabis industry in Illinois and have questions about the IDFPR application process and criteria, please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Minor Licensing Violations Could Cost Physicians Medicare Billing Privileges Under Proposed Rule

For phmedicareysicians and other eligible health care professionals, Medicare enrollment and billing privileges are invaluable and lucrative assets that can form a substantial portion of their revenues, allow them to treat more patients, and expand their career opportunities. Losing those privileges can be a catastrophic blow to a practice.

But a new rule proposed by the Centers for Medicare & Medicare Services (CMS) would dramatically expand CMS’ authority to deny or revoke Medicare privileges, allowing it to substitute its judgment for that of state licensing boards and impose such catastrophic sanctions even for infractions a state board deems relatively minor.

On August 14, 2019, CMS issued what it called a “major proposed rule” addressing a wide range of changes to the Medicaid physician fee schedule and other aspects of participation in the program. If it becomes final, all 808 pages of the proposed rule would represent the most substantial modification to program enrollment and eligibility since the establishment of the regulations in 2006.

CMS Can Impose Harsher Sanctions Than State Boards

In the proposed rule, CMS notes that, at the moment, it cannot make Medicare eligibility and renewal decisions based solely on state board disciplinary actions:

“We currently lack the legal basis to take administrative action against a physician or other eligible professional for a matter related to patient harm based solely on… an administrative action (excluding a state medical license suspension or revocation) imposed by a state oversight board,” such as the Illinois Department of Financial and Professional Regulation (IDFPR).

The new rule would grant CMS such authority and “would permit us to revoke or deny, as applicable, a physician’s or other eligible professional’s… enrollment if he or she has been subject to prior action from a state oversight board… with underlying facts reflecting improper physician or other eligible professional conduct that led to patient harm.”

84 Fed. Reg. at 40723.

As a practical matter, the rule gives CMS the power to review a state board’s conclusions and sanctions and then make its own determination as to whether the physician’s or other professional’s conduct warrants exclusion from Medicare.

This can lead to a situation in which IDFPR deems an infraction to be relatively minor and perhaps deserving of a “slap on the wrist” while CMS could decide to impose a “death sentence” in terms of Medicare eligibility, a conflict CMS readily acknowledges:

“We recognize that situations could arise where a state oversight board has chosen to impose a relatively minor sanction on a physician or other eligible professional for conduct that we deem more serious. We note, however, that we, rather than state boards, is ultimately responsible for the administration of the Medicare program and the protection of its beneficiaries. State oversight of licensed physicians or practitioners is, in short, a function entirely different from federal oversight of Medicare. We accordingly believe that we should have the discretion to review such cases to determine whether, in the agency’s view, the physician’s or other eligible professional’s conduct warrants revocation or denial.”

Id.

Making matters worse for sanctioned physicians, a decision by CMS to revoke Medicare privileges results in an automatic cross-termination of participation in Medicaid and other federal payer programs.

The public comment period for the proposed rule closes on September 27, 2019. If the rule is enacted, it becomes that much more critical for physicians facing IDFPR investigations or disciplinary proceedings – even for a “minor” infraction – to retain experienced professional license defense counsel.

Louis R. Fine: Chicago Physician License Defense Attorney

Throughout my career, I have been protecting the livelihoods and professional futures of physicians and other health care providers before the IDFPR, combining insight and experience with zealous and strategic advocacy.

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will protect your Illinois physician’s license and get you back to your patients and your career.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.