Category: Physician and Health Care IDFPR

Illinois Law Provides Pharmacists With Important Protections Against Unreasonable and Unsafe Working Conditions

Posted on by Louis Fine

Even though pharmacists are a critical part of the continuum of care, and despite the strains of the pandemic falling on them just as hard, if not harder, than other healthcare providers, many feel that their challenges and concerns are not afforded the same respect or attention as other practitioners. And they have had enough. Due to understaffing, unreasonable employer demands, poor working conditions, and performance-based metrics that are antithetical to the delivery of quality care, pharmacists have been leaving their chosen profession in droves. This toxic combination has created a nationwide shortage of qualified pharmacists, causing pharmacies to limit their hours and making it harder for patients to access their services and fill their prescriptions.

Illinois pharmacists are not immune from the burnout that has driven so many of their colleagues out of their careers. But they do have one advantage over pharmacists in most other states. In recent years, Illinois took an important step to address pharmacist burnout through legislation designed to improve their working conditions, limit their hours, and otherwise protect them from unreasonable demands. Pharmacies and employers that violate these protective provisions face potential licensing problems and other serious consequences.

Burnout Driving Pharmacists Out, Leaving Behind a Staffing Crisis

The latest National Pharmacy Workplace Survey from the National Alliance of State Pharmacy Associations (NASPA) found “increasing demands, harassment, and bullying by patients/consumers experienced by pharmacy staff” and that “the feelings of not being heard or valued are risk factors that can cause stress leading to occupational burnout.”

Pharmacists were feeling the burn even before the pandemic began, with 91% of full-time chain pharmacists seeing their workloads as “excessive” and 69% of full-time pharmacists reporting that their workloads had “increased” or “greatly increased” compared to the year before (2018), according to the 2019 National Pharmacist Workforce Study. Additionally, many large chains made compensation and advancement dependent on speed and meeting targets like filling a certain number of prescriptions each day, increasing stress along with the risk of serious medication errors. When COVID testing, vaccination, and related responsibilities were piled on top of this already heavy workload, the profession reached a tipping point, creating the dire shortage facing the country today.

A summer 2022 survey by the National Community Pharmacists Association found that 76% of independent community pharmacies were having a “difficult time” filling staff positions. Pharmacy behemoths CVS and Walgreens are also feeling the impact, with both chains announcing cutbacks in hours due to a lack of qualified staff.

Illinois Puts Limits On Pharmacists’ Hours and Workloads

In 2020, Illinois amended the Pharmacy Practice Act to specifically address poor working conditions and unreasonable demands placed on pharmacists in the state. Specifically, Section 15.1 of the Act provides that, except in an emergency:

  • The workday for a pharmacist, student pharmacist, and pharmacy technician shall not exceed 12 hours, including breaks;
  • If a pharmacist has to work six continuous hours or longer in a day, they will be allowed to take one 30-minute uninterrupted meal break and one 15-minute break during the day;
  • If a pharmacist has to work 12 continuous hours or longer in a day, they will be allowed to take one 30-minute uninterrupted meal break and two 15-minute breaks during the day; and
  • A pharmacist entitled to a meal break cannot be required to work more than five continuous hours (So, a pharmacist who is required to work 6 hours or longer cannot be given a meal break during the last half hour of their shift).
  • If a pharmacy or a building where a pharmacy is located has a private break room, the pharmacist must be given access to the break room and be permitted to have breaks in that room. The pharmacy can close while the pharmacist is on break, but it is not required to do so. If the pharmacy does not close, the pharmacist must remain in the pharmacy or establishment where the pharmacy is located during the break for emergencies.

Consequences For Non-Compliant Pharmacies, Whistleblower Protections For Reporting Pharmacists

A licensed pharmacy that disregards the foregoing requirements or otherwise imposes unreasonable working conditions on pharmacists faces the loss of its license, fines, and other consequences. Specifically, a pharmacy is subject to license revocation and other disciplinary action if it:

  • Fails to provide a working environment for all pharmacy personnel that may jeopardize the health, safety, or welfare of patients;
  • Fails to employ 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;
  • Fails to provide appropriate opportunities for uninterrupted rest periods and meal breaks;
  • Fails to provide adequate time for a pharmacist to complete professional duties and responsibilities, including drug utilization review, immunization, counseling, prescription verification, and all other duties as listed in the Department rules;
  • Introduces or enforces external factors, such as productivity, production quotas, or other programs against pharmacists, student pharmacists, or pharmacy technicians, to the extent that they interfere with the ability to provide appropriate professional services to the public.

Pharmacists who report violations of the law regarding working conditions are protected from retaliation and can avail themselves of the remedies provided in the Illinois Whistleblower Act.

If you are a pharmacist or pharmacy with concerns about compliance with Illinois law or licensing issues related to working conditions or other obligations, please call me at (312) 236-2433 or fill out my online form to arrange for your free initial consultation.

Keep Quiet, Lose Your License? Physicians’ Duty to Report a Colleague’s Sexual Misconduct

Posted on by Louis Fine

It’s been five years since the #MeToo movement spurred a long-overdue reckoning with sexual harassment and misconduct in the workplace and elsewhere.  A long and infamous line of high-profile individuals have since found their careers derailed and reputations destroyed by allegations of inappropriate and often illegal behavior. In most of these cases, the focus is justifiably on the alleged perpetrators of these abhorrent actions. But many organizations and professions have also come under scrutiny for their tacit complicity in allowing such conduct to go unchecked or unreported.  

Specifically, others who may have been aware of misconduct turned away or failed to take action which could have prevented further abuses and spared other victims. For physicians and other medical professionals who learn of a colleague’s misconduct  – sexual or otherwise – the failure to report such wrongdoing is not just a moral failure. It can be a breach of professional ethics that threatens their professional licenses as well.

Ethical Obligation to Report Misconduct

The duty to report misconduct within the medical profession is often the only way such transgressions can get the attention of professional licensing boards such as the Illinois Department of Professional Regulation (IDFPR) as well as law enforcement. As the Federation of State Medical Boards (FSMB) put it in its sweeping 2020 Report and Recommendations on Physician Sexual Misconduct:

“In a complaint-based medical regulatory system, it is… essential that patients, physicians and everyone involved in healthcare speak up whenever something unusual, unsafe or inappropriate occurs. All members of the healthcare team, as well as institutions, including state medical boards, hospitals and private medical clinics have a legal as well as an ethical duty to report instances of sexual misconduct and other serious patient safety issues and events. This duty extends beyond physician-patient encounters to reporting inappropriate behavior in interactions with other members of the healthcare team, and in the learning environment.”

Similarly, the Council on Ethical and Judicial Affairs of the American Medical Association (AMA) admonishes that, “A physician should expose, without fear or favor, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.”

However, while the Illinois Medical Practice Act allows for physician reporting of a colleague’s unethical behavior, it neither requires it nor makes a failure to report a basis for disciplinary action.  It provides that licensed physicians “may report to the Disciplinary Board any information the physician… may have that appears to show that a physician is or may be in violation of any of the Act’s provisions.”

But just because reporting sexual misconduct is not mandated under the Act doesn’t mean that failing to report physician sexual misconduct isn’t an ethical violation. “The obligation to report incompetent or unethical conduct that may put patients at risk is recognized in… the ethical standards of the profession,” according to the AMA.

The FMSB was more strident in its 2020 report, concluding that the failure to report sexual misconduct should result in disciplinary action: “Physicians who fail to report known instances of sexual misconduct should be liable for sanction by their state medical board for the breach of their professional duty to report.”

AMA Reporting Guidelines

The AMA has set forth guidelines for how physicians should respond to and report information about a fellow doctor’s patient misconduct. Physicians who become aware of or strongly suspect that conduct threatens patient welfare or otherwise appears to violate ethical or legal standards should:

  • Report the conduct to appropriate clinical authorities in the first instance so that the possible impact on patient welfare can be assessed and remedial action taken.
  • Report directly to the state licensing board when the conduct in question poses an immediate threat to patients’ health and safety or violates state licensing provisions.
  • Report to a higher authority if the conduct continues unchanged despite initial reporting.
  • Protect the privacy of any patients who may be involved to the greatest extent possible, consistent with due process.
  • Report the suspected violation to appropriate authorities.

Regardless of the language contained or not contained in licensing statutes, professionals of all stripes should seize the moment and no longer remain silent when they become aware of harassment or misconduct. While the damage done to victims of sexual misconduct is exponentially greater, the damage to your professional reputation and career could be catastrophic if it is discovered that you were tacitly complicit in allowing such misconduct to continue. 

Louis Fine: Chicago Physician 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 professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations against physicians, 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.

Saving Careers: A Conversation With Chicago Professional License Defense Lawyer Louis Fine

Posted on by Louis Fine

“Careers are on the line, livelihoods are at stake, and reputations hang in the balance. I never lose sight of that.”

When you ask attorney Louis Fine to describe his practice, his initial response isn’t to tell you about the professional license defense work that has been at the heart of his distinguished career. He doesn’t start by talking about the countless divorces he has handled or the business and real estate deals he has closed. His initial response is much more succinct.

“I help people who need help.”

It’s an apt description for someone who has made assisting others the defining characteristic not only of his law practice, but also of his volunteer and philanthropic work in the community. It’s also a description born of necessity.

“When my kids were very young, they would ask me what it was that I did as a lawyer,” Louis says. “They could understand that a fireman fights fires, that an engineer drives a train, or that an astronaut goes into space, but they couldn’t wrap their heads around what exactly a lawyer was. So I thought about the essence of what I do, and it really comes down to helping people work through difficult problems or achieve a personal or professional goal.”

Protecting Careers and Livelihoods

Louis has devoted a significant amount of his practice to protecting the careers and livelihoods of licensed professionals in Chicago and throughout Illinois. He understands that threats to someone’s license to practice or engage in their chosen career strike at the essence of who they are.

“Whether you’re a physician, an accountant, a hairstylist, or a real estate appraiser, you invested a lot of blood, sweat, and tears in your career,” he says. “It’s not just the years of education and training or the tens or hundreds of thousand dollars in student loans. And it’s not just about being able to make a living. Your career can define who you are and how people perceive you, and how you perceive yourself.”

And when a licensed professional sees an envelope in the mail from the Illinois Department of Financial and Professional Regulation (IDFPR) advising that they are under investigation or may be subject to disciplinary action, all of that hangs in the balance. It can be easy to panic.

“I often get a call right after someone gets that dreaded letter or notice from IDFPR,” Louis says. “There is a lot of understandable anxiety and concern, often mixed with righteous indignation or disbelief.”

He says that in addition to reviewing the complaint and gathering the facts, his initial task is helping clients take a breath and explaining to them what is happening – and what isn’t.

“Things are always scarier when you don’t understand what’s going on. I try to put things in context and provide clients with some peace of mind that, while IDFPR actions must be addressed seriously, it isn’t necessarily the catastrophe it may appear to be,” he says.

“In any career where you are serving others, you’re going to make someone unhappy. There will always be at least one patient or client who thinks you have wronged them or that you were incompetent or worse,” Louis advises. “Many of these complaints involve nothing of substance. That is why many if not most IDFPR complaints and investigations are resolved either after an informal hearing or without any action being taken at all.”

Understanding IDFPR Inside and Out

However, Louis knows better than anyone that when the IDFPR believes that a licensed professional has engaged in misconduct and launches an investigation or commences disciplinary proceedings, things can be deadly serious.

He also knows how and why the IDFPR makes the decisions and takes the actions they do. That’s because he used to be the one making the decisions and taking the actions.

Louis served as IDFPR’s Chief Prosecuting Attorney and as an administrative law judge for many years, giving him unique insight into how the board handles licensure issues and how to navigate the process in a way that is most likely to lead to a positive outcome for a licensee. His experience investigating and prosecuting licensed professionals also made him appreciate how unfair the disciplinary process can sometimes be.

“The IDFPR’s procedural rules and practices put licensees at a sometimes crippling disadvantage in disciplinary proceedings,” Louis says. “For example, a 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.”

The other big problem, according to Louis, is that the hearing officers presiding over disciplinary proceedings are not independent.

“They are employed and paid by the IDFPR, just as the prosecuting attorneys are,” he notes. “Whether a hearing officer is consciously biased or not, the fact that their paychecks are coming from the very same folks who are seeking to discipline a respondent creates an implicit conflict of interest and calls into question the fairness of the entire process.”

Despite these challenges, Louis has successfully defended countless Illinois professionals, protecting their licenses and helping them move forward with their careers and lives. And as Louis will be the first to tell you, helping is what his job is all about.

Forming a Dental Partnership? Make Sure To Address These 4 Key Issues

Posted on by Louis Fine

Solo dental practitioners get to call all the shots, run their practice as they like, and control their own destiny. But going it alone also means paying all the bills, covering all overhead, assuming all management responsibilities, and competing with other practices that may have greater resources and reach. That is why many solo practitioners ultimately decide to join forces with one or more colleagues and form a dental partnership.

But for a dental partnership to succeed, the partners need to start on the right foot and be on the same page. As with marriages, the relationship between dental partners can deteriorate if they have different understandings of their roles and responsibilities, fail to communicate expectations clearly, or otherwise disagree on the management or direction of the practice. While no document can guarantee that a dental partnership will last forever, a well-crafted dental partnership agreement prepared with the assistance of experienced counsel can minimize the likelihood and fallout from conflicts and maximize the potential for a long and lucrative professional relationship.

As you contemplate your prospective partnership agreement, pay particular attention to these four key provisions:

Management Rights

Not all partnerships and not all partners are created equal. While an equal say in management may work for some, it may not be desired or optimal in other circumstances, such as when a more senior dentist joins forces with a more junior one.

A partnership agreement should specify who has the authority to make decisions, what decisions they are empowered to make, and how and when they can delegate decision-making authority. The agreement may also stipulate that certain, more significant management decisions require the approval of all or the majority of partners.

Non-Competition and Non-Solicitation Provisions

As much as a dental partnership may benefit all partners today, tomorrow may see one of the dentists decide to move on to greener pastures. When that happens, the remaining partner will want to ensure that those pastures don’t fill up with their existing patients and employees.

That is why dental partnership agreements frequently include non-competition and non-solicitation provisions. However, these provisions must be carefully tailored and not be overly broad or oppressive. Courts do not generally favor contractual provisions that limit the ability of someone to earn a living in their chosen profession, so judges carefully scrutinize these clauses, and deem them unenforceable if they are overly broad in scope or too vague.

Admission of New Partners

The partnership agreement should set forth if, how, and when new dentists may join the practice. Such provisions may include stating a minimum capital contribution that a prospective partner must make to join the practice or clarifying whether the decision to admit a new partner is subject to vote by the other partners. To ensure the new partner meets the partnership’s standards and qualifications, the agreement may include representations and warranties made by the incoming partner about their licensure status, malpractice history, and other matters.

Exiting the Practice

As noted, partners may decide to move on. The agreement should include provisions that establish a clear, orderly, equitable way for a dentist to leave the partnership. The contract may address whether a partner may dissociate before a set period and which events may be grounds for dissociation. It can also provide a buyout formula when a partner decides to leave according to the terms of the agreement or liquidated damages or other remedies if a partner dissociates in violation of the partnership agreement.

Serving The Dental Community For Decades

Over the past several decades, I have provided counsel and guidance for the dental community and other professionals licensed by the Illinois Department of Financial and Professional Regulation on a wide range of legal matters. If you are considering entering into a dental partnership, please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation.

You Can’t Please Everyone: What To Do – and What NOT To Do – When You Receive an Illinois Professional License Complaint

Posted on by Louis Fine

Illinois licensed professionals of all stripes – from physicians and accountants to hairstylists and mortgage brokers – work with countless clients and patients throughout their long careers. As a Chicago professional license defense attorney, I’ve done the same. If you are one of those professionals, you are probably great at what you do, skilled and ethical, and with a long roster of folks singing your praises and leaving you glowing reviews.

But you can’t please everyone.

It is almost inevitable that one of the people you’ve served over the years will have some gripe about their experience with you, whether justified or not. That means the odds are pretty good that you will open your mail one day to find an unexpected and unwelcome letter from the Illinois Department of Financial and Professional Regulation (IDFPR) advising you that someone has lodged a professional license complaint against you and/or that you are under investigation.

Don’t Make a Potentially Bad Professional License Situation Potentially Worse

Such a letter can make bills and junk mail look good. A notice from the IDFPR can get your heart racing and blood boiling. After all, everything you’ve worked so hard for is under attack. Adverse action by the IDFPR can result in the suspension or revocation of your license, threaten your Illinois professional license renewal, and destroy your career, your livelihood, and your reputation.

When you get an IDFPR notice, you have a critical choice to make. You can react emotionally and angrily; with righteous indignation at the complaining client/patient or the IDFPR. But acting out of emotions such as fear or anger can only make the situation worse and create problems that would not have existed had you only proceeded in a calm, thoughtful, and responsive way. So, keep these four tips in mind if and when you find out that the IDFPR is investigating a professional license complaint against you:

  1. Keep Calm and Carry On

While your heart may start beating faster when you get a professional license complaint or notice of investigation, don’t panic. One, panic and irrationality rarely lead to good things and wise decisions. More importantly, panic is likely unwarranted. Many if not most IDFPR complaints and investigations are resolved either after an informal hearing or without the Department taking any action at all. Not that you shouldn’t take the matter seriously. You should absolutely retain an experienced Illinois professional license defense lawyer and respond in a complete and timely manner.

  1. Ignorance Isn’t Bliss

As unfounded as you believe the complaint or the IDFPR’s basis for investigating you may be, ignorance is not bliss. Failing to respond – or responding in a dismissive and contemptuous manner – just because you believe the matter to be bogus will create problems where perhaps none existed. Don’t angrily crumple up the letter or shove it in your desk drawer. Just failing to respond in a timely fashion to an initial IDFPR inquiry could subject you to discipline, even if there was no merit to the underlying complaint.

  1. Bite Your Tongue

One of the worst things you can do is respond directly to or take any adverse action against the person who filed the complaint. In particular, do not under any circumstances take out your frustrations online or get involved in a social media spat with the complainant about their allegations and issues. For licensed physicians especially, breaches of online professionalism standards have been the subject of increasing scrutiny and disciplinary action by state medical boards.

  1. Hire an Experienced IDFPR Defense Attorney

The policies and procedures that govern IDFPR investigations, hearings, and imposition of sanctions are unique, complicated, and often unwritten and informal. The rules can also be terribly unfair. Even skilled and experienced attorneys who do not practice before IDFPR can find themselves at a loss when dealing with licensure issues. You are no doubt intelligent and know your profession well, but don’t make the mistake of thinking that you can or should handle an IDFPR investigation on your own. Your reputation, career, and livelihood are at stake. Defending yourself before the IDFPR is a gamble you can’t afford. Call an experienced Chicago professional license defense attorney as soon as possible after you’ve received that dreaded letter, and let them ease your fears and take the steps necessary to protect your license and your future.

Louis Fine: Chicago Professional License Defense Lawyer

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 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 when Illinois professional licensing issues arise.

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.

No Time to Roll The Dice: 3 Reasons You Need a Professional License Defense Attorney When IDFPR Comes Calling

Posted on by Louis Fine

If you hold a professional license in Illinois, the Illinois Department of Financial and Professional Regulation (IDFPR) holds your career in its hands. If they deny your Illinois professional license renewal, notify you of a complaint, launch an investigation, or start disciplinary proceedings against you, everything is on the line.

Everything you worked so hard for, everything you studied for, every bit of time and energy and money you’ve invested in your career depends on the decisions these regulators make. And if you attempt to navigate the complex and often unfair IDFPR investigative and disciplinary process on your own without the help of an Illinois professional license defense lawyer, you are taking a huge gamble with your future.

Unfortunately, many otherwise intelligent and prudent professionals take that gamble only to later regret it when their Illinois professional license renewal is denied or the IDFPR takes disciplinary action that results in the suspension or loss of their license or other damaging sanctions.

To take from the movie The Untouchables, going up against the IDFPR without an experienced Illinois professional license defense attorney in your corner is like bringing a knife to a gunfight.

Here are three reasons you need to hire a professional license lawyer when the IDFPR threatens your career:

  1. You Don’t Know What You Don’t Know

The policies and procedures that govern IDFPR license applications and renewals, investigations, hearings, and imposition of sanctions are unique, complicated, and often unwritten and informal. Even skilled and experienced attorneys who do not practice before IDFPR can find themselves at a loss when dealing with licensure issues. You may be the target of a completely meritless client/patient complaint; you may have all of the facts on your side and the documentation or witnesses to prove it. But all of your arguments and evidence may never see the light of day if you don’t know the proper way to present your case.

  1. You May Blow Your Chance To Resolve Things Quickly and Favorably

Your lack of knowledge of the process and how IDFPR prosecuting attorneys think and work also means you may miss out on opportunities to resolve your case sooner, cheaper, and with a more positive outcome. The ability to effectively reach a negotiated resolution with prosecutors depends on understanding the range of consequences, the risks involved in proceeding to a full hearing, and the likelihood of obtaining a successful result. Unless you have had extensive experience defending your professional license (which is hopefully not the case), you will be at an overwhelming disadvantage in negotiations with IDFPR prosecuting attorneys.

  1. The Deck Is Stacked Against You

Even worse, the process can be manifestly unfair and stacked against you. Experienced and aggressive prosecutors have your license in their sights, and the hearing officer who will determine your fate is not necessarily independent and unbiased. IDFPR hearing officers are employed and paid by the IDFPR, just as the prosecuting attorneys are. Whether a hearing officer is consciously biased or not, the fact that their paychecks are coming from the same folks seeking to discipline a respondent creates an implicit conflict of interest and calls into question the fairness of the entire process.

You are no doubt intelligent and know your profession well, but don’t make the mistake of thinking that you can or should handle an IDFPR investigation on your own. Your reputation, career, and livelihood are at stake. Now is not the time to take a flyer and hope for the best.

Louis Fine: Chicago Professional 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 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 when Illinois licensing issues arise.

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.

IDFPR Puts Doctors On Notice: Spread COVID-19 Misinformation Or Quack Treatments And We Will Come After Your License

Posted on by Louis Fine

As I discussed in a post a few months back, physicians across the country are being called out for spreading misinformation and disinformation regarding COVID-19, vaccines, and the efficacy of other preventative measures such as masking. During the summer, the Federation of State Medical Boards (FSMB) issued a stern admonition about the misinformation epidemic among members of the profession, stating unequivocally that “Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license.”

Recently, the Illinois Department of Financial and Professional Regulation (IDFPR) explicitly confirmed that they see physician disinformation about COVID-19 as a serious ethics violation warranting equally serious disciplinary action. Illinois doctors who peddle information about the virus or vaccines that is not based on sound science risk losing their professional licenses and careers.

On November 5, 2021, IDFPR issued its “Notice that Advice or Treatment Regarding Covid-19 Must Conform with Evidence-Based Medicine and Standards of Care.” It began by reminding physicians that, as a general matter, “any advice or treatment provided to a patient must conform with evidence-based medicine and standards of care and that failure to do so may subject the individual to disciplinary action under the Medical Practice Act.”

The Department further noted that “Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud or harm the public” is a violation of the Medical Practice Act at 225 ILCS 60/22(A)(5). IDFPR makes it clear that it sees COVID-19 misinformation or the recommendation of unproven and unapproved treatments as conduct “likely to deceive, defraud, or harm the public.”

The notice calls out three specific forms of COVID-related misconduct that it views as possible ethical violations:

Issuing Mask Exemptions For Non-Patients

As kids returned to school this fall in districts with mask requirements, reports emerged about physicians issuing medical exemption notes to parents of schoolchildren with whom they did not have a doctor-patient relationship. For example, one Pennsylvania doctor who is vocally anti-mask is facing disciplinary action for posting a stock, four-page exemption letter on the homepage of his practice’s website that invited people to “print your own copy.”

IDFPR stated unequivocally that such conduct is a violation of the Medical Practice Act:

“A physician or other licensed healthcare professional who provides a mask exemption to an individual with whom they do not have a clinician-patient relationship and for whom they have not provided a medical diagnosis that justifies a mask exemption as put forth in the CDC guidelines, is in violation of their respective licensing Act and may be subject to disciplinary action by IDFPR.”

Ivermectin And Other Non-FDA Approved Treatments

Since the pandemic began, people from TV preachers to conspiracy theorists to herbalists to twice-impeached former presidents have peddled all kinds of snake oil for preventing or treating COVID-19. This includes the horse deworming medication Ivermectin.

Noting that the CDC has issued an official health advisory regarding severe illness associated with the use of products containing Ivermectin to prevent or treat COVID-19, IDFPR stated that  “A physician or other licensed healthcare professional who prescribes Ivermectin in a manner inconsistent with the CDC’s recommendations may be subject to discipline.”

COVID-19 Misinformation By Physicians

Finally, IDFPR voiced its strong support for FSMB’s statement on misinformation relating to COVID-19 as quoted above. It also announced that it would follow the joint statement from the American Board of Family Medicine, the American Board of Internal Medicine, and the American Board of Pediatrics about COVID-19 misinformation by physicians in which they concluded that “providing misinformation about a lethal disease is unethical, unprofessional and dangerous.”  That statement also said that the groups “want all physicians certified by our Boards to know that such unethical or unprofessional conduct may prompt their respective Boards to take action that could put their certification at risk.”

The IDFPR also encourages anyone who becomes aware of a licensed health professional’s dissemination of misinformation or practice inconsistent with current state and federal guidelines regarding COVID-19 to file a complaint.

IDFPR’s firm stand against COVID-19 misinformation should put all Illinois medical professionals on notice that their words about COVID vaccines have consequences, not only to the health and well-being of the general public, but to their careers and reputations as well.

Physicians Who Contribute To The Epidemic Of COVID Vaccine Misinformation Put Their Licenses At Risk

Posted on by Louis Fine

The epidemic continues. It continues to spread unabated. It continues to fill up hospitals and morgues. And if a physician contributes to this epidemic of misinformation and disinformation surrounding COVID-19 vaccines, they could face disciplinary action, including the loss of their license to practice medicine.

That is the position of the Federation of State Medical Boards (FSMB), which has come out strongly against the spread of vaccine misinformation among members of the medical profession. It is not a theoretical problem, either. While the internet, school board meetings, and legislatures are full of individuals outside of the profession who spout nonsense about vaccines after “doing their own research,” there are also plenty of doctors, nurses, and other healthcare professionals who have spread false and misleading information about the safety or efficacy of vaccines.

In a statement dated July 29, 2021, FSMB issued a stern warning “in response to a dramatic increase in the dissemination of COVID-19 vaccine misinformation and disinformation by physicians and other health care professionals on social media platforms, online and in the media.”

The federation made clear its opinion that those who spread vaccine misinformation should face disciplinary sanctions:

“Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license. Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore have a powerful platform in society, whether they recognize it or not. They also have an ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health. Spreading inaccurate COVID-19 vaccine information contradicts that responsibility, threatens to further erode public trust in the medical profession and puts all patients at risk.”

FSMB has not yet formally defined “misinformation” or “disinformation” in its policy, but its ethics committee plans to provide more guidance at a later date. However, an FSMB spokesman has said that it considers misinformation to be “sharing or distributing verifiably false information” and disinformation as “sharing or distributing information that the distributor knows is false.” 

Other professional organizations are backing up the FSMB. On September 9, 2021, the American Board of Family Medicine, the American Board of Internal Medicine, and the American Board of Pediatrics issued a joint statement in which they explicitly endorsed the FSMB’s position, adding that they “want all physicians certified by our Boards to know that such unethical or unprofessional conduct may prompt their respective Board to take action that could put their certification at risk.”

Other groups of physicians and healthcare professionals are joining in the fight against misinformation spread by members of the profession. In a September 21, 2021 Washington Post opinion column, three physicians, including an Illinois endocrinologist, announced the launch of NoLicenseForDisinformation, “a grassroots campaign that aims to ensure that physicians who spread Covid-19 disinformation are held accountable.”

This profession-wide pushback against disinformation should put all medical professionals on notice that their words about COVID vaccines have consequences, not only to the health and well-being of the general public, but to their careers and reputations as well.

What Illinois Medical Practice Owners Need to Know About Pritzker’s Vaccination Mandate For Healthcare Workers

Posted on by Louis Fine

There is no more debate for healthcare workers in Illinois about whether to get vaccinated against COVID-19 (not that there should have been any debate), at least if they want to continue working. On August 26, 2021, Gov. J.B. Pritzker issued Executive Order 2021-20, which mandates that almost all healthcare professionals and staff in the state must get their shots, subject to certain narrow exceptions. The Order took effect immediately. Physicians and medical practice owners need to understand the governor’s vaccination mandate for their staff to ensure compliance. Here is what physician/owners need to know:

Physicians and medical practice owners need to understand the governor’s vaccination mandate for their staff to ensure compliance. Here is what physician/owners need to know:

All “Health Care Workers” Must Receive At Least One Dose By Sept. 5

The Order requires all “Health Care Workers” to:

  • receive at least the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by September 5, 2021, and
  • be fully vaccinated against COVID-19 within 30 days following administration of their first dose in a two-dose vaccination series.

“Health Care Workers” and “Health Care Facilities” Covered By The Vaccine Mandate

As defined in the governor’s order, “Health Care Workers” covered by the vaccine mandate are those who:

  • are employed by, volunteer for, or contract to provide services for a Health Care Facility, or are employed by an entity that is contracted to provide services to a Health Care Facility, and
  • are in close contact (fewer than 6 feet) with other persons in the facility for more than 15 minutes at least once a week on a regular basis as determined by the Health Care Facility.

With the exception of state-owned or operated facilities, almost any facility or office that provides medical care is a “Health Care Facility” whose workers, as defined above, must get vaccinated. This includes:

  • physician offices
  • dental offices
  • ambulatory surgical treatment centers
  • hospices
  • hospitals
  • free-standing emergency centers
  • urgent care facilities
  • birth centers
  • post-surgical recovery care facilities
  • end-stage renal disease facilities
  • long-term care facilities (including skilled and intermediate long-term care facilities)
  • Specialized Mental Health Rehabilitation Facilities
  • assisted living facilities
  • supportive living facilities
  • medical assistance facilities
  • mental health centers
  • outpatient facilities
  • rehabilitation facilities
  • residential treatment facilities
  • adult day care centers

Unvaccinated Workers Barred From Premises Until Tested

As of September 5, 2021, covered Health Care Facilities must ban from their premises any Health Care Worker who has not provided proof (CDC vaccination card, photo of card, or documentation from a health care provider) that they have been fully vaccinated unless they submit to testing as follows:

  • Health Care Workers who are not fully vaccinated against COVID-19 must be tested for COVID-19 weekly, at a minimum.
  • Such testing for Health Care Workers who are not fully vaccinated against COVID-19 must be conducted on-site at the Health Care Facility or the Health Care Facility must obtain proof or confirmation from the Health Care Worker of a negative test result obtained elsewhere.

Those With Medical and Religious Exemptions From Vaccination Mandate Still Require Weekly Testing

Consistent with federal law, the Order provides medical, religious, and Americans With Disabilities Act exemptions, though any workers who qualify for an exemption must submit to weekly testing.

To qualify for a vaccination exemption, a worker must demonstrate that:

  • vaccination is medically contraindicated, including any individual who is entitled to an accommodation under the Americans with Disabilities Act or any other law applicable to a disability-related reasonable accommodation, or
  • vaccination would require the individual to violate or forgo a sincerely held religious belief, practice, or observance. 

The Order does not specify what consequences or penalties could be imposed on medical practices for violation of the vaccine mandate, but it does authorize state agencies to “promulgate emergency rules as necessary to effectuate this Executive Order.” Accordingly, practices should establish clear policies and protocols for ensuring that their staff is fully vaccinated, as well as implement a testing program for unvaccinated workers. They should also be prepared to send home any employee who does not comply with the Order.

If you are a medical practice owner and have questions about the governor’s vaccination mandate for your employees, please give me a call at 312-236-243 or fill out my online form to arrange for your free initial consultation.

Illinois Sets New Limits On Non-Competes: What Medical Practice Owners Need to Know

Posted on by Louis Fine

Like many business owners, physicians who own medical practices often require employees, including associate physicians, nurses, and other critical staff members, to sign non-competition and non-solicitation agreements to protect their practice, patients, and personnel. But the ability of medical practice owners to use non-competes and other restrictive covenants in employment contracts will soon be curtailed under a recently passed law that Gov. JB Pritzker is expected to sign.

The legislature’s unanimous passage on May 31, 2021 of SB672 amending several provisions of the Illinois Freedom to Work Act dramatically transforms the landscape for these contractual provisions. If signed into law, the new restrictions on restrictive covenants will apply to all agreements dated on or after January 1, 2022.

For decades, courts have looked with a skeptical eye at non-competition and non-solicitation agreements, limiting as they do fundamental economic rights and the ability to make a living in one’s chosen occupation. Judges have not hesitated to hold such clauses unenforceable or modify them, especially if they are overly broad in time and geographic scope, are unsupported by sufficient consideration, or involve lower-wage workers.

The new amendments attempt to codify many aspects of courts’ analysis of restrictive covenants, establish clear limitations on when they can be used, and clarify the rights of employees when presented with such provisions.

Here is what physicians and medical practice owners need to know about the future of non-competition and non-solicitation agreements in Illinois:

Earnings-Based Limitations

Perhaps the most straightforward part of the new law is that it completely prohibits non-competes and non-solicitation agreements for employees below a specific income threshold. Specifically:

  • Employers cannot enter into non-competition agreements with employees who have expected annual earnings of less than $75,000. 
  • Employers cannot enter into customer/employee non-solicitation agreements with employees who have expected annual earnings of less than $45,000. 

These baseline income amounts will increase in 2027 and every five years after that. 

“Legitimate Business Interest” and Consideration of the “Totality of Circumstances” Required When Evaluating Restrictive Employment Covenants

One of the fundamental principles that Illinois judges have used to evaluate the enforceability of restrictive covenants is to look at the facts and circumstances surrounding the specific agreement and determine whether the limitations are tailored to protect an employer’s “legitimate business interests.”

The recent amendments reflect this fact-specific approach, explicitly stating that “the same identical contract and restraint may be reasonable and valid under one set of circumstances and unreasonable and invalid under another set of circumstances.” The law sets forth several factors that a judge may consider when determining whether the employer has a legitimate business interest, including:

  • The employee’s exposure to the employer’s patient relationships or other employees
  • The near-permanence of patient relationships
  • The employee’s acquisition, use, or knowledge of confidential information through the employee’s employment
  • The time restrictions, the place restrictions, and the scope of the activity restrictions.

Adequate, Independent Consideration Required

All enforceable agreements must be supported by adequate consideration, including restrictive covenants. Under the amendments, “adequate consideration” means:

  • The employee worked for the employer for at least two years after signing an agreement containing a covenant not to compete or a covenant not to solicit, or
  • The employer otherwise provided consideration adequate to support an agreement not to compete or solicit, such as a period of employment plus additional financial or professional benefits.

Opportunity to Review

Employers will need to provide employees 14 days to review a non-competition/non-solicitation agreement and advise them in writing at the same time to consult an attorney before signing it. 

Judges Can Revise Restrictive Covenants 

The new law codifies the discretion judges have to reform overly broad or otherwise legally deficient covenants –  a practice known as “blue penciling” –  rather than holding the entire covenant unenforceable.

Enforcement Limitations Related to COVID-19

An otherwise valid non-compete is unenforceable if the employee was terminated, furloughed, or laid off as the result of the COVID-19 pandemic unless enforcement of the covenant includes compensation equivalent to the employee’s base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement.

As noted, the amendments will not be effective until January 1st of next year, so they will not apply to existing restrictive covenants. But medical practice owners who regularly use non-competition or non-solicitation agreements should consult with an experienced business attorney who can review such provisions in light of the new law.

If you are a medical practice owner and have questions about existing non-competes and non-solicitation agreements or how the new law affects your employment agreements going forward, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.