Category: Physician and Health Care IDFPR

Small Businesses, Medical Practices, and Licensed Professionals That Don’t Prepare For Ransomeware Attacks Are Playing With Fire

Posted on by Louis Fine

Your small business doesn’t provide most of the fuel for the Eastern Seaboard or process and distribute a huge proportion of America’s meat supply. But that doesn’t mean you shouldn’t be worried about ransomware attacks or other cybersecurity threats. The recent attacks on the Colonial Pipeline and meat processor JBS are just two high-profile examples of what has become a significant threat to companies, medical practices, and licensed professionals across a wide range of businesses and professions. 

A Ransomware or Other Cyberattack Can Be a Deathblow To Your Business

Every minute of every day, sophisticated hackers attempt to gain access to trade secrets, personal customer or patient information, and all other data that makes a company run.  Sometimes, the data itself has value to cybercriminals, such as customer financial information, credit card numbers, Social Security numbers, and the like. Other times, as is the case in ransomware attacks, hackers hold a company’s entire information infrastructure hostage until they receive the eponymous ransom. The increasing complexity and frequency of ransomware attacks drove the average ransom payment from less than $5,000 in 2018 to over $233,000 in 2020. 

Such security breaches can cost companies millions of dollars in business disruption and remediation costs. Cyberattacks and the release of confidential information can cause customers to lose faith in the ability of the company to maintain the confidentiality of their payment and personal data.

Additionally, a complex patchwork of state and federal laws establishes notification requirements in the event of a breach. Failure to follow those laws can expose businesses to fines and adverse regulatory actions that only add to the pain of a cyberattack.

For business owners, physicians and medical practices, and licensed professionals, a robust cybersecurity program is no longer optional. Failing to implement a comprehensive strategy to protect valuable intellectual property and proprietary information is essentially business negligence. Failing to act swiftly and aggressively once a breach has occurred can be business and professional suicide.

Medical Practices Increasingly Under Threat

The threat to medical practices and other entities in the healthcare industry is of particular concern because the subject of the attacks usually includes protected health information (PHI). Cybercriminals hold that information hostage under the threat of “doxing,” meaning to publicly release documents containing PHI.

Guidance from the Department of Health and Human Services Office for Civil Rights, the federal body charged with enforcement of HIPAA, states that ransomware encryption of PHI is a per se unauthorized disclosure of PHI triggering the Breach Notification Rule. That rule requires HIPAA-covered entities and their business associates to provide notification following a breach of unsecured protected health information. The rule presumes a cybersecurity incident has resulted in unauthorized access to unsecured PHI, at which point the burden shifts to the practice or organization to show a low probability of the compromise of the PHI it maintains.

What You Can And Should Do Right Now To Protect Your Data and Your Business

The U.S. Small Business Administration has a wonderful website dedicated to helping business owners prevent and respond to ransomware and other cybersecurity threats. The site includes these ten key steps companies should take as part of a comprehensive strategy:

  1. Protect against viruses, spyware, and other malicious code
  2. Secure your networks
  3. Establish security practices and policies to protect sensitive information
  4. Educate employees about cyberthreats and hold them accountable
  5. Require employees to use strong passwords and to change them often
  6. Employ best practices on payment cards
  7. Make backup copies of essential business data and information
  8. Control physical access to computers and network components
  9. Create a mobile device action plan
  10. Protect all pages on your public-facing websites, not just the checkout and sign-up pages

I recommend that all small business owners and medical practices spend some time at the SBAs cybersecurity website (https://www.sba.gov/managing-business/cybersecurity)  and take all steps necessary to shore up this crucial aspect of their operations. A hack of your network may not attract national headlines, but it could repel customers and patients and cost you your business or practice.

If you have questions about protecting your business or medical practice from cyber threats, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

Will a Chapter 7 or 13 Bankruptcy Close The Book On Your Professional License?

Posted on by Louis Fine

Bankruptcy happens. It’s not a crime, it’s not a moral failure, it’s not a character flaw. In times of economic upheaval, in particular, even the most hard-working, intelligent, and responsible professionals, from physicians to accountants to hairstylists, can find that their debts have simply become untenable. Filing for bankruptcy can itself be a difficult experience, emotionally, financially, and practically. But if you’re also worried that you might lose your professional license, and thus your ability to support yourself and your family, the anxiety is only compounded.

Fortunately, in most cases, filing a Chapter 7 or 13 bankruptcy proceeding without more will not result in the loss of a professional license.

The Bankruptcy Code Is Designed To Provide Protection, Not Persecution

The law provides for bankruptcy proceedings to give an overwhelmed debtor a second chance and give creditors a chance at recovering at least some of the amounts owed to them. Bankruptcy proceedings may be painful, but they are not supposed to be a persecution.

That is why the Bankruptcy Code prohibits private and public employers from using a bankruptcy filing as the sole reason to terminate an employee or otherwise take adverse action against them.

Specifically, Section 525(b) of the Bankruptcy Code provides that “No private employer may terminate the employment of, or discriminate with respect to employment against” an employee “solely because” the employee:   

  • is or has been a debtor or bankrupt under the Bankruptcy Act;
  • has been insolvent before the commencement of a bankruptcy proceeding or during the case but before the grant or denial of a discharge; or
  • has not paid a debt that is dischargeable or that was discharged under the Bankruptcy Act.

Note the “solely because” language. If other reasons exist for terminating an employee that may tangentially relate to the bankruptcy, such as dishonesty, fraud, or other malfeasance, the Bankruptcy Code won’t necessarily save an employee’s job.

Professional Licenses Are Protected Assets In Bankruptcy

A professional license is a valuable asset, one obtained through a substantial investment of time, effort, and money. In a bankruptcy proceeding under either Chapter 7 or 13, the debtor’s assets become a crucial part of resolving the debts and obligations that led to the filing of bankruptcy in the first place.

But professional licenses are only of value to the licensee; they can’t be transferred or used by a debtor to satisfy their debt. The real threat that bankruptcy poses to a professional license is the risk that a governmental licensing body, like the Illinois Department of Financial and Professional Regulation (IDFPR), will use the proceedings as a basis for denying, suspending, or revoking a license.

But since bankruptcy, as noted, is not designed for punishment, the Bankruptcy Code explicitly protects professional licenses and the ability of licensees to continue to earn a living.

Specifically, Bankruptcy Code Section 525(a) states:

[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license… against a person that is or has been a… debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.

Again, the “solely because” language is key. A professional licensee’s bankruptcy, depending on the circumstances, may implicate other issues that could lead to or support disciplinary actions. But the bankruptcy itself, without more, should not threaten a debtor’s professional license.

Louis Fine: Chicago Professional License Defense Attorney

If you are a licensed Illinois professional and have concerns about how a bankruptcy might impact your license and career, I welcome the opportunity to meet with you.

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 In Top 10 For Serious Medical Disciplinary Actions, New Report Finds

Posted on by Louis Fine

Whether a physician faces disciplinary action by their state medical board depends primarily on their own conduct. Practicing with competence, ethics, and integrity should insulate a doctor from any significant concerns that their license may be put in jeopardy. But it’s not only how you practice, but where you practice, that can determine how likely you are to face the scrutiny of your state’s medical licensing authorities.

Wide Discrepancies In State Medical Boards’ Level of Enforcement Activity

A comprehensive new report by Public Citizen found significant disparities between states in terms of the number of serious disciplinary actions brought against physicians between 2017-2019. The report’s authors concluded that these differences in the frequency of physician discipline had little if anything to do with the quality of a state’s doctors and everything to do with the aggressiveness or laxity of a state’s medical board:

“There is no reason to believe that physicians in any one state are more or less likely to be incompetent or miscreant than the physicians in any other state. Therefore, we believe any observed differences between the boards reflect variations in board performance rather than in physician behavior across different states.”

The report’s authors calculated the rate of serious disciplinary actions per 1,000 physicians in each state with either M.D. only or combined M.D./D.O. medical boards for the years 201, 2018, and 2019. They defined “serious disciplinary actions” as “those that had a clear impact on a physician’s ability to practice.”

The report found that Kentucky had the highest rate of serious physician discipline in the country, with an average of 2.29 serious disciplinary actions per 1,000 physicians per year. The District of Columbia had the lowest rate with only 0.29 serious disciplinary actions per 1,000 physicians per year. That means that the rate of such actions was 7.9 times higher in the state with the most active medical board in the country than in the lowest jurisdiction. 

Illinois ranked 10th on the list, with a rate of 1.51 serious disciplinary actions per 1,000 physicians.

Reasons For Differences In Physician Disciplinary Actions Across States

Public Citizen is an organization that generally favors increased consumer and patient protections and thus advocates for greater regulatory activity and enforcement. Therefore, it is no surprise that they concluded that “low rates of serious disciplinary actions suggest that medical boards are not adequately taking actions to discipline physicians responsible for negligent medical care or whose behavior is unacceptably dangerous to patients.”

The report recommended several policy changes, including:

  • Assuring that revenue from physician license fees funds board activities “instead of sometimes going into the state treasury for general purposes.”
  • Ensuring that boards have adequate staffing
  • Including on medical boards members who have a commitment to safeguarding the public, “not protecting the livelihood of questionable physicians.”
  • Opening the NPDB database to the public so that any person can do a background check on a doctor
  • Increasing state legislative oversight of state medical boards
  • Replacing some medical board members who are physicians with members of the public “with no ties to the medical profession, hospitals, or other providers.”
  • Requiring that medical boards check with the NPDB when they receive complaints about a physician.

This report comes after a year in which physician disciplinary actions plummeted nationwide due to the COVID-19 pandemic. However, until and unless the time comes that COVID-19 is no longer an existential public health threat, it is unlikely that any state medical boards will dramatically change the way they do business.

Louis Fine: Chicago Physician 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 patients and your practice.

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.

Can You and Should You “Plead the Fifth” In Professional License Proceedings?

Posted on by Louis Fine

As you know from years of watching TV courtroom dramas or the travails of real-life politicians, people under criminal investigation or who are facing charges often “plead the Fifth” -that is, refuse to provide statements or testimony – because they fear that what they say can and will be used against them in those proceedings.

Similarly, many physicians or other professionals licensed by the Illinois Department of Professional Regulation (IDFPR) can find themselves under investigation or facing disciplinary action by the Department for acts which could also be the basis for criminal prosecution. For example, a doctor who improperly prescribes medication could face the loss or suspension of his or her license and also be charged with a crime for such conduct.

In such situations, can or should the respondent in an IDFPR proceeding exercise their rights under the Fifth Amendment when their answers could result in criminal liability?

Fifth Amendment Applies in Disciplinary Proceedings

The Fifth Amendment provides that “No person shall be… compelled in any criminal case to be a witness against himself…” This privilege has also been incorporated in the Illinois Constitution. (See Ill. Const. 1970, art. I, § 10.) The privilege essentially means that no person, without proper immunity, can be required to implicate himself in a crime.

Although by its literal terms applicable only in criminal proceedings, the Fifth Amendment privilege against self-incrimination has long been held to be properly asserted by parties in civil proceedings.

The logic behind applying the privilege in civil cases also applies to administrative actions such as IDFPR investigations and disciplinary proceedings, and can be asserted not only at a hearing, but during the investigation and discovery stage as well.  As the U.S. Supreme Court has stated:

“A witness’ privilege against self-incrimination `not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'”

As such, you can “plead the Fifth” before the IDFPR. The question of whether you should exercise your right against self-incrimination is a more complicated question.

A Tough Decision

Anybody faced with this choice faces a variation of the same dilemma. As the Supreme Court put it: a party must weigh “the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts[.]” Accordingly, a “party who asserts the privilege against self-incrimination must bear the consequence of lack of evidence.” 

What makes the choice even trickier is that, unlike in criminal proceedings, IDFPR hearing officers can draw an adverse inference from the professional’s refusal to testify and hold it against the professional so long as there is other sufficient evidence to support their findings.

The gravity and implications of exercising your Fifth Amendment rights in an IDFPR proceeding require careful thought and a consideration of all of the possible consequences. It is a decision that will be based on the specific circumstances of your disciplinary matter as well as the possible criminal repercussions of the acts under investigation. It is a decision that should only be made in consultation with your lawyer.

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 you 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.

Overworked and Overwhelmed By Pandemic, Physicians Sacrifice Mental Health Due To Fear Of Licensing Repercussions

Posted on by Louis Fine

As the COVID-19 pandemic rages on, America’s physicians and health care professionals often face an unnecessary and dangerous choice about what matters more: their career or their mental health.

This unconscionable dilemma arises largely because physicians who currently may be struggling with mental health issues, or who experienced a rough patch in the past, fear that seeking help will threaten their professional license. Despite the harmful disincentivizing that it causes, overly broad inquiries about physicians’ mental health continue to be asked by medical boards across the country. The repercussions are counterproductive and unfair.

Burnout, Stress, and Anxiety Losing Out To Fear 

The pandemic, approaching its second year, is overwhelming hospitals and health care providers, with patients filling hallways and gift shops and doctors forced to make decisions about rationing care. The non-stop flow of patients for months on end, not all of whom will get the care they need and not all of whom will survive, is taking its toll on those charged with taking care of them.

A recent survey found that half of all American physicians report feeling anxious due to COVID-19-related concerns. Nearly 60 percent report experiencing burnout — a significant leap from 40 percent just two years ago. The problem is even more pronounced among emergency physicians, 87 percent of whom report significantly increased stress levels due to the pandemic.

Despite these numbers, only 13 percent of doctors have sought treatment for their COVID-related mental health issues. The other 87 percent are educated and self-aware individuals who would undoubtedly recommend that a patient get care for their problems if they reported experiencing the same symptoms. Yet they struggle in silence, putting themselves – and their patients – at risk. In perhaps the most well-known recent incident, Lorna Breen, MD, medical director of the emergency department at NewYork-Presbyterian Allen Hospital, committed suicide after telling loved ones she felt useless to her patients and desperately feared seeking treatment.

Physicians report numerous concerns over seeking mental health care: loss of face, loss of privacy, loss of hospital privileges, or the loss of malpractice coverage. But above all, doctors struggling with their mental health fear losing their ability to practice medicine at all.

Invasive and Irrelevant Questioning By Medical Boards

Nearly 40 percent of doctors said they’d be reluctant to seek mental health care due to concerns about obtaining or renewing their license to practice, according to a 2017 paper published in Mayo Clinic Proceedings.

That is because they know that, for years, state licensing boards have been asking broad questions about mental health issues, including inquiries about brief treatment received years or decades ago. Reporting such treatment could trigger a long, drawn-out process that could put their license in peril. Better to not seek treatment at all than risk their career, many conclude.

Fortunately, the profession has finally begun to recognize the problem. The Federation of State Medical Boards (FSMB) released recommendations in 2018 that advised licensing boards to only ask about current mental issues that undermine a physician’s ability to work well. The FSMB concluded that inquiries about topics other than present impairment violate the Americans with Disabilities Act.

Illinois Limited Its Mental Health Questioning in 2016

To its credit, the Illinois Department of Financial and Professional Regulation (IDFPR) significantly narrowed the scope of its mental health licensing questions for physicians in 2016. Before then, the licensing application asked applicants whether they have ever had a disease or condition that limited their ability to practice. 

Now, however, the question asks only about current conditions and present limitations. Specifically: “Do you now have any disease or condition that presently limits your ability to perform the essential functions of your profession, including any disease or condition generally regarded as chronic by the medical community, i.e., (1) a mental or emotional disease or condition; (2) alcohol or other substance abuse; and (3) physical disease or condition. If yes, attach a detailed statement, including an explanation of whether or not you are currently under treatment.”

Nobody, including doctors, should have to choose between their mental health and their livelihood. While no one wants an impaired physician to be treating patients, neither should we want a talented physician sidelined because they had the courage to seek treatment.

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.

If you have physician licensing questions or concerns, 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.

Put Up Or Shut Up: The Burden of Proof In Illinois Physician Licensing Hearings

Posted on by Louis Fine

Simply saying something doesn’t make it so. Just because you believe a proposition doesn’t make it true. And wanting a certain result doesn’t entitle a person to get it. If you are going to advocate for a position or seek an outcome based on claims you make, you better have the receipts to back it up. That is a fundamental proposition of our judicial system. A party seeking relief, whether a plaintiff in a civil lawsuit, a prosecutor in a criminal case, or a defeated president in a flurry of desperate and delusional litigation, must meet the applicable burden of proof to prevail. So too must the Illinois Department of Financial and Professional Regulation (IDFPR) when pursuing disciplinary action against a physician, as does a doctor seeking to have their license reinstated.

But, as we have seen over the past month, anyone can file a lawsuit for anything based on nothing whatsoever. As long as you pay the court filing fee, you could sue me today for implanting listening devices in your molars. Of course, as we have also seen, cases based on implausible allegations unsupported by any facts or evidence usually meet a swift demise. And those who bring such frivolous claims without a reasonable basis for doing so can and should face consequences for their actions.

Allegations v. Burden Of Proof

The burden of proof, however, does not refer to what a party must show when they initiate a proceeding, though there does need to be a good faith basis in fact and law for pursuing a case in the first place. Rather, it is what a party must ultimately prove to a judge, jury, or hearing officer to get the relief or result they seek.

When the IDFPR launches disciplinary proceedings in a physician licensing matter, they do so after conducting an investigation and gathering facts to support their filing of a formal complaint. Similarly, it gathers facts and evidence when making a decision as to granting or restoring a license. While the facts that the Department may rely upon may be weak, disputed, or of questionable veracity, IDFPR rarely pursues cases or makes license decisions without at least some evidence that could plausibly justify their efforts.

Allegations in a complaint, as noted, are just that – allegations. And the decision to deny a license renewal or issue a reinstatement can be challenged by an applicant or licensee. This is where the parties need to put up or shut up

Disciplinary Action and Refusals To Renew: Burden of Proof Is On The IDFPR

Section 1110.190 of the Illinois Administrative Code provides that the burden of proof rests with the Department in all cases it institutes by filing a Complaint or Notice of Intent to Refuse to Renew a physician’s license.  An Administrative Law Judge may make a recommendation for discipline only when the IDFPR establishes by clear and convincing evidence that the allegations of the Complaint or Notice are true.

While a somewhat nebulous concept, as all burdens of proof are, “clear and convincing” evidence generally means that degree of proof which, considering all the evidence in the case, produces the “firm and abiding belief that it is highly probable” that the allegations in the IDFPR’s formal complaint are true. This standard falls between the “beyond a reasonable doubt” burden of proof that prosecutors have in criminal cases and the “preponderance of evidence” standard applied in most civil lawsuits.

License Denials And Requests For Reinstatement

“Clear and convincing” evidence is also the standard the Department must meet when filing a Notice of Intent to Deny the issuance of a physician’s license. Specifically, if the Notice of Intent to Deny alleges that the applicant has violated a disciplinary provision of the Medical Practice Act, IDFPR has the burden of proof to prove by clear and convincing evidence that the alleged violation occurred. 

If the Department meets this standard in a physician licensing case, the burden of proof then switches to the physician, who must prove by a preponderance of the evidence that the license should be granted. As noted, preponderance of the evidence is a more lenient standard, meaning that it is more likely than not that the facts supporting the physician’s reasons why they should be issued their license are true.

The preponderance of the evidence standard also applies when a physician files a Petition for Hearing seeking restoration of their license. The burden of proof is on the physician rather than IDFPR in license restoration hearings.

Even when the Department bears the burden of proof, it has many unfair advantages over licensees in terms of gathering and producing evidence. As I have discussed in a previous post, a licensee’s ability to pursue the discovery and obtain the evidence necessary to challenge IDFPR’s allegations is extremely limited. In fact, the extent of allowable discovery is determined by the very people prosecuting the case. The inherent unfairness of IDFPR’s discovery rules is just one of many reasons why physicians need experienced professional license defense counsel at their side when their careers and practices are at stake.

Louis Fine: Chicago Physician Licensing 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 patients and your practice.

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.

 

Just Tell Me What You Want Me To Do: Conditions For License Reinstatement After Disciplinary Action

Posted on by Louis Fine

Do the right thing. Follow the rules. Straighten up and fly right. Do what you’re told. If the Illinois Department of Financial and Professional Regulation (IDFPR) has suspended your professional license or put you on probation, following or satisfying the probationary terms and conditions imposed by the department is a necessary prerequisite to reinstatement and resumption of your career. But it can be hard to comply with probationary terms if you don’t know what they are.

Unfortunately, the orders and consent decrees that impose sanctions and establish conditions for reinstatement are often so vague and ambiguous that it can be difficult, if not impossible, to know what you need to do to get your license back. And that ambiguity can lead to frustration, disappointment, and more months or years of sitting on the sidelines when the IDFPR denies your petition for restoration.

What Does Probation Mean For A Professional Licensee?

If the IDFPR determines that disciplinary action is warranted against a licensee, they have a range of sanctions they can impose, metaphorically ranging in severity from a slap on the wrist to a death sentence. The department can impose these sanctions in an order after a disciplinary hearing, or they can be part of a consent decree entered into between the licensee and IDFPR.

Probation is one of those sanctions. If the IDFPR places you on probation, you will be able to continue working or practicing subject to specific conditions and limitations established by the Department. As with probation in the criminal justice system, a violation of any of the imposed terms will create additional problems potentially involving further discipline. The probation term could be for a set period which will automatically expire providing the licensee complies with all conditions, or it could be for an indefinite time, requiring that the licensee petition the board to terminate the probation. 

But probationary terms can also be part of a license suspension. In that case, the licensee cannot obtain reinstatement of their license until they meet the conditions set forth in the order or consent decree.

Sometimes, probationary terms can be quite specific and usually relate to the nature of the acts or omissions that led to disciplinary action. Common probationary terms can include:

  • Undergoing physical or psychological exams
  • Seeing a therapist or undergoing psychotherapy
  • Completing a substance abuse program and attending ongoing counseling or support groups
  • Avoiding all criminal arrests/convictions during the probationary period
  • Complying fully with the applicable laws governing the licensed profession
  • Notifying an employer or employers about the probation
  • Fulfilling continuing education courses related to your violation

What If There Are No Specific Terms Contained In The Order Or Consent Decree?

When the terms and conditions for reinstatement are clear and specific, complying with them simply requires doing the work and staying out of trouble. But many license suspensions fail to delineate precisely what steps a licensee must take or complete to get their license back.

A licensee can spend their suspension or probationary term doing everything right – addressing the issues that got them in trouble, working on improving themselves personally and professionally, sobering up and undergoing therapy, etc. – and still not get their license reinstated. The power to give a licensee their career and livelihood back is entirely in the hands of the hearing officer who evaluates the petition for reinstatement.

That unfettered discretion can and does lead to unjust results. As noted, it can be hard to follow the rules if you don’t know what they are. Therefore, if a licensee is considering a consent decree to agree to probation or a license suspension, it is critical that the terms of probation be set forth as specifically as possible. This is yet another reason that licensees should never represent themselves before the IDFPR or enter into a consent decree without first consulting with an experienced Chicago professional license defense attorney.

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.

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.

Proposed Legislation Would Remove Telemedicine Licensing Barriers

Posted on by Louis Fine

Well-before the world had heard of COVID-19, the use of telemedicine was increasingly seen as a way to expand patient access to care and address a growing shortage of physicians, particularly in rural and underserved areas. As noted by the authors of an 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.”

But the pandemic and the lockdowns that followed in its wake dramatically changed the telehealth landscape for doctors, patients, and insurers. Now, legislation recently introduced in Congress seeks to address licensing barriers that have stood in the way of leveraging this technology to improve patient care.

The number of virtual visits exploded as such appointments became seen more as a matter of health and safety rather than convenience. While it is estimated that only two percent of all patient appointments pre-pandemic were via telemedicine, a whopping 61 percent of visits have been conducted virtually since then. Even when, hopefully in the near future, COVID-19 recedes into memory, experts anticipate that telemedicine will remain an increasingly utilized option.

Scores of Separate Licenses Currently Needed For Telemedicine Across State Lines

But 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. This is particularly problematic in areas where the healthcare system is currently overwhelmed by COVID-19 cases.

The problem is that, as of November 2019, 49 state medical boards, plus the medical boards of the District of Columbia, Puerto Rico, and the Virgin Islands, require that physicians engaging in telemedicine have a license in the state in which the patient is located.

Equal Access To Care Act

However, a bill introduced in Congress in July – The Equal Access To Care Act (EACA) – seeks to remove this roadblock. If enacted, the act would allow licensed practitioners to provide services via telehealth in any state from any location for up to 180 days after the end of the current public health emergency period. On July 23, the federal government extended that period for another 90 days.

Specifically, the EACA provides that a physician, practitioner, or other healthcare provider who is licensed to provide health care services in their primary state, and who provides such health care services in interstate commerce through electronic information or telecommunication technologies to a patient in another state, does not need to obtain a comparable license from the state where the patient is located in order to provide such services.

It is expected that EACA will receive rare bipartisan support in both chambers. If it does pass, it raises the question of what happens to telehealth licensing requirements after the pandemic emergency ends. Given that almost all stakeholders have come around on the use of and payment for virtual visits, one would think that a permanent solution is more likely than not.

Expanded Medicare Coverage For Telemedicine Also On The Table

In addition to removing licensing burdens, Congress is also considering legislation to expand Medicare coverage for telehealth services. The Telehealth Modernization Act was introduced on July 30th. If it becomes law, the act would remove geographic and originating site restrictions from Medicare coverage of telehealth services, ensure that telehealth services at federally qualified health centers (FQHCs) and rural health clinics (RHCs) are covered by Medicare, and give the Health and Human Services Secretary the authority to permanently expand the types of telehealth services covered by Medicare, among other changes.

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.

What NOT To Do When Reopening Your Medical Practice in Illinois

Posted on by Louis Fine
 

We are now in Phase 3 of Gov. JB Pritzker’s five-phase Restore Illinois plan. For medical practices throughout the state, this means that many individuals who have delayed or deferred elective procedures, screenings, and other non-COVID-19 visits are now scheduling these visits. For physicians and staff at medical offices, returning to the routine care and treatment of patients will be anything but routine.

Healthcare providers across the country have been modifying their policies, practices, and procedures to comply with state and local requirements for the protection of both patients and staff. In Illinois, that means following safety guidance from the Illinois Department of Public Health. Additionally, the Centers for Disease Control & Prevention (CDC) has issued its “Framework for Healthcare Systems Providing Non-COVID-19 Clinical Care During the COVID-19 Pandemic” to help guide clinicians in their decision-making.

But on a more granular level, the modifications that practices must make to their clinical care and general operation can be quite extensive and require planning, thoughtfulness, and diligence in both formulation and execution. To help guide physicians in this regard. The American Medical Association (AMA) has compiled a reopening guide with actionable information, proposed best practices a checklist, and other resources to ensure that medical practices are ready to reopen.

Among the resources provided by the AMA is a list of mistakes that practices should avoid when reopening. Not only can such missteps put the health and safety of patients and staff at risk, but they can also draw the scrutiny of authorities who will not hesitate to intervene if a practice is not following required precautions.

Some “don’t’s” physicians should avoid when reopening, per the AMA, include:

  • Don’t jump the gun. Stay in line with the latest requirements and limitations issued by the governor, IDPH, and local authorities. These change frequently with events, so it is imperative that you keep continuously abreast of what is and isn’t permitted in terms of patient care and office safety.
  • Don’t assume your supply chain will return to normal. Assess your practice’s current inventory and future needs for personal protective equipment and order enough to have on hand when reopening.
  • Don’t allow non-patient visitors. Clearly post on your website and practice door your revised visitor policy. Reroute vendors, salespeople, educators, and service providers (other than caregivers) to phone or videoconference communication.
  • Don’t presume that your obligations as an employer are the same. In addition to new safety precautions and procedures for you and your staff, the pandemic has changed the rights of employees and the obligations of employers in several respects. From paid sick leave and family medical leave to ADA issues and more, practices should consult with experienced counsel to ensure that they avoid any exposure related to their employment practices.

Louis Fine: Chicago Professional License Defense Attorney

This is an unprecedented and challenging time for everyone, including and perhaps especially, for medical 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.

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

Posted on by Louis Fine

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.