Category: Professional Regulation and Licensure

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.

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.

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.

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.

Discredit Check: What CPAs Need To Know About Career-Threatening “Acts Discreditable To The Profession”

Posted on by Louis Fine

Certified Public Accountants have countless ethical responsibilities to their clients. The American Institute of Certified Public Accountants (AICPA) Code of Professional Conduct is almost 200 pages long, containing detailed and dense descriptions of the many ways in which CPAs can put themselves in danger of losing their professional license and their career. But one of the most dangerous provisions in the code for CPAs is one that can encompass a wide range of professional – and personal – indiscretions: “acts discreditable to the profession.”

Such acts are prohibited in Section 400.1 of the AICPA Code of Professional Conduct. Similarly, an “act discreditable to the public accounting profession” is considered unprofessional conduct under the Illinois Public Accounting Act that could subject a CPA to disciplinary action by the Illinois Department of Financial and Professional Regulation (IDFPR).

But what kind of acts bring discredit to the accounting profession? Are they limited to a CPA’s performance of their professional engagements, or can they extend into private decisions or actions that do not directly relate to the services they provide clients? These open questions, and the broad contours of the rule, should give every CPA pause as they evaluate their conduct in all spheres of their life.

Personal Choices, Professional Consequences

The AICPA Code does not clearly define what constitutes “acts discreditable.” However, it does provide specific examples of such conduct, most of which are relatively obvious and baseline ethical violations that relate to work performed for clients or their professional interactions with the public generally, such as:

  • Negligence in the preparation of financial statements or records.
  • Failure to respond or comply with requests or obligations imposed by governmental bodies, commissions, and regulatory agencies.
  • Failure to follow specified government standards, guides, procedures, statutes, rules, and regulations in conducting a governmental audit.
  • Unauthorized disclosure of an employer’s confidential information.
  • Unauthorized removal or use of client files.
  • False, misleading, or deceptive acts in marketing or promoting their professional services.

But Section 400.1 of the code also specifically identifies proscribed conduct that does not directly relate to their services for or interactions with clients, government bodies, or the general public. Instead, they involve personal choices and behaviors that, according to the AICPA, reflect poorly on – and bring discredit – to the profession as a whole:

  • Discrimination and harassment in employment practices.
  • Failure to file a personal tax return or pay a tax liability.
  • Cheating on the CPA exam.

Disciplinary Action For “Social Crimes”

These specified personal transgressions seem like no-brainers in terms of exposing a CPA to licensing and ethics trouble. The problem is that AICPA has left the door open for the possibility that other personal conduct could constitute an “act discreditable.” And state licensing bodies have shown that they have no problem walking through that door.

A 2016 study looked at how “social crimes,” that is, those that do not directly involve a CPA’s performance of their professional duties, are often the basis for disciplinary action. Such acts include driving under the influence, nonpayment of child support, and drug possession. These violations comprised 10.3 percent of the disciplinary action taken by state boards of accountancy in California, Illinois, New York, Texas between 2008–2014.

Other federal or state convictions, including financial felonies and misdemeanors unrelated to professional engagements, make up 27% of the disciplinary actions. These include such things as money laundering, drug dealing, immigration fraud, and assault.

But if something like driving under the influence, as serious a transgression as it may be, brings “discredit” to the accounting profession, it raises the possibility that other conduct equally unrelated to the actual work of a CPA could be the basis of professional discipline. For example, if a CPA was involved in the attempted coup and terrorist attack at the Capitol on Jan. 6, would that be a “discreditable act” regardless of any criminal charges? Even the possibility of such blowback should make CPAs think long and hard about their actions, even when they are off the clock.

Louis Fine: Chicago CPA License Defense Attorney

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

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