The Road From IDFPR Complaint to IDFPR Disciplinary Action

complaintAs a lawyer, clients often will ask me whether they can sue this person or that company for a perceived wrong. My answer is always the same: anyone can sue anybody for anything. Of course, that doesn’t mean that they actually have a viable case or that filing a lawsuit is a smart move. It’s just that anyone who has the money for the filing and service fees can walk into a courthouse and file a lawsuit.

Similarly, anyone who feels that a licensed Illinois professional has acted improperly or done them wrong in some way can file a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR). But just because IDFPR receives a patient, client or customer complaint does not automatically translate into the institution of disciplinary proceedings. There are multiple stops on the road from complaint to action, any one of which can be the end of the matter.

Initial Evaluation

No matter whether an allegation of misconduct comes from a client, competitor, media reports, or other governmental bodies, IDFPR does not institute disciplinary proceedings without first conducting an investigation to determine whether the allegations appear to have merit.

When received by IDFPR, a client/patient/customer complaint will be forwarded to the Department’s Complaint Intake Unit. The claim is then sent to the investigative unit in charge of evaluating allegations for the specific profession at issue. Each licensed profession has its own investigative unit which is supposed to be staffed with individuals who have the knowledge and experience to evaluate the factual allegations in the complaint. They are also supposed to understand the applicable laws, regulations, and standards which determine whether a particular act or omission, if true, would be the basis for disciplinary action.

The lead worker on the case will review the information set forth in the complaint and decide whether to initiate an investigation or close the case. A case may be closed at this early juncture if the substance of the claim, even if true, would not support any disciplinary action. For example, if a patient filed an IDFPR complaint because a doctor did not shake their hand when walking not the exam room, that complaint will wind up in the IDFPR dustbin in short order.

Initial Investigation

However, if the lead worker decides that the allegations merit further inquiry, an IDFPR investigator will be assigned to look into the matter. The investigator can take any number of steps as part of their analysis, including:

  • Reviewing the complaint along with any documents or evidence submitted by the complainant
  • Pulling IDFPR licensure records and records of past investigations and disciplinary actions concerning the licensee.
  • Interviewing the complainant
  • Interviewing any known or potential witnesses
  • Interviewing the licensee who is the subject of the investigation
  • Issuing subpoenas for documents and other evidence

Referral for Prosecution

At the conclusion of their investigation, the assigned investigators will prepare and submit reports describing the steps they took, the evidence and testimony they gathered, and the conclusions they have reached. Upon receipt of the reports, the lead worker will review and decide whether the case should be closed or forwarded to the appropriate Department prosecutions unit for the initiation of disciplinary proceedings or other further action.

For some professions, such as physicians and dentists, IDFPR has case coordinators who are licensed members of those professions. These subject matter experts will review a case and all investigatory reports and decide whether a matter will proceed to the next level.

If you receive notice that an IDFPR complaint has been filed against you, the two most important things you can do are not panic and then call an experienced Chicago professional license defense attorney as soon as possible. You don’t want to wait until that complaint metastasizes into a formal prosecution before taking steps to protect yourself and your career.

Louis Fine: Chicago Professional License Defense Attorney

The moment IDFPR contacts you 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.

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.

It Doesn’t Take a Scalpel to Pierce Your Medical Practice’s “Corporate Veil”

pierceAs “Captain Obvious” would no doubt note: doctors get sued. Medical malpractice lawsuits are filed every day in which a patient alleges that a physician failed to adhere to the appropriate standard of care. But doctors get sued for other reasons and by folks other than those they treat. Medicine is a business as well as a profession, and like other businessmen and women, doctors can get sued by people or entities they do business with, including the government.

That is one of many reasons physicians form medical corporations, limited liability companies, or professional service corporations. These specialized entities can shield the personal assets of physicians who act as officers, directors, or shareholders when lawsuits by creditors or other liabilities confront their business. But that protection is not absolute, and doctors can find their personal assets in the crosshairs of a determined litigant if they fail to adhere to the requisite “standard of care” in managing their entity.

“Piercing the Corporate Veil”

“Piercing the corporate veil” is the term used to describe imposing personal liability on a company’s owner(s) for a corporate obligation. Plaintiffs often attempt to pierce the corporate veil when the company they are suing is insolvent or would be otherwise unable or unlikely to pay any judgment entered against it.

Veil-piercing allows a court to “impose liability on an individual or entity that uses a corporation merely as an instrumentality to conduct that individual’s or entity’s business.” Fontana v. TLD Builders, Inc., 362 Ill. App. 3d 491, 500 (2005)

Illinois courts use a two-prong test to determine whether to pierce the corporate veil:

  1. there must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and
  2. circumstances must exist such that adherence to the fiction of a separate corporate existence would sanction a fraud, promote injustice, or promote inequitable consequences.”

In determining whether the “unity of interest and ownership” prong of the test is met for a medical business entity, a court will consider many factors, including:

  • inadequate capitalization;
  • insolvency;
  • failure to follow corporate formalities
  • commingling of funds;
  • diversion of assets from the entity by or to a member to the detriment of creditors;
  • failure to maintain arm’s-length relationships among related entities; and
  • whether, in fact, the entity is a mere facade for the operation of the dominant members.

Medical Entities Do Not Shield Doctors from Malpractice Liability

While a properly organized and managed entity can protect a doctor’s personal assets from creditors and business-related claims, it affords no such protection against medical malpractice claims. The Illinois Medical Corporation Act specifically provides that it “does not alter any law applicable to the relationship between a physician furnishing medical service and a person receiving such service, including liability arising out of such service.”

Similarly, the Illinois Professional Service Corporation Act states that physician officers, shareholders, or directors “remain personally and fully liable and accountable for any negligent or wrongful acts or misconduct committed by him, or by any ancillary personnel or person under his direct supervision and control, while rendering professional services on behalf of the corporation to the person for whom such professional services were being rendered.”

If you are a physician who has an interest in an Illinois medical practice, it is critical that you understand that the protections afforded to your assets aren’t set in stone just because you formed a corporate entity. I work closely with physicians and their entities to implement programs and protocols designed to minimize risks, including the risk of personal liability for their business obligations. If you need assistance with your medical practice’s legal obligations, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

Medical Corporations are Licensees Too, My Friend

corpEven though individual licensed physicians, not a corporate entity, are the ones doing the diagnosing, treating, and healing, the entity still must be licensed by the IDFPR. There are three main types of medical entities that Illinois physicians can form: a medical corporation, a limited liability company, and a professional corporation. In a medical corporation or professional corporation that provides medical services, only licensed physicians may be shareholders, directors and officers.

In Illinois, physicians may also practice medicine through a limited liability company so long as the managers and each member are licensed to practice medicine under the Illinois Medical Practice Act or a member or manager is a registered Illinois professional corporation, medical corporation or appropriately structured and licensed limited liability company.

Medical Corporations

Under the Illinois Medical Corporation Act, no corporation shall open, operate or maintain an establishment involving the delivery of medical services in the state without a license issued by IDFPR. All medical corporation licenses expire on December 31 of each year regardless of the date on which IDFPR issued the license and must be renewed every year.

It is important to note that IDFPR can revoke or suspend the corporation’s license for numerous reasons, including:

  • the revocation or suspension of the license to practice medicine of any officer, director, shareholder or employee not promptly removed or discharged by the corporation;
  • unethical professional conduct on the part of any officer, director, shareholder or employee not promptly removed or discharged by the corporation;
  • the death of the last remaining shareholder; or
  • upon finding that the holder of a certificate has failed to comply with the provisions of this Act or the regulations prescribed by the Department.

Medical corporation owners therefore need to be cognizant about how any individual physician’s disciplinary issues may impact the corporation’s license status.

Limited Liability Companies

Licensed Illinois physicians can also form a limited liability corporation (LLC) to provide professional services, and the LLC must be licensed by IDFPR  just like a medical corporation.

While the owners of a medical corporation can be licensed for different medical professions, all members and managers of LLCs providing any of the following professional services must be licensed for the same profession:

  • Clinical psychology
  • Dentistry
  • Marriage and family therapy
  • Medicine

Professional Service Corporations

Licensed Illinois professionals who perform the same or “related professional services” may form a professional service corporation. “Related professional services” include a combination of personal services by physicians, podiatric physicians, dentists, and optometrists licensed in Illinois. Only licensed individuals engaged in the same or related professions may be shareholders, directors, or officers in the corporation. All Illinois professional service corporations must be licensed by IDFPR.

Entities which lose their license cannot continue to legal offer medical services. If they continue to do so, it could cause problems for the individual physician/owners. Not only may they be subject to disciplinary action, but the failure to follow the law could theoretically contribute to a physician’s personal exposure for the entity’s obligations or liabilities if a plaintiff attempts to “pierce the corporate veil.”

In our next post, we will discuss how issues other than licensing can cause headaches for medical entity owners who fail to comply with the formalities and requirements that apply to the operation of their entities.

Louis Fine: Chicago Medical License Defense Attorney

Whether it is your personal license or your entity’s license that is in IDFPR’s crosshairs, please 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.

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.

Keeping Quiet: “Pleading the Fifth” In Professional License Proceedings

5th amendOh, to be Michael Cohen right now. Donald Trump’s long-time consigliere, “fixer,” and soon-to-be hostile witness is under criminal investigation and will likely be charged soon with a cornucopia of federal crimes which could send him up the river for decades. Cohen is also a defendant in the civil suit brought by Stormy Daniels in which she is seeking to void the hush money agreement about her affair with Trump that Cohen so kindly facilitated. Last week, Cohen told the court hearing the Stormy case that he was invoking his rights against self-incrimination under the Fifth Amendment to the U.S. Constitution and reusing to testify.

Cohen is “pleading the Fifth” in the Stormy case because he fears, rightly, that anything he says in that case could be used against him in the criminal investigation he is currently enmeshed in. 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. 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, as Mr. Cohen recently did.

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.

Attorney Louis Fine is available to speak on all Illinois professional licensing issues, including the unique challenges and potential pitfalls faced by physicians and other health care professionals. If you are interested in having Louis speak to members of your organization, company, or practice, please email him at louis@lrflaw.com

Loosening of Licensing Laws Looking a Lot Likelier

regsThe current administration is pushing radical deregulation across almost every aspect of the nation’s economic and public life. Most of these efforts are not designed with the public good in mind and are instead focused on advancing the interests of those who would financially benefit from the elimination of regulations such as those which protect the environment, enhance workplace safety, or ensure opportunity and protections for the disabled or other vulnerable groups.

However, even a stopped clock is right twice a day, and one regulatory framework is rightfully being reexamined to see whether it is in fact doing more harm than good. Specifically, the push to reevaluate and reform state professional and occupational licensing regimes keeps gaining steam.

Federal Dollars for State Licensing Reform

Premised on concerns that too many jobs are subject to too many licensing requirements, and that these regulations are creating financial and practical barriers to people seeking to enter scores of occupations, an increasing number of voices are calling on states to make dramatic changes to their laws. This now includes the U.S. Department of Labor (DOL). Under a recently announced grant program, the federal government is offering states millions of dollars to review, eliminate and reform their licensing requirements.

Under the State Occupational Licensing Review and Reform grant program, individual states, including Illinois, can apply for up to $450,000 in funding to “review and streamline occupational licensing requirements in state-identified occupations and to promote portability of state licenses to and from other states.” Illinois has already joined a consortium of 10 other states who have been doing just that in conjunction with an existing DOL effort.

Consumer Protection v. Economic Opportunity

Why is this a necessary and even positive development? After all, the underlying premise of occupational and professional licensing requirements is to protect consumers and ensure that those holding themselves out as skilled or competent in providing services are in fact skilled and competent.

Protecting the public from charlatans and hacks is unquestionably a public good. Few people will argue that doctors, lawyers, accountants, or dentists should not be regulated to ensure that they meet certain basic requirements of training, skill, and ethics.

But reform advocates argue that there are way too many occupations which are subject to licensing requirements. For example, the Illinois Department of Financial and Professional Regulation (IDFPR) is responsible for reviewing license applications in 235 separate categories covered by 61 different professional license acts. It licenses and regulates over 1 million professionals and firms throughout Illinois.

Economists and others have argued that professional licensing requirements for many occupations present unnecessary barriers that keep many people from entering those jobs while not significantly adding to consumer protection.

In announcing the grant, Secretary of Labor Alexander Acosta said:

“Excessive licensing raises the cost of entry, often prohibitively, for many careers, barring many Americans from good, family-sustaining jobs. In 1950, only 1 in 20 jobs required an occupational license. Today, more than 1 in 4 require a license to work… If licenses are unnecessary, eliminate them. If they are necessary for health and safety, then streamline them and work with other states for reciprocity.”

Indeed, a 2015 study by the Brookings Institution found there were “far more cases” in which licensing reduced employment than ones where it improved the quality and safety of services. The restrictions have resulted in 2.8 million fewer jobs nationally and raised consumer costs by $203 billion annually, the study found.

When combined with the unfairness of the professional license disciplinary process, the overzealous exclusion of qualified individuals from their chosen occupations, especially those occupations which do not implicate health, safety, or financial concerns, is worthy of serious reconsideration.  .

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.

Professionals Charged With Crimes Need to Think Long and Hard Before Entering a Plea Bargain

pleaIf you are facing criminal charges, you have a lot to worry about. Depending on the nature of the charges, you could be facing thousands of dollars in fines, months or even years behind bars, and a stain on your reputation that can follow you around for decades. If you are also a licensed professional, the outcome of your criminal case could have a profound impact on your ability to continue earning a living in your chosen profession.

In a perfect world, you would be able to beat the charges, put the ordeal behind you, and return to your life with minimal disruption. Many times, however, the prospect of severe criminal consequences upon conviction – and the substantial attorney’s fees you will incur win or lose — can make a plea bargain with prosecutors an attractive proposition.

If you can avoid being separated from your family by pleading guilty to a lesser offense or by agreeing to other terms proposed by prosecutors, you may understandably jump at the chance. That’s one reason that more than 90 percent of state and federal criminal convictions are the result of guilty pleas.

Plea Bargain = Conviction = Disciplinary Action

But you need to take a long, hard look at the terms of any such offer and the implications it can have on your career before you leap into a plea bargain. While no jury or judge has found you guilty of a crime, you are effectively declaring yourself guilty when you enter into a plea bargain. In the eyes of most Illinois professional licensing laws and the Illinois Department of Financial and Professional Regulation (IDFPR), guilty is guilty, and your license may be at immediate risk for suspension or revocation once you sign on the prosecutor’s dotted line.

Almost every Illinois licensing statute makes certain criminal convictions a basis for disciplinary action. The Illinois Physical Therapy Act provides a typical example of how criminal convictions are treated under state licensing acts. It states that a therapist’s license can be denied, revoked, suspended, or subject to other disciplinary action for:

Conviction of any crime under the laws of the United States or any state or territory thereof which is a felony or which is a misdemeanor, an essential element of which is dishonesty, or of any crime which is directly related to the practice of the profession; conviction, as used in this paragraph, shall include a finding or verdict of guilty, an admission of guilt or a plea of nolo contendere;

Note that the statute makes no distinction between a guilty verdict and admission of guilt. Also note that the language, which is substantially similar to that in other licensing acts, only involves convictions for crimes involving “dishonesty” or those “directly related to the practice of the profession.” But these categories can encompass a wide range of criminal offenses, from fraud, shoplifting, and embezzlement to drug possession or driving under the influence, depending on the profession.

Relinquishing License as Part of Plea Bargain

In some cases, prosecutors may condition a plea bargain on the defendant voluntarily relinquishing their license, often permanently. While some licensing acts allow for reinstatement after a period of time has passed after a conviction for certain offenses, a voluntary agreement to give up a license can take away that opportunity.

If you are being prosecuted for a crime and are offered a plea agreement which involves surrendering your license, it is critical that you consult with both your criminal defense attorney as well as a professional licensing lawyer to discuss the implications of such an agreement. After all, whether or not you serve any time, you will need to make a living when your criminal justice ordeal is over.

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.

Silence Isn’t Golden: Can a Failure to Report a Colleague’s Sexual Misconduct Cost You Your Professional License?

silenceFrom Hollywood to Washington, D.C., from major corporations to small businesses, from universities to the military, decades of sexual harassment and misconduct are being uncovered and those responsible are finally being called to account. But the harsh light of justice isn’t just being shone on the perpetrators of these acts. The Harvey Weinstein and Larry Nasser cases are prime examples of how 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.

The failure to report a colleague’s misconduct – sexual or otherwise – is not just a moral failure, it can be a breach of professional ethics as well.

Ethical Obligation to Report Misconduct

The duty to report misconduct within one’s 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 put it: “The duty to report is a fundamental way in which physicians and others can fulfill duties of beneficence by removing potentially harmful conditions.”

Similarly, the Council on Ethical and Judicial Affairs of the American Medical Association 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.

AMA Reporting Guidelines

As such, 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 the health and safety of patients 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 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.

What’s in Fido’s Best Interest? Pets Treated More Like Kids Under Changes to Illinois Divorce Law

fidoYour dog or cat may spend a lot of time lying around your house like a piece of furniture. Up until this year, a piece of furniture was an apt description of how Illinois law treated pets when their owners got divorced. Pets were considered items of personal property, subject to division under equitable distribution principles. But Illinois legislators finally recognized that our pets are much more than personal property, no matter how much they lay around. They are friends, companions, and family members.

That is why, as of January 1st, Illinois law allows judges to consider the post-divorce fate of pets much in the same way they do with children – by considering what is in the pet’s best interests or, to use the language of the new law, the pet’s “well-being.”

Public Act 100-0422 provides that spouses can enter into an agreement, or a judge can enter an order, “allocating the sole or joint ownership of or responsibility for a companion animal.” With the exception of service animals, which are excluded from this provision since they are critical to one of the two spouses, a “companion animal” under the new law could be any animal, not just dogs and cats. There are no doubt couples who have become very attached to their pet ferrets, potbellied pigs, and iguanas, and they too can avail themselves of the new law’s benefits.

While pets are no longer considered personal property, they must be considered a “marital asset” in order for a judge to allocate ownership and responsibilities between the spouses. As a practical matter, this means that only those pets acquired during the marriage are subject to the new law.

The issue of “pet custody” predates this change in the law, and the often-contentious nature of disagreements about pets during divorce was one of the reasons behind the new statute. What makes this law interesting is how judges may look at a pet’s “well-being.” For example, will a judge look at the relationship between each spouse and the pet, including who is responsible for their care and feeding, who takes it to the vet, or who walks it more? The law leaves “well-being” undefined.

As with all other matters involved in divorce, it is almost always better for a couple to reach a negotiated agreement about the care of their pet going forward. You can develop a “parenting plan” similar in many respects to the one parents must prepare. It can allocate time and responsibilities between the spouses, allowing them both to enjoy the companionship of their furry (or scaly) friend.

If you do decide to draft a shared “custody” agreement, don’t forget to include important details about which party will bear the costs of maintaining the animal. Include language that specifies who is responsible for veterinarian visits, grooming, food, and end-of-life decisions. You would be surprised how often people disagree on caring for terminally ill or ailing animals. Address these issues now before emotions take over.

If you have questions or concerns regarding this change in Illinois law, your pets, or any other issues relating to divorce, please give me a call at (312) 236-2433 or fill out my online form to arrange for a free initial consultation.

Vicious Circle: Failure to Pay Student Loans Can Cost You Your Illinois Professional License

loansWhether you are a surgeon, an accountant, a hairstylist, or are in any of the scores of occupations which require a professional license in Illinois, it no doubt took a lot of work and commitment to get where you are. It’s also likely that it cost you some money. If that money was in the form of student loans, know this: all of your hard work can be for naught if you fail to pay those debts. Illinois is one of 20 states that can strip you of your professional license for defaulting on student loan obligations.

Catch-22

A recent story in the New York Times shined a spotlight on this practice, one which theoretically threatens the livelihoods of millions of professionals across the country and thousands in our state. Student loan debt in the U.S. is astronomical, and default rates have been rising. By one estimate, there is currently $1.4 trillion in student loan debt outstanding nationally.

In Illinois, according to a recent report, 61 percent of graduates of four-year public and private colleges and universities from the class of 2016 had educational debt, totaling $29,271, on average. That report doesn’t include debt incurred to attend community colleges or technical and vocational schools.

The rationale behind denying or revoking professional licenses for unpaid student loans is that it will incentivize borrowers to make payments. But taking away someone’s livelihood because they can’t make payments on their student loans sets up a situation that does more harm than good. Punishing someone for an unpaid debt by taking away their ability to pay that debt is a grotesque catch-22.

Some States Are Harsher Than Others

According to the Times, their research “identified at least 8,700 cases in which licenses were taken away or put at risk of suspension in recent years, although that tally almost certainly underestimates the true number.”

The states that allow professional licenses to be denied or revoked for unpaid student loans vary widely in how aggressively they use this draconian tool. For example, according to the Times article, Tennessee’s professional licensing authorities took some form of action against 5,400 licensees for unpaid debt between 2012 and 2017. Conversely, licensing officials from states like Hawaii, Iowa, Massachusetts, and Washington say they do not take disciplinary action for student debt even though they have the statutory power to do so.

What is the Risk in Illinois?

Illinois law (20 ILCS 2105/2105-15) requires that the Illinois Department of Financial and Professional Regulation “deny any license or renewal… to any person who has defaulted on an educational loan or scholarship provided by or guaranteed by the Illinois Student Assistance Commission or any governmental agency of this State.”

While it is unclear how many Illinois licensees have been or remain at risk for debt-based disciplinary action, it appears that the IDFPR has not been particularly active in using its powers in this regard. But that could always change. If you are a licensed Illinois professional who has defaulted on your student loan debt, be aware that the career you financed with those loans could be threatened.

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.

If You Pay Spousal Maintenance, You’ll Pay More So the Ultra-Rich Can Get Tax Cuts Under Proposed GOP Plan

tax

Divorce is already a painful proposition. It can be an expensive one as well. And if one iteration of the Republican tax scheme currently making its way through Congress actually becomes law, divorce will be even more painful and more expensive for those making spousal maintenance payments.

Under current law, all amounts paid for spousal maintenance or alimony reduce the payor’s taxable income by the same sum. For most folks paying maintenance, this deduction represents a significant tax savings that can ease the burden of supporting an ex.

Republicans Want “Divorce Penalty” to Pay for Tax Cuts for the Wealthy

If the GOP has its way, however, that deduction will disappear in order to pay for sweeping tax cuts for the ultra-wealthy. Section 1309 of the Republicans’ so-called “Tax Cuts and Jobs Act” includes a controversial provision that would eliminate the break divorcees get for paying alimony.

This would be unfair, unwise, and unwelcome for almost every person on the hook for maintenance payments.

The additional financial strain created by eliminating this crucial deduction could lead to more tension and disputes during the divorce process. For people who are struggling with the financial fallout of a divorce, including paying for two separate households, the loss of another $5,000-$15,000 per year could be devastating.

Impact on Illinois Maintenance Awards Unclear

In 2015, Illinois enacted significant changes to the law which established guidelines for how judges calculate the amount and duration of spousal maintenance awards. The guidelines only apply where the combined gross income of the parties is less than $250,000 and no multiple family situation exists. For couples within that threshold, the new law provides that a maintenance award should equal 30 percent of the payor’s gross income, minus 20 percent of the payee’s gross income.

If the spouse paying maintenance loses thousands of dollars annually because the GOP eliminates the tax deduction for those payments, it could impact how that gross income is calculated in a way that could hurt both spouses.

Call Me If You Have Questions

Obviously, the GOP’s plans have yet to be finalized and there is a long way between the hundreds of proposals in the plan and an actual piece of passed and signed legislation. But if the Republicans get their way and eliminate the spousal maintenance deduction, it represents just another way that those already struggling to meet their obligations will bear the burdens of making the ultra-rich ultra-richer.

If you are considering a divorce and have questions about how these proposed changes to the law may impact your decision-making, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation.