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

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.

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

New York Gov. Andrew Cuomo is just the latest in a long and infamous line of high-profile individuals to find their careers and reputations threatened by allegations of sexual harassment and misconduct. In most of these cases, from Larry Nasser to Harvey Weinstein to Jeffrey Epstein to countless others, the focus is justifiably on the alleged perpetrators of these abhorrent actions. But in the wake of the #metoo movement, many organizations and professions have 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.

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

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”

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.

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

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

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

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.

How To Win During A Year Of Incomprehensible Loss: VOTE

While it may seem impossible to encapsulate into one word the multidimensional maelstrom of horrors and crises which is the year 2020, “loss” comes as close as anything. The loss of hundreds of thousands of lives and loved ones to a criminally mismanaged pandemic. The loss of countless more to gun violence, police misconduct, and systemic racism. The loss of millions of jobs, livelihoods, and economic security. The loss of certainty and the rhythms and rituals of ordinary life, from children playing with their friends and laughing in school hallways to attending a wedding or watching a ball game.

The Rule Of Law Is Under Attack – And On The Ballot

All of these losses are staggering and would have been incomprehensible at the start of this Godforsaken year. But there are even more insidious and ongoing losses that predate the pandemic. These aren’t losses caused by biology or random chance. Rather, these are losses purposefully engineered by those who see the foundational principles of America, as well as the concept of objective reality, as impediments to their own craven designs, their shameless corruption, and the advancement of their personal interests at the expense of everyone else’s.

As a lawyer – as an American – I see the rule of law as sacrosanct and one of the last remaining bulwarks standing between the survival of the Republic and authoritarianism. But the past four years have seen an unrelenting and unprecedented war on the rule of law by those charged with faithfully executing those laws and those who have aided and abetted them in these efforts.

If past is prologue, and if cornered rats are the most dangerous kind, I fear that the next few months will see an even more voracious attack on the rule of law. That war is occurring in plain sight, from the sabotage of the postal service, to the incitement of violence for political gain, to a firehose of lies and misinformation spewing from the highest office in the land.

Attacking the rule of law and purposefully and relentlessly undermining public trust in the institutions that uphold the law in order to facilitate rampant lawbreaking is an unforgivable civic sin. That those engaging in such misconduct laughably do so under the banner of “law and order” makes it even more enraging.

Voting Is How We Maintain The Rule Of Law

The rule of law is how we hold leaders and lawbreakers accountable. It is what levels the playing field, at least in theory. It is the way we as a society facilitate change and address inequality and other social and economic injustices. And the way we do that is through the power of our votes. That is why so much effort is focused on depriving individuals of their right to vote, encouraging bad actors to corrupt the system, and sowing doubt about the legitimacy of an outcome that may not go as those currently in power would like – in a fair fight.

Voting determines everything. On life and death matters, it determines whether or not you can get health insurance if you have a preexisting condition or if you’ll have the resources to be able to pay your rent or mortgage. Even on less existential issues, who we elect matters. As a professional license defense attorney, I’ve seen how changes in leadership and laws impact the lives and livelihoods of thousands of licensed professionals and those they serve.

So, as early voting is set to begin here in Illinois and across the country, it is imperative that all of us enlist in the fight to preserve the rule of law by ensuring that we are registered and know our options as to how to cast our ballots. Illinois residents can register to vote or check your registration status here. You can request a vote by mail application here. Given ongoing efforts to interfere with your right to vote, casting your ballot sooner rather than later should be a priority, more so than in prior elections.

Shakespeare wrote one of the most misinterpreted lines in history: “The first thing we do, let’s kill all the lawyers.” Rather than an attack on the legal profession, the quote from “Henry VI” was actually a strategic statement by someone out to destroy the rule of law. It was uttered by Dick the Butcher, who was a follower of the rebel Jack Cade and thought that if he disturbed law and order, he could become king.

We don’t do kings here. We are a democracy. We are a nation of laws – and voters.

Proposed Legislation Would Remove Telemedicine Licensing Barriers

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.

Can You Lose Your Illinois Professional License For Making Racist Comments?

America’s current and long-overdue reckoning with systemic racism is manifesting itself in countless ways. From the millions marching in the streets to the pressure placed on corporations, executives, entertainers, and others to acknowledge and apologize for racist words and actions, it is clear that silence is no longer enough.

Similarly, those with far lower profiles are also being called out for their casual racism. Every week, seemingly, another so-called “Karen” becomes the unwitting star of a viral video in which they are seen flexing their privilege, entitlement, and prejudice by hurling insults at an African-American or other person of color. Birdwatching, sitting by the pool at a hotel where they are registered guests, doing some repairs on their own home – these are the transgressions for which they face the wrath of an angry white person making false claims of assault and calling 911 for absolutely no reason at all. As a matter of fact, after I started writing this post, yet another such video was burning up the internet

You Can Lose Your Job For Racism, But What About Your License?

But internet justice can be swift and unmerciful. Those whose repulsive conduct goes viral often find themselves out of a job, disowned and disavowed by employers who do not want their reputations tarnished by the racism of one of their employees. 

In the vast majority of states, private employers are well within their rights to fire an employee for being perceived as or for actually being a racist and/or Trump supporter, expressing other political or social views, or for pretty much any reason other than race, sex, religion, or membership in another legally protected other class.

But while you can lose your job for being a racist, can you also lose your professional license in Illinois for being one?

Is Racism “Unprofessional,” “Dishonorable,” and “Harmful”?

The Illinois Department of Financial and Professional Regulation (IDFPR) is a governmental body, which means that any adverse action based on the exercise of a professional’s free speech rights implicates the First Amendment. But the question of whether and how personal, off-the-clock, and non-criminal conduct can lead to professional license disciplinary action is still tricky.

The laws and rules governing all professions in Illinois contain many specific bases for disciplinary action, almost all of which are based on acts and omissions directly related to their professional responsibilities. But some licensing acts and underlying rules contain vague and ambiguous language which could theoretically be used by IDFPR to institute disciplinary proceedings for private conduct.

For example, a nurse is subject to disciplinary action under Section 70-5(b)(7) of the Illinois Nurse Practice Act for “engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public…”

Note that this section of the Act doesn’t discuss deceiving, defrauding, or harming a patient; it talks about “the public.” Is chanting racist slogans or baselessly calling 911 on an African-American “dishonorable” or “unprofessional” conduct likely to “harm” the public? The IDFPR (and most other folks) may see it that way, even if the First Amendment may ultimately thwart the Board if they try to discipline a licensee on that basis. But politics and free speech issues aside, other private conduct can put licensed professionals at risk for disciplinary action.

In Texas, for example, licensing boards have taken a very aggressive approach towards off-the-clock, legal, and harmless conduct which they believe implicates professional “fitness” or “judgment.” As one attorney in Texas described it, using such private behavior as the basis for discipline means that “anything you could do at any point could be considered unprofessional. They really do believe they have the ability to legislate morality.”

In Illinois, all kinds of personal behavior could arguably be scrutinized if a particular investigator or regulator at the IDFPR decides to look at things through that prism. Sexual conduct, controversial parenting techniques, a screaming tirade at a store clerk, internet searches – all legal, all having nothing to do with job performance – they may be fair game.

It would be serious overreach by the IDFPR if they were to take action based on such conduct, but as I have written before, the disciplinary process in Illinois 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 bringing their own biases to your case.

Everything we do in life has consequences. Those who are or act like racists should be prepared for the fallout from such repugnant beliefs and behavior. This can include the loss of their professional license. If decency, empathy, and a sense of shared humanity can’t change their views, perhaps the threat of losing their livelihood will.

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.