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

Posted on January 6, 2021January 17, 2024 by Louis Fine

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

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

Burnout, Stress, and Anxiety Losing Out To Fear

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

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

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

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

Invasive and Irrelevant Questioning By Medical Boards

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

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

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

Illinois Limited Its Mental Health Questioning in 2016

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

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

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

Louis R. Fine: Chicago Physician License Defense Attorney

Throughout my career, I have been protecting the livelihoods and professional futures of physicians and other health care providers before the IDFPR, combining insight and experience with zealous and strategic advocacy.

If you have physician licensing questions or concerns, please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

Cognitive Decline Among Older Physicians Leading to Increased Screening

Posted on March 3, 2020January 17, 2024 by Louis Fine

For every accomplished physician who dreams of retiring early, there is one who can’t imagine giving up the work that brings them so much personal and professional satisfaction and financial security. Every year, 20,000 American doctors turn 65, but only half of them retire by then. Thousands of physicians continue to practice well past their 70th, even 80th, birthdays. It is estimated that one in every eight practicing doctors in the U.S. is over 65, overseeing 50-70 million office visits and 11 million to 20 million hospitalizations each year.

One In Eight Doctors Over 70 Found to Have Significant Cognitive Deficits

With so many patients receiving care from physicians 65 and up, many hospitals and healthcare systems are also increasing their scrutiny of the cognitive abilities and faculties of these senior clinicians. Major institutions such as Scripps Health Care, Intermountain Healthcare, Stanford Hospitals and Clinics, and Penn Medicine have implemented mandatory cognitive screens for older practitioners.

At Yale New Haven Hospital, for example, all applicants 70 or older who seek reappointment to the medical staff are required to have an objective evaluation of cognitive function as part of the two-year reappointment process. What a recent round of that testing revealed was that one in eight doctors who participated in the screening had cognitive deficits that were likely to impair their ability to practice medicine independently.

Testing or No Testing, Cognitive Issues Raise Professional Licensing Concerns

The wisdom and efficacy of such testing programs is subject to debate, with many arguing that age-based screening is empirically unjustified or inherently discriminatory. Whether subject to required testing or not, however, all older physicians who continue to treat patients later in life will at some point face difficult questions about their abilities and the prudence of continuing to practice.

Confronting issues of cognitive decline, if not impairment, is no easy task, personally and professionally. But recognizing any such concerns is also an ethical imperative. Continuing to practice while suffering from cognitive impairment significant enough to raise concerns about patient safety can subject a physician of any age to disciplinary action and the loss of their license.

The Illinois Medical Practice Act (the “Act”), for example, makes it a basis for suspension or revocation of a license for a physician to practice if they have a:
• Mental illness or disability which results in the inability to practice under this Act with reasonable judgment, skill or safety.
• Physical illness, including, but not limited to, deterioration through the aging process… which results in a physician’s inability to practice under this Act with reasonable judgment, skill, and safety.

The Act also imposes reporting requirements on certain health care executives regarding “impaired” physicians, defined as those who lack the ability “to practice medicine with reasonable skill and safety due to physical or mental disabilities as evidenced by a written determination or written consent based on clinical evidence including deterioration through the aging process or loss of motor skill… of sufficient degree to diminish a person’s ability to deliver competent patient care.”

Doctors, for all their talents, are as vulnerable as anyone else to the inevitable effects of time and aging. While debate may continue as to the best way to identify and remediate instances of age-related cognitive or physical impairment, doctors who practice well into their golden years need to combine their clinical judgment with self-awareness when evaluating the wisdom of continuing to treat patients. Failing to do so puts both patients and professional licenses at risk.

Louis R. 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 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.

Telemedicine and Physician Licensing: How the 19th Century is Holding Back the 21st

Posted on November 7, 2019January 17, 2024 by Louis Fine

Advancements in technology almost always outpace efforts by legislators and regulators to address the new realities, issues, and concerns that arise from such innovations. Laws that made sense even a short ten years ago can quickly become anachronistic, if not counterproductive.

Such is the dilemma facing physicians and healthcare providers who see telemedicine as a key way to address a growing physician shortage, especially in rural and other underserved areas. That shortage is expected to grow to 120,000 doctors by 2030, according to a 2018 report by the Association of American Medical Colleges.

51 Different Licenses

The problem is that while the internet knows no borders, medical licenses do. Increasingly, 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.

Physicians must be licensed in each state where their current and future patients are located, so a doctor wanting to counsel patients through telemedicine would need to obtain and stay compliant with licensing requirements in up to 51 jurisdictions governed by 51 different medical boards imposing 51 different standards, conditions, and rules.

The current state-based medical licensing regime traces its roots back to the 19^th Century, and the system is clearly showing its age. While effective and robust licensing is still essential in ensuring quality of care, the lack of license reciprocity and portability between states is now more of a hindrance to providing such care than a help.

That is why already active efforts to change medical licensing to facilitate telemedicine continue to gain steam. The most successful of these efforts to date has been the Federation of State Medical Licensing Board’s (FSMB) work establishing the Interstate Medical Licensure Compact. Physicians in good standing can freely practice in any of the states participating in the compact so long as they possess a “full and unrestricted” license in their state of principal license (SPL). To date, only 24 states, including Illinois, have joined the compact.

A Uniform, Nationwide System

This still leaves too many doctors and too many patients locked out of telemedicine. As noted by the authors of a recent 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.”

That is why the FSMB and other telemedicine advocates have advanced several proposals to enhance license portability and reduce regulatory barriers to telemedicine. They all are based around a mutual recognition scheme whereby states honor each other’s medical licenses based on models that have been successfully used in Europe and Australia and by the Veterans Health Administration, US military, and US Public Health Service.

Adoption of a nationwide licensing scheme would be facilitated by establishing consistent standards for using and regulating telemedicine services, the sharing of malpractice, medical error, and license cancellation or suspension information between states, and other federal and state-level reforms.

Any efforts that would streamline the physician licensing process while at the same time increasing access to healthcare for those who need it most should be encouraged.

Louis R. Fine: Chicago Physician License Defense Attorney

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.

Minor Licensing Violations Could Cost Physicians Medicare Billing Privileges Under Proposed Rule

Posted on September 25, 2019January 17, 2024 by Louis Fine

For physicians and other eligible health care professionals, Medicare enrollment and billing privileges are invaluable and lucrative assets that can form a substantial portion of their revenues, allow them to treat more patients, and expand their career opportunities. Losing those privileges can be a catastrophic blow to a practice.

But a new rule proposed by the Centers for Medicare & Medicare Services (CMS) would dramatically expand CMS’ authority to deny or revoke Medicare privileges, allowing it to substitute its judgment for that of state licensing boards and impose such catastrophic sanctions even for infractions a state board deems relatively minor.

On August 14, 2019, CMS issued what it called a “major proposed rule” addressing a wide range of changes to the Medicaid physician fee schedule and other aspects of participation in the program. If it becomes final, all 808 pages of the proposed rule would represent the most substantial modification to program enrollment and eligibility since the establishment of the regulations in 2006.

CMS Can Impose Harsher Sanctions Than State Boards

In the proposed rule, CMS notes that, at the moment, it cannot make Medicare eligibility and renewal decisions based solely on state board disciplinary actions:

“We currently lack the legal basis to take administrative action against a physician or other eligible professional for a matter related to patient harm based solely on… an administrative action (excluding a state medical license suspension or revocation) imposed by a state oversight board,” such as the Illinois Department of Financial and Professional Regulation (IDFPR).

The new rule would grant CMS such authority and “would permit us to revoke or deny, as applicable, a physician’s or other eligible professional’s… enrollment if he or she has been subject to prior action from a state oversight board… with underlying facts reflecting improper physician or other eligible professional conduct that led to patient harm.”

84 Fed. Reg. at 40723.

As a practical matter, the rule gives CMS the power to review a state board’s conclusions and sanctions and then make its own determination as to whether the physician’s or other professional’s conduct warrants exclusion from Medicare.

This can lead to a situation in which IDFPR deems an infraction to be relatively minor and perhaps deserving of a “slap on the wrist” while CMS could decide to impose a “death sentence” in terms of Medicare eligibility, a conflict CMS readily acknowledges:

“We recognize that situations could arise where a state oversight board has chosen to impose a relatively minor sanction on a physician or other eligible professional for conduct that we deem more serious. We note, however, that we, rather than state boards, is ultimately responsible for the administration of the Medicare program and the protection of its beneficiaries. State oversight of licensed physicians or practitioners is, in short, a function entirely different from federal oversight of Medicare. We accordingly believe that we should have the discretion to review such cases to determine whether, in the agency’s view, the physician’s or other eligible professional’s conduct warrants revocation or denial.”

Id.

Making matters worse for sanctioned physicians, a decision by CMS to revoke Medicare privileges results in an automatic cross-termination of participation in Medicaid and other federal payer programs.

The public comment period for the proposed rule closes on September 27, 2019. If the rule is enacted, it becomes that much more critical for physicians facing IDFPR investigations or disciplinary proceedings – even for a “minor” infraction – to retain experienced professional license defense counsel.

Louis R. Fine: Chicago Physician License Defense Attorney

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.

HIPAA and IDFPR: Violations of Patient Privacy Can Threaten Your Professional License

Posted on September 10, 2019January 17, 2024 by Louis Fine

The Jussie Smollett saga earlier this year made headlines here in Chicago and throughout the country. It was a juicy tale of a supposed hate crime against an actor, that turned out to be a hoax, that led to criminal charges against Smollett, that were later dropped by State’s Attorney Kimberly Foxx, who then found herself under scrutiny for that decision. But Smollett and Foxx weren’t the only ones in this tale whose conduct raised eyebrows or put them in legal or ethical jeopardy.

Fifty employees, including several nurses, at Northwestern Memorial Hospital lost their jobs and faced disciplinary action because they violated the patient privacy provisions of the Health Insurance Portability and Accountability Act (HIPAA). This included one nurse who did nothing more than search for Smollett’s name in the hospital’s system.

Breaching HIPAA Obligations Is Easy. Dealing With the Fallout Is Not.

If you are a physician or registered nurse, or if you work in healthcare in any capacity, you are no doubt generally aware of HIPAA and the duties it creates to ensure the confidentiality of protected health information (PHI). That fired nurse no doubt knew about HIPAA’s privacy and security rules as well. But her case demonstrates how quickly and inadvertently you can breach your professional obligations as to patient privacy and put your career – and professional license – in peril.

After HIPAA became law in 1996, the U.S. Department of Health and Human Services (HHS) issued a set of national standards governing the use, maintenance, and disclosure of patients’ protected health information. Commonly known as the Privacy Rule, the Standards for Privacy of Individually Identifiable Health Information limit how and to whom PHI can be disclosed.

Additionally, medical professionals and organizations must comply with detailed rules involving the physical and electronic security of PHI (the Security Rule, or Security Standards for the Protection of Electronic Protected Health Information) as well as the Breach Notification Rule which addresses what doctors and healthcare providers need to do in the event of a data breach.

As complex as HIPAA rules can be, violating them couldn’t be easier. It doesn’t require malicious intent (though that makes matters worse) or the knowledge that an act or omission violates HIPAA. In fact, most HIPAA infractions are inadvertent and more a factor of “loose lips sink ships” than anything else. But that doesn’t insulate a doctor or nurse from civil penalties or professional license consequences.

Common HIPAA Privacy Rule Violations

The following are common examples of how medical professionals can and do unknowingly violate HIPAA’s Privacy Rule:

Leaving patient files and information in plain view, such as at a nurse’s station or reception desk, so that anyone in proximity may be able to see that information.
Social media posts, pictures, or videos that may directly or indirectly reveal information about a patient or their condition, even in “closed” groups. A 2015 ProPublica review uncovered 22 cases of HIPAA-violating photo and video sharing in just the previous three years, with 35 instances of inappropriate image and video sharing found in total. There have been plenty more widely-publicized incidents since then.
Sending PHI over messaging apps without patient authorization.
Accessing the PHI of patients you are not required to treat
Gossiping about specific patients and disclosing their health information to family, friends & colleagues
Improper disposal of PHI, such as discarding it in regular trash.

Possible Consequences of a HIPAA Privacy Violation

The Office for Civil Rights (OCR) at DHS is responsible for enforcing HIPAA’s privacy requirements and can impose civil fines and criminal penalties, including possible jail time, for violations. The penalties and/or fines administered by OCR are based on the severity of each HIPAA violation and the knowledge and intent involved. Only willful violations will raise the specter of criminal prosecution, but civil penalties can rise to the level of tens of thousands of dollars.

Additionally, under Illinois’ Medical Patient Rights Act, any physician or healthcare provider who discloses a patient’s PHI without their express consent or as otherwise provided by law is guilty of a petty offense and will be fined $1,000.

If a physician or nurse violates HIPAA in a willful or egregious way, or is negligent in their handling of patient information, the Illinois Department of Financial and Professional Regulation (IDFPR) may take an interest and see such conduct as the basis for disciplinary action.

For example, the Illinois Medical Practice Act provides that the Department may revoke, suspend, place on probation, reprimand, refuse to issue or renew, or take any other disciplinary or non-disciplinary action against a physician for “willfully or negligently violating the confidentiality between physician and patient except as required by law.”

To avoid all of these potential consequences, physicians and nurses must remain vigilant and ever mindful of their patients’ privacy and their obligations under HIPAA.

Louis Fine: Chicago Professional License Defense Attorney

If you have questions or concerns about your duties under HIPAA or find yourself facing an IDFPR investigation or complaint about patient privacy, please contact me immediately. 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 can 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.

DISCLAIMER: This email, and any attachments thereto, is the property of the Law Offices of Louis R. Fine and is intended for use only by the addressee(s) named herein and may contain confidential information, legally privileged information and attorney-client work product. If you are not the intended recipient of this email, you are hereby notified that any dissemination, distribution or copying of this email, and any attachments thereto, is strictly prohibited. If you have received this email in error, please notify the sender by email, telephone or fax, and permanently delete the original and any of any email and printout thereof. Thank you.

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

Posted on June 27, 2018January 17, 2024 by Louis Fine

As “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:

there must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and
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

Posted on June 14, 2018January 17, 2024 by Louis Fine

Even 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

Posted on May 1, 2018January 17, 2024 by Louis Fine

Oh, 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

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

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

Posted on February 21, 2018January 17, 2024 by Louis Fine

From 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.

Beware of “Aiding and Abetting” the Unlicensed Practice of Medicine

Posted on May 31, 2017January 17, 2024 by Louis Fine

“Aiding and abetting” are two words often associated with criminal law, as in, “The getaway car driver was charged with aiding and abetting the bank robbery.” But for physicians as well as many other professionals who are required to be licensed by the Illinois Department of Financial and Professional Regulation (IDFPR), aiding and abetting the unlicensed practice of their profession can also mean severe disciplinary action, including license revocation.

For physicians in particular, aiding and abetting the unlicensed practice of medicine can be a potentially disastrous minefield, as the permissible and seemingly innocuous delegation of certain tasks to assistants or others can inadvertently lead to IDFPR concerns.

Included among the over 40 enumerated bases for disciplinary action set forth in the Illinois Medical Practice Act (225 ILCS 60/1 et seq.) is “aiding and abetting an individual not licensed under this Act in the practice of a profession licensed under this Act.”

What Exactly is the “Practice of Medicine”?

The problem arises because the Medical Practice Act, despite its title, nowhere defines exactly what the “practice of medicine” entails. Section 22 of the Medical Practice Act directs the IDFPR to adopt rules that set forth standards to be used in determining several violations and terms under the Act. However, it does not require the Department to set forth explicit standards defining the practice of medicine.

As one court explained, the reason the legislature did not define “the practice of medicine” in the definitions section of the Act is “because a flexible definition of the practice of medicine is required in a statute intended to govern various healers from osteopaths to herb doctors. Siddiqui v. IDFPR, 718 N.E.2d 217 (4^th Dist. 1999).

Not every act performed by a physician constitutes the practice of medicine. Duties such as changing bandages, administering injections, drawing blood, and taking blood pressure are often performed by nonphysicians. However, the fact that licensed professionals other than physicians may be permitted to perform certain medical procedures under the supervision of a licensed physician does not render the performance of those same procedures by unsupervised and unlicensed individuals outside the ambit of the Medical Practice Act. People v. Bickham, 621 N.E.2d 86 (1993).

Delegation of “Patient Care Tasks” to Qualified or Supervised Individuals Can Be Permitted

Similarly, Section 54.2 of the Medical Practice Act specifically allows physicians to delegate authority to certain individuals:

Physicians can delegate patient care tasks to a licensed practical nurse, a registered professional nurse, or other licensed person practicing within the scope of his or her individual licensing Act.
Physicians can also delegate such tasks to physician assistants or advanced practice nurses.
In an office or practice setting and within a physician-patient relationship, a physician may delegate patient care tasks or duties to an unlicensed person who possesses appropriate training and experience provided a health care professional, who is practicing within the scope of such licensed professional’s individual licensing Act, is on site to provide assistance.
No physician may delegate any patient care task or duty that is statutorily or by rule mandated to be performed by a physician.

Diagnosis, Treatment Plan, and Prescriptions Cannot Be Delegated

What cannot be delegated, and what do not constitute “patient care tasks,” are the diagnosis of illnesses, and the development of treatment plans, including prescribing drugs. Siddiqui v. IDFPR, 718 N.E.2d 217 (4^th Dist. 1999). For example, the Pharmacy Practice Act of 1987 provides that a pharmacist may advise or counsel patients on the use of drugs or devices and provide health information related to them, however, the pharmacist’s role does not extend to deciding whether to prescribe drugs. This requires a medical judgment as to the needs of the patient, the effect of the drug, and the effectiveness of other types of treatment.

Physicians should ensure that they have developed specific protocols and procedures that define the permissible roles and actions of nurses, assistants, and others in their practice and be wary of delegating any tasks that may involve the diagnosis and the use of professional medical judgment in deciding on a course of treatment.

Louis R. Fine: Chicago Physician License Defense Attorney

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.