Tag: license defense

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

Posted on by Louis Fine

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

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

Allegations v. Burden Of Proof

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

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

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

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

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

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

License Denials And Requests For Reinstatement

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

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

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

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

Louis Fine: Chicago Physician Licensing Attorney

The moment you are contacted by IDFPR or learn that you are under investigation is the moment that you should contact me. I will immediately begin communicating with IDFPR prosecutors and work with you to develop the strategy best suited to achieving the goal of an efficient, cost-effective outcome that avoids any adverse action. Together, we will get you back to your patients and your practice.

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

 

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

Posted on 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.

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Spring Ahead With These Important Professional Licensing Updates and Developments

Posted on by Louis Fine

Happy Springtime. In the spirit of the season, we’ve put together a potpourri of recent stories, issues, and developments in the world of Illinois professional licensing. As a Chicago professional license defense law firm, we stay abreast of all matters involving the Illinois Department of Financial and Professional Regulation (IDFPR) and that impact licensed professionals throughout the state.

Here is the latest news on the Illinois professional licensing front:

Citizenship Not Required For Professional Licenses Under New Bill

A bill recently introduced in the Illinois Senate would allow otherwise qualified applicants for professional licenses to obtain a license regardless of their citizenship or immigration status.

Senate Bill 1166, which passed the full Senate on March 21 and is now pending in the Illinois House of Representatives, provides that, except as otherwise provided by law, no department shall deny an occupational or professional license based solely on the applicant’s citizenship status or immigration status.

The bill’s author, Assistant Majority Leader Iris Martinez (D-Chicago), explained said that she drafted the legislation because, “If anyone in our state wants to contribute by working hard and paying taxes, they should not be denied because of where they were born.”

Extended IDFPR Delays Risks Exodus of Physician Assistants From Illinois

There is always a bit of a wait time between the date IDFPR receives a professional license application and the date it issues one. But every day that passes during that time is a day that the applicant can’t make a living and earn a paycheck working in their chosen profession.

For physician assistants (PAs), who are in one of the fastest-growing and most in-demand professions in the country, the problem with IDFPR delays is particularly acute. PAs are having to sit on their hands for months before they can begin to do their jobs helping patients.

The current processing time for Illinois Physician Assistant applications is 8 to 10 weeks, according to IDFPR, though some applicants report having to wait well-over three months before receiving their license. By way of contrast, the average wait time in neighboring Wisconsin is all of eight days.

The Illinois Academy of Physician Assistants (IAPA) places the blame on understaffing at IDFPR and its lack of “sufficient funding to tackle the backlog of applications.”

A report earlier this year by NBC 5 Chicago indicated that the difference in wait times is making a difference in where newly-minted PAs are choosing to practice, potentially leaving a shortage of PAs in Illinois at the same time their services are increasingly being utilized by more patients.

Hairstylists Now Need Domestic Violence Training

Hairstylists often become unofficial therapists and sounding boards for their clients. Now, they will officially need training so that they can spot signs of domestic violence or sexual assault and help those clients who are experiencing such trauma.

Under an Illinois law passed in 2016, all 84,000 beauty professionals in the state have until this September to complete the in-person or online classes. Cosmetologists, cosmetology teachers, estheticians, esthetic teachers, hair braiders, hair braiding teachers, nail technicians, and nail technology teachers will not be able to renew their professional licenses unless they do so.

The classes are one-hour and only one session is required, There are 20 approved sponsors across the state providing the needed training, including several locations in Chicago. IDFPR has a full list of all available class locations.

Louis Fine: Chicago Professional License Defense Attorney

If you have questions or concerns about your professional license, or you learn that you are the subject of an IDFPR investigation or complain, 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.

Top 5 Tips For Avoiding Professional License Complaints

Posted on by Louis Fine

You can’t please everyone. No matter your profession or career, if you have clients, customers, or patients, one of them at some point is going to be unhappy with you and your services. Whether their displeasure is justified or not, whether or not you’ve done everything right and are without fault for anything, whether they are straight-up making up facts and allegations, that disgruntled person can become a major thorn in your side.

If they file a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR), you will have to deal with it. At minimum, it will make you angry, frustrated, or indignant and you will need to spend your valuable time responding to the claims against you. If you fail to address the complaint effectively or if the Department finds merit in the allegations, the potential damage to your reputation and risk to your livelihood become exponentially greater.

In a perfect world, your professionalism, ethics, and competence would prevent any license complaints against you. But as we see every day, our world is anything but perfect. That said, there are things you can do to reduce the likelihood of complaints and position yourself for a positive outcome if a complaint is filed.

For doctors, accountants, appraisers, hairstylists, or any of the scores of professions regulated by IDFPR, here are five tips for avoiding professional license complaints:

  1. Know your professional obligations. Specific laws, rules, and regulations govern your profession. Baseline standards of care, continuing education requirements, and other obligations must be complied with for you to stay on the right side of regulators and These requirements are numerous and can change without notice. Make sure that you keep up with your obligations and audit yourself every year to confirm that you are in compliance.
  2. Educate your staff. If you employ others in your practice or profession, you are responsible for everything they do in the course of their employment. Their misconduct, malfeasance, or negligence can directly threaten your license. You need to supervise, train, and educate your staff to ensure that they understand their professional obligations and are following all applicable rules. Put in place policies and protocols that can minimize deviations and quickly correct them if they occur.
  3. To sue or not to sue? You have every right to get paid for services you provide, and when a client or customer skips out on a bill, you have every right to pursue them in a collection lawsuit. While some folks may fail to pay because they are simply avoiding their obligations, others may claim that the services you provided were substandard, improper, or not what you promised. If that’s the case, you’ll want to try to resolve these disputes before filing suit. Even if you can’t do so, you’ll be well-positioned if they respond with a license complaint, as sued clients often do.
  4. Document everything. Whether in a civil lawsuit or an IDFPR disciplinary proceeding, the more documentation and evidence you have to support your position, the better your chances of a positive outcome. Be sure to document any problems that occur and the steps that you took to correct them. If any staff was involved, have them document their version of events as well.
  5. Communicate. What we have here with so many professional license complaints is a failure to communicate. Inadequate client communication can lead to misunderstandings or feelings of neglect and insufficient care, increasing client dissatisfaction and the likelihood of claims. Be accessible and responsive, and make sure your staff is too.

As noted, you will likely face a professional license complaint at some point in your career, and when you do so, the most important tip is to contact an experienced Chicago professional license defense attorney as soon as possible. Seasoned and knowledgeable counsel can be the key to resolving IDFPR matters early and cost-effectively so you can focus on your career instead of complaints.

Louis Fine: Chicago Professional License Defense Attorney

The moment IDFPR contacts you or you learn that you are under investigation is the moment that you should contact me. Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. I look forward to meeting with you.

It Could Happen to You: Understanding IDFPR Sanctions

Posted on by Louis Fine

In recent posts, we’ve discussed the investigations and disciplinary proceedings which the Illinois Department of Financial and Professional Regulation (IDFPR) conducts when a professional’s license comes under its scrutiny.

At various points in these processes, complaints may be dismissed or matters resolved without the imposition of any sanctions or other actions which could damage the licensee’s career or reputation. But in many cases, the IDFPR may conclude that disciplinary action is warranted. What that action may be, what it means, and how it may impact your life and livelihood can vary wildly. If you receive an IDFPR complaint or are facing administrative proceedings, it is crucial that you understand the potential consequences the IDFPR can impose if they find that your conduct merits it.

The following are some of the possible sanctions the IDFPR can levy on professional licensees:

  • Reprimand. While a reprimand will not limit your ability to work or practice, it may require monitoring and is an official public record of discipline.
  • Probation. If you are placed 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 further problems potentially involving further discipline. The probation term could be for a set period which will automatically expire providing all conditions were complied with or it could be for an indefinite time, requiring that the licensee petition the board to terminate the probation.
  • Suspension. If your license is suspended, you are prohibited from working in your profession during the suspension term. As with probation, the duration of suspension can be set or indefinite.
  • Summary or Temporary Suspension. If the Department determines that a licensee’s continuation in practice poses an imminent danger to the public, it can take immediate action by summarily or temporarily suspending a license. The license remains suspended pending a hearing on the case
  • Revocation. If the Department revokes your license, you cannot work or practice in your chosen profession until further notice. If no term is stated, you must wait a minimum of three years before you can file a Petition for Restoration.
  • Refusal to Renew. Licensees who are refused renewal are ineligible to renew their license and are prohibited from practice after the expiration of the date of their license, though they may file a Petition for Restoration.
  • Fines. A monetary penalty can be levied alone or in conjunction with any of the foregoing sanctions.

If the Department is seeking any of these sanctions against you or offers to resolve your matter through a consent order in which you agree to the imposition of a specific penalty, it is imperative that you consult with an experienced Chicago professional license defense attorney if you haven’t done so already. You need to fully understand the implications of any possible sanctions so you can make an informed decision about how to proceed. Your future is at stake; it is no time to go it alone.

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 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

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

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

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

Loosening of Licensing Laws Looking a Lot Likelier

Posted on by Louis Fine

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

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

Federal Dollars for State Licensing Reform

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

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

Consumer Protection v. Economic Opportunity

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

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

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

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

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

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

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

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

Louis Fine: Chicago Professional License Defense Attorney

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.

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

Posted on by Louis Fine

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

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

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

Plea Bargain = Conviction = Disciplinary Action

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

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

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

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

Relinquishing License as Part of Plea Bargain

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

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

Louis Fine: Chicago Professional License Defense Attorney

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.

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

Posted on 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.

Improper Opioid Prescribing Threatens Lives – and Licenses

Posted on by Louis Fine

Epidemic. Crisis. Crime. Career-ender. Killer. Call America’s problem with opioid addiction and abuse what you will, it has become a problem of sprawling and tragic proportions, taking an increasing number of lives every single day and ruining the lives of thousands more. Law enforcement and public health officials from the local level to the federal government are desperately trying to address prescription painkiller overdoses and deaths, including aggressively pursuing the prosecution of health care professionals and others who may be contributing to or profiting off of the epidemic. Just last week, the U.S Department of Justice brought sweeping criminal charges against over 400 doctors, nurses, and pharmacists who were fraudulently or improperly prescribing opioids.

Increased Scrutiny and Enforcement by Licensing Boards

Physicians who play fast and loose with their opioid prescribing practices not only risk criminal charges, they also risk their license to practice medicine. Physicians prescribing opioids and other controlled substances are being scrutinized with greater intensity and numbers by state licensing boards. For example, the Medical Board of California reported a 195% increase in disciplinary action outcomes related to controlled substance prescribing between the reporting years 2009 to 2010 and 2014 to 2015.

The Illinois Department of Financial and Professional Regulation (IDFPR) is also working with law enforcement to crack down on health care providers who they suspect of engaging in improper painkiller prescribing, including sending investigators posing as opioid-seeking patients to see how easily they can walk out the door with a prescription in hand.

Prescribing, selling, administering, distributing, giving or self-administering any drug classified as a controlled substance or narcotic for other than medically accepted therapeutic purposes is a basis for disciplinary action under the Illinois Medical Practice Act. Additionally, physicians are bound by an array of other medical and legal regulations when prescribing opioids. Federal law states that a controlled substance prescription must be issued for a “legitimate medical purpose by an individual practitioner acting in the usual course of his [or her] professional practice” To comply, one must follow the standard of care based on one’s general specialty. For opioid prescribing specifically, substantial compliance with opioid prescribing guidelines is usually the accepted standard of care.

How Physicians Can Protect Themselves – and Their Patients

Illinois physicians should ensure that they are familiar with and comply with all applicable guidelines, rules, and best practices when prescribing opioids. A 2017 article  published in The Permanente Journal – “Physician Guide to Appropriate Opioid Prescribing for Noncancer Pain” – included the following suggestions to help physicians both minimize their exposure and help address the underlying problem of opioid abuse and misuse:

  • Recognize that the opioid crisis is ravaging families and communities
  • Avoid opioid pain medications whenever possible; start with safer alternatives
  • Follow the CDC opioid prescribing guidelines for new patients with pain and for patients with chronic pain when possible
  • Ensure that the opioid prescriptions are truly for medically legitimate purposes, with vigilance for red flags
  • Follow the US Surgeon General’s call to action and consider taking the Surgeon General’s pledge at http://turnthetiderx.org:
  • Screen patients for opioid use disorder and provide or connect them with evidence-based treatment
  • Talk about and treat addiction as a chronic illness, not as a moral failing.

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.