Physicians Who Contribute To The Epidemic Of COVID Vaccine Misinformation Put Their Licenses At Risk

The epidemic continues. It continues to spread unabated. It continues to fill up hospitals and morgues. And if a physician contributes to this epidemic of misinformation and disinformation surrounding COVID-19 vaccines, they could face disciplinary action, including the loss of their license to practice medicine.

That is the position of the Federation of State Medical Boards (FSMB), which has come out strongly against the spread of vaccine misinformation among members of the medical profession. It is not a theoretical problem, either. While the internet, school board meetings, and legislatures are full of individuals outside of the profession who spout nonsense about vaccines after “doing their own research,” there are also plenty of doctors, nurses, and other healthcare professionals who have spread false and misleading information about the safety or efficacy of vaccines.

In a statement dated July 29, 2021, FSMB issued a stern warning “in response to a dramatic increase in the dissemination of COVID-19 vaccine misinformation and disinformation by physicians and other health care professionals on social media platforms, online and in the media.”

The federation made clear its opinion that those who spread vaccine misinformation should face disciplinary sanctions:

Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license. Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore have a powerful platform in society, whether they recognize it or not. They also have an ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health. Spreading inaccurate COVID-19 vaccine information contradicts that responsibility, threatens to further erode public trust in the medical profession and puts all patients at risk.”

FSMB has not yet formally defined “misinformation” or “disinformation” in its policy, but its ethics committee plans to provide more guidance at a later date. However, an FSMB spokesman has said that it considers misinformation to be “sharing or distributing verifiably false information” and disinformation as “sharing or distributing information that the distributor knows is false.” 

Other professional organizations are backing up the FSMB. On September 9, 2021, the American Board of Family Medicine, the American Board of Internal Medicine, and the American Board of Pediatrics issued a joint statement in which they explicitly endorsed the FSMB’s position, adding that they “want all physicians certified by our Boards to know that such unethical or unprofessional conduct may prompt their respective Board to take action that could put their certification at risk.”

Other groups of physicians and healthcare professionals are joining in the fight against misinformation spread by members of the profession. In a September 21, 2021 Washington Post opinion column, three physicians, including an Illinois endocrinologist, announced the launch of NoLicenseForDisinformation, “a grassroots campaign that aims to ensure that physicians who spread Covid-19 disinformation are held accountable.”

This profession-wide pushback against disinformation should put all medical professionals on notice that their words about COVID vaccines have consequences, not only to the health and well-being of the general public, but to their careers and reputations as well.

What Illinois Medical Practice Owners Need to Know About Pritzker’s Vaccination Mandate For Healthcare Workers

There is no more debate for healthcare workers in Illinois about whether to get vaccinated against COVID-19 (not that there should have been any debate), at least if they want to continue working. On August 26, 2021, Gov. J.B. Pritzker issued Executive Order 2021-20, which mandates that almost all healthcare professionals and staff in the state must get their shots, subject to certain narrow exceptions. The Order took effect immediately. Physicians and medical practice owners need to understand the governor’s vaccination mandate for their staff to ensure compliance. Here is what physician/owners need to know:

Physicians and medical practice owners need to understand the governor’s vaccination mandate for their staff to ensure compliance. Here is what physician/owners need to know:

All “Health Care Workers” Must Receive At Least One Dose By Sept. 5

The Order requires all “Health Care Workers” to:

  • receive at least the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by September 5, 2021, and
  • be fully vaccinated against COVID-19 within 30 days following administration of their first dose in a two-dose vaccination series.

“Health Care Workers” and “Health Care Facilities” Covered By The Vaccine Mandate

As defined in the governor’s order, “Health Care Workers” covered by the vaccine mandate are those who:

  • are employed by, volunteer for, or contract to provide services for a Health Care Facility, or are employed by an entity that is contracted to provide services to a Health Care Facility, and
  • are in close contact (fewer than 6 feet) with other persons in the facility for more than 15 minutes at least once a week on a regular basis as determined by the Health Care Facility.

With the exception of state-owned or operated facilities, almost any facility or office that provides medical care is a “Health Care Facility” whose workers, as defined above, must get vaccinated. This includes:

  • physician offices
  • dental offices
  • ambulatory surgical treatment centers
  • hospices
  • hospitals
  • free-standing emergency centers
  • urgent care facilities
  • birth centers
  • post-surgical recovery care facilities
  • end-stage renal disease facilities
  • long-term care facilities (including skilled and intermediate long-term care facilities)
  • Specialized Mental Health Rehabilitation Facilities
  • assisted living facilities
  • supportive living facilities
  • medical assistance facilities
  • mental health centers
  • outpatient facilities
  • rehabilitation facilities
  • residential treatment facilities
  • adult day care centers

Unvaccinated Workers Barred From Premises Until Tested

As of September 5, 2021, covered Health Care Facilities must ban from their premises any Health Care Worker who has not provided proof (CDC vaccination card, photo of card, or documentation from a health care provider) that they have been fully vaccinated unless they submit to testing as follows:

  • Health Care Workers who are not fully vaccinated against COVID-19 must be tested for COVID-19 weekly, at a minimum.
  • Such testing for Health Care Workers who are not fully vaccinated against COVID-19 must be conducted on-site at the Health Care Facility or the Health Care Facility must obtain proof or confirmation from the Health Care Worker of a negative test result obtained elsewhere.

Those With Medical and Religious Exemptions From Vaccination Mandate Still Require Weekly Testing

Consistent with federal law, the Order provides medical, religious, and Americans With Disabilities Act exemptions, though any workers who qualify for an exemption must submit to weekly testing.

To qualify for a vaccination exemption, a worker must demonstrate that:

  • vaccination is medically contraindicated, including any individual who is entitled to an accommodation under the Americans with Disabilities Act or any other law applicable to a disability-related reasonable accommodation, or
  • vaccination would require the individual to violate or forgo a sincerely held religious belief, practice, or observance. 

The Order does not specify what consequences or penalties could be imposed on medical practices for violation of the vaccine mandate, but it does authorize state agencies to “promulgate emergency rules as necessary to effectuate this Executive Order.” Accordingly, practices should establish clear policies and protocols for ensuring that their staff is fully vaccinated, as well as implement a testing program for unvaccinated workers. They should also be prepared to send home any employee who does not comply with the Order.

If you are a medical practice owner and have questions about the governor’s vaccination mandate for your employees, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

Illinois Sets New Limits On Non-Competes: What Medical Practice Owners Need to Know

Like many business owners, physicians who own medical practices often require employees, including associate physicians, nurses, and other critical staff members, to sign non-competition and non-solicitation agreements to protect their practice, patients, and personnel. But the ability of medical practice owners to use non-competes and other restrictive covenants in employment contracts will soon be curtailed under a recently passed law that Gov. JB Pritzker is expected to sign.

The legislature’s unanimous passage on May 31, 2021 of SB672 amending several provisions of the Illinois Freedom to Work Act dramatically transforms the landscape for these contractual provisions. If signed into law, the new restrictions on restrictive covenants will apply to all agreements dated on or after January 1, 2022.

For decades, courts have looked with a skeptical eye at non-competition and non-solicitation agreements, limiting as they do fundamental economic rights and the ability to make a living in one’s chosen occupation. Judges have not hesitated to hold such clauses unenforceable or modify them, especially if they are overly broad in time and geographic scope, are unsupported by sufficient consideration, or involve lower-wage workers.

The new amendments attempt to codify many aspects of courts’ analysis of restrictive covenants, establish clear limitations on when they can be used, and clarify the rights of employees when presented with such provisions.

Here is what physicians and medical practice owners need to know about the future of non-competition and non-solicitation agreements in Illinois:

Earnings-Based Limitations

Perhaps the most straightforward part of the new law is that it completely prohibits non-competes and non-solicitation agreements for employees below a specific income threshold. Specifically:

  • Employers cannot enter into non-competition agreements with employees who have expected annual earnings of less than $75,000. 
  • Employers cannot enter into customer/employee non-solicitation agreements with employees who have expected annual earnings of less than $45,000. 

These baseline income amounts will increase in 2027 and every five years after that. 

“Legitimate Business Interest” and Consideration of the “Totality of Circumstances” Required When Evaluating Restrictive Employment Covenants

One of the fundamental principles that Illinois judges have used to evaluate the enforceability of restrictive covenants is to look at the facts and circumstances surrounding the specific agreement and determine whether the limitations are tailored to protect an employer’s “legitimate business interests.”

The recent amendments reflect this fact-specific approach, explicitly stating that “the same identical contract and restraint may be reasonable and valid under one set of circumstances and unreasonable and invalid under another set of circumstances.” The law sets forth several factors that a judge may consider when determining whether the employer has a legitimate business interest, including:

  • The employee’s exposure to the employer’s patient relationships or other employees
  • The near-permanence of patient relationships
  • The employee’s acquisition, use, or knowledge of confidential information through the employee’s employment
  • The time restrictions, the place restrictions, and the scope of the activity restrictions.

Adequate, Independent Consideration Required

All enforceable agreements must be supported by adequate consideration, including restrictive covenants. Under the amendments, “adequate consideration” means:

  • The employee worked for the employer for at least two years after signing an agreement containing a covenant not to compete or a covenant not to solicit, or
  • The employer otherwise provided consideration adequate to support an agreement not to compete or solicit, such as a period of employment plus additional financial or professional benefits.

Opportunity to Review

Employers will need to provide employees 14 days to review a non-competition/non-solicitation agreement and advise them in writing at the same time to consult an attorney before signing it. 

Judges Can Revise Restrictive Covenants 

The new law codifies the discretion judges have to reform overly broad or otherwise legally deficient covenants –  a practice known as “blue penciling” –  rather than holding the entire covenant unenforceable.

Enforcement Limitations Related to COVID-19

An otherwise valid non-compete is unenforceable if the employee was terminated, furloughed, or laid off as the result of the COVID-19 pandemic unless enforcement of the covenant includes compensation equivalent to the employee’s base salary at the time of termination for the period of enforcement minus compensation earned through subsequent employment during the period of enforcement.

As noted, the amendments will not be effective until January 1st of next year, so they will not apply to existing restrictive covenants. But medical practice owners who regularly use non-competition or non-solicitation agreements should consult with an experienced business attorney who can review such provisions in light of the new law.

If you are a medical practice owner and have questions about existing non-competes and non-solicitation agreements or how the new law affects your employment agreements going forward, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

Small Businesses, Medical Practices, and Licensed Professionals That Don’t Prepare For Ransomeware Attacks Are Playing With Fire

Your small business doesn’t provide most of the fuel for the Eastern Seaboard or process and distribute a huge proportion of America’s meat supply. But that doesn’t mean you shouldn’t be worried about ransomware attacks or other cybersecurity threats. The recent attacks on the Colonial Pipeline and meat processor JBS are just two high-profile examples of what has become a significant threat to companies, medical practices, and licensed professionals across a wide range of businesses and professions. 

A Ransomware or Other Cyberattack Can Be a Deathblow To Your Business

Every minute of every day, sophisticated hackers attempt to gain access to trade secrets, personal customer or patient information, and all other data that makes a company run.  Sometimes, the data itself has value to cybercriminals, such as customer financial information, credit card numbers, Social Security numbers, and the like. Other times, as is the case in ransomware attacks, hackers hold a company’s entire information infrastructure hostage until they receive the eponymous ransom. The increasing complexity and frequency of ransomware attacks drove the average ransom payment from less than $5,000 in 2018 to over $233,000 in 2020

Such security breaches can cost companies millions of dollars in business disruption and remediation costs. Cyberattacks and the release of confidential information can cause customers to lose faith in the ability of the company to maintain the confidentiality of their payment and personal data.

Additionally, a complex patchwork of state and federal laws establishes notification requirements in the event of a breach. Failure to follow those laws can expose businesses to fines and adverse regulatory actions that only add to the pain of a cyberattack.

For business owners, physicians and medical practices, and licensed professionals, a robust cybersecurity program is no longer optional. Failing to implement a comprehensive strategy to protect valuable intellectual property and proprietary information is essentially business negligence. Failing to act swiftly and aggressively once a breach has occurred can be business and professional suicide.

Medical Practices Increasingly Under Threat

The threat to medical practices and other entities in the healthcare industry is of particular concern because the subject of the attacks usually includes protected health information (PHI). Cybercriminals hold that information hostage under the threat of “doxing,” meaning to publicly release documents containing PHI.

Guidance from the Department of Health and Human Services Office for Civil Rights, the federal body charged with enforcement of HIPAA, states that ransomware encryption of PHI is a per se unauthorized disclosure of PHI triggering the Breach Notification Rule. That rule requires HIPAA-covered entities and their business associates to provide notification following a breach of unsecured protected health information. The rule presumes a cybersecurity incident has resulted in unauthorized access to unsecured PHI, at which point the burden shifts to the practice or organization to show a low probability of the compromise of the PHI it maintains.

What You Can And Should Do Right Now To Protect Your Data and Your Business

The U.S. Small Business Administration has a wonderful website dedicated to helping business owners prevent and respond to ransomware and other cybersecurity threats. The site includes these ten key steps companies should take as part of a comprehensive strategy:

  1. Protect against viruses, spyware, and other malicious code
  2. Secure your networks
  3. Establish security practices and policies to protect sensitive information
  4. Educate employees about cyberthreats and hold them accountable
  5. Require employees to use strong passwords and to change them often
  6. Employ best practices on payment cards
  7. Make backup copies of essential business data and information
  8. Control physical access to computers and network components
  9. Create a mobile device action plan
  10. Protect all pages on your public-facing websites, not just the checkout and sign-up pages

I recommend that all small business owners and medical practices spend some time at the SBAs cybersecurity website (https://www.sba.gov/managing-business/cybersecurity)  and take all steps necessary to shore up this crucial aspect of their operations. A hack of your network may not attract national headlines, but it could repel customers and patients and cost you your business or practice.

If you have questions about protecting your business or medical practice from cyber threats, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

Will a Chapter 7 or 13 Bankruptcy Close The Book On Your Professional License?

Bankruptcy happens. It’s not a crime, it’s not a moral failure, it’s not a character flaw. In times of economic upheaval, in particular, even the most hard-working, intelligent, and responsible professionals, from physicians to accountants to hairstylists, can find that their debts have simply become untenable. Filing for bankruptcy can itself be a difficult experience, emotionally, financially, and practically. But if you’re also worried that you might lose your professional license, and thus your ability to support yourself and your family, the anxiety is only compounded.

Fortunately, in most cases, filing a Chapter 7 or 13 bankruptcy proceeding without more will not result in the loss of a professional license.

The Bankruptcy Code Is Designed To Provide Protection, Not Persecution

The law provides for bankruptcy proceedings to give an overwhelmed debtor a second chance and give creditors a chance at recovering at least some of the amounts owed to them. Bankruptcy proceedings may be painful, but they are not supposed to be a persecution.

That is why the Bankruptcy Code prohibits private and public employers from using a bankruptcy filing as the sole reason to terminate an employee or otherwise take adverse action against them.

Specifically, Section 525(b) of the Bankruptcy Code provides that “No private employer may terminate the employment of, or discriminate with respect to employment against” an employee “solely because” the employee:   

  • is or has been a debtor or bankrupt under the Bankruptcy Act;
  • has been insolvent before the commencement of a bankruptcy proceeding or during the case but before the grant or denial of a discharge; or
  • has not paid a debt that is dischargeable or that was discharged under the Bankruptcy Act.

Note the “solely because” language. If other reasons exist for terminating an employee that may tangentially relate to the bankruptcy, such as dishonesty, fraud, or other malfeasance, the Bankruptcy Code won’t necessarily save an employee’s job.

Professional Licenses Are Protected Assets In Bankruptcy

A professional license is a valuable asset, one obtained through a substantial investment of time, effort, and money. In a bankruptcy proceeding under either Chapter 7 or 13, the debtor’s assets become a crucial part of resolving the debts and obligations that led to the filing of bankruptcy in the first place.

But professional licenses are only of value to the licensee; they can’t be transferred or used by a debtor to satisfy their debt. The real threat that bankruptcy poses to a professional license is the risk that a governmental licensing body, like the Illinois Department of Financial and Professional Regulation (IDFPR), will use the proceedings as a basis for denying, suspending, or revoking a license.

But since bankruptcy, as noted, is not designed for punishment, the Bankruptcy Code explicitly protects professional licenses and the ability of licensees to continue to earn a living.

Specifically, Bankruptcy Code Section 525(a) states:

[A] governmental unit may not deny, revoke, suspend, or refuse to renew a license… against a person that is or has been a… debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is dischargeable in the case under this title or that was discharged under the Bankruptcy Act.

Again, the “solely because” language is key. A professional licensee’s bankruptcy, depending on the circumstances, may implicate other issues that could lead to or support disciplinary actions. But the bankruptcy itself, without more, should not threaten a debtor’s professional license.

Louis Fine: Chicago Professional License Defense Attorney

If you are a licensed Illinois professional and have concerns about how a bankruptcy might impact your license and career, I welcome the opportunity to meet with you.

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

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

Whether a physician faces disciplinary action by their state medical board depends primarily on their own conduct. Practicing with competence, ethics, and integrity should insulate a doctor from any significant concerns that their license may be put in jeopardy. But it’s not only how you practice, but where you practice, that can determine how likely you are to face the scrutiny of your state’s medical licensing authorities.

Wide Discrepancies In State Medical Boards’ Level of Enforcement Activity

A comprehensive new report by Public Citizen found significant disparities between states in terms of the number of serious disciplinary actions brought against physicians between 2017-2019. The report’s authors concluded that these differences in the frequency of physician discipline had little if anything to do with the quality of a state’s doctors and everything to do with the aggressiveness or laxity of a state’s medical board:

“There is no reason to believe that physicians in any one state are more or less likely to be incompetent or miscreant than the physicians in any other state. Therefore, we believe any observed differences between the boards reflect variations in board performance rather than in physician behavior across different states.”

The report’s authors calculated the rate of serious disciplinary actions per 1,000 physicians in each state with either M.D. only or combined M.D./D.O. medical boards for the years 201, 2018, and 2019. They defined “serious disciplinary actions” as “those that had a clear impact on a physician’s ability to practice.”

The report found that Kentucky had the highest rate of serious physician discipline in the country, with an average of 2.29 serious disciplinary actions per 1,000 physicians per year. The District of Columbia had the lowest rate with only 0.29 serious disciplinary actions per 1,000 physicians per year. That means that the rate of such actions was 7.9 times higher in the state with the most active medical board in the country than in the lowest jurisdiction. 

Illinois ranked 10th on the list, with a rate of 1.51 serious disciplinary actions per 1,000 physicians.

Reasons For Differences In Physician Disciplinary Actions Across States

Public Citizen is an organization that generally favors increased consumer and patient protections and thus advocates for greater regulatory activity and enforcement. Therefore, it is no surprise that they concluded that “low rates of serious disciplinary actions suggest that medical boards are not adequately taking actions to discipline physicians responsible for negligent medical care or whose behavior is unacceptably dangerous to patients.”

The report recommended several policy changes, including:

  • Assuring that revenue from physician license fees funds board activities “instead of sometimes going into the state treasury for general purposes.”
  • Ensuring that boards have adequate staffing
  • Including on medical boards members who have a commitment to safeguarding the public, “not protecting the livelihood of questionable physicians.”
  • Opening the NPDB database to the public so that any person can do a background check on a doctor
  • Increasing state legislative oversight of state medical boards
  • Replacing some medical board members who are physicians with members of the public “with no ties to the medical profession, hospitals, or other providers.”
  • Requiring that medical boards check with the NPDB when they receive complaints about a physician.

This report comes after a year in which physician disciplinary actions plummeted nationwide due to the COVID-19 pandemic. However, until and unless the time comes that COVID-19 is no longer an existential public health threat, it is unlikely that any state medical boards will dramatically change the way they do business.

Louis Fine: Chicago Physician License Defense Attorney

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

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

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

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

Specifically, others who may have been aware of misconduct turned away or failed to take action which could have prevented further abuses and spared other victims. For physicians and other medical professionals who learn of a colleague’s misconduct  – sexual or otherwise – the failure to report such wrongdoing is not just a moral failure. It can be a breach of professional ethics that threatens their professional licenses as well.

Ethical Obligation to Report Misconduct

The duty to report misconduct within the medical profession is often the only way such transgressions can get the attention of professional licensing boards such as the Illinois Department of Professional Regulation (IDFPR) as well as law enforcement. As the Federation of State Medical Boards (FSMB) put it in its sweeping 2020 Report and Recommendations on Physician Sexual Misconduct:

“In a complaint-based medical regulatory system, it is… essential that patients, physicians and everyone involved in healthcare speak up whenever something unusual, unsafe or inappropriate occurs. All members of the healthcare team, as well as institutions, including state medical boards, hospitals and private medical clinics have a legal as well as an ethical duty to report instances of sexual misconduct and other serious patient safety issues and events. This duty extends beyond physician-patient encounters to reporting inappropriate behavior in interactions with other members of the healthcare team, and in the learning environment.”

Similarly, the Council on Ethical and Judicial Affairs of the American Medical Association (AMA) admonishes that, “A physician should expose, without fear or favor, incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.”

However, while the Illinois Medical Practice Act allows for physician reporting of a colleague’s unethical behavior, it neither requires it nor makes a failure to report a basis for disciplinary action.  It provides that licensed physicians “may report to the Disciplinary Board any information the physician… may have that appears to show that a physician is or may be in violation of any of the Act’s provisions.”

But just because reporting sexual misconduct is not mandated under the Act doesn’t mean that failing to report physician sexual misconduct isn’t an ethical violation. “The obligation to report incompetent or unethical conduct that may put patients at risk is recognized in… the ethical standards of the profession,” according to the AMA.

The FMSB was more strident in its 2020 report, concluding that the failure to report sexual misconduct should result in disciplinary action: “Physicians who fail to report known instances of sexual misconduct should be liable for sanction by their state medical board for the breach of their professional duty to report.”

AMA Reporting Guidelines

The AMA has set forth guidelines for how physicians should respond to and report information about a fellow doctor’s patient misconduct. Physicians who become aware of or strongly suspect that conduct threatens patient welfare or otherwise appears to violate ethical or legal standards should:

  • Report the conduct to appropriate clinical authorities in the first instance so that the possible impact on patient welfare can be assessed and remedial action taken.
  • Report directly to the state licensing board when the conduct in question poses an immediate threat to patients’ health and safety or violates state licensing provisions.
  • Report to a higher authority if the conduct continues unchanged despite initial reporting.
  • Protect the privacy of any patients who may be involved to the greatest extent possible, consistent with due process.
  • Report the suspected violation to appropriate authorities.

Regardless of the language contained or not contained in licensing statutes, professionals of all stripes should seize the moment and no longer remain silent when they become aware of harassment or misconduct. While the damage done to victims of sexual misconduct is exponentially greater, the damage to your professional reputation and career could be catastrophic if it is discovered that you were tacitly complicit in allowing such misconduct to continue. 

Louis Fine: Chicago Physician License Defense Attorney

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

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

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

As you know from years of watching TV courtroom dramas or the travails of real-life politicians, people under criminal investigation or who are facing charges often “plead the Fifth” -that is, refuse to provide statements or testimony – because they fear that what they say can and will be used against them in those proceedings.

Similarly, many physicians or other professionals licensed by the Illinois Department of Professional Regulation (IDFPR) can find themselves under investigation or facing disciplinary action by the Department for acts which could also be the basis for criminal prosecution. For example, a doctor who improperly prescribes medication could face the loss or suspension of his or her license and also be charged with a crime for such conduct.

In such situations, can or should the respondent in an IDFPR proceeding exercise their rights under the Fifth Amendment when their answers could result in criminal liability?

Fifth Amendment Applies in Disciplinary Proceedings

The Fifth Amendment provides that “No person shall be… compelled in any criminal case to be a witness against himself…” This privilege has also been incorporated in the Illinois Constitution. (See Ill. Const. 1970, art. I, § 10.) The privilege essentially means that no person, without proper immunity, can be required to implicate himself in a crime.

Although by its literal terms applicable only in criminal proceedings, the Fifth Amendment privilege against self-incrimination has long been held to be properly asserted by parties in civil proceedings.

The logic behind applying the privilege in civil cases also applies to administrative actions such as IDFPR investigations and disciplinary proceedings, and can be asserted not only at a hearing, but during the investigation and discovery stage as well.  As the U.S. Supreme Court has stated:

“A witness’ privilege against self-incrimination `not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'”

As such, you can “plead the Fifth” before the IDFPR. The question of whether you should exercise your right against self-incrimination is a more complicated question.

A Tough Decision

Anybody faced with this choice faces a variation of the same dilemma. As the Supreme Court put it: a party must weigh “the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts[.]” Accordingly, a “party who asserts the privilege against self-incrimination must bear the consequence of lack of evidence.” 

What makes the choice even trickier is that, unlike in criminal proceedings, IDFPR hearing officers can draw an adverse inference from the professional’s refusal to testify and hold it against the professional so long as there is other sufficient evidence to support their findings.

The gravity and implications of exercising your Fifth Amendment rights in an IDFPR proceeding require careful thought and a consideration of all of the possible consequences. It is a decision that will be based on the specific circumstances of your disciplinary matter as well as the possible criminal repercussions of the acts under investigation. It is a decision that should only be made in consultation with your lawyer.

Louis Fine: Chicago Professional License Defense Attorney

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

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

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

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

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

Burnout, Stress, and Anxiety Losing Out To Fear 

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

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

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

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

Invasive and Irrelevant Questioning By Medical Boards

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

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

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

Illinois Limited Its Mental Health Questioning in 2016

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

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

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

Louis R. Fine: Chicago Physician License Defense Attorney

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

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

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

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

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

Allegations v. Burden Of Proof

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

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

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

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

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

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

License Denials And Requests For Reinstatement

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

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

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

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

Louis Fine: Chicago Physician Licensing Attorney

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

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