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

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.

Can You Lose Your Illinois Professional License for Personal Conduct?

Let’s say you are an Illinois doctor, nurse, real estate broker or other licensed professional. Let’s say you have an exemplary and spotless record, with commendations and accolades from superiors, praise from patients or clients, and nothing but exceptional and professional performance over many years of practicing your chosen profession.

Let’s also say that you are a vocal white supremacist.

Being a white supremacist, you took a trip down to Charlottesville, VA a few weeks back to participate in the “Unite the Right” rally that has shaken the nation. While you were chanting and marching with torch in hand – without ever breaking the law – someone snapped a picture of you, put it on the internet and it went viral. One of your patients saw the picture and filed a complaint with the Illinois Department of Financial and Professional Regulation (IDFPR).

Is your professional license now in danger because you have been outed as a white supremacist?

Many participants in the Charlottesville march have since been fired from their jobs after they were identified on social media. In the vast majority of states, private employers are well within their rights to fire an employee for being a white supremacist and/or Trump supporter, expressing other political or social views, or for pretty much any reason other than race, sex, religion, and other protected classes.

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

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

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

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

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

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

It would be serious overreach by the IDFPR if they were to take action based on such conduct, but as I have written before, the disciplinary process in Illinois can be manifestly unfair and stacked against you. Experienced and aggressive prosecutors have your license in their sights, and the hearing officer who will determine your fate is bringing their own biases to your case.

Everything we do in life has consequences. While those consequences should not include loss of your professional license for personal and legal conduct, Illinois licensees should be aware that IDFPR may think differently.

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.

Dreams Deferred: Avoiding and Fighting Illinois Professional License Application Denials

You have studied and sacrificed. You have put hours upon hours and years upon years into your education and training in order to practice your chosen profession or occupation. You’re ready to begin your career and serve your clients or patients. But you can’t do that unless you receive a license from the Illinois Department of Financial and Professional Regulation (IDFPR). And if the IDFPR denies your license application, all you’ve worked so hard for is at risk.

Applying for a professional license in Illinois can be a complicated process, and any number of missteps can lead the Department to reject your application. While the receipt of an “Intent to Deny” letter from the IDFPR is not necessarily the end of the road for your career dreams, it does mean that the process can become much more difficult and involved. That is why it is so important to make sure that your initial application is complete, truthful, and satisfies all necessary requirements.

Incomplete or Untruthful Applications

The IDFPR is responsible for reviewing license applications in 235 separate categories covered by 61 different professional license acts. While there are many application requirements that are profession or industry specific, some requirements apply universally across all licenses and professions. The most fundamental of these is the duty, under penalty of perjury, to provide answers that are “true, correct, and complete.” If you lie on your application; if you fail to provide relevant information about your criminal history, prior disciplinary or licensing issues in other states, or other relevant information, your application stands a very good chance of being denied.

Criminal History and Past Conduct

The Department can refuse to issue a license or grant a registration if an applicant has been convicted of any crime that is a felony (although recent changes in the law may reduce the chances of a denial on this basis; or that is a misdemeanor, an essential element of which is dishonesty, or that is directly related to the practice of the profession.

The IDFPR will review the circumstances of an applicant’s criminal history and issue a decision on whether or not the information provided disqualifies the individual from licensure, registration, or practice. By the Department’s own admission, this is a highly subjective, and thus unpredictable, standard.

Similarly, an applicant can be denied a license for “engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.” This too is a highly subjective analysis which can make fighting a denial on this basis a challenging task.

Fighting a Denial

If the Department believes that there is a reason your application should be denied, it will send you an “Intent to Deny” letter. You then have 30 days to respond to the letter to contest the denial and request a hearing. AT such a hearing, you have the opportunity to explain your case and to provide additional information or to answer questions the Department may have.

You should not engage in this process without the assistance of an experienced professional license defense attorney. If your application is again denied at this stage, you could find yourself and your application tied up in administrative limbo for a long time. An experienced IDFPR lawyer will know how make the best case and increase the chances that your application will be approved. Your reputation, career and livelihood are at stake.  Now is not the time to take a flyer and hope for the best.

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 Illinois professional license application denial can have on those who have invested so much. I understand how and why the Department decides to deny applications and can assist you at every stage of the process, beginning with the preparation and submission of your initial application.

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

Past Felonies May No Longer Be a Licensing Hurdle Under New Illinois Laws

The consequences of a felony conviction go far beyond hefty fines, significant fines, and restrictive probation terms. A long-ago lapse in judgment that led to a conviction can be a burden for decades; a stain on your reputation that can hinder your attempts to move forward with your life. This is especially true in the context of career and employment opportunities. Fortunately, recently enacted Illinois laws have made it easier for some individuals to rebuild their lives and pursue their professional dreams, earlier felonies notwithstanding.

Felonies No Longer Automatic Bar for Health Care Workers

Prior to January 1 of this year, a felony conviction would mean that professional licenses for certain health care workers would automatically be denied or revoked by the Illinois Department of Financial and Professional Regulation (IDFPR).

Under legislation that became effective at the start of 2017, however, most felony convictions will not be an insurmountable hurdle for Illinois health care workers who are required to have a professional license, including:

  • Physicians
  • Dentists
  • Nurses
  • Occupational therapists
  • Optometrists
  • Pharmacists
  • Physical therapists
  • Physician assistants
  • Psychologists
  • Clinical social workers

The new law establishes a review process that allows applicants and licensees to present information proving they have been rehabilitated from their previous convictions. The IDFPR will review petitions for licensure and the impact of a prior felony conviction on a case-by-case basis, taking into consideration such things as the seriousness of the offense, voluntary remedial actions taken by the applicant, and prior disciplinary history.

Illinois health care workers whose licenses have been revoked because of a felony conviction may petition the IDFPR to restore their license if more than 5 years have passed since the conviction or more than 3 years have passed since the health care worker’s release from confinement for that conviction, whichever is later.

The new law doesn’t apply to certain individuals, however, including registered sex offenders or people who have been convicted of criminal battery against any patient who was being treated. Such individuals will be permanently denied professional licenses under the law.

A separate law, also effective January 1, provides that the IDFPR can take a past felony conviction into account when deciding whether to issue a license only if the offense relates to the kind of work the applicant is seeking to do. The department will also be required to issue a written decision if it rejects an applicant based on a past conviction. The law covers licenses for funeral directing and embalming, roofing contracting, cosmetology, esthetics, hair braiding, nail technology and barbering.

If you have had an application for an Illinois professional license denied or a previously issued license revoked due to a felony conviction, these new laws offer you a chance to continue with your career. An experienced Illinois professional licensing attorney can help you through the process.

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.

The “F” in IDFPR Doesn’t Stand for “Fair”

You probably know that under the Fifth Amendment to the U.S. Constitution, no person shall be “deprived of life, liberty, or property, without due process of law.” While the Fifth Amendment only applies to the federal government, the Fourteenth Amendment provides identical protections from unfair deprivation of those things by a state.

The Illinois Department of Financial and Professional Regulation (IDFPR) is a body of the state of Illinois.

Your professional license is your property. In many respects, it is also your life and liberty. It is what allows you to fulfill your life’s work and provide for your family.

It certainly should be. But it most definitely isn’t in a number of key respects.

If you receive notice from the IDFPR that you are under investigation or that disciplinary proceedings have been commenced against you, don’t count on the IDFPR to be looking after your rights. Don’t think that you will be provided with the same due process protections that you would receive in a criminal prosecution or the broad rights to seek and obtain evidence that you would get in a civil lawsuit.

The IDFPR Can Limit Your Ability to Defend Yourself

The IDFPR’s procedural rules and practices put licensees at a sometimes crippling disadvantage in disciplinary proceedings. Perhaps the biggest example of this unfairness is the discovery process.

The process of investigating, obtaining evidence, and eliciting testimony relevant to a case – whether it be a civil, criminal, or administrative proceeding like IDFPR disciplinary hearings – is known as “discovery.” It’s how the parties find out the facts, whether they help or hurt their respective cases. It is a fundamental aspect of fairness, and if a party is not permitted to fully develop the evidence necessary to support their case or challenge the evidence obtained by the other side, it is an inherently unfair process.

In formal IDFPR disciplinary proceedings, the licensee’s ability to pursue the discovery necessary to defend themselves is extremely limited. In fact, the extent of allowable discovery is determined by the very people who are prosecuting the case. Once the Department provides names of witnesses, including the name of any individual whose complaint may be at the heart of the proceedings, a respondent cannot take their depositions unless the Department’s attorney agrees. If the Department nixes a deposition request, that means the respondent will not be able to confront that witness, learn what his testimony will be, or attack the veracity of his testimony until the actual hearing. That is manifestly unjust and leaves a respondent and their attorney fighting with one arm tied behind their back.

Similarly, if there are witnesses that the licensee wishes to subpoena for testimony, those subpoenas have to be authorized and approved by the Department. Again, the very people seeking to deprive someone of their professional license can also deprive them of their ability to defend themselves.

Hearing Officers Are Not Independent

While it is the job of IDFPR’s prosecuting attorneys to enforce professional regulations and pursue disciplinary action against licensees, it is the hearing officer’s job to preside over those proceedings fairly and objectively without favoritism or bias. The problem is the hearing officers are not independent. They are employed and paid by the IDFPR, just as the prosecuting attorneys are. Whether a hearing officer is consciously biased or not, the fact that their paychecks are coming from the very same folks who are seeking to discipline a respondent creates an implicit conflict of interest and calls into question the fairness of the entire process.

With the deck so stacked against licensees, it is absolutely crucial that you retain an experienced IDFPR defense attorney to defend your rights, your license, and your livelihood if you find yourself in the Department’s sights.

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.