Category: Physician and Health Care IDFPR

Loosening of Licensing Laws Looking a Lot Likelier

Posted on by Louis Fine

regsThe 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

pleaIf 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

silenceFrom 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.

Vicious Circle: Failure to Pay Student Loans Can Cost You Your Illinois Professional License

Posted on by Louis Fine

loansWhether you are a surgeon, an accountant, a hairstylist, or are in any of the scores of occupations which require a professional license in Illinois, it no doubt took a lot of work and commitment to get where you are. It’s also likely that it cost you some money. If that money was in the form of student loans, know this: all of your hard work can be for naught if you fail to pay those debts. Illinois is one of 20 states that can strip you of your professional license for defaulting on student loan obligations.

Catch-22

A recent story in the New York Times shined a spotlight on this practice, one which theoretically threatens the livelihoods of millions of professionals across the country and thousands in our state. Student loan debt in the U.S. is astronomical, and default rates have been rising. By one estimate, there is currently $1.4 trillion in student loan debt outstanding nationally.

In Illinois, according to a recent report, 61 percent of graduates of four-year public and private colleges and universities from the class of 2016 had educational debt, totaling $29,271, on average. That report doesn’t include debt incurred to attend community colleges or technical and vocational schools.

The rationale behind denying or revoking professional licenses for unpaid student loans is that it will incentivize borrowers to make payments. But taking away someone’s livelihood because they can’t make payments on their student loans sets up a situation that does more harm than good. Punishing someone for an unpaid debt by taking away their ability to pay that debt is a grotesque catch-22.

Some States Are Harsher Than Others

According to the Times, their research “identified at least 8,700 cases in which licenses were taken away or put at risk of suspension in recent years, although that tally almost certainly underestimates the true number.”

The states that allow professional licenses to be denied or revoked for unpaid student loans vary widely in how aggressively they use this draconian tool. For example, according to the Times article, Tennessee’s professional licensing authorities took some form of action against 5,400 licensees for unpaid debt between 2012 and 2017. Conversely, licensing officials from states like Hawaii, Iowa, Massachusetts, and Washington say they do not take disciplinary action for student debt even though they have the statutory power to do so.

What is the Risk in Illinois?

Illinois law (20 ILCS 2105/2105-15) requires that the Illinois Department of Financial and Professional Regulation “deny any license or renewal… to any person who has defaulted on an educational loan or scholarship provided by or guaranteed by the Illinois Student Assistance Commission or any governmental agency of this State.”

While it is unclear how many Illinois licensees have been or remain at risk for debt-based disciplinary action, it appears that the IDFPR has not been particularly active in using its powers in this regard. But that could always change. If you are a licensed Illinois professional who has defaulted on your student loan debt, be aware that the career you financed with those loans could be threatened.

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.

Clearing Your Name: How to Expunge Disciplinary Actions From Your Professional History

Posted on by Louis Fine

 

past 2

As William Faulkner famously wrote, “The past is never dead. It’s not even past.” If you are a licensed professional in Illinois who has been disciplined by the Illinois Department of Financial and Professional Regulation (IDFPR), your past is very much a presence that can haunt your career or practice for years to come.

Sanctions imposed by the department, including consent decrees agreed to by the licensee, are public record, easily seen by potential employers, patients, or clients with just a few mouse clicks. Every month, the IDFPR publishes a list of all of the disciplinary sanctions it has imposed, and a link on the IDFPR’s website allows anyone to search for a professional by name to learn about any sanctions that have been entered against them.

Fortunately, depending on the underlying basis of the sanction and your subsequent conduct, there is a way to expunge a limited number of disciplinary actions from your record. But expungement is not automatic, and it is not available in some cases.

Kinds of Disciplinary Sanctions

There are six primary sanctions the IDFPR imposes, all of which appear on your record once entered:

  • Reprimand– A reprimand is an official record that the license has been disciplined but typically does not affect the status of the license or the licensee’s ability to practice.
  • Probation– Professionals whose licenses are placed on probation can continue practicing subject to certain terms and conditions. The conditions imposed as part of an order of probation will vary depending on the circumstances of the case.
  • Suspension– Professionals whose licenses have been suspended cannot practice during the period of suspension. The term of suspension can range from one day to indefinite. In many instances, the period of suspension is followed by probation.
  • Temporary Suspension– Several Illinois practice acts including medical, dental and pharmacy) give the IDFPR authority to temporarily suspend a professional’s license pending a hearing before the appropriate board or committee where the Director finds that a professional licensee’s continuation in practice would constitute an immediate danger to the public. A hearing must be held within 15 days of the suspension. Professionals may not practice while temporarily suspended.
  • Revocation– Professionals cannot practice with a revoked license.
  • Fine– Monetary fines are another remedy available to the Department and are usually issued in conjunction with one of the above disciplines.

Application to Classify Records as Confidential

A licensee who has been subject to disciplinary action by the IDFPR may file an application to have the record classified as confidential, not for public release and considered expunged. However, only actions relating to one of the following offenses may be eligible for expungement:

  • failure to pay taxes or student loans
  • failure to meet continuing education requirements
  • failure to renew a license on time;
  • failure to obtain or renew a certificate of registration or ancillary license
  • advertising issues
  • any grounds for discipline that were subsequently removed from the applicable licensing act

No application will be considered until at least seven years have passed since the disciplinary offense occurred. A separate application must be filed for each disciplinary action the licensee wants to have removed from their record, and there is a non-refundable fee of $200 for each application submitted.

As noted, even if a sanction is eligible to be removed from your record, there is no guarantee that the IDFPR will grant an application. The application form requests information about any subsequent investigations or disciplinary cases, which will no doubt make it far less likely that the application will be granted. Additionally, as I have discussed before, the IDFPR disciplinary process is not always fair and transparent.

If you have concerns about your existing disciplinary record and want to explore the possibility of clearing your record and your name, contact an experienced Illinois professional license defense lawyer who can answer your questions and advise you of your options.

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?

Posted on by Louis Fine

unprofessionalLet’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.

Illinois Chiropractors: Are You Aiding and Abetting the Unlicensed Practice of Medicine?

Posted on by Louis Fine

chiroAiding and abetting the unlicensed practice of medicine can be a potentially disastrous minefield for chiropractors, and often does not involve any knowing or intentional violations of the law. Often, the seemingly innocuous delegation of certain tasks to assistants or others can inadvertently lead to scrutiny and legal action by the Illinois Department of Professional Regulation (IDFPR)

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

What Exactly is the “Practice of Medicine”?

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

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

What Can and Cannot Be Delegated

Obviously, not every task that a chiropractor or physician performs on a daily basis constitutes the practice of medicine. Maintaining medical records, taking blood pressure, preparing a patient for treatment – all of these can be delegated to trained staff.

Specifically, Section 54.2 of the Medical Practice Act allows physicians and chiropractors to delegate authority to certain individuals:

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

What cannot be delegated, and what do not constitute “patient care tasks,” are the diagnosis of illnesses, and the development of treatment plans, including prescribing drugs. Siddiqui v. IDFPR, 718 N.E.2d 217 (4th Dist. 1999).

How You Can Stumble Into Trouble

Chiropractors are not authorized to prescribe controlled substances, but they need to be cautious of their role and the role of any subordinates in any treatment plan that involves prescription medication. A recent complaint brought by IDFPR against a chiropractor offers a prime example of how a chiropractor can innocently stumble into an “aiding and abetting” problem involving prescriptions.

A chiropractor shared office space with a licensed M.D. As a courtesy to the M.D., the chiropractor allowed his secretary to hand out valid prescriptions signed and dated by the M.D. to patients who would come by for appointments and told by the M.D. to pick up the prescription at the front desk when they leave.

The IDFPR asserted that this practice constituted the unlicensed practice of medicine by the chiropractor’s secretary, and sought to suspend or revoke the chiropractor’s license for aiding and abetting this unlicensed practice. The chiropractor no doubt believed that he and his secretary were simply performing ministerial tasks – not the practice of medicine – by facilitating the delivery of a valid prescription issued by a licensed physician. But the fact that the IDFPR saw such action as a basis for disciplinary proceedings should give all Illinois chiropractors pause as they consider the ways in which they could find themselves in trouble with licensing authorities.

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

Louis R. Fine: Chicago Chiropractor License Defense Attorney

Throughout my career, I have been protecting the livelihoods and professional futures of chiropractors, 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 chiropractor’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.

Improper Opioid Prescribing Threatens Lives – and Licenses

Posted on by Louis Fine

opioidEpidemic. 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.

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

Posted on by Louis Fine

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

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

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

What Exactly is the “Practice of Medicine”?

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

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

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

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

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

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

Diagnosis, Treatment Plan, and Prescriptions Cannot Be Delegated

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

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

Louis R. Fine: Chicago Physician License Defense Attorney

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.

Bad Online Reviews Can Hurt Your Business – But Responding in Kind Can Too

Posted on by Louis Fine

bad-online-reviewIf you own a small business or are a professional and have customers and clients, there is a good likelihood that someone has published an online review of your company and its goods or services. From Yelp to Angie’s List to TripAdvisor to any number of websites tailored to particular interests or industries, online reviews can have a profound impact on your business.  Even one negative review can be devastating.

You can find a lot of tips and do’s and don’ts online about how to handle such negative reviews from a strategic and business perspective. On more than one occasion I have had a panicked and apoplectic client ask me whether he can sue the author of a negative review for defamation.

The answer is, of course you can sue “IHateYourBusinesss123”” or whomever made the post. But the reality is that much of what is written in even the most scathing negative review will likely not qualify as actionable defamation. Furthermore, such lawsuits themselves can open up the business owner to further scorn, ridicule, and bad publicity in the fickle social media world.

As a preliminary matter, most online review sites and other platforms (Facebook, Yahoo, Google+, etc.) where comments may appear are immune from liability for defamatory comments in reviews as a matter of federal law. Section 230 of the Communications Decency Act shields such sites from claims based on comments posted by third parties.

What is Defamation in Illinois?

In Illinois, in order to prove defamation, including a claim based on an online review, a plaintiff has to prove:

  • the defendant made a false statement about the plaintiff;
  • there was an unprivileged publication to a third party;
  • fault by the defendant amounting to at least negligence; and
  • the publication damaged the plaintiff.

There is a special category of defamation that does not require a plaintiff to prove actual damages. Defamation per se, as it is called, involves specific statements that are deemed inherently damaging. These statements include ones which assert that the plaintiff:

  • is infected with a “loathsome communicable disease” (e.g. a sexually transmitted disease, HIV, hepatitis, etc.)
  • has a lack of ability to perform their professional duties, or otherwise harms the plaintiff in their professional reputation
  • lacks integrity in their professional duties
  • has committed fornication or adultery
  • has committed a criminal act

Provable Fact v. Opinion

The most common issue that distinguishes an actionable defamation claim based on online reviews from one likely to fail is the issue of whether or not a statement was false. Only false statements of fact can be the basis of a defamation claim, not opinions. A statement of fact has to be able to be objectively proved or disproved. Consider the two following hypothetical restaurant reviews:

“That was the most disgusting and flavorless meal I have ever had in my life.”

“The waiter spit in my food.”

The former is non-actionable opinion, as it cannot be objectively proven that the meal was the “the most disgusting and flavorless” one the reviewer ever had. Conversely, the latter is a statement of fact; it can be proven (perhaps not easily) whether or not the waiter spit in the diner’s food.

Additionally, Illinois courts emphasize the context in which an allegedly defamatory statement has been made in determining whether the statement can be the basis of a claim. Even if a single statement in a long rant is arguably a statement of provable fact, it may not constitute defamation if a reasonable reader would see it simply as invective.

Consider Brompton Building, LLC v. Yelp, Inc., a 2013 Illinois Appellate Court decision in which a building management company sued an anonymous former tenant who had posted a hyperbolic, scathingly negative, and extremely lengthy online review. Even though the rant contained a few objectively verifiable statements, the court found that it could not support a defamation claim because in context they would not be understood to be actual factual allegations. As the court noted, “The context of the defamatory statements is critical in determining its meaning. In determining the context of the defamatory statements, we must read the writing containing the defamatory statement ‘as a whole.'”

Careful How You Respond – Especially if You’re a Physician

The bottom line for business owners and professionals is that a lawsuit in response to outrageous internet reviews and comments that make their blood boil and their businesses suffer may not be the best course of action.  While certain false statements of fact in such comments can be the basis of a defamation claim, business owners and professionals should carefully consider how to proceed lest their response make a bad situation worse.

This is especially true if you are a physician. Doctors and other health care professionals are regularly reviewed online, and some of those reviews come from disgruntled patients who may publicly criticize the treatment they received. The problem is that in an effort to defend the care they provided, some doctors have revealed confidential patient information in comments they have posted in response to negative reviews. Such HIPPA violations, as with other online professionalism mistakes, have serious licensing and regulatory consequences. Any doctor wanting to post an online response to a patient complaint should think long and hard about how they do so – and whether they should respond at all.