Higher Math: Do Illinois Accountants Face Ethics or Licensing Issues for Working With the Medical Marijuana Industry?

Posted on by Louis Fine

pot money$44 billion is a lot of green. That is also the amount of revenue the legal marijuana industry is expected to generate in the U.S. by 2020. As more states permit by ballot initiative or legislation either the medical or recreational sale and use of pot, complex regulatory and taxation regimes have been established to keep tabs on growers, distributors, and dispensaries.

Complicating things even more is the fact that most legal marijuana businesses operate on a cash only basis since pot remains classified as a Schedule I controlled substance at the federal level.  But all that cannabis cash needs to be accounted for, and CPAs across the country find themselves in high demand by the marijuana industry, raising questions about whether providing accounting services for businesses which technically violate federal law raise any ethical or licensing issues.

State Boards Largely Saying OK

Accounting boards in many states with established medical or recreation marijuana programs have weighed in on the matter, largely concluding that providing services to a state-legal marijuana enterprise is not in and of itself problematic or a basis for disciplinary action. All state boards who have issued opinions on the subject emphasize that all other applicable professional standards must be adhered to, caution about possible federal law issues, and advise accountants to seek counsel before a marijuana engagement. That said, the following excerpts from some of those boards make it relatively clear that if pot is legal where the services are being provided, the board won’t be taking any action based simply on the provision of those services:

  • Arizona. “…the Arizona Board of Accountancy has concluded that merely accepting an engagement to provide accounting services to a medical marijuana dispensary does not, on its face, constitute an act discreditable to the profession and it will not pursue independent disciplinary action against an Arizona CPA registrant based solely on such acceptance.”
  • Colorado. “It is the Board’s position that offering to perform or performing professional services for clients in the marijuana industry who are in compliance with Colorado Medical Marijuana Code and the Colorado Retail Marijuana Code is not in itself specifically prohibited by the Accountancy Act…”
  • Connecticut. “…in the absence of such a determination by the courts, the Connecticut Board of Accountancy will not pursue independent disciplinary action against Connecticut CPAs or CPA firms who are operating within the bounds of state law” as to marijuana.
  • Florida. “… the provision of public accounting services… to marijuana-related businesses in states where marijuana-related businesses have been legalized, in the absence of a criminal conviction of the certified public accountant for the provision of those services, in and of itself does not constitute a lack of good moral character.”
  • Maryland. “…in light of the current state of Maryland and Federal law, the Board will take no regulatory action against a CPA or firm solely on the basis that the CPA or firm provides services to a business involved in the sale or distribution of marijuana, provided that the business is operating legally under applicable state law.”
  • Nevada. “After careful consideration, the Board has determined that Nevada licensees and firms that elect to provide services to the marijuana industry legalized in any state in which the licensee practices will not face action by the Board based solely on the fact that the licensee or firm is providing such services.”

According to the AICPA, in a very helpful and comprehensive issue brief on the subject, “As of May 2015, the AICPA is not aware of any state boards of accountancy that have taken action against a CPA for providing services to a marijuana business, nor has the AICPA Professional Ethics Team received any referrals from state boards for such action.”

What About Illinois?

Here in Illinois, 2014’s Compassionate Use of Medical Cannabis Pilot Program Act created a four-year roll out allowing sick and dying patients suffering from debilitating medical conditions access to medical cannabis. The Act permits up to 22 cannabis-growing operations and 60 licensed retail dispensaries to operate across the state.

The Illinois Department of Financial and Professional Regulation (IDFPR) registers, licenses and regulates the dispensaries, and the Illinois Department of Revenue regulates marijuana taxation, which is subject to privilege taxes, occupation taxes and other industry specific surcharges.

Illinois’ Administrative Rules supporting the medical cannabis program effectively mandate that dispensaries retain CPAs as they must engage in, and submit to the IDFPR, annual audits compiled and certified by an auditor or CPA.

So far, however, the Illinois Public Accountant Registration and Licensure Committee has yet to issue guidance on serving the medical marijuana industry in the state beyond advising CPAs to seek legal counsel before deciding to whether to provide services to a medical marijuana business.

While CPAs should definitely follow the Committee’s advice and seek out a professional licensing attorney for advice, I would anticipate that as Illinois’ medical marijuana program grows, and CPAs see an increasingly fertile area for business, the Committee will issue an opinion largely in line with states that have already concluded that serving the legal weed industry won’t harsh an accountant’s mellow from a disciplinary perspective.

Louis Fine: Chicago CPA 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 accountants and other 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.

Parents Can’t Rely on “Off the Books” Child Support Agreements

Posted on by Louis Fine

support agmtDuring a divorce, the more issues the parties can reach agreement on, the better. It is almost always in both spouses’ best interests to resolve disputed matters on their own rather than having a judge impose a solution upon them. But there are limits as to what parties can agree to, especially when it comes to child custody and child support issues.

Before any such agreements can become part of a final Illinois divorce decree, a judge needs to approve them to ensure that they comply with the law and are in the best interests of the child. But long after the ink has dried on the divorce judgment, parents may mutually decide to change arrangements as to custody, visitation, or support. If they do so without court approval, however, it may come back to bite them in a very costly way.

Court Approval Needed for Any “Agreement” Modifying Support

Several Illinois cases have dealt with variations of the following situations: A custodial parent “agrees” not to enforce the non-custodial parent’s existing child support obligations. Maybe the non-custodial parent agreed to no longer be involved in the child’s life in exchange for being released from his or her obligations, or perhaps the custodial parent decided not to push the issue for a period of time because the other parent had fallen on hard times. Sometimes, a parent may take no action for years to seek payment of past due child support amounts, leading the other parent to believe that they are no longer on the hook. But nobody ever asks the court to officially modify the support or custody arrangements contained in the final judgment for dissolution of marriage.

What inevitably happens next? The parent owed many years-worth of child support payments decides to file a motion seeking the past due amounts from the other parent, much to that parent’s shock and consternation. That shock will be compounded with the need to write a huge check when the judge rejects the arguments that there was an “agreement” or that it is unfair to expect payment of this huge sum all at once when their spouse sat on their hands for years doing nothing to enforce support obligations.

Agreements Unenforceable, Delay in Enforcement Irrelevant

In the case of In re Marriage of Smith, for example, a mother petitioned the court to order her ex-husband to pay $60,000 in past due child support payments that had accrued over almost two decades. The husband claimed that the mother told him that she would waive her right to periodic support payments if he purchased several unspecified items for the girls, which he did.

The court found that no such agreement actually existed, and entered a judgment against the father for all past amounts due. But the court emphasized that even if there was such an agreement, it would be unenforceable, and any defenses premised on either an agreement or on a delay in seeking enforcement of child support obligations were invalid.

Specifically, the court held that:

  • Agreements modifying support without judicial approval are unenforceable. Allowing former spouses to modify a court-ordered child support obligation by creating a new agreement between themselves without judicial approval would circumvent judicial protection of the children’s interests. Therefore, parents may create an enforceable agreement for modification of child support only by petitioning the court for support modification and then establishing, to the satisfaction of the court, that an agreement reached between the parents is in accord with the best interests of the children.
  • Unreasonable delay in bringing a child support enforcement action is not a defense. Under Illinois law, the defense of “laches” is premised on the idea that a claim should be barred if the claimant’s unreasonable delay in raising that claim has prejudiced the opposing party. But the Illinois Supreme Court has held that, in the context of a laches defense to a claim for a support arrearage, a spouse is not injured simply because he is forced to pay the accumulated support in one lump sum as opposed to weekly payments as ordered. Similarly, it won’t likely be considered prejudicial for a payor to have to go back and assemble years-worth of financial documents which he or she failed to previously provide as required in the original support order.

All of the foregoing is not to say that divorced parents shouldn’t agree to changes to their support, visitation, or custody arrangements if they believe it would be mutually beneficial and be in the best interests of their child. But if a judge doesn’t sign off on that agreement, it isn’t worth whatever paper it may have been printed on.

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.

WebMDon’t: Physicians Need to Avoid These Online Professionalism Mistakes

Posted on by Louis Fine

doctor onlineYour medical practice is thriving, and you have earned the trust and respect of thousands of patients. Except for one. This former patient was very unhappy with the care you provided. So dissatisfied was this patient that he decided to put up a scathing one-star review of you and your practice on Yelp! and other websites; a review rife with insults and factually incorrect statements. You cannot abide by this unjustified stain on your reputation, so you respond to the patient’s review on the very same sites. You share some of your own choice words about the patient, and you also correct the record about the care you provided. But in doing so, you also revealed confidential medical information about the patient, who promptly informs the Illinois Department of Financial and Professional Regulation (IDFPR) about your breach of confidentiality. Instead of letting the patient’s rant go unanswered, you now have to answer a complaint from the IDFPR that threatens your license and your practice.

The foregoing, based on an actual case, is just one example of the traps doctors can fall into with their use of the internet and social media. Over the past decade, breaches of online professionalism standards have been the subject of increasing scrutiny and disciplinary action by state medical boards.

A national survey of state medical boards revealed that the most common online activities that led to disciplinary proceedings against physicians were:

  • inappropriate patient communication online, including sexual misconduct
  • use of the internet for inappropriate practice, such as internet prescribing without an established clinical relationship
  • online misrepresentation of credentials
  • online violations of patient confidentiality
  • failure to reveal conflicts of interest online
  • online derogatory patient remarks
  • online depiction of intoxication

Most boards indicated that incidents had been reported to them by patients or their families, although reporting by other physicians was common as well.

While the Illinois Medical Practice does not list any online conduct as one of the 43 specified bases for physician discipline, it doesn’t need to. As the authors of the above-referenced study put it, the problems that doctors get into with the internet and social media are just “online manifestations of serious and common violations offline, including substance abuse, sexual misconduct, and abuse of prescription privileges.”

In 2013, the American College of Physicians and the Federation of State Medical Boards issued guidelines on online medical professionalism. It addresses many aspects of social media and internet use by physicians, but the single best recommendation may be this:

Pause before posting. Trust yourself, but pause before posting to reflect on how best to protect and respect patients, their privacy, and your professional relationships and responsibilities. It is helpful to think of the use of social media as a public speaking arrangement in which everything is recorded and shared.

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.

More Fairness + More Complexity = New Illinois Child Support Law

Posted on by Louis Fine

supportFollowing the massive overhaul of Illinois divorce and family law that became effective last year, additional changes have been made that will alter how child support obligations are calculated in the state. If you pay or receive child support, you may be able to modify the established amounts after the law becomes effective on July 1, 2017.

Hard Percentages Replaced By “Income Shared” Approach

Currently, the calculation of child support in Illinois is based on a pretty simple formula. A hard percentage of the non-custodial parent’s net income is used to determine the amount that he or she has to pay, with that percentage going up for each additional child who needs support.

But when parents divide parenting time more or less equally, and a child spends significant time staying with the “non-custodial” parent, putting all of the support obligations on that parent, or not taking into account the income of the other parent, doesn’t make much sense.

Many other states recognized this reality and changed their child support laws as part of the same alterations Illinois adopted last year, when terms like “custody” and “visitation” were replaced with “allocation of parenting time” and “allocation of parental responsibilities.”

Now, child support will be “allocated” between the parents just as time and responsibilities are. Specifically, the old percentage formula has been replaced by what is called an “income shared” approach under which each parent is designated a portion of child support obligations depending on how much they financially contributed to the overall household income when the marriage was still intact. It also takes into consideration the amount of time the child spends with each parent pursuant to the agreed-upon or court-ordered parenting plan that is now part of every Illinois divorce involving children.

How the New Child Support Law Works

Starting July 1, child support will be calculated by:

  • calculating each parent’s net income, then
  • combining net incomes to determine Total Family Income, then
  • using a chart contained in the new law to determine the Basic Child Support Obligation, then
  • allocating the Basic Child Support Obligation proportionally based on net incomes.

But there’s more. If each parent exercises 146 or more overnights per year with the child, called “shared parenting, the Basic Child Support Obligation is then multiplied by 1.5 to calculate the shared care child support obligation. Then, using the percentage of time the child spends with the other parent, child support is calculated from one parent to the other. Then, the two amounts are netted out.

Seem confusing? It is. While the new law may result in more equitable child support arrangements, it also will also result in more complexity in determining what those arrangements will be. A seasoned Illinois child support lawyer can help you navigate these changes to the law and advise you of your rights and options.

Louis R. Fine – Chicago Child Support Attorney

If you have questions about child support and how the changes to Illinois may affect you and your children, please give me a call at (312) 236-2433 or fill out my online form to arrange for a consultation. When we meet, we can go through all of your questions, and I will be there to listen to you as well as advise you. Together, we will turn the page so you can begin the next chapter of your life with clarity and confidence.

A Small Number of Big Problems Make Up the Most Complaints Against Illinois Doctors

Posted on by Louis Fine

complaint-1There are 43 specified grounds for disciplinary action against Illinois doctors set forth in the state’s Medical Practice Act. Running afoul of any one of those grounds can result in career-altering action by the Illinois Department of Financial and Professional Regulation (IDFPR). More often than not, the genesis of disciplinary proceedings against Illinois physicians come from citizen complaints. And while a typical year will see at least one complaint involving each of the statutory bases for discipline, some violations, as Orwell might say, are more equal than others. Knowing what the most common complaints are can help Illinois doctors redouble their efforts at avoiding mistakes or misunderstandings that can put their practices at risk.

If You Practice Medicine in Illinois, You Will (Likely) Be the Subject of a Complaint

Over the course of a career, even the most outstanding doctors are likely to face at least one complaint about their conduct by a patient or other individual, whether in the form of a filing with the IDFPR or in a civil medical malpractice complaint. The Board receives approximately 3,000 complaints against Illinois doctors every single year. The majority of those complaints are citizen complaints submitted in writing or through the IDFPR website. Complaints also come from other state agencies, from licensing and regulatory boards in other states, and as mandatory reports from professional liability insurers, professional associates, hospitals, or other health care institutions.

Unprofessional Conduct and Substandard Care Lead the Pack

According to IDFPR statistics, 75 percent of the total number of complaints it receives arise from the same 10 alleged violations of the Act. The most common complaint against Illinois physicians received by the Department are allegations of “unprofessional conduct,” or, as set forth in the Act, “engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public.”

Within this broad and somewhat ambiguous definition, some of the more common examples of “unprofessional conduct” that can lead to the suspension or revocation of a physician’s license or other disciplinary action include:

  • Physician abuse of a patient
  • Inadequate record keeping
  • Falsifying records
  • Fraudulent insurance, Medicare, or Medicaid claims
  • False or misleading advertising
  • Prescribing drugs in excess or without legitimate reason
  • Failing to meet continuing medical education requirements
  • Dishonesty
  • Conviction of a felony
  • Delegating the practice of medicine to an unlicensed individual

Complaints about the quality of care provided by a doctor grievances – substandard care, improper care, misdiagnosis, delayed treatment, incompetence, etc.-  are right behind allegations of unprofessional conduct. Sexual misconduct and substance abuse issues also are the subject of an alarmingly high number of complaints to the Department.

Whatever the basis of a complaint, and regardless of whether you believe it has any merit, if the IDFPR has become involved, you need an experienced Illinois physician licensure defense attorney to become involved.  With so much at stake, trying to go it alone before the Department is a mistake from which you may never recover.

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.