State Regulation of The Health Related Professions by Michael V. Favia

STATE REGULATION OF THE HEALTH RELATED PROFESSIONS

By Michael V. Favia, J.D.

5045 North Harlem Avenue

Chicago, IL 60656

Telephone: 773-631-4580

Facsimile: 773-631-7776

E-mail: [email protected]

Website: il-licensing.com

I.  Introduction

The Illinois Department of Financial and Professional Regulation (IDFPR) oversees the Illinois statutes that govern the licensure and discipline of professional and occupational groups. The statutes that govern these groups are found in chapter 225 of the Illinois Compiled Statutes. IDFPR is legislatively mandated to administer and enforce 49 separate legislative acts that regulate the conduct of many professions and occupations in Illinois. While IDFPR regulates numerous professional and occupational licenses (a complete list can be found at IDFPR’s official website-www.state.il.us/idfpr), this presentation will focus on representing physicians subject to IDFPR disciplinary action. According to paragraph 60 of 225 Illinois Compiled Statutes 1987, “Disciplinary Action” means revocation, suspension, probation, supervision, practice modification, reprimand, required education, fines or any other action taken by IDFPR against a person holding a license. Under certain circumstances an impaired physician who is seeking treatment, and is fit to practice medicine, can enter into an Agreement of Care and Counseling whereby the physician maintains his or her license without discipline. Physicians often seek legal counsel when they are notified by IDFPR that they are subject to disciplinary action, and this presentation will provide an overview of the Department and its disciplinary process.

II.  A General Overview to the Licensing and Testing Division of IDFPR

 a. Purpose

 The Division of Licensing and Testing has the responsibility, in conjunction with advisory boards and committees, of determining the qualifications of candidates applying for licensure under the licensing Acts administered by the Division or Professional Regulation.

In addition, the Division is responsible for overseeing the examination process for more than 50,000 examination/endorsement candidates annually as well as maintenance of more than one million licensee records.

b.  Application Processing

The Licensing and Testing division receives and processes the applications, reviews the individual’s educational history and personal history to determine if they meet the statutory requirements for a license in their chosen profession. If necessary the particular board or committee will be convened to review the application in more detail. If there us information that is missing on an application a deficiency letter will be sent to the applicant. This letter sets forth exactly what information the division will need in order to issue the license. The division also administers tests and, if the applicant has fulfill all of the necessary requirements, distributes the license.

III. A General Overview of the Enforcement Division of IDFPR

a. Investigations

The Division of Statewide Enforcement is responsible for investigations of alleged violations of the Medical Practice Act under the Department’s jurisdiction. The disciplinary process begins when the Department becomes aware of a complaint against a licensee. Once a complaint (emanating from the public, practitioners or governmental agencies) has been reviewed, it is assigned to a Department investigator. The investigator is responsible for determining if there has been a potential violation of a licensing law, or Department Rules and Regulations. 225 ILCS 60/22 (A)(l)-(43) sets forth the grounds upon which the Department may seek disciplinary action against a physician. Furthermore, 68 111. Admin. Code Section 1285.240 sets forth the standards for three frequently plead allegations: dishonorable, unethical or unprofessional conduct; immoral conduct and gross negligence. It should be noted that section 60/22 states that the Department must bring most actions against a physician within five years after receipt of a complaint or not more than two years after the receipt of the notification of a medical malpractice settlement or verdict. However, the five-year limitation does not apply to alleged violations relating to practicing under a false name, fraud or misrepresentation in applying for or procuring a license or for cheating on the licensing examination.

After developing the facts in a case where there appears to be a violation, the investigator refers the case to a prosecuting attorney. Frequently, a professional will contact an attorney when an IDFPR investigator contacts him or her. At that juncture, the attorney will contact the investigator, and request that all further inquiries pertaining to the professional be channeled through counsel.

b. Prosecutions

The prosecutions unit seeks to ensure that physicians who are accused of violating the Medical Practice Act are properly disciplined. If there is insufficient evidence to indicate a violation of the statute, the investigative file is normally closed. After a case has been referred to a prosecuting attorney, the investigation of the professional can often continue in order to build a solid case against the professional, and to determine whether to file formal charges seeking disciplinary action. When a case is originally referred to the prosecutions unit, frequently it is handled informally, through the consent order process, whereby the Department and the professional avoid the time and expense of a formal hearing and negotiate a settlement. Present at a physician’s informal conference are the prosecutor, a board member from the Medical Disciplinary Board, sometimes the investigator and the physician, who may be represented by an attorney. The informal conference is confidential. The Medical Disciplinary Board is created pursuant to 225 ILCS 60/7, which states that the Disciplinary Board shall consist of 11 members, appointed by the Governor.

According to 68 111. Adm. Code Section 1285.220 notice of the informal conference will be sent to the physician at least 10 days before it is scheduled. At the informal conference the prosecutor and the board member inform the physician of the allegations against him or her and ask for an explanation. None of the formalities of a hearing pertain. The conference is much like a typical business meeting. While most of the questions will be directed to the physician, the attorney may interject at any time, and the physician may confer with counsel as often as desired. The physician may present any mitigation that might assist the Board. When both sides are finished discussing the allegations, the prosecutor and the board member will have a private discussion outside the presence of the physician and counsel. After the brief discussion, the physician and counsel will be called back into the conference room and informed of the disciplinary action recommended, if any. According to Title 68 111. Adm. Code Section 2185.225 if the physician agrees in principle to the proposed action, the prosecutor will draft a consent order to be formally accepted or rejected by the physician within 30 days. If accepted by the physician, the consent order must be approved by a majority of the Board and the Director of the Department before it becomes a final order.

Pursuant to 225 ILCS 60/36, if the case is not closed and the parties do not enter into a consent order, the prosecuting attorney will file a complaint and a preliminary hearing date will be scheduled. Thereafter, the physician must answer or otherwise plead within 20 days. According to 225 ILCS 60/38 the Disciplinary Board or the Department has the power to subpoena and bring before it any person in this State (including the accused) and to take testimony either orally or by deposition.

Discovery is generally conducted in an informal manner. However, one should look to 68 111. Adm. Code Section 1110.130, which sets forth, rules for discovery. Title 68 states that discovery shall not be the subject of motions, except when a motion is made alleging failure to comply. Upon written request served on the opposing party, any party shall be entitled to the name and address of any witness who may be called to testify; copies of any document, which may be offered as evidence; and a description of any other evidence, which may be offered. Whether or not a request is made during discovery a registrant shall be entitled to any exculpatory evidence in the Department’s possession, and copies of any investigative report, which purports to be a memorandum of interview of the registrant. Upon a written request served on the professional, at any time after a Complaint is filed, or at any stage of the hearing, the professional will be required to produce documents, books, records or other evidence which relate directly to conduct of the trade, occupation or profession.

If a case goes to a hearing, it is held before an IDFPR Administrative Law Judge and a Medical Board Member. The hearing is an administrative proceeding conducted pursuant to the Administrative Procedure Act, the Medical Practice Act and the Department’s procedural rules. 68 111. Adm. Code 1110) states that the burden of proof rests with the Department and a recommendation for discipline may be made by the Committee or hearing officer only where the Department establishes by “clear and convincing” evidence that the allegations of the Complaint are true. Hearings are open to the public. At the completion of the hearing, the Administrative Law Judge’s recommendation, along with the complete file and transcript are forwarded to the Medical Disciplinary Board for deliberation. The Board can order that the physician’s license remain in good standing, or they can order disciplinary action, which can include license termination, revocation, suspension, probation reprimand and censure. The physician shall have 20 days thereafter to request a rehearing. If a rehearing is not requested within 20 days or is denied, the Board’s order is forwarded to the Director of the Department, and once signed by the Director, the order is final. A final order may be appealed to the circuit court within 35 days under the Illinois Administrative Review Act. In some cases, an appeal may be carried as far as the United States Supreme Court.

c. Conclusion

The vast majority of the cases brought against physicians, and all professionals regulated by IDFPR, are settled short of a formal hearing. However, if a consent order cannot be negotiated, it is crucial that attorneys representing physicians, or any professionals, be well versed in the applicable policies and procedures. Specific attention should be given to 225 ILCS 60/1-60/63 and the Administrative Procedure Act and the Rules and Regulations promulgated pursuant to the Medical Practice Act.

COMMON GROUNDS FOR DISCIPLINARY ACTIONS ILLINOIS DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION

Actions against physicians are governed by the Medical Practice Act, 225 ILCS 60/1 – 60/63. The regulations are found at 68 Ill. Admin. Code Part 1285.

I. Grounds for Disciplinary Actions (60/22):

There are 43 grounds listed in the Act. Some of the most common grounds which serve as a basis for disciplinary action include:

1. Conviction of a felony;
2. Gross negligence in practice;
3. Engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public;
4. Obtaining any fee by fraud, deceit, or misrepresentation;
5. Habitual or excessive use or abuse of drugs, or alcohol or any other substance which results in the inability to practice with reasonable judgment, skill or safety;
6. Abandonment of a patient;
7. Prescribing, selling, administering, distributing, giving or self-administering any drug classified as a controlled substance or narcotic for other than medically accepted therapeutic purposes;
8. Immoral conduct in the commission of any act related to the licensee’s practice;
9. Mental or physical illness which results in the inability to practice with reasonable judgment, skill or safety;
10. Public Aid, insurance, or other type of health benefits fraud. 11. Improper fee splitting.
11. Improper telemedicine.

II. Dishonorable, unethical or unprofessional conduct:

This is often the catchall for complaints. The regulations consider whether the questioned activities:

1. Are violative of ethical standards of the profession (such as safeguard patient confidence and records within the constraints of law; respect the rights of patients);
2. Constitute a breach of the physician’s responsibility to a patient;
3. Resulted in assumption by the physician of responsibility for delivery of patient care which the physician was not properly qualified or competent to render;
4. Resulted in a delegation of responsibility for delivery of patient care to persons who were not properly supervised, or who were not competent to assume such responsibility;
5. Caused actual harm to any member of the public; or likely to cause harm to the public. These activities include:
   1. Being convicted of any crime related to larceny, embezzlement, obtaining money dishonestly;
   2. Delegating patient care responsibility to an individual the physician has reason to believe that the person may not be competent;
   3. Misrepresenting his education background, training, credentials, competence, or medical staff memberships;
   4. Failing to properly supervise staff.

III. Where Complaints come from:

1. Federal, state and local enforcement agencies and prosecutors;
2. Competitors/other licensed professionals;
3. Public /Patients;
4. Former employees;
5. Malpractice carriers must make a report when any money is paid out on behalf of a physician or dentist. This is true if the hospital us self-insured. It also applies to interns and residents (HCQIA);
6. Hospitals must report peer review actions based on professional incompetence or professional conduct that adversely affects the clinical privileges of a physician.