ISBA lawsuit seeks injunction of IDFPR discipline of two attorneys for unauthorized real estate appraisal practice

Two Illinois attorneys face potential prosecution by the Illinois Department of Financial and Professional Regulation (IDFPR) but the Illinois State Bar Association (ISBA) filed a lawsuit seeking an injunction and declaration that IDFPR lacks the authority to regulate certain practices.

At issue in the ISBA complaint filed July 11, 2017 in the Circuit Court of Cook County, is whether the IDFPR acted with authority and appropriately when the Department initiated formal administrative prosecutions of two attorneys in April of this year. The IDFPR alleges that he attorneys engaged in the unauthorized practice of real estate appraisals in two different property tax assessment cases.

Illinois regulates real estate appraisals

The Real Estate Appraisal Licensing Act of 2002 is the controlling law on the regulation of real estate appraisers in Illinois. The legislative intent section of the statute reads in part, “The intent of the General Assembly in enacting this Act is to evaluate the competency of persons engaged in the appraisal of real estate and to license and regulate those persons for the protection of the public.[i]” The IDFPR uses its administrative rules and guidelines in issuing professional licenses to practice real estate appraisals.

At issue is whether the IDFPR was proper in disciplining the two attorneys for practicing real estate appraisal without a license to do so.

Meanwhile, it is a common practice for real estate attorneys to represent their clients before the bodies hearing challenges to real estate tax assessments and valuations. Property owners have a right to challenge the appraised value of their property and reduce their tax burden. The two attorneys in this case filed briefs supporting their clients’ tax challenges to the Property Tax Appeals Board and the DuPage County Board of Review. In its news release on point, the ISBA states, “Neither lawyer purported to submit an appraisal or act as an appraiser.[ii]”

The court is likely to receive briefed arguments focused on the scope of the authority of the IDFPR, and what power the Department may have to determine what specific conduct gives rise to a violation. The ISBA contends, “the IDFPR lacks authority to prosecute, discipline, or sanction lawyers for engaging in the practice of law by advocating on behalf of clients in real estate tax assessment proceedings.[iii]”

Takeaways for all professionals in Illinois

It is important in any profession to be aware of and compliant with state laws and regulations of professions. Prior to the enactment of The Real Estate Appraisal Licensing Act of 2002 an individual might have been actively engaged and working as a real estate appraiser when the law passed, then requiring the individual to obtain a license from the IDFPR. The regulation of professions may change and adapt with state law and public policy.

Just because one license may be broadly applicable, such as a license to practice law, it does necessarily mean that such licensure applies ubiquitously; regulatory bodies have authority to determine the scope of a professional practice. In this case, the limits of IDFPR authority are being tested.

As there are new developments in this case we will share that news, as many are interested in the outcome of this lawsuit.

About us: Michael V. Favia & Associates, P.C. is a health law, litigation and licensing firm in Chicago representing individuals, healthcare professionals and organizations with civil legal matters as well as professional licensing and regulation.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent private individuals as well as healthcare professionals in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. Michael V. Favia & Associates is available at (773) 631-4580. Please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

 

 

 

[i] PROFESSIONS, OCCUPATIONS, AND BUSINESS OPERATIONS

(225 ILCS 458/) Real Estate Appraiser Licensing Act of 2002.

[ii] ISBA, Illinois Lawyer Now, ISBA Files Complaint to Enjoin IDFPR Prosecution of Lawyers.

[iii] See HNii above.

Experience matters: Hiring the best healthcare licensing lawyer

How much did it cost you to become a licensed and practicing healthcare professional? While doing the math, in addition to the hard cost of tuition for many years of school, remember to include the opportunity cost of all else you may have done to earn money while you dedicated your life and career path to healthcare practice. In addition to money, the time and other resources invested in a healthcare practice are significant. It is safe to say that healthcare professionals have too much to lose to gamble with a licensing dispute or discipline.

There appears to be an increase in the coverage of healthcare discipline and regulation.

Doctors, dentists and nurses all understand that frivolous complaints are filed from time to time and the regulatory agency charged with oversight has a duty to follow up on any and all reported incidents. Even if you assume you are in the clear and can handle everything on your own, it is possible to stumble on an unknown regulatory or legal issue and it is never good to be caught off guard when defending your practice.

There are incentives for people to report the alleged misconduct of others, particularly in healthcare practice. Consider the amount of coverage given to cases of Medicare billing fraud. People who report Medicare fraud can receive compensation for being the whistleblower. A less than ethical individual may target practitioners with high volume practices if they think there is a chance an error may lie somewhere in the billing files, and they might get lucky.

When winning and defending your practice matters, so does experience.

The increase in demand for healthcare professionals leads to an increase in all the industries supporting healthcare practice, including the legal industry. As increased manpower and technology allows for more opportunities to regulate and oversee healthcare practices, there is an increased need for skilled and experienced attorneys to advise and represent licensed healthcare practitioners.

Chicago healthcare law and licensing attorney, Michael V. Favia humbly finds himself among the best healthcare attorneys in the State of Illinois. Favia’s career has afforded him the opportunity to work for the State as well as in private practice, on both sides of the fence. As a former chief prosecutor for the IDFPR, then the Illinois Department of Professional Regulation, Favia is intimately familiar with the outlook and position of the Department, when it investigates and makes discretionary decisions whether to proceed with the investigations that can lead to discipline and serious consequences.

Read Michael V. Favia’s LinkedIn profile for a full list of career accolades and experience.

Working in private practice, counseling and representing Illinois-licensed healthcare practitioners, defending their licenses and careers, Favia has also had the opportunity to share experience and wisdom with other attorneys learning healthcare law. Only through many years of experience in the trenches does a professional develop the right intuition and knowledge base to be the senior practitioner to mentor others. In building his career, Favia has worked with other leading healthcare lawyers, associating and collaborating on cases; he is the one they turn to when they need additional counsel.

About us: Michael V. Favia & Associates, P.C. is a health law and litigation firm in Chicago representing individuals, healthcare professionals and organizations with civil legal matters as well as professional licensing and regulation.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent private individuals as well as healthcare professionals in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. Michael V. Favia & Associates is available at (773) 631-4580. Please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

 

Murder conviction: Doctor gets 30 years, patient drugs overprescribed

Image Source: LA Times, California doctor convicted of murder in overdose deaths of patients. http://lat.ms/1WnJRUF

In a landmark legal decision earlier this month, the doctor convicted by a jury for second-degree murder of patients was sentenced to 30 years to life in prison.[i] The doctor allegedly overprescribed drugs to patients. In response to the landmark decision and murder conviction, the medical community may change the rules and protocols for managing patient prescriptions for narcotics. When administered properly, drugs are safe, but when mixed in the wrong combinations or taken in excessive doses, drugs are lethal. Like other licensed professionals, doctors are uniquely trusted by most people as lifesavers, often expected to perform miracles. It is contrary to the general standards of decency to which many of us are accustomed, to question whether a doctor would overprescribe drugs to a patient to the point of death.

The jury answered the question whether Los Angeles Dr. Hsiu-Ying (Lisa) killed her patients.

During the trial, jurors heard testimonial evidence from some family members of Lisa’s patients who called the doctor a “drug pusher” and asked her to stop prescribing medication.[ii] The prosecutor told jurors that Lisa’s routine of prescribing drugs was full of “red flags,” and despite receiving more than 12 reports from law enforcement or coroners saying, “Your patient has died,” Lisa did not change her prescription habits.[iii]

If Lisa knew that her patients were dying and the cause was connected with the drugs she was prescribing, the inference is that she did not care whether the patients were at risk of death. Why would a physician overprescribe drugs? In many cases where doctors are prescribing pain medications, those drugs find their way into the wrong hands when patients misrepresent their health history for the purpose of obtaining a prescription with the intent to sell the drugs. Was Lisa a “drug pusher?”

The prosecutor told the jury that Lisa, “agreed to give patients powerful narcotics without asking follow-up questions even after some – including an undercover agent posing as a patient – told her about their drug addictions. “She wrote them a prescription for the very thing they’re addicted to.[iv]”” Lisa’s attorney defended her client and argued that Lisa was not motivated by money. The countless reports of warning signs and questionable prescription practices are troublesome in the medical community where the good and ethical physicians get nervous about prescribing certain narcotics.

If doctors fear criminal liability for patient death connected with narcotics, fewer people with legitimate needs might find a path to recovery.

Medical malpractice insurance may pay the loss of life claim if a doctor is found liable for negligence, but the malpractice policy does not apply to criminal liability and it will not keep a doctor out of prison. Imagine a patient is manipulative and deceitful, and an unknowing doctor prescribes painkillers that the patient sells to others and someone dies. Is the doctor going to be criminally liable? Could there be an imposition of strict liability for deaths related to painkiller prescriptions? If physicians are to be held to a super hero standard where mistakes are not allowed, we might see lower enrollments in medical schools because the risks of the practice of medicine would dissuade our brightest scholars from becoming doctors.

The conviction and sentencing of a physician, in connection with prescribing drugs, is compelling, especially where very few doctors nationwide have faced similar charges, and the ones who do are often acquitted. It is likely that the medical community may respond with new advice and protocols to prevent future cases of abuse and death.

Michael V. Favia & Associates represent and defend doctors and their medical practice.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent licensed physicians in all types of litigation and administrative matters involving licensing and regulatory agencies. When a physician is accused, no matter in what form, of wrongdoing or negligence, it is imperative to manage the situation appropriately. In some instances, there is a duty to report, and when done correctly, the results are greatly improved.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates, please visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

 

[i] Los Angeles Times, Doctor convicted of murder for patients’ drug overdose gets 30 years to life in prison, by Marisa Gerber, Feb. 5, 2016.

[ii] Los Angeles Times, California doctor convicted of murder in overdose deaths of patients, by Marisa Gerber, Lisa Girion and James Queally, Oct. 30, 2015.

[iii] See HNi above.

[iv] See HNii above.

Challenges for health care professionals reported in the National Practitioner Data Bank

The NPDB is a federal information repository dedicated to improving health care quality, promoting patient safety, and preventing fraud and abuse.

The National Practitioner Data Bank (NPDB) is a federal information collection program, a part of the U.S. Department of Health and Human Services, designed to ensure health care consumers receive quality health care, patient safety, and are protected from fraud and abuse in the health care industry. This information kept and shared with authorized users includes negative health care professional disciplinary information, malpractice awards, loss of license or exclusion from participating in Medicare or Medicaid. The benefit of information sharing is measured in the efficiency in which the state agencies licensed to use the data bank can catch potential threats to the public, preventing health care professionals from having trouble in one state and leaving for another to start over with a clean slate. There are challenges however, when a health care professional is licensed in several states and there is an occurrence in one state and all the other states are notified, potentially triggering a chain reaction of inquiries among licensing and regulatory agencies.

Information collection and sharing is not new, but it is a more streamlined process today.

The United States Congress created the National Practitioner Data Bank with the intent to improve the quality of health care services while protecting the public from fraud and abuse. In 2010, when Congress voted to approve the Affordable Care Act, the NPDB was combined with the Healthcare Integrity and Protection Data Bank (HIPDB), which was originally established in 1996 in the Health Insurance Portability and Accountability Act (HIPAA). HIPDB was established to combat health care fraud and abuse, and served to collect and share information the way the NPDB does today.[i]

Reports to the National Practitioner Data Bank are “records of actions taken by authorized organizations regarding health care practitioners, entities, providers, and suppliers who do not meet professional standards.[ii]” An authorized report can include information concerning settlements and payment in medical malpractice cases in addition to negative action by health care organizations or state licensing boards in connection with the delivery of health care services, meaning a reprimand, loss of privileges, suspension, revocation and so forth. Medical malpractice reports are a concern of any licensed health care professional whose decision in whether to settle or continue defending against a complaint for medical malpractice due to concerns that paying a settlement will jeopardize the doctor’s status in the NPDB.

Licensure in multiple states can be a concern for health care professionals with reports on the NPDB.

If a health care professional settles a medical malpractice case, and they are licensed in multiple states, there could be state inquiries arising out of all the states in which the individual holds a medical license. It is possible that in the licensing agency, in the state where the medical malpractice case took place, is aware, investigates and elects not to discipline the health care professional. It is also possible that a neighboring state agency, also becoming aware of the malpractice cases through the NPDB, investigates and takes adverse action against the health care professional, such as suspending the individual’s license. That suspension could be the trigger for a domino-type effect in all the states in which a health care professional is licensed to practice their craft.

Health care professionals defend against claims and complaints to avoid reports on the NPDB.

Attorneys and consultants such as Michael V. Favia and the Illinois Professional Licensing Consultants work with health care professionals who face concerns about long-term impacts of actions that could damage their reputation and ability to earn income when reports are made to the NPBD. When negative information is reported through the NPDB, it can cost a health care professional significant time and money to protect their license to practice and make a living. Knowing the benefits and liabilities arising out of the NPDB is important, and health care professionals should be keenly aware of the NPDB and how it is used in the health care industry among the states.

Michael V. Favia & Associates offices are conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates professional licensing work, please visit www.IL-Licensing.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter.

 

[i] National Practitioner Data Bank website, HIPDB Archive.

[ii] National Practitioner Data Bank website, Reporting to the NPDB