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Illinois Legislates to Inform/Protect Patients

Health Care Law Alert Ilana Bamberger Spector

Patient safety must be on the minds of Illinois legislators because the state has recently enacted various laws targeting health care workers. Illinois House Bill 0105 (commonly referred to as the "Patients' Right to Know Act") and Illinois House Bill 1271 (commonly referred to as the "Health care worker licensure actions; sex crime" law) seek to protect patients by increasing safety and transparency in the health care sector.

Patients' Right to Know Act

The Patients' Right to Know Act requires the Illinois Department of Financial and Professional Regulation (the "IDFPR") to make "physician profiles" available to the public via the Internet. Physician profiles will consist of information related to a physician's or chiropractor's criminal and disciplinary history and professional and academic background, including:

  1. criminal convictions for felonies and Class A misdemeanors and final disciplinary actions taken by the IDFPR or by other state boards;
  2. revocation and restriction of hospital privileges and resignation and nonrenewal of medical staff membership (if related to the individual's competence or character); and
  3. malpractice judgments, awards and settlements (excluding pending malpractice claims).

Additional information that will be disclosed in the profile includes an individual's academic background, specialty board certifications, number of years in practice and locations, names of hospitals where the individual has privileges, appointments to medical school faculties, locations of the individual's primary practice, information regarding publications, and whether the individual participates in Medicaid.

Physicians, chiropractors and their employers can breathe a sigh of relief as most of these disclosures are limited to the most recent five years.

Although the IDFPR has collected some of this data already, it may be contacting physicians and chiropractors in the near future to gather information necessary to complete the profile. Before publishing, the IDFPR will first provide a copy of the profile to the individual. These individuals will then have two months to correct any inaccuracies and may elect to omit certain details in the profile - limited to academic appointments and teaching responsibilities, publication in peer-reviewed journals and professional and community service awards. They will not have the ability to limit negative history about themselves.

Implications for Hospitals and Physicians

Public disclosure of negative history in the "physician profiles" may affect patient choice of provider and also health care facility. If affected physicians or chiropractors are employed on the medical staff of hospitals, the public will have to assess this negative history, which among other implications could create negative publicity for the hospital. If a hospital anticipates it will be impacted, it should take steps to deal with the consequences of having this information publicized, especially from a public relations perspective. Furthermore, hospitals may wish to search the IDFPR website to ensure all information that is published by the IDFPR is already known to the hospital.

Health Care Workers Licensure Actions; Sex Crime Law

In another effort to increase patient awareness and patient safety, Illinois enacted the "Health care worker licensure actions; sex crime" law, which automatically and permanently revokes the license of any health care worker in the state who: (i) has been convicted of a crime requiring registration as a sex offender; (ii) has been convicted of a criminal battery against a patient during medical care or treatment; (iii) has been convicted of a forcible felony; or (iv) is required as a part of a criminal sentence to register as a sex offender. No individual who meets one of these four criteria may receive a license to practice in the state. In addition, if any such licensed health care worker has ever met one of these four criteria, they will be subject to licensure revocation.

This law affects all "health care workers," which are defined to include dentists, dental hygienists, nurses, advanced nurse practitioners, occupational therapists, optometrists, pharmacists, physical therapist, physicians, physician assistants, podiatrists, clinical psychologists, clinical social workers, speech-language pathologists, audiologists and hearing instrument dispensers.

When Charges are Pending Against a Health Care Worker

If charges are filed against a health care worker alleging that the individual's conduct satisfied any one of the four criteria described above, the State's Attorney will notify the IDFPR about the charges. Subsequently, the IDFPR will issue an administrative order requiring that the health care worker practice only under the supervision of a licensed chaperone until the outcome of the criminal proceedings. The chaperone must provide written notice to patients explaining the IDFPR's administrative order.

Revocation Process

Although, technically, the license of any health care worker who meets one or more of the four criteria above was revoked on August 20, 2011 (when the law took effect), the IDFPR must first send a Notice of Intent to Revoke ("Notice") to affected individuals to notify them that their license will be permanently revoked. The Notice will also ask the individual to respond if the information in the Notice is incorrect - for instance, if a conviction was overturned, etc.

Approximately 20 days after sending the Notice, the IDFPR will send the individual a Notice of Licensure Revocation ("Revocation Notice"). The IDFPR began sending out Revocation Notices in early August. At this point, it appears that only the health care worker - not the worker's employer - will be notified of a license revocation and of any pending criminal charges against him/her. Thus, employers must uncover this information on their own.

Implications for Employers

Because the IDFPR will only notify the health care workers - not their employers - of a license revocation and of pending criminal charges, employers should establish policies and develop additional creative ways to ensure their health care worker employees immediately report a licensure revocation to them. Unlicensed health care workers may not continue to provide services to patients. As a result, if an employer unwittingly permits a health care worker whose license has been revoked to practice, it may be subject to strict disciplinary actions by the state.

Employers must also ensure that their health care worker employees notify them of any pending criminal charges, so that such employees are properly chaperoned and adequate notice is provided to patients. Implementing regulations may subsequently be promulgated, which may provide further compliance obligations.

For more details or if you have any questions about these laws, please contact Ilana Bamberger Spector at (312) 715-5231 / or your Quarles & Brady attorney.