Posted by Ronald W. Chapman, II
Why Am I Being Targeted?
Over the last decade, federal and state prosecutors have arrested and charged several thousand physicians with criminal violations related to their prescribing of prescription narcotics. In a number of those cases, the physicians were wrongly charged with criminal offenses. In these cases, either state prosecutors misunderstood the applicable standard or prosecuted what essentially should have only been violations of administrative rules and handled by state licensing boards. While it is possible for these physicians to be exonerated, in many cases significant damage has been done to their professional reputation, practice or career, and licensing suspensions and sanctions have already been put in place.
The reason for such increased attention to combating of prescription narcotics is a result of the “war on prescription drugs” in America. While it cannot be argued that prescription drug abuse has become an epidemic, the line between facilitation of this offense and providing adequate health care is increasingly blurry. Such efforts on the part of the federal government to combat prescription drug abuse have the effect of widening the gap between legitimate patients in chronic pain and their well-meaning doctors.
As the fear of federal prosecutions loom, scrupulous physicians are more likely to turn away patients with chronic pain, leaving these patients to fend for themselves.
Moreover, we are seeing an increasing trend of physicians under-prescribing pain medications for fear of being “flagged” by state prescription monitoring systems.
As Vicodin and other Hydrocodone Containing Products become Schedule II Narcotics, physicians are sure to face increased scrutiny, heightened criminal exposure, and inflated state and federal sentencing for convictions related to the prescription of narcotics.
What Is The Standard?
Under the federal standard, a physician is guilty of criminal conduct if he or she prescribes without a “legitimate medical purpose” and outside the “usual course of his professional practice”. If this standard appears shockingly low – you are correct. This standard has the effect of essentially enumerating the standard of care and making departures from the standard of care a potentially criminal offense.
This standard has the effect of essentially…making departures from the standard of care a potentially criminal offense.
State standards vary widely from making simple departures from the standard of care and state administrative rules criminal, such as in Ohio, to requiring an “intent” to traffic in narcotics as in Michigan3. See Unlawful Prescribing.
How Is An Investigation Initiated?
First and foremost, it is important to understand that the word “audit” is synonymous with investigation. Federal and state narcotics investigators frequently use their administrative powers to force their way into your practice and monitor your prescription habits. Very rarely does an investigation start with the police knocking on your door. If the police, DEA or other federal and state investigators have “raided” your practice with a search warrant, you can bet that their investigation is almost at its conclusion.
Therefore, it is imperative that you retain a qualified criminal/administrative attorney to aggressively defend you at the initial stages of an “audit”. This will ensure that you are protecting your rights at every stage of the “audit”, or investigation, and may prevent criminal charges from ever being filed.
Federal investigators use CMS data, state automated prescription systems, data collected from health insurers, and other electronically stored data to look for statistical deviations in prescription habits. Once these are found, the state will usually begin an audit and look deeper into your prescription habits to see if you are operating a “pill mill”. From there, state investigators may send undercover agents to your practice or make contact with existing patients to tighten their web. This investigation will ultimately culminate in the authorization of a “search warrant” and your practice may be “raided”. This will happen with little notice and generally will result in some media coverage.
How Can I Protect Myself?
First, be proactive. If you believe you may be investigated by state and/or federal authorities, you should contact an experienced criminal/administrative attorney immediately and have an independent investigation/audit done of your practice to see what areas can be improved or what your potential criminal exposure is. If you are already being investigated, it is imperative you reach out to an experienced attorney immediately. Delaying may substantially interfere with your ability, or your attorney’s ability, to aggressively defend you. Additionally, with the vast state and federal resources allocated to combating prescription drug abuse, it is imperative your attorney have time to prepare your defense to the investigation.
What Is Going To Happen To Me?
Physicians need to understand that investigation for departures from the standard of care starts a very complex process in multiple arenas – not just criminally.
First, physicians may see suspension of their DEA license. While there is an administrative remedy to appeal this suspension, many are caught off-guard by the rapid suspension of their license immediately after allegations of unlawful prescribing/dispensing are levied. Second, physicians may see their CMS privileges suspended or revoked pending criminal/administrative proceedings. This means that physicians primarily billing Medicare or Medicaid will immediately lose any source of revenue expected from previous billings not already paid by CMS and may face clawback of prior fraudulent billings. Third, physicians may face immediate suspension of their medical license and/or dispensing license. Physicians practicing in multiple states must also be aware that those states will be notified and will likely also take administrative action.
A physician facing a criminal investigation, or charges for unlawful dispensing or prescribing, will immediately face an administrative battle on three fronts. This is in addition to the criminal complaint or indictment that is likely pending. Sentencing guidelines for what amounts to drug trafficking under state and federal law vary and are heavily determinate upon the individual charged and the circumstances of the particular offense(s). However, even one count of unlawful prescribing is likely to subject a physician to jail time, or at least a very lengthy probationary period, in addition to licensing sanctions.
While some damage may be prevented by an aggressive criminal defense and professional licensing defense, your attorney must be knowledgeable about all of these areas in order to adequately defend your interests. Too often, physicians overlook the complexity of these arenas and hire an attorney only skilled in criminal law. However, an attorney skilled in state and federal criminal law, as well as state and federal administrative law, will be more economical than hiring multiple attorneys, provide better care due to knowledge of the interplay between all arenas, and be prepared to aggressively protect your rights, your livelihood and your freedom.
Chapman Law Group offers a comprehensive defense strategy to cover all areas of your potential criminal case, licensing case and compliance issues without the need to seek out the advice of multiple attorneys.
If you are a physician charged with healthcare fraud, our attorneys can represent you equipped with the knowledge of the pain management guidelines and the standard of care for prescribing various pain medications. If you are accused of diversion, our attorneys are able to represent you equipped with real world practical knowledge about medication administration and documentation. Additionally, in over twenty-five (25) years of practice in health law, we assembled an extensive team of experts with expertise in nearly every area of medicine. If charged with a particularly complex offense requiring an expert opinion or consultation, we can put our experts to work for you.
Put the time-tested experience of an established health law firm to work for you today.