Chapman Law Group is dedicated to the criminal defense of doctors, pharmacists, dentists, veterinarians, and other licensed health professionals being investigated or charged with unlawful prescribing or dispensing of controlled substances. The criminal defense of licensed health professionals for unlawful prescribing or dispensing is a very complex area of law as a result of the various statutes, regulations, and agencies involved. Additionally, the criminal case is only half the battle, practitioners accused of unlawful prescribing often face civil and administrative penalties and sanctions in addition to criminal charges. Moreover, various statutes may exclude you from the practice of medicine in Michigan/Florida or from billing Medicare/Medicaid if convicted of various offenses. When choosing an attorney to defend your livelihood and your freedom, it is important that you choose an established law firm competent in all areas of the criminal defense of licensed health professionals and in civil/administrative professional licensing with the experience to achieve the best results possible in your particular case.
Prescription drug abuse is widely recognized as the fastest growing drug problem in the Nation . According to the Centers for Disease Control and Prevention, fatal overdoses from prescription drugs in the United States increased from approximately 4,000 deaths in 1999 to 13,800 deaths in 2006 . Michigan and Florida are no exception to the staggering increase in prescription drug abuse. According to the National Institute for Drug Abuse between 4-4.5% of Michigan residents use prescription drugs for a non-medical purpose . As a result of such staggering statistics, physicians are under increased pressure to tailor their use of prescription narcotics while still adhering to the standard of care and the Hippocratic Oath. While many physicians and attorneys understand the complexity of the regulatory framework for prescribing prescription narcotics, few understand what conduct constitutes a criminal departure from the standard of care. State and Federal Guidelines diverge on this issue and muddy the ever-increasing complexity of healthcare law. Sanctions for stepping over this increasingly blurry line are severe and include revocation of state and DEA licenses, hundreds of thousands of dollars in fines, and possible jail time.
The practice of medicine is a complex and difficult profession; it is no surprise, therefore, that the regulations imposed on health professionals are also highly complex and difficult to understand. Without specialized knowledge of the state statutes and case law, attorneys may be caught flat-footed when advising healthcare providers on the implications of their prescribing habits. With the increase in funding in state and federal programs designed to combat prescription drug abuse and fraud, attorneys are sure to face complex and difficult legal questions.
Both the State of Michigan and the Federal Government have empowered a number of agencies to combat the increasing problems relating to drug diversion and Medicare fraud: Michigan State Police’s Specialized Narcotics Teams (STING, BAYANET, FANG, HUNT, etc.), Health Care Fraud Prevention and Enforcement Action Team (HEAT), Michigan Department of Community Health’s Michigan Automated Prescription System (MAPS), Health and Human Services (H&HS), the Drug Enforcement Agency (DEA), the Department of Justice (DOJ), Center for Medicaid Services (CMS), various insurance investigation teams, etc. With increased federal and state funding scrutiny of the prescription and dispensing of prescription narcotics will rise for the foreseeable future . These investigative teams and agencies developed sophisticated methods of identifying and tracking practitioners who deviate from statistical norms in the community. Investigative agencies and insurance companies also perform a considerable number of undercover operations designed to identify and prosecute practitioners who step outside statistical norms and who are suspected of prescribing prescription narcotics “outside of their scope of practice,” or for “other than professionally recognized therapeutic or scientific purposes.” Physicians, dentists, pharmacists, veterinarians, and other licensed health professionals may face state and federal criminal charges and administrative sanctions for prescribing controlled substances for other than professionally recognized therapeutic or scientific purposes.
MCL 333.7401 provides that a practitioner,  licensed by the Bureau of Licensing and Regulatory Affairs shall not “dispense, prescribe, or administer a controlled substance for other than legitimate and professionally recognized therapeutic or scientific purposes, or outside the scope of practice of the practitioner, licensee, or applicant. ” Thus, a practitioner is exempt from criminal prosecution for drug trafficking as long as the practitioner: 1) acts within their scope of practice; and 2) prescribes controlled substances only for legitimate and professionally recognized therapeutic or scientific purposes.
MCL 333.7333 further defines “good faith” as “the prescribing or dispensing of a controlled substance by a practitioner licensed under section 7303 in the regular course of professional treatment to or for an individual who is under treatment by the practitioner for a pathology or condition other than that individual’s physical or psychological dependence upon or addiction to a controlled substance pursuant to a prescriber’s order…” While it appears that this standard makes simple departures from the standard of care, criminal in nature, Michigan courts have significantly narrowed the conduct required to prove a violation of MCL 333.7401.
Pharmacists, physicians, dentists, veterinarians, and other prescribers or dispensers may face criminal penalties, including jail time, for violations of MCL 333.7401 and MCL 333.7333. In addition to criminal penalties, prescribers or dispensers of controlled substances will face licensing sanctions from the pharmacy board, medical board, dental board, veterinary board, or other respective board which is usually handled contemporaneously with the filing of criminal sanctions. It is imperative that licensed health professionals, including physicians, dentists, and other prescribers retain an attorney highly qualified in both professional licensing and criminal law so that you can get the best advice to protect your freedom and your license. In addition to state criminal charges, practitioners may face federal criminal charges, or administrative action, by the Drug Enforcement Administration (DEA) pursuant to the Controlled Substances Act.
Enacted in 1970, the main objective of the CSA was to combat drug abuse and controlling legitimate and illegitimate traffic in controlled substances . Only licensed medical practitioners who are registered with the DEA are authorized to prescribe controlled substances listed in Schedules II-V to patients; such prescriptions may only be issued by a practitioner who is “acting in the usual course of his professional practice,” and for a “legitimate medical purpose. ” The CSA authorizes the DEA administrator to suspend or revoke a physician’s prescription privileges upon a finding that he/she has “committed such acts as would render his/her registration….inconsistent with the public interest.” This is a much lower standard than the standard applicable to criminal cases. Thus, a practitioner could face losing their DEA privileges even though he/she is acquitted in a criminal court.
When deciding whether a practitioner’s registration is in the public interest, the Attorney General shall consider: (1) The recommendation of the appropriate state licensing board or professional disciplinary authority; (2) the applicant’s experience in dispensing, or conducting research with respect to controlled substances; (3) the applicant’s conviction record under federal or state laws relating to the manufacture, distribution, or dispensing of controlled substances; (4) compliance with the applicable state, federal, or local laws relating to controlled substances; and (5) such other conduct which may threaten public health and safety . The CSA also provides criminal prosecution for illicit possession, manufacture, or distribution of controlled substances. 
In order to avoid criminal prosecution for a violation of the CSA, a physician must always “[act] in the usual course of his professional practice,” and for a “legitimate medical purpose. ” Federal regulations offer very little interpretation regarding the definition of “legitimate medical purpose” and certainly do not narrow the standard as we see in Michigan. In 2005, the Attorney General issued guidance on the term, “legitimate medical purpose” which simply mirrored the definition used in the CSA.  The U.S. Supreme Court has taken a similar approach stating that “registered physicians can be prosecuted under [the CSA] when their activities “fall outside the usual course of professional practice” without offering any additional guidance.  Fifth Amendment challenges have been made to the vague wording of the CSA but have been unsuccessful in other Circuits . In absence of clear guidance, the Sixth Circuit Court of Appeals has wisely endorsed a broad approach to determining what conduct falls outside the accepted bounds of professional practice so as to constitute a CSA violation, eschewing a pre-established list of prohibited acts in favor of a case-by-case approach . Recent Sixth Circuit opinions have applied the subjective “good faith” standard; “good faith in this context means good intentions and an honest exercise of professional judgment as to a patient’s medical needs,” “it means the defendant acted in accordance with what he reasonably believed to be proper medical practice .” While this is problematic for practitioners, seeking clear guidance on what constitutes a criminal departure under the CSA, the U.S. Sixth Circuit Court of Appeals considers:
The items above only constitute a short list of what the factors the Sixth Circuit Court of Appeals has used to determine that a physician acted in “good faith” and is not an exhaustive list. Physicians, dentists, pharmacists, veterinarians, and other prescribers face significant penalties for stepping outside what has increasingly become a very blurry line. Physicians must always monitor their prescription habits and seek the counsel of an attorney knowledgeable in professional licensing, the criminal defense of health care providers, and the standard of care to ensure that their actions and procedures are in compliance with current statutes and regulations.
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 health care 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 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. Call (248) 644-6326 for a Free Consultation with one of our criminal/professional licensing attorneys today.
1 “Michigan Drug Control Update” 2013 http://www.whitehouse.gov/sites/default/files/docs/state_profile_-_michigan.pdf
2 Ctrs. For Disease Control & Prevention, Increase in Fatal Poisonings Involving Opioid Analgesics in the United States, 1999-2006, at 1 (2009), available at http://www.cdc.gov/nchs/data/databriefs/db22.htm
3 “State Estimates of Nonmedical Use of Prescription Pain Relievers.” Substance Abuse and Mental Health Services Administration, January 8, 2013.
4 “Michigan Drug Control Update” 2013 http://www.whitehouse.gov/sites/default/files/docs/state_profile_-_michigan.pdf
5 M.D., D.O., P.A., N.P., or anyone authorized by the Public Health Code Act 368 of 1978 to prescribe controlled substances.
6 MCL 333.7401
7 MCL 333.7333
8 21 U.S.C. 801 et seq.
9 Id. see also 21 C.F.R. § 1306.04
10 Gonzales v. Oregon, 546 U.S. 243 (2006)
11 21 U.S.C.S. §832(f)
13 21 U.S.C. 801 et seq.
14 21 C.F.R. §1306.04
15 United States v. Moore, 423 U.S. 122, 96 S. Ct. 335 (1975)
16 The United States v. Smith, F.3d 639, 653 (8th Cir. 2009)
17 United States v. Kirk, 584 F.2d 773, 784 (6th Cir. 1978).
18 United States v. Volkman, 736 F.3d 1013, 1026 (6th Cir. 2013).
20 See United States v. Binder, 2014 U.S. Dist. LEXIS 84719, 2014 WL 2767393 (E.D. Mich. June 5, 2014) quoting United States v. Varma, 691 F.2d 460, 464 n.2 (10th Cir. 1982).