As a physician who spends your days diagnosing and treating patients, or as a practice owner who is constantly focused on maintaining compliance with the ever-changing government program billing regulations, you may be surprised to learn that the Drug Enforcement Administration (DEA) is among the federal authorities keeping an eye on your practice. But, along with agencies such as the Centers for Medicare and Medicaid Services (CMS) and the Department of Health and Human Services (HHS), the DEA is on the leading edge of the government’s fight against prescription drug fraud. For medical practices that prescribe and administer controlled medications, being contacted by the DEA can have serious ramifications, and knowing what leads the DEA to investigate can be critical to limiting your exposure to civil and criminal liability.
While many DEA investigations focus on organized fraud schemes that specifically target Medicare, in far more instances, the DEA investigates legitimate providers that either (i) have unintentionally violated the law, or (ii) have “abnormal” Medicare billing records due to the unique nature of their practice or the unique patients they serve. And while overt evidence of intentional fraud is certainly one thing that will lead to the DEA to investigate, another trigger the DEA heavily relies on is data analytics which identify potential targets for prescription drug fraud investigations. With this in mind, here are five acts that can trigger a DEA investigation into a medical practice.
1. Serving a High Volume of Patients
Believe it or not, simply serving a high volume of patients can in some instances be enough to trigger a DEA investigation. Serving more patients means issuing more prescriptions and submitting more reimbursement requests to Medicare, and these are both factors that can raise red flags in the DEA’s data-driven analysis of health care providers. When looking at the data alone, many of the characteristics of a high-volume practice can mirror those of a fraudulent organization. Federal agents often will not know the difference until they dig deeper into the provider’s records.
2. Prescribing More Medication than Other Providers
If you do not necessarily maintain a high-volume practice but you still issue a higher-than-normal number of prescriptions, this too can lead to an inquiry by the DEA. This could be the case if your practice is located in a high-risk area, or if you maintain a specialized practice which often treats patients who are in need of opioids and other narcotic prescription medications. With the government placing particular emphasis on targeting health care providers that not only defraud Medicare but also contribute to the risk of prescription drug abuse, writing more prescriptions than other physicians in seemingly-similar practices will often lead to government inquiry.
3. Operating in a “Regional Hot-Spot” for Prescription Drug Fraud and Abuse
The Department of Justice (DOJ) recently announced the formation of a new Opioid Fraud and Abuse Detection Unit, which will be working with agents from the DEA and other federal law enforcement agencies to prosecute health care providers suspected of prescription opioid fraud and abuse. Among the factors the Opioid Fraud and Abuse Detection Unit will consider when singling-out providers for potential prosecution is location in a “regional hot-spot for opioid issues.”
The DOJ has initially identified 12 regions in which it will be focusing its efforts in its fight against fraud and abuse involving prescription opioid medications:
- Central Florida
- Central North Carolina
- Eastern California
- Eastern Kentucky
- Eastern Michigan
- Eastern Tennessee
- Northern Alabama
- Southern Ohio
- Southern West Virginia
- Western Pennsylvania
Additionally, the Medicare Fraud Strike Force – a combined effort of the DOJ, HHS, DEA, and other federal agencies – has established field locations in nine areas around the country which have experienced higher-than-normal levels of health care fraud. These nine areas are:
- Brooklyn, New York
- Los Angeles, California
- Chicago, Illinois
- Dallas, Texas
- Detroit, Michigan
- Miami, Florida
- Southern Louisiana
- Southern Texas
- Tampa, Florida
4. Making Mistakes in Your Medicare Billing
When looking at the data, honest mistakes in Medicare billing can also look a lot like fraud. Under the False Claims Act (FCA) and federal health care laws, medical practices can face civil penalties for unintentional Medicare billing violations, and they can face criminal penalties (including incarceration) for intentional Medicare fraud. If someone within your practice has made mistakes such as upcoding, overbilling, double billing, or failing to follow the requisite formalities for billing Medicare – DEA agents may begin looking into your practice.
5. Engaging in Conduct that is Indicative of Intentional Prescription Drug Fraud
Engaging in conduct that is indicative of intentional prescription drug fraud can trigger DEA investigations as well. Some examples of illegal practices that the DEA routinely targets in prescription fraud investigations include:
- Prescription drug diversion
- Drug shoring and refill schemes
- Falsifying prescriptions and increasing the amount of medication dispensed
- Compound pharmacy fraud
- Selling false, fraudulent, and illegal prescriptions
- Illegally importing prescription medications
- Prescribing medications without performing an in-person exam
- Falsifying patient records and inaccurately reporting test results
- Payment and receipt of kickbacks involving prescriptions for controlled substances
- Upcoding, overbilling, double-billing, and other billing fraud schemes
You can learn more about each of these in: 10 Common Health Care Provider Fraud Schemes.
5 Ways to Mitigate Your Risk of a DEA Investigation
With these risks in mind, physicians and medical practices must take careful steps to avoid increasing their chances of facing a DEA investigation. In order to reduce your risk of facing an investigation – and to reduce your risk of facing charges if you have already been contacted by the DEA – here are five steps you can begin taking right away:
1. Stay Up-to-Date on the Medicare Billing Rules and Regulations
CMS makes changes to the Medicare billing guidelines frequently, and providers that bill Medicare for service and prescription reimbursements have an obligation to maintain compliance with the most up-to-date version. If you improperly bill Medicare under an outdated version of the guidelines, this can be enough to trigger an investigation and possible civil liability.
2. Follow a Documented Compliance Program
When the DEA inspects your practice’s books and records, you want them to show that you have taken appropriate steps to meet your obligations under the law. This means having a documented compliance program, and documenting your efforts to implement and enforce your compliance program on an ongoing basis.
3. Be Proactive about Resolving Possible Issues
If you learn of a potential issue in your practice (either before or during a DEA investigation), it is important to assess the circumstances and promptly develop an appropriate plan of action. Attempting to conceal violations can raise even more red flags for investigators, while being proactive about remedying violations can show prosecutors that the violation was an honest mistake that you never intended to let occur.
4. Help Your Employees Understand Examples and Risks of Fraud
It is nearly impossible to run a successful medical practice without placing a significant amount of trust in your employees. In order to raise your confidence level and reduce the risk of billing mistakes and other errors that can signify potential fraud, it is important to ensure that your employees have the information they need to make smart decisions and remain compliant. This means providing adequate training on both what to do and what not to do, and impressing upon your employees the risks involved in making mistakes that could trigger a DEA investigation.
5. Seek Experienced Help at the First Sign of a Possible Investigation
If you have been contacted by the DEA, or if you have become aware of a billing issue or prescription issue that could trigger an investigation, it is important that you seek experienced legal representation. At this point, you cannot afford to make mistakes, and you need professional advisors who can help you develop and execute a strategy for protecting your practice’s finances and avoiding the potential for criminal prosecution. When it comes to DEA investigations involving prescription drug fraud, your choice of legal representation matters. You need to choose a firm with specific and extensive experience successfully resolving federal health care fraud investigations.
About Oberheiden & McMurrey LLP
Headquartered in Dallas, TX and with satellite offices in Baton Rouge, Detroit, Los Angeles, New York City, and San Diego, Oberheiden & McMurrey LLP is a health care fraud defense law firm with a multistate presence that represents physicians and medical practices in DEA investigations and health care fraud litigation. Our defense team includes experienced litigators and former federal prosecutors collectively bringing decades of experience to helping providers avoid civil and criminal charges.
If you are facing a DEA investigation, or if you have identified issues in your practice that need to be remedied, your first step should be to seek experienced legal representation. To schedule a free and confidential assessment with the health care fraud defense attorneys at Oberheiden & McMurrey LLP, please call (888) 452-2503 or contact our offices online today.