Prescription narcotics play a crucial role in modern medicine. Used to treat pain resulting from injuries, surgeries, cancers, and other medical conditions, narcotics are among the most-commonly-prescribed medications in America.
Unfortunately, due to dependence and addiction, many prescription narcotics are also widely abused. This has led federal agencies such as the Department of Justice (DOJ) and the Drug Enforcement Administration (DEA) to heavily target health care providers that prescribe and dispense narcotic medications. From physicians selling illegal prescriptions to pharmacists skimming pills, intentional prescription drug fraud takes many forms and can lead to severe penalties – including time behind bars.
However, not all providers targeted by the DEA are involved in schemes designed to illegally distribute prescription narcotics and obtain funds from Medicare and other federal health care benefit programs. In fact, many – if not most – providers targeted in DEA prescription fraud investigations are legitimate physicians and pharmacists whose sole intention is to meet their patients’ medical needs. But, the government’s heavy reliance on data analytics means that providers whose Medicare billings deviate from those of their peers (often because they serve a high volume of patients or serve communities with unique needs) will frequently face unwarranted investigations.
So, can the DEA investigate you for prescribing narcotics? Yes, absolutely. Does an investigation mean that you have done something wrong? Not necessarily. But, in order to avoid unjust and unnecessary consequences, if you have been contacted by the DEA – you need to take your situation seriously. This starts with seeking experienced legal representation.
Commonly-Prescribed Narcotic Medications
With the DOJ’s recent announcement that it intends to crack down on opioid fraud and abuse, providers can expect to be under enhanced scrutiny for prescribing and dispensing various types of narcotic medications. Prescription drugs that fall into this category include:
- Diphenoxylate (Lomotil)
- Fentanyl (Actiq, Duragesic, and Fentora)
- Hydrocodone (Hysingla ER, Lorcet, Lortab, Norco, Vicodin, and Zohydro ER,)
- Hydromorphone (Dilaudid and Exalgo)
- Meperidine (Demerol)
- Methadone (Dolophine and Methadose)
- Morphine (Astramorph, Avinza, Kadian, MS Contin and Ora-Morph SR)
- Oxycodone (Endocet, OxyContin, Oxecta, Percocet, Roxicet, Roxicodone, and Targiniq ER)
- Propoxyphene (Darvon)
These medications are most-commonly prescribed in pill form for self-administration outside of the medical setting, making it easy for mistakes and fraud to occur.
What is the DEA Looking For?
When the DEA investigates a medical practice, pharmacy, compound pharmacy, clinic, or other health care business for prescription drug fraud, what exactly is it looking for? Some of the practices most-commonly targeted in DEA prescription narcotic investigations include:
- Diverting prescription narcotics by issuing false prescriptions, forging prescriptions, and other means.
- Using drug shorting and refill schemes to create the false appearance that narcotic medications have been delivered to a patient.
- Issuing prescriptions for more medication than necessary in order to bill Medicare or another federal benefit program for extra pills.
- Selling fraudulent prescriptions in order to supply prescription narcotics to non-patients.
- Prescribing narcotic medications without performing an in-person exam in order to establish medical necessity.
- Falsifying patient records and inaccurately reporting test results in order to issue prescriptions for narcotic medications.
- Medicare and Tricare billing violations such as upcoding, overbilling, double-billing, phantom billing and other forms of coding fraud.
Of course, these are just examples. There are far more egregious forms of fraud that can lead to organized, nationwide takedowns targeting hundreds of providers. Unfortunately, there are far less nefarious issues that can lead to DEA investigations as well. Regardless of what you think you may or may not have done wrong, when the DEA contacts you, you need to make sure you have a clear understanding of the circumstances at hand.
Laws that Impose Civil and Criminal Penalties for Prescription Drug Fraud
When the DEA investigates a health care provider for prescription drug fraud, it can do so under a broad range of federal statutes. The statutes most-commonly used to investigate and prosecute health care providers suspected of prescription drug fraud involving narcotic medications include:
- Controlled Substances Act (CSA) – The Controlled Substances Act applies to all types of fraud involving prescription narcotics, not just those that involve reimbursements through Medicare and other federal benefit programs. The CSA imposes severe penalties for offenses such as forging prescriptions, altering physicians’ prescriptions, issuing illegitimate prescriptions, and dispensing narcotics without a valid prescription.
- False Claims Act (FCA) – The False Claims Act is one of the federal government’s most-potent weapons against health care fraud. Under the FCA, physicians, pharmacists, clinics, hospitals, and other providers can face civil and criminal penalties for submitting “false and fraudulent claims” for Medicare or other government program reimbursement. This includes claims for reimbursement of medically-unnecessary prescriptions, reimbursements that include kickbacks or referral fees, and numerous other forms of improper billings.
- Anti-Kickback Statute and Stark Law – The Anti-Kickback Statute and the Stark Law prohibit the payment of unlawful bribes, kickbacks, referral fees, and other forms of remuneration in connection with the prescription and distribution of prescription narcotics. The Anti-Kickback Statute applies to all forms of illegal remuneration involving federal benefit program reimbursements, while the Stark Law applies specifically to physician “self-referrals.”
- Federal Criminal Statutes – In many prescription drug fraud investigations, providers will also face potential criminal liability for mail fraud, wire fraud, bank fraud, identity theft, and other serious federal offenses.
- State Health Care and Criminal Laws – In addition to facing federal prosecution, health care providers targeted in DEA investigations can potentially face prosecution at the state level as well. In prescription drug fraud cases, it is not uncommon for providers to face fines, imprisonment, and other penalties for Medicaid fraud, theft, and various other state-level offenses.
The penalties imposed under these laws vary depending on the specific charges the government chooses to pursue, the allegations involved in the case, and whether the case is civil or criminal in nature. However, in broad terms, the penalties for prescription drug fraud involving narcotic medications can include: exorbitant fines, treble damages (three times the government’s actual losses), recoupment of fraudulent billings, federal benefit program exclusion, loss of licensure, and incarceration.
Resources for Physicians, Pharmacists, Clinics, and Others Facing DEA Investigations
If you are concerned about a possible DEA investigation into your medical practice, pharmacy, compound pharmacy, clinic, or other health care business, it is important to learn as much as you can about your situation as quickly as possible. Our attorneys have prepared these resources specifically to help practitioners and business owners who are being targeted by the DEA for prescription drug fraud:
About Oberheiden & McMurrey LLP
Oberheiden & McMurrey LLP is a health care fraud defense law firm with a national federal law presence that represents providers across the country in DEA and other federal agency investigations. The firm is led by partners Dr. Nick Oberheiden and William (Bill) C. McMurrey, each of whom offer extensive experience representing physicians, pharmacists, executives, key personnel, and health care entities facing severe consequences due to federal inquiries.
The federal government has offices strategically located in health care fraud “hot-spots” around the country, and so do we. With our headquarters located in Dallas, TX, we also have office locations in Southern California, Detroit, Baton Rouge, and New York City. Our attorneys regularly travel to meet with clients and represent them in matters involving the DEA and other agencies, and we have experience fighting to protect our clients in federal courts around the county.
Our team of health care fraud defense attorneys include:
- Nick Oberheiden – Dr. Oberheiden is our firm’s founder and an experienced attorney who has dedicated his career to helping providers avoid unnecessary consequences of federal health care fraud investigations.
- William (Bill) C. McMurrey – Mr. McMurrey is a former DOJ trial lawyer who brings nearly 30 years of experience to representing health care providers accused of federal fraud.
- Lynette S. Byrd – Ms. Byrd is a former federal prosecutor and distinguished trial lawyer who handled dozens of high-profile investigations for the government before entering private practice.
- Glenn A. Harrison – Mr. Harrison is a health care fraud defense lawyer who worked with HHS and other agencies as an attorney for the DOJ prior to joining Oberheiden & McMurrey LLP.
- Heath Hyde – Mr. Hyde has handled thousands of felony cases – involving drug crimes and other offenses – as a prosecutor before choosing to use his knowledge to help those facing unjustified investigations and charges.
- Elizabeth Stepp – Ms. Stepp brings more than 20 years of experience to the table when representing health care providers in complex litigation and appeals.
- Pascual Meyer – Mr. Meyer is an experienced litigator who consults on state and federal cases involving a wide range of health care fraud-related allegations.
- Michael A. Rataj – Is a highly-respected federal justice system trial attorney. Mr. Rataj is Of Counsel to Oberheiden & McMurrey LLP.
Also on our team in-house team is Howard Manresa, an experienced FDA consultant who specializes in the areas of prescription drugs, biologics, and federal health care fraud.
Contact Us for a Free Consultation
If you would like to speak with a health care fraud defense lawyer at Oberheiden & McMurrey LLP about your DEA investigation, please call (888) 452-2503 or request an appointment online today.