The Drug Enforcement Administration (DEA) is among the numerous federal agencies that target health care providers suspected of defrauding Medicare, Tricare, and other government benefit programs. Focusing its efforts on cases involving the manufacture, prescription, and distribution of controlled substances, the DEA routinely investigates physician-owned entities. These would include pharmacies, compound pharmacies, and other practices that deal in prescription medications. While the Department of Justice (DOJ) has recently announced that it will be working with the DEA and other agencies to specifically target opioid prescription fraud and abuse, any type of abnormal billing or other activity involving prescription drugs that deviates from national standards are likely to garner the DEA’s attention.
As a health care provider, facing a DEA investigation is a serious matter. While more providers than ever are facing investigations, being contacted by the DEA should not be considered a “normal” or “routine” part of owning and operating a medical practice. With the potential to lead to civil or criminal charges, all federal investigations must be handled with extreme care. Providers must have a clear strategy for concluding their investigations without facing prosecution.
If you have been contacted by the DEA, it is imperative that you seek legal representation promptly.
15 Reasons to Hire a Lawyer for Your DEA Investigation
1. If You Are Being Contacted, Your Investigation Has Likely Been Going on for a While.
By the time you receive a letter or a knock on your door from the DEA, your investigation is likely already well underway. When it comes to prosecuting health care fraud, the DEA and other federal law enforcement agencies rely heavily on data analytics, and there is likely something about your company’s Medicare or Tricare billings that stood out as an “anomaly.” Once your company was identified, federal agents likely spent significant time examining your company’s records before deciding that it was worth making contact to further their investigation.
2. DEA Agents are Experienced in Identifying Signs and Uncovering Evidence of Prescription Drug Fraud.
The DEA agents who investigate prescription drug fraud are very good at what they do. Many of them have deep understandings of the federal health care laws as they apply to prescription drug fraud, and they are trained to solicit information, spot the signs of fraud, and follow trails that will ultimately lead to evidence that can be used to obtain a conviction.
3. DEA Agents Work Closely with Federal Prosecutors at the DOJ and the Department of Health and Human Services (HHS) Office of Inspector General (OIG).
When conducting health care fraud investigations, DEA agents work closely with government attorneys from the DOJ and OIG. Once they uncover enough evidence to support civil or criminal charges, DOJ or OIG prosecutors may act quickly to put your case on the path toward trial in federal court.
4. You Do Not Have to Give DEA Agents Everything They Ask For.
In a typical investigation, DEA agents will ask for lots of information that the provider is not legally required to disclose. Is it in your best interests to provide this information? Maybe, if it is clearly exculpatory. However, volunteering information can also be dangerous. If you do not know exactly why DEA agents are asking for certain information, providing that information unnecessarily could end up working to your disadvantage.
5. Withholding or Destroying Relevant Information Could Lead to Further Charges.
On the other hand, if you withhold information illegally, or if you (or your employees) destroy paper or electronic files the government is entitled to review, doing so could both hurt your defense and lead to further charges. Before making any decisions about providing information to or withholding information from the DEA, it is critical that you seek advice from an experienced attorney.
6. You Need to Find Out Why You are Under Investigation.
Whether you have your suspicions or you have no idea, if the DEA has contacted you, you need to find out exactly why you are under investigation. Now is not a time to make assumptions or operate in the dark. An experienced health care fraud defense attorney will be able to intervene in the DEA’s investigation and ask the right questions to find out what led to your business or practice being targeted.
7. You Need to Find Out Whether Your Investigation is Civil or Criminal in Nature.
Along with finding out why you are under investigation, you also need to find out quickly if your investigation is civil or criminal in nature. If the investigation is civil, you want to keep it that way. A civil investigation means that prison time is not on the table. But, if your investigation is criminal and you (or your business’s or practice’s key personnel) could face incarceration if your case goes to trial, you need to tailor your defense strategy to address the unique factors involved in criminal investigations.
8. Federal Health Care Laws are Extraordinarily Complex.
Is it possible that your business’s compliance program is lacking, or that you are not familiar with certain laws governing prescription medications Is it possible that a little-known safe harbor protects you from civil or criminal responsibility When facing a DEA investigation, it is critical that you have a clear picture of all of the relevant laws, rules, and regulations that apply.
9. DEA Agents Make Mistakes.
From misinterpreting information to violating the constitutional rights of the targets of an investigation, DEA agents sometimes make mistakes. If a mistake is made during your investigation you may be able to use it to avoid facing charges or to assert a defense in plea negotiations or at trial.
10. You Still Need to Run Your Business or Practice.
With the time, effort, and attention to detail it requires to respond to a DEA investigation, you need someone else to handle the investigation while you stay focused on running your business. Hiring an experienced lawyer will give you the best chance to resolve the investigation quickly, with minimal interruption to your operations or long-term consequences.
11. You Need to Make Sure Your Employees Avoid Mistakes and Are Protected.
If your employees make mistakes (such as attempting to “help” by destroying potentially-damaging files), they could put themselves and your company at risk. One of your first steps when facing a DEA investigation should be to have your employees trained on what to do (and what not to do) while the investigation is pending.
12. You Need to Develop and Execute a Strategic Defense.
DEA agents and federal prosecutors take a strategic approach to targeting health care providers suspected of prescription drug fraud; and, to protect yourself successfully, you need to mount a strategic defense. A law firm with attorneys who have experience both as federal prosecutors and as defense lawyers for federal health care fraud prosecutions will be able to put you in the best possible position to avoid prosecution.
13. You Need to Develop a Compliance Strategy that Will Help Avoid Future Inquiries.
Whether or not you have committed some form of health care or prescription drug fraud, the fact that you are being investigated suggests that you can (and most likely should) do more to avoid similar inquiries in the future. While defending you during the investigation, your attorneys can also help you implement a tailored compliance strategy to reduce the risk of subsequent investigations.
14. The Penalties for Prescription Drug Fraud are Substantial.
Prescription drug fraud implicates numerous federal statutes, each with its own civil and criminal penalties. For example, under the False Claims Act, providers can face civil penalties including recoupments, treble (triple) damages, and fines of over $21,000 per false claim. In a criminal False Claims Act case, penalties can include $250,000 in fines and up to five years of federal imprisonment per violation. In many cases, providers will face multiple charges under a variety of statutes. This can easily add up to millions in potential financial liability and the potential for decades behind bars.
15. Your Investigation Does Not Have to Lead to Federal Prosecution.
Above all, when facing a federal investigation, your goal should be to resolve the investigation without facing charges. An investigation is just that an investigation. It is not a prosecution, and it does not mean that you are going to be found guilty in court. At The Criminal Defense Firm, we have a significant track record of successfully concluding client investigations with no civil or criminal charges. If you have been contacted by the DEA, our attorneys can help. We can deal with the DEA for you, and we can help you avoid mistakes that could jeopardize your or your company’s defense.
Contact the Health Care Fraud Defense Lawyers at The Criminal Defense Firm
For more information about what it means to be contacted by the DEA, contact the law offices of The Criminal Defense Firm. We represent health care providers across the nation in DEA investigations, and we can help you make smart decisions about protecting your legal rights. To schedule a free and confidential consultation, call (888) 452-2503 or tell us about your situation online now.
Dr. Nick Oberheiden is a national litigation and trial criminal defense attorney who practices exclusively in the area of federal law.