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With new opioid cases cropping up each and every day, every medical professional who deals with prescription painkillers needs to be on high alert for DEA inspections, search warrants, and so on.
Below, we answer some of the most frequently asked questions pertaining to controlled substances, prescription fraud, and opioid investigations in the United States. Above all else, please know that the first thing you should do after being contacted by the federal government is consulting an experienced health care defense lawyer for sound advice. Mistakes are too easy to make on your own, and the stakes are simply too high.
How Do I Know if I’m Being Investigated for Federal Prescription Fraud?
As scary as it sounds, even if you are already under investigation, you might not know.
Doctors usually learn that their practices are under investigation when the DEA agents show up at their doorstep and not a moment before. Investigators work hard to keep their efforts a secret until the time is right (i.e. when it benefits them most).
In some cases, the DEA might arrive with a request to inspect the premises (including your patient files) for compliance with the Controlled Substances Act or an “administrative search warrant” for the same purposes. In more extreme cases, they might already have a formal search warrant or even an arrest warrant, meaning they have already gathered evidence of a crime.
While there is simply no way to know for sure whether you’re being investigated for drug diversion or prescription fraud, some tell-tale signs of a mounting opioid case include:
- New patients who make odd statements or ask unusual questions about opioids or other narcotics
- Employees who suddenly begin acting differently, asking probing questions, or exhibiting unusual behavior
- Signs of possible drug diversion by your employees, such as stolen prescription pads or medications
- A recent increase in patient overdoses or deaths (if you’ve noticed it, investigators probably have to)
- Recent government audits, inspections, or requests for information / statements
- Evidence or audio or video surveillance
If you believe you may be under investigation or if you have been contacted by the DEA or any other federal agency, you should contact an experienced health care defense lawyer right away.
Is It True That Having a Lot of Cash Patients Makes Me a Target in Opioid Cases?
There is nothing wrong with accepting cash payments from your patients. You certainly aren’t breaking any laws by doing so. Particularly in economically challenged areas, it is not uncommon for patients to insist on paying cash, especially if they don’t have health insurance. Alternatively, some doctors simply prefer cash payments.
But even though it isn’t illegal, the government’s data suggests that doctors with a high rate of cash-paying patients are more likely to be involved with illegal activity, particularly where controlled substances are concerned.
So while you are certainly free to accept cash payments / private-pay patients, you should be aware that doing so makes it more likely that you’ll pop up on the DEA’s radar. An investigation may follow.
Do My Opioid Prescription Policies Meet DEA Requirements?
It is essential that your medical practice has a thorough, written protocol for prescribing controlled substances (especially opioids). It’s just as important that you consistently follow that protocol in every situation. Of course, to do that, the policy needs to be both practical and fully compliant with the law.
You don’t want to create a policy that becomes a trap later if the DEA can show that you weren’t following your own written procedures.
Dr. Nick Oberheiden, founding partner at Oberheiden, P.C., has extensive experience in helping physician groups and pharmacies develop practice-specific opioid prescription policies designed to keep them in business and out of legal trouble.
An effective policy should address:
- Office policies
- Patient health monitoring
- Medication management monitoring (e.g. urine tests)
- Patient exam requirements
- Compliance enforcement
- Alternative & interdisciplinary treatment protocols
- What is required before prescribing opioids (for example, it must be more than just the patient’s subjective symptom history or perception of pain)
You must do everything you can to avoid anything that could be perceived as a drug diversion. Every prescription should be defensible as medically necessary, and every patient should have a documented care history that complies with office protocol, medical standards, and the relevant law. Dr. Oberheiden and our team of health care defense lawyers can help.
My Patient and Prescription Files Aren’t as Good as They Should Be. Am I in Trouble?
No one‘s patient files are as thorough as they would like them to be. The reality of modern medicine means that doctors and their support staff simply don’t have the time to document every patient, every file, and every examination 100% comprehensively. But don’t expect the DEA to be particularly compassionate toward your time constraints or to extend you the benefit of the doubt.
Fortunately, if the DEA has not yet contacted you, it isn’t too late. Contact Dr. Nick Oberheiden or one of the other DEA compliance attorneys in our office to schedule an internal review to assess and improve your current compliance strategies.
If you are already under a DEA audit or investigation, be careful not to modify or destroy any evidence. Instead, call our office immediately. We can help you assess your exposure and determine how you might remedy some of your urgent compliance challenges while still “under the gun” without running afoul of the law.
Call and talk to Dr. Oberheiden about his 10-factor test for transforming health care practices in terms of opioid cases, patient files, and CSA compliance.
What Are the Penalties in Opioid Cases?
Criminal violations of the Control Substances Act are typically prosecuted under 21 U.S.C. 841 and/or 21 U.S.C. 846. Under these statutes, prosecutors can seek years-long incarceration for each criminal violation and even a life sentence in some cases.
Penalties for conviction in opioid cases include:
- Hundreds of thousands of dollars in fines (sometimes more)
- Up to 10 years of federal imprisonment for each count of health care fraud
- Up to 20 years of federal imprisonment for each count involving serious bodily injury to a patient
- A life sentence for health care fraud resulting in a patient fatality
Even if you aren’t convicted, the investigation alone could trigger disciplinary processes that lead to the loss of your medical licenses, DEA registration, CMS payments, and so on.
Aggressive Legal Defense in Opioid Cases: Oberheiden, P.C.
If you are under investigation in an opioid case, do not agree to an interview with a federal agent until you’ve talked to an attorney.
Dr. Nick Oberheiden and his team of experienced health care defense attorneys are standing by. Call Oberheiden, P.C. right away: (888) 727-0472.
Dallas Opioid Prescriber Defense Lawyers Oberheiden, P.C. Primary Office in Dallas, TX.