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Prescription Fraud, Narcotics Diversion, and Other Opioid Cases

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Learn the Most Common Allegations and Criminal Charges in Federal Opioid Investigations

The Department of Justice and its partners in federal law enforcement are bringing new opioid cases every single day. From prescription fraud to narcotics diversion and a host of other criminal offenses, investigators are knee-deep in paperwork and accusations.

In most of these cases, it is white-collar professionals (physicians, registered nurses, physician’s assistants, pharmacists, and medical business owners) who are being named in indictments and arrest warrants.

Looking ahead toward the end of 2018 and beyond, it seems likely that the DOJ will continue to bring these cases more and more often. Just recently, Jeff Sessions and the Trump Administration announced a new task force of federal investigators who will focus squarely on the health care industry: the Opioid Fraud and Abuse Detection Unit (OFADU).

If you thought medical practices already had enough acronymic federal watchdogs to worry about, you weren’t wrong. But the OFADU has nevertheless joined the ranks of HEAT, the Medicare Fraud Strike Force (MFSF), and so on – so it must be contended with.

The Opioid Fraud and Abuse Detection Unit has identified several types of health care organizations as its primary targets:

  • Pain management facilities
  • Home health care services
  • Psychiatrists
  • Mobile labs
  • Mobile radiology groups
  • Any physicians with a high rate of patients on opioid painkillers (especially patients receiving benefits from Medicaid, Medicare, TRICARE, etc.)

For that matter, any doctor who prescribes narcotics – or nurses who access / administer them, or pharmacists who dispense them – could find themselves targeted in a federal opioid case.

Indeed, many do, and they are almost always shocked to find themselves suddenly dealing with a major federal fraud investigation.

What Are Some of the General Allegations Involved in Opioid Cases?

In most opioid cases, the government accuses a medical professional of violating the Controlled Substances Act. Common allegations include:

  • Writing medically unnecessary prescriptions for opioid pain medicine
  • Trading narcotic prescriptions for cash, sex, or other consideration
  • Prescribing medications contrary to prevailing medical standards
  • Delegating medical duties to non-medical staff members
  • Failing to appropriately examine a patient before prescribing opioids (or increasing the dose)
  • Failing to adequately screen or monitor patients for drug abuse

Some opioid cases pertain specifically to the crime of drug diversion. Common examples include:

  • Diverting medications to the wrong patients or third parties
  • Diverting a patient’s medication for personal use
  • Stealing medications (from a hospital or pharmacy’s supply, for example)
  • Writing fraudulent prescriptions (such as a nurse who misappropriates a doctor’s prescription pad)

Opioid cases might also pertain to health care fraud, such as:

  • Entering into an improper financial arrangement with a pharmacy or other health care entity (in other words, giving or receiving “kickbacks”)
  • Submitting false or exaggerated claims for payment to an insurance company or a federal benefits program (such as Medicare) pertaining to patients diagnosed with chronic pain or opioid addiction

Most Common Drugs Involved in Opioid or Prescription Fraud Cases

The DEA is responsible for enforcing the Controlled Substances Act (CSA). Its health care investigations tend to involve medications classed as Schedule II or Schedule III under the CSA, especially medications that consist of oxycodone and acetaminophen.

These are medications that have powerful effects on the body, a high potential for addiction and abuse, or a correlation with illegal drug activity or overdose / death. Examples include, but are not limited to:

  • Docusate Sodium
  • Endocet
  • Motrin
  • MS Contin
  • OxyContin
  • Percocet
  • Percodan
  • Percocet
  • Roxicet
  • Roxilox
  • Tylox
  • Zanaflex

What Are the Specific Criminal Charges in Opioid Cases?

The DOJ is zealous and relentless in its pursuit of white-collar drug crime within the health care industry. You should expect investigators to recover as much evidence as possible, to view that evidence in the worst possible light, to share that evidence with multiple other departments (including HHS, your state licensing board, and more), and to recommend as many serious criminal charges as possible.

A review of recent federal opioid cases reveals that the DOJ’s go-to criminal charges for prosecuting health care providers are:

The Controlled Substances Act: Manufacture or Distribution of a Controlled Substance — 21 U.S.C. § 841(a)(1)

This act makes it illegal to knowingly or intentionally (1) manufacture, distribute, dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance; or (2) create, distribute, or dispense, or possess with intent to distribute or dispense, any counterfeit substance – unless it is by a duly licensed and registered medical professional in the ordinary course of practice and for a legitimate medical purpose.

The Controlled Substances Act: Attempt and Conspiracy — 21 U.S.C. § 846

Merely attempting to violate Section 841(a)(1) above, or entering into an agreement with someone else to violate the CSA, is enough to support a conviction under Section 846. You can be convicted of conspiracy even if your agreement was only a very small part of the crime at large, and even if you never actually went through with it. In a conspiracy case, the agreement itself is the crime. Conspiracy charges can often be more serious than the underlying drug charges.

Health Care Fraud — 18 U.S.C. § 1347

Under this law, which serves as the general federal health care fraud statute, you can be convicted of fraud if the government can prove that you:

(i) Knowingly and willfully executed, or attempted to execute, a scheme or artifice;

(ii) To defraud any health care benefit program (or obtain by means of false or fraudulent pretenses, representations, or promises) any of the money or property owned by, or under the custody or control of, any health care benefit program;

(iii) In connection with the delivery of or payment for health care benefits, items, or services.

The term “health care benefit program” in this statute applies to private insurance companies as well as federal benefit programs like Medicare, Medicaid, TRICARE, etc.

Mail Fraud and Wire Fraud

Prosecutors are fond of the Mail Fraud and Wire Fraud statutes because, even if they can’t prove a bigger charge like drug trafficking, they may still be able to prevail on these easier-to-prove charges. If you use the U.S. Mail, any shipping or courier service, any email program, the telephone, or any other kind of wired service in the course of communicating about or committing fraud, the communication itself is enough to support conviction of fraud (provided the government can prove you made the communication with fraudulent intent).

Aggressive Legal Defense in Opioid Cases: Oberheiden, P.C.

Don’t face the DEA, DOJ, or the Opioid Fraud and Abuse Detection Unit alone. Get experienced, proactive, and aggressive legal representation on your side.

Dr. Nick Oberheiden and his team of DEA defense attorneys are standing by. Call Oberheiden, P.C. right away: (888) 727-0472.

Dallas DEA Defense Attorneys – Oberheiden, P.C. Primary Office in Dallas, TX.

This information has been prepared for informational purposes only and does not constitute legal advice. This information may constitute attorney advertising in some jurisdictions. Merely reading this information does not create an attorney-client relationship. Prior results do not guarantee similar outcomes in the future. Oberheiden, P.C. is a Texas firm with its headquarters in Dallas. Mr. Oberheiden limits his practice to federal law.
Orange County 714-294-2000
Los Angeles 310-873-8140
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