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Pain Management Physicians Under Attack

Categories: Health Care Fraud

Opioids and prescription tablet
Oberheiden & McMurrey, LLP
Former DOJ Prosecutors & Defense Counsel
“If you are a doctor illegally prescribing opioids for profit or a pharmacist letting those pills walk out the door and onto our streets based on prescriptions you know were obtained under false pretenses, we are coming after you.”
– Attorney General Jeff Sessions, August 2, 2017

Doctors, dentists, clinics, pharmacies, and medical service providers who provide pain management care to patients are under increased scrutiny from the federal government.  The Department of Justice is specifically targeting medical professionals who prescribe and fill opioid prescriptions.  Attorney General Jeff Sessions is directing increased federal resources to cracking down on prescription drug abuse, including forming a new unit within the Department of Justice specially dedicated to pursuing medical professionals suspected of contributing to the epidemic of opioid addiction.

The Oberheiden & McMurrey Experience

  • 100 Years of DOJ Experience
  • Former Federal Health Care Fraud Prosecutors
  • Experience of more than 1,000 Grand Jury Proceedings
  • Experience of Hundreds of Health Care Fraud Investigations
  • Proven Track Record of Successful Outcomes in Health Care Cases

Former Department of Justice Trial Attorneys, former Assistant and Special Assistant United States Attorneys, and experienced health care fraud defense attorneys are dedicated and committed to protect your professional license and your freedom. No junior lawyers, no associates, no paralegals.

Increased Enforcement Efforts

The Largest Health Care Fraud and Opioid-Related Takedown in American History

On July 12, 2017, Attorney General Jeff Sessions announced “the largest health care fraud takedown in American history.”  412 defendants, including 56 doctors, were charged with engaging in health care fraud related crimes that caused a loss of up to $1.3 billion in tax payer money.  In addition, 295 health care providers were excluded from participation in federal health care programs, such as Medicare and Medicaid. The massive sweep of arrests resulted from the coordinated efforts of the Department of Justice’s (DOJ) Criminal Division, the Department of Health and Human Services (HHS), United States Attorney’s Offices across the country, and more than 1,000 state and federal law enforcement agents.  Despite the enormity of the operation, Attorney General Sessions warned, “the Department’s [of Justice] work is not finished.  In fact, it is just beginning.”

Attorney General Sessions additionally emphasized the growing trend of opiate addiction in the United States, cautioning that “our country is in the midst of the deadliest drug crisis in our history.”  Noting that more than 2 million Americans are addicted to opioids and one American dies of a drug overdose every eleven minutes, Attorney General Sessions pointed the finger at the medical community for facilitating prescription drug abuse.  During the July 12th takedown, 120 of the medical professionals arrested were charged with opioid-related crimes, which further qualified it as “the largest opioid-related fraud takedown in American history.”  Among those arrested, numerous doctors and clinics are accused of giving out prescriptions for cash or knowingly prescribing medications intended to be sold on the streets.  “These defendants have been charged and they will face justice,” Attorney General Sessions advised.

Creation of the Opioid Fraud and Abuse Detection Unit

Shortly thereafter, on August 2, 2017, Attorney General Sessions announced the formation of a new unit within the DOJ, the Opioid Fraud and Abuse Detection Unit, dedicated to combatting opioid drug abuse and prosecuting medical professionals who facilitate prescription drug abuse.  The Opioid Fraud and Abuse Detection Unit will use data analytics to identify and prosecute doctors, dentists, clinics, pharmacies, and medical service providers involved in issuing and filling fraudulent opioid prescriptions.  This new Unit will utilize the combined efforts of the Federal Bureau of Investigation (FBI), the Drug Enforcement Agency (DEA), HHS, state and federal law enforcement officers, and, of course, United States Attorney’s Offices throughout the country.

The data the Opioid Fraud and Abuse Detection Unit will look for includes:

  • Doctors who have a higher rate of opioid prescriptions relative to their peers
  • Doctors whose patients die within 60 days of receiving an opioid prescription
  • The average age of the patients to whom doctors write opioid prescriptions
  • Pharmacies filling relatively high numbers of opioid prescriptions
  • Geographical regions with greater levels of opioid abuse

A major element of the Opioid Fraud and Abuse Detection Unit is the appointment of twelve experienced federal prosecutors who will focus exclusively on investigating and prosecuting opioid-related prescription drug fraud.  These Unit-dedicated United States Attorneys will be placed in twelve geographic regions that have been identified as opioid abuse hot spots.

The federal districts who will be assigned special prosecutors are:

  • Middle District of Florida
  • Eastern District of Michigan
  • Northern District of Alabama
  • Eastern District of Tennessee
  • District of Nevada
  • Eastern District of Kentucky
  • District of Maryland
  • Western District of Pennsylvania
  • Southern District of Ohio
  • Eastern District of California
  • Middle District of North Carolina
  • Southern District of West Virginia

Using Patients as Informants

As he introduced the Opioid Fraud and Abuse Detection Unit, Attorney General Sessions delivered a directive to law enforcement agents:

“Let me ask you to do one simple thing: after every arrest for illegal possession of an illegal prescription, make every effort to get the arrestee to tell you where he or she got the drugs. We did that in Mobile and it led us to the two biggest sources in town.”

Attorney General Sessions was referring to the arrest and prosecution of Dr. John Patrick Couch and Dr. Xiulu Ruan in the Southern District of Alabama.  Dr. Couch and Dr. Ruan co-owned two pain management clinics in Mobile, Alabama.  In May 2015, both doctors were charged with conspiracy to distribute controlled substances outside the usual course of professional practice and not for a legitimate medical purpose, conspiracy to commit health care fraud, a litany of substantive drug charges, a RICO [Racketeer Influenced and Corrupt Organizations Act] conspiracy charge, and money laundering, among other offenses.  As of May 2017, both doctors had been convicted and sentenced to prison terms of more than two decades.  Dr. Couch will be serving 20 years in federal prison, and Dr. Ruan will be serving 21 years in federal prison followed by four years of probation.  In addition, both doctors have forfeited millions of dollars’ worth of real estate, cars, and bank accounts, including their family homes.

While it may be easy to distinguish one’s own practice from the allegedly corrupt practices of the Mobile physicians, Attorney General Sessions’ use of their example should be a warning to all pain management doctors: Law enforcement agents are pressuring patients to turn on their doctors!  If drugs you prescribe are misused or end up in the wrong hands, state and federal investigators may trace them back to you, and once you come under investigation for opioid-related prescription fraud, the government will throw the book at you.

“Red Flags” of Prescription Drug Fraud

The federal government’s focus on combatting prescription drug abuse pre-dates the current administration.  In 2015, HHS released a report addressing questionable billing practices within the Medicare Part D program.  The 2015 report recognized two overlapping trends: increased emergency room visits for opioid drug overdoses, and growing expenditures on opioid prescriptions within Medicare Part D.  Between 2006, the start of the program, and 2014, Medicare Part D expenditures on prescriptions for commonly abused opioids increased by 156%.

HHS’s 2015 report identified five criteria that indicated prescription drug fraud:

  1. High number of opioid prescriptions per patient
  2. High percentage of prescriptions for commonly abused opioids
  3. Patients with multiple prescribers for commonly abused opioids
  4. Patients with prescriptions for multiple types of commonly abused opioids
  5. High percentage of patients who have an excessive supply of opioid drugs

Examples of Prescription Drug Fraud

Although there are many varieties of prescription drug fraud, law enforcement officers have identified four common schemes that they look out for.  While the schemes generally involve some common characteristics, they each implicate different players within the prescription drug industry, from patients to doctors to pharmacies.

  1. Drug Diversion: In a drug diversion scheme, patients consult with doctors to obtain prescriptions for medications that have a high value on the streets, generally controlled substances and/or commonly abused opioids.  After filling these prescriptions, the patients then either sell them on the streets or provide them to drug dealers, who in turn sell them on the streets.  The scheme is called “drug diversion” because the medications are diverted from the patients to whom they are prescribed.
  2. Doctor Shopping: Under a doctor shopping scheme, a patient will visit multiple different doctors to obtain multiple prescriptions for the same or similar drugs within the same period of time.  Oftentimes, the prescribing doctors will have no idea that other doctors are prescribing for the patient.
  3. Incentives: Within incentive schemes, patients pay doctors inducements, kickbacks, or bribes to write them prescriptions for controlled substances.  In another variation of the incentive scheme, pharmacies bribe doctors to direct patient traffic toward their services.
  4. Inappropriate Dispensing: In inappropriate dispensing schemes, pharmacies provide expired or adulterated drugs to patients.  Alternatively, pharmacies engage in inappropriate dispensing

Prescription Drug Fraud Can Lead to a Life Sentence

As highlighted in the example above about the Mobile pain management doctors, convictions for prescription drug fraud can carry extremely severe sentences, including life in prison.  Similarly, for medical professionals in the later stages of their careers, a 15- or 20- year sentence may be a de facto life sentence.

Many people, including medical professionals, think of health care fraud as a white collar crime that typically carry light sentences, such as fines or probation.  Nothing could be farther from the truth. The penalties for health care fraud range from up to ten years in prison to a sentence of life in prison, in addition to heavy criminal fines, restitution, and forfeiture. In many cases, the penalties for prescription drug fraud in particular are more severe than other forms of health care fraud because these offenses pose a greater safety risk to patients.

Where a patient dies as a result of his or her doctor’s fraudulent conduct, the federal health care fraud statute (18 U.S.C. § 1347) states that the doctor may be sentenced to life in prison.  An example of such conduct is where a doctor improperly prescribes opioids to a patient known to have an opioid addiction, and the patient then dies from an opioid overdose.

Clearly, a doctor receiving a sentence of life in prison is an exceptional case, however, there are several notable cases where it has happened.  As such, doctors who prescribe potentially dangerous medications, such as controlled substances and opium based medications, must be extremely vigilant.  A doctor who engages in prescription drug fraud places his or her self at great risk that a patient may overdose on the illegally prescribed medication.  If – or more likely when – that doctor is charged with health care fraud, that doctor spend the rest of his or her life in prison.

Importantly, even well-meaning doctors face risks when prescribing potentially dangerous medications.  All doctors should always take into consideration their patients’ tolerance for the prescription drugs, their patients use or addiction to opioids or prescription drugs, their patients’ engagement in the illegal drug market, and the potential that their patients may be surreptitiously seeking prescription drugs from one or more other doctors.  Such behaviors typically increase a patient’s propensity toward prescription drug abuse and exacerbate the dangers of drug overdose.

Our Track Record

Oberheiden & McMurrey LLP has a track record of protecting physician licenses and avoiding criminal charges. Our team of former DOJ prosecutors and health care fraud defense attorneys offers the experience needed to defend medical providers in civil and criminal government investigations. Here are some recent examples of our case outcomes.

  • Representation of a Pharmacy in an DEA Drug Diversion Investigation
    Result: No civil or criminal liability.
  • Representation of a Pharmacy in an DEA Drug Diversion Investigation
    Result: No civil or criminal liability.
  • Representation of a Pharmacy in an DEA Drug Diversion Investigation
    Result: No civil or criminal liability.
  • Representation of a Pharmacy in an DEA Drug Diversion Investigation
    Result: No civil or criminal liability.
  • Representation of a Pharmacy in an DEA Drug Diversion Investigation
    Result: No civil or criminal liability.
  • Representation of a Physician in an Investigation by the DEA, the FBI, and the Department of Defense
    Result: No civil or criminal liability.
  • Representation of a Physician in an Investigation by the DEA and the Office of Inspector General
    Result: No civil or criminal liability.
  • Representation of a Nurse Practitioner in an Investigation by Federal Law Enforcement
    Result: No civil or criminal liability.
  • Representation of a Physician against the Department of Health and Human Services and the U.S. Attorney’s Office
    Result: No civil or criminal liability.
  • Representation of a Physician against the Department of Justice
    Result: No civil or criminal liability.
  • Representation of a Pharmacy by the Department of Health and Human Services
    Result: No civil or criminal liability.

Are You Under Investigation for Pain Management Fraud? We Can Help

Oberheiden & McMurrey consists of former Department of Justice trial attorneys, former Assistant United States Attorneys (AUSA), and experienced health care fraud and compliance defense lawyers. Our combined experience of decades of health care fraud investigations allows us to understand how current prosecutors investigate and pursue investigations and what to do against it. Clients of Oberheiden & McMurrey are represented by senior attorneys, not by junior lawyers or paralegals. Here are some of our attorneys with significant DEA and FBI investigations.

  • Nick Oberheiden represents physicians, pharmacies, and health care businesses in civil and criminal investigations across the United States. Dr. Oberheiden has significant experience when it comes to avoiding criminal charges and setting up compliance programs to protect health care providers. Dr. Oberheiden is the Firm’s managing partner. nick@federal-lawyer.com
  • Bill McMurrey offers clients more than a decade of Department of Justice experience. Mr. McMurrey previously oversaw health care fraud investigations and grand jury proceedings as the U.S. Attorney’s Office’s Chief Coordinator for Criminal Health Care Fraud. bill@federal-lawyer.com
  • Glenn Harrison is a former Department of Justice trial attorney and former Special Assistant United States Attorney. Mr. Harrison has significant experience in the areas of health care fraud investigations and he offers clients the insights of more than twenty years of prosecutorial experience. glenn@federal-lawyer.com
  • Lynette Byrd is a former Assistant United States Attorney (AUSA), who previously represented the United States in health care law investigations. Clients appreciate Ms. Byrd’s experience and tenacious negotiation skills. lsb@federal-lawyer.com

Contact Oberheiden & McMurrey, LLP to discuss your case. We are here to help you.

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