How to Avoid Criminal Charges in DEA Drug Diversion and Opioid Investigations
No Charges, No Jail, No License Revocation.
When Attorney General Jeff Sessions in late 2017 announced the government’s war on opioids, nobody could foresee that this war was primarily targeted at physicians and pharmacists across the country. Just a few months later, medical providers in Pennsylvania, New Jersey, Nevada, New York, West Virginia, Kentucky, and elsewhere have experienced firsthand what it means to be targeted by the DEA and the FBI.
In this climate of overzealous enforcement, the question arises how physician practices and pharmacies can effectively protect themselves against DEA search warrants and FBI criminal investigations relating to pain medication prescriptions.
Attorney Dr. Nick Oberheiden has represented dozens of medical providers and pharmacies under investigation by the DEA and has established a unique track record of avoiding license revocations and criminal charges in drug diversion and Controlled Substances Act cases.
- DEA Search Warrant: Resulting in No Criminal Charges.
- DEA Patient File Audit: Resulting in No Criminal Charges.
- DEA Diversion Investigation: No Charges, No License Revocation.
- DEA Diversion Investigation: No Liability.
- Narcotics Violation of Controlled Substances Act: No Criminal Charges
- Criminal Violation of Controlled Substances Act: No Criminal Charges
- Medically Unnecessary Pain Prescriptions: No Criminal Charges.
Dr. Nick Oberheiden knows how to protect medical practices and how to defend medical providers and pharmacies against drug diversion and controlled substances investigations—because, unlike most lawyers, that’s the type of work he does every day. He does not take DUI or assault cases, but limits his practice to defending health care providers. If you are interested in a free and confidential consultation, you will speak with Nick directly if you call him at (214) 692-2171 from anywhere in the country. You can also contact him online.
Stages and Events of a DEA Opioid Investigation
The key to a successful case outcome in any health care investigation is to recognize signs of an investigation and to immediately consult with an experienced and qualified attorney to implement effective strategies before the case gets out of control. Don’t look for a DUI attorney; don’t look for a rape defense attorney—look for an attorney that convinces you with his track record in cases similar or identical to yours. The following are signs that your practice may be or actually is under federal investigation. In each situation, immediate action is required.
DEA Patient File Audit. The earliest sign that your practice is under investigation is when you receive a request for patient charts either from a commercial insurance carrier or by way of a DEA subpoena. The reason this type of audit is meaningful is twofold. For one, your practice has been singled out based on some criteria such as a data comparison or a patient complaint. For another, an investigation is only as strong as the treatment protocols contained in the patient charts are weak. Investigators will look for formalities (e.g. does each file contain a copy of the prescription; how detailed are the notes etc.) Besides those formal requirements, trained investigators and government medical experts will use an audit to evaluate if the prescriptions were medically necessary, in particular prescriptions for those drugs that have a reputation for being “valuable” for drug diversion purposes.
DEA & FBI Interview Request. An even clearer sign that you are on the government’s radar is apparent when drug diversion investigators or DEA special agents come by your office, unannounced, to ask you some questions. If this happens to you, you must refrain from volunteering for such an interview because abstinence is the only way to protect your rights and to avoid damage that can hardly be undone later on. What you and your staff members need to understand is that anything you say to a federal agent that is not complete, truthful, or 100% accurate may constitute a federal felony under 18 U.S.C. 1001. On the other hand, federal law-enforcement is permitted to misrepresent the nature of the interview request and even lie to you— and they will do so in an effort to break the ice to make you chatty. Even if you feel like you have nothing to hide and you are innocent, recognize that there is a reason these agents are at your practice and that reason is that they are investigating you for fraud.
DEA Search Warrant. DEA search warrants are more common today than ever before. In order for the DEA to search your office, a federal magistrate judge must be convinced that there is probable cause that the agents will find evidence of a crime at the location to be searched. In other words, if DEA agents execute a search warrant against your office that means that you are expected to possess documents and information that contain evidence of a crime (e.g. patient files, copies of prescriptions). Not every search warrant will lead to criminal charges; but because a search warrant postulates the involvement and approval of a federal judge, a search warrant constitutes a major event in any federal investigation.
Indictment. Although no official numbers exist, an estimated 200 physicians and pharmacy owners have been charged with opioid related offenses within the last year along. In the federal criminal justice system, it is the grand jury, a group of 16 to 23 individuals meeting away from and unbeknownst from the public, to determine whom to bring criminal charges against. For the grand jury to issue an indictment, the grand jurors must be convinced that there is probable cause that the defendant committed a crime. In the context of drug diversion and medically unnecessary prescriptions, criminal charges are based on 21 U.S.C. 841 (Controlled Substances Act) and 18 U.S.C. 1347 (Health Care Fraud).
Attorney Dr. Nick Oberheiden Has Avoided Jail Time, License Revocations, and Charges in Dozens of DEA Cases
- DEA Chart Audit (Physician). Although the case looked relatively harmless in the beginning, this case turned out to be an extremely serious matter. Nick’s client was subpoenaed to produce a particular set of patient charts; as learned later, the government knew of or had reason to believe that several patients from this audit had died of a drug overdose while under the medical care of Nick’s client, a physician. The physician contacted Nick in an effort to find a way out from this difficult situation and to avoid what the DEA agents described to the doctor as an upcoming “life sentence” due to the deaths of patients. Calming down the situation, Nick and his team reached out to the DEA and the FBI agents in charge and quickly realized that the government was amenable to take down the subpoena and to cease the prosecution if certain administrative assurances could be made. Nick negotiated these conditions in a series of meetings and the DEA dropped the case against Nick’s client without enforcing or insisting on the production of patient files.
- DEA Investigation (Physician). Nick represented a physician in a federal grand jury investigation that involved the Department of Justice, the DEA, and the FBI. Among the many allegations, the physician was accused of serious violations of the Controlled Substances Act for having authorized and prescribed medically unnecessary pain medications. When Nick reviewed the patient files in question, he realized a favorable pattern before Nick’s client would dispense challenged pain medications. In fact, Nick was able to demonstrate to the government that, although hundreds of prescriptions were issued, the total number only reflected about 2% of the physician’s practice. Those patients who obtained pain meds from Nick’s client had documented pain complaints. After a series of meetings and negotiations at the U.S. Attorney’s Office, the government agreed that there was no systematic and deliberate deviation from the accepted standards of medicine. In his last presentation at the Department of Justice in this case, Nick convinced the government to discontinue its investigation and to not press any civil or criminal charges against Nick’s client.
- DEA Search Warrant. This client contacted Nick in the immediate aftermath of a DEA search warrant. According to the DEA agents’ affidavit attached to the search warrant, this dentist office had issued medically unnecessary prescriptions, stored expired medications, and neglected several important formalities under the Controlled Substance Act. From the beginning, Nick disagreed that there was probable cause of a crime that would justify a search warrant in the first place. While looking more closely into it, it turned out that a former employee made up (and dramatically embellished) allegations in an effort to take revenge for termination of her employment. With this in mind, Nick approached the case with the declared goal to convince the federal prosecutor assigned to this case to stop the investigation, to not take the case to a grand jury, and to return the client’s property. All goals were met. When confronted with the true facts and the context of the case, the federal prosecutors agreed not to pursue this further and to end the investigation of Nick’s client.
- Drug Diversion (Consumer). Nick has represented many patients accused of drug diversion, drug theft, and prescription fraud. Many of these “patient clients” were nurses or other members of the medical community. In one recent case, Nick’s client, a nurse, was caught on camera stealing large quantities of controlled substances from the secured area within the hospital. The client was arrested on the spot and interrogated for several hours before a decision was made to make a criminal referral to the DEA. The day after Nick’s client was released by hospital police, she engaged Nick and his team to save her license and to avoid a federal indictment. Nick terminated her employment with the hospital to avoid comprehensive and mandatory drug testing and began a dialogue with the investigator in charge and hospital police. Recognizing that the evidence was overwhelming and the quantities of drugs significant, Nick’s sole priority was to avoid a referral to the local U.S. Attorney’s Office. Considering all the changes Nick had implemented in his client’s life— drug rehabilitation, relocation, family integration, alcohol abstinence, temporary departure from the medical industry— the hospital board ultimately agreed to refrain from a federal referral. The case is currently subject to a state misdemeanor investigation.