How Your Patients Can Get You in Trouble
In the context of the government’s war against opioid prescribers, the likelihood that your practice will have an encounter with DEA agents has never been higher. Virtually every day somewhere in the United States, law-enforcement teams of DEA and FBI agents show up unexpectedly for interviews or with warrants to search medical practices and pharmacies that are in the business of prescribing or dispensing controlled substances.
You may think that it is unlikely that your business will experience such an encounter. However, the reality is that you don’t control what, for example, some of your chronic pain patients do with your prescriptions. In other words, it is this not necessarily you that did something wrong in the first place, but the mere fact (1) that one of your patients is among the 90 people that die each day in the U.S. of a drug overdose, or (2) one of your patients went doctor shopping and simultaneously obtained medications from another doctor, or (3) one of your patients decided to sell some of the pills prescribed by you.
With literally hundreds of opioid related investigations currently being pursued against pain management specialists, family doctors, and psychiatrists, the risk of not taking any precautions is entirely on you. Compare it to running a stop sign. You can argue that people do it all the time, but if you get caught and pulled over, you are the one that is in trouble.
What Is Required for the DEA to Obtain a Search Warrant
On paper, the burden that the government has to meet in order to persuade a federal magistrate judge to issue a warrant is relatively high. Search warrants require that a federal judge be convinced that a particular place contains evidence of a crime. In practice, in particular in the current climate of aggressive federal opioid enforcement, it is far from difficult to establish some allegations to meet this “probable cause” standard.
To illustrate the low threshold, it is enough for the warrant to contain an affidavit from the federal agent stating that information or documents of a crime can be found at the identified location based on the agent’s personal knowledge or based on information received from a confidential, unidentified source. Because search warrants are under seal and are not shared or discussed with the target or a defense counsel prior to its execution, there effectively is no mechanism or opportunity for a lawyer to object to the allegations contained in the warrant.
That said, if a search warrant is unavoidable or inevitable in some instances, prudent business practice would suggest to have compliance policies and procedures in place that also address the appropriate response to search warrants and government show ups. This recommendation applies all the more to those offices and practices in receipt of a government subpoena or an audit request by the DEA or commercial insurance carrier assessing the business’s opioid compliance.
Important Precautions in Anticipation of Search Warrants
Written Policies. Every medical practice is expected to have operational policies in place that not just emphasize the company’s intent to comply with the law, but also outlines mechanisms and procedures to actually ensure such compliance. Addressing what to do in case of a government subpoena, search warrant, or government audit, the compliance protocol should identify a small team of responsible people within the organization to lead the response in any of those events. These individuals must be trained how to communicate with agents, how to instruct staff members, and when to have a line of communication with experienced counsel on standby. For example, your policies can state, in excerpts:
- If an employee, department, or professional staff member receives an investigative demand, subpoena, or search warrant involving Company, it should be immediately brought to the Compliance Officer. In the Compliance Officer’s absence, contact the organization’s CEO or Chief Clinical Officer.
- Do not release or copy any documents without authorization from the Compliance Officer or legal counsel.
- The Compliance Officer is responsible for coordinating the response to investigations and the release of any information.
- If personnel are approached by government investigators and agents, they have the right to insist on being interviewed only at the facility during business hours or with counsel present.
- The Compliance Officer or designee is responsible for assisting with any interviews, and Company will provide counsel to employees where appropriate.
Computer and File Back Up. By far the hardest challenge in the aftermath of a search warrant is the question how to operate and run a business without any computer systems or files. Every search warrant has two components. Search and seizure, that is to take and remove property from the location, and it can take months or even years before those items will be returned. To avoid this worst case scenario, every business should have a constant and ongoing backup plan to make sure that files, even if stolen or removed from the business, can be instantly replaced from an outside server, cloud system, or large capacity USB stick.
Internal Investigation. By far the best way to prepare your business for a government intervention is to have experienced attorneys conducting an internal investigation. Purpose of an internal investigation is to identify potential problems and to fix them before the government will become aware of them. In fact, nothing is less attractive for a government agent to investigate a practice that shows documented efforts to do things right and that has already implemented compliance remedies designed to eliminate the intent requirement for criminal violations or health care fraud.
Lawyer on Stand-By. In particular in case there are already signs such as overlapping rumors about an investigation, unannounced interview visits from agents, or government subpoenas, you should have qualified counsel on standby to make sure your practice is adequately prepared and protected for a worst case and, if a worst-case occurs, to instantly intervene and assist. Making such a selection upfront offers the advantage that this lawyer will already be familiar with your business and specific industry and won’t need lengthy introductions when time is of the essence.
About Attorney Dr. Nick Oberheiden
Nick Oberheiden is a health care fraud defense attorney, who limits his practice to federal litigation and federal criminal defense, with a substantial emphasis on health care cases. Nick has represented dozens of pharmacies and physician practices in DEA civil and criminal investigations and thereby established a track record of avoiding penalties, jail, and criminal charges for the vast majority of his individual and corporate clients across the United States.
If you are interested in learning more about current DEA cases and how to shield your business, then simply call Nick directly at 866-Hire-Nick from anywhere in the U.S. and speak to him today. You can also contact him online.