Federal Civil Investigative Demands (CIDs) Targeting Ohio Physicians and Pharmacists

What Should Ohio Physicians and Pharmacists Do After Receiving a CID?

If you, or if any other member of your Ohio medical or pharmaceutical practice, has been served with a civil investigative demand (CID), what do you need to do? While the most-appropriate course of action will be dictated by the specific circumstances at hand, a comprehensive defense strategy will generally consist of:

1. Review the CID with Defense Counsel

Physicians, pharmacists, and other health care providers should review their CIDs with the assistance of federal defense counsel to determine (i) what documents are subject to the CID, and (ii) what deadlines need to be met. A CID may impose multiple deadlines, including a deadline to “meet and confer” with federal agents and a deadline to produce responsive documents. There are time restrictions for challenging the scope of CIDs as well, and failing to timely file a challenge will result in loss of the ability to do so.

2. Meet with Federal Agents and/or Challenge the CID in Court

Civil investigative demands can request an extraordinary volume of documents. The DOJ has broad authority to compel the production of prescription, billing, and other records through the issuance of CIDs, and in many cases the compliance burden can be insurmountable. Oftentimes, it will be possible to negotiate the scope of a CID with federal agents; and, sometimes, it will be necessary to challenge the breadth of a CID in court. In either case, deciding how to move forward requires the advice of experienced federal defense counsel.

3. Prepare to Produce Responsive Documents

Upon assessing the scope of the CID with legal counsel, providers must promptly begin the process of compiling documents for production to the federal government. Due to the time and effort this entails, it should be undertaken in parallel with any attempts to challenge the CID. While CID recipients must generally comply with all legally-enforceable demands, there are certain grounds (i.e. the attorney-client privilege) that can be asserted to withhold responsive documents.

4. Review Responsive Documents Prior to Submission

Due to the availability of grounds to withhold documents that are responsive to a CID (and due to the risks of unnecessarily disclosing information to the federal government), all documents compiled in response to a CID must be reviewed prior to being produced to the DOJ. There are numerous legal issues that need to be considered; and, as a result, this is a task that should be managed by legal counsel.

5. Evaluate Potential Next Steps

While responding to a CID is a significant endeavor, producing responsive documents to the federal government is far from the last step in the investigative process. Federal agents may ask for more documents, they may request interviews with you and your practice’s other personnel, and they may seek to gather evidence against you through a variety of other means. In order to determine what you need to do next, you will need to work closely with your federal defense counsel. Among other factors, the existence of any potential evidence of intentional or unintentional opioid fraud or diversion will be a major factor in determining what type of defense strategy it makes the most sense to pursue.