Federal Defense Lawyers for Ohio Pain Medicine Doctors
Pain medicine doctors in Ohio are facing close scrutiny from the U.S. Department of Justice (DOJ) and the federal Drug Enforcement Administration (DEA). With the government’s intense focus on fighting opioid fraud and abuse, any indication that a doctor is overprescribing opioid pain medications can lead to a federal investigation.
The U.S. Department of Justice (DOJ) has made clear that it intends to prosecute pain medicine doctors who unnecessarily prescribe opioid medications, and it is specifically targeting physicians in Ohio. Over the past few years, the DOJ, the federal Drug Enforcement Administration (DEA), and other agencies have launched several law enforcement initiatives specifically focused on targeting health care providers suspected of contributing to the nation’s opioid epidemic.
One of these initiatives, the DOJ’s Opioid Fraud and Abuse Detection Unit, is targeting providers in Ohio and just 11 other states across the country. The Opioid Fraud and Abuse Detection Unit is a joint task force comprised of federal prosecutors, investigators from multiple federal agencies, and local law enforcement authorities. It is aggressively pursuing charges against doctors who are accused of unlawfully distributing opioid pain medications; and, when prosecutors believe charges are justified, they are seeking indictments for multiple offenses carrying huge fines and long-term imprisonment.
Is Your Pain Management Practice Putting You at Risk?
Is your pain management practice putting you at risk for federal prosecution? Are your opioid prescription practices raising “red flags” for the DOJ and the Opioid Fraud and Abuse Detection Unit? Could federal prosecutors be using your Medicare, Medicaid, or Tricare billings to build a case against you? While these are questions that most doctors would never think to ask, there is a very real possibility that the answer to each of these questions is, “Yes.”
With this in mind, what should you do?
The answer to this question depends on whether or not your pain management practice is (to the best of your knowledge) currently the target of a federal opioid fraud investigation. If you are not yet in the DOJ’s and the Opioid Fraud and Abuse Detection Unit’s crosshairs, then ensuring and documenting compliance should be your top priorities. If you have already been contacted by federal authorities, then you need to focus on resolving the investigation favorably before charges get filed.
1. Protecting Your Pain Management Practice (and Yourself) with Comprehensive Compliance
You own a pain management practice in Ohio, and you routinely prescribe opioid pain medications to your clients. You are not aware that anything you are doing is illegal, and you certainly have no intentions of violating federal law. Is this enough to protect you if federal authorities accuse you of unnecessarily prescribing opioid pain medications to drug-dependent patients?
Unfortunately, not. Due to the federal government’s aggressive stance against opioid fraud and abuse, all pain medicine doctors are at risk for being scrutinized. This is particularly true in Ohio, where the DOJ, DEA, and other agencies are placing particular emphasis on prosecution. Since no amount of compliance can prevent federal authorities from asking questions, Ohio pain medicine doctors need to be prepared to prove their compliance if and when the time comes.
With respect to prescribing opioid pain medications, compliance requires a multi-faceted approach. Numerous federal laws and regulations are implicated by the prescription of opioids, and doctors must establish, document, and maintain compliance with all relevant sources of federal authority. This includes, but is by no means limited to:
- Controlled Substances Act
- Anti-Kickback Statute
- Stark Law
- False Claims Act
- Health Care Fraud Statute
- Medicare, Medicaid, Tricare, Veterans Administration (VA), and Department of Labor (DOL) billing rules and regulations
Another increasingly-common allegation in opioid-related investigations is participation in a health care fraud conspiracy. In conspiracy investigations, federal prosecutors can pursue charges against affiliated and unaffiliated doctors, pharmacists, clinic administrators, and other individuals who are alleged to have contributed in some way to opioids ending up in the hands of drug-dependent patients or non-patients. In health care fraud conspiracy investigations, Ohio pain medicine doctors can face statutory fines and up to five years of federal imprisonment even if they themselves are not directly responsible for the diversion or other improper distribution of opioid medications. As a result, doctors’ compliance efforts must focus not only on their internal prescription and billing practices, but on their relationships with third-party health care providers as well.
What does it take to be compliant? What are federal agents and prosecutors in Ohio looking for during opioid pain medicine fraud investigations? The five core components of an effective compliance program are:
- Compliance Documentation – During a pain medicine fraud investigation, one of the first questions federal agents will ask is, “Where is your compliance program?” If you have one – and it is adequate – this can set the stage for a favorable resolution. If you don’t, this can be used as evidence against you. In order to fend off federal scrutiny, Ohio pain medicine doctors need to have documented compliance programs that are custom-tailored to the unique aspects of their practices.
- Compliance Training – Developing a documented compliance program is an important first step, but it is by no means sufficient on its own. Once the necessary policies and procedures have been developed, the next step is to provide training at all levels of your pain medicine practice. Each employee should understand his or her role in your practice’s compliance efforts, and all employees should understand the risks of non-compliance as well.
- Compliance Implementation – Beyond employee training, compliance implementation will also typically involve establishing billing and prescription protocols, instituting logical and physical security controls, negotiating key contractual provisions with third-party providers, and taking various other measures to prevent prescription forgeries and pain medication diversion. This is the active and ongoing aspect of compliance, and it is of utmost importance.
- Compliance Monitoring – How will you know if one of your employees or a third-party provider does something wrong? How will you know if federal opioid laws or billing regulations change? Monitoring is an essential aspect of compliance as well, and pain medicine practices’ monitoring efforts must be proactive, rather than reactive, in order to provide sufficient protection.
- Compliance Enforcement – When it comes to compliance, health care providers must be prepared to identify and acknowledge mistakes, and they must be able to respond promptly. The response required will depend on the severity of the violation; and, depending on the circumstances involved, employee discipline, modifications to internal practices, termination of third-party relationships, and self-reporting to the federal government may all be required.
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2. Defending Your Pain Management Practice (and Yourself) During a Federal Opioid Fraud Investigation
If your pain management practice is already under investigation – or if you think you might be at risk for an opioid fraud or diversion investigation – you must shift your focus to fending off any allegations that have the potential to support civil or criminal federal charges. Here are five key facts that Ohio pain medicine doctors need to know when faced with the prospect of a DOJ, DEA, or Opioid Fraud and Abuse Detection Unit investigation:
- A federal investigation does not have a “formal” beginning. If you are waiting for a formal announcement that your practice is under investigation, you are waiting in vain. Ohio pain medicine doctors need to take any form of contact from federal authorities as a warning sign that they may already be under investigation.
- Even unintentional mistakes can lead to federal charges. Arguing that you did not intend to contribute to the nation’s opioid epidemic is not enough to protect you against federal charges. Even unintentional violations can support civil charges that can lead to fines, treble damages, program exclusion, and other penalties.
- Federal prosecutors are seeking steep penalties for opioid fraud and diversion. Due to the federal government’s focus on combatting opioid fraud and abuse, prosecutors are seeking steep penalties in an effort to deter other doctors from violating the law. There have already been multiple criminal cases in Ohio where doctors have faced potential sentences of decades behind bars.
- Assumptions can be extremely costly. As the target of a federal investigation, you cannot afford to make any assumptions. If you assume you are innocent and try to “help” by providing documentation to federal agents, you may find that you have only helped build the government’s case against you.
- Defending yourself effectively requires experienced federal defense counsel. Due to the complexities and risks involved, Ohio pain medicine doctors targeted in federal investigations need experienced federal defense counsel. At Oberheiden, P.C., our federal defense lawyers and former DOJ health care fraud prosecutors have a proven record of success protecting physicians against being charged.
Speak with a Federal Health Care Fraud Defense Lawyer at Oberheiden, P.C.
Are you concerned about the sufficiency of your pain management practice’s compliance efforts? Are you under investigation for opioid pain medicine fraud in Ohio? To speak with a federal health care fraud defense lawyer at Oberheiden, P.C. in confidence, call 214-692-2171 or request a free case assessment online now.