How Can Pharmacists Be Charged with Prescription Drug Fraud?
Pharmacists are currently at high risk for being targeted in Federal Health Care Fraud investigations. If your pharmacy or compound pharmacy is under investigation, we can help.
When you went to pharmacy school, the last thing on your mind was the risk of being targeted in a federal investigation. As you went through school, you learned more about the federal health care laws that apply to pharmacists. But you still never could have imagined that you would end up in the crosshairs of the Department of Justice (DOJ) or the Drug Enforcement Administration (DEA).
But, now the risk that you learned about in a textbook has become a reality. A federal agent showed up at your pharmacy, you received a “target letter,” or you received a federal subpoena, and suddenly you are at risk for being civilly or criminally charged with prescription drug fraud. You need to protect yourself, but how? How great is the risk that the DOJ’s or DEA’s investigation could lead to federal prosecution?
Prescription Drug Fraud: The Basics
When most people think about prescription drug fraud, they imagine a large-scale “pill mill” scheme in which doctors and pharmacists are prescribing and dispensing medications at an alarming rate to individuals who aren’t their patients – and who may be drug-dependent. While these types of schemes exist and they certainly represent one example of prescription drug fraud, it takes far less to earn the federal government’s attention.
Prescription drug fraud can take many different forms. In general terms, prescription drug fraud involves either (i) charging the government (through Medicare, Medicaid, or Tricare) improperly for prescription medications, (ii) providing medications to individuals who do not need them, or (iii) some combination thereof.
Although many people perceive that federal prescription drug fraud investigations target shady pharmacies and those that have been established with the intention to defraud the government or divert prescription drugs, the reality is that the DOJ and DEA are targeting legitimate pharmacists with increasing frequency. In these investigations, federal agents and prosecutors are looking for evidence of:
- Dispensing medications based on invalid prescriptions
- Dispensing too many or too few pills
- Dispensing prescription drugs to drug-dependent individuals
- Improperly billing Medicare, Medicaid, or Tricare for filled prescriptions
- Billing Medicare, Medicaid, or Tricare for prescriptions that were not actually filled
- Offering or accepting illegal forms of compensation from referring physicians
- Falsely marketing compounded medications as having FDA approval
Just as prescription drug fraud can take many different forms, there are also many different ways in which pharmacists and compound pharmacists can get caught up in federal investigations. From errors on the part of billing administrators to unknowingly receiving and filling fraudulent prescriptions, it is not unusual for pharmacists and compound pharmacists to be targeted in situations in which they had no knowledge of the alleged fraudulent practices that triggered the DOJ’s or DEA’s inquiry.
It is also becoming increasingly common for federal authorities to try to implicate pharmacists and compound pharmacists in prescription drug fraud “conspiracies.” By charging (or attempting to charge) pharmacists and compound pharmacists with playing a role in a conspiracy, federal prosecutors can create the risk of huge fines and federal imprisonment even in circumstances in which no medications were actually dispensed and no improper billings were actually submitted to Medicare, Medicaid, or Tricare. In order to obtain a criminal conviction for prescription drug fraud conspiracy, all federal prosecutors need to prove is that:
- The pharmacist agreed with at least one other person to try to divert prescription medications or improperly bill the government;
- The pharmacist knew the unlawful purpose of the agreement and joined willfully; and
- Any member of the conspiracy committed an “overt act” toward the potential completion of the fraudulent plan.
Fending off Prescription Drug Fraud and Conspiracy Charges during the Government’s Investigation
The primary stages of a federal prescription drug fraud case are: (i) an investigation, (ii) charging, (iii) pre-trial, (iv) trial, and (v) sentencing. However, a prescription drug fraud case does not have to proceed through each of these stages. In fact, the best-case scenario is to resolve the government’s inquiry during the investigative process so that you are never formally charged with a civil or criminal offense.
At Oberheiden, P.C., we have the experience to implement strategies with the sole goal of avoiding charges. While prosecution is always a possibility, with a strategic and proactive approach, we have protected our clients against prosecution in the majority of cases we have handled. We have achieved this record of success by:
- Intervening in the Government’s Investigation – Early intervention is the key to success when defending against allegations of prescription drug fraud. The DOJ and DEA cannot be allowed to conduct their investigation unchecked, and you cannot afford to take a wait-and-see approach.
- Conducting a Confidential and Attorney–Client Privileged Internal Assessment – If there are issues, you need to know about them – ideally before they are discovered by the DOJ or DEA. This requires a thorough internal assessment conducted with exhaustive knowledge of the laws, rules, and regulations that apply to pharmacies and compound pharmacies.
- Challenging the DOJ’s and DEA’s Methods and Assumptions – Federal agents and prosecutors make mistakes just like everyone else. If your case is proceeding toward civil charges or an indictment based upon faulty investigative methods or assumptions, this needs to be corrected immediately.
- Presenting Exculpatory Evidence – Prescription drug fraud cases are complex, and in many cases federal agents will find evidence that only tells a part of the story. Our attorneys can collect and present exculpatory evidence that shows you are not deserving of federal prosecution.
- Helping Our Clients Ensure Ongoing Compliance – Finally, we can show the prosecutors in your case that you are committed to compliance by correcting any deficiencies and putting a comprehensive compliance program in place.
Discuss Your Prescription Drug Fraud Investigation with Federal Defense Attorney, Nick Oberheiden, PhD
Is your pharmacy or compound pharmacy under investigation by the DOJ, DEA, or another federal agency? For a free and confidential case assessment, call (214) 692-2171 or request an appointment online now.