Federal Defense Attorneys for Prescription Drug Fraud Cases
For physicians, pharmacists, hospitals, and other medical professionals and facilities that prescribe and dispense medications, ensuring that medications end up in the right hands is a critical – yet nearly impossible task. Drug diversion is a major issue in the United States, and it is one that medical professionals and law enforcement alike struggle to contain.
While many instances of drug diversion occur at the patient level (i.e., a patient fills a prescription and then sells his or her pills on the street), in many respects drug diversion involving the medical establishment is a far greater problem. When doctors, pharmacists, nurses, caregivers, and staff members who have access to prescription narcotics distribute highly-addictive drugs to people who do not need them, the consequences can be severe. In fact, many federal authorities – including the leadership of the U.S. Department of Justice (DOJ) – have blamed the current opioid epidemic in large part on medical drug diversion.
This is why authorities such as the Diversion Control Division, a joint task force of the DOJ and the Drug Enforcement Administration (DEA), are aggressively pursuing charges against health care providers suspected of engaging in narcotic drug diversion.
Narcotic Diversion is a Form of Prescription Drug Fraud
Narcotic drug diversion is a form of prescription drug fraud. With the opioid epidemic at the forefront of the DOJ’s conscience, prescription drug fraud is currently among the federal government’s top law enforcement priorities. Medical professionals, executives, and staff members who are responsible for diverting prescription narcotics can face severe penalties – including multiple years in prison, and tens or hundreds of thousands of dollars in fines.
What is narcotic drug diversion? For law enforcement purposes, drug diversion refers to any provision of a prescription medication to someone other than the patient for whom it was (or should have been) prescribed. The method by which this can happen can range from writing fraudulent or forged prescriptions – to stealing medications from secured locations within DEA-registered medical facilities.
Prescription narcotic and opioid medications that are commonly subject to diversion include:
- Diphenoxylate (Lomotil)
- Fentanyl (Actiq, Duragesic, and Fentora)
- Hydrocodone (Hysingla ER, Lorcet, Lortab, Norco, Vicodin, and Zohydro ER)
- Hydromorphone (Dilaudid and Exalgo)
- Meperidine (Demerol)
- Methadone (Dolophine and Methadose)
- Morphine (Astramorph, Avinza, Kadian, MS Contin, and Ora-Morph SR)
- Oxycodone (Endocet, OxyContin, Oxecta, Percocet, Roxicet, Roxicodone, and Targiniq ER)
- Propoxyphene (Darvon)
There are two primary reasons for prescription narcotic diversion: financial gain and dependence. Diverted prescription medications can sell for substantial sums; and due to the addictive properties of many of these medications, the demand is consistently high.
Recognizing Drug Diversion Within Your Medical Practice or Health Care Facility
If you are concerned about possible drug diversion within your medical practice or other health care facility, there are a number of signs and symptoms that can help you identify the individual (or individuals) involved so that you can take appropriate remedial action. Some of the most obvious signs of narcotic drug diversion include:
- Missing prescription pads, or prescription pad pages
- Alterations of medication orders
- Incorrect counts of narcotic medications
- Large amounts of waste of prescription narcotics
- Excessive reporting of medication errors
- Issues with prescription narcotics (such as count discrepancies) that occur repeatedly during certain individuals’ shifts, or on certain days of the week
- Frequent patient reports of inadequate pain relief
Additionally, the National Council of State Boards of Nursing suggests that the following can all be signs of prescription narcotic diversion that involve employees who are struggling with narcotic or opioid dependence.
- Arriving late or leaving early
- Frequent breaks or trips to the bathroom
- Extended periods of absence
- Changes in job performance
- Making a significant number of mistakes on the job
- Isolation from colleagues
- Inappropriate, overly-emotional, or evasive responses
Likewise, the American Academy of Family Physicians (AAFP) warns that the following are all frequently signs of patient narcotic drug diversion.
- Strange stories from patients, claims that patients are in a rush, and claims that patients lost their paper prescriptions or forgot their medications.
- Patients who refuse to share their past medical records or who cannot provide details about their previous medical visits.
- Unusually high or low understanding of medications, particularly when a patient claims to be suffering from a new condition – or when a patient’s knowledge “comes straight from textbooks rather than real life.”
- Exaggerated or feigned symptoms, particularly when complaining of common ailments such as back pain, kidney stones, migraines, and toothaches.
- Requests for specific brand-name medications and refusals to accept generic substitutes.
When faced with a possible issue involving prescription narcotic diversion, acting quickly can be critical not only to avoiding any medical consequences, but also to mitigating the risk of criminal prosecution. As a result, all medical practices and health care facilities should have comprehensive diversion prevention policies and response protocols as components of their compliance programs, and they should be prepared to implement these protocols at the first sign of potential necessity.
Ways to Reduce the Risk of Prescription Narcotic Diversion
A narcotic diversion prevention program should address all potential sources of diversion, and should include physical controls, staff training, treatment policies, and a variety of other means of discouraging and exposing instances of diversion by both patients and staff. The AAFP’s recommendations include the following practices.
Thorough Patient Care
Thorough patient care is among the most highly-effective means of preventing drug diversion. When physicians and nurses take the time to ask questions, review patient histories, conduct comprehensive differential diagnoses, and conclusively confirm a patient’s prescription needs, they can reduce the risk of diversion by both patients and staff. The AAFP also recommends that physicians:
- “[C]ontact previous health care providers and pharmacists to confirm the information provided by each new patient, [and obtain] the previous providers’ telephone numbers directly from directory assistance or other national sources, rather than from the patient.”
- “When taking a patient’s medical history, try to elicit information about the nature and intensity of the pain, current and past pain-related treatments, coexisting diseases and other medical conditions, the efficacy of past treatment for pain, overall level of function, and any substance-abuse history.”
- “Always carefully document everything in the medical chart that was said and done during a visit, including the patient’s answers to questions asked. A few moments of extra charting with new patients may prevent later problems.”
Protect Your Prescriptions
In order to protect against theft of prescription pads and prescription forgery (including alteration of legitimate prescriptions), physicians and practice managers can take a number of steps designed to thwart attempts to divert prescription narcotic medications. These include:
- Keeping extra prescription pads locked away
- Using sequentially-numbered prescription pads, and finding out what other diversion-prevention options are available from your pad supplier
- Never leaving a prescription pad unattended
- Never signing blank prescriptions in advance
- Never leaving the refill section of a prescription blank
- Writing the quantity and strength of prescribed narcotics in numerals and letters (i.e., “Ten (10) doses”)
- Recording prescription information in the patient’s chart
Get to Know Your Local Pharmacists
Drug diverters will frequently attempt to call in their own prescriptions, posing as a prescribing physician. They will also use a variety of techniques to try to obtain fraudulent prescriptions from pharmacies in person; and without adequate protections, many of these techniques can be difficult to detect. A good way to mitigate these risks is to implement prescription guidelines and protocols with the local pharmacies in your area. For example, let them know that certain types of prescriptions will never be called in, consider faxing or emailing copies of prescriptions to them directly, and discuss other ways that you can work together to prevent prescription narcotic diversion.
Staff Training and Support
All nurses and other staff members who deal directly with patients and prescriptions should be thoroughly trained on appropriate prescription practices, and they should be provided with the support needed to take action in response to suspected instances of diversion. Make sure they know the common warning signs for patient diversion, and work to foster a culture of open communication and compliance.
What to Do During a Prescription Narcotic Diversion Investigation
If your facility is currently under investigation for prescription narcotic diversion it is important that you seek legal representation right away. These investigations can move quickly, and even if no evidence of diversion is found, they can still be hugely disruptive to business operations and patient care. Additionally, by the time you find out that you are being investigated there is a high likelihood that the DEA or DOJ has already found reason to suspect that your facility is involved (or at least complicit) in a drug diversion scheme. In order to avoid facing charges, you need to intervene in the investigation as early as possible, and you need to mount a strategic defense based upon the unique facts and circumstances at hand.
Contact the Prescription Drug Fraud Law Attorneys at Oberheiden, P.C.
For more information about preventing prescription narcotic diversion, responding to instances of diversion, or defending against a prescription drug fraud investigation, you can contact our law offices for a complimentary consultation. To speak with our team of experienced health care fraud law defense attorneys and former federal prosecutors, please call (888) 519-4897, or contact us online today.