Ohio Opioid Investigation Defense for Healthcare Providers

Prescribing physicians, pharmacists, addiction clinics, and other healthcare providers in Ohio are being targeted in opioid fraud investigations. When charged criminally, providers can face inordinate fines and long-term incarceration in federal prison.

Healthcare providers in Ohio are on the front lines of the federal government’s fight against opioid fraud and abuse. According to the U.S. Attorney’s Office for the Northern District of Ohio, the DOJ is responding to an “an unprecedented healthcare and law enforcement crisis” related to fatal opioid overdoses. In roughly the last quarter of 2019 alone, the DOJ announced two major takedowns targeting doctors for illegal opioid prescriptions and the unlawful distribution of opioids.

As announced by the DOJ, one of these takedowns:

“[R]esulted in charges against 13 individuals total across five Appalachian federal districts for alleged offenses relating to the over prescription of controlled substances through ‘pill mill’ clinics. Of those charged, 12 were charged for their role in unlawfully distributing opioids and other controlled substances and 11 were physicians [including four doctors in Ohio].”

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In the second case, the DOJ brought charges against an Ohio doctor who ultimately pleaded guilty to eight counts of unlawful distribution – a serious felony offense. According to the DOJ, the doctor, “admitted that he prescribed controlled substances to patients in amounts and for lengths of time that were outside the scope of legitimate medical practice . . . [and] that he routinely prescribed controlled substances to patients even though various ‘red flags’ suggested that he should stop writing those prescriptions, change the prescriptions and/or counsel patients accordingly.” While this may be an extreme case of criminal and unethical malpractice, the types of allegations involved are common in DOJ and Drug Enforcement Administration (DEA) cases targeting legitimate doctors as well.

Undoubtedly, the nation’s opioid epidemic is a very real problem, and patients and non-patients in Ohio are dying as a result of overdosing on opioid medications. It is equally indisputable that some healthcare providers are contributing to the crisis. However, it is also clear that many good doctors are prescribing and dispensing opioids appropriately. Unfortunately, the scope of the problem has forced the DOJ, DEA, and other agencies to take a non-discriminate approach, and this means that all healthcare providers are at risk for being targeted in opioid-related investigations.

What Practices Put Ohio Healthcare Providers at Risk in Opioid Fraud Investigations?

Given the risk of being targeted in an investigation – and the even greater risks of being prosecuted by the DOJ – Ohio healthcare providers need to make compliance a top priority, and they need to be prepared to defend themselves effectively in the event that they are contacted by federal, state, or local agents. No form of contact should be taken lightly, and under no circumstances should healthcare providers assume that they are safe from prosecution. The DOJ has an extraordinarily broad set of statutory and regulatory tools it can use to target healthcare providers suspected of opioid-related crimes; and, if you or your practice is under investigation, it will be up to you to prevent the investigation from leading to federal charges.

Of course, when facing a federal investigation, the strongest possible defense is to prove your innocence. But, this begs the question: What constitutes opioid fraud?

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Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Gamal Abdel-Hafiz
Gamal Abdel-Hafiz

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

In truth, the definition of opioid fraud is far broader than most physicians, pharmacists, and other healthcare providers realize. Not only can numerous different types of practices be prosecuted as criminal opioid fraud or diversion, but even unintentional mistakes can lead to civil federal charges. While civil charges do not carry the risk of prison time, they can still lead to exorbitant financial liability, loss of Medicare and Medicaid eligibility, and other severe penalties. Examples of practices that are likely to trigger federal opioid fraud investigations (and may create exposure to criminal or civil penalties) include:

  • Refilling prescriptions without a re-examination or evidence of medical necessity 
  • Filling prescriptions for patients who claim they “lost” their pills
  • Delegating prescription, prescription filling, and pill dispensing responsibilities to staff members
  • Filling an unusually large number of opioid prescriptions
  • Accepting cash payments or prescribing a high number of opioid medications to patients who are on government benefit programs

What Can Ohio Healthcare Providers Do to Mitigate Their Risk?

Tip #1: Document a Comprehensive Prescription Compliance Program

When it comes to defending your practice (and yourself) in a federal opioid fraud investigation, it isn’t enough just to be compliant. You also need to be able to prove your compliance. When DOJ and DEA agents examine providers’ opioid prescription practices, one of the first things they look for is a documented compliance program. If your practice does not have a compliance program, this will be considered evidence of your failure to undertake good-faith efforts to comply.

Tip #2: Make Sure You Know Your Patients’ Third-Party Providers

Under federal healthcare laws, physicians, pharmacists, and other providers have certain obligations when it comes to ensuring third parties’ compliance as well. For example, pharmacists are expected to undertake adequate measures to ensure the prescriptions they fill are valid, and all providers are subject to the prohibitions of the federal Anti-Kickback Statute and False Claims Act. Establishing contractual protections is a good starting point, but practitioners also must do more to make sure they are not drawn into conspiracy investigations.

Tip #3: Perform Re-Examinations Before Refilling Opioid Prescriptions

Since the DOJ’s crackdown on opioid fraud is ultimately intended to protect patients, one of the biggest “red flags” for investigators is the failure to conduct re-examinations prior to re-filling opioid prescriptions. Physicians must conduct re-examinations focused on determining the medical necessity of a refill, and these re-examinations must be legitimate – not cursory or only conducted on paper.

While this is an issue in all segments of healthcare practice, one particular area of concern is telemedicine. Telemedicine fraud is a top federal law enforcement priority in its own right, and the intersection between telemedicine and opioid fraud is currently a hotbed for federal law enforcement activity.

Tip #4: Know When it is Time to Say “No” to Patients

As a doctor, you are committed to protecting your patients’ welfare, whatever that may mean. But, at some point, for your patient’s protection and your own, you need to be willing to say “no” to providing additional treatment. If a patient’s actions are putting your practice in jeopardy (i.e. if he or she seems to be making false statements in order to obtain opioid prescriptions), then the most-appropriate (and safest) course of action may be to dismiss the patient from your practice.

Tip #5: Be Prepared for the Possibility of a Federal Investigation

Finally, recognizing that becoming the subject of a federal opioid fraud investigation is a very real possibility, you need to be prepared. When faced with a federal investigation, executing a proactive response will generally be the most-effective and most-efficient way to protect your practice. While you should not say anything to federal authorities except on the advice of legal counsel, you need to know how to affirmatively demonstrate your compliance if and when the time comes.

Are you accused of a federal crime?

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More Resources for Ohio Healthcare Providers Whose Practices Involve Opioid Medications

1. 100 FAQs: DEA Opioid Investigations

Yes. Really. One hundred. If your medical or pharmaceutical practice is facing scrutiny from the DEA, there is a lot you need to know. Our FAQs are broken down into six categories so that you can easily find the answers you are looking for:

100 FAQs: DEA Opioid Investigations

2. Opioids, Compounds, and Kickbacks: Expect More Healthcare Fraud Crackdowns

Why have federal authorities chosen to focus their efforts on healthcare providers? What do federal authorities consider a “pill mill”? What are some potential defense strategies if you are facing the prospect of civil or criminal charges for opioid fraud? Find out:

Opioids, Compounds, and Kickbacks: Expect More Healthcare Fraud Crackdowns

3. The Opioid Crisis and the Risks Facing Healthcare Providers

Healthcare providers in Ohio and other states have been on the government’s radar for some time. Learn more about the history of the DOJ’s focus on the healthcare sector as contributor to the nation’s opioid epidemic, and find out how the DOJ (and other agencies) choose specific providers to target:

The Opioid Crisis and the Risks Facing Healthcare Providers

4. DOJ Launches New Task Force Targeting Opioid Manufacturers, Physicians, Pharmacies, Pain Clinics, and Drug Testing Facilities

In the DOJ’s fight against opioid fraud and abuse, no healthcare providers are beyond scrutiny. Federal investigators and prosecutors are targeting all types of providers, with allegations ranging from prescription forgery to opioid diversion:

DOJ Launches New Task Force Targeting Opioid Manufacturers, Physicians, Pharmacies, Pain Clinics, and Drug Testing Facilities

5. How to Avoid Criminal Charges in DEA Drug Diversion and Opioid Investigations

You’ve been charged with federal opioid fraud, a serious felony offense. What now? Find out what you need to know from the team of federal healthcare fraud defense lawyers at Oberheiden, P.C.:

How to Avoid Criminal Charges in DEA Drug Diversion and Opioid Investigations

Contact Us about Your Ohio Opioid Fraud Investigation

Do you need defense representation for a federal opioid fraud investigation in Ohio? To speak with a senior attorney on our federal healthcare fraud defense team in confidence, call 888-680-1745 or inquire online now.

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