The Opioid Crisis and the Risks Facing Health Care Providers
Leading Federal Lawyers for Fraud Defense of Opioid Providers
Opioid abuse is a major issue in the United States, and federal authorities are using a variety of different mechanisms to combat misuse of both prescription opioid medications and illegal drugs such as heroin, fentanyl, and carfentanil. Along with outreach and education, authorities such as the U.S. Department of Justice (DOJ) are aggressively prosecuting individuals and entities suspected of contributing to the nation’s opioid epidemic. This includes health care providers that prescribe pain medications and that treat opioid-dependent patients. From overbilling Medicare and Medicaid to diverting opioid medications, federal agents and prosecutors are taking aim at providers suspected of all forms of opioid fraud – and providers targeted in federal investigations are facing severe penalties.
How Big is the Opioid Problem?
According to the National Institute on Drug Abuse (NIDA), an estimated 2 million Americans are addicted to opioids or suffer from other forms of substance use disorders involving opioids, and 90 Americans die from opioid overdoses every single day. Approximately one quarter of all patients who receive prescription opioids abuse them, and approximately 10 percent develop opioid dependence. Out of every 20 patients who abuse opioids, one will begin using heroin – a transition that often occurs after the patient’s opioid prescription expires. It is estimated that four out of every five individuals who use heroin previously misused opioid medications.
As a result of these high numbers, NIDA states that:
“This issue has become a public health crisis with devastating consequences including increases in opioid misuse and related overdoses, as well as the rising incidence of neonatal abstinence syndrome due to opioid use and misuse during pregnancy. The increase in injection drug use has also contributed to the spread of infectious diseases including HIV and hepatitis C.”
In addition to patients developing opioid dependence as a result of receiving valid pain medication prescriptions, improper (and unlawful) practices involving narcotic and other opioid medications are widely viewed as significant contributors to the current epidemic as well. In addition to prescription drug diversion, this includes practices such as overprescribing opioid medications, prescribing opioids that are not medically-necessary, paying and receiving kickbacks from pharmaceutical companies, and dispensing adulterated or otherwise dangerous opioid medications. According to the U.S. Department of Health and Human Services (HHS), in 2015 improper prescription and dispensing of opioid medications resulted in:
- 12.5 million Americans misusing prescription opioid medications, including 2.1 million who misused opioids for the first time.
- 15,281 deaths attributable to overdosing on commonly-prescribed opioids, including a portion of the 9,580 deaths attributable to synthetic opioid overdose.
- Contribution to the 135,000 Americans who used heroin for the first time, and the 12,989 who died from heroin overdoses.
What is the Government Doing to Target Health Care Providers Suspected of Opioid Fraud?
NIDA and HHS are taking a five-pronged approach to fighting the nation’s opioid crisis. This approach focuses on: (i) improving access to treatment and recovery services, (ii) promoting use of overdose-reversing drugs, (iii) gaining a better understanding of the scope of the problem, (iv) supporting new research on pain and addiction, and (v) advocating for better pain management practices. However, authorities such as the DOJ are taking a different approach – an approach which involves pursuing federal cases against health care providers suspected of engaging in any and all forms of opioid fraud.
To this end, the DOJ announced the formation of a new Opioid Fraud and Abuse Detection Unit on August 2, 2017. The DOJ has also assigned federal prosecutors to 12 regions around the country whose sole focus is on targeting opioid-related health care fraud. On November 29, 2017, Attorney General Jeff Sessions announced that these prosecutors, “have already begun to issue indictments,” relying on data obtained by the Opioid Fraud and Abuse Detection Unit.
During the same November 29th remarks, Sessions also announced three new initiatives focused on combating opioid fraud and abuse:
- $12 million in grants to state and local law enforcement agencies in order to assist in combating use of illegal opioids
- Restructuring of the Drug Enforcement Administration (DEA) in order to devote more resources to the fight against opioid fraud and abuse
- Designating an opioid coordinator at each U.S. Attorney’s Office across the country
As we previously discussed, one way that law enforcement agencies are targeting health care providers is by using their patients (or former patients) as informants. Authorities are more interested in pursuing charges against the health care providers that are viewed as contributing to the opioid crisis than those who are caught making illegal use of opioid drugs. Leveraging street-level arrests in order to get to the “source” has proven to be an effective method for the DOJ to identify targets for federal investigations.
This approach, combined with the DOJ’s heavy reliance on analysis of Medicare, Medicaid, and Tricare billing data, means that unsuspecting providers are now more likely than ever to find themselves the subjects of federal inquiries. While these inquiries are often misguided, with the government’s aggressive approach and emphasis on highly-publicized takedowns, avoiding unnecessary consequences will require a proactive approach to defending against unjustified allegations.
Other factors the DOJ considers when identifying targets for opioid fraud investigations include:
- Opioid medication prescription and dispensing rates
- Patient deaths within 60 days of receiving opioid medications
- Demographics of patients who receive opioid prescriptions
- Geographic location (the DOJ has identified 12 “hot spots” for opioid fraud and is devoting additional resources to select jurisdictions across the nation)
For health care providers, the government’s efforts to combat the opioid crisis mean an increased potential for investigation, prosecution, and federal sentencing. With opioid-related cases taking top priority, and with the penalties for opioid fraud including insurmountable fines, program exclusion, and long-term imprisonment – providers being targeted for suspected opioid fraud and abuse must take swift and strategic action to protect themselves from unjust punishment.
Contact Oberheiden, P.C., Knowledgeable Defense Attorneys for Opioid Fraud Allegations
Oberheiden, P.C. is a health care fraud defense law firm providing federal law representation to clients across the nation and comprised of significantly experienced and recognized defense lawyers and former DOJ prosecutors. If you are facing an opioid-related investigation into your business or practice, you can call (214) 692-2171 or contact us online for a free and confidential consultation.
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