How Pain Management Physicians Can Prevent Opioid Fraud
Experienced Defense Lawyers – Protecting Physicians & Healthcare Business Owners
Recent statements by Attorney General Jeff Sessions and a series of criminal cases brought against physicians across the country by the Drug Enforcement Administration (DEA), the Office of Inspector General (OIG), the Federal Bureau of Investigation (FBI), and the Department of Justice (DOJ) illustrate the forcefulness with which government lawyers have begun to audit and prosecute prescribers of opioid pain medications.
About Oberheiden, P.C.
Oberheiden, P.C. is a team of healthcare fraud defense and criminal trial lawyers. Clients from across the United States trust our former Department of Justice healthcare fraud prosecutors and experienced defense lawyers to obtain first-hand legal advice on all issues surrounding prescription practices.
Our experience includes:
- More than 70 years of Department of Justice experience
- Avoided criminal charges in hundreds of healthcare cases
- Handled more than 1,000 healthcare investigations
- Conducted more than 500 criminal trials
- Dismissal of state and federal indictments
Clients of Oberheiden, P.C. are represented by senior attorneys. The Firm does not utilize junior lawyers, associates, or legal secretaries.
It is now public information that the federal government is aggressively fighting narcotic addictions and opioid abuse. Federal prosecutors and specially assigned healthcare fraud investigators are tasked to identify and take down physicians whose opioid prescription practices deviate from established standards of care. Attorney General Sessions summarized:
“[W]e are announcing a new effort to target our federal resources against this epidemic. If you are a doctor illegally prescribing opioids for profit or a pharmacist letting these pills walk out the door and onto our streets based on prescriptions you know were obtained under false pretenses, we are coming after you.”
Recent indictments against physicians in Pennsylvania and other parts of the country show how aggressively the Opioid Fraud and Abuse Detection Unit pursues narcotic prescribers. These cases have in common that the charged physician is accused of prescribing methadone, morphine sulfate, oxycodone, hydrocodone, oxycodone, and acetaminophen outside the standard care, to drug seekers, and without legitimate medical purposes.
Expect Under Cover Agents As “Patients”
The DEA and the FBI are using a number of investigative tactics to collect evidence against opioid pain prescription fraud. A significant portion of the evidence that led to criminal charges against physicians originated from under cover agents. Investigators from the DEA visit physician offices under the pretense of being a “normal” patient with pain symptoms.
These visits are often recorded and secretly filmed. Goal is to capture interactions with office staff suggesting casual prescription policies, insufficient intakes and triage, and mass and routine fillings of narcotics to large patient populations. Also documented are the communications with the prescribing physician, the extend of physical examinations as prerequisites of prescription orders, as well as potential arrangements between the physician’s office and pharmacies.
What Makes Opioid Prescriptions “Illegal”?
21 U.S.C. 841(a)(1) prohibits to knowingly and intentionally distribute a controlled substance other than in the usual course of professional practice and for a legitimate medical purpose. 21 U.S.C. 846 makes it a crime to attempt or conspire with others to violate Section 841(a)(1). Title 21 Code of Federal Regulations Section 1306.04 summarizes as follows:
“[A] prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription.”
The government applies a number of factors to determine whether a prescriber violates pertinent healthcare laws or provisions of the Controlled Substances Act.
If you regularly prescribe so-called Schedule IIs or Schedule IIIs and you can answer any the following questions affirmatively, you may want to seek guidance from experienced counsel to assess the level of your narcotics compliance.
- Do you prescribe Schedule IIs on a regular basis?
- Do you accept cash payments?
- Do you delegate refills to your staff?
- Do you see more than 15 patients a day?
- Do you sometimes skip a re-examination when refilling?
- Do you fill “lost” prescriptions?
- Are most of your patients on social disability/working class?
Decades of government and prosecutorial service allow the attorneys of Oberheiden, P.C. to competently advise medical providers to ensure their compliance with the Controlled Substances Act and related DEA guidelines. Our Firm has a track record of avoiding criminal charges in healthcare cases and our profound understanding of the new DEA enforcement policies have shaped the contours of our compliance audits.
Many pharmacies and physician practices are still in business because they made the right choice at the right time and engaged us to conduct a voluntary self-audit, to analyze or create compelling policies and intake procedures with respect to prescription drugs. Consultations with the attorneys of Oberheiden, P.C. are free of charge and absolutely confidential.
What You Should Do Now to Protect Your License
If your practice involves pain medication prescriptions that fall under Schedules II and III, now may be the time to critically assess your policies and procedures. Nothing better demonstrates your intent to comply with the law then concrete actions, revised and amended policies, unequivocal staff instructions, and comprehensive fraud and abuse compliance training for all members of your practice. As part of a voluntary self-audit, we will take the following steps, among others:
- Establish Prescription Policies
- Educate Office Staff
- Review Prescription Orders
- Recommend Respected Alternatives
- Healthcare Fraud and Abuse Training
- Establishing Compliance Monitoring Tools
- Establish Patient Dismissal Guidelines
FAQs— Prescription Fraud Prevention
Q: Why Is the Federal Government Targeting Pain Management Physicians?
The federal government, in cooperation with state law enforcement agencies, wants to control and reduce the nation’s opioid epidemic. With almost 20,000 people dying of drug overdoses each year, the government’s declared goal is to cut the drug supplies by scrutinizing the prescription policies of pain doctors, many of which government officials consider mere drug dealers rather than responsible medical providers. Because pain management physicians, by virtue of their specialty, are the group of physicians issuing most frequently narcotic prescription orders, they are now being targeted.
Q: What Are Some of the Most Common Allegations in Pill Mill Investigations?
The classic abusive pain prescription practice is often referred to as a pill mill. In general, characteristic for pill mills are high number of patients obtaining Schedule IIs or IIIs or combinations thereof, cash payments, frequent refills, fast acting rather than slow acting pain medicine, casual or no physical examinations as prerequisites for pain prescriptions or refills, insufficient drug testing, and no or liberal enforcements of established office policies.
Q: What Can Be Done to Avoid Federal Scrutiny?
Physicians that regularly prescribe narcotics must recognize the possible consequences of a failed compliance check. Good practice should be to conduct a voluntary self-audit to assess potential exposure and to make sure that all expected written policies and procedures with respect to pain prescriptions and healthcare fraud and abuse avoidance (e.g. written office policies, employment manual, practice and patient guidelines, healthcare fraud training etc.) are part of everyone’s awareness and HR file. Just like a seat-belt protects in the event of a car accident, professionally created compliance policies (and their documented enforcement) will protect against accusations of criminal intent.
Q: When Should I Seek Legal Representation?
With the climate of enforcement continuing to intensify, pain management physicians and those medical providers regularly issuing narcotics are well advised to have their practice professionally evaluated.
Why Physicians Choose Oberheiden, P.C.
Oberheiden, P.C. routinely advises medical providers and healthcare entities on regulatory compliance, audits, and fraud investigations. The Firm has successfully defended physicians, nurse practitioners and business owners against the Drug Enforcement Administration (DEA), the Department of Health and Human Services (HHS), the Department of Justice (DOJ), the Office of Inspector General (OIG), the Federal Bureau of Investigation (FBI), and others. Contact us to discuss your situation and your options.
Clients of Oberheiden, P.C. receive reliable advice and benefit from proven defense strategies. All clients have direct access to former Department of Justice prosecutors and senior attorneys with significant experience in healthcare cases.
Compliance – Litigation – Defense
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.