By J. Richard Kiefer and K. Michael Gaerte
Co-Chairs, White Collar Crime & Health Care Fraud Practice Group
Bingham Greenebaum Doll LLP, Indianapolis
U.S. Attorney General Jeff Sessions announced Jan. 30 that the Department of Justice (DOJ) has launched a new criminal investigation and prosecution effort targeting physicians who prescribe or dispense opioids in amounts disproportionate to their peers, along with pharmacies that distribute disproportionate amounts of opioids. Sessions also announced that he has assigned experienced federal prosecutors in “opioid hot spot districts” to focus solely on investigating and prosecuting opioid-related health care fraud.
In August, Sessions announced the creation of a new data analytics program – the Opioid Fraud and Abuse Detection Unit – created to focus specifically on opioid-related health care fraud. It uses data to identify and prosecute individuals who are considered to be contributing to the opioid epidemic. The data, Sessions said, “can tell us important information about prescription opioids – like who is prescribing the most drugs, who is dispensing the most drugs, and whose patients are dying of overdoses.”
Physicians in Indiana have already been the target of DEA enforcement actions, local prosecutions and administrative proceedings before both the Medical Licensing Board and Indiana Board of Pharmacy for alleged over-prescribing or dispensing of controlled substances, including opioids. Some physicians have also been targeted because they have a personal addiction to opioids. The federal crackdown comes in addition to last year’s passage of an Indiana law limiting new opioid prescriptions to seven days.
What to do if officers arrive
Federal and state agents don’t call in advance to schedule an appointment. Surprise is their primary advantage. On an otherwise normal day at the office, federal, state, or local law enforcement agents suddenly and without notice show up at a physician’s office, display their guns and badges, and ask/demand to speak with the physician privately. A common tactic is to tell the physician they suspect he or she has violated DEA regulations or other laws and “request” (i.e., demand) that the physician surrender his or her DEA controlled substance registration on the spot and answer their questions.
What do you do? First and foremost, you have the right to consult with an attorney before surrendering your DEA registration or answering law enforcement questions. If officers believe you have committed federal or state crimes, you could be arrested and prosecuted. Also, surrendering your DEA privileges may have consequences regarding your licensure, employment, hospital credentialing and eligibility to bill insurance. If agents have a search warrant, they have the right to search, but you still have the right not to talk with them.
Respectfully and politely ask the agents for their business cards and tell them you will have your attorney contact them. Tell them you want to consult with your lawyer before you make any decisions. Never feel pressured to make immediate decisions about matters that are vital to your ability to practice or to your freedom. Anything you say and do, such as surrendering your DEA registration, can be used against you if you are prosecuted or if an action is filed against your professional license. Every case is different, but you would be wise to talk with a lawyer first, and then make the decision that is right for you.
Note: This article expresses the individual views of the authors and not necessarily those of ISMA.