As national criminal defense attorneys representing licensed healthcare professionals across the U.S., we at Chapman Law Group have had the opportunity to represent hundreds of doctors, specialty physicians and pain management specialists facing scrutiny from the federal government for healthcare fraud and drug trafficking.
From this perspective, we have been able to see the evolving playbook utilized by the Department of Justice (“DOJ”) to prosecute physicians. This playbook has resulted in resounding success for the DOJ in the courtroom. Only by knowing this playbook and preparing a trial strategy around the DOJ’s litigation strategy, can we be successful with a healthcare fraud or opioid defense.
These 10 tricks are often used by the DOJ to convict physicians and other healthcare professionals on charges of healthcare fraud and unlawful prescribing.
The DOJ and Assistant U.S. Attorneys often attempt to lower the standard of proof so as to convince a jury that conduct more akin to malpractice is sufficient for a conviction. White-collar criminal attorneys who represent the healthcare sector must be weary of such efforts, and they must ensure that any effort to lower the hefty burden of a federal prosecution is met with resistance.
Not long ago, a prosecutor approached one of our attorneys with a plea deal for a physician accused of healthcare fraud and prescribing controlled substances. He informed our lawyer that he had a great case against the physician and that our client should plead guilty to drug trafficking and healthcare fraud.
The prosecutor’s theory: the physician failed to check a box on DEA paperwork and was therefore not actually authorized to prescribe Schedule II controlled substances.
According to his argument, each subsequent prescription was unlawful.
But even the most liberal interpretation of federal law does not support the prosecutor’s case. It was evident to me that this prosecutor did not appreciate — or flatly ignored — the applicable legal standard to prove unlawful prescribing.
In order to be convicted of unlawful prescribing, the government must prove that the physician prescribed for other than “a legitimate medical purpose and in the usual course of his professional practice.”
Likewise, in order to be convicted of healthcare fraud, the government must prove that a physician devised and executed a scheme or artifice to defraud a federal healthcare program and that the physician knowingly billed a federal healthcare program in a fraudulent manner (i.e. upcoding, unbundling, billing for services not rendered). These standards essentially require that the physician knowingly engaged in criminal conduct.
Violation of a regulation is not sufficient, nor is carelessness, recklessness, or malpractice. If juries truly understand and apply the standard, it is much more difficult to convict a defendant. The majority of the trial must be spent on indoctrinating the jury to understand the applicable legal standard. It must be mentioned often, in opening statement, during the expert’s testimony and during closing argument.
Profile evidence is the use of data to show that a particular defendant fits the “profile” of a criminal and, therefore, is, in fact, a criminal. This has been used in gang prosecutions but later subject to harsh rebuke by appellate courts. Profile evidence is inherently a fallacy and only as probative of criminal conduct as the assumptions of criminality used to generate the data.
Healthcare fraud and unlawful prescribing prosecutions generally begin with an analysis of data. The DOJ will determine that the physician is the No. 1 prescriber of oxycodone in his/her state or has performed more procedures than any other physician in the state. The DOJ may introduce prescription drug monitoring program (“PDMP”) data to show the volume of prescribing relative to a physician’s peers.
Such data must be met at trial with an emphasis on individual patient care. This includes calling real patients as witnesses to have them testify to their experiences with the physician defendant. Moreover, if the physician and his/her counsel have the capability, additional data sets should be created and introduced that show that the physician is not an outlier in other areas. For instance, the provider may be the highest prescriber of oxycodone in the state, but he/she may also be a high prescriber of nonsteroidal anti-inflammatory drugs (“NSAIDS”) and other treatments, suggesting that the oxycodone number was a function of volume and not improper treatment.
The DEA has historically used red flags during investigations of physicians. These red flags are widely known in the medical community. Some red flags include asking for drugs by name, doctor shopping, showing up in groups, and traveling long distances for treatment.
The DEA typically has an undercover DEA agent or informant pose as a patient and exhibit several red flags to determine if the physician will prescribe. In a healthcare fraud investigation, the undercover agent will attend an office appointment to determine if the physician performed the visit that he/she billed for.
The issue with “red flags” is that they are also signs of completely legitimate patients as well.
The use of “red flag” evidence must be met with a motion to exclude “red flag evidence” on the basis that it is improper profiling evidence and not based on any scientific or reliable methodology.
Medicare and Medicaid regulations are detailed and complex. Many regulations are so complicated, professionals with healthcare compliance degrees still struggle to understand them.
When it comes to healthcare fraud and opioid prosecutions, the government uses healthcare regulations such as Medicare rules and guidelines to create a heightened standard of care.
The government argues that the physician should have known about the regulations, and violating the regulation is flagrant disregard for the rules that the health professional agreed to follow when he or she signed the 855I (Medicare enrollment document).
However, courts often permit a jury instruction to be read to the jury clarifying that violation of a Medicare rule or regulation is not a criminal offense. This instruction must be pursued and used to indoctrinate the jury.
Typically, prosecutors extend us healthcare defense attorneys a plea offer early in the case before we have had sufficient time to investigate. Prosecutors usually provide a deadline for the offer and inform us that our client(s) has better accept this plea agreement before the arbitrary deadline imposed by the prosecutors.
Prosecutors claim that the first person to accept a plea deal will get the best deal. Why? Because he/she can testify against co-defendants in the case and receive a reduced sentence due to the U.S. sentencing guidelines’ overemphasis on reduced sentences for cooperating defendants.
However, throwing important fundamental rights away simply to secure a rushed deal before fully analyzing the criminal case is a reckless strategy.
If a prosecutor gives us on the defense a timeline to accept a deal, we commonly ask them to provide sufficient data to analyze the government’s case and the evidence against our client; this way, we can determine whether it is a good deal or if we have sufficient defenses to begin trial preparation. Often, we forgo the initial plea offer only to receive better offers as we near trial.
Our law firm handled a specific case in which the government offered a sentence of probation and a plea to a misdemeanor — literally on the courthouse steps right before a long jury trial was set to begin.
Our client declined the offer. And we were victorious at trial.
When charging a healthcare fraud or drug trafficking case against a physician or other healthcare provider, the government often casts a wide net by wording the charges as broadly as possible to include as many interpretations of fraudulent conduct as possible. That’s why it’s important to spend significant energy during the pre-trial motions phase to limit the scope of the prosecution as much as possible.
Defense counsel can file a motion for a bill of particulars that specifically detail the alleged wrongful conduct or request discovery on the specific executions of alleged healthcare fraud. Defense attorneys should request expert disclosure deadlines and discovery deadlines in order to ensure the ability to review evidence sufficiently before trial to prepare a defense.
Further, defense must prevent the government from entering a trial with the ability to pluck any number of patients, Medicare bills, and prescriptions — and conduct a trial by surprise.
Prosecutors know that financial stress causes defendants to plea. This is typically why the government will go through great lengths to freeze and seize assets prior to the initiation of a prosecution. By doing do, many defendants are forced to forgo representation by skilled defense attorneys who are experts in their field, in favor of a court-appointed attorney who accepts a wide manner of cases.
Yes, public defenders are often skilled litigants. But the lack of funding for experts, investigators, and trial resources prevent them from engaging in a robust defense of an accused health professional.
The only way to prevent the government from infringing on a healthcare defendant’s Sixth Amendment right to choose his/her defense counsel with his/her funds, is to obtain counsel before the initiation of an indictment. Defendants must, at the earliest sign of government involvement, obtain counsel and ensure that the ability to withstand a healthcare fraud investigation and trial is available to counsel.
Many of us healthcare criminal defense lawyers have read thousands of witness statements during our careers. We’ve seen majority of them stretching the facts so thin, they were not capable of being relied upon to determine our clients’ trial posture.
Government investigator statements such as FBI 302 statements and DEA 6 statements are drafted by law enforcement who generally have an inherent bias toward criminality.
To the greatest extent possible, all witnesses must be interviewed by defense counsel and/or a defense investigator. Counsel and clients should not rely on governments statements when determining the facts in the case; information must be independently verified.
We at Chapman Law Group routinely receive calls from physicians whose offices have just been the subject of a DEA raid. The physician will explain to one of our healthcare defense attorneys that during the raid, the DEA requested that he “voluntarily surrender” his DEA registration as a “show of good faith.” The DEA calmly explains that all the physician must do to get it back is reapply.
Unfortunately, this is false information.
Reapplication can take years, and the DEA is not required to give the registration back.
The physician’s best change of remaining employed while dealing with a costly and stressful legal battle is to decline voluntary surrender and request the assistance of an attorney.
Why does the DEA attempt to coerce physicians into voluntary surrender? Because relieving a doctor of his/her DEA registration is a time-consuming, laborious process for the DEA. There are simply too many doctors targeted by the DEA and not enough DEA attorneys and administrative law judges to deal with the existing backlog of cases.
If the physician described here responds with a simple “No thanks,” he/she will probably be able to continue to prescribe during the pending criminal, case subject only to any district court pre-trial release restrictions.
Routinely, during a raid or during the investigation of a physician, the government attempts to “flip” patients and office staff against a physician. This is done by offering sweetheart plea deals in exchange for witness testimony or by targeting patients with a prior criminal history who fear harsh federal sentences.
Patients and office staff must be interviewed as early in the case as possible to ensure that their statements are “locked in” at the beginning of the case or during a pre-indictment internal investigation. This will ensure that defense counsel can preserve the truth before the government begins making promises to witnesses.
At Chapman Law Group, our lawyers have decades of experience in white-collar crimes, government and DEA investigations, and health care fraud matters across the U.S. We are unique in that we specialize in criminal defense solely for licensed national healthcare providers — from physicians and nurses, to ophthalmologists and pain management specialists.
Our attorneys serve healthcare providers throughout the U.S., with four national in Detroit, Michigan; Miami and Sarasota, Florida; and Los Angeles/Southern California. Contact us today.
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