There are millions of pain patients in the U.S. who require pain management to get through their daily lives. Recently, federal prosecutions have targeted physicians treating pain patients utilizing the Controlled Substances Act (CSA), 21 U.S.C. 841(a). The CSA makes it unlawful for a person to distribute controlled substances. However, those with a registration — such as physicians, pharmacists, nurse practitioners, and physician assistants — are able to prescribe and dispense controlled substances.
The authority to prescribe opioids is limited to prescriptions that are issued in the “ordinary course of professional practice for a legitimate medical purpose.” The authority to dispense opioids is limited to dispensing within the “corresponding responsibility.” The corresponding responsibility requires pharmacists and dispensing physicians to ensure that prescriptions issued are not for the purposes of drug diversion and are for a legitimate medical purpose.
In recent years, the standards applied to prescribers and dispensers (physicians and pharmacists) has been blurred. This is because of federal guidelines such as the CDC guidelines and state prescribing regulations similar to those in Ohio and Florida that are related to intractable pain. Physicians are being targeted increasingly — not because they violated a federal criminal law but because they violated a state regelation related to prescribing.
Both federal and state governments have enhanced efforts to target doctors and pharmacists and obtain convictions in order to combat what they improperly perceive to be the cause of the opioid epidemic. The DEA, FBI, and DOJ have drastically increased targeting prescribers of controlled substances for running alleged “pill mills.”
The federal government charges physicians using primarily two federal statutes under the Controlled Substances Act: 21 U.S.C. 841(a) and 21 U.S.C. 846. These statutes were designed to be utilized against traditional drug traffickers until the U.S. Supreme Court’s decision in U.S. v. Moore (423 U.S. 122, 96 S. Ct. 335 (1975)).
With Moore, the Supreme Court authorized the use of this statute against physicians who abandon their role as physicians and prescribe “without a legitimate medical purpose” and “outside the usual course of professional practice.” This phrase essentially means that a physician must cease practicing medicine and become a drug dealer to be prosecuted.
However, since the Moore decision, the Department of Justice has systematically expanded the definition and now uses this statute to prosecute mere disagreements with prescribing decisions.
With the 2016 implementation of the CDC guidelines, prescribers are facing additional scrutiny from the DEA and other federal authorities. Any prescriber issuing more controlled substance prescriptions that his/her peers is sure to be targeted by federal authorities through the use of undercover officers, informants, and DEA investigative techniques.
Defense of pill mill allegations requires skilled and focused representation. Simply put, we at Chapman Law Group have done it before and achieved acquittals, so we know exactly how to attack the government’s evidence to achieve acquittal. Our healthcare fraud defense attorneys have tried cases against U.S. Attorney’s offices and the DOJ across the country and have been able to observe the government’s playbook.
Here are a few techniques we have successfully used at trial in order to obtain acquittals for physicians facing federal drug conspiracy charges:
When the government charges a physician or pharmacist with federal drug trafficking conspiracy charges, it generally does not charge a single interaction between a provider and patient.
The federal prosecutor will probably indict a physician not just for conspiracy to distribute drugs (21 U.S.C. 846) and/or unlawful distribution of drugs (21 U.S.C. 841(a)(1), he/she also will likely charge healthcare fraud and possibly money laundering. By doing this, the government is casting as wide of a net as possible to require you and your counsel to defend the widest possible range of evidence at trial.
Many inexperienced defense counsel fail to attempt to restrict the government’s evidence by filing 404(b) motions, motions to compel evidence, and motions to exclude uncharged acts. This will result in trial surprise and the inability to defend against the government’s shifting prosecution theories.
In federal criminal law, the standard is everything. The standard defines what the government must prove at trial. It is the difference between criminal conduct and conduct that is not a crime, and between innocence and guilt. In recent years, the federal prosecutors have blurred this standard and will prosecute healthcare providers for conduct that is not unlawful.
In order to obtain a trial acquittal, we spend a considerable amount of time educating the prosecution and the jury on the standard in order to raise the evidentiary requirement necessary to convict. In order to be convicted of unlawful distribution, the government must prove that a physician prescribed “for other than a legitimate purpose and outside the course of professional practice.” In essence, the Government must prove that the physician stripped off his/her lab coat and became a “drug pusher” or that the pharmacist dispensed controlled substances knowing they were for a non-medical purpose.
All too often, traditional criminal defense attorneys fail to attack the standard and indoctrinate the jury with the actual standard. This failure in strategy is the sole cause of physicians being convicted for what amounts to be a mere difference of opinion of medical judgment or a violation of prescribing regulations.
We at Chapman Law Group attack the standard through pre-trial motions designed to disqualify the government’s expert witness, attack the admissibility of state and federal guidelines, and other evidence used to prove an improper standard. In opening statement and closing argument and through cross-examinations, our healthcare defense lawyers indoctrinate the jury with the proper standard, and we show the jury why its job is not to convict physicians for mere differences of medical opinions.
The government focuses on the data. We focus on the patients. This means that the government prosecutes physicians by arguing about the “volume of pills prescribed” or “patients seen” or money made is excessive.
However, healthcare is an individualized practice, and the government is generally afraid to explore individual patients. Healthcare providers care about their patients, and many providers who find themselves investigated by the federal government are being investigated because they refuse to arbitrarily limit their treatment of patients to conform to government perceptions of “good treatment.” This means that most physicians facing prosecution have the support of their patients.
Patients need to be heard. The jury must hear stories from patients whose lives were positively impacted by their doctor. This testimony has been the most compelling in any trial of a physician facing federal drug trafficking charges and pill mill allegations.
A defendant always has the right to choose whether to testify at trial. In a federal healthcare fraud or drug trafficking prosecution, it’s imperative. The jury is instructed that it cannot consider a defendant’s failure to testify when reaching a verdict; however, juries do anyway.
Federal drug trafficking trials can take weeks or months. This means that the jury will see a defendant in the courtroom, hallways, and around the courthouse. The jury will be eager to hear the voice of the defendant and to understand where the defendant is coming from. A properly prepared defendant who can articulately discuss prescribing and dispensing decisions can win a case.
Preparation to testify must begin as early in the case as possible. A physician defendant must take part in the defense, review medical records, and understand the testimony of the government and defense expert witness.
Many federal criminal defense attorneys are afraid of their client testifying. We are not.
We can prepare any defendant to face the federal government on the witness stand through intense preparation, early involvement in the case, and knowledge of the standard.
First, the DEA, FBI, HHS, or other state and local law enforcement will begin an investigation against a pharmacy or a pain management practice by reviewing statistical information from prescription drug monitoring program (PDMP) reports to determine if the practice’s behaviors are aberrant compared to other local practices. Federal law enforcement will dive deep into the data and look at the volume of opioids prescribed or dispensed, combinations of drugs, patient distances from the practice, and criminal history of particular patients.
When federal law enforcement such as the DEA determines that there is enough to continue the investigation, they typically send an undercover patient into the office by either utilizing an existing patient who has a criminal history or an undercover officer posing as a pain patient.
The undercover officer will typically pose as a patient with lower back or neck pain. He/she will usually describe the pain as mild or moderate and will avoid specifically describing the onset, nature, location and duration of the pain. The officer will offer vague answers to specific questions about the pain for fear of appearing as an actual pain patient.
The undercover may ask for medications by name and exhibit signs of potential diversion such as obtaining drugs from friends, overuse, abuse, alcoholism and other “red flags” the DEA has identified as problematic behaviors. Federal law enforcement such as DEA and FBI will then interview patients and other people in the local area to find characteristics about the practice in preparation for the execution of a search warrant.
A search warrant is generally executed prior to an indictment in order to allow the DEA and FBI to review patient files prior to reaching an indictment decision. If a search warrant is executed, the DEA, FBI, HHS, and local law enforcement will show up at the practice early in the morning and swarm the practice with agents. Authorities will separate employees and begin questioning while other agents obtain items from the practice listed on the search warrant, such as computers, medical records, and medications.
If you believe that an investigation is underway, contact us Chapman Law Group immediately. We can help take actions now in order to prevent the execution of a search warrant and indictment.
Our Tips for Surviving a Search Warrant on a Medical Practice or Pharmacy:
After a search warrant is executed, the Assistant U.S. Attorney assigned to the case will review the information obtained from the search warrant and seek an indictment. Early involvement of defense counsel is imperative at this time, so as to prevent further search warrants from being executed and to negotiate with the government regarding all aspects of the case.
We at Chapman Law Group would initiate a rigorous compliance program at this stage in order to maintain or achieve compliance.
If an indictment is obtained, the government will usually attempt to arrest a defendant and make another attempt to obtain a statement from the healthcare provider. In many cases, our healthcare-based criminal defense attorneys have been able to negotiate with prosecutors to prevent arrest and simply allow our client to “walk in” to arraignment. Those without counsel will likely be arrested and detained pending arraignment.
Federal criminal defense — specifically, defense of federal drug trafficking charges related to prescribing — is a complex area of law not suited for a general criminal defense attorney. The federal prosecutors prosecuting such cases are specialists, and you need a specialist on your side.
We are the specialists you need.
For example, Ronald W. Chapman II has a strong record of defending some of the most high-profile healthcare fraud and unlawful distribution of opioid cases in the country. As a dedicated federal criminal defense attorney, Ron’s defense litigation portfolio included numerous acquittals of providers alleged to have been running pill mills and overprescribing.
With an LL.M. in healthcare among his credentials, he is a sought-after author and speaker on the issue. Ron’s extensive experience and focused practice ensure that his clients get the benefit of a focused and aggressive defense without the big law price tag.
Ron, along with our other healthcare-based criminal law attorneys — Summer McKeivier, Jonathan Meltz, Juan C. Santos, Robert J. Andretz, and Meaghan G. McKeon — has dedicated his career to defending physicians, pharmacists and other healthcare professionals facing federal criminal charges.
At Chapman Law Group, our national DEA attorneys are dedicated to defending prescribers and dispensers against actions such as DEA investigations and audits, DEA raids, DEA registration applications and denials, and DEA registration suspension and revocation issues nationwide.
We also work with prescribers and dispensers across the U.S. to advise them on state and federal regulations surrounding controlled substances to ensure compliance and prevent investigations and DEA enforcement action.
Our DEA lawyers are experienced in defending DEA registrants both during DEA investigations and in subsequent DEA action if noncompliance with the Controlled Substances Act is found. When an investigation or DEA audit is initiated, we work with clients to respond to DEA complaints, demonstrate compliance, and negotiate agreements between the DEA and client to ensure minimal impact to their DEA Certification and license and reduce penalties.
Among the DEA actions we handle:
We are dedicated to helping national practitioners, pharmacies, distributors and other registrants protect their DEA registration and defend against DEA enforcement action. Our goal is not only to protect the DEA registration of our clients, but to protect their other professional licenses, their career and their reputation from damage caused by DEA investigations and allegations of noncompliance.
We represent licensed medical professionals, including:
Our offices are in Detroit (where we serve Dearborn, Troy, Ann Arbor and Grand Rapids, and the rest of Michigan); Miami and Sarasota, Florida (for Jacksonville, Tampa, Orlando, West Palm Beach, and all of Florida); Los Angeles/Southern California; and Chicago. Contact us today for more information.
Ronald W. Chapman II, LL.M.
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Chairperson of White Collar Defense & Government Investigations
Michigan Office
1441 W. Long Lake Road, Suite 310
Troy, MI 48098
Phone: (248) 644-6326
Ronald Chapman II, who focuses exclusively on defending health care providers nationwide under DEA and federal prosecutor investigation, offers expertise in “Criminalizing Good Medical Care: The Opioid Crisis and How to Practice Safely.”
The CDC Guidelines for prescribing controlled substances like opioids, and the DEA/DOJ investigations that follow, are putting physicians and their pain patients in a regulatory crunch.
Our healthcare criminal lawyers have seen, in these situations, pharmacists and physicians also get their professional medical licenses suspended or revoked, as well as their DEA registration.
The government claimed that property taken from Dr. Joseph Oesterling was derived from illegal activity, but the appellate court struck the argument down.
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