In recent years, Federal and State enforcement agencies have drastically expanded their drug task forces, leaving many pain management doctors feeling as though they have a target on their back.
Over the last decade, federal and state prosecutors have arrested and charged several thousand doctors with criminal violations related to their prescribing of prescription narcotics. In a number of those cases, the doctors were wrongly charged with criminal offenses; either state prosecutors misunderstood the applicable standard, or they prosecuted what essentially should have only been violations of administrative rules and handled by state licensing boards.
While it is possible for these doctors accused of operating a “pill mill” to be exonerated, in many cases significant damage has been done to their professional reputation, practice or career, and license suspensions and sanctions have already been put in place.
We at Chapman Law Group is dedicated to the defense of all health professionals facing criminal and/or licensing action. We are especially dedicated to the defense of pain management doctors and their pain clinics, as we understand the pressure these doctors often feel from the vast amount of laws and regulations on their practice and the extreme ramifications they face if they fail to comply.
Why are Pain Clinics Being Targeted?
The reason for such increased attention towards combating prescription narcotics abuse is the result of the “war on prescription drugs” in America. While it cannot be argued that prescription drug abuse has become an epidemic, the line between facilitation of this offense and providing adequate health care is increasingly blurry. Such efforts on the part of the federal government to combat prescription drug abuse have the effect of widening the gap between legitimate patients in chronic pain and their well-meaning pain management doctors.
As the fear of federal prosecutions looms, scrupulous doctors are more likely to turn away patients with chronic pain, leaving these patients to fend for themselves.
Moreover, we are seeing an increasing trend of doctors underprescribing pain medications for fear of being “red flagged” as a pill mill by state prescription monitoring systems (e.g. MAPS, E-FORCSE, OARRS, etc).
As Vicodin and other Hydrocodone-containing products become Schedule II narcotics, doctors are sure to face increased scrutiny, heightened criminal exposure, and inflated state and federal sentencing for convictions related to the prescription of narcotics.
What is the Standard for Proving Drug Trafficking Against a Doctor?
Under the federal standard, a doctor is guilty of criminal conduct if he or she prescribes without a “legitimate medical purpose” and outside the “usual course of his professional practice.” If this standard appears shockingly low, you are correct. This standard has the effect of essentially enumerating the standard of care and making departures from the standard of care a potentially criminal offense.
State standards vary widely from making simple departures from the standard of care and state administrative rules criminal, such as in Ohio, to requiring an “intent” to traffic in narcotics, as in Michigan.
How is an Investigation Into a Pain Clinic Initiated?
First and foremost, it is important to understand that the word “audit” is synonymous with an investigation. Federal and state narcotics investigators frequently use their administrative powers to force their way into your clinic and monitor your prescribing habits. Very rarely does an investigation start with the police knocking on your door.
If the police, DEA or other federal and state investigators have “raided” your practice with a search warrant, you can bet that their investigation is almost at its conclusion.
Therefore, it is imperative that you retain a qualified criminal defense attorney/administrative law attorney to aggressively defend you at the initial stages of an “audit.” This will ensure that you are protecting your rights at every stage of the “audit,” or investigation, and may prevent criminal charges from ever being filed.
If you are raided by the DEA, local police, drug task force or other enforcement agency, you should contact an attorney immediately. There are several key things that an experienced criminal defense attorney can help you do in the first 24-48 hours following a raid that may improve your success in defending charges that will likely follow a raid.
What Are Common Criminal Charges Against Pain Clinics?
- Prescribing controlled substances;
- without medical necessity or prescribing without a “legitimate medical purpose”; and
- prescribing outside the “usual course of his professional practice.”
- Conspiracy between two or more people working together to perform a legal act by illegal means or an illegal act. This is a common charge if there is more than one doctor working at the pain clinic or if other doctors are referring a large number of patients to the pain clinic under investigation.
Health Care Fraud
- Doctors may face health care fraud charges if they are accused of over-prescribing to Medicare or Medicaid patients and they aided the patient in the authorization of prescriptions reimbursement by Medicare or Medicaid.
Federal investigators use CMS data, state automated prescription systems data collected from health insurers, and other electronically stored data to look for statistical deviations in prescription habits. Once these are found, the state will usually begin an audit and look deeper into your prescription habits to see if you are operating a pill mill.
From there, state investigators may send undercover agents or informants into your clinic or make contact with existing patients to tighten their web. This investigation will ultimately culminate in the authorization of a “search warrant” and your pain clinic may be “raided.” This will happen with little notice and generally will result in some media coverage alleging that you operate a pill mill.
How Can I Protect Myself?
First, be proactive. If you believe you may be investigated by state and/or federal authorities, you should contact an experienced criminal defense attorney immediately and have an independent investigation/audit done of your practice to see what areas can be improved or what your potential criminal exposure is.
If you are already being investigated, it is imperative you reach out to an experienced criminal defense attorney immediately. Delaying may substantially interfere with your ability, or your attorney’s ability, to aggressively defend you.
Additionally, with the vast state and federal resources allocated to combating prescription drug abuse, it is imperative your criminal defense attorney has time to prepare your defense to the investigation.
What Will Happen To Me If I am Under investigation or My Pain Clinic is Raided?
Doctors need to understand that investigation for departures from the standard of care starts a very complex process in multiple areas — not just criminally.
DEA and State Licensing Issues and Collateral Consequences
First, doctors may see the suspension of their DEA license. While there is an administrative remedy to appeal the DEA suspension, many are caught off-guard by the rapid suspension of their license immediately after allegations of unlawful prescribing/dispensing are levied.
Second, doctors may see their CMS privileges suspended or revoked pending criminal charges and/or administrative proceedings. This means that doctors primarily billing Medicare or Medicaid will immediately lose any source of revenue expected from previous billings not already paid by CMS and may face clawback of prior fraudulent billings.
Third, doctors may face immediate suspension of their medical license and/or dispensing license. Doctors practicing in multiple states must also be aware that those states will be notified and will likely also take administrative action against their medical license.
A doctor facing a criminal investigation, charges for unlawful dispensing or prescribing, or pill mill allegations, will immediately face an administrative battle on three fronts. This is in addition to the criminal complaint or indictment that is likely pending.
Sentencing guidelines for what amounts to drug trafficking under state and federal law vary and are heavily determinate upon the individual charged and the circumstances of the particular offense(s). However, even one count of unlawful prescribing is likely to subject a physician to jail time, or at least a very lengthy probationary period, in addition to licensing sanctions.
While some damage may be prevented by aggressive criminal defense and professional licensing defense, your attorney must be knowledgeable about all of these areas in order to adequately defend your interests.
Too often, physicians overlook the complexity of these areas and hire an attorney only skilled in criminal law. However, an attorney skilled in state and federal criminal law, as well as state and federal administrative law, will be more economical than hiring multiple attorneys; will provide better care due to a knowledge of the interplay between all areas; and will be prepared to aggressively protect your rights, your livelihood, and your freedom.
Possible Sanctions and Collateral Consequences
- Imprisonment of up to 20 years (and sometimes more)
- Loss of medical license
- Loss of DEA Registration
- Loss of dispensing license (state and DEA)
- Fines in the millions
- Civil monetary penalties
- Exclusion from participation in federal health care programs
Our Experience Defending Pain Management Doctors and Pain Clinics
At Chapman Law Group, our team of experienced criminal defense attorneys and licensing attorneys — including two former federal prosecutors — has significant experience defending physicians and other health professionals from allegations of unlawfully prescribing and health fraud.
We offers a comprehensive defense strategy to cover all areas of your potential criminal case, licensing case and compliance issues without the need to seek out the advice of multiple attorneys. We also serve as consultants for criminal defense attorneys on criminal issues specific to the practice of medicine and are available as second-chair attorneys for clients who have already retained a primary criminal defense attorney.
If you are a pain management doctor or pain clinic charged with drug trafficking or prescribing without medical necessity, our criminal defense attorneys can represent you. We are equipped with the knowledge of the pain management guidelines and the standard of care for prescribing various pain medications.
If you are accused of drug diversion, our criminal defense attorneys are able to represent you equipped with real-world practical knowledge about medication administration and documentation.
Additionally, in over 35 years of practice in health law, we have assembled an extensive team of experts with expertise in nearly every area of medicine. Our experts include board-certified pain management doctors, retired DEA drug diversion agents and private investigators. If you are charged with a particularly complex offense requiring an expert opinion or consultation, we can put our experts to work for you.
Our clients include practitioners from Michigan (Detroit, Ann Arbor, Dearborn, Grand Rapids and Troy, as well as other cities), Florida (Miami, Tampa, Jacksonville, Orlando and West Palm Beach and surrounding communities), and major cities including Los Angeles, Chicago, and Washington, D.C.
Put the time-tested experience of an established health law firm to work for you today.