In The War Against Opioid Prescriptions, Health Care Providers Should Know Their Rights

What Happened?

In the past several years, the prescription and distribution of opioids have been increasingly scrutinized by federal and state law enforcement agencies, insurance companies, the media and the medical profession itself. The Department of Justice (DOJ) is using everything in its toolbox to fight the opioids crisis – from criminally prosecuting low level drug dealers to prosecuting medical professionals for prescribing pain killers. Numerous grand jury indictments have been presented charging physicians, nurses, pharmacists, and others in the industry with distribution of narcotics, conspiracy, health care fraud, mail fraud, bribery, anti-kickback laws, RICO and other related charges. In addition to the aggressive criminal prosecutions, in its latest intervention, the Department of Justice filed a motion to participate in settlement discussions in civil litigation filed by numerous cities and counties in the United States against drug manufacturers and distributors. It seeks to provide expertise to the court and help craft non-monetary remedies to fight the opioid epidemic.

In addition to DOJ’s aggressive prosecutions, the Center for Medicare and Medicaid (CMS), who is Medicare and Medicaid’s watchdog, has been heavily criticized for its lack of supervision over the prescriptions of opioids under the Medicare and Medicaid programs. On May 29, 2018 U.S. Senator Pat Toomey, who chairs the U.S. Senate Committee on Finance’s Subcommittee on Health Care, convened a hearing in Bensalem, PA where a number of health care professionals and government personnel testified about Medicare and Medicaid’s oversight, or lack of oversight, over opioid prescription. Testimony revealed that CMS failed to identify more than 90 percent of patients who were at risk for addiction. It should be expected that CMS will be more diligent in their supervision of the Medicare Part D and Medicaid and refer more cases of suspected fraud or abuse to the Department of Justice for criminal enforcement. 

What to do if law enforcement comes knocking at your door

With the increase in criminal, civil and administrative enforcement, medical professionals need to understand their rights in case of an investigation. There are many ways a medical provider who has become a “target” or “suspect” of an investigation learns of an ongoing investigation. He or she may hear from a third party that law enforcement officers, such as the FBI or DEA, have been visiting the medical provider’s employees or business associates and inquiring about his or her business practices. He or she may hear from the Medical Board about an investigation. In some instances, law enforcement may make a surprise “friendly” visit to the medical provider’s office or home. Other times, law enforcement may arrive at the medical provider’s office or home with a platoon of agents and armed with a search warrant. Many times when search warrants are executed, the information is leaked to the press and targets of investigations find themselves on the six o’clock news.

If you learn of an investigation – don’t panic. Contact an attorney who has experience with government enforcement actions and who can adequately advise you. If law enforcement agents pay you a “friendly” visit, please remember that they have a purpose to that visit. They want information that they may use against you at a later date. You should politely thank them for their visit, ask for their business cards and tell them that your attorney will contact them. They may try to convince you to speak to them by telling you that you have nothing to worry about. Again, be polite and tell them that your attorney will be calling them. You do not have to speak to them.

If law enforcement arrives with a search warrant, read the warrant and make sure it is for your premises. Once you have determined that the search warrant is accurate, allow them to enter and conduct the search. You are not required to speak to them. Advise them that you would like to contact your attorney. Some agents will allow you to use the phone. If so, contact your attorney immediately and he/she should instruct you on what to do. If your attorney does not practice in the area of federal criminal law, or if the agents do not allow you to call an attorney, advise the agents that any questions they may have will be handled by your attorney at a later date. Again, take their contact information and allow them to conduct the search.

The Take Away

You may not be present when the government comes knocking at your door with a search warrant or stops by for a “friendly visit”. Have a plan of action for your employees to follow. Your staff should be trained on that plan. Information gathered by government officials at any meetings with you, your employees or family members can serve as a weapon against you. Being well informed of your rights and knowing what to do in case you are a target or subject of an investigation will protect you from overzealous prosecution.