Accused of Diverting Drugs

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In recent years, the “war on drugs” has had a new focus: the abuse of prescription medication. While street drugs remain popular, an influx of new prescription pain medications in the late 1990s helped to fuel an opioid epidemic that killed 50,000 Americans in 2019 alone. It is little wonder, then, that state and federal law enforcement and regulatory agencies have cracked down on the medical professionals who prescribe and have access to these drugs.

Drug diversion is a major problem in the healthcare industry, between patients who doctor shop to obtain prescription drugs and providers who illegally prescribe drugs or steal them for their own use. If you are a doctor, nurse, or other medical professionals who are accused of drug diversion, you may be facing the suspension or revocation of your license plus criminal charges.

There are ways to defend yourself against allegations of drug diversion. An experienced San Diego healthcare license defense attorney can work with you to develop a defense to the charges against you, protecting your ability to work and your freedom. Reach out today to schedule a confidential consultation with attorney Nicole Irmer.

What Is Drug Diversion?

Drug diversion is the illegal distribution or abuse of prescription drugs. It can occur at any time, from initial distribution from the manufacturer to the patient. Healthcare professionals may also be involved in the diversion of prescription drugs, whether for monetary gain, self-medication, to alleviate withdrawal symptoms or for recreational purposes.

Drug diversion can take many forms. When it involves medical professionals such as physicians or nurses, it may involve drug theft, prescription pad theft and forgery, or illicit prescribing. For example, if a doctor writes a prescription for a narcotic without medical necessity or a nurse takes medication from a Pyxis machine, it may be considered drug diversion.

In some cases, drug diversion allegations are the result of a simple error. As with any type of technology, the Pyxis machine can make mistakes, which may lead to a complaint about drug diversion. In these situations, the Pyxis machine can undergo an audit to determine whether there was an error

Most often, drugs with a high potential for abuse are illegally diverted. This may include medications that fall into the following classes: anabolic steroids, central nervous systems depressants, opioids, stimulants, and hallucinogens. 

In some cases, a healthcare professional may be accused of diverting a different type of drug. For example, in 2012, a pharmacy technician was charged with stealing more than $14 million in cancer drugs like Neulasta, and then selling them on the black market.

Allegations of drug diversion are very serious. In many cases, they may lead to state and/or federal criminal charges. A number of law enforcement agencies are involved in the investigation of drug diversion cases, including the Drug Enforcement Agency (DEA), the California Board of Registered Nursing (BRN), the Medical Board of California (MBC), the Federal Bureau of Investigation (FBI), the Department of Justice (DOJ), the Office of the Inspector General for the U.S. Department of Health and Human Services), and California state and local police and prosecutors.

The Investigation Process

If an allegation of drug diversion is referred to the BRN, MBC, or another state licensing board, then the complaint will be reviewed to determine whether further investigation is warranted. Generally, these complaints will be accepted for investigation because drug diversion falls within the boards’ jurisdiction.

A complaint or accusation about drug diversion may be made by almost anyone, including patients, relatives or friends of a patient, employers, co-workers, another treating physician, or even a pharmacist who fills the prescription. The California Department of Public Health also uses a prescription drug monitoring program – the Controlled Substances Utilization Review and Evaluation System (CURES) – to collect data on prescriptions of Schedule II, III, and IV controlled substances for every patient in California. A healthcare professional may be flagged for investigation through CURES based on their prescribing practices.

For example, the MBC may open an investigation into a physician for excessive prescribing of opioids using data from CURES or based on a complaint from a patient’s family member about the amount of drugs that they are being prescribed. Alternatively, if the DEA or another law enforcement agency opens an investigation into drug diversion, they may make a referral to the licensing board for disciplinary action. 

Once the board receives a complaint or allegation about drug diversion, then it will typically start the investigation process by sending a letter to the medical professional informing them that they are under investigation. This letter will inform the licensee of their rights and may also request the disclosure of certain information. At this point, any licensed medical professional should immediately contact a healthcare license defense attorney for advice on how to proceed, as anything that you say to board investigators may be used against you in a criminal investigation.

The board will then review patient records and other evidence to determine if a doctor, physician assistant, nurse, or other healthcare professional has violated California law regarding prescription drugs. In many cases, the investigator will request that the medical professional submits to an “informal” interview with board investigators. If you have received a request for an interview from your licensing board regarding drug diversion, contact experienced legal counsel immediately.

If the licensing board finds that a healthcare provider violated standards of care or the law, they may face an accusation for unprofessional conduct or chemical dependency. They may simultaneously refer the case to the U.S. Attorney’s Office, the district attorney, or the Attorney General’s Office for criminal prosecution.

Possible Charges for Drug Diversion

An Accusation regarding drug diversion will typically be for either unprofessional conduct and/or, in the case of a medical professional who is diverting drugs for their own use, chemical dependency.  A finding of unprofessional conduct or chemical dependency may result in the suspension or revocation of your medical license.

In addition, a federal or state prosecutor may bring criminal charges for drug diversion. If a medical professional is charged with drug diversion, they will likely be facing a lengthy prison term and significant fines.

Potential charges for drug diversion may include:

  • Drug diversion in violation of the federal Controlled Substances Act, punishable by up to 10 years in prison and a fine of up to $250,000 for each offense;
  • Prescription fraud in violation of California’s Uniform Controlled Substances Act, punishable by up to 3 years in jail and a fine of up to $20,000 per violation;
  • Prescribing a controlled substance without treatment is punishable by imprisonment for 1 to 3 years and a maximum fine of $20,000;
  • Prescribing a controlled substance to an addict, punishable by 1 to 3 years in jail and a fine of up to $20,000;
  • Counterfeiting prescription blanks for a controlled substance, punishable by 1 to 3 years in jail and a fine of up to $20,000;
  • Possession of a controlled substance, punishable by up to 1 year in jail and a fine of up to $1,000;
  • Possession of a controlled substance with intent to sell, punishable by up to 5 years in county jail and a fine of up to $20,000; and/or
  • Sale or transportation of a controlled substance, punishable by 3 to 9 years in jail and a fine of up to $20,000.

These types of charges can be career-ending for any medical professional. If you have been accused of diverting drugs or are under investigation for drug diversion, then it is imperative that you reach out to a compassionate San Diego healthcare license defense lawyer as soon as possible. Your attorney will review the allegations against you, investigate the facts of the case, and put together a multi-pronged strategy to protect your rights during a board investigation and any related criminal investigation.

Facing Drug Diversion Allegations? We Can Help.

Being investigated for any violation related to your medical license is scary. When the allegations against you could also result in criminal charges, it can be incredibly overwhelming. At the Law Office of Nicole Irmer, we understand what you’re going through – and we are here to help.

Our law firm is dedicated to helping doctors, nurses, and other medical practitioners who are facing licensing boards and criminal investigations. Because we have significant experience handling both criminal and licensing aspects of these cases, we are able to develop a comprehensive approach that addresses all of the issues that you may be facing.

If you are being investigated for a violation related to drug diversion, it is vital that you get legal counsel as soon as possible. Contact us today at 619-237-6130 or fill out our online contact form to schedule a consultation with a San Diego healthcare license defense attorney.