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Nicole Irmer | Posted in Licensing Defense,News on February 5, 2020
The scourge of opioid addiction and the skyrocketing rate of opioid overdoses across the country have fueled a wave of criminal prosecutions and disciplinary actions against medical practitioners who prescribe these drugs. While prosecuting and/or disciplining those who prescribe opioids criminally or negligently is a laudable goal, too often, innocent healthcare providers are ensnared in the rush to stop the opioid epidemic. You just read our excessive opioid investigation FAQ.
Opioid investigations are often complex. Many involve a two-prong process involving both the criminal justice system and a licensing board. It is unsurprising that physicians, dentists, nurse practitioners, physician assistants, and pharmacists have questions about these investigations — as well as how to avoid them.
Below, we have answered the most frequently asked questions that medical professionals have about opioid investigations. If you have additional concerns that are not addressed here, please contact our office at 619-237-6130 or online to arrange a consultation.
An investigation into an opioid-related charge can be triggered by a number of events. Complaints to the Medical Board of California (MBC) may be submitted by a patient, a relative or friend of the patient who is concerned about opioid use, an employer or co-worker, another physician who treats the patient, or a pharmacist who fills these prescription drugs.
In addition, the MBC and the California Department of Public Health use a prescription drug monitoring program that tracks all Schedule II, III and IV controlled substances dispensed in California. The Controlled Substance Utilization Review and Evaluation System (CURES) collects data on prescriptions for drugs such as opioid pain medications for every patient in California in order to reduce substance abuse and doctor shopping. Participation in CURES is mandatory for all prescribers and dispensers with a Drug Enforcement Agency (DEA) registration certificate.
Under California law, information stored in CURES is available to state, local and federal public agencies as well as law enforcement and regulatory boards. This data may be used for disciplinary, civil or criminal purposes. A healthcare professional may be flagged for investigation through CURES for excessive or fraudulent prescribing of opioids.
A separate program, the Death Certificate Project (“DPC”) may also result in an investigation into a physician or other medical practitioner. Through the DPC, the Department of Public Health and the MBC analyze all individuals who died of an opioid overdose (or another form of drug overdose deaths). Using data from CURES, any prescriber who ordered opioids or other controlled substances for the individual in the 3 years preceding their death may be investigated.
In addition, if the United States Drug Enforcement Agency (DEA) investigates healthcare professionals licensed by the MBC for excessive or fraudulent prescribing, they may refer the matter to the Board for disciplinary action. The Board will then typically open its own investigation, which may result in the filing of formal charges (an Accusation) against the prescriber.
After the Board receives a complaint or other information about a licensee allegedly violating California law with regard to opioid prescriptions, the investigation process will begin. Typically, the inquiry will start with a letter from the MBC informing the physician that they are under investigation for excessive prescribing or another type of misconduct. The letter will request that the licensee produce certified medical records; however, this request must include a patient signed authorization for release of records. Additionally, the notice will inform the physician that a failure to cooperate may result in sanctions. It is important to note that the MBC investigator may have the authority to obtain a subpoena and/or warrant, if necessary. As such, it is best to discuss with counsel, the best strategy for document production.
The MBC will then review patient records and other documentation to determine if a doctor has violated California law on excessive prescribing or fraudulent prescriptions. For excessive prescribing cases, the physician’s conduct will be measured against the standards of practice for other licensees in the community (such as pain specialists or palliative care specialists). During this process, the investigator will request that the physician submits to an “informal,” interview, however, given the presence of a law enforcement officer, medical expert, and potentially a Deputy Attorney General – the interview is not informal, and the doctor should consult legal counsel. You can learn more about the investigation/interview process, here. If the professional is found to have violated these standards of medical care, they may face an Accusation for unprofessional conduct.
If the Board believes that a crime has occurred, then the case will be referred to the District Attorney Office or the US Attorney’s Office for potential prosecution. Otherwise, the complaint may be resolved through a stipulated settlement or at an administrative hearing. More information about the complaint, investigation and disciplinary process is available here.
If you are charged with a crime related to prescribing opioids, you may be imprisoned if you are convicted at either the state or federal level. The likelihood of going to jail or prison will depend on the specific facts of the case and the criminal charges.
Excessive prescribing is a misdemeanor crime under California law. It is punishable by a fine of up to $600 and/or imprisonment for a term of between 60 and 180 days.
Fraudulent prescriptions may be charged as either a felony or a misdemeanor If convicted of felony prescription fraud, you may be jailed for up to three years and/or issued a fine of up to $20,000. Misdemeanor prescription fraud is punishable by imprisonment for up to one year and/or a maximum fine of $1,000.
Federal criminal charges for drug conspiracy have the most serious consequences. Depending on the type and amount of drugs involved and the number of charges, you could be sentenced to anywhere from five years to life in federal prison. In addition, you may be fined in the amount of $1,000,000 to $75,000,000.
Any complaint related to opioid prescribing has the potential to lead to significant disciplinary action by the MBC. This may include the revocation of your license.
For excessive prescribing or prescribing without an appropriate prior examination, the MBC’s disciplinary guide mandates a minimum penalty of stayed revocation with 5 years probation and a maximum penalty of revocation. For probation, conditions may include:
If a physician is convicted of a crime related to their prescribing practices, they will face additional penalties from the MBC. The maximum penalty is revocation.
Given the severity of the potential disciplinary sanctions for complaints related to opioids, it is vital that anyone accused of this type of conduct consult with a skilled lawyer to advise them of the possible defenses available.
Yes. If you are under investigation by the DEA, the agency may report the allegations against you to the MBC. Because a DEA investigation may lead to federal criminal charges as well as disciplinary action by the Board, you should consult with a healthcare license defense attorney who can counsel you on such matters.
Yes. While drug conspiracy charges were traditionally used to target individuals who trafficked illicit drugs, both the federal and state government are now using these laws to crack down on doctors and other healthcare professionals who excessively or fraudulently prescribe opioids. This is done with the goal of addressing the opioid crisis.
The federal Department of Justice (DOJ) is aggressively pursuing prescribers of opioids in an attempt to stop drug abuse Healthcare professionals may be charged with drug conspiracy in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846.
Section 841(a)(1) makes it a crime to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance. The penalty for this crime depends on the type and amount of substance involved and ranges from 5 to 10 years to life in prison. Anyone convicted of this criminal offense is subject to a steep penalty of between $1,000,000 and $75,000,000.
Subsection 846 criminalizes any attempt or conspiracy to commit a drug-related offense under federal law. The penalties for attempt or conspiracy are the same as for the underlying crime.
In November 2019, a federal grand jury indicted a Monterey County doctor for his role in a conspiracy to acquire and distribute oxycodone and hydrocodone. The physician allegedly traded opioid prescriptions for cash. Over the course of several years, these prescriptions led to pharmacists dispensing more than 452,000 opioid pills without a medical basis to do so.
A pill mill is a term used to describe healthcare clinics or medical practices that account for disproportionately high volumes of opioid and other controlled substance prescriptions. It is often used anytime that a doctor’s office or clinic is accused of distributing painkillers without a legitimate medical purpose or in a quantity that far exceeds what is typical for the type and size of the practice. The DEA, FBI, and state law enforcement agencies have focused on prosecuting doctors who run pill mills.
In determining whether a doctor’s office or healthcare clinic is a pill mill, law enforcement agencies look for several red flags. These include:
While a doctor may be overprescribing opioids or fraudulently prescribing these drugs, in many cases, the prescriptions are written for a legitimate medical purpose. If you are concerned about the potential for law enforcement or Board investigation of your prescribing practices, there are several steps the physician should take to prepare for potential disciplinary action and/or investigation with the MBC. You can read more about avoiding an opioid investigation here.
Under California Health and Safety Code Section 11153, it is a crime for a medical professional to commit prescription fraud. This crime occurs whenever a medical professional knowingly writes a prescription for a controlled substance that is not issued for a legitimate medical purpose or is not issued in the usual course of their professional practice. A controlled substance includes opioids such as Percocet, Vicodin, Oxycontin, Adderall, and Benzodiazepines.
Prescription fraud is a wobbler offense, which means that it can be charged as either a misdemeanor or a felony based on the accused’s criminal history and the facts of the case. A conviction for misdemeanor prescription fraud is punishable by imprisonment for up to one year, and/or a fine of up to $1,000. A felony conviction may lead to imprisonment for up to three years, and/or a fine of up to $20,000.
There are a number of possible defenses to a charge of prescription fraud. For example, because the law requires that a healthcare professional act knowingly in writing a fraudulent prescription, a California healthcare license defense attorney may argue that they did not have knowledge that the prescription was fraudulent. For example, if a patient convincingly fakes an injury and the doctor prescribes the opioid to treat that patient, it may be a defense to a charge of prescription fraud.
Whether or not to plead guilty to an offense should be discussed and carefully evaluated with an experienced attorney familiar with your matter. Entering such a plea may lead to a range of consequences beyond whatever sentence a court may hand down. For this reason, you should consult with a California healthcare license defense attorney before making a decision about pleading to a criminal charge.
Pleading guilty may seem like the best option to resolve a criminal charge against you. However, a conviction for excessive prescribing or other opioid-related offenses will likely result in disciplinary action by the MBC as well as initiate other employment ramifications — including possible revocation of your license, exclusion from insurance and Medicare Providers Lists, or the loss of credentialing and/or privileges. An experienced lawyer can thoroughly review the facts of the case and advise you of your options so that you can make an informed decision.
The MBC has issued guidelines for medical professionals who prescribe opioid drugs. This document outlines the steps that a doctor should take before prescribing pain pills as well as the recommended use of opioids in different scenarios.
Under the guidelines, physicians and other healthcare professionals who prescribe opioids should implement pain management agreements for certain patients, including those who are expected to require more than three months of prescription opioids. These agreements address the responsibilities of both the patient and the prescriber.
There are a number of responsibilities that a patient should agree to before opioids are prescribed on anything other than a limited basis. This includes:
If a patient violates this agreement or is otherwise non-compliant, a medical professional should consider discharging them. Failing to do so — and continuing to prescribe opioids to this patient — may demonstrate that you have not complied with the standards of care for your community of licensees. However, before discontinuing medical services, proper steps must be done to properly ensure that the patient is not considered abandoned. Patient abandonment and improper termination of medical services may warrant additional sanctions from the MBC.
Under both state and federal law, the government can seize your property if there is an allegation that the property was either used in committing a crime or was obtained through criminal activity. Asset forfeiture laws can be used to seize many kinds of property, including money, houses, and vehicles. Most California asset forfeitures are connected to drug crimes.
For most criminal cases, California law provides that asset forfeiture can only occur once an individual has been convicted of a criminal offense. However, the government can seize property without a conviction. Ownership of the property will pass to the government once an individual is convicted of a crime.
The federal government may also seize assets that were used to facilitate federal crimes or represent the proceeds of such crime. The federal asset forfeiture program includes criminal forfeiture, civil judicial forfeiture, and administrative forfeiture.
If you are the subject of an investigation into an opioid-related charge, whether it involves criminal activity or a disciplinary complaint, you should consult with a California healthcare license defense attorney with experience in criminal law as soon as possible. These allegations can lead to a number of life-changing consequences, including jail time, steep fines, the loss of your medical license, the loss of your practice, inclusion on insurance/Medicare exclusion lists, loss of hospital privileges, etc. The sooner that you consult with a lawyer, the better able you will be to plan your defense.
There are a number of possible defense to an accusation that you have excessively or fraudulently prescribed opioids or engaged in other conduct (such as drug conspiracy) related to opioids. The specific defense will depend on the charge or complaint at issue and the facts of the case. The most important step for anyone accused of an opioid-related charge is to contact an attorney as soon as possible.
Possible defenses to opioid-related charges may include:
Because of rising rates of drug addiction and opioid misuse, these types of cases are prosecuted by both law enforcement and the MBC in a more aggressive manner than ever before. Acting quickly to secure legal representation can help to protect your license, livelihood, and freedom.
At the Law Office of Nicole Irmer, we pride ourselves on our compassionate, skilled advocacy on behalf of healthcare professionals. We represent doctors and other medical practitioners in criminal court and before licensing boards. Because we have experience handling all aspects of these cases, we can put together a comprehensive legal strategy that addresses both facets of an opioid-related charge.
If you are being investigated for a violation related to opioid prescribing, time is of the essence. Contact us today at 619-237-6130 or online to schedule a consultation with a San Diego healthcare license defense attorney.