Formation of Opioid Fraud and Abuse Unit
Opioid fraud and abuse is rampant. Yet, the epidemic demands a collaborative solution fashioned by regulators, medical professionals, professional boards, Congress, U.S. Attorney’s offices, and law enforcement.
As part of these efforts to address the epidemic, Attorney General Jeff Sessions announced the formation of a new Opioid Fraud and Abuse Detection Unit, yesterday to help battle the opioid crisis. As part of the new Unit, prosecutors will be deployed for a 3 year term to specific Districts including:
- Middle District of Florida,
- Eastern District of Michigan,
- Northern District of Alabama,
- Eastern District of Tennessee,
- District of Nevada,
- Eastern District of Kentucky,
- District of Maryland,
- Western District of Pennsylvania,
- Southern District of Ohio,
- Eastern District of California,
- Middle District of North Carolina, and
- Southern District of West Virginia.
Recent Cases
Sessions is not messing around. More and more health care fraud prosecutions and investigations are also targeting health care providers, pharmacies, pharmacists, and sales and marketing professionals related to the prescription, dispensing, or marketing of opioids.
During the 2017 national health care fraud takedown, in Houston, a doctor and clinic owner were accused of a conspiracy to distribute and dispense controlled substances in connection with a purported pain management clinic that is alleged to have been the highest prescribing hydrocodone clinic in Houston, where approximately 60-70 people were seen daily, and were issued medically unnecessary prescriptions for hydrocodone in exchange for approximately $300 cash per visit. In Iowa, 5 individuals in were arrested for distribution of opioids, and in Tennessee, three defendants were charged in a scheme involving fraudulent billings and the distribution of opioids.
In the last year, federal prosecutors in Boston, Miami, and New York obtained indictments against pharmaceutical sales representatives alleging that they received and paid kickbacks in connection with speaker programs promoting Fetanyl sprays (an opioid).
Further, this does not include any of the dozens of compounding pharmacy fraud investigations and prosecutions involving the prescription and dispensing of pain creams containing controlled substances, for example, ketamine.
Unit Driven by Data
What is also interesting about the new Unit is that investigations will rely heavily on data:
“I am announcing a new data analytics program – the Opioid Fraud and Abuse Detection Unit. I have created this unit to focus specifically on opioid-related health care fraud using data to identify and prosecute individuals that are contributing to this opioid epidemic. This sort of data analytics team can tell us important information about prescription opioids—like (1) which physicians are writing opioid prescriptions at a rate that far exceeds their peers; (2) how many of a doctor’s patients died within 60 days of an opioid prescription; (3) the average age of the patients receiving these prescriptions; (4) pharmacies that are dispensing disproportionately large amounts of opioids; and (5) regional hot spots for opioid issues.
Indeed, the Government’s use of data mining has become an indispensable part of its effort to combat health care fraud and drug diversion. Data never tells the whole story though. As an example, a patient may have died within 60 days of a prescription for an opioid from Doctor X but that same patient may have procured diverted opioids on the black market and overdosed. Item (4) will also require a geographical comparison of Pharmacy X to other pharmacies in that area. Who decides what is “disproportionate” though? Another metric, which the Unit will likely incorporate, might be the rate of out of state patients procuring prescriptions from Doctor X and/or the rate of out of prescriptions dispensed by Pharmacy X to out of state patients.
Pre-Trial Diversion Eligibility for Addicts Requiring Recovery and Treatment
It would be a step in the right direction if US Attorney’s Offices in these high volume opioid districts also treated addicts found in possession of opioids with a degree of leniency and offered pre-trial diversion programs contingent on completion of drug recovery programs. Such diversion programs are much more common in state courts but in the District of New Hampshire, for example, which is not included on this list, Oxycontin addicts are potentially eligible for pre-trial diversion. If Sessions really wants to take the lead on this issue, there must be a level of compassion afforded to true addicts. Imprisonment is not the answer.
Pharmacies, Clinics, DEA Registrants, Pain Management Physicians, and Sales and Marketing Professionals
If you regularly prescribe, dispense, or promote medications containing opioids – especially in one of the geographic areas listed as a hot spot region –you should be aware of the formation of Sessions’ new Unit and should take steps to reevaluate and reassess internal controls, auditing, and compliance functions.
Author: Andrew Feldman
Mr. Feldman represents professionals, corporations, health care providers, and health care marketers in government investigations and prosecutions throughout the United States. Mr. Feldman works tirelessly for his clients from the time an investigation begins until the time a jury renders a verdict.
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