The War on Opioids: Inside Appalachia's Opioid Task Force

By Ronald Chapman, LL.M. @RonChapmanAtty

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What is the ARPO?

Following a US Department of Health and Human Services report regarding opioid use in the Appalachian Region, the Department of Justice (DOJ) announced the creation of a new multi-agency task force: The Appalachian Regional Prescription Opioid Strike Force.

The ARPO is a multi-agency task force comprised of agents and prosecutors from:

• The Department of Justice

• Eastern District of Kentucky

• Western District of Kentucky

• Southern District of Ohio

• Western District of Virginia

• Northern District of West Virginia

• Southern District of West Virginia

• Eastern District of Tennessee

• Middle District of Tennessee

• Western District of Tennessee

• Northern District of Alabama

• Western District of Alabama

• the FBI Cyber Response and Services Branch

• Health and Human Services

• DEA Diversion Control

• Center for Medicare and Medicaid Services

What is its Mission?

The ARPO is tasked with enforcing Federal Controlled Substance and Healthcare Fraud laws and regulations in Alabama, Ohio, West Virginia, Virginia, Kentucky, Pennsylvania, and Tennessee. In its report HHS claims that 48,584 pain patients in 5 states received high amounts of opioids that exceeded (the now hotly contested) CDC guidelines. The report claims that the amount of pain medication prescribed to Medicare beneficiaries above the CDC "guideline levels" raises concern. The report concludes that there is a hotspot of unlawful opiate prescribing in five states far exceed the national average. The report recommends that the Department of Health and Human Service strengthens public health surveillance, target the availability of "overdose-reversing drugs" and work with law enforcement to take down "pill mills" and illicit controlled substance prescribing.

The ARPO's stated mission is to:

"identify and investigate health care fraud schemes in the Appalachian region and surrounding areas, and to effectively and efficiently prosecute medical professionals and others involved in the illegal prescription and distribution of opioids"

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Are you defending charges of illicit prescribing? Read this before accepting a plea agreement. You may think twice.

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How Does it Prosecute Cases?

The ARPO strike force is continuing to grow and will continue to aggressively target pain management physicians and pharmacists for prosecution. Typically investigations begin either by information from an informant who may be a patient treated by the practice or based on a statistical review of prescribing habits.

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For more information about the use of statistical data in healthcare fraud and opiate prescribing prosecutions - read this article by the same author

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Typically, agents from HHS and the FBI review statistical data related to Medicare Part D billing information or state prescription drug monitoring data to determine if a physician is prescribing above the (hotly contested) CDC guidelines. If law enforcement determines that there is sufficient information to move forward with an investigation, law enforcement may attempt undercover visits or interviews of patients who have prior interaction with law enforcement or are on probation.

An undercover visit will typically be preformed by either an undercover agent (DEA, FBI, or HHS) posing as a patient or a patient who has experience as an informant - usually called a Confidential Informant. This informant will try to exhibit many "red flags" that the DEA believes should make a physician or pharmacist cautious about dispensing or prescribing. Many times, the undercover will indicate legitimate pain such as low back pain or neck pain. However, the DEA and prosecutors believe that even if a patient exhibits such pain, a physician should not dispense if there are a sufficient amount of "red flags present".

DEA "Red Flags"

• Cash only

• Patients traveling from out of state

• High proportion of Schedule II controlled substance

• Physician operating outside of his "scope of practice"

• Pre-signed prescriptions

• Lack of Board Certification

• Arrives in a group

• Arrives with family members

• Doctor shopping

• Requests drugs by name

• Claims allergies to non-opioid alternatives

• Requests high doses of pain medications

Obviously, many of the "red flags" listed above are shared by illicit and genuine pain patients alike. Moreover, the list of "red flags" was not created by any peer reviewed medical study but rather is a list solely compiled by law enforcement.

If a physician issues a prescription for a controlled substance in the face of "red flags" the ARPO will continue to investigate compiling both statistical and surveillance data to make a case that the physician and practice is engaged in a conspiracy to distribute controlled substance. The task force has the ability to, among other things, wiretap phones, conduct electronic surveillance, mine data, interrogate patients, send subpoenas for medical records and execute search warrants.

If the ARPO believes sufficient evidence exists to determine that a violation of Federal law, such as healthcare fraud or unlawful distribution, it will take the case to a prosecutor and obtain an indictment. The ARPO typically charges physicians and pharmacists with the following charges:

21 U.S.C. 841 (unlawful prescribing)

21 U.S.C. 846 (controlled substance conspiracy)

18 U.S.C. 1347 (healthcare fraud)

18 U.S.C. 1349 (healthcare fraud)

What Should You Do if You Are Targeted by the ARPO?

Attorney Ronald W. Chapman II is a healthcare defense attorney and defends physicians against the the DOJ and ARPO. He has obtained acquittals of physicians prosecuted by the ARPO. If you are defending allegations of healthcare fraud or unlawful prescribing brought by the ARPO contact Ronald W. Chapman II, LL.M. for a free consultation or second opinion today.