DOJ Task Force Begins Prosecuting Physicians Prescribing Hydroxychloroquine in Wake of COVID-19

Ronald W. Chapman @RonChapmanAtty is a healthcare fraud defense attorney specializing in representing healthcare providers facing federal white collar crime allegations. He has successfully represented a significant number of physicians to acquittal on unlawful prescribing and healthcare fraud allegations and investigation dismissals. He is a highly regarded expert in the field and regularly speaks and writes nationally on the topic.

Family Physicians Are Being Prosecuted for Prescribing Hydroxychloroquine to Treat COVID-19

On March 23, 2020 the President signed an executive order to prevent hoarding and price gouging of crucial medical supplies needed to fight coronavirus. The executive order invokes 50 U.S.C. 4512, a rarely used wartime act designed to permit prosecution of hoarders and price gougers. By executive order, the President designated to the Secretary of Health and Human Services the power to create a list of scarce resources. To give full effect to the order, the Department of Justice created a federal task force designed to prosecute hoarders and price gougers. Violators of this law could be subject to prosecution for a federal felony offense and face serious fines and jail time.

While all prescription medications in the United States must be FDA approved as safe and effective for their intended purpose, the FDA cannot and does not regulate the "off-label" prescribing of any particular drug. Pursuant to clearly established Federal Law, any physician can prescribe hydroxychloroquine to treat COVID-19 provided the doctor believes the use of the drug is medically appropriate. The reason for this is that traditionally medical judgment is crucial in advancing the practice of medicine and exploring alternative treatments. As a result, many physicians in the united states began prescribing hydroxychloroquine to patients when it first began to emerge as a possible treatment for COVID-19.

Physicians who prescribed the drug are now facing grand jury subpoenas, investigation, and prosecution for prescribing the drug to patients. The Department of Justice convened a Federal Grand Jury in Jacksonville to investigate and prosecute a family doctor for 20 prescriptions of hydroxychloroquine and has sent grand jury subpoena to dozens of providers who prescribed hydroxychloroquine.

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The striking issue with these DOJ tactics is the ever increasing criminalization of routine prescribing decisions that the Government later disagrees with. Interestingly, despite the existence of federal investigations and prosecutions of physicians the Secretary of Health and Human Services publicly stated "[i]f a doctor wants to prescribe [hydroxychloroquine] working with a patient, they may do that for any purpose they want to. This removes the barrier."

Are You a Provider Facing Scrutiny? Read This Before Considering a Plea

Physicians who prescribed hydroxychloroquine should conduct an internal review of their prescriptions, ensure that their medical decision-making is well documented and prepare their practice for the possibility of federal scrutiny.