War On Opioids: Ten DOJ Tricks Used in Prosecutions Against Doctors and How to Avoid Them
Follow us on twitter: @HealthcareDef
Ron Chapman II, LL.M @RonChapmanAtty is a healthcare defense attorney that specializes in white collar criminal defense and defending government investigations. He is the author of several notable publications on the issue and obtains frequent victories on behalf of his clients.
I have had the opportunity to represent hundreds of healthcare professionals facing scrutiny from the federal government for healthcare fraud and drug trafficking. From this perspective I have been able to see the evolving playbook utilized by the DOJ to prosecute physicians. A playbook that has resulted in resounding success for the DOJ in the courtroom. It is only by knowing this playbook and preparing a trial strategy around the DOJ's litigation strategy that brings success to a healthcare fraud or opioid defense. Here are ten tricks used by the DOJ to convict physicians and other healthcare professionals for charges of healthcare fraud and unlawful prescribing.
1. Lowering the Standard
The Department of Justice (DOJ) and Assistant United States Attorneys (AUSA) often attempt to lower the standard of proof in order to convince a jury that conduct more akin to malpractice is sufficient for a conviction. Attorneys must be weary of such efforts and ensure that any effort to lower the hefty burden of a federal prosecution is met with resistance.
Not long ago a prosecutor approached me with a plea deal for a physician accused of prescribing controlled substances and healthcare fraud. He informed me that he had a great case against the physician and that he should plead guilty to drug trafficking and healthcare fraud. His theory was that the physician failed to check a box on DEA paperwork and was therefore not actually authorized to prescribe schedule II controlled substances. According to his theory, each subsequent prescription was unlawful. Even the most liberal interpretation of Federal law does not support the prosecutor's case. It was evident to me that this prosecutor did not appreciate (or flatly ignored) the applicable legal standard to prove unlawful prescribing.
In order to be convicted of unlawful prescribing the Government must prove that the physician prescribed "for other than a legitimate medical purpose outside the course of professional practice". Likewise, in order to be convicted of healthcare fraud, the Government must prove that a physician devised and executed a scheme or artifice to defraud a federal healthcare program and that the physician knowingly billed a federal healthcare program in a fraudulent manner (i.e. upcodng, unbundling, billing for services not rendered). These standards essentially require that the physician knowingly engaged in criminal conduct. Violation of a regulation is not sufficient, nor is carelessness, recklessness or malpractice. If juries truly understand and apply the standard, it is much more difficult to convict a defendant. The majority of the trial must be spent on indoctrinating the jury to understand the applicable legal standard. It must be mentioned often, in opening statement, during the expert's testimony and during closing argument.
2. Improper Use of Statistical Data - "statistical profiling"
Profile evidence is the use of data to show that a particular defendant fits the "profile" of a criminal and therefore is in fact a criminal. It has been used in gang prosecutions but later subject to harsh rebuke by appellate courts. Profile evidence is inherently a fallacy and only as probative of criminal conduct as the assumptions of criminality used to generate the data.
Healthcare fraud and unlawful prescribing prosecutions generally begin with an analysis of data. The DOJ will determine that the physician is the #1 prescriber of oxycodone in his or her state or has preformed more procedures than any other physician in the state. The DOJ may introduce PDMP data to show the volume of prescribing relative to a physician's peers.
Such data must be met at trial with an emphasis on individual patient care. This includes calling real patients as witnesses to have them testify to their experiences with the physician defendant. Moreover, if the physician and his or her counsel have the capability, additional data sets should be created and introduced that show that the physician is not an outlier in other areas. For instance, the provider may be the highest prescriber of oxycodone in the state but he or she may also be a high prescriber of NSAIDS and other treatments, suggesting that the oxycodone number was a function of volume and not improper treatment.
3. Use of "Red Flag Evidence"
The DEA has historically used red flags during investigations of physicians. These red flags are widely known in the medical community. Some red flags include: asking for drugs by name, doctor shopping, showing up in groups, traveling long distances for treatment. The DEA typically has an undercover DEA agent or informant pose as a patient and exhibit several red flags to determine if the physician will prescribe. In a healthcare fraud investigation, the undercover agent will attend an office appointment to determine if the physician actually preformed the visit that he or she billed for. The issue with "red flags" is that they are also signs of completely legitimate patients as well.
The use of "red flag" evidence must be met with a motion to exclude "red flag evidence" on the basis that it is improper profiling evidence and not based on any scientific or reliable methodology.
4. Conflating Medicare Regulations
Medicare and medicaid regulations are detailed and complex. Many regulations are so complicated that professionals with healthcare compliance degrees still struggle to understand them. In healthcare fraud and opioid prosecutions the Government uses healthcare regulations such as Medicare rules and guidelines to create a heightened standard of care. The government argues that the physician should have known about the regulations and violating the regulation is flagrant disregard for the rules that the health professional agreed to follow when he or she signed the 855I (Medicare enrollment document). However, courts often permit a jury instruction to be read to the jury clarifying that violation of a medicare rule or regulation is not a criminal offense. This instruction must be pursued and used to indoctrinate the jury.
5. "The Early Bird Gets the Worm"
Typically, prosecutors extend me a plea offer early in the case before I have had sufficient time to investigate. Prosecutors usually provide a deadline for the offer and inform me that my client better accept this plea agreement before the arbitrary deadline imposed by the prosecutors. Prosecutors claim that the first person to accept a plea deal will get the best deal because he or she can testify against co-defendants in the case and receive a reduced sentence due to the US Sentencing Guidelines over emphasis on reduced sentences for cooperating defendants.
However, throwing important fundamental rights away simply to secure a rushed deal before fully analyzing the criminal case is a reckless strategy. If a prosecutor gives me a timeline to accept a deal, I commonly ask them to provide me sufficient data to analyze the Government's case and the evidence against my client in order to determine if it is a good deal or if I have sufficient defenses to begin trial preparation. Often we forgo the initial plea offer only to receive better offers as we near trial. I can recall a specific case where the Government offered me a sentence of probation and a plea to a misdemeanor literally on the courthouse steps right before a long jury trial was set to begin. My client declined the offer and we were victorious at trial.
6. Conceal Patient Sample to use at Trial
When charging a healthcare fraud or drug trafficking case against a physician or other healthcare provider, the Government often casts a wide net wording the charges as broadly as possible to include as many interpretations of fraudulent conduct as possible. It is important to spend significant energy during the pre-trial motions phase to limit the scope of the prosecution as much as possible. Defense counsel can file a motion for a bill of particulars specifically detailing the alleged wrongful conduct or request discovery on the specific executions of healthcare fraud alleged. Defense counsel should request expert disclosure deadlines and discovery deadlines in order to ensure the ability to review evidence sufficiently before trial to prepare a defense. Defense counsel must prevent the government from entering a trial with the ability to pluck any number of patients, medicare bills, and prescriptions and conduct a trial by surprise.
7. Pre-trial Seizure of Assets
Prosecutors know that financial stress causes defendants to plea. This is typically why the Government will go through great lengths to freeze and seize assets prior to the initiation of a prosecution. This forces many defendants to forgo representation by skilled defense attorneys who are experts in their field in favor of a court appointed attorney who accepts a wide manner of cases. While public defenders are often skilled litigants, lack of funding for experts, investigators, and trial resources prevent even public defenders from engaging in a robust defense of an accused health professional.
The only way to prevent the Government from infringing on a healthcare defendant's sixth amendment right to choose his or her defense counsel with his or her funds is to obtain counsel before the initiation of an indictment. Defendants must, at the earliest sign of government involvement, obtain counsel and ensure that a sufficient amount to withstand a healthcare fraud investigation and trial is available to counsel.
8. Inaccurate Witness Statements
I have read thousands of witness statements during my career and the majority stretched the facts so thin they were not capable of being relied upon to determine my client's trial posture. Government investigator statements such as FBI 302 statements and DEA 6 statements are drafted by law enforcement who generally have an inherent bias towards criminality. To the greatest extent possible, all witnesses must be interviewed by defense counsel and/or a defense investigator. Counsel and clients should not rely on governments statements when determining the facts in the case, information must be independently verified.
9. The DEA Voluntary Surrender Ploy
I routinely receive calls from physicians whose offices have just been the subject of a DEA raid. The physician explains to me that during the raid the DEA requested that he "voluntarily surrender" his DEA registration as a "show of good faith". The DEA calmly explains that all the physician must do is re-apply to get it back. Unfortunately, this is false information. Re-application can take years and the DEA is not required to give the registration back, the physician's best change of remaining employed while dealing with a costly and stressful legal battle is to decline voluntary surrender and request the assistance of an attorney.
The reason the DEA attempts to coerce physicians into voluntary surrender is because relieving a doctor of his or her DEA registration is a very time consuming and laborious process for the DEA. There are too many doctors targeted by the DEA an not enough DEA attorneys and administrative law judges to deal with the existing backlog of cases. If the physician described above responds with a simple "no thanks", he or she will likely be able to continue to prescribe during the pending criminal case subject only to any district court pre-trial release restrictions.
10. Flipping Patients and Flipping Office Staff
Routinely, during a raid or during the investigation of a physician, the Government attempts to "flip" patients and office staff against a physician. This is done by offering sweetheart plea deals in exchange for witness testimony or by targeting patients with a prior criminal history who fear harsh federal sentences. Patients and office staff must be interviewed as early in the case as possible to ensure that their statements are "locked in" at the beginning of the case or during a pre-indictment internal investigation. This will ensure that defense counsel can preserve the truth before the Government begins making promises to witnesses.
Ron Chapman II, LL.M@RonChapmanAtty is a healthcare defense that specializes in white collar criminal defense and defending government investigations. He is the author of several notable publications on the issue and obtains frequent victories on behalf of his clients.