Our criminal defense attorney represent healthcare providers nationwide in federal cases that involve the unlawful prescribing, or dispensing of drugs. We regularly help licensed healthcare professionals, such as doctors, pharmacists, dentists, veterinarians, and other mid-level professionals, accused of unlawful prescribing, or dispensing, of a controlled substance. Defense of healthcare professionals is complex, due to the various federal and state statute, regulations, and the number of agencies involved. In addition to the criminal case, you could also face a civil and administrative proceeding which can result in penalties and sanctions, in addition to the criminal charges. Many states will exclude you from practicing medicine, or from billing medicare/medicaid, if you’re convicted of a criminal offense.
It’s crucial you speak to an established, and competent, law firm, who understands how to handle the criminal defense and license defense, associated with your situation. Prescription drug abuse is recognized the fastest growing drug problem. Fatal overdoses from prescription drugs is over 10,000 deaths per year. As a result, physicians are under increased pressure to reduce the prescription of narcotics while adhering to an acceptable standard of care. Many physicians and attorneys understand that the regulatory framework is complex, few understand how to create a credible defense in the event their standard of care is constituted as a criminal departure from what’s acceptable. State and federal guidelines diverge on this issue, and as a result, there’s a huge divergence in terms of complexity. The sanctions are severe, and can include revocation of both state and DEA licenses, in addition to thousands of dollars of fines, and jail time.
When accused of drug trafficking, a practicioner has to prove that he/she acted within the scope of their practice, and prescribed controlled substances for legitimate and professionally recognized therapeutic purposes. You are required, as a healthcare provider, to not dispense, prescribe, or administer, a substance for other than legitimate and professional purpose. As a result, you could be exempt from criminal prosecution in a drug diversion case, as long as you were acting within the scope of standard care. You are required to act in good faith, when prescribing or dispensing a controlled substance in the regular course of professional treatment you’re providing, or to individuals who are under your treatment for a condition that requires the prescription.
If you deviate from accepted standards, and engage in illicit activities, you could face criminal penalties, including jail time. In addition, you can face licensing sanctions from your state pharmacy, medical, dental, or veterinary board, in addition to other boards who will simultaneously file state criminal sanctions against you. It’s crucial that healthcare professionals speak to an attorney whose qualified, and can handle both the professional license defense and criminal defense against them. In addition to the state charges, you could face federal charges/administrative action by the DEA pursuant to the Controlled Substances Act.
You can lose DEA privileges even if you’re acquitted
Title 21, USC Controlled Substances Act
As a result of this act, you can lose your DEA privileges even if you are acquitted in a criminal court. Created in 1970, this act combats drug abuse and helps control legitimate and illegitimate trafficking of controlled substances. Only licensed practitioners who are registered with the DEA are authorized to prescribe controlled substances listed in Schedule II-V to patients. They can only be prescribed when a practitioners acting in the legitimate course of treatment to his patient. The CSA authorizes the DEA to suspend, or revoke, a physician’s prescription privileges if it’s determined that she/he has committed acts which would render the registration inconsistent with the public interest. It’s important to realize this is a much lower standard than that which is applied to criminal cases. As a result, you can be found not-guilty in a criminal case, yet still lose your privilege. That’s why it’s crucial to hire the best possible attorney to handle your case.
When deciding if a practicioner’s registration is in the public interest, the attorney general will look at the recommendation of the state licensing board/professional disciplinary authority, in addition to the applicant’s experience in dispensing, and the applicant’s conviction regard, the healthcare providers compliance with state/federal laws, in addition to other conduct which could threaten the public’s health and safety.
In order to avoid criminal prosecution due to violation of the CSA, a physician has to act in the usual course of his professional practice, and has to conduct himself in pursuit of a legitimate medical purpose. Federal regulations typically have little to no interpretation when it comes to “legitimate medical purpose.” The standards can be narrowed, depending on the state statutes. The USA Supreme Court has taken an approach that mirrors the CSA. It mentions that registered physicians can be prosecuted under the CSA if/when their activities fall outside the course of professional practice.
Due to the vague wording, many legal challenges have been made but unsuccessful. In the absence of any clear guidance, the Sixth Circuit Court of appeals endorsed a pre-established list of prohibited acts. Good faith, as a standard, has been used in the context which means good intentions, and an honest exercise of a providers judgement as to the patient’s medical needs. For example, here are a list of things they’ll look at:
- Whether physical exams are conducted first
- Whether tests are conducted
- Is the dosage of the narcotics regulated
- Is there a term and method of payment
- If a complete medical history was taken first
- Whether informed consent was given
- Whether the prescriptions were issued for one person, and used for another
- Admission by patient that drugs would be used for nonmedical reasons
- Falsification of patient records
- Number of prescriptions that are given in a short period of time.
This is just a short list of the factors the 6th Circuit Court of Appeals uses to determine whether or not a physician has acted in good faith. Healthcare providers can, and will, face significant penalties when they step outside of these blurry lines. It’s crucial physicians monitor their prescription habits, and when needed seek the counsel of an attorney who can help ensure their actions adhere and comply with statute and regulations.