How Many Medical Providers Could Be Prosecuted Until 2020
The question is not how many the government charged. It is how many the government could have charged. The distinction reveals the enforcement apparatus’s capacity and the practitioner population that remained within its reach as the investigations continued through 2020.
The population of medical providers who were potential subjects of federal opioid prosecution in the years leading to 2020 was substantially larger than the population actually charged. The government’s enforcement capacity, though significantly expanded through the HEAT task force, the DEA’s Tactical Diversion Squads, and increased congressional appropriations, was not unlimited, and the prioritization of cases within the universe of anomalous prescribers necessarily left a significant number of practitioners under investigation but not yet charged as the decade concluded.
The Scale of the Prescriber Population Under Scrutiny
The DEA’s PDMP analytics and the OIG’s Medicare billing data identified a prescriber population significantly larger than the one the government could investigate and prosecute within any given enforcement cycle. Studies of Medicare prescribing data published by the Department of Health and Human Services and by independent researchers during this period identified thousands of practitioners whose prescribing patterns were statistical outliers relative to their specialty peers, whose patients had disproportionate rates of controlled substance misuse indicators, or whose billing patterns were inconsistent with the clinical documentation requirements for the services billed.
The identification of a practitioner as a statistical outlier did not automatically result in investigation, and investigation did not automatically result in prosecution. The government’s enforcement decisions reflected a prioritization process that concentrated resources on the most egregious cases, the highest-volume prescribers, the most significant public health impacts, and the cases with the most clearly established criminal intent.
The Impact of the Opioid Crisis’s Geographic Spread
As the opioid crisis spread geographically through the late 2010s, the prescriber population under potential federal scrutiny expanded accordingly. States that had not previously been prominent in opioid enforcement activity developed prescribing patterns that generated PDMP flags and OIG billing anomalies. The DEA’s field divisions in those states received the investigative resources and priorities that the crisis’s spread warranted, extending the enforcement geography beyond the Appalachian and Florida pill mill concentrations that had defined the earlier enforcement period.
The SUPPORT Act and Enhanced Enforcement Authority
The Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act, enacted in October 2018, provided additional enforcement tools and funding specifically directed at opioid fraud. The SUPPORT Act enhanced the civil monetary penalty authorities applicable to opioid prescribing fraud, funded additional DEA diversion investigators, and expanded the OIG’s authority to exclude practitioners from federal healthcare programs in connection with opioid-related conduct.
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(212) 300-5196The enhanced enforcement authorities provided by the SUPPORT Act positioned the federal government to address a larger share of the anomalous prescribing population in the years following its enactment. The practitioners who remained within the scrutinized population as of 2020 were practitioners who had survived the earlier enforcement wave but who faced an enforcement apparatus that had been strengthened specifically to address the population they represented.
The enforcement cycle that produced the 2018 announcement and that continued through 2020 did not conclude when the public announcements suggested it had. The investigations that were open as of 2020, some of which had been underway for years, continued to develop toward charging decisions that would be announced in subsequent years. A practitioner who received no government contact through 2020 but whose prescribing data had generated flags in the preceding years was not a practitioner whose exposure had expired. The statute of limitations provided the only reliable deadline.
Looking Forward From 2020
The enforcement environment that existed through 2020 was an enforcement environment in active development, not one that had reached its peak or begun to recede. The COVID-19 pandemic created both a temporary disruption in some enforcement activities and a new category of healthcare fraud cases, including PPP loan fraud and COVID-19 treatment fraud cases that occupied a portion of enforcement resources previously directed exclusively at opioid prescribing fraud.
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
The opioid prescribing enforcement that continued through and beyond 2020 reflected a sustained government commitment that had been institutionalized through dedicated task forces, specialized prosecutorial units, enhanced data analytics capabilities, and multi-agency coordination structures that did not depend on any single policy initiative for their continuation. The practitioners who understood that the enforcement commitment was structural rather than cyclical were the practitioners who took their compliance posture most seriously in the years that followed.
The consultation that assesses a specific practitioner’s exposure in the current enforcement environment, against the backdrop of prescribing history that extends through 2020 and beyond, is a consultation that requires counsel who understands both the historical enforcement record and the current investigative priorities. That assessment is available, and the earlier it occurs, the more of the available response options remain accessible.
