Prescription fraud is the use of deception to obtain a controlled substance prescription that would not be issued if the relevant facts were known.
The conduct it describes ranges from the patient who alters a legitimate prescription to increase the quantity, to the individual who forges a prescription entirely, to the person who presents to multiple physicians simultaneously with fabricated symptoms to obtain multiple controlled substance prescriptions. Each involves a false representation to a prescriber or pharmacist that is designed to produce the issuance or filling of a prescription for a controlled substance that the deception made possible.
Prescription fraud is both a state crime under various state criminal statutes and a federal offense where the conduct involves federally regulated controlled substances, federal health care programs, or the use of interstate communications in furtherance of the scheme. The federal prosecution of prescription fraud typically proceeds under the wire fraud or mail fraud statutes, the Controlled Substances Act, or the healthcare fraud statute, depending on the specific conduct and the federal nexus available.
Patient-Level Prescription Fraud
The most common form of prescription fraud involves patients who obtain controlled substance prescriptions through deception. Doctor shopping, the practice of visiting multiple prescribers simultaneously without disclosing prior prescriptions, is prescription fraud in most states and may constitute federal wire fraud where the communications involved cross state lines or use interstate electronic systems. Prescription drug monitoring programs, which most states now require prescribers and pharmacists to consult before issuing or filling controlled substance prescriptions, were established specifically to identify doctor shopping patterns that individual prescribers could not observe in isolation.
Prescription alteration involves the physical modification of a legitimate prescription to change the drug, the quantity, the dosage, or the number of refills authorized. Modern prescription security features, including tamper-resistant prescription pads and electronic prescribing requirements, have reduced the prevalence of alteration relative to other forms of prescription fraud, but the conduct continues.
Prescription forgery involves the creation of a prescription document without the authority of the prescriber named on it. The forger may use a legitimate prescriber’s information obtained from a prior legitimate prescription, from a stolen prescription pad, or from publicly available DEA registration data. Electronic prescribing requirements, which mandate that controlled substance prescriptions be transmitted electronically from prescriber to pharmacy in many states, have significantly reduced the opportunity for physical prescription forgery.
Prescriber-Level Prescription Fraud
Prescription fraud at the prescriber level involves the issuance of prescriptions that are fraudulent in a different sense: not forged or altered, but issued without a legitimate medical purpose by a practitioner who knows or should know that the prescription is not therapeutically warranted. A prescriber who issues prescriptions in exchange for payment, sexual favors, or other consideration unrelated to the patient’s therapeutic need is issuing fraudulent prescriptions. A prescriber who issues prescriptions to patients they have not examined, to patients who present obvious signs of addiction or diversion, or to patients for quantities that no legitimate therapeutic purpose would require is prescribing outside the usual course of professional practice in a manner that may constitute prescription fraud.
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(212) 300-5196The federal prosecution of prescriber-level prescription fraud typically proceeds under 21 U.S.C. 841, with the prescription itself constituting the distribution of a controlled substance. The prescriber is treated as a dealer rather than a physician when the prescriptions they issue are for no legitimate medical purpose, and the mandatory minimum penalties applicable to drug distribution apply with the same force.
Pharmacy-Level Fraud
Pharmacies that fill prescriptions they know or should know are fraudulent are participants in the prescription fraud scheme. The pharmacist who fills a visibly altered prescription, who fills prescriptions from a known pill mill without raising concerns, or who fills prescriptions for quantities inconsistent with any legitimate therapeutic purpose has dispensed a controlled substance without a valid prescription. The criminal exposure extends to the pharmacist and, in cases of systematic fraudulent filling, to the pharmacy’s owners and corporate operators.
The DEA’s pharmacist enforcement has expanded in recent years beyond the individual dispensing pharmacist to the corporate pharmacy chains whose internal policies and data systems were alleged to have facilitated systematic filling of fraudulent prescriptions. Civil settlements in these cases have reached billions of dollars, and criminal investigations of individual pharmacist and management conduct have followed.
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.
Prescription fraud is a crime that exists across every level of the controlled substance supply chain. The patient who deceives, the prescriber who enables, and the pharmacist who fills each occupy a position in the scheme that federal enforcement can and does reach. The medical license that authorizes prescribing is a registration that the DEA can suspend or revoke, and the consequence of that administrative action can arrive before any criminal charge is filed.
Prescription Drug Monitoring Programs as Enforcement Tools
Prescription drug monitoring programs, maintained by state agencies and in many states integrated with the DEA’s Automation of Reports and Consolidated Orders System, are the primary investigative tool for identifying prescription fraud patterns. The data they contain, recording each controlled substance prescription dispensed by drug, prescriber, patient, and pharmacy, permits investigators to identify doctor shopping patients, over-prescribing practitioners, and pharmacies with anomalous filling patterns.
A prescriber whose patients disproportionately appear in the PDMP as recipients of multiple controlled substance prescriptions from multiple providers, or whose own prescribing patterns appear as outliers relative to peers in the same specialty, is a prescriber whose data has likely already attracted monitoring attention. The investigation may be underway before the first contact with the prescriber occurs. That asymmetry is the reason counsel experienced in DEA matters should be retained at the earliest indication of government interest, not after the investigation has matured into a formal inquiry.
