The DEA uses as confidential informants the people who are closest to the practitioner’s practice and who have the most direct knowledge of what occurred inside it.
The identity of confidential informants in a DEA opioid investigation is protected from disclosure during the investigation and, in some circumstances, through and beyond the trial. The practitioner who attempts to identify the informant through direct inquiry, through social engineering, or through any approach that suggests awareness of or interest in the informant’s identity has created an obstruction exposure and a potential witness intimidation issue. The appropriate response to the reality of confidential informant use is not to identify the informant but to ensure that the practitioner’s conduct from the moment they are aware of the investigation is irreproachable.
Former Employees
Former employees are the most productive category of confidential informant in DEA opioid investigations of medical practices. A former office manager who observed the daily operations of the practice, who processed patient scheduling and payments, who watched practitioners examine, or not examine, patients who then received controlled substance prescriptions, has direct firsthand knowledge of the conduct that is most relevant to the investigation’s theory.
The former employee who cooperates with the DEA may do so voluntarily, out of conscience or resentment, or may be cooperating pursuant to an agreement with the government following their own investigation for related conduct. The former billing manager who submitted false claims to Medicare, who processes that cooperation through a proffer agreement and agrees to wear a recording device to a conversation with the practitioner, has become a cooperating witness whose recordings are direct evidence.
Current or Former Patients
Patients who received controlled substance prescriptions from the target practitioner are cooperating witnesses in many DEA opioid investigations. A patient who recognized that they were not receiving genuine medical care, who was prescribed medications they did not need, or who subsequently developed dependency issues and connects those issues to the practitioner’s prescribing may approach the DEA voluntarily. A patient who is facing their own controlled substance charges may cooperate with the investigation in exchange for consideration in their own case.
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(212) 300-5196Current patients who cooperate with the investigation while continuing to receive prescriptions from the practice are in the most operationally significant cooperating witness category: they can record clinical encounters, document the absence of legitimate examinations, and provide the government with contemporaneous evidence of ongoing prescribing conduct that supplements the historical prescribing data.
Pharmacy Personnel
Pharmacists and pharmacy technicians who regularly filled the target practitioner’s prescriptions are positioned to observe patterns that are significant to the investigation. A pharmacist who repeatedly filled prescriptions for combinations and quantities that raised professional concerns, who noted the same patients picking up the same prescriptions on predictable schedules, and who observed operational characteristics of the practice’s patients inconsistent with legitimate medical care has knowledge the government values.
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The practitioner cannot know who among the people they interact with daily has become a cooperating witness. The former staff member who called to check in last week, the patient who seemed unusually interested in the investigation’s status, and the pharmacy contact who asked questions that exceeded their professional interest are each potentially cooperating sources. Acting as though any of them might be is not paranoia. It is an accurate assessment of how DEA opioid investigations are typically built.
Federal agents execute a search warrant at your medical practice, seizing patient records and prescription logs.
Can they take patient records without patient consent?
A valid federal search warrant overrides HIPAA privacy protections. However, the warrant must be properly scoped. An attorney can challenge overly broad warrants and move to suppress improperly seized evidence.
This is general information only. Contact us for advice specific to your situation.
Managing the Cooperating Witness Risk
The most effective management of the cooperating witness risk is the same management that applies to all of the investigation’s dimensions: retain counsel, cease voluntary communications about the investigation’s subject matter with anyone outside the attorney-client relationship, and ensure that the conduct occurring from the moment the investigation is known is conduct that cannot be characterized as diversion. The cooperating witness who records a clinical encounter in which the practitioner conducts a thorough examination, documents the findings, and issues a prescription based on a documented clinical assessment has recorded evidence that supports the defense, not the prosecution.
