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Healthcare providers that issue prescriptions for certain drugs are regularly audited by the Drug Enforcement Agency to ensure that there are no abuses of the prescription writing authority. This can occur in a variety ways, but most healthcare providers understand well what improprieties could bring. For the most part, problems are usually minor and correctable. Just because checks by the DEA are regular does not mean that having an attorney overseeing the audit in an effort to protect the legal rights of the provider is not still a good idea. Healthcare prescription providers are audited every three years as policy, and some providers who focus directly as pain management centers may be inspected more often. Regardless of the reason the feds have come calling, it is always important to have an experienced healthcare legal professional present throughout the process.
Drug Enforcement Agency officers usually hold audits that are not regularly scheduled for three primary reasons. One issue can be specific patterns in prescription writing and subsequent billing. Double billing for prescriptions can easily happen due to human error, but can also be occurring as a systemic problem. Random additional audits are also held, so many times the inspection can merely be a luck of the draw issue for the healthcare provider. But, there are also other occasions when an individual comes forward and provides information of which the healthcare provider is unaware. If this occurs when the healthcare provider has been double billing or filing claims for prescriptions that are not actually issued, there can be a False Claims Act problem as well. The original audit is a common civil inspection of business records that is authorized with the license issuance for dispensing medications. Similar to intoxicated driving blood testing, the provider consents to let the Drug Enforcement Agency investigate company records without the need of a search warrant at any point in time. However, when they find probable cause that a crime has been committed, search warrants for all remaining potential criminal aspects of an investigation are routinely issued. Having your healthcare legal counsel present when this is happening can be vital to a positive outcome of any audit.
Impact of a Criminal Conviction
An actual conviction on abuses of prescription issuance authority can be detrimental to the career of any doctor or the long-term viability of any healthcare treatment facility. This potential has actually led to the establishment of pain relief centers that officially issue necessary prescriptions for specific narcotics that are targeted by the DEA for potential abuse among prescription providers. A conviction can limit further employment, specialty board certifications, and even end careers when a jail term or huge fine is levied by the federal government. Cases can also result in civil lawsuits in certain situations. Billing problems can even be serious issues when the DEA can prove there was intent to commit an act that is criminally fraudulent. These cases can also be subject to False Claims Act punishment and lawsuits from the federal government based on the information provider by a “relator” who has knowledge of the intent. The False Claims Act allows those who provide materially applicable case information to the government regarding a fraud case to share in the proceeds confiscated by the government when the case qualifies. The relator, commonly called a whistleblower, will actually file the suit as a qui tam motion that also includes the federal government.
All DEA investigations begin as civil regulatory practices, but they can become criminal issues quickly when the inspectors find a problem. It is an investment in your personal future as well as the stability of your business to have an experienced healthcare legal professional who has been a former prosecutor as well. Former prosecutors understand the process of developing a criminal case along with the legal nuances of how a civil case can become a criminal case when certain evidence is found. The requirement of a warrant can occur quickly, and you need your own legal team overseeing the investigation on your behalf in many instances to ensure the government does not leap to a criminal conclusion without proper due process or probable cause to request a warrant.