The investigation announces itself rarely and obliquely. The signs that it is underway are present before any official contact occurs, and by the time a practitioner notices them, the investigation has typically been proceeding for months.
DEA diversion investigations of healthcare practices do not begin with a knock at the door or a letter in the mail. They begin with data: prescription monitoring program flags, statistical outlier analysis, referrals from pharmacies that declined to fill prescriptions, complaints from patients or former employees, or reports generated by an overdose death investigation. The practitioner who is paying attention to the right indicators can recognize the signs of investigation before the first official contact occurs. Recognition at that stage is recognition that permits preparation.
The signs described below are not individually diagnostic. Each has an innocent explanation in isolation. Their value as indicators lies in their combination, their pattern, and their timing relative to one another. A single sign warrants awareness. Several signs appearing in proximity warrant immediate consultation with counsel.
Patients Report Being Contacted by Law Enforcement
When current or former patients contact the practice to report that they have been visited by DEA agents, interviewed by FBI investigators, or asked questions about their prescriptions and their relationship with the practice, the investigation has reached the witness development stage. Agents who interview patients about a specific prescriber are building the factual record that supports either a criminal prosecution or an administrative proceeding to revoke the prescriber’s DEA registration. The patients are not the targets of those interviews. The prescriber is.
The number of patients who report such contact is itself informative. A single patient contact might reflect a routine follow-up in an unrelated matter. Multiple patients reporting similar inquiries within a short period is a pattern that reflects a coordinated investigation directed at the practice. The questions agents asked those patients, and the documents or prescriptions they mentioned, provide information about the investigation’s theory that is unavailable from any other source at the pre-contact stage.
Counsel retained at this stage can make inquiries of the relevant United States Attorney’s office or the DEA field office that may clarify the investigation’s direction and permit a strategic assessment before any official contact with the practice itself occurs. That assessment is more valuable, and the options it identifies are more numerous, than the assessment available after the investigation has publicly identified the practice as its focus.
Former Employees Are Contacted or Interviewed
Former office managers, medical assistants, nurses, billing personnel, and other staff who worked at the practice are potential witnesses to its operational practices. DEA agents who interview former employees are seeking accounts of what the practice looked like from the inside: how patients were examined, or whether they were examined at all; how prescriptions were generated; whether cash payments were standard; whether anyone raised concerns about the prescribing that were ignored or discouraged; and whether records were created contemporaneously or after the fact.
A former employee who contacts the practice after being interviewed by investigators, whether out of loyalty or concern or curiosity, is providing advance notice of the investigation’s evidentiary focus. The subject matter of the agents’ questions tells the practitioner which aspects of the practice are under scrutiny. That information should be communicated to counsel immediately and should not be used as the basis for any independent contact with the former employee.
Contact between the practitioner and witnesses who have been interviewed by investigators, if that contact is directed at influencing their accounts, constitutes witness tampering and creates obstruction exposure that is independent of whatever the underlying investigation concerns. The practitioner who learns that former employees have been interviewed should direct all communications through counsel and should make no effort to contact those employees directly about the investigation’s subject matter.
Insurance Carriers or PBMs Initiate Audits
Commercial insurance carriers, pharmacy benefit managers, and Medicare and Medicaid contractors conduct routine and investigative audits of prescribers and pharmacies whose billing patterns appear anomalous. An audit request that focuses on a specific category of controlled substance prescriptions, that seeks records for a specific time period associated with a known enforcement focus, or that is conducted by the carrier’s special investigations unit rather than its routine audit staff is an audit that may have been initiated in coordination with or in response to a government investigation.
Need Help With Your Case?
Don't face criminal charges alone. Our experienced defense attorneys are ready to fight for your rights and freedom.
- 100% Confidential
- Response Within 1 Hour
- No Obligation Consultation
Or call us directly:
(212) 300-5196The connection between insurance carrier audits and government investigations is not always direct. Carriers conduct their own fraud investigations independently of government enforcement. But a carrier audit followed closely by a DEA inquiry, or a carrier audit that arrives simultaneously with patients reporting agent contact, is a coincidence that warrants skepticism about its accidental character. The two proceedings may reflect the same underlying data flag that triggered review on both the civil and regulatory dimensions simultaneously.
Pharmacy Contacts and Declined Prescriptions
A pharmacy that declines to fill prescriptions from a specific prescriber, that contacts the prescriber to express concerns about specific prescriptions, or that notifies the prescriber that its pharmacists have flagged certain prescriptions for review has identified a potential compliance issue that may have also been reported to the DEA. Pharmacists have an independent duty not to fill prescriptions they know or should know are not for legitimate medical purposes. When a pharmacist exercises that judgment with respect to a specific prescriber’s prescriptions, the exercise of that judgment may be documented and reported to the state pharmacy board or the DEA.
A prescriber who receives calls from pharmacies questioning specific prescriptions, who learns that their prescriptions are being declined at particular pharmacies, or who is notified by a pharmacy that it will no longer fill their controlled substance prescriptions should treat each of those communications as a potential indicator of investigation and should document the specific prescriptions at issue and the clinical basis for them.
PDMP Queries From Unrecognized Sources
Prescription drug monitoring programs maintain records of who queries the database and when. A prescriber who reviews their PDMP query log may observe queries from practitioners or agencies they do not recognize, or queries from law enforcement agencies that have been granted PDMP access under the applicable state’s laws. Law enforcement PDMP queries relating to a specific prescriber’s patients are not routine administrative activity. They are investigative activity that reflects an existing inquiry.
Not every state’s PDMP permits prescribers to see who has queried records related to their patients. In states where that transparency exists, the query log is among the most reliable early indicators of investigation available to a practitioner who monitors it regularly.
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 investigation that has been underway for six months before the practitioner notices it is not an investigation that began six months too early. It is an investigation that the practitioner had six months to prepare for and did not. The signs described here are the preparation window. The window closes when the first official contact arrives.
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.
Requests for Records From Unknown Entities
Requests for patient records from entities the practice does not recognize, from law firms that identify themselves as representing unnamed clients, or from investigators who do not identify the authority under which they are requesting records should be treated with caution. Not every such request reflects a government investigation, but each should be evaluated by counsel before any records are produced.
Records produced in response to a request that was not legally compelled are records produced voluntarily. Voluntary production waives certain legal protections that would otherwise be available. The practitioner who produces records in response to an informal request from an investigative entity has potentially provided the government with materials that a subpoena would have been required to obtain, without the legal protections and potential challenges that the subpoena process affords.
The appropriate response to any request for records that the practice cannot identify as coming from an established patient, an authorized insurance carrier, or a clearly identified legal authority is to decline to produce until counsel has reviewed the request and the applicable legal obligations. That review takes hours, not weeks. The production that precedes it cannot be undone.
