The targets are not who they were a decade ago.
The earliest wave of DEA opioid enforcement concentrated on the most visible and egregious practitioners: the cash-only pain clinic operators in Florida and Kentucky who saw a hundred patients a day and prescribed oxycodone to every one of them. Those operations were identifiable from the outside, were staffed by practitioners who in some cases had prior disciplinary histories, and produced prescribing patterns that were statistically implausible as legitimate medical care. The prosecutions from that period were significant in number and produced lengthy sentences for the most prominent defendants.
The current wave of DEA opioid investigation is directed at a broader and more varied population of practitioners, including many who would not have recognized themselves as potential targets five years ago. The expansion reflects both the maturation of the DEA’s investigative tools and a deliberate policy decision to extend enforcement beyond the most obvious cases to practitioners whose prescribing, while not criminally intended, produced outcomes that the government views as contributing to the opioid crisis.
Primary Care Physicians
Primary care physicians are among the most frequently investigated practitioners in the current DEA opioid enforcement environment. The primary care practitioner who managed chronic pain patients, who prescribed opioids as part of a comprehensive treatment approach, and who became the de facto pain management provider for a patient population in an area with limited specialist access is a practitioner whose prescribing volume may appear as an outlier relative to primary care peers, even where the prescribing reflected genuine patient need.
The DEA’s analytical comparison of prescribers’ opioid output against peers in the same specialty does not account for the clinical complexity of individual patient populations. A rural primary care physician whose practice includes a disproportionate number of patients with chronic pain conditions, workers’ compensation injuries, and limited access to pain management specialists may prescribe opioids at rates that the analytics flag as anomalous while providing care that is clinically appropriate for the specific population served. The investigation that follows the flag does not initially distinguish between that practitioner and one whose prescribing is genuinely outside legitimate practice.
Pain Management Specialists
Pain management specialists were the primary targets of the early wave of opioid enforcement and remain a focus of current investigations. The specialist whose practice is devoted to the treatment of chronic pain necessarily prescribes controlled substances at rates that general practitioners do not, and the analytical tools that identify prescribing outliers are calibrated to specialty norms. A pain management specialist whose prescribing falls outside the specialty norm is a practitioner the DEA’s data systems will identify.
The pain management specialist who operated a cash-based clinic, who saw patients in assembly-line fashion, and who prescribed the same combination of medications to every patient is a target of a different kind than the specialist who maintained a genuine clinical practice but whose patient population required higher opioid doses than the DEA’s reference practitioners received. Defending the latter requires demonstrating the clinical basis for the prescribing decisions. Defending the former requires confronting the documentary record that the government will present as evidence of pill mill operation.
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(212) 300-5196Nurse Practitioners and Physician Assistants
The expansion of prescribing authority to nurse practitioners and physician assistants in most states has made these practitioners targets of DEA opioid investigation in a manner that was less common before their prescribing authority was established. A nurse practitioner who obtained independent prescribing authority and who developed a practice that included significant opioid prescribing is subject to the same DEA registration requirements, the same prescribing standards, and the same investigative attention as a physician in the same prescribing circumstances.
The supervision requirements applicable to physician assistants in many states create additional complexity: a physician who supervised a physician assistant whose prescribing is the subject of a DEA investigation may face their own exposure for inadequate supervision, creating a situation in which the investigation that began with the PA’s prescribing records reaches the supervising physician through the supervisory relationship.
Pharmacists and Pharmacy Owners
Pharmacies and individual pharmacists who filled prescriptions from practitioners known or suspected to be operating outside legitimate medical practice are targets of DEA enforcement through the pharmacist’s independent duty not to fill a prescription they know or have reason to know is not for a legitimate medical purpose. The pharmacist who filled prescriptions from a prescriber whose patients traveled long distances, paid cash, and received the same combination of medications as every other patient in the parking lot has, in the government’s view, participated in the diversion.
Corporate pharmacy operators whose internal policies, compensation structures, or data systems inhibited pharmacists from exercising professional judgment about the prescriptions they filled have been the subjects of the most significant civil enforcement actions in the opioid space. The Walgreens, CVS, Walmart, and Rite Aid settlements, each exceeding five hundred million dollars, reflect the government’s view that corporate pharmacy operators shared responsibility for the opioid crisis and that their institutional conduct warrants institutional accountability.
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 DEA’s investigation does not begin with a judgment about whether the practitioner is a good physician or a bad one. It begins with data that suggests the prescribing is inconsistent with a standard the government has defined. The practitioner who understands that distinction, and who recognizes that investigation is not synonymous with culpability, is better positioned to engage the process with the equanimity that an effective defense requires.
Veterinarians and Other Non-Physician Prescribers
The DEA’s expansion of opioid enforcement has reached categories of practitioners not historically prominent in controlled substance investigations. Veterinarians, dentists, and other licensed practitioners who hold DEA registrations and who prescribe controlled substances are subject to the same standards and the same investigative attention as physicians, and the DEA’s current enforcement priorities include practitioners in these categories whose controlled substance prescribing appears inconsistent with legitimate professional practice.
The veterinarian who writes controlled substance prescriptions for animals whose medical condition does not support them, the dentist who prescribes opioids in quantities inconsistent with the dental procedures performed, and the nurse practitioner whose opioid prescribing volume exceeds any reasonable clinical justification are each practitioners whose DEA registration creates the regulatory relationship through which the investigation can proceed and the administrative consequence can arrive before any criminal charge is filed.
