Who Investigates Opioid Fraud??

Opioid diversion investigations typically involve the U.S. Drug Enforcement Administration (DEA). DEA agents examine the prescribing, dispensing, administration, and distribution of controlled substances, including prescription opioid drugs, while also investigating allegations of diversion and misuse. If your investigation is focused strictly on matters related to the billing aspects of the practice of medicine, then you need not concern yourself with the DEA unless there are diversion-related allegations involved. When the FBI investigates matters related to opioid drugs, it is typically in connection with a healthcare-fraud scheme in which the diversion allegations are a reflection of billing-related fraud allegations. The FBI examines evidence of fraudulent billing and other health fraud schemes, including allegations relating to the unlawful prescribing of opioids. In addition to investigating healthcare fraud, the FBI also investigates all manner of criminal activity including drug diversion, health records fraud, and various types of fraud against federal program beneficiaries. Healthcare fraud investigators with the Department of Health and Human Services (HHS) OIG investigate health fraud, waste, and abuse allegations involving federally funded healthcare programs (i.e., Medicare, Medicaid, Tricare, etc.). Along with the HHS OIG, U.S. Department of Justice (DOJ) Healthcare Fraud Strike Forces examine healthcare providers’ suspected and alleged involvement in these types of fraud schemes. These Strike Forces include federal prosecutors from the DOJ that work with investigators from the FBI, and HHS OIG to investigate healthcare providers suspected and alleged of Medicare, Medicaid, and Tricare fraud. Medicaid Fraud Control Units (MFCUs) focus on Medicaid providers. MFCUs are located in all 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. Each state has a Medicaid Fraud Control Unit that investigates health care providers within the state to help determine their involvement in Medicaid-funded fraud schemes. Most states’ MFCUs also work closely with offices and agencies focused on Medicaid enforcement. While these MFCUs primarily focus on Medicaid-funded program fraud, Medicaid-related billing can be a part of any opioid-diversion or billing-related fraud investigation.

Why Does Opioid Diversion Produce Different Charges and Penalties Than Billing Fraud?

While the government may seek to establish a connection between opioid diversion and billing fraud in order to pursue a criminal conviction, the charges and penalties implicated by each of these allegations are quite distinct. When facing an opioid fraud investigation, healthcare providers and other professionals should look to a skilled federal defense attorney to determine the defenses available to them. Our healthcare fraud defense lawyers and attorneys at Spodek Law Group handle these matters.

What Conduct Constitutes Opioid Fraud?

Overprescribing opioids, prescription drug fraud, opioid diversion, and opioid-related billing fraud describe four distinct types of conduct. Although there may be evidence of all of these within an opioid fraud investigation, each of these types of allegations will implicate different criminal statutes.

As a result, healthcare fraud investigations and prosecutions tend to involve the evidence of overprescribing opioid drugs and other narcotics and the evidence of diversion of these medications. The key element that distinguishes these types of fraud cases is whether there is evidence of intent. For instance, while the allegations of overprescribing opioids by medical providers may be a component of a billing-fraud case, overprescribing does not, of itself, establish billing fraud or criminal liability. Similarly, when faced with civil and criminal penalties under the False Claims Act and other anti-fraud statutes, honest clerical billing errors by healthcare providers generally differ from intentional healthcare-fraud conduct.

What Charges Can I Face in an Opioid Diversion and Billing Fraud Investigation?

Healthcare-fraud charges can vary depending on the evidence of a provider’s involvement in the billing of prescription opioid medications. Depending on the evidence, this could include the federal healthcare fraud statute, 18 U.S.C. §1347, or the False Claims Act, 31 U.S.C. §3729. The False Claims Act allows for the filing of civil claims that, when proven, can result in treble damages and civil monetary penalties. Controlled-substance allegations will typically involve 21 U.S.C. §841(a), the federal drug trafficking statute, and other related criminal statutes. The penalties in a drug-trafficking case will include the potential for incarceration, fines, and forfeiture. These penalties will not generally apply to healthcare fraud allegations unless there is evidence that a provider knowingly or intentionally unlawfully distributed or dispensed prescription opioids.

How do Prescribing, Dispensing, and Billing Records Generate an Opioid-Fraud Investigation?

Opioid-fraud investigations can arise from a variety of sources, often involving data analytics, compliance audits, or specific reports of wrongdoing. The key is to understand how prescribing, dispensing, and billing records are examined to trigger scrutiny.

For instance, CMS and HHS OIG regularly analyze Medicare, Medicaid, and Tricare billing statistics to identify “provider outliers.” If a doctor’s opioid prescriptions are significantly higher than those of peers in the same area, this alone can prompt a comprehensive audit or investigation. DEA agents may conduct compliance audits focusing on prescription records, pharmaceutical storage, medication security, and other regulatory aspects. While these audits are routine, deficiencies identified during an audit can initiate a targeted diversion investigation.

Alternatively, the DEA can launch targeted investigations based on unusual opioid-prescribing patterns (detected by analyzing prescription data), patient complaints about doctor-shopping, or tips received from federal, state, or local law enforcement. Once investigators open a case, they can access a wide array of documentation. This includes analyzing EHR audit trails to uncover signs of fraudulent medical necessity justifications and examining claims files to detect patterns of upcoding or miscoding. They can compare prescription data with dispensing data from pharmacies to see if doses were reduced, skipped, or fraudulently filled.

Advanced analytics, such as referral mapping, can uncover suspected kickback relationships between prescribing physicians, pharmacies, laboratories, or imaging centers. If a physician consistently refers patients to a specific entity that facilitates the filling of opioid prescriptions without proper scrutiny, this can serve as evidence of a fraudulent scheme.

From prescribing records and billing data to pharmacist interviews and patient statements, all facets of the opioid prescription and dispensing process are analyzed in federal fraud investigations.

What Do DEA Audits, Subpoenas, Target Letters, and Civil Demands Actually Mean?

A grand-jury subpoena is a formal document issued in a federal grand-jury proceeding during a criminal investigation. If the DOJ believes you have information relevant to its investigation, it will issue a subpoena that compels you to produce either records, testimony, or both. If you have received a grand-jury subpoena, you must contact a federal defense attorney promptly to determine the scope of the DOJ’s allegations and the best approach for providing the requested information. The sooner you respond to the DOJ’s grand-jury subpoena, the sooner you can begin to defend yourself against any allegations of criminal healthcare fraud or opioid diversion. A Civil Investigative Demand (CID) is similar to a grand-jury subpoena, but it is used in civil investigations to help federal prosecutors determine if a civil penalty (and, in some cases, a civil monetary fine) is warranted. Many CIDs involve allegations of a False Claims Act violation. If you have received a CID, it is important to contact a federal defense attorney to begin formulating your defense and addressing the government’s allegations. A target letter is a letter sent by federal prosecutors to an individual advising that the individual is a target of a federal criminal investigation. This letter typically advises the recipient of the target status and may request testimony and documents. Target letters are common in healthcare fraud investigations and can carry the threat of indictment. If you have received a target letter from the DOJ, it is important that you promptly contact a federal defense attorney to discuss your next steps. A search warrant is an order signed by a judge that allows federal law enforcement agents to enter and search a home, business, or vehicle to collect evidence. Federal agents can execute search warrants even if you have not yet been informed of an active investigation. If your home or healthcare practice has been served with a search warrant, you must take immediate action to determine the allegations that have been made and your next steps. While these investigations may begin with simple audits or requests for documentation, it is important to take any contact from a federal agency seriously. We have successfully defended healthcare providers against: - Medicare audits - Suspensions of payment - Civil investigative demands and subpoenas - Criminal referrals

Where to Go From Here

If any of this describes your situation, the next step is a conversation rather than more reading. Spodek Law Group runs a fully online client portal and represents clients coast to coast, with offices in New York, Brooklyn, Queens and Los Angeles. The number is 888 348 8028.