DOJ Tricks Used in Healthcare Fraud and Prescribing Prosecution – by Ron Chapman II on twitter: @HealthcareDef – June 2020
This is a sickening view into the murky drug-war tactics that our doctors have to face any time they prescribe opioids for chronic, ongoing pain.
I have had the opportunity to represent hundreds of healthcare professionals facing scrutiny from the federal government for healthcare fraud and drug trafficking. From this perspective I have been able to see the evolving playbook utilized by the DOJ to prosecute physicians.
Here are ten tricks used by the DOJ to convict physicians and other healthcare professionals for charges of healthcare fraud and unlawful prescribing.
Lowering the Standard
The Department of Justice (DOJ) and Assistant United States Attorneys (AUSA) often attempt to lower the standard of proof in order to convince a jury that conduct more akin to malpractice is sufficient for a conviction.
In order to be convicted of unlawful prescribing the Government must prove that the physician prescribed “for other than a legitimate medical purpose outside the course of professional practice”.
Violation of a regulation is not sufficient, nor is carelessness, recklessness or malpractice.
If juries truly understand and apply the standard, it is much more difficult to convict a defendant.
Improper Use of Statistical Data – “statistical profiling”
Profile evidence is the use of data to show that a particular defendant fits the “profile” of a criminal and therefore is in fact a criminal.
Profile evidence is inherently a fallacy and only as probative of criminal conduct as the assumptions of criminality used to generate the data.
The DOJ will determine that the physician is the #1 prescriber of oxycodone in his or her state or has preformed more procedures than any other physician in the state. The DOJ may introduce PDMP data to show the volume of prescribing relative to a physician’s peers
Such data must be met at trial with an emphasis on individual patient care. This includes calling real patients as witnesses to have them testify to their experiences with the physician defendant
Use of “Red Flag Evidence”
The DEA has historically used red flags during investigations of physicians.
The DEA typically has an undercover DEA agent or informant pose as a patient and exhibit several red flags to determine if the physician will prescribe.
The issue with “red flags” is that they are also signs of completely legitimate patients as well.
The use of “red flag” evidence must be met with a motion to exclude “red flag evidence” on the basis that it is improper profiling evidence and not based on any scientific or reliable methodology.
Conflating Medicare Regulations
The government argues that the physician should have known about the regulations and violating the regulation is flagrant disregard for the rules that the health professional agreed to follow when he or she signed the 855I (Medicare enrollment document).
courts often permit a jury instruction to be read to the jury clarifying that violation of a medicare rule or regulation is not a criminal offense.
“The Early Bird Gets the Worm”
Typically, prosecutors extend me a plea offer early in the case before I have had sufficient time to investigate. Prosecutors usually provide a deadline for the offer and inform me that my client better accept this plea agreement before the arbitrary deadline imposed by the prosecutors.
However, throwing important fundamental rights away simply to secure a rushed deal before fully analyzing the criminal case is a reckless strategy
Often we forgo the initial plea offer only to receive better offers as we near trial.
Conceal Patient Sample to use at Trial
The Government often casts a wide net wording the charges as broadly as possible to include as many interpretations of fraudulent conduct as possible.
Defense counsel can file a motion for a bill of particulars specifically detailing the alleged wrongful conduct or request discovery on the specific executions of healthcare fraud alleged.
Pre-trial Seizure of Assets
Prosecutors know that financial stress causes defendants to plea.
This is typically why the Government will go through great lengths to freeze and seize assets prior to the initiation of a prosecution. This forces many defendants to forgo representation by skilled defense attorneys who are experts in their field in favor of a court appointed attorney who accepts a wide manner of cases.
Inaccurate Witness Statements
I have read thousands of witness statements during my career and the majority stretched the facts so thin they were not capable of being relied upon to determine my client’s trial posture.
tatements are drafted by law enforcement who generally have an inherent bias towards criminality.
The DEA Voluntary Surrender Ploy
I routinely receive calls from physicians whose offices have just been the subject of a DEA raid. The physician explains to me that during the raid the DEA requested that he “voluntarily surrender” his DEA registration as a “show of good faith”.
The DEA calmly explains that all the physician must do is re-apply to get it back. Unfortunately, this is false information. Re-application can take years and the DEA is not required to give the registration back.
The reason the DEA attempts to coerce physicians into voluntary surrender is because relieving a doctor of his or her DEA registration is a very time consuming and laborious process for the DEA.
Flipping Patients and Flipping Office Staff
Routinely, during a raid or during the investigation of a physician, the Government attempts to “flip” patients and office staff against a physician. This is done by offering sweetheart plea deals in exchange for witness testimony or by targeting patients with a prior criminal history who fear harsh federal sentences..
Author:Ron Chapman II, LL.M@RonChapmanAtty is a healthcare defense that specializes in white collar criminal defense and defending government investigations. He is the author of several notable publications on the issue and obtains frequent victories on behalf of his clients.