What can the innocent doctor do when audited for drug diversion?

At all ages, there are people who will abuse prescription narcotics one way or another. Some abuse narcotics, causing danger to themselves, and others sell or give them to others, contributing to danger and illegality. When someone goes to the doctor, presenting a condition requiring pain medication, for example, the doctor has no idea or control regarding what the patient can and will do after they leave to get their prescription filled and are on their way. If the patient has a temporary condition that never seems to get better, or despite all reasonable pain management efforts, the patient still needs narcotics, there could be a greater underlying problem such as drug diversion.

What is drug diversion?

Drug diversion is the taking and giving, selling or otherwise using prescribed, controlled narcotics for any purpose other than that which the physician wrote the prescription. State and federal investigators and their agencies have charged many physicians with criminal violations in connection with drug diversion. While some may be guilty as charged and making money off drug diversion, others may be unknowing victims of the bad acts and schemes of others, within and beyond the healthcare facilities and systems within which they practice.

The drug diversion statistics and information collected and shared in the health care community are compelling. As new “tricks of the trade” are discovered, so are more examples of diversion behavior. A 2013 drug diversion awareness conference presentation highlights DEA perspectives on pharmaceutical use and abuse.

How can a physician know if their patient may be engaged in drug diversion?

No matter what the honest physician, assistants and staff do to prevent drug diversion, it may be impossible to spot every bad actor.

Awareness and education are key tools in combatting drug diversion. Not only must prescribing physicians pay attention to this problem, their nurses, staff and those at the pharmacy or dispensing authority should all be part of the conversation and sharing of information when something or someone just does not seem right. Pain medication tracking systems and new technologies make it easier to monitor narcotics and the patients to whom they are prescribed. Despite all the education, awareness and tracking efforts, drug diverters can still slip between the cracks, exposing the physician to liability.

Liability concerns and fear of investigations are making many physicians more careful, but some say they are too careful. Patients with legitimate needs for high-dose of powerful pain narcotics might be denied the painkillers they need to not be in chronic pain, because that patient’s history and prescriptions could trigger an audit in an electronically monitored system.

What can a physician do if they are targeted and accused of running a “pill mill?”

Under a federal standard, physicians face criminal liability if they prescribe controlled narcotics without a “legitimate medical purpose” and outside the “usual course of his professional practice.[i]” State standards vary from one to the next, some being higher than others.

In Illinois, the Medical Practice Act of 1987 enumerates the laws of the State of Illinois with respect to physicians and physician assistants and their legal duties and restrictions with respect to prescribing controlled narcotics. In addition to criminal liability, the Act specifically identifies grounds for discipline by the state for “Prescribing, selling, administering, distributing, giving or self-administering any drug classified as a controlled substance (designated product) or narcotic for other than medically accepted therapeutic purposes.[ii]

If federal or state investigators receive a tip or independently “audit” (investigate) your practice with a search warrant, they may already suspect there is a violation of law and they simply want proof to charge the physician with crimes. At the very first moment a physician senses or is notified of an audit or investigation of their practice and prescription histories, the physician should immediately contact an experienced healthcare law and licensing attorney with a criminal defense focus.

Michael V. Favia & Associates, P.C. represents Illinois-licensed professionals in actions involving the IDFPR and the federal and state agencies investigating and prosecuting for drug diversion. Physicians are well-advised to obtain proactive advice and counsel to make sure they are well-protected.

Chicago health law and litigation attorney Michael V. Favia and his associates in several locations and disciplines, advise and represent licensed physicians in all types of litigation and administrative matters involving licensing and regulatory agencies.

Michael V. Favia and Associates, P.C. represents individual physicians and health care organizations in the Chicago area with a variety of legal matters. With offices conveniently located in the Chicago Loop, Northwest side and suburban meeting locations, you can schedule a discrete meeting with an attorney at your convenience and discretion. For more about Michael V. Favia & Associates, please call (773) 631-4850, visit www.favialawfirm.com and feel free to “Like” the firm on Facebook and “Follow” the firm on Twitter. You can also review endorsements and recommendations for Michael V. Favia on his Avvo.com profile and on LinkedIn.

[i] U.S. DOJ, Office of Diversion Control, Purpose of issue of prescription, 21 C.F.R. § 1306.04(a)

[ii] Illinois Medical Practice Act of 1987, 225 ILCS 60/22 (A)(17).

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