Stethoscopes or Bars: Prosecution of Health Care Professionals Ramps Up

Epidemic: You might have noticed news reports recently of a large number of health care providers being prosecuted in Tennessee and neighboring states for drug crimes. The United States Department of Justice is acting on its belief that doctors and other health care providers are contributing to the opioid crisis.

I have a healthy skepticism when the government calls something an epidemic. But it is hard to argue with the numbers. The Centers for Disease Control and Prevention concludes that in 2017 there were more than 70,000 overdose deaths in the United States. Think about the human tragedy caused by just one overdose multiplied by 70,000. Even worse, the statistics show an almost 10 percent jump from 2016. Much of this jump is due to use of heroin and synthetic drugs like fentanyl, which are imported unlawfully.

ARPO

The government believes that physicians and health care providers are still prescribing opioids unlawfully. Relevant to the government’s efforts in Tennessee, in late 2018, the Department of Justice announced the formation of the Appalachian Regional Prescription Opioid Strike Force (ARPO). ARPO is a joint law enforcement effort involving the Health Care Fraud Unit of the U.S. Department of Justice Criminal Division Fraud Section, United States Attorney’s Offices in five states, the F.B.I., the Department of Health and Human Services Office of the Inspector General and the Drug Enforcement Administration. All three United States Attorney’s Offices in Tennessee are participating. The focus of ARPO is to “combat illegal prescription opioids and health care fraud by holding accountable corrupt medical professionals who seek to profit off the crisis of opioid addiction.”1

In April 2019, the Department of Justice announced that the ARPO Strike Force “Takedown” had resulted in charges against 53 medical professionals.2 The charges vary but include unlawful distribution of controlled substances, health care fraud, including billing for unnecessary testing, money laundering and unlawful kickbacks.

Trying to Determine When a Doctor Commits a Crime:
A Matter of Opinion?

While some of the conduct the government announced it has uncovered sounds egregious according to the press releases, it is important to look at what the government has to prove in order to convict a health care provider of writing illegal prescriptions. After all, the primary statute that is being used is the general drug statute that is used to prosecute street level drug dealers and those involved with manufacturing or importing illegal drugs like cocaine. The government is alleging that these providers are, in fact, drug dealers.

Under the Controlled Substances Act, it is generally illegal to possess or distribute a federally controlled substance.3 Certain health care providers are allowed to distribute controlled substances, however, because of their training, licensure and DEA registration.4

In order to prove that a registered health care provider criminally distributed drugs, the government has to prove beyond a reasonable doubt that the controlled substances were distributed or dispensed “outside the course of professional practice and not for a legitimate medical purpose.”

So, what does that mean? According to the case law, there are no specific guidelines concerning what is required to prove that the accused acted outside the usual course of professional practice.5

Normally, the government attempts to prove, through the use of expert testimony, that a doctor wrote illegal prescriptions. The prosecutor will point the expert to a particular prescription and the medical records and ask if the expert has an opinion as to whether the prescriptions were written within the scope of legitimate medical practice. The Sixth Circuit has held that this did not call for an improper legal conclusion.6 State standards may also be relevant.7 Defining a crime according to whether conduct was outside the course of professional practice and not for a legitimate medical purpose will continue to be challenged, but some cases have rejected constitutional vagueness arguments.8

The stakes are extremely high in prosecution of medical professionals. The sentences for unlawful prescriptions are usually extremely long because the statutes and the sentencing guidelines are the same for street drug dealers. The sentences are based primarily on quantities, and the quantities of controlled substances prescribed at a medical office are usually high.9 The length of sentences is also affected by the fact that the doctor does not have to be convicted off all of the drugs for which he or she is to be sentenced but can be held responsible for uncharged “relevant conduct.”10
If the prescription was the proximate cause of a patient’s death, there is a mandatory sentence of 20 years to life in prison.11 A doctor can be sentenced to life in prison based primarily on the opinion testimony of another doctor.

Enhanced Treatment Options

Those who are already addicted to opiates will not be cured by the prosecution of doctors. Perhaps the worst thing that can happen is for people to turn from prescription medication to unregulated street drugs like heroin or imported fentanyl. If that happens, the overdose rate will continue to rise. That is why any enforcement initiative has to be coupled with enhanced options for treatment. The Department of Justice acknowledges that there must be efforts to make sure patients of the prosecuted health care providers have access to care and treatment options.12 Those of us who prosecute and defend criminal cases should familiarize ourselves with the new treatment options, including new forms of medication assisted treatment, which both the Tennessee and federal governments are promoting.13

WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense.Davies is a member of the Tennessee Bar Journal Editorial Board.

NOTES

1. Statement of Assistant Attorney General Brian A. Benczkowski, “Justice Department’s Criminal Division Creates Appalachian Regional Prescription Opioid Strike Force to Focus on Illegal Opioid Prescriptions,” https://www.justice.gov/opa/pr/justice-department-s-criminal-division-
createsappalachian-regional-prescription-opioid.
2. Our law firm is involved in some of these cases, but this column does not address any of the facts of those cases.
3. 21 U.S.C. § 841.
4. 21 U.S.C. §§ 822, 823, 829(b); 21 C.F.R. § 1306.04.
5. See, e.g., United States v. Volkman, 797 F.3d 377, 388 (6th Cir. 2015).
6. United States v. Volkman, 797 F.3d 377, 389 (6th Cir. 2015).
7. See, “Tennessee Chronic Pain Guidelines,” Tennessee Department of Health (2019), https://www.tn.gov/content/dam/tn/health/
healthprofboards/ChronicPainGuidelines.pdf.
8. See United States v. Darji, 609 F. App’x 320, 335 (6th Cir. 2015).
9. U.S.S.G. § 2 D1.1
10. U.S.S.G. § 1B1.3.
11. 21 U.S.C. § 841(b)(1)(C); Burrage v. United States, 571 U.S. 2014 (2014).
12. https://www.justice.gov/opa/pr/
appalachian-regional-prescription-opioid-
arpo-strike-forcetakedown-results-charges-against (including resources for affected patients). Other federal treatment resources are listed at https://www.samhsa.gov/find-treatment.
13. In October 2018, the president signed the Support for Patients and Communities Act. For a summary of the provisions promoting the use of Buprenorphine, see the American Society for Addiction Medicine, https://www.asam.org/resources/practice-resources/data-2000-
patient-limit; https://www.samhsa.gov/
medication-assisted-treatment; State of Tennessee, Department of Mental Health and Substance Abuse Services,https://www.tn.gov/behavioral-health/substance-abuse-services/treatment
---recovery/treatment---recovery/opioid-treatment-programs.html.

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