A federal criminal target letter from a local United States Attorney notifies a potential defendant that they are the “target of” an FBI, DEA, or other governmental agency criminal investigation. Target letters say “you are the target” and place the recipient on notice to hire an attorney.
Recently, a medical practitioner brought me a new letter. This letter notified him that his practice was now under federal criminal investigation. It was not a target letter, per se, but a letter asking him to meet. I was amazed.
The letter stemmed from a 2017 DHS administrative subpoena for medical records for a small subset of that physician’s patient files. The DEA subpoenaed specific patient files based upon patient’s DEA records indicating they had received a substantial number of controlled substance prescriptions. The DEA learned this information through a computer search of this physician’s prescribing patterns, pharmacy dispensing patterns, and actual patient received controlled substance prescriptions. The DEA then subpoenaed the medical records to see if the doctor had a medical basis to write the prescriptions the database revealed. Doctors have become the targets of the opioid crisis.
After the physician produced his records the DEA submitted the medical records to their expert physician. This is when something unusual happened. The US Attorney took the time to notify the physician the expert concluded the physician’s prescribing pattern, quantity, and frequency of controlled substance prescriptions served no legitimate medical purpose in the usual course of professional practice. His medical practice for that small set of patients was criminal in nature.
The US Attorney did not simply indict the doctor. The government identified to the doctor the numerous deficiencies and violations of standards in the physician’s prescribing practice:
- The physician was prescribing high-dose opioids frequently with benzodiazepines;
- The medical records did not identify a medical condition justifying the prescribing;
- The physician failed to document changes in prescribing patterns between patients with changing medical conditions;
- The physician failed to document increase in benefit to the patient from the opioid treatment and failured to provide alternate treatments;
- The physician failed to stop prescribing Opioids after proof of failed drug screens:
- The physician failed to stop prescribing opioids when no drug screens were performed;
- The physician failed to stop prescribing opioids to patients with positive drug test for alcohol, other opiates and benzodiazepines;
- The physician prescribed controlled substances without performing any physical examination;
- The physician prescribed controlled substances without a patient treatment plan, or inadequate treatment plans;
- The physician prescribed controlled substances to patients with no confirmed diagnosis of a medical condition;
- Patient records were inadequate, missing, or unreadable or did not have current medication or diagnosis notated in the file;
- Many files did not possess updated Pennsylvania prescription drug monitoring program reports
Amazingly this United States Attorney told the physician his medical records reflected in extraordinary pattern of distributing controlled substances while failing to satisfy relevant standards under the Controlled Substances Act and the False Claims Act. The physician was put on notice that the Controlled Substances Act and it’s implementing regulations require prescriptions be issued for legitimate medical purposes by any individual practitioner acting in the usual course of his profession. 21 CFR 1306.04(A).
If a prescription is issued but fails to satisfy those standards to prescription, it is not valid under 21 USC § 842(a)(1), 21 USC § 829(a). These violations provide for a civil penalty under 21 USC § 842C1A of not more than $25,000 per prescription or no more than a total of $64,820 for all violations after November 2, 2015. The physician was also notified that if Medicare paid for any of the prescriptions under a federal healthcare program, the physician was subject to False Claims Act triple damages under 31 USC § 3729.
This doctor was invited him to come and talk to the United States attorney and the Department of Justice about this letter and the 12 files in question. Most importantly:
- the doctor was not yet indicted;
- his entire office files were not seized;
- his personal and business assets were not subject to civil forfeiture claims
- his personal and business assets were not frozen
- he was not forced to surrender his DEA prescribing Authority as a bail condition over a holiday weekend;
- he was not emergently charged by the Pennsylvania Medical Board;
- and he not in jail.
My other clients have not been as fortunate to receive, while intimidating, such an explicit letter. This doctor was invited him to come and talk to the United States Attorney and the Department of Justice about this letter. If you have received a letter similar to this please call me to discuss your options.